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This is a Bill, not an Act. For current law, see the Acts databases.
Children (Education and Care
Services) Supplementary Provisions
Bill 2011
No , 2011
A Bill for
An Act to regulate the provision of certain children's education and care services; to
align the regulation of those services with the Children (Education and Care
Services) National Law (NSW); and for other purposes.
Clause 1 Children (Education and Care Services) Supplementary Provisions Bill 2011
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) Supplementary 4
Provisions Act 2011. 5
2 Commencement 6
This Act commences on a day or days to be appointed by proclamation. 7
3 Definitions 8
(1) In this Act: 9
approved education and care service means a State regulated education 10
and care service for which a service approval exists. 11
approved provider means: 12
(a) a person who holds a provider approval granted under the 13
National Law Alignment Provisions, or 14
(b) a person who is taken to be an approved provider under 15
Division 3 of Part 4. 16
centre based education and care service--see section 4. 17
certified supervisor means a person who holds a supervisor certificate. 18
education and care service--see section 4. 19
exempt premises--see section 5. 20
family day care service has the same meaning as it has in the National 21
Law. 22
home based education and care service--see section 4. 23
mobile education and care service--see section 4. 24
National Law means the Children (Education and Care Services) 25
National Law (NSW). 26
National Law Alignment Provisions--see section 17. 27
provider approval means a provider approval under the National Law 28
Alignment Provisions. 29
Regulatory Authority means the Regulatory Authority for this 30
jurisdiction within the meaning of the National Law. 31
service approval means a service approval under the National Law 32
Alignment Provisions. 33
State regulated education and care service--see section 4. 34
Page 2
Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 4
Preliminary Part 1
supervisor certificate means a supervisor certificate under the National 1
Law Alignment Provisions. 2
(2) Notes included in this Act do not form part of this Act. 3
4 Meaning of "State regulated education and care service" 4
(1) For the purposes of this Act, each of the following education and care 5
services is a State regulated education and care service: 6
(a) a home based education and care service, being an education 7
and care service in which the care (not being care organised or 8
arranged by a family day care service) is provided by the carer at 9
the home of the carer, not being the home of any of the children 10
receiving the care (other than a child related to the carer), 11
(b) a mobile education and care service, being an education and care 12
service that visits specific premises, areas or places at specified 13
times for the purpose of providing the care, 14
(c) a centre based education and care service, being an education 15
and care service that is provided at fixed premises (other than the 16
home of the approved provider of the service), 17
(d) an education and care service of a kind prescribed by the 18
regulations. 19
(2) An education and care service is a service that provides education or 20
care (other than residential care), or both education and care, whether 21
directly or indirectly, for one or more children under the age of 6 years 22
and who do not ordinarily attend school (disregarding any children who 23
are related to the person providing the care). 24
(3) However, a State regulated education and care service does not 25
include any of the following: 26
(a) a service that is an education and care service within the meaning 27
of the National Law (disregarding this Act), 28
(b) a service provided by a designated agency within the meaning of 29
the Children and Young Persons (Care and Protection) Act 1998, 30
(c) a babysitting, playgroup or child-minding service that is 31
organised informally by the parents of the children concerned, 32
(d) a service provided for fewer than 5 children (disregarding any 33
children who are related to the person providing the service) at 34
the premises at which at least one of the children resides, being a 35
service that is not advertised, 36
(e) a service involving medical or clinical care provided by a 37
hospital, 38
Page 3
Clause 5 Children (Education and Care Services) Supplementary Provisions Bill 2011
Part 1 Preliminary
(f) a regular child-minding service: 1
(i) that is provided in connection with a hospital, health 2
service or a recreational or commercial facility, and 3
(ii) that is provided by or on behalf of the person conducting 4
the hospital, health service or recreational or commercial 5
facility, and 6
(iii) that is provided to care for children only: 7
(A) while a sibling of the child being cared for is being 8
treated at the hospital or health service, or 9
(B) while the children's parents or authorised carers are 10
visiting or being treated at the hospital or health 11
service or are using the recreational or commercial 12
facility, 13
(g) a service that is concerned primarily with the provision of: 14
(i) lessons or coaching in, or providing for participation in, a 15
cultural, recreational, religious or sporting activity, or 16
(ii) private tutoring, 17
(h) a service under which formal education in accordance with the 18
school curriculum set out in Part 3 of the Education Act 1990 is 19
provided by a government school or a registered non-government 20
school within the meaning of that Act, 21
(i) a service provided at exempt premises, but only if the service is 22
established, registered or licensed as part of the institution 23
operating on those premises, 24
(j) a service excluded from the operation of this Act by the 25
regulations. 26
(4) In this section: 27
hospital means: 28
(a) a private health facility licensed under the Private Health 29
Facilities Act 2007, or 30
(b) a declared mental health facility or a private mental health facility 31
within the meaning of the Mental Health Act 2007, or 32
(c) a public hospital within the meaning of the Health Services 33
Act 1997. 34
5 Exempt premises 35
(1) The regulations may prescribe any class of premises as exempt premises 36
for the purposes of this Act. 37
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Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 5
Preliminary Part 1
(2) The Minister may, by order published in the Gazette, declare any 1
premises to be exempt premises for the purposes of specified provisions 2
of this Act. 3
(3) A reference in this Act to exempt premises is a reference to: 4
(a) any premises belonging to a class of premises prescribed by the 5
regulations as exempt premises, and 6
(b) in relation to any provision of this Act, any premises declared to 7
be exempt premises for the purposes of that provision by an order 8
of the Minister under this section, being an order that is in force. 9
Page 5
Clause 6 Children (Education and Care Services) Supplementary Provisions Bill 2011
Part 2 Guiding principles
Part 2 Guiding principles 1
6 Principles underlying the provision of State regulated education and 2
care services 3
The provision of State regulated education and care services should be 4
based on the following principles: 5
(a) the paramount consideration in the provision of State regulated 6
education and care services is the best interests of children, 7
(b) children should receive services that meet their individual needs 8
(including the needs of children with a disability) and enhance 9
their physical, emotional, cognitive, social and cultural 10
development, 11
(c) State regulated education and care services should assist the 12
development and education of the children who attend them, 13
(d) State regulated education and care services should be planned 14
and operated in a manner that recognises the diversity of the 15
children who attend them and of the communities that they serve, 16
(e) parents have a right to information about the State regulated 17
education and care services which their children attend, 18
(f) parents have both a right and a responsibility to be involved in the 19
making of decisions by a State regulated education and care 20
service in so far as those decisions affect their children. 21
Note. State regulated education and care services must also be operated in 22
accordance with any relevant provisions of the Anti-Discrimination Act 1977. 23
7 Role of principles 24
(1) The principles set out in this Part are intended to give guidance and 25
direction in the administration of this Act. They do not create, or confer 26
on any person, any right or entitlement enforceable at law. 27
(2) However, this section does not prevent any disciplinary proceedings 28
against a member of the Government Service. 29
Page 6
Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 8
State regulated education and care services Part 3
Part 3 State regulated education and care services 1
Division 1 Operation of State regulated education and care 2
services 3
8 Unauthorised provision of education and care service 4
(1) A person must not provide a State regulated education and care service 5
unless: 6
(a) the person is an approved provider in respect of that service, and 7
(b) the service is an approved education and care service. 8
Maximum penalty: $22,000. 9
(2) A certified supervisor of a State regulated education and care service 10
who is not the approved provider of the service does not commit an 11
offence against this section in respect of anything done in the course of 12
supervising that service in accordance with the supervisor certificate. 13
(3) An employee or other person who provides or assists in providing a 14
State regulated education and care service (other than a certified 15
supervisor of the service) does not commit an offence against this 16
section if the employee or other person is acting in accordance with 17
directions given by the approved provider of the service or a certified 18
supervisor of the service. 19
9 Advertising of unauthorised education and care service 20
(1) A person must not advertise or hold out that the person is willing to 21
provide a State regulated education and care service unless: 22
(a) the person is an approved provider in respect of the service 23
concerned, and 24
(b) the particular service being advertised is an approved education 25
and care service. 26
Maximum penalty: $550. 27
(2) A person must not knowingly publish any advertisement inviting the 28
attendance of children at a State regulated education and care service 29
that is not an approved education and care service. 30
Maximum penalty: $550. 31
(3) A person is not guilty of an offence under this section if: 32
(a) the State regulated education and care service is a service that is 33
proposed to be provided in the future, and 34
Page 7
Clause 10 Children (Education and Care Services) Supplementary Provisions Bill 2011
Part 3 State regulated education and care services
(b) the person has duly applied for any provider approval or service 1
approval required to authorise the person to provide the proposed 2
State regulated education and care service, and 3
(c) the application has not been finally determined. 4
10 Nomination of supervisor 5
(1) An approved provider of an approved education and care service must 6
ensure that there is at least one nominated supervisor of the approved 7
education and care service. 8
(2) The person nominated must be a person authorised by his or her 9
supervisor certificate to supervise the operation of the approved 10
education and care service or type of approved education and care 11
service concerned. 12
(3) A contravention of this section is a contravention of a provision of this 13
Act. 14
(4) A nominated supervisor is not required in respect of a home based 15
education and care service. 16
(5) In this section: 17
nominated supervisor has the same meaning as it has in the National 18
Law Alignment Provisions. 19
Division 2 Provider approvals 20
11 Provider approvals 21
The National Law Alignment Provisions provide for the grant of 22
provider approvals for State regulated education and care services and 23
other matters relating to provider approvals. 24
Note. See also Division 3 of Part 4, which provides for the recognition, for the 25
purposes of this Act, of provider approvals granted under the National Law. 26
12 Contravention of provider approval 27
An approved provider must not contravene a condition of a provider 28
approval granted under the National Law Alignment Provisions. 29
Maximum penalty: $10,000 in the case of an individual or $50,000 in 30
any other case. 31
Page 8
Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 13
State regulated education and care services Part 3
Division 3 Service approvals 1
13 Service approvals 2
The National Law Alignment Provisions provide for the grant of service 3
approvals for State regulated education and care services and other 4
matters relating to service approvals. 5
14 Contravention of service approval 6
An approved provider must not contravene a condition of a service 7
approval for a State regulated education and care service. 8
Maximum penalty: $10,000 in the case of an individual or $50,000 in 9
any other case. 10
Division 4 Supervisor certificates 11
15 Supervisor certificates 12
The National Law Alignment Provisions provide for the grant of 13
supervisor certificates in respect of State regulated education and care 14
services and other matters relating to supervisor certificates. 15
16 Contravention of supervisor certificate 16
A person who is a certified supervisor must not contravene a condition 17
of a supervisor certificate. 18
Maximum penalty: $4,000. 19
Page 9
Clause 17 Children (Education and Care Services) Supplementary Provisions Bill 2011
Part 4 National Law alignment
Part 4 National Law alignment 1
Division 1 Alignment with National Law 2
17 Alignment with National Law 3
The National Law, as in force from time to time: 4
(a) applies to State regulated education and care services as if those 5
services were education and care services within the meaning of 6
the National Law, and 7
(b) so applies with the modifications provided for by or under this 8
Act, and 9
(c) as so applying may be referred to as the National Law Alignment 10
Provisions, and 11
(d) so applies as if it were part of this Act. 12
18 Application of Children (Education and Care Services National Law 13
Application) Act 2010 14
(1) Sections 7 to 16 of the Children (Education and Care Services National 15
Law Application) Act 2010 apply to the National Law Alignment 16
Provisions in the same way as they apply to the National Law, subject 17
to any modifications provided for by this Act or the regulations under 18
this Act. 19
(2) Section 5 of the Children (Education and Care Services National Law 20
Application) Act 2010 does not apply in respect of the National Law 21
Alignment Provisions. 22
19 Application of Interpretation Act 1987 23
The Interpretation Act 1987 does not apply in respect of the National 24
Law Alignment Provisions. 25
Note. Schedule 1 to the National Law provides for interpretation of the 26
provisions of the National Law. Those provisions also apply to the National Law 27
Alignment Provisions. 28
20 Extension does not affect operation of National Law in respect of 29
nationally regulated education and care services 30
To avoid doubt, a provider approval, service approval or supervisor 31
certificate granted under the National Law Alignment Provisions in 32
respect of a State regulated education and care service is not a provider 33
approval, service approval or supervisor certificate (as the case 34
requires) for the purposes of the National Law. 35
Page 10
Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 21
National Law alignment Part 4
Division 2 Modification of National Law 1
21 Excluded provisions 2
(1) For the purposes of the National Law Alignment Provisions, the 3
following provisions of the National Law are to be disregarded: 4
(a) sections 1 to 4 (preliminary matters), 5
(b) section 7 (Single national entity), 6
(c) section 11 (a) (which dictates the jurisdiction in which an 7
application for a provider approval must be made), 8
(d) section 19 (4) (offence of contravening conditions of provider 9
approval), 10
(e) section 42 (Exercise of powers by another Regulatory Authority), 11
(f) section 44 (1) (a) (which dictates the jurisdiction in which an 12
application for a service approval must be made), 13
(g) section 51 (except section 51 (4) and (5) which relate to 14
conditions of service approvals), 15
(h) Division 5 of Part 3 (Application for service waiver), 16
(i) Division 6 of Part 3 (Temporary waiver), 17
(j) section 101 (Exercise of powers by another Regulatory 18
Authority--family day care services), 19
(k) section 102 (Application of Law to associated children's 20
services), 21
(l) section 103 (Offence to provide an education and care service 22
without service approval), 23
(m) section 104 (Offence to advertise education and care service 24
without service approval), 25
(n) section 105 (Purpose of supervisor certificate), 26
(o) section 106 (3) (which dictates the jurisdiction in which an 27
application for a supervisor certificate must be made), 28
(p) section 115 (4) (offence of contravening conditions of supervisor 29
certificate), 30
(q) section 117 (b) (which relates to the effect of a supervisor 31
certificate), 32
(r) section 131 (Exercise of powers by another Regulatory 33
Authority), 34
(s) section 132 (Offence to act as supervisor without supervisor 35
certificate), 36
(t) Part 5 (Assessments and ratings), 37
Page 11
Clause 22 Children (Education and Care Services) Supplementary Provisions Bill 2011
Part 4 National Law alignment
(u) Part 6 (Operating an education and care service), except section 1
171 (Offence relating to direction to exclude inappropriate 2
persons from education and care service premises), 3
(v) section 178 (Notice to suspend education and care by a family 4
day care educator), 5
(w) section 198 (National Authority representative may enter service 6
premises in company with Regulatory Authority), 7
(x) section 214 (Powers of Regulatory Authority to obtain 8
information for rating purposes), 9
(y) Part 10 (Ministerial Council), 10
(z) Part 11 (Australian Children's Education and Care Quality 11
Authority), 12
(aa) sections 260 and 261 (which relate to the functions of the 13
Regulatory Authority), 14
(ab) Part 13 (Information, records and privacy), except section 267 15
(Register of education and care services), section 270 16
(Publication of information) and Division 6 (Disclosure of 17
information), 18
(ac) section 271 (3) and (6) (which relates to disclosures under the 19
National Law scheme), 20
(ad) Divisions 1 to 3 and 8 of Part 14 (Miscellaneous), 21
(ae) Part 15 (Transitional provisions). 22
(2) This section is subject to any exceptions provided for by the regulations. 23
22 References to education and care services 24
For the purposes of the National Law Alignment Provisions: 25
(a) a reference in the National Law to an education and care service 26
is to be read as a reference to a State regulated education and care 27
service, and 28
(b) a reference in the National Law to an approved education and 29
care service is to be read as a reference to a State regulated 30
education and care service that is an approved education and care 31
service within the meaning of this Act. 32
23 References to National Law 33
(1) For the purposes of the National Law Alignment Provisions, a reference 34
in the National Law to the National Law itself (such as a reference to 35
"this Law") is to be read as a reference to this Act (including the 36
National Law Alignment Provisions) and the regulations under this Act. 37
Page 12
Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 24
National Law alignment Part 4
(2) A reference in the National Law to a specific provision of the National 1
Law is to be read as a reference to the corresponding provision of the 2
National Law Alignment Provisions. 3
24 References to Regulatory Authority 4
(1) For the purposes of the National Law Alignment Provisions, a reference 5
in the National Law to the Regulatory Authority is a reference to the 6
Regulatory Authority for this jurisdiction. 7
Note. Under section 9 of the Children (Education and Care Services National 8
Law Application) Act 2010, the Regulatory Authority for this jurisdiction is the 9
Director-General of the Department of Education and Communities. 10
(2) The National Law Alignment Provisions do not confer a power to grant 11
provider approvals, service approvals and supervisor certificates in 12
respect of State regulated education and care services, or confer any 13
other functions with respect to those services, on the Regulatory 14
Authority for another jurisdiction under the National Law. 15
(3) For the purpose of the National Law Alignment Provisions, references 16
in the National Law to provider approvals, service approvals or 17
supervisor certificates granted under the law of another jurisdiction are 18
to be disregarded. 19
(4) This section does not affect the operation of Division 3. 20
Note. Division 3 provides for the recognition, for the purposes of this Act, of 21
provider approvals granted under the National Law (including provider 22
approvals granted by the Regulatory Authority for another jurisdiction). 23
25 References to regulations 24
For the purposes of the National Law Alignment Provisions, a reference 25
in the National Law to the regulations made under that Law or to a 26
matter prescribed under that Law is to be read as a reference to the 27
regulations made under this Act or to a matter prescribed by the 28
regulations under this Act, as the case requires. 29
26 References to matters that relate to national scheme only 30
For the purposes of the National Law Alignment Provisions, any of the 31
following references in the National Law are to be disregarded: 32
(a) references to the National Authority, 33
(b) references to the Ministerial Council, 34
(c) references to the National Quality Framework and to the National 35
Quality Standard, 36
(d) references to a rating level or a rating assessment for an education 37
and care service, 38
(e) references to associated children's services, 39
Page 13
Clause 27 Children (Education and Care Services) Supplementary Provisions Bill 2011
Part 4 National Law alignment
(f) references to management capability in relation to supervisor 1
certificates in Part 4, 2
(g) references to family day care services. 3
27 Specific variations--home based education and care services 4
(1) For the purposes of the National Law Alignment Provisions, section 5
44 (1) (d) of the National Law does not apply in relation to home based 6
education and care service. 7
(2) For the purposes of the National Law Alignment Provisions, Division 3 8
of Part 3 of the National Law does not apply in relation to service 9
approvals for home based education and care services. 10
28 Reviewable decisions 11
(1) For the purposes of the National Law Alignment Provisions, a reference 12
in section 192 of the National Law to a reviewable decision for external 13
review includes, in addition to the decisions listed in that section, any 14
decision of the Regulatory Authority of a kind specified by the 15
regulations to be a reviewable decision for external review. 16
(2) A regulation may not be made for the purposes of this section except 17
with the concurrence of the Minister administering the Administrative 18
Decisions Tribunal Act 1997. 19
(3) For the purposes of the National Law Alignment Provisions, the note at 20
the end of section 192 of the National Law is to be disregarded. 21
29 Further modifications 22
The regulations may make further provision for the application of the 23
National Law to and in respect of State regulated education and care 24
services, including by making further modifications to the National Law 25
for the purposes of the National Law Alignment Provisions. 26
Division 3 Recognition of matters provided for by National 27
Law 28
30 Approved providers 29
A person who holds a provider approval in relation to an education and 30
care service within the meaning of the National Law is taken to be an 31
approved provider in relation to State regulated education and care 32
services under this Act. 33
31 Authorised officers 34
(1) A person who is authorised to be an authorised officer by the Regulatory 35
Authority of this jurisdiction under Part 9 of the National Law is taken 36
Page 14
Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 31
National Law alignment Part 4
to be an authorised officer for the purposes of Part 9 of the National Law 1
Alignment Provisions. 2
(2) An identity card issued to the authorised officer under the National Law 3
is taken to be an identity card identifying the authorised officer as an 4
authorised officer authorised by the Regulatory Authority under this 5
Act. 6
(3) This section does not prevent the issue of a separate identity card by the 7
Regulatory Authority for the purposes of this Act. 8
Page 15
Clause 32 Children (Education and Care Services) Supplementary Provisions Bill 2011
Part 5 Other operational requirements
Part 5 Other operational requirements 1
32 Information to be provided to parents 2
(1) An approved provider of a State regulated education and care service 3
must provide parents of children enrolled in the service with ready 4
access to the following information (service information): 5
(a) all written policies required to be provided by the regulations and 6
other policies and procedures relating to the conduct of the 7
service developed by the approved provider, 8
(b) details of procedures for dealing with parents' concerns and 9
complaints about the service, 10
(c) such other information relating to the service, or to the safety, 11
welfare or well-being of children who attend the service, as the 12
Regulatory Authority, by notice in writing to the approved 13
provider, requires the approved provider to provide. 14
(2) Service information is to be provided in a language and manner that can 15
be understood by the parents of the children enrolled in the service. 16
(3) An approved provider of a State regulated education and care service 17
must inform parents of the availability of service information. 18
Maximum penalty: $220. 19
33 Parental contact with children 20
(1) The service approval of an approved provider for a State regulated 21
education and care service is granted subject to a condition that the 22
approved provider must afford any parent contact with his or her child 23
at any time that the service is being provided to the child. 24
(2) However, an approved provider of a State regulated education and care 25
service may deny a parent contact with his or her child (until the 26
parent's right to contact has been established): 27
(a) if the approved provider has reason to believe that a court has 28
denied the parent that contact, or 29
(b) if the approved provider is requested to do so by the 30
Director-General, an officer of the Ministry of Health, a police 31
officer, or any other appropriate authority. 32
(3) This section applies to a supervisor certificate granted under the 33
National Law Alignment Provisions in the same way as it applies to a 34
service approval. For that purpose, a reference to an approved provider 35
for a State regulated education and care service includes a reference to 36
a nominated supervisor for a State regulated education and care service 37
within the meaning of the National Law Alignment Provisions. 38
Page 16
Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 34
Other operational requirements Part 5
34 Home based education and care services--adult residents 1
(1) A service approval for a home based education and care service is 2
granted subject to a condition that the approved provider of the service 3
must notify the Regulatory Authority if any person (other than the 4
approved provider) who is of or above the age of 18 years is residing at 5
the approved provider's home on a regular basis and has been doing so 6
for a period of at least 3 months. 7
Note. See section 45 of the Commission for Children and Young People Act 8
1998 which provides for background checks to be carried out in relation to adult 9
household members of approved providers. 10
(2) Without limiting the above, any such requirement to notify the 11
Regulatory Authority applies even though the adult person who is 12
residing at the approved provider's home was at any time residing at 13
that home as a minor. 14
35 Records 15
(1) A service approval for a State regulated education and care service is 16
granted subject to a condition that the approved provider of the service 17
must keep such records as the regulations require in relation to the 18
service. 19
(2) The approved provider must keep the records in such a manner that they 20
are readily accessible if the approved provider is required to produce 21
them to the Regulatory Authority, or to any other person who is 22
authorised to inspect them, under this Act. 23
Page 17
Clause 36 Children (Education and Care Services) Supplementary Provisions Bill 2011
Part 6 Miscellaneous
Part 6 Miscellaneous 1
36 Regulations 2
(1) The Governor may make regulations, not inconsistent with this Act, for 3
or with respect to any matter that by this Act is required or permitted to 4
be prescribed or that is necessary or convenient to be prescribed for 5
carrying out or giving effect to this Act. 6
(2) Without limiting subsection (1), the regulations may make provision for 7
or with respect to the following matters: 8
(a) any matter for which national regulations can be made by the 9
Ministerial Council under the National Law, 10
Note. See, in particular, section 301 of the National Law. 11
(b) the records that are to be kept by approved providers, including 12
(but not limited to) the following: 13
(i) the information that the records are to contain, 14
(ii) the form in which they are to be made, 15
(iii) the person responsible for making and maintaining them, 16
(iv) the persons who may inspect them, 17
(v) the period for which they are to be retained, 18
(c) exempting specified centre based education and care services, or 19
centre based education and care services of a specified class, 20
from the requirement that they be provided by an approved 21
provider or the subject of a service approval (or both) and 22
regulating the services so exempted (including, without 23
limitation, establishing standards to be met by those services). 24
(3) A regulation may create an offence punishable by a penalty not 25
exceeding $2,000. 26
37 Adoption of other publications 27
(1) The regulations may apply, adopt or incorporate, wholly or in part and 28
with or without modifications, any standard, rule, code, specification or 29
other document prescribed or published by any person or body (whether 30
of New South Wales or elsewhere) and as in force at a particular time 31
or from time to time. 32
(2) In particular, the regulations may apply, adopt or incorporate, wholly or 33
in part and with or without modification, any of the national regulations 34
made by the Ministerial Council under the National Law, as in force at 35
a particular time or as in force from time to time. 36
Page 18
Children (Education and Care Services) Supplementary Provisions Bill 2011 Clause 38
Miscellaneous Part 6
38 Application of State Records Act 1998 to certain services 1
(1) The State Records Act 1998 does not apply to a private children's 2
service and such a service is not a public office for the purposes of that 3
Act. 4
(2) In this section: 5
private children's service means a State regulated education and care 6
service provided to the community by any person or body other than: 7
(a) a department, office, commission, board, corporation, agency, 8
service or instrumentality exercising any function of any branch 9
of the Government of the State, or 10
(b) a council or county council under the Local Government 11
Act 1993. 12
39 Review of Act 13
(1) The Minister is to review this Act to determine whether the policy 14
objectives of the Act remain valid and whether the terms of the Act 15
remain appropriate for securing those objectives. 16
(2) The review is to be undertaken as soon as possible after the period of 17
5 years from the date of assent to this Act. 18
(3) A report on the outcome of the review is to be tabled in each House of 19
Parliament within 12 months after the end of the period of 5 years. 20
Page 19
Children (Education and Care Services) Supplementary Provisions Bill 2011
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other 1
provisions 2
Part 1 General 3
1 Regulations 4
(1) The regulations may contain provisions of a savings or transitional 5
nature consequent on the enactment of the following Acts: 6
this Act 7
(2) Any such provision may, if the regulations so provide, take effect from 8
the date of assent to the Act concerned or a later date. 9
(3) To the extent to which any such provision takes effect from a date that 10
is earlier than the date of its publication on the NSW legislation website, 11
the provision does not operate so as: 12
(a) to affect, in a manner prejudicial to any person (other than the 13
State or an authority of the State), the rights of that person 14
existing before the date of its publication, or 15
(b) to impose liabilities on any person (other than the State or an 16
authority of the State) in respect of anything done or omitted to 17
be done before the date of its publication. 18
Part 2 Provisions consequent on enactment of this 19
Act 20
2 Continuation of Children's Services Regulation 2004 21
(1) The Children's Services Regulation 2004 (the Regulation) has effect, 22
on the repeal of Chapter 12 of the Children and Young Persons (Care 23
and Protection) Act 1998, as if it were a regulation made under this Act. 24
(2) To avoid doubt, the Subordinate Legislation Act 1989 applies in respect 25
of the Regulation as a statutory rule published on 30 September 2004. 26
Page 20
Children (Education and Care Services) Supplementary Provisions Bill 2011
Amendment of Acts and Regulations Schedule 2
Schedule 2 Amendment of Acts and Regulations 1
2.1 Administrative Decisions Tribunal Act 1997 No 76 2
Schedule 2 Composition and functions of Divisions 3
Insert in alphabetical order in clause 2 of Part 1: 4
Children (Education and Care Services) National Law (NSW) 5
Children (Education and Care Services) Supplementary 6
Provisions Act 2011 7
2.2 Children and Young Persons (Care and Protection) Act 1998 8
No 157 9
[1] Section 3 Definitions 10
Omit the definitions of children's service, children's service approval, 11
service provider licence and supervisor approval. 12
[2] Section 135 Definition and types of "out-of-home care" 13
Omit "a licensed provider of children's services" from section 135 (3) (a). 14
Insert instead "an approved provider of education and care services under the 15
Children (Education and Care Services) National Law (NSW) or the Children 16
(Education and Care Services) Supplementary Provisions Act 2011". 17
[3] Chapters 12 and 12A 18
Omit the Chapters. 19
[4] Section 245 Decisions that are reviewable by Administrative Decisions 20
Tribunal 21
Omit section 245 (1) (l), (m) and (n). 22
[5] Section 258 Offences by corporations 23
Omit "(other than section 219J or 219ZB)" from section 258 (1). 24
[6] Section 258 (1A) 25
Omit the subsection. 26
[7] Section 258 (2) 27
Omit "or (1A)". 28
[8] Section 264 Regulations 29
Omit section 264 (1A) (j). 30
Page 21
Children (Education and Care Services) Supplementary Provisions Bill 2011
Schedule 2 Amendment of Acts and Regulations
[9] Section 264 (1B) 1
Omit "or (j)". 2
2.3 Children and Young Persons (Care and Protection) 3
Regulation 2000 4
Clause 7 Prescribed bodies: sec 248 5
Omit clause 7 (a). Insert instead: 6
(a) a State regulated education and care service within the 7
meaning of the Children (Education and Care Services) 8
Supplementary Provisions Act 2011, 9
(b) an education and care service within the meaning of the 10
Children (Education and Care Services) National Law 11
(NSW), 12
2.4 Children and Young Persons Legislation (Repeal and 13
Amendment) Act 1998 No 158 14
Schedule 2.24 15
Omit the Subschedule. 16
2.5 Children (Education and Care Services National Law 17
Application) Act 2010 No 104 18
[1] Section 5 Exclusion of legislation of this jurisdiction 19
Insert after section 5 (2): 20
(3) However, Part 3A of the Ombudsman Act 1974 does apply in 21
respect of approved education and care services under the 22
Children (Education and Care Services) National Law (NSW). 23
[2] Section 9 24
Omit the section. Insert instead: 25
9 Regulatory Authority 26
For the purposes of the definition of Regulatory Authority in 27
section 5 of the Children (Education and Care Services) National 28
Law (NSW), the Director-General of the Department of 29
Education and Communities is declared to be the Regulatory 30
Authority for this jurisdiction for the purposes of that Law. 31
Page 22
Children (Education and Care Services) Supplementary Provisions Bill 2011
Amendment of Acts and Regulations Schedule 2
[3] Section 10 1
Omit the section. Insert instead: 2
10 Children's services law 3
(1) For the purposes of the definition of children's services law in 4
section 5 of the Children (Education and Care Services) National 5
Law (NSW), each of the following is declared to be a children's 6
services law for this jurisdiction for the purposes of the Children 7
(Education and Care Services) National Law (NSW): 8
(a) the Children (Education and Care Services) 9
Supplementary Provisions Act 2011, 10
(b) the regulations made under that Act. 11
(2) For the purposes of the definition of children's services 12
regulator in section 5 of the Children (Education and Care 13
Services) National Law (NSW), the Director-General of the 14
Department of Education and Communities is declared to be a 15
children's services regulator for this jurisdiction for the purposes 16
of the Children (Education and Care Services) National Law 17
(NSW). 18
[4] Section 11 Education law 19
Insert after section 11 (c): 20
(d) the Technical and Further Education Commission 21
Act 1990, 22
(e) the Education (School Administrative and Support Staff) 23
Act 1987. 24
[5] Section 12 Former education and care services law 25
Omit "Chapter 17" from section 12 (b). 26
Insert instead "Chapters 1, 2, 15, 16 and 17". 27
Page 23
Children (Education and Care Services) Supplementary Provisions Bill 2011
Schedule 2 Amendment of Acts and Regulations
[6] Section 17A 1
Insert after section 17: 2
17A Modification of transitional provisions 3
Section 316 of the Children (Education and Care Services) 4
National Law (NSW) is taken to include the following provision, 5
inserted as section 316 (3): 6
(3) Subsection (1) also ceases to apply if-- 7
(a) the approved provider for the service does not 8
nominate a declared nominated supervisor as the 9
sole nominated supervisor for the education and 10
care service within a time specified by the 11
Regulatory Authority after being requested in 12
writing to do so by the Regulatory Authority, or 13
(b) the approved provider for the service nominates 14
another declared nominated supervisor as the sole 15
nominated supervisor for the education and care 16
service within a time specified by the Regulatory 17
Authority after being requested in writing to do so 18
by the Regulatory Authority. 19
2.6 Children's Services Regulation 2004 20
Clause 1 Name of Regulation 21
Omit "Children's Services Regulation 2004". 22
Insert instead "Children (Education and Care Services) Supplementary 23
Provisions Regulation 2004". 24
2.7 Commission for Children and Young People Act 1998 No 146 25
[1] Section 33 Definitions 26
Omit paragraph (a1) (i), (ii) and (iii) of the definition of child-related 27
employment in section 33 (1). 28
Insert instead: 29
(i) employment comprising the provision of an 30
education and care service, 31
(ii) employment as a person involved in the control or 32
management of an education and care service, 33
(iii) employment as a certified supervisor (within the 34
meaning of the Children (Education and Care 35
Page 24
Children (Education and Care Services) Supplementary Provisions Bill 2011
Amendment of Acts and Regulations Schedule 2
Services) National Law (NSW)) in relation to an 1
education and care service under that Law, 2
(iiia) employment as a certified supervisor (within the 3
meaning of the Children (Education and Care 4
Services) Supplementary Provisions Act 2011) in 5
relation to a State regulated education and care 6
service under that Act, 7
[2] Section 33 (1), definition of "employer" 8
Omit paragraph (c). Insert instead: 9
(c) in the case of employment comprising the provision of an 10
education and care service or the performance of work as 11
a person involved in the control or management of an 12
education and care service--the Director-General of the 13
Department of Education and Communities. 14
[3] Section 33 (1), definition of "employment" 15
Omit paragraphs (g) and (h). Insert instead: 16
(g) providing an education and care service, or 17
(h) performance of work as a person involved in the control or 18
management of an education and care service. 19
[4] Section 33 (1) 20
Insert in alphabetical order: 21
education and care service means an education and care service 22
within the meaning of the Children (Education and Care 23
Services) National Law (NSW) or a State regulated education and 24
care service within the meaning of the Children (Education and 25
Care Services) Supplementary Provisions Act 2011. 26
[5] Section 33 (1), definition of "prescribed children's service" 27
Omit the definition. 28
[6] Section 45 Application of background checking provisions to adult 29
persons residing with authorised carers or children's service providers 30
Insert in alphabetical order in section 45 (1). 31
approved provider of a children's service means the approved 32
provider of the service under the Children (Education and Care 33
Services) National Law (NSW) or the Children (Education and 34
Care Services) Supplementary Provisions Act 2011, as the case 35
requires. 36
Page 25
Children (Education and Care Services) Supplementary Provisions Bill 2011
Schedule 2 Amendment of Acts and Regulations
children's service means a family day care service within the 1
meaning of the Children (Education and Care Services) National 2
Law (NSW) or a home based education and care service within 3
the meaning of the Children (Education and Care Services) 4
Supplementary Provisions Act 2011. 5
[7] Section 45 (1) 6
Omit the definition of children's service provider. Insert instead: 7
children's service provider means: 8
(a) in the case of a family day care service approved under the 9
Children (Education and Care Services) National Law 10
(NSW)--the person who is the family day care educator 11
under that Law for that service, or 12
(b) in the case of a home based education and care service 13
approved under the Children (Education and Care 14
Services) Supplementary Provisions Act 2011--the person 15
who is the approved provider under that Act for that 16
service. 17
[8] Section 45 (4) (a) and (c) 18
Omit "licensee of the children's service" wherever occurring. 19
Insert instead "approved provider of the children's service". 20
2.8 Community Services (Complaints, Reviews and Monitoring) 21
Act 1993 No 2 22
[1] Section 4 Definitions 23
Insert after paragraph (c) of the definition of community welfare legislation in 24
section 4 (1): 25
(c1) the Children (Education and Care Services) 26
Supplementary Provisions Act 2011, 27
[2] Section 28 Applications to Administrative Decisions Tribunal for reviews 28
of decisions 29
Insert after section 28 (1) (a): 30
(a1) a decision that is a reviewable decision for external review 31
under section 192 of the National Law Alignment 32
Provisions (within the meaning of the Children (Education 33
and Care Services) Supplementary Provisions Act 2011), 34
Page 26
Children (Education and Care Services) Supplementary Provisions Bill 2011
Amendment of Acts and Regulations Schedule 2
[3] Section 29 Who may apply to the Tribunal? 1
Insert after section 29 (6): 2
(7) An application may not be made under this Part for a review of a 3
reviewable decision under the Children (Education and Care 4
Services) Supplementary Provisions Act 2011 by the person who 5
is the subject of the reviewable decision. Any such application 6
must be made as provided for by that Act. 7
(8) In this section: 8
reviewable decision under the Children (Education and Care 9
Services) Supplementary Provisions Act 2011 means a decision 10
that is a reviewable decision for external review under section 11
192 of the National Law Alignment Provisions (within the 12
meaning of that Act). 13
2.9 Companion Animals Act 1998 No 87 14
Section 14 Dogs prohibited in some public places 15
Omit section 14 (1) (f). Insert instead: 16
(f) Child care centres (meaning any property occupied or 17
used for a purpose connected with the conduct of an 18
approved education and care service within the meaning of 19
the Children (Education and Care Services) National Law 20
(NSW) or the Children (Education and Care Services) 21
Supplementary Provisions Act 2011, other than any 22
property used for a residence or the curtilage of a 23
residence). 24
2.10 Food Regulation 2010 25
Clause 16O Exemptions from Division 3 of Part 8 of the Act 26
Omit clause 16O (3) (c). Insert instead 27
(c) premises where an approved education and care service 28
within the meaning of the Children (Education and Care 29
Services) National Law (NSW), or the Children (Education 30
and Care Services) Supplementary Provisions Act 2011, is 31
provided, 32
Page 27
Children (Education and Care Services) Supplementary Provisions Bill 2011
Schedule 2 Amendment of Acts and Regulations
2.11 Ombudsman Act 1974 No 68 1
Section 25A Definitions 2
Omit paragraph (b) of the definition of designated non-government agency in 3
section 25A (1). 4
Insert instead: 5
(b) a designated agency within the meaning of the Children 6
and Young Persons (Care and Protection) Act 1998 (not 7
being a department referred to in paragraph (a) of the 8
definition of designated government agency in this 9
subsection), 10
(b1) an approved education and care service within the meaning 11
of the Children (Education and Care Services) National 12
Law (NSW) or the Children (Education and Care Services) 13
Supplementary Provisions Act 2011, 14
2.12 Public Health Act 2010 No 127 15
Section 85 Definitions 16
Omit the definition of child care facility from section 85 (1). Insert instead: 17
child care facility means: 18
(a) an education and care service within the meaning of the 19
Children (Education and Care Services) National Law 20
(NSW), or 21
(b) a State regulated education and care service within the 22
meaning of the Children (Education and Care Services) 23
Supplementary Provisions Act 2011, or 24
(c) a service or facility of a class declared by the regulations 25
to be a child care facility for the purposes of this Division. 26
Page 28
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