This case was heard by the Queensland Civil and Administrative Tribunal and involved an application by WAE, a former child care worker, to have her Blue Card reinstated so that she can continue her previous employment. WAE was previously a drug user and also lost her children for a time. The Tribunal did not believe that it was in the best interests of children for the Blue Card to be reinstated:
I am satisfied that WAE has not demonstrated a
sufficient understanding of the risks associated with someone under the
influence of drugs caring for children. I do not have any expert
evidence from a counsellor or psychologist as to WAE’s current mental
state, or her progress along the rehabilitation process. While WAE does
not wish to return to drug use, she has yet to demonstrate a capacity to
remain abstinent over the long term.
A Blue
Card is issued unconditionally and would allow WAE to work unsupervised
with children across a range of circumstances. In this case there are
sufficient risks established on the evidence to satisfy the Tribunal
that this is an exceptional case in which it would not be in the best
interests of children for WAE to receive a positive notice. The decision
under review is confirmed. (paras. 33-4)
On 1 October 2018 changes to the Education and Care Services National Law (WA) Act 2012 and Education and Care Services National Regulations 2012 were made which largely aligns with changes made by other jurisdictions in 2017. The amending Act can be found here and the consolidated Act here. The amending regulations can be accessed here, and the consolidated regulations here.
To coincide with the changes ACECQA have updated their Guide to the National Quality Framework, including highlighting some of the WA specific differences. See their website for details.
I will be publishing an updated edition of my book, Australian Childcare Regulation, as an electronic edition only in early 2019 to incorporate these and other changes made since the publication of the hard copy edition.
The Australian Institute for Teaching and School Leadership (AITSL) was tasked by the Education Council with progressing the National Review of Teacher Registration, including establishing an Expert Panel. The Expert Panel have produced a report, One Teaching Profession: Teacher Registration in Australia, making a number of recommendations. One of the recommendations (number 5) made by the report is that all early childhood teachers, regardless of their employment setting, be registered by State/Territory teacher regulatory authorities, under a consistent national approach. At the moment, across Australia, the majority of early childhood teachers are registered. However, some jurisdictions only register early childhood teachers employed in school settings.
According to a report on the Kidspot website, Francis Ranji Paramaguru, who co-owns a a family day care service, appeared before Cairns Magistrates Court last week on six charges including importing child pornography.
Ordan Velkoski, the husband of a family day carer, was recently convicted of criminal charges involving the abuse of children in care. A sentence of 5 years and 3 months was imposed by the Victorian Country Court. You can access the judgment here.
ACECQA have published a helpful blog on child protection and the responsibilities of childcare services. However, it should also be mentioned that the National Law (except in Western Australia) requires child abuse to be reported to the Regulatory Authority as provided in regulation 175(2) (see Australian Childcare Regulation, pages 11 and 77). In addition, approved providers are required to operate services in a way that ensures the safety, health and wellbeing of children, as provided in section 51(1) (ACR, page 33) and there is a requirement on approved providers, nominated supervisors and family day care educators to protect children from harm and hazard under section 167 (see ACR, pages 40-1).
The Victorian Commission for Children and Young People is currently conducting information sessions on the Reportable Conduct Scheme and Child Safe Standards. Further information is available from their website.
Further to my previous post regarding the County Court case involving Achai Monydhang Deng, Kuol Deng and Rosa Aluel Riak, the court judgment has been published and can be accessed here.
This is another case heard by the Victorian County Court involving child care benefit fraud by a Family Day Care (FDC) educator working in the Deng Group of FDC services. In this case, Clement Iheng pleaded guilty to a charge of dishonestly causing a loss to the
Commonwealth between 22 January 2015 and 29 November 2015. The court determined that a total of $134,688.28 was dishonestly obtained. The educator submitted false timesheets for care while they were engaged by Dorsey FDC, Hawii FDC, Hello Children Munhall FDC, Happi FDC, Points FDC, White Butterfly FDC and Pink Luel Meth FDC. The fraud involved making claims for caring for his own children and grandchildren,
claims for work not done, and exaggerating claims. The court sentenced Mr Iheng to a period of 18 months imprisonment and that he be released after serving six months of that term of imprisonment on a
recognisance release order and the sum of $2,000 to be of good
behaviour for a period of two years.
Women's Agenda published an article in response to the Centre for Independent Studies' report recommending staffing and qualification requirements under the National Quality
Framework be reviewed (see my previous blog post).
The Centre for Independent Studies (CIS) published, on 29 August, a research report Why Childcare Isn’t Affordable recommending that governments re-examine the
case for quality regulations; with a view to reducing the scope of the
staffing and qualification requirements under the National Quality
Framework. Interestingly, this report follows a Senate Select Committee's Interim Report on the Effect of Red Tape on Childcare (see my previous post) which made a similar recommendation and to which CIS made a submission.
Why
The Australian Federal Police and Commonwealth Director of Public Prosecutions issued a joint media release on a court case heard in the Victorian Country Court involving Rosa Riak, Kuol Deng, and Achai Deng in relation to Hello Children FDC (Family Day Care), Manhal FDC and Dorsy’s FDC. A number of media outlets, including ABC Online and Yahoo7 News, also reported on the case.
This case is similar to a previous case (see my previous post regarding CYU v Secretary, Department of Education) heard by the NSW Civil and Administrative Tribunal in which the applicant contested the use of assessment tests in assessing applications for provider approval. In CYU the Tribunal found that the National Law did not authorise the conduct of such tests but on public policy grounds allowed the evidence of the assessment to be used in the case.
In this case, the NSW Department of Education (the NSW regulator under the National Law) did not grant provider approval to the applicant (Tanyous) because it did not believe the applicant was a fit and proper person under section 12 because of the results of a written assessment undertaken by the applicant which indicated that he did not have the required knowledge and understanding of the
legislative requirements that he would be required to implement as an
approved provider. Accordingly, the applicant then applied for internal review and then review by the Tribunal of the decision of the Department. The applicant submitted to the Tribunal that the evidence of his assessment results should
not be admitted, because it was illegally or improperly obtained, relying on the decision in CYU. The Department argued that the decision in CYU was incorrectly decided. The Tribunal, however, confirmed that the Department does not have such power, and the evidence of the applicant’s assessment results was illegally or improperly obtained. The Tribunal then considered whether evidence of that assessment should be allowed in evidence anyway on public policy grounds. The Tribunal did acknowledge that knowledge of the National Law is relevant to
the assessment of fitness and propriety under section 12:
The Tribunal has considered the meaning of the expression “fit and proper” in many cases (see, for example, Brandusoiu v Commissioner of Police [2015] NSWCATAD 204 at [88]-[92]). For present purposes, it is sufficient to note that “fitness” has three components, one of which is knowledge: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955]
HCA 28; (1955) 93 CLR 127 at 156-157. Compliance with the National Law
is expressly made relevant to fitness and propriety (see s 13(1)(a)),
and knowledge of the National Law and the National Regulations
facilitates such compliance. Such knowledge is relevant to whether a
person is a fit and proper person to be involved in the provision of an
education and care service. (para.31)
In considering whether to admit evidence of the assessment, the Tribunal stated that:
In any event, the question for the Tribunal is whether
the applicant is a fit and proper person to be granted a provider
approval. The responses provided by the applicant in his written
assessment are probative of the issue of whether he has an adequate
knowledge and understanding of the legislative requirements that he
would be required to implement as an approved provider.
When
exercising my discretion as to admitting the evidence of the written
assessment, I take into account that exclusion of the evidence might
lead to a person with inadequate knowledge of the National Law obtaining a provider approval. I accept the respondent’s submission that the objectives of the National Law are promoted if persons in management have a knowledge and understanding of the National Law and National Regulations. These objectives include ensuring the safety and wellbeing of children (see National Law, s 3(2)(a)).
Factors supporting the exclusion of the evidence include that exclusion
may protect the administration of justice and that it would or might
discourage illegal or improper conduct by regulators (see Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70, Lander J at 565 [75] and Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288).
Having balanced these factors, I consider that the
public policy considerations which favour admission of the evidence
outweigh the public policy considerations against admitting it (cf CYU at [72]). I give particular weight to the consideration that the admission of the evidence tends to promote the objective of the National Law to ensure the safety and wellbeing of children. (paras.42-5).
Accordingly, I have decided to admit the evidence of the applicant’s assessment.
The Tribunal then assessed whether the applicant was a fit and proper person under section 12:
I am not satisfied that the applicant is a fit and
proper person to be involved in the provision of an education and care
service (National Law, s 12(2)(b)). This is because his written assessment indicates a lack of knowledge and understanding of the National Law and National Regulations
which makes him unfit for such involvement. He has not provided any
evidence to indicate that his knowledge or understanding has changed
since undergoing the assessment. To the contrary, in many instances, he
has defended his answers as being adequate.
In these circumstances, I have decided to confirm the Secretary’s decision to refuse to grant the applicant a provider approval. (paras.46-7)
