This case relates to Early Childhood Education Australia Pty Ltd which provides family day care
services to 120 children throughout Sydney. In March 2020, the Department of Education notified Early Childhood of the
decision to exercise the power to cancel its provider approval (the
cancellation decision) under s 33 of the Children (Education and Care Services) National Law
(NSW). Shortly after being notified of that decision,
Early Childhood applied to the NSW Civil and Administrative Tribunal for review of that decision. The approved provider applied for a stay of that decision pending a review by the Tribunal
The Department cancelled the Provider Approval after a history of non-compliances and specifically on the following grounds:
- Ms Bak (person with management or control) is not a fit and proper person to be involved in the provision of an education and care service;
- the
continued provision of education and care services by Early Childhood
would constitute an unacceptable risk to the safety, health or wellbeing
of any child; and
- Early Childhood has breached conditions of its provider approval: sections 31(a), 31(b) and 31(e) of the National Law.
The Tribunal decided to stay the cancellation subject to a number of conditions (paras. 40-2):
Nonetheless, given the available
material about the steps taken by Early Childhood to rectify the most
recently identified contraventions, together with the relatively short
period until the substantive decision is likely to be determined, and
the obvious inconvenience and distress it would cause to parents if the
cancellation decision was implemented immediately, I am satisfied that
with the imposition of conditions, specifically that Early Childhood
conduct fortnightly inspections of a number of its carers who are
alleged to be responsible for multiple contraventions, the risk can be
reduced to one that is acceptable.
While
the considerations favouring and weighing against the exercise of the
discretion to stay the operation of the cancelation decision are finely
balanced, I have decided to make orders staying the operation of that
decision subject to conditions.
I make the following orders:
The
Decision made on 26 March 2020 to cancel the applicant's provider
approval is stayed until the Tribunal determines the substantive
application, on the following conditions:
- The Applicant not engage any new educators or relief educators.
- The
Applicant provide the Respondent with fortnightly compliance reports
for the following persons until the proceedings are determined: Jeongin
Choi, Jungok Bae, Junsun You and Heui Jae Kim.
ACECQA has just published its latest newsletter which details information and resources for the childcare sector, including information on First aid training during COVID-19.
In this case the NSW Civil and Administrative Tribunal considered an application for review of the decision of the NSW Department of Education (respondent) to cancel the provider approval of Jessica Education Centre Pty Ltd (applicant). Previously the applicant's CCB approval had been cancelled (see previous post). The Department cancelled the provider approval of the applicant on the basis that the applicant was not a fit and proper person
to be involved in the provision of an education and care service and that the approved provider had breached a condition of the provider approval, namely regulations 124 and 177(2). During the hearing, the Department argued that applicant’s approval should remain cancelled based on the following grounds:
- The applicant has failed to operate an education and care service for more than 12 months (s 31(f)).
- The applicant breached a condition of its provider approval by
repeatedly failing to comply with the National Law (s 31(e) read with s
19(2)).
- The applicant is not a fit and proper person to operate an education and care service (s 31(a)).
Considering these grounds, the Tribunal found that the service had not operated for more than 12 months as it could not afford to without Commonwealth subsidies. It also found that the applicant breached a condition of its approval by repeatedly breaching the National Law. In particular, the Tribunal noted: "[s]ome breaches concerned whether educators responsible for caring for
children had proper oversight and instruction, and whether children’s
whereabouts were known and recorded. These are very significant issues." (para.45). In relation to the fit and proper ground, the Tribunal observed:
Ms Choi, a director of the applicant, clearly desires to assist the
Korean community and there was evidence of her good character and
diligence. The evidence, however, supports a finding that the
applicant’s knowledge and understanding of the responsibilities of an
approved provider is inadequate and the applicant has not acted in
accordance with those responsibilities.
While there is no evidence to suggest that Ms Choi individually is
not of good character, the available evidence indicates that she and the
applicant lack the knowledge and ability to operate the service in
compliance with the National Law and therefore are not fit and proper
within the meaning of the National Law.(paras. 52-3)
The Tribunal, therefore, upheld the decision of the Department to cancel the applicant's provider approval.
The Education Council met on 2 April and issued a communique which noted that state and territory regulatory authorities have agreed four critical areas for time-limited regulatory action: waiving fees and charges for COVID19-related applications, fast-tracking qualification waivers, suspending assessment and ratings, and making rapid operational adjustments as required. The Sector website also published a story on the meeting.
