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Education and Care Services National
Law Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
General
The objective of this Bill is to adopt the Education and Care Services
National Law (the National Law) hosted by the Victorian Parliament and set
out in the Schedule to the Bill.
Policy objectives of the Bill
The principal objective of the Bill is to provide a national approach to
regulation, assessment and quality improvement for early childhood
education and care and outside school hours care; replace existing separate
licensing and quality assurance processes for pre-school (kindergartens), long
day care, family day care and outside school hours care; and establish a
public rating system for education and care services. The reforms within the
Bill focus on improving the quality of education and care services for all
children--especially those from disadvantaged or at-risk backgrounds--
reducing regulatory burden on services and providing greater access to
information about the quality of services.
Reasons for the Bill
In December 2009 the Council of Australian Governments endorsed the
National Partnership Agreement on the National Quality Agenda for Early
Childhood Education and Care. This included the commitment to establish a
jointly governed, uniform National Quality Framework and will facilitate the
introduction through the national regulations of a new National Quality
Standard. The National Quality Standard is organised across seven quality
areas:
· Educational program and practice
· Children's health and safety
· Physical environment
· Staffing arrangements
561483 1 BILL LA INTRODUCTION 1/9/2010
· Relationships with children
· Collaborative partnerships with families and communities
· Leadership and service management
This Bill establishes the National Quality Framework and the Australian
Children's Education and Care Quality Authority to oversee its
administration. It provides for a role for Regulatory Authorities in each
jurisdiction in approving persons and services that provide education and
care; monitoring compliance with the national law; and assessing and
publicly rating services against a new National Quality Standard.
Major elements of the Education and Care Services National Law
Part 1 of the Law sets out the objectives and guiding principles, the
definitions to be used and the scope of education and care services subject to
this Law.
Parts 2, 3, and 4 establish a national system of approvals to provide and
operate an education and care service and to be a certified supervisor.
These Parts set out the requirements for obtaining approval and the decision-
making powers and responsibilities of the Regulatory Authority in
participating jurisdictions. These approval processes streamline current
licensing, approval and quality assurance arrangements.
Part 5 sets out the process for assessing and rating services against the
National Quality Standard. All services under the National Quality
Framework are subject to assessment and rating. The assessment and rating
process is designed to promote continuous improvement in the provision of
education and care across seven quality areas. A major objective of rating
services is to provide parents with detailed information about the quality of
services (across the seven quality areas and an overall rating). This Part also
provides for a system of appeals and reviews of decisions relating to
assessments and ratings.
Part 6 creates a range of offences regarding the operation of education and
care services. These offences are primarily intended to ensure the health,
safety and well-being of children and the operation of the national approvals
system.
Part 7 provides for the tools that the Regulatory Authority may use to ensure
compliance with the Education and Care Services National Law and is
intended to ensure the safety, health and wellbeing of children attending
education and care services.
Part 8 ensures the right of review of decisions made by a Regulatory
Authority. Two types of review are provided for: internal review conducted
by the Regulatory Authority; and external review conducted by an
administrative tribunal or court or, in relation to ratings and assessments of
services, by the Australian Children's Education and Care Quality Authority.
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Part 9 provides powers to authorised officers engaged by Regulatory
Authorities to monitor and enforce the Education and Care Services National
Law.
Part 10 sets out the functions and powers of the Ministerial Council in
relation to the National Quality Framework, the National Quality Standard,
the Education and Care Services National Law and the Australian Children's
Education and Care Quality Authority. The Ministerial Council will be
responsible for setting standards for the operation of education and care
services.
Part 11 establishes the Australian Children's Education and Care Quality
Authority and its Board and provides for the engagement of a chief executive.
This Part sets out the Authority's functions, which are consistent with, and
build on, those set out in the National Partnership Agreement, including
oversight of the National Quality Framework, reporting to the Ministerial
Council and Regulatory Authorities, provision of advice, and information
management. The Authority has the power to collect and publish
information, develop protocols for communication and dispute resolution,
make decisions regarding fees, undertake research and analysis, publish
practice notes and guidelines for the application of this Law, and publish
other guides and resources.
Part 12 sets out the functions of the Regulatory Authorities, which include
approving providers and services, certifying supervisors, assessing and rating
services, and monitoring compliance with the National Quality Framework,
the National Quality Standard, the Education and Care Services National
Law, and the national regulations.
Part 13 addresses information and privacy issues, including providing for the
application of Commonwealth privacy and freedom of information laws.
Part 14 contains a range of miscellaneous provisions, including the
establishment of the Australian Children's Education and Care Quality
Authority Fund, reporting requirements, legal proceedings, and provides for
the development, publication and commencement of national regulations.
Part 15 provides for transition from existing legislative and regulatory
arrangements to the new arrangements set out under this national Law.
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Notes on Preliminary Provisions
Education and Care Services National Law
PART 1--PRELIMINARY
Clause 1 provides that the purpose of this Bill is to create a National Law
to regulate education and care services for children.
Clause 2 provides that this Bill comes into operation on the day or days
to be proclaimed. Different days may be proclaimed for
different provisions of this Law set out in the Schedule.
Clause 3 sets out definitions for the purposes of the Bill (other than the
Schedule).
PART 2--ADOPTION OF NATIONAL LAW
Clause 4 provides that the Education and Care Services National Law as
set out in the Schedule, applies as a law of Victoria.
Clause 5 provides that the following Victorian Acts do not apply to this
Law or the instruments made under it--
· the Freedom of Information Act 1982;
· the Information Privacy Act 2000;
· the Interpretation of Legislation Act 1984;
· the Subordinate Legislation Act 1994.
Furthermore, the following Acts do not apply to this Law,
except to the extent that this Law is applicable to the Regulatory
Authority--
· the Audit Act 1994;
· the Financial Management Act 1994;
· the Ombudsman Act 1973;
· the Public Administration Act 2004;
· the Public Records Act 1973.
Clause 6 defines the meaning of the generic terms including magistrate,
magistrate's court, superior court and this jurisdiction, for the
purposes of this jurisdiction
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Clause 7 provides that the Victorian Magistrate's Court is the relevant
court and that the Victorian Civil and Administrative Tribunal is
the relevant tribunal in this jurisdiction for the purposes of this
Law.
Clause 8 provides that the Secretary to the Victorian Department of
Education and Early Childhood Development is the Regulatory
Authority in this jurisdiction for the purposes of this Law.
Clause 9 provides that the Children's Services Act 1996 is the children's
services law of this jurisdiction for the purposes of this Law.
Clause 10 provides that the Education and Training Reform Act 2006 is
the education law of this jurisdiction for the purposes of this
Law.
Clause 11 provides that the Children's Services Act 1996 is the former
education and care services law of this jurisdiction for the
purposes of this Law.
Clause 12 provides that the Infringements Act 2006 is the infringements
law of this jurisdiction for the purposes of this Law.
Clause 13 provides that the Public Administration Act 2004 is the public
sector law of this jurisdiction for the purposes of this Law.
Clause 14 provides that the Working with Children Act 2005 is the
working with children law of this jurisdiction for the purposes
of this Law.
Clause 15 provides for the definition of declared terms used in clause 305
of the Education and Care Services National Law as they apply
in Victoria.
Subclause (1) provides that a declared approved family day care
service is a service to which a licence to operate a family day
care service applied under the Children's Services Act 1996.
Subclause (2) provides that that a declared approved family
day care venue is a venue approved by the Secretary under
section 25J or 25L of the Children's Services Act 1996.
Subclause (3) provides that a declared approved provider is a
person who held a licence to operate a under the Children's
Services Act 1996.
Subclause (4) provides that a declared approved service
is a service to which a licence to operate a standard
(unless excluded by the regulations), outside school hours
care, integrated or family day care service applied under the
Children's Services Act 1996.
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Subclause (5) provides that a declared certified supervisor is a
person who was a primary nominee or approved nominee under
the Children's Services Act 1996.
Subclause (6) provides that a declared compliance order is an
order or notice issued to a licensee under section 43 or 43A of
the Children's Services Act 1996.
Subclause (7) provides that a declared nominated supervisor is a
person who was a primary nominee under the Children's
Services Act 1996.
Subclause (8) provides that a declared former approval is a
licence under the Children's Services Act 1996.
PART 3--MISCELLANEOUS
Clause 16 provides for the Regulatory Authority to provide funding to
education and care services and associated children's services.
Clause 17 provides for the making of regulations of a transitional nature as
a result of the enactment of this Bill.
Clause Notes
Schedule
Education and Care Services National Law
PART 1--PRELIMINARY
Clause 1 states that the short title of the Law is the Education and Care
Services National Law.
Clause 2 provides for the commencement of the Law in participating
jurisdictions, in accordance with each jurisdiction's Act
applying this Law.
Clause 3 identifies the objectives and guiding principles for the National
Law. The objective of this Law is to establish a national
education and care services quality framework, which will seek
to--
· Ensure children's safety, health and wellbeing;
· Improve educational and developmental outcomes;
· Promote continuous improvement;
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· Establish a system of national integration and shared
responsibility in the administration of the National
Quality Framework;
· Improve public knowledge and access to, information
about the quality of education and care services; and
· Enable sharing of information to reduce the regulatory
burden on education and care services.
The guiding principles are as follows--
· The rights and best interests of the child are paramount;
· Children are successful, competent and capable
learners;
· The principles of equity, inclusion and diversity
underlie this Law;
· Australia's Aboriginal and Torres Strait Islander cultures
are valued;
· The role of parents and families is respected and
supported;
· Best practice is expected in the provision of education
and care services.
These objectives and guiding principles are consistent with the
COAG National Partnership Agreement on the National Quality
Agenda for Early Childhood Education and Care.
Clause 4 provides that an entity with functions under the Education and
Care Services National Law is to have regard to the objectives
and guiding principles set out in clause 3.
Clause 5 defines terms used in the Education and Care Services National
Law. For the purposes of this Law an education and care
service means any service providing or intended to provide
education and/or care on a regular basis to children under
13 years of age other than--
· a school providing full-time education to children,
including children attending in the year before grade 1;
· a preschool program delivered in a school if--
· the program is delivered in a class or classes
where a full-time education program is also
delivered to school children; and
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· across the school, the preschool program is being
delivered to fewer than 6 children.
· a personal arrangement;
· a service principally conducted to provide instruction in
a particular activity (e.g. sporting or religious
instruction);
· a service providing education and care to patients in a
hospital or patients of a medical or therapeutic care
service;
· care provided under a child protection law of a
participating jurisdiction;
· a prescribed disability service;
· a service of a prescribed class.
By example, this definition means that education and care
services under this Law include long day care, family day care,
outside school hours care and preschool programs including
those delivered in schools, unless expressly excluded.
The definition also means that the service is an education and
care service even if it provides education and care to children or
over 13 years of age.
Other services will be excluded by regulation to allow for future
inclusion in this Law at a later date as determined by the
Ministerial Council. Examples of services to be excluded by
prescribed class are occasional or limited hours care,
Multifunctional Aboriginal Children's Service, nannies,
babysitters and playgroups.
For services that are not within scope of this Law, existing state
and territory licensing and/or quality assurance provisions will
continue to apply.
Clause 6 incorporates into this Law a schedule of miscellaneous
provisions relating to interpretation for construing this Law.
The National Partnership Agreement is declared to be a relevant
document as extrinsic material under the interpretive provisions,
allowing it to be considered in assisting in the Law's
interpretation.
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Clause 7 clarifies that only one single national entity (the Australian
Children's Education and Care Quality Authority) is created
rather than multiple entities in each jurisdiction. The national
entity established by this Law has the power to do acts
conferred on it by this Law as applied by Acts of each
participating jurisdiction.
Clause 8 provides for the extraterritorial operation of the Education and
Care Services National Law.
Clause 9 provides that the Education and Care Services National Law
binds the State, including the Government, a Minister and any
statutory corporation or other entity.
PART 2--PROVIDER APPROVAL
Division 1--Application for provider approval
Under this Law, a holder of a provider approval may provide an education
and care service subject to obtaining a service approval for each service.
Clause 10 provides that one or more persons, other than a prescribed
ineligible person, may apply for a provider approval.
All persons applying for a provider approval must submit
relevant information, and each person granted provider approval
will be required to comply with any obligations attached to the
approval.
Clause 11 sets out the process for applying for a provider approval.
Applications must be made in the jurisdiction where the
applicant or one of the applicants resides, or where one of the
applicant's principal offices are located.
Clause 12 provides that applicants and, in the case of entities each person
with management or control responsibility for a service
operated by the entity, must satisfy the Regulatory Authority of
their fitness and propriety to be involved in the provision of an
education and care service.
An exception to this requirement applies to the head of a
government department administering an education law in a
participating jurisdiction who, owing to his or her position, is
determined to be a fit and proper person.
9
Clause 13 specifies factors that are to be taken into account when
assessing whether a person is fit and proper, including, but not
limited to, compliance history, criminal history and financial
solvency. The Regulatory Authority may also have regard to a
person's medical history or financial circumstances as far as
they may impact on an assessment of fitness and propriety.
Clause 14 enables a Regulatory Authority to seek further information to
determine fitness and propriety.
Clause 15 provides that the Regulatory Authority may grant or refuse to
grant a provider approval. The Regulatory Authority must not
grant a provider approval if it is not satisfied as to matters of
fitness and propriety set out in clause 12.
If the Regulatory Authority has not made a decision within
60 days and has not extended this period by agreement with the
applicant, the application is deemed to have been refused.
A person may seek a review of a decision to refuse to grant a
provider approval as set out in Part 8 of this Law.
Clause 16 provides that the Regulatory Authority must give written notice
to an applicant of the decision and the reasons for that decision
on an application for a provider approval within seven days of
making a decision.
Clause 17 provides that a provider approval is not time-limited and
remains valid unless cancelled or surrendered. A provider
approval that is suspended remains in force, but the approved
provider cannot operate a service during the period of
suspension.
Clause 18 provides that a person to whom provider approval is granted is a
fit and proper person to operate an education and care service
and an associated children's service, if the approved provider is
the holder of the service approval for those services.
Clause 19 provides that a provider approval may be granted subject to any
conditions prescribed in the regulations or determined by the
Regulatory Authority. All provider approvals are subject to the
condition that the approved provider must comply with this
Law. Penalties apply for non-compliance with a provider
approval.
An approved provider may seek a review of a decision to
impose a condition on a provider approval as set out in Part 8 of
this Law.
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Clause 20 provides that the Regulatory Authority must provide a copy of a
provider approval to the approved provider and prescribes the
information to be recorded on the approval.
Division 2--Reassessment
Clause 21 provides for the Regulatory Authority to, at any time,
reassess whether a person continues to be fit and proper to be
involved in the provision of an education and care service.
The considerations and powers of the Regulatory Authority
that apply to the assessments of fitness and propriety described
in clauses 13 and 14 also apply to reassessments of fitness and
propriety.
Division 3--Amendment of provider approvals
Clause 22 sets out the process by which, an approved provider may seek
an amendment to a provider approval. An example of when an
application for an amendment may be made is when an
approved provider seeks a variation to a condition on the
provider approval. The Regulatory Authority may accept or
refuse the amendment sought by an approved provider or amend
the approval in another way with the written agreement of the
applicant.
An approved provider may seek a review of a decision to refuse
to amend a provider approval as set out in Part 8 of this Law.
Clause 23 provides that a Regulatory Authority may amend a provider
approval at any time. An example of when this may occur is if
the Regulatory Authority decides to add or remove a condition
on a service approval. Any proposed amendment takes effect
14 days after the Regulatory Authority gives notice of the
amendment or if another period is specified, at the end of that
period.
An approved provider may seek a review of a decision to amend
a provider approval as set out in Part 8 of this Law.
Clause 24 provides that a Regulatory Authority must provide a copy of an
amended provider approval to the approved provider and make
any necessary amendments to a service approval. The amended
service approval must also be provided to the approved
provider.
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Division 4--Suspension or cancellation of provider approval
Clause 25 provides for the circumstances under which a provider approval
may be suspended. These are the approved provider being
charged with an indictable offence or no longer being
considered a fit and proper person; failure to comply with a
condition of provider approval or this Law; failure to comply
with this Law as applying in any participating jurisdiction;
action being taken under Part 7 of this Law; the approved
provider has not operated a service for more than 12 months;
a transfer of a service approval has purportedly taken place
without the consent of the Regulatory Authority; or failure to
pay any outstanding prescribed fees.
An approved provider may seek a review of a decision to
suspend a provider approval as set out in Part 8 of this Law.
Clause 26 provides that in considering the suspension of a provider
approval, the Regulatory Authority must first give the approved
provider a notice stating the intention to suspend the provider
approval, the proposed period of suspension and the reasons for
the decision. The notice must also state that the approved
provider is given 30 days to respond in writing to the
Regulatory Authority.
Show cause notices are provided for in this Law to ensure
opportunities are provided for the person who is the subject of a
notice to state their case before action is taken.
Clause 27 provides that, after considering any response from an approved
provider provided for under clause 26, the Regulatory Authority
may suspend the provider approval for a period not more than
the prescribed period or decide not to suspend the provider
approval.
Clause 28 provides that, if the Regulatory Authority is satisfied that
there is an immediate risk to the safety, health or wellbeing of
children, a provider approval may be suspended for up to
six months without giving a show cause notice.
Clause 29 provides that the Regulatory Authority must give written notice
to the approved provider of the decision to suspend a provider
approval.
A notice of a decision to suspend must set out the period of
suspension and the date on which it takes effect, which, if a
show cause notice has been issued, is to be 14 days after the
date of the decision unless otherwise stated. If a show cause
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notice has not been given, the suspension takes effect on the
giving of the notice of the decision to suspend.
Clause 30 provides that the effect of suspension of a provider approval is
the suspension of all service approvals held by the provider
(including associated children's services) except where another
person is approved under clause 41 or the service is transferred
to another approved provider.
Clause 31 provides for the circumstances under which the Regulatory
Authority may cancel a provider approval, including the
Regulatory Authority's assessment that the person is not a fit
and proper person or that there is an unacceptable risk to
children's safety, health or wellbeing should the approved
provider continue to operate the service.
Other reasons are the approved provider being found guilty of
an indictable offence or an offence under this Law as applying
in any participating jurisdiction, being in breach of a condition
of provider approval, or if the approved provider has not
operated a service for more than 12 months.
An approved provider may seek a review of a decision to cancel
a provider approval as set out in Part 8 of this Law.
Clause 32 provides that in considering the cancellation of a provider
approval, the Regulatory Authority must first give the approved
provider a notice stating the intention to cancel the provider
approval and the reasons for the decision. The notice must also
state that the approved provider is given 30 days to respond in
writing to the Regulatory Authority.
Show cause notices are provided for in this Law to ensure
opportunities are provided for the person who is the subject of a
notice to state their case before action is taken.
Clause 33 provides that, after considering any response from an approved
provider provided for under clause 32, the Regulatory Authority
may cancel the provider approval; suspend the provider
approval for a period; or decide not to cancel the provider
approval. Written notice of the decision must be given to the
approved provider. A notice of a decision to cancel a provider
approval must set out the date on which the cancellation takes
effect, which is to be 14 days after the date of the decision
unless otherwise stated.
Clause 34 provides that the effect of cancellation of a provider approval is
the cancellation of all service approvals held by the provider
(including those relating to associated children's services)
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except where provisions to transfer a service approval to
another approved provider apply.
This provision also allows an approved provider to apply to the
Regulatory Authority to transfer a service approval within
14 days of the decision to cancel the approval. The effect of
this application is that the service approval is suspended
pending the Regulatory Authority's decision. If the Regulatory
Authority refuses to consent to a transfer, the original decision
to cancel the service approval stands.
Clause 35 provides that where a show cause notice is issued in relation to
a proposed suspension or cancellation of a provider approval,
the Regulatory Authority may require the approved provider to
provide the contact information of parents of all children
enrolled at each service operated by the approved provider for
the purposes of informing parents of the proposed action.
Clause 36 provides that the Regulatory Authority may require an approved
provider, upon being advised by the Regulatory Authority of the
suspension or cancellation of their provider approval, to notify
parents of children enrolled at all or any services operated by
the approved provider of the decision and its effect.
Persons who fail to comply with this request are subject to a
penalty.
Clause 37 enables an approved provider to apply in writing to the
Regulatory Authority to suspend a provider approval for no
more than 12 months.
The approved provider must notify parents of children attending
an education and care service operated by the approved provider
of an intention to seek a voluntary suspension of provider
approval before making the application.
This clause also sets out the processes for applying to the
Regulatory Authority for a suspension of provider approval, and
to have a suspension lifted before the prescribed end of the
stated period of suspension. If an application to suspend a
provider approval is granted, any service approval held by the
provider (including those related to associated children's
services) is also suspended.
Clause 38 provides for the surrender and subsequent cancellation of a
provider approval by written notice to the Regulatory Authority.
The approved provider must notify parents of children enrolled
at the education and care service of an intention to surrender a
provider approval before giving notice to the Regulatory
Authority. If a provider approval is surrendered, all service
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approvals (including those related to associated children's
services) are surrendered.
Division 5--Approval of person to manage or control education
and care service in place of approved provider
Clause 39 provides that the nominated supervisor, or any other person
with day to day control of an education and care service, must
notify the Regulatory Authority within seven days of an
approved provider's death.
This clause also provides for the executor of the approved
provider's estate to continue to operate the approved education
and care service provided the nominated supervisor or any
certified supervisor continue to manage the day to day operation
of the service.
The executor of the estate of the approved provider may
transfer, surrender or apply for a suspension of the service
approval. The executor of the estate of the approved provider
may apply to the Regulatory Authority for a provider approval
within 30 days of the death of the approved provider.
Clause 40 provides for the legal personal representative or guardian of an
approved provider to apply to the Regulatory Authority for a
provider approval where the approved provider has become
incapacitated.
Clause 41 provides that the Regulatory Authority must not grant a
provider approval to a person under clause 39 or 40 unless
satisfied that the person is a fit and proper person under the
assessment provisions set out in clauses 12, 13 and 14.
The Regulatory Authority may grant the provider approval
including granting it subject to conditions, or refuse to grant the
approval. An approval may be granted for up to 6 months with
provision for a further six month extension at the Regulatory
Authority's discretion.
Division 6--Exercise of powers by another Regulatory Authority
Clause 42 provides for the Regulatory Authority in another participating
jurisdiction to exercise all powers of the Regulatory Authority
under this Part in respect of the provider approval, if the
approved provider operates an education and care service in that
participating jurisdiction.
It requires a Regulatory Authority to consult with other
participating jurisdictions prior to amending, suspending or
cancelling a provider approval.
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PART 3--SERVICE APPROVAL
Division 1--Application for service approval
Under this Law, a service approval authorises an approved provider to
operate a long day care, pre-school or outside school hours care service at a
particular premises. Family day care services, not individual family day care
educators, are subject to approval based on the adequacy of the service's
policies and procedures.
Clause 43 provides that an approved provider may apply to the Regulatory
Authority for a service approval.
An approved provider may only apply for a service approval
if the approved provider is or will operate the education and
care service. A person who has, or is in the process of applying
for, a provider approval may apply for service approval.
The Regulatory Authority must not grant the service approval
unless the provider approval is granted.
Clause 44 sets out the steps required to apply for a service approval in the
jurisdiction where the service will operate, including putting
forward a nominated supervisor.
Clause 45 enables the Regulatory Authority to seek further information
that is reasonably required for the purpose of assessing an
application for a service approval. The time between making
a request for further information and the provision of the
information is not included in the period set out in clause 48
for making a decision on an application.
Clause 46 provides that the Regulatory Authority may require information
from applicants and undertake inquiries and investigations
in considering an application for a service approval.
The Regulatory Authority may inspect the education and care
service premises and inspect policies and procedures of the
service.
Clause 47 provides that, in determining an application for a service
approval, the Regulatory Authority must have regard for the
National Quality Framework; except in the case of a family day
care residence, the suitability of a premises; the adequacy of the
policies and procedures of the service; whether the applicant has
a provider approval and has put forward a certified supervisor
who has consented to being a nominated supervisor for the
service; and any other prescribed matters.
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In addition the Regulatory Authority may have regard to
whether the applicant is capable of operating the education and
care service having regard to its financial and management
capability and other matter the Regulatory Authority considers
relevant.
Clause 48 provides for the Regulatory Authority to grant or refuse to grant
a service approval to an approved provider. Any grant of a
service approval is subject to any conditions the Regulatory
Authority sees fit. If the Regulatory Authority has not made a
decision within 90 days and has not agreed with the applicant to
extend this period, the application is deemed to be refused.
An approved provider may seek a review of a decision to refuse
to grant a service approval as set out in Part 8 of this Law.
Clause 49 provides that the Regulatory Authority must not grant a service
approval if doing so would constitute an unacceptable risk to
the safety, health or wellbeing of children or if the applicant
does not have a provider approval. The Regulatory Authority
may also refuse to grant a service approval on any grounds
prescribed in the national regulations.
Clause 50 provides that the Regulatory Authority must notify an applicant
of the decision and the reasons for the decision for a service
approval within 7 days of making a decision.
Clause 51 provides that a service approval is granted subject to a
number of conditions including ensuring the safety, health and
wellbeing of children; meeting children's educational and
developmental needs; commencing ongoing operation
within six months of being granted an approval unless
otherwise agreed by the Regulatory Authority; and the
approved provider holding the prescribed insurance.
The Regulatory Authority may impose any other conditions it
sees fit. This clause also provides for the applicability of
conditions to an associated children's service.
Additionally, service approvals for family day care services
are conditional on the adequate monitoring of, and support for,
family day care educators, and the engagement of sufficient
co-ordinators to support family day care educators.
Any additional conditions, for example, in regard to quality
improvement, may be imposed on a service approval by this
Law or by the Regulatory Authority. Non-compliance with a
condition of a service approval is subject to penalties.
17
An approved provider may seek a review of a decision to
impose a condition on a service approval as set out in Part 8 of
this Law.
Clause 52 provides that the Regulatory Authority must provide a copy of a
service approval to the approved provider and prescribes the
information required in the approval.
Clause 53 provides that an annual fee must be paid in respect to each
service approval held. This fee will be prescribed in the
national regulations.
Division 2--Amendment of service approval
Clause 54 sets out the process by which an approved provider may seek an
amendment of a service approval, and the powers and
obligations of the Regulatory Authority in determining an
application.
An example of when an application for an amendment may be
made is where an approved provider seeks the removal of a
condition on a service approval. The Regulatory Authority may
accept or refuse the amendment sought by the approved
provider, or amend the approval in another way with the written
agreement of the applicant. The Regulatory Authority must
make a decision within 60 days and must provide the approved
provider with written notice of its decision. An amendment
cannot change a location of a service.
An approved provider may seek a review of a decision to refuse
to amend a service approval as set out in Part 8 of this Law.
Clause 55 provides that the Regulatory Authority may amend a service
approval at any time by notice to the approved provider.
For example, the Regulatory Authority may amend a service
approval to add or remove a condition, or when the service
approval is transferred to another approved provider.
This clause also provides that the Regulatory Authority must
amend a service approval as it relates to an associated children's
service in accordance with any direction by the children's
services regulator.
An approved provider may seek a review of a decision to amend
a provider approval as set out in Part 8 of this Law.
Clause 56 provides that, if an approved provider wishes to change the
nominated supervisor of a service, the Regulatory Authority
must be given written notice at least seven days before the new
nominated supervisor is due to commence in the role.
18
Clause 57 provides that a Regulatory Authority must provide a copy of an
amended service approval to the approved provider.
Division 3--Transfer of service approval
Clause 58 provides for the transfer of a service approval from one
approved provider to another approved provider.
Clause 59 provides that the Regulatory Authority must be notified in
writing at least 42 days prior to the proposed date of the transfer
of a service approval and a prescribed fee must be paid.
Clause 60 provides that a service approval cannot be transferred without
the consent of the Regulatory Authority.
Clause 61 provides that consent is taken to have been given if the
Regulatory Authority, having been notified of a proposed
transfer of a service approval, has not notified the parties that it
intends to intervene at least 28 days before the intended date of
transfer.
Clause 62 sets out the circumstances under which the Regulatory
Authority may intervene in a transfer of a service approval,
including, but not limited to, concerns as to the receiving
approved provider's compliance history with this Law as
applying in a participating jurisdiction, financial capacity and
management capability to operate the service. Any decision by
the Regulatory Authority to intervene must be provided by
written notice to the intended transferring and receiving
approved providers at least 28 days prior to the proposed date
of transfer.
Clause 63 provides that if the Regulatory Authority intervenes a transfer
cannot proceed without the Regulatory Authority's written
consent.
Clause 64 provides that if the Regulatory Authority has intervened in the
transfer of a service approval it may seek further information
from either party to the proposed transfer and undertake
inquiries in relation to the receiving approved provider in
deciding whether to consent to the transfer.
Clause 65 provides that if the Regulatory Authority has intervened in the
transfer of a service approval, it may decide to consent or refuse
to consent to the proposed transfer, and may impose conditions
on the transfer, which must be observed.
19
An approved provider may seek a review of a decision to refuse
to consent to transfer a service approval as set out in Part 8 of
this Law.
Clause 66 provides that if the Regulatory Authority has intervened in the
transfer of a service approval, it must notify the parties to the
proposed transfer of its decision to consent or refuse to consent,
or its intention to suspend the transfer to allow more time for a
decision at least seven days prior to the intended date of
transfer. It also sets out the information required in the notice
conveying a decision.
Clause 67 provides that the transfer of a service approval is void if it is
made without the consent of the Regulatory Authority,
contravenes the conditions of the transfer, or is purported to be
made to a person other than the person listed as the receiving
approved provider in the notice to the Regulatory Authority.
Clause 68 provides that both parties to a transfer must give written notice
to the Regulatory Authority within two days of the transfer
taking effect. On receipt of notice of a transfer of a service
approval, the Regulatory Authority must amend the service
approval and provide a copy to the receiving approved provider.
The amendment to the service approval takes effect on the date
of the transfer. Penalties apply for failing to notify the
Regulatory Authority of the transfer of a service approval
within the prescribed time.
Clause 69 provides that the approved provider to whom a service is
transferred must notify the parents of children enrolled at the
service of the transfer at least two days before the transfer takes
effect. Penalties apply for failing to comply with this provision.
Division 4--Suspension or cancellation of service approval
Clause 70 provides that, to encourage continuous improvement and
compliance with this Law and the national regulations, powers
are granted to the Regulatory Authority to suspend a service
approval.
Circumstances under which a service approval may be
suspended include the Regulatory Authority's assessment that it
would not in the best interests of children for the service to
continue, a condition of the service approval has not been
complied with, or the service is not being managed in
accordance with this Law.
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Other reasons are the failure of a service that is rated as having
not met the National Quality Standard to improve its rating; the
contravention of this Law by the approved provider; failure by
the approved provider to comply with a direction, compliance
notice or emergency order; the operation of a service at the
premises has ceased and the service has not been transferred to
another approved provider within six months; within six months
of being granted a service approval an ongoing service has not
commenced; or the approved provider has not paid the
prescribed annual fee for the service approval.
An approved provider may seek a review of a decision to
suspend a service approval as set out in Part 8 of this Law.
Clause 71 provides that in considering the suspension of a service
approval, the Regulatory Authority must first give the approved
provider a notice stating the intention to suspend the service
approval, the proposed period of suspension and the reasons for
the decision. The notice must also state that the approved
provider is given 30 days to respond in writing to the
Regulatory Authority.
Show cause notices are provided for in this Law to ensure
opportunities are provided for the person who is the subject of a
notice to state their case before action is taken.
Clause 72 provides that, after considering any response from an approved
provider provided for under clause 71, the Regulatory Authority
may suspend the service approval or decide not to suspend the
service approval.
Clause 73 provides that, if the Regulatory Authority is satisfied that there
is an immediate risk to the safety, health or wellbeing of a child
or children a service approval may be suspended without giving
a show cause notice.
Clause 74 provides that the Regulatory Authority must give written notice
to the approved provider of the decision to suspend a service
approval. A notice of a decision to suspend must set out the
period of suspension and the date on which it takes effect,
which, if a show cause notice has been issued, is to be 14 days
after the date of the decision unless otherwise stated. If a show
cause notice has not been given, the suspension takes effect on
the giving of the notice of the decision to suspend.
Clause 75 provides that if a Regulatory Authority considers that a service
approval should be suspended to the extent that it applies to an
associated children's service, it must refer the matter to the
children's services regulator of this jurisdiction. The children's
21
services regulator must notify the Regulatory Authority if it
proposes to conduct an investigation or inquiry into an
associated children's service, and must advise the Regulatory
Authority of a decision to suspend a service approval.
Clause 76 provides that the Regulatory Authority may consent to the
transfer of a service approval that has been suspended, and that
the suspension ceases on the transfer taking effect unless the
Regulatory Authority provides otherwise.
Clause 77 sets out the circumstances under which the Regulatory
Authority may cancel a service approval, including the
Regulatory Authority's assessment that there is an unacceptable
risk to children's safety, health or wellbeing. Other reasons are
that, the service has not rectified the reason for a suspension of
the approval; the service approval was obtained improperly (for
example a service approval was transferred without the consent
of the Regulatory Authority); or a condition of the service
approval has not been complied with.
An approved provider may seek a review of a decision to cancel
a service approval as set out in Part 8 of this Law.
Clause 78 provides that in considering the cancellation of a service
approval, the Regulatory Authority must first give the approved
provider a notice stating the intention to cancel the service
approval and the reasons for the decision. The notice must also
state that the approved provider is given 30 days to respond in
writing to the Regulatory Authority.
Show cause notices are provided for in this Law to ensure
opportunities are provided for the person who is the subject of a
notice to state their case before action is taken.
Clause 79 provides that, after considering any response from an approved
provider provided under clause 78, the Regulatory Authority
may cancel the service approval; suspend the service approval
or decide not to cancel the service approval, and must give
written notice of the decision to the approved provider.
A notice of a decision to cancel a service approval must set out
the date on which it takes effect, which, unless otherwise stated,
is to be 14 days after the date of the decision, unless an
application to transfer the service approval is made as set out in
clause 81.
Clause 80 provides that if a Regulatory Authority considers that a service
approval should be cancelled to the extent that it applies to an
associated children's service, it must refer the matter to the
children's services regulator. The children's services regulator
22
must notify the Regulatory Authority if it proposes to conduct
an investigation or inquiry into an associated children's service,
and must advise the Regulatory Authority of a decision to
cancel a service approval.
Clause 81 provides that an approved provider may apply to the Regulatory
Authority for consent to transfer the service approval within
14 days of a decision to cancel a service approval. If an
application is made, the cancellation does not take effect and the
service approval is suspended pending the Regulatory
Authority's decision. An application under this clause cannot be
made in relation only to the cancellation of an associated
children's service.
Clause 82 provides for a decision on an application under clause 81. If the
Regulatory Authority consents to the transfer, the decision to
cancel the service approval is revoked and the suspension of the
service approval ceases upon transfer unless otherwise
provided. If the Regulatory Authority refuses the application,
the service approval is cancelled.
Clause 83 provides that where a show cause notice is issued in relation to
a proposed suspension or cancellation of a service approval, the
Regulatory Authority may require the approved provider to
provide the contact information of parents of all children
enrolled at the service for the purposes of notifying parents of
the proposed action.
Clause 84 provides that the Regulatory Authority may require the
approved provider, upon being advised by the Regulatory
Authority of the suspension or cancellation of a service
approval, to notify parents of children enrolled at the service
operated by the approved provider of the decision and its effect.
Failure to comply with this request is subject to a penalty.
Clause 85 enables an approved provider to apply in writing to the
Regulatory Authority and pay a prescribed fee to suspend a
service approval for no more than 12 months. The Regulatory
Authority will consider the reasonableness of a suspension in
determining whether to approve the request. The approved
provider must notify the parents of children enrolled at the
service of the intention to apply for a suspension of a service
approval at least 14 days prior to making the application to the
Regulatory Authority.
Clause 86 provides for the surrender and subsequent cancellation of
service approval upon written notification to the Regulatory
Authority.
23
Division 5--Application for service waiver
Clause 87 provides that an approved provider may apply for a waiver from
a requirement that an approved education and care service
comply with a prescribed element or elements in the National
Quality Standard or national regulations. It is intended that a
service waiver will only be able to be sought for elements
relating to the physical environment and staffing arrangements
of a service.
Clause 88 sets out the requirements for making an application to the
Regulatory Authority for a waiver.
Clause 89 provides that the Regulatory Authority may seek further
information and inspect the premises and offices of the
applicant in considering an application for a waiver.
Clause 90 provides that, in considering whether the grant of a service
waiver is appropriate, the Regulatory Authority may have
regard to whether the service is able to meet the prescribed
element or elements of the National Quality Standard or the
national regulations by alternative means and any matters
disclosed in the application.
Clause 91 provides that the Regulatory Authority may decide to grant the
service waiver or refuse the application. An applicant for a
service waiver must be notified of a decision within 60 days of
the application and a service approval must be issued specifying
the elements in relation to which the waiver applies.
Clause 92 provides that the Regulatory Authority may revoke a service
waiver.
For example, this action may be taken where the Regulatory
Authority considers the circumstances of the service to have
changed since the original decision, or if the service has since
fully complied with the elements set out in the waiver. A
revocation takes effect at the end of the period prescribed in
regulations. An approved provider may also apply in writing to
have a service waiver revoked.
An approved provider may seek a review of a decision to cancel
a service waiver to as set out in Part 8 of this Law.
Clause 93 provides that while the service waiver is in force the service will
be considered to comply with the element or elements specified
in the service waiver. This provision enables flexibility and
recognises the variable circumstances of services throughout
Australia. For example, a service operating in a rural or remote
24
area that is unable to attract a qualified staff member may be
given a service waiver to operate despite not meeting this
legislative requirement to provide a service to children in
remote communities.
Division 6--Temporary waiver
Clause 94 provides that an approved provider may apply for a temporary
waiver from the requirement to comply with a prescribed
element or elements of the National Quality Standard or the
national regulations. It is intended that a temporary waiver can
only be sought for elements relating to physical environment
and staffing arrangements of a service.
Clause 95 sets out the requirements for making an application to the
Regulatory Authority for a temporary waiver.
Clause 96 provides that the Regulatory Authority may seek further
information or inspect education and care service premises in
considering an application for a temporary waiver.
Clause 97 provides that in considering whether the grant of a temporary
waiver is appropriate, the Regulatory Authority may have
regard to whether special circumstances disclosed in the
application reasonably justify the grant of the temporary waiver.
Clause 98 provides that the applicant must be notified of a decision within
60 days of an application for a temporary waiver and, if granted,
a service approval must be issued specifying the elements of the
National Quality Standard or the national regulations on which
compliance is waived. A temporary waiver must specify the
period of the waiver, which can be no more than 12 months;
however, an approved provider may apply for a further
temporary waiver or to extend a temporary waiver.
Clause 99 provides that the Regulatory Authority may revoke a temporary
waiver.
For example, this action may be taken where the Regulatory
Authority considers the circumstances of the service to have
changed since the original decision, or if the service has since
fully complied with the elements set out in the temporary
waiver.
Clause 100 provides that a service is not required to comply with the
element or elements of the National Quality Standard specified
in the waiver.
25
Division 7--Exercise of powers by another Regulatory Authority
Clause 101 provides for any Regulatory Authority in whose jurisdiction a
family day care educator provides education and care as part of
a family day care service to exercise powers of the Regulatory
Authority in respect of that service. A Regulatory Authority
may only exercise a power to amend, suspend or cancel a
service approval after consulting with the Regulatory Authority
of each jurisdiction in which the family day care service
operates.
Division 8--Associated children's services
Clause 102 provides that this Law does not apply to an associated children's
service except where expressly provided.
Division 9--Offences
Clause 103 provides that it is an offence for a person to provide an
education and care service unless the person is an approved
provider in respect to that service, and the service is an
approved education and care service.
In the case of family day care, provider and service approval
does not apply to individual family day care educators who are
providing education and care to children for an approved family
day care service, but to the service itself.
Clause 104 provides for an offence to knowingly publish or cause to be
published an advertisement to provide an education and care
service without provider or service approval. It does provide
for the right of an approved provider to advertise without
service approval if an application for this approval has been
made and is under consideration.
PART 4--SUPERVISOR CERTIFICATES
Division 1--Application for supervisor certificate
Clause 105 enables a person issued with a supervisor certificate to be
placed in day to day charge of an approved education and care
service.
Clause 106 provides that a person over the age of 18 may apply to the
Regulatory Authority of the jurisdiction in which they
ordinarily reside or intend to reside for a supervisor certificate.
26
Clause 107 sets out the requirements for making an application for a
supervisor certificate.
Clause 108 provides that an applicant must satisfy the Regulatory Authority
of their fitness and propriety to be a supervisor of an education
and care service, and meet the minimum requirements relating
to qualifications, experience and management capability.
A person who is a registered teacher or who holds a current
working with children card is taken to satisfy the fitness and
propriety requirements unless there is evidence to the contrary.
Clause 109 specifies factors to be taken into account by the Regulatory
Authority in assessing whether a person is fit and proper to
supervise an education and care service, including, but not
limited to, compliance history and decisions in relation to this
Law as applying in any participating jurisdiction and other
relevant laws.
The Regulatory Authority may also have regard to whether the
person has a medical condition which may affect his or her
capacity to be a supervisor.
Clause 110 provides for the Regulatory Authority to seek further
information or inquire further to determine whether the person
is fit and proper.
Clause 111 provides that a Regulatory Authority may grant or refuse to
grant a supervisor certificate. A Regulatory Authority is taken
to have refused to grant a supervisor certificate if it has not
notified an applicant of a decision within 60 days of the date of
the application and has not, with the applicant's agreement,
extended this period of deliberation.
A person may seek a review of a decision to refuse to grant a
supervisor certificate as set out in Part 8 of this Law.
Clause 112 provides that the Regulatory Authority must refuse to grant a
supervisor certificate if the applicant is under the age of 18, the
Regulatory Authority is not satisfied that the person is fit and
proper or has the required qualifications, experience or
management capability to supervise an education and care
service.
Clause 113 provides that the Regulatory Authority must give written notice
to the applicant of a decision and the reasons for the decision, to
grant or refuse to grant a supervisor certificate within seven
days of the decision.
27
Clause 114 provides for the grant of a supervisor certificate to a person or a
prescribed class of persons. An application is not required.
Clause 115 provides that a supervisor certificate is granted subject to any
conditions imposed by this Law or determined by the
Regulatory Authority. The certified supervisor must, to the
extent that a matter is within his or her control, comply with this
Law in relation to that matter, and must notify the Regulatory
Authority of any change to his or her mailing address or name.
Penalties apply for non-compliance with a condition of a
supervisor certificate.
A certified supervisor may seek a review of a decision to
impose a condition on a supervisor certificate as set out in
Part 8 of this Law.
Clause 116 provides that the Regulatory Authority must issue a supervisor
certificate if certification is granted, and sets out the information
to be included on the certificate.
Clause 117 provides that a supervisor certificate enables a person to be a
nominated supervisor and to be the responsible person present
at the premises of an education and care service in the absence
of the approved provider or nominated supervisor.
Division 2--Reassessment
Clause 118 provides that the Regulatory Authority may reassess the fitness
and propriety for a certified supervisor at any time.
Division 3--Amendment of supervisor certificate
Clause 119 provides that a certified supervisor may apply to the Regulatory
Authority for an amendment of a supervisor certificate, and sets
out the process for making an application. As an example, a
certified supervisor may seek the removal of a condition on a
supervisor certificate. The Regulatory Authority may accept or
refuse the amendment sought by a certified supervisor or,
amend the certificate in another way with the written agreement
of the applicant.
A certified supervisor may seek a review of a decision to refuse
to amend a supervisor certificate as set out in Part 8 of this Law.
Clause 120 provides that the Regulatory Authority may by written notice
amend a supervisor certificate at any time, which has effect
14 days after the notice is given or at any later date stated in the
notice. An example of when this action may be taken is where
28
the Regulatory Authority decides to add or remove a condition
on a supervisor certificate.
A certified supervisor may seek a review of a decision to amend
a supervisor certificate as set out in Part 8 of this Law.
Clause 121 provides that a certified supervisor must notify the Regulatory
Authority of any change in his or her circumstances that affects
the requirement that the person be a fit and proper person and
meet the prescribed minimum requirements for qualifications,
experience or management capability; or any change to matters
included on the supervisor certificate, any suspension or
cancellation of a working with children check or working with
children card and any disciplinary proceedings under an
education law. Penalties apply for non-compliance.
Clause 122 provides that the Regulatory Authority may amend a supervisor
certificate in the event that a certified supervisor notifies of
changes to information stated on a supervisor certificate.
Division 4--Suspension or cancellation of supervisor certificate
Clause 123 provides for the circumstances under which the Regulatory
Authority may suspend or cancel a supervisor certificate, on the
grounds of an assessment that the person is no longer a fit and
proper person to be a supervisor of an education and care
service, or the person fails to comply with a condition of the
supervisor certificate or a requirement of this Law.
A certified supervisor may seek a review of a decision to
suspend or cancel a supervisor certificate as set out in Part 8 of
this Law.
Clause 124 provides that if the Regulatory Authority is considering
suspending or cancelling a supervisor certificate it must first
issue a show cause notice outlining the intended action, the
reasons for the decision, and the process for the certified
supervisor to respond to the notice.
Clause 125 provides that the Regulatory Authority, after considering
the response from the certified supervisor provided under
clause 124, may suspend, cancel or decide not to suspend or
cancel the supervisor certificate.
Clause 126 provides that, if the Regulatory Authority is satisfied that there
is an immediate risk to the safety, health or wellbeing of a child
or children, a supervisor certificate may be suspended without
giving a show cause notice.
29
Clause 127 provides that the Regulatory Authority must give written notice
to the approved provider of the decision to suspend or cancel a
supervisor certificate.
A notice of a decision to suspend must set out the period of
suspension and the date on which it takes effect, which, if a
show cause notice has been issued, is to be 14 days after the
date of the decision unless otherwise stated. If a show cause
notice has not been given, the suspension takes effect on the
giving of the notice of the decision to suspend.
Clause 128 provides for the suspension or cancellation of a supervisor
certificate if the teacher registration of a person taken to be a fit
and proper person under clause 108 is suspended or cancelled.
This action will not apply if the person is assessed as a fit and
proper person under the regular process set out in clause 109.
The supervisor certificate of a person is immediately suspended
or cancelled if his or her working with children card is
suspended or cancelled.
Clause 129 provides for a certified supervisor to apply in writing to the
Regulatory Authority to voluntarily suspend their supervisor
certificate for a period of not more than 12 months. If satisfied
that the suspension of the supervisor certificate is reasonable in
the circumstances, the Regulatory Authority may by written
notice agree to the suspension.
Clause 130 provides for the voluntary surrender and subsequent
cancellation of a supervisor certificate and sets out the process
for this action.
Division 5--Exercise of powers by another Regulatory Authority
Clause 131 provides for the Regulatory Authority of a participating
jurisdiction to exercise all the powers under this Part in respect
of a supervisor certificate if the supervisor works in that
jurisdiction. These powers may only be exercised after
consultation with the Regulatory Authority of each participating
jurisdiction in which the certified supervisor works.
Division 6--Offence
Clause 132 provides for an offence for a person to hold himself or herself
out as a certified supervisor without holding a supervisor
certificate.
30
PART 5--ASSESSMENTS AND RATING
Division 1--Assessment and rating
All services under the National Quality Framework will be subject to an
assessment and rating process against the National Quality Standard and the
requirements of the national regulations. These assessments and ratings will
provide information to families about the quality of services. Under the
National Quality Framework, services will be assessed against seven quality
areas, and will be given one of five rating levels for each quality area and an
overall rating.
Clause 133 provides that the Regulatory Authority that granted the service
approval for an education and care service, may at any time
assess or reassess a service for the purpose of rating that service
against the National Quality Standard and national regulations.
New services or services that have not yet been rated will have
a prescribed provisional rating.
Clause 134 provides that the rating levels to be used in this Law are
prescribed by the regulations. The highest rating level may
only be given by the National Authority on application by an
approved provider.
Clause 135 enables the Regulatory Authority to determine a rating level for
each quality area stated in the National Quality Standard and an
overall rating for the service. In doing so the Regulatory
Authority may have regard to any information obtained in the
course of the rating assessment, any compliance history, any
monitoring or investigation of the service or any other
prescribed information.
Clause 136 provides that the Regulatory Authority must give written notice
to an approved provider of an assessment and the rating
decision. This notice must be given within 60 days after the
completion of the assessment by an authorised officer of the
service for the purpose of an assessment or after the review
period under clause 137.
Clause 137 provides for the suspension of a rating assessment if the
provider or service approval is cancelled or suspended, a
compliance notice or an emergency action notice has been given
or action has been taken for the emergency removal of children.
In this situation the Regulatory Authority must give notice that
the outcome of the rating assessment will be given within
60 days after either the end of the period for seeking a review of
the decision or action, or, if a review is sought, once a decision
is made.
31
Division 2--Reassessment and re-rating
Clause 138 provides that the Regulatory Authority may reassess a service at
any time and determine new rating levels.
Clause 139 provides that an approved provider may apply to the Regulatory
Authority for a reassessment and re-rating of a service and the
process for making an application. An application for a
reassessment or re-rating may only be made once every two
years or otherwise as agreed by the Regulatory Authority.
Clause 140 provides that Division 1 relating to assessments and ratings also
applies to reassessments and re-ratings under this Division.
Division 3--Review by Regulatory Authority
Clause 141 provides that an approved provider may ask the Regulatory
Authority to review the rating assessment made by the
Regulatory Authority within 14 days of receiving the rating
notice under clause 136, and sets out the process for requesting
a review.
Clause 142 sets out the process for the Regulatory Authority to review a
rating decision upon application by an approved provider and
the period within which a review must be conducted. To ensure
the review is independent and the principles of natural justice
are provided for, the person undertaking the review must not
have been involved in the original assessment. The Regulatory
Authority may request further information in undertaking a
review.
Clause 143 provides that the Regulatory Authority may confirm or amend a
rating assessment as a result of a review and must notify an
approved provider of a decision and the reasons for it within
30 days of the decision being made. The rating decision made
by the review is final unless an application to review the
decision is made to the National Authority under clause 144.
Division 4--Review by Ratings Review Panel
Subdivision 1--Application for review
Clause 144 provides that, following a review by the Regulatory Authority,
an approved provider may apply to the National Authority for
further review of the rating assessment by a Ratings Review
Panel. An application may only be made on the grounds that
the Regulatory Authority failed to apply prescribed processes or
32
failed to take into account relevant circumstances or facts at the
time of the assessment.
Clause 145 sets out the process for making an application for a review by
the Ratings Review Panel, which must be made within 14 days
of the review decision made by a Regulatory Authority. As the
review is confined to whether prescribed processes were applied
and relevant circumstances and facts were taken into account,
an application must not include information or evidence that
was not given to the Regulatory Authority during a rating
assessment or a review of a rating assessment. The National
Authority must give written notice to the Regulatory Authority
of the application and invite the Regulatory Authority to make a
submission to the review.
Subdivision 2--Establishment of Ratings Review Panel
Clause 146 provides for the establishment of a Ratings Review Panel by the
Board of the National Authority.
Clause 147 provides for the establishment of a Ratings Review Panel pool
to act as members of the Panel, and sets out the required
qualifications for members. The pool is to consist of members
nominated by Regulatory Authorities and the Commonwealth
Minister and may include a member of staff of the National
Authority.
Clause 148 sets out the procedure to be followed by the Ratings Review
Panel, including how it must record its deliberations.
Clause 149 provides for the transaction of business by telephone, closed
circuit television or other means.
Subdivision 3--Conduct of Review
Clause 150 sets out the parameters for a review by the Ratings Review
Panel, including evidence that may be considered and
information and advice that may be requested. In the interests
of procedural fairness, copies of documents, information or
evidence produced by the Regulatory Authority must be
provided to the approved provider.
Clause 151 provides that as a result of a review the Ratings Review Panel
must make a decision of the review within 60 days, unless
otherwise extended by the chairperson of the Panel, to confirm
the assessment of the Regulatory Authority or amend the
assessment and rating levels. The outcome of the review must
be conveyed to the Regulatory Authority and the approved
33
provider within 14 days of a decision and the rating level
confirmed or amended by the review becomes the rating level
for the service.
Division 5--Awarding of highest rating
It is intended that the highest rating under the National Quality Standard and
national regulations will recognise services that exhibit excellence and best
practice in education and care. This rating is determined by the National
Authority.
Clause 152 enables an approved provider who satisfies the criteria
established by the National Authority to apply to be assessed for
the highest overall rating level and sets out the process for
applying. An application may be made once every three years
unless otherwise determined by the National Authority.
Clause 153 provides that the National Authority may determine and publish
the criteria for meeting the highest rating. The Board of the
National Authority will assess if services meet the highest rating
level, and in doing so must ask for, and take into account, the
advice of the Regulatory Authority.
Clause 154 enables the Board to ask the approved provider for information
and documents, and make any inquiries it considers appropriate
for the purposes of a rating assessment.
Clause 155 provides that the Board of the National Authority may confer or
refuse to confer the highest rating on a service within 60 days of
receiving an application, or a further 30 days under prescribed
circumstances. A conferral of the highest rating lasts for
three years unless revoked sooner.
Clause 156 provides that the Board must give written notice of the decision
to confer or refuse to confer the highest rating level on a service
to the approved provider and the Regulatory Authority.
Clause 157 provides that the Board may at any time reassess a service.
Clause 158 provides that the Board of the National Authority must revoke
the highest rating level for a service at any time if it determines
that the service no longer meets the criteria for the highest
rating level, or the Regulatory Authority advises that the overall
rating level of the service is lower than the second highest rating
level.
34
Clause 159 enables an approved provider that has had the highest rating
level conferred on a service to re-apply for the highest rating
level within 90 days before the expiry of the rating, and sets out
the process for making the application.
Division 6--Publication of rating levels
Clause 160 sets out the process by which the National Authority must
publish rating levels. The publication of ratings seeks to
improve public knowledge about, and access to, information
about the quality of services, which is a key driver of education
and care reforms. Ratings are not published until after any
period for seeking review expires or a decision on a review of a
rating decision is made.
PART 6--OPERATING AN EDUCATION AND CARE
SERVICE
In order to fulfil the objectives and principles of this Law, this Part sets out
obligations for approved providers, nominated supervisors, staff members
and family day care educators, and prescribes penalties for infringement or
non-compliance. The penalties for the offences included in this Law reflect
a scale of seriousness; and the offences are applied to the most appropriate
persons in recognition of different levels of responsibility.
Clause 161 provides that an approved provider must not operate a service
without a nominated supervisor for the service.
Clause 162 provides that an approved provider must ensure that at least
one person approved or certified by the Regulatory Authority is
present at an education and care service at all times.
A responsible person is the approved provider or a person with
management or control of a service; the nominated supervisor
of the service; or a certified supervisor who has been placed in
day to day charge of the service.
This provision does not apply to family day care services, which
are provided for in clauses 163 and 164.
Clause 163 provides that a family day care service must at all times employ
or engage a suitably qualified co-ordinator to assist in the
operation of the service and support, monitor and train the
service's family day care educators.
Clause 164 provides that a family day care service must ensure that at least
one person approved or certified by the Regulatory Authority is
available and contactable to provide support to a family day
care educator at all times when the service is caring for
children. This person is the approved provider or a person with
35
management or control of the service; the nominated supervisor
of the service; or a certified supervisor who has been placed in
day to day charge of the service.
Clause 165 provides that an approved provider, nominated supervisor or
family day care educator must ensure children are adequately
supervised at all times they are in the care of that service.
Clause 166 provides that an approved provider, nominated supervisor, staff
member or family day care educator must ensure that no child is
subject to corporal punishment or unreasonable discipline.
Clause 167 provides that an approved provider, nominated supervisor or
family day care educator must ensure reasonable steps are taken
to protect children from harm and from hazards likely to cause
injury.
Clause 168 provides that an approved provider or nominated supervisor
must ensure that a program based on an approved learning
framework (such as the Early Years Learning Framework or
any proposed framework for school age care) is delivered to all
children and takes into account each child's needs, interests,
experiences and individual differences.
Clause 169 provides that an approved provider, nominated supervisor or
family day care educator must ensure compliance with
prescribed staffing numbers and qualifications, unless the
service has been granted a temporary waiver or a service
waiver. This clause also provides for the National Authority to
determine the equivalency of qualifications, including foreign
qualifications, in relation to those required under the national
regulations.
Clause 170 provides that an approved provider, nominated supervisor or
family day care educator must ensure unauthorised persons do
not remain on service premises unless they are under the direct
supervision of an educator or staff member of the service.
This clause also clarifies who is not considered to be an
unauthorised person, including holders of a current working
with children check or card, and persons who are not required to
hold a working with children card; parents, or an authorised
nominee of a parent; family members; and in an emergency,
medical and emergency service personnel.
36
Clause 171 provides that a Regulatory Authority may direct an approved
provider, a nominated supervisor or a family day care educator
to exclude an inappropriate person from the premises for such
time as the Regulatory Authority considers necessary.
For clarity, an inappropriate person is a person who may pose a
risk to the safety, health or wellbeing of children; or whose
behaviour, state of mind or pattern of behaviour is such that it
would be inappropriate for him or her to be on the premises
while children are attending, for example a person who is under
the influence of drugs or alcohol.
Clause 172 provides that prescribed information, including, but not limited
to, service and provider approvals, nominated supervisors or the
prescribed class of person to which the nominated supervisor
belongs, ratings decisions, service waivers and temporary
waivers must be displayed at the main entrance of a service.
Clause 173 provides that an approved provider must notify the Regulatory
Authority in relation to changes in the name of the approved
provider; management and control of the approved provider;
failure to commence operating an education and care service
within six months and an approved provider must notify the
Regulatory Authority of matters in relation to operation of an
education and care service including suspension, cancellation or
disciplinary proceedings or other action taken against a
nominated supervisor or certified supervisor; changes relating to
the engagement of a nominated supervisor; and changes relating
to the education and care service premises; ceasing to operate a
service; and change in the principal office of the family day care
service.
Clause 174 provides that an approved provider must notify the Regulatory
Authority of any serious incidents at the service as prescribed in
the national regulations; complaints regarding the safety, health
or wellbeing of a child or children; the contravention of this
Law; any change relevant to an assessment of fitness and
propriety; or any other prescribed information.
Clause 175 provides that an approved provider or a family day care
educator must keep the relevant prescribed documents and
make them available for inspection by an authorised officer.
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PART 7--COMPLIANCE WITH NATIONAL LAW
Division 1--Notices
Clause 176 provides that, if the Regulatory Authority is satisfied that an
education and care service is not complying with a prescribed
provision of this Law, it may issue a written direction requiring
the approved provider to take action to comply with the
provision within a specified period not less than 14 days.
An approved provider must comply with a compliance
direction.
Clause 177 empowers a Regulatory Authority to issue a compliance notice
if a service is not complying with any provision of this Law.
The notice requires the approved provider to take specified
steps to comply with that provision. An approved provider
must comply with a compliance notice
Clause 178 provides for the Regulatory Authority to direct the approved
provider of a family day care service to suspend the provision of
care or education by a family day care educator in the interests
of children's safety, health and wellbeing.
The Regulatory Authority may give a show cause notice
indicating the intention to direct the suspension of the provision
of education and care and the reasons for the proposed
direction. An approved provider, nominated supervisor or
educator may, within fourteen days after the show cause notice
is given, make a submission, which must be considered by the
Regulatory Authority. The Regulatory Authority must convey a
final decision to the approved provider and the family day care
educator. A person must comply with a direction given by the
Regulatory Authority.
Clause 179 empowers a Regulatory Authority to issue an emergency action
notice if there is an immediate risk to the safety, health or
wellbeing of children.
The Regulatory Authority may direct an approved provider of a
service to take action to remove or reduce the risk within a
specified timeframe, which must not be more than 14 days.
An approved provider must comply with this notice.
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Division 2--Enforceable undertakings
Clause 180 provides for enforceable undertakings, which are an alternative
compliance tool through which a person in contravention of this
Law undertakes to take, or refrain from taking, certain actions
to comply with this Law. By agreeing to, and complying with,
an enforceable undertaking, proceedings cannot be brought
against the person for the prescribed offence under this Law;
however the Regulatory Authority may publish an undertaking.
Clause 181 provides that, in the event of failure to comply with an
enforceable undertaking, the Regulatory Authority may seek
recourse to the relevant tribunal or court to enforce the
undertaking, and the tribunal or court may make orders
regarding the undertaking, including an order to direct the
person to comply with the undertaking. If the relevant tribunal
or court determines that the person has failed to comply with a
term of the undertaking, proceedings may be brought for any
offence or contravention in respect of which the undertaking
was given.
Division 3--Prohibition notices
Clause 182 provides for the Regulatory Authority to issue a prohibition
notice to persons involved in providing an education and care
service if it considers that there may be an unacceptable risk of
harm to a child if the person were allowed to remain on the
premises or to provide education and care to children.
Clause 183 provides that the Regulatory Authority must issue a show cause
notice outlining the intention to give a prohibition notice and
the reasons for the intended prohibition. The show cause notice
must also provide the person at least 14 days to respond to the
notice. The requirement for a show cause notice does not apply
if the Regulatory Authority is satisfied that it is necessary in the
interests of a child's safety, health or wellbeing to issue an
immediate prohibition notice.
Clause 184 provides that the Regulatory Authority must consider any
submission received within the stated time limit from a person
issued with a show cause notice, and must give notice to a
person if it is decided not to issue a prohibition notice.
A person may seek a review of a decision to issue a prohibition
notice as set out in Part 8 of this Law.
39
Clause 185 provides that a prohibition notice must state the activities the
person is prohibited from doing, inform that the person may
apply for cancellation of the notice, and provide details on how
an application to cancel the notice must be made.
Clause 186 provides for the process by which a prohibition notice is
cancelled, including the ability of a person subject to a
prohibition notice to apply for its cancellation. The Regulatory
Authority must decide on an application to cancel a prohibition
notice as soon as practicable.
A person may seek a review of a decision to refuse to cancel a
prohibition notice as set out in Part 8 of this Law.
Clause 187 provides that a person who is the subject of a prohibition notice
must not be engaged or involved in any capacity in an education
and care service, and must not fail to comply with any
restrictions on any other activity relating to an education and
care service. Penalties apply for non-compliance.
Clause 188 provides that an approved provider must not engage a person
who is the subject of a prohibition notice if the approved
provider knows or ought to have known that a prohibition
notice was in force. Penalties apply for non-compliance.
Division 4--Emergency removal of children
Clause 189 provides for the emergency removal of children if the
Regulatory Authority considers there to be an immediate danger
to the safety or health of any child educated or cared for by the
service. In undertaking this action, the Regulatory Authority is
empowered to use the assistance of other persons reasonably
required (including police officers), enter a premises without a
warrant and use reasonable force as necessary.
An example of when this action may be taken is where there is
reasonable belief that the environment is unsafe, children are
not being adequately cared for and supervised, or reasonable
precautions to protect children from hazards or harm have not
been taken.
PART 8--REVIEW
In addition to the provision of show cause notices in this Law, to ensure
adequate application of the principles of natural justice, this Part provides for
internal and external review of decisions made by the Regulatory Authority.
40
Division 1--Internal review
Clause 190 provides that a reviewable decision for internal review is a
decision of the Regulatory Authority to impose conditions on,
or otherwise amend or refuse to amend, a provider approval,
service approval or supervisor certificate; refuse to grant a
provider approval, service approval or supervisor certificate; to
suspend a provider approval, service approval or supervisor
certificate without prior issuance of a show cause notice; refuse
to consent to the transfer of a service approval; revoke a service
waiver; or issue a compliance direction or compliance notice.
Clause 191 sets out the procedure for internal reviews of decisions by a
Regulatory Authority. A person who is the subject of a
reviewable decision may make a written application to the
Regulatory Authority for review of the decision within 14 days
of being notified of the decision. The person who conducts the
review must not have been involved in the original assessment,
and may ask the applicant for further information.
The review must be conducted within 30 days of receipt of the
application, which may be extended by up to 30 additional days
if a request for further information is made, or by agreement
with the applicant. At the end of the review, the Regulatory
Authority may confirm the original decision or make any other
decision it deems appropriate.
Division 2--External review
Clause 192 provides that a reviewable decision for external review is a
decision of the Regulatory Authority under clause 191, other
than in relation to a compliance direction or compliance notice;
a decision to suspend or cancel a service approval, provider
approval or supervisor certificate; a decision to direct a family
day care service to suspend the provision of education or care
by a family day care educator; or a decision to issue or refuse to
cancel a prohibition notice.
Clause 193 provides that a person who is the subject of a reviewable
decision may apply to the relevant tribunal or court for review
of the decision within 30 days of notification of the decision to
be reviewed. The court or tribunal may confirm or amend the
decision of the Regulatory Authority or substitute another
decision for the decision of the Regulatory Authority, and in
doing so may have regard to a decision of a relevant tribunal or
court in another participating jurisdiction under this Law as
applying in that jurisdiction.
41
Division 3--General
Clause 194 provides that this Part of the Education and Care Services Law
applies despite any provision to the contrary in any Act that
establishes the relevant tribunal or court.
PART 9--MONITORING AND ENFORCEMENT
Division 1--Authorised officers
Clause 195 provides for the Regulatory Authority to authorise authorised
officers who meet the requirements determined by the National
Authority.
Clause 196 provides that an authorised officer must be issued with an
identity card, which must be carried in the exercise of the
authorised officer's functions and produced upon request.
Penalties apply for failure to produce an identity card on
request.
Division 2--Powers of entry
Clause 197 empowers an authorised officer to, at any reasonable time, enter
the premises of an approved education and care service or
premises where an authorised officer believes on reasonable
grounds that an approved service is operating, for the purposes
of monitoring compliance with this Law; a rating assessment; or
obtaining contact information of parents of children educated or
cared for by a service as set out in clauses 35 and 83.
The authorised officer may not enter a residence unless an
approved education and care service is operating at the
residence at the time of entry, or the occupier has given written
consent.
This clause also sets out powers and procedures in relation to
inspecting premises; taking photographs, recordings or
sketches; taking documents and records; and asking for
information from any person on the premises.
Clause 198 provides that a representative of the National Authority may
enter a service during its regular operating hours in the
company of an authorised officer of the Regulatory Authority
for the sole purpose of informing the National Authority of the
rating and assessment processes of the Regulatory Authority to
promote consistency across participating jurisdictions.
42
Clause 199 provides that an authorised officer may, with or without
consent, enter and inspect the premises of an education and care
service at any reasonable time if there are reasonable grounds
for suspecting that an offence against this Law may have been
or may be being committed. The premises or anything at the
premises may be inspected, recorded, photographed or copied
and the authorised officer may ask for information from any
person at the premises. Evidence may also be seized.
Clause 200 provides that an authorised officer may, with the consent of
the occupier, enter the principal offices or any other business
premises of an approved provider if the authorised officer
reasonably believes that documents or other evidence of the
commission of an offence against this Law are present.
The authorised officer must first inform the occupier of their
rights in relation to the entry and search of the premises.
Clause 201 provides for an authorised officer to enter premises with a
search warrant, and provides that Schedule 2 applies to its issue
and the powers to be exercised on entry.
Clause 202 provides for procedures in circumstances where things are taken
by an authorised officer, including a requirement to return the
item within 60 days, unless proceedings have commenced or a
court has extended this timeframe. The authorised officer must
provide the owner of the thing with reasonable access to the
item.
Clause 203 sets out the process for an authorised officer to apply to a court
for an extension of the period for which a thing may be held.
Division 3--Other powers
Clause 204 empowers an authorised officer to require a person who has
committed an offence or is reasonably suspected of committing
an offence against this Law to provide evidence of their correct
name and address.
Clause 205 empowers an authorised officer to require a person to state and
provide evidence of their correct date of birth, and to require the
person to state their name and residential address if they are
unable to comply with the request for proof of age, or the proof
of age shows that the person has not attained the required
minimum age.
The regulations of the Education and Care Services National
Law will set down minimum age requirements for specified
positions of authority within an education and care service.
43
Clause 206 provides for an authorised officer to, by written notice, require a
specified person to provide information specified in the notice
for the purposes of monitoring compliance with this Law, a
rating assessment or obtaining contact information of parents of
children attending a service as set out in clauses 35 and 83.
Specified person is defined in clause 206(4).
Division 4--Offences relating to enforcement
Clause 207 provides that a person must not obstruct an authorised officer in
exercising powers under this Law.
Clause 208 provides that a person must not refuse to answer a question,
refuse to provide information or fail to comply with a
requirement made by an authorised officer under clause 5(2)(f)
or (g) of Schedule 2 without a reasonable excuse.
Clause 209 provides that a person must not, without lawful authority,
destroy or damage any notice or document given, prepared or
kept under this Law.
Clause 210 provides that a person must not impersonate an authorised
officer.
Clause 211 provides that an individual may refuse to give or produce
information to an authorised officer that might tend to
incriminate the person. An individual may not, however, refuse
to produce a document that is required to be kept under this
Law or to give their name or address as required under this
Law. Any such document provided and any information
obtained from that document is not admissible in any criminal
or civil proceedings, except for criminal proceedings under this
Law.
Clause 212 provides that before requiring information or documents, an
authorised officer must produce identification, warn that failure
to comply constitutes an offence, and advise individuals about
the effect of clause 211 relating to the protection against self
incrimination.
Clause 213 provides that an occupier must be given a copy of their written
consent to entry and inspection, and the lack of written consent
is presumed to mean that the occupier did not consent to the
search.
44
Division 5--Powers of Regulatory Authority
Clause 214 provides that the Regulatory Authority may seek information
and documents from an approved provider and make inquiries
for the purpose of a rating assessment.
Clause 215 provides that if the Regulatory Authority reasonably suspects
that an offence against this Law has been, or may have been,
committed, it may by written notice require a specified person
to provide relevant information or documents specified in the
notice or appear to give evidence or any relevant document
specified in the notice. A person required to appear to give
evidence may give such evidence via telephone, video
conference or other electronic means unless the Regulatory
Authority has reasonable grounds to require the evidence to be
given in person. The Regulatory Authority must warn the
person that failure to comply with the requirement is an
offence and inform the person of the effects of clauses 217,
218 and 219. In this clause, specified person has the same
meaning as in clause 206(4).
Clause 216 provides that if the Regulatory Authority reasonably suspects
that an offence against this Law has been, or may have been,
committed, it may require a specified person at an education
and care service to provide information or documents relevant
to the suspected offence. The Regulatory Authority must warn
the person that failure to comply with the requirement is an
offence and inform the person of the effects of clauses 217,
218 and 219. A person must not be required remain at a
service for more than a reasonable time in providing such
information or documents. In this clause, specified person has
the same meaning as in clause 206(4).
Clause 217 provides that a person must not refuse or fail to comply with a
requirement of a Regulatory Authority to produce information
or documents or otherwise appear to give evidence under
clause 215 or 216.
Clause 218 provides that a person must not obstruct or hinder the
Regulatory Authority in its exercise of powers under
clause 215 and 216.
Clause 219 provides that a person is not excused from complying with a
requirement of a Regulatory Authority under clause 215 or
216 on the ground that complying may incriminate the person.
However, the answers or information provided by an
individual, and any information obtained because of that
answer or information, are not admissible in evidence against
45
the person in any criminal proceedings (other than
proceedings under this clause) or in any civil proceedings.
Information obtained from a document or documents that are
required to be kept under this Law are, however, admissible
against the person in criminal proceedings under this Law.
PART 10--MINISTERIAL COUNCIL
Under the governance arrangements set out in the National Partnership
Agreement, the National Quality Framework will be a jointly governed
national system with a three-tiered governance structure that includes the
Ministerial Council, the National Authority and State and Territory
Regulatory Authorities. At the apex of this structure with overall
responsibility for the National Quality Framework is the Ministerial Council.
Part 10 provides for the responsibilities, powers and functions of the
Ministerial Council for Education, Early Childhood Development and Youth
Affairs (the Ministerial Council).
Clause 220 provides that the functions of the Ministerial Council are--
· to oversee the implementation and operation of the
National Quality Framework;
· to promote uniformity in the application and
enforcement of the National Quality Framework;
· to review and approve the National Quality Standard
and set specific standards for education and care
services and classes of education and care services;
· to review and approve the rating level system to be used
in rating education and care services;
· to review and approve the fee structure under this Law;
· to review and approve new learning frameworks for the
purpose of this Law;
· to monitor the implementation and operation of, and
recommend improvements to, this Law;
· to monitor the implementation and operation of the
national regulations;
· to review the education and care services to which this
Law applies and recommend, or amend the national
regulations to provide for, the inclusion of new classes
of education and care service under this Law;
46
· to appoint the members of the Board of the National
Authority;
· to monitor and review the performance of the National
Authority;
· any other responsibilities conferred on the Ministerial
Council under this Law.
This clause also provides that the Ministerial Council must have
regard to the objectives and guiding principles of this Law in
carrying out its responsibilities.
Clause 221 provides that the Ministerial Council has the power to make
recommendations to the Board of the National Authority in
relation to the exercise of the National Authority's functions;
refer any matter to the Board of the National Authority for
consideration and advice; make regulations in accordance with
this Law; and anything necessary and convenient to perform its
functions.
Clause 222 provides that the Ministerial Council may give directions to the
Board of the National Authority in relation to the exercise of the
National Authority's functions regarding the collection and use
of information; reporting and accountability to the Ministerial
Council and Regulatory Authorities; the rating level system to
be used in rating education and care services; and the
application of the National Quality Framework.
The Ministerial Council may also give directions to a
Regulatory Authority with respect to its administration of the
National Quality Framework.
In the interests of maintaining objectivity and impartiality, a
direction under this clause cannot be about a particular person
or education and care service, a particular application, approval,
notification, assessment or proceeding, or the determination of a
rating for a particular education and care service.
A direction to the National Authority does not have legislative
standing; it must be given in writing to the Chairperson of the
Board of the National Authority and must not be inconsistent
with this Law or regulations. The Board of the National
Authority or a Regulatory Authority must comply with a
direction given to the Authority by the Ministerial Council.
47
Clause 223 clarifies that directions are to be given by resolution of the
Ministerial Council in accordance with its procedures.
This clause also provides that changes in membership of the
Ministerial Council do not affect acts or things done by the
Council.
PART 11--AUSTRALIAN CHILDREN'S EDUCATION AND
CARE QUALITY AUTHORITY
This Part establishes the second tier of the governance structure for the
National Quality Framework: the Australian Children's Education and Care
Quality Authority, as a national authority responsible for guiding the
implementation and ongoing administration of the Framework across
Australia. The National Authority will play a key role in monitoring and
promoting national consistency in the implementation and operation of the
National Quality Framework, and the Board of the National Authority will
report directly to the Ministerial Council.
Division 1--The National Authority
Clause 224 establishes the Australian Children's Education and Care
Quality Authority as a body corporate with perpetual
succession. The National Authority has a common seal, may
sue and be sued in its corporate name, and represents the State.
Clause 225 sets out the functions of National Authority. These functions
are consistent with, and build on, those set out in the National
Partnership Agreement, and include guiding implementation
and administration of the National Quality Framework,
reporting, provision of advice, and keeping national registers of
approved providers, services and supervisors and publishing
practice notes and guidelines.
The National Authority may also determine the qualifications
for educators under this Law and is responsible for establishing
consistent procedures for operation of the National Quality
Framework. In carrying out its functions, the National
Authority must ensure that the regulatory burden on services is
minimised as far as possible and must have regard to the
objectives and guiding principles of the National Quality
Framework.
Clause 226 provides that, if the National Authority considers it necessary, it
may advise or seek guidance from the Ministerial Council.
Clause 227 provides that the National Authority has all the powers of an
individual, particularly in relation to contracts, property,
borrowing and investment, the development and supply of
48
resources to the education and care sector, and anything
necessary or convenient in the exercise of its functions.
The National Authority may collect, hold and use information;
develop protocols for communication and dispute resolution
among the National Authority, Regulatory Authorities and the
relevant Commonwealth Department; make decisions regarding
fees; and undertake research and analysis.
Clause 228 enables the National Authority to perform its functions in
co-operation with, or with the assistance of, a participating
jurisdiction or the Commonwealth. The National Authority
may request and use information for the purpose of performing
its functions, and a person or body subject to such a request is
authorised to provide information to the National Authority.
Clause 229 provides for the National Authority to undertake processes
relating to audit and evaluation in relation to the administration
of the National Quality Framework. The National Authority
will report to the Ministerial Council on the outcomes of any
audit or evaluation.
Division 2--The Board of the National Authority
Subdivision 1--Establishment and responsibilities
Clause 230 establishes the Australian Children's Education and Care
Quality Authority Board as the governing body of the National
Authority.
Clause 231 sets out the functions of the Board, including ensuring the
effective and efficient functioning of the National Authority,
and reporting to the Ministerial Council.
Clause 232 provides that the Board must consist of up to 13 members
(one member appointed for each State and Territory, four
members appointed for the Commonwealth, and one
Chairperson appointed by consensus by the Ministerial
Council). The Deputy Chairperson is to be appointed from the
12 appointed Board members by consensus of the Ministerial
Council. This clause also sets out Board members' required
professional skills and expertise and provides that the
Ministerial Council must seek to ensure a balance of skills and
expertise in its appointment of members.
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Subdivision 2--Members
Clause 233 provides that members hold office on terms and conditions
determined by the Ministerial Council (which may include
appointment on a part-time basis). It also provides that a period
of appointment is for not more than a three year term for Board
members and a maximum period of appointment of two
consecutive terms.
Clause 234 provides for remuneration for Board members as set by the
Ministerial Council.
Clause 235 sets out the circumstances under which the office of a Board
member shall become vacant, and the grounds under which the
Ministerial Council may remove a Board member.
Clause 236 provides for acting arrangements for the Chairperson, Deputy
Chairperson and members of the Board.
Clause 237 provides for leave of absence to be granted to the Chairperson
of the Board of the National Authority and other members of
the Board.
Clause 238 seeks to protect the independence and impartiality of the Board
by providing that a Board member must disclose a direct or
indirect pecuniary or other interest in a matter being considered
by the Board that may be cause for conflict of interest.
After declaring the interest a board member must not be present
at, or take any part in, the deliberation and decision-making
process, or be provided with any written material on the matter
in question unless otherwise decided by the Board or
Ministerial Council.
Subdivision 3--Procedure of Board
Clause 239 sets out the procedures for convening meetings of the Board.
Clause 240 sets the quorum for Board meetings at nine, including the
Chairperson or Deputy Chairperson. A quorum must have five
participating jurisdictions present, plus a member representing
the Commonwealth.
Clause 241 provides that the chief executive officer may attend meetings of
the Board, in an advisory role. As the chief executive officer is
not a member of the Board, he or she does not have voting
privileges.
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Clause 242 provides for the Chairperson or, in the absence of the
Chairperson, the Deputy Chairperson to preside over Board
meetings.
Clause 243 sets out the voting procedures for Board meetings, including
provision for a second casting vote by the Chairperson or
Deputy Chairperson in the case of an equal vote. It also
provides that if a decision to recommend a matter to the
Ministerial Council is not arrived at by consensus, the
Ministerial Council must be advised of the reasons for, and
extent of, the minority opinion. This will assist the Ministerial
Council in its deliberations by providing more information and
alternative points of view on the matter.
Clause 244 provides that a decision is not invalidated by any defects in the
appointment of members of the Board. This measure is
required to safeguard the continuous operation of the National
Quality Framework from challenges to the Board's decisions on
these grounds.
Clause 245 provides for the transaction of business by telephone, closed
circuit television or other means.
Clause 246 provides for the Board to delegate any of its functions to the
Regulatory Authority; the chief executive of a government
entity or department of a participating jurisdiction; the chief
executive officer of the National Authority; any other entity,
with the approval of the Ministerial Council; or a committee
established by the Board.
Clause 247 provides that the Board of the National Authority may establish
and determine the procedure of committees to assist it in the
performance of its functions. The National Authority must
report to the Ministerial Council on the activities of a
committee.
Subdivision 4--Chief executive officer of the National Authority
Clause 248 establishes the process for the appointment of the chief
executive officer of the National Authority, which may be made
only after the Ministerial Council has endorsed the appointment
on the recommendation of the Board.
Clause 249 provides that the chief executive officer reports to the Board of
the National Authority. The chief executive officer's functions
include responsibility for the day to day management of the
National Authority, and working in collaboration with
Regulatory Authorities and the Commonwealth.
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Clause 250 sets out the terms and conditions of appointment for the chief
executive officer after endorsement of the Board's
recommendation by the Ministerial Council.
Clause 251 provides for the Board to decide the remuneration for the chief
executive officer.
Clause 252 provides for the office to become vacant upon the resignation or
death of the chief executive officer, or upon termination by the
Board.
Clause 253 provides for the process for the resignation of the chief
executive officer.
Clause 254 sets out the circumstances for termination of the appointment of
the chief executive officer by the Board.
Clause 255 provides for the Board to appoint a person to act as the chief
executive officer for a period no longer than six months.
Clause 256 provides for the full disclosure of interests by the chief
executive officer.
Subdivision 5--Staff, consultants and contractors
Clause 257 provides for the National Authority to employ staff and decide
on terms and conditions of employment.
Clause 258 provides for the National Authority to second staff from a
government agency of a participating jurisdiction or the
Commonwealth in consultation with those parties.
Clause 259 provides for the National Authority to engage consultants and
contractors, and decide on terms and conditions of engagement.
PART 12--REGULATORY AUTHORITY
The third tier of the governance structure is the Regulatory Authority in each
jurisdiction. The Regulatory Authority remains accountable to State and
Territory Ministers. It will be the main point of day to day contact for
services through its operational responsibility for the National Quality
Framework.
Clause 260 sets out the functions of the Regulatory Authority, including
administering the National Quality Framework, assessing and
rating education and care services, approving providers and
services, certifying supervisors and monitoring and enforcing
compliance with this Law and the national regulations.
The Regulatory Authority is also responsible for investigating
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complaints against services, information collection and
reporting and collaborating with and supporting the National
Authority.
Clause 261 sets out the powers of the Regulatory Authority. These powers
relate to fees, funding and collecting, maintaining, sharing and
publishing information.
Clause 262 provides for the Regulatory Authority to delegate functions.
PART 13--INFORMATION, RECORDS AND PRIVACY
In the interests of the nationally consistent application of this Law,
Commonwealth information and privacy laws will be applied instead of
separate laws in each participating jurisdiction.
Division 1--Privacy
Clause 263 provides that the Commonwealth Privacy Act applies as a law
for any participating jurisdiction for the purposes of this Law,
and provides for a reference to the Office of the Privacy
Commissioner to be taken as a reference to the Office of the
National Education and Care Services Privacy Commissioner.
Division 2--Application of Commonwealth FOI Act
Clause 264 provides that the Commonwealth Freedom of Information Act
applies as a law for any participating jurisdiction for the
purposes of this Law, and provides for a reference to the Office
of the Freedom of Information Commissioner to be taken as a
reference to the Office of the National Education and Care
Services Freedom of Information Commissioner.
Division 3--Application of New South Wales State Records Act
Clause 265 provides that the New South Wales State Records Act applies as
a law for any participating jurisdiction for the purposes of this
Law except to the extent that this Law applies to a Regulatory
Authority and the records of a Regulatory Authority.
The Public Records Act 1973 will apply to the Regulatory
Authority in Victoria.
Division 4--Registers
As provider approvals and supervisor certificates are nationally recognised
and valid across all jurisdictions, this Division makes provision for the
keeping of registers of approved providers and certified supervisors by the
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National Authority. A register of services operating within a jurisdiction will
also be kept by the Regulatory Authority.
Clause 266 provides that the National Authority must keep a register of
approved providers which may be inspected or copied.
Clause 267 provides that the Regulatory Authority must keep and publish a
register of education and care services including the rating
levels for each service, which may be inspected or copied.
Clause 268 provides that the National Authority must keep a register of
certified supervisors, which may be inspected or copied.
Clause 269 provides that the approved provider of a family day care service
must keep a register of family day care educators and any other
person engaged by the service, and must provide this
information to the Regulatory Authority on request.
Division 5--Publication of information
Clause 270 prescribes the information that may be published by the
Regulatory Authority or the National Authority. This includes
publication of ratings; enforcement actions, including
compliance notices; prosecutions; enforceable undertakings;
suspensions and cancellations. Information that could lead to
the identification of a person other than an approved provider,
certified supervisor or a person who is being prosecuted for an
offence under this Law must not be published.
Division 6--Disclosure of information
Clause 271 provides for the disclosure of information to prescribed parties
in respect of education and care services for the purposes of this
Law; research and development of national policy; funding
education and care services; providing payment to persons
using education and care services; compliance and disciplinary
action. A disclosure of information is subject to the privacy
provisions set out in clause 263 and any protocols approved by
the National Authority.
Information that could lead to the identification of a person
other than an approved provider, certified supervisor, family
day care educator who has been suspended from providing
education and care, prohibited person or a person who is being
prosecuted for an offence under this Law must not be disclosed.
Clause 272 provides that, upon the request of an approved provider, the
Regulatory Authority may disclose whether a person is subject
to a prohibition notice or whether a family day care educator
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has been suspended from providing education and care at the
direction of the Regulatory Authority. This disclosure is subject
to the privacy provisions set out in clause 263 and any protocols
approved by the National Authority.
Clause 273 provides that, unless under certain circumstances prescribed in
this clause, a person must not disclose protected information.
Penalties apply for contravening this provision.
PART 14--MISCELLANEOUS
Division 1--Finance
Clause 274 establishes the Australian Children's Education and Care
Quality Authority Fund, to be administered by the National
Authority.
Clause 275 prescribes the money provided by a participating jurisdiction's
Parliament for the purposes of the fund and other funds and
property to be paid into the Authority Fund.
Clause 276 prescribes the purposes for which payments may be made out of
the Authority Fund, including for administering the Law and
allocating, transferring or reimbursing monies to a participating
jurisdiction.
Clause 277 provides that the National Authority may invest money in the
Authority Fund as prescribed.
Clause 278 provides for the financial management duties of the National
Authority, including ensuring financial statements are prepared
in accordance with the Australian Accounting Standards.
Division 2--Reporting
Clause 279 outlines the timelines and required content for the National
Authority's annual report, including a financial report;
assessment of the implementation and administration of the
National Quality Framework; reporting on committees; and
Ministerial Council directions given to the National Authority
and the Regulatory Authorities. Australian Accounting
Standards will apply to the preparation of financial statements.
Clause 280 provides for the tabling of the annual report in the Parliament of
a participating jurisdiction determined by the Ministerial
Council, and its publication on the National Authority's website.
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Clause 281 provides for the National Authority to make any reports to the
Ministerial Council that it considers necessary and for the
Ministerial Council or individual Ministers to request a report
from the National Authority.
Division 3--Application of Commonwealth Ombudsman Act
Clause 282 provides that the Commonwealth Ombudsman Act applies as a
law for any participating jurisdiction for the purposes of this
Law except to the extent that this Law applies to a Regulatory
Authority and the employees, decisions, actions and records of a
Regulatory Authority. This clause provides for a reference to
the Commonwealth Ombudsman to be taken as a reference to
the National Education and Care Services Ombudsman.
Division 4--Legal proceedings
Clause 283 provides for proceedings for an offence to be brought by the
Regulatory Authority, a person authorised by the Regulatory
Authority or a police officer.
Clause 284 provides that proceedings for an offence under this Law must be
commenced within two years of the date of the alleged offence.
Clause 285 provides for a director or other person concerned with the
management of a body corporate that has committed an offence
to also be guilty and liable if they failed to exercise due
diligence to prevent the contravention.
Clause 286 provides that if this Law requires or permits something to be
done by a partnership or eligible association, the thing may be
done by, as relevant, one or more of the partners on behalf of
the partnership or one or more of the members of the executive
committee on behalf of the eligible association. An offence is
taken to be committed by, for partnerships, each partner who is
a person with management and control of the service; for
eligible associations, each person with management or control
of the association; and for prescribed entities, each person with
management or control of that entity.
Clause 287 provides that, in the case of multiple holders of a provider or
service approval, each holder of the approval is jointly and
severally responsible for compliance under this Law.
Clause 288 provides that if a person has been convicted or found guilty in
another participating jurisdiction for an offence against this
Law, proceedings cannot be brought in this jurisdiction against
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the same person in respect of an offence concerning the same
subject matter.
Clause 289 provides that a member of the Board of the National Authority,
a committee of the Board or the Ratings Review Panel and the
Regulatory Authority or a member of the governing body of a
Regulatory Authority are not personally liable for actions and
omissions done in good faith in the exercise of functions under
this Law. Any liability that would otherwise attach to such
individuals attaches instead to the National Authority or the
State as relevant.
Clause 290 provides that if the Regulatory Authority becomes aware of
misconduct by a registered teacher or other person who could
be subject to disciplinary action under a jurisdiction's education
law, the Regulatory Authority may refer the matter to the
relevant disciplinary body. If the Regulatory Authority refers a
matter to a disciplinary body, a prosecution cannot be brought
under this Law for an offence in relation to that matter.
Clause 291 provides that an authorised officer may serve an infringement
notice for infringements relating to displaying prescribed
information (clause 172), notifying the Regulatory Authority of
certain circumstances (clause 173), complying with a
compliance direction (clause 176) and any other offences
prescribed in the regulations.
An infringement penalty is 10 per cent of the maximum penalty
that could be imposed on a person in respect of the offence.
The payment of an infringement penalty expiates the offence,
which means the infringement cannot be considered in making a
decision on the fitness and propriety of a person or the
assessment of a service.
Clause 292 provides for a certificate signed by the chief executive of the
National Authority or by a Regulatory Authority to be taken as
prima facie evidence in prescribed matters stated in the
document.
Division 5--Service of notices
Clause 293 sets out the circumstances under which a notice, order or
document can be served or taken to be served on a person.
Clause 294 provides for effecting service of documents by post.
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Division 6--False or misleading information
Clause 295 provides that it is an offence for a person to give the Regulatory
Authority or an authorised officer, information or documents
that he or she knows to be false or misleading.
Division 7--Protection from reprisal
This Division seeks to enable the reporting of concerns about possible
breaches of this Law or the national regulations by providing protections to
persons who provide information to the Regulatory Authority.
Clause 296 defines protected disclosure as disclosure of information or
provision of documents to the Regulatory Authority pursuant to
a request made under this Law or where there is reasonable
belief that an offence has been, or is being committed under this
Law or the safety, health and wellbeing of a child is at risk.
Serious detrimental action is defined to include dismissal,
involuntary transfer, loss of promotion or demotion.
Clause 297 prohibits a person from taking or threatening to take serious
detrimental action against a person in reprisal for a protected
disclosure.
Clause 298 provides for proceedings seeking damages to be taken against a
person who takes serious detrimental action in reprisal for a
protected disclosure.
Clause 299 sets out procedures available to a person who believes that
serious detrimental action has been or may be taken against
them for a protected disclosure.
Clause 300 sets out possible actions to be taken by the superior court if it is
satisfied that a person has taken or intends to take serious
detrimental action against a person in reprisal for a protected
disclosure.
Division 8--National regulations
Clause 301 provides for the making, publishing and commencement of
national regulations. The Ministerial Council is responsible for
making regulations, which may include, but are not limited to,
fees; standards for education and care services; requirements for
educational programs; information required to be submitted,
displayed or published; and penalties.
Clause 302 provides for regulations to be published on the New South
Wales Legislation website and for the regulation to commence
on the day specified in the regulation.
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Clause 303 provides for any House of the Parliament in a participating
jurisdiction to disallow a regulation made under this Law.
A regulation will only cease to have effect if it is disallowed in
a majority of participating jurisdictions.
Clause 304 provides that the disallowance of a regulation by a majority of
participating jurisdictions has the same effect as a repeal of the
regulation. As a result, any law or provision of a law repealed
or amended by a regulation subject to clause 303 is revived as if
the disallowed regulation had not been made.
PART 15--TRANSITIONAL PROVISIONS
This Part provides for the transfer from existing legislative and regulatory
arrangements to the new arrangements set out under this Law.
Division 1--Introductory
Clause 305 sets out definitions for the purposes of the transitional
provisions under this Law. By declaring a definition relevant to
each jurisdiction, the approvals and actions will move across
from former children's services or other laws to this law.
The Regulatory Authority must provide a copy of the approvals
under this Law to the approved provider or certified supervisor
by 30 June 2012.
Division 2--Education and care services
Clause 306 provides for holders of a former approval under existing
arrangements to be taken to be an approved provider, and the
former approval held by the person or trust is taken to be a
provider approval under this Law.
Clause 307 provides for holders of a former approval to operate a service to
be taken to hold a service approval under this Law.
This does not extend to prescribed ineligible persons or
approvals that were under suspension at the time of transition to
this Law because the person who held that approval was not a
fit and proper person. Other suspensions, including voluntary
suspensions, and conditions are to be transferred intact under
this Law. The Regulatory Authority must provide each
declared approved service with a copy of the service approval
on or before 30 June 2012.
Clause 308 provides that a declared approved family day care venue
existing under a former education and care services law
immediately before the commencement day is taken to be an
approved family day care venue under this Law.
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Clause 309 provides for a person who operated a declared out of scope
service to be taken to hold a provider and service approval
for the declared out of scope service for the period starting
1 January 2012 and ending on 30 June 2012. If the person
applies under this Law for a provider approval and service
approval on or before 30 June 2012, this period is extended
until the applications are determined.
Clause 310 provides that a service that was exempt from a requirement of a
previous Law is taken to comply with the equivalent
requirement of this Law for the period starting 1 January 2012
and ending on 31 March 2012 and, if the provider applies to the
Regulatory Authority for a service waiver or temporary waiver
under this Law on or before 31 March 2012, this period is
extended until such application is determined.
Clause 311 provides that an application made under a former law that has
not been decided before the commencement of this Law is taken
to be an application for a provider approval and service
approval under this Law. It also provides that the Regulatory
Authority may seek more information or inspect premises and
documents in considering the application.
Clause 312 provides that where, under the former law, multiple approvals
were held for the same premises, these are taken to become one
service approval under this Law. This does not apply to former
approvals for family day care services.
Clause 313 provides that a service that was accredited by the National
Childcare Accreditation Council must continue to display its
accreditation until a rating is given under this Law. It must also
display a notice informing of the service's provisional rating and
that the service is approved to operate.
Clause 314 provides that in determining whether to suspend or cancel a
provider approval or service approval, the Regulatory Authority
may take into account any non-compliance by the approved
provider with a former education and care services law that
occurred in the 3 years preceding the commencement of this
Law, but must not suspend or cancel an approval based solely
on this information.
Clause 315 provides that a declared certified supervisor is taken to be a
certified supervisor under this Law. The Regulatory Authority
must issue a supervisor certificate on or before 30 June 2012.
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Clause 316 provides that a declared nominated supervisor is taken to be the
nominated supervisor of an education and care service under
this Law unless the approved provider of the service fails to
confirm the nomination or a declared nominated supervisor
does not consent to being the nominated supervisor for that
service.
Clause 317 provides that orders, directions and undertakings given under
the former law will remain in force under this Law.
Clause 318 provides that the Regulatory Authority may bring or continue a
prosecution for an offence under the former education and care
services law in relation to a service that is taken to be an
education and care service.
Division 3--National Authority
Clause 319 provides that the Ministerial Council is to convene the first
meeting of the Board of the National Authority.
Clause 320 provides that the first chief executive officer of the National
Authority is to be appointed by the Chairperson of the
Ministerial Council by consensus recommendation of the
Ministerial Council, with remuneration and other terms and
conditions set out in the appointment.
Clause 321 provides that the first annual report of the National Authority is
to be made within 4 months of the end of the financial year
ending 30 June 2012, and is to cover the period from the first
meeting of the National Authority to 30 June 2012.
Division 4--General
Clause 322 provides that Regulatory Authority must keep all documents
that were required for monitoring and enforcement under the
former laws and may make them available to the National
Authority and other Regulatory Authorities in participating
jurisdictions. These documents may be used for information
purposes such as informing rating assessments and fit and
proper deliberations under this Law. Providers must also keep
all documents required under the former law and must make
them available to the Regulatory Authority upon request.
Clause 323 provides that a declared approved learning framework is taken
to be an approved learning framework under this Law.
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Clause 324 provides for savings and transitional arrangements to be made
in the regulations.
SCHEDULE 1
This Schedule provides miscellaneous provisions relating to interpretation of
the National Law.
SCHEDULE 2
This Schedule provides for the issue of search warrants and powers of entry
exercisable under search warrant.
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