CHILDREN (EDUCATION AND CARE SERVICES NATIONAL LAW APPLICATION) BILL 2010

New South Wales Bills

[Index] [Search] [Download] [Related Items] [Help]

This is a Bill, not an Act. For current law, see the Acts databases.

CHILDREN (EDUCATION AND CARE SERVICES NATIONAL LAW APPLICATION) BILL 2010

New South Wales Children (Education and Care Services National Law Application) Bill 2010 Explanatory note This explanatory note relates to this Bill as introduced into Parliament. Overview of Bill The object of this Bill is to adopt the Education and Care Services National Law (the National Law) hosted by the Victorian Parliament and set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria. The National Law gives effect to the National Partnership Agreement on the National Quality Agenda for Early Childhood Education and Care endorsed by the Council of Australian Governments in December 2009. This included a commitment to establish a jointly governed, uniform National Quality Framework and facilitates the introduction, through the national regulations made under the National Law, of a new National Quality Standard. The National Law: (a) provides a national approach to regulation, assessment and quality improvement for early childhood education and care and outside school hours care, and (b) replaces existing separate licensing and quality assurance processes for pre-school, family day care and outside school hours care, and (c) establishes a public rating system for education and care services. b2010-151-10.d09 Children (Education and Care Services National Law Application) Bill 2010 Explanatory note Before the National Law commences it will be necessary for New South Wales, and each of the other States and Territories participating in the national licensing scheme, to enact legislation providing for consequential amendments of other Acts consequent on the adoption of the National Law. Outline of provisions Part 1 Preliminary Clause 1 sets out the name (also called the short title) of the proposed Act. Clause 2 provides for the commencement of the proposed Act on a day or days to be appointed by proclamation. Clause 3 defines certain words and expressions used in the proposed Act. Specifically, clause 3 (1) provides that the National Law set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria, as applied in New South Wales, is to be known as the Children (Education and Care Services) National Law (NSW). Clause 3 (2) provides that if a term is used in the proposed Act and in the National

aw, the term has the same meaning in the proposed Act as it has in the National

aw. Part 2 Adoption of National Law Clause 4 provides that the National Law, as in force from time to time, applies as a law of New South Wales (clause 4 (a)). Each jurisdiction that adopts the National Law will have an equivalent provision in its adopting Act so that the National Law will be the law of each jurisdiction and is not only the law of Victoria. Clause 4 (b) provides that the National Law, as applying in New South Wales, may be referred to by the name Children (Education and Care Services) National Law (NSW). Clause 4 (c) provides that the National Law, as applying in New South Wales, is part of the proposed Act. This is to ensure that the text of the National Law has effect for all purposes in New South Wales as an ordinary Act of Parliament. The effect of the proposed provision is that a reference in legislation to "an Act" or "any other Act" will include the National Law as applying in New South Wales. Clause 5 provides that a number of Acts that generally apply to New South Wales legislation do not apply to the Children (Education and Care Services) National Law (NSW) or to instruments, including regulations, made under that Law. In particular, Acts dealing with the interpretation of legislation, freedom of information and privacy do not apply. Instead, provisions have been included in the National Law to deal with each of these matters, ensuring that the same law applies in relation to each jurisdiction that adopts the National Law. Acts dealing with financial matters, the Explanatory note page 2 Children (Education and Care Services National Law Application) Bill 2010 Explanatory note role of the Ombudsman and the employment of persons in the public sector will also not apply to the Children (Education and Care Services) National Law (NSW) or instruments made under that Law except to the extent that the Law and those instruments apply to the Regulatory Authority and the employees, decisions, actions and records of the Regulatory Authority. Clause 6 clarifies that the State Records Act 1998 applies to the Regulatory Authority for this jurisdiction and its records. Clause 7 provides for definitions of generic terms used in the Children (Education and Care Services) National Law (NSW), including the terms child protection law, superior court, de facto relationship and registered teacher. Clause 8 provides for the declaration of the District Court as a relevant tribunal or court for the purposes of section 181 of the Children (Education and Care Services) National Law (NSW) and the declaration of the Administrative Decisions Tribunal as a relevant tribunal or court for the purposes of Part 8 of the Law. Clause 9 provides that the Director-General of the Department of Human Services is the Regulatory Authority for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW). Clause 10 provides: (a) that certain legislation of this jurisdiction (in particular, Chapters 12 and 12A of the Children and Young Persons (Care and Protection) Act 1998) is a children's services law for the purposes of the Children (Education and Care Services) National Law (NSW), and (b) that the Director-General of the Department of Human Services is the children's services regulator for the purposes of the Children (Education and Care Services) National Law (NSW). Clause 11 provides that the Education Act 1990, the Institute of Teachers Act 2004 and the Teaching Service Act 1980 are all education laws for the purposes of the Children (Education and Care Services) National Law (NSW). Clause 12 provides that certain legislation of this jurisdiction (in particular, Chapters 12 and 12A of the Children and Young Persons (Care and Protection) Act 1998) is a former education and care services law for the purposes of the Children (Education and Care Services) National Law (NSW). Clause 13 provides that the Fines Act 1996 and the regulations made under that Act are an infringements law for the purposes of the Children (Education and Care Services) National Law (NSW). Clause 14 provides that the Public Sector Employment and Management Act 2002 and the regulations made under that Act are a public sector law for the purposes of the Children (Education and Care Services) National Law (NSW). Clause 15 provides that the Commission for Children and Young People Act 1998 and the regulations made under that Act are a working with children law for the purposes of the Children (Education and Care Services) National Law (NSW). Explanatory note page 3 Children (Education and Care Services National Law Application) Bill 2010 Explanatory note Clause 16 provides that a penalty specified at the end of a provision of the National

aw indicates that a contravention of the provision is punishable by a penalty of not more than the specified penalty. Clause 17 provides for the definition of certain terms used in section 305 of the National Law as they apply in New South Wales. The terms are used in transitional provisions included in the National Law. Part 3 Miscellaneous Clause 18 provides that an employee of the Australian Children's Education and Care Quality Authority is not a State public sector employee for the purposes of the Industrial Relations (Commonwealth Powers) Act 2009. Clause 19 is the general regulation-making power. Clause 20 provides that the regulations may contain provisions of a savings or transitional nature consequent on the enactment of the proposed Act. Clause 21 provides for the proposed Act to be reviewed as soon as possible after the period of 5 years from the date of assent to the Act. Note on Education and Care Services National Law A copy of the National Law is set out in the Note to the proposed Act. The explanatory memorandum for the National Law, as set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria, is available at www.legislation.vic.gov.au. Explanatory note page 4 First print New South Wales Children (Education and Care Services National Law Application) Bill 2010 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Definitions 2 Part 2 Adoption of National Law 4 Adoption of Education and Care Services National Law 3 5 Exclusion of legislation of this jurisdiction 3 6 Application of State Records Act 1998 3 7 Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction 4 8 Relevant tribunal or court 4 9 Regulatory Authority 5 10 Children's services law 5 11 Education law 5 b2010-151-10.d09 Children (Education and Care Services National Law Application) Bill 2010 Contents Page 12 Former education and care services law 5 13 Infringements law 6 14 Public sector law 6 15 Working with children law 6 16 Penalty at end of provision 6 17 Transitional 7 Part 3 Miscellaneous 18 Application of Industrial Relations (Commonwealth Powers) Act 2009 9 19 Regulations 9 20 Savings and transitional regulations 9 21 Review of Act 9 Note Education and Care Services National Law 10 Contents page 2 New South Wales Children (Education and Care Services National Law Application) Bill 2010 No , 2010 A Bill for An Act to apply as a law of this State a national law relating to the regulation of education and care services for children. Clause 1 Children (Education and Care Services National Law Application) Bill 2010 Part 1 Preliminary The Legislature of New South Wales enacts: 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Children (Education and Care Services National Law 4 Application) Act 2010. 5 2 Commencement 6 (1) This Act commences on a day or days to be appointed by proclamation. 7 (2) Different days may be appointed under subsection (1) for the 8 commencement of different provisions of the Education and Care 9 Services National Law set out in the Schedule to the Education and 10 Care Services National Law Act 2010 of Victoria. 11 3 Definitions 12 (1) In this Act: 13 Children (Education and Care Services) National Law (NSW) means 14 the provisions applying in this jurisdiction because of section 4. 15 (2) Terms used in this Act and also in the Education and Care Services 16 National Law set out in the Schedule to the Education and Care 17 Services National Law Act 2010 of Victoria have the same meanings in 18 this Act as they have in that Law. 19 Page 2 Children (Education and Care Services National Law Application) Bill 2010 Clause 4 Adoption of National Law Part 2 Part 2 Adoption of National Law 1 4 Adoption of Education and Care Services National Law 2 The Education and Care Services National Law, as in force from time 3 to time, set out in the Schedule to the Education and Care Services 4 National Law Act 2010 of Victoria: 5 (a) applies as a law of this jurisdiction, and 6 (b) as so applying may be referred to as the Children (Education and 7 Care Services) National Law (NSW), and 8 (c) so applies as if it were part of this Act. 9 5 Exclusion of legislation of this jurisdiction 10 (1) The following Acts of this jurisdiction do not apply to the Children 11 (Education and Care Services) National Law (NSW) or to instruments 12 made under that Law: 13 (a) the Government Information (Public Access) Act 2009, 14 (b) the Health Records and Information Privacy Act 2002, 15 (c) the Interpretation Act 1987, 16 (d) the Privacy and Personal Information Protection Act 1998, 17 (e) the Subordinate Legislation Act 1989. 18 (2) The following Acts of this jurisdiction do not apply to the Children 19 (Education and Care Services) National Law (NSW) or to instruments 20 made under that Law, except to the extent that the Law and those 21 instruments apply to the Regulatory Authority and the employees, 22 decisions, actions and records of the Regulatory Authority: 23 (a) the Annual Reports (Statutory Bodies) Act 1984, 24 (b) the Ombudsman Act 1974, 25 (c) the Public Finance and Audit Act 1983, 26 (d) the Public Sector Employment and Management Act 2002. 27 6 Application of State Records Act 1998 28 To avoid any doubt, it is declared that the State Records Act 1998 29 applies to the Regulatory Authority for this jurisdiction and its records. 30 Page 3 Clause 7 Children (Education and Care Services National Law Application) Bill 2010 Part 2 Adoption of National Law 7 Meaning of generic terms in Education and Care Services National Law 1 for the purposes of this jurisdiction 2 In the Children (Education and Care Services) National Law (NSW): 3 child protection law means: 4 (a) Chapters 1�10 and 13�17 of the Children and Young Persons 5 (Care and Protection) Act 1998, and 6 (b) the regulations made under that Act in so far as they relate to 7 those Chapters. 8 de facto relationship means a relationship between 2 persons who are 9 de facto partners of each other within the meaning of section 21C of the 10 Interpretation Act 1987. 11 local authority means a council within the meaning of the Local 12 Government Act 1993. 13 magistrate means a Magistrate appointed under the Local Court Act 14 2007. 15 public authority means a public authority of the State, and includes a 16 State owned corporation within the meaning of the State Owned 17 Corporations Act 1989 and a subsidiary of a public authority or State 18 owned corporation, but does not include a council or county council 19 within the meaning of the Local Government Act 1993. 20 registered teacher means a teacher who is accredited under the Institute 21 of Teachers Act 2004. 22 superior court means the Supreme Court of New South Wales. 23 this jurisdiction means New South Wales. 24 8 Relevant tribunal or court 25 For the purposes of the definition of relevant tribunal or court in 26 section 5 of the Children (Education and Care Services) National Law 27 (NSW): 28 (a) the District Court is declared to be the relevant tribunal or court 29 for this jurisdiction for the purposes of section 181 of that Law, 30 and 31 (b) the Administrative Decisions Tribunal is declared to be the 32 relevant tribunal or court for this jurisdiction for the purposes of 33 Part 8 of that Law. 34 Page 4 Children (Education and Care Services National Law Application) Bill 2010 Clause 9 Adoption of National Law Part 2 9 Regulatory Authority 1 For the purposes of the definition of Regulatory Authority in section 5 2 of the Children (Education and Care Services) National Law (NSW), 3 the Director-General of the Department of Human Services is declared 4 to be the Regulatory Authority for this jurisdiction for the purposes of 5 that Law. 6 10 Children's services law 7 (1) For the purposes of the definition of children's services law in section 5 8 of the Children (Education and Care Services) National Law (NSW), 9 the following are declared to be a children's services law for this 10 jurisdiction for the purposes of the Children (Education and Care 11 Services) National Law (NSW): 12 (a) Chapters 12 and 12A of the Children and Young Persons (Care 13 and Protection) Act 1998, 14 (b) Chapters 1, 2, 15, 16 and 17 and Schedule 3 of the Children and 15 Young Persons (Care and Protection) Act 1998 in so far as they 16 relate to Chapters 12 and 12A of that Act, 17 (c) the regulations made under the Children and Young Persons 18 (Care and Protection) Act 1998 in so far as they relate to a 19 provision referred to in paragraph (a) or (b). 20 (2) For the purposes of the definition of children's services regulator in 21 section 5 of the Children (Education and Care Services) National Law 22 (NSW), the Director-General of the Department of Human Services is 23 declared to be a children's services regulator for this jurisdiction for the 24 purposes of the Children (Education and Care Services) National Law 25 (NSW). 26 11 Education law 27 For the purposes of the definition of education law in section 5 of the 28 Children (Education and Care Services) National Law (NSW), the 29 following Acts and the regulations made under those Acts are declared 30 to be an education law for this jurisdiction for the purposes of the 31 Children (Education and Care Services) National Law (NSW): 32 (a) the Education Act 1990, 33 (b) the Institute of Teachers Act 2004, 34 (c) the Teaching Service Act 1980. 35 12 Former education and care services law 36 For the purposes of the definition of former education and care 37 services law in section 5 of the Children (Education and Care Services) 38 National Law (NSW), the following provisions of the Children and 39 Page 5 Clause 13 Children (Education and Care Services National Law Application) Bill 2010 Part 2 Adoption of National Law Young Persons (Care and Protection) Act 1998 are declared to be a 1 former education and care services law for this jurisdiction for the 2 purposes of the Children (Education and Care Services) National Law 3 (NSW): 4 (a) Chapters 12 and 12A of the Children and Young Persons (Care 5 and Protection) Act 1998, 6 (b) Chapter 17 and Schedule 3 of the Children and Young Persons 7 (Care and Protection) Act 1998 in so far as they relate to 8 Chapters 12 and 12A of that Act, 9 (c) the regulations made under the Children and Young Persons 10 (Care and Protection) Act 1998 in so far as they relate to a 11 provision referred to in paragraph (a) or (b). 12 13 Infringements law 13 For the purposes of the definition of infringements law in section 5 of 14 the Children (Education and Care Services) National Law (NSW), the 15 Fines Act 1996 and the regulations made under that Act are declared to 16 be an infringements law for this jurisdiction for the purposes of the 17 Children (Education and Care Services) National Law (NSW). 18 14 Public sector law 19 For the purposes of the definition of public sector law in section 5 of the 20 Children (Education and Care Services) National Law (NSW), the 21 Public Sector Employment and Management Act 2002 and the 22 regulations made under that Act are declared to be a public sector law 23 for this jurisdiction for the purposes of the Children (Education and 24 Care Services) National Law (NSW). 25 15 Working with children law 26 For the purposes of the definition of working with children law in 27 section 5 of the Children (Education and Care Services) National Law 28 (NSW), the Commission for Children and Young People Act 1998 and 29 the regulations made under that Act are declared to be a working with 30 children law for the purposes of the Children (Education and Care 31 Services) National Law (NSW). 32 16 Penalty at end of provision 33 In the Children (Education and Care Services) National Law (NSW), a 34 penalty specified at the end of a provision indicates that a contravention 35 of the provision is punishable on conviction by a penalty not more than 36 the specified penalty. 37 Page 6 Children (Education and Care Services National Law Application) Bill 2010 Clause 17 Adoption of National Law Part 2 17 Transitional 1 (1) For the purposes of the definition of declared approved family day care 2 service in section 305 of the Children (Education and Care Services) 3 National Law (NSW), a family day care children's service that was an 4 approved children's service under Chapter 12 of the Children and 5 Young Persons (Care and Protection) Act 1998 is declared to be a 6 declared approved family day care service for this jurisdiction for the 7 purposes of the Children (Education and Care Services) National Law 8 (NSW). 9 (2) For the purposes of the definition of declared approved provider in 10 section 305 of the Children (Education and Care Services) National 11 Law (NSW), a person who was a licensed service provider under 12 Chapter 12 of the Children and Young Persons (Care and Protection) 13 Act 1998 is declared to be a declared approved provider for this 14 jurisdiction for the purposes of the Children (Education and Care 15 Services) National Law (NSW). 16 (3) For the purposes of the definition of declared approved service in 17 section 305 of the Children (Education and Care Services) National 18 Law (NSW), a children's service that held a children's service approval 19 under Chapter 12 of the Children and Young Persons (Care and 20 Protection) Act 1998 is declared to be a declared approved service for 21 this jurisdiction for the purposes of the Children (Education and Care 22 Services) National Law (NSW). 23 (4) For the purposes of the definition of declared certified supervisor in 24 section 305 of the Children (Education and Care Services) National 25 Law (NSW), a person who was an authorised supervisor under 26 Chapter 12 of the Children and Young Persons (Care and Protection) 27 Act 1998 is declared to be a declared certified supervisor for this 28 jurisdiction for the purposes of the Children (Education and Care 29 Services) National Law (NSW). 30 (5) For the purposes of the definition of declared compliance notice in 31 section 305 of the Children (Education and Care Services) National 32 Law (NSW), a compliance notice under Chapter 12 of the Children and 33 Young Persons (Care and Protection) Act 1998 is declared to be a 34 declared compliance notice for the purposes of the Children (Education 35 and Care Services) National Law (NSW). 36 (6) For the purposes of the definition of declared enforceable undertaking 37 in section 305 of the Children (Education and Care Services) National 38 Law (NSW), a written undertaking in force under section 219X of the 39 Children and Young Persons (Care and Protection) Act 1998 is 40 declared to be a declared enforceable undertaking for this jurisdiction 41 for the purposes of the Children (Education and Care Services) 42 National Law (NSW). 43 Page 7 Clause 17 Children (Education and Care Services National Law Application) Bill 2010 Part 2 Adoption of National Law (7) For the purposes of the definition of declared nominated supervisor in 1 section 305 of the Children (Education and Care Services) National 2 Law (NSW), a person who was an authorised supervisor under 3 Chapter 12 of the Children and Young Persons (Care and Protection) 4 Act 1998 is declared to be a declared nominated supervisor for this 5 jurisdiction for the purposes of the Children (Education and Care 6 Services) National Law (NSW). 7 (8) For the purposes of the definition of declared out of scope service in 8 section 305 of the Children (Education and Care Services) National 9 Law (NSW), an out of school hours care service under the Children and 10 Young Persons (Care and Protection) Act 1998 is declared to be a 11 declared out of scope service for this jurisdiction for the purposes of the 12 Children (Education and Care Services) National Law (NSW). 13 (9) For the purposes of the definition of former approval in section 305 of 14 the Children (Education and Care Services) National Law (NSW), a 15 children's services approval under Chapter 12 of the Children and 16 Young Persons (Care and Protection) Act 1998 is declared to be a 17 former approval for this jurisdiction for the purposes of the Children 18 (Education and Care Services) National Law (NSW). 19 Page 8 Children (Education and Care Services National Law Application) Bill 2010 Clause 18 Miscellaneous Part 3 Part 3 Miscellaneous 1 18 Application of Industrial Relations (Commonwealth Powers) Act 2009 2 An employee of the National Authority is not a State public sector 3 employee for the purposes of the Industrial Relations (Commonwealth 4 Powers) Act 2009. 5 19 Regulations 6 The Governor may make regulations, not inconsistent with this Act, for 7 or with respect to any matter that by this Act is required or permitted to 8 be prescribed or that is necessary or convenient to be prescribed for 9 carrying out or giving effect to this Act. 10 20 Savings and transitional regulations 11 (1) The regulations may contain provisions of a savings or transitional 12 nature consequent on the enactment of the following Acts: 13 this Act 14 (2) Any such provision may, if the regulations so provide, take effect from 15 the date of assent to the Act concerned or a later date. 16 (3) To the extent to which any such provision takes effect from a date that 17 is earlier than the date of its publication on the NSW legislation website, 18 the provision does not operate so as: 19 (a) to affect, in a manner prejudicial to any person (other than the 20 State or an authority of the State), the rights of that person 21 existing before the date of its publication, or 22 (b) to impose liabilities on any person (other than the State or an 23 authority of the State) in respect of anything done or omitted to 24 be done before the date of its publication. 25 21 Review of Act 26 (1) The Minister is to review this Act to determine whether the policy 27 objectives of the Act remain valid and whether the terms of the Act 28 remain appropriate for securing those objectives. 29 (2) The review is to be undertaken as soon as possible after the period of 30 5 years from the date of assent to this Act. 31 (3) A report on the outcome of the review is to be tabled in each House of 32 Parliament within 12 months after the end of the period of 5 years. 33 Page 9 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law Note Education and Care Services National Law 1 Note. The text of the Education and Care Services National Law set out in the Schedule to the 2 Education and Care Services National Law Act 2010 of Victoria (as at the date of its 3 enactment) is set out below. The National Law (as in force from time to time) is applied as a 4 law of New South Wales. 5 Part 1 Preliminary 6 1 Short title 7 This Law may be cited as the Education and Care Services National 8 Law. 9 2 Commencement 10 This Law commences in a participating jurisdiction as provided under 11 the Act of that jurisdiction that applies this Law as a law of that 12 jurisdiction. 13 3 Objectives and guiding principles 14 (1) The objective of this Law is to establish a national education and care 15 services quality framework for the delivery of education and care 16 services to children. 17 (2) The objectives of the national education and care services quality 18 framework are-- 19 (a) to ensure the safety, health and wellbeing of children attending 20 education and care services; 21 (b) to improve the educational and developmental outcomes for 22 children attending education and care services; 23 (c) to promote continuous improvement in the provision of quality 24 education and care services; 25 (d) to establish a system of national integration and shared 26 responsibility between participating jurisdictions and the 27 Commonwealth in the administration of the national education 28 and care services quality framework; 29 (e) to improve public knowledge, and access to information, about 30 the quality of education and care services; 31 (f) to reduce the regulatory and administrative burden for education 32 and care services by enabling information to be shared between 33 participating jurisdictions and the Commonwealth. 34 (3) The guiding principles of the national education and care services 35 quality framework are as follows-- 36 (a) that the rights and best interests of the child are paramount; 37 Page 10 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) that children are successful, competent and capable learners; 1 (c) that the principles of equity, inclusion and diversity underlie this 2 Law; 3 (d) that Australia's Aboriginal and Torres Strait Islander cultures are 4 valued; 5 (e) that the role of parents and families is respected and supported; 6 (f) that best practice is expected in the provision of education and 7 care services. 8 4 How functions to be exercised 9 An entity that has functions under this Law is to exercise its functions 10 having regard to the objectives and guiding principles of the national 11 education and care services quality framework set out in section 3. 12 5 Definitions 13 (1) In this Law-- 14 approved education and care service means an education and care 15 service for which a service approval exists; 16 approved family day care service means an approved education and 17 care service that is a family day care service; 18 approved family day care venue means a place other than a residence 19 where an approved family day care service is provided; 20 approved learning framework means a learning framework approved 21 by the Ministerial Council; 22 approved provider means a person who holds a provider approval; 23 associated children's service means a children's service that is operated 24 or intended to be operated by an approved provider at the same place as 25 an approved education and care service; 26 Australian Accounting Standards means the standards issued or 27 pronounced by the Australian Accounting Standards Board; 28 authorised officer means a person authorised to be an authorised officer 29 under Part 9; 30 Authority Fund means the Australian Children's Education and Care 31 Quality Authority Fund established under section 274; 32 Board means the Australian Children's Education and Care Quality 33 Authority Board established under this Law; 34 certified supervisor means a person who holds a supervisor certificate; 35 chief executive officer means the chief executive officer of the National 36 Authority appointed under this Law; 37 Page 11 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law children's service means a service providing or intended to provide 1 education and care on a regular basis to children under 13 years of age 2 that is primarily regulated under a children's services law of a 3 participating jurisdiction and is not an education and care service; 4 children's services law, in relation to a participating jurisdiction, means 5 a law declared by a law of that jurisdiction to be a children's services 6 law for the purposes of this Law; 7 children's services regulator, in relation to a participating jurisdiction, 8 means a person declared by a law of that jurisdiction to be the children's 9 services regulator for the purposes of this Law; 10 Commonwealth Minister means the Minister of the Commonwealth 11 who is responsible for policies and programs relating to education and 12 care services; 13 compliance direction means a compliance direction under section 176; 14 compliance notice means a compliance notice under section 177; 15 education and care service means any service providing or intended to 16 provide education and care on a regular basis to children under 13 years 17 of age other than-- 18 (a) a school providing full-time education to children, including 19 children attending in the year before grade 1 but not including a 20 preschool program delivered in a school or a preschool that is 21 registered as a school; or 22 (b) a preschool program delivered in a school if-- 23 (i) the program is delivered in a class or classes where a 24 full-time education program is also being delivered to 25 school children; and 26 (ii) the program is being delivered to fewer than 6 children in 27 the school; or 28 (c) a personal arrangement; or 29 (d) a service principally conducted to provide instruction in a 30 particular activity; or 31 Example. Instruction in a particular activity could be instruction in sport, 32 dance, music, culture or language or religious instruction. 33 (e) a service providing education and care to patients in a hospital or 34 patients of a medical or therapeutic care service; or 35 (f) care provided under a child protection law of a participating 36 jurisdiction; or 37 (g) a prescribed class of disability service; or 38 (h) a service of a prescribed class; 39 Example. Education and care services to which this Law applies include long 40 day care services, family day care services, outside school hours services and 41 Page 12 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note preschool programs including those delivered in schools, unless expressly 1 excluded. 2 education and care service premises means-- 3 (a) in relation to an education and care service other than a family 4 day care service, each place at which an education and care 5 service operates or is to operate; or 6 (b) in relation to a family day care service-- 7 (i) an office of the family day care service; or 8 (ii) an approved family day care venue; or 9 (iii) each part of a residence used to provide education and care 10 to children as part of a family day care service or used to 11 provide access to the part of the residence used to provide 12 that education and care; 13 education law, in relation to a participating jurisdiction, means a law 14 declared by a law of that jurisdiction to be an education law for the 15 purposes of this Law; 16 educator means an individual who provides education and care for 17 children as part of an education and care service; 18 eligible association means an association of a prescribed class; 19 family day care co-ordinator means a person employed or engaged by 20 an approved provider of a family day care service to monitor and 21 support the family day care educators who are part of the service; 22 family day care educator means an educator engaged by or registered 23 with a family day care service to provide education and care for children 24 in a residence or at an approved family day care venue; 25 family day care residence means a residence at which a family day care 26 educator educates and cares for children as part of a family day care 27 service; 28 family day care service means an education and care service that is 29 delivered through the use of 2 or more educators to provide education 30 and care for children in residences whether or not the service also 31 provides education and care to children at a place other than a residence; 32 family member, in relation to a child, means-- 33 (a) a parent, grandparent, brother, sister, uncle, aunt, or cousin of the 34 child, whether of the whole blood or half-blood and whether that 35 relationship arises by marriage (including a de facto relationship) 36 or by adoption or otherwise; or 37 (b) a relative of the child according to Aboriginal or Torres Strait 38 Islander tradition; or 39 (c) a person with whom the child resides in a family-like 40 relationship; or 41 Page 13 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (d) a person who is recognised in the child's community as having a 1 familial role in respect of the child; 2 former education and care services law, in relation to a participating 3 jurisdiction, means a law declared by a law of that jurisdiction to be a 4 former education and care services law for the purposes of this Law; 5 grade 1, in relation to a school, means the first year of compulsory 6 full-time schooling; 7 guardian, in relation to a child, means the legal guardian of the child; 8 infringements law, in relation to a participating jurisdiction, means a 9 law declared by a law of that jurisdiction to be an infringements law for 10 the purposes of this Law; 11 Ministerial Council means the Ministerial Council consisting of the 12 persons who from time to time hold office as Ministers of the Crown 13 responsible for early childhood education or care in the governments of 14 the States and Territories and the Commonwealth; 15 National Authority means the Australian Children's Education and 16 Care Quality Authority established under this Law; 17 national education and care services quality framework means-- 18 (a) this Law; and 19 (b) the national regulations; and 20 (c) the National Quality Standard; and 21 (d) the prescribed rating system; 22 National Partnership Agreement means the National Partnership 23 Agreement on the National Quality Agenda for Early Childhood and 24 Care entered into by the States and Territories and the Commonwealth 25 on 7 December 2009, as amended from time to time; 26 National Quality Framework means the national education and care 27 services quality framework; 28 National Quality Standard means the National Quality Standard 29 prescribed by the national regulations; 30 national regulations means the regulations made under this Law; 31 nominated supervisor, in relation to an education and care service, 32 means a person-- 33 (a) who is a certified supervisor; and 34 (b) who is nominated by the approved provider of the service under 35 Part 3 to be the nominated supervisor of that service; and 36 (c) who has consented to that nomination; 37 Note. A person may be both the nominated supervisor of a family day care 38 service and the family day care co-ordinator for that service if the person meets 39 the criteria for each role. 40 Page 14 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note office, in relation to a family day care service, means-- 1 (a) the principal office or any other business office of the approved 2 provider of the service; or 3 (b) any premises of the service from which its family day care 4 educators are co-ordinated; 5 parent, in relation to a child, includes-- 6 (a) a guardian of the child; and 7 (b) a person who has parental responsibility for the child under a 8 decision or order of a court; 9 participating jurisdiction means a State or Territory in which-- 10 (a) this Law applies as a Law of the State or Territory; or 11 (b) a law that substantially corresponds to the provisions of this Law 12 has been enacted; 13 payment, in relation to a prescribed fee, includes payment by electronic 14 or other means; 15 person means-- 16 (a) an individual; or 17 (b) a body corporate; or 18 (c) an eligible association; or 19 (d) a partnership; or 20 (e) a prescribed entity; 21 person with management or control, in relation to an education and 22 care service, means-- 23 (a) if the provider or intended provider of the service is a body 24 corporate, an officer of the body corporate within the meaning of 25 the Corporations Act 2001 of the Commonwealth who is 26 responsible for managing the delivery of the education and care 27 service; or 28 (b) if the provider of the service is an eligible association, each 29 member of the executive committee of the association who has 30 the responsibility, alone or with others, for managing the delivery 31 of the education and care service; or 32 (c) if the provider of the service is a partnership, each partner who 33 has the responsibility, alone or with others, for managing the 34 delivery of the education and care service; or 35 (d) in any other case, a person who has the responsibility, alone or 36 with others, for managing the delivery of the education and care 37 service; 38 Page 15 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law personal arrangement means education and care provided to a child-- 1 (a) by a family member or guardian of a child personally, otherwise 2 than as a staff member of, or under an engagement with, a service 3 providing education and care on a regular basis to children under 4 13 years of age; or 5 (b) by a friend of the family of the child personally under an informal 6 arrangement where no offer to provide that education and care 7 was advertised; 8 preschool program means an early childhood educational program 9 delivered by a qualified early childhood teacher to children in the year 10 that is 2 years before grade 1 of school; 11 prescribed ineligible person means a person in a class of persons 12 prescribed by the national regulations to be prescribed ineligible 13 persons; 14 protected disclosure--see section 296; 15 provider approval means a provider approval-- 16 (a) granted under Part 2 of this Law or this Law as applying in 17 another participating jurisdiction; and 18 (b) as amended under this Law or this Law as applying in another 19 participating jurisdiction-- 20 but does not include a provider approval that has been cancelled; 21 public sector law, in relation to a participating jurisdiction, means a law 22 declared by a law of that jurisdiction to be a public sector law for the 23 purposes of this Law; 24 rating assessment means an assessment or reassessment of an approved 25 education and care service under Part 5; 26 Ratings Review Panel means a Ratings Review Panel established under 27 section 146; 28 receiving approved provider has the meaning set out in section 58; 29 Regulatory Authority means a person declared by a law of a 30 participating jurisdiction to be the Regulatory Authority for that 31 jurisdiction or for a class of education and care services for that 32 jurisdiction; 33 relevant Commonwealth Department means the government 34 department administered by the Commonwealth Minister; 35 relevant tribunal or court, in relation to a participating jurisdiction, 36 means the tribunal or court declared by a law of that jurisdiction to be 37 the relevant tribunal or court for the purposes of this Law or a provision 38 of this Law; 39 residence means the habitable areas of a dwelling; 40 Page 16 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note school children includes children attending school in the year before 1 grade 1; 2 school means-- 3 (a) a government school; or 4 (b) a non-government school that is registered or accredited under an 5 education law of a participating jurisdiction; 6 serious detrimental action--see section 296; 7 service approval means a service approval-- 8 (a) granted under Part 3 of this Law or this Law as applying in 9 another participating jurisdiction; and 10 (b) as amended under this Law or this Law as applying in another 11 participating jurisdiction-- 12 but does not include a service approval that has been cancelled; 13 staff member, in relation to an education and care service, means any 14 individual (other than the nominated supervisor or a volunteer) 15 employed, appointed or engaged to work in or as part of an education 16 and care service, whether as family day care co-ordinator, educator or 17 otherwise; 18 supervisor certificate means a supervisor certificate-- 19 (a) issued under Part 4 of this Law or this Law as applying in another 20 participating jurisdiction; and 21 (b) as amended under this Law or this Law as applying in another 22 participating jurisdiction-- 23 but does not include a supervisor certificate that has been cancelled; 24 transferring approved provider has the meaning set out in section 58; 25 working with children card means a card issued to a person under a 26 working with children law of a participating jurisdiction that permits 27 that person to work with children; 28 working with children check means a notice, certificate or other 29 document granted to, or with respect to, a person under a working with 30 children law to the effect that-- 31 (a) the person has been assessed as suitable to work with children; or 32 (b) there has been no information that if the person worked with 33 children the person would pose a risk to the children; or 34 (c) the person is not prohibited from attempting to obtain, undertake 35 or remain in child-related employment; 36 working with children law, in relation to a participating jurisdiction, 37 means a law declared by a law of that jurisdiction to be a working with 38 children law for the purposes of this Law; 39 Page 17 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law working with vulnerable people law, in relation to a participating 1 jurisdiction, means a law declared by a law of that jurisdiction to be a 2 working with vulnerable people law for the purposes of this Law. 3 (2) In this Law, a reference (either generally or specifically) to a law or a 4 provision of a law (including this Law) includes a reference to the 5 statutory instruments made or in force under the law or provision. 6 (3) In this Law a reference to education and care includes a reference to 7 education or care. 8 (4) In this Law, an education and care service as defined in subsection (1) 9 is an education and care service even if the service also provides 10 education and care to children of or over the age of 13 years. 11 (5) In this Law, a children's service as defined in subsection (1) is a 12 children's service even if the service also provides education and care 13 to children of or over the age of 13 years. 14 6 Interpretation generally 15 (1) Schedule 1 applies in relation to this Law. 16 (2) The National Partnership Agreement is declared to be a relevant 17 document for the purposes of paragraph (h) of the definition of extrinsic 18 material in clause 8(1) of Schedule 1. 19 7 Single national entity 20 (1) It is the intention of the Parliament of this jurisdiction that this Law as 21 applied by an Act of this jurisdiction, together with this Law as applied 22 by Acts of other participating jurisdictions, has the effect that an entity 23 established by this Law is one single national entity, with functions 24 conferred by this Law as so applied. 25 (2) An entity established by this Law has power to do acts in or in relation 26 to this jurisdiction in the exercise of a function expressed to be 27 conferred on it by this Law as applied by Acts of each participating 28 jurisdiction. 29 (3) An entity established by this Law may exercise its functions in relation 30 to-- 31 (a) one participating jurisdiction; or 32 (b) 2 or more or all participating jurisdictions collectively. 33 (4) In this section, a reference to this Law as applied by an Act of a 34 jurisdiction includes a reference to a law that substantially corresponds 35 to this Law enacted in a jurisdiction. 36 Page 18 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 8 Extraterritorial operation of Law 1 It is the intention of the Parliament of this jurisdiction that the operation 2 of this Law is to, as far as possible, include operation in relation to the 3 following-- 4 (a) things situated in or outside the territorial limits of this 5 jurisdiction; 6 (b) acts, transactions and matters done, entered into or occurring in 7 or outside the territorial limits of this jurisdiction; 8 (c) things, acts, transactions and matters (wherever situated, done, 9 entered into or occurring) that would, apart from this Law, be 10 governed or otherwise affected by the law of another jurisdiction. 11 9 Law binds the State 12 (1) This Law binds the State. 13 (2) In this section-- 14 State means the Crown in right of this jurisdiction, and includes-- 15 (a) the Government of this jurisdiction; and 16 (b) a Minister of the Crown in right of this jurisdiction; and 17 (c) a statutory corporation, or other entity, representing the Crown in 18 right of this jurisdiction. 19 Part 2 Provider approval 20 Division 1 Application for provider approval 21 10 Application for provider approval 22 (1) A person, other than a prescribed ineligible person, may apply to the 23 Regulatory Authority for a provider approval. 24 (2) An application may be made by more than one person. 25 (3) If an application is made by more than one person-- 26 (a) the prescribed information must be provided in respect of each 27 person; and 28 (b) the requirements of this Division must be complied with by and 29 in respect of each person. 30 Page 19 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 11 Form of application 1 An application under section 10 must-- 2 (a) be made to the Regulatory Authority of the participating 3 jurisdiction-- 4 (i) in which the applicant, or any of the applicants, is 5 ordinarily resident; or 6 (ii) if the applicant or applicants are not individuals, in which 7 the principal office of the applicant or any of the applicants 8 is located; and 9 (b) be in writing; and 10 (c) include the prescribed information; and 11 (d) include payment of the prescribed fee. 12 12 Applicant must be fit and proper person 13 (1) An applicant who is an individual must satisfy the Regulatory Authority 14 that the applicant is a fit and proper person to be involved in the 15 provision of an education and care service. 16 (2) If the applicant is not an individual, the applicant must satisfy the 17 Regulatory Authority that-- 18 (a) each person who will be a person with management or control of 19 an education and care service to be operated by the applicant is a 20 fit and proper person to be involved in the provision of an 21 education and care service; and 22 (b) the applicant is a fit and proper person to be involved in the 23 provision of an education and care service. 24 (3) The head of a government department administering an education law 25 of a participating jurisdiction is taken to be a fit and proper person for 26 the purposes of this Part. 27 13 Matters to be taken into account in assessing whether fit and proper 28 person 29 (1) In determining whether a person is a fit and proper person under this 30 Division, the Regulatory Authority must have regard to-- 31 (a) the person's history of compliance with-- 32 (i) this Law as applying in any participating jurisdiction; and 33 (ii) a former education and care services law of a participating 34 jurisdiction; and 35 (iii) a children's services law of a participating jurisdiction; and 36 Page 20 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (iv) an education law of a participating jurisdiction; and 1 Note. If a person has been served with an infringement notice for an 2 offence under this Law, and the person has paid the penalty, the 3 Regulatory Authority cannot consider that conduct when determining 4 whether the person is fit and proper. See section 291(5). 5 (b) any decision under a former education and care services law, a 6 children's services law or an education law of a participating 7 jurisdiction to refuse, refuse to renew, suspend or cancel a 8 licence, approval, registration or certification or other 9 authorisation granted to the person under that law; and 10 (c) either-- 11 (i) any prescribed matters relating to the criminal history of 12 the person to the extent that history may affect the person's 13 suitability for the role of provider of an education and care 14 service; or 15 (ii) any check of the person under a working with vulnerable 16 people law of a participating jurisdiction; and 17 (d) whether the person is bankrupt, or has applied to take the benefit 18 of any law for the relief of bankrupt or insolvent debtors or, in the 19 case of a body corporate, is insolvent under administration or an 20 externally-administered body corporate. 21 (2) Without limiting subsection (1), the Regulatory Authority may have 22 regard to-- 23 (a) whether the person has a medical condition that may cause the 24 person to be incapable of being responsible for providing an 25 education and care service in accordance with this Law; and 26 (b) whether the financial circumstances of the person may 27 significantly limit the person's capacity to meet the person's 28 obligations in providing an education and care service in 29 accordance with this Law. 30 (3) Nothing in subsection (1) or (2) limits the circumstances in which a 31 person may be considered not to be a fit and proper person to be 32 involved in the provision of an education and care service. 33 14 Regulatory Authority may seek further information 34 (1) For the purpose of carrying out an assessment as to whether a person is 35 a fit and proper person, the Regulatory Authority may-- 36 (a) ask the person to provide further information; and 37 (b) undertake inquiries in relation to the person. 38 (2) If the Regulatory Authority asks the applicant for further information 39 under this section, the period from the making of the request and the 40 Page 21 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law provision of the further information is not included in the period 1 referred to in section 15 for the Regulatory Authority to make a decision 2 on the application. 3 15 Grant or refusal of provider approval 4 (1) On an application under section 10, the Regulatory Authority may-- 5 (a) grant the provider approval; or 6 (b) refuse to grant the provider approval. 7 Note. A provider approval is granted subject to conditions in accordance with 8 section 19. 9 (2) The Regulatory Authority must not grant a provider approval unless the 10 Authority is satisfied as to the matters in section 12. 11 (3) Subject to subsection (4), the Regulatory Authority must make a 12 decision on the application within 60 days after the Regulatory 13 Authority receives the application. 14 Note. If further information is requested under section 14(3), the period 15 between the making of the request and the provision of the information is not 16 included in the 60 day period. 17 (4) The period referred to in subsection (3) may be extended by up to 18 30 days with the agreement of the applicant. 19 (5) The Regulatory Authority is taken to have refused to grant a provider 20 approval if the Regulatory Authority has not made a decision under 21 subsection (1)-- 22 (a) within the relevant period required under subsection (3); or 23 (b) within the period extended under subsection (4)-- 24 as the case requires. 25 16 Notice of decision on application 26 The Regulatory Authority must give written notice to the applicant of a 27 decision under section 15 and the reasons for that decision within 7 days 28 after the decision is made. 29 17 Duration of provider approval 30 A provider approval granted under section 15 continues in force until it 31 is cancelled or surrendered under this Law, or this Law as applying in a 32 participating jurisdiction. 33 18 Effect of provider approval 34 A provider approval authorises the approved provider to operate an 35 approved education and care service and an associated children's 36 Page 22 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note service if the approved provider is the holder of the service approval for 1 those services. 2 19 Conditions on provider approval 3 (1) A provider approval may be granted subject to any conditions that are 4 prescribed in the national regulations or that are determined by the 5 Regulatory Authority. 6 (2) Without limiting subsection (1), a provider approval is subject to the 7 condition that the approved provider must comply with this Law. 8 (3) A condition of a provider approval applies to the provider as the 9 operator of any education and care service or associated children's 10 service, unless the condition expressly provides otherwise. 11 (4) An approved provider must comply with the conditions of the provider 12 approval. 13 Penalty: 14 $10 000, in the case of an individual. 15 $50 000, in any other case. 16 20 Copy of provider approval 17 If the Regulatory Authority grants a provider approval under this Part, 18 the Regulatory Authority must provide a copy of the provider approval 19 to the approved provider stating-- 20 (a) the name of the approved provider; and 21 (b) if the approved provider is not an individual, the address of the 22 principal office of the provider; and 23 (c) any conditions to which the approval is subject; and 24 (d) the date that the provider approval was granted; and 25 (e) the provider approval number; and 26 (f) any other prescribed matters. 27 Division 2 Reassessment 28 21 Reassessment of fitness and propriety 29 (1) The Regulatory Authority may at any time assess-- 30 (a) whether an approved provider continues to be a fit and proper 31 person to be involved in the provision of an education and care 32 service; or 33 (b) whether a person with management or control of an education 34 and care service operated by an approved provider continues to 35 Page 23 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law be a fit and proper person to be involved in the provision of an 1 education and care service; or 2 (c) whether a person who becomes a person with management or 3 control of an education and care service operated by the approved 4 provider after the grant of the provider approval is a fit and proper 5 person to be involved in the provision of an education and care 6 service. 7 (2) Sections 13 and 14 apply to the reassessment. 8 Division 3 Amendment of provider approvals 9 22 Amendment of provider approval on application 10 (1) An approved provider may apply to the Regulatory Authority for an 11 amendment of the provider approval. 12 (2) The application must-- 13 (a) be in writing; and 14 (b) include the prescribed information; and 15 (c) include payment of the prescribed fee. 16 (3) The Regulatory Authority must decide the application by-- 17 (a) amending the provider approval in the way applied for; or 18 (b) with the applicant's written agreement, amending the provider 19 approval in another way; or 20 (c) refusing to amend the provider approval. 21 (4) The Regulatory Authority must make a decision on the application 22 within 30 days after the Regulatory Authority receives the application. 23 (5) Without limiting subsection (3), an amendment may vary a condition of 24 the provider approval or impose a new condition on the provider 25 approval. 26 23 Amendment of provider approval by Regulatory Authority 27 (1) The Regulatory Authority may amend a provider approval at any time 28 without an application from the approved provider. 29 (2) Without limiting subsection (1), an amendment may vary a condition of 30 the provider approval or impose a new condition on the provider 31 approval. 32 (3) The Regulatory Authority must give written notice to the approved 33 provider of the amendment. 34 Page 24 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (4) An amendment under this section has effect-- 1 (a) 14 days after the Regulatory Authority gives notice of the 2 amendment under subsection (2); or 3 (b) if another period is specified by the Regulatory Authority, at the 4 end of that period. 5 24 Copy of amended provider approval to be provided 6 If the Regulatory Authority amends a provider approval under this 7 Division, the Regulatory Authority must-- 8 (a) provide an amended copy of the provider approval to the 9 approved provider; and 10 (b) make any necessary amendments to any service approval held by 11 the provider and provide an amended copy of the service 12 approval to the approved provider. 13 Division 4 Suspension or cancellation of provider approval 14 25 Grounds for suspension of provider approval 15 The Regulatory Authority may suspend a provider approval if-- 16 (a) the approved provider has been charged with an indictable 17 offence, or with an offence that if committed in this jurisdiction 18 would be an indictable offence, or any other circumstance 19 indicates that the approved provider may not be a fit and proper 20 person to be involved in the provision of an education and care 21 service; or 22 (b) the approved provider has failed to comply with a condition of 23 the provider approval; or 24 (c) the approved provider has failed to comply with this Law as 25 applying in any participating jurisdiction; or 26 (d) action is being taken under Part 7 (other than a compliance 27 direction) in respect of more than one education and care service 28 operated by the approved provider; or 29 (e) the approved provider has not operated any education and care 30 service for a period of more than 12 months (including any period 31 of suspension); or 32 (f) the approved provider purported to transfer or receive a transfer 33 of an approved education and care service without the consent of 34 the Regulatory Authority; or 35 (g) the approved provider has not paid any outstanding prescribed 36 fees. 37 Page 25 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 26 Show cause notice before suspension 1 (1) This section applies if the Regulatory Authority is considering the 2 suspension of a provider approval under section 25. 3 (2) The Regulatory Authority must first give the approved provider a notice 4 (show cause notice) stating-- 5 (a) that the Regulatory Authority intends to suspend the provider 6 approval; and 7 (b) the proposed period of suspension; and 8 (c) the reasons for the proposed suspension; and 9 (d) that the approved provider may, within 30 days after the notice is 10 given, give the Regulatory Authority a written response to the 11 proposed suspension. 12 27 Decision to suspend after show cause process 13 After considering any written response from the approved provider 14 received within the time allowed by section 26(2)(d), the Regulatory 15 Authority may-- 16 (a) suspend the provider approval for a period not more than the 17 prescribed period; or 18 (b) decide not to suspend the provider approval. 19 28 Suspension without show cause notice 20 (1) The Regulatory Authority may suspend the provider approval on a 21 ground referred to in section 25 without giving the approved provider a 22 show cause notice under section 26 if the Regulatory Authority is 23 satisfied that there is an immediate risk to the safety, health or wellbeing 24 of a child or children being educated and cared for by an education and 25 care service operated by the provider. 26 (2) The suspension may not be for a period of more than 6 months. 27 29 Notice and taking effect of suspension 28 (1) The Regulatory Authority must give the approved provider written 29 notice of the decision to suspend the provider approval. 30 (2) The notice of a decision to suspend must set out the period of suspension 31 and the date on which it takes effect. 32 (3) The decision under section 27 to suspend takes effect at the end of 33 14 days after the date of the decision, or, if another period is specified 34 by the Regulatory Authority, at the end of that period. 35 Page 26 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (4) The decision under section 28 to suspend takes effect on the giving of 1 the notice. 2 30 Effect of suspension 3 (1) Subject to this section, if a provider approval is suspended under 4 section 27 or 28 of this Law as applying in any participating 5 jurisdiction, all service approvals held by the provider are also 6 suspended for the same period. 7 (2) A suspension under subsection (1) applies to both education and care 8 services and any associated children's services. 9 (3) A person whose provider approval is suspended is taken not to be an 10 approved provider for the period of the suspension. 11 (4) A service approval is not suspended under subsection (1) during any 12 period that a person is approved under section 41 to manage or control 13 the education and care service. 14 (5) The Regulatory Authority may consent under Part 3 to the transfer of a 15 service approval that is suspended under section 27 or 28. 16 (6) The suspension of the service approval ceases on the transfer taking 17 effect, unless the conditions imposed by the Regulatory Authority on 18 the consent to the transfer specify a later date. 19 31 Grounds for cancellation of provider approval 20 The Regulatory Authority may cancel a provider approval if-- 21 (a) the Regulatory Authority is satisfied that the approved provider 22 or a person with management or control of an education and care 23 service operated by the approved provider is not a fit and proper 24 person to be involved in the provision of an education and care 25 service; or 26 (b) the Regulatory Authority is satisfied that the continued provision 27 of education and care services by the approved provider would 28 constitute an unacceptable risk to the safety, health or wellbeing 29 of any child or class of children being educated and cared for by 30 an education and care service operated by the approved provider; 31 or 32 (c) the approved provider has been found guilty of an indictable 33 offence or an offence that if committed in this jurisdiction would 34 be an indictable offence; or 35 (d) the approved provider has been found guilty of an offence under 36 this Law as applying in any participating jurisdiction; or 37 (e) the approved provider has breached a condition of the provider 38 approval; or 39 Page 27 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (f) the approved provider has not operated any education and care 1 service for a period of more than 12 months (including any period 2 of suspension). 3 32 Show cause notice before cancellation 4 (1) This section applies if the Regulatory Authority is considering the 5 cancellation of a provider approval under section 31. 6 (2) The Regulatory Authority must first give the approved provider a notice 7 (show cause notice) stating-- 8 (a) that the Regulatory Authority intends to cancel the provider 9 approval; and 10 (b) the reasons for the proposed cancellation; and 11 (c) that the approved provider may, within 30 days after the notice is 12 given, give the Regulatory Authority a written response to the 13 proposed cancellation. 14 33 Decision in relation to cancellation 15 (1) After considering any written response from the approved provider 16 received within the time allowed under section 32(2)(c), the Regulatory 17 Authority-- 18 (a) may-- 19 (i) cancel the provider approval; or 20 (ii) suspend the provider approval for a period not more than 21 the prescribed period; 22 (iii) decide not to cancel the provider approval; and 23 (b) must give the approved provider written notice of the decision. 24 (2) The decision to cancel the provider approval takes effect at the end of 25 14 days after the date of the decision or, if another period is specified by 26 the Regulatory Authority, at the end of that period. 27 (3) The notice of a decision to cancel the provider approval must set out the 28 date on which it takes effect. 29 (4) This Law applies to a suspension of a provider approval under this 30 section as if it were a suspension under section 27. 31 34 Effect of cancellation 32 (1) Subject to this section, if a provider approval is cancelled under 33 section 33 of this Law as applying in any participating jurisdiction, all 34 service approvals held by the person who was the approved provider are 35 also cancelled. 36 Page 28 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (2) A cancellation under subsection (1) applies to both education and care 1 services and any associated children's services. 2 (3) A service approval is not cancelled under subsection (1) if before that 3 cancellation a person is approved under section 41 to manage or control 4 the education and care service. 5 (4) A service approval is cancelled if a person referred to in subsection (3) 6 ceases to manage or control the service. 7 (5) A provider whose provider approval is to be cancelled under section 33 8 may apply to the Regulatory Authority under Part 3 for consent to 9 transfer a service approval held by the provider. 10 (6) The application for consent to transfer must be made within 14 days 11 after the date of the decision to cancel the provider approval is made. 12 (7) If an application for consent to transfer is made, the service approval is 13 suspended until the Regulatory Authority determines the application. 14 (8) The suspension of the service approval ceases on the transfer taking 15 effect, unless the conditions of the transfer specify a later date. 16 (9) If the Regulatory Authority refuses to consent to the transfer, the service 17 approval is cancelled on the making of the decision to refuse consent. 18 35 Approved provider to provide information to Regulatory Authority 19 (1) This section applies if a show cause notice has been given to an 20 approved provider under section 26 or 32. 21 (2) The approved provider, at the request of the Regulatory Authority, 22 must, within 7 days of the request, provide the Regulatory Authority 23 with the contact details of the parents of all children enrolled at each 24 education and care service operated by the approved provider. 25 (3) The Regulatory Authority may use the information provided under 26 subsection (2) solely to notify the parents of children enrolled at an 27 education and care service about the suspension or cancellation. 28 36 Notice to parents of suspension or cancellation 29 (1) This section applies if a provider approval has been suspended or 30 cancelled under section 27, 28, 33 or 34. 31 (2) The Regulatory Authority may require the person who is or was the 32 approved provider to give written notice of the suspension or 33 cancellation and its effect to the parents of children enrolled at all or any 34 of the education and care services operated by that person. 35 Page 29 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) A person must comply with a requirement made of that person under 1 subsection (2). 2 Penalty: 3 $3000 in the case of an individual. 4 $15 000 in any other case. 5 37 Voluntary suspension of provider approval 6 (1) An approved provider may apply to the Regulatory Authority for a 7 suspension of the provider approval for a period of not more than 8 12 months. 9 (2) The application must-- 10 (a) be in writing; and 11 (b) include the prescribed information; and 12 (c) include payment of the prescribed fee. 13 (3) The approved provider must, at least 14 days before making an 14 application under this section, notify the parents of children enrolled at 15 the education and care services operated by the approved provider of the 16 intention to make the application. 17 (4) The Regulatory Authority must within 30 days after the application is 18 made decide whether or not to grant the application. 19 (5) The Regulatory Authority must give written notice of its decision 20 (including the period of suspension) to the approved provider. 21 (6) If the Regulatory Authority decides to grant the application, the 22 suspension takes effect on a date agreed between the Regulatory 23 Authority and the approved provider. 24 (7) A suspension under this section remains in force for the period of time 25 specified in the notice. 26 (8) The approved provider may apply to the Regulatory Authority to revoke 27 the suspension before the end of the suspension period. 28 (9) If the Regulatory Authority grants the application to revoke the 29 suspension, the suspension ceases on the date determined by agreement 30 with the approved provider. 31 (10) If a provider approval is suspended under this section, each service 32 approval held by the provider is also suspended for the same period 33 unless-- 34 (a) a person is approved under section 41 to manage or control the 35 education and care service to which the approval relates; or 36 (b) the service approval is transferred under Division 3 of Part 3. 37 Page 30 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 38 Surrender of provider approval by approved provider 1 (1) An approved provider may surrender the provider approval by written 2 notice to the Regulatory Authority. 3 (2) The notice must specify a date on which the surrender is intended to take 4 effect which must be-- 5 (a) after the notice is given; and 6 (b) after the end of the period of notice required under subsection (3). 7 (3) The approved provider must notify the parents of children enrolled at 8 the education and care services operated by the approved provider of the 9 intention to surrender the provider approval, at least 14 days before the 10 surrender is intended to take effect. 11 (4) If a provider approval is surrendered, the approval is cancelled on the 12 date specified in the notice. 13 (5) If a provider approval is surrendered, any service approval held by the 14 provider is also taken to be surrendered. 15 Note. If a service approval is surrendered, it is cancelled--see section 86. A 16 cancelled service approval cannot be transferred--see definition of service 17 approval and also Division 3 of Part 3. 18 Division 5 Approval of executor, representative or guardian 19 as approved provider 20 39 Death of approved provider 21 (1) This section applies if an approved provider dies. 22 (2) The nominated supervisor or any other person having day to day control 23 of an education and care service of the approved provider must notify 24 the Regulatory Authority of the approved provider's death within 7 days 25 after that death. 26 (3) The executor of the estate of the approved provider may continue to 27 operate any approved education and care service of the approved 28 provider for the relevant period provided the nominated supervisor or 29 any certified supervisor continues to manage the day to day operation of 30 the service. 31 (4) The executor of the estate of the approved provider may transfer, 32 surrender or apply for suspension of a service approval of the approved 33 provider under this Law during the relevant period as if the executor 34 were the approved provider. 35 (5) The executor of the estate of the approved provider may apply to the 36 Regulatory Authority for a provider approval. 37 Page 31 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (6) The application must be made within 30 days of the death of the 1 approved provider and must-- 2 (a) be in writing; and 3 (b) include the prescribed information; and 4 (c) include payment of the prescribed fee. 5 (7) In this section relevant period means-- 6 (a) the period of 30 days after the death of the approved provider; or 7 (b) if the approved provider makes an application under 8 subsection (5) within that period, until the application is finally 9 determined under this Law. 10 40 Incapacity of approved provider 11 (1) This section applies if an approved provider has become incapacitated. 12 (2) The legal personal representative or guardian of an approved provider 13 may apply to the Regulatory Authority for a provider approval. 14 (3) The application must-- 15 (a) be in writing; and 16 (b) include the prescribed information; and 17 (c) include payment of the prescribed fee. 18 41 Decision on application 19 (1) The Regulatory Authority must not grant a provider approval to a 20 person who has made an application under section 39 or 40 unless the 21 Regulatory Authority is satisfied that the person is a fit and proper 22 person to be involved in the provision of an education and care service. 23 (2) Sections 12, 13 and 14 apply to the assessment of a person under 24 subsection (1). 25 (3) Subject to this section, the Regulatory Authority may-- 26 (a) grant the provider approval; or 27 (b) grant the provider approval subject to conditions; or 28 (c) refuse to grant the provider approval. 29 (4) An approval under this section-- 30 (a) may be granted for a period of not more than 6 months; and 31 (b) may be extended for a further period of not more than 6 months-- 32 at the discretion of the Regulatory Authority. 33 Page 32 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (5) The provider approval is granted only in relation to the operation of the 1 approved education and care services of the approved provider for 2 whom the applicant is the executor, legal personal representative or 3 guardian, as the case requires. 4 Division 6 Exercise of powers by another Regulatory 5 Authority 6 42 Exercise of powers by another Regulatory Authority 7 (1) This section applies if the Regulatory Authority has granted a provider 8 approval under this Part. 9 (2) A Regulatory Authority of another participating jurisdiction may 10 exercise all of the powers and perform all of the functions of the 11 Regulatory Authority under this Part (except Division 5) in respect of 12 the provider approval if the approved provider operates an approved 13 education and care service in that participating jurisdiction. 14 (3) A Regulatory Authority (including the Regulatory Authority of this 15 jurisdiction) may only exercise a power to amend, suspend or cancel a 16 provider approval after consulting with the Regulatory Authority of 17 each participating jurisdiction in which the approved provider operates 18 an approved education and care service. 19 (4) A failure by a Regulatory Authority to comply with subsection (3) does 20 not affect the validity of the exercise of the power. 21 (5) A cancellation or suspension of a provider approval in another 22 participating jurisdiction has effect in this jurisdiction. 23 Part 3 Service approval 24 Division 1 Application for service approval 25 43 Application for service approval 26 (1) An approved provider may apply to the Regulatory Authority for a 27 service approval for an education and care service. 28 (2) An approved provider may only apply for a service approval for an 29 education and care service if the approved provider is or will be the 30 operator of the education and care service and is or will be responsible 31 for the management of the staff members and nominated supervisor of 32 that service. 33 Page 33 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) A person who has applied for a provider approval may apply to the 1 Regulatory Authority for a service approval, however the Regulatory 2 Authority must not grant the service approval unless the provider 3 approval is granted. 4 44 Form of application 5 (1) An application for a service approval must-- 6 (a) be made to the Regulatory Authority of the participating 7 jurisdiction in which the service is to be located; and 8 (b) be in writing; and 9 (c) include the prescribed information; and 10 (d) nominate a certified supervisor to be the nominated supervisor 11 for the service and include that person's written consent to the 12 nomination; and 13 (e) include payment of the prescribed fee. 14 (2) An application for service approval may include an associated 15 children's service. 16 (3) The approved provider can be the nominated supervisor if he or she-- 17 (a) is a certified supervisor; or 18 (b) has applied for a supervisor certificate-- 19 however the Regulatory Authority must not grant the service approval 20 unless the supervisor certificate has been granted. 21 45 Regulatory Authority may seek further information 22 (1) The Regulatory Authority may ask an applicant for a service approval 23 to provide any further information that is reasonably required for the 24 purpose of assessing the application. 25 (2) If the Regulatory Authority asks the applicant for further information 26 under this section, the period from the making of the request until the 27 provision of the further information is not included in the period 28 referred to in section 48 for the Regulatory Authority to make a decision 29 on the application. 30 46 Investigation of application for service approval 31 (1) For the purposes of determining an application for a service approval, 32 the Regulatory Authority may-- 33 (a) undertake inquiries and investigations, including inquiries 34 relating to the previous licensing, accreditation or registration of 35 the education and care service under a former education and care 36 Page 34 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note services law, a children's services law or an education law of any 1 participating jurisdiction; and 2 (b) inspect the education and care service premises; and 3 (c) inspect the policies and procedures of the service. 4 (2) For the purposes of an inspection under subsection (1)(b) or (c), the 5 Regulatory Authority may enter the education and care service premises 6 at any reasonable time. 7 47 Determination of application 8 (1) Subject to subsection (3), in determining an application under 9 section 43, the Regulatory Authority must have regard to-- 10 (a) the National Quality Framework; and 11 (b) except in the case of a family day care residence, the suitability 12 of the education and care service premises and the site and 13 location of those premises for the operation of an education and 14 care service; and 15 (c) the adequacy of the policies and procedures of the service; and 16 (d) whether the applicant has a provider approval; and 17 (e) whether the nominated supervisor for the service is a certified 18 supervisor and whether that person has consented in writing to 19 the nomination; and 20 (f) any other matter the Regulatory Authority thinks fit; and 21 (g) any other prescribed matter. 22 (2) In addition, the Regulatory Authority may have regard to-- 23 (a) whether the applicant is capable of operating the education and 24 care service having regard to its financial capacity and 25 management capability and any other matter the Regulatory 26 Authority considers relevant; 27 (b) the applicant's history of compliance with this Law or this Law 28 as applying in any participating jurisdiction, including in relation 29 to any other education and care service it operates. 30 (3) Subject to subsection (4), in assessing an associated children's service 31 for the purposes of determining whether to grant a service approval, the 32 Regulatory Authority must have regard to the criteria under the 33 children's services law of this jurisdiction for the grant of a children's 34 services licence. 35 (4) The criteria referred to in subsection (3) do not include criteria relating 36 to whether the applicant is a fit and proper person. 37 Page 35 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 48 Grant or refusal of service approval 1 (1) On an application under section 43, the Regulatory Authority may-- 2 (a) grant the service approval; or 3 (b) refuse to grant the service approval. 4 Note. A service approval is granted subject to conditions in accordance with 5 section 51. 6 (2) Subject to subsection (3), the Regulatory Authority must make a 7 decision on the application within 90 days after the Regulatory 8 Authority received the application. 9 Note. If further information is requested under section 45(2), the period 10 between the making of the request and the provision of the information is not 11 included in the 90 day period. 12 (3) The period referred to in subsection (2) may be extended with the 13 agreement of the applicant. 14 (4) The Regulatory Authority may grant a service approval solely for an 15 education and care service if-- 16 (a) the application includes an application for an associated 17 children's service; and 18 (b) that associated children's service does not comply with the 19 criteria referred to in section 47(2). 20 (5) The Regulatory Authority is taken to have refused to grant a service 21 approval if the Regulatory Authority has not made a decision under 22 subsection (1)-- 23 (a) within the relevant time required under subsection (2); or 24 (b) within the period extended under subsection (3)-- 25 as the case requires. 26 (6) A service approval cannot be granted solely for an associated children's 27 service. 28 49 Grounds for refusal 29 (1) The Regulatory Authority must refuse to grant a service approval if-- 30 (a) the Regulatory Authority is satisfied that the service, if permitted 31 to operate, would constitute an unacceptable risk to the safety, 32 health or wellbeing of children who would be educated or cared 33 for by the education and care service; or 34 (b) the applicant does not have a provider approval. 35 (2) The Regulatory Authority may refuse to grant a service approval on any 36 other grounds prescribed in the national regulations. 37 Page 36 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 50 Notice of decision on application 1 The Regulatory Authority must give written notice to the applicant of a 2 decision under section 48 and the reasons for the decision within 7 days 3 after the decision is made. 4 51 Conditions on service approval 5 (1) A service approval is granted subject to the condition that the education 6 and care service is operated in a way that-- 7 (a) ensures the safety, health and wellbeing of the children being 8 educated and cared for by the service; and 9 (b) meets the educational and developmental needs of the children 10 being educated and cared for by the service. 11 (2) A service approval for a family day care service is granted subject to the 12 additional condition that the approved provider must ensure that-- 13 (a) sufficient persons are appointed as family day care co-ordinators 14 to monitor and support the family day care educators engaged by 15 or registered with the service; and 16 (b) each family day care educator is adequately monitored and 17 supported by a family day care co-ordinator. 18 (3) A service approval is granted subject to a condition that the service must 19 commence ongoing operation of the service within 6 months after the 20 approval is granted unless the Regulatory Authority agrees to an 21 extension of time. 22 (4) A service approval is granted subject to a condition that the approved 23 provider must hold the prescribed insurance in respect of the education 24 and care service. 25 (5) A service approval is granted subject to any other conditions prescribed 26 in the national regulations or imposed by-- 27 (a) this Law; or 28 (b) the Regulatory Authority. 29 (6) A condition of a service approval does not apply to an associated 30 children's service unless the condition is expressed to apply to that 31 associated children's service. 32 (7) A condition of a service approval may be expressed to apply solely to 33 an associated children's service only if the Regulatory Authority has 34 first consulted with the children's services regulator. 35 Page 37 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (8) An approved provider must comply with the conditions of a service 1 approval held by the approved provider. 2 Penalty: 3 $10 000, in the case of an individual. 4 $50 000, in any other case. 5 52 Copy of service approval to be provided 6 If the Regulatory Authority grants a service approval under this Part, the 7 Regulatory Authority must provide a copy of the service approval to the 8 approved provider stating-- 9 (a) the name of the education and care service; and 10 (b) the location of the education and care service or, if the education 11 and care service is a family day care service, the location of the 12 principal office and any approved family day care venue for the 13 service; and 14 (c) any conditions to which the service approval is subject; and 15 (d) the date the service approval was granted; and 16 (e) the service approval number; and 17 (f) the name of the approved provider; and 18 (g) for a service other than a family day care service, the maximum 19 number of children who can be educated and cared for by the 20 service at any one time; and 21 (h) the details of any service waiver under Division 5 or temporary 22 waiver under Division 6 applying to the service; and 23 (i) any other prescribed matters. 24 53 Annual fee 25 An approved provider must, in accordance with the national 26 regulations, pay the prescribed annual fee in respect of each service 27 approval held by the approved provider. 28 Division 2 Amendment of service approval 29 54 Amendment of service approval on application 30 (1) An approved provider may apply to the Regulatory Authority for an 31 amendment of a service approval. 32 (2) An application must-- 33 (a) be in writing; and 34 (b) include the prescribed information; and 35 Page 38 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (c) include payment of the prescribed fee. 1 (3) The Regulatory Authority may ask the approved provider to provide 2 any further information that is reasonably required for the purpose of 3 assessing the application. 4 (4) If the Regulatory Authority asks the applicant for further information 5 under this section, the period from the making of the request and the 6 provision of the further information is not included in the period 7 referred to in subsection (5). 8 (5) The Regulatory Authority must make a decision on the application 9 within 60 days after the Regulatory Authority receives the application. 10 (6) The Regulatory Authority must decide the application by-- 11 (a) amending the service approval in the way applied for; or 12 (b) with the applicant's written agreement, amending the service 13 approval in another way; or 14 (c) refusing to amend the service approval. 15 (7) Without limiting subsection (6), an amendment may vary a condition of 16 the service approval or impose a new condition on the service approval. 17 (8) An amendment cannot change a location of an education and care 18 service. 19 (9) The Regulatory Authority must give written notice of its decision to the 20 approved provider. 21 55 Amendment of service approval by Regulatory Authority 22 (1) The Regulatory Authority may amend a service approval at any time 23 without an application from the approved provider. 24 (2) Without limiting subsection (1), an amendment may vary a condition of 25 the service approval or impose a new condition on the service approval. 26 (3) The Regulatory Authority must give written notice of the amendment to 27 the approved provider. 28 (4) An amendment under this section has effect-- 29 (a) 14 days after the Regulatory Authority gives notice of the 30 amendment under subsection (3); or 31 (b) if another period is specified by the Regulatory Authority, at the 32 end of that period. 33 (5) The Regulatory Authority must amend a service approval to the extent 34 that it relates to an associated children's service in accordance with any 35 direction by the children's services regulator if that direction is given in 36 accordance with the children's services law of this jurisdiction. 37 Page 39 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 56 Notice of change to nominated supervisor 1 (1) The approved provider of an education and care service must give 2 written notice to the Regulatory Authority in accordance with this 3 section if the approved provider wishes to change the person nominated 4 as the nominated supervisor of the education and care service. 5 (2) The notice must-- 6 (a) nominate a certified supervisor to be the nominated supervisor 7 for the service and include that person's written consent to the 8 nomination; and 9 (b) include the prescribed information; and 10 (c) be given-- 11 (i) at least 7 days before the new certified supervisor is to 12 commence work as the nominated supervisor; or 13 (ii) if that period of notice is not possible in the circumstances, 14 as soon as practicable and not more than 14 days after the 15 certified supervisor commences work as the nominated 16 supervisor. 17 57 Copy of amended service approval to be provided 18 If the Regulatory Authority amends a service approval under this 19 Division, the Authority must provide an amended copy of the service 20 approval to the approved provider. 21 Division 3 Transfer of service approval 22 58 Service approval may be transferred 23 (1) Subject to this Division, an approved provider who holds a service 24 approval (transferring approved provider) may transfer the service 25 approval to another approved provider (receiving approved provider). 26 (2) If a service approval is transferred to a receiving approved provider the 27 transfer includes the transfer of the service approval for any associated 28 children's service. 29 (3) A person who holds a provider approval may transfer a service approval 30 held by the provider even if the provider approval or service approval is 31 suspended. 32 59 Regulatory Authority to be notified of transfer 33 (1) The transferring approved provider and the receiving approved provider 34 must jointly notify the Regulatory Authority of the transfer-- 35 (a) at least 42 days before the transfer is intended to take effect; or 36 Page 40 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) if the Regulatory Authority considers that the circumstances are 1 exceptional, a lesser period agreed to by the Regulatory 2 Authority. 3 (2) The notice must-- 4 (a) be in writing; and 5 (b) include the prescribed information; and 6 (c) include payment of the prescribed fee. 7 60 Consent of Regulatory Authority required for transfer 8 A service approval cannot be transferred without the consent of the 9 Regulatory Authority. 10 61 Consent taken to be given unless Regulatory Authority intervenes 11 The Regulatory Authority is taken to have consented to the transfer of a 12 service approval if-- 13 (a) the parties have given a notification under section 59; and 14 (b) 28 days before the transfer is intended to take effect, the 15 Regulatory Authority has not notified the parties that it intends to 16 intervene under section 62. 17 62 Transfer may be subject to intervention by Regulatory Authority 18 (1) The Regulatory Authority may intervene in a transfer of a service 19 approval if the Regulatory Authority is concerned as to any of the 20 following matters-- 21 (a) whether the receiving approved provider is capable of operating 22 the education and care service having regard to its financial 23 capacity and management capability and any other matter the 24 Regulatory Authority considers relevant; 25 (b) the receiving approved provider's history of compliance with this 26 Law as applying in a participating jurisdiction, including in 27 relation to any other education and care service it operates; 28 (c) any other matter relevant to the transfer of the service approval. 29 (2) The Regulatory Authority must notify the transferring approved 30 provider and the receiving approved provider of the decision to 31 intervene. 32 (3) The notice must be given at least 28 days before the date on which the 33 transfer is intended to take effect. 34 (4) A notification under subsection (2) must-- 35 (a) be in writing; and 36 Page 41 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (b) include the prescribed information. 1 63 Effect of intervention 2 If the Regulatory Authority intervenes under section 62, the transfer 3 must not proceed unless and until the Regulatory Authority gives 4 written consent to the transfer. 5 64 Regulatory Authority may request further information 6 If the Regulatory Authority has intervened under section 62, the 7 Regulatory Authority may-- 8 (a) request further information from the transferring approved 9 provider or receiving approved provider for the purposes of 10 deciding whether to consent to the transfer; and 11 (b) undertake inquiries in relation to the receiving approved provider 12 for that purpose. 13 65 Decision after intervention 14 (1) If the Regulatory Authority has intervened under section 62, it may 15 decide-- 16 (a) to consent to the proposed transfer; or 17 (b) to refuse to consent to the proposed transfer. 18 (2) If the Regulatory Authority consents to the proposed transfer the 19 Regulatory Authority may impose conditions on the consent, including 20 specifying the date on which the proposed transfer is to take effect. 21 (3) The service approval must be transferred in accordance with the 22 conditions imposed on the consent. 23 66 Regulatory Authority to notify outcome 7 days before transfer 24 (1) If the Regulatory Authority has intervened in the transfer of a service 25 approval, the Authority must, at least 7 days before the date on which 26 the transfer is intended to take effect, give a notice to each party 27 specifying that the Authority-- 28 (a) consents to the transfer; or 29 (b) refuses to consent to the transfer; or 30 (c) has suspended further consideration of the transfer until further 31 information is received and that the transfer may not proceed 32 until a further notice is given under this section consenting to the 33 transfer; or 34 Page 42 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (d) has not yet made a decision on the transfer and that the 1 Regulatory Authority will make a decision on the transfer within 2 28 days and that the transfer may not proceed until a further 3 notice is given under this section consenting to the transfer. 4 (2) If the Regulatory Authority consents to the transfer, the notice-- 5 (a) must specify-- 6 (i) the date on which the transfer is to take effect; and 7 (ii) any conditions on the consent to the transfer; and 8 (b) may include notice of any condition that the Regulatory 9 Authority has imposed on the provider approval or a service 10 approval of the receiving approved provider because of the 11 transfer. 12 (3) If the Regulatory Authority refuses to consent to the transfer, the notice 13 must include the reasons for the refusal. 14 67 Transfer of service approval without consent is void 15 A transfer of a service approval is void if-- 16 (a) it is made without the consent of the Regulatory Authority; or 17 (b) it is made in contravention of the conditions imposed by the 18 Regulatory Authority on the consent to the transfer; or 19 (c) it is made to a person who is not the approved provider who gave 20 the notification under section 59 as the receiving approved 21 provider. 22 68 Confirmation of transfer 23 (1) The transferring approved provider and the receiving approved provider 24 must give written notice to the Regulatory Authority within 2 days after 25 the transfer takes effect specifying the date of the transfer. 26 Penalty: 27 $4000, in the case of an individual. 28 $20 000, in any other case. 29 (2) On receipt of a notice under this section, the Regulatory Authority must 30 amend the service approval and provide an amended copy of the service 31 approval to the receiving approved provider. 32 (3) The amendment to the service approval is taken to take effect on the 33 date of the transfer. 34 (4) An approved provider who gives notice under this section is not guilty 35 of an offence for a failure of any other person to give that notice. 36 Page 43 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 69 Notice to parents 1 (1) The receiving approved provider must give written notice to the parents 2 of children enrolled at an education and care service of the transfer of 3 the service approval for that service to that provider. 4 Penalty: 5 $3000, in the case of an individual. 6 $15 000, in any other case. 7 (2) The notice must be given at least 2 days before the date on which the 8 transfer of the service approval takes effect. 9 Division 4 Suspension or cancellation of service approval 10 70 Grounds for suspension of service approval 11 A Regulatory Authority may suspend a service approval if-- 12 (a) the Regulatory Authority reasonably believes that it would not be 13 in the best interests of children being educated and cared for by 14 the service for the service to continue; or 15 (b) a condition of the service approval has not been complied with; or 16 (c) the service is not being managed in accordance with this Law; or 17 (d) the service has operated at a rating level as not meeting the 18 National Quality Standard and-- 19 (i) a service waiver or temporary waiver does not apply to the 20 service in respect of that non-compliance; and 21 (ii) there has been no improvement in the rating level; or 22 (e) the approved provider has contravened this Law as applying in 23 any participating jurisdiction; or 24 (f) the approved provider has failed to comply with a direction, 25 compliance notice or emergency order under this Law as 26 applying in any participating jurisdiction in relation to the 27 service; or 28 (g) the approved provider has-- 29 (i) ceased to operate the education and care service at the 30 education and care service premises for which the service 31 approval was granted; and 32 (ii) within 6 months of ceasing to operate the service, has not 33 transferred the service to another approved provider; or 34 (h) the approved provider has not, within 6 months after being 35 granted a service approval, commenced ongoing operation of the 36 service; or 37 Page 44 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (i) the approved provider has not paid the prescribed annual fee for 1 the service approval. 2 71 Show cause notice before suspension 3 (1) This section applies if the Regulatory Authority is considering the 4 suspension of a service approval under section 70. 5 (2) The Regulatory Authority must first give the approved provider a notice 6 (show cause notice) stating-- 7 (a) that the Regulatory Authority intends to suspend the service 8 approval; and 9 (b) the proposed period of suspension; and 10 (c) the reasons for the proposed suspension; and 11 (d) that the approved provider may, within 30 days after the notice is 12 given, give the Regulatory Authority a written response to the 13 proposed suspension. 14 72 Decision in relation to suspension 15 After considering any written response from the approved provider 16 received within the time allowed by section 71(2)(d), the Regulatory 17 Authority may-- 18 (a) suspend the service approval for a period not more than the 19 prescribed period; or 20 (b) decide not to suspend the service approval. 21 73 Suspension of service approval without show cause 22 The Regulatory Authority may suspend the service approval without 23 giving the approved provider a show cause notice under section 71 if the 24 Regulatory Authority is satisfied that there is an immediate risk to the 25 safety, health or wellbeing of a child or children being educated and 26 cared for by the education and care service. 27 74 Notice and effect of decision 28 (1) The Regulatory Authority must give the approved provider written 29 notice of the decision to suspend. 30 (2) Subject to section 76, the decision under section 72 to suspend takes 31 effect at the end of 14 days after the date of the decision, or, if another 32 period is specified by the Regulatory Authority, at the end of that 33 period. 34 (3) Subject to section 76, the decision under section 73 to suspend takes 35 effect on the giving of the notice. 36 Page 45 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (4) The notice of a decision to suspend must set out-- 1 (a) the period of suspension; and 2 (b) the date on which it takes effect. 3 (5) A suspension of a service approval also suspends the service approval 4 to the extent that it relates to an associated children's service. 5 75 Suspension of service approval to the extent that it relates to associated 6 children's service 7 (1) If the Regulatory Authority considers that a service approval should be 8 suspended to the extent only that it applies to an associated children's 9 service, the Regulatory Authority must refer the matter to the children's 10 services regulator of this jurisdiction for determination under the 11 children's services law. 12 (2) The children's services regulator must notify the Regulatory Authority 13 if it proposes to conduct any investigation or inquiry into an associated 14 children's service under the children's services law. 15 (3) If a final determination is made under the children's services law of this 16 jurisdiction that a service approval should be suspended to the extent 17 that it relates to an associated children's service-- 18 (a) the children's services regulator must advise the Regulatory 19 Authority of that determination; and 20 (b) the service approval is suspended to the extent that it relates to the 21 associated children's service in accordance with that 22 determination. 23 76 Transfer of suspended service 24 (1) The Regulatory Authority may consent under this Part to the transfer of 25 a service approval that is suspended under section 72 or 73. 26 (2) The suspension of the service approval ceases on the transfer taking 27 effect, unless the conditions of the Regulatory Authority's consent to 28 the transfer otherwise provide. 29 77 Grounds for cancellation of service approval 30 A Regulatory Authority may cancel a service approval if-- 31 (a) the Regulatory Authority reasonably believes that the continued 32 operation of the education and care service would constitute an 33 unacceptable risk to the safety, health or wellbeing of any child 34 or class of children being educated and cared for by the education 35 and care service; or 36 Page 46 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) the service has been suspended under section 72 or 73 and the 1 reason for the suspension has not been rectified at or before the 2 end of the period of suspension; or 3 (c) the service approval was obtained improperly; or 4 (d) a condition of the service approval has not been complied with. 5 78 Show cause notice before cancellation 6 (1) This section applies if the Regulatory Authority is considering the 7 cancellation of a service approval under section 77. 8 (2) The Regulatory Authority must first give the approved provider a notice 9 (show cause notice) stating-- 10 (a) that the Regulatory Authority intends to cancel the service 11 approval; and 12 (b) the reasons for the proposed cancellation; and 13 (c) that the approved provider may, within 30 days after the notice is 14 given, give the Regulatory Authority a written response to the 15 proposed cancellation. 16 79 Decision in relation to cancellation 17 (1) After considering any written response from the approved provider 18 received within the time allowed by section 78(2)(c), the Regulatory 19 Authority-- 20 (a) may-- 21 (i) cancel the service approval; or 22 (ii) suspend the service approval for a period not more than the 23 prescribed period; or 24 (iii) decide not to cancel the service approval; and 25 (b) must give the approved provider written notice of the decision. 26 (2) Subject to section 81, the decision to cancel the service approval takes 27 effect-- 28 (a) at the end of 14 days after the date of the decision; or 29 (b) if another period is specified by the Regulatory Authority, at the 30 end of that period. 31 (3) The notice of a decision to cancel must set out the date on which it takes 32 effect. 33 (4) A cancellation of a service approval includes the cancellation of the 34 service approval to the extent that it relates to an associated children's 35 service. 36 Page 47 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (5) This Law applies to a suspension of a service approval under this 1 section as if it were a suspension under section 72. 2 80 Cancellation of service approval to the extent that it relates to associated 3 children's service 4 (1) If the Regulatory Authority considers that a service approval should be 5 cancelled to the extent only that it applies to an associated children's 6 service, the Regulatory Authority must refer the matter to the children's 7 services regulator of this jurisdiction for determination under the 8 children's services law. 9 (2) The children's services regulator must notify the Regulatory Authority 10 if it proposes to conduct any investigation or inquiry into an associated 11 children's service under the children's services law. 12 (3) If a final determination is made under the children's services law of this 13 jurisdiction that a service approval should be cancelled to the extent that 14 it relates to an associated children's service-- 15 (a) the children's services regulator must advise the Regulatory 16 Authority of that determination; and 17 (b) the service approval is cancelled to the extent that it relates to the 18 associated children's service in accordance with that 19 determination. 20 81 Application for transfer of cancelled service 21 (1) An approved provider may apply to the Regulatory Authority under this 22 Part for consent to transfer a service approval that is to be cancelled 23 under this Part. 24 (2) The application for consent to transfer must be made within 14 days 25 after the decision to cancel the service approval is made. 26 (3) If an application for consent to transfer is made, the cancellation of the 27 service approval does not take effect, and the service approval is 28 suspended, until the Regulatory Authority determines the application. 29 (4) An application cannot be made under this section for consent to transfer 30 a cancelled service approval if the cancellation relates only to an 31 associated children's service. 32 82 Decision on application to transfer cancelled service 33 (1) If the Regulatory Authority consents to the transfer-- 34 (a) the decision to cancel the service approval is revoked; and 35 (b) the suspension of the service approval ceases on the transfer 36 taking effect, unless the conditions imposed by the Regulatory 37 Page 48 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note Authority on the consent to the transfer specify a later date for the 1 suspension to cease. 2 (2) If the Regulatory Authority refuses to consent to the transfer, the service 3 approval is cancelled on the making of the decision to refuse to consent. 4 83 Approved provider to provide information to Regulatory Authority 5 (1) This section applies if a show cause notice has been given to an 6 approved provider under section 71 or 78. 7 (2) The approved provider, at the request of the Regulatory Authority, must 8 provide the Authority with the contact details of the parents of all 9 children enrolled at the education and care service. 10 (3) The Regulatory Authority may use the information provided under 11 subsection (2) solely to notify the parents of children enrolled at an 12 approved education and care service of a suspension or cancellation of 13 the service approval for the service. 14 84 Notice to parents of suspension or cancellation 15 (1) This section applies if a service approval has been suspended or 16 cancelled under section 72, 73, 79 or 81. 17 (2) The Regulatory Authority may require the approved provider to give 18 written notice of the suspension or cancellation and its effect to the 19 parents of children enrolled at the education and care service to which 20 the approval relates and any associated children's service. 21 (3) The approved provider must comply with a requirement made under 22 subsection (2). 23 Penalty: 24 $3000 in the case of an individual. 25 $15 000 in any other case. 26 85 Voluntary suspension of service approval 27 (1) An approved provider may apply to the Regulatory Authority for the 28 suspension of a service approval for a period of not more than 29 12 months. 30 (2) The application must-- 31 (a) be in writing; and 32 (b) include the prescribed information; and 33 (c) include payment of the prescribed fee. 34 (3) The Regulatory Authority may agree to the suspension, having regard 35 to whether the suspension is reasonable in the circumstances. 36 Page 49 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (4) The approved provider must, at least 14 days before making an 1 application under this section, notify the parents of children enrolled at 2 the education and care service and any associated children's service of 3 the intention to make the application. 4 (5) The Regulatory Authority must, within 30 days after the application is 5 made, decide whether or not to grant the application. 6 (6) If the Regulatory Authority decides to grant the application, the 7 suspension takes effect on a date agreed between the Regulatory 8 Authority and the approved provider. 9 86 Surrender of service approval 10 (1) An approved provider may surrender a service approval by written 11 notice to the Regulatory Authority. 12 (2) The notice must specify a date on which the surrender is intended to take 13 effect which must be-- 14 (a) after the notice is given; and 15 (b) after the end of the period of notice required under subsection (3). 16 (3) The approved provider must notify the parents of children enrolled at 17 the education and care service to which the approval relates and any 18 associated children's service of the intention to surrender the service 19 approval, at least 14 days before the surrender is intended to take effect. 20 (4) If a service approval is surrendered, the approval is cancelled on the date 21 specified in the notice. 22 Division 5 Application for service waiver 23 87 Application for service waiver for service 24 (1) An approved provider may apply to the Regulatory Authority for a 25 waiver from a requirement that an approved education and care service 26 comply with a prescribed element or elements of the National Quality 27 Standard and the national regulations as provided for in the national 28 regulations. 29 (2) A person who applies for a service approval may apply for a service 30 waiver under this section together with the application for the service 31 approval. 32 (3) The Regulatory Authority must not grant a service waiver to a person 33 who applies under subsection (2) unless the service approval is granted 34 to that person. 35 Page 50 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 88 Form of application 1 An application under section 87 must-- 2 (a) be in writing; and 3 (b) include the prescribed information; and 4 (c) include payment of the prescribed fee. 5 89 Powers of Regulatory Authority in considering application 6 For the purpose of determining an application under this Division, the 7 Regulatory Authority may-- 8 (a) ask the applicant to provide further information; and 9 (b) inspect the education and care service premises and the office of 10 the applicant. 11 90 Matters to be considered 12 In considering whether the grant of a service waiver is appropriate, the 13 Regulatory Authority may have regard to either or both of the 14 following-- 15 (a) whether the education and care service is able to meet the 16 prescribed element or elements of the National Quality Standard 17 and the national regulations by alternative means that satisfy the 18 objectives of those elements; 19 (b) any matters disclosed in the application that are relevant to the 20 application for the service waiver. 21 91 Decision on application 22 (1) On an application under this Division, the Regulatory Authority may 23 decide to grant the service waiver or refuse the application. 24 (2) Subject to subsection (3), the Regulatory Authority must notify the 25 applicant within 60 days after the application is made of the Authority's 26 decision on the application. 27 (3) If an application for a service waiver has been made together with an 28 application for service approval, the Regulatory Authority may notify 29 the applicant of the Authority's decision on the application at the same 30 time as the notice of the decision on the application for the service 31 approval. 32 (4) If a service waiver is granted, the Regulatory Authority must issue or 33 reissue the service approval specifying the element or elements of the 34 National Quality Standard and the national regulations to which the 35 service waiver applies. 36 Page 51 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 92 Revocation of service waiver 1 (1) The Regulatory Authority may, at its discretion, revoke a service 2 waiver. 3 (2) An approved provider may apply to the Regulatory Authority for the 4 revocation of a service waiver applying to any education and care 5 service that it operates. 6 (3) A revocation under this section takes effect at the end of the period 7 prescribed in the national regulations. 8 93 Effect of service waiver 9 While a service waiver is in force, the approved education and care 10 service is taken to comply with the element or elements of the National 11 Quality Standard and the national regulations that are specified in the 12 service waiver. 13 Division 6 Temporary waiver 14 94 Application for temporary waiver 15 An approved provider may apply to the Regulatory Authority for a 16 temporary waiver from a requirement that an approved education and 17 care service comply with any prescribed element or elements of the 18 National Quality Standard and the national regulations as provided for 19 in the national regulations. 20 95 Form of application 21 An application under section 94 must-- 22 (a) be in writing; and 23 (b) include the prescribed information; and 24 (c) include payment of the prescribed fee. 25 96 Regulatory Authority may seek further information 26 For the purpose of determining an application under this Division, the 27 Regulatory Authority may-- 28 (a) ask the applicant to provide further information; and 29 (b) inspect the education and care service premises and the office of 30 the applicant. 31 Page 52 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 97 Special circumstances 1 In considering whether the grant of a temporary waiver is appropriate, 2 the Regulatory Authority must have regard to whether special 3 circumstances disclosed in the application reasonably justify the grant 4 of the temporary waiver. 5 98 Decision on application 6 (1) The Regulatory Authority must notify the applicant within 60 days after 7 the application is made of the Authority's decision on the application. 8 (2) A temporary waiver must specify the period of the waiver which cannot 9 be for a period of more than 12 months. 10 (3) The Regulatory Authority, on the application of the approved provider, 11 may-- 12 (a) extend and further extend the period of a temporary waiver by 13 periods of not more than 12 months; and 14 (b) grant a further temporary waiver for an education and care 15 service under this Division. 16 (4) If the Regulatory Authority grants a temporary waiver, the Regulatory 17 Authority must issue or reissue the service approval specifying the 18 element or elements of the National Quality Standard and the national 19 regulations which have been temporarily waived and the period of the 20 waiver. 21 99 Revocation of temporary waiver 22 The Regulatory Authority may, at its discretion, revoke a temporary 23 waiver. 24 100 Effect of temporary waiver 25 While a temporary waiver is in force, the approved education and care 26 service is not required to comply with the element or elements of the 27 National Quality Standard and the national regulations that have been 28 temporarily waived. 29 Division 7 Exercise of powers by another Regulatory 30 Authority 31 101 Exercise of powers by another Regulatory Authority--family day care 32 services 33 (1) This section applies if the Regulatory Authority has granted a service 34 approval under this Part to an approved provider for a family day care 35 service. 36 Page 53 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (2) A Regulatory Authority of another participating jurisdiction may 1 exercise all the powers and perform all the functions of a Regulatory 2 Authority under this Part (except Division 3 or section 76, 81 or 82) in 3 respect of the service approval if the family day care service operates in 4 that participating jurisdiction. 5 (3) A Regulatory Authority (including the Regulatory Authority of this 6 jurisdiction) may only exercise a power to amend, suspend or cancel a 7 service approval after consulting with the Regulatory Authority of each 8 participating jurisdiction in which the family day care service operates. 9 (4) A failure by a Regulatory Authority to comply with subsection (3) does 10 not affect the validity of the exercise of the power. 11 (5) A cancellation or suspension of a service approval for a family day care 12 service in another participating jurisdiction has effect in this 13 jurisdiction. 14 Division 8 Associated children's services 15 102 Application of this Law to associated children's services 16 This Law does not apply to an associated children's service except as 17 expressly provided in this Law. 18 Division 9 Offences 19 103 Offence to provide an education and care service without service 20 approval 21 (1) A person must not provide an education and care service unless-- 22 (a) the person is an approved provider in respect of that service; and 23 (b) the education and care service is an approved education and care 24 service. 25 Penalty: 26 $20 000, in the case of an individual. 27 $100 000, in any other case. 28 (2) Subsection (1) does not apply to a family day care educator providing 29 education and care to children as part of an approved family day care 30 service. 31 Page 54 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 104 Offence to advertise education and care service without service 1 approval 2 (1) A person must not knowingly publish or cause to be published an 3 advertisement for an education and care service unless it is an approved 4 education and care service. 5 Penalty: 6 $6000, in the case of an individual. 7 $30 000, in any other case. 8 (2) Subsection (1) does not apply if an application for a service approval in 9 respect of the education and care service has been made under this Law 10 but has not been decided. 11 Part 4 Supervisor certificates 12 Division 1 Application for supervisor certificate 13 105 Purpose of supervisor certificate 14 A supervisor certificate makes the person to whom it is issued eligible 15 to be placed in day to day charge of an approved education and care 16 service. 17 106 Application for supervisor certificate 18 (1) A person may apply to the Regulatory Authority for a supervisor 19 certificate. 20 (2) An applicant must be an individual of or above the age of 18 years. 21 (3) An application must be made to the Regulatory Authority of the 22 participating jurisdiction in which the applicant is ordinarily resident or 23 intending to reside. 24 107 Form of application 25 An application under section 106 must-- 26 (a) be in writing signed by the applicant; and 27 (b) include the prescribed information; and 28 (c) include payment of the prescribed fee. 29 108 Applicant must satisfy Regulatory Authority of specified matters 30 (1) An applicant must satisfy the Regulatory Authority that the applicant-- 31 (a) is a fit and proper person to be a supervisor of an education and 32 care service; and 33 Page 55 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (b) meets the prescribed minimum requirements for qualifications, 1 experience and management capability. 2 (2) The following persons are taken, in the absence of evidence to the 3 contrary, to satisfy the requirements of subsection (1)(a)-- 4 (a) a person who is a registered teacher under an education law of a 5 participating jurisdiction; 6 (b) a person who holds a current working with children card under 7 the working with children law of a participating jurisdiction. 8 109 Matters to be taken into account in assessing whether fit and proper 9 person 10 (1) The Regulatory Authority, in determining whether it is satisfied that a 11 person is a fit and proper person under this Division, must have regard 12 to-- 13 (a) the history of the person's compliance with-- 14 (i) this Law as applying in any participating jurisdiction; and 15 (ii) a former education and care services law of a participating 16 jurisdiction; and 17 (iii) a children's services law of a participating jurisdiction; and 18 (iv) an education law of a participating jurisdiction; and 19 Note. If a person has been served with an infringement notice for an 20 offence under this Law, and the person has paid the penalty, the 21 Regulatory Authority cannot consider that conduct when determining 22 whether the person is fit and proper. See section 291(5). 23 (b) any decision under a former education and care services law, a 24 children's services law or an education law of a participating 25 jurisdiction to refuse, refuse to renew, suspend or cancel a 26 licence, approval, registration or certification or other 27 authorisation granted to the person under that law; and 28 (c) the working with children check for that person, or if there is no 29 working with children check for that person, any prescribed 30 matters relating to the criminal history of the person to the extent 31 that that history may affect the person's suitability for the role of 32 supervisor of an education and care service. 33 (2) Without limiting subsection (1), the Regulatory Authority may have 34 regard to whether the person has a medical condition that may affect the 35 person's capacity to be the supervisor of an education and care service. 36 (3) Nothing in subsection (1) or (2) limits the circumstances in which a 37 person may be considered not to satisfy the Regulatory Authority that 38 he or she is a fit and proper person to be a supervisor of an education 39 and care service. 40 Page 56 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 110 Regulatory Authority may seek further information 1 (1) For the purpose of carrying out an assessment as to whether a person is 2 a fit and proper person to hold a supervisor certificate, the Regulatory 3 Authority may-- 4 (a) ask the person in respect of whom the assessment is being carried 5 out to provide further information; and 6 (b) undertake inquiries or investigations in relation to the person in 7 respect of whom the assessment is being carried out. 8 (2) If the Regulatory Authority asks the applicant for further information 9 under this section, the period from the making of the request until the 10 provision of the further information is not included in the period 11 referred to in section 111 for the Regulatory Authority to make a 12 decision on the application. 13 111 Grant or refusal of supervisor certificate 14 (1) The Regulatory Authority may grant or refuse to grant a supervisor 15 certificate on an application under section 106. 16 Note. A supervisor certificate is granted subject to conditions in accordance 17 with section 115. 18 (2) Subject to subsection (3), the Regulatory Authority must make a 19 decision on the application within 60 days after the Regulatory 20 Authority received the application. 21 Note. If further information is requested under section 110(3), the period 22 between the making of the request and the provision of the information is not 23 included in the 60 day period. 24 (3) The period referred to in subsection (3) may be extended by up to 25 30 days with the agreement of the applicant. 26 (4) The Regulatory Authority is taken to have refused to grant a supervisor 27 certificate if the Regulatory Authority has not made a decision under 28 subsection (1)-- 29 (a) within the relevant time required under subsection (3); or 30 (b) within the period extended under subsection (4)-- 31 as the case requires. 32 112 Grounds for refusal 33 The Regulatory Authority must refuse to grant a supervisor certificate 34 if-- 35 (a) the Regulatory Authority is not satisfied that the applicant is a fit 36 and proper person to be the supervisor of an education and care 37 service; or 38 Page 57 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (b) the applicant is under the age of 18 years; or 1 (c) the Regulatory Authority is not satisfied that the applicant meets 2 the prescribed minimum requirements for qualifications, 3 experience and management capability. 4 113 Notice of decision on application 5 The Regulatory Authority must give written notice to the applicant of a 6 decision under section 111 and the reasons for the decision within 7 7 days after the decision is made. 8 114 Grant of supervisor certificate to specified classes of persons 9 (1) The Regulatory Authority may grant a supervisor certificate to a person 10 in a prescribed class of persons. 11 Note. A supervisor certificate is granted subject to conditions in accordance 12 with section 115. 13 (2) Sections 106 to 113 do not apply to the grant of a supervisor certificate 14 under this section. 15 115 Conditions on certificate 16 (1) A supervisor certificate is subject to any conditions imposed by-- 17 (a) this Law; or 18 (b) the Regulatory Authority. 19 (2) Without limiting subsection (1), a supervisor certificate is subject to the 20 condition that the certified supervisor must, to the extent that a matter is 21 within the supervisor's control, comply with this Law in relation to that 22 matter. 23 (3) Without limiting subsection (1), a supervisor certificate is subject to the 24 condition that the certified supervisor must notify the Regulatory 25 Authority of a change in his or her name or mailing address. 26 (4) A certified supervisor must comply with the conditions of the 27 supervisor certificate held by that person. 28 Penalty: $4000. 29 116 Issue of certificate 30 If the Regulatory Authority grants a supervisor certificate under 31 section 111 or 114, the Authority must issue a certificate containing the 32 following information to the applicant-- 33 (a) the name of the certified supervisor or the prescribed class of 34 person to which the certified supervisor belongs; 35 (b) any conditions imposed on the supervisor certificate; 36 Page 58 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (c) the date the supervisor certificate was granted; 1 (d) the certified supervisor number; 2 (e) any other prescribed information. 3 117 Effect of supervisor certificate 4 A person who is the holder of a supervisor certificate may-- 5 (a) be nominated as the nominated supervisor of an education and 6 care service; and 7 (b) be the responsible person present at the education and care 8 service premises in the absence of the approved provider or the 9 nominated supervisor. 10 Division 2 Reassessment 11 118 Reassessment of suitability 12 (1) The Regulatory Authority may at any time reassess whether a certified 13 supervisor is a fit and proper person to be a supervisor of an education 14 and care service. 15 (2) Sections 108, 109 and 110 apply to the reassessment. 16 Division 3 Amendment of supervisor certificate 17 119 Amendment of supervisor certificate on application 18 (1) A certified supervisor may apply to the Regulatory Authority for an 19 amendment of the supervisor certificate. 20 (2) The application must-- 21 (a) be in writing; and 22 (b) include the prescribed information; and 23 (c) include payment of the prescribed fee. 24 (3) The Regulatory Authority must decide the application by-- 25 (a) amending the supervisor certificate in the way applied for; or 26 (b) with the applicant's written agreement, amending the supervisor 27 certificate in another way; or 28 (c) refusing to amend the supervisor certificate. 29 (4) The Regulatory Authority must make a decision on the application 30 within 30 days after the Regulatory Authority receives the application. 31 Page 59 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (5) Without limiting subsection (3), an amendment may vary a condition of 1 the supervisor certificate or impose a new condition on the supervisor 2 certificate. 3 120 Amendment of supervisor certificate by Regulatory Authority 4 (1) The Regulatory Authority may amend a supervisor certificate at any 5 time. 6 (2) Without limiting subsection (1), an amendment may vary a condition of 7 the supervisor certificate or impose a new condition on the supervisor 8 certificate. 9 (3) The Regulatory Authority must give written notice to the certified 10 supervisor of the amendment. 11 (4) An amendment under this section has effect-- 12 (a) 14 days after the Regulatory Authority gives notice of the 13 amendment under subsection (3); or 14 (b) if another period is specified by the Regulatory Authority, at the 15 end of that period. 16 121 Notice of change of circumstances 17 (1) A certified supervisor must notify the Regulatory Authority of-- 18 (a) any change in the circumstances of the supervisor that affects-- 19 (i) a requirement under section 108 or 109; or 20 (ii) the information specified in the supervisor certificate 21 under section 116; or 22 (b) the suspension or cancellation of a working with children check, 23 working with children card or teacher registration held by the 24 certified supervisor; or 25 (c) any disciplinary proceedings in relation to the certified 26 supervisor under an education law of a participating jurisdiction. 27 Penalty: $4000. 28 (2) The notice must be given within 7 days after the change occurs. 29 122 Notice of change of information 30 If the certified supervisor notifies the Regulatory Authority of a change 31 in any of the information stated on the supervisor certificate, the 32 Regulatory Authority may amend the supervisor certificate to show the 33 correct information. 34 Page 60 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note Division 4 Suspension or cancellation of supervisor 1 certificate 2 123 Grounds for suspension or cancellation of supervisor certificate 3 The Regulatory Authority may suspend or cancel a supervisor 4 certificate-- 5 (a) if the Regulatory Authority is of the opinion that the certified 6 supervisor is no longer a fit and proper person to be a supervisor 7 of an education and care service; or 8 (b) if the certified supervisor fails to comply with a condition of the 9 supervisor certificate; or 10 (c) if the certified supervisor fails to comply with a requirement of 11 this Law as applying in any participating jurisdiction in relation 12 to a matter within the certified supervisor's control. 13 124 Show cause notice before suspension or cancellation 14 (1) This section applies if the Regulatory Authority is considering the 15 suspension or cancellation of a supervisor certificate under section 123. 16 (2) The Regulatory Authority must first give the certified supervisor a 17 notice (show cause notice) stating-- 18 (a) that the Regulatory Authority intends to suspend or cancel the 19 supervisor certificate; and 20 (b) the reasons for the proposed suspension or cancellation; and 21 (c) that the certified supervisor may, within 30 days after the notice 22 is given, give the Regulatory Authority a written response to the 23 proposed suspension or cancellation. 24 125 Decision in relation to suspension or cancellation 25 After considering any written response from the certified supervisor 26 received within the time allowed by section 124(2)(c) (if applicable), 27 the Regulatory Authority-- 28 (a) may-- 29 (i) suspend the supervisor certificate for a period not 30 exceeding the prescribed period; or 31 (ii) cancel the supervisor certificate; or 32 (iii) decide not to suspend or cancel the supervisor certificate; 33 and 34 (b) must give the certified supervisor notice of the decision. 35 Page 61 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 126 Suspension of supervisor certificate without show cause notice 1 The Regulatory Authority may suspend the supervisor certificate on a 2 ground referred to in section 123 without giving the supervisor a show 3 cause notice under section 124 if the Regulatory Authority is satisfied 4 that there is an immediate risk to the safety, health or wellbeing of a 5 child or children. 6 127 Notice and taking effect of suspension or cancellation 7 (1) The Regulatory Authority must give the certified supervisor written 8 notice of the decision to suspend or cancel the supervisor certificate 9 under section 125 or 126. 10 (2) The notice of a decision to suspend must set out-- 11 (a) the period of suspension; and 12 (b) the date on which it takes effect. 13 (3) The decision under section 125 to suspend or cancel takes effect at the 14 end of 14 days after the date of the decision, or, if another period is 15 specified by the Regulatory Authority, at the end of that period. 16 (4) The decision to suspend under section 126 takes effect on the giving of 17 the notice. 18 128 Suspension or cancellation of certain supervisor certificates 19 (1) If the teacher registration of a person is suspended, the supervisor 20 certificate of that person is suspended at the end of 14 days after that 21 suspension unless and until the Regulatory Authority has assessed the 22 person under section 109 as being a fit and proper person. 23 (2) If the teacher registration of a person is cancelled, the supervisor 24 certificate of that person is cancelled at the end of 14 days after that 25 cancellation unless the Regulatory Authority has assessed the person 26 under section 109 as being a fit and proper person. 27 (3) The supervisor certificate of a person is suspended immediately if the 28 working with children card of that person is suspended. 29 (4) The supervisor certificate of a person is cancelled immediately if the 30 working with children card of that person is cancelled. 31 129 Voluntary suspension of supervisor certificate 32 (1) A certified supervisor may apply to the Regulatory Authority for a 33 suspension of the supervisor certificate for a period of not more than 34 12 months. 35 Page 62 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (2) An application must-- 1 (a) be in writing; and 2 (b) include the prescribed information; and 3 (c) include payment of the prescribed fee. 4 (3) The Regulatory Authority may, by written notice, agree to the 5 suspension if the Authority is satisfied that it is reasonable in the 6 circumstances. 7 (4) The Regulatory Authority must, within 30 days after the application is 8 made, decide whether or not to grant the application. 9 (5) If the Regulatory Authority decides to grant the application, the 10 suspension takes effect on a date agreed between the Regulatory 11 Authority and the certified supervisor. 12 130 Surrender of a supervisor certificate by certified supervisor 13 (1) A certified supervisor may surrender the supervisor certificate by 14 written notice to the Regulatory Authority. 15 (2) On the surrender of the supervisor certificate, the certificate is 16 cancelled. 17 Division 5 Exercise of powers by another Regulatory 18 Authority 19 131 Exercise of powers by another Regulatory Authority 20 (1) This section applies if the Regulatory Authority has granted a 21 supervisor certificate under this Part. 22 (2) A Regulatory Authority of a participating jurisdiction may exercise all 23 of the powers and perform all the functions of the Regulatory Authority 24 under this Part in respect of the supervisor certificate if the certified 25 supervisor works as a certified supervisor in that jurisdiction. 26 (3) A Regulatory Authority (including the Regulatory Authority of this 27 jurisdiction) may only exercise a power referred to in subsection (2) 28 after consulting with the Regulatory Authority of each participating 29 jurisdiction in which the certified supervisor is currently working as a 30 nominated supervisor. 31 (4) A failure by a Regulatory Authority to comply with subsection (3) does 32 not affect the validity of the exercise of the power. 33 (5) A cancellation or suspension of a supervisor certificate in another 34 participating jurisdiction has effect in this jurisdiction. 35 Page 63 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law Division 6 Offence 1 132 Offence to act as supervisor without supervisor certificate 2 A person must not hold himself or herself out as being a certified 3 supervisor unless the person holds a supervisor certificate. 4 Penalty: $10 000. 5 Part 5 Assessments and ratings 6 Division 1 Assessment and rating 7 133 Assessment for rating purposes 8 (1) The Regulatory Authority that granted the service approval for an 9 education and care service may at any time assess the service in 10 accordance with the national regulations to determine whether and at 11 what rating level the service meets the National Quality Standard and 12 the requirements of the national regulations. 13 (2) Until an approved education and care service is first assessed under this 14 Part, it is taken to have the prescribed provisional rating. 15 134 Rating levels 16 (1) The rating levels for the purposes of this Law are the levels prescribed 17 by the national regulations. 18 (2) The highest rating level prescribed by the national regulations can only 19 be given by the National Authority under this Part. 20 135 Rating of approved education and care service 21 (1) After carrying out a rating assessment of an approved education and 22 care service, the Regulatory Authority must determine the rating level 23 (other than the highest rating level)-- 24 (a) for each quality area stated in the National Quality Standard; and 25 (b) for the overall rating of the service. 26 (2) In determining a rating level, the Regulatory Authority may have regard 27 to-- 28 (a) any information obtained in the rating assessment; and 29 (b) any information obtained in any monitoring or investigation of 30 the service under this Law; and 31 (c) the service's history of compliance with this Law as applying in 32 any participating jurisdiction; and 33 (d) any other prescribed information. 34 Page 64 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 136 Notice to approved education and care service of rating 1 (1) The Regulatory Authority must give written notice to the approved 2 provider of an approved education and care service of the outcome of 3 the rating assessment and the rating levels for that service determined 4 under section 135. 5 (2) The notice under subsection (1) must be given within 60 days-- 6 (a) after the completion of the assessment by an authorised officer 7 under Part 9 of the premises of the approved education and care 8 service for the purpose of the rating assessment; or 9 (b) if section 137 applies, after the end of the final period for review 10 of the applicable decision or action referred to in section 137(1). 11 (3) A rating level set out in the notice is to be a rating level for the education 12 and care service for the purposes of this Law unless a review of the 13 rating level is sought under Division 3 or 4. 14 137 Suspension of rating assessment 15 (1) This section applies in respect of a rating assessment of an approved 16 education and care service if the assessment has not been completed 17 and-- 18 (a) the provider approval or the service approval for the service is 19 suspended or cancelled; or 20 (b) a compliance notice has been given to the approved provider in 21 respect of the service; or 22 (c) a notice has been given under section 179 in respect of the 23 service; or 24 (d) an action has been taken under section 189 in respect of a child 25 or children being educated and cared for by the service. 26 (2) The Regulatory Authority must give the approved provider a written 27 notice stating that notice of the outcome of the rating assessment will be 28 given under section 136 within 60 days after-- 29 (a) the end of the final period for review of the decision or action 30 referred to in subsection (1); or 31 (b) if that review is sought, the determination of the review. 32 Division 2 Reassessment and re-rating 33 138 Regulatory Authority may reassess and re-rate approved education and 34 care service 35 The Regulatory Authority may at any time reassess an approved 36 education and care service or any aspect or element of an approved 37 Page 65 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law education and care service in accordance with the national regulations 1 to determine whether and at what rating level it meets the National 2 Quality Standard and the requirements of the national regulations for 3 the purpose of rating that service. 4 139 Application for reassessment and re-rating by approved provider 5 (1) An approved provider may apply to the Regulatory Authority for a 6 reassessment and re-rating of an approved education and care service or 7 any aspect or element of an approved education and care service which 8 is rateable against the National Quality Standard or the national 9 regulations. 10 (2) An application must-- 11 (a) be in writing; and 12 (b) include the prescribed information; and 13 (c) include payment of the prescribed fee. 14 (3) An application under this section can only be made once in every 2 year 15 period, unless the Regulatory Authority agrees otherwise. 16 140 Application of Division 1 17 Division 1 applies (with any necessary changes) to a reassessment and 18 re-rating of an approved education and care service or any aspect or 19 element of an approved education and care service under this Division. 20 Division 3 Review by Regulatory Authority 21 141 Review by Regulatory Authority 22 (1) This section applies to an approved provider that is given a notice under 23 section 136. 24 (2) The approved provider may ask the Regulatory Authority that 25 determined the rating levels to review the rating levels. 26 (3) A request must be made within 14 days after the approved provider 27 receives the notice. 28 (4) A request must-- 29 (a) be in writing; and 30 (b) set out the grounds on which review is sought; and 31 (c) be accompanied by the prescribed information; and 32 (d) include payment of the prescribed fee. 33 Page 66 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 142 Process for review 1 (1) The person who conducts a review of rating levels for an approved 2 education and care service for the Regulatory Authority must not be a 3 person who was involved in the assessment or rating of the service. 4 (2) The person conducting the review may ask the approved provider and 5 any person who was involved in the assessment or rating of the service 6 for further information. 7 (3) A review under this section must be conducted within 30 days after the 8 application for review is received. 9 (4) The period specified in subsection (3) may be extended by up to 10 30 days-- 11 (a) if a request for further information is made under subsection (2); 12 or 13 (b) by agreement between the approved provider and the Regulatory 14 Authority. 15 143 Outcome of review by Regulatory Authority 16 (1) Following a review under section 142, the Regulatory Authority may-- 17 (a) confirm the specific rating levels or the overall rating or both; or 18 (b) amend the specific rating levels or the overall rating or both. 19 (2) The Regulatory Authority must give the approved provider written 20 notice of the decision on the review within 30 days after the decision is 21 made. 22 (3) The notice must set out-- 23 (a) the rating levels and overall rating for the approved education and 24 care service; and 25 (b) the reasons for the decision. 26 (4) Unless an application is made under Division 4 for a review of the rating 27 levels, the rating levels set out in the notice are the rating levels for the 28 approved education and care service for the purposes of this Law. 29 Division 4 Review by Ratings Review Panel 30 Subdivision 1 Application for review 31 144 Application for further review by Ratings Review Panel 32 (1) This section applies if the Regulatory Authority has conducted a review 33 of any rating levels of an approved education and care service under 34 Division 3. 35 Page 67 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (2) The approved provider may apply to the National Authority for a further 1 review by a Ratings Review Panel of the rating levels confirmed or 2 amended by the Regulatory Authority under Division 3. 3 (3) An application may only be made on the ground that the Regulatory 4 Authority-- 5 (a) did not appropriately apply the prescribed processes for 6 determining a rating level; or 7 (b) failed to take into account or give sufficient weight to special 8 circumstances existing or facts existing at the time of the rating 9 assessment. 10 145 Form and time of application 11 (1) An application must be made under section 144 within 14 days after the 12 decision of the Regulatory Authority is received under Division 3. 13 (2) An application must-- 14 (a) be in writing; and 15 (b) include the prescribed information; and 16 (c) include payment of the prescribed fee. 17 (3) An application must not include information or evidence that was not 18 given to the Regulatory Authority for the purpose of a determination 19 under Division 1, 2 or 3. 20 (4) The National Authority must-- 21 (a) within 7 days after receipt of the application, give written notice 22 to the Regulatory Authority of an application under this Division 23 to review a determination of the Regulatory Authority; and 24 (b) invite the Regulatory Authority to make submissions to the 25 review. 26 Subdivision 2 Establishment of Ratings Review Panel 27 146 Establishment of Ratings Review Panel 28 (1) The Board must establish a Ratings Review Panel for the purposes of 29 conducting a review under this Division. 30 (2) The Panel is to consist of up to 3 members appointed by the Board. 31 (3) One of the members is to be appointed as chairperson. 32 (4) The members are to be appointed from the Review Panel pool 33 established under section 147. 34 Page 68 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 147 Review Panel pool 1 (1) The Board must establish a pool of persons to act as members of a 2 Ratings Review Panel. 3 (2) The pool may consist of persons nominated by the Regulatory 4 Authorities of each participating jurisdiction and the Commonwealth 5 Minister. 6 (3) Subject to subsection (4), the persons approved as members of the pool 7 must have expertise or expert knowledge in one or more of the 8 following areas-- 9 (a) early learning and development research or practice; 10 (b) law; 11 (c) a prescribed area. 12 (4) A member of staff of the National Authority may be approved as a 13 member of the pool. 14 148 Procedure of Panel 15 (1) Subject to this Law, the procedure of a Ratings Review Panel is in its 16 discretion. 17 (2) The chairperson of a Panel must convene meetings of the Panel. 18 (3) A Panel must keep minutes of its deliberations setting out-- 19 (a) the dates and duration of its deliberations; and 20 (b) its decisions on the review. 21 (4) The Panel must seek to make decisions by consensus. 22 (5) In the absence of a consensus, a decision of the Panel is a decision of the 23 majority of the members of the Panel. 24 (6) If a majority decision is not reached, the Panel is taken to have 25 confirmed the rating levels determined by the Regulatory Authority. 26 149 Transaction of business by alternative means 27 (1) A Ratings Review Panel may, if it thinks fit, transact any of its business 28 by the circulation of papers among all the members of the Panel for the 29 time being, and a resolution in writing approved in writing by a majority 30 of those members is taken to be a decision of the Panel. 31 (2) The Panel may, if it thinks fit, transact any of its business at a meeting 32 at which members (or some members) participate by telephone, 33 closed-circuit television or other means, but only if any member who 34 speaks on a matter before the meeting can be heard by the other 35 members. 36 Page 69 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) Papers may be circulated among the members for the purposes of 1 subsection (1) by facsimile, email or other transmission of the 2 information in the papers concerned. 3 Subdivision 3 Conduct of review 4 150 Conduct of review 5 (1) In conducting a review, the Ratings Review Panel may consider-- 6 (a) any documents or other information or plans, photographs or 7 video or other evidence available to the Regulatory Authority in 8 carrying out the rating assessment; and 9 (b) the approved provider's history of compliance with this Law as 10 applying in any participating jurisdiction; and 11 (c) the approved education and care service's history of compliance 12 with this Law as applying in any participating jurisdiction; and 13 (d) the application for review to the Regulatory Authority; and 14 (e) any submissions made by the approved provider to the review by 15 the Regulatory Authority; and 16 (f) the written findings on the review by the Regulatory Authority; 17 and 18 (g) the application for review to the Ratings Review Panel; and 19 (h) any written submissions or responses made to the Ratings 20 Review Panel by the approved provider; and 21 (i) any written submissions or responses made to the Ratings 22 Review Panel by the Regulatory Authority relating to the stated 23 grounds for review; and 24 (j) any advice received from the National Authority, at the request 25 of the Ratings Review Panel, about how the prescribed processes 26 for rating assessments are intended to be applied that is relevant 27 to the review. 28 (2) The Ratings Review Panel is not required to hold an oral hearing for a 29 review. 30 (3) The Ratings Review Panel may ask the Regulatory Authority to provide 31 in writing any information in relation to the assessment. 32 (4) The Ratings Review Panel may ask the approved provider for further 33 written information in relation to its application. 34 (5) The Ratings Review Panel must ensure that the approved provider is 35 provided with a copy of, and an opportunity to respond in writing to, any 36 documents, information or evidence provided to the Panel by the 37 Regulatory Authority. 38 Page 70 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 151 Decision on review by Ratings Review Panel 1 (1) Following a review, the Ratings Review Panel may-- 2 (a) confirm the rating levels determined by the Regulatory 3 Authority; or 4 (b) amend the rating levels. 5 (2) The Ratings Review Panel must make a decision on the review within 6 60 days after the application for review was made. 7 (3) The chairperson of the Panel may extend the period for the making of a 8 decision by a Ratings Review Panel if the chairperson considers there 9 are special circumstances that warrant that extension. 10 (4) The period for the making of a decision by a Ratings Review Panel may 11 be extended by agreement between the chairperson of the Panel and the 12 approved provider. 13 (5) The Ratings Review Panel must give the approved provider, the 14 Regulatory Authority and the National Authority written notice of the 15 decision on the review within 14 days after the decision is made setting 16 out its findings on each review ground. 17 (6) A rating level confirmed or amended on a review under this Division by 18 the Ratings Review Panel is the rating level for the approved education 19 and care service for the purposes of this Law. 20 Division 5 Awarding of highest rating 21 152 Application for highest rating 22 (1) An approved provider may apply to the National Authority for an 23 approved education and care service operated by that provider to be 24 assessed for the highest rating level for the education and care service if 25 the criteria determined by the National Authority are met. 26 (2) The highest rating level is an overall rating of the education and care 27 service. 28 (3) An application must-- 29 (a) be in writing; and 30 (b) include the prescribed information; and 31 (c) include payment of the prescribed fee. 32 (4) An application may be made only once every 3 years, unless the 33 National Authority determines otherwise in a particular case. 34 (5) An application may be made for the highest rating level only if the 35 current overall rating of the service is the second highest rating level. 36 Page 71 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 153 Assessment of education and care service 1 (1) The National Authority may determine and publish criteria that must be 2 met by approved education and care services in respect of the award of 3 the highest rating level. 4 (2) The Board must assess the approved education and care service in 5 accordance with the criteria published under subsection (1) to determine 6 whether the service meets the highest rating level in meeting the 7 National Quality Standard and the requirements of the national 8 regulations. 9 (3) The Board must ask for, and take into account, the advice of the 10 Regulatory Authority in carrying out the assessment. 11 (4) The advice of the Regulatory Authority may include-- 12 (a) previous rating assessments and ratings for the education and 13 care service; and 14 (b) information about the service's compliance history; and 15 (c) any other relevant information. 16 154 Board may seek information and documents 17 (1) The Board for the purposes of the rating assessment may-- 18 (a) ask the approved provider of the approved education and care 19 service for any information and documents; and 20 (b) make any inquiries it considers appropriate. 21 (2) If the Board asks the approved provider for further information and 22 documents under subsection (1), the period from the making of the 23 request until the provision of the further information and documents is 24 not included in the period referred to in section 155(2) for the Board to 25 make a decision on the application. 26 155 Decision on application 27 (1) After assessing the approved education and care service, the Board 28 must-- 29 (a) if it is satisfied that it is appropriate to do so, give the approved 30 education and care service the highest rating level; or 31 (b) otherwise refuse to give that rating. 32 (2) The Board must make its decision within 60 days after the application 33 is received. 34 Page 72 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (3) The period specified in subsection (2) may be extended by up to 1 30 days-- 2 (a) if a request for information and documents is made under 3 section 154; or 4 (b) by agreement between the approved provider and the Board. 5 (4) If the Board gives the highest rating level to an approved education and 6 care service, that rating becomes the rating level for that service. 7 (5) The highest rating level awarded to an approved education and care 8 service applies to that service for 3 years, unless sooner revoked. 9 156 Notice of decision 10 (1) The Board must give written notice of its decision under section 155 in 11 relation to an approved education and care service to-- 12 (a) the approved provider; and 13 (b) the Regulatory Authority. 14 (2) The notice must be given within 14 days of making the decision. 15 157 Reassessment of highest rating level 16 The Board may at any time reassess an approved education and care 17 service in accordance with section 153. 18 158 Revocation of highest rating level 19 The Board must revoke the highest rating level of an approved 20 education and care service if-- 21 (a) it determines that the service no longer meets the criteria for the 22 highest rating level; or 23 (b) the Regulatory Authority advises the Board that the overall rating 24 level of the education and care service has been determined to be 25 at a level that is lower than the second highest rating level. 26 159 Re-application for highest rating level 27 (1) An approved provider of an approved education and care service that 28 has been awarded the highest rating level may reapply for the award of 29 the highest rating level for the service. 30 (2) The application must be made within 90 days before the expiry of the 31 existing highest rating level for the approved education and care 32 service. 33 Page 73 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) The application must-- 1 (a) be in writing; and 2 (b) include the prescribed information; and 3 (c) include payment of the prescribed fee. 4 Division 6 Publication of rating levels 5 160 Publication of ratings 6 (1) The National Authority must publish the rating levels for an approved 7 education and care service in accordance with this section. 8 (2) The National Authority must publish any rating levels determined under 9 Division 1 or 2 at the end of the period for requesting a review of the 10 rating levels under Division 3 if no request for review is received in that 11 period. 12 (3) If a review by the Regulatory Authority is requested under Division 3, 13 the rating levels must be published at the end of the period for 14 requesting a further review of the rating under Division 4 if no request 15 for further review is received in that period. 16 (4) If a further review is requested under Division 4, the rating levels must 17 be published after the notification to the approved provider of the 18 decision on the review. 19 (5) The National Authority must publish notice of the giving of the highest 20 rating level to an approved education and care service under Division 5, 21 as soon as possible after the Regulatory Authority and the approved 22 provider are notified of the decision of the Board under that Division. 23 Part 6 Operating an education and care service 24 161 Offence to operate education and care service without nominated 25 supervisor 26 The approved provider of an education and care service must not 27 operate the service unless there is a nominated supervisor for that 28 service. 29 Penalty: 30 $5000, in the case of an individual. 31 $25 000, in any other case. 32 Page 74 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 162 Offence to operate education and care service unless responsible 1 person is present 2 (1) The approved provider of an education and care service must ensure 3 that one of the following persons is present at all times that the service 4 is educating and caring for children-- 5 (a) the approved provider, if the approved provider is an individual 6 or, in any other case, a person with management or control of an 7 education and care service operated by the approved provider; 8 (b) the nominated supervisor of the service; 9 (c) a certified supervisor who has been placed in day to day charge 10 of the service in accordance with the national regulations. 11 Penalty: 12 $5000, in the case of an individual. 13 $25 000, in any other case. 14 (2) This section does not apply to an approved family day care service. 15 163 Offence relating to appointment or engagement of family day care 16 co-ordinators 17 (1) The approved provider of a family day care service must ensure that at 18 all times one or more qualified persons are employed or engaged as 19 family day care co-ordinators of the family day care service-- 20 (a) to assist with the operation of the family day care service; and 21 (b) to support, monitor and train the family day care educators of that 22 service. 23 Penalty: 24 $5000, in the case of an individual. 25 $25 000, in any other case. 26 (2) A person is a qualified person under this section if the person has the 27 qualifications prescribed by the national regulations. 28 164 Offence relating to assistance to family day care educators 29 (1) The approved provider of a family day care service must ensure that, at 30 all times that a family day care educator is educating and caring for a 31 child as part of the service, one of the following persons is available to 32 provide support to the family day care educator-- 33 (a) the approved provider, if the approved provider is an individual, 34 or a person with management or control of the family day care 35 service, in any other case; 36 (b) the nominated supervisor of the service; 37 Page 75 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (c) a certified supervisor who has been placed in day to day charge 1 of the family day care service in accordance with the national 2 regulations. 3 Penalty: 4 $5000, in the case of an individual. 5 $25 000, in any other case. 6 (2) For the purposes of this section, the requirement to be available to 7 provide support to a family day care educator includes being available 8 to be contacted by telephone to provide advice and assistance to the 9 family day care educator. 10 165 Offence to inadequately supervise children 11 (1) The approved provider of an education and care service must ensure 12 that all children being educated and cared for by the service are 13 adequately supervised at all times that the children are in the care of that 14 service. 15 Penalty: 16 $10 000, in the case of an individual. 17 $50 000, in any other case. 18 (2) The nominated supervisor of an education and care service must ensure 19 that all children being educated and cared for by the service are 20 adequately supervised at all times that the children are in the care of that 21 service. 22 Penalty: $10 000. 23 (3) A family day care educator must ensure that any child being educated 24 and cared for by the educator as a part of a family day care service is 25 adequately supervised. 26 Penalty: $10 000. 27 166 Offence to use inappropriate discipline 28 (1) The approved provider of an education and care service must ensure 29 that no child being educated and cared for by the service is subjected 30 to-- 31 (a) any form of corporal punishment; or 32 (b) any discipline that is unreasonable in the circumstances. 33 Penalty: 34 $10 000, in the case of an individual. 35 $50 000, in any other case. 36 Page 76 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (2) The nominated supervisor of an education and care service must ensure 1 that no child being educated and cared for by the service is subjected 2 to-- 3 (a) any form of corporal punishment; or 4 (b) any discipline that is unreasonable in the circumstances. 5 Penalty: $10 000. 6 (3) A staff member of, or a volunteer at, an education and care service must 7 not subject any child being educated and cared for by the service to-- 8 (a) any form of corporal punishment; or 9 (b) any discipline that is unreasonable in the circumstances. 10 Penalty: $10 000. 11 (4) A family day care educator must not subject any child being educated 12 and cared for by the educator as part of a family day care service to-- 13 (a) any form of corporal punishment; or 14 (b) any discipline that is unreasonable in the circumstances. 15 Penalty: $10 000. 16 167 Offence relating to protection of children from harm and hazards 17 (1) The approved provider of an education and care service must ensure 18 that every reasonable precaution is taken to protect children being 19 educated and cared for by the service from harm and from any hazard 20 likely to cause injury. 21 Penalty: 22 $10 000, in the case of an individual. 23 $50 000, in any other case. 24 (2) A nominated supervisor of an education and care service must ensure 25 that every reasonable precaution is taken to protect children being 26 educated and cared for by the service from harm and from any hazard 27 likely to cause injury. 28 Penalty: $10 000. 29 (3) A family day care educator must ensure that every reasonable 30 precaution is taken to protect a child being educated and cared for as 31 part of a family day care service from harm and from any hazard likely 32 to cause injury. 33 Penalty: $10 000. 34 Page 77 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 168 Offence relating to required programs 1 (1) The approved provider of an education and care service must ensure 2 that a program is delivered to all children being educated and cared for 3 by the service that-- 4 (a) is based on an approved learning framework; and 5 (b) is delivered in a manner that accords with the approved learning 6 framework; and 7 (c) is based on the developmental needs, interests and experiences of 8 each child; and 9 (d) is designed to take into account the individual differences of each 10 child. 11 Penalty: 12 $4000, in the case of an individual. 13 $20 000, in any other case. 14 (2) A nominated supervisor of an education and care service must ensure 15 that a program is delivered to all children being educated and cared for 16 by the service that-- 17 (a) is based on an approved learning framework; and 18 (b) is delivered in a manner that accords with the approved learning 19 framework; and 20 (c) is based on the developmental needs, interests and experiences of 21 each child; and 22 (d) is designed to take into account the individual differences of each 23 child. 24 Penalty: $4000. 25 169 Offence relating to staffing arrangements 26 (1) An approved provider of an education and care service must ensure that, 27 whenever children are being educated and cared for by the service, the 28 relevant number of educators educating and caring for the children is no 29 less than the number prescribed for this purpose. 30 Penalty: 31 $10 000, in the case of an individual. 32 $50 000, in any other case. 33 (2) An approved provider of an education and care service must ensure that 34 each educator educating and caring for children for the service meets 35 Page 78 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note the qualification requirements relevant to the educator's role as 1 prescribed by the national regulations. 2 Penalty: 3 $10 000, in the case of an individual. 4 $50 000, in any other case. 5 (3) A nominated supervisor of an education and care service must ensure 6 that, whenever children are being educated and cared for by the service, 7 the relevant number of educators educating and caring for the children 8 is no less than the number prescribed for this purpose. 9 Penalty: $10 000. 10 (4) A nominated supervisor of an education and care service must ensure 11 that each educator educating and caring for children for the service 12 meets the qualification requirements relevant to the educator's role as 13 prescribed by the national regulations. 14 Penalty: $10 000. 15 (5) A family day care educator must ensure that the number of children 16 being educated and cared for by the family day care educator at any one 17 time is no more than the number prescribed for this purpose. 18 Penalty: $10 000. 19 (6) Subsections (1), (2), (3), (4) and (5) do not apply in respect of an 20 education and care service-- 21 (a) to the extent that it holds a temporary waiver under Division 6 of 22 Part 3 in respect of this requirement; or 23 (b) to the extent that it holds a service waiver under Division 5 of Part 24 3 in respect of this requirement. 25 (7) The National Authority may, on application, determine qualifications, 26 including foreign qualifications, to be equivalent to the qualifications 27 required by the national regulations. 28 (8) If a determination is made under subsection (7), any person holding the 29 qualification is to be taken to be qualified in accordance with the 30 national regulations. 31 170 Offence relating to unauthorised persons on education and care service 32 premises 33 (1) This section applies to an education and care service operating in a 34 participating jurisdiction that has a working with children law. 35 (2) The approved provider of the education and care service must ensure 36 that an unauthorised person does not remain at the education and care 37 service premises while children are being educated and cared for at the 38 Page 79 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law premises unless the person is under the direct supervision of an educator 1 or other staff member of the service. 2 Penalty: 3 $1000, in the case of an individual. 4 $5000, in any other case. 5 (3) The nominated supervisor of the education and care service must ensure 6 that an unauthorised person does not remain at the education and care 7 service premises while children are being educated and cared for at the 8 premises unless the person is under the direct supervision of an educator 9 or other staff member of the service. 10 Penalty: $1000. 11 (4) A family day care educator must ensure that an unauthorised person 12 does not remain at the residence or approved family day care venue at 13 which the educator is educating and caring for a child as part of a family 14 day care service unless the unauthorised person is under the direct 15 supervision of the educator. 16 Penalty: $1000. 17 (5) In this section-- 18 authorised nominee, in relation to a child, means a person who has been 19 given permission by a parent or family member of the child to collect 20 the child from the education and care service or the family day care 21 educator; 22 unauthorised person means a person who is not-- 23 (a) a person who holds a current working with children check or 24 working with children card; or 25 (b) a parent or family member of a child who is being educated and 26 cared for by the education and care service or the family day care 27 educator; or 28 (c) an authorised nominee of a parent or family member of a child 29 who is being educated and cared for by the education and care 30 service or the family day care educator; or 31 (d) in the case of an emergency, medical personnel or emergency 32 service personnel; or 33 (e) a person who is permitted under the working with children law of 34 this jurisdiction to remain at the education and care service 35 premises without holding a working with children check or a 36 working with children card. 37 Page 80 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (6) A reference in subsection (5) to a parent or family member of a child 1 does not include a person-- 2 (a) whose access to the child is prohibited or restricted by an order of 3 a court or tribunal of which the approved provider, nominated 4 supervisor or family day care educator (as the case requires) is 5 aware; or 6 (b) who is an inappropriate person within the meaning of 7 section 171. 8 171 Offence relating to direction to exclude inappropriate persons from 9 education and care service premises 10 (1) The Regulatory Authority may direct an approved provider, a 11 nominated supervisor or a family day care educator to exclude a person 12 whom the Authority is satisfied is an inappropriate person from the 13 education and care service premises while children are being educated 14 and cared for at the premises for such time as the Authority considers 15 appropriate. 16 (2) A person to whom a direction is given under subsection (1) must 17 comply with the direction. 18 Penalty: 19 $10 000, in the case of an individual. 20 $50 000, in any other case. 21 (3) In this section-- 22 inappropriate person means a person-- 23 (a) who may pose a risk to the safety, health or wellbeing of any child 24 or children being educated and cared for by the education and 25 care service; or 26 (b) whose behaviour or state of mind or whose pattern of behaviour 27 or common state of mind is such that it would be inappropriate 28 for him or her to be on the education and care service premises 29 while children are being educated and cared for by the education 30 and care service. 31 Example. A person who is under the influence of drugs or alcohol. 32 172 Offence to fail to display prescribed information 33 An approved provider of an education and care service must ensure that 34 the prescribed information about the following is positioned so that it is 35 clearly visible to anyone from the main entrance to the education and 36 care service premises-- 37 (a) the provider approval; 38 (b) the service approval; 39 Page 81 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (c) the nominated supervisor or the prescribed class of persons to 1 which the nominated supervisor belongs; 2 (d) the rating of the service; 3 (e) any service waivers or temporary waivers held by the service; 4 (f) any other prescribed matters. 5 Penalty: 6 $3000, in the case of an individual. 7 $15 000, in any other case. 8 173 Offence to fail to notify certain circumstances to Regulatory Authority 9 (1) An approved provider must notify the Regulatory Authority of the 10 following in relation to the approved provider or each approved 11 education and care service operated by the approved provider-- 12 (a) a change in the name of the approved provider; 13 (b) any appointment or removal of a person with management or 14 control of an education and care service operated by the approved 15 provider; 16 (c) a failure to commence operating an education and care service 17 within 6 months (or within the time agreed with the Regulatory 18 Authority) after being granted a service approval for the service. 19 Penalty: 20 $4000, in the case of an individual. 21 $20 000, in any other case. 22 (2) An approved provider must notify the Regulatory Authority of the 23 following in relation to an approved education and care service operated 24 by the approved provider-- 25 (a) if the approved provider is notified of the suspension or 26 cancellation of a working with children card or teacher 27 registration of, or disciplinary proceedings under an education 28 law of a participating jurisdiction in respect of, a nominated 29 supervisor or certified supervisor engaged by the service; 30 (b) if a nominated supervisor of an approved education and care 31 service ceases to be employed or engaged by the service or 32 withdraws consent to the nomination; 33 (c) any proposed change to the education and care service premises 34 of an approved education and care service (other than a family 35 day care residence); 36 (d) ceasing to operate the education and care service; 37 Page 82 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (e) in the case of an approved family day care service, a change in 1 the location of the principal office of the service; 2 (f) an intention to transfer a service approval, as required under 3 section 59. 4 Penalty: 5 $4000, in the case of an individual. 6 $20 000, in any other case. 7 (3) A notice under subsection (1) must be in writing and be provided within 8 the relevant prescribed time to the Regulatory Authority that granted the 9 provider approval. 10 (4) A notice under subsection (2) must be in writing and be provided within 11 the relevant prescribed time to-- 12 (a) the Regulatory Authority that granted the service approval for the 13 education and care service to which the notice relates; and 14 (b) in the case of a family day care service, the Regulatory Authority 15 in each participating jurisdiction in which the family day care 16 service operates. 17 174 Offence to fail to notify certain information to Regulatory Authority 18 (1) An approved provider must notify the Regulatory Authority of the 19 following information in relation to the approved provider or each 20 approved education and care service operated by the approved 21 provider-- 22 (a) any change relevant to whether the approved provider is a fit and 23 proper person to be involved in the provision of an education and 24 care service; 25 (b) information in respect of any other prescribed matters. 26 Penalty: 27 $4000, in the case of an individual. 28 $20 000, in any other case. 29 (2) An approved provider must notify the Regulatory Authority of the 30 following information in relation to an approved education and care 31 service operated by the approved provider-- 32 (a) any serious incident at the approved education and care service; 33 (b) complaints alleging-- 34 (i) that the safety, health or wellbeing of a child or children 35 was or is being compromised while that child or children 36 is or are being educated and cared for by the approved 37 education and care service; or 38 Page 83 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (ii) that this Law has been contravened; 1 (c) information in respect of any other prescribed matters. 2 Penalty: 3 $4000, in the case of an individual. 4 $20 000, in any other case. 5 (3) A notice under subsection (1) must be in writing and be provided within 6 the relevant prescribed time to the Regulatory Authority that granted the 7 provider approval. 8 (4) A notice under subsection (2) must be in writing and be provided within 9 the relevant prescribed time to-- 10 (a) the Regulatory Authority that granted the service approval for the 11 education and care service to which the notice relates; and 12 (b) in the case of a family day care service, the Regulatory Authority 13 in each participating jurisdiction in which the family day care 14 service operates. 15 (5) In this section-- 16 serious incident means an incident or class of incidents prescribed by 17 the national regulations as a serious incident. 18 175 Offence relating to requirement to keep enrolment and other documents 19 (1) An approved provider of an education and care service must keep the 20 prescribed documents available for inspection by an authorised officer 21 in accordance with this section. 22 Penalty: 23 $4000, in the case of an individual. 24 $20 000, in any other case. 25 (2) Documents referred to in subsection (1)-- 26 (a) must, to the extent practicable, be kept at the education and care 27 service premises if they relate to-- 28 (i) the operation of the service; or 29 (ii) any staff member employed or engaged by the service; or 30 (iii) any child cared for, or educated at, those premises-- 31 in the previous 12 months; and 32 (b) in any other case, must be kept at a place, and in a manner, that 33 they are readily accessible by an authorised officer. 34 Page 84 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (3) A family day care educator who educates and cares for a child at a 1 residence or approved family day care venue, as part of a family day 2 care service, must keep the prescribed documents available for 3 inspection by an authorised officer at that residence or venue. 4 Penalty: $4000. 5 Part 7 Compliance with this Law 6 Division 1 Notices 7 176 Compliance directions 8 (1) This section applies if the Regulatory Authority is satisfied that an 9 education and care service has not complied with a provision of this 10 Law that is prescribed by the national regulations. 11 (2) The Regulatory Authority may give the approved provider a written 12 direction (a compliance direction) requiring the approved provider to 13 take the steps specified in the direction to comply with that provision. 14 (3) An approved provider must comply with a direction under 15 subsection (2) within the period (being not less than 14 days) specified 16 in the direction. 17 Penalty: 18 $2000, in the case of an individual. 19 $10 000, in any other case. 20 177 Compliance notices 21 (1) This section applies if the Regulatory Authority is satisfied that an 22 education and care service is not complying with any provision of this 23 Law. 24 (2) The Regulatory Authority may give the approved provider a notice (a 25 compliance notice) requiring the approved provider to take the steps 26 specified in the notice to comply with that provision. 27 (3) An approved provider must comply with a compliance notice under 28 subsection (2) within the period (being not less than 14 days) specified 29 in the notice. 30 Penalty: 31 $6000, in the case of an individual. 32 $30 000, in any other case. 33 Page 85 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 178 Notice to suspend education and care by a family day care educator 1 (1) This section applies if the Regulatory Authority is satisfied that because 2 of the conduct of, or the inadequacy of the service provided by, a family 3 day care educator engaged by or registered with a family day care 4 service-- 5 (a) the approved provider or the nominated supervisor of an 6 approved family day care service is not complying with any 7 provision of this Law; or 8 (b) there is a risk to the safety, health or wellbeing of children being 9 educated and cared for by the family day care educator. 10 (2) The Regulatory Authority may give the approved provider, the 11 nominated supervisor (if applicable) and the educator a notice (show 12 cause notice) stating-- 13 (a) that the Regulatory Authority intends to give the approved 14 provider a notice directing the provider to suspend the provision 15 of education and care by the educator; and 16 (b) the reasons for the proposed direction; and 17 (c) that the approved provider, nominated supervisor or educator, (as 18 the case requires) may, within 14 days after the show cause notice 19 is given, make submissions to the Regulatory Authority in 20 respect of the proposed direction. 21 (3) The show cause notice must be served by delivering it personally to the 22 family day care educator. 23 (4) The Regulatory Authority-- 24 (a) must consider any submissions from the approved provider, the 25 nominated supervisor and the family day care educator received 26 within the time allowed by subsection (2)(c); and 27 (b) may consider any other submissions and any matters the 28 Regulatory Authority considers relevant; and 29 (c) may-- 30 (i) give the approved provider a notice directing the provider 31 to suspend the provision of education and care of children 32 by the family day care educator; or 33 (ii) decide not to give that direction. 34 (5) The Regulatory Authority must give the family day care educator a 35 notice of the decision under subsection (4). 36 (6) If the Regulatory Authority decides not to give the direction to suspend, 37 the Regulatory Authority must give the approved provider notice of the 38 decision. 39 Page 86 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (7) A person must comply with a direction under subsection (4). 1 Penalty: 2 $6000, in the case of an individual. 3 $30 000, in any other case. 4 179 Emergency action notices 5 (1) This section applies if the Regulatory Authority is satisfied that an 6 education and care service is operating in a manner that poses, or is 7 likely to pose, an immediate risk to the safety, health or wellbeing of a 8 child or children being educated and cared for by the service. 9 (2) The Regulatory Authority may, by written notice, direct the approved 10 provider of the education and care service to take the steps specified in 11 the notice to remove or reduce the risk within the time (not more than 12 14 days) specified in the notice. 13 (3) An approved provider must comply with a direction given under 14 subsection (2). 15 Penalty: 16 $6000, in the case of an individual. 17 $30 000, in any other case. 18 Division 2 Enforceable undertakings 19 180 Enforceable undertakings 20 (1) This section applies if a person has contravened, or if the Regulatory 21 Authority alleges a person has contravened, a provision of this Law. 22 (2) The Regulatory Authority may accept a written undertaking from the 23 person under which the person undertakes to take certain actions, or 24 refrain from taking certain actions, to comply with this Law. 25 (3) A person may with the consent of the Regulatory Authority withdraw or 26 amend an undertaking. 27 (4) The Regulatory Authority may withdraw its acceptance of the 28 undertaking at any time and the undertaking ceases to be in force on that 29 withdrawal. 30 (5) While an undertaking is in force, proceedings may not be brought for 31 any offence constituted by the contravention or alleged contravention in 32 respect of which the undertaking is given. 33 (6) If a person complies with the requirements of an undertaking, no further 34 proceedings may be brought for any offence constituted by the 35 Page 87 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law contravention or alleged contravention in respect of which the 1 undertaking was given. 2 (7) The Regulatory Authority may publish on the Regulatory Authority's 3 website an undertaking accepted under this section. 4 181 Failure to comply with enforceable undertakings 5 (1) If the Regulatory Authority considers that the person who gave an 6 undertaking under section 180 has failed to comply with any of its 7 terms, the Regulatory Authority may apply to the relevant tribunal or 8 court for an order under subsection (2) to enforce the undertaking. 9 (2) If the relevant tribunal or court is satisfied that the person has failed to 10 comply with a term of the undertaking, the relevant tribunal or court 11 may make any of the following orders-- 12 (a) an order directing the person to comply with that term of the 13 undertaking; 14 (b) an order that the person take any specified action for the purpose 15 of complying with the undertaking; 16 (c) any other order that the relevant tribunal or court considers 17 appropriate in the circumstances. 18 (3) If the relevant tribunal or court determines that the person has failed to 19 comply with a term of the undertaking, proceedings may be brought for 20 any offence constituted by the contravention or alleged contravention in 21 respect of which the undertaking was given. 22 Division 3 Prohibition notices 23 182 Grounds for issuing prohibition notice 24 (1) The Regulatory Authority may give a prohibition notice to a person who 25 is in any way involved in the provision of an approved education and 26 care service if it considers that there may be an unacceptable risk of 27 harm to a child or children if the person were allowed-- 28 (a) to remain on the education and care service premises; or 29 (b) to provide education and care to children. 30 (2) For the purposes of subsection (1), a person may be involved in the 31 provision of an approved education and care service as any of the 32 following-- 33 (a) an approved provider; 34 (b) a certified supervisor; 35 (c) an educator; 36 (d) a family day care educator; 37 Page 88 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (e) an employee; 1 (f) a contractor; 2 (g) a volunteer-- 3 or in any other capacity. 4 183 Show cause notice to be given before prohibition notice 5 (1) Before giving a person a prohibition notice, the Regulatory Authority 6 must give the person a notice (a show cause notice)-- 7 (a) stating that the Regulatory Authority proposes to give the person 8 a prohibition notice; and 9 (b) stating the reasons for the proposed prohibition; and 10 (c) inviting the person to make a written submission to the 11 Regulatory Authority, within a stated time of at least 14 days, 12 about the proposed prohibition. 13 (2) Subsection (1) does not apply if the Regulatory Authority is satisfied it 14 is necessary, in the interests of the safety, health or wellbeing of a child 15 or children, to immediately issue a prohibition notice to the person. 16 184 Deciding whether to issue prohibition notice 17 (1) If the Regulatory Authority gives a show cause notice under section 183 18 to a person, the Regulatory Authority must have regard to any written 19 submission received from the person within the time stated in the show 20 cause notice before deciding whether to give the person a prohibition 21 notice. 22 (2) If the Regulatory Authority decides not to issue a prohibition notice to 23 the person, the Regulatory Authority must give the person notice of the 24 decision. 25 185 Content of prohibition notice 26 A prohibition notice given to a person must state-- 27 (a) that the person is prohibited from doing any of the following-- 28 (i) providing education and care to children for an education 29 and care service; 30 (ii) being engaged as a supervisor, educator, family day care 31 educator, employee, contractor or staff member of, or 32 being a volunteer at, an education and care service; 33 (iii) carrying out any other activity relating to education and 34 care services; and 35 (b) that the person may apply for cancellation of the notice; and 36 (c) how an application for cancellation must be made. 37 Page 89 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 186 Cancellation of prohibition notice 1 (1) If the Regulatory Authority is satisfied there is not a sufficient reason 2 for a prohibition notice to remain in force for a person, the Regulatory 3 Authority must cancel the prohibition notice and give the person notice 4 of the cancellation. 5 (2) A person for whom a prohibition notice is in force may apply to the 6 Regulatory Authority to cancel the notice. 7 (3) The application must-- 8 (a) be in writing; and 9 (b) include the prescribed information; and 10 (c) be signed by the person. 11 (4) The person may state in the application anything the person considers 12 relevant to the Regulatory Authority's decision about whether there 13 would be an unacceptable risk of harm to children if the person were-- 14 (a) to remain at the education and care service premises; or 15 (b) to provide education and care to children. 16 (5) The application may include a statement setting out any change in the 17 person's circumstances since the prohibition notice was given or since 18 any previous application under this section that would warrant the 19 cancellation of the notice. 20 (6) The Regulatory Authority must decide the application as soon as 21 practicable after its receipt. 22 187 Person must not contravene prohibition notice 23 While a prohibition notice is in force under this Law as applying in any 24 participating jurisdiction for a person, the person must not-- 25 (a) provide education and care to children for an education and care 26 service; or 27 (b) be engaged as a supervisor, educator, family day care educator, 28 employee, contractor or staff member of, or perform volunteer 29 services for, an education and care service; or 30 (c) carry out any other activity relating to education and care 31 services. 32 Penalty: $20 000. 33 188 Offence to engage person to whom prohibition notice applies 34 An approved provider must not engage a person as a supervisor, 35 educator, family day care educator, employee, contractor or staff 36 member of, or allow a person to perform volunteer services for, an 37 Page 90 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note education and care service if the provider knows, or ought reasonably to 1 know, a prohibition notice is in force under this Law as applying in any 2 participating jurisdiction in respect of the person. 3 Penalty: 4 $20 000, in the case of an individual. 5 $100 000, in any other case. 6 Division 4 Emergency removal of children 7 189 Emergency removal of children 8 (1) This section applies if the Regulatory Authority considers, on 9 reasonable grounds, that there is an immediate danger to the safety or 10 health of a child or children being educated and cared for by an 11 education and care service. 12 (2) The Regulatory Authority may remove, or cause the removal of, the 13 child or children from the education and care service premises. 14 (3) In exercising a power under subsection (2)-- 15 (a) the Regulatory Authority may be given such assistance by other 16 persons (including police officers) as is reasonably required; and 17 (b) the Regulatory Authority and any person assisting the Regulatory 18 Authority may-- 19 (i) enter the education and care service premises, without 20 warrant; and 21 (ii) use reasonable force as necessary. 22 (4) If a child is removed from the education and care service premises under 23 subsection (2), the Regulatory Authority must ensure that the child's 24 parents are immediately notified of the situation and the child's current 25 location. 26 Part 8 Review 27 Division 1 Internal review 28 190 Reviewable decision--internal review 29 A reviewable decision for internal review is a decision of the 30 Regulatory Authority under this Law as applying in any participating 31 jurisdiction-- 32 (a) to refuse to grant a provider approval, a service approval or a 33 supervisor certificate; or 34 Page 91 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (b) to amend or refuse to amend a provider approval, a service 1 approval or a supervisor certificate; or 2 (c) to impose a condition on a provider approval, a service approval 3 or a supervisor certificate; or 4 (d) to suspend-- 5 (i) a provider approval under section 28; 6 (ii) a service approval under section 73; 7 (iii) a supervisor certificate under section 126; or 8 (e) to refuse to consent to the transfer of a service approval; or 9 (f) to revoke a service waiver; or 10 (g) to issue a compliance direction; or 11 (h) to issue a compliance notice. 12 191 Internal review of reviewable decisions 13 (1) A person who is the subject of a reviewable decision for internal review 14 may apply to the Regulatory Authority in writing for review of the 15 decision. 16 (2) An application under subsection (1) must be made-- 17 (a) within 14 days after the day on which the person is notified of the 18 decision; or 19 (b) if the person is not notified of the decision, within 14 days after 20 the person becomes aware of the decision. 21 (3) The person who conducts the review for the Regulatory Authority must 22 not be a person who was involved in the assessment or investigation of 23 the person or service to whom or which the decision relates. 24 (4) The person conducting the review may ask the person who applied for 25 the review for further information. 26 (5) A review under this section must be conducted within 30 days after the 27 application is made. 28 (6) The period specified in subsection (5) may be extended by up to 29 30 days-- 30 (a) if a request for further information is made under subsection (4); 31 or 32 (b) by agreement between the person who applied for the review and 33 the Regulatory Authority. 34 Page 92 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (7) The Regulatory Authority may, in relation to an application under 1 subsection (1)-- 2 (a) confirm the decision; or 3 (b) make any other decision that the Regulatory Authority thinks 4 appropriate. 5 Division 2 External review 6 192 Reviewable decision--external review 7 A reviewable decision for external review is-- 8 (a) a decision of the Regulatory Authority made under section 191 9 (other than a decision in relation to the issue of a compliance 10 direction or a compliance notice); or 11 (b) a decision of the Regulatory Authority under this Law as 12 applying in any participating jurisdiction-- 13 (i) to suspend a provider approval under section 27; or 14 (ii) to cancel a provider approval under section 33; or 15 (iii) to suspend a service approval under section 72; or 16 (iv) to cancel a service approval under section 79 or 307; or 17 (v) to suspend or cancel a supervisor certificate under 18 section 125; or 19 (vi) to direct the approved provider of a family day care service 20 to suspend the care and education of children by a family 21 day care educator; or 22 (vii) to give a prohibition notice or to refuse to cancel a 23 prohibition notice. 24 Note. A person is not entitled to a review under this section in respect of a 25 suspension or cancellation of a service approval if that suspension or 26 cancellation relates only to an associated children's service. Any right of review 27 would be under the children's services law. 28 193 Application for review of decision of the Regulatory Authority 29 (1) A person who is the subject of a reviewable decision for external review 30 may apply to the relevant tribunal or court for a review of the decision. 31 (2) An application must be made within 30 days after the day on which the 32 applicant is notified of the decision that is to be reviewed. 33 (3) After hearing the matter, the relevant tribunal or court may-- 34 (a) confirm the decision of the Regulatory Authority; or 35 (b) amend the decision of the Regulatory Authority; or 36 Page 93 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (c) substitute another decision for the decision of the Regulatory 1 Authority. 2 (4) In determining any application under this section, the relevant tribunal 3 or court may have regard to any decision under this Law as applying in 4 another participating jurisdiction of a relevant tribunal or court of that 5 jurisdiction. 6 Division 3 General 7 194 Relationship with Act establishing administrative body 8 This Part applies despite any provision to the contrary in the Act that 9 establishes the relevant tribunal or court but does not otherwise limit 10 that Act. 11 Part 9 Monitoring and enforcement 12 Division 1 Authorised officers 13 195 Authorisation of authorised officers 14 (1) The Regulatory Authority may authorise any person who the 15 Regulatory Authority is satisfied is an appropriate person to be an 16 authorised officer for the purposes of this Law. 17 (2) In considering whether a person is an appropriate person to be an 18 authorised officer, the Regulatory Authority must take into account the 19 requirements for the authorisation of authorised officers determined by 20 the National Authority under subsection (5). 21 (3) An authorised officer holds office on any terms and conditions stated in 22 the authorisation. 23 (4) A defect in the authorisation of an authorised officer does not affect the 24 validity of any action taken or decision made by the authorised officer 25 under this Law. 26 (5) The National Authority may determine the requirements for the 27 authorisation of authorised officers under this section. 28 (6) A determination under subsection (5) must be published on the website 29 of the National Authority. 30 196 Identity card 31 (1) The Regulatory Authority must issue to each authorised officer an 32 identity card in the form prescribed by the national regulations. 33 Page 94 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (2) The identity card must identify the authorised officer as an authorised 1 officer authorised by the Regulatory Authority under this Law. 2 (3) An authorised officer must-- 3 (a) carry the identity card whenever the officer is exercising his or 4 her functions under this Law; and 5 (b) show the identity card-- 6 (i) before exercising a power of entry under this Law; and 7 (ii) at any time during the exercise of a power under this Law 8 when asked to do so. 9 Penalty: $1000. 10 (4) An authorised officer who fails to comply with subsection (3)(b) in 11 relation to the exercise of a power ceases to be authorised to exercise the 12 power in relation to the matter. 13 (5) An authorised officer must return his or her identity card to the 14 Regulatory Authority on ceasing to be authorised as an authorised 15 officer for the purposes of this Law. 16 Penalty: $1000. 17 Division 2 Powers of entry 18 197 Powers of entry for assessing and monitoring approved education and 19 care service 20 (1) An authorised officer may exercise a power under this section for any 21 of the following purposes-- 22 (a) monitoring compliance with this Law; 23 (b) a rating assessment of an approved education and care service 24 under Part 5; 25 (c) obtaining information requested under section 35 or 83. 26 (2) An authorised officer may, at any reasonable time and with such 27 assistants as may reasonably be required, enter any education and care 28 service premises and do any of the following-- 29 (a) inspect the premises and any plant, equipment, vehicle or other 30 thing; 31 (b) photograph or film, or make audio recordings or make sketches 32 of, any part of the premises or anything at the premises; 33 (c) inspect and make copies of, or take extracts from, any document 34 kept at the premises; 35 (d) take any document or any other thing at the premises; 36 Page 95 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (e) ask a person at the premises-- 1 (i) to answer a question to the best of that person's 2 knowledge, information and belief; 3 (ii) to take reasonable steps to provide information or produce 4 a document. 5 (3) A power under subsection (1)(a) to (d) is limited to a document or thing 6 that is used or likely to being used in the provision of the education and 7 care service. 8 (4) If the authorised officer takes any document or thing under 9 subsection (2), he or she must-- 10 (a) give notice of the taking of the document or thing to the person 11 apparently in charge of it or to an occupier of the premises; and 12 (b) return the document or thing to that person or the premises within 13 7 days after taking it. 14 (5) An authorised officer may not, under this section, enter a residence 15 unless-- 16 (a) an approved education and care service is operating at the 17 residence at the time of entry; or 18 (b) the occupier of the residence has consented in writing to the entry 19 and the inspection. 20 198 National Authority representative may enter service premises in 21 company with Regulatory Authority 22 (1) A person authorised by the National Authority, in company with an 23 authorised officer, may enter premises used by an approved education 24 and care service within the usual hours of operation of the service at 25 those premises. 26 (2) The entry by the person authorised by the National Authority is solely 27 for the purpose of informing the National Authority of the rating 28 assessment processes of the Regulatory Authority under Part 5 to assist 29 the National Authority in promoting consistency across participating 30 jurisdictions. 31 199 Powers of entry for investigating approved education and care service 32 (1) An authorised officer may exercise the powers under this section to 33 investigate an approved education and care service if the authorised 34 officer reasonably suspects that an offence may have been or may be 35 being committed against this Law. 36 Page 96 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (2) The authorised officer, with any necessary assistants, may with or 1 without the consent of the occupier of the premises, enter the education 2 and care service premises at any reasonable time and do any of the 3 following-- 4 (a) search any part of the premises; 5 (b) inspect, measure, test, photograph or film, or make audio 6 recordings of, any part of the premises or anything at the 7 premises; 8 (c) take a thing, or a sample of or from a thing, at the premises for 9 analysis, measurement or testing; 10 (d) copy, or take an extract from, a document, at the premises; 11 (e) take into or onto the premises any person, equipment and 12 materials the authorised officer reasonably requires for 13 exercising a power under this subsection; 14 (f) require the occupier of the premises, or a person at the premises, 15 to give the authorised officer information to help the authorised 16 officer in conducting the investigation. 17 (3) A power under subsection (1)(b) to (d) is limited to a document or thing 18 that is used or likely to be used in the provision of the education and care 19 service. 20 (4) An authorised officer may not, under this section, enter a residence 21 unless-- 22 (a) an approved education and care service is operating at the 23 residence at the time of entry; or 24 (b) the occupier of the residence has consented in writing to the entry 25 and the inspection. 26 200 Powers of entry to business premises 27 (1) An authorised officer may exercise powers under this section if the 28 authorised officer reasonably suspects that documents or other evidence 29 relevant to the possible commission of an offence against this Law are 30 present at the principal office or any other business premises of an 31 approved provider. 32 (2) The authorised officer, with the consent of the occupier of the premises, 33 may enter the premises and do any of the following-- 34 (a) search any part of the premises; 35 (b) inspect, measure, test, photograph or film, or make audio 36 recordings of, any part of the premises or anything at the 37 premises; 38 Page 97 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (c) take a thing, or a sample of or from a thing, at the premises for 1 analysis, measurement or testing; 2 (d) copy, or take an extract from, a document, at the premises; 3 (e) take into or onto the premises any person, equipment and 4 materials the authorised officer reasonably requires for 5 exercising a power under this subsection; 6 (f) require the occupier of the premises, or a person at the premises, 7 to give the authorised officer information to help the authorised 8 officer in conducting the investigation. 9 (3) An authorised officer must not enter and search the premises with the 10 consent of the occupier unless, before the occupier consents to that 11 entry, the authorised officer has-- 12 (a) produced his or her identity card for inspection; and 13 (b) informed the occupier-- 14 (i) of the purpose of the search and the powers that may be 15 exercised; and 16 (ii) that the occupier may refuse to give consent to the entry 17 and search or to the taking of anything found during the 18 search; and 19 (iii) that the occupier may refuse to consent to the taking of any 20 copy or extract from a document found on the premises 21 during the search. 22 201 Entry to premises with search warrant 23 (1) An authorised officer under the authority of a search warrant may enter 24 premises if the authorised officer reasonably believes that a person is 25 operating an education and care service in contravention of section 103 26 at or from the premises. 27 (2) An authorised officer under the authority of a search warrant may enter 28 any education and care service premises or any premises where the 29 authorised officer reasonably believes that an approved education and 30 care service is operating if the authorised officer reasonably believes 31 that the education and care service is operating in contravention of this 32 Law. 33 (3) An authorised officer under the authority of a search warrant may enter 34 the principal office or any other business premises of an approved 35 provider if the authorised officer reasonably believes that documents or 36 other evidence relevant to the possible commission of an offence 37 against this Law are present at those premises. 38 (4) Schedule 2 applies in relation to the issue of the search warrant and the 39 powers of the authorised officer on entry. 40 Page 98 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 202 Seized items 1 (1) If an authorised officer has taken a thing under section 199 or 200 or 2 under a search warrant under section 201, the authorised officer must 3 take reasonable steps to return the thing to the person from whom it was 4 taken if the reason for the taking no longer exists. 5 (2) If the thing has not been returned within 60 days after it was taken, the 6 authorised officer must take reasonable steps to return it unless-- 7 (a) proceedings have been commenced within the period of 60 days 8 and those proceedings (including any appeal) have not been 9 completed; or 10 (b) a court makes an order under section 203 extending the period the 11 thing can be retained. 12 (3) If an authorised officer has taken a thing under section 199 or 200 or 13 under a search warrant under section 201, the authorised officer must 14 provide the owner of the thing with reasonable access to the thing. 15 203 Court may extend period 16 (1) An authorised officer may apply to a court within the period of 60 days 17 referred to in section 202 or within a period extended by the court under 18 this section for an extension of the period for which the thing can be 19 held. 20 (2) The court may order the extension if satisfied that retention of the thing 21 is necessary-- 22 (a) for the purposes of an investigation into whether an offence has 23 been committed; or 24 (b) to enable evidence of an offence to be obtained for the purposes 25 of a prosecution. 26 (3) The court may adjourn an application to enable notice of the application 27 to be given to any person. 28 Division 3 Other powers 29 204 Power to require name and address 30 (1) This section applies if-- 31 (a) an authorised officer finds a person committing an offence 32 against this Law; or 33 (b) an authorised officer finds a person in circumstances that lead, or 34 the authorised officer has information that leads, the officer to 35 reasonably suspect the person is committing, or has committed, 36 an offence against this Law. 37 Page 99 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (2) The authorised officer may require the person to state the person's name 1 and residential address. 2 (3) The authorised officer may require the person to give evidence of the 3 correctness of the stated name or residential address if the officer 4 reasonably suspects the stated name or address to be false. 5 205 Power to require evidence of age, name and address of person 6 (1) This section applies if-- 7 (a) the national regulations require a staff member, a family day care 8 educator or a volunteer to have attained a prescribed minimum 9 age; and 10 (b) an authorised officer reasonably suspects that a person-- 11 (i) is employed or engaged as a staff member or a family day 12 care educator by, or is a volunteer at, an education and care 13 service; and 14 (ii) has not attained that prescribed minimum age. 15 (2) The authorised officer may require the person to state the person's 16 correct date of birth, whether or not when requiring the person to state 17 the person's correct name and address. 18 (3) Also, the authorised officer may require the person to provide evidence 19 of the correctness of the stated date of birth-- 20 (a) at the time of making the requirement under subsection (2) if, in 21 the circumstances, it would be reasonable to expect the person to 22 be in possession of evidence of the correctness of the stated date 23 of birth; or 24 (b) otherwise, within 14 days of making the requirement under 25 subsection (2). 26 (4) The authorised officer may require the person to state the person's name 27 and residential address if-- 28 (a) the person refuses or is unable to comply with a requirement 29 under subsection (2) or (3); or 30 (b) according to the date of birth the person states, or the evidence of 31 the person's age the person gives, the person has not attained the 32 prescribed minimum age. 33 206 Power of authorised officers to obtain information documents and 34 evidence 35 (1) An authorised officer may exercise a power under this section for any 36 of the following purposes-- 37 (a) monitoring compliance with this Law; 38 Page 100 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) a rating assessment of an approved education and care service 1 under Part 5; 2 (c) obtaining information requested under section 35 or 83. 3 (2) An authorised officer may, by written notice, require a specified person 4 to provide to the authorised officer, by writing signed by that person or, 5 if the person is not an individual, by a competent officer of that person, 6 within the time and in the manner specified in the notice, any relevant 7 information that is specified in the notice. 8 (3) The time specified in the notice must not be less than 14 days from the 9 date the notice is issued. 10 (4) In this section-- 11 specified person means a person who is or has been-- 12 (a) an approved provider, a certified supervisor or a staff member of, 13 or a volunteer at, an approved education and care service; or 14 (b) a family day care educator. 15 Division 4 Offences relating to enforcement 16 207 Offence to obstruct authorised officer 17 A person must not obstruct an authorised officer in exercising his or her 18 powers under this Law. 19 Penalty: 20 $8000, in the case of an individual. 21 $40 000, in any other case. 22 208 Offence to fail to assist authorised officer 23 A person must not, without reasonable excuse-- 24 (a) refuse to answer a question lawfully asked by an authorised 25 officer (other than a question asked under section 197(2)(e)); or 26 (b) refuse to provide information or produce a document lawfully 27 required by an authorised officer; or 28 (c) fail to comply with a requirement made by an authorised officer 29 under clause 5(2)(f) or (g) of Schedule 2. 30 Penalty: 31 $8000, in the case of an individual. 32 $40 000, in any other case. 33 Page 101 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 209 Offence to destroy or damage notices or documents 1 A person must not, without lawful authority, destroy or damage any 2 notice or document given or prepared or kept under this Law. 3 Penalty: 4 $8000, in the case of an individual. 5 $40 000, in any other case. 6 210 Offence to impersonate authorised officer 7 A person must not impersonate an authorised officer. 8 Penalty: $8000. 9 211 Protection against self incrimination 10 (1) An individual may refuse or fail to give information or do any other 11 thing that the individual is required to do by or under this Law if giving 12 the information or doing the thing might incriminate the individual. 13 (2) However, subsection (1) does not apply to-- 14 (a) the production of a document or part of a document that is 15 required to be kept under this Law; or 16 (b) the giving of the individual's name or address in accordance with 17 this Law; or 18 (c) anything required to be done under section 215 or 216. 19 (3) Any document referred to in subsection (2)(a) that is produced by an 20 individual or any information obtained directly or indirectly from that 21 document produced by an individual is not admissible in evidence 22 against the individual in any criminal proceedings (except for criminal 23 proceedings under this Law) or in any civil proceedings. 24 212 Warning to be given 25 (1) Before requiring a person to answer a question or provide information 26 or a document under this Part or Schedule 2, an authorised officer 27 must-- 28 (a) identify himself or herself to the person as an authorised officer 29 by producing the officer's identity card; and 30 (b) warn the person that a failure to comply with the requirement or 31 to answer the question, without reasonable excuse, would 32 constitute an offence; and 33 (c) in the case of an individual, warn the person about the effect of 34 section 211. 35 Page 102 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (2) Nothing in this section prevents an authorised officer from obtaining 1 and using evidence given to the authorised officer voluntarily by any 2 person. 3 (3) This section does not apply to a request made under section 197. 4 213 Occupier's consent to search 5 (1) An occupier who consents in writing to the entry and inspection of his 6 or her premises under Division 2 must be given a copy of the signed 7 consent immediately. 8 (2) If, in any proceeding, a written consent is not produced to the court, it 9 must be presumed until the contrary is proved that the occupier did not 10 consent to the entry and search. 11 Division 5 Powers of Regulatory Authority 12 214 Powers of Regulatory Authority to obtain information for rating 13 purposes 14 The Regulatory Authority may, for the purpose of a rating assessment-- 15 (a) ask the approved provider of the approved education and care 16 service for any information and documents; and 17 (b) make any inquiries it considers appropriate. 18 215 Power of Regulatory Authority to obtain information, documents and 19 evidence by notice 20 (1) This section applies if the Regulatory Authority reasonably suspects 21 that an offence has or may have been committed against this Law. 22 (2) The Regulatory Authority may, by written notice, require a specified 23 person-- 24 (a) to provide to the Regulatory Authority, in writing signed by that 25 person or, if the person is not an individual, by a competent 26 officer of that person, within the time and in the manner specified 27 in the notice, any relevant information that is specified in the 28 notice; or 29 (b) to produce to the Regulatory Authority, or to a person specified 30 in the notice acting on the Regulatory Authority's behalf, in 31 accordance with the notice, any relevant document referred to in 32 the notice; or 33 (c) to appear before the Regulatory Authority, or a person specified 34 in the notice acting on the Regulatory Authority's behalf, at a 35 time and place specified in the notice to give any evidence or to 36 produce any relevant document specified in the notice. 37 Page 103 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) The notice must-- 1 (a) warn the person that failure or refusal to comply with the notice 2 would constitute an offence; and 3 (b) warn the person about the effect of sections 217, 218 and 219. 4 (4) The Regulatory Authority or the person specified in the notice acting on 5 the Regulatory Authority's behalf may require the evidence referred to 6 in subsection (2)(c) to be given on oath or affirmation and for that 7 purpose may administer an oath or affirmation. 8 (5) The person may give evidence under subsection (2)(c) by telephone or 9 video conference or other electronic means unless the Regulatory 10 Authority, on reasonable grounds, requires the person to give that 11 evidence in person. 12 (6) In this section, specified person has the meaning given in 13 section 206(4). 14 216 Power of Regulatory Authority to obtain information, documents and 15 evidence at education and care service 16 (1) This section applies if the Regulatory Authority reasonably suspects 17 that an offence has or may have been committed against this Law. 18 (2) The Regulatory Authority may require a specified person at an 19 education and care service-- 20 (a) to provide the Regulatory Authority, or a person acting on the 21 Regulatory Authority's behalf, with any specified information 22 that is relevant to the suspected offence; or 23 (b) to produce to the Regulatory Authority, or to a person acting on 24 the Regulatory Authority's behalf, any specified document that is 25 relevant to the suspected offence. 26 (3) The Regulatory Authority must-- 27 (a) warn the person that failure or refusal to comply with the 28 requirement would constitute an offence; and 29 (b) warn the person about the effect of sections 217, 218 and 219. 30 (4) The Regulatory Authority must not require a person to remain at the 31 education and care service more than a reasonable time for the purposes 32 of providing information or producing documents under subsection (2). 33 (5) In this section, specified person has the meaning given in 34 section 206(4). 35 Page 104 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 217 Offence to fail to comply with notice or requirement 1 A person must not refuse or fail to comply with a requirement under 2 section 215 or 216 to the extent that the person is capable of complying 3 with that requirement. 4 Penalty: 5 $8000, in the case of an individual. 6 $40 000, in any other case. 7 218 Offence to hinder or obstruct Regulatory Authority 8 A person must not obstruct or hinder the Regulatory Authority in 9 exercising a power under section 215 or 216. 10 Penalty: 11 $8000, in the case of an individual. 12 $40 000, in any other case. 13 219 Self incrimination not an excuse 14 (1) A person is not excused from complying with a notice or requirement 15 under section 215 or 216 on the ground that complying with the notice 16 or requirement may result in information being provided that might tend 17 to incriminate the person. 18 (2) Subject to subsection (3), disclosed information is not admissible in 19 evidence against the individual in any criminal proceedings (other than 20 proceedings under section 218 or 295) or in any civil proceedings. 21 (3) Despite subsection (2), any information obtained from a document or 22 documents required to be kept under this Law that is produced by a 23 person is admissible in evidence against the person in criminal 24 proceedings under this Law. 25 (4) In this section-- 26 disclosed information means-- 27 (a) the answer by an individual to any question asked under 28 section 215 or 216; or 29 (b) the provision by an individual of any information in compliance 30 with section 215 or 216; or 31 (c) any information obtained directly or indirectly because of that 32 answer or the provision of that information. 33 Page 105 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law Part 10 Ministerial Council 1 220 Functions of Ministerial Council 2 (1) The Ministerial Council has the following functions under this Law-- 3 (a) to oversee the implementation and administration of the National 4 Quality Framework; 5 (b) to promote uniformity in the application and enforcement of the 6 National Quality Framework; 7 (c) to review and approve the National Quality Standard and set 8 specific standards for education and care services and classes of 9 education and care services; 10 (d) to review and approve the rating level system to be used in rating 11 education and care services; 12 (e) to review and approve the fee structure under this Law; 13 (f) to review and approve new learning frameworks for the purposes 14 of this Law; 15 (g) to monitor the implementation and operation of, and recommend 16 or approve amendments to, this Law; 17 (h) to monitor the implementation and operation of the national 18 regulations; 19 (i) to review the education and care services to which this Law 20 applies and recommend, or amend the national regulations to 21 provide for, the inclusion of new classes of education and care 22 services under this Law; 23 (j) to appoint the members of the Board; 24 (k) to monitor and review the performance of the National Authority; 25 (l) any other functions given to the Ministerial Council by or under 26 this Law. 27 (2) The Ministerial Council must have regard to the objectives and guiding 28 principles of the National Quality Framework in carrying out its 29 functions. 30 221 Powers of Ministerial Council 31 The Ministerial Council may-- 32 (a) make recommendations to the Board in relation to the exercise of 33 the National Authority's functions under this Law; and 34 (b) refer any matter to the Board for consideration and advice; and 35 (c) make regulations in accordance with this Law; and 36 Page 106 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (d) do anything necessary or convenient to be done in carrying out its 1 functions. 2 222 Directions 3 (1) The Ministerial Council may give directions to the Board in relation to 4 the carrying out of the National Authority's functions under this Law, 5 including the following-- 6 (a) reporting and accountability to the Ministerial Council and 7 Regulatory Authorities; 8 (b) the application of the National Quality Framework; 9 (c) the rating level system to be used in rating education and care 10 services; 11 (d) the collection and use of information. 12 (2) The Ministerial Council may give directions to a Regulatory Authority 13 with respect to the administration of the National Quality Framework. 14 (3) A direction under this section cannot be about-- 15 (a) a particular person or education and care service; or 16 (b) a particular application, approval, notification, assessment or 17 proceeding; or 18 (c) the determination of a rating for a particular education and care 19 service. 20 (4) A direction must be in writing. 21 (5) A direction must not be inconsistent with this Law. 22 (6) A direction is not a legislative instrument or an instrument of a 23 legislative character. 24 (7) A direction to the Board under this section must be given to the 25 Chairperson of the Board. 26 (8) The Board or a Regulatory Authority must comply with a direction 27 given to the Board or the Authority by the Ministerial Council under this 28 section. 29 223 How Ministerial Council exercises powers 30 (1) The Ministerial Council is to give a direction for the purposes of this 31 Law by resolution of the Council passed in accordance with procedures 32 determined by the Council. 33 (2) An act or thing done by the Ministerial Council (whether by resolution, 34 instrument or otherwise) does not cease to have effect merely because 35 of a change in the Council's membership. 36 Page 107 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law Part 11 Australian Children's Education and Care 1 Quality Authority 2 Division 1 The National Authority 3 224 National Authority 4 (1) The Australian Children's Education and Care Quality Authority is 5 established. 6 (2) The National Authority-- 7 (a) is a body corporate with perpetual succession; and 8 (b) has a common seal; and 9 (c) may sue and be sued in its corporate name. 10 (3) The National Authority represents the State. 11 225 Functions of National Authority 12 (1) The functions of the National Authority are as follows-- 13 (a) to guide the implementation and administration of the National 14 Quality Framework and to monitor and promote consistency in 15 its implementation and administration; 16 (b) to report to and advise the Ministerial Council on the National 17 Quality Framework; 18 (c) to report to the Regulatory Authorities and the relevant 19 Commonwealth Department in relation to the following-- 20 (i) the collection of information under this Law; 21 (ii) the evaluation of the National Quality Framework; 22 (d) to establish consistent, effective and efficient procedures for the 23 operation of the National Quality Framework; 24 (e) to determine the arrangements for national auditing for the 25 purposes of this Law; 26 (f) to keep national information on the assessment, rating and 27 regulation of education and care services; 28 (g) to establish and maintain national registers of approved 29 providers, approved education and care services and certified 30 supervisors and to publish those registers; 31 (h) to promote and foster continuous quality improvement by 32 approved education and care services; 33 (i) to publish, monitor and review ratings of approved education and 34 care services; 35 Page 108 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (j) to make determinations with respect to the highest level of rating 1 for approved education and care services; 2 (k) in conjunction with the Regulatory Authorities, to educate and 3 inform education and care services and the community about the 4 National Quality Framework; 5 (l) to publish guides and resources-- 6 (i) to support parents and the community in understanding 7 quality in relation to education and care services; and 8 (ii) to support the education and care services sector in 9 understanding the National Quality Framework; 10 (m) to publish information about the implementation and 11 administration of the National Quality Framework and its effect 12 on developmental and educational outcomes for children; 13 (n) to publish practice notes and guidelines for the application of this 14 Law; 15 (o) to determine the qualifications for authorised officers and to 16 provide support and training for staff of Regulatory Authorities; 17 (p) to determine the qualifications required to be held by educators, 18 including the assessment of equivalent qualifications; 19 (q) any other function given to the National Authority by or under 20 this Law. 21 (2) In carrying out its functions, the National Authority must ensure that the 22 regulatory burden on education and care services is minimised as far as 23 possible. 24 (3) In carrying out its functions, the National Authority must have regard to 25 the objectives and guiding principles of the National Quality 26 Framework. 27 226 National Authority may advise and seek guidance of Ministerial Council 28 The National Authority may provide advice to and seek the guidance of 29 the Ministerial Council if the National Authority considers it necessary 30 in carrying out its functions under this Law. 31 227 Powers of National Authority 32 (1) The National Authority has all the powers of an individual and, in 33 particular, may-- 34 (a) enter into contracts; and 35 (b) acquire, hold, dispose of, and deal with, real and personal 36 property; and 37 (c) borrow and invest money; and 38 Page 109 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (d) develop and supply resources and consultancy services to the 1 education and care sector on a commercial basis; and 2 (e) do anything necessary or convenient to be done in carrying out its 3 functions. 4 (2) Without limiting subsection (1), the National Authority may-- 5 (a) collect, hold and use information obtained under this Law by the 6 National Authority or a Regulatory Authority about the provision 7 of education and care to children including information about 8 outcomes for children and about providers of education and care 9 services in each participating jurisdiction; and 10 Note. See section 270, which provides for the National Authority to 11 publish information about approved providers. 12 (b) develop protocols for communication and dispute resolution 13 among the National Authority, the Regulatory Authorities and 14 the relevant Commonwealth Department to provide for 15 consistency in the implementation and administration of the 16 National Quality Framework; and 17 (c) collect, waive, reduce, defer and refund fees and enter into 18 agreements in relation to fees in accordance with the national 19 regulations; and 20 (d) enter into agreements in relation to fees and funding with the 21 Regulatory Authorities; and 22 (e) undertake research and evaluation activities for the purpose of its 23 functions under this Law. 24 228 Co-operation with participating jurisdictions and Commonwealth 25 (1) The National Authority may exercise any of its functions in 26 co-operation with or with the assistance of a participating jurisdiction or 27 the Commonwealth, including in co-operation with or with the 28 assistance of any of the following-- 29 (a) a government agency of a participating jurisdiction or of the 30 Commonwealth; or 31 (b) an educational body or other body established by or under a law 32 of a participating jurisdiction or the Commonwealth; or 33 (c) a prescribed body or body in a prescribed class of bodies. 34 (2) In particular, the National Authority may-- 35 (a) ask a person or body referred to in subsection (1) for information 36 that the Authority requires to carry out its functions under this 37 Law; and 38 (b) use the information to carry out its functions under this Law. 39 Page 110 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (3) A person or body referred to in subsection (1) that receives a request for 1 information from the National Authority is authorised to give the 2 information to the National Authority. 3 229 National audit functions 4 (1) The National Authority is to undertake national audits of the 5 administration of the National Quality Framework and-- 6 (a) review the findings of the national audit processes; and 7 (b) evaluate trends in the administration of the National Quality 8 Framework across participating jurisdictions; and 9 (c) advise the Regulatory Authorities about the outcomes of the 10 national audit processes and its evaluations; and 11 (d) report to the Ministerial Council on the outcomes of the national 12 audit and evaluation processes. 13 (2) The audits are to be undertaken at the intervals, and by the means, 14 determined by the National Authority. 15 Division 2 The Board of the National Authority 16 Subdivision 1 Establishment and responsibilities 17 230 National Authority Board 18 The National Authority has a governing body known as the Australian 19 Children's Education and Care Quality Authority Board. 20 231 Responsibilities of Board 21 (1) The affairs of the National Authority are to be controlled by the Board. 22 (2) The Board has all the powers and duties and all the functions of the 23 National Authority. 24 (3) All acts and things done in the name of, or on behalf of, the National 25 Authority by or with the authority of the Board are taken to have been 26 done by the National Authority. 27 (4) The Board must ensure that the National Authority carries out its 28 functions and duties and exercises its powers in a proper, effective and 29 efficient way. 30 (5) The Board has any other functions given to it under this Law. 31 (6) Any report to the Ministerial Council under this Law is to be made by 32 or through the Board. 33 Page 111 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (7) The Board must act in accordance with any directions given to the 1 National Authority by the Ministerial Council under section 222. 2 (8) The Board must work collaboratively with the Regulatory Authorities 3 and the relevant Commonwealth Department to support and promote 4 the National Quality Framework. 5 232 Membership of Board 6 (1) The Board consists of up to 13 members appointed by consensus of the 7 Ministerial Council. 8 (2) The Ministerial Council must appoint by consensus one person to be the 9 Chairperson of the Board. 10 (3) One member is to be appointed for each State and Territory from 11 2 persons nominated by each State or Territory Minister on the 12 Ministerial Council. 13 (4) The Commonwealth Minister may nominate up to 8 persons for 14 appointment to the Board. 15 (5) Four of the persons nominated under subsection (4) must be appointed 16 to the Board. 17 (6) The Ministerial Council must appoint by consensus one of the members 18 referred to in subsection (3) or (5) to be the Deputy Chairperson of the 19 Board. 20 (7) The members appointed to the Board must have professional skills and 21 expertise in one or more of the following areas-- 22 (a) assessment of quality in education and care services or other 23 relevant services; 24 (b) early childhood development; 25 (c) labour market and workforce participation and development; 26 (d) best practice regulation; 27 (e) financial management and corporate governance; 28 (f) research, evaluation and performance; 29 (g) any other areas of skill determined by the Ministerial Council. 30 (8) In appointing members of the Board, the Ministerial Council must have 31 regard to the need for the Board to have an appropriate balance of skills 32 and expertise among its members. 33 Page 112 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note Subdivision 2 Members 1 233 Terms of office of members 2 (1) Subject to this Subdivision, members of the Board hold office on the 3 terms and conditions determined by the Ministerial Council. 4 (2) Subject to this Subdivision, a member of the Board holds office for a 5 period, being not more than 3 years, specified in the member's 6 appointment. 7 (3) A member may be reappointed for a further period of not more than 8 3 years. 9 (4) The maximum consecutive period of appointment of a member is 10 2 terms. 11 234 Remuneration 12 The remuneration and allowances (if any) to be paid to members of the 13 Board are to be determined from time to time by the Ministerial 14 Council. 15 235 Vacancy in the office of member 16 (1) The office of a member of the Board becomes vacant if the member-- 17 (a) completes a term of office; or 18 (b) resigns the office by instrument addressed to the Chairperson of 19 the Board; or 20 (c) is removed from office by the Ministerial Council under this 21 section; or 22 (d) in the case of the Chairperson of the Board, is absent, without 23 leave first being granted by the Chairperson of the Ministerial 24 Council, from 3 or more consecutive meetings of the Board; or 25 (e) in the case of any other member, is absent, without leave first 26 being granted by the Chairperson of the Board, from 3 or more 27 consecutive meetings of the Board of which reasonable notice 28 has been given to the member personally or by post; or 29 (f) dies. 30 (2) The Chairperson of the Ministerial Council may remove a member of 31 the Board from office if-- 32 (a) the member has been found guilty of an offence (whether in a 33 participating jurisdiction or elsewhere) that, in the opinion of the 34 Chairperson of the Ministerial Council, renders the member unfit 35 to continue to hold the office of member; or 36 Page 113 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (b) the member becomes bankrupt, applies to take the benefit of any 1 law for the relief of bankrupt or insolvent debtors, compounds 2 with the member's creditors or makes an assignment of the 3 member's remuneration for their benefit; or 4 (c) the Board recommends the removal of the member, on the basis 5 that the member has engaged in misconduct or has failed, or is 6 unable, to properly carry out the member's functions as a 7 member. 8 (3) The Chairperson of the Board may resign by written notice addressed to 9 the Chairperson of the Ministerial Council. 10 (4) A resignation takes effect on the day that it is received by the 11 Chairperson of the Board or the Chairperson of the Ministerial Council 12 (as the case requires) or a later day specified in the notice of resignation. 13 (5) If the office of a member of the Board becomes vacant, the Chairperson 14 of the Board must notify the Chairperson of the Ministerial Council of 15 the vacancy. 16 (6) If the office of the Chairperson of the Board becomes vacant, the 17 Deputy Chairperson of the Board must notify the Chairperson of the 18 Ministerial Council of the vacancy. 19 236 Acting positions 20 (1) The Deputy Chairperson of the Board is to act as the Chairperson of the 21 Board-- 22 (a) during a vacancy in the office of Chairperson; or 23 (b) during any period that the Chairperson-- 24 (i) is absent from duty; or 25 (ii) is, for any reason, unable to carry out the duties of that 26 office. 27 (2) While the Deputy Chairperson of the Board is acting in the office of 28 Chairperson-- 29 (a) he or she has all the powers and functions of the Chairperson; and 30 (b) this Law and other laws apply to the Deputy Chairperson as if he 31 or she were Chairperson. 32 (3) Anything done by or in relation to the Deputy Chairperson when 33 purporting to act in the office of Chairperson is not invalid merely 34 because the occasion for the Deputy Chairperson to act had not arisen 35 or had ceased. 36 Page 114 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (4) The Ministerial Council may, by consensus, appoint a member of the 1 Board to be the Deputy Chairperson of the Board-- 2 (a) during a vacancy in the office of Deputy Chairperson; or 3 (b) during any period that the Deputy Chairperson-- 4 (i) is acting as the Chairperson; or 5 (ii) is absent from duty; or 6 (iii) is, for any reason, unable to carry out the duties of that 7 office. 8 (5) A person nominated by a Minister on the Ministerial Council may, with 9 the approval of the Chairperson of the Board, act as a member of the 10 Board in the place of the member appointed on the nomination of that 11 Minister if that member is unable to attend a meeting of the Board. 12 237 Leave of absence 13 (1) The Chairperson of the Ministerial Council may grant the Chairperson 14 of the Board a leave of absence on the terms and conditions determined 15 by the Chairperson of the Ministerial Council. 16 (2) The Chairperson of the Board may grant leave of absence to any other 17 member of the Board on the terms and conditions determined by the 18 Chairperson of the Board. 19 (3) The Chairperson of the Board must notify the Chairperson of the 20 Ministerial Council if the Chairperson of the Board grants to a member 21 a leave of absence of more than 6 months. 22 (4) If a member of the Board has been granted a leave of absence of 23 3 months or more, the Ministerial Council may appoint a person 24 nominated by the Minister who nominated the member to act as a 25 member of the Board in the place of the member during that leave of 26 absence. 27 238 Disclosure of conflict of interest 28 (1) If-- 29 (a) a member of the Board has a direct or indirect pecuniary or other 30 interest in a matter being considered or about to be considered at 31 a meeting of the Board; and 32 (b) the interest appears to raise a conflict with the proper 33 performance of the member's duties in relation to the 34 consideration of the matter-- 35 the member must, as soon as possible after the relevant facts have come 36 to the member's knowledge, disclose the nature of the interest at a 37 meeting of the Board. 38 Page 115 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (2) Particulars of any disclosure made under subsection (1) must be 1 recorded by the Board. 2 (3) After a member has disclosed the nature of an interest in any matter, the 3 member must not, unless the Ministerial Council or the Board otherwise 4 determines-- 5 (a) be present during any deliberation of the Board with respect to 6 the matter; or 7 (b) take part in any decision of the Board with respect to the matter; 8 or 9 (c) be provided with any written material in relation to the matter. 10 (4) For the purposes of the making of a determination by the Board under 11 subsection (3), a member who has a direct or indirect pecuniary or other 12 interest in a matter to which the disclosure relates must not-- 13 (a) be present during any deliberation of the Board for the purpose of 14 making the determination; or 15 (b) take part in the making of the determination by the Board. 16 (5) A contravention of this section does not invalidate any decision of the 17 Board. 18 Subdivision 3 Procedure of Board 19 239 General procedure 20 (1) The Board must hold such meetings as are necessary for it to perform 21 its functions. 22 (2) Subject to this Law, the procedure for the calling of meetings of the 23 Board and for the conduct of business at those meetings is to be as 24 determined by the Board. 25 (3) The Chairperson of the Board may convene any meetings of the Board 26 that are, in his or her opinion, necessary for the efficient performance of 27 the functions of the Board. 28 (4) The Chairperson of the Board must convene a meeting of the Board at 29 the written request of the Ministerial Council. 30 (5) The Board must keep minutes of its meetings. 31 240 Quorum 32 The quorum for a meeting of the Board is 9 members of whom-- 33 (a) one must be the Chairperson or Deputy Chairperson; and 34 (b) five must be members appointed on the nomination of State and 35 Territory Ministers; and 36 Page 116 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (c) one may be a member appointed on the nomination of the 1 Commonwealth Minister. 2 241 Chief executive officer may attend meetings of the Board 3 (1) The chief executive officer of the National Authority, subject to the 4 policies and procedures of the Board, may attend meetings of the Board 5 and participate in its deliberations but-- 6 (a) is not a member of the Board; and 7 (b) is not entitled to vote at a meeting of the Board. 8 (2) Section 238 applies to the chief executive officer in relation to 9 attendance at meetings of the Board as if the chief executive officer 10 were a member of the Board. 11 242 Presiding member 12 The Chairperson (or, in the absence of the Chairperson, the Deputy 13 Chairperson) is to preside at a meeting of the Board. 14 243 Voting 15 (1) At a meeting of the Board each member will have a deliberative vote. 16 (2) A decision supported by a majority of the votes cast at the meeting of 17 the Board at which a quorum is present is the decision of the Board. 18 (3) In the event of an equality of votes the Chairperson (or the Deputy 19 Chairperson if the Chairperson is not present), will have a second or 20 casting vote. 21 (4) The Board must keep a record of all decisions made at a meeting. 22 (5) If a decision of the Board to recommend a matter to the Ministerial 23 Council is not arrived at unanimously, the Chairperson of the Board 24 must advise the Ministerial Council of the reasons for and extent of the 25 minority opinions. 26 244 Defects in appointment of members 27 A decision of the Board is not invalidated by any defect or irregularity 28 in the appointment of any member (or acting member) of the Board. 29 245 Transaction of business by alternative means 30 (1) The Board may, if it thinks fit, transact any of its business by the 31 provision of papers to all the members of the Board for the time being, 32 and a resolution in writing approved in writing by a majority of the 33 members constituting a quorum of the Board is taken to be a decision of 34 the Board. 35 Page 117 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (2) The Board may, if it thinks fit, transact any of its business at a meeting 1 at which members (or some members) participate by telephone, 2 closed-circuit television or other means, but only if any member who 3 speaks on a matter before the meeting can be heard by the other 4 members. 5 (3) For the purposes of-- 6 (a) the approval of a resolution under subsection (1); or 7 (b) a meeting held in accordance with subsection (2)-- 8 the Chairperson and each member have the same voting rights as they 9 have at an ordinary meeting of the Board. 10 (4) Papers may be circulated among the members for the purposes of 11 subsection (1) by facsimile, email or other transmission of the 12 information in the papers concerned. 13 246 Delegation by Board 14 (1) The Board may, in writing, delegate any of its functions, powers or 15 duties to-- 16 (a) a Regulatory Authority; or 17 (b) the chief executive of an entity or the head of a government 18 department of a participating jurisdiction nominated by the 19 member of the Ministerial Council who represents that 20 jurisdiction; or 21 (c) the chief executive officer of the National Authority; or 22 (d) a committee established by the Board; or 23 (e) any other entity with the approval of the Ministerial Council. 24 (2) Subject to the delegation under subsection (1), a chief executive of an 25 entity or head of a government department may subdelegate a delegated 26 function, power or duty to a member of staff of the entity or department. 27 (3) The chief executive officer of the National Authority may subdelegate 28 a delegated power, function or duty to a member of the staff of the 29 National Authority. 30 247 Committees 31 (1) The Board may establish committees to assist it in carrying out its 32 functions. 33 (2) The Board must determine-- 34 (a) the membership and functions of a committee; 35 Page 118 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) the procedure at or in relation to meetings of the committee 1 including-- 2 (i) the convening of meetings; and 3 (ii) the quorum for meetings; and 4 (iii) the selection of a committee member to be the chairperson 5 of the committee; and 6 (iv) the manner in which questions arising at meetings of the 7 committee are to be decided; 8 (c) the procedures for reporting to the Board. 9 (3) A committee must give the Board any reports, documents and 10 information relating to the committee's functions and activities that the 11 Board requests. 12 (4) The Board must report to the Ministerial Council on any committees it 13 establishes. 14 Subdivision 4 Chief executive officer of the National Authority 15 248 Chief executive officer 16 (1) Subject to this section, the Chairperson of the Board is to appoint a 17 person as chief executive officer of the National Authority. 18 (2) The appointment may only be made after the Ministerial Council has 19 first endorsed the appointment on the recommendation of the Board. 20 249 Functions of chief executive officer 21 (1) The chief executive officer is responsible for the day to day 22 management of the affairs of the National Authority. 23 (2) The chief executive officer has any other functions given to him or her 24 or delegated to him or her under this Law. 25 (3) Subject to this Law, the chief executive officer must comply with the 26 directions and policies of the Board in carrying out his or her functions. 27 (4) The chief executive officer is to report to the Board. 28 (5) The chief executive officer must manage the affairs of the National 29 Authority in a way that-- 30 (a) promotes the effective use of the resources of the National 31 Authority; and 32 (b) is consistent with this Law. 33 Page 119 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (6) The chief executive officer must work collaboratively with the 1 Regulatory Authorities and the relevant Commonwealth Department to 2 support and promote the National Quality Framework. 3 250 Terms and conditions of appointment 4 (1) The chief executive officer of the National Authority is to be appointed 5 for a period, not more than 3 years, specified in the officer's 6 appointment, but is eligible for reappointment. 7 (2) A member of the Board cannot be appointed as chief executive officer. 8 (3) Subject to this Law, the chief executive officer holds office subject to 9 any terms and conditions that are decided by the Board. 10 (4) The chief executive officer must not engage in paid employment outside 11 the duties of his or her office without the approval of the Chairperson of 12 the Board. 13 (5) The Chairperson of the Board must notify the Chairperson of the 14 Ministerial Council of any approval given under subsection (4). 15 (6) The chief executive officer of the National Authority is taken, while 16 holding that office, to be a member of the staff of the National 17 Authority. 18 251 Remuneration 19 The chief executive officer is to be paid the remuneration and 20 allowances decided by the Board. 21 252 Vacancy in office 22 The office of the chief executive officer of the National Authority 23 becomes vacant if-- 24 (a) the chief executive officer resigns from office by written notice 25 addressed to the Chairperson of the Board; or 26 (b) the appointment of the chief executive officer is terminated by 27 the Board under this Law; or 28 (c) the chief executive officer dies. 29 253 Resignation 30 (1) The chief executive officer may resign the office by written notice 31 addressed to the Chairperson of the Board. 32 (2) The resignation takes effect on the day that it is received by the 33 Chairperson of the Board or a later day specified in the notice of 34 resignation. 35 Page 120 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (3) The Chairperson of the Board must notify the Ministerial Council of 1 that resignation. 2 254 Termination of appointment 3 (1) The Board may terminate the appointment of the chief executive 4 officer-- 5 (a) for misconduct or for physical or mental incapacity that 6 significantly impacts on the ability of the chief executive officer 7 to perform the role; or 8 (b) if the Board is satisfied that the performance of the chief 9 executive officer has been unsatisfactory; or 10 (c) if the chief executive officer engages in paid employment outside 11 the duties of his or office without the approval of the Chairperson 12 of the Board; or 13 (d) if the chief executive officer has been found guilty of an offence 14 (whether in a participating jurisdiction or elsewhere) that, in the 15 opinion of the Board, makes the chief executive officer unfit to 16 continue to be appointed. 17 (2) The Board must terminate the appointment of the chief executive officer 18 if the chief executive officer-- 19 (a) becomes bankrupt, applies to take the benefit of any law for the 20 relief of bankrupt or insolvent debtors, compounds with the chief 21 executive officer's creditors or makes an assignment of the chief 22 executive officer's remuneration for their benefit; or 23 (b) is absent, except on a leave of absence approved by the 24 Chairperson of the Board, for 14 consecutive days or for 28 days 25 in any period of 12 months; or 26 (c) fails, without reasonable excuse, to comply with section 256. 27 (3) The Chairperson of the Board must notify the Chairperson of the 28 Ministerial Council of the termination of the appointment of the chief 29 executive officer. 30 255 Acting chief executive officer 31 (1) The Board may appoint a person to act as the chief executive officer-- 32 (a) during any vacancy in the office of chief executive officer; or 33 (b) during any period that the chief executive officer-- 34 (i) is absent from duty; or 35 (ii) is, for any reason, unable to perform the duties of that 36 office. 37 (2) The period of the acting appointment must not exceed 6 months. 38 Page 121 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 256 Disclosure of interests 1 The chief executive officer must give written notice to the Chairperson 2 of the Board as soon as possible of any direct or indirect personal or 3 pecuniary interest that the chief executive officer has, or acquires, or 4 may acquire, that conflicts or could conflict with the proper carrying out 5 of the chief executive officer's functions. 6 Subdivision 5 Staff, consultants and contractors 7 257 Staff of National Authority 8 (1) The National Authority may, for the purpose of carrying out its 9 functions, employ staff. 10 (2) The staff of the National Authority are to be employed on the terms and 11 conditions determined by the National Authority from time to time. 12 (3) Subsection (2) is subject to any relevant industrial award or agreement 13 that applies to the staff. 14 258 Staff seconded to National Authority 15 The National Authority may, in consultation with the relevant 16 Regulatory Authority or the relevant Commonwealth Department, 17 make arrangements for the secondment of staff. 18 259 Consultants and contractors 19 (1) The National Authority may engage persons with suitable qualifications 20 and experience as consultants or contractors. 21 (2) The terms and conditions of engagement of consultants or contractors 22 are as decided by the National Authority from time to time. 23 Part 12 Regulatory Authority 24 260 Functions of Regulatory Authority 25 The Regulatory Authority has the following functions under this Law in 26 relation to this jurisdiction-- 27 (a) to administer the National Quality Framework; 28 (b) to assess approved education and care services against the 29 National Quality Standard and the national regulations and 30 determine the ratings of those services; 31 (c) to monitor and enforce compliance with this Law; 32 (d) to receive and investigate complaints arising under this Law; 33 Page 122 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (e) in conjunction with the National Authority and the relevant 1 Commonwealth Department, to educate and inform education 2 and care services and the community in relation to the National 3 Quality Framework; 4 (f) to work in collaboration with the National Authority to support 5 and promote continuous quality improvements in education and 6 care services; 7 (g) to undertake information collection, review and reporting for the 8 purposes of-- 9 (i) the regulation of education and care services; and 10 (ii) reporting on the administration of the National Quality 11 Framework; and 12 (iii) the sharing of information under this Law; 13 (h) any other functions conferred on the Regulatory Authority under 14 this Law. 15 261 Powers of Regulatory Authority 16 (1) The Regulatory Authority has the power to do all things that are 17 necessary or convenient to be done for, or in connection with, or that are 18 incidental to the carrying out of its functions under this Law. 19 (2) Without limiting subsection (1), the Regulatory Authority has the 20 following powers under this Law in relation to this jurisdiction-- 21 (a) to collect, hold and use information obtained under this Law by 22 the Regulatory Authority or the National Authority about the 23 provision of education and care to children including information 24 about outcomes for children and information about providers of 25 education and care services in each participating jurisdiction; 26 (b) subject to the Privacy Act 1988 of the Commonwealth, to collect, 27 hold and use information about providers of education and care 28 services, family day care educators and certified supervisors; 29 (c) to maintain and publish registers of approved providers, 30 approved education and care services and certified supervisors; 31 (d) to publish information about the National Quality Framework, 32 including ratings and prescribed information about compliance 33 with this Law; 34 (e) to collect, waive, reduce, defer and refund fees (including late 35 payment fees) and enter into agreements in relation to fees; 36 (f) to enter into agreements relating to fees and funding with the 37 National Authority; 38 (g) to exercise any other powers conferred on it by this Law. 39 Page 123 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 262 Delegations 1 (1) The Regulatory Authority may in writing delegate any of its functions 2 and powers under this Law (other than this power of delegation) to-- 3 (a) any person employed under a public sector law of this 4 jurisdiction; or 5 (b) a prescribed person or a person in a prescribed class of persons. 6 (2) A delegate of the Regulatory Authority must disclose to the Regulatory 7 Authority, at the request of the Authority, any direct or indirect personal 8 or pecuniary interest the delegate may have in relation to the delegated 9 functions and powers. 10 Part 13 Information, records and privacy 11 Division 1 Privacy 12 263 Application of Commonwealth Privacy Act 13 (1) The Privacy Act applies as a law of a participating jurisdiction for the 14 purposes of the National Quality Framework. 15 (2) For the purposes of subsection (1), the Privacy Act applies-- 16 (a) as if a reference to the Office of the Privacy Commissioner were 17 a reference to the Office of the National Education and Care 18 Services Privacy Commissioner; and 19 (b) as if a reference to the Privacy Commissioner were a reference to 20 the National Education and Care Services Privacy 21 Commissioner; and 22 (c) with any other modifications made by the national regulations. 23 (3) Without limiting subsection (2)(c), the national regulations may-- 24 (a) provide that the Privacy Act applies under subsection (1) as if a 25 provision of the Privacy Act specified in the national regulations 26 were omitted; or 27 (b) provide that the Privacy Act applies under subsection (1) as if an 28 amendment to the Privacy Act made by a law of the 29 Commonwealth, and specified in the national regulations, had 30 not taken effect; or 31 (c) confer jurisdiction on a tribunal or court of a participating 32 jurisdiction. 33 (4) In this section-- 34 Privacy Act means the Privacy Act 1988 of the Commonwealth, as in 35 force from time to time. 36 Page 124 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note Division 2 Application of Commonwealth FOI Act 1 264 Application of Commonwealth FOI Act 2 (1) The FOI Act applies as a law of a participating jurisdiction for the 3 purposes of the National Quality Framework. 4 (2) For the purposes of subsection (1), the FOI Act applies-- 5 (a) as if a reference to the Office of the Freedom of Information 6 Commissioner were a reference to the Office of the National 7 Education and Care Services Freedom of Information 8 Commissioner; and 9 (b) as if a reference to the Freedom of Information Commissioner 10 were a reference to the National Education and Care Services 11 Freedom of Information Commissioner; and 12 (c) with any other modifications made by the national regulations. 13 (3) Without limiting subsection (2), the national regulations may-- 14 (a) provide that the FOI Act applies under subsection (1) as if a 15 provision of the FOI Act specified in the national regulations 16 were omitted; or 17 (b) provide that the FOI Act applies under subsection (1) as if an 18 amendment to the FOI Act made by a law of the Commonwealth, 19 and specified in the national regulations, had not taken effect; or 20 (c) confer jurisdiction on a tribunal or court of a participating 21 jurisdiction. 22 (4) In this section-- 23 FOI Act means the Freedom of Information Act 1982 of the 24 Commonwealth, as in force from time to time. 25 Division 3 Application of New South Wales State Records 26 Act 27 265 Application of State Records Act 28 (1) The State Records Act applies as a law of a participating jurisdiction for 29 the purposes of the National Quality Framework except to the extent 30 that this Law applies to a Regulatory Authority and the records of a 31 Regulatory Authority. 32 (2) The national regulations may modify the State Records Act for the 33 purposes of this Law. 34 Page 125 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) Without limiting subsection (2), the national regulations may-- 1 (a) provide that the State Records Act applies under subsection (1) as 2 if a provision of the State Records Act specified in the national 3 regulations were omitted; or 4 (b) provide that the State Records Act applies under subsection (1) as 5 if an amendment to the State Records Act made by a law of New 6 South Wales, and specified in the national regulations, had not 7 taken effect; or 8 (c) confer jurisdiction on a tribunal or court of a participating 9 jurisdiction. 10 (4) In this section-- 11 State Records Act means the State Records Act 1998 of New South 12 Wales, as in force from time to time. 13 Division 4 Registers 14 266 Register of approved providers 15 (1) The National Authority must keep a register of approved providers. 16 (2) The register must contain-- 17 (a) the name of each approved provider; and 18 (b) any other prescribed information. 19 (3) The register of approved providers may be inspected at the office of the 20 National Authority during normal office hours without charge. 21 (4) A person may obtain a copy of, or extract from, the register of approved 22 providers on payment of the prescribed fee. 23 267 Register of education and care services 24 (1) The Regulatory Authority must keep a register of approved education 25 and care services operating in the participating jurisdiction. 26 (2) The register of approved education and care services must contain the 27 following information-- 28 (a) the name of each service; 29 (b) the name of the approved provider of each service; 30 (c) except in the case of a family day care service, the address of each 31 education and care service premises; 32 (d) in the case of an approved family day care service, the address of 33 the principal office of the service; 34 Page 126 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (e) the rating levels for each service; 1 (f) any other prescribed information. 2 (3) The register of approved education and care services may be inspected 3 at the office of the Regulatory Authority during normal office hours 4 without charge. 5 (4) A person may obtain a copy of, or extract from, the register of approved 6 education and care services on payment of the prescribed fee. 7 (5) The Regulatory Authority must provide a copy of the register of 8 approved education and care services (as updated from time to time) to 9 the National Authority and the relevant Commonwealth Department. 10 268 Register of certified supervisors 11 (1) The National Authority must keep a register of certified supervisors. 12 (2) The register of certified supervisors must contain the following 13 information-- 14 (a) the name of each certified supervisor; 15 (b) any other prescribed information. 16 (3) The register of certified supervisors may be inspected at the office of the 17 National Authority during normal office hours without charge. 18 (4) A person may obtain a copy of, or extract from, the register of certified 19 supervisors on payment of the prescribed fee. 20 269 Register of family day care educators 21 (1) The approved provider of a family day care service must keep at its 22 principal office a register of each family day care educator and any other 23 person engaged by or registered with a family day care service to 24 educate and care for a child. 25 (2) The register must contain the prescribed information in respect of each 26 family day care educator engaged by or registered with a family day 27 care service to educate and care for children. 28 (3) The approved provider must provide any information on the register of 29 family day care educators and any changes to that information to the 30 Regulatory Authority on request. 31 Page 127 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law Division 5 Publication of information 1 270 Publication of information 2 (1) The National Authority and the Regulatory Authority may publish the 3 following information about approved providers, approved education 4 and care services and certified supervisors-- 5 (a) the name of each provider, service or supervisor; 6 (b) except in the case of approved family day care services, the 7 address of each education and care service premises; 8 (c) in the case of approved family day care services, the address of 9 the principal office of each service; 10 (d) the rating levels of each approved education and care service; 11 (e) other prescribed information in respect of approved education 12 and care services. 13 (2) The National Authority-- 14 (a) must publish on its website-- 15 (i) the register of approved providers; and 16 (ii) the register of certified supervisors; and 17 (b) may publish on its website the register of approved education and 18 care services as kept by a Regulatory Authority. 19 (3) The Regulatory Authority must publish on its website the register of 20 approved education and care services kept by the Regulatory Authority. 21 (4) The relevant Commonwealth Department is authorised to publish the 22 register of approved education and care services on a website kept by 23 that department. 24 (5) The Regulatory Authority may publish the prescribed information 25 about-- 26 (a) enforcement actions taken under this Law, including information 27 about compliance notices, prosecutions, enforceable 28 undertakings, suspension or cancellation of approvals or 29 certificates; and 30 (b) any prescribed matters. 31 (6) Information published under this section must not include information 32 that could identify or lead to the identification of an individual other 33 than-- 34 (a) an approved provider or certified supervisor; or 35 (b) a person who is being prosecuted for an offence against this Law. 36 Page 128 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note Division 6 Disclosure of information 1 271 Disclosure of information to other authorities 2 (1) The Regulatory Authority and any government department, public 3 authority and local authority may disclose information in respect of 4 education and care services to each other for the purposes of this Law. 5 (2) The Regulatory Authority may disclose information in respect of 6 education and care services to the National Authority or a Regulatory 7 Authority of a participating jurisdiction or a person acting for that 8 Authority-- 9 (a) for the purposes of this Law; or 10 (b) for the purposes of research and the development of national 11 policy with respect to education and care services. 12 (3) The Regulatory Authority may disclose information in respect of 13 education and care services to the relevant Commonwealth Department 14 or a person acting for the relevant Commonwealth Department-- 15 (a) for the purposes of this Law; or 16 (b) for the purposes of research and the development of national 17 policy with respect to education and care services; or 18 (c) for a purpose relating to the funding of education and care 19 services; or 20 (d) for a purpose relating to the payment of benefits or allowances to 21 persons using education and care services. 22 (4) The Regulatory Authority must disclose to the Regulatory Authorities 23 of other participating jurisdictions the suspension or cancellation of a 24 working with children check, working with children card or teacher 25 registration of a nominated supervisor or certified supervisor of which 26 it is notified under this Law. 27 (5) The Regulatory Authority may disclose to the head of the government 28 department responsible for the administration of a working with 29 children law, any prohibition notice issued under this Law as applying 30 in any participating jurisdiction in respect of the person. 31 (6) A disclosure of information under this section is subject to-- 32 (a) Division 1; and 33 (b) any protocol approved by the National Authority for the purposes 34 of this section. 35 Page 129 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (7) Information provided under this section must not include information 1 that could identify or lead to the identification of an individual other 2 than-- 3 (a) an approved provider or a certified supervisor; or 4 (b) a family day care educator who has been suspended from 5 providing education and care to children as part of a family day 6 care service; or 7 (c) a person to whom a prohibition notice applies; or 8 (d) a person who is being prosecuted for an offence against this Law. 9 272 Disclosure of information to education and care services 10 (1) If requested by an approved provider, the Regulatory Authority may 11 disclose the following information-- 12 (a) whether a person named in the request is subject to a prohibition 13 notice issued under this Law as applying in any participating 14 jurisdiction; 15 (b) whether a family day care educator named in the request has been 16 suspended from providing education and care to children as part 17 of a family day care service. 18 (2) A disclosure of information under this section is subject to-- 19 (a) Division 1; and 20 (b) any protocol approved by the National Authority for the purposes 21 of this section. 22 273 Duty of confidentiality 23 (1) An individual who is, or who has been, a person exercising functions 24 under this Law must not disclose to another person protected 25 information. 26 Penalty: $5000. 27 (2) However, subsection (1) does not apply if-- 28 (a) the information is disclosed in the exercise of a function under, or 29 for the purposes of, or in accordance with, this Law; or 30 (b) the disclosure is authorised or required by any law of a 31 participating jurisdiction, or is otherwise required or permitted by 32 law; or 33 (c) the disclosure is with the agreement of the person to whom the 34 information relates; or 35 (d) the information relates to proceedings before a court or tribunal 36 and the proceedings are or were open to the public; or 37 Page 130 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (e) the information is, or has been accessible to the public, including 1 because it was published for the purposes of, or in accordance 2 with, this Law; or 3 (f) the disclosure is otherwise authorised by the Ministerial Council. 4 (3) In this section-- 5 protected information means information-- 6 (a) that is personal to a particular individual and that identifies or 7 could lead to the identification of the individual; and 8 (b) that comes to a person's knowledge in the course of, or because 9 of, the person exercising functions under this Law. 10 Part 14 Miscellaneous 11 Division 1 Finance 12 274 Australian Children's Education and Care Quality Authority Fund 13 (1) The Australian Children's Education and Care Quality Authority Fund 14 is established. 15 (2) The Authority Fund is a fund to be administered by the National 16 Authority. 17 (3) The National Authority may establish accounts with any financial 18 institution for money in the Authority Fund. 19 (4) The Authority Fund does not form part of the consolidated fund or 20 consolidated account of a participating jurisdiction or the 21 Commonwealth. 22 275 Payments into Authority Fund 23 There is payable into the Authority Fund-- 24 (a) all money provided by a participating jurisdiction or the 25 Commonwealth for the purposes of the Fund; and 26 (b) the proceeds of the investment of money in the Fund; and 27 (c) all grants, gifts and donations made to the National Authority, but 28 subject to any trusts declared in relation to the grants, gifts or 29 donations; and 30 (d) all money directed or authorised to be paid into the Fund by or 31 under this Law, any law of a participating jurisdiction or any law 32 of the Commonwealth; and 33 (e) any other money and property prescribed by the national 34 regulations; and 35 Page 131 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (f) any other money or property received by the National Authority 1 in connection with the exercise of its functions. 2 276 Payments out of Authority Fund 3 Payments may be made from the Authority Fund for the purpose of-- 4 (a) paying any costs or expenses, or discharging any liabilities, 5 incurred by the National Authority in the administration or 6 enforcement of this Law or in the performance of its functions or 7 duties or the exercise of its powers; and 8 (b) paying any remuneration or allowances payable under this Law 9 by the National Authority; and 10 (c) allocating, transferring or reimbursing money to a participating 11 jurisdiction in accordance with the national regulations; and 12 (d) any other payments recommended by the National Authority and 13 approved by the Ministerial Council. 14 277 Investment of money in Authority Fund 15 The National Authority may invest money in the Authority Fund in 16 accordance with the national regulations. 17 278 Financial management duties of National Authority 18 The National Authority must-- 19 (a) ensure that its operations are carried out efficiently, effectively 20 and economically; and 21 (b) keep proper books and records in relation to the Authority Fund; 22 and 23 (c) ensure that expenditure is made from the Authority Fund for 24 lawful purposes only and, as far as possible, reasonable value is 25 obtained for money expended from the Fund; and 26 (d) ensure that its procedures, including internal control procedures, 27 afford adequate safeguards with respect to-- 28 (i) the correctness, regularity and propriety of payments made 29 from the Authority Fund; and 30 (ii) receiving and accounting for payments made to the 31 Authority Fund; and 32 (iii) prevention of fraud or mistake; and 33 (e) take any action necessary to ensure the preparation of accurate 34 financial statements in accordance with Australian Accounting 35 Standards for inclusion in its annual report; and 36 Page 132 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (f) take any action necessary to facilitate the audit of those financial 1 statements in accordance with this Law; and 2 (g) arrange for any further audit by a qualified person of the books 3 and records kept by the National Authority in relation to the 4 Authority Fund, if directed to do so by the Ministerial Council. 5 Division 2 Reporting 6 279 Annual report 7 (1) The Board must, within 4 months after the end of each financial year, 8 submit an annual report of the National Authority for the financial year 9 to the Ministerial Council. 10 (2) The annual report must include-- 11 (a) an audited financial statement for the period to which the report 12 relates; and 13 (b) a report about the National Authority's performance of its 14 functions under this Law during the period to which the annual 15 report relates; and 16 (c) an assessment of the implementation and administration of the 17 National Quality Framework; and 18 (d) all directions given to the National Authority by the Ministerial 19 Council and the Authority's response; and 20 (e) all directions given to the Regulatory Authorities by the 21 Ministerial Council and the Regulatory Authorities' responses; 22 and 23 (f) a report on any committees established by the Board; and 24 (g) any other matter determined by the Ministerial Council. 25 (3) The financial statement is to be prepared in accordance with Australian 26 Accounting Standards. 27 (4) The financial statement is to be audited by a public sector auditor and a 28 report is to be provided by the auditor. 29 (5) The Ministerial Council may extend, or further extend, the period for 30 submission of an annual report to the Council by a total period of up to 31 3 months. 32 (6) In this section-- 33 public sector auditor means-- 34 (a) the Auditor-General (however described) of a participating 35 jurisdiction or the Commonwealth; or 36 Page 133 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (b) an auditor employed, appointed or otherwise engaged by an 1 Auditor-General of a participating jurisdiction or the 2 Commonwealth. 3 280 Tabling and publication of annual report 4 (1) The Ministerial Council must make arrangements for the tabling of the 5 annual report of the National Authority, and the report of the public 6 sector auditor with respect to the financial statement in the report, in the 7 Parliament of a participating jurisdiction determined by the Ministerial 8 Council. 9 (2) As soon as practicable after the annual report has been tabled in the 10 Parliament determined under subsection (1), the National Authority 11 must publish a copy of the report on its website. 12 281 Other reporting 13 (1) The National Authority may make any reports to the Ministerial 14 Council that it considers necessary in the performance of its functions. 15 (2) The Chairperson of the Board must provide to the Ministerial Council 16 any other reports and documents and information relating to the 17 operations of the National Authority that the Ministerial Council 18 requires. 19 (3) The Chairperson of the Board may provide to the responsible Minister 20 of a participating jurisdiction and the Commonwealth Minister any 21 reports and documents and information relating to the operations of the 22 National Authority that the responsible Minister requires. 23 (4) The reports, documents and information referred to in subsection (2) 24 must be provided within the time set by the Ministerial Council. 25 Division 3 Application of Commonwealth Ombudsman Act 26 282 Application of Commonwealth Ombudsman Act 27 (1) The Ombudsman Act applies as a law of a participating jurisdiction for 28 the purposes of this Law except to the extent that this Law applies to a 29 Regulatory Authority and the employees, decisions, actions and records 30 of a Regulatory Authority. 31 (2) For the purposes of subsection (1), the Ombudsman Act applies-- 32 (a) as if a reference to the Commonwealth Ombudsman were a 33 reference to the Education and Care Services Ombudsman; and 34 (b) with any other modifications made by the national regulations. 35 Page 134 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (3) Without limiting subsection (2), the national regulations may-- 1 (a) provide that the Ombudsman Act applies under subsection (1) as 2 if a provision of the Ombudsman Act specified in the regulations 3 were omitted; or 4 (b) provide that the Ombudsman Act applies under subsection (1) as 5 if an amendment to the Ombudsman Act made by a law of the 6 Commonwealth, and specified in the regulations, had not taken 7 effect; or 8 (c) confer jurisdiction on a tribunal or court of a participating 9 jurisdiction. 10 (4) In this section-- 11 Ombudsman Act means the Ombudsman Act 1976 of the 12 Commonwealth, as in force from time to time. 13 Division 4 Legal proceedings 14 283 Who may bring proceedings for an offence? 15 (1) The following persons may bring proceedings for an offence under this 16 Law-- 17 (a) the Regulatory Authority; 18 (b) a person authorised by the Regulatory Authority; 19 (c) a police officer. 20 (2) In a proceeding for an offence against this Law or the regulations it must 21 be presumed, in the absence of evidence to the contrary, that the person 22 bringing the proceeding was authorised to bring it. 23 284 When proceedings may be brought 24 Proceedings for an offence under this Law must be commenced within 25 2 years of the date of the alleged offence. 26 285 Offences by bodies corporate 27 (1) If a body corporate commits an offence against this Law, any person 28 with management or control of the body corporate who failed to 29 exercise due diligence to prevent the contravention that is the subject of 30 the offence also commits that offence and is liable to the penalty for that 31 offence. 32 (2) The penalty for an offence referred to in this section is the penalty 33 applicable to an individual. 34 Page 135 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 286 Application of Law to partnerships and eligible associations and other 1 entities 2 (1) If this Law would otherwise require or permit something to be done by 3 a partnership, the thing may be done by one or more of the partners on 4 behalf of the partnership. 5 (2) If this Law would otherwise require or permit something to be done by 6 an eligible association, the thing may be done by one or more of the 7 members of the executive committee on behalf of the association. 8 (3) If this Law would otherwise require or permit something to be done by 9 a prescribed entity, the thing may be done by one or more of the persons 10 with management or control of the entity on behalf of the entity. 11 (4) An offence against this Law that would otherwise be committed by the 12 partnership is taken to have been committed by each partner who is a 13 person with management or control of the partnership. 14 (5) An offence against this Law that would otherwise be committed by an 15 eligible association is taken to have been committed by each person 16 who is a person with management or control of the association. 17 (6) An offence against this Law that would otherwise be committed by a 18 prescribed entity is taken to have been committed by each person who 19 is a person with management or control of that entity. 20 (7) The penalty for an offence that is taken to be committed under this 21 section is the penalty applicable to an individual. 22 287 Multiple holders of an approval 23 If more than one person holds a provider approval or service approval 24 under this Law each holder of the approval is jointly and severally 25 responsible for compliance with this Law. 26 288 Double jeopardy 27 If a person has been convicted or found guilty in another participating 28 jurisdiction for an offence against this Law as it applies in that 29 jurisdiction, proceedings cannot be brought in this jurisdiction against 30 the same person in respect of an offence concerning the same 31 subject-matter. 32 289 Immunity 33 (1) A member of the Board of the National Authority, a committee of the 34 Board or a Ratings Review Panel is not personally liable for anything 35 done or omitted to be done in good faith-- 36 (a) in the exercise of a power or the performance of a function under 37 this Law; or 38 Page 136 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) in the reasonable belief that the action or omission was in the 1 exercise of the power or the performance of the function under 2 this Law. 3 (2) Any liability resulting from an act or omission that would, but for 4 subsection (1), attach to an individual referred to in that subsection 5 attaches instead to the National Authority. 6 (3) The Regulatory Authority (if an individual) or a member of the 7 governing body of the Regulatory Authority is not personally liable for 8 anything done or omitted to be done in good faith-- 9 (a) in the exercise of a power or the performance of a function under 10 this Law; or 11 (b) in the reasonable belief that the action or omission was in the 12 exercise of the power or the performance of the function under 13 this Law. 14 (4) Any liability resulting from an act or omission that would, but for 15 subsection (3), attach to an individual referred to in that subsection 16 attaches instead to the State. 17 290 Immunity--education law 18 (1) This section applies if the Regulatory Authority becomes aware of 19 misconduct by a registered teacher or other person who could be subject 20 to disciplinary action under an education law of a participating 21 jurisdiction. 22 (2) The Regulatory Authority may refer the matter to the relevant 23 disciplinary body under the education law. 24 (3) If the Regulatory Authority refers a matter under subsection (2), a 25 prosecution cannot be brought under this Law for an offence in relation 26 to that matter. 27 291 Infringement offences 28 (1) An authorised officer or other person authorised by the Regulatory 29 Authority may serve an infringement notice on a person for a 30 contravention of-- 31 (a) section 172, 173 or 176; or 32 (b) offences against the national regulations that are prescribed for 33 the purposes of this section. 34 (2) The infringement penalty for an offence for which an infringement 35 notice may be served on a person is the amount which is 10 per cent of 36 the maximum penalty that could be imposed on the person in respect of 37 that offence. 38 Page 137 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) An infringement notice must be in the form prescribed or contain the 1 information prescribed by the infringements law of this jurisdiction. 2 (4) Subject to this section, the infringements law of this jurisdiction applies 3 to infringement notices served under this section in this jurisdiction. 4 (5) The payment of an infringement penalty expiates the offence and is not 5 to be considered in-- 6 (a) assessing whether a person is a fit and proper person to be 7 involved in the provision of, or to be a supervisor of, an education 8 and care service; or 9 (b) assessing an approved education and care service under Part 5. 10 292 Evidentiary certificates 11 A certificate purporting to be signed by the chief executive officer of the 12 National Authority or by a Regulatory Authority and stating any of the 13 following matters is prima facie evidence of the matter-- 14 (a) a stated document is one of the following things made, given, 15 issued or kept under this Law-- 16 (i) an appointment, approval or decision; 17 (ii) a notice, direction or requirement; 18 (iii) a supervisor certificate; 19 (iv) a register, or an extract from a register; 20 (v) a record, or an extract from a record; 21 (b) a stated document is another document kept under this Law; 22 (c) a stated document is a copy of a document mentioned in 23 paragraph (a) or (b); 24 (d) on a stated day, or during a stated period, a stated person was or 25 was not an approved provider or a certified supervisor; 26 (e) on a stated day, or during a stated period, an education and care 27 service was or was not an approved education and care service; 28 (f) on a stated day, or during a stated period, an approval was or was 29 not subject to a stated condition; 30 (g) on a stated day, an approval or supervisor certificate was 31 suspended or cancelled; 32 (h) on a stated day, or during a stated period, an appointment as 33 authorised officer was, or was not, in force for a stated person; 34 (i) on a stated day, a stated person was given a stated notice or 35 direction under this Law; 36 (j) on a stated day, a stated requirement was made of a stated person. 37 Page 138 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note Division 5 Service of notices 1 293 Service of notices 2 (1) If this Law requires or permits a notice to be served on a person, the 3 notice may be served-- 4 (a) on an individual by-- 5 (i) delivering it to the individual personally; or 6 (ii) leaving it at, or by sending it by post to, the address 7 notified to the sender by the individual as an address at 8 which service of notices under this Law will be accepted 9 or otherwise the address of the place of residence or 10 business of the individual last known to the person serving 11 the document; or 12 (iii) sending it by facsimile transmission to a facsimile number 13 notified to the sender by the individual as an address at 14 which service of notices under this Law will be accepted; 15 or 16 (iv) sending it by email to an internet address notified to the 17 sender by the individual as an address at which service of 18 notices under this Law will be accepted; or 19 (b) on a person other than an individual by-- 20 (i) leaving it at, or by sending it by post to, the address 21 notified to the sender by the person as an address at which 22 service of notices under this Law will be accepted or 23 otherwise the address of the head office, a registered office 24 or the principal place of business of the person; or 25 (ii) sending it by facsimile transmission to a facsimile number 26 notified to the sender by the person as an address at which 27 service of notices under this Law will be accepted; or 28 (iii) sending it by email to an internet address notified to the 29 sender by the person as an address at which service of 30 notices under this Law will be accepted. 31 (2) Subsection (1) applies whether the word "deliver", "give", "notify", 32 "send" or "serve" or another expression is used. 33 (3) Subsection (1) does not affect the power of a court or tribunal to 34 authorise service of a notice otherwise than as provided in that 35 subsection. 36 Page 139 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 294 Service by post 1 If a notice authorised or required to be served (whether the word 2 "deliver", "give", "notify", "send" or "serve" or another expression is 3 used) on a person is served by post, service of the notice-- 4 (a) may be effected by properly addressing, prepaying and posting a 5 letter containing the document; and 6 (b) in Australia or in an external Territory--is, unless evidence 7 sufficient to raise doubt is adduced to the contrary, taken to have 8 been effected on the fourth day after the letter was posted; and 9 (c) in another place--is, unless evidence sufficient to raise doubt is 10 adduced to the contrary, taken to have been effected at the time 11 when the letter would have been delivered in the ordinary course 12 of the post. 13 Division 6 False or misleading information 14 295 False or misleading information or documents 15 (1) A person must not give the Regulatory Authority or an authorised 16 officer under this Law any information or document that the person 17 knows is false or misleading in a material particular. 18 Penalty: 19 $6000, in the case of an individual. 20 $30 000, in any other case. 21 (2) Subsection (1) does not apply in respect of the giving of a document, if 22 the person when giving the document-- 23 (a) informs the Regulatory Authority or authorised officer, to the 24 best of the person's ability, how it is false or misleading; and 25 (b) gives the correct information to the Regulatory Authority or 26 authorised officer if the person has, or can reasonably obtain, the 27 correct information. 28 Division 7 Protection from reprisal 29 296 Definitions 30 In this Division-- 31 protected disclosure means a disclosure of information or provision of 32 documents to the Regulatory Authority-- 33 (a) pursuant to a request under this Law; or 34 Page 140 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) where the person making the disclosure has a reasonable belief 1 that-- 2 (i) an offence against this Law has been or is being 3 committed; or 4 (ii) the safety, health or wellbeing of a child or children being 5 educated and cared for by an education and care service is 6 at risk; 7 serious detrimental action includes dismissal, involuntary transfer, loss 8 of promotion and demotion. 9 297 Protection from reprisal 10 (1) A person must not take serious detrimental action against a person in 11 reprisal for a protected disclosure. 12 Penalty: 13 $10 000 in the case of an individual. 14 $50 000 in any other case. 15 (2) A person takes serious detrimental action in reprisal for a protected 16 disclosure if-- 17 (a) the person takes or threatens to take the action because-- 18 (i) a person has made, or intends to make, a protected 19 disclosure; or 20 (ii) the person believes that a person has made or intends to 21 make the protected disclosure; or 22 (b) the person incites or permits another person to take or threaten to 23 take the action for either of those reasons. 24 (3) In determining whether a person takes serious detrimental action in 25 reprisal, it is irrelevant whether or not a reason referred to in 26 subsection (2) is the only or dominant reason as long as it is a substantial 27 reason. 28 298 Proceedings for damages for reprisal 29 (1) A person who takes serious detrimental action against a person in 30 reprisal for a protected disclosure is liable in damages to that person. 31 (2) The damages may be recovered in proceedings as for a tort in any court 32 of competent jurisdiction. 33 (3) Any remedy that may be granted by a court with respect to a tort, 34 including exemplary damages, may be granted by a court in 35 proceedings under this section. 36 Page 141 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (4) The right of a person to bring proceedings for damages does not affect 1 any other right or remedy available to the person arising from the 2 serious detrimental action. 3 299 Application for injunction or order 4 A person who believes that serious detrimental action has been taken or 5 may be taken against him or her in reprisal for a protected disclosure 6 may apply to the superior court for-- 7 (a) an order requiring the person who has taken the serious 8 detrimental action to remedy that action; or 9 (b) an injunction. 10 300 Injunction or order 11 (1) If, on receipt of an application under section 299, the superior court is 12 satisfied that a person has taken or intends to take serious detrimental 13 action against a person in reprisal for a protected disclosure, the court 14 may-- 15 (a) order the person who took the serious detrimental action to 16 remedy that action; or 17 (b) grant an injunction in any terms the court considers appropriate. 18 (2) The superior court, pending the final determination of an application 19 under section 299, may-- 20 (a) make an interim order in the terms of subsection (1)(a); or 21 (b) grant an interim injunction. 22 Division 8 National regulations 23 301 National regulations 24 (1) The Ministerial Council may make regulations for the purposes of this 25 Law. 26 (2) The national regulations may provide for any matter that is required or 27 permitted to be prescribed or necessary or convenient to be prescribed 28 for carrying out or giving effect to this Law. 29 (3) Without limiting subsection (1), the national regulations may provide 30 for the following-- 31 (a) fees (including application fees and annual fees) for approvals 32 and certificates and other things done under this Law; 33 (b) the indexation of fees; 34 (c) standards for education and care services; 35 Page 142 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (d) requirements for educational programs, including the quality of 1 those programs and their development, documentation and 2 delivery; 3 (e) requirements and standards to be complied with for the safety, 4 health and wellbeing of children being educated and cared for by 5 an education and care service; 6 (f) requirements and standards to be complied with for safety, 7 security, cleanliness, comfort, hygiene and repair of premises, 8 outdoor spaces, fencing, gates, resources and equipment used for 9 providing education and care services; 10 (g) requirements and standards about the premises to be used to 11 provide an education and care service including siting, design, 12 layout, space, security and entitlement to occupy; 13 (h) requirements and standards for the staffing of education and care 14 services including the recruitment (and conduct of criminal 15 history or other security checks) and the appointment of staff, 16 performance improvement, professional standards, professional 17 development, numbers and qualifications of educators (including 18 minimum age and requirements concerning groups of children of 19 different ages and composition) and staffing rosters and 20 arrangements; 21 (i) requirements and standards about educators' relationships with 22 children, interactions and behaviour guidance and inclusion 23 policies and practice for education and care services; 24 (j) requirements and standards for partnerships between education 25 and care services and the community in which they are located 26 and the families of children being educated and cared for by 27 education and care services, including requirements for services 28 to link to other support services for children and families; 29 (k) requirements and standards as to the leadership and management 30 of education and care services including governance and fitness 31 and propriety of all staff members and volunteers, management 32 of grievances and complaints and the provision of information to 33 families; 34 (l) the records, policies and procedures to be kept by approved 35 providers and family day care educators including enrolment and 36 attendance information; 37 (m) requirements and standards about first aid and management of 38 children's medical conditions including-- 39 (i) the training of educators and staff members; and 40 (ii) plans, policies and procedures used to manage medical 41 conditions and first aid; and 42 Page 143 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (iii) the keeping and storage of first aid kits and medications; 1 (n) information required to be submitted for applications made under 2 this Law; 3 (o) requirements and standards for the provision and display of 4 information by approved providers; 5 (p) the publication of information about enforcement actions taken 6 under this Law, including notice and review of proposals to 7 publish information; 8 (q) matters relating to the application of this Law to partnerships, 9 eligible associations or prescribed entities; 10 (r) requirements relating to the receipt and payment and distribution 11 of fees and monetary penalties payable under this Law. 12 (4) The national regulations-- 13 (a) may be of a general or limited application; 14 (b) may differ according to differences in time, place (including 15 jurisdiction) or circumstances; 16 (c) may differ according to the type or class of education and care 17 service and the ages of children being educated and cared for by 18 a service; 19 (d) may exempt any education and care service or any type or class 20 of education and care service from complying with all or any of 21 the regulations; 22 (e) may leave any matter or thing to be from time to time determined, 23 applied, dispensed with or regulated by a Regulatory Authority; 24 (f) may apply, adopt or incorporate by reference any document 25 either-- 26 (i) as in force at the date the national regulations come into 27 operation or at any date before then; or 28 (ii) wholly or in part or as amended by the national 29 regulations; 30 (g) may impose penalties not exceeding $2000 for offences against 31 the national regulations. 32 302 Publication of national regulations 33 (1) The national regulations are to be published on the NSW Legislation 34 website in accordance with Part 6A of the Interpretation Act 1987 of 35 New South Wales. 36 (2) A regulation commences on the day or days specified in the regulation 37 for its commencement (being not earlier than the date it is published). 38 Page 144 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 303 Parliamentary scrutiny of national regulations 1 (1) The member of the Ministerial Council representing a participating 2 jurisdiction is to make arrangements for the tabling of a regulation made 3 under this Law in each House of the Parliament of the participating 4 jurisdiction. 5 (2) A committee of the Parliament of a participating jurisdiction may 6 consider, and report to the Parliament about, the regulation in the same 7 way the committee may consider and report to the Parliament about 8 regulations made under Acts of that jurisdiction. 9 (3) A regulation made under this Law may be disallowed in a participating 10 jurisdiction by a House of the Parliament of that jurisdiction in the same 11 way, and within the same period, that a regulation made under an Act of 12 that jurisdiction may be disallowed. 13 (4) A regulation disallowed under subsection (3) does not cease to have 14 effect in the participating jurisdiction, or any other participating 15 jurisdiction, unless the regulation is disallowed in a majority of the 16 participating jurisdictions. 17 (5) If a regulation is disallowed in a majority of the participating 18 jurisdictions, it ceases to have effect in all participating jurisdictions on 19 the day of its disallowance in the last of the jurisdictions forming the 20 majority. 21 (6) In this section-- 22 regulation includes a provision of a regulation. 23 304 Effect of disallowance of national regulation 24 (1) The disallowance of a regulation in a majority of jurisdictions has the 25 same effect as a repeal of the regulation. 26 (2) If a regulation ceases to have effect under section 303 any law or 27 provision of a law repealed or amended by the regulation is revived as 28 if the disallowed regulation had not been made. 29 (3) The restoration or revival of a law under subsection (2) takes effect at 30 the beginning of the day on which the disallowed regulation by which it 31 was amended or repealed ceases to have effect. 32 (4) In this section-- 33 regulation includes a provision of a regulation. 34 Page 145 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law Part 15 Transitional provisions 1 Division 1 Introductory 2 305 Definitions 3 In this Part-- 4 declared approved family day care service, in relation to a participating 5 jurisdiction, means an education and care service that is declared by a 6 law of that jurisdiction to be a declared approved family day care 7 service for the purposes of this Law; 8 declared approved family day care venue, in relation to a participating 9 jurisdiction, means a place other than a residence that is declared by a 10 law of that jurisdiction to be a declared approved family day care venue 11 for the purposes of this Law; 12 declared approved provider, in relation to a participating jurisdiction, 13 means a person or a person in a class of persons declared by a law of 14 that jurisdiction to be a declared approved provider for the purposes of 15 this Law; 16 declared approved service, in relation to a participating jurisdiction, 17 means an education and care service that is declared by a law of that 18 jurisdiction to be a declared approved service for the purposes of this 19 Law; 20 declared certified supervisor, in relation to a participating jurisdiction, 21 means a person or a person in a class of persons declared by a law of 22 that jurisdiction to be a declared certified supervisor for the purposes of 23 this Law; 24 declared compliance notice, in relation to a participating jurisdiction, 25 means an order or notice under a former education and care services law 26 that is declared by a law of that jurisdiction to be a declared compliance 27 notice for the purposes of this Law; 28 declared enforceable undertaking, in relation to a participating 29 jurisdiction, means an undertaking entered into under a former 30 education and care services law that is declared by a law of that 31 jurisdiction to be a declared enforceable undertaking under this Law; 32 declared nominated supervisor, in relation to a participating 33 jurisdiction, means a person or a person in a class of persons declared 34 by a law of that jurisdiction to be a declared nominated supervisor for 35 the purposes of this Law; 36 declared out of scope service, in relation to a participating jurisdiction, 37 means an education and care service-- 38 (a) for which a former approval was not required under a former 39 education and care services law; and 40 Page 146 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) that is declared by a law of that jurisdiction to be a declared out 1 of scope service for the purposes of this Law; 2 former approval, in relation to a participating jurisdiction, means an 3 approval, licence or other authorisation under a former education and 4 care services law that is declared by a law of that jurisdiction to be a 5 former approval for the purposes of this Law; 6 scheme commencement day means the day on which Parts 2, 3 and 4 of 7 this Law commence. 8 Division 2 Education and care services 9 306 Approved provider 10 (1) Any person who immediately before the scheme commencement day 11 was a declared approved provider is taken to be an approved provider 12 under this Law. 13 (2) Subsection (1) does not apply if the declared approved provider is a 14 prescribed ineligible person. 15 (3) Subsection (1) does not apply to a declared approved provider whose 16 former approval was suspended under the former education and care 17 services law immediately before the scheme commencement day 18 because the provider was not a fit and proper person (however 19 described) to operate the declared approved service. 20 (4) If a declared approved provider is a trust, the trustee or trustees of the 21 trust are taken to be an approved provider under this Law. 22 (5) The trust must, within 30 days after the scheme commencement day, 23 notify the Regulatory Authority of the identity of the trustees of the 24 trust. 25 (6) If a notice is not given under subsection (5) within the required period, 26 each trustee of the trust ceases to be an approved provider under this 27 Law at the end of that period. 28 (7) If a person is taken under this section to be an approved provider, the 29 person is taken to be the holder of a provider approval for the purposes 30 of this Law. 31 (8) If a person is taken under this section to hold a provider approval, any 32 conditions of the former approval relating to that person are taken to be 33 conditions of the provider approval unless they are inconsistent with 34 this Law. 35 Page 147 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (9) The Regulatory Authority must, on or before 30 June 2012, provide 1 each person who is taken under this section to be the holder of a 2 provider approval with a copy of the provider approval setting out the 3 relevant matters in section 20. 4 307 Service approvals 5 (1) Any person who immediately before the scheme commencement day 6 held a former approval in respect of a declared approved service (other 7 than a declared approved family day care service) is taken to hold a 8 service approval in respect of that service under this Law. 9 (2) Any person who immediately before the scheme commencement day 10 held a former approval with respect to a declared approved family day 11 care service is taken to hold a service approval for that family day care 12 service under this Law. 13 (3) Subsection (1) and (2) do not apply if the person is a prescribed 14 ineligible person. 15 (4) If subsection (1) or (2) applies, the declared approved service is taken 16 from the scheme commencement day to be an approved education and 17 care service. 18 (5) This section does not apply to a former approval that was under 19 suspension under the former education and care services law 20 immediately before the scheme commencement day because the person 21 who held that approval was not a fit and proper person (however 22 described) to operate the declared approved service. 23 (6) If a former approval was under suspension under the former education 24 and care services law immediately before the scheme commencement 25 day for a reason other than the reason in subsection (5), the service 26 approval for the education and care service under this Law is taken to 27 be suspended under this Law for the period of the suspension. 28 (7) The Regulatory Authority must determine before the expiry of the 29 period of suspension referred to in subsection (6) (other than for a 30 voluntary suspension) whether-- 31 (a) the suspension should be cancelled or a further period of 32 suspension should be imposed; or 33 (b) the service approval should be cancelled. 34 (8) Any conditions imposed on the former approval under the former 35 education and care services law are taken to be conditions on the service 36 approval unless the conditions are inconsistent with this Law. 37 Page 148 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (9) The Regulatory Authority must, on or before 30 June 2012, provide 1 each person who is taken under this section to hold a former approval in 2 respect of a declared approved service with a copy of the service 3 approval for the service setting out the relevant matters in section 52. 4 308 Approved family day care venues 5 A declared approved family day care venue existing under a former 6 education and care services law immediately before the scheme 7 commencement day is taken on and after the scheme commencement 8 day to be an approved family day care venue under this Law. 9 309 Approval of declared out of scope services 10 A person who operated a declared out of scope service immediately 11 before the scheme commencement day is taken under this Law to hold 12 a provider approval and a service approval for the declared out of scope 13 service for the period from and including 1 January 2012-- 14 (a) to 30 June 2012, unless paragraph (b) applies; or 15 (b) if the person applies under this Law to the Regulatory Authority 16 for a provider approval and for a service approval and the 17 applications are received by the Regulatory Authority on or 18 before 30 June 2012, to the date on which those applications are 19 finally determined under this Law. 20 310 Application for service waiver or temporary waiver 21 (1) This section applies to an education and care service that was exempt 22 under a former education and care services law from a requirement of 23 that law. 24 (2) The education and care service is taken to comply with an equivalent 25 requirement under this Law for the period from and including 1 January 26 2012-- 27 (a) to 31 March 2012, unless paragraph (b) applies; or 28 (b) if the provider of the education and care service applies to the 29 Regulatory Authority under this Law for a temporary waiver or 30 service waiver under this Law in respect of that requirement and 31 the application is received by the Regulatory Authority on or 32 before 31 March 2012, to the date on which the application is 33 finally determined under this Law. 34 311 Existing applicants 35 (1) This section applies if a person has made an application for a former 36 approval under a former education and care services law in respect of 37 an education and care service before the scheme commencement day. 38 Page 149 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (2) The applicant is taken to be an applicant for a provider approval and a 1 service approval under this Law. 2 (3) The Regulatory Authority may-- 3 (a) ask the applicant for more information; and 4 (b) inspect-- 5 (i) the premises of the service and the offices of the applicant; 6 and 7 (ii) any documents relating to the applicant; and 8 (c) exercise any power under section 14 or section 46 in relation to 9 the application. 10 (4) This section does not apply if the applicant is a prescribed ineligible 11 person. 12 312 Existing multiple approvals to merge 13 (1) If the holder of a former approval held more than one former approval 14 in respect of the same premises, the former approvals are taken to be one 15 service approval in respect of those premises for the purposes of this 16 Law. 17 (2) This section does not apply to a former approval for a family day care 18 service. 19 (3) This section does not apply to a former approval to which section 311 20 applies. 21 313 Display of accreditation and rating 22 (1) This section applies to a declared approved service that is taken under 23 this Part to be an approved education and care service. 24 (2) The approved provider must display the provisional rating of that 25 approved education and care service in accordance with section 172 26 until a first rating assessment is completed and a rating level given to 27 the service after that assessment is published under Part 5. 28 (3) If the education and care service was accredited by the National Child 29 Care Accreditation Council before the scheme commencement day, the 30 approved provider of the education and care service must continue to 31 display that accreditation at the service together with the provisional 32 rating until a first rating assessment is completed and a rating (other 33 than a provisional rating) given to the service after that assessment is 34 published under Part 5. 35 Page 150 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 314 Effect of non-compliance in 3 years before scheme commencement day 1 (1) In determining whether to suspend or cancel under Part 2 a provider 2 approval referred to in section 306, the Regulatory Authority-- 3 (a) may take into account any non-compliance by the approved 4 provider with a former education and care services law that 5 occurred in the period of 3 years immediately preceding the 6 scheme commencement day; but 7 (b) must not suspend or cancel the provider approval solely on the 8 basis of that non-compliance. 9 (2) In determining whether to suspend or cancel under Part 3 a service 10 approval referred to in section 307(1), the Regulatory Authority-- 11 (a) may take into account any non-compliance by the approved 12 provider with a former education and care services law that 13 occurred in the period of 3 years immediately preceding the 14 scheme commencement day; but 15 (b) must not suspend or cancel the service approval solely on the 16 basis of that non-compliance. 17 315 Certified supervisors 18 (1) A person who was a declared certified supervisor immediately before 19 the scheme commencement day is taken to be a certified supervisor 20 under this Law. 21 (2) The Regulatory Authority must, on or before 30 June 2012, provide 22 each person who is taken under this section to be a certified supervisor 23 with a copy of the supervisor certificate setting out the relevant matters 24 in section 116. 25 (3) Subsection (1) applies even if the declared certified supervisor was 26 suspended immediately before the scheme commencement day but the 27 person's supervisor certificate under this Law is taken to be suspended 28 for the remaining period that the person was suspended as a declared 29 certified supervisor. 30 316 Nominated supervisors 31 (1) A person who immediately before the scheme commencement day was 32 a declared nominated supervisor for a declared approved service that is 33 taken under section 307 to be an approved education and care service is 34 taken to be the nominated supervisor for that approved education and 35 care service. 36 Page 151 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (2) Subsection (1) ceases to apply if-- 1 (a) the approved provider does not confirm the nomination within a 2 time specified by the Regulatory Authority after being requested 3 in writing to do so by the Regulatory Authority; or 4 (b) the person advises the Regulatory Authority in writing that the 5 person does not consent to being the nominated supervisor of the 6 education and care service. 7 317 Notices and undertakings 8 (1) A declared compliance notice in force under a former education and 9 care services law immediately before the scheme commencement day is 10 taken on and after the scheme commencement day to be a compliance 11 notice under this Law. 12 (2) A declared enforceable undertaking in force under a former education 13 and care services law immediately before the scheme commencement 14 day is taken on and after the scheme commencement day to be an 15 enforceable undertaking under this Law. 16 318 Offences 17 The Regulatory Authority may bring or continue a prosecution for any 18 offence under a former education and care services law in relation to a 19 service that is taken to be an education and care service. 20 Division 3 National Authority 21 319 First meeting of National Authority 22 Despite section 239, the Ministerial Council is to convene the first 23 meeting of the Board of the National Authority. 24 320 First chief executive officer of National Authority 25 (1) Despite section 248, the first chief executive officer of the National 26 Authority is to be appointed by the Chairperson of the Ministerial 27 Council on the basis of a consensus recommendation of the Ministerial 28 Council. 29 (2) The appointment is to be on the remuneration and other terms and 30 conditions set out in the appointment. 31 (3) Any amount payable to the first chief executive officer under the 32 appointment is payable from the Authority Fund. 33 Page 152 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 321 First annual report of National Authority 1 Despite section 279, the first annual report of the National Authority-- 2 (a) is to be made within 4 months after the end of the financial year 3 ending 30 June 2012; and 4 (b) is to cover the period from the first meeting of the National 5 Authority until 30 June 2012. 6 Division 4 General 7 322 Information retention and sharing 8 (1) The Regulatory Authority must, in accordance with the national 9 regulations, keep all prescribed information held by the Regulatory 10 Authority (or any regulatory body under the former education and care 11 services law) in relation to-- 12 (a) the licensing or approval of education and care services under the 13 former education and care services law; and 14 (b) the monitoring and enforcement of the former education and care 15 services law in relation to education and care services. 16 (2) Information referred to in subsection (1) may be-- 17 (a) used for information purposes under this Law; and 18 (b) held by the Regulatory Authority in any form; and 19 (c) made available to the Regulatory Authorities of other 20 participating jurisdictions and the National Authority. 21 (3) A provider of an education and care service existing immediately before 22 the scheme commencement day must, in accordance with the national 23 regulations-- 24 (a) continue to keep all documents required under the former 25 education and care services law to be kept in respect of the 26 service; and 27 (b) make those documents available to the Regulatory Authority on 28 request. 29 Penalty: 30 $4000 in the case of an individual. 31 $20 000 in any other case. 32 323 Approved learning framework 33 A declared approved learning framework is taken to be an approved 34 learning framework under this Law. 35 Page 153 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 324 Savings and transitional regulations 1 (1) The national regulations may contain provisions (savings and 2 transitional provisions) of a savings or transitional nature-- 3 (a) consequential on the enactment of this Law in a participating 4 jurisdiction; or 5 (b) to otherwise allow or facilitate the change from the operation of 6 a former education and care services law of a participating 7 jurisdiction to the operation of this Law. 8 (2) Savings and transitional regulations may have retrospective operation 9 to a day not earlier than the day on which section 1 of this Law 10 commences. 11 Schedule 1 Miscellaneous provision relating to 12 interpretation 13 (Section 6) 14 Part 1 Preliminary 15 1 Displacement of Schedule by contrary intention 16 The application of this Schedule may be displaced, wholly or partly, by 17 a contrary intention appearing in this Law. 18 Part 2 General 19 2 Law to be construed not to exceed legislative power of Legislature 20 (1) This Law is to be construed as operating to the full extent of, but so as 21 not to exceed, the legislative power of the Legislature of this 22 jurisdiction. 23 (2) If a provision of this Law, or the application of a provision of this Law 24 to a person, subject matter or circumstance, would, but for this clause, 25 be construed as being in excess of the legislative power of the 26 Legislature of this jurisdiction-- 27 (a) it is a valid provision to the extent to which it is not in excess of 28 the power; and 29 (b) the remainder of this Law, and the application of the provision to 30 other persons, subject matters or circumstances, is not affected. 31 (3) This clause applies to this Law in addition to, and without limiting the 32 effect of, any provision of this Law. 33 Page 154 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 3 Every section to be a substantive enactment 1 Every section of this Law has effect as a substantive enactment without 2 introductory words. 3 4 Material that is, and is not, part of this Law 4 (1) The heading to a Part, Division or Subdivision into which this Law is 5 divided is part of this Law. 6 (2) A Schedule to this Law is part of this Law. 7 (3) Punctuation in this Law is part of this Law. 8 (4) A heading to a section or subsection of this Law does not form part of 9 this Law. 10 (5) Notes included in this Law (including footnotes and endnotes) do not 11 form part of this Law. 12 5 References to particular Acts and to enactments 13 In this Law-- 14 (a) an Act of this jurisdiction may be cited-- 15 (i) by its short title; or 16 (ii) by reference to the year in which it was passed and its 17 number; and 18 (b) a Commonwealth Act may be cited-- 19 (i) by its short title; or 20 (ii) in another way sufficient in a Commonwealth Act for the 21 citation of such an Act; 22 together with a reference to the Commonwealth; and 23 (c) an Act of another jurisdiction may be cited-- 24 (i) by its short title; or 25 (ii) in another way sufficient in an Act of the jurisdiction for 26 the citation of such an Act; 27 together with a reference to the jurisdiction. 28 6 References taken to be included in Act or Law citation etc 29 (1) A reference in this Law to an Act includes a reference to-- 30 (a) the Act as originally enacted, and as amended from time to time 31 since its original enactment; and 32 Page 155 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (b) if the Act has been repealed and re-enacted (with or without 1 modification) since the enactment of the reference--the Act as 2 re-enacted, and as amended from time to time since its 3 re-enactment. 4 (2) A reference in this Law to a provision of this Law or of an Act includes 5 a reference to-- 6 (a) the provision as originally enacted, and as amended from time to 7 time since its original enactment; and 8 (b) if the provision has been omitted and re-enacted (with or without 9 modification) since the enactment of the reference--the 10 provision as re-enacted, and as amended from time to time since 11 its re-enactment. 12 (3) Subclauses (1) and (2) apply to a reference in this Law to a law of the 13 Commonwealth or another jurisdiction as they apply to a reference in 14 this Law to an Act and to a provision of an Act. 15 7 Interpretation best achieving Law's purpose 16 (1) In the interpretation of a provision of this Law, the interpretation that 17 will best achieve the purpose or object of this Law is to be preferred to 18 any other interpretation. 19 (2) Subclause (1) applies whether or not the purpose is expressly stated in 20 this Law. 21 8 Use of extrinsic material in interpretation 22 (1) In this clause-- 23 extrinsic material means relevant material not forming part of this Law, 24 including, for example-- 25 (a) material that is set out in the document containing the text of this 26 Law as printed by the Government Printer; and 27 (b) a relevant report of a Royal Commission, Law Reform 28 Commission, commission or committee of inquiry, or a similar 29 body, that was laid before the Parliament of this jurisdiction 30 before the provision concerned was enacted; and 31 (c) a relevant report of a committee of the Parliament of this 32 jurisdiction that was made to the Parliament before the provision 33 was enacted; and 34 (d) a treaty or other international agreement that is mentioned in this 35 Law; and 36 Page 156 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (e) an explanatory note or memorandum relating to the Bill that 1 contained the provision, or any relevant document, that was laid 2 before, or given to the members of, the Parliament of this 3 jurisdiction by the member bringing in the Bill before the 4 provision was enacted; and 5 (f) the speech made to the Parliament of this jurisdiction by the 6 member in moving a motion that the Bill be read a second time; 7 and 8 (g) material in the Votes and Proceedings of the Parliament of this 9 jurisdiction or in any official record of debates in the Parliament 10 of this jurisdiction; and 11 (h) a document that is declared by this Law to be a relevant document 12 for the purposes of this clause. 13 ordinary meaning means the ordinary meaning conveyed by a 14 provision having regard to its context in this Law and to the purpose of 15 this Law. 16 (2) Subject to subclause (3), in the interpretation of a provision of this Law, 17 consideration may be given to extrinsic material capable of assisting in 18 the interpretation-- 19 (a) if the provision is ambiguous or obscure--to provide an 20 interpretation of it; or 21 (b) if the ordinary meaning of the provision leads to a result that is 22 manifestly absurd or is unreasonable--to provide an 23 interpretation that avoids such a result; or 24 (c) in any other case--to confirm the interpretation conveyed by the 25 ordinary meaning of the provision. 26 (3) In determining whether consideration should be given to extrinsic 27 material, and in determining the weight to be given to extrinsic material, 28 regard is to be had to-- 29 (a) the desirability of a provision being interpreted as having its 30 ordinary meaning; and 31 (b) the undesirability of prolonging proceedings without 32 compensating advantage; and 33 (c) other relevant matters. 34 9 Effect of change of drafting practice and use of examples 35 If-- 36 (a) a provision of this Law expresses an idea in particular words; and 37 Page 157 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (b) a provision enacted later appears to express the same idea in 1 different words for the purpose of implementing a different 2 legislative drafting practice, including, for example-- 3 (i) the use of a clearer or simpler style; or 4 (ii) the use of gender-neutral language; 5 the ideas must not be taken to be different merely because 6 different words are used. 7 10 Use of examples 8 If this Law includes an example of the operation of a provision-- 9 (a) the example is not exhaustive; and 10 (b) the example does not limit, but may extend, the meaning of the 11 provision; and 12 (c) the example and the provision are to be read in the context of each 13 other and the other provisions of this Law, but, if the example and 14 the provision so read are inconsistent, the provision prevails. 15 11 Compliance with forms 16 (1) If a form is prescribed or approved by or for the purpose of this Law, 17 strict compliance with the form is not necessary and substantial 18 compliance is sufficient. 19 (2) If a form prescribed or approved by or for the purpose of this Law 20 requires-- 21 (a) the form to be completed in a specified way; or 22 (b) specified information or documents to be included in, attached to 23 or given with the form; or 24 (c) the form, or information or documents included in, attached to or 25 given with the form, to be verified in a specified way, 26 the form is not properly completed unless the requirement is complied 27 with. 28 Part 3 Terms and references 29 12 Definitions 30 (1) In this Law-- 31 Act means an Act of the Legislature of this jurisdiction. 32 adult means an individual who is 18 or more. 33 affidavit, in relation to a person allowed by law to affirm, declare or 34 promise, includes affirmation, declaration and promise. 35 Page 158 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note amend includes-- 1 (a) omit or omit and substitute; or 2 (b) alter or vary; or 3 (c) amend by implication. 4 appoint includes reappoint. 5 Australia means the Commonwealth of Australia but, when used in a 6 geographical sense, does not include an external Territory. 7 business day means a day that is not-- 8 (a) a Saturday or Sunday; or 9 (b) a public holiday, special holiday or bank holiday in the place in 10 which any relevant act is to be or may be done. 11 calendar month means a period starting at the beginning of any day of 12 one of the 12 named months and ending-- 13 (a) immediately before the beginning of the corresponding day of the 14 next named month; or 15 (b) if there is no such corresponding day--at the end of the next 16 named month. 17 calendar year means a period of 12 months beginning on 1 January. 18 commencement, in relation to this Law or an Act or a provision of this 19 Law or an Act, means the time at which this Law, the Act or provision 20 comes into operation. 21 Commonwealth means the Commonwealth of Australia but, when used 22 in a geographical sense, does not include an external Territory. 23 confer, in relation to a function, includes impose. 24 contravene includes fail to comply with. 25 country includes-- 26 (a) a federation; or 27 (b) a state, province or other part of a federation. 28 date of assent, in relation to an Act, means the day on which the Act 29 receives the Royal Assent. 30 definition means a provision of this Law (however expressed) that-- 31 (a) gives a meaning to a word or expression; or 32 (b) limits or extends the meaning of a word or expression. 33 document includes-- 34 (a) any paper or other material on which there is writing; or 35 (b) any paper or other material on which there are marks, figures, 36 symbols or perforations having a meaning for a person qualified 37 to interpret them; or 38 Page 159 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (c) any disc, tape or other article or any material from which sounds, 1 images, writings or messages are capable of being reproduced 2 (with or without the aid of another article or device). 3 electronic communication means-- 4 (a) a communication of information in the form of data, text or 5 images by means of guided or unguided electromagnetic energy, 6 or both; or 7 (b) a communication of information in the form of sound by means 8 of guided or unguided electromagnetic energy, or both, where the 9 sound is processed at its destination by an automated voice 10 recognition system. 11 estate includes easement, charge, right, title, claim, demand, lien or 12 encumbrance, whether at law or in equity. 13 expire includes lapse or otherwise cease to have effect. 14 external Territory means a Territory, other than an internal Territory, 15 for the government of which as a Territory provision is made by a 16 Commonwealth Act. 17 fail includes refuse. 18 financial year means a period of 12 months beginning on 1 July. 19 foreign country means a country (whether or not an independent 20 sovereign State) outside Australia and the external Territories. 21 function includes a power, authority or duty. 22 Gazette means the Government Gazette of this jurisdiction. 23 gazetted means published in the Gazette. 24 Gazette notice means notice published in the Gazette. 25 Government Printer means the Government Printer of this jurisdiction, 26 and includes any other person authorised by the Government of this 27 jurisdiction to print an Act or instrument. 28 individual means a natural person. 29 information system means a system for generating, sending, receiving, 30 storing or otherwise processing electronic communications. 31 insert, in relation to a provision of this Law, includes substitute. 32 instrument includes a statutory instrument. 33 interest, in relation to land or other property, means-- 34 (a) a legal or equitable estate in the land or other property; or 35 (b) a right, power or privilege over, or in relation to, the land or other 36 property. 37 internal Territory means the Australian Capital Territory, the Jervis 38 Bay Territory or the Northern Territory. 39 Page 160 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note Jervis Bay Territory means the Territory mentioned in the Jervis Bay 1 Territory Acceptance Act 1915 (Cwlth). 2 make includes issue or grant. 3 minor means an individual who is under 18. 4 modification includes addition, omission or substitution. 5 month means a calendar month. 6 named month means 1 of the 12 months of the year. 7 Northern Territory means the Northern Territory of Australia. 8 number means-- 9 (a) a number expressed in figures or words; or 10 (b) a letter; or 11 (c) a combination of a number so expressed and a letter. 12 oath, in relation to a person allowed by law to affirm, declare or 13 promise, includes affirmation, declaration or promise. 14 office includes position. 15 omit, in relation to a provision of this Law or an Act, includes repeal. 16 party includes an individual or a body politic or corporate. 17 penalty includes forfeiture or punishment. 18 power includes authority. 19 prescribed means prescribed by, or by regulations made or in force for 20 the purposes of or under, this Law. 21 printed includes typewritten, lithographed or reproduced by any 22 mechanical means. 23 proceeding means a legal or other action or proceeding. 24 property means any legal or equitable estate or interest (whether present 25 or future, vested or contingent, or tangible or intangible) in real or 26 personal property of any description (including money), and includes 27 things in action. 28 provision, in relation to this Law or an Act, means words or other matter 29 that form or forms part of this Law or the Act, and includes-- 30 (a) a Chapter, Part, Division, Subdivision, section, subsection, 31 paragraph, subparagraph, sub-subparagraph or Schedule of or to 32 this Law or the Act; or 33 (b) a section, clause, subclause, item, column, table or form of or in 34 a Schedule to this Law or the Act; or 35 (c) the long title and any preamble to the Act. 36 record includes information stored or recorded by means of a computer. 37 Page 161 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law repeal includes-- 1 (a) revoke or rescind; or 2 (b) repeal by implication; or 3 (c) abrogate or limit the effect of this Law or instrument concerned; 4 or 5 (d) exclude from, or include in, the application of this Law or 6 instrument concerned any person, subject matter or 7 circumstance. 8 sign includes the affixing of a seal or the making of a mark. 9 statutory declaration means a declaration made under an Act, or under 10 a Commonwealth Act or an Act of another jurisdiction, that authorises 11 a declaration to be made otherwise than in the course of a judicial 12 proceeding. 13 statutory instrument means an instrument (including a regulation) 14 made or in force under or for the purposes of this Law, and includes an 15 instrument made or in force under any such instrument. 16 swear, in relation to a person allowed by law to affirm, declare or 17 promise, includes affirm, declare or promise. 18 word includes any symbol, figure or drawing. 19 writing includes any mode of representing or reproducing words in a 20 visible form. 21 (2) In a statutory instrument-- 22 the Law means this Law. 23 13 Provisions relating to defined terms and gender and number 24 (1) If this Law defines a word or expression, other parts of speech and 25 grammatical forms of the word or expression have corresponding 26 meanings. 27 (2) Definitions in or applicable to this Law apply except so far as the 28 context or subject matter otherwise indicates or requires. 29 (3) In this Law, words indicating a gender include each other gender. 30 (4) In this Law-- 31 (a) words in the singular include the plural; and 32 (b) words in the plural include the singular. 33 14 Meaning of "may" and "must" etc 34 (1) In this Law, the word may, or a similar word or expression, used in 35 relation to a power indicates that the power may be exercised or not 36 exercised, at discretion. 37 Page 162 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (2) In this Law, the word must, or a similar word or expression, used in 1 relation to a power indicates that the power is required to be exercised. 2 (3) This clause has effect despite any rule of construction to the contrary. 3 15 Words and expressions used in statutory instruments 4 (1) Words and expressions used in a statutory instrument have the same 5 meanings as they have, from time to time, in this Law, or relevant 6 provisions of this Law, under or for the purposes of which the 7 instrument is made or in force. 8 (2) This clause has effect in relation to an instrument except so far as the 9 contrary intention appears in the instrument. 10 16 Effect of express references to bodies corporate and individuals 11 In this Law, a reference to a person generally (whether the expression 12 "person", "party", "someone", "anyone", "no-one", "one", "another" or 13 "whoever" or another expression is used)-- 14 (a) does not exclude a reference to a body corporate or an individual 15 merely because elsewhere in this Law there is particular 16 reference to a body corporate (however expressed); and 17 (b) does not exclude a reference to a body corporate or an individual 18 merely because elsewhere in this Law there is particular 19 reference to an individual (however expressed). 20 17 Production of records kept in computers etc 21 If a person who keeps a record of information by means of a 22 mechanical, electronic or other device is required by or under this 23 Law-- 24 (a) to produce the information or a document containing the 25 information to a court, tribunal or person; or 26 (b) to make a document containing the information available for 27 inspection by a court, tribunal or person; 28 then, unless the court, tribunal or person otherwise directs-- 29 (c) the requirement obliges the person to produce or make available 30 for inspection, as the case may be, a document that reproduces the 31 information in a form capable of being understood by the court, 32 tribunal or person; and 33 (d) the production to the court, tribunal or person of the document in 34 that form complies with the requirement. 35 Page 163 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 18 References to this jurisdiction to be implied 1 In this Law-- 2 (a) a reference to an officer, office or statutory body is a reference to 3 such an officer, office or statutory body in and for this 4 jurisdiction; and 5 (b) a reference to a locality or other matter or thing is a reference to 6 such a locality or other matter or thing in and of this jurisdiction. 7 19 References to officers and holders of offices 8 In this Law, a reference to a particular officer, or to the holder of a 9 particular office, includes a reference to the person for the time being 10 occupying or acting in the office concerned. 11 20 Reference to certain provisions of Law 12 If a provision of this Law refers-- 13 (a) to a Part, section or Schedule by a number and without reference 14 to this Law--the reference is a reference to the Part, section or 15 Schedule, designated by the number, of or to this Law; or 16 (b) to a Schedule without reference to it by a number and without 17 reference to this Law--the reference, if there is only one 18 Schedule to this Law, is a reference to the Schedule; or 19 (c) to a Division, Subdivision, subsection, paragraph, subparagraph, 20 sub-subparagraph, clause, subclause, item, column, table or form 21 by a number and without reference to this Law--the reference is 22 a reference to-- 23 (i) the Division, designated by the number, of the Part in 24 which the reference occurs; and 25 (ii) the Subdivision, designated by the number, of the Division 26 in which the reference occurs; and 27 (iii) the subsection, designated by the number, of the section in 28 which the reference occurs; and 29 (iv) the paragraph, designated by the number, of the section, 30 subsection, Schedule or other provision in which the 31 reference occurs; and 32 (v) the paragraph, designated by the number, of the clause, 33 subclause, item, column, table or form of or in the 34 Schedule in which the reference occurs; and 35 (vi) the subparagraph, designated by the number, of the 36 paragraph in which the reference occurs; and 37 (vii) the sub-subparagraph, designated by the number, of the 38 subparagraph in which the reference occurs; and 39 Page 164 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (viii) the section, clause, subclause, item, column, table or form, 1 designated by the number, of or in the Schedule in which 2 the reference occurs; 3 as the case requires. 4 21 Reference to provisions of this Law or an Act is inclusive 5 In this Law, a reference to a portion of this Law or an Act includes-- 6 (a) a reference to the Chapter, Part, Division, Subdivision, section, 7 subsection or other provision of this Law or the Act referred to 8 that forms the beginning of the portion; and 9 (b) a reference to the Chapter, Part, Division, Subdivision, section, 10 subsection or other provision of this Law or the Act referred to 11 that forms the end of the portion. 12 Example. A reference to "sections 5 to 9" includes both section 5 and section 9. 13 It is not necessary to refer to "sections 5 to 9 (both inclusive)" to ensure that the 14 reference is given an inclusive interpretation. 15 Part 4 Functions and powers 16 22 Performance of statutory functions 17 (1) If this Law confers a function or power on a person or body, the function 18 may be performed, or the power may be exercised, from time to time as 19 occasion requires. 20 (2) If this Law confers a function or power on a particular officer or the 21 holder of a particular office, the function may be performed, or the 22 power may be exercised, by the person for the time being occupying or 23 acting in the office concerned. 24 (3) If this Law confers a function or power on a body (whether or not 25 incorporated), the performance of the function, or the exercise of the 26 power, is not affected merely because of vacancies in the membership 27 of the body. 28 23 Power to make instrument or decision includes power to amend or 29 repeal 30 If this Law authorises or requires the making of an instrument or 31 decision-- 32 (a) the power includes power to amend or repeal the instrument or 33 decision; and 34 (b) the power to amend or repeal the instrument or decision is 35 exercisable in the same way, and subject to the same conditions, 36 as the power to make the instrument or decision. 37 Page 165 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 24 Matters for which statutory instruments may make provision 1 (1) If this Law authorises or requires the making of a statutory instrument 2 in relation to a matter, a statutory instrument made under this Law may 3 make provision for the matter by applying, adopting or incorporating 4 (with or without modification) the provisions of-- 5 (a) an Act or statutory instrument; or 6 (b) another document (whether of the same or a different kind); 7 as in force at a particular time or as in force from time to time. 8 (2) If a statutory instrument applies, adopts or incorporates the provisions 9 of a document, the statutory instrument applies, adopts or incorporates 10 the provisions as in force from time to time, unless the statutory 11 instrument otherwise expressly provides. 12 (3) A statutory instrument may 13 (a) apply generally throughout this jurisdiction or be limited in its 14 application to a particular part of this jurisdiction; or 15 (b) apply generally to all persons, matters or things or be limited in 16 its application to-- 17 (i) particular persons, matters or things; or 18 (ii) particular classes of persons, matters or things; or 19 (c) otherwise apply generally or be limited in its application by 20 reference to specified exceptions or factors. 21 (4) A statutory instrument may-- 22 (a) apply differently according to different specified factors; or 23 (b) otherwise make different provision in relation to-- 24 (i) different persons, matters or things; or 25 (ii) different classes of persons, matters or things. 26 (5) A statutory instrument may authorise a matter or thing to be from time 27 to time determined, applied or regulated by a specified person or body. 28 (6) If this Law authorises or requires a matter to be regulated by statutory 29 instrument, the power may be exercised by prohibiting by statutory 30 instrument the matter or any aspect of the matter. 31 (7) If this Law authorises or requires provision to be made with respect to 32 a matter by statutory instrument, a statutory instrument made under this 33 Law may make provision with respect to a particular aspect of the 34 matter despite the fact that provision is made by this Law in relation to 35 another aspect of the matter or in relation to another matter. 36 Page 166 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (8) A statutory instrument may provide for the review of, or a right of 1 appeal against, a decision made under the statutory instrument, or this 2 Law, and may, for that purpose, confer jurisdiction on any court, 3 tribunal, person or body. 4 (9) A statutory instrument may require a form prescribed by or under the 5 statutory instrument, or information or documents included in, attached 6 to or given with the form, to be verified by statutory declaration. 7 25 Presumption of validity and power to make 8 (1) All conditions and preliminary steps required for the making of a 9 statutory instrument are presumed to have been satisfied and performed 10 in the absence of evidence to the contrary. 11 (2) A statutory instrument is taken to be made under all powers under which 12 it may be made, even though it purports to be made under this Law or a 13 particular provision of this Law. 14 26 Appointments may be made by name or office 15 (1) If this Law authorises or requires a person or body-- 16 (a) to appoint a person to an office; or 17 (b) to appoint a person or body to exercise a power; or 18 (c) to appoint a person or body to do another thing; 19 the person or body may make the appointment by-- 20 (d) appointing a person or body by name; or 21 (e) appointing a particular officer, or the holder of a particular office, 22 by reference to the title of the office concerned. 23 (2) An appointment of a particular officer, or the holder of a particular 24 office, is taken to be the appointment of the person for the time being 25 occupying or acting in the office concerned. 26 27 Acting appointments 27 (1) If this Law authorises a person or body to appoint a person to act in an 28 office, the person or body may, in accordance with this Law, appoint-- 29 (a) a person by name; or 30 (b) a particular officer, or the holder of a particular office, by 31 reference to the title of the office concerned; 32 to act in the office. 33 (2) The appointment may be expressed to have effect only in the 34 circumstances specified in the instrument of appointment. 35 Page 167 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) The appointer may-- 1 (a) determine the terms and conditions of the appointment, including 2 remuneration and allowances; and 3 (b) terminate the appointment at any time. 4 (4) The appointment, or the termination of the appointment, must be in, or 5 evidenced by, writing signed by the appointer. 6 (5) The appointee must not act for more than 1 year during a vacancy in the 7 office. 8 (6) If the appointee is acting in the office otherwise than because of a 9 vacancy in the office and the office becomes vacant, then, subject to 10 subclause (2), the appointee may continue to act until-- 11 (a) the appointer otherwise directs; or 12 (b) the vacancy is filled; or 13 (c) the end of a year from the day of the vacancy; 14 whichever happens first. 15 (7) The appointment ceases to have effect if the appointee resigns by 16 writing signed and delivered to the appointer. 17 (8) While the appointee is acting in the office-- 18 (a) the appointee has all the powers and functions of the holder of the 19 office; and 20 (b) this Law and other laws apply to the appointee as if the appointee 21 were the holder of the office. 22 (9) Anything done by or in relation to a person purporting to act in the 23 office is not invalid merely because-- 24 (a) the occasion for the appointment had not arisen; or 25 (b) the appointment had ceased to have effect; or 26 (c) the occasion for the person to act had not arisen or had ceased. 27 (10) If this Law authorises the appointer to appoint a person to act during a 28 vacancy in the office, an appointment to act in the office may be made 29 by the appointer whether or not an appointment has previously been 30 made to the office. 31 28 Powers of appointment imply certain incidental powers 32 (1) If this Law authorises or requires a person or body to appoint a person 33 to an office-- 34 (a) the power may be exercised from time to time as occasion 35 requires; and 36 Page 168 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (b) the power includes-- 1 (i) power to remove or suspend, at any time, a person 2 appointed to the office; and 3 (ii) power to appoint another person to act in the office if a 4 person appointed to the office is removed or suspended; 5 and 6 (iii) power to reinstate or reappoint a person removed or 7 suspended; and 8 (iv) power to appoint a person to act in the office if it is vacant 9 (whether or not the office has ever been filled); and 10 (v) power to appoint a person to act in the office if the person 11 appointed to the office is absent or is unable to discharge 12 the functions of the office (whether because of illness or 13 otherwise). 14 (2) The power to remove or suspend a person under subclause (1)(b) may 15 be exercised even if this Law provides that the holder of the office to 16 which the person was appointed is to hold office for a specified period. 17 (3) The power to make an appointment under subclause (1)(b) may be 18 exercised from time to time as occasion requires. 19 (4) An appointment under subclause (1)(b) may be expressed to have effect 20 only in the circumstances specified in the instrument of appointment. 21 29 Delegation of functions 22 (1) If this Law authorises a person or body to delegate a function, the person 23 or body may, in accordance with this Law and any other applicable law, 24 delegate the function to-- 25 (a) a person or body by name; or 26 (b) a specified officer, or the holder of a specified office, by 27 reference to the title of the office concerned. 28 (2) The delegation may be-- 29 (a) general or limited; and 30 (b) made from time to time; and 31 (c) revoked, wholly or partly, by the delegator. 32 (3) The delegation, or a revocation of the delegation, must be in, or 33 evidenced by, writing signed by the delegator or, if the delegator is a 34 body, by a person authorised by the body for the purpose. 35 (4) A delegated function may be exercised only in accordance with any 36 conditions to which the delegation is subject. 37 Page 169 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (5) The delegate may, in the performance of a delegated function, do 1 anything that is incidental to the delegated function. 2 (6) A delegated function that purports to have been exercised by the 3 delegate is taken to have been properly exercised by the delegate unless 4 the contrary is proved. 5 (7) A delegated function that is properly exercised by the delegate is taken 6 to have been exercised by the delegator. 7 (8) If, when exercised by the delegator, a function is dependent on the 8 delegator's opinion, belief or state of mind, then, when exercised by the 9 delegate, the function is dependent on the delegate's opinion, belief or 10 state of mind. 11 (9) If-- 12 (a) the delegator is a specified officer or the holder of a specified 13 office; and 14 (b) the person who was the specified officer or holder of the specified 15 office when the delegation was made ceases to be the holder of 16 the office; 17 then-- 18 (c) the delegation continues in force; and 19 (d) the person for the time being occupying or acting in the office 20 concerned is taken to be the delegator for the purposes of this 21 section. 22 (10) If-- 23 (a) the delegator is a body; and 24 (b) there is a change in the membership of the body; 25 then-- 26 (c) the delegation continues in force; and 27 (d) the body as constituted for the time being is taken to be the 28 delegator for the purposes of this section. 29 (11) If a function is delegated to a specified officer or the holder of a 30 specified office-- 31 (a) the delegation does not cease to have effect merely because the 32 person who was the specified officer or the holder of the specified 33 office when the function was delegated ceases to be the officer or 34 the holder of the office; and 35 (b) the function may be exercised by the person for the time being 36 occupying or acting in the office concerned. 37 Page 170 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (12) A function that has been delegated may, despite the delegation, be 1 exercised by the delegator. 2 (13) The delegation of a function does not relieve the delegator of the 3 delegator's obligation to ensure that the function is properly exercised. 4 (14) Subject to subsection (15), this clause applies to a subdelegation of a 5 function in the same way as it applies to a delegation of a function. 6 (15) If this Law authorises the delegation of a function, the function may be 7 subdelegated only if the Law expressly authorises the function to be 8 subdelegated. 9 30 Exercise of powers between enactment and commencement 10 (1) If a provision of this Law (the empowering provision) that does not 11 commence on its enactment would, had it commenced, confer a 12 power-- 13 (a) to make an appointment; or 14 (b) to make a statutory instrument of a legislative or administrative 15 character; or 16 (c) to do another thing; 17 then-- 18 (d) the power may be exercised; and 19 (e) anything may be done for the purpose of enabling the exercise of 20 the power or of bringing the appointment, instrument or other 21 thing into effect; 22 before the empowering provision commences. 23 (2) If a provision of a Victorian Act (the empowering provision) that does 24 not commence on its enactment would, had it commenced, amend a 25 provision of this Law so that it would confer a power-- 26 (a) to make an appointment; or 27 (b) to make a statutory instrument of a legislative or administrative 28 character; or 29 (c) to do another thing; 30 then-- 31 (d) the power may be exercised; and 32 (e) anything may be done for the purpose of enabling the exercise of 33 the power or of bringing the appointment, instrument or other 34 thing into effect; 35 before the empowering provision commences. 36 Page 171 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law (3) If-- 1 (a) this Law has commenced and confers a power to make a statutory 2 instrument (the basic instrument-making power); and 3 (b) a provision of a Victorian Act that does not commence on its 4 enactment would, had it commenced, amend this Law so as to 5 confer additional power to make a statutory instrument (the 6 additional instrument-making power); 7 then-- 8 (c) the basic instrument-making power and the additional 9 instrument-making power may be exercised by making a single 10 instrument; and 11 (d) any provision of the instrument that required an exercise of the 12 additional instrument-making power is to be treated as made 13 under subclause (2). 14 (4) If an instrument, or a provision of an instrument, is made under 15 subclause (1) or (2) that is necessary for the purpose of-- 16 (a) enabling the exercise of a power mentioned in the subclause; or 17 (b) bringing an appointment, instrument or other thing made or done 18 under such a power into effect; 19 the instrument or provision takes effect-- 20 (c) on the making of the instrument; or 21 (d) on such later day (if any) on which, or at such later time (if any) 22 at which, the instrument or provision is expressed to take effect. 23 (5) If-- 24 (a) an appointment is made under subclause (1) or (2); or 25 (b) an instrument, or a provision of an instrument, made under 26 subclause (1) or (2) is not necessary for a purpose mentioned in 27 subclause (4); 28 the appointment, instrument or provision takes effect-- 29 (c) on the commencement of the relevant empowering provision; or 30 (d) on such later day (if any) on which, or at such later time (if any) 31 at which, the appointment, instrument or provision is expressed 32 to take effect. 33 (6) Anything done under subclause (1) or (2) does not confer a right, or 34 impose a liability, on a person before the relevant empowering 35 provision commences. 36 (7) After the enactment of a provision mentioned in subclause (2) but 37 before the provision's commencement, this clause applies as if the 38 references in subclauses (2) and (5) to the commencement of the 39 Page 172 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note empowering provision were references to the commencement of the 1 provision mentioned in subclause (2) as amended by the empowering 2 provision. 3 (8) In the application of this clause to a statutory instrument, a reference to 4 the enactment of the instrument is a reference to the making of the 5 instrument. 6 Part 5 Distance, time and age 7 31 Matters relating to distance, time and age 8 (1) In the measurement of distance for the purposes of this Law, the 9 distance is to be measured along the shortest road ordinarily used for 10 travelling. 11 (2) If a period beginning on a given day, act or event is provided or allowed 12 for a purpose by this Law, the period is to be calculated by excluding 13 the day, or the day of the act or event, and-- 14 (a) if the period is expressed to be a specified number of clear days 15 or at least a specified number of days--by excluding the day on 16 which the purpose is to be fulfilled; and 17 (b) in any other case--by including the day on which the purpose is 18 to be fulfilled. 19 (3) If the last day of a period provided or allowed by this Law for doing 20 anything is not a business day in the place in which the thing is to be or 21 may be done, the thing may be done on the next business day in the 22 place. 23 (4) If the last day of a period provided or allowed by this Law for the filing 24 or registration of a document is a day on which the office is closed 25 where the filing or registration is to be or may be done, the document 26 may be filed or registered at the office on the next day that the office is 27 open. 28 (5) If no time is provided or allowed for doing anything, the thing is to be 29 done as soon as possible, and as often as the prescribed occasion 30 happens. 31 (6) If, in this Law, there is a reference to time, the reference is, in relation 32 to the doing of anything in a jurisdiction, a reference to the legal time in 33 the jurisdiction. 34 (7) For the purposes of this Law, a person attains an age in years at the 35 beginning of the person's birthday for the age. 36 Page 173 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law Part 6 Effect of repeal, amendment or expiration 1 32 Time of Law ceasing to have effect 2 If a provision of this Law is expressed-- 3 (a) to expire on a specified day; or 4 (b) to remain or continue in force, or otherwise have effect, until a 5 specified day; 6 this provision has effect until the last moment of the specified day. 7 33 Repealed Law provisions not revived 8 If a provision of this Law is repealed or amended by a Victorian Act, or 9 a provision of a Victorian Act, the provision is not revived merely 10 because the Victorian Act or the provision of the Victorian Act-- 11 (a) is later repealed or amended; or 12 (b) later expires. 13 34 Saving of operation of repealed Law provisions 14 (1) The repeal, amendment or expiry of a provision of this Law does not-- 15 (a) revive anything not in force or existing at the time the repeal, 16 amendment or expiry takes effect; or 17 (b) affect the previous operation of the provision or anything 18 suffered, done or begun under the provision; or 19 (c) affect a right, privilege or liability acquired, accrued or incurred 20 under the provision; or 21 (d) affect a penalty incurred in relation to an offence arising under 22 the provision; or 23 (e) affect an investigation, proceeding or remedy in relation to such 24 a right, privilege, liability or penalty. 25 (2) Any such penalty may be imposed and enforced, and any such 26 investigation, proceeding or remedy may be begun, continued or 27 enforced, as if the provision had not been repealed or amended or had 28 not expired. 29 35 Continuance of repealed provisions 30 If a Victorian Act repeals some provisions of this Law and enacts new 31 provisions in substitution for the repealed provisions, the repealed 32 provisions continue in force until the new provisions commence. 33 Page 174 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note 36 Law and amending Acts to be read as one 1 This Law and all Victorian Acts amending this Law are to be read as 2 one. 3 Part 7 Instruments under Law 4 37 Schedule applies to statutory instruments 5 (1) This Schedule applies to a statutory instrument, and to things that may 6 be done or are required to be done under a statutory instrument, in the 7 same way as it applies to this Law, and things that may be done or are 8 required to be done under this Law, except so far as the context or 9 subject matter otherwise indicates or requires. 10 (2) The fact that a provision of this Schedule refers to this Law and not also 11 to a statutory instrument does not, by itself, indicate that the provision 12 is intended to apply only to this Law. 13 Part 8 Application to coastal sea 14 38 Application 15 This Law has effect in and relation to the coastal sea of this jurisdiction 16 as if that coastal sea were part of this jurisdiction. 17 Schedule 2 Powers of entry by search warrant 18 1 Application for warrant 19 (1) An authorised officer may apply to a magistrate of a participating 20 jurisdiction for a search warrant in relation to premises if the officer 21 believes on reasonable grounds that-- 22 (a) a person is or has been operating an education and care service at 23 the premises in contravention of this Law; or 24 (b) documents or other evidence relevant to the possible commission 25 of an offence against this Law are present at the premises. 26 (2) The authorised officer must prepare a written application that states the 27 grounds on which the warrant is sought. 28 (3) The written application must be sworn. 29 (4) The magistrate may refuse to consider the application until the 30 authorised officer gives the magistrate all the information the magistrate 31 requires about the application in the way the magistrate requires. 32 Page 175 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 2 Issue of warrant 1 (1) The magistrate may issue the warrant in respect of premises only if the 2 magistrate is satisfied there are reasonable grounds to believe that-- 3 (a) a person is operating an education and care service at the 4 premises in contravention of this Law; or 5 (b) documents or other evidence relevant to the possible commission 6 of an offence against this Law are present at the premises. 7 (2) The warrant must state-- 8 (a) that a stated authorised officer may, with necessary and 9 reasonable help and force-- 10 (i) enter the premises and any other premises necessary for 11 entry; and 12 (ii) exercise the authorised officer's powers under this 13 Schedule; and 14 (b) the matter for which the warrant is sought; and 15 (c) the evidence that may be seized under the warrant; and 16 (d) the hours of the day or night when the premises may be entered; 17 and 18 (e) the date, within 14 days after the warrant's issue, the warrant 19 ends. 20 3 Application by electronic communication 21 (1) An authorised officer may apply for a warrant by phone, facsimile, 22 email, radio, video conferencing or another form of communication if 23 the authorised officer considers it necessary because of-- 24 (a) urgent circumstances; or 25 (b) other special circumstances, including the authorised officer's 26 remote location. 27 (2) The application-- 28 (a) may not be made before the authorised officer prepares the 29 written application under clause 1(2); but 30 (b) may be made before the written application is sworn. 31 (3) The magistrate may issue the warrant (the original warrant) only if the 32 magistrate is satisfied-- 33 (a) it was necessary to make the application under subclause (1); and 34 (b) the way the application was made under subclause (1) was 35 appropriate. 36 Page 176 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (4) After the magistrate issues the original warrant-- 1 (a) if there is a reasonably practicable way of immediately giving a 2 copy of the warrant to the authorised officer, for example, by 3 sending a copy by fax or email, the magistrate must immediately 4 give a copy of the warrant to the authorised officer; or 5 (b) otherwise-- 6 (i) the magistrate must tell the authorised officer the date and 7 time the warrant is issued and the other terms of the 8 warrant; and 9 (ii) the authorised officer must complete a form of warrant 10 including by writing on it-- 11 (A) the magistrate's name; and 12 (B) the date and time the magistrate issued the warrant; 13 and 14 (C) the other terms of the warrant. 15 (5) The copy of the warrant referred to in subclause (4)(a), or the form of 16 warrant completed under subclause (4)(b) (in either case the duplicate 17 warrant), is a duplicate of, and as effectual as, the original warrant. 18 (6) The authorised officer must, at the first reasonable opportunity, send to 19 the magistrate-- 20 (a) the written application complying with clause 1(2) and (3); and 21 (b) if the authorised officer completed a form of warrant under 22 subclause (4)(b), the completed form of warrant. 23 (7) The magistrate must keep the original warrant and, on receiving the 24 documents under subclause (6), file the original warrant and documents 25 in the court. 26 (8) Despite subclause (5), if-- 27 (a) an issue arises in a proceeding about whether an exercise of a 28 power was authorised by a warrant issued under this clause; and 29 (b) the original warrant is not produced in evidence-- 30 the onus of proof is on the person relying on the lawfulness of the 31 exercise of the power to prove a warrant authorised the exercise of the 32 power. 33 (9) This clause does not limit clause 1. 34 Page 177 Children (Education and Care Services National Law Application) Bill 2010 Note Education and Care Services National Law 4 Procedure before entry under warrant 1 (1) Before entering premises under a warrant, an authorised officer must do 2 or make a reasonable attempt to do the following-- 3 (a) identify himself or herself to a person present at the premises who 4 is an occupier of the premises by producing the authorised 5 officer's identity card; 6 (b) give the person a copy of the warrant; 7 (c) tell the person the authorised officer is permitted by the warrant 8 to enter the premises; 9 (d) give the person an opportunity to allow the authorised officer 10 immediate entry to the premises without using force. 11 (2) However, the authorised officer need not comply with subclause (1) if 12 the authorised officer reasonably believes that immediate entry to the 13 premises is required to ensure the effective execution of the warrant is 14 not frustrated. 15 5 Powers after entering premises 16 (1) This clause applies if an authorised officer enters premises under 17 clause 4. 18 (2) The authorised officer may for the purposes of the investigation do the 19 following-- 20 (a) search any part of the premises; 21 (b) inspect, measure, test, photograph or film, or make audio 22 recordings of, any part of the premises or anything at the 23 premises; 24 (c) take a thing, or a sample of or from a thing, at the premises for 25 analysis, measurement or testing; 26 (d) copy, or take an extract from, a document, at the premises; 27 (e) take into or onto the premises any person, equipment and 28 materials the authorised officer reasonably requires for 29 exercising a power under this Schedule; 30 (f) require the occupier of the premises, or a person at the premises, 31 to give the authorised officer reasonable help to exercise the 32 authorised officer's powers under paragraphs (a) to (e); 33 Page 178 Children (Education and Care Services National Law Application) Bill 2010 Education and Care Services National Law Note (g) require the occupier of the premises, or a person at the premises, 1 to give the authorised officer information to help the authorised 2 officer in conducting the investigation. 3 Page 179

[Index] [Search] [Download] [Related Items] [Help]