The NSW Civil and Administrative Tribunal has recently heard two reviews initiated by approved providers who had their provider approvals cancelled by the NSW Department of Education (the NSW Regulatory Authority under the National Law):
In Gabriel’s Family Day Care Pty Ltd v Secretary, Department of Education (No 2), the provider approval was cancelled due to numerous alleged breaches of the National Law and Regulations including in relation to educational leader, nominated supervisor, engagement of educators, emergency and evacuation procedures, record keeping, authorisations, and the health and safety of children. The Tribunal after assessing the evidence did not believe cancellation was warranted (paras. 98-103):
It is considered that the serious nature of the allegations, including the fact that significant financial penalties could result after the successful prosecution of breaches of the National Law or National Regulations, means that the Tribunal should be comfortably satisfied that the evidence establishes the alleged breaches.
On the balance of probabilities, the evidence provided by the respondent and the evidence provided by the applicant does not translate to a comfortable level of satisfaction commensurate with the gravity of the allegations that there have been established the multiple breaches of the National Law and the National Regulations which have been alleged.
The applicant has in its written submissions referred to the concept of unacceptable risk of harm because this provides an alternate basis on which there may be a cancellation decision under section 31 of the National Law. This is not the basis relied upon by the original decision.
In the decision of Nilufar v Secretary Department of Education [2020] NSWCATAD 37 at [55]-[58] the concept of unacceptable risk is considered in a different context to this matter but approved the statement in Kendrick v Secretary Department of Education [2019] NSWCATAD 45 at [50]-[51]. Relevantly, the likelihood of risk and the gravity of risk is a necessary part of the assessment of unacceptable risk. Those statements are considered a correct statement of the concept of unacceptable risk and are adopted by this decision. It is considered that there does not exist an unacceptable risk of harm in this matter and the conditions which we propose should be imposed on the applicant pursuant to section 58 of the Civil and Administrative Tribunal Act will maintain risk to an acceptable level.
The applicant has also submitted that if there were established breaches of the National Law or National Regulations those breaches were insufficient to warrant cancellation of the provider approval. Having regard to all of the evidence submitted by both the applicant and the respondent this is a submission which is open to the applicant on the evidence before the Tribunal and is accepted by the Tribunal.
If the Tribunal has erred in finding that the alleged breaches have not been established, it is the Tribunal’s view that the evidence has not established that it was appropriate in all the circumstances for the applicant’s provider approval to be cancelled.
In making that assessment, the Tribunal said (paras. 106-10):
The determination of the correct and preferable decision must regard the rights and best interests of the child who may receive the benefit of the service as paramount and to ensure the safety, health and wellbeing of children attending education and care services.
The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.
The objectives of the National Law are promoted where persons with management or control of an education and care service have knowledge and understanding of the National Law and Regulations.
The evidence does not reach the required level for the Tribunal to be comfortably satisfied that the allegations of breaches have all been made out. The Tribunal considers that even if the allegations had been established by the evidence to the requisite standard, the procedures and mitigating actions taken by the applicant warranted less drastic action than cancelling the provider approval.
The Regulatory Authority has an educative function and a function to implement improvements in the quality of education and care services. Gabriel’s Family Day Care Pty Ltd, has been providing education and care to children as a family day care service since approximately 2014 and has modified its practices and procedures responsively to interventions by the Regulatory Authority.
Instead the tribunal imposed certain conditions on the provider approval in relation to a number of their educators (see para. 114).
In the other case of Global Family Day Care Pty Ltd v Secretary Department of Education, the provider approval was cancelled because of alleged systematic non-compliance issues in respect of the operation of the service, inadequate governance systems in place to satisfactorily address those issues, and the applicant was not a fit and proper person to operate an education and care service. The Tribunal found that the service had a history of non-compliance, non-compliances which were not challenged by the approved provider. In relation to whether the approved provider was fit and proper, the Tribunal stated (paras. 161-4, 167-8):
In our view on a total assessment of the evidence, Global does not have adequate knowledge and understanding of the responsibilities of an approved provider.
In addition, noting the evidence of Mr Gaal [Global's Director] which at times was critical of the need to comply strictly with the provisions of the National Law and Regulation, however onerous, coupled with his track record as a Director of an approved family day care provider, we are not satisfied that he possesses sufficient integrity and character to be entrusted with the responsibility of operating a family day care business.
The matters involving Universal and Galaxy [other services in which Mr Gaal was involved], as well as the cancellation of the CCB for Global, and the ensuing failure to notify the Department, illustrate an approach to the role which runs counter to the guiding principles and objects of the National Law.
Having made the findings that we have, we are required to ascertain (notwithstanding that finding) what is the correct and preferable decision on the application before us...
However having examined the long history of repeated non compliance, as summarised at [7] - [15] above, and the evidence adduced in the proceedings, we are not satisfied that even with the imposition of conditions, that on current evidence the business would operate in accordance with the National Law and Regulations.
For those reasons we decline to make a substitute decision that the business can operate with reduced numbers, or at reduced locations, or any of the other matters specified in s 55 and s 55A of the National Law. We are not satisfied that such conditions would ensure adherence to the guiding principles or objects of the National Law which place the interests of the child above all.
The Tribunal therefore affirmed the cancellation decision.
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