Stay of Decision to Cancel Provider Approval: Early Childhood Education Australia Pty Ltd v Secretary, Department of Education (NSW)

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.