Elhawli and Secretary, Department of Education [2026] ARTA 52 | Case summary

At the outset of the consideration of this matter it is perhaps appropriate to refer to the matters that the decision-maker must have regard to as prescribed by s 194E of the Administration Act, being the "_Fit and proper person consideration_s". Understandably, in submissions made both in writing and orally during the hearing of this application, it was emphasised by the applicant that she satisfied the requirements of subsections 194E(a) to (j) of that section.[2]
The ARO in the reviewable decision found that with respect to each of the matters contained in subsections 194E (a) to (j) of that section there was no evidence that any of them applied to the applicant. In those circumstances they found that each of them weighed in favour of a finding that both the applicant and Nour Elhawli are fit and proper persons.[3]
The respondent did not advance any contention or argument that there was any evidence before the Tribunal concerning subsections 194E (a) to (J) of that section which rendered either the applicant or Nour Elhawli not fit and proper persons.
In the light of these submissions and considering the material that is before the Tribunal it finds that there is no evidence to suggest that subsections 194E(a) to (j) of the Administration Act have any application. It is fair to say, as was contended for by the applicant, and found by the ARO that these factors weigh in favour of a finding that both the applicant and Nour Elhawli are fit and proper persons for the purposes of the relevant provisions of the Administration Act. The applicant placed significant emphasis on this.
It is apparent from the forgoing analysis that the fulcrum of this matter centres around the construction and application of subsections 194E(k) to (i) of the Administration Act. In this setting therefore, the application of Division 4 - "Fit and proper person consideration" of the Minister's Rules, specifically subsections 46 (2) and 46 (3) assume primacy.
The Tribunal was not referred to, nor has it been able to identify any decision of a Tribunal, let alone a court, that has construed and applied these sections of the Minister's Rules.
It is perhaps appropriate at this stage of these reasons to summarise some of the matters, and contentions relied on by the respondent in asserting that that both the applicant and Nour Elhawli are not fit and proper persons for the purposes of the Administration Act.
It was emphasised by the respondent that the Family Assistance Law involves the application of significant levels of Commonwealth funds to provide childcare assistance to families. Naturally, in this context an individual is only eligible for a subsidy or assistance under the scheme if their child attends a childcare service that is approved under that statutory regime. Under that scheme the respondent pays a subsidy to an approved provider, it is then required to pass on that subsidy, less an administration fee, to the eligible person, presumably the parent or guardian of the child, by way of reduced childcare fees.
In this setting, quite understandably it was also observed on behalf of the respondent that becoming an approved provider has significant commercial benefits as a parent or guardian is unlikely to enrol their child in a childcare service which does not attract the Commonwealth subsidy.
The pivotal role of an approved provider in the administration of the scheme created under the Family Assistance Law was emphasised in several ways. The obligation for accurate record keeping concerning all details of the service provided, including both relevant information concerning parents and children, was emphasised as underpinning the integrity of the scheme and ensuring that funds provided by the Commonwealth are properly and legitimately applied. The obligation for timely and accurate reporting was also emphasised. These obligations were identified as being critical to prevent or minimise the scope of fraud, or even some other misappropriation of such funds through carelessness or poor administration. This is of course understandable and must assume critical importance.
The need for accurate record keeping together with prompt and accurate reporting obligations was also identified as having a specific application because a family day care service, of the type that the applicant intends to operate under the business name of "Joyful beginnings Family Day Care", is one in which the child care services are provided in educators' private homes rather than a standalone or specifically established or purpose-built childcare centre, of which these days one can see many scattered throughout suburban Australia. In a purpose-built or standalone childcare centre, of course it was additionally emphasised by the respondent that the provider has direct oversight or a "hands on" responsibility for the childcare services being provided. It must be repeated that would not be the case with the services proposed to be provided by applicant and Nour Elhawli. One can also see that this service provision model would be more likely to face the risk of being exposed to loss or misappropriation of Commonwealth funds not only through fraud or some other kind of dishonesty, but also by reason of inadequate or unsatisfactory management practices, oversight or an appropriate level of scrutiny.
It was also stressed by the respondent that an approved provider has obligations under the Family Assistance Law to submit timely and accurate reports to the respondent using a specific software package. These records must provide details of individual childcare attendances during specified periods. Upon receipt of those records the respondent applies level of subsidy that Services Australia have advised that the relevant eligible person is entitled to receive. Then the applicable subsidy is paid by the respondent to the approved provider, who then is required to pass such subsidy onto the eligible person by way of reduced fees. Therefore, it will be seen that the integrity of reports provided by an approved provider is pivotal to the effective operation of the scheme created under the Family Assistance Law.
Therefore, the respondent submitted that an application for approval as a provider is subject to very careful review and analysis to assess whether the applicant has the necessary expertise and experience to administer what it submits is a relatively complex set of rules and processes arising from the administration of CCS and ACCS. One should observe that this submission has much force and effect. It is a complex set of rules under the Family Assistance Law to administer the CCS and ACCS. The Tribunal did not understand either party to this application to contend otherwise.
Having laid the foundations of the respondent's submissions as aforesaid, it was contended that when one examines the experience and educational backgrounds of the applicant and Nour Elhawli, they do not have any substantive or practical experience in administering CCS and ACCS, or of managing a family day care facility which is obliged to conform with the provisions of the Family Assistance Law. In short, they simply have no such experience. This fact was conceded by the applicant during the hearing. This will be touched on later.
The applicant contended, with considerable force and effect, both in her written and oral submissions, that there was no specific law, section or regulation requiring a precise number of years' prior experience in the administration of a family day care centre and administering CCS and ACCS.[4] For instance, the statutory mechanism does not require her nor Nour Elhawli, to have previously worked in the business of another approved provider under the Family Assistance Law. She urges the Tribunal to construe the language contained in section 46(2) of the Minister's Rules which only requires them to have experience and expertise in the provision of childcare services. This she submits is evident from the material before the Tribunal. Had that section of the Minister's Rules required her and Nour Elhawli to have prior experience working for an approved provider and administering the CCS and ACCS, she submits the drafting of the section would have said so.
The applicant also emphasised that her experience as a primary home room teacher, where she taught grade 1, is very similar to early childhood teaching. Additional reliance was placed by her on the fact that whilst working as an early childhood educator at the "Butterfly early childhood family day care service" she did perform administrative tasks such as the enrolment of children, obtaining identity documents and speaking to families and parents about availability of places in that service together with the applicable fees. It was also highlighted by the applicant that she had completed a Certificate 3 in children's services in 2014 and obtained a Bachelor of Education from Victoria University in 2018. A Master of Project Management from the faculty of business and economics was obtained by her from Monash University in 2023. These qualifications, she contended, provide her with the necessary skill set to properly discharge the obligations of a person with management or control of an approved provider including the administration of CCC and ACCS.[5]
On the question of experience, the respondent relies upon and submits the Tribunal should place significant weight on several matters which relate to the applicant's own level of experience and understanding of the statutory mechanism underpinning the Family Assistance Law and of course that of Nour Elhawli.[6] They will be briefly outlined below.
The applicant's experience as an early childhood educator was most recently in the year 2016. This as noted, was before the current and applicable CCS. Further, there is no evidence to suggest that her experience at that time involved her undertaking any management responsibility or duties.
The applicant's experience as a primary home room teacher is not directly relevant and is in many respects different to the nature of her role, and the functions that she would be obliged to discharge as a person with the management or control of an approved provider.
It has been 6 years since Nour Elhawli's experience in the childcare sector. Additionally, there is nothing in the material in evidence before the Tribunal to suggest that such experience was in a setting where she undertook operational tasks or responsibilities. Perhaps more accurately, and also relevant for the purposes of this application, such experience did not arise where she was participating in the administration of or administering the CCS and ACCS schemes applicable at that time.
When both the applicant and Nour Elhawli were employed at Butterfly Family Day Care the duties did not involve anything such as the operation, management or control of that concern.
Further, whilst administering the CCS and ACCS Nour Elhawli's engineering qualifications are not relevant to the tasks that she would be performing with an approved provider.
The applicant in seeking to rebut these contentions on the part of the respondent relies upon her more than 5 years' experience in the provision of childcare services and Nour Elhawli's more than 2 years' experience in the provision of such services which she contends therefore satisfies the provisions of s 46(2) of the Minister's Rules.
Whilst the fit and proper person consideration of the Minister's Rules contained in s 46 do not specifically require a person with management or control over the approved provider to have had prior experience working with another approved provider administering the CCS and ACCS, the Tribunal accepts the submissions of the respondent that the sheer nature and complexity of an approved provider's obligations under the Family Assistance Law make it almost inevitable that they must have done so for a decision-maker to be satisfied that they are equipped to properly manage an approved provider and ensure that it complies in every respect with its obligations under that regime. The potentially significant sums of Commonwealth funds applied to an approved provider under the Family Assistance Law also, in the view of the Tribunal raise the bar in terms of experience and expertise that should be required of a person with management or control of the approved provider. Potential for misapplication of Commonwealth funds through neglect, mismanagement or even fraud, require a much-heightened level of scrutiny to be applied to an applicant and with respect to the person or persons with management or control. In this regard therefore, the Tribunal concludes that the applicant and Nour Elhawli do not have sufficient experience or expertise in these critical areas of management of an approved provider that properly equip them to undertake the very important tasks that they would be required to discharge if the application were granted. In reality therefore the only way that they would be able to obtain appropriate experience or expertise as contemplated by s 46(2) of the Minister's Rules would be to have previously worked in an administrative capacity for an approved provider. They do not have this experience.
The respondent also identified several concerns about what were contended to be deficiencies in policy and procedure documents that had been submitted by the applicant in support of the application. They will be identified below. It was contended that these concerns also go to the question of whether or not applicant and Nour Elhawli satisfy the fit and proper person requirements as contemplated by amongst other things s 46 of the Minister's Rules.
The first concern was how the approved provider would comply with the requirement of s 47 of the Minister's Rules that it is a condition of continued approval that the approved provider ensures that less than 50% of the children to whom any educator is providing care are related to the educator as a niece, nephew, cousin or grandchild.[7]
In response to this concern the applicant referred the Tribunal to several documents. They were an "Educator Declaration Form-Care of Relatives (Less than 50% Rule)",[8] "Family Declaration Form-Care Provided by a Relative"[9] and several pages from the Governance Statement that had been lodged.[10] That section of the Governance Statement is headed "Caring for relatives".
The documents which the applicant took the Tribunal to in submissions clearly reflect that she understands the provisions of the rule concerned. There is however limited information in each of those pages which explains how compliance with the obligations established by that rule would be enforced. At best there is one paragraph which states that as a provider the applicant must check whether any parents at the service or their partners, are educators, and if so whether any of them fall within the application of the rule. The Tribunal considers that the respondent's concerns on this question are properly raised and established. There is insufficient information to demonstrate how this rule will be properly enforced.
The second concern or issue raised by the respondent was how the approved provider would comply with the obligation under s 200A of the Administration Act to notify the respondent of a child's enrolment with that provider.[11]
The applicant's response to the second concern raised by the respondent was to refer to several pages of documents that were in evidence before the Tribunal. The first document was a page of the Policy and Procedure Manual proposed for Joyful Beginnings.[12] That page addressed Policy, Goal/principles, Training and induction and procedure in the context of the CCS. The second document referred to was certain pages from the Governance Statement at Part 5 "CCS Operations" which addressed Fee Policies and Fee Determination and Approval.[13]
The third concern raised by the respondent was who would enter into a Complying Written Arrangement ("CWA") with the family/individual, and how frequently families/individuals would be issued with a statement of entitlement.[14]
Under section 200B (3) "When a child is enrolled", of the Administration Act, a CWA is defined as a written arrangement between a provider and an individual if the arrangement complies with the requirements prescribed by the Secretary's Rules. "Part 4 - Provider requirements, Division 1 - Complying written arrangements", s 9 of the Secretary's Rules provides that an arrangement is a CWA where it expressly sets out in writing six matters. They need not be reproduced for the purposes of these reasons, suffice to say that very specific details must be included in the written document for it to comply with the section. It also should be observed that unless the written document complies with s 9 of the Secretary's Rules the individual concerned will not be eligible for the relevant subsidy.
By way of response, once again at the applicant referred to Part 5 of the Governance Statement "CCS Operations".[15] She explained that the section concerned explains what a CWA is. Additionally, Table 5 in that part of the document also provides a description. As best one can construe this section of the document it appears that a CWA would be issued in anticipation of enrolment, and either varied, or a fresh one issued where relevant information or details have changed. Other than that conclusion, the document is silent as to the frequency of the issue of a statement of entitlement. The Parent Handbook refers to invoices/statements being issued either weekly or fortnightly, reflecting with the fees charged and payments made during that period.[16] Given the comparatively limited information on this question the Tribunal considers the respondent's concerns are justified. This is particularly so when one considers the degree of particularity required to be completed for a CWA to comply with s 9 of the Secretary's Rules.
The other concern raised by the respondent related to how session reports would be submitted in a timely manner when the sole person nominated to provide such information was indisposed or on leave. It was emphasised that reporting is critical to the Family Assistance Law because in the absence of such reports, families are not entitled to receive the CCS.[17]
The applicant's response was to refer the Tribunal again to the contents of a significant number of pages the Governance Statement.[18] The section of the Governance Statement entitled "Recording attendances and absences" was referred to.[19] Whilst that section explains the processes for crosschecking and verifying the accuracy of the documents concerned, it does not, as submitted by the respondent, provide a mechanism for preparation, checking and submission of session reports when the provider nominated is unavailable for whatever reason. There is no contingency or backup plan identified which would fill that gap and ensure that session reports were accurately cross checked and lodged on time. Therefore, the Tribunal concludes that the concerns of the respondent with respect to this question were fully justified.
Having reached these conclusions on this matter Tribunal accepts the contentions of the respondent that one would have reasonably expected that they be addressed in the relevant policy and procedure documents concerned, which have been identified in these reasons. Therefore, it also accepts the contentions of the respondent that these are relevant to a determination of whether the applicant, as a person with management or control of the provider the purposes of s 194F(1)(b) of the Administration Act, is a fit and proper person to administer the CCS and ACCS in the relevant sense.
For the reasons outlined above given the findings by the Tribunal that neither the applicant and Nour Elhawli have obtained sufficient experience and expertise in administering the CCS and ACCS, or in managing a family day care service together with the concerns and issues identified with respect to the processes, systems, policy and procedure documentation, the Tribunal is not satisfied that they are fit and proper persons as contemplated by s 194C(b) and (c) of the Administration Act.

The respondent submitted that the applicant's proposed governance arrangements were deficient in several respects. Emphasis was placed on the fact that an approved provider's governance documents provide the principal means by which the respondent, and the Tribunal in conducting this review, can understand how such a service will be conducted and most critically, enabling it to determine whether the provider will conduct a service that is compliant in all respects with the provisions of the Family Assistance Law.
Criticism was also levelled by the respondent at the applicant's contention that how certain matters would be carried out by the approved provider would be demonstrated when it actually commences operations. The Tribunal considers that this criticism was justified. It is essential that an approved provider have all necessary policies and procedures clearly identified, and in place so that there is no room for doubt, so that compliance in all respects with the requirements of the Family Assistance Law occurs. This is an essential part of the application process that the respondent, and the Tribunal as decision-maker must ensure is resolved. To prove such compliance or matters "on the run' as it were is not very satisfactory.
Several matters referred to above in the section of this consideration concerning the fit and proper person requirements are also relevant to the applicant's proposed governance arrangements. They are referred to and repeated for the purposes of the consideration of this question. Those concerns related to the requirement of s 47 of the Minister's Rules, compliance with the obligations under s 200A of the Administration Act and the questions concerning entry into a CWA. They do in the view of the Tribunal count against the applicant with respect to s 194C(da) of the Administration Act and lead the Tribunal to conclude that the proposed provider does not have those arrangements in place to ensure that it and the applicant and Nour Elhawli comply with the Family Assistance Law.
The respondent highlighted several matters concerning the proposed governance arrangements which are relevant to the determination of this application. They will be considered below.
It was contended by the respondent that it was unclear from the material how the proposed provider's intention to provide support to educators wherever they were located in Victoria, including in remote locations, would occur without addressing how the provider's staff would be supported to expend time and travel to deliver such support.[20]
The applicant responded to this contention by referring to several parts of some of the documents lodged. A section of the Governance Statement entitled "Procedure for educators in remote areas."[21] Whilst that document refers to what is described as practical, financial and operational supports that would be put in place for educators operating in remote areas, it does not specify what that support would be. Reference is made to the use of technology for ongoing support and home visits, but no further details provided. The Joyful Beginnings policy and procedure manual is also applicable to a consideration of this question. The first reference to supervision of Family Day Care educators in remote locations is referred to.[22] That section identifies in detail a procedure for educators in remote areas. It also refers to travel support and resources. However, it does not identify what actual support is intended to provide to a family daycare educator. This seems to the Tribunal to be deficient. On this topic, it also includes a section entitled "Monitoring, Support and Supervision of Family Day Care Educators, including how the Service will manage those in remote locations."[23] The reference to this question in this document is fairly minimal. It refers to monitoring, support and supervision for educators in remote areas being provided by service coordinators and also refers to contact being made by the use of technology such as "Zoom". Once again, as with the Governance Statement, it does not condescend in any detail as to what the actual support anticipated to be provided actually is. It should also be noted that there was in evidence a template document known as a "Remote Educator Register".[24] There is a section of that document referring to the purpose of a visit and it includes what is described as "Support/Supervision". Once again, it does not identify the nature of such support.
There is another aspect concerning this matter that should be mentioned. There was in evidence a budget prepared by the applicant.[25] An examination of that budget reveals that there is no allowance for any anticipated expenditure incurred when the provider conducts spot checks or visits to educators in remote locations. The applicant conceded that this is the case as it is self-evident. The respondent in the light of this fact questioned whether the Tribunal could be satisfied that spot checks of educators in remote locations would actually occur if no provision has been made for such checks in the in the budget. It is a point fairly made.
The applicant in response to this suggestion contended that she had put a lot of work into addressing concerns of remote educators. She also emphasised that her service does not approach educators, they approach her, and if they do an appropriate policy and procedure is in place for them. Unfortunately, the Tribunal is unable to accept this submission as regrettably the evidentiary foundation for such a contention could not be identified from the material before it, as previously explained. It did not address the concerns raised by the respondent about how one could be satisfied that the spot checks for educators in remote locations would actually occur if no allowance is made for such checks in the proposed budget.
Therefore, the Tribunal concludes that this concern on the part of the respondent is properly made out.
The respondent was also critical of the application because in submissions it was contended there was an absence of detailed revenue and expenditure projections. There was also a lack of evidence concerning the provider's asset backing. The failure to retain accounting advice to prepare an appropriate budget or cash flow statement and provide any other advice and guidance was considered to be a cause of significant concern. In short it was contended that this means the decision-maker could not be satisfied that the applicant's business model proposed for the "Joyful Beginnings Family Day Care" was viable.[26]
The Respondent contended that insufficient material had been provided by the applicant to address its concerns about the financial viability of the proposed family daycare service. Reference has already been made to the budget that was in evidence before the Tribunal. Further criticism of its contents was made by the respondent concerning some of the entries contained in it. The reference to staff wages of $35,000 over 3 months was described by the respondent as "a vague and opaque reference". The applicant explained in submissions it was calculated in accordance with Fair Work Commission determinations and cover the wages for an administrator, a coordinator and a supervisor. No binding and applicable award of the Fair Work Commission was provided, or any other enterprise agreement or like instrument that might regulate those persons' employment conditions was produced. It was also submitted that the references to legal fees and printing were at best vague. A reference to marketing/advertising of $570 per year was said to be vague or otherwise insufficient.
The Tribunal considers that the criticisms levelled about the financial viability and/or adequacy of the financial statements and material, if they can be described as that, are justified. The only real document that articulates any financial details is the budget, which is very rudimentary indeed, and clearly was not prepared by a suitably qualified accountant. It is difficult to see in some instances how the amounts referred to have been arrived at. It seems more likely than not that they are simply the product of guess work.
Another ground of criticism made by the respondent concerned what is described in various ways including the "Educator Induction Pack" or "CCS and ACCS Training Policy and Induction Pack Outline".[27] It was contended that whilst this document provides educators with an overview of their key obligations under the Family Assistance Law, it does so without explaining the meaning of "spot checks and verification procedures", how they apply, further there is no specific information in the document about how fee changes and enrolment changes are to be reported, and what the applicable timeframes are let alone how the provider would monitor this question.[28]
In response to this particular criticism the applicant took the Tribunal to several pages of its Governance Statement which address the issue of "Recording attendances and absences".[29]
Certainly, when one examines the Induction Pack the criticisms made by the respondent are established. It does use such terms as spot checks and audits of session records but does not identify the precise mechanism pursuant to which these steps would be undertaken. An examination of the section of the Governance Statement in the section "Recording attendances and absences" does provide much further detail on this question. It identifies daily, weekly, monthly, quarterly and spot checks. The nature of those checks is also explained. It is a reasonably good explanation. However, that document does not, as the respondent contends, contain specific information about how fee changes and enrolment changes are to be reported, and what the applicable timeframes are and how they will be monitored by the provider.
It is true that the Educator Induction Pack does lack the detail as described by the respondent in submissions. This is unfortunate as it seems that on induction an educator should know precisely what the spot checks and verification procedures to be adopted actually are. The criticisms made by the respondent about these deficiencies in the Educator Induction Pack for these reasons have been established.
The respondent was also critical of another aspect of the governance arrangements proposed by the applicant. In a "Risk Area", "Subsidy/ACCS Misuse" identified in the material there was a section entitled "Detection & Reporting objective: Know how to identify and report suspicious activity".[30] The most likely irregularity it was submitted was likely to arise from attendance signing in and signing out. The applicant stated there was an electronic system and parent or guardian signatures are applied using a unique identifier or "PIN". It was also explained that if an educator were to sign out on behalf of a parent or guardian, they would be required to say so and it would be recorded in the software. Unfortunately, in the evidence it was not explained how an educator could sign in or out on behalf of a parent or guardian. Also, it was not explained how they would be able to do this without having been provided with the unique identifier or PIN for the parent or guardian concerned. This is a significant concern. She stated that an explanation would have to be given to the respondent in such an event. Reference was also made to a "Timesheet Compliance Review Checklist" which also contemplated spot checks being undertaken.[31]
The respondent contends that the material before the Tribunal cannot enable it to be satisfied that the providers governance arrangements and procedures, or perhaps more accurately measures, will adequately manage the risks of and prevent, identify and respond to fraud.[32] Understandably, the respondent is concerned about the potential for the scheme created by the Family Assistance Law being exploited by way of fraud and dishonesty. There are several criticisms or deficiencies in the evidence produced by the applicant that are identified and relied upon by the respondent. They will be addressed individually hereunder.
The first criticism related to the question of conflicts of interest. It is contended by the respondent that the applicable Code of Conduct provided by the applicant essentially relies on an educator's good faith and casts upon them an obligation of self-reporting. The applicant referred to a section of the Governance Statement entitled "Conflict of interest policy and procedure".[33] It is intended that there be a cross-reference of the timesheets against when the parent or guardian sign in or sign out. The respondent contended that there was no, or no adequate mechanism of oversight to accurately determine whether parents were dropping their children off and the care concerned was being provided. Also, the respondent was critical of the proposed governance arrangements on this question as there was no mechanism that enabled the provider to stop educators completing timesheets. In short it was contended that there was not an adequate and comprehensive measure to ensure the times are accurately recorded. Unfortunately, the Tribunal has to agree with these contentions. It was just not readily apparent from an examination of the material before the Tribunal.
The contents of that section of the Governance Statement speak for themselves. Amongst other things, it requires staff members to complete a Conflict-of-Interest Declaration Form upon commencement, annually and whenever circumstances change. It also requires immediate disclosure of any conflict of interest when it does arise by the staff members concerned, and any such conflict so disclosed to be registered in a Conflict-of-Interest Register. Whilst it is true that the Conflict-of-interest policy and procedure referred to by the applicant in response to this criticism provides for educators self-reporting any conflict of interest, it is fair to say that it is addressed more specifically in the other documents referred to and relied on by the applicant. That evidence will be briefly considered.
Reference was made by the applicant to the "Fraud and Risk Management" section of the Governance Statement.[34] That document does contain a detailed list of "Fraud Prevention Measures". What is described as a range of checks to be conducted are identified, an explanation of how such checks are conducted and what such checks are also included. The term "conflict-of-interest" does not specifically appear in that section. This is unfortunate and does potentially pose some prospect of a potential conflict of interest not being captured by the provision of measures as described in this section of the Governance Statement. The applicant also referred to other pages of the Staff Induction & Training Pack and the Governance Statement which identify measures which could be invoked or relied upon to detect a potential conflict of interest.[35] The Staff Induction & Training Pack has a reference to Fraud Prevention & Detection but there is no specific reference to a conflict-of-interest. There was a document entitled "Fraud Awareness & Integrity Training Program". This document does not refer to a conflict of interest. It is essentially a summary document of the topics to be discussed in the training program proposed to be conducted by Joyful Beginnings Family Day Care. Potentially a conflict-of-interest could fall within the ambit of some of the topics identified in that document, however, it is far from clear. The other pages from the Governance Statement address recording attendances and absences and articulates the various checks and verification processes that are relied upon. Once again, there is no specific reference to a conflict-of-interest. Potentially, the details contained in that document could lead to a detection of a conflict of interest if it was not otherwise disclosed by the educator concerned.
Therefore, given the concerns and deficiencies that have been identified in these documents concerning the question of a conflict-of-interest, the Tribunal agrees with the submissions of the respondent on this question.
The next criticism levelled by the respondent on the question of managing the risk of fraud concerns a document described as "FDC Fraud Training". It is correct as the respondent contends that it is an outline providing limited detail of the subjects to be addressed in a fraud training program. It does not, also as the respondent contends, identify who will undertake such training or how it would be funded by the provider. It is certainly not clear from the budget that was in evidence before the Tribunal where the funding for such a program would be sourced, if it is required to be paid for.
In response to this criticism the applicant referred to the contents again of the Fraud and Risk Management section of the Governance Statement.[36] The contents of those pages have been referred to previously. Unfortunately, despite the quite detailed information contained in them, they do not address the question of who will undertake the training concerned, or how it would be funded if it is undertaken by an external fraud or risk consultant. For these reasons the Tribunal considers the concerns raised by the respondent to have been established.
The next matter raised by the respondent concerned a document for the proposed provider entitled "FDC child enrolment form". The form requests parents of children for whom care will be provided to specify whether they or their partner are currently providing care to children as a family day care educator and requires them to undertake to inform the service should the situation change. The respondent takes issue with contents of this form because it is said to place heavy reliance upon a family day care educator self-reporting. This criticism of the form it is contended, is also amplified by the fact it there is no explanation of the consequences of a parent concerned making a false declaration. Additionally, it is raised by the respondent that it is not at all clear from a consideration of this form how the applicant would travel significant distances to remote areas to ensure there is the appropriate level of scrutiny or oversight respect to this question.
There was really no significant response provided by the applicant concerning these questions raised by the respondent over the "FDC child enrolment form". The Tribunal considers these concerns have been properly made by the respondent as a responsible regulator given the setting that is under consideration for the purposes of this application under the Family Assistance Law.
The next matter that was addressed by the respondent concerned a document described as an "Incident Log Template FRAUD Cases". The point made by the respondent is that it is not readily apparent who should complete the document and, what on the true and proper construction is meant by the terms contained in the document namely "incident classification" and "completion date". The applicant really did not cavil with these criticisms. Whilst on one hand, one may well say they are comparatively minor in the scheme of things, given the nature and purpose of the Family Assistance Law, and as is contended by the respondent that it involves the application of significant Commonwealth funds the Tribunal concludes that they are not unreasonable concerns.
The final concern or criticism raised by the respondent with respect to the need to prevent, identify and respond to potential fraud of the system created under the Family Assistance Law concerned a document known as _"Monthly CCS checklis_t". This document forms part of the Educator Induction Pack. The respondent submitted when one examines such document it is not clear what the meaning was of the term "fraud spot checks and discrepancy logs reviewed".
As the applicant on several occasions when responding to such submissions referred to a number of pages contained in the documents before the Tribunal in the hearing book.[37] Whilst those documents refer to various forms of checks, including what are described as "spot checks" it is nonetheless very difficult to determine from an examination of those pages who is responsible for the task concerned or what is meant by the term "Fraud spot checks and discrepancy logs reviewed". It is an unfortunate feature of several of the documents which have been referred to throughout these reasons that no, or no adequate explanation of several important matters referred to in those documents, is contained within them. It requires the uninitiated reader of those documents in particular, to navigate a vast array of documentation to answer the specific questions. In many instances, it seems to an arm's-length observer, such as the Tribunal, that it is more probable than not an educator or other staff member when confronted with these forms, will not be alerted to, and will not be able to navigate their way to the document that would answer the question or clear up any misapprehension or discrepancy on their part. It is simply not very easy to find the answer from the documents concerned. It requires some significant mental application by an uninitiated reader. Therefore, for these reasons the Tribunal considers that the respondent's concerns on this question was validly and properly raised.
For these reasons as explained, therefore the Tribunal is not satisfied that the applicant meets the requirements of s 194C(da) of the Administration Act, namely that the provider has arrangements in place to ensure that the provider and the following persons administering (the applicant and Nour Elhawli) comply with the Family Assistance Law.

Elhawli and Secretary, Department of Education [2026] ARTA 52 (20 January 2026)

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Elhawli and Secretary, Department of Education [2026] ARTA 52 (20 January 2026)