Stay of Cancellation of Provider Approval: Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education

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.

Cancellation of NSW Provider Approvals

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.

 

Charges against Perth Childcare Worker

Further to a previous post, ABC News Online has published an updated report in relation to charges laid against a Perth childcare worker.

Regulatory Technology

The Productivity Commission have published an interesting information paper that may be relevant to compliance in the childcare sector. Regulatory technology (‘regtech’) is the use of technology to better achieve regulatory objectives. For instance, regtech has been used by businesses to assess their regulatory obligations and fulfil regulatory requirements faster and in a manner that is more integrated with their other business processes. It can also be used by regulators to support a risk-based, outcome-focused, approach to compliance.

Inadequate Supervision: Chief Executive Officer, Department of Communities and Young Mens Christian Association of Western Australia Inc

This case was recently adjudicated by the West Australian State Administrative Tribunal. In this matter 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 contravention of section 165, National Law, by the approved provider (YMCA of WA Inc)) by failing to ensure that all children being educated and cared for by its service were adequately supervised at all times that the children were in the care of the service. The contravention related to the YMCA Carnaby Rise OSHC service. The facts of the case are set out in the statement of relevant facts (Annexure A to case summary). In summary, a 5 year old child was seen by a grandparent collecting her own children in the school car park towards the exit alerted the service. Educators searched for the child and police were contacted. The child was located in a car with two members of the public some 700m from the service.

A penalty of $17,000 was imposed on the approved provider with a further $2,000 to be paid to the Department for legal costs.

In Western Australia, uniquely, such matters as this are generally heard as disciplinary matters under the National Law (WA), see the article by David Oliver in The Sector that explains the process in detail.

A Department of Communities media release was also published on this case.

 

Civil Action: Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird

This is a significant case which illustrates the application of civil law to childcare services and staff. The case was heard by the NSW Supreme Court and several actions were brought in tort and contract law.

Little Pigeon Pty Ltd owned the Footprints childcare centre which B and D attended. They were removed after Mr Bird, who worked at the centre and was a 1% shareholder of the company, was arrested and charged with two offences involving another child who had made disclosures about him. Ms Clancy, Mr Bird’s daughter, owned 99% of Little Pigeon’s shares. Little Pigeon Pty Ltd was also the licensee of the centre. B and D and other children later also made disclosures about Mr Bird. While police investigations resulted in further criminal charges being laid against him in relation to B and another child, none were laid in relation to D. The DPP finally did not pursue any of the charges to trial. In this case the plaintiffs sought damages for Mr Bird’s alleged assaults of B and D and that that Little Pigeon and Ms Clancy were vicariously liable for his acts. In addition, it was claimed that they were negligent. A and C, who are B and D’s mothers also made claims for breach of contract, given Little Pigeon’s alleged failures to provide quality childcare; retain adequately trained staff to work at the centre; follow relevant and necessary procedures required to be followed by such centres; and to ensure that the children were safe and appropriately cared for, while under its control and supervision. 

After comprehensively assessing the evidence, the Court concluded that the plaintiffs established, on the balance of probabilities, that Mr Bird did assault B and D. The Court considered the responsibility of the service under the regulatory regime in place and the requirement for a child protection policy which the Court found was not in effective operation. The Court concluded "If the policy had been in effect, as the licence and regulations required, it would simply not have been possible for Mr Bird to have repeatedly acted in the various inappropriate ways that he admitted, without at least some of them being notified to DOCS. Had that occurred Mr Bird’s assaults may well have been prevented." (paras. 234-5). The Court also found that there was no supervision of Mr Bird who was said to be a volunteer. The Court then considered whether the Little Pigeons was liable (vicariously liable) for the acts of Mr Bird. The Court concluded that it was because (para. 450):

The actual roles which Little Pigeon assigned Mr Bird, which placed him in a position of considerable power and trust, which he abused;

That those roles gave Mr Bird the opportunity to have the close contact with children which he, Ms Clancy and other witnesses described;

The authority Mr Bird was given by effectively being left unsupervised when he had such contact, which he also abused;

This lack of supervision permitting him to not only achieve intimacy with his young victims, but to control them while committing the wrongful acts he admitted and his victims disclosed; and

It was Mr Bird’s performance of the roles he was given, which created the occasion for his wrong.

In relation to the action in negligence, the Court found that B and D were owed a duty of care and that duty had been breached. As stated by the Court, "The duty is not to ensure against injury, but to take reasonable care to prevent it, that requiring the taking of reasonable steps which should reasonably have been foreseen." (para. 459). The court also found that the defendants also owed a duty of care, which had been breached, to A and C, for their psychiatric injuries. In relation to the breach of contract claim, the Court held: "Given the conclusions which I have reached on the negligence claims and the terms which the defendants accepted, it follows that A and C have also established their contractual claims, but no additional damages flow." (para. 526).

Having established their claims, the Court awarded damages to the plaintiffs as follows: A ($900,000 approximately ); B ($495,000 approximately); C ($500,000 approximately); and D ($455,000 approximately). In addition, court costs would be assessed by the Court on a future date.

Inadequate Supervision: Chief Executive Officer, Department of Communities and Gilmi Enterprises Pty Ltd

This case was recently adjudicated by the West Australian State Administrative Tribunal. In this matter 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 contravention of section 165, National Law, by the approved provider (Gilmi Enterprises Pty Ltd) by failing to ensure that all children being educated and cared for by its service were adequately supervised at all times that the children were in the care of the service. The facts of the case are set out in the statement of relevant facts (Annexure A to case summary). In summary, a 7 year old child was not collected from the bus stop by a staff member from the service (Nature's Atelier Vasse after school care) as required. Instead a parent who was at the bus stop to collect his children noticed the child and took her to the service.

A penalty of $12,500 was imposed on the approved provider with a further $3,500 to be paid to the Department for legal costs.

In Western Australia, uniquely, such matters as this are generally heard as disciplinary matters under the National Law (WA), see the article by David Oliver in The Sector that explains the process in detail.

Federal Government Proposals to Reduce Red Tape in the Childcare Sector

The Minister for Education has issued a media release in relation to proposals to reduce red tape.

The Sector website also reported on these proposals.

Necklaces - a Danger to Sleeping Children

The South Australian Education Standards Board (the SA regulator under the  National Law) has published advice about the dangers of necklaces when a child is sleeping

In addition they have published advice about incident and complaint notifications under the National Law.