The applicant, DPW, is a businessman who has applied for provider approval to operate an education and care service, namely a daycare centre. To determine whether he is a fit and proper person to do so, the Department of Education required him to undergo an assessment. In this assessment, the applicant was asked to solve legal problems raised in two scenarios set in a family daycare setting. When the applicant's results were marked as inadequate, the Department of Education refused to grant him provider approval to operate an education and care service. The applicant has sought a review of this decision.
In making my decision, I considered whether the Department of Education ever had the power to require the applicant to undergo an initial assessment and, if not, whether I should nevertheless consider the results of this mandatory assessment to determine whether the applicant is a fit and proper person to operate a daycare centre.
Whilst I am not satisfied that the Department of Education had the power to require the applicant to undergo the initial assessment and that this information was consequently improperly obtained, I have used my discretion to admit these results. This is because the public interest in upholding the rights and best interests of the child outweighs the public policy in protecting the applicant from unlawful and improper conduct. Taking into account these initial assessment results, in combination with a later assessment result voluntarily undertaken by the applicant, I am not satisfied that he is a fit and proper person to be granted provider approval to operate an education and care service. My reasons for this decision are set out below.
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DPW v Secretary, Department of Education [2018] NSWCATAD 257 | Case summary | Zoe
Jurisdiction
The Department of Education made a decision to refuse the applicant a provider approval to operate an education and care service under s15 of the Children (Education and Care Services) National Law (NSW) ('the National Law'). On 9 November 2017, this decision was confirmed on internal review, in accordance with s191 of the National Law.
The National Law provides that a decision made on internal review under section 191 is a reviewable decision for external review under sections 192(a) and 193 of the National Law. In such a case, the Tribunal exercises its residual general jurisdiction under s29 of the Civil and Administrative Tribunal Act 2013 (NSW) (DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [20]-[22]; CYU v Secretary, Department of Education [2017] NSWCATAD 290 at [17]).
[3]
Assessment process & results
The Secretary of the Department of Education ('the Department of Education') is the regulatory authority in NSW for the purposes of the National Law. (see section 9 of the Children (Education and Care Services National Law Application) Act 2010.)
To determine whether an applicant is a fit and proper person to be granted provider approval to operate an education and care service, the Department of Education established an assessment process to measure an applicant's knowledge of the provisions of the National Law and the Education and Care Services National Regulations ('the National Regulations').
Ms Shellye Hanson, who is the director of the Statewide Operations Network in the Early Childhood Education Directorate of the Department of Education, was responsible for implementing the assessment process. Ms Hanson described the assessment process undertaken by the applicant as comprising two scenario questions, each requiring that the applicant answer five or six multiple-choice questions and several short answer written questions. According to Ms Hanson, the questions require applicants to identify what action they would take in response to each scenario, what their obligations would be as an approved provider dealing with the scenario, and what requirements of the National Law and Regulation they would consider.
The examination is one hour in length and takes place under supervised examination conditions. Applicants are allowed to bring printed copies of the National Law and Regulation with them. They may also bring along a copy of the Guide to the National Quality Framework (by the Australian Children's Education and Care Quality Authority.) The documents can be marked up in any way an applicant finds suitable. The assessments are independently and separately marked by two officers employers by the Department, who are familiar with the National Law and National Regulations.
Prior to the examination, applicants may attend a seminar about approved provider roles and responsibilities.
According to Ms Dayna Greenfield, Manager of Legal Advice and Legislation, Early Childhood Education, Department of Education in order to receive a pass mark, an applicant must receive a mark that is equal to or greater than 80% of the total marks available in the assessment. If an applicant receives between 60% and 79% of the total marks available, the Department of Education would consider inviting the applicant to an interview to further ascertain his or her knowledge of the areas covered by the scenario questions.
In late 2017, the Department of Education introduced a risk-based approach to the requirement to attend an assessment session. Only if the Department assesses an applicant as 'medium or high risk' (rather than 'low risk') will an applicant be required to attend an assessment session. In assessing risk, the Department considers both general risk and specific risk.
On 19 June 2017, the applicant attended the mandatory assessment for which he received a score of 40.74% for the first scenario and 26% for the second scenario. These results were assessed as inadequate by the two markers.
The Department of Education subsequently found that the applicant was not a fit and proper person to be involved in the provision of an education and care service. This was because he had not demonstrated that he was capable of sufficiently understanding the requirements of the National Law or the National Regulations and the role and responsibilities of an approved provider in the day-to-day operations of an education and care service.
In his application for internal review, the applicant submitted that:
the assessment was not a valid method for verifying an applicant's knowledge of the National Law and the Regulations;
there was insufficient time for a fair assessment;
the assessment process was not transparent ;
his previous academic qualifications and roles should be taken into account;
the Department of Education was unfairly targeting family day care businesses in the south-western area of Sydney due to corruption demonstrated by other providers in that area.
On internal review by the Department of Education, the applicant's results were reassessed and he was instead awarded 46.5% for the first scenario and 28% for the second scenario. The internal reviewer was not satisfied that these scores were adequate for the applicant to have successfully completed the assessment:
Of most concern over the two scenarios is the applicant's failure to identify record keeping requirements such as those required for occupants in family day care residences: the failure to identify notification requirements in relation to complaints; and the failure to sufficiently outline actions to be taken to manage and/or prevent incidents such as those described in the scenario from occurring in the future. Record keeping and notification requirements are important responsibilities of an approved provider, as is the ability to put strategies in place to address and/or help to prevent similar incidents from occurring in the future.
In affirming the original decision by the Department of Education to refuse the applicant a provider approval, the internal reviewer found that:
In light of the Department's discretion under section 13(3) to consider other circumstances in which fitness and propriety can be determined (the testing of Applicants in their written responses provided by [DPW] are legitimate grounds (particularly in light of the relevant case law) to establish that, due to his lack of knowledge, there is also a lack of fitness and propriety in this regard.
Although [DPW] has many qualifications and may have held positions of responsibility in various fields, he has no qualifications or experience in the education sector which may indicate that he has sufficient understanding of the National Law in terms of the roles and responsibilities of an approved provider. As such, the only information that attests to his knowledge of this regulatory environment is the assessment session.
Following a hearing before this Tribunal on 7 March 2018, the applicant was offered the opportunity to sit a further assessment. He accepted this offer and sat the further assessment on 26 March 2018. Prior to the examination, the applicant submitted a medical certificate from Dr Joseph D'Silva, psychologist, requesting leniency in the marking of the assessment.
The applicant received a score of 17.8% for the first scenario he attempted in this further assessment and a score of 18.8% for the second scenario.
On further review of the applicant's answers by Ms Dayna Greenfield, Manager of Legal Advice and Legislation with the Early Childhood Education directorate of the Department of Education, she awarded him additional marks for each scenario, producing a score of 21.4% for the first scenario he attempted and 21.8% for the second scenario he attempted.
In her written statement to the Tribunal, Ms Greenfield made the following comments in relation to the applicant's results for this second (voluntary) assessment:
Overall [DPW's] responses to the scenario questions do not demonstrate that he has displayed adequate knowledge of the role and responsibility of an approved provider under the National Law and Regulations. While [DPW] has made reference to various provisions of the legislation, some of those references were not relevant to the scenario and, when asked to explain why the provisions he has cited are important, he has failed to do so. This does not indicate an understanding of the actions to be taken in the event of certain scenarios, and why those actions should be taken. As the individual with primary responsibility for a family day care facility, it is critical that an applicant for provider approval demonstrate this knowledge.
[DPW's] medical certificate requests leniency in the marking process. Even if I were to provide [DPW] with considerable leniency by, for example, doubling his marks, [DPW's] results would still fall well short of a pass mark. [DPW's] results would also fall short of the threshold at which point the Department would consider inviting [him] to an interview to further ascertain his knowledge of the areas covered by the scenario questions.
[4]
Did the Department of Education have the power to require the applicant to sit an assessment?
To be granted a provider approval, the Department of Education and, on review, this Tribunal must be satisfied that the applicant is a fit and proper person. Whilst there are a series of matters that may be taken into account in making this assessment, including whether the applicant has the management capability to operate an education and care service in accordance with the National Law, nothing limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service. (s13 of the National Law )
In assessing whether a person is fit and proper, the Department of Education has the power to ask the person to provide further information and to undertake inquiries in relation to him or her. (s14 (1) of the National Law)
I am, however, not satisfied that requiring a person to undergo an assessment is 'ask[ing] the person to provide further information' within s14(1)(a) of the National Law nor is it 'undertaking inquiries in relation to' a person as set out in s14(1)(b) of the National Law.
For the reasons set out in CYU v Secretary, Department of Education [2017] NSWCATAD 290 at [12] to [30], I do not agree that the legislature intended the Department of Education to have coersive powers when conducting the assessment to determine whether a person is fit and proper to be granted a provider approval.
On this basis, I find that the evidence of the applicant's results for his initial assessment - which he was required to sit - was improperly obtained by the Department of Education.
The results of the applicant's second assessment fall into a separate category. In this case, the Tribunal invited the applicant to take part in a further assessment and the applicant agreed to do so. Accordingly, the assessment was not mandatory. On this basis, it cannot be said that these second assessment results were improperly obtained.
[5]
Should the evidence of the applicant's initial assessment results be excluded on the ground that it was improperly obtained? If so, what weight should be given to it?
Having determined that the evidence of the applicant's first assessment results was improperly obtained, the next question is whether the evidence should be admitted and, if so, what weight should be given to it.
In considering these two questions, I agree with the reasoning of Dr Lucy in CYU v Secretary, Department of Education at paragraphs [33] to [55].
In brief, I accept that this Tribunal's power to admit or exclude evidence comes from s38(2) of the Civil and Administrative Act 2013 (NSW) which provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such matter. I accept that the 'rules of evidence' are the common law rules of evidence: rules that do not bind the Tribunal but which the Tribunal may choose to apply. I also accept that the discretion to exclude or admit illegally or improperly obtained evidence may extend to civil litigation and to an administrative review such as this matter.
In determining whether the evidence of the applicant's first assessment results should be excluded, the relevance of the assessment results together with the objectives and principles of the National Law should be considered.
I accept that the assessment results are relevant to a determination of the proceedings. This is because a knowledge and understanding of the National Law and National Regulations is part of what would make an applicant a fit and proper person to be involved in the provision of an education and care service within s14(2)(a) of the National Law.
"Fitness" has three components, one of which is knowledge: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157.
The objectives of the national education and care services quality framework, which is established by the National Law, include 'to ensure the safety, health and wellbeing of children attending education and care services,' 'to improve the educational and developmental outcomes for children attending education and care services' and 'to promote continuous improvement in the provision of quality education and care services' (National Law, s 3(1) and (2)(a) to (c)).
I am satisfied that these objectives would be promoted by a knowledge and understanding of the National Law and National Regulations.
The guiding principles of the National Law include the principle 'that the rights and best interests of the child are paramount' and the principle 'that best practice is expected in the provision of education and care services' (National Law, s 3(3)(a) and (f)).
I agree with the observations of Senior Member Anderson in CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132 at [56] that the Tribunal is required to regard the rights and best interests of the child as paramount in making a determination as to the correct and preferable decision.
The public policy in admitting the evidence of the applicant's assessment is that it would promote the objectives and the guiding principles of the National Law, including by helping to ensure the safety, health and wellbeing of children attending education and care services. (section 3(2)(a))
Balancing against these considerations is the public policy in favour of excluding evidence which was improperly or unlawfully obtained. The object of the Bunning v Cross discretion is to protect the administration of justice: Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70, Lander J at 565 [75]. An "object of the exercise of the discretion is to discourage illegal or improper conduct by the law enforcement authorities": Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70, Lander J at 565 [75], citing Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288. This principle would extend to illegal or improper conduct by regulators.
In this case, the evidence indicates that the Department of Education was routinely requiring applicants for provider approvals to attend seminars and assessment sessions, before processing their applications.
I accept the evidence of Ms Hanson that the practice of the Department of Education has now changed in this regard and that it is no longer mandatory for applicants assessed as 'low risk' to sit such an assessment. As the applicant has not previously managed or operated a child care services, he would not be seen to be of 'low risk' and would therefore still be required to complete an assessment to demonstrate his knowledge of the National Law and National Regulations.
I accept that the evidence of the applicant's assessment results is important in the proceedings, as it is the only evidence that he is not a fit and proper person to be involved in the provision of an education and care service, and the only evidence relied upon to refuse to grant the provider approval. It is also probative evidence of the applicant's knowledge of the National Law and Regulations.
In determining whether to admit the evidence of the applicant's assessment responses and assessment results, I have given weight to the guiding principles that the rights and best interests of the child are paramount and that best practice is expected in the provision of education and care services. In accordance with these principles, I find that the public policy considerations which favour admission of the evidence outweigh the public policy considerations against admitting it. This includes the public policy of protecting the applicant from unlawful and improper conduct (Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70 at [113]).
I decide, for these reasons, not to exclude the evidence of the applicant's initial assessment responses and results.
[6]
Is the applicant a fit and proper person to be involved in the provision of an education and care service?
The applicant has not satisfied me that he is a fit and proper person to be involved in the provision of an education and care service (within s 12(2)(a) of the National Law). As set out above, this is because the applicant's results for both his assessments indicate that he has a deficient knowledge and understanding of the National Law and National Regulations and is therefore not fit to operate an education and care service. In these circumstances, I am required, by s 15(2) of the National Law, not to grant the applicant a provider approval.
The correct and preferable decision is therefore to confirm the respondent's decision.
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Orders
1. Pursuant to s 193(3) of the Children (Education and Care Services) National Law (NSW), the Tribunal confirms the respondent's decision of 9 November 2017 to refuse to grant the applicant a provider approval.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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: 07 November 2018
In oral evidence, the applicant told the Tribunal that the Department of Education was 'cooking up baloney assessments that can be interpreted in many ways' and that the Government was 'bent on failing people on their assessments.'
In response to the applicant's comments, the legal representative for the Department of Education told the Tribunal that 720 applications for provider approval had been lodged between 1 January and 7 March 2017. Of these, 217 had been approved, 186 had been refused and 319 were still pending a decision.
It remains the applicant's contention that despite the score given to him, he answered the questions correctly and that the marking system itself is ridiculous.
I accept that the applicant felt that one hour was not sufficient time to complete the assessments to his satisfaction and that some of the written material may be confusing for someone without experience in assessment procedures.
The applicant is, however, someone who has a long history of successful study. He has provided evidence of the following qualifications:
1. Certificate III in Investigative Services 2011
2. Certificate IV in Workplace Safety 2005
3. Diploma in Community Services 2017
4. Post Graduate Certificate in Infection Control
5. Bachelor of Health Science (Complementary medicine) 2003
6. Graduate Certificate in Vocational Education & Training
7. Graduate Certificate in Careers Education & Development 2009
8. Certificate in provide cardiopulmonary resuscitation & provide an emergency first aid response in an education and care setting
9. Diploma of rehabilitation
He has provided written submissions to the Tribunal in which he has referred to sections of the National Law. He was given the opportunity to sit a second (voluntary) assessment. His results for the second assessment were, however, less successful than for the first (mandatory) assessment.
Despite the applicant's submission that 'the results are baloney', I am satisfied on the evidence before me that the markers of the applicant's two assessments are experienced in assessing and rating education and care services. In this regard, I give weight to the evidence of Ms Hanson and Ms Greenfield. I am concerned by the inability of the applicant, as demonstrated by his answers to the two assessments, to identify issues in response to scenarios concerning the safety of children and steps to be taken for their protection. Particularly in his second assessment, the applicant's answers rarely addressed the relevant question, and failed to address essential matters of relevance. This, I am satisfied, demonstrates that he does not have an adequate understanding of the provisions of the National Law or National Regulations.
On balance, I am satisfied that both assessments attempted by the applicant showed that he had an inadequate knowledge and understanding of the National Law and National Regulations. In reaching this conclusion, I have taken into account that the National Law is a law calling for strict compliance by those who are required to apply it: CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 at [45] and 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22].