This case involves an application by the approved provider (applicant) to stay the decision of the Department of Education (the Queensland Regulatory Authority under the National Law) to cancel its approval pending a review of the decision by the Queensland Civil and Administrative Tribunal. The Department decided to cancel the provider approval due to a series of non-compliances with the National Law and Regulations (see para. 9 for list). In particular, the Department argued that "there were a significant number of emergency action notices, compliance notices and breaches over a period of approximately nine months and it was of great concern that there seemed to be repetition of many of these contraventions." (para. 10). One of the breaches was that the applicant did not have a Blue Card (Working with Children Check) for a period from the end of February to the end of August 2020. The Tribunal weighed up all the evidence and, unusually, decided not to grant the stay, stating that (at paras. 59-61, 63-64):
There is a clear public interest in maintenance of the integrity of the Family Day Care licensing system in Queensland. The licensing regime is designed with the protection of children and the protection of them from exposure to harm playing central roles. This interest in child safety is paramount and this must be considered when balancing the legitimate interests of the Applicant and the public interest. Apart from the individuals who apply to hold provider licences and service licences, the others who have an interest in these matters are the children who use the service, their families, the regulators, the other service providers within the industry and the general public who also have an interest in the integrity of the system. The principles and objects of the National Law provide that the rights and best interests of children are paramount. It is in the public interest to ensure that the health, safety and wellbeing of children in education and care services is protected. It is important also that public confidence is maintained in the maintenance of the health, safety and wellbeing of the children in such services. The public is entitled to take comfort from assurance that strict adherence to these principles by the service providers is occurring.
Cogent reasons are needed before staying an order following a decision to protect the safety of children. Merely showing an inability to continue in a professional trade until review is determined has not been held to be sufficient. In the case of Munt v Queensland Law Society Incorporated President Justice Thomas, while acknowledging the Applicant had an arguable case and prospects of success in the review proceedings, refused to grant a stay. There, the Applicant ’s argument that he would no longer be able to derive an income as a lawyer and that his clients would be disadvantaged was held to be outweighed by other factors including:
(a) the seriousness of the misconduct;
(b) the likely prejudice to public confidence in the integrity of the disciplinary process;
(c) the reputation of the profession if the practitioner is granted a stay;
(d) the means available to mitigate that prejudice; and
(e) the expedition with which the review can be heard.
I consider that the same reasoning applies to cases such as the current case. A licence allows the Applicant the right to continue to have children under control and care, even if indirectly. Granting a stay in the current circumstances, the Respondent submits, may put innocent parties such as children in the care of the Applicant’s service. The Applicant has operated for a period of time without an essential requirement, that is a Blue Card, even though it is announced they have one now. Confidence in the integrity of the Family Day Care licensing regime maybe undermined if an person who has behaved as the Applicant has is able to continue to run a service in the current circumstances. The Applicant’s interests in conducting her business and earning her income are subordinate to the need to ensure the safety of children and this safety is provided by the imposing of strict controls on
licensing and ensuring that the National Law are met....
In assessing the balance of convenience, the Applicant has provided some evidence that their work prospects will be prejudiced by not granting the stay. On the other hand, the protection of the individual safety of children via the strict observation of National Standards and
Laws could be prejudiced by granting a stay in these circumstances.
In my view, it is not desirable, in these circumstances, to grant a stay of the Education Department decision. In coming to that decision I have taken into account factors including the purpose of the National Law, the role of the regime, the reasons for suspending the Applicant’s licences, the Applicant ’s response, submissions made by the Applicant, the submissions made by the Respondent against granting a stay and the Applicant’s submissions in favour of a stay.
No comments:
Post a Comment