Stay of Cancellation of Service Approval: Oakhaul Pty Ltd v Department of Education

This is a case before the Queensland Civil and Administrative Tribunal for a stay (put on hold) of a decision by the Queensland Regulatory Authority, under the National Law (Department of Education), to cancel the service approval of a service the applicant operates at Oakey.

The Department decided to cancel service approval because of:

• Oakhaul’s failure to operate the centre in a way that ensured the safety, health and wellbeing of children constituted a breach of a statutory condition of the service approval; 
• the continued operation of the centre constituted an unacceptable risk to the safety, health and wellbeing of the children; and 
• Oakhaul had demonstrated unwillingness or inability to operate the centre in a compliant manner (para. 12).

The judgment detailed a long history of non-compliance and according to the Department there was only one other service in Queensland that had a lower rating under the assessment and rating system (see paras.5-11).

The Tribunal considered the evidence to assess whether the cancellation should be stayed until a full hearing and concluded:

Ensuring the safety, health and wellbeing of children attending education and care services is an objective of the National Law. Guiding principles in administering the National Law include that the rights and best interests of the child are paramount, and that best practice is expected in the provision of education and care services. Another guiding principle is that the role of parents and families is respected and supported.
The Department’s submissions proceed, in effect, on the basis that an unacceptable risk exists to the safety, health and wellbeing of children at Oakhaul’s centre. If that assessment is correct, then of course a stay could not be desirable.
However, I consider the position to be less clear-cut than is asserted by the Department. The Department’s submissions paint a picture of extensive and persistent non-compliances and failures to remedy, without acknowledging the extent to which that picture is based on contested evaluations by the Department about the adequacy of remedial measures or the sufficiency of verification. Further, the inspector’s notes of the 6 January 2020 inspection indicate a number of specific concerns, but the decision to issue a regulatory notice in respect only of the basketball pole is difficult to reconcile with the submission of ongoing unacceptable risk.
I do not regard Oakhaul’s comments about the lack of actual harm as indicative of indifference to the importance of minimising risk regardless of actual harm.
The most recent injury is said to have been in 2017, when a child sustained fractures when using a trampoline. That is a fairly common type of injury, though of course parents and guardians should be given the choice about whether their children are exposed to the risk.
Closure of the centre would disrupt children’s settled routines and familiarity with staff. It would inconvenience and curtail the freedom of choice of those families who have elected to keep their children at Oakhaul’s centre.
When all of the circumstances are taken into account, the public interest factors do not all point in one direction....
My preliminary assessment of the currently-available evidence and submissions leads me to the conclusions that Oakhaul appears to be committed to fixing any remaining deficiencies, and that there is no imminent or otherwise unacceptable risk to the safety of children. When all factors are considered, including the disruption to the lives of children, families, and staff, and the financial effects on Oakhaul, on balance I consider that a stay of the cancellation decision is desirable. (paras.35-41, 44)