Recent WASAT Cases

In November, the West Australian State Administrative Tribunal (WASAT) made a number of orders in relation to matters brought before the tribunal by the WA Regulator (Department of Communities) for contraventions of the National Law.

In Department of Communities, Lady Bug Holdings Pty Ltd, the approved provider (Lady Bug Holdings) was found to have contravened section 177(3) for failing to comply with the terms of a compliance notice issued on 28 September  2016. The compliance notice related to the Melville Day Care Centre, in Melville, and required compliance by 16 March 2017, in respect to a number of matters relating to section 167 and regulations 103-4 (see the Department of Communities website for details of the compliance notice).
The Tribunal ordered the approved provider pay a fine of $2,000 and pay $3,000 towards the Department's legal costs.

In Department of Communities, Embracing Children Karratha Pty Ltd, the approved provider (Embracing Children Karatha) was found to have contravened section 165(1) by failing to ensure adequate supervision of children in its care. The facts of the case were that an educator from the service, Stripy Zebra's Junior Education Centre, driving a bus collected seven children from various schools to transport them to the service. The bus arrived at the service at about 2.52pm and six children entered the service. The nominated supervisor signed in seven children. At 3.24pm a parent walking past the service noticed a child about 5 years old strapped into a seat in the bus. It was a 30 degree day. 
The Tribunal ordered that the approved provider pay a fine of $13,500 and pay the Department $2,500 towards its legal costs.

Regulation and Provision of Outside Schools Hours Care

An opinion piece in the Brisbane Times detailed some issues with the provision of outside school hours care.

Royal Commission into Institutional Responses to Child Sexual Abuse Final Report

The Royal Commission into Institutional Responses to Child Sexual Abuse in its final report handed down on 15 December, made the following recommendations that specifically relate to childcare: 

• Recommendation 6.9 - Legislative requirements to comply with the Child Safe Standards should cover institutions that provide childcare or childminding services.

• Recommendation 7.12 - Reportable conduct schemes should cover institutions that provide childcare services. 

In addition, the Commission made a number of previous recommendations regarding working with children checks and other matters relevant to childcare services.

The full text of all the recommendations can be found here.

Commonwealth Government In Home Care Programme

The Australian recently carried a story on the problems with this Commonwealth Government funded programme.

Sunlight and Childcare Services

The Age reported on a new building development that would have an affect on a neighboring childcare service's access to sunlight.

Under the National Regulations, the most relevant requirement is regulation 110:

The approved provider of an education and care service must ensure that the indoor spaces used by children at the education and care service premises—
(a) are well ventilated; and
(b) have adequate natural light; and
(c) are maintained at a temperature that ensures the safety and wellbeing of children.
Penalty: $2000.

In addition, regulation 113 regarding the outdoor space natural environment may be relevant.

Commonwealth Government Funding Reforms to Address Family Day Care Fraud

The Courier Mail reported on the upcoming Commonwealth government funding reforms, part of which are to address benefit fraud by family day care services.

Contractual Dispute: Childcare Providers Pty Ltd v Bright Horizons Australia Childcare Pty Ltd

The Queensland Supreme Court recently heard another case in relation to the dispute between Childcare Providers Pty Ltd and Bright Horizons Australia Childcare Pty Ltd. It concerns alleged debts between the two parties. This case is different, but related to, the issue raised in the previous case that related to a dispute regarding operation of childcare services (see previous blog).

Nutrition and Childcare Services

A report in the Sunday Herald Sun covered the introduction of a Commonwealth Government initiative to improve the nutrition of food provided to children at childcare services. 

The report does not appear to be aware that there is a requirement to provide nutritious food under the National Regulations. Regulation 79 provides:

(1)  The approved provider of an education and care service that provides food or a beverage to children being educated and cared for by the service must ensure that—

(a)  the food or beverage provided is nutritious and adequate in quantity; and

(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—

(i)  each child’s growth and development needs; and

(ii)  any specific cultural, religious or health requirements.

Penalty: $2000.

(2)  A nominated supervisor of an education and care service that provides food or a beverage to children being educated and cared for by the service must ensure that—

(a)  the food or beverage provided is nutritious and adequate in quantity; and

(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—

(i)  each child’s growth and development needs; and

(ii)  any specific cultural, religious or health requirements.

Penalty: $2000.

(3)  A family day care educator who provides food or a beverage to children being educated and cared for by the educator as part of a family day care service must ensure that—

(a)  the food or beverage provided is nutritious and adequate in quantity; and

(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—

(i)  each child’s growth and development needs; and

(ii)  any specific cultural, religious or health requirements.

Penalty: $2000.

(4)  To avoid doubt, this regulation does not apply to food or a beverage provided by a parent or family member for consumption by the child.

Inadequate Supervision (Section 165, National Law) & Protection from Harm & Hazards (Section 167): Chief Executive Officer of the Department of Communities, Fremantle Early Learning Centre Inc

In a recent case before the West Australian State Administrative Tribunal an order was made which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator (Department of Communities) for contraventions of sections 165 and 167 of the National Law. The facts of the case are set out in the report of the case, and in particular the attached agreed set of facts. In summary, a 3 year old child at the service, unnoticed, placed his head through the cords of a hammock (recently installed at the service) hanging himself with his feet off the ground for over 5 minutes before being freed by an educator.

A penalty of $4,000 was imposed on the approved provider with a further $2,000 to be paid to the Department for legal costs.

WA Today also reported the case.

National Statement of Principles for Child Safe Organisations

The Commonwealth Government commissioned the Australian Human Rights Commission to prepare draft National Principles for Child Safe Organisations. The draft was endorsed by Commonwealth, State and Territory Community Service Ministers in October 2017. In order to obtain broader input into the draft principles from all sectors working with children and young people, before finalising the National Principles, a consultation draft has been prepared. The final draft National Principles will be submitted to the Council of Australian Governments (COAG) for endorsement and implementation across all sectors providing services to children.

Criminal Court Case Involving St Andrews Children’s Neighbourhood Centre

Nine News carried a report of a matter being heard before Campbelltown Local Court, in NSW, relating to criminal charges brought against some persons involved in the St Andrews Children’s Neighbourhood Centre.

Costs of Childcare & Regulation

The Daily Telegraph recently carried a story on the costs of childcare and regulation.