Chilldcare Funding
An article in The Daily Telegraph gave the results of a survey of parents conducted by Goodstart Early Learning.
In Tasmania funding of child and family centres is an issue according to a article in The Examiner.
Childcare Qualifications
An article in The Sydney Morning Herald recently looked at the issue of vocational training.
Protection of Children
A report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse called Oversight and Regulatory mechanisms aimed at protecting children from sexual abuse: understanding current evidence of efficacy has recently been published. It has been prepared by Professor Ben Mathews, Senior Research Fellow, Queensland University of Technology, as part of a general research program to support the Royal Commission's work and to inform its findings and recommendations. The report examined the current oversight and regulatory mechanisms to protect children from child abuse. One of the areas it examined was the regulatory system that apples to early childhood education and care (Part 2.8, page 105ff). Although positive about the current regulatory scheme in place (see page 111) it identified the potential to implement measures to enhance the protection of children (page 17). Interestingly, the report identified some key differences between jurisdictions in regard to dealing with child abuse (at page 111):
- "Only two jurisdictions (New South Wales and Western Australia) appear to require service providers ensure staff members are aware of their duty to report suspected child sexual abuse (Western Australia’s child protection law does not actually require reports, although it enables them).
- Only two jurisdictions (New South Wales (in part) and Queensland) appear to require service providers ensure staff are trained in child protection generally. Queensland’s legislative framework for training appears to be the most developed, at least nominally.
- In five jurisdictions, childcare employees are required by the legislation to report suspected child sexual abuse (Australian Capital Territory, New South Wales, Northern Territory, South Australia and Tasmania); the other three (Queensland, Victoria and Western Australia) do not, although they enable reports to be made."
Also, on 1 August 2017 a number of amendments to the
Victorian Working with Children Act 2005 will come into effect. These changes
implement recommendations from the Royal Commission's report: Working with
Children Checks. Further details on the changes are available from the WWCC website.
In addition, the NSW Office of the Children’s Guardian (OCG) has
launched a free online learning tool to help staff and volunteers in
all child-related organisations become child safe. More information can be accessed on their website. It has also published Principles for child-safe organisations for consultation.
Compliance
An article in Evidence Base recently called Using behavioural insights for citizen compliance and cooperation, by Peter John (University College London) and Jane Robb (University of Greenwich), provides a review of the literature in relation to approaches to achieving compliance in compulsory (tax) and non-complusory (energy use) regimes. It has some lessons for regulators on achieving compliance in other regulatory areas.
This is an interesting but complicated court case being heard before the Queensland Supreme Court. In this case Bright Horizons Australia Childcare Pty
Ltd (Bright Horizons) sought injunctions up until trial restraining Child Care Providers Pty Ltd (CCP) from interfering with
Bright Horizons’ possession of premises from which it runs childcare services in Ballarat and Wodonga, or interfering with the
operation of the childcare businesses. Interim injunctions were granted by the court on those terms in March 2017. This case extended the injunction until the matter goes to trial when the case will be heard in detail and a final judgment made by the court. The full judgment was delivered on 7 April 2017 and can be read here.
As I mentioned it is a very complicated case and you should read the full judgment to obtain an understanding of all of the issues involved. However, it basically involves a dispute between the two parties about which entity has rights to the premises and to operate the services. CCP currently has the approvals to operate the Ballarat and Wodonga services as the approved provider under the National Law. CCP argue, amongst a number of things, that it has a written lease with the landlord (which is a third party) and that Bright Horizons is only a licensee and they have revoked that licence for it to operate from the premises (which they were required to do to comply with the lease). Bright Horizons however contend that they have agreements with CCP to manage and purchase the services as well as being the equitable assignee of the lease. The outcome of the case is particularly important, in the National Law context, as service approvals are only valid for the specific premises stated on the approvals (see section 52(b))) and regulation 32 provides that it is a condition of service approval that the service continues to be entitled to occupy the education and care service premises.
A side issue that is revealed in the judgment is that the services are reasonably profitable; in the financial year ending 2015, the Wodonga service made a profit of around $200,000 and the Ballarat service made a profit of around $475,000.
Impact of Legislative Changes on Childcare
In Tasmania the government is proposing to lower the age that children can start school. The The Examiner recently carried a report on the impact this may have on the cost of childcare.
While in NSW plans by the government to streamline planning processes for new childcare services has resulted in concerns being expressed by the industry body, the Australian Childcare Alliance, of an oversupply of childcare places in some areas, according to an ABC report.
Children and Medication
According to a report in The Daily Telegraph some childcare services are demanding that children with behavioural problems be medicated before they will enrol them. Apart from the issues raised in the article, if this is the case, it raises the issue of whether these services are in fact complying with the condition on their service approval requiring them to operate in a way that ensures the safety, health and wellbeing of the children (s.51(1)(a) of the National Law).
The NSW regulator under the National Law (Department of Education) has been active recently in cancelling the service approvals of a number of services, under s.77(d) of the Education and Care Services National Law, who have failed to comply with the condition on the approval requiring them to commence ongoing operation within six months after the approval has been granted (s.51(3)). As a result a number of these have resulted in the approved provider seeking a review of the decision by the NSW Civil and Administrative Tribunal. All of these reviews involve Family Day Care services who appeared to be having problems gaining approval from the Commonwealth Department of Education and Training to become registered for Child Care Benefit (CCB).
Early this year two cases were heard and decisions handed down: CTG
v. NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60; and CVT v. NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 74. On 5 April 2017 the Tribunal handed down two further findings in CVM v NSW Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 108, and CVN v NSW Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 109.
There are some interesting points that arise from these two last cases:
- The Tribunal supported the decision of the Regulatory Authority to cancel the service approval and this at least partly was based on consideration of the objectives of, and principles underlying, the National Law and the credibility and/or competence of the approved provider
- The Tribunal made it clear that the delays in CCB approval did not negate the approved provider's responsibilities to comply with the National Law, in this case the condition on service approval under s.51(3)).
- In both cases the Regulatory Authority conducted unscheduled visits of the service's principal office before finalising the cancellation of service approval and obtained evidence that indicated that the service was not operating even though the approved provider claimed they were.
It should be noted that it appears to be the practice of the Tribunal in these cases to protect the identity of the approved providers and services involved, hence the names of the cases.
Some recent items from the media relating to childcare regulation...
Fraud
Apparently an ongoing issue in childcare. The national regulator, ACECQA, has raised the issue of fraudulent qualifications with the Federal Government according to a story in the Daily Telegraph.
Also an update on the trial of a family day care operator for fraud was published in The Border Mail recently.
Profitability of Childcare
It appears from a story in the The Sydney Morning Herald, concerning the upcoming sale of six childcare centres, there is profitability in the sector for some.
Some interesting news items in the world of childcare regulation:
Family Day Care Fraud
On the ABC's 7.30 Report yesterday there was a story on the fraudulent activities of some NSW family day care services. ABC Online published a summary of the program with some of the documents obtained by the ABC through a freedom of information request.
Wristbands for Children with Medical Conditions
The Daily Telegraph recently published a story about the use of coloured wristbands to identify children with asthma, allergies or anaphylaxis in NSW childcare centres. The idea was the initiative of a Sydney company, CleverDux.
Further to my earlier blog, the Victorian Parliament's Legislative Council passed the bill on 23 March and then it received royal assent by the Governor on 27 March 2017. That means it has become Victorian law. You can find the legislation (which is now called the Education and Care Services National Law Amendment Act 2017) at http://www.legislation.vic.gov.au/ under "Victorian Statute Book", then click on 2017 and the name of the Act. Note that this legislation is an amending Act, that is, it amends the Education and Care Services National Law Act 2010 (Vic) (see s.1 of the Act).
However, the provisions in the Act do not come into effect until it is proclaimed by the Governor in Council and the date(s) of effect published in the Government Gazette (see s.2 of the Act). Presumably this will be 1 October 2017, for most provisions, as previously advised by ACECQA. And of course, as I mentioned in my previous blog, in order for the legislation to come into effect in other jurisdictions they will have to go through their own processes to give effect to the amendments.
A few publications have recently been published which may be of some interest...
Childcare Regulation
An interesting article published on The Mandarin website
recently by Sarah Pilcher and Dr Stacey Fox (policy fellows at the Mitchell
Institute at Victoria University) concerned the importance of appropriate
regulation of the childcare sector, particularly in light of the experience of VET regulation.
New fact sheets have been published by ACECQA on its website in relation to family day care. They are entitled:
- Family day care educator compliance responsibilities under the National Law and National Regulations
- Approved provider compliance responsibilities under the National Law and National Regulations
- Nominated supervisor compliance responsibilities under the National Law and National Regulations
- Assessments of family day care residences and venues
- Record keeping in family day care services
Children and the Law
A new book is by Lisa Young, Marry Anne Kenny & Geoffrey Monahan (eds.), Children and the Law, 2nd edition, LexisNexis Butterworths, Chatswood 2017. This is a comprehensive book covering a wide range of topics, including children's rights, child maltreatment, criminal responsibility of children, child protection, family law, adoption, civil liability, and child witnesses. Of particular interest is the chapter entitled "Education of Children - Preschool to Secondary Education" which gives an overview of the law that applies to childcare and schools. Check the book comparison site Booko for availability and price.
Regulation
Another new book is Peter Drahos (ed.), Regulatory Theory, Foundations and Applications, ANU Press, Canberra 2017. If you have a general interest in regulatory theory then this is an excellent book because it includes contributions from Australia's and the world's leading regulatory academics and it's free (or at least the electronic download is). Some of the topics covered include: foundations of regulation, theories of regulation, compliance, rule of law, risk, accountability, globalisation and regulatory
capitalism. It also covers some specific areas of regulation including the environment, crime, health, human rights, investment,
migration and tax - but unfortunately not childcare!. Further information is available from ANU Press.
A recent interesting paper is by Neil Gunningham called Compliance, Enforcement and Regulatory Excellence. This is a research paper put out by the School of Regulation and Global Governance at the Australian National University (who published the above book too). It discusses the most effective and efficient intervention strategies used for compliance and enforcement. The paper was also published in C. Coglianese (ed.), Achieving Regulatory Excellence, Brookings Institution Press, 2016.
Note: I have changed the name of the blog to make it easier to remember, the link is still the same!
You are probably aware that changes to the National Law and Regulations are proposed to come into effect on 1 October 2017 (in Western Australia it will be 1 October 2018) as ACECQA has previously issued some information regarding the changes on its website.
However, the actual amending legislation (bill) has been introduced to the Victorian Parliament and when it is passed the National Law changes will be adopted or implemented by the other States or Territories. This will be by tabling the amendments in the jurisdiction's parliament (ACT, Queensland, Tasmania) amending by regulation (Northern Territory, South Australia), amending the legislation (WA), or automatically (NSW).
The Education and Care Services National Law Amendment Bill 2017 was passed by the Legislative Assembly (lower house) on 9 March. The bill is currently in the Legislative Council (upper house). You can see the bill plus explanatory memorandum and the Minister's 2nd reading speech on the Victorian Legislation and Parliamentary Documents website under "Parliamentary Documents" then look under "Bills" for the title to the bill.
In another case of inadequate supervision in Western Australia, on 15 March 2017, the State Administrative Tribunal
(SAT) made an order which gave effect to the terms of settlement holding that on 12 October 2016 CYC contravened s.165(1), National Law by failing to ensure that all
children being educated and cared for by the service were adequately
supervised at all times the children were in the care of that service and imposed a total penalty of $13,000 for this and for breaches of s.174(2) (failure to notify of complaint) and r.136(1) (first aid qualifications) plus $1000 for the Department's legal costs.
The full decision and statement of the agreed facts can be found on the SAT website. However, in brief, the case concerned CYC as the operator (approved provider) of CYC Camp Cooloongup. In October 2016 the service's bus collected a number of children from a primary school and took them to the service premises. However, one of the children fell asleep and remained on the bus. The child, who was 4 years old, made their own way off the bus some 25 minutes later and went into the service's auditorium in a distressed state. The service failed to do a headcount or check the bus. However, a headcount was taken later at the service, about 20 minutes after the bus arrived, after which the service initiated a search for the child. As mentioned other serious breaches were also identified, see the SAT order and attached agreed facts for full details.
By way of explanation, in WA rather than prosecute in a court (as is the case with other States and Territories) certain breaches of the National Law may be heard by the State Administrative Tribunal as a disciplinary action under s.188B of the Schedule to the Education and Care Services National Law (WA) Act 2012.
On 23 February 2017 the West Australian State Administrative Tribunal (SAT) made an order which gave effect to the terms of settlement holding that on 30 September 2016 the YMCA contravened s.165(1), National Law by failing to ensure that all
children being educated and cared for by the service were adequately
supervised at all times the children were in the care of that service and imposed a penalty of $15,000.
The full decision and statement of the agreed facts can be found on the SAT website. However, in brief, the case concerned YMCA as the operator (approved provider) of YMCA St John of God Vacation Care. In September 2016 the service conducted an excursion to a wildlife park. A bus was chartered for the excursion. At the end of the excursion the bus returned to the service and dropped the children off and then left to pick up some other children, from another service, from the zoo. At that time a child from the (previous) service was found asleep on the bus (about 15 minutes after the bus had departed the service). The service failed to do a headcount, as per YMCA policy, or check the bus.
By way of explanation, in WA rather than prosecute in a court (as is the case with other States and Territories) certain breaches of the National Law may be heard by the State Administrative Tribunal as a disciplinary action under s.188B of the Schedule to the Education and Care Services National Law (WA) Act 2012.
