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Education and Care Services National
Law Amendment Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
General
The Education and Care Services National Law Amendment Bill 2017
amends the Education and Care Services National Law (the National Law) in
the Schedule to the Education and Care Services National Law Act 2010.
The amendments to the National Law form part of reforms to the National
Quality Framework (the NQF) identified as part of the 2014 Review of the
National Partnership Agreement on the National Quality Agenda for Early
Childhood Education and Care (the Review). The recommendations of the
Review, including the amendments to the National Law, were approved by
the Education Council on 31 January 2017.
The amendments identified by the Review improve the NQF by--
• streamlining the assessment and rating process for education
and care services by implementing a revised National Quality
Standard (the NQS) that retains the benefits of the NQS as
a driver of service quality improvement. The changes also
clarify concepts within the NQS to improve consistency in
outcomes and interpretation; and
• strengthening the National Law as it applies to family day care
services to improve the quality of education and care provided
to children by--
• requiring approved providers of family day care
services to only operate from a jurisdiction where
they hold a service approval and to have a principal
office in each jurisdiction in which they operate; and
581097 1 BILL LA INTRODUCTION 21/2/2017
• ensuring approved providers of family day care
services engage a minimum number of family day
care co-ordinators based on the number of family
day care educators at the service; and
• clarifying that a family day care service can only
operate from an approved family day care venue in
exceptional circumstances and where the Regulatory
Authority has given approval; and
• requiring approved providers of family day care
services to notify the Regulatory Authority of a change
in the location of its principal office prior to the change
and provide proof of occupancy of the new premises;
and
• requiring family day care educators to notify
approved providers of changes to the circumstances
at the educator's residence and of other information
such as serious incidents and complaints alleging
serious incidents or breaches of the National Law; and
• clarifying the provisions regarding the role and use of
family day care educator assistants; and
• allowing authorised officers to enter a family day
care residence to investigate an offence if there is
a reasonable belief that a service is operating at the
time of entry.
• removing supervisor certificate requirements to reduce the
compliance burden for education and care services; and
• simplifying and streamlining the National Law to address
unnecessary administrative processes thereby decreasing
administrative costs for the Regulatory Authority of
participating jurisdictions and reducing the regulatory
burden on services; and
• making minor and technical changes to specific provisions in
the National Law to clarify their operation and effect.
The Bill also makes amendments to the Children's Services Act 1996 as a
consequence of several of the amendments to the National Law.
2
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill.
Subclause (1) sets out the main purposes of the Bill, namely to
amend the Education and Care Services National Law--
• to improve the regulation of education and care
services, including family day care services and
educators at those services;
• to repeal the provisions relating to certified supervisors;
• to enhance the enforcement of the National Law,
including by making further provision for enforceable
undertakings and powers of entry into premises;
• to improve the information-sharing arrangements
between regulators, government entities and approved
providers under the National Law; and
• to otherwise improve the operation of the National Law.
Subclause (2) provides that the Bill also makes consequential
amendments to the Children's Services Act 1996.
Clause 2 is the commencement provision, which provides for the Bill to
come into operation on a day or days to be proclaimed.
The National Law is a national applied law scheme, one of the
aims of which is to establish a nationally consistent framework
for the regulation of education and care services in Australia.
The National Law is adopted by the majority of participating
jurisdictions through the enactment of legislation that applies as
a law of the relevant state or territory the National Law set out
in the Schedule to the Principal Act as in force from time to time.
Any amendments made to the National Law by the Victorian
Parliament will therefore automatically apply to the National
Law as in force in those participating jurisdictions.
Rather than applying the National Law as a law of its own,
Western Australia has enacted a law which mirrors or
substantially corresponds to the National Law. Western Australia
will therefore need to make corresponding amendments to its
own enactment to mirror those contained in the Bill.
3
South Australian and the Northern Territory adopt the National
Law by setting it out in full in Schedules to enactments of
those jurisdictions. In order to give effect to the amendments
contained in the Bill, the Governor of South Australia and the
Administrator of the Northern Territory will need to make
regulations which make corresponding amendments to the
respective Schedules.
In the interests of maintaining a nationally consistent legislative
framework, the majority of the amendments in the Bill must
commence across Australia at the same time. It would therefore
be inappropriate to insert a default commencement date in
clause 2 as it would be inappropriate to assume that those
jurisdictions which need to make corresponding amendments
to their local laws will be able to do so by a specified date.
Clause 3 provides that the Education and Care Services National Law
set out in the Schedule to the Education and Care Services
National Law Act 2010 is referred to as the National Law
throughout the Bill.
Part 2--Amendment of Education and
Care Services National Law
Clause 4 amends section 5(1) of the National Law by inserting,
substituting and repealing various definitions or expressions
used in the National Law. In particular, clause 4--
• inserts a definition family day care educator assistant
for the purposes of the new family day care register
requirements in new section 269; and
• inserts a definition of person in day-to-day charge; and
• inserts a definition of prohibition notice, which
covers the different types of prohibition notices that
may be issued under current section 182(1) and new
section 182(3); and
• inserts a definition of serious incident, which
corresponds to the existing definition in section 174(5)
(which is being repealed by clause 43(2) of the Bill);
and
4
• substitutes the definition of approved family day care
venue as a result of the amendments to the National
Law made by clauses 11(2), 13 and 16 of the Bill; and
• substitutes the definition of family day care service to
clarify that, in addition to having 2 or more educators
who provide education and care to children, the service
must operate from at least 2 or more residences; and
• substitutes the definition of Ministerial Council to
clarify that, for the purposes of the definition, the
Council (as opposed to the Ministers who constitute the
Council) must also be responsible for early childhood
education and care matters; and
• substitutes the definition of nominated supervisor
to remove the reference to certified supervisor as a
consequence of the removal of the provisions relating
to certified supervisors; and
• substitutes the definition of office to clarify that the
term, in relation to a family day care service, also
includes the principal office of the service; and
• amends the definition of staff member to clarify that
more than one nominated supervisor may be nominated
for an education and care service; and
• repeals the definitions of certified supervisor and
supervisor certificate as a consequence of the removal
of the provisions relating to certified supervisors.
Clause 5 inserts new section 13(2)(c) and (d) into the National Law.
Section 13(2) of the National Law sets out certain factors that
the Regulatory Authority may have regard to when determining
whether an applicant or a person with management or control
of a service to be operated by the applicant is a fit and proper
person, for the purposes of an application for a provider approval
New section 13(2)(c) of the National Law provides that the
Regulatory Authority may also take into account whether
the person has the management capability to operate an
education and care service in accordance with the National Law.
The expression "management capability" is already used in
5
section 47 of the National Law in relation to the assessment of an
applicant for service approval.
New section 13(2)(d) of the National Law provides that
the Regulatory Authority may also take into account any
sanction imposed under section 200, suspension imposed
under section 201A or infringement notice issued under
section 219TSI, of the A New Tax System (Family Assistance)
(Administration) Act 1999 of the Commonwealth in relation
to a child care service approved under that Act and operated by
the person or in relation to which the person was a person with
management or control.
Clause 6 amends section 14(2) of the National Law. Section 14(2)
provides that, if the Regulatory Authority requests further
information for the purposes of assessing a person's fitness
and propriety under section 14(1), the time taken to provide
the requested information is not included in the 60 day period
in which the Regulatory Authority is required to determine
an application for a provider approval under section 15(3).
The amendment ensures that section 14(2) uses consistent
language with other similar provisions in the National Law
(for example, sections 45(2), 110(2) and 154(2)) without
changing the effect of the provision.
Clause 7 amends section 27 of the National Law to empower the
Regulatory Authority to accept an enforceable undertaking
from the approved provider, rather than suspend the provider
approval, in certain circumstances.
Section 25(a) of the National Law permits the Regulatory
Authority to suspend a provider approval where the approved
provider has been charged with an indictable offence or
circumstances indicate that the approved provider is not a fit
and proper person to be involved in the provision of an
education and care service.
After going through a show cause notice process under
section 26, current section 27 provides that the Regulatory
Authority may either suspend or decide not to suspend the
provider approval.
New section 27(a) empowers the Regulatory Authority to
accept an enforceable undertaking from the approved provider
if a ground referred to in section 25(a) exists.
6
New section 27(b) provides that, where any ground in section 25
(including in paragraph (a)) exists, the Regulatory Authority will
retain the discretion to suspend or decide not to suspend the
provider approval after considering the approved provider's
response to the show cause notice given under section 26.
Clause 8 amends section 39 of the National Law.
Section 39 relates to notification of the death of an approved
provider and continued operation of an education and care
service in those circumstances. Clause 8 removes references
to certified supervisors as a consequence of the repeal of Part 4,
and to reflect that more than one nominated supervisor may be
nominated for an education and care service.
Clause 9 substitutes section 41(4)(b) of the National Law to remove the
limit on the number of times that the Regulatory Authority may
extend, or further extend, a provider approval granted under
section 41 to the legal personal representative or guardian of an
incapacitated approved provider.
Clause 10 amends section 43(2) of the National Law to clarify that
more than one nominated supervisor may be nominated for an
education and care service. Section 43(2) will provide that an
approved provider may only apply for a service approval if the
approved provider will be responsible for the management of
all the nominated supervisors of the service.
Clause 11 amends section 44 of the National Law.
Current section 44(1)(d) requires an application for a service
approval to nominate a certified supervisor to be the nominated
supervisor for the service.
New sections 44(1)(d) and 44(1)(da) are consequential on
repeal of provisions relating to certified supervisors, respectively
requiring an application for a service approval to nominate one
or more individuals to be nominated supervisors of the service
and include the written consent to the nomination from each
nominated individual (other than the approved provider).
Subclause (2) substitutes section 44(3) of the National Law to
clarify the requirements for the approval of family day care
venues. It is currently unclear whether the responsibility for
approving family day care venues lies with the approved
provider or the Regulatory Authority.
7
New section 44(3) allows an approved provider to request,
as part of an application for a service approval of a family
day care service, that the Regulatory Authority approve a
place (other than a residence) as a family day care venue.
The Regulatory Authority may approve a place under new
section 50A (which is inserted by clause 13 of the Bill).
Clause 12 substitutes section 47(1)(e) of the National Law to remove the
reference to a certified supervisor and reflect that more than
one nominated supervisor may be nominated for a service.
New section 47(1)(e) requires the Regulatory Authority to
consider if all individuals nominated as nominated supervisors
(except for those who are also the approved provider) have
consented in writing to the nomination (which is a requirement
under section 44 of the National Law).
Clause 13 inserts new section 50A into the National Law.
New section 50A empowers the Regulatory Authority, on request
of an approved provider under new section 44(3), to approve a
place (other than a residence) to be an approved family day care
venue in exceptional circumstances. The approval is given at the
same time the service approval for the family day care service is
granted under section 48(1).
Clause 14 amends section 51 of the National Law, which attaches various
conditions to service approvals for an education and care service
granted under section 48(1)(a). A breach of a condition under
section 51 is an offence pursuant to section 51(8) and attracts a
maximum penalty of $10 000 for an individual and $50 000 in
any other case.
Subclause (1) substitutes section 51(2) of the National Law and
inserts new section 51(2A). Section 51(2) currently subjects a
service approval for a family day care service to a condition that
requires the approved provider to ensure that--
• the service has sufficient family day care co-ordinators
appointed to monitor and support family day care
educators (paragraph (a)); and
• the family day care educators of the service are
adequately monitored and supported (paragraph (b)).
8
The amendment removes the condition in current section
51(2)(a), which is being replaced by new requirements in relation
to the minimum number of family day care co-ordinators that
must be engaged by a family day care service which are being
introduced by amendments to section 163 of the National Law.
New section 51(2) continues to subject family day care services
to the condition set out in current section 51(2)(b).
New section 51(2A) introduces an additional condition to
which service approvals of a family day care service are
subjected. The new condition limits the geographic operation
of a family day care service by requiring all family day care
residences and approved family day care venues (if any) of the
service to be located in the jurisdiction in which the service
approval was granted.
New section 51(4A) imposes a condition on the service approval
requiring the approved provider to ensure that the service does
not educate and care for more than the maximum number of
children allowed by the service approval.
New section 51(4B) provides an exception to new
subsection (4B) where a child or children from the same
family are being educated and cared for by the service in an
emergency and the approved provider is reasonably satisfied
that exceeding the maximum allowable number of children
will not affect the health, safety and wellbeing of other children
attending the service.
Clause 15 amends section 52(b) of the National Law, to clarify that the
reference to the principal office in that provision is a reference
to the principal office of the service.
Clause 16 amends section 54 of the National Law, which currently allows
the approved provider of an education and care service to apply
to the Regulatory Authority for an amendment to the service
approval.
Subclause (1) inserts new section 54(1A) into the National Law
to allow an approved provider to request, in an application for
an amendment to a service approval of a family day care service,
that the Regulatory Authority approve a place as a family day
care venue for the service.
9
Subclause (2) amends section 54(4) of the National Law.
Section 54(4) provides that, if the Regulatory Authority
requests further information for the purposes of determining
an application for an amendment to a service approval
under section 54(3), the time taken to provide the requested
information is not included in the 60 day period in which the
Regulatory Authority is required to determine the application
under section 54(5).
The amendment ensures that section 54(4) uses consistent
language with other similar provisions in the National Law
(for example, sections 45(2), 110(2) and 154(2)) without
change the effect of the provision.
Current section 54(8) provides that an amendment to a service
approval cannot change the location of the education and care
service. Subclause (3) creates an exception by inserting new
section 54(8A), which empowers the Regulatory Authority to
approve a place (other than a residence) to be an approved family
day care venue for that service in exceptional circumstances.
Clause 17 inserts new section 55A into the National Law.
Section 55 empowers the Regulatory Authority to amend a
service approval of an education and care service at any
time and without application from the approved provider.
New section 55A provides the Regulatory Authority with
the ability to amend a service approval to impose a stricter
requirement than the standard family day care co-ordinator
minimum number requirements in amended section 163 of
the National Law.
New section 55A(1) provides that the Regulatory Authority
is empowered under section 55 to amend a service approval
for a family day care service to impose a condition requiring
the approved provider to engage at least one qualified person
as a family day care co-ordinator for every 15 family day care
educators registered with the service.
New section 55A(2)(a) provides that the condition may only be
imposed if the family day care service has been operating for
more than 12 months. The minimum number of family day care
co-ordinators within the first 12 months of a family day care
service's operation will be prescribed in the National Regulations
for the purposes of new section 163.
10
New section 55A(2)(b) provides that the condition may only be
imposed if the Regulatory Authority has considered the approved
provider's capability and history of compliance with the National
Law and decided that the family day care educators of the service
are not being adequately monitored and supported.
New section 55A(3) provides that section 163 does not
apply to an approved provider of a family day care service
if the Regulatory Authority has imposed a condition under
section 55A(1). This is because the approved provider is
instead subject to penalty under section 51(8) for failure to
comply with a condition of the service approval.
New section 55A(4) provides that a person is a qualified
person under section 55A if the person meets the qualification
requirements prescribed in the national regulations. This is
consistent with the requirements of section 163(2).
Clause 18 substitutes section 56 of the National Law, which currently
requires the approved provider of an education and care
service to notify the Regulatory Authority of an intention to
change the nominated supervisor of the service (who must be
a certified supervisor). The changes remove the references to
certified supervisors in section 56 and clarify that more than
one nominated supervisor may be nominated for an education
and care service. The requirements for notification and the
content of the notice are otherwise unchanged.
Clause 19 inserts new section 56A into the National Law to require the
approved provider of an education and care service to notify
the Regulatory Authority, in writing, of a change to the name
or contact details of any nominated supervisor of the service.
Clause 20 amends section 62 of the National Law.
Sections 62(2) and 62(3) require the Regulatory Authority to
notify a transferor and transferee of a decision to intervene in the
transfer of a service approval at least 28 days before the date on
which the transfer is intended to take effect.
The clause inserts new section 62(5), which provides that the
time limit within which the notification must be given does not
apply where the Regulatory Authority has not been notified of
the intended transfer under section 59. This ensures that the
Regulatory Authority has sufficient time to consider the transfer
before deciding whether or not to intervene.
11
Clause 21 amends section 72 of the National Law to empower the
Regulatory Authority to accept an enforceable undertaking
from the approved provider, rather than suspend the service
approval, in certain circumstances.
Section 70 of the National Law sets out certain grounds on
which the Regulatory Authority may suspend a service approval
including, by virtue of paragraphs (a), (c) and (d) respectively,
where--
• the Regulatory Authority reasonably believes that it is
not in the best interests of children being educated and
cared for by the service if the service was to continue;
• the service is not being managed in accordance with the
National Law; and
• the service has been rated as not meeting the National
Quality Standard (and a waiver does not apply to the
service in respect of non-compliance and there has
been no improvement in the rating level).
After going through a show cause notice process under
section 71, section 72 provides that the Regulatory Authority
may either suspend or decide not to suspend the service approval.
New section 72(a) empowers the Regulatory Authority to accept
an enforceable undertaking from the approved provider if a
ground referred to in section 70(a), (c) or (d) exists.
New section 72(b) provides that, where any ground in section 70
exists (including in paragraphs (a), (c) or (d)), the Regulatory
Authority will retain the discretion to suspend or decide not to
suspend the service approval after considering the approved
provider's response to the show cause notice given under
section 71.
Clause 22 amends section 84(1) of the National Law to replace the
incorrect reference to section 81 with a reference to section 82,
to avoid doubt that the section applies to cancellation of a
service approval under section 82. Section 84 requires an
approved provider to notify parents of the suspension or
cancellation, if required to do so by the Regulatory Authority.
Clause 23 inserts new section 89(2) into the National Law. Part 3 of
Division 5 of the National Law allows approved providers to
apply to the Regulatory Authority for a service waiver of a
12
prescribed element of the National Quality Standard or
requirement of the national regulations (service waiver).
New section 89(2) clarifies that, if the Regulatory Authority
requests further information under section 89 in relation to an
application for a service waiver, the time period within which the
Regulatory Authority must, under section 91(2), determine an
application does not include the time it takes for the applicant to
satisfy the request. This ensures that the Regulatory Authority
has sufficient time to properly consider and determine the
application.
Clause 24 amends section 91 of the National Law.
New section 91(4) provides the Regulatory Authority with the
ability to place conditions on the service waiver including any
condition limiting the use of the waiver.
New section 91(5) empowers the Regulatory Authority to
remove, add to or vary any conditions of a service waiver
imposed under new section 91(4) at any time.
If a service waiver is granted, current section 91(4) requires the
Regulatory Authority to issue or reissue the service approval
specifying the waived element of the National Quality Standard
or requirement of the national regulations. New section 91(6)
re-enacts this requirement but also requires the Regulatory
Authority issue or reissue a service approval so that it specifies
any conditions placed on a waiver under new section 91(4) or
any amendments to those conditions under new section 91(5).
Clause 25 inserts new section 96(2) into the National Law. Part 3 of
Division 6 of the National Law allows approved providers to
apply to the Regulatory Authority for a temporary waiver
of a prescribed element of the National Quality Standard or
requirement of the national regulations (temporary waiver).
New section 96(2) clarifies that, if the Regulatory Authority
requests further information under section 96 in relation to an
application for a temporary waiver, the time period within which
the Regulatory Authority must, under section 98(1), determine an
application does not include the time it takes for the applicant to
satisfy the request. This ensures that the Regulatory Authority
has sufficient time to properly consider and determine the
application.
13
Clause 26 amends section 98 of the National Law.
Section 98(3) allows approved providers to apply for, and
Regulatory Authorities to grant, extensions to the period of a
temporary waiver. Determining an application for an extension
to a temporary waiver requires similar amounts of time and
resources as an initial application, however, the Regulatory
Authority is currently only able to impose a fee for the latter.
New section 98(4) empowers the Regulatory Authority to charge
a fee, prescribed by the national regulations, where an approved
provider makes an application for an extension.
New section 98(5) provides the Regulatory Authority with the
ability to place conditions on the temporary waiver including
any condition limiting the use of the temporary waiver.
New section 98(6) empowers the Regulatory Authority to
remove, add to or vary any conditions of a temporary waiver
imposed under new section 98(5) at any time.
If a temporary waiver is granted, current section 98(4) requires
the Regulatory Authority to issue or reissue the service approval
specifying the element of the National Quality Standard or
requirement of the national regulations that has been temporarily
waived and the period of the waiver. New section 98(7)
re-enacts this requirement but also requires the Regulatory
Authority to issue or re-issue a service approval so that it
specifies any conditions placed on a temporary waiver under
new section 98(5) or any amendments to those conditions under
new section 98(6).
Clause 27 inserts new section 103A into the National Law, an offence
provision, to require approved providers of a family day care
service to 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 the National Law. The commission of
the offence will attract a maximum penalty of $20 000 for an
individual and $100 000 in any other case.
Clause 28 repeals Part 4 of the National Law to remove the provisions
relating to certified supervisors. This implements reform
identified by the Review, intended to reduce burdens on the
sector created by the requirements for supervisor certificates.
14
Clause 29 substitutes section 142(4) of the National Law, which currently
provides that the 30 days within which a review of rating levels
for an education and care service under section 142 must be
conducted may be extended by up to 30 days--
• if the reviewer has requested more information; or
• by agreement between the approved provider and the
Regulatory Authority.
There are some instances where it may be appropriate for the
Regulatory Authority to undertake a reassessment of specific
standards or elements as part of the review before making a final
decision to confirm or amend a service's rating levels under
section 143(1). The current maximum 60 day (30 days plus
30 days) timeframe has been difficult to meet in many instances.
New section 142(4) expands the current provision so that the
Regulatory Authority may extend the standard 30 day review
period--
• for an additional period of up to 30 days, if a request for
further information is made; or
• for an additional period of up to 30 days, by agreement
between the approved provider and the Regulatory
Authority; or
• 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.
Clause 30 amends section 152(5) of the National Law to change the
minimum requirements that must be satisfied before an
approved provider may apply to the National Authority
for a service to be assessed for the highest rating level.
Section 152(5) currently provides that an application for an
education and care service to be assessed for the highest rating
level (Excellent rating) may only be made if the service has
attained the overall second highest rating level (Exceeding the
National Quality Standard rating).
The effect is that providers may currently apply for, and a service
may be awarded, the Excellent rating even if that service does not
exceed the National Quality Standard in all seven quality areas.
15
New section 152(5) provides that an application for the highest
rating level may only be made if the approved education and
care service holds the rating levels prescribed in the national
regulations. It is intended that the regulations will be amended
to require a service to be rated the second highest rating level in
all quality areas in order to be eligible for consideration for the
highest rating level.
Clause 31 substitutes section 158(b) of the National Law, which currently
provides that the Australian Children's Education and Care
Quality Authority Board must revoke an Excellent rating of an
education and care service if the Regulatory Authority advises
the Board that the overall rating level of the service is lower than
the second highest rating level.
As a consequence of the change to section 152(5) by clause 30 of
the Bill, new section 158(b) provides that the Board must revoke
an Excellent rating if the Regulatory Authority advises the Board
that the service no longer meets the rating levels prescribed for
the purposes of section 152(5).
Clause 32 amends section 161 of the National Law to clarify that more than
one nominated supervisor may be nominated for an education
and care service.
As a result, new section 161 of the National Law provides that
the approved provider must not operate the service unless there
is at least one nominated supervisor for the service.
Clause 33 inserts new section 161A into the National Law, an offence
provision, to prevent an approved provider from nominating an
individual to be a nominated supervisor unless the individual
meets the prescribed minimum requirements for nomination.
The commission of the offence will attract a maximum penalty
of $5000 for an individual and $25 000 in any other case.
Clause 34 amends section 162(1) of the National Law.
Current section 162 makes it an offence for the approved
provider of an education and care service (other than a family
day care service) to fail to ensure that one of the following
persons is present while children are being educated and cared
for at the service--
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• the approved provider (if the approved provider is an
individual) or another individual with management or
control of the service;
• the nominated supervisor of the service;
• a certified supervisor who has been placed in day-to-day
charge of the service in accordance with the national
regulations.
While the clause removes the provisions relating to certified
supervisors, the intention is to retain the concept of a
"responsible person" (whether that be the approved provider,
nominated supervisor or another person who has been placed in
day-to-day charge) who must be present at all times the service
is educating and caring for children. There will be minimum
requirements, prescribed in the national regulations, which must
be satisfied when selecting a person who is placed in day-to-day
charge of a service.
Clause 35 inserts new section 162A into the National Law which requires
the approved provider of an education and care service to ensure
that each nominated supervisor and person in day-to-day charge
of the service has successfully completed the child protection
training that may be required by the relevant jurisdiction.
Clause 36 amends section 163(1) of the National Law, an offence provision,
which currently requires an approved provider of a family day
care service to ensure that one or more qualified persons are
employed or engaged as family day care co-ordinators to assist
with the operation, and to support, monitor and train the family
day care educators, of the service.
The clause replaces the requirement in section 163(1) that a
family day care service must employ or engage one or more
family day care co-ordinators, with a requirement to employ
or engage the prescribed minimum number of family day care
co-ordinators.
The intention is that the national regulations will prescribe the
minimum number of family day care co-ordinators to be--
• for the first 12 months of the service's operation, at
least one for every 15 family day care educators of
the service; and
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• after the first 12 months of the service's operation, at
least one for every 25 family day care educators of the
service.
Clause 37 amends section 164(1) of the National Law.
Current section 164 makes it an offence if the approved
provider of a family day care service fails to ensure that one
of the following persons is available to provide support to the
service's family day care educators while educating and caring
for children as part of the service--
• the approved provider (if the approved provider is an
individual) or another individual with management or
control of the service;
• the nominated supervisor of the service;
• a certified supervisor who has been placed in day to
day charge of the service in accordance with the
national regulations.
New sections 164(1)(b) and 164(1)(c) now have the effect of
permitting a nominated supervisor or a person in day-to-day
charge of the service to be available to provide support to the
service's family day care educators.
Clause 38 inserts new section 164A into the National Law.
New section 164A(1), an offence provision, requires an
approved provider of a family day care service to ensure that
any child being educated and cared for by the service is not
educated and cared for by a person other than a family day care
educator (unless otherwise provided by the national regulations).
The commission of the offence attracts a maximum penalty of
$10 000 for an individual and $50 000 in any other case.
New section 164A(2), an offence provision, requires a family
day care educator to ensure that any child being educated
and cared for by the educator is not educated and cared for by
any other person at the family day care residence or approved
venue (unless otherwise provided by the national regulations).
The commission of the offence attracts a maximum penalty
of $2000.
18
Clause 39 amends sections 165(2), 166(2) and 178(1) of the National
Law to clarify that more than one nominated supervisor may
be nominated for an education and care service.
Clause 40 amends section 170 of the National Law.
Current section 170 of the National Law applies to education and
care services in jurisdictions that have a working with children
law (defined by section 5(1) to mean a law declared by a law of
a participating jurisdiction to be a working with children law).
For those jurisdictions with a working with children law, current
sections 170(2) and 170(3) provide that an offence is committed
if the approved provider or nominated supervisor of an education
and care service fails to ensure that an unauthorised person does
not remain at the education and care service premises while the
service is operating unless under the supervision of a staff
member. Current section 170(4) provides that an offence is
committed if a family day care educator fails to ensure that an
unauthorised person does not remain at the family day care
residence or approved family day care venue (as the case may be)
while the educator is educating and caring for children unless
under the supervision of the educator.
Regulatory Authorities and the education and care services sector
have encountered difficulties in the interpretation of section 170
due in part to the use of the double negative in the definition of
unauthorised person in subsection (5). The confusion around
section 170 has led to differing interpretations and applications of
the provision in different jurisdictions. The amendments clarify
section 170 by using the term "authorised persons" as opposed to
"unauthorised persons". Clause 40(2) amends section 170(5) of
the National Law to replace the term "unauthorised person"
with "authorised person". The current paragraphs (a) to (e) are
re-enacted without change.
New sections 170(2) and 170(3), which are offence provisions,
respectively require the approved provider and any nominated
supervisor to 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 the person is an
authorised person and under the direct supervision of an educator
or another staff member of the service. The penalties for these
offences remain unchanged.
19
New section 170(4), an offence provision, requires a family
day care educator to ensure that a person does not remain at the
family day care residence or approved family day venue (as the
case may be) at which the educator is educating and caring for
children, unless the person is an authorised person and under the
direct supervision of the educator. The penalty for this offence
remains $1000.
Clause 41 substitutes section 172(c) of the National Law to clarify that
more than one nominated supervisor may be nominated for an
education and care service. New section 172(c) provides that an
approved provider must ensure that information, prescribed by
the national regulations, about each nominated supervisor of the
service is clearly visible to anyone from the main entrance of the
education and care service premises.
Clause 42 amends section 173 of the National Law, which requires an
approved provider to notify certain matters to the Regulatory
Authority.
Subclause (1)(a) amends section 173(2)(a) to replace the
reference to certified supervisor with a reference to nominated
supervisor. Section 173(2)(a) provides that an approved
provider must notify the Regulatory Authority 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 in respect
of, a nominated supervisor engaged by the service.
Subclause (1)(b) substitutes section 173(2)(b), which currently
provides that an approved provider of an education and care
service must notify the Regulatory Authority if a nominated
supervisor of the service ceases to be employed or engaged by
the service or withdraws consent to the nomination.
New section 173(2)(b) expands on the current provision by
also requiring the approved provider to notify the Regulatory
Authority if a nominated supervisor is removed from the role
of nominated supervisor. This recognises that a nominated
supervisor may be removed from this role but continue to be
employed or engaged by the approved provider in some other
capacity.
20
Current section 173(3) sets out the requirements (timing and
form) for notifications required to be given under subsection (1).
Current section 173(4) sets out the requirements (timing and
form) for notifications required to be given under subsection (2).
New section 173(3) provides that notices under subsection (1)
or (2) must be in writing and include any prescribed information.
New section 173(4) provides that a notice under subsection (1)
must be provided within the prescribed time to the Regulatory
Authority that granted the relevant provider approval.
New section 173(5) provides that a notice under subsection (2)
must be provided within the prescribed time to the Regulatory
Authority that granted the relevant service approval.
Clause 43 amends section 174 of the National Law, which currently
requires the approved provider to notify the Regulatory
Authority of certain information.
Section 174(2)(b) currently provides that an approved provider
must notify the Regulatory Authority of any complaints
alleging that the safety, health or wellbeing of a child is being
compromised while the child is being educated and cared for
by the service or that the National Law has been contravened.
New section 174(2)(b) provides that an approved provider must
notify the Regulatory Authority of any complaints alleging that--
• a serious incident has occurred or is occurring while a
child is being educated and cared for by the service; or
• the National Law has been contravened.
Subclause (2) repeals section 174(5) because the definition of
serious incident in that section is being re-enacted in section 5(1)
of the National Law by clause 4(a) of the Bill.
Clause 44 inserts new section 174A into the National Law to require family
day care educators who educate and care for children as part of a
family day care service to notify the approved provider of the
service of--
• any serious incident that occurs while the educator is
educating and caring for a child as part of the service;
21
• any complaints alleging that a serious incident has
occurred or is occurring while the educator is educating
and caring for a child or that the National Law has been
contravened; or
• information about any matters prescribed in the national
regulations.
A family day care educator who fails to comply with the
notification requirements under section 174A will commit
an offence, which attracts a maximum penalty of $2000.
The new requirements will assist approved providers of a family
day care service to comply with their notification obligations
under section 174 of the National Law by ensuring that the
service's family day care educators pass on required information.
Clause 45 substitutes Division 2 of Part 7 of the National Law.
Section 180(1) of the National Law currently empowers the
Regulatory Authority to accept an undertaking where there has
been a contravention or an allegation of a contravention of the
National Law.
Clause 45, together with clauses 7, 21 and 47, of the Bill expands
the circumstances in which the Regulatory Authority may accept
an undertaking under new section 179A of the National Law to
include the acceptance of written undertakings given by--
• an approved provider of an education and care service,
by virtue of new section 27(a), where the approved
provider has been charged with an indictable offence
or circumstances indicate that the approved provider
may not be a fit and proper person to be involved
in the provision of an education and care service
(see section 25(a));
• an approved provider of an education and care service,
by virtue of new section 72(a), where--
• the Regulatory Authority reasonably believes
that it is not in the best interests of children
being educated and cared for by the service if
the service was to continue (see section 70(a));
• the service is not being managed in accordance
with the National Law (see section 70(c)); or
22
• the service has been rated as not meeting the
National Quality Standard (and a waiver does not
apply to the service in respect of non-compliance
and there has been no improvement in the rating
level) (see section 70(d)); and
• a person, by virtue of new section 184(3), where--
• the person is involved with an education and care
service and the Regulatory Authority considers
that there may be an unacceptable risk of harm to
a child if the person were allowed to remain on
the service premises or educate and care for
children (see section 182(1)); or
• the Regulatory Authority considers the
person is not suitable to be nominated as
a nominated supervisor of the service
(see new section 182(3)).
New section 179A(2) re-enacts section 180(2) to permit
the Regulatory Authority to accept from a person who has
contravened, or is alleged to have contravened, the National
Law a written undertaking by the person to take or refrain
from taking certain actions to comply with the National Law.
New section 179A(3) provides that the Regulatory Authority
may accept a written undertaking from an approved provider of
an education and care service in the circumstances provided for
by section 27 or 72.
New section 179A(4) provides that the Regulatory Authority
may accept a written undertaking from a person other than an
approved provider in the circumstances set out in section 184.
New section 179A(5) re-enacts section 180(3), providing that a
person who has given an undertaking may withdraw or amend
the undertaking if the Regulatory Authority consents to the
withdrawal or amendment.
New section 179A(6) re-enacts section 180(4), providing that
the Regulatory Authority may withdraw its acceptance of an
undertaking at which time the undertaking ceases to be in force.
New section 179A(7) provides that the Regulatory Authority
may publish on its website an undertaking accepted under
section 179A.
23
While an undertaking is in force, new section 179B of the
National Law prevents the Regulatory Authority from taking
certain actions against the approved provider or another person
who gave the undertaking.
New section 179B(1) provides that during the period for which
an undertaking under section 179A(2) is in force, criminal
proceedings must not be instituted for any offence which may
have been committed because of the contravention or alleged
contravention for which the undertaking was accepted.
New section 179B(2) provides that during the period for which
an undertaking under section 179A(3) is in force, the Regulatory
Authority must not (as the case requires)--
• suspend the provider approval under section 27 on the
same grounds on which undertaking was accepted; or
• suspend the service approval under section 72 on the
same grounds on which the undertaking was accepted;
or
• give a prohibition notice under section 182 on the same
grounds on which the undertaking was accepted.
New section 179B(3) provides that during the period for which
an undertaking under section 179A(4) is in force, the Regulatory
Authority must not give a prohibition notice under section 182
on the same grounds on which the undertaking was accepted.
New section 180(1) provides that, if a person complies with the
requirements of an undertaking under section 179A(2), criminal
proceedings must not be instituted for any offence which may
have been committed because of the contravention or alleged
contravention for which the undertaking was accepted.
New section 180(2) provides that, if an approved provider
complies with the requirements of an undertaking under
section 179A(3), the Regulatory Authority must not (as the
case requires)--
• suspend the provider approval under section 27 on the
same grounds on which undertaking was accepted;
• suspend the service approval under section 72 on the
same grounds on which the undertaking was accepted;
or
24
• give a prohibition notice under section 182 on the same
grounds on which the undertaking was accepted.
New section 180(3) provides that, 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 on the same grounds on which the undertaking was
accepted.
New section 181 of the National Law sets out--
• the procedure for the Regulatory Authority to enforce
an undertaking that it has accepted under section 179A;
and
• what action the Regulatory Authority may take if the
relevant tribunal or court makes a determination that
an approved provider or another person has failed to
comply with an undertaking under section 179A.
New section 181(1) re-enacts current section 181(1) to provide
that the Regulatory Authority may apply to the relevant tribunal
or court for an order to enforce the undertaking, if the Regulatory
Authority forms the opinion that a person has failed to comply
with an undertaking. In Victoria, the Magistrates' Court is
declared to be the relevant court for the purposes of section 181
(relevant tribunal or court means the tribunal or court declared
by a law of a participating jurisdiction to be the relevant tribunal
or court for the purposes of the National Law--see section 5(1)).
New section 181(2) re-enacts current section 181(2) to provide
that if the relevant tribunal or court is satisfied that the person has
failed to comply with a term of the undertaking, it may make any
of the following orders--
• an order directing the person to comply with the term of
the undertaking;
• an order that the person take any specified action for the
purpose of complying with the undertaking;
• any other order that the tribunal or court considers
appropriate in the circumstances.
25
New section 181(3) provides that, if the tribunal or court
determines that the person has failed to comply with an
undertaking under section 179A(2), criminal proceedings
may be instituted for any offence which may have been
committed by the contravention or alleged contravention of
the National Law for which the undertaking was given.
New section 181(4) provides that, if the tribunal or court
determines that an approved provider has failed to comply
with an undertaking under section 179A(3), the Regulatory
Authority may proceed to (as the case requires)--
• suspend the provider approval under section 27;
• suspend the service approval under section 72;
• give a prohibition notice under section 182.
New section 181(5) provides that, if the tribunal or court
determines that a person has failed to comply with an
undertaking under section 179A(4), the Regulatory Authority
may proceed to give a prohibition notice under section 182.
New sections 181(4) and (5) make it clear that a Regulatory
Authority may proceed to suspend a provider approval or service
approval or give a prohibition notice after the relevant tribunal or
court has determined that a person has failed to comply with an
undertaking without repeating the relevant show cause notice
processes required by sections 26, 71 or 183. This is because the
show cause notice process was already undertaken prior to the
Regulatory Authority accepting an enforceable undertaking under
new sections 27(a), 72(a) or 184(3) (see new clause notes to
clauses 7, 21 and 47 for more information).
New section 181(6) provides that criminal proceedings may
be instituted within 6 months of the tribunal's or court's
determination or within 2 years of the date of the alleged offence,
whichever date is the later. Section 181(6) applies to proceedings
for an offence in respect of which an undertaking was given and
accepted under section 179A(2) and in place of the general time
limit before which proceedings must be brought in section 284 of
the National Law.
Clause 46 amends section 182 of the National Law to expand the grounds
on which the Regulatory Authority may give a prohibition notice
to a person.
26
Subclause (1)(a) substitutes section 182(2)(b) to refer to a
nominated supervisor, replacing the reference to a certified
supervisor.
Subclause (1)(b) inserts new section 182(2)(h) to clarify that a
person is involved in the provision of an approved education
and care service, and may be given a prohibition notice, if the
person was formerly a person referred to in paragraphs (a) to (g).
This ensures that the Regulatory Authority is not prevented from
issuing a prohibition notice to a person listed in section 182(2)
simply because the person's engagement with an education and
care service ceases.
Subclause (2) inserts new section 182(3) to empower the
Regulatory Authority to give a prohibition notice to a person to--
• 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 a nominated supervisor; or
• impose one or more conditions on the nomination of
the person as a nominated supervisor, if the Regulatory
Authority considers the person is a fit and proper person
to be nominated as a nominated supervisor subject to
those conditions.
Clause 47 inserts new section 184(3) into the National Law.
After going through a show cause notice process in accordance
with sections 183 and 184(1), the Regulatory Authority may
currently either give a prohibition notice under section 182 of
the National Law or decide not to give a prohibition notice.
New section 184(3) empowers the Regulatory Authority to
accept an undertaking from a person under section 180 instead
of giving a prohibition notice.
Clause 48 substitutes section 185 of the National Law, which currently sets
out what information a prohibition notice given under section 182
must contain.
New section 185(1), which re-enacts current section 185(a),
provides that a prohibition notice issued under section 182(1)
must state that the person to whom the notice is given is
prohibited from doing one or more of the following--
27
• providing education and care to children as part of an
education and care service;
• being engaged as an educator, family day care educator,
employee, contractor or staff member, or being a
volunteer of an education and care service;
• performing any other function or activity in relation to
an education and care service.
New section 185(2) provides that a prohibition notice issued
under section 182(3) must state--
• that the person is prohibited from being nominated as a
nominated supervisor; or
• that the person may only be nominated as a nominated
supervisor subject to the condition or conditions
specified by the Regulatory Authority in the notice.
New section 185(3), which re-enacts current sections 185(b)
and 185(c), provides that a prohibition notice must state that the
person may apply for cancellation of the notice and the manner
in which such an application must be made.
Clause 49 inserts new section 186(4A) into the National Law to
complement the expanded grounds on which a prohibition notice
may be issued under new section 182(3) relating to nominated
supervisors (which is inserted by clause 46(2) of the Bill).
New section 186(4A) provides that, a person applying for
cancellation of a prohibition notice under section 186, may state
in the application anything that the person believes to be relevant
to whether the person is a fit and proper person to be nominated
as a nominated supervisor with or without conditions.
Clause 50 amends section 187 of the National Law to complement the
expanded grounds on which a prohibition notice may be issued
under new section 182(3) (which is inserted by clause 46(2) of
the Bill).
The clause inserts new section 187(2), which makes it an
offence if, during the period for which a prohibition notice under
section 182(3) is in force, the person who is the subject of the
notice--
28
• consents to a nomination as a nominated supervisor
(in the case of a prohibition notice given under
section 182(3)(a)); or
• consents to a nomination as a nominated supervisor
in contravention of a condition stated in the notice
(in the case of a prohibition notice given under
section 182(3)(b)).
The commission of the offence attracts a maximum penalty of
$20 000, equivalent to that applying to section 187(1).
Clause 51 amends section 188 of the National Law to complement the
expanded grounds on which a prohibition notice may be issued
under new section 182(3) relating to nominated supervisors
(which is inserted by clause 46(2) of the Bill).
Section 188 creates an offence for engaging a person who is
subject to a prohibition notice. New section 188(2) makes it
an offence if an approved provider nominates a person as a
nominated supervisor if the approved provider knows, or
ought reasonably to know, that the nomination is contrary
to a prohibition notice in force under the National Law.
The commission of the offence attracts a maximum penalty
of $20 000 for an individual and $100 000 in any other case.
New section 188(3) makes it an offence if an approved provider
nominates a person as a nominated supervisor the approved
provider knows, or ought reasonably to know, that the
nomination contravenes a condition of a prohibition notice in
force under the National Law. The commission of the offence
attracts a maximum penalty of $20 000 for an individual and
$100 000 in any other case.
Clause 52 inserts new section 188A, an offence provision, to prevent a
person who is subject to a prohibition notice from giving an
approved provider false or misleading information about the
content or existence of the prohibition notice. The commission
of the offence attracts a maximum penalty of $6000.
Clause 53 amends various sections in the National Law to remove
redundant references to certified supervisors, as a consequence
of the repeal of Part 4.
29
Subclause (1) amends section 190 to remove redundant
provisions for internal review of decisions relating to
supervisor certificates.
Subclause (2) repeals section 192(b)(v), which relates only to
reviews of decisions relating to supervisor certificates.
Subclause (3) amends the definition of specified person in
section 206(4) by replacing the reference to "a certified
supervisor" with "a nominated supervisor". Section 206
relates to powers of authorised officers to require specified
persons to provide information.
Subclause (4) substitutes sections 261(2)(b) and 261(2)(c) to
replace references to "certified supervisors" with "nominated
supervisors. Section 261 sets out powers of the Regulatory
Authority.
Subclause (5) amends section 292 by removing the reference to
"certified supervisor". Section 292 provided for the Regulatory
Authority or National Authority to certify as to status of a
supervisor's certificate.
Subclause (6) amends section 301(3)(a) to remove the reference
to "certificates". Section 301 authorises making of regulations.
Clause 54 amends section 199(4) of the National Law. Current section
199(4) provides that an authorised officer may only exercise the
power under section 199 to enter a residence if an approved
education and care service is operating at the residence at the
time of entry or with the written consent of the occupier.
Authorised officers have found it difficult to determine whether a
family day care service is operating at a residence and, therefore,
the entry power under section 199, insofar as it relates to family
day care services, has been largely ineffective. The amendments
to section 199(4) clarify the circumstances within which an
authorised officer may enter a family day care residence under
section 199.
The clause amends section 199(4)(a) to provide that an
authorised officer may exercise the entry power under
section 199 if the authorised officer reasonably believes
that an education and care service is operating at the residence
at the time of entry. An authorised officer may form the
reasonable belief, for example, if he or she observes children
being dropped off at the residence by adults.
30
New section 199(4)(ab) provides that an authorised officer may
exercise the entry power under section 199 if the register of
family day care educators records that the approved service is
operating at the time of entry. Approved providers are required
to keep a register of the family day care educators engaged by the
service under section 269(1) of the National Law. The register
must contain the hours and days of usual operation of a family
day care educator.
The power of authorised officers to enter a residence under
section 199(4)(b) with the written consent of the occupier is
unchanged.
Clause 55 amends section 200(1) of the National Law to clarify that the
reference in that provision to principal office is a reference to
the principal office of the approved provider of the service.
Clause 56 inserts new section 200A into the National Law.
Authorised officers are currently permitted to enter residential
premises for the purposes of investigating whether an education
and care service is operating without a service approval at the
premises (in contravention of section 103) with a search warrant
under section 201(1) of the National Law. However, there is
no express power for an authorised officer to enter residential
premises without a search warrant to determine whether
section 103 has been contravened even if the occupier of the
residence has given his or her consent. New section 200A
provides authorised officers with this power.
New section 200A(1) provides that an authorised officer may
enter residential and non-residential premises to determine if an
education and care service is operating without a service approval
from the premises if--
• the authorised officer reasonably believes that a person
is operating an education and care service in
contravention of section 103; and
• the occupier of the premises has consented in writing to
the entry and inspection.
New section 200A(2) prevents an authorised officer from
entering and searching the premises under section 200A unless
the authorised officer has produced the officer's identity card
for inspection and informed the occupier of the premises--
31
• of the purpose of the search (i.e. to determine if an
education and care service is operating at the premises
without a service approval) and the powers which may
be exercised by the authorised officer; and
• that the occupier may refuse consent to entry and search
or to the authorised officer taking anything from the
premises; and
• that the occupier may refuse consent to the authorised
officer taking any copy or extract from a document
found on the premises during the search.
New section 200A(3) confers on an authorised officer who enters
premises under section 200A the powers set out in clauses 5(2)(a)
to 5(2)(e) of Schedule 2 to the National Law, namely, the powers
to--
• search any part of the premises;
• inspect, measure, test, photograph or film or make audio
recordings of, any part of or anything at the premises;
• take a thing, or a sample of a thing, at the premises;
• copy, or take an extract from, a document at the
premises; and
• take onto the premises any person, equipment and
materials reasonably required to exercise a power
referred to above.
Clause 57 amends section 201(3) of the National Law to clarify that the
reference in that provision to "principal office" is a reference to
the "principal office of the approved provider of the service".
Clause 58 amends section 202 of the National Law as a consequence of the
introduction of the new entry and access power under new
section 200A.
New section 202 provides for the return of items taken by an
authorised officer under new section 200A (in addition to current
sections 199 and 200).
32
Clause 59 amends section 225(1) of the National Law.
Subclause (a) substitutes section 225(1)(g), which currently
provides that the National Authority's functions include keeping
national registers of approved providers, approved education and
care services and certified supervisors. Subclause (a) removes
the reference to "certified supervisors".
Subclause (b) substitutes section 225(1)(o), which currently
provides that the National Authority's functions include
determining the qualifications for authorised officers and to
provide support and training for Regulatory Authority staff.
The qualifications for authorised officers will be determined
by Regulatory Authorities.
Clause 60 amends section 249(1) of the National Law, by substituting the
words "day to day" with "day-to-day" to ensure consistent
language is used throughout the National Law.
Clause 61 repeals section 268 of the National Law, which currently requires
the National Authority to keep a register of certified supervisors,
as a consequence of the removal of the provisions relating to
certified supervisors.
Clause 62 substitutes section 269 of the National Law, which currently
requires approved providers of a family day care service to
maintain a register of family day care educators and other
persons engaged by the family day care service to educate
and care for children.
New section 269(1) creates an offence for an approved provider
to fail to keep a register at the principal office of the service
containing prescribed information in relation to--
• each family day care educator engaged by or registered
with the service; and
• each family day care co-ordinator employed or engaged
by the service; and
• each family day care educator assistant engaged by or
registered with the service.
The penalty is $4000 for an individual and $20 000 in any other
case.
33
New section 269(2) requires the approved provider to take
reasonable steps to ensure that the information contained in
the register is accurate. A failure to do so is an offence with a
penalty of $2000.
New section 269(3) makes it an offence if an approved provider
fails to comply with a request of the Regulatory Authority to
provide any information, or any changes to the information, on
the register within 24 hours of the request. The penalty is $4000
for an individual and $20 000 in any other case.
Clause 66 amends section 291 of the National Law to provide
that an infringement notice may be served on a person for a
contravention of the new offences in section 269.
Clause 63 amends section 270 of the National Law, which permits the
National and Regulatory Authorities to publish certain
information. Subclauses (1), (2), (3) and (4)(a) remove
redundant references to certified supervisors.
Subclauses (4)(c) inserts new section 270(6)(c), to provide that
information published under section 270 may include information
that could identify or lead to the identification of an individual
who is a person with management or control of an education and
care service, if the Regulatory Authority is satisfied that it is in
the public interest to do so.
By empowering the Regulatory Authority to publish enforcement
action taken against persons with management or control of an
education and care service, new section 270(6)(c) enables other
body corporate approved providers and interstate Regulatory
Authorities to perform checks on past action taken against the
person (who may be seeking to join the approved provider or
obtain an approval in a different jurisdiction).
Clause 64 substitutes sections 271 and 272 of the National Law. Current
sections 271 and 272 provide for the sharing of information
between the National Authority, government authorities (both
within and between participating jurisdictions) and between the
Regulatory Authority and approved providers.
Clause 64 substitutes section 271 of the National Law to clarify
who may disclose information, and to whom information may be
disclosed, and to expand on the limited purposes for which
information may currently be disclosed.
34
New sections 271(1) and 271(2) provide that the National
Authority and the Regulatory Authority, respectively, may
disclose information in relation to an education and care
service for a purpose listed in subsection (4) to--
• a relevant Commonwealth Government Department
(defined in section 5(1)); and
• any State or Territory Government Department
(which includes a Government Department of another
state or territory); and
• any Commonwealth, State or Territory public authority
(for example, the Australian Bureau of Statistics); and
• any State or Territory local authority (which includes a
local authority of another state or territory); and
• the Regulatory Authority of any participating
jurisdiction.
New section 271(3) provides that the National Authority, the
Regulatory Authority and any Government Department, public
authority or local authority (in the relevant participating
jurisdiction) may disclose information to each other in respect
of an education and care service for a purpose listed in
subsection (4).
The purposes for disclosure of information referred to in
subsections (1), (2) and (3) are set out in new section 271(4),
namely that the disclosure is--
• reasonably necessary to promote the objectives of the
national education and care services quality framework
(which are set out in section 3(2) of the National Law);
or
• to enable or assist the entity receiving the information to
perform or exercise any of its functions or powers under
the National Law; or
• for research or the development of national, state or
territory policy with respect to education and care
services; or
• for a purpose related to the funding of education and
care services; or
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• for a purpose relating to the payment of benefits or
allowances to persons using education and care services
(provided the disclosure is not otherwise prohibited by
law).
New section 271(5) provides that, where a Regulatory
Authority is notified of a suspension or cancellation of a
working with children check, working with children card or
teacher registration of a nominated supervisor, it is required to
disclose that information to the Regulatory Authorities of other
jurisdictions. This re-enacts current section 271(4) without the
reference to certified supervisor as the provisions relating to
certified supervisors are being removed from the National Law.
New section 271(6) (which re-enacts current section 271(5))
provides that, if the Regulatory Authority issues a prohibition
notice under the National Law, it has the ability to disclose
that information to the head of the government department
responsible for the administration of the working with children
law (in the relevant participating jurisdiction).
New section 271(7) provides that a disclosure of information
under section 271 is subject to Division 1 of Part 13 of the
National Law, which applies the Privacy Act 1988 of the
Commonwealth as a law of the participating jurisdiction, and
any relevant protocol agreed to by--
• the National Authority, all participating jurisdictions
and the Commonwealth (paragraph (a)); and
• the National Authority and one or more Regulatory
Authorities (paragraph (b)).
Any protocols between the National Authority and Regulatory
Authorities are subject to any protocol between the National
Authority, participating jurisdictions and the Commonwealth.
New section 271(8) clarifies that information provided under
section 271 for the purpose of research or the development of
education and care services related policy (under subsection
(4)(c)), must not include information that could identify or lead
to the identification of individuals other than--
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• an approved provider or a nominated supervisor; or
• 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
• of a person to whom a prohibition notice applies; or
• a person who is being prosecuted for an offence against
the National Law.
Clause 64 also substitutes section 272 of the National Law.
New section 272(1) empowers the National Authority and the
Regulatory Authority, at the request of an approved provider, to
disclose the following information to the provider, if the relevant
Authority considers on reasonable grounds that the provider
requires the information to comply with the provider's obligations
under the National Law--
• information regarding whether a person named
in the request is subject to a prohibition notice
(under section 182); or
• information regarding 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).
New section 272(2) provides that a disclosure of information
under section 272 is subject to Division 1 of Part 13 of the
National Law, which applies the Privacy Act 1988 of the
Commonwealth as a law of the participating jurisdiction, and
any relevant protocol agreed to by--
• the National Authority, all participating jurisdictions
and the Commonwealth (paragraph (a)); and
• the National Authority and one or more Regulatory
Authorities (paragraph (b)).
Any protocols between the National Authority and Regulatory
Authorities are subject to any protocol between the National
Authority, participating jurisdictions and the Commonwealth.
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Clause 65 amends section 284 of the National Law.
Section 284 currently requires criminal proceedings must be
brought within 2 years from the date of the alleged offence.
Clause 65 amends the section to clarify that the time limit is
subject to new section 181(6). New section 181(6) provides that,
for a contravention of the National Law in respect of which an
undertaking has been given and accepted, criminal proceedings
must be instituted before the later of either 6 months of a
determination by a relevant tribunal or court or 2 years after the
date of the alleged offence.
Clause 66 amends section 291(1)(a) of the National Law to permit an
authorised officer or another person authorised by the Regulatory
Authority to serve an infringement notice on a person for a
contravention of the new offences contained in new section 269,
inserted by clause 62.
Clause 67 inserts new Division 5 into Part 15 of the National Law to
provide for transitional arrangements for the changes made
by the Bill.
New section 325 sets out the definitions of 2017 Act and
commencement day for the purposes of new Division 5.
New section 326 of the National Law provides for transitional
arrangements relating to the amendments changing the process
and requirements for the approval of a place as an approved
family day care venue.
New section 326 applies to a family day care venue which
was an approved family day care venue immediately before
the commencement of the amendments.
New section 326(2) provides that a formerly approved family
day care venue ceases to be an approved family day care venue
6 months after the commencement of the amendments (i.e. the
appointed day) unless, before the appointed day, the Regulatory
Authority approved an application under new section 54 for that
venue to be an approved family day care venue. This provision is
subject to new section 326(3).
New section 326(3) provides that, if the Regulatory Authority
had not determined an application under section 54 for approval
of the venue within 6 months of the commencement of the
amendments (i.e. the appointed day), the formerly approved
38
family day care venue continues to be an approved family day
care venue until the application is determined.
This effectively gives approved providers, currently operating
from approved family day care venues, 6 months to apply for
approval of those venues as approved family day care venues
under the amended National Law. If the approved provider
does not apply for approval under section 54, those venues
cease to be approved family day care venues under the amended
National Law 6 months after the amendments commence.
If an application has been made, the service can continue to be
provided from those venues until the Regulatory Authority has
determined the application.
New section 326(4) requires the Regulatory Authority to
make a decision on an application within 6 months and new
section 326(4) provides that the ordinary 60 day time limit in
section 54(5) does not apply.
New section 327 of the National Law provides that, despite
section 326, declared approved family day care venues that
were deemed under section 308 to be approved family day care
venues continue to be approve family day care venues after the
amendments take effect and approved providers do not need to
re-apply for approval of these places. Approved providers of
family day care services which provide education and care from
declared approved family day care venues are not required to
apply to the Regulatory Authority for approval as those venues
were already subject to an approval process at the
commencement of the National Law.
New sections 328 and 329 of the National Law provide for
transitional arrangements relating to the changes relating to
requirements regarding family day care co-ordinators for family
day care services, made by clauses 14, 17 and 36 of the Bill.
New section 328 applies to an approved family day care
service that is subject to the condition in current section 51(2)
at the time the amendments to sections 51 and 163 commence.
The condition in section 51(2) currently requires an approved
provider of a family day care service to ensure that the service
has sufficient family day care co-ordinators to support and
adequately monitor its family day care educators.
39
New section 328(3) provides that the amendments to
sections 51(2) and 163 do not apply until 12 months after
the amendments take effect (i.e. the appointed day) or the
Regulatory Authority earlier amends the service approval
to impose a condition referred to in section 55A.
New section 329 applies to an approved family day care
service that is subject to a condition requiring the service to
have a minimum number of family day care co-ordinators at
the time the relevant amendments commence.
New section 329(2) provides that the condition requiring
the service to have a minimum number of family day care
co-ordinators continues to apply to the service until the condition
is amended under section 54 or 55. Section 163 as in force
before commencement also continues to apply to the service
until that condition is amended.
New sections 330 and 331 of the National Law provide for
transitional arrangements relating to the removal of the
provisions relating to certified supervisors.
New section 330 gives the National Authority the ability to
publish information under section 270 about enforcement action
taken under the National Law before the commencement of the
amendments in relation to a certified supervisor including--
• the prosecution of any offence; and
• the acceptance of an undertaking; and
• the suspension or cancellation of a supervisor
certificate.
While the information will be historical in the sense that the
provisions relating to certified supervisors are being repealed,
the information will still be relevant to enable approved providers
to consider whether a person is suitable to be nominated as a
nominated supervisor or appointed as the person in day-to-day
charge of a service.
New section 330 expires on 31 December 2021 as the
information will no longer be relevant at that date.
New section 331 preserves the ability of the Regulatory
Authority and the National Authority to certify matters relating
to any persons who were a certified supervisor before the
removal of the certified supervisor requirements from the
40
National Law. Sections 292(d) and (g) currently empower
the Regulatory Authority and the National Authority to issue
a certificate stating that any of the following matters is prima
facie evidence of the matter--
• on a stated day, or during a stated period, a stated
person was or was not a certified supervisor; and
• on a stated day, a supervisor certificate was suspended
or cancelled.
New section 331 expires on 31 December 2021.
Clause 68 inserts a new Division 6 into Part 15 of the National Law to
provide transitional arrangements for changes relating to ratings
and the NQS. These require separate transitional provisions
because the revised NQS is intended to commence later than the
other amendments made by the Bill.
New section 333 of the National Law provides for the transitional
arrangements in relation to ratings reassessments conducted
under section 138 or 139 of the National Law where a service
has been rated against the NQS in the Schedule to the national
regulations prior to the commencement day. The NQS is to be
amended to coincide with the commencement of the Bill.
Sections 138 and 139 permit partial reassessment of a service's
ratings, either on the Regulatory Authority's initiative or on
application of the approved provider. The purpose of new
section 333 is to provide that the ratings of a service may be
partially reassessed against the NQS (as in force immediately
prior to commencement) until the relevant day. After that
day, partial reassessment may only occur if the ratings for the
service have first been reassessed against the amended NQS.
Section 333 applies regardless of whether the assessment and
rating was conducted prior to the amendments taking effect or
after the amendments taking effect.
New section 333(4) defines the relevant day for the purposes of
section 333. The relevant day means--
• where the initial rating of the approved education and
care service was conducted before the commencement
of the amendments to the NQS, 6 months after the
commencement of those amendments; or
41
• where the initial rating of the approved education and
care service was conducted after the commencement of
the amendments to the NQS, 6 months after the day on
which the rating for the service is published under
section 160.
New section 334 of the National Law provides for transitional
arrangements in relation to applications made for the highest
rating level under section 152 prior to the commencement of the
relevant amendments contained in clause 30 of the Bill.
New section 334 applies if, before the commencement of the
relevant amendments, an approved provider had submitted an
application for a service to be assessed for the highest rating
level under section 152 and the application had not yet been
determined by the National Authority.
New section 334(2) provides that the threshold for making the
application under section 152(5), as in force immediately before
the relevant amendments commence, continues to apply to that
application.
New sections 334(3)(a) and (b) provide that the following
continue to apply for the purposes of the assessment under
section 153(2) of the service to which the application relates--
• the criteria, as published by the board of the National
Authority under section 153(1) immediately before the
relevant amendments commence; and
• the National Quality Standard and the national
regulations, as in force immediately before the relevant
amendments commence.
New section 335 of the National Law provides for transitional
arrangements in relation to services that have been awarded the
highest rating level before the commencement of the relevant
amendments in clauses 30 and 31 of the Bill.
If an approved education and care service was awarded the
highest rating level either before the commencement day or after
the commencement day pursuant to an application referred to in
section 334, new sections 335(2)(a) and (b) provide that the
following continue to apply for the purposes of a reassessment
under section 157 of the service--
42
• the criteria, as published by the board of the National
Authority under section 153(1) immediately before the
relevant amendments commence; and
• the National Quality Standard and the national
regulations, as in force immediately before the
relevant amendments commence.
New section 335(3)(a) provides that the following continue to
apply for the purposes of a revocation of the highest rating level
awarded to a service to which this section applies--
• section 158, as in force immediately before the relevant
amendments commence; and
• the criteria, as published by the board of the National
Authority under section 153(1) immediately before the
relevant amendments commence.
New section 335(3)(b) provides that, for the purposes of a
revocation of the highest rating level awarded to a service to
which this section applies, the overall rating level is to be
determined in accordance with the National Quality Standard,
as in force immediately before the commencement day.
Part 3--Amendment of Children's Services Act 1996
Clause 69 amends section 3(1) of the Children's Services Act 1996 by
repealing the definitions of certified supervisor and supervisor
certificate as a consequence of the removal of the provisions in
the National Law relating to certified supervisors.
Clause 70 amends section 18(1)(b)(iii)(B) of the Children's Services
Act 1996 as a consequence of the amendments to the National
Law which remove the provisions relating to certified
supervisors.
Section 18 sets out the requirements for an application under
section 15 for a licence to operate a children's service, including
that the application must be accompanied by the name and
address of any person (nominee) nominated by the applicant to
manage or control the children's service in the absence of the
licensee (subsection (1)(b)(ii)).
New section 18(1)(b)(iii)(B) will provide that an application
under section 15 must be accompanied by evidence that the
person nominated is an approved provider or a nominated
43
supervisor of an education and care service (if the application is
not accompanied by a declaration under section 18(1)(b)(iii)(A)).
Clause 71 amends section 22A of the Children's Services Act 1996 as
a consequence of the amendments to the National Law which
remove the provisions relating to certified supervisors.
Section 22(c) requires the Secretary, in determining an
application under section 15, to consider whether any nominee
under section 18(1)(b)(ii) is a fit and proper person to manage
or control the children's service in the absence of the licensee.
An exception is provided for in section 22A(1)(a), which
provides that the Secretary is not required to assess a nominee's
fitness and propriety if the person is an approved provider or
certified supervisor under the National Law. This is because the
Regulatory Authority has already assessed the person's fitness
and propriety under the National Law in determining an
application for a provider approval or a supervisor certificate
(as the case may be)).
On the repeal of the supervisor certificates provisions in the
National Law, the responsibility for assessing the suitability of
nominated supervisors will be placed on the approved provider
(although the Regulatory Authority may prohibit a person from
being nominated as a nominated supervisor or may impose
conditions or enforceable undertakings in relation to such a
nomination). Accordingly, new section 22A provides that the
Secretary is not required to conduct a fit and proper assessment
of a person who is a nominated supervisor, unless the person
is subject to a prohibition notice, a condition imposed by a
prohibition notice or an undertaking under the National Law.
Clause 72 amends section 25W of the Children's Services Act 1996 as
a consequence of the amendments to the National Law which
remove the provisions relating to certified supervisors and clarify
that more than one nominated supervisor may be nominated for
an education and care service.
Section 25W of the Children's Services Act 1996 sets out who
is a nominee or primary nominee for an approved associated
children's service. An approved associated children's service
means a children's service that is operated or intended to be
operated at the same place as an education and care service
approved under the National Law and by a person who is the
44
approved provider for that service (see section 3(1) Children's
Services Act 1996).
New section 25W(1)(a) provides that a person who is a
nominated supervisor of the associated education and care
service under the National Law is an approved nominee for
an approved associated children's service.
New section 25W(2) provides that the primary nominee for an
approved associated children's service is--
• subject to subsection (2A), the nominated supervisor
for the associated education and care service or, if the
associated education and care service has more than
one nominated supervisor, the nominated supervisor
designated in writing by the approved provider as the
primary nominee (subsection (2)(a)); or
• a person approved by the Secretary under section 25X
to have primary responsibility for the management or
control of the service in the absence of the approved
provider (subsection (2)(b)).
New section 25W(2A) clarifies that subsection (2)(a) does not
apply to a nominated supervisor who is subject to an undertaking,
prohibition notice or condition imposed by a prohibition notice
under the National Law.
Clause 73 inserts new section 25WA into the Children's Services Act 1996
as a consequence of the amendments to the National Law which
clarify that more than one nominated supervisor may be
nominated for an education and care service.
The Bill will require the approved provider of an education and
care service to give written notice to the Regulatory Authority
if--
• the approved provider wishes to add a new
nominated supervisor of the education and
care service (see clause 56 of the Bill);
• a nominated supervisor ceases to be engaged by
the service, is removed from the role of nominated
supervisor or withdraws consent to the nomination
(see clause 42(1)(b) of the Bill).
45
Similarly, new section 25WA(1) will require the approved
provider to notify the Secretary, in writing, if the approved
provider of the approved associated children's service intends
to change the primary nominee for an approved associated
children's service.
New section 25WA(2) provides that the notification must--
• identify the new primary nominee; and
• include the prescribed information; and
• be given at least 7 days before the new primary nominee
is to have primary responsibility for the management
or control of the approved associated children's service
or, if that period of notice is not possible, as soon as
practicable but not more than 14 days after the new
primary nominee commences primary responsibility
for the management or control of the service.
Clause 74 inserts new Part 8 into the Children's Services Act 1996 to
provide for transitional arrangements for the changes to that
Act made by the Bill.
New section 63(1) sets out the definition of commencement day
for the purposes of the section.
New section 63(2) provides that, if immediately before the
commencement of the relevant amendments a person was
accepted as a fit and proper person under section 22A(2),
that person continues to be fit and proper until the Secretary
revokes the acceptance under section 22A(3).
Part 4--Repeal of amending Act
Clause 75 provides for the repeal of the Bill on the first anniversary of
its commencement. The repeal of this Act does not affect in
anyway the continuing operation of the amendment made by
this Act (see section 15(1) of the Interpretation of Legislation
Act 1984).
46