EDUCATION AND EARLY CHILDHOOD SERVICES (REGISTRATION AND STANDARDS) ACT 2011 - SCHEDULE 1
EDUCATION AND EARLY CHILDHOOD SERVICES (REGISTRATION AND STANDARDS) ACT 2011 - SCHEDULE 1
Schedule 1—Education and Care Services National Law
Part 1—Preliminary
1—Short title
This Law may be cited as the Education and Care Services National Law .
2—Commencement
This Law commences in a participating jurisdiction as provided under the Act
of that jurisdiction that applies this Law as a law of that jurisdiction.
3—Objectives and guiding principles
(1) The objective of
this Law is to establish a national education and care services quality
framework for the delivery of education and care services to children.
(2) The objectives of
the national education and care services quality framework are—
(a) to
ensure the safety, health and wellbeing of children attending education and
care services;
(b) to
improve the educational and developmental outcomes for children attending
education and care services;
(c) to
promote continuous improvement in the provision of quality education and care
services;
(d) to
establish a system of national integration and shared responsibility between
participating jurisdictions and the Commonwealth in the administration of the
national education and care services quality framework;
(e) to
improve public knowledge, and access to information, about the quality of
education and care services;
(f) to
reduce the regulatory and administrative burden for education and care
services by enabling information to be shared between participating
jurisdictions and the Commonwealth.
(3) The guiding
principles of the national education and care services quality framework are
as follows—
(a) that
the rights and best interests of the child are paramount;
(b) that
children are successful, competent and capable learners;
(c) that
the principles of equity, inclusion and diversity underlie this Law;
(d) that
Australia's Aboriginal and Torres Strait Islander cultures are valued;
(e) that
the role of parents and families is respected and supported;
(f) that
best practice is expected in the provision of education and care services.
4—How functions to be exercised
An entity that has functions under this Law is to exercise its functions
having regard to the objectives and guiding principles of the national
education and care services quality framework set out in section 3.
5—Definitions
approved education and care service means an education and care service for
which a service approval exists;
approved family day care service means an approved education and care service
that is a family day care service;
approved family day care venue means a place (other than a residence) approved
under section 50A or 54(8A) as a family day care venue for an approved family
day care service;
approved learning framework means a learning framework approved by the
Ministerial Council;
approved provider means a person who holds a provider approval;
associated children's service means a children's service that is operated or
intended to be operated by an approved provider at the same place as an
approved education and care service;
Australian Accounting Standards means the standards issued or pronounced by
the Australian Accounting Standards Board;
authorised officer means a person authorised to be an authorised officer under
Part 9;
Authority Fund means the Australian Children's Education and Care Quality
Authority Fund established under section 274;
Board means the Australian Children's Education and Care Quality Authority
Board established under this Law;
chief executive officer means the chief executive officer of the National
Authority appointed under this Law;
children's service means a service providing or intended to provide education
and care on a regular basis to children under 13 years of age that is
primarily regulated under a children's services law of a participating
jurisdiction and is not an education and care service;
children's services law , in relation to a participating jurisdiction, means a
law declared by a law of that jurisdiction to be a children's services law for
the purposes of this Law;
children's services regulator , in relation to a participating jurisdiction,
means a person declared by a law of that jurisdiction to be the children's
services regulator for the purposes of this Law;
Commonwealth Minister means the Minister of the Commonwealth who is
responsible for policies and programs relating to education and care services;
compliance direction means a compliance direction under section 176;
compliance notice means a compliance notice under section 177;
education and care service means any service providing or intended to provide
education and care on a regular basis to children under 13 years of age
other than—
(a) a
school providing full-time education to children, including children attending
in the year before grade 1 but not including a preschool program
delivered in a school or a preschool that is registered as a school; or
(b) a
preschool program delivered in a school if—
(i)
the program is delivered in a class or classes where a
full-time education program is also being delivered to school children; and
(ii)
the program is being delivered to fewer than 6 children
in the school; or
(c) a
personal arrangement; or
(d) a
service principally conducted to provide instruction in a particular activity;
or
Example—
Instruction in a particular activity could be instruction in sport, dance,
music, culture or language or religious instruction.
(e) a
service providing education and care to patients in a hospital or patients of
a medical or therapeutic care service; or
(f) care
provided under a child protection law of a participating jurisdiction; or
(g) a
prescribed class of disability service; or
(h) a
service of a prescribed class;
Example—
Education and care services to which this Law applies include long day care
services, family day care services, outside school hours services and
preschool programs including those delivered in schools, unless expressly
excluded.
education and care service premises means—
(a) in
relation to an education and care service other than a family day care
service, each place at which an education and care service operates or is to
operate; or
(b) in
relation to a family day care service—
(i)
an office of the family day care service; or
(ii)
an approved family day care venue; or
(iii)
each part of a residence used to provide education and
care to children as part of a family day care service or used to provide
access to the part of the residence used to provide that education and care;
education law , in relation to a participating jurisdiction, means a law
declared by a law of that jurisdiction to be an education law for the purposes
of this Law;
educator means an individual who provides education and care for children as
part of an education and care service;
eligible association means an association of a prescribed class;
family day care co-ordinator means a person employed or engaged by an approved
provider of a family day care service to monitor and support the family day
care educators who are part of the service;
family day care educator means an educator engaged by or registered with a
family day care service to provide education and care for children in a
residence or at an approved family day care venue;
family day care educator assistant means a person engaged by or registered
with a family day care service to assist family day care educators;
family day care residence means a residence at which a family day care
educator educates and cares for children as part of a family day care service;
family day care service means an education and care service that—
(a) is
delivered through the use of 2 or more educators to provide education and care
to children; and
(b)
operates from 2 or more residences;
Note—
A family day care service that is an approved family day care service may
provide education and care to children from a family day care residence or an
approved family day care venue.
family member , in relation to a child, means—
(a) a
parent, grandparent, brother, sister, uncle, aunt, or cousin of the child,
whether of the whole blood or half-blood and whether that relationship arises
by marriage (including a de facto relationship) or by adoption or otherwise;
or
(b) a
relative of the child according to Aboriginal or Torres Strait Islander
tradition; or
(c) a
person with whom the child resides in a family-like relationship; or
(d) a
person who is recognised in the child's community as having a familial role in
respect of the child;
former education and care services law , in relation to a participating
jurisdiction, means a law declared by a law of that jurisdiction to be a
former education and care services law for the purposes of this Law;
grade 1 , in relation to a school, means the first year of compulsory
full-time schooling;
guardian , in relation to a child, means the legal guardian of the child;
infringements law , in relation to a participating jurisdiction, means a law
declared by a law of that jurisdiction to be an infringements law for the
purposes of this Law;
Ministerial Council means a body (however described) that consists of the
Minister of the Commonwealth, and the Minister of each State and Territory,
who is responsible, or principally responsible, for matters under this Law;
National Authority means the Australian Children's Education and Care Quality
Authority established under this Law;
national education and care services quality framework means—
(a) this
Law; and
(b) the
national regulations; and
(c) the
National Quality Standard; and
(d) the
prescribed rating system;
National Partnership Agreement means the National Partnership Agreement on the
National Quality Agenda for Early Childhood and Care entered into by the
States and Territories and the Commonwealth on 7 December 2009, as
amended from time to time;
National Quality Framework means the national education and care services
quality framework;
National Quality Standard means the National Quality Standard prescribed by
the national regulations;
national regulations means the regulations made under this Law;
nominated supervisor , in relation to an education and care service, means an
individual who—
(a) is
nominated by the approved provider of the service under Part 3 to be a
nominated supervisor of that service; and
(b)
unless the individual is the approved provider, has provided written consent
to that nomination;
Note—
An individual may be both a nominated supervisor of a family day care service
and a family day care co ordinator for that service if the individual meets
the criteria for each role.
office , in relation to a family day care service, means—
(a) the
principal office of the service; or
(b) the
principal office of the approved provider of the service; or
(c) any
other business office of the approved provider of the service; or
(d) any
premises of the service from which the service's family day care educators are
co-ordinated;
parent , in relation to a child, includes—
(a) a
guardian of the child; and
(b) a
person who has parental responsibility for the child under a decision or order
of a court;
participating jurisdiction means a State or Territory in which—
(a) this
Law applies as a Law of the State or Territory; or
(b) a
law that substantially corresponds to the provisions of this Law has been
enacted;
payment , in relation to a prescribed fee, includes payment by electronic or
other means;
person means—
(a) an
individual; or
(b) a
body corporate; or
(c) an
eligible association; or
(d) a
partnership; or
(e) a
prescribed entity;
person in day-to-day charge , in relation to an education and care service,
means a person who is placed in day-to-day charge of the service in accordance
with the national regulations;
person with management or control means a person referred to in
section 5A;
personal arrangement means education and care provided to a child—
(a) by a
family member or guardian of a child personally, otherwise than as a staff
member of, or under an engagement with, a service providing education and care
on a regular basis to children under 13 years of age; or
(b) by a
friend of the family of the child personally under an informal arrangement
where no offer to provide that education and care was advertised;
preschool program means an early childhood educational program delivered by a
qualified early childhood teacher to children in the year that is 2 years
before grade 1 of school;
prescribed ineligible person means a person in a class of persons prescribed
by the national regulations to be prescribed ineligible persons;
prohibition notice means a prohibition notice given under section 182(1) or
182(3);
protected disclosure —see section 296;
provider approval means a provider approval—
(a)
granted under Part 2 of this Law or this Law as applying in another
participating jurisdiction; and
(b) as
amended under this Law or this Law as applying in another participating
jurisdiction,
but does not include a provider approval that has been cancelled;
public sector law , in relation to a participating jurisdiction, means a law
declared by a law of that jurisdiction to be a public sector law for the
purposes of this Law;
rating assessment means an assessment or reassessment of an approved education
and care service under Part 5;
Ratings Review Panel means a Ratings Review Panel established under
section 146;
receiving approved provider has the meaning set out in section 58;
Regulatory Authority means a person declared by a law of a participating
jurisdiction to be the Regulatory Authority for that jurisdiction or for a
class of education and care services for that jurisdiction;
relevant Commonwealth Department means the government department administered
by the Commonwealth Minister;
relevant tribunal or court , in relation to a participating jurisdiction,
means the tribunal or court declared by a law of that jurisdiction to be the
relevant tribunal or court for the purposes of this Law or a provision of this
Law;
residence means the habitable areas of a dwelling;
school children includes children attending school in the year before grade 1;
school means—
(a) a
government school; or
(b) a
non-government school that is registered or accredited under an education law
of a participating jurisdiction;
serious detrimental action —see section 296;
serious incident means an incident or class of incidents prescribed by the
national regulations as a serious incident;
service approval means a service approval—
(a)
granted under Part 3 of this Law or this Law as applying in another
participating jurisdiction; and
(b) as
amended under this Law or this Law as applying in another participating
jurisdiction,
but does not include a service approval that has been cancelled;
staff member , in relation to an education and care service, means any
individual (other than a nominated supervisor or a volunteer) employed,
appointed or engaged to work in or as part of an education and care service,
whether as family day care co-ordinator, educator or otherwise;
transferring approved provider has the meaning set out in section 58;
working with children card means a card issued to a person under a working
with children law of a participating jurisdiction that permits that person to
work with children;
working with children check means a notice, certificate or other document
granted to, or with respect to, a person under a working with children law to
the effect that—
(a) the
person has been assessed as suitable to work with children; or
(b)
there has been no information that if the person worked with children the
person would pose a risk to the children; or
(c) the
person is not prohibited from attempting to obtain, undertake or remain in
child-related employment;
working with children law , in relation to a participating jurisdiction, means
a law declared by a law of that jurisdiction to be a working with children law
for the purposes of this Law;
working with vulnerable people law , in relation to a participating
jurisdiction, means a law declared by a law of that jurisdiction to be a
working with vulnerable people law for the purposes of this Law.
(2) In this Law, a
reference (either generally or specifically) to a law or a provision of a law
(including this Law) includes a reference to the statutory instruments made or
in force under the law or provision.
(3) In this Law a
reference to education and care includes a reference to education or care.
(4) In this Law, an
education and care service as defined in subsection (1) is an education
and care service even if the service also provides education and care to
children of or over the age of 13 years.
(5) In this Law, a
children's service as defined in subsection (1) is a children's service
even if the service also provides education and care to children of or over
the age of 13 years.
(6) In this Law, a
reference to this Law as applying in a jurisdiction, includes a reference to a
law that substantially corresponds to this Law enacted, or applying, in a
jurisdiction.
5A—Meaning of person with management or control
For the purposes of this Law, each of the following persons is a person with
management or control of an education and care service:
(a) if
the provider or intended provider of the service is a body corporate—
(i)
an officer (within the meaning of the Corporations
Act 2001 of the Commonwealth) of the body corporate who has authority or
responsibility for, or significant influence over, the planning, direction or
control of the activities or the delivery of the education and care service;
and
(ii)
any other person who—
(A) is a member of the group of persons
responsible for the executive decisions made in relation to the education and
care service; or
(B) has authority or responsibility for, or
significant influence over, the planning, direction or control of the
activities or the delivery of the education and care service;
(b) if
the provider or intended provider of the service is an eligible
association—
(i)
each member of the executive committee of the association
who has authority or responsibility for, or significant influence over, the
planning, direction or control of the activities or the delivery of the
education and care service; and
(ii)
any other person who—
(A) is a member of the group of persons
responsible for the executive decisions made in relation to the education and
care service; or
(B) has authority or responsibility for, or
significant influence over, the planning, direction or control of the
activities or the delivery of the education and care service;
(c) if
the provider or intended provider of the service is a partnership—
(i)
each partner who has authority or responsibility for, or
significant influence over, the planning, direction or control of the
activities or the delivery of the education and care service; and
(ii)
any other person who—
(A) is a member of the group of persons
responsible for the executive decisions made in relation to the education and
care service; or
(B) has authority or responsibility for, or
significant influence over, the planning, direction or control of the
activities or the delivery of the education and care service;
(d) in
any other case, any person who—
(i)
is a member of the group of persons responsible for the
executive decisions made in relation to the education and care service; or
(ii)
has authority or responsibility for, or significant
influence over, the planning, direction or control of the activities or the
delivery of the education and care service.
6—Interpretation generally
(1) Schedule 1
applies in relation to this Law.
(2) The National
Partnership Agreement is declared to be a relevant document for the purposes
of Schedule 1 of the definition of extrinsic material in clause 8(1)
of Schedule 1.
7—Single national entity
(1) It is the
intention of the Parliament of this jurisdiction that this Law as applied by
an Act of this jurisdiction, together with this Law as applied by Acts of
other participating jurisdictions, has the effect that an entity established
by this Law is one single national entity, with functions conferred by this
Law as so applied.
(2) An entity
established by this Law has power to do acts in or in relation to this
jurisdiction in the exercise of a function expressed to be conferred on it by
this Law as applied by Acts of each participating jurisdiction.
(3) An entity
established by this Law may exercise its functions in relation to—
(a) one
participating jurisdiction; or
(b) 2 or
more or all participating jurisdictions collectively.
(4) In this section, a
reference to this Law as applied by an Act of a jurisdiction includes a
reference to a law that substantially corresponds to this Law enacted in a
jurisdiction.
8—Extraterritorial operation of Law
It is the intention of the Parliament of this jurisdiction that the operation
of this Law is to, as far as possible, include operation in relation to the
following:
(a)
things situated in or outside the territorial limits of this jurisdiction;
(b)
acts, transactions and matters done, entered into or occurring in or outside
the territorial limits of this jurisdiction;
(c)
things, acts, transactions and matters (wherever situated, done, entered into
or occurring) that would, apart from this Law, be governed or otherwise
affected by the law of another jurisdiction.
9—Law binds the State
(1) This Law binds the
State.
(2) In this
section—
State means the Crown in right of this jurisdiction, and includes—
(a) the
Government of this jurisdiction; and
(b) a
Minister of the Crown in right of this jurisdiction; and
(c) a
statutory corporation, or other entity, representing the Crown in right of
this jurisdiction.
Part 2—Provider approval
Division 1—Application for provider approval
10—Application for provider approval
(1) A person, other
than a prescribed ineligible person, may apply to the Regulatory Authority for
a provider approval.
(2) An application may
be made by more than one person.
(3) If an application
is made by more than one person—
(a) the
prescribed information must be provided in respect of each person; and
(b) the
requirements of this Division must be complied with by and in respect of each
person.
11—Form of application
An application under section 10 must—
(a) be
made to the Regulatory Authority of the participating jurisdiction—
(i)
in which the applicant, or any of the applicants, is
ordinarily resident; or
(ii)
if the applicant or applicants are not individuals, in
which the principal office of the applicant or any of the applicants is
located; and
(b) be
in writing; and
(c)
include the prescribed information; and
(d)
include payment of the prescribed fee.
12—Applicant must be fit and proper person
(1) An applicant who
is an individual must satisfy the Regulatory Authority that the applicant is a
fit and proper person to be involved in the provision of an education and care
service.
(2) If the applicant
is not an individual, the applicant must satisfy the Regulatory Authority
that—
(a) each
person who will be a person with management or control of an education and
care service to be operated by the applicant is a fit and proper person to be
involved in the provision of an education and care service; and
(b) the
applicant is a fit and proper person to be involved in the provision of an
education and care service.
(3) The head of a
government department administering an education law of a participating
jurisdiction is taken to be a fit and proper person for the purposes of this
Part.
13—Matters to be taken into account in assessing whether fit and proper
person
(1) In determining
whether a person is a fit and proper person under this Division, the
Regulatory Authority must have regard to—
(a) the
person's history of compliance with—
(i)
this Law as applying in any participating jurisdiction;
and
(ii)
a former education and care services law of a
participating jurisdiction; and
(iii)
a children's services law of a participating
jurisdiction; and
(iv)
an education law of a participating jurisdiction; and
Note—
If a person has been served with an infringement notice for an offence under
this Law, and the person has paid the penalty, the Regulatory Authority cannot
consider that conduct when determining whether the person is fit and proper.
See section 291(5).
(b) any
decision under a former education and care services law, a children's services
law or an education law of a participating jurisdiction to refuse, refuse to
renew, suspend or cancel a licence, approval, registration or certification or
other authorisation granted to the person under that law; and
(c)
either—
(i)
any prescribed matters relating to the criminal history
of the person to the extent that history may affect the person's suitability
for the role of provider of an education and care service; or
(ii)
any check of the person under a working with vulnerable
people law of a participating jurisdiction; and
(d)
whether the person is bankrupt, or has applied to take the benefit of any law
for the relief of bankrupt or insolvent debtors or, in the case of a body
corporate, is insolvent under administration or an externally-administered
body corporate.
(2) Without limiting
subsection (1), the Regulatory Authority may have regard to—
(a)
whether the person has a medical condition that may cause the person to be
incapable of being responsible for providing an education and care service in
accordance with this Law; and
(b)
whether the financial circumstances of the person may significantly limit the
person's capacity to meet the person's obligations in providing an education
and care service in accordance with this Law; and
(c)
whether the person has the management capability to operate an education and
care service in accordance with this Law; and
(d) any
of the following actions taken under the A New Tax System (Family Assistance)
(Administration) Act 1999 of the Commonwealth in relation to a child care
service approved under that Act, operated by the person or in relation to
which the person was a person with management or control—
(i)
any sanction imposed under section 195H of that Act;
(ii)
any suspension imposed under section 197A of that Act;
(iii)
any infringement notice given under section 219WA of that
Act.
(3) Nothing in
subsection (1) or (2) limits the circumstances in which a person may be
considered not to be a fit and proper person to be involved in the provision
of an education and care service.
14—Regulatory Authority may seek further information
(1) For the purpose of
carrying out an assessment as to whether a person is a fit and proper person,
the Regulatory Authority may—
(a) ask
the person to provide further information, including for the purposes of
assessing the person's knowledge of the National Quality Framework; and
(b)
undertake inquiries in relation to the person; and
(c) by
written notification, require the person to undergo an oral or written
assessment of the person's knowledge of the National Quality Framework.
(2) If the Regulatory
Authority asks the applicant for further information under this section, the
period from the making of the request until the provision of the further
information is not included in the period referred to in section 15 for
the Regulatory Authority to make a decision on the application.
(3) If the Regulatory
Authority requires the applicant to undergo an assessment under this section,
the period from the giving of the notification until the conduct of the
assessment is not included in the period referred to in section 15 for
the Regulatory Authority to make a decision on the application.
15—Grant or refusal of provider approval
(1) On an application
under section 10, the Regulatory Authority may—
(a)
grant the provider approval; or
(b)
refuse to grant the provider approval.
Note—
A provider approval is granted subject to conditions in accordance with
section 19.
(2) The Regulatory
Authority must not grant a provider approval unless the Authority is satisfied
as to the matters in section 12.
(3) Subject to
subsection (4), the Regulatory Authority must make a decision on the
application within 60 days after the Regulatory Authority receives the
application.
Notes—
1 If further information is requested under
section 14(1)(a), the period between the making of the request and the
provision of the information is not included in the 60 day period.
2 If an assessment is required under
section 14(1)(c), the period between the giving of the notification and
the conduct of the assessment is not included in the 60 day period.
(4) The period
referred to in subsection (3) may be extended by up to 30 days with the
agreement of the applicant.
(5) The Regulatory
Authority is taken to have refused to grant a provider approval if the
Regulatory Authority has not made a decision under subsection (1)—
(a)
within the relevant period required under subsection (3); or
(b)
within the period extended under subsection (4),
as the case requires.
16—Notice of decision on application
The Regulatory Authority must give written notice to the applicant of a
decision under section 15 and the reasons for that decision within 7 days
after the decision is made.
17—Duration of provider approval
A provider approval granted under section 15 continues in force until it
is cancelled or surrendered under this Law, or this Law as applying in a
participating jurisdiction.
18—Effect of provider approval
A provider approval authorises the approved provider to operate an approved
education and care service and an associated children's service if the
approved provider is the holder of the service approval for those services.
19—Conditions on provider approval
(1) A provider
approval may be granted subject to any conditions that are prescribed in the
national regulations or that are determined by the Regulatory Authority.
(2) Without limiting
subsection (1), a provider approval is subject to the condition that the
approved provider must comply with this Law.
(3) A condition of a
provider approval applies to the provider as the operator of any education and
care service or associated children's service, unless the condition expressly
provides otherwise.
(4) An approved
provider must comply with the conditions of the provider approval.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
20—Copy of provider approval
If the Regulatory Authority grants a provider approval under this Part, the
Regulatory Authority must provide a copy of the provider approval to the
approved provider stating—
(a) the
name of the approved provider; and
(b) if
the approved provider is not an individual, the address of the principal
office of the provider; and
(c) any
conditions to which the approval is subject; and
(d) the
date that the provider approval was granted; and
(e) the
provider approval number; and
(f) any
other prescribed matters.
Division 2—Reassessment
21—Reassessment of fitness and propriety
(1) The Regulatory
Authority may at any time assess—
(a)
whether an approved provider continues to be a fit and proper person to be
involved in the provision of an education and care service; or
(b)
whether a person with management or control of an education and care service
operated by an approved provider continues to be a fit and proper person to be
involved in the provision of an education and care service; or
(c)
whether a person who becomes a person with management or control of an
education and care service operated by the approved provider after the grant
of the provider approval is a fit and proper person to be involved in the
provision of an education and care service.
(2) Sections 13 and 14
apply to the reassessment.
Division 3—Amendment of provider approvals
22—Amendment of provider approval on application
(1) An approved
provider may apply to the Regulatory Authority for an amendment of the
provider approval.
(2) The application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
(3) The Regulatory
Authority must decide the application by—
(a)
amending the provider approval in the way applied for; or
(b) with
the applicant's written agreement, amending the provider approval in another
way; or
(c)
refusing to amend the provider approval.
(4) The Regulatory
Authority must make a decision on the application within 30 days after the
Regulatory Authority receives the application.
(5) Without limiting
subsection (3), an amendment may vary a condition of the provider
approval or impose a new condition on the provider approval.
23—Amendment of provider approval by Regulatory Authority
(1) The Regulatory
Authority may amend a provider approval at any time without an application
from the approved provider.
(2) Without limiting
subsection (1), an amendment may vary a condition of the provider
approval or impose a new condition on the provider approval.
(3) The Regulatory
Authority must give written notice to the approved provider of the amendment.
(4) An amendment under
this section has effect—
(a) 14
days after the Regulatory Authority gives notice of the amendment under
subsection (3); or
(b) if
another period is specified by the Regulatory Authority, at the end of that
period.
24—Copy of amended provider approval to be provided
If the Regulatory Authority amends a provider approval under this Division,
the Regulatory Authority must—
(a)
provide an amended copy of the provider approval to the approved provider; and
(b) make
any necessary amendments to any service approval held by the provider and
provide an amended copy of the service approval to the approved provider.
Division 4—Suspension or cancellation of provider approval
25—Grounds for suspension of provider approval
The Regulatory Authority may suspend a provider approval if—
(a) the
approved provider has been charged with an indictable offence, or with an
offence that if committed in this jurisdiction would be an indictable offence,
or any other circumstance indicates that the approved provider may not be a
fit and proper person to be involved in the provision of an education and care
service; or
(b) the
approved provider has failed to comply with a condition of the provider
approval; or
(c) the
approved provider has failed to comply with this Law as applying in any
participating jurisdiction; or
(d)
action is being taken under Part 7 (other than a compliance direction) in
respect of more than one education and care service operated by the approved
provider; or
(e) the
approved provider has not operated any education and care service for a period
of more than 12 months (including any period of suspension); or
(f) the
approved provider purported to transfer or receive a transfer of an approved
education and care service without the consent of the Regulatory Authority; or
(g) the
approved provider has not paid any outstanding prescribed fees; or
(h)
under section 195H(1)(b) of the A New Tax System (Family Assistance)
(Administration) Act 1999 of the Commonwealth, the approved provider's
approval as a provider has been cancelled for the reason that the approved
provider has not satisfied, or is not satisfying, the provider eligibility
rules in section 194C(b), (c) or (d) of that Act; or
Note—
It is a condition for continued approval of an approved provider that the
approved provider continues to satisfy the provider eligibility
rules—see section 195A(1)(a) of the
A New Tax System (Family Assistance) (Administration) Act 1999 of the
Commonwealth.
(i)
the approved provider has been refused approval as a
provider under section 194B(6) of the
A New Tax System (Family Assistance) (Administration) Act 1999 of the
Commonwealth for the reason that the provider does not satisfy the provider
eligibility rules in section 194C(b), (c) or (d) of that Act.
Note—
The Regulatory Authority must refuse to approve a provider if the Regulatory
Authority is not satisfied that the provider satisfies the provider
eligibility rules—see section 194B(1)(a) and (6) of the A New
Tax System (Family Assistance) (Administration) Act 1999 of the
Commonwealth.
26—Show cause notice before suspension
(1) This section
applies if the Regulatory Authority is considering the suspension of a
provider approval under section 25.
(2) The Regulatory
Authority must first give the approved provider a notice (show cause notice)
stating—
(a) that
the Regulatory Authority intends to suspend the provider approval; and
(b) the
proposed period of suspension; and
(c) the
reasons for the proposed suspension; and
(d) that
the approved provider may, within 30 days after the notice is given, give
the Regulatory Authority a written response to the proposed suspension.
27—Decision to suspend after show cause process
After considering any written response from the approved provider received
within the time allowed by section 26(2)(d), the Regulatory Authority
may—
(a) if
the suspension was proposed on a ground referred to in section 25(a),
accept an undertaking from the approved provider under section 179A; or
(b) in
any case—
(i)
suspend the provider approval for a period not more than
the prescribed period; or
(ii)
decide not to suspend the provider approval.
28—Suspension without show cause notice
(1) The Regulatory
Authority may suspend the provider approval on a ground referred to in
section 25 without giving the approved provider a show cause notice under
section 26 if the Regulatory Authority is satisfied that there is an
immediate risk to the safety, health or wellbeing of a child or children being
educated and cared for by an education and care service operated by the
provider.
(2) The suspension may
not be for a period of more than 6 months.
29—Notice and taking effect of suspension
(1) The Regulatory
Authority must give the approved provider written notice of the decision to
suspend the provider approval.
(2) The notice of a
decision to suspend must set out the period of suspension and the date on
which it takes effect.
(3) The decision under
section 27 to suspend takes effect at the end of 14 days after the
date of the decision, or, if another period is specified by the Regulatory
Authority, at the end of that period.
(4) The decision under
section 28 to suspend takes effect on the giving of the notice.
30—Effect of suspension
(1) Subject to this
section, if a provider approval is suspended under section 27 or 28 of
this Law as applying in any participating jurisdiction, all service approvals
held by the provider are also suspended for the same period.
(2) A suspension under
subsection (1) applies to both education and care services and any
associated children's services.
(3) A person whose
provider approval is suspended is taken not to be an approved provider for the
period of the suspension.
(4) A service approval
is not suspended under subsection (1) during any period that a person is
approved under section 41 to manage or control the education and care
service.
(5) The Regulatory
Authority may consent under Part 3 to the transfer of a service approval
that is suspended under section 27 or 28.
(6) The suspension of
the service approval ceases on the transfer taking effect, unless the
conditions imposed by the Regulatory Authority on the consent to the transfer
specify a later date.
31—Grounds for cancellation of provider approval
The Regulatory Authority may cancel a provider approval if—
(a) the
Regulatory Authority is satisfied that the approved provider or a person with
management or control of an education and care service operated by the
approved provider is not a fit and proper person to be involved in the
provision of an education and care service; or
(b) the
Regulatory Authority is satisfied that the continued provision of education
and care services by the approved provider would constitute an unacceptable
risk to the safety, health or wellbeing of any child or class of children
being educated and cared for by an education and care service operated by the
approved provider; or
(c) the
approved provider has been found guilty of an indictable offence or an offence
that if committed in this jurisdiction would be an indictable offence; or
(d) the
approved provider has been found guilty of an offence under this Law as
applying in any participating jurisdiction; or
(e) the
approved provider has breached a condition of the provider approval; or
(f) the
approved provider has not operated any education and care service for a period
of more than 12 months (including any period of suspension); or
(g)
under section 195H(1)(b) of the A New Tax System (Family Assistance)
(Administration) Act 1999 of the Commonwealth, the approved provider's
approval as a provider has been cancelled for the reason that the approved
provider has not satisfied, or is not satisfying, the provider eligibility
rules in section 194C(b), (c) or (d) of that Act; or
Note—
It is a condition for continued approval of an approved provider that the
approved provider continues to satisfy the provider eligibility
rules—see section 195A(1)(a) of the
A New Tax System (Family Assistance) (Administration) Act 1999 of the
Commonwealth.
(h) the
approved provider has been refused approval as a provider under
section 194B(6) of the A New Tax System (Family Assistance)
(Administration) Act 1999 of the Commonwealth for the reason that the
provider does not satisfy the provider eligibility rules in
section 194C(b), (c) or (d) of that Act.
Note—
The Regulatory Authority must refuse to approve a provider if the Regulatory
Authority is not satisfied that the provider satisfies the provider
eligibility rules—see section 194B(1)(a) and (6) of the A New
Tax System (Family Assistance) (Administration) Act 1999 of the
Commonwealth.
32—Show cause notice before cancellation
(1) This section
applies if the Regulatory Authority is considering the cancellation of a
provider approval under section 31.
(2) The Regulatory
Authority must first give the approved provider a notice ( show cause notice )
stating—
(a) that
the Regulatory Authority intends to cancel the provider approval; and
(b) the
reasons for the proposed cancellation; and
(c) that
the approved provider may, within 30 days after the notice is given, give
the Regulatory Authority a written response to the proposed cancellation.
33—Decision in relation to cancellation
(1) After considering
any written response from the approved provider received within the time
allowed under section 32(2)(c), the Regulatory Authority—
(a)
may—
(i)
cancel the provider approval; or
(ii)
suspend the provider approval for a period not more than
the prescribed period; or
(iii)
decide not to cancel the provider approval; and
(b) must
give the approved provider written notice of the decision.
(2) The decision to
cancel the provider approval takes effect at the end of 14 days after the
date of the decision or, if another period is specified by the Regulatory
Authority, at the end of that period.
(3) The notice of a
decision to cancel the provider approval must set out the date on which it
takes effect.
(4) This Law applies
to a suspension of a provider approval under this section as if it were a
suspension under section 27.
34—Effect of cancellation
(1) Subject to this
section, if a provider approval is cancelled under section 33 of this Law
as applying in any participating jurisdiction, all service approvals held by
the person who was the approved provider are also cancelled.
(2) A cancellation
under subsection (1) applies to both education and care services and any
associated children's services.
(3) A service approval
is not cancelled under subsection (1) if before that cancellation a
person is approved under section 41 to manage or control the education
and care service.
(4) A service approval
is cancelled if a person referred to in subsection (3) ceases to manage
or control the service.
(5) A provider whose
provider approval is to be cancelled under section 33 may apply to the
Regulatory Authority under Part 3 for consent to transfer a service
approval held by the provider.
(6) The application
for consent to transfer must be made within 14 days after the date of the
decision to cancel the provider approval is made.
(7) If an application
for consent to transfer is made, the service approval is suspended until the
Regulatory Authority determines the application.
(8) The suspension of
the service approval ceases on the transfer taking effect, unless the
conditions of the transfer specify a later date.
(9) If the Regulatory
Authority refuses to consent to the transfer, the service approval is
cancelled on the making of the decision to refuse consent.
35—Approved provider to provide information to Regulatory Authority
(1) This section
applies if a show cause notice has been given to an approved provider under
section 26 or 32.
(2) The approved
provider, at the request of the Regulatory Authority, must, within 7 days of
the request, provide the Regulatory Authority with the contact details of the
parents of all children enrolled at each education and care service operated
by the approved provider.
(3) The Regulatory
Authority may use the information provided under subsection (2) solely to
notify the parents of children enrolled at an education and care service about
the suspension or cancellation.
36—Notice to parents of suspension or cancellation
(1) This section
applies if a provider approval has been suspended or cancelled under
section 27, 28, 33 or 34.
(2) The Regulatory
Authority may require the person who is or was the approved provider to give
written notice of the suspension or cancellation and its effect to the parents
of children enrolled at all or any of the education and care services operated
by that person.
(3) A person must
comply with a requirement made of that person under subsection (2).
Penalty:
(a)
$3 400, in the case of an individual.
(b)
$17 200, in any other case.
37—Voluntary suspension of provider approval
(1) An approved
provider may apply to the Regulatory Authority for a suspension of the
provider approval for a period of not more than 12 months.
(2) The application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
(3) The approved
provider must, at least 14 days before making an application under this
section, notify the parents of children enrolled at the education and care
services operated by the approved provider of the intention to make the
application.
(4) The Regulatory
Authority must within 30 days after the application is made decide whether or
not to grant the application.
(5) The Regulatory
Authority must give written notice of its decision (including the period of
suspension) to the approved provider.
(6) If the Regulatory
Authority decides to grant the application, the suspension takes effect on a
date agreed between the Regulatory Authority and the approved provider.
(7) A suspension under
this section remains in force for the period of time specified in the notice.
(8) The approved
provider may apply to the Regulatory Authority to revoke the suspension before
the end of the suspension period.
(9) If the Regulatory
Authority grants the application to revoke the suspension, the suspension
ceases on the date determined by agreement with the approved provider.
(10) If a provider
approval is suspended under this section, each service approval held by the
provider is also suspended for the same period unless—
(a) a
person is approved under section 41 to manage or control the education
and care service to which the approval relates; or
(b) the
service approval is transferred under Division 3 of Part 3.
38—Surrender of provider approval by approved provider
(1) An approved
provider may surrender the provider approval by written notice to the
Regulatory Authority.
(2) The notice must
specify a date on which the surrender is intended to take effect which must
be—
(a)
after the notice is given; and
(b)
after the end of the period of notice required under subsection (3).
(3) The approved
provider must notify the parents of children enrolled at the education and
care services operated by the approved provider of the intention to surrender
the provider approval, at least 14 days before the surrender is intended
to take effect.
(4) If a provider
approval is surrendered, the approval is cancelled on the date specified in
the notice.
(5) If a provider
approval is surrendered, any service approval held by the provider is also
taken to be surrendered.
Note—
If a service approval is surrendered, it is cancelled—see
section 86. A cancelled service approval cannot be transferred—see
definition of service approval and also Division 3 of Part 3.
Division 5—Approval of executor, representative or guardian as
approved provider
39—Death of approved provider
(1) This section
applies if an approved provider dies.
(2) A nominated
supervisor or a person in day to-day charge of an education and care service
of the approved provider must notify the Regulatory Authority of the approved
provider's death within 7 days after that death.
(3) The executor of
the estate of the approved provider may continue to operate any approved
education and care service of the approved provider for the relevant period
provided that at least one nominated supervisor continues to manage the
day-to-day operation of the service.
(4) The executor of
the estate of the approved provider may transfer, surrender or apply for
suspension of a service approval of the approved provider under this Law
during the relevant period as if the executor were the approved provider.
(5) The executor of
the estate of the approved provider may apply to the Regulatory Authority for
a provider approval.
(6) The application
must be made within 30 days of the death of the approved provider and
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
(7) In this section
relevant period means—
(a) the
period of 30 days after the death of the approved provider; or
(b) if
the executor of the estate of the approved provider makes an application under
subsection (5) within that period, until the application is finally
determined under this Law.
40—Incapacity of approved provider
(1) This section
applies if an approved provider has become incapacitated.
(2) The legal personal
representative or guardian of an approved provider may apply to the Regulatory
Authority for a provider approval.
(3) The application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
41—Decision on application
(1) The Regulatory
Authority must not grant a provider approval to a person who has made an
application under section 39 or 40 unless the Regulatory Authority is
satisfied that the person is a fit and proper person to be involved in the
provision of an education and care service.
(2) Sections 12, 13
and 14 apply to the assessment of a person under subsection (1).
(3) Subject to this
section, the Regulatory Authority may—
(a)
grant the provider approval; or
(b)
grant the provider approval subject to conditions; or
(c)
refuse to grant the provider approval.
(4) An approval under
this section—
(a) may
be granted for a period of not more than 6 months; and
(b) may
be extended or further extended for periods of not more than 6 months—
at the discretion of the Regulatory Authority.
(5) The provider
approval is granted only in relation to the operation of the approved
education and care services of the approved provider for whom the applicant is
the executor, legal personal representative or guardian, as the case requires.
Division 6—Exercise of powers by another Regulatory Authority
42—Exercise of powers by another Regulatory Authority
(1) This section
applies if the Regulatory Authority has granted a provider approval under this
Part.
(2) A Regulatory
Authority of another participating jurisdiction may exercise all of the powers
and perform all of the functions of the Regulatory Authority under this Part
(except Division 5) in respect of the provider approval if the approved
provider operates an approved education and care service in that participating
jurisdiction.
(3) A Regulatory
Authority (including the Regulatory Authority of this jurisdiction) may only
exercise a power to amend, suspend or cancel a provider approval after
consulting with the Regulatory Authority of each participating jurisdiction in
which the approved provider operates an approved education and care service.
(4) A failure by a
Regulatory Authority to comply with subsection (3) does not affect the
validity of the exercise of the power.
(5) A cancellation or
suspension of a provider approval in another participating jurisdiction has
effect in this jurisdiction.
Part 3—Service approval
Division 1—Application for service approval
43—Application for service approval
(1) An approved
provider may apply to the Regulatory Authority for a service approval for an
education and care service.
(2) An approved
provider may only apply for a service approval for an education and care
service if the approved provider is or will be the operator of the education
and care service and is or will be responsible for the management of the staff
members and nominated supervisors of that service.
(3) A person who has
applied for a provider approval may apply to the Regulatory Authority for a
service approval, however the Regulatory Authority must not grant the service
approval unless the provider approval is granted.
44—Form of application
(1) An application for
a service approval must—
(a) be
made to the Regulatory Authority of the participating jurisdiction in which
the service is to be located; and
(b) be
in writing; and
(c)
include the prescribed information; and
(d)
nominate one or more individuals to be nominated supervisors of the service;
and
(da)
include from each nominated individual (other than the approved provider) the
written consent to the nomination; and
(e)
include payment of the prescribed fee.
(2) An application for
service approval may include an associated children's service.
(3) An application for
a service approval for a family day care service may include a request for
approval of a place (other than a residence) as a family day care venue for
that service.
Note—
This approval is granted under section 50A only if exceptional
circumstances exist.
45—Regulatory Authority may seek further information
(1) The Regulatory
Authority may ask an applicant for a service approval to provide any further
information that is reasonably required for the purpose of assessing the
application.
(2) If the Regulatory
Authority asks the applicant for further information under this section, the
period from the making of the request until the provision of the further
information is not included in the period referred to in section 48 for
the Regulatory Authority to make a decision on the application.
46—Investigation of application for service approval
(1) For the purposes
of determining an application for a service approval, the Regulatory Authority
may—
(a)
undertake inquiries and investigations, including inquiries relating to the
previous licensing, accreditation or registration of the education and care
service under a former education and care services law, a children's services
law or an education law of any participating jurisdiction; and
(b)
inspect the education and care service premises; and
(c)
inspect the policies and procedures of the service.
(2) For the purposes
of an inspection under subsection (1)(b) or (c), the Regulatory Authority
may enter the education and care service premises at any reasonable time.
47—Determination of application
(1) Subject to
subsection (3), in determining an application under section 43, the
Regulatory Authority must have regard to—
(a) the
National Quality Framework; and
(b)
except in the case of a family day care residence, the suitability of the
education and care service premises and the site and location of those
premises for the operation of an education and care service; and
(c) the
adequacy of the policies and procedures of the service; and
(d)
whether the applicant has a provider approval; and
(e)
except in the case of a nominated supervisor who is the approved provider,
whether each nominated supervisor has consented in writing to the nomination;
and
(f) any
other matter the Regulatory Authority thinks fit; and
(g) any
other prescribed matter.
(2) In addition, the
Regulatory Authority may have regard to either of the following:
(a)
whether the applicant is capable of operating the education and care service
having regard to its financial capacity and management capability and any
other matter the Regulatory Authority considers relevant;
(b) the
applicant's history of compliance with this Law or this Law as applying in any
participating jurisdiction, including in relation to any other education and
care service it operates.
(3) Subject to
subsection (4), in assessing an associated children's service for the
purposes of determining whether to grant a service approval, the Regulatory
Authority must have regard to the criteria under the children's services law
of this jurisdiction for the grant of a children's services licence.
(4) The criteria
referred to in subsection (3) do not include criteria relating to whether
the applicant is a fit and proper person.
48—Grant or refusal of service approval
(1) On an application
under section 43, the Regulatory Authority may—
(a)
grant the service approval; or
(b)
refuse to grant the service approval.
Note—
A service approval is granted subject to conditions in accordance with
section 51.
(2) Subject to
subsection (3), the Regulatory Authority must make a decision on the
application within 90 days after the Regulatory Authority received the
application.
Note—
If further information is requested under section 45(2), the period
between the making of the request and the provision of the information is not
included in the 90 day period.
(3) The period
referred to in subsection (2) may be extended with the agreement of the
applicant.
(4) The Regulatory
Authority may grant a service approval solely for an education and care
service if—
(a) the
application includes an application for an associated children's service; and
(b) that
associated children's service does not comply with the criteria referred to in
section 47(3).
(5) The Regulatory
Authority is taken to have refused to grant a service approval if the
Regulatory Authority has not made a decision under subsection (1)—
(a)
within the relevant time required under subsection (2); or
(b)
within the period extended under subsection (3),
as the case requires.
(6) A service approval
cannot be granted solely for an associated children's service.
49—Grounds for refusal
(1) The Regulatory
Authority must refuse to grant a service approval if—
(a) the
Regulatory Authority is satisfied that the service, if permitted to operate,
would constitute an unacceptable risk to the safety, health or wellbeing of
children who would be educated or cared for by the education and care service;
or
(b) the
applicant does not have a provider approval.
(2) The Regulatory
Authority may refuse to grant a service approval on any other grounds
prescribed in the national regulations.
50—Notice of decision on application
The Regulatory Authority must give written notice to the applicant of a
decision under section 48 and the reasons for the decision within 7 days
after the decision is made.
50A—Approval of a place as a family day care venue
The Regulatory Authority may, at the time of granting the service approval for
a family day care service, approve a place (other than a residence) as a
family day care venue for that service if the Regulatory Authority considers
exceptional circumstances exist.
51—Conditions on service approval
(1) A service approval
is granted subject to the condition that the education and care service is
operated in a way that—
(a)
ensures the safety, health and wellbeing of the children being educated and
cared for by the service; and
(b)
meets the educational and developmental needs of the children being educated
and cared for by the service.
(2) A service approval
for a family day care service is granted subject to a condition that the
approved provider must ensure that each family day care educator engaged by or
registered with the service is adequately monitored and supported by a family
day care co-ordinator.
(2A) A service
approval for a family day care service is granted subject to a condition that
each family day care residence, and any approved family day care venue of the
service, are to be located within this jurisdiction.
(3) A service approval
is granted subject to a condition that the approved provider must commence
ongoing operation of the service within 6 months after the approval is granted
unless the Regulatory Authority agrees to an extension of time.
(4) A service approval
is granted subject to a condition that the approved provider must hold the
prescribed insurance in respect of the education and care service.
(4A) A service
approval for an education and care service other than a family day care
service is granted subject to a condition that the approved provider must
ensure that the number of children educated and cared for by the service at
any one time does not exceed the maximum number of children specified in the
service approval.
(4B) An approved
provider is not required to comply with subsection (4A) if—
(a) the
maximum number of children is exceeded because a child is, or 2 or more
children from the same family are, being educated and cared for by the
education and care service in an emergency; and
(b) the
approved provider is satisfied on reasonable grounds that this will not affect
the health, safety and wellbeing of any other child who is attending the
education and care service.
Example—
An emergency under this subsection would include circumstances where a child
is in need of protection under a child protection order or where the parent of
a child needs urgent health care that prevents that parent caring for the
child.
(5) A service approval
is granted subject to any other conditions prescribed in the national
regulations or imposed by—
(a) this
Law; or
(b) the
Regulatory Authority.
(6) A condition of a
service approval does not apply to an associated children's service unless the
condition is expressed to apply to that associated children's service.
(7) A condition of a
service approval may be expressed to apply solely to an associated children's
service only if the Regulatory Authority has first consulted with the
children's services regulator.
(8) An approved
provider must comply with the conditions of a service approval held by the
approved provider.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
52—Copy of service approval to be provided
If the Regulatory Authority grants a service approval under this Part, the
Regulatory Authority must provide a copy of the service approval to the
approved provider stating—
(a) the
name of the education and care service; and
(b) the
location of the education and care service or, if the education and care
service is a family day care service, the location of the principal office of
the service and any approved family day care venue for the service; and
(c) any
conditions to which the service approval is subject; and
(d) the
date the service approval was granted; and
(e) the
service approval number; and
(f) the
name of the approved provider; and
(g) for
a service other than a family day care service, the maximum number of children
who can be educated and cared for by the service at any one time; and
(h) the
details of any service waiver under Division 5 or temporary waiver under
Division 6 applying to the service; and
(i)
any other prescribed matters.
53—Annual fee
An approved provider must, in accordance with the national regulations, pay
the prescribed annual fee in respect of each service approval held by the
approved provider.
Division 2—Amendment of service approval
54—Amendment of service approval on application
(1) An approved
provider may apply to the Regulatory Authority for an amendment of a service
approval.
(1A) An application
under subsection (1) may include a request for the approval of a place
(other than a residence) as a family day care venue for a family day care
service.
(2) An application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
(3) The Regulatory
Authority may ask the approved provider to provide any further information
that is reasonably required for the purpose of assessing the application.
(4) If the Regulatory
Authority asks the applicant for further information under this section, the
period from the making of the request until the provision of the further
information is not included in the period referred to in subsection (5).
(5) The Regulatory
Authority must make a decision on the application within 60 days after the
Regulatory Authority receives the application.
(6) The Regulatory
Authority must decide the application by—
(a)
amending the service approval in the way applied for; or
(b) with
the applicant's written agreement, amending the service approval in another
way; or
(c)
refusing to amend the service approval.
(7) Without limiting
subsection (6), an amendment may vary a condition of the service approval
or impose a new condition on the service approval.
(8) Subject to
subsection (8A), an amendment cannot change a location of an education
and care service.
(8A) The Regulatory
Authority may approve a place (other than a residence) as a family day care
venue for a family day care service if the Regulatory Authority considers
exceptional circumstances exist.
(9) The Regulatory
Authority must give written notice of its decision to the approved provider.
55—Amendment of service approval by Regulatory Authority
(1) The Regulatory
Authority may amend a service approval at any time without an application from
the approved provider.
(2) Without limiting
subsection (1), an amendment may vary a condition of the service approval
or impose a new condition on the service approval.
(3) The Regulatory
Authority must give written notice of the amendment to the approved provider.
(4) An amendment under
this section has effect—
(a) 14
days after the Regulatory Authority gives notice of the amendment under
subsection (3); or
(b) if
another period is specified by the Regulatory Authority, at the end of that
period.
(5) The Regulatory
Authority must amend a service approval to the extent that it relates to an
associated children's service in accordance with any direction by the
children's services regulator if that direction is given in accordance with
the children's services law of this jurisdiction.
55A—Condition relating to family day care co-ordinators
(1) Without limiting
section 55, an amendment under that section may impose a condition on the
service approval for a family day care service requiring the approved provider
to ensure that there is a minimum of one qualified person employed or engaged
as a family day care co-ordinator for every 15 family day care
educators (or part of that number) engaged by or registered with that service.
Examples—
1 If between 1 and 15 family day care
educators are engaged by or registered with the family day care service, at
least one qualified person must be employed or engaged by the approved
provider as a family day care co-ordinator.
2 If between 16 and 30 family day care
educators are engaged by or registered with the family day care service, at
least 2 qualified persons must be employed or engaged by the approved
provider as a family day care co-ordinator.
(2) A condition may
only be imposed under subsection (1) if—
(a) the
family day care service has been operating for more than 12 months; and
(b) the
Regulatory Authority—
(i)
has taken into account the approved provider's capability
and compliance with this Law in respect of the family day care service; and
(ii)
considers that family day care educators are not
adequately monitored and supported by a family day care co-ordinator.
(3) Section 163
does not apply if a condition is imposed under subsection (1) in respect
of a family day care service.
(4) A person is a
qualified person under this section if the person has the qualifications
prescribed by the national regulations.
56—Notice of addition of nominated supervisor
(1) The approved
provider of an education and care service must give written notice to the
Regulatory Authority in accordance with this section if the approved provider
wishes to add a new nominated supervisor of the education and care service.
(2) The notice
must—
(a)
nominate one or more individuals to be nominated supervisors of the service
and, unless the individual nominated is the approved provider, include from
each nominated individual the written consent to the nomination; and
(b)
include the prescribed information; and
(c) be
given—
(i)
at least 7 days before the individual is to commence work
as a nominated supervisor; or
(ii)
if that period of notice is not possible in the
circumstances, as soon as practicable but not more than 14 days after the
individual commences work as a nominated supervisor.
Note—
Section 173(2)(b) requires an approved provider to notify the Regulatory
Authority of the removal of a nominated supervisor.
56A—Notice of change of a nominated supervisor's name or contact details
The approved provider of an education and care service must give written
notice to the Regulatory Authority of any change to the name or contact
details of any nominated supervisor of the education and care service.
57—Copy of amended service approval to be provided
If the Regulatory Authority amends a service approval under this Division, the
Authority must provide an amended copy of the service approval to the approved
provider.
Division 3—Transfer of service approval
58—Service approval may be transferred
(1) Subject to this
Division, an approved provider who holds a service approval ( transferring
approved provider ) may transfer the service approval to another approved
provider ( receiving approved provider ).
(2) If a service
approval is transferred to a receiving approved provider the transfer includes
the transfer of the service approval for any associated children's service.
(3) A person who holds
a provider approval may transfer a service approval held by the provider even
if the provider approval or service approval is suspended.
59—Regulatory Authority to be notified of transfer
(1) The transferring
approved provider and the receiving approved provider must jointly notify the
Regulatory Authority of the transfer—
(a) at
least 60 days before the transfer is intended to take effect; or
(b) if
the Regulatory Authority considers that the circumstances are exceptional, a
lesser period agreed to by the Regulatory Authority.
(2) The notice
must—
(a) be
in writing; and
(ab)
specify the date on which the transfer is intended to take effect; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
59A—Further notification required in case of delay to transfer date
(1) If, after giving a
notification under section 59, the transfer is to be delayed, the
transferring approved provider and the receiving approved provider must
jointly notify the Regulatory Authority as soon as practicable of the new date
that the transfer is intended to take effect.
(2) A notification
under subsection (1) does not affect consent to the transfer given or
taken to have been given by the Regulatory Authority before it received that
notification.
60—Consent of Regulatory Authority required for transfer
A service approval cannot be transferred without the consent of the Regulatory
Authority.
61—Consent taken to be given unless Regulatory Authority intervenes
The Regulatory Authority is taken to have consented to the transfer of a
service approval if—
(a) the
parties have given a notification under section 59; and
(b) 28
days before the transfer is intended to take effect, the Regulatory Authority
has not notified the parties that it intends to intervene under
section 62.
62—Transfer may be subject to intervention by Regulatory Authority
(1) The Regulatory
Authority may intervene in a transfer of a service approval if the Regulatory
Authority is concerned as to any of the following matters:
(a)
whether the receiving approved provider is capable of operating the education
and care service having regard to its financial capacity and management
capability and any other matter the Regulatory Authority considers relevant;
(b) the
receiving approved provider's history of compliance with this Law as applying
in a participating jurisdiction, including in relation to any other education
and care service it operates or has operated;
(c) any
other matter relevant to the transfer of the service approval.
(2) The Regulatory
Authority must notify the transferring approved provider and the receiving
approved provider of the decision to intervene.
(3) Subject to
subsection (5), the notice must be given at least 28 days before the date
on which the transfer is intended to take effect.
(4) A notification
under subsection (2) must—
(a) be
in writing; and
(b)
include the prescribed information.
(5) The period within
which notice must be given under subsection (3) does not apply where the
Regulatory Authority has not been notified of the intended transfer of a
service approval in accordance with section 59.
63—Effect of intervention
If the Regulatory Authority intervenes under section 62, the transfer
must not proceed unless and until the Regulatory Authority gives written
consent to the transfer.
64—Regulatory Authority may request further information
If the Regulatory Authority has intervened under section 62, the
Regulatory Authority may—
(a)
request further information from the transferring approved provider or
receiving approved provider for the purposes of deciding whether to consent to
the transfer; and
(b)
undertake inquiries in relation to the receiving approved provider for that
purpose.
65—Decision after intervention
(1) If the Regulatory
Authority has intervened under section 62, it may decide—
(a) to
consent to the proposed transfer; or
(b) to
refuse to consent to the proposed transfer.
(2) If the Regulatory
Authority consents to the proposed transfer the Regulatory Authority may
impose conditions on the consent, including specifying the date on which the
proposed transfer is to take effect.
(3) The service
approval must be transferred in accordance with the conditions imposed on the
consent.
66—Regulatory Authority to notify outcome 10 days before transfer
(1) If the Regulatory
Authority has intervened in the transfer of a service approval, the Authority
must, at least 10 days before the date on which the transfer is intended
to take effect, give a notice to each party specifying that the
Authority—
(a)
consents to the transfer; or
(b)
refuses to consent to the transfer; or
(c) has
suspended further consideration of the transfer until further information is
received and that the transfer may not proceed until a further notice is given
under this section consenting to the transfer; or
(d) has
not yet made a decision on the transfer and that the Regulatory Authority will
make a decision on the transfer within 28 days and that the transfer may
not proceed until a further notice is given under this section consenting to
the transfer.
(2) If the Regulatory
Authority consents to the transfer, the notice—
(a) must
specify—
(i)
the date on which the transfer is to take effect; and
(ii)
any conditions on the consent to the transfer; and
(b) may
include notice of any condition that the Regulatory Authority has imposed on
the provider approval or a service approval of the receiving approved provider
because of the transfer.
(3) If the Regulatory
Authority refuses to consent to the transfer, the notice must include the
reasons for the refusal.
67—Transfer of service approval without consent is void
A transfer of a service approval is void if—
(a) it
is made without the consent of the Regulatory Authority; or
(b) it
is made in contravention of the conditions imposed by the Regulatory Authority
on the consent to the transfer; or
(c) it
is made to a person who is not the approved provider who gave the notification
under section 59 as the receiving approved provider.
67A—Request for earlier transfer date after consent given to transfer
(1) This section
applies if the Regulatory Authority has consented to or is taken to have
consented to the transfer of a service approval.
(2) The transferring
approved provider and the receiving approved provider may request the transfer
take effect on an earlier date than specified in the notification under
section 59 or 59A.
(3) The Regulatory
Authority may agree to the requested earlier date if the Regulatory Authority
considers that exceptional circumstances exist.
68—Confirmation of transfer
(1) The transferring
approved provider and the receiving approved provider must give written notice
to the Regulatory Authority within 2 days after the transfer takes effect
specifying the date of the transfer.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(2) On receipt of a
notice under this section, the Regulatory Authority must amend the service
approval and provide an amended copy of the service approval to the receiving
approved provider.
(3) The amendment to
the service approval is taken to take effect on the date of the transfer.
(4) An approved
provider who gives notice under this section is not guilty of an offence for a
failure of any other person to give that notice.
69—Notice to parents
(1) The receiving
approved provider must give written notice to the parents of children enrolled
at an education and care service of the transfer of the service approval for
that service to that provider.
Penalty:
(a)
$3 400, in the case of an individual.
(b)
$17 200, in any other case.
(2) The notice must be
given at least 7 days before the date on which the transfer of the
service approval takes effect.
Division 4—Suspension or cancellation of service approval
70—Grounds for suspension of service approval
A Regulatory Authority may suspend a service approval if—
(a) the
Regulatory Authority reasonably believes that it would not be in the best
interests of children being educated and cared for by the service for the
service to continue; or
(b) a
condition of the service approval has not been complied with; or
(c) the
service is not being managed in accordance with this Law; or
(d) the
service has operated at a rating level as not meeting the National Quality
Standard and—
(i)
a service waiver or temporary waiver does not apply to
the service in respect of that non-compliance; and
(ii)
there has been no improvement in the rating level; or
(e) the
approved provider has contravened this Law as applying in any participating
jurisdiction; or
(f) the
approved provider has failed to comply with a direction, compliance notice or
emergency order under this Law as applying in any participating jurisdiction
in relation to the service; or
(g) the
approved provider has—
(i)
ceased to operate the education and care service at the
education and care service premises for which the service approval was
granted; and
(ii)
within 6 months of ceasing to operate the service, has
not transferred the service to another approved provider; or
(h) the
approved provider has not, within 6 months after being granted a service
approval, commenced ongoing operation of the service; or
(i)
the approved provider has not paid the prescribed annual
fee for the service approval.
71—Show cause notice before suspension
(1) This section
applies if the Regulatory Authority is considering the suspension of a service
approval under section 70.
(2) The Regulatory
Authority must first give the approved provider a notice ( show cause notice )
stating—
(a) that
the Regulatory Authority intends to suspend the service approval; and
(b) the
proposed period of suspension; and
(c) the
reasons for the proposed suspension; and
(d) that
the approved provider may, within 30 days after the notice is given, give
the Regulatory Authority a written response to the proposed suspension.
72—Decision in relation to suspension
After considering any written response from the approved provider received
within the time allowed by section 71(2)(d), the Regulatory Authority
may—
(a) if
the suspension was proposed on the ground referred to in section 70(a),
(c) or (d), accept an undertaking from the approved provider under
section 179A; or
(b) in
any case—
(i)
suspend the service approval for a period not more than
the prescribed period; or
(ii)
decide not to suspend the service approval.
73—Suspension of service approval without show cause
The Regulatory Authority may suspend the service approval without giving the
approved provider a show cause notice under section 71 if the Regulatory
Authority is satisfied that there is an immediate risk to the safety, health
or wellbeing of a child or children being educated and cared for by the
education and care service.
74—Notice and effect of decision
(1) The Regulatory
Authority must give the approved provider written notice of the decision to
suspend.
(2) Subject to
section 76, the decision under section 72 to suspend takes effect at
the end of 14 days after the date of the decision, or, if another period
is specified by the Regulatory Authority, at the end of that period.
(3) Subject to
section 76, the decision under section 73 to suspend takes effect on
the giving of the notice.
(4) The notice of a
decision to suspend must set out—
(a) the
period of suspension; and
(b) the
date on which it takes effect.
(5) A suspension of a
service approval also suspends the service approval to the extent that it
relates to an associated children's service.
75—Suspension of service approval to the extent that it relates to
associated children's service
(1) If the Regulatory
Authority considers that a service approval should be suspended to the extent
only that it applies to an associated children's service, the Regulatory
Authority must refer the matter to the children's services regulator of this
jurisdiction for determination under the children's services law.
(2) The children's
services regulator must notify the Regulatory Authority if it proposes to
conduct any investigation or inquiry into an associated children's service
under the children's services law.
(3) If a final
determination is made under the children's services law of this jurisdiction
that a service approval should be suspended to the extent that it relates to
an associated children's service—
(a) the
children's services regulator must advise the Regulatory Authority of that
determination; and
(b) the
service approval is suspended to the extent that it relates to the associated
children's service in accordance with that determination.
76—Transfer of suspended service
(1) The Regulatory
Authority may consent under this Part to the transfer of a service approval
that is suspended under section 72 or 73.
(2) The suspension of
the service approval ceases on the transfer taking effect, unless the
conditions of the Regulatory Authority's consent to the transfer otherwise
provide.
77—Grounds for cancellation of service approval
A Regulatory Authority may cancel a service approval if—
(a) the
Regulatory Authority reasonably believes that the continued operation of the
education and care service would constitute an unacceptable risk to the
safety, health or wellbeing of any child or class of children being educated
and cared for by the education and care service; or
(b) the
service has been suspended under section 72 or 73 and the reason for the
suspension has not been rectified at or before the end of the period of
suspension; or
(c) the
service approval was obtained improperly; or
(d) a
condition of the service approval has not been complied with.
78—Show cause notice before cancellation
(1) This section
applies if the Regulatory Authority is considering the cancellation of a
service approval under section 77.
(2) The Regulatory
Authority must first give the approved provider a notice (show cause notice)
stating—
(a) that
the Regulatory Authority intends to cancel the service approval; and
(b) the
reasons for the proposed cancellation; and
(c) that
the approved provider may, within 30 days after the notice is given, give
the Regulatory Authority a written response to the proposed cancellation.
79—Decision in relation to cancellation
(1) After considering
any written response from the approved provider received within the time
allowed by section 78(2)(c), the Regulatory Authority—
(a)
may—
(i)
cancel the service approval; or
(ii)
suspend the service approval for a period not more than
the prescribed period; or
(iii)
decide not to cancel the service approval; and
(b) must
give the approved provider written notice of the decision.
(2) Subject to
section 81, the decision to cancel the service approval takes
effect—
(a) at
the end of 14 days after the date of the decision; or
(b) if
another period is specified by the Regulatory Authority, at the end of that
period.
(3) The notice of a
decision to cancel must set out the date on which it takes effect.
(4) A cancellation of
a service approval includes the cancellation of the service approval to the
extent that it relates to an associated children's service.
(5) This Law applies
to a suspension of a service approval under this section as if it were a
suspension under section 72.
80—Cancellation of service approval to the extent that it relates to
associated children's service
(1) If the Regulatory
Authority considers that a service approval should be cancelled to the extent
only that it applies to an associated children's service, the Regulatory
Authority must refer the matter to the children's services regulator of this
jurisdiction for determination under the children's services law.
(2) The children's
services regulator must notify the Regulatory Authority if it proposes to
conduct any investigation or inquiry into an associated children's service
under the children's services law.
(3) If a final
determination is made under the children's services law of this jurisdiction
that a service approval should be cancelled to the extent that it relates to
an associated children's service—
(a) the
children's services regulator must advise the Regulatory Authority of that
determination; and
(b) the
service approval is cancelled to the extent that it relates to the associated
children's service in accordance with that determination.
81—Application for transfer of cancelled service
(1) An approved
provider may apply to the Regulatory Authority under this Part for consent to
transfer a service approval that is to be cancelled under this Part.
(2) The application
for consent to transfer must be made within 14 days after the decision to
cancel the service approval is made.
(3) If an application
for consent to transfer is made, the cancellation of the service approval does
not take effect, and the service approval is suspended, until the Regulatory
Authority determines the application.
(4) An application
cannot be made under this section for consent to transfer a cancelled service
approval if the cancellation relates only to an associated children's service.
82—Decision on application to transfer cancelled service
(1) If the Regulatory
Authority consents to the transfer—
(a) the
decision to cancel the service approval is revoked; and
(b) the
suspension of the service approval ceases on the transfer taking effect,
unless the conditions imposed by the Regulatory Authority on the consent to
the transfer specify a later date for the suspension to cease.
(2) If the Regulatory
Authority refuses to consent to the transfer, the service approval is
cancelled on the making of the decision to refuse to consent.
83—Approved provider to provide information to Regulatory Authority
(1) This section
applies if a show cause notice has been given to an approved provider under
section 71 or 78.
(2) The approved
provider, at the request of the Regulatory Authority, must provide the
Authority with the contact details of the parents of all children enrolled at
the education and care service.
(3) The Regulatory
Authority may use the information provided under subsection (2) solely to
notify the parents of children enrolled at an approved education and care
service of a suspension or cancellation of the service approval for the
service.
84—Notice to parents of suspension or cancellation
(1) This section
applies if a service approval has been suspended or cancelled under
section 72, 73, 79 or 82.
(2) The Regulatory
Authority may require the approved provider to give written notice of the
suspension or cancellation and its effect to the parents of children enrolled
at the education and care service to which the approval relates and any
associated children's service.
(3) The approved
provider must comply with a requirement made under subsection (2).
Penalty:
(a)
$3 400, in the case of an individual.
(b)
$17 200, in any other case.
85—Voluntary suspension of service approval
(1) An approved
provider may apply to the Regulatory Authority for the suspension of a service
approval for a period of not more than 12 months.
(2) The application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
(3) The Regulatory
Authority may agree to the suspension, having regard to whether the suspension
is reasonable in the circumstances.
(4) The approved
provider must, at least 14 days before making an application under this
section, notify the parents of children enrolled at the education and care
service and any associated children's service of the intention to make the
application.
(5) The Regulatory
Authority must, within 30 days after the application is made, decide whether
or not to grant the application.
(6) If the Regulatory
Authority decides to grant the application, the suspension takes effect on a
date agreed between the Regulatory Authority and the approved provider.
86—Surrender of service approval
(1) An approved
provider may surrender a service approval by written notice to the Regulatory
Authority.
(2) The notice must
specify a date on which the surrender is intended to take effect which must
be—
(a)
after the notice is given; and
(b)
after the end of the period of notice required under subsection (3).
(3) The approved
provider must notify the parents of children enrolled at the education and
care service to which the approval relates and any associated children's
service of the intention to surrender the service approval, at least
14 days before the surrender is intended to take effect.
(4) If a service
approval is surrendered, the approval is cancelled on the date specified in
the notice.
Division 5—Application for service waiver
87—Application for service waiver for service
(1) An approved
provider may apply to the Regulatory Authority for a waiver of a requirement
that an approved education and care service comply with one or more of the
national regulations prescribed for the purposes of this section.
(1a) Regulations for
the purposes of subsection (1) must not prescribe the National Quality
Standard or any element of the National Quality Standard.
(2) A person who
applies for a service approval may apply for a service waiver under this
section together with the application for the service approval.
(3) The Regulatory
Authority must not grant a service waiver to a person who applies under
subsection (2) unless the service approval is granted to that person.
88—Form of application
An application under section 87 must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
89—Powers of Regulatory Authority in considering application
(1) For the purpose of
determining an application under this Division, the Regulatory Authority
may—
(a) ask
the applicant to provide further information; and
(b)
inspect the education and care service premises and the office of the
applicant.
(2) If the Regulatory
Authority asks the applicant for further information under this section, the
period from the making of that request until the provision of further
information is not included in the period referred to in section 91(2)
for the Regulatory Authority to make a decision on the application.
90—Matters to be considered
In considering whether the grant of a service waiver is appropriate, the
Regulatory Authority may have regard to—
(a) any
matters disclosed in the application; and
(b) any
other matter the Regulatory Authority thinks fit.
91—Decision on application
(1) On an application
under this Division, the Regulatory Authority may decide to grant the service
waiver or refuse the application.
(2) Subject to
subsection (3), the Regulatory Authority must notify the applicant within
60 days after the application is made of the Authority's decision on the
application.
(3) If an application
for a service waiver has been made together with an application for service
approval, the Regulatory Authority may notify the applicant of the Authority's
decision on the application at the same time as the notice of the decision on
the application for the service approval.
(4) If a service
waiver is granted, the Regulatory Authority may place any conditions on the
service waiver, including any condition limiting the use of the service
waiver.
(5) The Regulatory
Authority may, at any time remove, add to or vary any conditions placed on a
service waiver under subsection (4).
(6) If a service
waiver is granted or its conditions are amended under subsection (5), the
Regulatory Authority must issue or reissue the service approval
specifying—
(a) the
national regulations that have been waived; and
(b) any
conditions placed on the waiver.
92—Revocation of service waiver
(1) The Regulatory
Authority may, at its discretion, revoke a service waiver.
(2) An approved
provider may apply to the Regulatory Authority for the revocation of a service
waiver applying to any education and care service that it operates.
(3) A revocation under
this section takes effect at the end of the period prescribed in the national
regulations.
93—Effect of service waiver
While a service waiver is in force, the approved education and care service is
taken to comply with the national regulations specified in the service waiver.
Division 6—Temporary waiver
94—Application for temporary waiver
(1) An approved
provider may apply to the Regulatory Authority for a temporary waiver of a
requirement that an approved education and care service comply with one or
more of the national regulations prescribed for the purposes of this section.
(2) Regulations for
the purposes of subsection (1) must not prescribe the National Quality
Standard or any element of the National Quality Standard.
95—Form of application
An application under section 94 must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
96—Regulatory Authority may seek further information
(1) For the purpose of
determining an application under this Division, the Regulatory Authority
may—
(a) ask
the applicant to provide further information; and
(b)
inspect the education and care service premises and the office of the
applicant.
(2) If the Regulatory
Authority asks the applicant for further information under this section, the
period from the making of that request until the provision of further
information is not included in the period referred to in section 98(1)
for the Regulatory Authority to make a decision on the application.
97—Special circumstances
In considering whether the grant of a temporary waiver is appropriate, the
Regulatory Authority must have regard to whether special circumstances
disclosed in the application reasonably justify the grant of the temporary
waiver.
98—Decision on application
(1) The Regulatory
Authority must notify the applicant within 60 days after the application is
made of the Authority's decision on the application.
(2) A temporary waiver
must specify the period of the waiver which cannot be for a period of more
than 12 months.
(3) The Regulatory
Authority, on the application of the approved provider, may—
(a)
extend and further extend the period of a temporary waiver by periods of not
more than 12 months; and
(b)
grant a further temporary waiver for an education and care service under this
Division.
(4) An application
under subsection (3) must include payment of the prescribed fee.
(5) If a temporary
waiver is granted, the Regulatory Authority may place any conditions on the
temporary waiver, including any condition limiting the use of the temporary
waiver.
(6) The Regulatory
Authority may, at any time remove, add to or vary any conditions placed on a
temporary waiver under subsection (5).
(7) If a temporary
waiver is granted or its conditions are amended under subsection (6), the
Regulatory Authority must issue or reissue the service approval
specifying—
(a) the
national regulations that have been temporarily waived; and
(b) the
period of the waiver; and
(c) any
conditions placed on the waiver.
99—Revocation of temporary waiver
The Regulatory Authority may, at its discretion, revoke a temporary waiver.
100—Effect of temporary waiver
While a temporary waiver is in force, the approved education and care service
is not required to comply with the national regulations that have been
temporarily waived.
Division 7—Exercise of powers by another Regulatory Authority
101—Exercise of powers by another Regulatory Authority—family day
care services
(1) This section
applies if the Regulatory Authority has granted a service approval under this
Part to an approved provider for a family day care service.
(2) A Regulatory
Authority of another participating jurisdiction may exercise all the powers
and perform all the functions of a Regulatory Authority under this Part
(except Division 3 or section 76, 81 or 82) in respect of the
service approval if the family day care service operates in that participating
jurisdiction.
(3) A Regulatory
Authority (including the Regulatory Authority of this jurisdiction) may only
exercise a power to amend, suspend or cancel a service approval after
consulting with the Regulatory Authority of each participating jurisdiction in
which the family day care service operates.
(4) A failure by a
Regulatory Authority to comply with subsection (3) does not affect the
validity of the exercise of the power.
(5) A cancellation or
suspension of a service approval for a family day care service in another
participating jurisdiction has effect in this jurisdiction.
Division 8—Associated children's services
102—Application of this Law to associated children's services
This Law does not apply to an associated children's service except as
expressly provided in this Law.
Division 9—Offences
103—Offence to provide an education and care service without service
approval
(1) A person must not
provide an education and care service unless—
(a) the
person is an approved provider in respect of that service; and
(b) the
education and care service is an approved education and care service.
Penalty:
(a)
$22 900, in the case of an individual.
(b)
$114 900, in any other case.
(2) Subsection (1)
does not apply to a family day care educator providing education and care to
children as part of an approved family day care service.
103A—Offence relating to places where education and care is provided as
part of a family day care service
An approved provider of a family day care service must ensure that education
and care is not provided to children, as part of the service, from a place
that is not a family day care residence or an approved family day care venue
unless otherwise permitted by this Law.
Penalty:
(a)
$22 900, in the case of an individual.
(b)
$114 900, in any other case.
104—Offence to advertise education and care service without service
approval
(1) A person must not
knowingly publish or cause to be published an advertisement for an education
and care service unless it is an approved education and care service.
Penalty:
(a)
$6 800, in the case of an individual.
(b)
$34 400, in any other case.
(2) Subsection (1)
does not apply if an application for a service approval in respect of the
education and care service has been made under this Law but has not been
decided.
Part 5—Assessments and ratings
Division 1—Assessment and rating
133—Assessment for rating purposes
(1) The Regulatory
Authority that granted the service approval for an education and care service
may at any time assess the service in accordance with the national regulations
to determine whether and at what rating level the service meets the National
Quality Standard and the requirements of the national regulations.
(2) Until an approved
education and care service is first assessed under this Part, it is taken to
have the prescribed provisional rating.
134—Rating levels
(1) The rating levels
for the purposes of this Law are the levels prescribed by the national
regulations.
(2) The highest rating
level prescribed by the national regulations can only be given by the National
Authority under this Part.
135—Rating of approved education and care service
(1) After carrying out
a rating assessment of an approved education and care service, the Regulatory
Authority must determine the rating level (other than the highest rating
level)—
(a) for
each quality area stated in the National Quality Standard; and
(b) for
the overall rating of the service.
(2) In determining a
rating level, the Regulatory Authority may have regard to—
(a) any
information obtained in the rating assessment; and
(b) any
information obtained in any monitoring or investigation of the service under
this Law; and
(c) the
service's history of compliance with this Law as applying in any participating
jurisdiction; and
(d) any
other prescribed information.
136—Notice to approved education and care service of rating
(1) The Regulatory
Authority must give written notice to the approved provider of an approved
education and care service of the outcome of the rating assessment and the
rating levels for that service determined under section 135.
(2) The notice under
subsection (1) must be given within 60 days—
(a)
after the completion of the assessment by an authorised officer under
Part 9 of the premises of the approved education and care service for the
purpose of the rating assessment; or
(b) if
section 137 applies, after the end of the final period for review of the
applicable decision or action referred to in section 137(1).
(3) A rating level set
out in the notice is to be a rating level for the education and care service
for the purposes of this Law unless a review of the rating level is sought
under Division 3 or 4.
137—Suspension of rating assessment
(1) This section
applies in respect of a rating assessment of an approved education and care
service if the assessment has not been completed and—
(a) the
provider approval or the service approval for the service is suspended or
cancelled; or
(b) a
compliance notice has been given to the approved provider in respect of the
service; or
(c) a
notice has been given under section 179 in respect of the service; or
(d) an
action has been taken under section 189 in respect of a child or children
being educated and cared for by the service.
(2) The Regulatory
Authority must give the approved provider a written notice stating that notice
of the outcome of the rating assessment will be given under section 136
within 60 days after—
(a) the
end of the final period for review of the decision or action referred to in
subsection (1); or
(b) if
that review is sought, the determination of the review.
Division 2—Reassessment and re-rating
138—Regulatory Authority may reassess and re-rate approved education and
care service
The Regulatory Authority may at any time reassess an approved education and
care service or any aspect or element of an approved education and care
service in accordance with the national regulations to determine whether and
at what rating level it meets the National Quality Standard and the
requirements of the national regulations for the purpose of rating that
service.
139—Application for reassessment and re-rating by approved provider
(1) An approved
provider may apply to the Regulatory Authority for a reassessment and re
rating of an approved education and care service or any aspect or element of
an approved education and care service which is rateable against the National
Quality Standard or the national regulations.
(2) An application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
(3) An application
under this section can only be made once in every 2 year period, unless
the Regulatory Authority agrees otherwise.
140—Application of Division 1
Division 1 applies (with any necessary changes) to a reassessment and
re-rating of an approved education and care service or any aspect or element
of an approved education and care service under this Division.
Division 3—Review by Regulatory Authority
141—Review by Regulatory Authority
(1) This section
applies to an approved provider that is given a notice under section 136.
(2) The approved
provider may ask the Regulatory Authority that determined the rating levels to
review the rating levels.
(3) A request must be
made within 14 days after the approved provider receives the notice.
(4) A request
must—
(a) be
in writing; and
(b) set
out the grounds on which review is sought; and
(c) be
accompanied by the prescribed information; and
(d)
include payment of the prescribed fee.
142—Process for review
(1) The person who
conducts a review of rating levels for an approved education and care service
for the Regulatory Authority must not be a person who was involved in the
assessment or rating of the service.
(2) The person
conducting the review may ask the approved provider and any person who was
involved in the assessment or rating of the service for further information.
(3) A review under
this section must be conducted within 30 days after the application for review
is received.
(4) The Regulatory
Authority may extend the 30 day review period under subsection (3) in one
of the following circumstances—
(a) for
an additional period of up to 30 days, if a request for further information is
made under subsection (2);
(b) for
an additional period of up to 30 days, by agreement between the approved
provider and the Regulatory Authority;
(c) for
an additional period of up to 60 days, where the Regulatory Authority
considers there are special circumstances that warrant an extension of time to
conduct the review.
143—Outcome of review by Regulatory Authority
(1) Following a review
under section 142, the Regulatory Authority may:
(a)
confirm the specific rating levels or the overall rating or both; or
(b)
amend the specific rating levels or the overall rating or both.
(2) The Regulatory
Authority must give the approved provider written notice of the decision on
the review within 30 days after the decision is made.
(3) The notice must
set out—
(a) the
rating levels and overall rating for the approved education and care service;
and
(b) the
reasons for the decision.
(4) Unless an
application is made under Division 4 for a review of the rating levels,
the rating levels set out in the notice are the rating levels for the approved
education and care service for the purposes of this Law.
Division 4—Review by Ratings Review Panel
Subdivision 1—Application for review
144—Application for further review by Ratings Review Panel
(1) This section
applies if the Regulatory Authority has conducted a review of any rating
levels of an approved education and care service under Division 3.
(2) The approved
provider may apply to the National Authority for a further review by a Ratings
Review Panel of the rating levels confirmed or amended by the Regulatory
Authority under Division 3.
(3) An application may
only be made on the ground that the Regulatory Authority—
(a) did
not appropriately apply the prescribed processes for determining a rating
level; or
(b)
failed to take into account or give sufficient weight to special circumstances
existing or facts existing at the time of the rating assessment.
145—Form and time of application
(1) An application
must be made under section 144 within 14 days after the decision of
the Regulatory Authority is received under Division 3.
(2) An application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
(3) An application
must not include information or evidence that was not given to the Regulatory
Authority for the purpose of a determination under Division 1, 2 or 3.
(4) The National
Authority must—
(a)
within 7 days after receipt of the application, give written notice to the
Regulatory Authority of an application under this Division to review a
determination of the Regulatory Authority; and
(b)
invite the Regulatory Authority to make submissions to the review.
Subdivision 2—Establishment of Ratings Review Panel
146—Establishment of Ratings Review Panel
(1) The Board must
establish a Ratings Review Panel for the purposes of conducting a review under
this Division.
(2) The Panel is to
consist of up to 3 members appointed by the Board.
(3) One of the members
is to be appointed as chairperson.
(4) The members are to
be appointed from the Review Panel pool established under section 147.
147—Review Panel pool
(1) The Board must
establish a pool of persons to act as members of a Ratings Review Panel.
(2) The pool may
consist of persons nominated by the Regulatory Authorities of each
participating jurisdiction and the Commonwealth Minister.
(3) Subject to
subsection (4), the persons approved as members of the pool must have
expertise or expert knowledge in one or more of the following areas:
(a)
early learning and development research or practice;
(b) law;
(c) a
prescribed area.
(4) A member of staff
of the National Authority may be approved as a member of the pool.
148—Procedure of Panel
(1) Subject to this
Law, the procedure of a Ratings Review Panel is in its discretion.
(2) The chairperson of
a Panel must convene meetings of the Panel.
(3) A Panel must keep
minutes of its deliberations setting out—
(a) the
dates and duration of its deliberations; and
(b) its
decisions on the review.
(4) The Panel must
seek to make decisions by consensus.
(5) In the absence of
a consensus, a decision of the Panel is a decision of the majority of the
members of the Panel.
(6) If a majority
decision is not reached, the Panel is taken to have confirmed the rating
levels determined by the Regulatory Authority.
149—Transaction of business by alternative means
(1) A Ratings Review
Panel may, if it thinks fit, transact any of its business by the circulation
of papers among all the members of the Panel for the time being, and a
resolution in writing approved in writing by a majority of those members is
taken to be a decision of the Panel.
(2) The Panel may, if
it thinks fit, transact any of its business at a meeting at which members (or
some members) participate by telephone, closed-circuit television or other
means, but only if any member who speaks on a matter before the meeting can be
heard by the other members.
(3) Papers may be
circulated among the members for the purposes of subsection (1) by
facsimile, email or other transmission of the information in the papers
concerned.
Subdivision 3—Conduct of review
150—Conduct of review
(1) In conducting a
review, the Ratings Review Panel may consider—
(a) any
documents or other information or plans, photographs or video or other
evidence available to the Regulatory Authority in carrying out the rating
assessment; and
(b) the
approved provider's history of compliance with this Law as applying in any
participating jurisdiction; and
(c) the
approved education and care service's history of compliance with this Law as
applying in any participating jurisdiction; and
(d) the
application for review to the Regulatory Authority; and
(e) any
submissions made by the approved provider to the review by the Regulatory
Authority; and
(f) the
written findings on the review by the Regulatory Authority; and
(g) the
application for review to the Ratings Review Panel; and
(h) any
written submissions or responses made to the Ratings Review Panel by the
approved provider; and
(i)
any written submissions or responses made to the Ratings
Review Panel by the Regulatory Authority relating to the stated grounds for
review; and
(j) any
advice received from the National Authority, at the request of the Ratings
Review Panel, about how the prescribed processes for rating assessments are
intended to be applied that is relevant to the review.
(2) The Ratings Review
Panel is not required to hold an oral hearing for a review.
(3) The Ratings Review
Panel may ask the Regulatory Authority to provide in writing any information
in relation to the assessment.
(4) The Ratings Review
Panel may ask the approved provider for further written information in
relation to its application.
(5) The Ratings Review
Panel must ensure that the approved provider is provided with a copy of, and
an opportunity to respond in writing to, any documents, information or
evidence provided to the Panel by the Regulatory Authority.
151—Decision on review by Ratings Review Panel
(1) Following a
review, the Ratings Review Panel may:
(a)
confirm the rating levels determined by the Regulatory Authority; or
(b)
amend the rating levels.
(2) The Ratings Review
Panel must make a decision on the review within 60 days after the application
for review was made.
(3) The chairperson of
the Panel may extend the period for the making of a decision by a Ratings
Review Panel if the chairperson considers there are special circumstances that
warrant that extension.
(4) The period for the
making of a decision by a Ratings Review Panel may be extended by agreement
between the chairperson of the Panel and the approved provider.
(5) The Ratings Review
Panel must give the approved provider, the Regulatory Authority and the
National Authority written notice of the decision on the review within
14 days after the decision is made setting out its findings on each
review ground.
(6) A rating level
confirmed or amended on a review under this Division by the Ratings Review
Panel is the rating level for the approved education and care service for the
purposes of this Law.
Division 5—Awarding of highest rating
152—Application for highest rating
(1) An approved
provider may apply to the National Authority for an approved education and
care service operated by that provider to be assessed for the highest rating
level for the education and care service if the criteria determined by the
National Authority are met.
(2) The highest rating
level is an overall rating of the education and care service.
(3) An application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
(4) An application may
be made only once every 3 years, unless the National Authority determines
otherwise in a particular case.
(5) An application may
be made for the highest rating level only if the approved education and care
service holds the rating levels prescribed for the purposes of this section.
153—Assessment of education and care service
(1) The National
Authority may determine and publish criteria that must be met by approved
education and care services in respect of the award of the highest rating
level.
(2) The Board must
assess the approved education and care service in accordance with the criteria
published under subsection (1) to determine whether the service meets the
highest rating level in meeting the National Quality Standard and the
requirements of the national regulations.
(3) The Board must ask
for, and take into account, the advice of the Regulatory Authority in carrying
out the assessment.
(4) The advice of the
Regulatory Authority may include—
(a)
previous rating assessments and ratings for the education and care service;
and
(b)
information about the service's compliance history; and
(c) any
other relevant information.
154—Board may seek information and documents
(1) The Board for the
purposes of the rating assessment may—
(a) ask
the approved provider of the approved education and care service for any
information and documents; and
(b) make
any inquiries it considers appropriate.
(2) If the Board asks
the approved provider for further information and documents under
subsection (1), the period from the making of the request until the
provision of the further information and documents is not included in the
period referred to in section 155(2) for the Board to make a decision on
the application.
155—Decision on application
(1) After assessing
the approved education and care service, the Board must—
(a) if
it is satisfied that it is appropriate to do so, give the approved education
and care service the highest rating level; or
(b)
otherwise refuse to give that rating.
(2) The Board must
make its decision within 60 days after the application is received.
(3) The period
specified in subsection (2) may be extended by up to 30 days—
(a) if a
request for information and documents is made under section 154; or
(b) by
agreement between the approved provider and the Board.
(4) If the Board gives
the highest rating level to an approved education and care service, that
rating becomes the rating level for that service.
(5) The highest rating
level awarded to an approved education and care service applies to that
service for 5 years, unless sooner revoked.
156—Notice of decision
(1) The Board must
give written notice of its decision under section 155 in relation to an
approved education and care service to—
(a) the
approved provider; and
(b) the
Regulatory Authority.
(2) The notice must be
given within 14 days of making the decision.
157—Reassessment of highest rating level
The Board may at any time reassess an approved education and care service in
accordance with section 153.
158—Revocation of highest rating level
The Board must revoke the highest rating level of an approved education and
care service if—
(a) it
determines that the service no longer meets the criteria for the highest
rating level; or
(b) the
Regulatory Authority advises the Board that the service no longer meets the
requirements for the rating levels prescribed for the purposes of
section 152(5).
159—Re-application for highest rating level
(1) An approved
provider of an approved education and care service that has been awarded the
highest rating level may reapply for the award of the highest rating level for
the service.
(2) The application
must be made within 90 days before the expiry of the existing highest rating
level for the approved education and care service.
(3) The application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c)
include payment of the prescribed fee.
Division 6—Publication of rating levels
160—Publication of ratings
(1) The National
Authority must publish the rating levels for an approved education and care
service in accordance with this section.
(2) The National
Authority must publish any rating levels determined under Division 1 or 2
at the end of the period for requesting a review of the rating levels under
Division 3 if no request for review is received in that period.
(3) If a review by the
Regulatory Authority is requested under Division 3, the rating levels
must be published at the end of the period for requesting a further review of
the rating under Division 4 if no request for further review is received
in that period.
(4) If a further
review is requested under Division 4, the rating levels must be published
after the notification to the approved provider of the decision on the review.
(5) The National
Authority must publish notice of the giving of the highest rating level to an
approved education and care service under Division 5, as soon as possible
after the Regulatory Authority and the approved provider are notified of the
decision of the Board under that Division.
Part 6—Operating an education and care service
161—Offence to operate education and care service without nominated
supervisor
The approved provider of an education and care service must not operate the
service unless there is at least one nominated supervisor for that service.
Penalty:
(a)
$5 700, in the case of an individual.
(b)
$28 700, in any other case.
161A—Offence for nominated supervisor not to meet prescribed minimum
requirements
The approved provider of an education and care service must not nominate an
individual to be a nominated supervisor of that service unless that individual
meets the prescribed minimum requirements for nomination as a nominated
supervisor.
Penalty:
(a)
$5 700, in the case of an individual.
(b)
$28 700, in any other case.
162—Offence to operate education and care service unless responsible
person is present
(1) The approved
provider of an education and care service must ensure that one of the
following persons is present at all times that the service is educating and
caring for children:
(a) the
approved provider, if the approved provider is an individual or, in any other
case, a person with management or control of an education and care service
operated by the approved provider;
(b) a
nominated supervisor of the service;
(c) a
person in day-to-day charge of the service.
Penalty:
(a)
$5 700, in the case of an individual.
(b)
$28 700, in any other case.
(2) This section does
not apply to an approved family day care service.
162A—Child protection training
The approved provider of an education and care service must ensure that each
of the following persons have completed the child protection training (if any)
required by or under the law of this jurisdiction, by government protocol
applying to the approved provider in this jurisdiction or as otherwise
required in this jurisdiction:
(a) each
nominated supervisor for the service;
(b) each
person in day-to-day charge of the service;
(c) each
family day care co-ordinator employed or engaged by the service.
163—Offence relating to appointment or engagement of family day care
co-ordinators
(1) The approved
provider of a family day care service must ensure that at all times the
prescribed minimum number of qualified persons are employed or engaged as
family day care co-ordinators of the family day care service—
(a) to
assist with the operation of the family day care service; and
(b) to
support, monitor and train the family day care educators of that service.
Penalty:
(a)
$5 700, in the case of an individual.
(b)
$28 700, in any other case.
(2) A person is a
qualified person under this section if the person has the qualifications
prescribed by the national regulations.
164—Offence relating to assistance to family day care educators
(1) The approved
provider of a family day care service must ensure that, at all times that a
family day care educator is educating and caring for a child as part of the
service, one of the following persons is available to provide support to the
family day care educator:
(a) the
approved provider, if the approved provider is an individual, or a person with
management or control of the family day care service, in any other case;
(b) a
nominated supervisor of the service;
(c) a
person in day-to-day charge of the service.
Penalty:
(a)
$5 700, in the case of an individual.
(b)
$28 700, in any other case.
(2) For the purposes
of this section, the requirement to be available to provide support to a
family day care educator includes being available to be contacted by telephone
to provide advice and assistance to the family day care educator.
164A—Offence relating to the education and care of children by family
day care service
(1) The approved
provider of a family day care service must ensure that any child being
educated and cared for as part of the service is not educated and cared for by
a person other than a family day care educator, except in the circumstances
prescribed by the national regulations.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
(2) A family day care
educator must ensure that any child being educated and cared for by the
educator as part of a family day care service is not educated or cared for by
any other person at the family day care residence or approved family day care
venue, except in the circumstances prescribed by the national regulations.
Penalty: $2 200.
165—Offence to inadequately supervise children
(1) The approved
provider of an education and care service must ensure that all children being
educated and cared for by the service are adequately supervised at all times
that the children are in the care of that service.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
(2) A nominated
supervisor of an education and care service must ensure that all children
being educated and cared for by the service are adequately supervised at all
times that the children are in the care of that service.
Penalty: $11 400.
(3) A family day care
educator must ensure that any child being educated and cared for by the
educator as a part of a family day care service is adequately supervised.
Penalty: $11 400.
166—Offence to use inappropriate discipline
(1) The approved
provider of an education and care service must ensure that no child being
educated and cared for by the service is subjected to—
(a) any
form of corporal punishment; or
(b) any
discipline that is unreasonable in the circumstances.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
(2) A nominated
supervisor of an education and care service must ensure that no child being
educated and cared for by the service is subjected to—
(a) any
form of corporal punishment; or
(b) any
discipline that is unreasonable in the circumstances.
Penalty: $11 400.
(3) A staff member of,
or a volunteer at, an education and care service must not subject any child
being educated and cared for by the service to—
(a) any
form of corporal punishment; or
(b) any
discipline that is unreasonable in the circumstances.
Penalty: $11 400.
(4) A family day care
educator must not subject any child being educated and cared for by the
educator as part of a family day care service to—
(a) any
form of corporal punishment; or
(b) any
discipline that is unreasonable in the circumstances.
Penalty: $11 400.
167—Offence relating to protection of children from harm and hazards
(1) The approved
provider of an education and care service must ensure that every reasonable
precaution is taken to protect children being educated and cared for by the
service from harm and from any hazard likely to cause injury.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
(2) A nominated
supervisor of an education and care service must ensure that every reasonable
precaution is taken to protect children being educated and cared for by the
service from harm and from any hazard likely to cause injury.
Penalty: $11 400.
(3) A family day care
educator must ensure that every reasonable precaution is taken to protect a
child being educated and cared for as part of a family day care service from
harm and from any hazard likely to cause injury.
Penalty: $11 400.
168—Offence relating to required programs
(1) The approved
provider of an education and care service must ensure that a program is
delivered to all children being educated and cared for by the service
that—
(a) is
based on an approved learning framework; and
(b) is
delivered in a manner that accords with the approved learning framework; and
(c) is
based on the developmental needs, interests and experiences of each child; and
(d) is
designed to take into account the individual differences of each child.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(2) A nominated
supervisor of an education and care service must ensure that a program is
delivered to all children being educated and cared for by the service
that—
(a) is
based on an approved learning framework; and
(b) is
delivered in a manner that accords with the approved learning framework; and
(c) is
based on the developmental needs, interests and experiences of each child; and
(d) is
designed to take into account the individual differences of each child.
Penalty: $4 500.
169—Offence relating to staffing arrangements
(1) An approved
provider of an education and care service must ensure that, whenever children
are being educated and cared for by the service, the relevant number of
educators educating and caring for the children is no less than the number
prescribed for this purpose.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
(2) An approved
provider of an education and care service must ensure that each educator
educating and caring for children for the service meets the qualification
requirements relevant to the educator's role as prescribed by the national
regulations.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
(3) A nominated
supervisor of an education and care service must ensure that, whenever
children are being educated and cared for by the service, the relevant number
of educators educating and caring for the children is no less than the number
prescribed for this purpose.
Penalty: $11 400.
(4) A nominated
supervisor of an education and care service must ensure that each educator
educating and caring for children for the service meets the qualification
requirements relevant to the educator's role as prescribed by the national
regulations.
Penalty: $11 400.
(5) A family day care
educator must ensure that the number of children being educated and cared for
by the family day care educator at any one time is no more than the number
prescribed for this purpose.
Penalty: $11 400.
(6) Subsections (1),
(2), (3), (4) and (5) do not apply in respect of an education and care
service—
(a) to
the extent that it holds a temporary waiver under Division 6 of
Part 3 in respect of this requirement; or
(b) to
the extent that it holds a service waiver under Division 5 of Part 3
in respect of this requirement.
(7) The National
Authority may, on application, determine qualifications, including foreign
qualifications, to be equivalent to the qualifications required by the
national regulations.
(8) If a determination
is made under subsection (7), any person holding the qualification is to
be taken to be qualified in accordance with the national regulations.
170—Offence relating to unauthorised persons on education and care
service premises
(1) This section
applies to an education and care service operating in a participating
jurisdiction that has a working with children law.
(2) The approved
provider of the education and care service must ensure that a person does not
remain at the education and care service premises while children are being
educated and cared for at the premises, unless—
(a) the
person is an authorised person; or
(b) the
person is under the direct supervision of an educator or other staff member of
the service.
Penalty:
(a)
$1 100, in the case of an individual.
(b)
$5 700, in any other case.
(3) A nominated
supervisor of the education and care service must ensure that a person does
not remain at the education and care service premises while children are being
educated and cared for at the premises, unless—
(a) the
person is an authorised person; or
(b) the
person is under the direct supervision of an educator or other staff member of
the service.
Penalty: $1 100.
(4) A family day care
educator must ensure that a person does not remain at the family day care
residence or approved family day care venue at which the educator is educating
and caring for children, unless—
(a) the
person is an authorised person; or
(b) the
person is under the direct supervision of the educator.
Penalty: $1 100.
authorised nominee , in relation to a child, means a person who has been given
permission by a parent or family member of the child to collect the child from
the education and care service or the family day care educator;
authorised person means a person who is—
(a) a
person who holds a current working with children check or working with
children card; or
(b) a
parent or family member of a child who is being educated and cared for by the
education and care service or the family day care educator; or
(c) an
authorised nominee of a parent or family member of a child who is being
educated and cared for by the education and care service or the family day
care educator; or
(d) in
the case of an emergency, medical personnel or emergency service personnel; or
(e) a
person who is permitted under the working with children law of this
jurisdiction to remain at the education and care service premises without
holding a working with children check or a working with children card.
(6) A reference in
subsection (5) to a parent or family member of a child does not include a
person—
(a)
whose access to the child is prohibited or restricted by an order of a court
or tribunal of which the approved provider, nominated supervisor or family day
care educator (as the case requires) is aware; or
(b) who
is an inappropriate person within the meaning of section 171.
171—Offence relating to direction to exclude inappropriate persons from
education and care service premises
(1) The Regulatory
Authority may direct an approved provider, a nominated supervisor or a family
day care educator to exclude a person whom the Authority is satisfied is an
inappropriate person from the education and care service premises while
children are being educated and cared for at the premises for such time as the
Authority considers appropriate.
(2) A person to whom a
direction is given under subsection (1) must comply with the direction.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
(3) In this
section—
inappropriate person means a person—
(a) who
may pose a risk to the safety, health or wellbeing of any child or children
being educated and cared for by the education and care service; or
(b)
whose behaviour or state of mind or whose pattern of behaviour or common state
of mind is such that it would be inappropriate for him or her to be on the
education and care service premises while children are being educated and
cared for by the education and care service.
Example—
A person who is under the influence of drugs or alcohol.
172—Offence to fail to display prescribed information
(1) An approved
provider of an education and care service (other than a family day care
service) must ensure that the prescribed information about the following is
displayed, in the prescribed form (if any), so that it is clearly visible to
anyone from the main entrance to the education and care service premises:
(a) the
provider approval;
(b) the
service approval;
(c) each
nominated supervisor of the service;
(d) the
rating of the service;
(e) any
service waivers or temporary waivers held by the service;
(f) any
other prescribed matters.
Penalty:
(a)
$3 400, in the case of an individual.
(b)
$17 200, in any other case.
(2) An approved
provider of a family day care service must ensure that the prescribed
information about the following is displayed at the education and care service
premises of the family day care service in accordance with the national
regulations:
(a) the
provider approval;
(b) the
service approval;
(c) each
nominated supervisor of the service;
(d) the
rating of the service;
(e) any
service waivers or temporary waivers held by the service;
(f) any
other prescribed matters.
Penalty:
(a)
$3 400, in the case of an individual.
(b)
$17 200, in any other case.
173—Offence to fail to notify certain circumstances to Regulatory
Authority
(1) An approved
provider must notify the Regulatory Authority of the following in relation to
the approved provider or each approved education and care service operated by
the approved provider:
(a) a
change in the name of the approved provider;
(b) any
appointment or removal of a person with management or control of an education
and care service operated by the approved provider;
(c) a
failure to commence operating an education and care service within 6 months
(or within the time agreed with the Regulatory Authority) after being granted
a service approval for the service.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(2) An approved
provider must notify the Regulatory Authority of the following in relation to
an approved education and care service operated by the approved provider:
(a) if
the approved provider is notified of the suspension or cancellation of a
working with children card or teacher registration of, or disciplinary
proceedings under an education law of a participating jurisdiction in respect
of, a nominated supervisor engaged by the service;
(b) if a
nominated supervisor of an approved education and care service—
(i)
ceases to be employed or engaged by the service; or
(ii)
is removed from the role of nominated supervisor; or
(iii)
withdraws consent to the nomination;
(c) any
proposed change to the education and care service premises of an approved
education and care service (other than a family day care residence);
(d) if
the approved provider ceases to operate the education and care service;
(e) in
the case of an approved family day care service, a change in the location of
the principal office of the service;
(f) an
intention to transfer a service approval, as required under section 59.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(3) A notice under
subsection (1) or (2) must—
(a) be
in writing; and
(b)
include any prescribed information.
(4) A notice under
subsection (1) must be provided within the relevant prescribed time to
the Regulatory Authority that granted the provider approval to which the
notice relates.
(5) A notice under
subsection (2) must be provided within the relevant prescribed time to
the Regulatory Authority that granted the service approval for the education
and care service to which the notice relates.
174—Offence to fail to notify certain information to Regulatory
Authority
(1) An approved
provider must notify the Regulatory Authority of the following information in
relation to the approved provider or each approved education and care service
operated by the approved provider:
(a) any
change relevant to whether the approved provider is a fit and proper person to
be involved in the provision of an education and care service;
(b)
information in respect of any other prescribed matters.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(2) An approved
provider must notify the Regulatory Authority of the following information in
relation to an approved education and care service operated by the approved
provider:
(a) any
serious incident at the approved education and care service;
(b) any
complaints alleging—
(i)
that a serious incident has occurred or is occurring
while a child was or is being educated and cared for by the approved education
and care service; or
(ii)
that this Law has been contravened;
(c)
information in respect of any other prescribed matters.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(3) A notice under
subsection (1) must be in writing and be provided within the relevant
prescribed time to the Regulatory Authority that granted the provider
approval.
(4) A notice under
subsection (2) must be in writing and be provided within the relevant
prescribed time to—
(a) the
Regulatory Authority that granted the service approval for the education and
care service to which the notice relates; and
(b) in
the case of a family day care service, the Regulatory Authority in each
participating jurisdiction in which the family day care service operates.
174A—Family day care educator to notify certain information to approved
provider
A family day care educator who educates and cares for children as part of a
family day care service must notify the approved provider of the service of
the following information—
(a) any
serious incident that occurs while a child is being educated and cared for by
the educator as part of the service;
(b) any
complaints alleging—
(i)
that a serious incident has occurred or is occurring
while a child was or is being educated and cared for by the educator; or
(ii)
that this Law has been contravened;
(c)
information in respect of any other prescribed matters.
Penalty: $2 200.
175—Offence relating to requirement to keep enrolment and other
documents
(1) An approved
provider of an education and care service must keep the prescribed documents
available for inspection by an authorised officer in accordance with this
section.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(2) Documents referred
to in subsection (1)—
(a)
must, to the extent practicable, be kept at the education and care service
premises if they relate to—
(i)
the operation of the service; or
(ii)
any staff member employed or engaged by the service; or
(iii)
any child cared for, or educated at, those premises,
in the previous 12 months; and
(b) in
any other case, must be kept at a place, and in a manner, that they are
readily accessible by an authorised officer.
(3) A family day care
educator who educates and cares for a child at a residence or approved family
day care venue, as part of a family day care service, must keep the prescribed
documents available for inspection by an authorised officer at that residence
or venue.
Penalty: $4 500.
Part 7—Compliance with this Law
Division 1—Notices
176—Compliance directions
(1) This section
applies if the Regulatory Authority is satisfied that an education and care
service has not complied with a provision of this Law that is prescribed by
the national regulations.
(2) The Regulatory
Authority may give the approved provider a written direction (a compliance
direction ) requiring the approved provider to take the steps specified in the
direction to comply with that provision.
(3) An approved
provider must comply with a direction under subsection (2) within the
period (being not less than 14 days) specified in the direction.
Penalty:
(a)
$2 200, in the case of an individual.
(b)
$11 400, in any other case.
177—Compliance notices
(1) This section
applies if the Regulatory Authority is satisfied that an education and care
service is not complying with any provision of this Law.
(2) The Regulatory
Authority may give the approved provider a notice (a compliance notice )
requiring the approved provider to take the steps specified in the notice to
comply with that provision.
(3) An approved
provider must comply with a compliance notice under subsection (2) within
the period (being not less than 14 days) specified in the notice.
Penalty:
(a)
$6 800, in the case of an individual.
(b)
$34 400, in any other case.
178—Notice to suspend education and care by a family day care educator
(1) This section
applies if the Regulatory Authority is satisfied that because of the conduct
of, or the inadequacy of the service provided by, a family day care educator
engaged by or registered with a family day care service—
(a) the
approved provider or a nominated supervisor of an approved family day care
service is not complying with any provision of this Law; or
(b)
there is a risk to the safety, health or wellbeing of children being educated
and cared for by the family day care educator.
(2) The Regulatory
Authority may give the approved provider, the nominated supervisor (if
applicable) and the educator a notice ( show cause notice ) stating—
(a) that
the Regulatory Authority intends to give the approved provider a notice
directing the provider to suspend the provision of education and care by the
educator; and
(b) the
reasons for the proposed direction; and
(c) that
the approved provider, nominated supervisor or educator, (as the case
requires) may, within 14 days after the show cause notice is given, make
submissions to the Regulatory Authority in respect of the proposed direction.
(3) The show cause
notice must be served by delivering it personally to the family day care
educator.
(a) must
consider any submissions from the approved provider, the nominated supervisor
and the family day care educator received within the time allowed by
subsection (2)(c); and
(b) may
consider any other submissions and any matters the Regulatory Authority
considers relevant; and
(c)
may—
(i)
give the approved provider a notice directing the
provider to suspend the provision of education and care of children by the
family day care educator; or
(ii)
decide not to give that direction.
(5) The Regulatory
Authority must give the family day care educator a notice of the decision
under subsection (4).
(6) If the Regulatory
Authority decides not to give the direction to suspend, the Regulatory
Authority must give the approved provider notice of the decision.
(7) A person must
comply with a direction under subsection (4).
Penalty:
(a)
$6 800, in the case of an individual.
(b)
$34 400, in any other case.
179—Emergency action notices
(1) This section
applies if the Regulatory Authority is satisfied that an education and care
service is operating in a manner that poses, or is likely to pose, an
immediate risk to the safety, health or wellbeing of a child or children being
educated and cared for by the service.
(2) The Regulatory
Authority may, by written notice, direct the approved provider of the
education and care service to take the steps specified in the notice to remove
or reduce the risk within the time (not more than 14 days) specified in
the notice.
(3) An approved
provider must comply with a direction given under subsection (2).
Penalty:
(a)
$6 800, in the case of an individual.
(b)
$34 400, in any other case.
Division 2—Enforceable undertakings
179A—Enforceable undertakings
(a) if a
person has contravened, or if the Regulatory Authority alleges a person has
contravened, a provision of this Law; or
(b) in
the circumstances set out in section 27(a), 72(a) or 184(3).
(2) If
subsection (1)(a) applies, the Regulatory Authority may accept a written
undertaking from the person, under which the person undertakes to take certain
actions, or refrain from taking certain actions, to comply with this Law.
(3) If
subsection (1)(b) applies in relation to the approved provider of an
education and care service, the Regulatory Authority may accept a written
undertaking from the approved provider, under which the approved provider
undertakes to take certain actions, or refrain from taking certain actions in
relation to the education and care service.
(4) If
subsection (1)(b) applies in relation to a person other than the approved
provider of an education and care service, the Regulatory Authority may accept
a written undertaking from the person, under which the person undertakes to
take certain actions, or refrain from taking certain actions in relation to an
education and care service.
(5) A person may, with
the consent of the Regulatory Authority, withdraw or amend an undertaking.
(6) The Regulatory
Authority may withdraw its acceptance of the undertaking at any time and the
undertaking ceases to be in force on that withdrawal.
(7) The Regulatory
Authority may publish on the Regulatory Authority's website an undertaking
accepted under this section.
179B—Certain actions prohibited while undertaking is in force
(1) While an
undertaking is in force under section 179A(2), proceedings may not be
brought for any offence constituted by the contravention or alleged
contravention in respect of which the undertaking is given.
(2) While an
undertaking is in force under section 179A(3), the Regulatory Authority
must not (as the case requires)—
(a)
suspend the provider approval under section 27 in relation to a matter
that is the subject of the undertaking; or
(b)
suspend the service approval under section 72 in relation to a matter
that is the subject of the undertaking; or
(c) give
a prohibition notice under section 182 in relation to a matter that is
the subject of the undertaking.
(3) While an
undertaking is in force under section 179A(4), the Regulatory Authority
must not give a prohibition notice under section 182 in relation to a
matter that is the subject of the undertaking.
180—Certain actions prohibited if undertaking is complied with
(1) If a person
complies with the requirements of an undertaking under section 179A(2),
no further proceedings may be brought for any offence constituted by the
contravention or alleged contravention in respect of which the undertaking was
given.
(2) If an approved
provider complies with the requirements of an undertaking under
section 179A(3), the Regulatory Authority must not (as the case
requires)—
(a)
suspend the provider approval under section 27 in relation to a matter
that is the subject of the undertaking; or
(b)
suspend the service approval under section 72 in relation to a matter
that is the subject of the undertaking; or
(c) give
a prohibition notice under section 182 in relation to a matter that is
the subject of the undertaking.
(3) If a person
complies with the requirements of an undertaking under section 179A(4),
the Regulatory Authority must not give a prohibition notice under
section 182 in relation to a matter that is the subject of the
undertaking.
181—Failure to comply with enforceable undertakings
(1) If the Regulatory
Authority considers that a person who gave an undertaking under
section 179A has failed to comply with any of its terms, the Regulatory
Authority may apply to the relevant tribunal or court for an order under
subsection (2) to enforce the undertaking.
(2) If the relevant
tribunal or court is satisfied that the person has failed to comply with a
term of the undertaking, the relevant tribunal or court may make any of the
following orders—
(a) an
order directing the person to comply with the term of the undertaking;
(b) an
order that the person take any specified action for the purpose of complying
with the undertaking;
(c) any
other order that the relevant tribunal or court considers appropriate in the
circumstances.
(3) If the relevant
tribunal or court determines that the person has failed to comply with a term
of an undertaking under section 179A(2), proceedings may be brought for
any offence constituted by the contravention or alleged contravention in
respect of which the undertaking was given.
(4) If the relevant
tribunal or court determines that an approved provider has failed to comply
with a term of an undertaking under section 179A(3), the Regulatory
Authority may without further notice—
(a) if
the undertaking was given in circumstances set out in section 27(a),
suspend the provider approval under section 27; or
(b) if
the undertaking was given in circumstances set out in section 72(a),
suspend the service approval under section 72; or
(c) if
the undertaking was given in circumstances set out in section 184(3),
give a prohibition notice under section 182 in relation to a matter that
is the subject of the undertaking.
(5) If the relevant
tribunal or court determines that a person has failed to comply with a term of
an undertaking under section 179A(4), the Regulatory Authority may,
without further notice, give a prohibition notice under section 182 in
relation to a matter that is the subject of the undertaking.
(6) Proceedings
referred to in subsection (3) may be brought within 6 months of the
determination or within 2 years of the date of the alleged offence,
whichever occurs last.
Division 3—Prohibition notices
182—Grounds for giving prohibition notice
(1) The Regulatory
Authority may give a prohibition notice to a person who is in any way involved
in the provision of an approved education and care service if it considers
that there may be an unacceptable risk of harm to a child or children if the
person were allowed—
(a) to
remain on the education and care service premises; or
(b) to
provide education and care to children.
(2) For the purposes
of subsection (1), a person may be involved in the provision of an
approved education and care service as any of the following:
(b) a
nominated supervisor;
(c) an
educator;
(d) a
family day care educator;
(e) an
employee;
(f) a
contractor;
(h) a
person who was formerly a person referred to in paragraphs (a) to (g) in
relation to the approved education and care service—
or in any other capacity.
(3) The Regulatory
Authority may give a prohibition notice to a person to—
(a)
prohibit the person from being nominated as a nominated supervisor if the
Regulatory Authority considers the person is not a fit and proper person to be
nominated as a nominated supervisor of a service; or
(b)
impose one or more conditions on the nomination of the person as a nominated
supervisor that the Regulatory Authority considers appropriate, if the
Regulatory Authority considers the person is a fit and proper person to be
nominated as a nominated supervisor of a service subject to those conditions.
183—Show cause notice to be given before prohibition notice
(1) Before giving a
person a prohibition notice, the Regulatory Authority must give the person a
notice (a show cause notice )—
(a)
stating that the Regulatory Authority proposes to give the person a
prohibition notice; and
(b)
stating the reasons for the proposed prohibition; and
(c)
inviting the person to make a written submission to the Regulatory Authority,
within a stated time of at least 14 days, about the proposed prohibition.
(2) Subsection (1)
does not apply if the Regulatory Authority is satisfied it is necessary, in
the interests of the safety, health or wellbeing of a child or children, to
immediately issue a prohibition notice to the person.
184—Deciding whether to give prohibition notice
(1) If the Regulatory
Authority gives a show cause notice under section 183 to a person, the
Regulatory Authority must have regard to any written submission received from
the person within the time stated in the show cause notice before deciding
whether to give the person a prohibition notice.
(2) If the Regulatory
Authority decides not to issue a prohibition notice to the person, the
Regulatory Authority must give the person notice of the decision.
(3) The Regulatory
Authority may accept an undertaking from a person under section 179A
instead of giving a prohibition notice under this Division.
185—Content of prohibition notice
(1) A prohibition
notice given to a person under section 182(1) must state that the person
is prohibited from doing one or more of the following—
(a)
providing education and care to children for an education and care service;
(b)
being engaged as an educator, family day care educator, employee, contractor
or staff member of, or being a volunteer at, an education and care service;
(c)
carrying out any other activity relating to an education and care service.
(2) A prohibition
notice given to a person under section 182(3) must state that
either—
(a) the
person is prohibited from being nominated as a nominated supervisor of an
education and care service; or
(b) the
person may only be nominated as a nominated supervisor of an education and
care service on the condition or conditions specified by the Regulatory
Authority in the notice.
(3) A prohibition
notice given to a person under section 182(1) or (3) must state—
(a) that
the person may apply for cancellation of the notice; and
(b) how
an application for cancellation must be made.
186—Cancellation of prohibition notice
(1) If the Regulatory
Authority is satisfied there is not a sufficient reason for a prohibition
notice to remain in force for a person, the Regulatory Authority must cancel
the prohibition notice and give the person notice of the cancellation.
(2) A person for whom
a prohibition notice is in force may apply to the Regulatory Authority to
cancel the notice.
(3) The application
must—
(a) be
in writing; and
(b)
include the prescribed information; and
(c) be
signed by the person.
(4) The person may
state in the application anything the person considers relevant to the
Regulatory Authority's decision about whether there would be an unacceptable
risk of harm to children if the person were—
(a) to
remain at the education and care service premises; or
(b) to
provide education and care to children.
(4A) The person may
state in the application anything the person considers relevant to the
Regulatory Authority's decision about whether the person is a fit and proper
person to be nominated as a nominated supervisor with or without conditions.
(5) The application
may include a statement setting out any change in the person's circumstances
since the prohibition notice was given or since any previous application under
this section that would warrant the cancellation of the notice.
(6) The Regulatory
Authority must decide the application as soon as practicable after its
receipt.
187—Person must not contravene prohibition notice
(1) While a
prohibition notice under section 182(1) is in force under this Law as
applying in any participating jurisdiction for a person, the person must
not—
(a)
provide education and care to children for an education and care service; or
(b) be
engaged as an educator, family day care educator, employee, contractor or
staff member of, or perform volunteer services for, an education and care
service; or
(c)
carry out any other activity relating to education and care services.
Penalty: $22 900.
(2) While a
prohibition notice under section 182(3) is in force under this Law as
applying in any participating jurisdiction for a person, the person must
not—
(a) in
the case of a prohibition notice under section 182(3)(a), consent to a
nomination of that person as a nominated supervisor of an education and care
service; or
(b) in
the case of a prohibition notice under section 182(3)(b), consent to a
nomination of that person as a nominated supervisor of an education and care
service in contravention of a condition or conditions stated in the
prohibition notice.
Penalty: $22 900.
188—Offence to engage person to whom prohibition notice applies
(1) An approved
provider must not engage a person as an educator, family day care educator,
employee, contractor or staff member of, or allow a person to perform
volunteer services for, an education and care service if the provider knows,
or ought reasonably to know, a prohibition notice is in force under this Law
as applying in any participating jurisdiction in respect of the person.
Penalty:
(a)
$22 900, in the case of an individual.
(b)
$114 900, in any other case.
(2) An approved
provider must not nominate a person as a nominated supervisor of an education
and care service if the approved provider knows, or ought reasonably to know,
that a prohibition notice is in force under this Law as applying in any
participating jurisdiction prohibiting the nomination of that person as a
nominated supervisor of an education and care service.
Penalty:
(a)
$22 900, in the case of an individual.
(b)
$114 900, in any other case.
(3) An approved
provider must not nominate a person as a nominated supervisor of an education
and care service if the approved provider knows, or ought reasonably to know,
that the nomination would place the person in contravention of a condition of
a prohibition notice in force under this Law as applying in any participating
jurisdiction.
Penalty:
(a)
$22 900, in the case of an individual.
(b)
$114 900, in any other case.
188A—False or misleading information about prohibition notice
A person who is subject to a prohibition notice under this Law as applying in
any participating jurisdiction must not give an approved provider any
information about the content or existence of the prohibition notice that is
false or misleading in any material particular.
Penalty: $6 800.
Division 4—Emergency removal of children
189—Emergency removal of children
(1) This section
applies if the Regulatory Authority considers, on reasonable grounds, that
there is an immediate danger to the safety or health of a child or children
being educated and cared for by an education and care service.
(2) The Regulatory
Authority may remove, or cause the removal of, the child or children from the
education and care service premises.
(3) In exercising a
power under subsection (2)—
(a) the
Regulatory Authority may be given such assistance by other persons (including
police officers) as is reasonably required; and
(b) the
Regulatory Authority and any person assisting the Regulatory Authority
may—
(i)
enter the education and care service premises, without
warrant; and
(ii)
use reasonable force as necessary.
(4) If a child is
removed from the education and care service premises under
subsection (2), the Regulatory Authority must ensure that the child's
parents are immediately notified of the situation and the child's current
location.
Part 8—Review
Division 1—Internal review
190—Reviewable decision—internal review
A reviewable decision for internal review is a decision of the Regulatory
Authority under this Law as applying in any participating jurisdiction—
(a) to
refuse to grant a provider approval or a service approval; or
(b) to
amend or refuse to amend a provider approval or a service approval; or
(c) to
impose a condition on a provider approval or a service approval; or
(d) to
suspend—
(i)
a provider approval under section 28; or
(ii)
a service approval under section 73; or
(e) to
refuse to consent to the transfer of a service approval; or
(f) to
revoke a service waiver; or
(g) to
issue a compliance direction; or
(h) to
issue a compliance notice.
191—Internal review of reviewable decisions
(1) A person who is
the subject of a reviewable decision for internal review may apply to the
Regulatory Authority in writing for review of the decision.
(2) An application
under subsection (1) must be made—
(a)
within 14 days after the day on which the person is notified of the decision;
or
(b) if
the person is not notified of the decision, within 14 days after the
person becomes aware of the decision.
(3) The person who
conducts the review for the Regulatory Authority must not be a person who was
involved in the assessment or investigation of the person or service to whom
or which the decision relates.
(4) The person
conducting the review may ask the person who applied for the review for
further information.
(5) A review under
this section must be conducted within 30 days after the application is made.
(6) The period
specified in subsection (5) may be extended by up to 30 days—
(a) if a
request for further information is made under subsection (4); or
(b) by
agreement between the person who applied for the review and the Regulatory
Authority.
(7) The Regulatory
Authority may, in relation to an application under subsection (1)—
(a)
confirm the decision; or
(b) make
any other decision that the Regulatory Authority thinks appropriate.
Division 2—External review
192—Reviewable decision—external review
A reviewable decision for external review is—
(a) a
decision of the Regulatory Authority made under section 191 (other than a
decision in relation to the issue of a compliance direction or a compliance
notice); or
(b) a
decision of the Regulatory Authority under this Law as applying in any
participating jurisdiction—
(i)
to suspend a provider approval under section 27; or
(ii)
to cancel a provider approval under section 33; or
(iii)
to suspend a service approval under section 72; or
(iv)
to cancel a service approval under section 79 or
307; or
(vi)
to direct the approved provider of a family day care
service to suspend the care and education of children by a family day care
educator; or
(vii)
to give a prohibition notice or to refuse to cancel a
prohibition notice.
Note—
A person is not entitled to a review under this section in respect of a
suspension or cancellation of a service approval if that suspension or
cancellation relates only to an associated children's service. Any right of
review would be under the children's services law.
193—Application for review of decision of the Regulatory Authority
(1) A person who is
the subject of a reviewable decision for external review may apply to the
relevant tribunal or court for a review of the decision.
(2) An application
must be made within 30 days after the day on which the applicant is notified
of the decision that is to be reviewed.
(3) After hearing the
matter, the relevant tribunal or court may—
(a)
confirm the decision of the Regulatory Authority; or
(b)
amend the decision of the Regulatory Authority; or
(c)
substitute another decision for the decision of the Regulatory Authority.
(4) In determining any
application under this section, the relevant tribunal or court may have regard
to any decision under this Law as applying in another participating
jurisdiction of a relevant tribunal or court of that jurisdiction.
Division 3—General
194—Relationship with Act establishing administrative body
This Part applies despite any provision to the contrary in the Act that
establishes the relevant tribunal or court but does not otherwise limit that
Act.
Part 9—Monitoring and enforcement
Division 1—Authorised officers
195—Authorisation of authorised officers
(1) The Regulatory
Authority may authorise any person who the Regulatory Authority is satisfied
is an appropriate person to be an authorised officer for the purposes of this
Law.
(2) In considering
whether a person is an appropriate person to be an authorised officer, the
Regulatory Authority must take into account the requirements for the
authorisation of authorised officers determined by the National Authority
under subsection (5).
(3) An
authorised officer holds office on any terms and conditions stated in the
authorisation.
(4) A defect in the
authorisation of an authorised officer does not affect the validity of any
action taken or decision made by the authorised officer under this Law.
(5) The National
Authority may determine the requirements for the authorisation of authorised
officers under this section.
(6) A determination
under subsection (5) must be published on the website of the National
Authority.
196—Identity card
(1) The Regulatory
Authority must issue to each authorised officer an identity card in the form
prescribed by the national regulations.
(2) The identity card
must identify the authorised officer as an authorised officer authorised by
the Regulatory Authority under this Law.
(3) An authorised
officer must—
(a)
carry the identity card whenever the officer is exercising his or her
functions under this Law; and
(i)
before exercising a power of entry under this Law; and
(ii)
at any time during the exercise of a power under this Law
when asked to do so.
Penalty: $1 100.
(4) An
authorised officer who fails to comply with subsection (3)(b) in relation
to the exercise of a power ceases to be authorised to exercise the power in
relation to the matter.
(5) An
authorised officer must return his or her identity card to the Regulatory
Authority on ceasing to be authorised as an authorised officer for the
purposes of this Law.
Penalty: $1 100.
Division 2—Powers of entry
197—Powers of entry for assessing and monitoring approved education and
care service
(1) An authorised
officer may exercise a power under this section for any of the following
purposes:
(a)
monitoring compliance with this Law;
(b) a
rating assessment of an approved education and care service under Part 5;
(c)
obtaining information requested under section 35 or 83.
(2) An authorised
officer may, at any reasonable time and with such assistants as may reasonably
be required, enter any education and care service premises and do any of the
following:
(a)
inspect the premises and any plant, equipment, vehicle or other thing;
(b)
photograph or film, or make audio recordings or make sketches of, any part of
the premises or anything at the premises;
(c)
inspect and make copies of, or take extracts from, any document kept at the
premises;
(d) take
any document or any other thing at the premises;
(e) ask
a person at the premises—
(i)
to answer a question to the best of that person's
knowledge, information and belief; or
(ii)
to take reasonable steps to provide information or
produce a document.
(3) A power under
subsection (2)(a) to (d) is limited to a document or thing that is used
or likely to be used in the provision of the education and care service.
(4) If the
authorised officer takes any document or thing under subsection (2), he
or she must—
(a) give
notice of the taking of the document or thing to the person apparently in
charge of it or to an occupier of the premises; and
(b)
return the document or thing to that person or the premises within 7 days
after taking it.
(5) An
authorised officer may not, under this section, enter a residence
unless—
(a) an
approved education and care service is operating at the residence at the time
of entry; or
(b) the
occupier of the residence has consented in writing to the entry and the
inspection.
198—National Authority representative may enter service premises in
company with Regulatory Authority
(1) A person
authorised by the National Authority, in company with an authorised officer,
may enter premises used by an approved education and care service within the
usual hours of operation of the service at those premises.
(2) The entry by the
person authorised by the National Authority is solely for the purpose of
informing the National Authority of the rating assessment processes of the
Regulatory Authority under Part 5 to assist the National Authority in
promoting consistency across participating jurisdictions.
199—Powers of entry for investigating approved education and care
service
(1) An authorised
officer may exercise the powers under this section to investigate an approved
education and care service if the authorised officer reasonably suspects that
an offence may have been or may be being committed against this Law.
(2) The authorised
officer, with any necessary assistants, may with or without the consent of the
occupier of the premises, enter the education and care service premises at any
reasonable time and do any of the following:
(a)
search any part of the premises;
(b)
inspect, measure, test, photograph or film, or make audio recordings of, any
part of the premises or anything at the premises;
(c) take
a thing, or a sample of or from a thing, at the premises for analysis,
measurement or testing;
(d)
copy, or take an extract from, a document, at the premises;
(e) take
into or onto the premises any person, equipment and materials the
authorised officer reasonably requires for exercising a power under this
subsection;
(f)
require the occupier of the premises, or a person at the premises, to give the
authorised officer information to help the authorised officer in conducting
the investigation.
(3) A power under
subsection (2)(b) to (d) is limited to a document or thing that is used
or likely to be used in the provision of the education and care service.
(4) An
authorised officer may not, under this section, enter a residence
unless—
(a) the
authorised officer reasonably believes that an approved education and care
service is operating at the residence at the time of entry; or
(ab) the
register of family day care educators records that the approved education and
care service operates at the residence at the time of entry; or
(b) the
occupier of the residence has consented in writing to the entry and the
inspection.
200—Powers of entry to business premises
(1) An
authorised officer may exercise powers under this section if the
authorised officer reasonably suspects that documents or other evidence
relevant to the possible commission of an offence against this Law are present
at the principal office of the approved provider of the service or any other
business office of the approved provider of the service.
(2) The
authorised officer, with the consent of the occupier of the premises, may
enter the premises and do any of the following:
(a)
search any part of the premises;
(b)
inspect, measure, test, photograph or film, or make audio recordings of, any
part of the premises or anything at the premises;
(c) take
a thing, or a sample of or from a thing, at the premises for analysis,
measurement or testing;
(d)
copy, or take an extract from, a document, at the premises;
(e) take
into or onto the premises any person, equipment and materials the
authorised officer reasonably requires for exercising a power under this
subsection;
(f)
require the occupier of the premises, or a person at the premises, to give the
authorised officer information to help the authorised officer in conducting
the investigation.
(3) An
authorised officer must not enter and search the premises with the consent of
the occupier unless, before the occupier consents to that entry, the
authorised officer has—
(a)
produced his or her identity card for inspection; and
(b)
informed the occupier—
(i)
of the purpose of the search and the powers that may be
exercised; and
(ii)
that the occupier may refuse to give consent to the entry
and search or to the taking of anything found during the search; and
(iii)
that the occupier may refuse to consent to the taking of
any copy or extract from a document found on the premises during the search.
200A—Entry to premises without search warrant
(1) An
authorised officer may enter any premises (including residential or business
premises) for the purpose of determining whether an education and care service
is operating without a service approval at or from the premises, if—
(a) the
authorised officer reasonably believes that a person is operating an education
and care service in contravention of section 103 at the premises; and
(b) the
occupier of the premises has consented in writing to the entry and inspection.
(2) An
authorised officer must not enter and search the premises under this section
unless, before the occupier consents to the entry, the authorised officer
has—
(a)
produced the authorised officer's identity card for inspection; and
(b)
informed the occupier—
(i)
of the purpose of the search and the powers that may be
exercised; and
(ii)
that the occupier may refuse to consent to the entry and
search or the taking of anything found during the search; and
(iii)
that the occupier may refuse to consent to the taking of
any copy or extract from a document found on the premises during the search.
(3) An
authorised officer who exercises a power of entry under this section may for
the purposes of the investigation do any of the things referred to in
clause 5(2)(a) to (e) of Schedule 2 as if a reference to that
Schedule included a reference to this section.
201—Entry to premises with search warrant
(1) An
authorised officer under the authority of a search warrant may enter premises
if the authorised officer reasonably believes that a person is operating an
education and care service in contravention of section 103 at or from the
premises.
(2) An
authorised officer under the authority of a search warrant may enter any
education and care service premises or any premises where the
authorised officer reasonably believes that an approved education and care
service is operating if the authorised officer reasonably believes that the
education and care service is operating in contravention of this Law.
(3) An
authorised officer under the authority of a search warrant may enter the
principal office of the approved provider of the service or any other business
office of the approved provider of the service if the authorised officer
reasonably believes that documents or other evidence relevant to the possible
commission of an offence against this Law are present at those premises.
(4) Schedule 2
applies in relation to the issue of the search warrant and the powers of the
authorised officer on entry.
202—Seized items
(1) If an
authorised officer has taken a thing under section 199, 200 or 200A
or under a search warrant under section 201, the authorised officer must
take reasonable steps to return the thing to the person from whom it was taken
if the reason for the taking no longer exists.
(2) If the thing has
not been returned within 60 days after it was taken, the authorised officer
must take reasonable steps to return it unless—
(a)
proceedings have been commenced within the period of 60 days and those
proceedings (including any appeal) have not been completed; or
(b) a
court makes an order under section 203 extending the period the thing can
be retained.
(3) If an
authorised officer has taken a thing under section 199, 200 or 200A
or under a search warrant under section 201, the authorised officer must
provide the owner of the thing with reasonable access to the thing.
203—Court may extend period
(1) An
authorised officer may apply to a court within the period of 60 days
referred to in section 202 or within a period extended by the court under
this section for an extension of the period for which the thing can be held.
(2) The court may
order the extension if satisfied that retention of the thing is
necessary—
(a) for
the purposes of an investigation into whether an offence has been committed;
or
(b) to
enable evidence of an offence to be obtained for the purposes of a
prosecution.
(3) The court may
adjourn an application to enable notice of the application to be given to any
person.
Division 3—Other powers
204—Power to require name and address
(1) This section
applies if—
(a) an
authorised officer finds a person committing an offence against this Law; or
(b) an
authorised officer finds a person in circumstances that lead, or the
authorised officer has information that leads, the officer to reasonably
suspect the person is committing, or has committed, an offence against this
Law.
(2) The
authorised officer may require the person to state the person's name and
residential address.
(3) The
authorised officer may require the person to give evidence of the correctness
of the stated name or residential address if the officer reasonably suspects
the stated name or address to be false.
205—Power to require evidence of age, name and address of person
(1) This section
applies if—
(a) the
national regulations require a staff member, a family day care educator or a
volunteer to have attained a prescribed minimum age; and
(b) an
authorised officer reasonably suspects that a person—
(i)
is employed or engaged as a staff member or a family day
care educator by, or is a volunteer at, an education and care service; and
(ii)
has not attained that prescribed minimum age.
(2) The authorised
officer may require the person to state the person's correct date of birth,
whether or not when requiring the person to state the person's correct name
and address.
(3) Also, the
authorised officer may require the person to provide evidence of the
correctness of the stated date of birth—
(a) at
the time of making the requirement under subsection (2) if, in the
circumstances, it would be reasonable to expect the person to be in possession
of evidence of the correctness of the stated date of birth; or
(b)
otherwise, within 14 days of making the requirement under subsection (2).
(4) The
authorised officer may require the person to state the person's name and
residential address if—
(a) the
person refuses or is unable to comply with a requirement under
subsection (2) or (3); or
(b)
according to the date of birth the person states, or the evidence of the
person's age the person gives, the person has not attained the prescribed
minimum age.
206—Power of authorised officers to obtain information documents and
evidence
(1) An
authorised officer may exercise a power under this section for any of the
following purposes:
(a)
monitoring compliance with this Law;
(b) a
rating assessment of an approved education and care service under Part 5;
(c)
obtaining information requested under section 35 or 83.
(2) An
authorised officer may, by written notice, require a specified person to
provide to the authorised officer, by writing signed by that person or, if the
person is not an individual, by a competent officer of that person, within the
time and in the manner specified in the notice, any relevant information that
is specified in the notice.
(3) The time specified
in the notice must not be less than 14 days from the date the notice is
issued.
specified person means a person who is or has been—
(a) an
approved provider, a nominated supervisor or a staff member of, or a volunteer
at, an approved education and care service; or
(b) a
family day care educator.
Division 4—Offences relating to enforcement
207—Offence to obstruct authorised officer
A person must not obstruct an authorised officer in exercising his or her
powers under this Law.
Penalty:
(a)
$9 100, in the case of an individual.
(b)
$45 900, in any other case.
208—Offence to fail to assist authorised officer
A person must not, without reasonable excuse—
(a)
refuse to answer a question lawfully asked by an authorised officer (other
than a question asked under section 197(2)(e)); or
(b)
refuse to provide information or produce a document lawfully required by an
authorised officer; or
(c) fail
to comply with a requirement made by an authorised officer under
clause 5(2)(f) or (g) of Schedule 2.
Penalty:
(a)
$9 100, in the case of an individual.
(b)
$45 900, in any other case.
209—Offence to destroy or damage notices or documents
A person must not, without lawful authority, destroy or damage any notice or
document given or prepared or kept under this Law.
Penalty:
(a)
$9 100, in the case of an individual.
(b)
$45 900, in any other case.
210—Offence to impersonate authorised officer
A person must not impersonate an authorised officer.
Penalty: $9 100.
211—Protection against self incrimination
(1) An individual may
refuse or fail to give information or do any other thing that the individual
is required to do by or under this Law if giving the information or doing the
thing might incriminate the individual.
(2) However,
subsection (1) does not apply to—
(a) the
production of a document or part of a document that is required to be kept
under this Law; or
(b) the
giving of the individual's name or address in accordance with this Law; or
(c)
anything required to be done under section 215 or 216.
(3) Any document
referred to in subsection (2)(a) that is produced by an individual or any
information obtained directly or indirectly from that document produced by an
individual is not admissible in evidence against the individual in any
criminal proceedings (except for criminal proceedings under this Law) or in
any civil proceedings.
212—Warning to be given
(1) Before requiring a
person to answer a question or provide information or a document under this
Part or Schedule 2, an authorised officer must—
(a)
identify himself or herself to the person as an authorised officer by
producing the officer's identity card; and
(b) warn
the person that a failure to comply with the requirement or to answer the
question, without reasonable excuse, would constitute an offence; and
(c) in
the case of an individual, warn the person about the effect of
section 211.
(2) Nothing in this
section prevents an authorised officer from obtaining and using evidence given
to the authorised officer voluntarily by any person.
(3) This section does
not apply to a request made under section 197.
213—Occupier's consent to search
(1) An occupier who
consents in writing to the entry and inspection of his or her premises under
Division 2 must be given a copy of the signed consent immediately.
(2) If, in any
proceeding, a written consent is not produced to the court, it must be
presumed until the contrary is proved that the occupier did not consent to the
entry and search.
Division 5—Powers of Regulatory Authority
214—Powers of Regulatory Authority to obtain information for rating
purposes
The Regulatory Authority may, for the purpose of a rating assessment—
(a) ask
the approved provider of the approved education and care service for any
information and documents; and
(b) make
any inquiries it considers appropriate.
215—Power of Regulatory Authority to obtain information, documents and
evidence by notice
(1) This section
applies if the Regulatory Authority reasonably suspects that an offence has or
may have been committed against this Law.
(2) The Regulatory
Authority may, by written notice, require a specified person—
(a) to
provide to the Regulatory Authority, in writing signed by that person or, if
the person is not an individual, by a competent officer of that person, within
the time and in the manner specified in the notice, any relevant information
that is specified in the notice; or
(b) to
produce to the Regulatory Authority, or to a person specified in the notice
acting on the Regulatory Authority's behalf, in accordance with the notice,
any relevant document referred to in the notice; or
(c) to
appear before the Regulatory Authority, or a person specified in the notice
acting on the Regulatory Authority's behalf, at a time and place specified in
the notice to give any evidence or to produce any relevant document specified
in the notice.
(3) The notice
must—
(a) warn
the person that failure or refusal to comply with the notice would constitute
an offence; and
(b) warn
the person about the effect of sections 217, 218 and 219.
(4) The Regulatory
Authority or the person specified in the notice acting on the Regulatory
Authority's behalf may require the evidence referred to in
subsection (2)(c) to be given on oath or affirmation and for that purpose
may administer an oath or affirmation.
(5) The person may
give evidence under subsection (2)(c) by telephone or video conference or
other electronic means unless the Regulatory Authority, on reasonable grounds,
requires the person to give that evidence in person.
(6) In this section,
specified person has the meaning given in section 206(4).
216—Power of Regulatory Authority to obtain information, documents and
evidence at education and care service
(1) This section
applies if the Regulatory Authority reasonably suspects that an offence has or
may have been committed against this Law.
(2) The Regulatory
Authority may require a specified person at an education and care
service—
(a) to
provide the Regulatory Authority, or a person acting on the Regulatory
Authority's behalf, with any specified information that is relevant to the
suspected offence; or
(b) to
produce to the Regulatory Authority, or to a person acting on the Regulatory
Authority's behalf, any specified document that is relevant to the suspected
offence.
(3) The Regulatory
Authority must—
(a) warn
the person that failure or refusal to comply with the requirement would
constitute an offence; and
(b) warn
the person about the effect of sections 217, 218 and 219.
(4) The Regulatory
Authority must not require a person to remain at the education and care
service more than a reasonable time for the purposes of providing information
or producing documents under subsection (2).
(5) In this section,
specified person has the meaning given in section 206(4).
217—Offence to fail to comply with notice or requirement
A person must not refuse or fail to comply with a requirement under
section 215 or 216 to the extent that the person is capable of complying
with that requirement.
Penalty:
(a)
$9 100, in the case of an individual.
(b)
$45 900, in any other case.
218—Offence to hinder or obstruct Regulatory Authority
A person must not obstruct or hinder the Regulatory Authority in exercising a
power under section 215 or 216.
Penalty:
(a)
$9 100, in the case of an individual.
(b)
$45 900, in any other case.
219—Self incrimination not an excuse
(1) A person is not
excused from complying with a notice or requirement under section 215 or
216 on the ground that complying with the notice or requirement may result in
information being provided that might tend to incriminate the person.
(2) Subject to
subsection (3), disclosed information is not admissible in evidence
against the individual in any criminal proceedings (other than proceedings
under section 218 or 295) or in any civil proceedings.
(3) Despite
subsection (2), any information obtained from a document or documents
required to be kept under this Law that is produced by a person is admissible
in evidence against the person in criminal proceedings under this Law.
(4) In this
section—
disclosed information means—
(a) the
answer by an individual to any question asked under section 215 or 216;
or
(b) the
provision by an individual of any information in compliance with
section 215 or 216; or
(c) any
information obtained directly or indirectly because of that answer or the
provision of that information.
Part 10—Ministerial Council
220—Functions of Ministerial Council
(1) The Ministerial
Council has the following functions under this Law:
(a) to
oversee the implementation and administration of the National Quality
Framework;
(b) to
promote uniformity in the application and enforcement of the National Quality
Framework;
(c) to
review and approve the National Quality Standard and set specific standards
for education and care services and classes of education and care services;
(d) to
review and approve the rating level system to be used in rating education and
care services;
(e) to
review and approve the fee structure under this Law;
(f) to
review and approve new learning frameworks for the purposes of this Law;
(g) to
monitor the implementation and operation of, and recommend or approve
amendments to, this Law;
(h) to
monitor the implementation and operation of the national regulations;
(i)
to review the education and care services to which this
Law applies and recommend, or amend the national regulations to provide for,
the inclusion of new classes of education and care services under this Law;
(j) to
appoint the members of the Board;
(k) to
monitor and review the performance of the National Authority;
(l) any
other functions given to the Ministerial Council by or under this Law.
(2) The Ministerial
Council must have regard to the objectives and guiding principles of the
National Quality Framework in carrying out its functions.
221—Powers of Ministerial Council
The Ministerial Council may—
(a) make
recommendations to the Board in relation to the exercise of the National
Authority's functions under this Law; and
(b)
refer any matter to the Board for consideration and advice; and
(c) make
regulations in accordance with this Law; and
(d) do
anything necessary or convenient to be done in carrying out its functions.
222—Directions
(1) The Ministerial
Council may give directions to the Board in relation to the carrying out of
the National Authority's functions under this Law, including the following:
(a)
reporting and accountability to the Ministerial Council and Regulatory
Authorities;
(b) the
application of the National Quality Framework;
(c) the
rating level system to be used in rating education and care services;
(d) the
collection and use of information.
(2) The Ministerial
Council may give directions to a Regulatory Authority with respect to the
administration of the National Quality Framework.
(3) A direction under
this section cannot be about—
(a) a
particular person or education and care service; or
(b) a
particular application, approval, notification, assessment or proceeding; or
(c) the
determination of a rating for a particular education and care service.
(4) A direction must
be in writing.
(5) A direction must
not be inconsistent with this Law.
(6) A direction is not
a legislative instrument or an instrument of a legislative character.
(7) A direction to the
Board under this section must be given to the Chairperson of the Board.
(8) The Board or a
Regulatory Authority must comply with a direction given to the Board or the
Authority by the Ministerial Council under this section.
223—How Ministerial Council exercises powers
(1) The Ministerial
Council is to give a direction for the purposes of this Law by resolution of
the Council passed in accordance with procedures determined by the Council.
(2) An act or thing
done by the Ministerial Council (whether by resolution, instrument or
otherwise) does not cease to have effect merely because of a change in the
Council's membership.
Part 11—Australian Children's Education and Care Quality Authority
Division 1—The National Authority
224—National Authority
(1) The Australian
Children's Education and Care Quality Authority is established.
(2) The National
Authority—
(a) is a
body corporate with perpetual succession; and
(b) has
a common seal; and
(c) may
sue and be sued in its corporate name.
(3) The National
Authority represents the State.
225—Functions of National Authority
(1) The functions of
the National Authority are as follows—
(a) to
guide the implementation and administration of the National Quality Framework
and to monitor and promote consistency in its implementation and
administration;
(b) to
report to and advise the Ministerial Council on the National Quality
Framework;
(c) to
report to the Regulatory Authorities and the relevant Commonwealth Department
in relation to the following:
(i)
the collection of information under this Law;
(ii)
the evaluation of the National Quality Framework;
(d) to
establish consistent, effective and efficient procedures for the operation of
the National Quality Framework;
(e) to
determine the arrangements for national auditing for the purposes of this Law;
(f) to
keep national information on the assessment, rating and regulation of
education and care services;
(g) to
establish and maintain national registers of approved providers and approved
education and care services and to publish those registers;
(h) to
promote and foster continuous quality improvement by approved education and
care services;
(i)
to publish, monitor and review ratings of approved
education and care services;
(j) to
make determinations with respect to the highest level of rating for approved
education and care services;
(k) in
conjunction with the Regulatory Authorities, to educate and inform education
and care services and the community about the National Quality Framework;
(l) to
publish guides and resources—
(i)
to support parents and the community in understanding
quality in relation to education and care services; and
(ii)
to support the education and care services sector in
understanding the National Quality Framework;
(m) to
publish information about the implementation and administration of the
National Quality Framework and its effect on developmental and educational
outcomes for children;
(n) to
publish practice notes and guidelines for the application of this Law;
(o) to
provide support and training for staff of Regulatory Authorities;
(p) to
determine the qualifications required to be held by educators, including the
assessment of equivalent qualifications;
(q) any
other function given to the National Authority by or under this Law.
(2) In carrying out
its functions, the National Authority must ensure that the regulatory burden
on education and care services is minimised as far as possible.
(3) In carrying out
its functions, the National Authority must have regard to the objectives and
guiding principles of the National Quality Framework.
226—National Authority may advise and seek guidance of Ministerial
Council
The National Authority may provide advice to and seek the guidance of the
Ministerial Council if the National Authority considers it necessary in
carrying out its functions under this Law.
227—Powers of National Authority
(1) The National
Authority has all the powers of an individual and, in particular, may—
(a)
enter into contracts; and
(b)
acquire, hold, dispose of, and deal with, real and personal property; and
(c)
borrow and invest money; and
(d)
develop and supply resources and consultancy services to the education and
care sector on a commercial basis; and
(e) do
anything necessary or convenient to be done in carrying out its functions.
(2) Without limiting
subsection (1), the National Authority may—
(a)
collect, hold and use information obtained under this Law by the National
Authority or a Regulatory Authority about the provision of education and care
to children including information about outcomes for children and about
providers of education and care services in each participating jurisdiction;
and
Note—
See section 270, which provides for the National Authority to publish
information about approved providers.
(b)
develop protocols for communication and dispute resolution among the National
Authority, the Regulatory Authorities and the relevant Commonwealth Department
to provide for consistency in the implementation and administration of the
National Quality Framework; and
(c)
collect, waive, reduce, defer and refund fees and enter into agreements in
relation to fees in accordance with the national regulations; and
(d)
enter into agreements in relation to fees and funding with the Regulatory
Authorities; and
(e)
undertake research and evaluation activities for the purpose of its functions
under this Law.
228—Co-operation with participating jurisdictions and Commonwealth
(1) The National
Authority may exercise any of its functions in co-operation with or with the
assistance of a participating jurisdiction or the Commonwealth, including in
co-operation with or with the assistance of any of the following:
(a) a
government agency of a participating jurisdiction or of the Commonwealth; or
(b) an
educational body or other body established by or under a law of a
participating jurisdiction or the Commonwealth; or
(c) a
prescribed body or body in a prescribed class of bodies.
(2) In particular, the
National Authority may—
(a) ask
a person or body referred to in subsection (1) for information that the
Authority requires to carry out its functions under this Law; and
(b) use
the information to carry out its functions under this Law.
(3) A person or body
referred to in subsection (1) that receives a request for information
from the National Authority is authorised to give the information to the
National Authority.
229—National audit functions
(1) The National
Authority is to undertake national audits of the administration of the
National Quality Framework and—
(a)
review the findings of the national audit processes; and
(b)
evaluate trends in the administration of the National Quality Framework across
participating jurisdictions; and
(c)
advise the Regulatory Authorities about the outcomes of the national audit
processes and its evaluations; and
(d)
report to the Ministerial Council on the outcomes of the national audit and
evaluation processes.
(2) The audits are to
be undertaken at the intervals, and by the means, determined by the National
Authority.
Division 2—The Board of the National Authority
Subdivision 1—Establishment and responsibilities
230—National Authority Board
The National Authority has a governing body known as the Australian Children's
Education and Care Quality Authority Board.
231—Responsibilities of Board
(1) The affairs of the
National Authority are to be controlled by the Board.
(2) The Board has all
the powers and duties and all the functions of the National Authority.
(3) All acts and
things done in the name of, or on behalf of, the National Authority by or with
the authority of the Board are taken to have been done by the National
Authority.
(4) The Board must
ensure that the National Authority carries out its functions and duties and
exercises its powers in a proper, effective and efficient way.
(5) The Board has any
other functions given to it under this Law.
(6) Any report to the
Ministerial Council under this Law is to be made by or through the Board.
(7) The Board must act
in accordance with any directions given to the National Authority by the
Ministerial Council under section 222.
(8) The Board must
work collaboratively with the Regulatory Authorities and the relevant
Commonwealth Department to support and promote the National Quality Framework.
232—Membership of Board
(1) The Board consists
of up to 13 members appointed by consensus of the Ministerial Council.
(2) The Ministerial
Council must appoint by consensus one person to be the Chairperson of the
Board.
(3) One member is to
be appointed for each State and Territory from 2 persons nominated by
each State or Territory Minister on the Ministerial Council.
(4) The Commonwealth
Minister may nominate up to 8 persons for appointment to the Board.
(5) Four of the
persons nominated under subsection (4) must be appointed to the Board.
(6) The Ministerial
Council must appoint by consensus one of the members referred to in
subsection (3) or (5) to be the Deputy Chairperson of the Board.
(7) The members
appointed to the Board must have professional skills and expertise in one or
more of the following areas:
(a)
assessment of quality in education and care services or other relevant
services;
(b)
early childhood development;
(c)
labour market and workforce participation and development;
(d) best
practice regulation;
(e)
financial management and corporate governance;
(f)
research, evaluation and performance;
(g) any
other areas of skill determined by the Ministerial Council.
(8) In appointing
members of the Board, the Ministerial Council must have regard to the need for
the Board to have an appropriate balance of skills and expertise among its
members.
Subdivision 2—Members
233—Terms of office of members
(1) Subject to this
Subdivision, members of the Board hold office on the terms and conditions
determined by the Ministerial Council.
(2) Subject to this
Subdivision, a member of the Board holds office for a period, being not more
than 3 years, specified in the member's appointment.
(3) A member may be
reappointed for a further period of not more than 3 years.
(4) The maximum
consecutive period of appointment of a member is 2 terms.
234—Remuneration
The remuneration and allowances (if any) to be paid to members of the Board
are to be determined from time to time by the Ministerial Council.
235—Vacancy in the office of member
(1) The office of a
member of the Board becomes vacant if the member—
(a)
completes a term of office; or
(b)
resigns the office by instrument addressed to the Chairperson of the Board; or
(c) is
removed from office by the Ministerial Council under this section; or
(d) in
the case of the Chairperson of the Board, is absent, without leave first being
granted by the Chairperson of the Ministerial Council, from 3 or more
consecutive meetings of the Board; or
(e) in
the case of any other member, is absent, without leave first being granted by
the Chairperson of the Board, from 3 or more consecutive meetings of the Board
of which reasonable notice has been given to the member personally or by post;
or
(f)
dies.
(2) The Chairperson of
the Ministerial Council may remove a member of the Board from office if—
(a) the
member has been found guilty of an offence (whether in a participating
jurisdiction or elsewhere) that, in the opinion of the Chairperson of the
Ministerial Council, renders the member unfit to continue to hold the office
of member; or
(b) the
member becomes bankrupt, applies to take the benefit of any law for the relief
of bankrupt or insolvent debtors, compounds with the member's creditors or
makes an assignment of the member's remuneration for their benefit; or
(c) the
Board recommends the removal of the member, on the basis that the member has
engaged in misconduct or has failed, or is unable, to properly carry out the
member's functions as a member.
(3) The Chairperson of
the Board may resign by written notice addressed to the Chairperson of the
Ministerial Council.
(4) A resignation
takes effect on the day that it is received by the Chairperson of the Board or
the Chairperson of the Ministerial Council (as the case requires) or a later
day specified in the notice of resignation.
(5) If the office of a
member of the Board becomes vacant, the Chairperson of the Board must notify
the Chairperson of the Ministerial Council of the vacancy.
(6) If the office of
the Chairperson of the Board becomes vacant, the Deputy Chairperson of the
Board must notify the Chairperson of the Ministerial Council of the vacancy.
236—Acting positions
(1) The Deputy
Chairperson of the Board is to act as the Chairperson of the Board—
(a)
during a vacancy in the office of Chairperson; or
(b)
during any period that the Chairperson—
(i)
is absent from duty; or
(ii)
is, for any reason, unable to carry out the duties of
that office.
(2) While the Deputy
Chairperson of the Board is acting in the office of Chairperson—
(a) he
or she has all the powers and functions of the Chairperson; and
(b) this
Law and other laws apply to the Deputy Chairperson as if he or she were
Chairperson.
(3) Anything done by
or in relation to the Deputy Chairperson when purporting to act in the office
of Chairperson is not invalid merely because the occasion for the Deputy
Chairperson to act had not arisen or had ceased.
(4) The Ministerial
Council may, by consensus, appoint a member of the Board to be the Deputy
Chairperson of the Board—
(a)
during a vacancy in the office of Deputy Chairperson; or
(b)
during any period that the Deputy Chairperson—
(i)
is acting as the Chairperson; or
(ii)
is absent from duty; or
(iii)
is, for any reason, unable to carry out the duties of
that office.
(5) A person nominated
by a Minister on the Ministerial Council may, with the approval of the
Chairperson of the Board, act as a member of the Board in the place of the
member appointed on the nomination of that Minister if that member is unable
to attend a meeting of the Board.
237—Leave of absence
(1) The Chairperson of
the Ministerial Council may grant the Chairperson of the Board a leave of
absence on the terms and conditions determined by the Chairperson of the
Ministerial Council.
(2) The Chairperson of
the Board may grant leave of absence to any other member of the Board on the
terms and conditions determined by the Chairperson of the Board.
(3) The Chairperson of
the Board must notify the Chairperson of the Ministerial Council if the
Chairperson of the Board grants to a member a leave of absence of more than
6 months.
(4) If a member of the
Board has been granted a leave of absence of 3 months or more, the
Ministerial Council may appoint a person nominated by the Minister who
nominated the member to act as a member of the Board in the place of the
member during that leave of absence.
238—Disclosure of conflict of interest
(a) a
member of the Board has a direct or indirect pecuniary or other interest in a
matter being considered or about to be considered at a meeting of the Board;
and
(b) the
interest appears to raise a conflict with the proper performance of the
member's duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the
member's knowledge, disclose the nature of the interest at a meeting of the
Board.
(2) Particulars of any
disclosure made under subsection (1) must be recorded by the Board.
(3) After a member has
disclosed the nature of an interest in any matter, the member must not, unless
the Ministerial Council or the Board otherwise determines—
(a) be
present during any deliberation of the Board with respect to the matter; or
(b) take
part in any decision of the Board with respect to the matter; or
(c) be
provided with any written material in relation to the matter.
(4) For the purposes
of the making of a determination by the Board under subsection (3), a
member who has a direct or indirect pecuniary or other interest in a matter to
which the disclosure relates must not—
(a) be
present during any deliberation of the Board for the purpose of making the
determination; or
(b) take
part in the making of the determination by the Board.
(5) A contravention of
this section does not invalidate any decision of the Board.
Subdivision 3—Procedure of Board
239—General procedure
(1) The Board must
hold such meetings as are necessary for it to perform its functions.
(2) Subject to this
Law, the procedure for the calling of meetings of the Board and for the
conduct of business at those meetings is to be as determined by the Board.
(3) The Chairperson of
the Board may convene any meetings of the Board that are, in his or her
opinion, necessary for the efficient performance of the functions of the
Board.
(4) The Chairperson of
the Board must convene a meeting of the Board at the written request of the
Ministerial Council.
(5) The Board must
keep minutes of its meetings.
240—Quorum
The quorum for a meeting of the Board is 9 members of whom—
(a) one
must be the Chairperson or Deputy Chairperson; and
(b) five
must be members appointed on the nomination of State and Territory Ministers;
and
(c) one
may be a member appointed on the nomination of the Commonwealth Minister.
241—Chief executive officer may attend meetings of the Board
(1) The
chief executive officer of the National Authority, subject to the policies and
procedures of the Board, may attend meetings of the Board and participate in
its deliberations but—
(a) is
not a member of the Board; and
(b) is
not entitled to vote at a meeting of the Board.
(2) Section 238
applies to the chief executive officer in relation to attendance at meetings
of the Board as if the chief executive officer were a member of the Board.
242—Presiding member
The Chairperson (or, in the absence of the Chairperson, the Deputy
Chairperson) is to preside at a meeting of the Board.
243—Voting
(1) At a meeting of
the Board each member will have a deliberative vote.
(2) A decision
supported by a majority of the votes cast at the meeting of the Board at which
a quorum is present is the decision of the Board.
(3) In the event of an
equality of votes the Chairperson (or the Deputy Chairperson if the
Chairperson is not present), will have a second or casting vote.
(4) The Board must
keep a record of all decisions made at a meeting.
(5) If a decision of
the Board to recommend a matter to the Ministerial Council is not arrived at
unanimously, the Chairperson of the Board must advise the Ministerial Council
of the reasons for and extent of the minority opinions.
244—Defects in appointment of members
A decision of the Board is not invalidated by any defect or irregularity in
the appointment of any member (or acting member) of the Board.
245—Transaction of business by alternative means
(1) The Board may, if
it thinks fit, transact any of its business by the provision of papers to all
the members of the Board for the time being, and a resolution in writing
approved in writing by a majority of the members constituting a quorum of the
Board is taken to be a decision of the Board.
(2) The Board may, if
it thinks fit, transact any of its business at a meeting at which members (or
some members) participate by telephone, closed-circuit television or other
means, but only if any member who speaks on a matter before the meeting can be
heard by the other members.
(3) For the purposes
of—
(a) the
approval of a resolution under subsection (1); or
(b) a
meeting held in accordance with subsection (2),
the Chairperson and each member have the same voting rights as they have at an
ordinary meeting of the Board.
(4) Papers may be
circulated among the members for the purposes of subsection (1) by
facsimile, email or other transmission of the information in the papers
concerned.
246—Delegation by Board
(1) The Board may, in
writing, delegate any of its functions, powers or duties to—
(a) a
Regulatory Authority; or
(b) the
chief executive of an entity or the head of a government department of a
participating jurisdiction nominated by the member of the Ministerial Council
who represents that jurisdiction; or
(c) the
chief executive officer of the National Authority; or
(d) a
committee established by the Board; or
(e) any
other entity with the approval of the Ministerial Council.
(2) Subject to the
delegation under subsection (1), a chief executive of an entity or head
of a government department may subdelegate a delegated function, power or duty
to a member of staff of the entity or department.
(3) The
chief executive officer of the National Authority may subdelegate a delegated
power, function or duty to a member of the staff of the National Authority.
247—Committees
(1) The Board may
establish committees to assist it in carrying out its functions.
(2) The Board must
determine—
(a) the
membership and functions of a committee; and
(b) the
procedure at or in relation to meetings of the committee including—
(i)
the convening of meetings; and
(ii)
the quorum for meetings; and
(iii)
the selection of a committee member to be the chairperson
of the committee; and
(iv)
the manner in which questions arising at meetings of the
committee are to be decided; and
(c) the
procedures for reporting to the Board.
(3) A committee must
give the Board any reports, documents and information relating to the
committee's functions and activities that the Board requests.
(4) The Board must
report to the Ministerial Council on any committees it establishes.
Subdivision 4—Chief executive officer of the National Authority
248—Chief executive officer
(1) Subject to this
section, the Chairperson of the Board is to appoint a person as
chief executive officer of the National Authority.
(2) The appointment
may only be made after the Ministerial Council has first endorsed the
appointment on the recommendation of the Board.
249—Functions of chief executive officer
(1) The
chief executive officer is responsible for the day-to-day management of the
affairs of the National Authority.
(2) The
chief executive officer has any other functions given to him or her or
delegated to him or her under this Law.
(3) Subject to this
Law, the chief executive officer must comply with the directions and policies
of the Board in carrying out his or her functions.
(4) The
chief executive officer is to report to the Board.
(5) The
chief executive officer must manage the affairs of the National Authority in a
way that—
(a)
promotes the effective use of the resources of the National Authority; and
(b) is
consistent with this Law.
(6) The
chief executive officer must work collaboratively with the Regulatory
Authorities and the relevant Commonwealth Department to support and promote
the National Quality Framework.
250—Terms and conditions of appointment
(1) The
chief executive officer of the National Authority is to be appointed for a
period, not more than 3 years, specified in the officer's appointment,
but is eligible for reappointment.
(2) A member of the
Board cannot be appointed as chief executive officer.
(3) Subject to this
Law, the chief executive officer holds office subject to any terms and
conditions that are decided by the Board.
(4) The chief
executive officer must not engage in paid employment outside the duties of his
or her office without the approval of the Chairperson of the Board.
(5) The Chairperson of
the Board must notify the Chairperson of the Ministerial Council of any
approval given under subsection (4).
(6) The
chief executive officer of the National Authority is taken, while holding that
office, to be a member of the staff of the National Authority.
251—Remuneration
The chief executive officer is to be paid the remuneration and allowances
decided by the Board.
252—Vacancy in office
The office of the chief executive officer of the National Authority becomes
vacant if—
(a) the
chief executive officer resigns from office by written notice addressed to the
Chairperson of the Board; or
(b) the
appointment of the chief executive officer is terminated by the Board under
this Law; or
(c) the
chief executive officer dies.
253—Resignation
(1) The
chief executive officer may resign the office by written notice addressed to
the Chairperson of the Board.
(2) The resignation
takes effect on the day that it is received by the Chairperson of the Board or
a later day specified in the notice of resignation.
(3) The Chairperson of
the Board must notify the Ministerial Council of that resignation.
254—Termination of appointment
(1) The Board may
terminate the appointment of the chief executive officer—
(a) for
misconduct or for physical or mental incapacity that significantly impacts on
the ability of the chief executive officer to perform the role; or
(b) if
the Board is satisfied that the performance of the chief executive officer has
been unsatisfactory; or
(c) if
the chief executive officer engages in paid employment outside the duties of
his or office without the approval of the Chairperson of the Board; or
(d) if
the chief executive officer has been found guilty of an offence (whether in a
participating jurisdiction or elsewhere) that, in the opinion of the Board,
makes the chief executive officer unfit to continue to be appointed.
(2) The Board must
terminate the appointment of the chief executive officer if the
chief executive officer—
(a)
becomes bankrupt, applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounds with the chief executive officer's
creditors or makes an assignment of the chief executive officer's remuneration
for their benefit; or
(b) is
absent, except on a leave of absence approved by the Chairperson of the Board,
for 14 consecutive days or for 28 days in any period of
12 months; or
(c)
fails, without reasonable excuse, to comply with section 256.
(3) The Chairperson of
the Board must notify the Chairperson of the Ministerial Council of the
termination of the appointment of the chief executive officer.
255—Acting chief executive officer
(1) The Board may
appoint a person to act as the chief executive officer—
(a)
during any vacancy in the office of chief executive officer; or
(b)
during any period that the chief executive officer—
(i)
is absent from duty; or
(ii)
is, for any reason, unable to perform the duties of that
office.
(2) The period of the
acting appointment must not exceed 6 months.
256—Disclosure of interests
The chief executive officer must give written notice to the Chairperson of the
Board as soon as possible of any direct or indirect personal or pecuniary
interest that the chief executive officer has, or acquires, or may acquire,
that conflicts or could conflict with the proper carrying out of the
chief executive officer's functions.
Subdivision 5—Staff, consultants and contractors
257—Staff of National Authority
(1) The National
Authority may, for the purpose of carrying out its functions, employ staff.
(2) The staff of the
National Authority are to be employed on the terms and conditions determined
by the National Authority from time to time.
(3) Subsection (2) is
subject to any relevant industrial award or agreement that applies to the
staff.
258—Staff seconded to National Authority
The National Authority may, in consultation with the relevant Regulatory
Authority or the relevant Commonwealth Department, make arrangements for the
secondment of staff.
259—Consultants and contractors
(1) The National
Authority may engage persons with suitable qualifications and experience as
consultants or contractors.
(2) The terms and
conditions of engagement of consultants or contractors are as decided by the
National Authority from time to time.
Part 12—Regulatory Authority
260—Functions of Regulatory Authority
The Regulatory Authority has the following functions under this Law in
relation to this jurisdiction:
(a) to
administer the National Quality Framework;
(b) to
assess approved education and care services against the National Quality
Standard and the national regulations and determine the ratings of those
services;
(c) to
monitor and enforce compliance with this Law;
(d) to
receive and investigate complaints arising under this Law;
(e) in
conjunction with the National Authority and the relevant Commonwealth
Department, to educate and inform education and care services and the
community in relation to the National Quality Framework;
(f) to
work in collaboration with the National Authority to support and promote
continuous quality improvements in education and care services;
(g) to
undertake information collection, review and reporting for the purposes
of—
(i)
the regulation of education and care services; and
(ii)
reporting on the administration of the National Quality
Framework; and
(iii)
the sharing of information under this Law;
(h) any
other functions conferred on the Regulatory Authority under this Law.
261—Powers of Regulatory Authority
(1) The Regulatory
Authority has the power to do all things that are necessary or convenient to
be done for, or in connection with, or that are incidental to the carrying out
of its functions under this Law.
(2) Without limiting
subsection (1), the Regulatory Authority has the following powers under
this Law in relation to this jurisdiction:
(a) to
collect, hold and use information obtained under this Law by the Regulatory
Authority or the National Authority about the provision of education and care
to children including information about outcomes for children and information
about providers of education and care services in each participating
jurisdiction;
(b)
subject to the Privacy Act 1988 of the Commonwealth, to collect, hold and use
information about providers of education and care services, family day care
educators and nominated supervisors;
(c) to
maintain and publish registers of approved providers and approved education
and care services;
(d) to
publish information about the National Quality Framework, including ratings
and prescribed information about compliance with this Law;
(e) to
collect, waive, reduce, defer and refund fees (including late payment fees)
and enter into agreements in relation to fees;
(f) to
enter into agreements relating to fees and funding with the National
Authority;
(g) to
exercise any other powers conferred on it by this Law.
262—Delegations
(1) The Regulatory
Authority may in writing delegate any of its functions and powers under this
Law (other than this power of delegation) to—
(a) any
person employed under a public sector law of this jurisdiction; or
(b) a
prescribed person or a person in a prescribed class of persons.
(2) A delegate of the
Regulatory Authority must disclose to the Regulatory Authority, at the request
of the Authority, any direct or indirect personal or pecuniary interest the
delegate may have in relation to the delegated functions and powers.
Part 13—Information, records and privacy
Division 1—Privacy
263—Application of Commonwealth Privacy Act
(1) The Privacy Act
applies as a law of a participating jurisdiction for the purposes of the
National Quality Framework.
(2) For the purposes
of subsection (1), the Privacy Act applies—
(a) as
if a reference to the Office of the Privacy Commissioner were a reference to
the Office of the National Education and Care Services Privacy Commissioner;
and
(b) as
if a reference to the Privacy Commissioner were a reference to the National
Education and Care Services Privacy Commissioner; and
(c) with
any other modifications made by the national regulations.
(3) Without limiting
subsection (2)(c), the national regulations may—
(a)
provide that the Privacy Act applies under subsection (1) as if a
provision of the Privacy Act specified in the national regulations were
omitted; or
(b)
provide that the Privacy Act applies under subsection (1) as if an
amendment to the Privacy Act made by a law of the Commonwealth, and specified
in the national regulations, had not taken effect; or
(c)
confer jurisdiction on a tribunal or court of a participating jurisdiction.
(4) In this
section—
Privacy Act means the Privacy Act 1988 of the Commonwealth, as in force from
time to time.
Division 2—Application of Commonwealth FOI Act
264—Application of Commonwealth FOI Act
(1) The FOI Act
applies as a law of a participating jurisdiction for the purposes of the
National Quality Framework.
(2) For the purposes
of subsection (1), the FOI Act applies—
(a) as
if a reference to the Office of the Australian Information Commissioner were a
reference to the Office of the National Education and Care Services Freedom of
Information Commissioner; and
(b) as
if a reference to the Information Commissioner were a reference to the
National Education and Care Services Freedom of Information Commissioner; and
(c) with
any other modifications made by the national regulations.
(3) Without limiting
subsection (2), the national regulations may—
(a)
provide that the FOI Act applies under subsection (1) as if a provision
of the FOI Act specified in the national regulations were omitted; or
(b)
provide that the FOI Act applies under subsection (1) as if an amendment
to the FOI Act made by a law of the Commonwealth, and specified in the
national regulations, had not taken effect; or
(c)
confer jurisdiction on a tribunal or court of a participating jurisdiction.
(4) In this
section—
FOI Act means the Freedom of Information Act 1982 of the Commonwealth, as in
force from time to time.
Division 3—Application of New South Wales State Records Act
265—Application of State Records Act
(1) The State Records
Act applies as a law of a participating jurisdiction for the purposes of the
National Quality Framework except to the extent that this Law applies to a
Regulatory Authority and the records of a Regulatory Authority.
(2) The national
regulations may modify the State Records Act for the purposes of this Law.
(3) Without limiting
subsection (2), the national regulations may—
(a)
provide that the State Records Act applies under subsection (1) as if a
provision of the State Records Act specified in the national regulations were
omitted; or
(b)
provide that the State Records Act applies under subsection (1) as if an
amendment to the State Records Act made by a law of New South Wales, and
specified in the national regulations, had not taken effect; or
(c)
confer jurisdiction on a tribunal or court of a participating jurisdiction.
(4) In this
section—
State Records Act means the State Records Act 1998 of New South Wales, as in
force from time to time.
Division 4—Registers
266—Register of approved providers
(1) The National
Authority must keep a register of approved providers.
(2) The register must
contain—
(a) the
name of each approved provider; and
(b) any
other prescribed information.
(3) The register of
approved providers may be inspected at the office of the National Authority
during normal office hours without charge.
(4) A person may
obtain a copy of, or extract from, the register of approved providers on
payment of the prescribed fee.
267—Register of education and care services
(1) The Regulatory
Authority must keep a register of approved education and care services
operating in the participating jurisdiction.
(2) The register of
approved education and care services must contain the following information:
(a) the
name of each service;
(b) the
name of the approved provider of each service;
(c)
except in the case of a family day care service, the address of each education
and care service premises;
(d) in
the case of an approved family day care service, the address of the principal
office of the service;
(e) the
rating levels for each service;
(f) any
other prescribed information.
(3) The register of
approved education and care services may be inspected at the office of the
Regulatory Authority during normal office hours without charge.
(4) A person may
obtain a copy of, or extract from, the register of approved education and care
services on payment of the prescribed fee.
(5) The Regulatory
Authority must provide a copy of the register of approved education and care
services (as updated from time to time) to the National Authority and the
relevant Commonwealth Department.
269—Register of family day care educators, co-ordinators and assistants
(1) The approved
provider of a family day care service must keep a register at the principal
office of the service that contains the prescribed information in respect of
the following persons—
(a) each
family day care educator engaged by or registered with the service;
(b) each
family day care co-ordinator employed or engaged by the service;
(c) each
family day care educator assistant engaged by or registered with the service.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(2) The approved
provider must take reasonable steps to ensure that the information contained
in the register is accurate.
Penalty:
(a)
$2 200, in the case of an individual.
(b)
$11 400, in any other case.
(3) The approved
provider must provide any information on the register and any changes to the
information on the register to the Regulatory Authority on request within
24 hours of the Regulatory Authority's request.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
(4) The approved
provider must keep the register in accordance with the prescribed requirements
(if any).
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
Division 5—Publication of information
270—Publication of information
(1) The National
Authority and the Regulatory Authority may publish the following information
about approved providers, approved education and care services and nominated
supervisors:
(a) the
name of each provider, service or supervisor;
(b)
except in the case of approved family day care services, the address of each
education and care service premises;
(c) in
the case of approved family day care services, the address of the principal
office of each service;
(d) the
rating levels of each approved education and care service;
(e)
other prescribed information in respect of approved education and care
services.
(a) must
publish on its website the register of approved providers; and
(b) may
publish on its website the register of approved education and care services as
kept by a Regulatory Authority.
(3) The Regulatory
Authority must publish on its website the register of approved education and
care services kept by the Regulatory Authority.
(4) The relevant
Commonwealth Department is authorised to publish the register of approved
education and care services on a website kept by that department.
(5) The Regulatory
Authority may publish the prescribed information about—
(a)
enforcement actions taken under this Law, including information about
compliance notices, prosecutions, enforceable undertakings, suspension or
cancellation of approvals; and
(b) any
prescribed matters.
(6) Information
published under this section must not include information that could identify
or lead to the identification of an individual other than—
(a) an
approved provider or nominated supervisor; or
(b) a
person who is being prosecuted for an offence against this Law; or
(c) if
the Regulatory Authority is satisfied that it is in the public interest to do
so, a person with management or control of an education and care service.
Division 6—Disclosure of information
271—Disclosure of information to other authorities
(1) The National
Authority may disclose information in respect of an education and care service
for a purpose listed in subsection (4), to—
(a) a
relevant Commonwealth Government Department; or
(b) any
State or Territory Government Department; or
(c) any
Commonwealth, State or Territory public authority; or
(d) any
State or Territory local authority; or
(e) a
Regulatory Authority of a participating jurisdiction.
(2) The Regulatory
Authority may disclose information in respect of an education and care service
for a purpose listed in subsection (4), to—
(a) a
relevant Commonwealth Government Department; or
(b) any
State or Territory Government Department; or
(c) any
Commonwealth, State or Territory public authority; or
(d) any
State or Territory local authority; or
(e) a
Regulatory Authority of another participating jurisdiction.
(3) The National
Authority, the Regulatory Authority and any Government Department, public
authority or local authority may disclose information to each other in respect
of an education and care service for a purpose listed in subsection (4).
(4) The purposes for
disclosure of information under this section are—
(a) the
disclosure is reasonably necessary to promote the objectives of the national
education and care services quality framework; or
(b) the
disclosure is for the purposes of enabling or assisting the other entity to
perform or exercise any of its functions or powers under this Law; or
(c) the
disclosure is for the purposes of research or the development of National,
State or Territory policy with respect to education and care services; or
(d) the
disclosure is for a purpose relating to the funding of education and care
services; or
(e) the
disclosure is for a purpose relating to the payment of benefits or allowances
to persons using education and care services, provided the disclosure of
information is not otherwise prohibited by law.
(5) The Regulatory
Authority must disclose to the Regulatory Authorities of other participating
jurisdictions the suspension or cancellation of a working with children check,
working with children card or teacher registration of a nominated supervisor
of which it is notified under this Law.
(6) The Regulatory
Authority may disclose to the head of the government department responsible
for the administration of a working with children law, any prohibition notice
given under this Law as applying in any participating jurisdiction in respect
of the person.
(7) A disclosure of
information under this section is subject to Division 1 and any protocol
agreed for the purposes of this section by—
(a) the
National Authority, all participating jurisdictions and the Commonwealth; and
(b)
subject to any protocol referred to in paragraph (a), the National
Authority and the Regulatory Authority, or the National Authority, the
Regulatory Authority and any Regulatory Authority of another participating
jurisdiction.
(8) Information
disclosed under this section for the purpose of research or the development of
National, State or Territory policy with respect to education and care
services must not include information that could identify or lead to the
identification of an individual other than—
(a) an
approved provider or a nominated supervisor; or
(b) a
family day care educator who has been suspended from providing education and
care to children as part of a family day care service; or
(c) a
person to whom a prohibition notice applies; or
(d) a
person who is being prosecuted for an offence against this Law.
272—Disclosure of information to approved providers
(1) At the request of
an approved provider, the National Authority or the Regulatory Authority may
disclose the following information to the provider, if the National Authority
or Regulatory Authority considers on reasonable grounds that the provider
requires the information to comply with the provider's obligations under this
Law—
(a)
whether a person named in the request is subject to a prohibition notice given
under section 182;
(b)
whether a family day care educator named in the request has been suspended
from providing education and care to children as part of a family day care
service under section 178.
(2) A disclosure of
information under this section is subject to Division 1 and any protocol
agreed for the purposes of this section by—
(a) the
National Authority, all participating jurisdictions and the Commonwealth; and
(b)
subject to any protocol referred to in paragraph (a), the National
Authority and the Regulatory Authority, or the National Authority, the
Regulatory Authority and any Regulatory Authority of another participating
jurisdiction.
273—Duty of confidentiality
(1) An individual who
is, or who has been, a person exercising functions under this Law must not
disclose to another person protected information.
Penalty: $5 700.
(2) However,
subsection (1) does not apply if—
(a) the
information is disclosed in the exercise of a function under, or for the
purposes of, or in accordance with, this Law; or
(b) the
disclosure is authorised or required by any law of a participating
jurisdiction, or is otherwise required or permitted by law; or
(c) the
disclosure is with the agreement of the person to whom the information
relates; or
(d) the
information relates to proceedings before a court or tribunal and the
proceedings are or were open to the public; or
(e) the
information is, or has been accessible to the public, including because it was
published for the purposes of, or in accordance with, this Law; or
(f) the
disclosure is otherwise authorised by the Ministerial Council.
(3) In this
section—
protected information means information—
(a) that
is personal to a particular individual and that identifies or could lead to
the identification of the individual; and
(b) that
comes to a person's knowledge in the course of, or because of, the person
exercising functions under this Law.
Part 14—Miscellaneous
Division 1—Finance
274—Australian Children's Education and Care Quality Authority Fund
(1) The Australian
Children's Education and Care Quality Authority Fund is established.
(2) The Authority Fund
is a fund to be administered by the National Authority.
(3) The National
Authority may establish accounts with any financial institution for money in
the Authority Fund.
(4) The Authority Fund
does not form part of the consolidated fund or consolidated account of a
participating jurisdiction or the Commonwealth.
275—Payments into Authority Fund
There is payable into the Authority Fund—
(a) all
money provided by a participating jurisdiction or the Commonwealth for the
purposes of the Fund; and
(b) the
proceeds of the investment of money in the Fund; and
(c) all
grants, gifts and donations made to the National Authority, but subject to any
trusts declared in relation to the grants, gifts or donations; and
(d) all
money directed or authorised to be paid into the Fund by or under this Law,
any law of a participating jurisdiction or any law of the Commonwealth; and
(e) any
other money and property prescribed by the national regulations; and
(f) any
other money or property received by the National Authority in connection with
the exercise of its functions.
276—Payments out of Authority Fund
Payments may be made from the Authority Fund for the purpose of—
(a)
paying any costs or expenses, or discharging any liabilities, incurred by the
National Authority in the administration or enforcement of this Law or in the
performance of its functions or duties or the exercise of its powers; and
(b)
paying any remuneration or allowances payable under this Law by the National
Authority; and
(c)
allocating, transferring or reimbursing money to a participating jurisdiction
in accordance with the national regulations; and
(d) any
other payments recommended by the National Authority and approved by the
Ministerial Council.
277—Investment of money in Authority Fund
The National Authority may invest money in the Authority Fund in accordance
with the national regulations.
278—Financial management duties of National Authority
The National Authority must—
(a)
ensure that its operations are carried out efficiently, effectively and
economically; and
(b) keep
proper books and records in relation to the Authority Fund; and
(c)
ensure that expenditure is made from the Authority Fund for lawful purposes
only and, as far as possible, reasonable value is obtained for money expended
from the Fund; and
(d)
ensure that its procedures, including internal control procedures, afford
adequate safeguards with respect to—
(i)
the correctness, regularity and propriety of payments
made from the Authority Fund; and
(ii)
receiving and accounting for payments made to the
Authority Fund; and
(iii)
prevention of fraud or mistake; and
(e) take
any action necessary to ensure the preparation of accurate financial
statements in accordance with Australian Accounting Standards for inclusion in
its annual report; and
(f) take
any action necessary to facilitate the audit of those financial statements in
accordance with this Law; and
(g)
arrange for any further audit by a qualified person of the books and records
kept by the National Authority in relation to the Authority Fund, if directed
to do so by the Ministerial Council.
Division 2—Reporting
279—Annual report
(1) The Board must,
within 4 months after the end of each financial year, submit an annual report
of the National Authority for the financial year to the Ministerial Council.
(2) The annual report
must include—
(a) an
audited financial statement for the period to which the report relates; and
(b) a
report about the National Authority's performance of its functions under this
Law during the period to which the annual report relates; and
(c) an
assessment of the implementation and administration of the National Quality
Framework; and
(d) all
directions given to the National Authority by the Ministerial Council and the
Authority's response; and
(e) all
directions given to the Regulatory Authorities by the Ministerial Council and
the Regulatory Authorities' responses; and
(f) a
report on any committees established by the Board; and
(g) any
other matter determined by the Ministerial Council.
(3) The financial
statement is to be prepared in accordance with Australian Accounting
Standards.
(4) The financial
statement is to be audited by a public sector auditor and a report is to be
provided by the auditor.
(5) The Ministerial
Council may extend, or further extend, the period for submission of an annual
report to the Council by a total period of up to 3 months.
(6) In this
section—
public sector auditor means—
(a) the
Auditor-General (however described) of a participating jurisdiction or the
Commonwealth; or
(b) an
auditor employed, appointed or otherwise engaged by an Auditor-General of a
participating jurisdiction or the Commonwealth.
280—Tabling and publication of annual report
(1) The Ministerial
Council must make arrangements for the tabling of the annual report of the
National Authority, and the report of the public sector auditor with respect
to the financial statement in the report, in the Parliament of a participating
jurisdiction determined by the Ministerial Council.
(2) As soon as
practicable after the annual report has been tabled in the Parliament
determined under subsection (1), the National Authority must publish a
copy of the report on its website.
281—Other reporting
(1) The National
Authority may make any reports to the Ministerial Council that it considers
necessary in the performance of its functions.
(2) The Chairperson of
the Board must provide to the Ministerial Council any other reports and
documents and information relating to the operations of the National Authority
that the Ministerial Council requires.
(3) The Chairperson of
the Board may provide to the responsible Minister of a participating
jurisdiction and the Commonwealth Minister any reports and documents and
information relating to the operations of the National Authority that the
responsible Minister requires.
(4) The reports,
documents and information referred to in subsection (2) must be provided
within the time set by the Ministerial Council.
Division 3—Application of Commonwealth Ombudsman Act
282—Application of Commonwealth Ombudsman Act
(1) The Ombudsman Act
applies as a law of a participating jurisdiction for the purposes of this Law
except to the extent that this Law applies to a Regulatory Authority and the
employees, decisions, actions and records of a Regulatory Authority.
(2) For the purposes
of subsection (1), the Ombudsman Act applies—
(a) as
if a reference to the Commonwealth Ombudsman were a reference to the Education
and Care Services Ombudsman; and
(b) with
any other modifications made by the national regulations.
(3) Without limiting
subsection (2), the national regulations may—
(a)
provide that the Ombudsman Act applies under subsection (1) as if a
provision of the Ombudsman Act specified in the regulations were omitted; or
(b)
provide that the Ombudsman Act applies under subsection (1) as if an
amendment to the Ombudsman Act made by a law of the Commonwealth, and
specified in the regulations, had not taken effect; or
(c)
confer jurisdiction on a tribunal or court of a participating jurisdiction.
(4) In this
section—
Ombudsman Act means the Ombudsman Act 1976 of the Commonwealth, as in force
from time to time.
Division 4—Legal proceedings
283—Who may bring proceedings for an offence?
(1) The following
persons may bring proceedings for an offence under this Law:
(a) the
Regulatory Authority;
(b) a
person authorised by the Regulatory Authority;
(c) a
police officer.
(2) In a proceeding
for an offence against this Law or the regulations it must be presumed, in the
absence of evidence to the contrary, that the person bringing the proceeding
was authorised to bring it.
284—When proceedings may be brought
Subject to section 181(6), proceedings for an offence under this Law must
be commenced within 2 years of the date of the alleged offence.
285—Offences by bodies corporate
(1) If a body
corporate commits an offence against this Law, any person with management or
control of the body corporate who failed to exercise due diligence to prevent
the contravention that is the subject of the offence also commits that offence
and is liable to the penalty for that offence.
(2) The penalty for an
offence referred to in this section is the penalty applicable to an
individual.
286—Application of Law to partnerships and eligible associations and
other entities
(1) If this Law would
otherwise require or permit something to be done by a partnership, the thing
may be done by one or more of the partners on behalf of the partnership.
(2) If this Law would
otherwise require or permit something to be done by an eligible association,
the thing may be done by one or more of the members of the executive committee
on behalf of the association.
(3) If this Law would
otherwise require or permit something to be done by a prescribed entity, the
thing may be done by one or more of the persons with management or control of
the entity on behalf of the entity.
(4) An offence against
this Law that would otherwise be committed by the partnership is taken to have
been committed by each partner who is a person with management or control of
the partnership.
(5) An offence against
this Law that would otherwise be committed by an eligible association is taken
to have been committed by each person who is a person with management or
control of the association.
(6) An offence against
this Law that would otherwise be committed by a prescribed entity is taken to
have been committed by each person who is a person with management or control
of that entity.
(7) The penalty for an
offence that is taken to be committed under this section is the penalty
applicable to an individual.
287—Multiple holders of an approval
If more than one person holds a provider approval or service approval under
this Law each holder of the approval is jointly and severally responsible for
compliance with this Law.
288—Double jeopardy
If a person has been convicted or found guilty in another participating
jurisdiction for an offence against this Law as it applies in that
jurisdiction, proceedings cannot be brought in this jurisdiction against the
same person in respect of an offence concerning the same subject-matter.
289—Immunity
(1) A member of the
Board of the National Authority, a committee of the Board or a Ratings Review
Panel is not personally liable for anything done or omitted to be done in good
faith—
(a) in
the exercise of a power or the performance of a function under this Law; or
(b) in
the reasonable belief that the action or omission was in the exercise of the
power or the performance of the function under this Law.
(2) Any liability
resulting from an act or omission that would, but for subsection (1),
attach to an individual referred to in that subsection attaches instead to the
National Authority.
(3) The Regulatory
Authority (if an individual) or a member of the governing body of the
Regulatory Authority is not personally liable for anything done or omitted to
be done in good faith—
(a) in
the exercise of a power or the performance of a function under this Law; or
(b) in
the reasonable belief that the action or omission was in the exercise of the
power or the performance of the function under this Law.
(4) Any liability
resulting from an act or omission that would, but for subsection (3),
attach to an individual referred to in that subsection attaches instead to the
State.
290—Immunity—education law
(1) This section
applies if the Regulatory Authority becomes aware of misconduct by a
registered teacher or other person who could be subject to disciplinary action
under an education law of a participating jurisdiction.
(2) The Regulatory
Authority may refer the matter to the relevant disciplinary body under the
education law.
(3) If the Regulatory
Authority refers a matter under subsection (2), a prosecution cannot be
brought under this Law for an offence in relation to that matter.
291—Infringement offences
(1) An
authorised officer or other person authorised by the Regulatory Authority may
serve an infringement notice on a person for a contravention of—
(a)
section 172, 173, 176 or 269; or
(b)
offences against the national regulations that are prescribed for the purposes
of this section.
(2) The infringement
penalty for an offence for which an infringement notice may be served on a
person is the amount which is 10 per cent of the maximum penalty that could be
imposed on the person in respect of that offence.
(3) An infringement
notice must be in the form prescribed or contain the information prescribed by
the infringements law of this jurisdiction.
(4) Subject to this
section, the infringements law of this jurisdiction applies to infringement
notices served under this section in this jurisdiction.
(5) The payment of an
infringement penalty expiates the offence and is not to be considered
in—
(a)
assessing whether a person is a fit and proper person to be involved in the
provision of, or to be a supervisor of, an education and care service; or
(b)
assessing an approved education and care service under Part 5.
292—Evidentiary certificates
A certificate purporting to be signed by the chief executive officer of the
National Authority or by a Regulatory Authority and stating any of the
following matters is prima facie evidence of the matter:
(a) a
stated document is one of the following things made, given, issued or kept
under this Law:
(i)
an appointment, approval or decision;
(ii)
a notice, direction or requirement;
(iv)
a register, or an extract from a register;
(v)
a record, or an extract from a record;
(b) a
stated document is another document kept under this Law;
(c) a
stated document is a copy of a document mentioned in paragraph (a) or
(b);
(d) on a
stated day, or during a stated period, a stated person was or was not an
approved provider;
(e) on a
stated day, or during a stated period, an education and care service was or
was not an approved education and care service;
(f) on a
stated day, or during a stated period, an approval was or was not subject to a
stated condition;
(g) on a
stated day, an approval was suspended or cancelled;
(h) on a
stated day, or during a stated period, an appointment as authorised officer
was, or was not, in force for a stated person;
(i)
on a stated day, a stated person was given a stated
notice or direction under this Law;
(j) on a
stated day, a stated requirement was made of a stated person.
Division 5—Service of notices
293—Service of notices
(1) If this Law
requires or permits a notice to be served on a person, the notice may be
served—
(a) on
an individual by—
(i)
delivering it to the individual personally; or
(ii)
leaving it at, or by sending it by post to, the address
notified to the sender by the individual as an address at which service of
notices under this Law will be accepted or otherwise the address of the place
of residence or business of the individual last known to the person serving
the document; or
(iii)
sending it by facsimile transmission to a facsimile
number notified to the sender by the individual as an address at which service
of notices under this Law will be accepted; or
(iv)
sending it by email to an internet address notified to
the sender by the individual as an address at which service of notices under
this Law will be accepted; or
(b) on a
person other than an individual by—
(i)
leaving it at, or by sending it by post to, the address
notified to the sender by the person as an address at which service of notices
under this Law will be accepted or otherwise the address of the head office, a
registered office or the principal place of business of the person; or
(ii)
sending it by facsimile transmission to a facsimile
number notified to the sender by the person as an address at which service of
notices under this Law will be accepted; or
(iii)
sending it by email to an internet address notified to
the sender by the person as an address at which service of notices under this
Law will be accepted.
(2) Subsection (1)
applies whether the word "deliver", "give", "notify", "send" or "serve" or
another expression is used.
(3) Subsection (1)
does not affect the power of a court or tribunal to authorise service of a
notice otherwise than as provided in that subsection.
294—Service by post
If a notice authorised or required to be served (whether the word "deliver",
"give", "notify", "send" or "serve" or another expression is used) on a person
is served by post, service of the notice—
(a) may
be effected by properly addressing, prepaying and posting a letter containing
the document; and
(b) in
Australia or in an external Territory—is, unless evidence sufficient to
raise doubt is adduced to the contrary, taken to have been effected on the
fourth day after the letter was posted; and
(c) in
another place—is, unless evidence sufficient to raise doubt is adduced
to the contrary, taken to have been effected at the time when the letter would
have been delivered in the ordinary course of the post.
Division 6—False or misleading information
295—False or misleading information or documents
(1) A person must not
give the Regulatory Authority or an authorised officer under this Law any
information or document that the person knows is false or misleading in a
material particular.
Penalty:
(a)
$6 800, in the case of an individual.
(b)
$34 400, in any other case.
(2) Subsection (1)
does not apply in respect of the giving of a document, if the person when
giving the document—
(a)
informs the Regulatory Authority or authorised officer, to the best of the
person's ability, how it is false or misleading; and
(b)
gives the correct information to the Regulatory Authority or
authorised officer if the person has, or can reasonably obtain, the correct
information.
Division 7—Protection from reprisal
296—Definitions
In this Division—
protected disclosure means a disclosure of information or provision of
documents to the Regulatory Authority—
(a)
pursuant to a request under this Law; or
(b)
where the person making the disclosure has a reasonable belief that—
(i)
an offence against this Law has been or is being
committed; or
(ii)
the safety, health or wellbeing of a child or children
being educated and cared for by an education and care service is at risk;
serious detrimental action includes dismissal, involuntary transfer, loss of
promotion and demotion.
297—Protection from reprisal
(1) A person must not
take serious detrimental action against a person in reprisal for a protected
disclosure.
Penalty:
(a)
$11 400, in the case of an individual.
(b)
$57 400, in any other case.
(2) A person takes
serious detrimental action in reprisal for a protected disclosure if—
(a) the
person takes or threatens to take the action because—
(i)
a person has made, or intends to make, a protected
disclosure; or
(ii)
the person believes that a person has made or intends to
make the protected disclosure; or
(b) the
person incites or permits another person to take or threaten to take the
action for either of those reasons.
(3) In determining
whether a person takes serious detrimental action in reprisal, it is
irrelevant whether or not a reason referred to in subsection (2) is the
only or dominant reason as long as it is a substantial reason.
298—Proceedings for damages for reprisal
(1) A person who takes
serious detrimental action against a person in reprisal for a protected
disclosure is liable in damages to that person.
(2) The damages may be
recovered in proceedings as for a tort in any court of competent jurisdiction.
(3) Any remedy that
may be granted by a court with respect to a tort, including exemplary damages,
may be granted by a court in proceedings under this section.
(4) The right of a
person to bring proceedings for damages does not affect any other right or
remedy available to the person arising from the serious detrimental action.
299—Application for injunction or order
A person who believes that serious detrimental action has been taken or may be
taken against him or her in reprisal for a protected disclosure may apply to
the superior court for—
(a) an
order requiring the person who has taken the serious detrimental action to
remedy that action; or
(b) an
injunction.
300—Injunction or order
(1) If, on receipt of
an application under section 299, the superior court is satisfied that a
person has taken or intends to take serious detrimental action against a
person in reprisal for a protected disclosure, the court may—
(a)
order the person who took the serious detrimental action to remedy that
action; or
(b)
grant an injunction in any terms the court considers appropriate.
(2) The superior
court, pending the final determination of an application under
section 299, may—
(a) make
an interim order in the terms of subsection (1)(a); or
(b)
grant an interim injunction.
Division 8—National regulations
301—National regulations
(1) The Ministerial
Council may make regulations for the purposes of this Law.
(2) The national
regulations may provide for any matter that is required or permitted to be
prescribed or necessary or convenient to be prescribed for carrying out or
giving effect to this Law.
(3) Without limiting
subsection (1), the national regulations may provide for the following:
(a) fees
(including application fees and annual fees) for approvals and other things
done under this Law;
(b) the
indexation of fees;
(c)
standards for education and care services;
(d)
requirements for educational programs, including the quality of those programs
and their development, documentation and delivery;
(e)
requirements and standards to be complied with for the safety, health and
wellbeing of children being educated and cared for by an education and care
service;
(f)
requirements and standards to be complied with for safety, security,
cleanliness, comfort, hygiene and repair of premises, outdoor spaces, fencing,
gates, resources and equipment used for providing education and care services;
(g)
requirements and standards about the premises to be used to provide an
education and care service including siting, design, layout, space, security
and entitlement to occupy;
(h)
requirements and standards for the staffing of education and care services
including the recruitment (and conduct of criminal history or other security
checks) and the appointment of staff, performance improvement, professional
standards, professional development, numbers and qualifications of educators
(including minimum age and requirements concerning groups of children of
different ages and composition) and staffing rosters and arrangements;
(i)
requirements and standards about educators' relationships
with children, interactions and behaviour guidance and inclusion policies and
practice for education and care services;
(j)
requirements and standards for partnerships between education and care
services and the community in which they are located and the families of
children being educated and cared for by education and care services,
including requirements for services to link to other support services for
children and families;
(k)
requirements and standards as to the leadership and management of education
and care services including governance and fitness and propriety of all staff
members and volunteers, management of grievances and complaints and the
provision of information to families;
(l) the
records, policies and procedures to be kept by approved providers and family
day care educators including enrolment and attendance information;
(m)
requirements and standards about first aid and management of children's
medical conditions including—
(i)
the training of educators and staff members; and
(ii)
plans, policies and procedures used to manage medical
conditions and first aid; and
(iii)
the keeping and storage of first aid kits and
medications;
(n)
information required to be submitted for applications made under this Law;
(o)
requirements and standards for the provision and display of information by
approved providers;
(p) the
publication of information about enforcement actions taken under this Law,
including notice and review of proposals to publish information;
(q)
matters relating to the application of this Law to partnerships, eligible
associations or prescribed entities;
(r)
requirements relating to the receipt and payment and distribution of fees and
monetary penalties payable under this Law.
(4) The national
regulations—
(a) may
be of a general or limited application; and
(b) may
differ according to differences in time, place (including jurisdiction) or
circumstances; and
(c) may
differ according to the type or class of education and care service and the
ages of children being educated and cared for by a service; and
(d) may
exempt any education and care service or any type or class of education and
care service from complying with all or any of the regulations; and
(e) may
leave any matter or thing to be from time to time determined, applied,
dispensed with or regulated by a Regulatory Authority; and
(f) may
apply, adopt or incorporate by reference any document either—
(i)
as in force at the date the national regulations come
into operation or at any date before then; or
(ii)
wholly or in part or as amended by the national
regulations; and
(g) may
impose penalties not exceeding $2 200 for offences against the national
regulations.
302—Publication of national regulations
(1) The national
regulations are to be published on the NSW Legislation website in accordance
with Part 6A of the Interpretation Act 1987 of New South Wales.
(2) A regulation
commences on the day or days specified in the regulation for its commencement
(being not earlier than the date it is published).
303—Parliamentary scrutiny of national regulations
(1) The member of the
Ministerial Council representing a participating jurisdiction is to make
arrangements for the tabling of a regulation made under this Law in each House
of the Parliament of the participating jurisdiction.
(2) A committee of the
Parliament of a participating jurisdiction may consider, and report to the
Parliament about, the regulation in the same way the committee may consider
and report to the Parliament about regulations made under Acts of that
jurisdiction.
(3) A regulation made
under this Law may be disallowed in a participating jurisdiction by a House of
the Parliament of that jurisdiction in the same way, and within the same
period, that a regulation made under an Act of that jurisdiction may be
disallowed.
304—Effect of disallowance of national regulation
(1) If a regulation
ceases to have effect under section 303 any law or provision of a law
repealed or amended by the regulation is revived as if the disallowed
regulation had not been made.
(2) The restoration or
revival of a law under subsection (1) takes effect at the beginning of
the day on which the disallowed regulation by which it was amended or repealed
ceases to have effect.
(3) A reference in
this section to the repeal or amendment of a law or a provision of a law
extends to the revocation or variation of a regulation or a provision of a
regulation.
Part 15—Transitional provisions
Division 1—Introductory
305—Definitions
In this Part—
declared approved family day care service , in relation to a participating
jurisdiction, means an education and care service that is declared by a law of
that jurisdiction to be a declared approved family day care service for the
purposes of this Law;
declared approved family day care venue , in relation to a participating
jurisdiction, means a place other than a residence that is declared by a law
of that jurisdiction to be a declared approved family day care venue for the
purposes of this Law;
declared approved provider , in relation to a participating jurisdiction,
means a person or a person in a class of persons declared by a law of that
jurisdiction to be a declared approved provider for the purposes of this Law;
declared approved service , in relation to a participating jurisdiction, means
an education and care service that is declared by a law of that jurisdiction
to be a declared approved service for the purposes of this Law;
declared certified supervisor , in relation to a participating jurisdiction,
means a person or a person in a class of persons declared by a law of that
jurisdiction to be a declared certified supervisor for the purposes of this
Law;
declared compliance notice , in relation to a participating jurisdiction,
means an order or notice under a former education and care services law that
is declared by a law of that jurisdiction to be a declared compliance notice
for the purposes of this Law;
declared enforceable undertaking , in relation to a participating
jurisdiction, means an undertaking entered into under a former education and
care services law that is declared by a law of that jurisdiction to be a
declared enforceable undertaking under this Law;
declared nominated supervisor , in relation to a participating jurisdiction,
means a person or a person in a class of persons declared by a law of that
jurisdiction to be a declared nominated supervisor for the purposes of this
Law;
declared out of scope service , in relation to a participating jurisdiction,
means an education and care service—
(a) for
which a former approval was not required under a former education and care
services law; and
(b) that
is declared by a law of that jurisdiction to be a declared out of scope
service for the purposes of this Law;
former approval , in relation to a participating jurisdiction, means an
approval, licence or other authorisation under a former education and care
services law that is declared by a law of that jurisdiction to be a former
approval for the purposes of this Law;
scheme commencement day means the day on which Part 2, 3 and 4 of this
Law commence.
Division 2—Education and care services
306—Approved provider
(1) Any person who
immediately before the scheme commencement day was a declared approved
provider is taken to be an approved provider under this Law.
(2) Subsection (1)
does not apply if the declared approved provider is a prescribed ineligible
person.
(3) Subsection (1)
does not apply to a declared approved provider whose former approval was
suspended under the former education and care services law immediately before
the scheme commencement day because the provider was not a fit and proper
person (however described) to operate the declared approved service.
(4) If a declared
approved provider is a trust, the trustee or trustees of the trust are taken
to be an approved provider under this Law.
(5) The trust must,
within 30 days after the scheme commencement day, notify the Regulatory
Authority of the identity of the trustees of the trust.
(6) If a notice is not
given under subsection (5) within the required period, each trustee of
the trust ceases to be an approved provider under this Law at the end of that
period.
(7) If a person is
taken under this section to be an approved provider, the person is taken to be
the holder of a provider approval for the purposes of this Law.
(8) If a person is
taken under this section to hold a provider approval, any conditions of the
former approval relating to that person are taken to be conditions of the
provider approval unless they are inconsistent with this Law.
(9) The Regulatory
Authority must, on or before 30 June 2012, provide each person who is
taken under this section to be the holder of a provider approval with a copy
of the provider approval setting out the relevant matters in section 20.
307—Service approvals
(1) Any person who
immediately before the scheme commencement day held a former approval in
respect of a declared approved service (other than a declared approved family
day care service) is taken to hold a service approval in respect of that
service under this Law.
(2) Any person who
immediately before the scheme commencement day held a former approval with
respect to a declared approved family day care service is taken to hold a
service approval for that family day care service under this Law.
(3) Subsections (1)
and (2) do not apply if the person is a prescribed ineligible person.
(4) If
subsection (1) or (2) applies, the declared approved service is taken
from the scheme commencement day to be an approved education and care service.
(5) This section does
not apply to a former approval that was under suspension under the former
education and care services law immediately before the scheme commencement day
because the person who held that approval was not a fit and proper person
(however described) to operate the declared approved service.
(6) If a former
approval was under suspension under the former education and care services law
immediately before the scheme commencement day for a reason other than the
reason in subsection (5), the service approval for the education and care
service under this Law is taken to be suspended under this Law for the period
of the suspension.
(7) The Regulatory
Authority must determine before the expiry of the period of suspension
referred to in subsection (6) (other than for a voluntary suspension)
whether—
(a) the
suspension should be cancelled or a further period of suspension should be
imposed; or
(b) the
service approval should be cancelled.
(8) Any conditions
imposed on the former approval under the former education and care services
law are taken to be conditions on the service approval unless the conditions
are inconsistent with this Law.
(9) The Regulatory
Authority must, on or before 30 June 2012, provide each person who is taken
under this section to hold a former approval in respect of a declared approved
service with a copy of the service approval for the service setting out the
relevant matters in section 52.
308—Approved family day care venues
A declared approved family day care venue existing under a former education
and care services law immediately before the scheme commencement day is taken
on and after the scheme commencement day to be an approved family day care
venue under this Law.
309—Approval of declared out of scope services
A person who operated a declared out of scope service immediately before the
scheme commencement day is taken under this Law to hold a provider approval
and a service approval for the declared out of scope service for the period
from and including 1 January 2012—
(a) to
30 June 2012, unless paragraph (b) applies; or
(b) if
the person applies under this Law to the Regulatory Authority for a provider
approval and for a service approval and the applications are received by the
Regulatory Authority on or before 30 June 2012, to the date on which
those applications are finally determined under this Law.
310—Application for service waiver or temporary waiver
(1) This section
applies to an education and care service that was exempt under a former
education and care services law from a requirement of that law.
(2) The education and
care service is taken to comply with an equivalent requirement under this Law
for the period from and including 1 January 2012—
(a) to
31 March 2012, unless paragraph (b) applies; or
(b) if
the provider of the education and care service applies to the Regulatory
Authority under this Law for a temporary waiver or service waiver under this
Law in respect of that requirement and the application is received by the
Regulatory Authority on or before 31 March 2012, to the date on
which the application is finally determined under this Law.
311—Existing applicants
(1) This section
applies if a person has made an application for a former approval under a
former education and care services law in respect of an education and care
service before the scheme commencement day.
(2) The applicant is
taken to be an applicant for a provider approval and a service approval under
this Law.
(3) The Regulatory
Authority may—
(a) ask
the applicant for more information; and
(b)
inspect—
(i)
the premises of the service and the offices of the
applicant; and
(ii)
any documents relating to the applicant; and
(c)
exercise any power under section 14 or section 46 in relation to the
application.
(4) This section does
not apply if the applicant is a prescribed ineligible person.
312—Existing multiple approvals to merge
(1) If the holder of a
former approval held more than one former approval in respect of the same
premises, the former approvals are taken to be one service approval in respect
of those premises for the purposes of this Law.
(2) This section does
not apply to a former approval for a family day care service.
(3) This section does
not apply to a former approval to which section 311 applies.
313—Display of accreditation and rating
(1) This section
applies to a declared approved service that is taken under this Part to be an
approved education and care service.
(2) The approved
provider must display the provisional rating of that approved education and
care service in accordance with section 172 until a first rating
assessment is completed and a rating level given to the service after that
assessment is published under Part 5.
(3) If the education
and care service was accredited by the National Child Care Accreditation
Council before the scheme commencement day, the approved provider of the
education and care service must continue to display that accreditation at the
service together with the provisional rating until a first rating assessment
is completed and a rating (other than a provisional rating) given to the
service after that assessment is published under Part 5.
314—Effect of non-compliance in 3 years before scheme commencement day
(1) In determining
whether to suspend or cancel under Part 2 a provider approval referred to
in section 306, the Regulatory Authority—
(a) may
take into account any non-compliance by the approved provider with a former
education and care services law that occurred in the period of 3 years
immediately preceding the scheme commencement day; but
(b) must
not suspend or cancel the provider approval solely on the basis of that
non-compliance.
(2) In determining
whether to suspend or cancel under Part 3 a service approval referred to
in section 307(1), the Regulatory Authority—
(a) may
take into account any non-compliance by the approved provider with a former
education and care services law that occurred in the period of 3 years
immediately preceding the scheme commencement day; but
(b) must
not suspend or cancel the service approval solely on the basis of that
non-compliance.
315—Certified supervisors
(1) A person who was a
declared certified supervisor immediately before the scheme commencement day
is taken to be a certified supervisor under this Law.
(2) The Regulatory
Authority must, on or before 30 June 2012, provide each person who is taken
under this section to be a certified supervisor with a copy of the supervisor
certificate setting out the relevant matters in section 116.
(3) Subsection (1)
applies even if the declared certified supervisor was suspended immediately
before the scheme commencement day but the person's supervisor certificate
under this Law is taken to be suspended for the remaining period that the
person was suspended as a declared certified supervisor.
316—Nominated supervisors
(1) A person who
immediately before the scheme commencement day was a declared nominated
supervisor for a declared approved service that is taken under
section 307 to be an approved education and care service is taken to be
the nominated supervisor for that approved education and care service.
(2) Subsection (1)
ceases to apply if—
(a) the
approved provider does not confirm the nomination within a time specified by
the Regulatory Authority after being requested in writing to do so by the
Regulatory Authority; or
(b) the
person advises the Regulatory Authority in writing that the person does not
consent to being the nominated supervisor of the education and care service.
317—Notices and undertakings
(1) A declared
compliance notice in force under a former education and care services law
immediately before the scheme commencement day is taken on and after the
scheme commencement day to be a compliance notice under this Law.
(2) A declared
enforceable undertaking in force under a former education and care services
law immediately before the scheme commencement day is taken on and after the
scheme commencement day to be an enforceable undertaking under this Law.
318—Offences
The Regulatory Authority may bring or continue a prosecution for any offence
under a former education and care services law in relation to a service that
is taken to be an education and care service.
Division 3—National Authority
319—First meeting of National Authority
Despite section 239, the Ministerial Council is to convene the first
meeting of the Board of the National Authority.
320—First chief executive officer of National Authority
(1) Despite
section 248, the first chief executive officer of the National Authority
is to be appointed by the Chairperson of the Ministerial Council on the basis
of a consensus recommendation of the Ministerial Council.
(2) The appointment is
to be on the remuneration and other terms and conditions set out in the
appointment.
(3) Any amount payable
to the first chief executive officer under the appointment is payable from the
Authority Fund.
321—First annual report of National Authority
Despite section 279, the first annual report of the National
Authority—
(a) is
to be made within 4 months after the end of the financial year ending
30 June 2012; and
(b) is
to cover the period from the first meeting of the National Authority until
30 June 2012.
Division 4—General
322—Information retention and sharing
(1) The Regulatory
Authority must, in accordance with the national regulations, keep all
prescribed information held by the Regulatory Authority (or any regulatory
body under the former education and care services law) in relation to—
(a) the
licensing or approval of education and care services under the former
education and care services law; and
(b) the
monitoring and enforcement of the former education and care services law in
relation to education and care services.
(2) Information
referred to in subsection (1) may be—
(a) used
for information purposes under this Law; and
(b) held
by the Regulatory Authority in any form; and
(c) made
available to the Regulatory Authorities of other participating jurisdictions
and the National Authority.
(3) A provider of an
education and care service existing immediately before the scheme commencement
day must, in accordance with the national regulations—
(a)
continue to keep all documents required under the former education and care
services law to be kept in respect of the service; and
(b) make
those documents available to the Regulatory Authority on request.
Penalty:
(a)
$4 500, in the case of an individual.
(b)
$22 900, in any other case.
323—Approved learning framework
A declared approved learning framework is taken to be an approved learning
framework under this Law.
324—Savings and transitional regulations
(1) The national
regulations may contain provisions ( savings and transitional provisions ) of
a savings or transitional nature—
(a)
consequential on the enactment of this Law in a participating jurisdiction; or
(b) to
otherwise allow or facilitate the change from the operation of a former
education and care services law of a participating jurisdiction to the
operation of this Law.
(2) Savings and
transitional regulations may have retrospective operation to a day not earlier
than the day on which section 1 of this Law commences.
Division 5—Transitional provisions—Education and Care Services
National Law Amendment Act 2017
325—Definitions
In this Division—
2017 Act means the Education and Care Services National Law Amendment Act 2017
;
commencement day , in relation to a participating jurisdiction, means the date
of commencement of this Division in that jurisdiction.
326—Approved family day care venues
(1) In this
section—
appointed day means the day that is 6 months after the commencement day;
formerly approved family day care venue means a family day care venue that,
immediately before the commencement day, was an approved family day care
venue.
(2) Subject to
subsection (3), a formerly approved family day care venue ceases to be an
approved family day care venue on the appointed day unless, before the
appointed day the Regulatory Authority, on application by the approved
provider under section 54 (as amended by the 2017 Act), approves the
venue as a family day care venue.
(3) If, before the
appointed day, the Regulatory Authority had not determined an application by
an approved provider under section 54 (as amended by the 2017 Act) for
approval of the venue, the formerly approved family day care venue continues
to be an approved family day care venue until the application is determined.
(4) Despite
section 54(5), the Regulatory Authority must make a decision on an
application made under section 54 for approval of a formerly approved
family day care venue within 6 months of receiving the application.
327—Declared approved family day care venues continue to be approved
Despite section 326, a declared approved family day care venue that was
taken under section 308 to be an approved family day care venue
continues, on and after the commencement day, to be an approved family day
care venue for the purposes of this Law.
328—Service approval condition requiring sufficient family day care
co-ordinators
(1) In this
section—
appointed day means the day that is 12 months after the commencement day.
(2) This section
applies to a family day care service if, immediately before the commencement
day—
(a) the
service was an approved family day care service; and
(b) the
service approval included a condition referred to in section 51(2).
(3) Despite the
commencement of the 2017 Act, sections 51(2) and 163, as in force
immediately before the commencement day, continue to apply to the approved
family day care service until the appointed day, unless the Regulatory
Authority earlier amends the service approval to impose a condition under
section 55A.
329—Service approval condition requiring minimum number of family day
care co ordinators
(1) This section
applies to a family day care service if, immediately before the commencement
day—
(a) the
service was an approved family day care service; and
(b) the
service approval included a condition requiring the service provide a
specified minimum number of family day care co-ordinators.
(2) Despite the
commencement of the 2017 Act, section 163, as in force immediately before
the commencement day, and the condition requiring the service provide a
specified minimum number of family day care co ordinators continue to apply to
the approved family day care service until the condition is amended under
section 54 or 55.
Division 6—Further transitional provisions—Education and Care
Services National Law Amendment Act 2017
332—Definitions
In this Division—
2017 Act means the Education and Care Services National Law Amendment Act
2017;
commencement day , in relation to a participating jurisdiction, means the date
of commencement of this Division in that jurisdiction.
333—Partial assessment and re-rating
(1) This section
applies to an approved education and care service that has been assessed and
rated against the National Quality Standard, as in force immediately before
the commencement day, whether that assessment and rating occurred before, on
or after the commencement day.
(2) Despite
section 138, the Regulatory Authority may only reassess an aspect or
element of the approved education and care service after the relevant day if
the approved education and care service has been reassessed against the
National Quality Standard as in force on and after the commencement day.
(3) Despite
section 139(1), an approved provider may only apply for reassessment and
rerating of an aspect or element of the approved education and care service
after the relevant day if the approved education and care service has been
reassessed against the National Quality Standard, as in force on and after the
commencement day.
(4) In this
section—
relevant day means—
(a) in
relation to an approved education and care service that was assessed and rated
before the commencement day, the day that is 6 months after the commencement
day; or
(b) in
relation to an approved education and care service that was assessed and rated
after the commencement day, the day that is 6 months after the day on which
the rating for the service is published under section 160.
334—Application for highest rating level made before commencement day
(1) This section
applies if before the commencement day—
(a) an
approved provider had applied for an education and care service to be assessed
for the highest rating level under section 152; and
(b) the
application had not been determined.
(2) Despite its
substitution by the 2017 Act, section 152(5), as in force immediately
before the commencement day, continues to apply in respect of the application.
(3)
Section 153(2) applies for the purposes of the assessment of the approved
education and care service, as if a reference—
(a) to
the criteria published under subsection (1) were a reference to the
criteria published under subsection (1) immediately before the
commencement day; and
(b) to
the National Quality Standard and the national regulations were a reference to
the National Quality Standard and the national regulations as in force
immediately before the commencement day.
335—Highest rating level awarded before, or on application made before,
commencement day
(1) This section
applies in relation to an approved education and care service that was awarded
the highest rating level—
(a)
before the commencement day; or
(b)
after the commencement day on an application referred to in section 334.
(2)
Section 153(2) applies for the purposes of a reassessment under
section 157 of the approved education and care service, as if a
reference—
(a) to
the criteria published under subsection (1) were a reference to the
criteria published under subsection (1) immediately before the
commencement day; and
(b) to
the National Quality Standard and the requirements of the national regulations
were a reference to the National Quality Standard and the national regulations
as in force immediately before the commencement day.
(3) Despite its
amendment by the 2017 Act, section 158 as in force immediately before the
commencement day continues to apply to the revocation of the highest rating
level and for the purposes of that section—
(a) the
criteria to be met are the criteria published under section 153(1)
immediately before the commencement day; and
(b) the
overall rating level is to be determined in accordance with the National
Quality Standard as in force immediately before the commencement day.
Division 7—Transitional provisions—Early Childhood Legislation
Amendment Act 2022
336—Transitional provision—notification of persons with management
or control of an education and care service
(1) For the purposes
of section 173(1)(b), a person who is a person with management or control
on the commencement day is taken to be appointed as a person with management
or control on that day.
(2)
Subsection (1) does not apply to a person who, immediately before the
commencement day, was a person with management or control within the meaning
of this Law as in force immediately before the commencement day.
(3) In this
section—
commencement day , in relation to a participating jurisdiction, means the day
on which section 5A as inserted by section 16 of the Early Childhood
Legislation Amendment Act 2022 of Victoria comes into operation in that
jurisdiction.
337—Transitional provision—assessment of provider approval
applications
(1) Section 14,
as amended by section 17 of the Early Childhood Legislation Amendment
Act 2022 of Victoria, applies in relation to—
(a) an
application for a provider approval that was made but had not been determined
before the commencement day; and
(b) a
reassessment that had commenced but had not yet been completed before the
commencement day.
(2) In this
section—
commencement day , in relation to a participating jurisdiction, means the day
on which the amendments made by section 17 of the Early Childhood
Legislation Amendment Act 2022 of Victoria comes into operation in that
jurisdiction.
338—Transitional provision—service waivers
(1) Despite the
commencement of section 27 of the Early Childhood Legislation Amendment
Act 2022 of Victoria—
(a) this
Law as in force immediately before the commencement day continues to apply in
respect of a service waiver that was in force immediately before the
commencement day; and
(b) the
service waiver continues in force on and after the commencement day until it
is revoked by the Regulatory Authority.
(2) In this
section—
commencement day , in relation to a participating jurisdiction, means the day
on which the amendments made by section 27 of the Early Childhood
Legislation Amendment Act 2022 of Victoria comes into operation in that
jurisdiction.
339—Transitional provision—temporary waivers
(1) Despite the
commencement of section 31 of the Early Childhood Legislation Amendment
Act 2022 of Victoria—
(a) this
Law as in force immediately before the commencement day continues to apply in
respect of a temporary waiver that was in force immediately before the
commencement day; and
(b) the
temporary waiver continues in force on and after the commencement day until
the earliest of the following:
(i)
the temporary waiver expires;
(ii)
the temporary waiver is revoked by the Regulatory
Authority.
(2) In this
section—
commencement day , in relation to a participating jurisdiction, means the day
on which the amendments made by section 31 of the Early Childhood
Legislation Amendment Act 2022 of Victoria comes into operation in that
jurisdiction.