Safe Sleep and Rest Practices

Recently, ACECQA published some information about safe sleep and rest practices.

Senate Interim Report on the Effect of Red Tape on Childcare

The Australian, Child Weekly and the Educa website have reported on a Senate report calling for a review into the National Quality Framework. An interview with the chairman of the committee was broadcast on radio station 2GB.

The Senate Select Committee on Red Tape published the The Effect of Red Tape on Childcare Interim Report on 15 August. The final report of the committee is due to be presented by 3 December 2018. The Interim report makes seven recommendations. In summary, the committee recommended that: 

• the Australian Government, through the Council of Australian Governments, work toward reducing the regulatory burden in the Family Day Care sector, including by removing limits on the number of educators in each service.
• the Australian Government, through the Council of Australian Governments, promote and/or develop an evidence-base for staffing ratios and staffing qualifications in early childhood education and care, as a quality component of the National Quality Framework. 
• following establishment of the evidence-base for staffing ratios and staffing qualifications in early childhood education and care, the principles of the National Quality Framework be reviewed to ensure they appropriately reflect the evidence-base. 
• in reviewing the principles of the National Quality Framework, Australian, state and territory governments recognise that formal qualifications are not the only prerequisite for the provision of high quality child care, as this can also be provided by parents
• the Department of Education and Training provide a detailed annual report to the Department of Jobs and Small Business, to provide greater transparency about red tape reductions in early childhood education and care.
• the Department of Education and Training and the Department of Jobs and Small Business report in greater detail on the regulatory effect of implementing the Child Care Subsidy, including in relation to the Activity Test. 
• the Australian Government review the objectives of fee assistance to ensure that it is actually targeting maternal workforce participation and children from disadvantaged backgrounds.

The interim report and other documents can be accessed from the Parliament of Australia website.

Quality of Chldcare in the For Profit Sector & Goverment Subsidies

The Sydney Morning Herald recently published an opinion piece on the quality of childcare services and government subsidies.

Cancellation of Cildcare Benefit Approval: Hilal Family Day Care Scheme and Secretary, Commonwealth Department of Education and Training

This was another case heard by the Australian Administrative Appeals Tribunal in which Hilal Family Day Care Scheme Pty Ltd sought a review of the decision of the Department to cancel its child care benefit (CCB) approval issued under A New Tax System (Family Allowance) (Administration) Act 1999 (Cwlth) for failing to meet the conditions of the approval. Specifically, Hilal claimed CCB for sessions in which educators or children were overseas; claimed for care of children by educators in excess of the number permitted by the National Regulations; and engaged in "child swapping". The Tribunal regarded these contraventions as serious and upheld the decision of the Department to cancel the approval:

I am satisfied overall that comprehensive and serious contraventions of the family assistance law by the applicant have been established, which merit sanction. 

The respondent decided that the appropriate sanction was to cancel the applicant’s approval, a matter within the respondent’s discretion under the statute. For all the reasons I have mentioned, I consider that decision to be the correct or preferable decision, and the reviewable decision will be affirmed. (paras. 23-4)

Cancellation of Childcare Benefit Approval: Moonlight Family Day Care Pty Ltd and Secretary, Commonwealth Department of Education and Training

This was a case heard by the Australian Administrative Appeals Tribunal in which Moonlight Family Day Care Pty Ltd sought a review of the decision of the Department to cancel its child care benefit (CCB) approval issued under A New Tax System (Family Allowance) (Administration) Act 1999 (Cwlth) for failing to meet the conditions of the approval. Specifically, Moonlight failed to comply with its obligation to provide accurate information to the Department as to whether sessions of child care have occurred and the details of those sessions in its reports under the Act. It was alleged that Moonlight had made false statements in respect of at least 7750 sessions of care resulting in an overpayment of CCB. Moonlight at the hearing did not take exception to any of the allegations of breaches made against it but argued that some other penalty like suspension was more appropriate rather than cancellation. 

The Tribunal upheld the decision of the Department to cancel approval, stating that: 

I was surprised to some extent, however, that no person from Moonlight actually gave evidence. That raised for me some concerns about the undertaking given by Moonlight to repay the sum of $160,000.00 involved. My concerns were not diminished upon learning that Moonlight disputed it should be accountable for the whole of that amount and sought to lay some blame elsewhere.

I was surprised also though that the sum in question had not yet been actually repaid, without demur, and I consider that to be a factor of importance. Moonlight in effect was asking for a favourable outcome but was not prepared to actually repay the Commonwealth the amount involved despite admitted breaches.

I agree there appears to be no order of priority given in the legislation as to whether a cancellation or a suspension applies but that does not mean that it is inappropriate to order cancellation for a first offence, so to speak, if the offence is serious enough and the circumstances warrant it.

I am satisfied in this case that the admitted breaches are sufficiently serious to warrant that course.…

The admitted breaches in this matter were frequent and are of a serious nature, potentially impacting on the children under the care of the service. In particular, they are serious in point of amount and in number—perhaps as many as 7000 occasions are involved. I do not accept the submission that based on an overall percentage relative to the total amount of care in question, that this is not a serious or concerning number.   Further, as I have said there has been no repayment of the money involved.

Finally, I see no merit in Moonlight blaming the educators involved: Moonlight had a clear obligation imposed on it by Commonwealth law and it is not in point to explain away failure to meet that obligation by referring to the errors of others. This shows up in my view as a failure of governance which is central to the admitted breaches of the Applicant. (paras. 21-26)

Overview of Victorian Reportable Conduct Scheme

Meridian Lawyers have published a useful summary of the Victorian Reportable Conduct Scheme, for the reporting and investigation by organisations of child abuse or neglect, on their website.

Fraudulent Claim of Social Welfare Benefits: Commonwealth Director of Public Prosecutions v Warden

In the Victorian County Court recently, Lynn Warden pleaded guilty to one charge of obtaining a financial advantage by deception from a Commonwealth entity, contrary to section 134.2(1), Criminal Code Act 1995 (Cth). The full facts of the case can be seen in the full report. However, Ms Warden was engaged full-time as an independent contractor to the Hobsons Bay City Council providing family day care services to children in her home while receiving a Disability Support Pension. Ms Warden was sentenced to a term of imprisonment of three years, to be released after serving 14 months on a recognisance of $1000 to be of good behaviour for a period of three years. In addition, an order for reparation for the remaining outstanding overpaid amount of $215,944.38 was made.

Sleep and Rest Requirements Under National Regulations

The NSW Regulatory Authority, the Department of Education, has recently published useful guidance on the elements of regulations 81 and 168.

Notices for Obtaining Information or Documents Under the National Law

The National Law gives powers to Regulatory Authorities to obtain information or documents by notice from specified persons for monitoring compliance or undertaking investigations (sections 206 and 215, see section 6.4.2, Australian Childcare Regulation for further details). 

These provisions do not specify what information is required to being included in such notices but a recent Victorian Court of Appeal case of Aurora Construction Materials P/L and Epping Transport P/L v Victorian WorkCover Authority gives some guidance. Although this was an occupational health and safety case, the provision under review. section 9, Occupational Health and Safety Act 2004 (Vic) (OHSA), was in broadly similar terms to the wording of similar provisions in the National Law:

9    Power to obtain information
(1) For the purpose of ascertaining whether this Act or the regulations have been complied with or of investigating a suspected contravention, the Authority may (by written notice) require a person to—
(a) give the Authority such information as the Authority requires; or
(b) produce a document in the custody or control of the person.

In this case, the applicants (Aurora Construction Materials and Epping Transport) failed to comply with a notice under section 9(1) issued by the Victorian WorkCover Authority. and were successfully prosecuted for failing to comply. In this case the applicants sought leave to appeal from that decision in relation to the validity of the notices. The applicants argued that the notice was not valid because it failed to:

• Identify the matter(s) which constituted the suspected contravention(s) of the OHSA; 
• Disclose on their face the section of the OHSA which was the subject of the suspected contravention(s); or 
• Enable the Applicants to determine whether the requested documents had been validly sought.

The Court held that the notice was valid giving leave to appeal but dismissing the applicants' appeal. The majority judgment in this case was given by Kaye JA who outlined the requirements of such notices:

The fundamental principle, discussed in the cases, is that a notice, requiring the compulsory provision of information or documents, must fulfil two important conditions. First, the notice must disclose, on its face, that it is an exercise of the power which is conferred on the Authority by the statutory provision in question. Secondly, the notice must specify, with reasonable clarity, the information that the recipient is required to provide, or the documents that the recipient is required to produce, so as to enable it to be judged whether the Authority in question is entitled to require the provision of the information or documents stipulated in the notice (para.79)

Kaye JA went on to detail these requirements in the context of the OHSA:

...Thus, the requirement, that the notice must demonstrate, on its face, that the Authority is entitled to the documents or information sought in the notice, has the effect that the notice must sufficiently specify the suspected contravention, or contraventions, that is or are the subject of the investigation, pursuant to which the information and documents are sought. In the absence of that specification, the recipient of the notice would not be able to assess, first, whether the Authority is entitled to demand the production of information and documents to it, and, secondly, whether the documents and information, specified in the particular notice, are within the ambit of that entitlement of the Authority.

In addressing that question, it is important to bear in mind that the information and documents, specified in a notice under s 9, are sought for the purposes of an investigation which may not be complete. As the respondent has correctly pointed out, the information and documents, sought in such a notice, may be necessary to fill in gaps of information, or to elucidate matters which are unclear. The investigation in question may be at an incipient or early stage. For those reasons, in considering the validity of the notice in a particular case, it is important to bear in mind the caution, that has been reiterated in a number of the cases, that the issue, of the validity of such a notice, should not be addressed in an over-technical or hyper-critical manner. That caveat is of particular relevance to the service of notices under the OHSA, which has, as its express object, the securing of the health, safety and welfare of employees and other persons at work, and the elimination of risks to the health, safety or welfare of employees and other persons at work.

Nevertheless, the circumstance, that, as an investigation might be at a stage at which it would be premature to particularise a specific provision of the OHSA that was suspected to have been contravened, does not logically prevent the specification in a notice of the nature of the suspected contravention, or suspected contraventions, of the OHSA or regulations. In ordinary usage, a ‘suspicion’ is a state of mind that, while being short of proof of, or belief in, a state of facts, is more than a mere idle wondering, or speculation, as to the existence of that state of facts. In particular, it involves an actual apprehension, of the existence of a state of facts, which lacks either proof, or sufficient proof, to give rise to a belief in that state of facts. It follows that the Authority would not have the power to serve a notice, under s 9, unless it is seized of sufficient knowledge or information concerning the possibility of a contravention of the OHSA or regulations, so as to possess such an apprehension or suspicion by it that a provision or provisions of the OHSA or regulations may have been contravened (paras 87-89).

 

Childcare Subsidy Changes and Red Tape

ABC News Online recently published an opinion piece arguing that the new Commonwealth Child Care Subsidy changes add red tape for families and providers.

Revised National Principles for Child Safe Organisations

The Australian Human Rights Commission has published a revised version of the draft National Principles for Child Safe Organisations on the Child Safe Organisations website. This version of the National Principles will be progressed to the Council of Australian Governments (COAG) for consideration and endorsement. One of the responsibilities of the new National Office for Child Safety (set up within the the Commonwealth Department of Social Services) will be to work with state and territory governments to coordinate the efforts of the Commonwealth Government and states and territories in implementing the National Principles, once endorsed by COAG. For further information see the latest Child Safe Organisations National Principles e-newsletter.

Refusal of Working With Children Check: DET v Children's Guardian

This is a case in which the applicant (DET) sought a review of the decision of the NSW Children’s Guardian to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 (NSW). The case was heard by the NSW Civil and Administrative Tribunal. DET sought a Working with Children Check Clearance in order to work with children as an early childhood educator. The Tribunal comprehensively assessed the applicant's personal history. The applicant had previously pleaded guilty to an offence under section 23A, Drug Misuse and Trafficking Act for knowingly taking part in the cultivation of a commercial quantity of a prohibited plant (cannabis) by enhanced indoor means and in the process exposed her children to that cultivation and the chemicals used in that process. In addition, the applicant previously was involved in drug taking, was seeing a psychologist, and currently had only supervised access of most of her children. The Tribunal upheld the decision of the Children's Guardian and concluded:

The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. There may be conditions which can be imposed which ameliorate the risk but the Tribunal is not empowered to make an order with conditions.... (para.131)