Education Council Agrees to SA Jurisdiction-specific Amendments to National Regulations

The SA Education Standards Board have announced that the Education Council has agreed to amendments to the National Regulations for South Australia. The changes will enable new educators without an approved qualification working at a centre-based service to be counted as a certificate III qualified educator for the purposes of educator-to-child ratios for a three month probationary period. The changes will also allow a 1:11 educator to child ratio in all South Australian centre-based services for children over 36 months of up age, up to and including preschool age. A commencement date for these changes has yet to be announced.

Working with Children Check: Storch v Director-General, Department of Justice and Attorney-General

This case was heard by the Queensland Civil and Administrative Tribunal and relates to a blue card which was not reinstated following the applicant educator being found not guilty of a disqualifying offence.

Revised Victorian Children's Service's Act 1996 & Regulations in Effect

The revised Children's Services Act 1996 and new Children's Service Regulations 2020 came into effect on 17 May 2020 aligning Victorian Children's Services with National Law provisions. See previous blogs on the Act and Regulations.

Cancellation of Child Care Subsidy Approval: Universal Family Day Care Pty Ltd and Secretary, Department of Education

This is an unusual case as the Commonwealth Department of Education cancelled the CCS approval of Universal Family Day Care Pty Ltd because they had been deregistered as a company by ASIC. The company had been deregistered due to non-payment of its annual review fee. The Department cancelled the approval on the basis that it was no longer operating - even though the service continued to operate caring for children. The provider sought a review of this decision before the Australian Administrative Appeals Tribunal. The issue for determination by the Tribunal was whether the Department properly cancelled Universal FDC’s provider approval as a result of ASIC’s decision to deregister the company. This required it to consider whether:

• as a result of ASIC’s deregistration of the company on 22 July 2018, Universal FDC ceased to operate for the purposes of section 197H, Administration Act. 
• the subsequent re-registration of Universal FDC by ASIC on 14 August 2018 had any effect on the decision to cancel Universal FDC’s provider approval.

The Tribunal found that (para.25):

...Universal FDC ceased to operate any approved child care service for the period from 22 July 2018 to 14 August 2018 in accordance with section 197H of the Administration Act and therefore was not eligible to receive child care subsidy during this period.

Cancellation of Childcare Subsidy Approval: Hussein v Secretary, Department of Education & Training

The Federal Court recently handed down its judgment in this case which involved the applicant (Abdulkadir Hussain), operator of Super Family Day Care, appealing the decision to cancel its CCS approval. The Commonwealth Department of Education (respondent) decided to cancel its approval based on a number of non-compliances with CCS conditions, including:

• failure to provide complete and accurate reports to the respondent in relation to the care being provided.
• submission of child care service attendance reports claiming that educators were providing family day care services when they were overseas, and claiming that children were receiving family day care services when they were overseas, and failing to bring these matters to the respondent’s attention.
• provision of 4,453 inaccurate attendance reports and receipt of $98,976 in child care assistance fee payments that could not be passed on to an eligible recipient.
• failure to pass on fee assistance payments to eligible recipients as a fee reduction.
• failure to remit moneys to the respondent that could not be passed on to an eligible recipient;
• been issued with an Emergency Action Notice under the National Law, by the Victorian Department of Education and Training, with respect to operating in a manner that posed, or was likely to pose, an immediate risk to the safety, health or well-being of a child or children being cared for by the service.
• failure to demonstrate that it had instituted or could maintain effective governance arrangements to ensure compliance with the family assistance law.

In this case, the applicant sought judicial review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) claiming that in deciding to cancel the applicant’s provider approval the Department:

• breached s 195H(2), Administration Act and r 52(3)(g) of the Minister’s Rules by failing to consider relevant mitigating factors in relation to non‑compliance.
• breached s 199A(2), Administration Act by failing to have regard to the submissions in relation to mitigating factors made on the applicant’s behalf.
• denied him natural justice.

The Court dismissed all three grounds and ordered:

1. The applicant’s amended originating application dated 11 March 2020 be dismissed.

2. The applicant pay the respondent’s costs, such costs to be taxed in default of agreement.

3. On the undertaking of the applicant given through his counsel to:

(a)  write to the parents of each child who is currently enrolled to receive child care services provided by Super Family Day Care by Friday 22 May 2020, to notify them that:

(i) the Federal Court of Australia has dismissed the applicant’s challenge to the lawfulness of the respondent’s decision to cancel the applicant’s child care provider registration, and

(ii) Super Family Day Care will cease providing child care services as a registered provider on 19 June 2020, which will have the effect that parents of children using any child care service provided by Super Family Day Care after that date will not be eligible to receive Child Care Subsidy.

(b) provide copies of all such letters to the respondent’s legal representatives by 26 May 2020, 

the effective date of the respondent’s decision of 19 December 2019 to cancel the provider registration of the applicant be stayed until 4.00 pm on 19 June 2020.