Stay of Cancellation of Childcare Benefit Approval: Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employmen

In this case, before the Federal Court, the applicant family day care provider applied for a stay of the decision of the Department to cancel its provider approval under under section 195H, A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). The applicant as well as applying for internal review by the Department of the decision also applied to the Court for judicial review of the cancellation. The Court rejected the applicant’s interlocutory application in so far as it sought a stay of the cancellation decision for a period of time to enable the internal review by of the decision to be completed by the Department. However, a stay of the cancellation of the decision was granted pending the judicial review (paras. 26-7):

In the present case, the applicant seeks a stay of the respondent’s cancellation decision pending a review of the decision. The effect of the stay is that the applicant will continue to hold an approval from the respondent, under s 195 of the Administration Act, to operate a Child Care Benefit Family Day Care Service. As such, individuals whose children are being provided with care at Billan Family Day Care will continue to be eligible for the applicable child care subsidies which will be paid to the applicant. In my view, it is appropriate to grant a stay of the cancellation decision on the condition that the applicant gives the usual undertaking as to damages. If the applicant is unsuccessful in this proceeding, it will have been paid child care subsidies by the Commonwealth which, but for the stay, it would not have been entitled to receive. While the subsidies are due to the individuals whose children are provided with care at Billan Family Day Care, the subsidies are paid to the applicant and the applicant charges its clients lower hourly rates for its services. In my view it is appropriate, as a condition of the stay, that if the applicant is ultimately unsuccessful on its application for review under the ADJR Act, the applicant undertake to repay to the respondent the child care subsidies received in the period from 28 June 2020.

New South Australian Children's Services Legislation

The Education and Children’s Services Act 2019 passed the SA Parliament on 1 August 2019. The Act replaces the Education Act 1972 and the Children Service’s Act 1985 and will commence 1 July 2020. It provides a contemporary framework for delivering high-quality children’s services and compulsory education in South Australia. The Education and Children’s Services Regulations 2020 also commence on 1 July. Children's services includes preschool education and child care provided on a not for profit basis that is wholly or partly Government-funded (section 3). The legislation deals with mainly administrative matters. The Sector website published an article on the new legislation.

Inadequate Supervision (Section 165, National Law)): CEO of Department of Communities and OSHClub

In two cases case heard by the West Australian State Administrative Tribunal (WASAT) last month orders were recently made which gave effect to the terms of settlement in relation to matters brought before the Tribunal by the WA Regulator (Department of Communities) for contravention of section 165(1), National Law, by approved provider, OSHClub.

The first case was CEO of Department of Communities and OSHClub Pty Ltd t/as Bicton OSHclub. The facts of the case are set out in the decision, and in particular the attached statement of agreed of facts. In summary, the action related to two incidents at the the approved provider's service at the Bicton Primary School at which it provides before and after school care. The first incident related to a 3 year old child who was not picked by the service from kindergarten and was left unsupervised for 10 minutes. The second incident related to another 3 year old child who went through a gap in the fence of the outside play area and entered the car park unsupervised where he was found 30 minutes later by the child's mother. The Tribunal ordered that the approved provider pay to the Department a penalty of $18,000, plus a contribution toward the Department's legal costs of $3000.

The second case was CEO of Department of Communities and OSHClub Pty Ltd t/as Treendale OSHClub. The facts of the case are set out in the decision, and in particular the attached statement of agreed of facts. In summary, the action related to incident at the approved provider's service at Treendale Primary School at which it provides before and after school care. A 4 year old child in the care of the service was found out by the road unaccompanied and upset by a parent and was brought back to the school. The child had been left unsupervised for about 10 minutes. The Tribunal ordered that the approved provider pay to the Department a penalty of $18,000, plus a contribution toward the Department's legal costs of $3000.

In Western Australia such matters as this are generally heard as disciplinary matters under the National Law (WA), see the article by David Oliver in The Sector that explains the process in detail.

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