Prosecution of WA Family Day Care Educator for Breaching Section 295(1), National Law

According to information published on the Western Australian Regulatory Authority's (Department of Communities') website, Lily Achol Aguek was charged with contravening section 295(1), National Law, by giving an authorised officer documents that the educator knew were false or misleading in a material particular. The educator falsely recorded the attendances of children who did not attend her service at the times and dates recorded. The Midland Magistrates Court on 6 February ordered the educator pay a fine of $6000 for breach of section 295(1) and pay costs of $1,756.20.

Child Left on Yass Childcare Centre Bus

The Sydney Morning Herald reported the case of a two year old allegedly left on a bus by Yass Little Learners childcare centre. The report is based on that appearing in the Yass Tribune.

National Principles for Child Safe Organisations

According to the Australian Human Rights Commission (AHRC), the Council of Australian Governments (COAG) has endorsed the National Principles for Child Safe Organisations. To support implementation of the principles the AHRC has developed tools and resources for organisations.

Child Left on Bus by Darwin Childcare Centre

The Kidspot website have reported on an alleged incident of a child having been left on a bus by a Darwin childcare centre.

Costs of Regulation

Australian Childcare Alliance NSW has called for an inquiry on the impact of regulation, and other factors, on the costs of childcare, according to a report in the St George and Suthertherland Shire Leader.

Risks of High-rise Childcare

The issue of the risks of high rise childcare services has again been raised by the media in reports on 2GB, and 7 News Sydney.

According to an article published late last year on the ABCB website, the Australian Building Codes Board is currently looking at the issue of "...fire safety issues associated with vulnerable children in high rise buildings." 

It should be noted that all education and care services are required to have policies and procedures in relation to emergency and evacuation under the National Regulations (regulation 168(2)(e)), which includes instructions for what must be done in an emergency and an emergency and evacuation floor plan (regulation 97(1). There is also a requirement for risk assessments to be undertaken in preparing the procedures (regulation 97(2), rehearsing of those procedures (regulation 97(3)), and display of the emergency and evacuation floor plan and instructions (regulation 97(4)). 

Report on Government Services 2019 - Early Childhood Education & Care

Part B of the Report on Government Services 2019 (ROGS report) was published today. Chapter 3 deals with early childhood education and care. The ROGS report is an annual report produced by the Productivity Commission comparing the performance of State and Territory governments in the delivery of a wide range of services.

In relation to childcare, some interesting information is revealed in the report in relation to quality and compliance: 

• The jurisdictions with the highest proportion of NQF approved services, with a quality rating, whose overall rating is ‘Meeting NQS’ or above (as 30 June 2018) were: Victoria (83.7%, 83.3% last year), Queensland (81.5%, 77.9% last year), Tasmania (79.5%, 77.5% last year), and South Australia (73.5%, 69.4 last year. . The lowest were NT (61.9%, 59.3% last year) and WA (67.7%, 61.5% last year).

• The jurisdictions with the highest number of confirmed breaches of the NQF per 100 services (in 2017-18) were: Northern Territory (187.6), Victoria (153.9), and NSW (144.9). The previous year the highest were: Queensland (142.7, 109.9 this year), Victoria (142.3) and WA (92.9, 109 this year)). The lowest were South Australia (24.4) and ACT (56.1). The lowest last year were Tasmania (3.9) and NT (8.5), The report indicates these figures are not comparable between jurisdictions due to differences in administrative and reporting procedures. Nationally, there were 125.7  confirmed breaches per 100 services (up from last year's 97.9), with the highest rates being for family day care (295.9 breaches per 100 services, down from 306.7 last year.) and long day care (155.3 breaches per 100 services, up from 115.2 last year). Quite interestingly, the report continues to show that the proportion of breaches resulting in action being taken by Regulatory Authorities varies wildly across jurisdictions, probably because what is regarded as "action" taken varies by jurisdiction. For instance, in Victoria action was taken in 25.5% of cases. whereas in SA 97.7% of breaches were addressed.
• The jurisdictions with the highest number of serious incidents (as defined in regulation 12 of the National Regulations) that have occurred per 100 services (in 2017-18) were: ACT (131.8, 148.9 last year), WA (114.7, 94.7 last year), Queensland (108.3, 120.4 last year), and NSW (99.8, 99 last year). The lowest were NT (78.7, 66.8 last year) and Victoria (84.9, 86.3 last year). Nationally, there were 97.9 serious incidents per 100 NQF services with a total of 15,435 serious incidents having occurred. This is down from last year when the figures were 99.3 serious incidents per 100 NQF service, but with slightly less serious incidents at 15,432.

The media have also covered the report, including: 9News; The Sydney Morning Herald; and SBS.

Imposition of Licensing Conditions: Simiana v Harness Racing New South Wales

Although this is not a decision in relation to the Education and Care Services National Law, it does provide some guidance in relation to Regulatory Authorities imposing discretionary conditions on provider or service approvals (i.e. under sections 19(1), 23(2), 51(5)(b) or 55(2)). 

In this case, heard by the NSW Supreme Court, Mr Simiana) sought judicial review of a decision made by Harness Racing New South Wales (HRNSW) to impose conditions on his trainer’s and driver’s licence. He challenged the decision on a number of grounds including lack of procedural fairness and unreasonableness of the decision (based on administrative law principles). The Court found in favour of Mr Simiana holding that:

• procedural fairness required that HRNSW seek submissions or comment from Mr Simiana before imposing conditions. However, there was no opportunity given to make submissions concerning the practicality of compliance with any conditions, (let alone the ones that were proposed) or his capacity to comply with them. (paras. 61-75).
• the content of some of the conditions were unreasonable, in that they were “capricious”, “irrational”, and “lacking in evident or intelligible justification”. (para.112).

Fraudulent Claim of Social Welfare Benefits: Warden v The Queen

This case involved an appeal to the Court of Appeal (Supreme Court of Victoria) by Lyn Warden against the sentence imposed on her by the Country Court for obtaining a financial advantage by deception from a Commonwealth entity, contrary to section 134.2(1), Criminal Code Act 1995 (Cth) (see my previous post on this case). 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. 

Before the Court of Appeal Ms Warden sought leave to appeal against her sentence on the ground that it was manifestly excessive because insufficient weight was given by the County Court judge to:

• her age and lack of prior criminal history;
• the circumstances in which the offending occurred;  
• the application of the Verdins principles; 
• her remorse and low risk of re-offending; and 
• her prospects of rehabilitation.

 

The Court refused her application for leave to appeal against the sentence imposed:

In my opinion, it is not reasonably arguable that the sentence is manifestly excessive.The matters upon which the Crown has relied in combination demonstrate that the sentence is well within the range of sentencing options that was open to the judge.  In particular, having regard to the prolonged period over which the offending occurred and the large amount of money involved, the offending can only be regarded as serious. There are many members of the community who, like the applicant, are motivated by desire to financially provide for their families.  However, unlike the applicant, the vast majority do so honestly rather than by resorting to calculated and prolonged courses of fraudulent conduct. 
I do not accept the applicant’s submission that the judge gave insufficient weight to the mitigating factors upon which she relied.  When the serious nature of the offending is considered in the light of the maximum penalty of 10 years’ imprisonment, one would ordinarily expect a sentence greater than 3 years’ imprisonment and the custodial component of the sentence to exceed 14 months.  The fact that the judge imposed the sentence that she did can only be explained on the basis that she gave full weight to those mitigating factors.
While so-called comparable cases are not precedents and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case...the sentences imposed in the cases of Leighton, Barton and Pham, upon which the Crown has relied, indicate that the sentence imposed by the judge is consistent with current sentencing practices and is not manifestly excessive. (paras. 38-41).

Outdoor Space Requirements (Regulation 108): Tahany Pty Ltd v Woollahra Municipal Council

I rarely cover planning decisions in this blog as generally they don't directly relate to the interpretation of the National Law or Regulations. However, in this case, before the NSW Land and Environment Court, the Court made comments in relation to the policy of the NSW Regulatory Authority (Department of Education).

I won't go into the details of the case, however, Tahany sought development consent to change the use of an existing dwelling to a child care centre for 30 children, as well as alterations and additions to the existing building to accommodate the proposed use. The application was refused by the Council and so it appealed to the Court. It should be mentioned that in NSW part of planning law is the Child Care Planning Guideline (CCPG) which includes guidelines on the application of the National Regulations to development (or planning) applications.

A number of issues were canvassed in the case including simulated outdoor space (paras.77-87) and the sufficiency of outdoor space. In regard to the latter issue, the Court commented on the Regulatory Authority's interpretation of the National Regulations:

The fourth issue, which was also raised in the Second Further Amended Statement of Facts and Contentions, is that the total of the outdoor play areas is insufficient as all the areas are not available at all times. This issue is based on two concerns. First, Dr Abbey expressed concern that this meant that the children are not getting sufficient play in the outdoor environment, or sufficient active play. Second, Dr Abbey referred to a directive from the regulatory authority that, for the purpose of determining service approvals, officers are only to take into account outdoor space available to the children at all times during the services’ operating hours to calculate the amount of outdoor space and determine whether 7m2 is provided for each child.

With respect to the first concern, Tahany notes that this was not raised in any contention by the Council but submits that on the indicative program in the Plan of Management, there is sufficient active play. It relies on the evidence of Ms Campbell that, on the calculation that the indicative program allows 1hr 36min of active play, this is sufficient active play to be provided at a child care centre. Further, her evidence is that she could prepare a program that provides more opportunities for active play and outdoor play, including for up to 3 hours of active play for each child, even with the restrictions on some of the areas.

I accept this submission and the evidence of Ms Campbell. The restrictions on the hours of use of particular outdoor play areas are not overly constraining and as such they allow adequate time for outdoor play. Further, I accept the evidence of Ms Campbell that additional active play could be accommodated in a timetable or program if required.

With respect to the directive from the regulatory authority, Tahany submits that there is no legislative basis for that directive. That is, there is nothing in the ECS Regulations, the controls or the CCPG that says that the outdoor space requirement in Regulation 108 must be available at all times that the centre is operating. Tahany also relies on the decision of Kamrani Holdings Pty Ltd & Anor v Willoughby City Council [2016] NSWLEC 1146, in which there were restrictions placed on the hours of use of outdoor play areas, and those restrictions did not result in an issue concerning the sufficiency of the area provided for outdoor play.

I accept the submissions made on behalf of Tahany. There is nothing in the ECS Regulations, the controls or the CCPG which prevents outdoor play area that is only utilised for part of the day from being included in the calculation of the total area. Secondly, the indicative program demonstrates that the restrictions can be accommodated within a daily program whilst also allowing the children to have adequate outdoor and active play.

As a result, based on the evidence of Ms Campbell, I consider that the outdoor play areas are sufficient to accommodate the number of children proposed in the development application. The division of the total outdoor space into four different play areas, including the SOPA, allows different experiences to be provided in each of the play areas. The indicative programs demonstrate that it is intended to rotate children through those areas so that each child has the opportunity to have those different experiences. (paras.95-100).

Review of Victorian Child Safe Standards

The Department of Health and Human Services is currently undertaking a review of the standards "to ensure that they are as strong as possible". It has published an issues paper and is seeking submissions on the standards by 22 February 2018. 

The standards are implemented by the Child Wellbeing and Safety Act 2005 and Child Wellbeing and Safety Regulations 2017 (see also the Standards published in the Victorian Government Gazette). They apply to all Victorian organisations that provide services or facilities for children or employ children or young people (including childcare services). The standards are a compulsory framework that support organisations to be safer for children.

Stay of Cancellation of Child Care Benefit Approval: Happy 'N' Friendly Day Care Pty Ltd and Secretary, Department of Education and Training

This is another case heard by the Australian Administrative Appeals Tribunal, which is very similar to the one involving Galaxy Day Care Pty Ltd (see previous blog post).

This case involved an application for the stay of a decision made by the Department of Education and Training (the Respondent) to cancel the registration of Happy ‘N’ Family Day Care Pty Ltd (the Applicant) as a provider of day care services under the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth). On 25 September 2018 the Department cancelled the Happy "N" Friendly's approval. On 9 October 2018 the Applicant sought an internal review of the cancellation decision. The Applicant also appealed to the Federal Court for a stay of that decision on 19 October 2018. The Federal Court granted a stay until 16 November 2018 in order to provide time for the internal review to be conducted.  On 15 November 2018 the Respondent notified the Applicant that its internal review had resulted in an affirmation of the original cancellation decision. The Applicant returned to the Federal Court on 16 November 2018 requesting a further stay until an appeal against the decision could be heard by this Tribunal and, on the 28 November 2018 applied to this Tribunal for such a review. The Federal Court, by consent of the parties, granted a stay effective to the date on which the Tribunal “determines the Applicant’s application for a stay of the Decision.”  The basis for the Department's cancellation are outlined by the Tribunal:

The basis of the cancellation decision lies in the Respondent having found the Applicant to be seriously non-compliant, and indeed misleading, in its reporting of its activities under section 219N of the Act; making false claims for payment of child care benefits, including:

·    211 instances where payments were made but the relevant educators were overseas at the time

·    567 instances where payment were made but the child in question was overseas

·    718 instances of “child swapping” where payments were made to non-eligible individuals

·    2350 occasions where payments were made in respects of children who were either in school or else over the age of 14 years when no such payments should have been claimed.
These identified breaches occurred in the period from 1 January 2016 to 18 April 2018.
Moreover there appear to have been breaches of statutory requirements related to the passing-on to parents, or remitting to the Commonwealth, monies related to child care fee reductions.
In addition to these instances, the Respondent notes (and categorises) some 4,313 instances which it describes as “further apparent contraventions of the family assistance. (paras.24-7).

The Tribunal decided not to grant the stay on similar grounds to the Galaxy case.