Department of Education v Trad

Court of Criminal Appeal (NSW)|2023-09-05|Before: Ward P, Dhanji J, Sweeney J

Solicitors: Hunt & Hunt Lawyers (Applicant) T & S Law Firm (Respondent) File Number(s): 2023/00190124 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2023] NSWDC 168 Date of Decision: 24 May 2023 Before: McHugh SC DCJ File Number(s): 2019/00383115

[This headnote is not to be read as part of the judgment] On 4 March 2019, Ms Helen Rataeu, a registered family day care educator, who worked for an approved provider of an approved family day care service (the Service), was responsible for the care of a baby. Unfortunately, due to Ms Rataeu not following safe sleep practices, the baby died whilst under her supervision. Ms Faten Trad (the respondent), the nominated supervisor for the Service, was charged on 15 November 2019 with three offences under the Children (Education and Care Services) National Law 2010 (NSW) (the National Law). The respondent was convicted of the offences in the Local Court, but was successful in having the convictions quashed in the District Court. After the quashing of the respondent's convictions, the applicant requested that a question of law be stated to this Court, submitting that the offence under s 165 of the National Law was one of absolute liability (rather than, as submitted in the District Court appeal, a strict liability offence). On 13 June 2023, McHugh SC DCJ submitted the following question of law to this Court: …does s 165(2) of the [National] Law impose absolute liability on a nominated supervisor of an approved family day care service when the nominated supervisor is not physically present, if it is proved that a child being educated and cared for by the service was not adequately supervised at all times that the child was in the care of the service? The primary issues on the application were as follows: first, whether s 5B of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) was engaged; second, whether the Court should exercise its discretion in answering the stated case; and third; whether s 165(2) of the National Law is an absolute liability offence.

The Court (Ward P, Dhanji and Sweeney JJ agreeing) answered the stated case question in the affirmative, but declined to interfere with the acquittals:

As to the first issue: (1) Section 5B(1) of the Criminal Appeal Act requires for there to be a question of law "arising" on the appeal. The concept of a question of law "arising" on an appeal does not necessarily require that it be one that was recognised and argued on the appeal. Although the applicant is now adopting a different position as to the status of the offence than what was raised in the District Court appeal, this goes to the discretionary questions that arise, not as to whether s 5B of the Criminal Appeal Act is engaged (Ward P at [30]-[33]; Dhanji J at [133]; Sweeney J at [134]).

As to the second issue: (2) Even where the stated case procedure is properly invoked, there remains a discretion whether to answer the question stated. The question raised is of public interest, however, the delay in raising this issue is a significant factor tending against the exercise of discretion. In balancing those matters, the stated case should be answered, but if answered in the affirmative, this Court should decline to grant the relief sought and allow the acquittal to stand (Ward P at [41]-[42]; Dhanji J at [133]; Sweeney J at [134]).

As to the third issue: (3) Balancing the indicators of absolute liability identified by Gibbs CJ in He Kaw Teh (1985) 157 CLR 523 at 530; [1985] HCA 43 is no simple task. On the one hand, the text of s 165 (compared with other sections in the legislation) points clearly to this being an offence of absolute liability. On the other hand, the unfairness of imposition of criminal liability on a person who is found to have taken all reasonable steps to ensure that the properly qualified person supervising children at a day care would provide "adequate supervision" points to the caution that must be exercised before construing a statutory offence as one of strict liability. However, having regard to the text of s 165(2), it is difficult to conclude otherwise than that the legislature has made it clear that the nominated supervisor is to be held liable for any transgression from circumstances which satisfy "adequate supervision" irrespective of his or her mens rea (Ward P at [120]-[121]; Dhanji J at [133]; Sweeney J at [134]). He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43, applied.

Judgment

WARD P: Before this Court is a question of law on a stated case submitted by McHugh SC DCJ pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). The stated case arises following a successful appeal by the respondent (Ms Faten Trad) in the District Court against her conviction in the Local Court for, relevantly, an offence under s 165(2) of the Children (Education and Care Services) National Law 2010 (NSW) (the National Law). The respondent had also been convicted of two other offences under the National Law and was successful in appealing those convictions as well. The respondent's convictions were quashed as were the orders made by the Local Court imposing fines on the respondent.
After the quashing of the respondent's convictions and the dismissal of the charges against her, the applicant (now the Secretary of the Department of Education (the Secretary)) requested that his Honour state a question of law for determination by this Court, the applicant submitting that the offence in s 165 of the National Law is an offence of absolute liability (rather than, as had been contended in submissions before his Honour in the District Court appeal, a strict liability offence to which a defence of honest and reasonable mistake of fact would lie).
McHugh SC DCJ acceded to that request (see Trad v Department of Education (NSW) [2023] NSWDC 168 (the stated case judgment)) and on 13 June 2023 his Honour submitted the following question of law to this Court: … does s 165(2) of the [National] Law impose absolute liability on a nominated supervisor of an approved family day care service when the nominated supervisor is not physically present, if it is proved that a child being educated and cared for by the service was not adequately supervised at all times that the child was in the care of the service?

Procedural matters

At the commencement of the hearing in this Court, an application was made on behalf of the applicant to regularise the parties to this proceeding by removing the previously named applicant (the Crown prosecutor who had commenced the proceedings in the Local Court as authorised by the Secretary, in her capacity as Executive Director of Early Childhood Education) and joining in his place as applicant the Secretary (as the Regulatory Authority for the purposes of the National Law - see s 9 of the Children (Education and Care Services National Law Application) Act 2010 (NSW) (the Application Act)). There was no opposition to this application by the respondent and the requisite order was made accordingly. The applicant is referred to in these reasons henceforth as the Secretary.
There was also a question raised as to whether an extension of time for the making of the present application might be considered necessary; and an order was made, again without opposition, that to the extent necessary there be an extension of time for the making of the present application. The respondent did not contend that leave was required pursuant to s 5B(2) of the Criminal Appeal Act and in my view it is not, having regard to the fact that the District Court proceedings did not come to an end until the costs issue was dealt with and resolved (see Tritton v Clarke [2018] NSWCCA 31 at [36] per White JA, with whom Hoeben CJ at CL and Fullerton J agreed). That said, the respondent relies upon the delay in the making of the application for the stated case in relation to the question of the discretion whether to decline to answer the question on the stated case (and as to whether, if the question be answered as the Secretary contends, the relief sought by the Secretary ought be granted).

Stated case

It was not disputed that the matter can only be dealt with on the materials included in the stated case (see Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176 at [13]-[14] per Gleeson JA, with whom Johnson and Price JJ agreed). However, the Secretary submitted that, insofar as the question of discretion arises, the background to the question of law now stated may be considered.
As recorded in the stated case, the following findings were made on the basis that McHugh SC DCJ was satisfied beyond reasonable doubt of those matters (stated case at [4]).
Kidstart Family Day Care Pty Limited was the approved provider of an approved family day care service (the Service) within the meaning of s 5 of the National Law; and the respondent was the nominated supervisor for the Service within the meaning of that section (stated case at [4.1]-[4.2]). The relevant statutory provisions are set out in due course.
On 4 March 2019, Ms Helen Rateau, a registered family day care educator for the Service, providing education and care for children in her home, was responsible for the care of a baby (stated case at [4.3]). Ms Rateau placed the baby wearing a bib, with a loose sheet and a pillow, in a bassinet and left him in the bassinet unsupervised for approximately 35-45 minutes (stated case at [4.4]). So doing (i.e., placing the baby in the bed with a bib and a loose sheet and pillow and leaving him for over 35 minutes) was contrary to all safe sleep practices and Ms Rateau (who was a qualified and experienced day care educator who had previously worked at other premises) knew this (stated case at [4.6]-[4.8]). The baby died while in Ms Rateau's care (stated case at [4.5]).
The respondent (Ms Trad), the nominated supervisor for the Service, had made sure that Ms Rateau was qualified and had appropriate training and documentation; and the respondent knew that Ms Rateau had the knowledge that her conduct referred to at [9] above was contrary to safe sleep practices (stated case at [4.9]). The respondent, by reason of having taken the steps referred to in the stated case at [4.9], and by making periodic inspections of the Service, took every reasonable precaution that the respondent was personally able to take to protect children being educated and cared for by the Service from harm and from any hazard likely to cause injury (stated case at [4.10]).
The respondent had no knowledge of the circumstances that existed and the events that unfolded while the baby was in Ms Rateau's care on 4 March 2019 (stated case at [4.11]). The respondent was not present (and, pursuant to s 162(2) of the National Law, was not required to be present) at the Service on 4 March 2019 (stated case at [4.12]).
There was no allegation that any action or inaction by Ms Rateau was causally related to the death of the child (stated case at [4.13]).

Court proceedings

On 15 November 2019, the respondent was charged by way of future Court Attendance Notice (CAN) in the Waverley Local Court returnable on 17 December 2019 with two offences contrary to the National Law and one offence contrary to the Education and Care Services National Regulations 2011 (NSW). The respondent denied the allegations and the matter proceeded by way of summary hearing in the Downing Centre Local Court between 16 and 18 November 2020. The respondent did not give evidence in those proceedings and there was no direct evidence of her state of mind (stated case at [6]).
On 14 April 2021, the respondent was found guilty of the three offences with which she was charged. The respondent was sentenced on 3 August 2021 by way of financial penalty for each offence with orders in favour of the applicant being made for moiety (see 8/11/22; T 2.39) pursuant to s 122 of the Fines Act 1996 (NSW) and for professional costs in the sum of $20,000 pursuant to s 215 of the Criminal Procedure Act 1986 (NSW).
By notice of appeal dated 25 August 2021, the respondent appealed to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW). That appeal was heard by McHugh SC DCJ on 8 November 2022. Tendered on the appeal was the transcript of the Local Court proceedings as well as the Exhibits in those proceedings (stated case at [5]). In determining the appeal, McHugh SC DCJ had regard, inter alia, to the Magistrate's reasons for judgment (stated case at [9]). The respondent did not give any evidence in the District Court hearing and again there was no direct evidence of her state of mind (stated case at [6]).
Relevantly, one of the two offences charged under the National Law was a breach of s 165(2) of the National Law which provides that a nominated supervisor of an education and care service "must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service".
The description of that offence in the CAN was described in the stated case (at [3]) as follows: The defendant was a nominated supervisor of an education and care service and failed to ensure that all children being educated and cared for by the service were adequately supervised at all times that the children were in the care of that service.
The short particulars of that offence set out in the CAN were (incorrectly) set out in the stated case (at [3]) as being simply a repetition of the above description of the offence. On the hearing of the stated case, the Secretary sought to tender a court copy of the CAN, which discloses that the short particulars there recorded were: A baby was placed in bassinet instead of cot, with bib around his neck, with loose sheet and pillow, and was not observed for 35-45 minutes
The court copy of the CAN (relied on by the Secretary solely as going to the question of discretion as to whether this Court should decline to answer the stated case - see AT 3.15ff) was marked MFI 1. It is difficult to see that the correct particularisation of the offence in question is relevant to the exercise of discretion on the stated case and for that reason its tender should be rejected.
As adverted to above, counsel for the prosecutor appearing in the District Court did not expressly rely upon the offence being an "absolute liability" offence when the matter was before McHugh SC DCJ. Rather, in written submissions, the prosecutor stated that "ensure" means guarantee or make certain (which the Secretary here contends reflects it being an absolute liability offence - see AT 9.12-28) and, in oral submissions, the prosecutor contended that the liability was "strict liability" and that the statutory provision allowed a defence of honest and reasonable mistake of the kind considered in Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28 (Proudman v Dayman) (stated case at [7]). As recorded in the stated case, when asking McHugh SC DCJ to state a case, the Secretary indicated that she had reconsidered her position and submitted that the offence in s 165 of the National Law was an offence of absolute liability (stated case at [8]).
If the Secretary's contention as to the question of law is accepted, the Secretary seeks an order quashing the orders made by McHugh SC DCJ and remitting the matter for determination.

Issues arising on stated case

The issues raised before this Court were: first, whether s 5B of the Criminal Appeal Act is engaged (the respondent contending it is not); second, whether the Court should exercise its discretion to entertain the stated case (the respondent contending it should not); third, if the Court does exercise in discretion to answer the stated case, whether the s 165(2) offence is an absolute liability offence; and, finally, if the Secretary's contention is correct, whether the relief sought should be granted.

(i) Is s 5B of the Criminal Appeal Act engaged?

Section 5B provides that: (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.
The respondent submits that s 5B is not engaged, as the question in the stated case did not arise on the appeal before McHugh SC DCJ. In that regard, the respondent cavils with the proposition that whether the question arose on the appeal is answered by whether the answer to the question was capable of affecting the outcome of the appeal (cf Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218 (Gibson) at 40(b) per Basten JA, with whom Meagher JA agreed).
In Gibson, Basten JA said that consideration of a request to submit a question of law to this Court under s 5B of the Criminal Appeal Act would involve forming a state of satisfaction, among other things, as to "whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome" (at 40(b)). The respondent contends that the question must be one that both arose on the appeal and was capable of affecting the outcome, pointing to Sasterawan v Morris [2008] NSWCA 70 (Sasterawan v Morris) at [99], where Tobias JA (with whom Beazley JA, as Her Excellency then was, and McClellan CJ at CL agreed) said that: … the only questions of law that may be submitted under the combined operation of ss 5B(1) and (2) for determination by the Court of Criminal Appeal are those which arise anterior to the disposal of the appeal proceedings. Questions of law that arise as a consequence of that disposal are not, in my view, amenable to the stated case procedure.
The respondent argues that, in circumstances where the prosecutor did not make any submission in the District Court proceedings that s 165(2) was an absolute offence, the question as to whether it was an absolute liability offence was not raised on the appeal; and hence the proposed question did not arise anterior to the disposal of the appeal proceedings.
The Secretary maintains, to the contrary, that the words "arising on [the] appeal" must mean that the answer to the question must be one that was capable of affecting the outcome (as Basten JA said in Gibson); and that the question in the present case is "anterior to the disposal of the appeal" in the sense that it controls the outcome of the appeal.
The Secretary says that the question of law in the stated case is one which arose on the appeal to the District Court (notwithstanding the prosecutor's submission recorded in the stated case at [7] that the liability was "strict liability"). The Secretary points in this regard to the contention made in the written submissions of the prosecutor on the appeal to the District Court that "ensure" meant to "guarantee", which it is said reflected a contention that the offence was one of absolute liability. The Secretary notes that the respondent's contention was that the offence was neither strict nor absolute; and argues that whether the offence was a "strict" liability offence or an "absolute" liability offence would have made no difference in the present case because the respondent did not advance a Proudman v Dayman defence. The Secretary submits that the facts summarised in the stated case would establish the respondent's criminal liability regardless of whether the offence was classified as "strict" or "absolute".
The Secretary argues that his Honour's determination either placed no weight on the difference between strict and absolute liability or was on the basis that he understood the prosecutor to contend that the offence was one of absolute liability (referring to his Honour's ex tempore reasons on 9 November 2022 at pp 6-7). In that regard, I note that at [50] of his Honour's reasons acceding to the request that the case be stated (the stated case judgment), his Honour said that "[h]ere, of course, I have given judgment in circumstances where the question of absolute liability was not addressed in that judgment as it was not addressed in argument", which does not support the contention that the appeal had been determined on the basis that his Honour had understood the prosecutor to be contending that the offence was an absolute liability offence.

Determination

The requirement under s 5B(1) is that there be a question of law "arising" on the appeal. Section 5B(2) contemplates that the question of law may be submitted even though the appeal proceedings during which the question arose have been disposed of.
The argument in the present case, on one view at least, is as to whether a question of law that a party belatedly considers could have affected the outcome of the appeal, but which was not raised during the appeal is one which engages the stated case procedure. I say "on one view" because the import of the Secretary's submissions, if I understand them correctly, is that the question as to the status of the offence was raised on the appeal (even though the proposition that it was an absolute liability offence was not expressly articulated) by reference to the respondent's contention that the offence was neither strict nor absolute and the prosecutor's submissions that disputed that proposition. In that context, the observation of the primary judge (at pp 6-7 of the ex tempore reasons) that it cannot be the intent of the legislation that a nominated supervisor would be absolutely liable for the (s 165(2)) breach when the nominated supervisor was not in a position to do anything about it in the particular circumstances at that time, does indicate that the question of absolute liability was something considered, albeit if only briefly and immediately dismissed, by his Honour when considering the breach here in question; and in that sense it can be seen as arising on the appeal.
The concept of a question of law "arising" on an appeal does not necessarily require that it be one that was recognised and argued on the appeal. By analogy, many questions of law might "arise" on the pleadings, for example, and yet not be dealt with in submissions by parties or by the judge in determining the matter. In my opinion, the status of the offence (whether it be strict or absolute, on the one hand, or neither strict nor absolute, on the other), did arise on the appeal, though the contention that it was an absolute liability offence was not expressly articulated at that time. Certainly, whether it was strict or absolute was a question capable of affecting the outcome of the appeal. The fact that the question of law posed in the stated case addresses only the question whether it is an absolute liability offence does not change the conclusion that the question was one "arising" on the appeal.
Moreover, the fact that the issue as to whether this was an absolute liability offence was not expressly raised or considered until after the disposal of the appeal does not take this matter outside the stated case procedure, that process being available even where proceedings have been finally disposed of (see Talay v R [2010] NSWCCA 308 at [12] per Simpson J, as her Honour then was, with whom Schmidt J and Howie AJ agreed). This is not a case where the question of law is one that arises as a consequence of the disposal of the appeal (as referred to in Sasterawan v Morris at [99]); rather the question is one that arises anterior to the disposal of the appeal (albeit not raised or considered at the time). The significance of the fact that the Secretary is now adopting a different position as to the nature of the offence (absolute versus strict liability) than the prosecutor did in the District Court goes in my view to the discretionary questions that here arise not as to whether s 5B of the Criminal Appeal Act is here engaged.
Therefore, I have concluded that s 5B of the Criminal Appeal Act was engaged and that the stated case procedure was applicable.

(ii) Discretion

In Duarte v Director of Public Prosecutions (NSW) [2020] NSWCCA 351 at [54] Bellew J (with whom Hoeben CJ at CL and Harrison J, as his Honour then was, agreed) emphasised that a primary purpose of the stated case procedure is to resolve questions of legal principle; and that it is not a substitute for an appeal nor is it intended to provide a means of challenging the ultimate determination which has been made.
But even where the stated case procedure is properly invoked, there remains a discretion whether to answer the question stated. The Secretary submits that, in the present case, the question is one of general application and there is a public interest in determining the status of this offence. The Secretary also argues that there is a public interest in ensuring that those who are in a position of care for children who breach their obligations under the law do not escape conviction (here referring to the reasoning in Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [103] per Gaudron, McHugh, Gummow and Hayne JJ by way of analogy).
The respondent refers to Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar), where this Court held that there was the power to decline to answer the question stated when dealing with a stated case brought under s 5AE of the Criminal Appeal Act. The respondent submits that the reasoning at [112]-[124] in Cobar (referring to the joint judgment of Bathurst CJ and Bell P, as his Honour then was) should equally apply to the present case.
The respondent submits that this Court should decline to answer the question stated for a number of reasons. First, pointing to the procedural history of the matter, that it would be unfair to the respondent because she has been subject to the prosecution for a very long time. Second, that (as already noted) the question in the stated case was not raised during the District Court appeal proceedings nor before the Magistrate.
Third, that, insofar as the Secretary in written submissions has conceded that it may not be necessary for the court to distinguish between "strict" and "absolute" liability; and has suggested that ultimately what the court is concerned with is the proper construction of the mens rea element of the offence, the respondent says that the applicant may also be seeking that this Court make a determination on the latter question (and not the question of law stated). (In her submissions in reply, the Secretary disavows the suggestion that it is seeking to have the Court determine the matter other than on the stated question of law; rather, the Secretary says that terms such as "strict" and "absolute" liability are merely labels in the construction of the mens rea component of the offence. It is noted that the respondent does not contend the offence is one of specific intent.)
Finally, the respondent says that if the Secretary succeeds on the stated case, then there is every likelihood that the matter will be sent back to the District Court and the matter will not be finalised before some time next year (which overlaps to an extent with the first of the reasons put forward by the respondent as to delay).

Determination

I accept that the question as to the status of this offence (i.e., whether it is an absolute liability offence) is of public interest. Indeed, the respondent's submissions in effect concede this insofar as the respondent raises the prospect that persons would not be willing to expose themselves to absolute liability offences in this area. That tends towards the conclusion that this Court should answer the stated question. However, the delay in raising this issue (and the consequent impact on the respondent having been under the cloud of criminal prosecution for some time) is a significant factor pointing against such an exercise of discretion. Moreover, there is some force to the complaint by the respondent that this is, in effect, an attempt to revisit the findings made by McHugh SC DCJ as to the application of s 165 to the respondent (namely, that she had taken every reasonable precaution that she was personally able to do to protect the children being educated and cared for by the Service) (see AT 23).
Balancing those matters, in my opinion the public interest is important such that the stated question should be answered but in the circumstances it should only on the basis that, if the proper construction of the section is as the Secretary contends, this Court should decline to grant the relief sought by the Secretary and should allow the acquittal in the present case to stand.

Legislative provisions

Before turning to the third issue (whether the offence in question is an absolute liability offence) it is convenient to set out the relevant statutory provisions.
The objective of the National Law, as stated in s 3(1), is "to establish a national education and care services quality framework for the delivery of education and care services to children". In turn, the objectives of the national education and care services quality framework include (at s 3(2)(a)) "to ensure the safety, health and wellbeing of children attending education and care services". The guiding principles of the national education and care services quality framework include (s 3(3)): (a) that the rights and best interests of the child are paramount; … (f) that best practice is expected in the provision of education and care services.
Section 5(1), the definitions section, relevantly contains definitions distinguishing between an "education and care service" and a "family day care service". In the present case, the relevant Service was the latter. "[F]amily day care service" is defined as: … an education and care service that- (a) is delivered through the use of 2 or more educators to provide education and care to children; and (b) operates from 2 or more residences[.]
The notation to that definition states that "[a] family day care service that is an approved family day care service may provide education and care to children from a family day care residence or an approved family day care venue" (those also being defined terms). There is a distinction between family day care services and other types of education and care services (such as long day care services, which operate from business premises as opposed to residential premises); outside school hours services; and preschool programs including those delivered in schools.
Part 2 of the National Law deals with "provider approval". An "approved provider", as the name suggests, is a person who holds provider approval. Such a person may be (but is not necessarily) a corporation. Section 10 deals with applications for approval of approved providers; s 12 provides that the applicant must be a fit and proper person.
Part 3 deals with "service approval"; i.e., approval for a particular service, which must have a nominated supervisor. An approved provider may apply to the Regulatory Authority (being the Secretary) for a service approval for an education and care service but only if the approved provider is or will be the operator of the education and care service and is or will be responsible for the management of the staff members and nominated supervisors of that service (see s 43(2)). An application for a service approval must, among other things, nominate one or more individuals to be nominated supervisors for the service (see s 44(1)(d)). A nominated supervisor may be the approved provider (see s 47(1)(e)).
Accordingly, there must be the approved provider (in a position equivalent to the proprietor of the service) and there must be a nominated supervisor (which is the position the respondent held) for each service.
The definition of a nominated supervisor (s 5(1)) in relation to an education and care service is: … an individual who- (a) is nominated by the approved provider of the service under Part 3 to be a nominated supervisor of that service; and (b) unless the individual is the approved provider, has provided written consent to that nomination
The nominated supervisor must consent to his or her nomination (s 47(1)(e)); and the minimum requirements for such a person are prescribed in the Education and Care Services National Regulations 2011 (NSW) (reg 117C).
Pausing here, the Service in the present case was an education and care service operating as an approved family day care service. The respondent was the nominated supervisor. Ms Rateau, on the other hand, was a family day care educator (an educator "engaged by or registered with a family day care service to provide education and care for children in a residence or at an approved family day care venue" as defined in s 5 of the National Law).
Part 6 of the National Law, headed "Operating an education and care service", sets out a series of offences, the language of which differs between sections imposing a positive "must ensure" obligation and others which impose a negative "must not" obligation. Further, there is a distinction in that some of the offences apply to approved providers of an education and care service and some to approved providers of a family day care service.
So, for example, the approved provider of an education and care service: must not operate the service unless there is at least one nominated supervisor for that service (s 161); must not nominate an individual to be a nominated supervisor of that service unless that individual meets the prescribed minimum requirements for nomination as a nominated supervisor (s 161A); must ensure that one of the three specified persons (which may be a nominated supervisor) is present at all times that the service is educating and caring for children (s 162); and must ensure that each nominated supervisor and each person in day-to-day charge of the service has successfully completed any required child protection training (s 162A). Relevantly, s 162 contemplates that the approved provider of the service is not required to ensure that the nominated supervisor of the service is present at all times that the service is educating and caring for children (as long as the approved provider or a person in day-to-day charge of the service is there). The respondent here places emphasis on s 162 as informing the status of the s 165 offence.
From s 163, there is a series of offence provisions relating to the operation of family day care services (each using the language "must ensure").
Section 165 then provides (under the heading "Offence to inadequately supervise children"): (1) The approved provider of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service. Penalty- $10 000, in the case of an individual. $50 000, in any other case. (2) A nominated supervisor of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service. Penalty: $10 000. (3) A family day care educator must ensure that any child being educated and cared for by the educator as a part of a family day care service is adequately supervised. Penalty: $10 000.
The respondent was charged with (and initially convicted but later acquitted of) an offence under s 165(2); that being the subject of the question in the stated case.
The Secretary emphasises that s 165 imposes the same liability in the same terms on an approved provider, a nominated supervisor and a family day care educator but (and the Secretary attaches significance to this) not in the same terms the liability is imposed on a staff member (cf s 166). The Secretary submits that what can be discerned from this is that there is an intention that where there is a failure adequately to supervise children the approved provider (in the position of the proprietor) will be liable whether or not the approved provider is present (though the staff members are not themselves separately so liable); and that the same obligation is imposed on a nominated supervisor (see AT 32.35ff).
Sections 166-170 contain a number of other offences couched in the terms "must ensure"; s 171 is an offence framed in terms "must comply" with a direction and ss 172-175 all impose obligations in terms of "must notify" or "must keep" the relevant documents or information. It is not until s 269 that there is an obligation on the approved provider to take reasonable steps to do something (to ensure that the information contained in the family day care register is accurate in respect of various persons engaged, employed and/or registered by or with the service).

Secretary's submissions

The Secretary points to the common law presumption that mens rea applies to all criminal offences, including statutory offences (see, for example, He Kaw Teh (1985) 157 CLR 523 at 528 (Gibbs CJ); 549 (Wilson J); 565 (Brennan J); 590-1 (Dawson J); [1985] HCA 43 (He Kaw Teh), each citing Sherras v De Rutzen (1895) 1 QB 918 at 921 (Sherras)) but notes that whether the presumption has been rebutted in a particular case is a question of statutory interpretation (requiring consideration of the words of the statute; the subject matter with which the statute deals; and whether an absence of a requirement of mens rea would assist in the enforcement of the obligations).
The Secretary refers to the observation in He Kaw Teh of Dawson J at 594-595 that: Resort must then be had to the subject-matter or character of the legislation. Attempts have been made to categorise those offences which have been regarded as absolute, but the result is only helpful in a broad sense and the recognised categories cannot be regarded as exhaustive. It is generally accepted that statutes which create offences for the purpose of regulating social or industrial conditions or to protect the revenue, particularly if the penalty is monetary and not too large, may more easily be regarded as imposing absolute liability. This approach may be displaced if to regard an offence as one of absolute liability could not promote the object of the legislation by making people govern their behaviour accordingly.
In the present case, the Secretary has referred to various decisions: Stanojlovic v Director of Public Prosecutions (Vic) [2018] VSCA 152; (2018) 273 A Crim R 215; Hawthorne (Department of Health) v Morcam Pty Ltd (1992) 29 NSWLR 120 (Hawthorne v Morcam); and the observation by Hayne J in CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25 (CTM) at [149] that: Particular application of these general principles is sometimes attended by difficulties about terminology. So, for example, the exact meaning or content of expressions like mens rea and actus reus, or "general" and "specific" intent, is not always easily identified. And there is no little danger in first seeking to identify a class of offences as ones of "strict liability" and then asking whether the offence under consideration is within or without that class. These difficulties reinforce the need to approach the question as one of construction of the particular statutory provision.
The Secretary argues that the phrase "must ensure" (first appearing in the National Law in s 51(4A) in the context of statutory conditions on service approvals) means "to make certain" and that it requires the service (or the approved provider or nominated supervisor as the case may be) to make certain a state of affairs irrespective of any action, inaction, intent or lack thereof, on the part of the approved provider.
The Secretary contrasts the offences created by failure to ensure certain matters or states of affairs with provisions in the National Law that expressly create offences referable to a person's own acts or omissions, referring by way of example of the latter to s 104(1) which creates an offence referrable to the person's action by relevantly providing that a person "must not knowingly publish or cause to be published an advertisement for an education and care service unless it is an approved education and care service".
The Secretary also points to the contrast between the absolute obligation to ensure certain matters in provisions such as s 165(2) and the more qualified offence in s 269(2) (that an approved provider "must take reasonable steps to ensure that the information contained in [its] register is accurate").
Emphasis is placed by the Secretary on the decision of the Court of Appeal of Victoria in ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138 (ABC Developmental Learning), which considered ss 26(1) and 27(1) of the Children's Services Act 1996 (Vic) (the Victorian Act) (provisions analogous to s 165(2) of the National Law) as it then was. The relevant provisions in the Victorian legislation imposed separate obligations on a proprietor and a staff member in terms that they "must ensure" that children are adequately supervised at all times they are in the care of the service.
At first instance, it was held that offences contrary to ss 26(1) and 27(1) of the Victorian Act were committed by the objective failure of the person to meet the specified standard, whether the failure was deliberate or inadvertent, the primary judge rejecting a submission on behalf of ABC Developmental Learning that if the non-compliance was due only to the actions of the company's staff, the company was not liable. On appeal, the Court (Maxwell P, Chernov and Neave JJ) held that the liability for breach was absolute and that there was no "due diligence offence" nor was it a defence to show that the breach was "due to the act or default of another person".
The Secretary says that the reasoning of the Victorian Court of Appeal in ABC Developmental Learning applies equally to the language of s 165(2) of the National Law. Further, the Secretary argues that the re-enactment presumption (recognised, inter alia, in Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96, 106 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1994] HCA 34; Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489; [2015] HCA 10 at [15] (French CJ, Hayne, Kiefel, Gageler and Keane JJ)) should be taken into account in construing s 165(2) and other provisions of the National Law. The Secretary points to the substantially similar language used in a similar context in the National Law in relation to the same kinds of offences as those considered in ABC Developmental Learning.
ABC Developmental Learning was a 2007 decision of the Court of Appeal of Victoria concerning the construction of the provisions of the Victorian Act. In 2010, Victoria enacted the Education and Care Services National Law Act 2010 (Vic), which contained s 165. The Education and Care Services National Law Act 2010 (Vic) is adopted in New South Wales through s 4 of the Application Act, thereby applying the Victorian Act in New South Wales as the National Law.
The Secretary submits that, in circumstances where the Victorian Parliament enacted the Education and Care Services National Law Act 2010 (Vic) three years after a decision of that State's Court of Appeal concerning similar wording in the Victorian Act, there is strong force in holding the legislative intent was that s 165 was to operate in the same manner as judicially ascribed to s 27 in ABC Developmental Learning.

Respondent's submissions

The respondent submits that the offence is not an offence of absolute liability.
It is noted by the respondent that McHugh SC DCJ construed the nature of the duty imposed upon the respondent by reference to its context in the National Law; and that, in the context of that background and pursuant to s 162(1) of the National Law, the primary judge (at pp 5-6 of his Honour's ex tempore judgement) paid particular attention to the circumstance that the National Law did not require someone in the position of the respondent to be present at the family day care on the date of the alleged offence. His Honour said (at p 6) that: Then there is a real difficulty to suggest that [the respondent] was in breach of s 165(2) when she was not there. Rather I would interpret or construe the obligation that a nominated supervisor must ensure that all children are being educated and cared for by the service are adequately supervised at all times to mean that a nominated supervisor must ensure that those doing the supervision are doing so to the best of their ability and they would do so through training and the like and having confidence in their qualifications and so on.
The respondent says that the primary judge thus construed the actus reus of the offence (i.e., what adequate supervision by a nominated supervisor means) in the context of how an approved provider of a family day care service (that may oversee numerous family day care venues and employ one or more nominated supervisors) operates.
The respondent notes that s 164 of the National Law provides for an offence if an approved provider does not ensure a family day care educator is provided with support at all times by either the approved provider, a person with management and control of the family day care service, a nominated supervisor or a person in day-to-day charge of the service.
The respondent argues that the combination of ss 162 and 164 must mean that not only does a nominated supervisor need not be present at a family day care venue but also that support to family day care educators can be provided by someone other than the nominated supervisor. Noting the combination of ss 162, 164 and the objects of the National Law stated at s 3, the respondent submits that "the safety, health and wellbeing of children attending education and care services are met [despite] a nominated supervisor not being present at a family day care venue [so long as] support to family day care educators [is] being provided by persons other than a nominated supervisor". The respondent draws attention to the fact that the nominated supervisor had no authority, and was not required to have any authority, to "hire and fire"; that she was not the proprietor and that it was not her responsibility to provide services at the premises (see AT T 22.34).
The respondent further notes that the term "adequate supervision" is not defined in the National Law; nor are the methods by which a person in the position of the respondent should ensure adequate supervision. The respondent argues that (given that the respondent was not legally required to be present to ensure adequate supervision) there must be many ways in which a person in the respondent's position could endeavour to ensure adequate supervision of children in care, including reliance on others to provide support.
Reference was made to the responsibilities of a nominated supervisor under s 168 (to ensure that a program delivered to all children being educated and cared for by the service is based on an approved learning framework (which the respondent says is an administrative task not requiring attendance at the premises)) and under s 169 (to ensure that whenever the children are being educated the requisite number of educators are present and that each educator meets the qualification requirements) (see AT 24). The respondent submits that if a nominated supervisor is not required to be at the family day care service except "from time to time doing inspections" (as found by McHugh SC DCJ in his Honour's ex tempore reasons at p 6) and is not present at the time of an incident, then the effect of his Honour's judgment is that the nominated supervisor satisfied her duty to ensure children are adequately supervised, by performing certain other acts. In the present case, it is said that those acts were ensuring that Ms Rateau, the family day care educator, was appropriately trained and experienced, and held the appropriate qualifications. The respondent says that this was a finding of fact in relation to what was adequate, not a finding of law.
The respondent argues that the wording of s 165 does not require an interpretation that the section creates an offence of absolute liability. While it appears to be accepted by the respondent that there is no use of an expression which connotes any element of mens rea, the respondent says that the obligation imposed by s 165 on persons not required to be present on site is so "vast and lacking in particularity" that it is not likely that Parliament would have intended that the offence be one of absolute liability.
Although the respondent accepts that the use of the word "ensure" has, in unrelated legislation, been held to mean "guarantee" (referring to the Occupational Health and Safety Act 2000 (NSW) and the current Work Health and Safety Act 2011 (NSW)), the respondent notes that those Acts provide for statutory defences and that the expression "ensure" has not been held to create an offence of absolute liability.
The respondent points to the caution expressed by courts in undertaking the task of determining whether an offence is one of absolute liability, referring to He Kaw Teh and the cases considered therein. In particular, the respondent refers to what was said by Brennan J in He Kaw Teh (at 567), quoted by Sully J in Hawthorne v Morcam at 135, emphasising that his Honour said that a statute is not to be construed as imposing criminal liability without mens rea unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence: However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.
It is submitted by the respondent that construing s 165 as creating an offence of absolute liability would not recognise that there may be many instances where someone in the position of nominated supervisor has taken extensive measures to ensure adequate supervision but an employee or educator acts with gross negligence and disobeys instruction or does not apply systems which are in place, without the knowledge of the nominated supervisor; i.e., that there are many ways in which an employee can act or fail to act without a nominated supervisor (who the National Law does not require to be present at the centre and where persons other than the nominated supervisor may provide support to staff at the centre) having any knowledge or even reasonable suspicion of such acts or omissions. The respondent argues that to find that s 165(2) is an offence of absolute liability would be to make liable those persons who have no reasonable nor practicable opportunity to prevent the actions or omissions of the educator.
The respondent also points out that in the Local Court the prosecutor did not identify any precaution that should have been (but was not) taken that would have been effective in the circumstances to avoid the possibility of the occurrence of the external elements of the offence; and that even if a failure to take some such precaution had been particularised by the prosecutor in the Local Court, it still would not have been possible (when one is dealing with the unforeseeable or reasonably unexpected actions or omissions of human beings) to avoid the possibility of a failure to pay attention by employees, let alone deliberate disregard of training and/or a health and safety system.
The respondent argues that the word "adequate" in s 165 imports consideration of the nominated supervisor's knowledge about the risk in question and about how it might be eliminated or reduced by the nominated supervisor in his or her position at least one step removed from the one-on-one supervision of the child.
As to the reliance placed by the Secretary on ABC Developmental Learning, the respondent notes that the relevant portion of the Victorian Act only applied to a proprietor of a service providing care or education for five or more children under the age of six years in the absence of their parents or guardians; and that the proprietor's responsibilities under s 27 of the Victorian Act specifically relate to "the premises where the service operates" (the criteria for granting approval for and licence to operate a service similarly referring to "the premises"). The respondent says that, unlike the National Law, the Victorian Act did not provide for (let alone distinguish) the operations of a family day care service, which may cover numerous family day care venues including those where less than five children under the age of 6 are in care, from other types of education and care services.
The respondent argues that a comparison between the respective sections makes clear that the role of nominated supervisors was not contemplated by the Victorian Act. Similarly, it is said that the role of responsible persons in day-to-day charge of an education and care service was not contemplated by the Victorian Act. The respondent says that the Victorian Court of Appeal did not consider those roles nor their effect on the structure and operations of different types of education and care services; and did not consider the resultant effect on the construction of an offence related to ensuring all children educated and cared for by a service are adequately supervised.
The respondent notes that the Victorian Court of Appeal found (at [18]) that the duty under s 27(1) of the Victorian Act has all the same characteristics as the duty under s 21 of the Occupational Health and Safety Act 1985 (Vic). The respondent refers to [21]-[22] of the Victorian Court of Appeal judgment, raising doubt as to whether one of those characteristics was as to whether what is reasonably practicable for an employer to do depends, in part, on what the employer knows or ought to know about the risk in question and about how it might be eliminated or reduced (the Court saying at [22] that "[t]he position is even clearer in the case of s 27(1) [compared to s 21 of the Occupational Health and Safety Act 1985 (Vic)], since the word "adequate" imports no consideration of the proprietor's knowledge").
The respondent says that there is no doubt that leaving a child at a child care centre, unaccompanied and unsupervised, is at risk of harm or hazard likely to cause injury (referring to s 26 of the Victorian Act and s 167 of the National Law) and the respondent argues that, by the inclusion of the words "every reasonable precaution", both s 26 of the Victorian Act and s 167 of the National Law, in situations involving risk of harm or hazard likely to cause injury, import principles of reasonably practicality. It is submitted that in this context, and for the purpose of determining the construction of the offence under s 165 of the National Law, where the consequence of inadequate supervision of a child is risk of harm or hazard likely to cause injury, it would be inconsistent to suggest that the legislature intended to exclude from the consideration of adequacy of supervision what an employer knows or ought to know about the risk in question and about how it might be eliminated or reduced (and that such a construction would provide for an inconsistency in approach to similar factual situations and therefore absurdity in application of the law).
Thus, it is submitted that the Secretary's reliance upon the decision in ABC Developmental Learning is misplaced.

Secretary's submissions in reply

In submissions in reply as to the proper construction of s 165(2) of the National Law, the Secretary says that the fact that the nominated supervisor is not required to be present at the approved family day care service should not control the proper construction of the offence under s 165(2). It is submitted that the statutory language of s 165(2), when read in light of the other offence creating provisions in sub-ss (1) and (3), is clear. The Secretary points out that the obligation on an "approved provider" is to "ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service" and that the same obligation is placed on a nominated supervisor (here, the respondent). The Secretary contrasts this with the obligation on a family day care educator to ensure adequate supervision of a child "being educated and cared for by the educator as a part of a family day care service" (emphasising the words "by the educator").
The Secretary submits that the respondent's focus on the words "every reasonable precaution" is misplaced; noting that the matter that an approved provider must ensure is that every reasonable precaution is taken. The Secretary accepts that questions of reasonable practicality inform whether or not every reasonable precaution is taken. However, it is submitted that in this case, on the facts in the stated case, every reasonable precaution was not taken.
The Secretary argues that, if anything, the presence of a "safety valve" as to the reasonable practicality of that which must be ensured only serves to reinforce the interpretation, which the Secretary submits is the natural meaning of the words chosen by Parliament, that "ensure" means "ensure". The Secretary says that this also serves to explain why the analysis in Hawthorne v Morcam, by reference to "effective precautions", in a different statutory context, does not translate to the present statutory context, contrary to the respondent's submissions. Moreover, the Secretary reiterates that, even if the offence against s 165 were subject to a Proudman v Dayman defence, no such defence was advanced in the proceedings below, either at first instance or before the District Court.

Determination

It is trite to note that there is a category of statutory offences (recognised by Street CJ (with whom Hunt and McInerney JJ agreed) in R v Wampfler (1987) 11 NSWLR 541 at 546) in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence (these being referred to as absolute liability offences). Such offences are not, however, commonly to be found. Even less so are they to be found where (as on the Secretary's construction of s 165 of the National Law) the actus reus of the offence is in essence the occurrence of a state of affairs (i.e., where there may be no act or omission on the part of the person made liable for the state of affairs in question; simply the conclusion that because the state of affairs has arisen there has been a failure to ensure or guarantee that this not occur).
It is worth here summarising the principles relevant when determining whether a statutory offence is one of absolute liability. Clearly enough, the question is one of statutory construction. To determine the legislative purpose, the following matters should be considered: the words of the statute creating the offence; the subject matter with which the statute deals, including the nature of the conduct being regulated, its impact on the community, and its seriousness; and whether treating the offence as one of absolute liability would assist in the enforcement of the legislative scheme (see He Kaw Teh at 529-530 per Gibbs CJ; applied in R v Clarke (2008) 100 SASR 363; [2008] SASC 100 at [17] per Doyle CJ, Bleby and David JJ). Of course, these indicators do not always point in the same direction (He Kaw Teh at 530 per Gibbs CJ).
Where a statute engages words such as "knowingly" or "wilfully", mens rea must be established as an element of the offence. However, the absence of such words does not establish the contrary (He Kaw Teh at 594 per Dawson J).
Where the subject matter of the statute is conduct which "creates a serious threat to the well-being of the Australian community" (as was in the case of He Kaw Teh), it may suggest that the legislature intended to make the offence one of absolute liability, especially where the consequences are "so serious" (see Gibbs CJ at 529 in He Kaw Teh). However, as Gibbs CJ goes on to conclude, where an offence is serious, the general presumption of mens rea is more likely to apply, as it would be unlikely for Parliament to intend that a person with no intention or knowledge of wrongdoing be subject to such serious consequences (at 530, 535-536 per Gibbs CJ; see also at 555 per Wilson J). Similarly, offences which carry a high penalty may indicate a parliamentary intention that a person who is subject to these penalties had an intention to do wrong, thus suggesting that the offence is not one of absolute liability (He Kaw Teh at 530, 535 (Gibbs CJ); 594-595 (Dawson J)). Conversely, if the subject matter of the legislation is offences which regulate social or industrial conditions or protect revenue and which impose a comparatively small monetary penalty, it is more likely that the offence be one of absolute (or strict) liability (He Kaw Teh at 595 (Dawson J) and see, for example, Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324 (Day v Sanders) at [70] per Basten JA; Proudman v Dayman at 540 per Dixon J).
Generally, offences which are criminal in nature are less likely to be found to be absolute liability offences in the absence of evidence of clear parliamentary intention. This is due to the harshness of holding a person criminally responsible, especially if the penalty is one of imprisonment (see He Kaw Teh at 535 (Gibbs CJ); 556 (Wilson J); 583 (Brennan J); 597 (Dawson J)).
In Proudman v Dayman, Dixon J suggested that the presumption that the mens rea rule applies to a statutory offence varies with the nature and scope of the offence (at 540). In doing so, his Honour suggested that where the legislature has adopted penal measures in order to cast on the individual the responsibility of conducting his affairs such that the general welfare will not be prejudiced, the presumption is a weak one. There, the offence was a person permitting an unlicensed person to drive a motor vehicle. As explained by McTiernan J at 543, "to permit" another person to drive undoubtedly required it to be an intentional act, such that any question of mens rea was excluded by necessary implication; in other words, it was sufficient to prove that the accused had given permission to an unlicensed person to drive.
A finding of absolute liability is unlikely where the court believes the public has no interest in punishing people for an honest or reasonable mistake (Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 (Elvy) at 750 (Gleeson CJ)), or where an imposition of absolute liability would not further the purpose of the legislative scheme (Greyhound Racing Victoria Stewards v Anderton [2018] VSC 64 at [86] (Zammit J)). I note that Gleeson CJ in Elvy at 750 makes reference to the fact that, merely because an offence carries a penalty of a fine, and not imprisonment, does not preclude or waive the presumption, especially if (as was in that case) the fine is not insignificant and the civil consequences are far reaching.
In criminal cases, Dawson J suggested that an offence may be one of absolute liability if it would be difficult to source proof of intent and would represent a real impediment of the successful prosecution of offenders (He Kaw Teh at 595). In the same vein, a court should consider the purpose of the offence, the onus it places on the potential offender, and how it will operate to prevent the impugned conduct. As raised by Hunt CJ in CL in Hawthorne v Morcam at 133, in the context of a statute which attempted to prevent the sale of adulterated food, placing absolute liability on a person who had no knowledge of the offending conduct, and honestly believed on reasonable grounds that there was no such conduct, such a conviction would be a manifest injustice. Further, where the onus on the potential offender becomes unreasonably burdensome, his Honour found that the legislature should be direct in such an imposition.
Some examples of offences which have been found to be offences of absolute liability (to some of which attention was drawn in the course of submissions) include: failing to submit to a breath analysis (R v Walker (1994) 35 NSWLR 384 at 387 per McInerney J, with whom Hunt CJ at CL and Bruce J agreed); exceeding the speed limit (Kearon v Grant [1991] 1 VR 321 at 323 per Brooking J, with whom Kaye and Murphy JJ agreed); selling alcohol to those who are under the age of eighteen (Hickling v Laneyrie (1991) 21 NSWLR 730 at 738 per Kirby P, as his Honour then was; 742 per Clarke and Handley JJA); and publishing misleading advertisements offering employment (Holloway v Gilport Pty Ltd (1995) 79 A Crim R 76 at 80 per Hunt CJ in CL).
Finally, there is a recognised hesitance on the part of courts to find that statute imposes absolute liability on offences if the legislature does not make its intention clear, especially if the offence is serious (see, for example, CTM at [7] per Gleeson CJ, Gummow, Crennan and Kiefel JJ, [61] per Kirby J).
Turning now to s 165(2) of the National Law, the words "must ensure" give rise to no little difficulty here. In essence, as already explained, the Secretary's position is that, if it is established that there was a lack of adequate supervision, then the nominated supervisor is automatically liable whether or not the nominated supervisor has any personal responsibility for the act or omission in question. In other words, the nominated supervisor is required to guarantee that there will be adequate supervision and, once that state of affairs is established not to have transpired, then the nominated supervisor is liable (whether or not the nominated supervisor could have done anything as a practical matter to ensure adequate supervision at the relevant time).
On a literal reading of s 165(2), the Secretary's position must be accepted. To "ensure" something is to "make certain" of (or guarantee) that outcome. Read as a whole, the impugned provision focuses on the outcome of affairs; it does not indicate scope for fault in supervision on the part of the nominated supervisor himself or herself, as such. What makes s 165(2) difficult is that it does not identify any offending conduct on the part of the nominated supervisor; there is nothing to which mens rea can sensibly attach. Rather, it deems that a nominated supervisor is liable where the state of affairs (being inadequate supervision of children) is established. As a result, s 165(2) in its terms appears to attach liability to a finding of fact, not dependent on the knowledge or intention of the nominated supervisor.
As to the reference to "adequate" within s 165(2), I disagree with the respondent's contention that this imports a consideration of the nominated supervisor's knowledge of the risk in question. Further, it cannot be understood as importing any standard of negligence on the part of the nominated supervisor. The words "adequate supervision" qualify the required state of affairs that needs to be ensured - where there is "inadequate supervision" the nominated supervisor is made liable.
In this regard, it is significant that other provisions within the National Law (such as ss 104(1) and 269(2)) provide for offences referable to the person's knowledge or "reasonable steps" the person can take to prevent the offence. There is no such language in s 165(2) of the National Law. It therefore does not appear to be the legislature's intention to read "must ensure" as inclusive of "reasonable steps to ensure". Nor can it be assumed that the absence of those words was a mere drafting error, given their inclusion in other provisions. There is no impossibility in giving the literal meaning to the text (aside from the perceived undesirability of its outcome); nor would giving s 165(2) its literal meaning be absurd or irrational or irreconcilable to the purpose of the National Law (see Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182 at [53]-[57] per Leeming JA, with whom Stern JA and Simpson AJA agreed).
In my opinion, the words "must ensure" do not carry with them the connotation of "must take reasonable steps to ensure", such that a standard of fault was imposed upon the nominated supervisor by s 165(2). Such an interpretation would fall foul of principles of statutory interpretation as laid out by the High Court in Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38] (French CJ, Crennan and Bell JJ), approving Lord Diplock's test in Jones v Wrotham Park Settled Estates [1980] AC 74 at 105-106.
Therefore, based solely on the words of the provision alone, s 165(2) would appear to be an absolute liability offence.
Turning then to the second indicator identified by Gibbs CJ, the subject matter and purpose of the statute here seem to point in the same direction. There is undoubtedly (and this was not disputed by the respondent) a "social concern" in ensuring the safety of children; that being an objective of the National Law's objectives (see s 3), and one of high degree (cf Hawthorne v Morcam at 129 per Mahoney JA). This supports a conclusion that the legislature intended the offence to be one of absolute liability. The unfortunate circumstances surrounding the present case are illustrative of the importance of this objective. The respondent, however, argues that the recognised need to ensure adequate supervision (and the fact that the legislation is for the protection of children) does not mean that this was intended by Parliament to be an absolute liability offence particularly in circumstances where it is said that this cannot advance the care of children in circumstances where the nominated supervisor is not required to be at the premises (see AT 25).
Much emphasis was placed by the respondent on the fact that the nominated supervisor is "not required" to be present at the Service by reason of s 162 of the National Law (see at [54] above), and therefore, as noted above, it was said that the obligations imposed by s 165(2) would be "so vast and lacking in particularity" such that it could not be the legislature's intention for it to be an absolute liability offence.
At one level, ss 162 and 165(2) can be reconciled quite simply by looking at the person made liable of the offences: in s 162, it is the approved provider who is liable should one of the persons there specified not be present at the Service; whereas in s 165(2), it is the nominated supervisor who is made liable. Section 162 does not place any requirement upon the approved provider to ensure that the nominated supervisor is present at the Service (so long as one of the specified persons is present), whereas s 165(2) provides for the nominated supervisor to ensure that there is adequate supervision at the Service. If the obligation under s 165(2) effectively requires that the nominated supervisor be present at the Service, then the fact that the approved provider may not be required to ensure that this occurs is not to the point.
This may give rise to an inconsistent, and perhaps unduly high, burden upon the nominated supervisor as compared with the approved provider. As the approved provider manages the nominated supervisor (see s 43(2) of the National Law) but is not legally required to ensure that the nominated supervisor is present at the Service, it is conceivable that there will be a situation where the nominated supervisor will not be at the Service but nevertheless liable (whereas the approved provider is not liable at least for the failure of the nominated supervisor to be at the Service). Moreover, this may place the nominated supervisor in a difficult position if he or she is not at the Service at the direction of his or her approved provider. I discuss this further below.
This raises squarely the difficulty that , in a given situation, the nominated supervisor may have no practical ability to ensure the requisite state of affairs (say, if the nominated supervisor is not present at the premises, perhaps at the direction of the approved provider, at the time of the incident), notwithstanding that the nominated supervisor may have taken all reasonable precautions to satisfy himself or herself of the training and qualifications of a family day care educator (as found by the primary judge at [4.10] of the stated case). This seems to me to be a matter pointing against there being an intention to impose criminal liability of an absolute kind on the nominated supervisor.
The heavy burden that absolute liability would impose, coupled with the serious consequences that could be faced by a nominated supervisor, makes the proposition that s 165(2) is an absolute liability offence unpalatable. Such an outcome triggers the caution raised by Hunt CJ at CL in Hawthorne v Morcam; as to whether the consequences would be manifestly unjust. The primary judge shared such a view, given his Honour's remarks at p 6 of the ex tempore judgment that the legislature must have intended for s 165(2) to impose a standard of negligence upon the nominated supervisor before the nominated supervisor be held to be criminally liable, especially given that the nominated supervisor is not legally required to be at the service and may not have any control over administrative matters in relation to the Service (such as the hiring and firing of staff). As Hunt CJ at CL noted, where the legislature wishes to impose an "unjust consequence" or "heavy onus", it should "say so directly" (Hawthorne v Morcam at 133 per Hunt CJ at CL). The Secretary, however, maintains that s 165(2) does directly make clear that this is an offence of absolute liability by use of the expression "must ensure".
The Secretary also emphasises (as noted earlier) that the legislature has imposed the same "must ensure" obligation on each of the approved provider and nominated supervisor, in contrast with the different language used for a family day care educator (submitting that it is not decisive but is an indicator that the offences under subs (1) and (2) are not referable to the steps available to the approved provider or the nominated supervisor and are, rather, referable to the simple fact (whether all children being cared and educated are adequately supervised) (see AT 12)). The Secretary submits that the legislation clearly creates the possibility of parallel liability.
Also of some relevance here is that the nominated supervisor is to operate independently of the approved provider. Nominated supervisors, although nominated by the approved provider, are only given this role if they have provided written consent to taking on such a role (see s 44(1)(da) of the National Law). This points to the legislature's intent to ensure that those persons be aware of the obligations and onus placed on them when accepting such a position, including the potential offences of which they are or may be at risk.
The argument that there would be an unduly heavy burden on those in the position of the respondent therefore points to a finding against an intention to impose absolute liability under s 165(2) but there are countervailing arguments. In that regard, I do not find the respondent's "floodgates" argument raised in the course of the hearing as being particularly persuasive - i.e., that if the offence is one of absolute liability persons may be unwilling to take on the role (see AT 25.3-8). Ultimately, it is a question of statutory construction as to whether or not the offence is an absolute liability offence, and whether the legislative intent is clear enough to overturn the presumption of mens rea.
The third indicator identified by Gibbs CJ is as to whether the finding of absolute liability would assist in the enforcement of the legislative scheme. As discussed earlier, to find that the provision is one of absolute liability would increase the burden on those who find themselves in the position of nominated supervisors. Given the risk of penalty, it might well require the nominated supervisor to be present at the Service (irrespective of what the approved provider has directed) to ensure that the supervision is adequate. Thus it may be said that imposition of absolute liability would assist in the enforcement of the legislative scheme. That said, s 165(1) places an equal burden upon the approved provider; the language used is identical to sub-s (2). To the extent that both the approved provider and nominated supervisor have a shared interest in ensuring that there is adequate supervision of children whilst they are at the Service, it might be considered that there is no greater assistance provided by the imposition of absolute liability on the latter. Nevertheless, it seems to me that the imposition of a heavy burden on a nominated supervisor (by way of absolute liability) must increase the likelihood of compliance with the objectives of the National Law; and hence this third indicator also points towards absolute liability.
I note the observation made by Basten JA in Day v Sanders at [71] that: …there is limited benefit to be found in discussing cases which involve the addition of a new offence, or new form of prohibition, to the general criminal law, including He Kaw Teh v The Queen and CTM v The Queen, to which the Court was referred. When considering the proper operation of a statutory provision which is silent as to the precise nature of the mental element required for an offence, it may be asked whether it would assist the purpose of the legislative scheme to put a person under strict liability or whether it can be said that, absent some conscious activity which may promote observance of the regulations, "there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim". [footnotes omitted]
Although his Honour noted the limited benefit of discussing criminal cases when considering absolute or strict liability in the context of civil penalties (which is not the case here), the enquiry as to whether strict liability has been imposed to find a "luckless victim" is of some relevance here (see Lim Chin Aik v The Queen [1963] AC 160 at 174; referred to by Gibbs CJ in He Kaw Teh at 530). The imposition of absolute liability in the present case would on one view promote conscious activity to assist in the observance of the obligation to ensure adequate supervision of children but, to the extent that there may be no practical ability to achieve this in a particular situation (and where the nominated supervisor may not be required by the approved provider physically to be present at the Service) this does suggest that the respondent (and other nominated supervisors in her position) could potentially be seen as a "luckless" victim. Again, however, when s 165(2) is read in context, alongside sub-ss (1) and (3), it is apparent that more than one person is at risk of criminal liability, should children in the Service's care not be adequately supervised. I do not see the nominated supervisor as a "luckless victim"; rather, it is clear that such a person who accepts this role (by reference to the written consent the person must provide before the approved provider can appoint the nominated supervisor) must be aware of the gravity and seriousness of the task the person agrees to undertake.
Balancing the above is no simple task. On the one hand, the text of s 165 (compared with other sections in the legislation) points clearly to this being an offence of absolute liability. On the other hand, the unfairness of imposition of criminal liability on a person who is found to have taken all reasonable steps to ensure that the properly qualified person supervising children at a day care would provide "adequate supervision" points to the caution that must be exercised before construing a statutory offence as one of strict liability. That last concern would support a conclusion that the offence should properly be construed as one of strict liability (to which a Proudman v Dayman defence would lie in an appropriate case), as was the basis on which the Secretary argued the matter before McHugh SC DCJ.
Ultimately, having regard to the text of the legislation, I consider it difficult to conclude otherwise than that the legislature has made it clear that the nominated supervisor is to be held liable for any transgression from circumstances which satisfy "adequate supervision" irrespective of his or her mens rea.
For completeness, ABC Developmental Learning is a decision which should be accorded due deference, particularly where the National Law follows the Victorian legislation, as the successor of the Victorian Act, and the presumption of re-enactment has some force in this regard (see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]; Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13; [1987] HCA 19 per Mason J, as his Honour then was).
The Victorian Court of Appeal said (at [2]) that: The duties thus imposed, respectively on the proprietor and on a staff member are both directed at ensuring adequate supervision, but their scope is different. The proprietor's duty is to ensure adequate supervision of all children at all relevant times. The staff member's duty, not unsurprisingly, extends only to a child in the care of that staff member.
The Court of Appeal addressed an argument as to the question of attribution, saying (at [11]-[12]): ABC submitted that the judge fell into error in thus defining the "rule of attribution" for the purposes of the CS Act. It was argued that the only acts (or omissions) which should be attributed to ABC were the acts (or omissions) of persons who took part in the management of the company. In our view, on the proper construction of s 27 of the CS Act no rules of attribution are called for. In R v Commercial Industrial Construction Group Pty Ltd ("CIGC") this court explained why no rules of attribution (of acts of an employer to the employee to the employer company) were called for where the employer was alleged to have breached its statutory duty to ensure a safe working environment for employees. In our opinion, the duty of a proprietor of a children's service to ensure adequate supervision of children is a duty of the same kind. We begin by repeating the essential reasoning from CIGC. [footnotes omitted]
Their Honours then considered the duty to supervise under s 27(1) of the Victorian legislation, saying (at [18]-[21]): The duty under s 27(1) of the CS Act has all of the same characteristics as the duty under s 21 of the Occupational Health and Safety Act. It was not contended by ABC that breach of s 27(1) required proof of mens rea. On the contrary, ABC accepted - correctly, in our view - the following conclusions of the learned trial Judge about the duty imposed by s 27(1): "These offences are expressed in terms of a mandatory standard for the protection and supervision of children enforced by a penalty for breach. Intention to breach the expressed standard is not an element of the offences created. The offences are committed by the objective failure of the person to meet the specified standard whether the failure was deliberate or inadvertent. This is apparent from the terms of ss 26 and 27 and also from the fact that the legislature has not included the defence of taking reasonable steps and exercising due diligence, as it did in relation to the different offence of publishing an advertisement for an unlicensed children's service (s 8(1) and (2))." [Emphasis added] Under s 27(1), the proprietor has a duty to ensure - that is, make certain - that a certain state of affairs exists viz adequate supervision of all children. Like s 21(1) of the OHS Act, s 27(1) is framed to achieve a result. Unless there is adequate supervision, the company is in breach. Liability under the section does not depend upon any failure by the company itself, meaning by those persons who "embody the company". If it is proved that there was not adequate supervision, it is immaterial where in the organisation the failure occurred. Senior counsel for ABC argued that the duty under s 27(1) of the CS Act was distinguishable on two grounds from the duty under s 21(1) of the Occupational Health and Safety Act. The first was that the word "adequate" in s 27(1) introduced an element of fault, such that proof of negligence on the part of the proprietor was an element of the offence under s 27(1). Reference was made to s 12.3 of the Criminal Code Act 1995 (Cth). The second ground of distinction was said to be that s 27(2) imposed a separate and complementary duty on staff members to ensure adequate supervision. In our view, there is no distinction on either ground. As to the first ground, the word "adequate" in s 27(1) does not introduce the notion of fault (negligence) into that provision, any more than the words "so far as is reasonably practicable" introduce the notion of fault into s 21(1) of the Occupational Health and Safety Act. In each case, the words of qualification define the scope of the duty, that is, define the state of affairs which it is the duty of the employer/proprietor to bring about and maintain. They "prescribe the measure of the precautions to be taken." What it is "reasonably practicable" for an employer to do depends, in part, on what the employer knows - or ought to know - about the risk in question and about how it might be eliminated or reduced. But this does not mean that a breach of the duty (under s 21(1)) to do what is reasonably practicable requires proof of negligence. [footnotes omitted]
As noted above, the Victorian Court of Appeal found that the liability for breach was absolute and that there was no "due diligence" defence nor is it a defence to show that the breach was "due to the act or default of another person" (at [14]).
The respondent seeks to distinguish ABC Developmental Learning on the basis that the relevant provision there did not deal with a person in the position of the respondent (see AT 22.1-10). However, this would require the Court here to distinguish between sub-ss 165(1) (being the approved provider) and (2) (being the nominated supervisor), despite the otherwise identical language used in each subsection. In my opinion, such a proposition cannot be maintained, especially given the identical language used.
It follows, in light of what was explored by the Victorian Court of Appeal, alongside my own analysis, that the decision in ABC Developmental Learning cannot be said to be plainly wrong and, given that the National Law follows the equivalent Victorian legislation, it compels the conclusion that the s 165(2) offence is one of absolute liability.
Accordingly, I consider that the stated question should be answered in the affirmative.

(iv) Discretion as to relief

Finally, as to relief, as adverted to above I would not exercise the discretion under s 5B of the Criminal Appeal Act to grant the relief sought by the Secretary (i.e., to quash orders and to remit the matter to the District Court for determination). While I do not accept the respondent's submission that the stated case is simply an attempt to appeal the decision, it is in my opinion significant that the case was not conducted in the District Court by the prosecutor on the basis that it was an absolute liability offence (even though there was emphasis in the written submissions to the language of "must ensure"). I accept that, in the absence of evidence from the respondent to establish a Proudman v Dayman defence, the distinction between absolute and strict liability would not have been significant in the end result had the proper construction of s 165(2) been adopted. That said, the respondent has been subjected to criminal prosecution (and the spectre of further criminal prosecution) for some time. There was a finding that the respondent had taken all reasonable precautions. Although that finding would not assist her on prosecution for an absolute liability offence, it is relevant to take into account when considering the impact of delay on her position; and it is relevant that this is not an appeal - rather, it is a stated case brought by the Secretary to establish a question of public interest as to the nature of the offence itself.
Accordingly, I would not disturb the acquittals and would not remit the matter to the District Court. In circumstances where the Secretary argued this as a matter of importance in the public interest, and the conclusion reached as to the non-remittal of the matter, I consider it appropriate that the Secretary should bear the respondent's costs. The arguments put to this Court could not be said as improper or baseless, despite the Secretary's success on appeal on the stated question (Clyne v Wrigley [1980] 1 NSWLR 499; R v Hookham (No 2) (1993) 32 NSWLR 345 at 46 per Priestley JA, with whom Wood and Sully JJ agreed).

Orders

For the above reasons, I would answer the question of law stated "Yes" but would otherwise make no order.
DHANJI J: I agree with Ward P.
SWEENEY J: I agree with the orders proposed by Ward P for the reasons stated by her Honour.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023

Occupational Health and Safety Act 1985(Vic)

Occupational Health and Safety Act 2000(NSW)

(2021) 105 NSWLR 434

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Legislation Cited (12)

Cases Cited (43)

Cited By (1)