Gabriel's Family Day Care Pty Ltd v Secretary, Department of Education

Introduction

1. The applicant Gabriel's Family Day Care Pty Ltd, has been providing education and care to children as a family day care service since approximately 2014, the company having been originally incorporated in 2013.
2. The Secretary of the Department of Education is the Regulatory Authority in New South Wales under the Children (Education and Care Services) National Law 2010 (NSW) (referred to as "the National Law").
3. On 19 December 2019 the delegate of the Secretary, Department of Education determined to cancel the applicant's provider approval pursuant to section 33 of the National Law. The decision to cancel the provider approval took effect from 8 January 2020.
4. The Tribunal heard the applicant's stay application to stay the decision in the Community Services list on 30 January 2020. The stay was granted on the terms and conditions recorded in the reasons given: Gabriel's Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 43. The stay decision anticipated a hearing on 27 May 2020. However, the hearing did not proceed at that time and was vacated on 22 April 2020. The matter was on 7 May 2020 relisted for hearing commencing 6 July 2020.
5. The decision to cancel the provider approval is a reviewable decision for external review under section 192 (b) (ii) of the National Law. The decision to cancel the provider approval is based on the view that there has been breach of the conditions of provider approval by failing to comply with the law in respect of the operation of the service, and that such non-compliance poses a risk the safety, health and well-being of a child or children. The specific legislative provision invoked in relation to the ground for cancellation was section 31(e) of the National Law.
6. A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision: section 193 of the National Law. The Tribunal (NCAT) is the relevant venue by reason of section 5 of the National Law and section 8 (b) of the Children (Education and Care Services National Law Application) Act 2010 (NSW) ("the National Law Act Application Act").
7. It is identified that the applicant Gabriel's Family Day Care Pty Ltd was granted provider approval on 12 February 2014. Service approval was granted on 23 April 2014. There is a history which identified a number of non-compliance issues in 2017. A letter of non-compliance was then issued in 2018. Following responses from the applicant in 2017 and 2018 all matters were subsequently resolved.
8. In about April 2019 the applicant was selected for monitoring and compliance visits. This was because it apparently had a "very high" risk rating on the NQAITS system. The NQAITS uses a risk matrix to collate a risk score based on the information recorded in the system. In order to determine the risk rating the NQAITS system attributes a weighting and score to relevant records in the system including, but not limited to, the current quality rating, any confirmed breaches of the National Law and National Regulation and any previous compliance actions taken. The "very high" risk rating was produced from the data and records in the system based on the number of recorded previous instances of alleged non-compliance and previous statutory compliance action taken, and the fact that it had an overall rating of "working towards" the National Quality Standards under the National Quality Framework.
9. A show cause notice under section 32 of the National Law notifying that the delegate intended to cancel the provider approval was then provided to the applicant dated 4 June 2019 and a response was provided by the applicant on 12 July 2019 prior to cancellation. The delegate was of the view that the non-compliance constituted an unacceptable risk to the safety, health and well-being of children being educated and cared for by the service. The show cause notice was issued on the grounds that the approved provider had breached a condition of the provider approval.
10. The Tribunal was informed that in essence the applicant contends that it has not breached conditions of provider approval as alleged, and if it is found that there has been a breach of a condition of provider approval, that breach has not occurred in a manner that justifies cancellation of the provider approval.
11. On 16 January 2020 the applicant lodged an application for external review of the cancellation decision. On 6 February 2020, the Tribunal made an order staying on conditions the cancellation decision until the resolution of the application for external review. The applicant therefore continues to provide education and care services under those conditions.
12. The applicant Gabriel's Family Day Care Pty Ltd is obviously a company. On 19 February 2020 the respondent's authorised officers Kellie Reeves and Alysse Busch met with Meskerem Tesifaye and Hingano Mataele at the principal office of Gabriel's Family Day Care Pty Ltd (now also referred to as "Gabriel's"). Those two last named persons are respectively the Nominated Supervisor for the applicant and the Educational Leader for the applicant.
13. On 19 February 2020 further compliance and monitoring visits were conducted which are said to identify ongoing and further areas of non-compliance with the National Law and National Regulations.
14. The original cancellation decision may have been perfectly reasonable and beyond reproach. The decision may still be seen as perfectly reasonable and beyond reproach. The decision the Tribunal has to make is whether it is the correct and preferable decision at the time the Tribunal considers all the relevant matters, or in other words to determine what "the correct and preferable decision is having regard to the material then before it".

Background matters

1. The hearing took place over 3 days by way of audiovisual link. This obviously has its limitations but was necessary because of the COVID-19 pandemic and the difficulty in ensuring that the participants in the hearing could do so safely in a face-to-face confined Tribunal room. However, with the assistance of the parties' legal representatives, examination and questioning of the witnesses occurred in a respectful and constructive manner by means of this technology.
2. Also because of the limitations imposed by the audiovisual link a large number of documents were provided to the Tribunal in anticipation that some of them will be essential for the decision which the Tribunal is to make. Exhibit 12 is an aide memoire that helpfully identifies the relevant evidence contained in the various bundles of documents. A table was prepared by both parties which identified the alleged breaches on inspection and which helpfully summarised the evidence identifying its location in the large volume of documents filed in the registry. The responses by the applicant are also included in the final form of that document.
3. The audiovisual link failed at times during the hearing, and at those times the hearing was suspended until the link could be sufficiently re-established. This resulted in some short delays and an extension of the time taken for hearing.

Legislative background

1. The objectives and guiding principles of the National Law are: 3 Objectives and guiding principles (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children. (2) The objectives of the national education and care services quality framework are- (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows- (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
2. The functions under the National Law are to be exercised as follows: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.
3. The National Law provides under Part 3 for a natural person or company to operate an education and care service, which includes family day care services. The applicant in this matter is a company rather than a natural person. An applicant must obtain service approval under Part 3 in order to operate an education and care service.
4. The Regulatory Authority is defined in section 5 to be: "Regulatory Authority" means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction...
5. Pursuant to section 24 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) references to Regulatory Authority in the National Law is a reference to the Regulatory Authority for this jurisdiction. Under section 9 of the Children (Education and Care Services National Law Application) Act 2010 (NSW), the Regulatory Authority for NSW is the Director-General of the Department of Education and Communities, now known as the Secretary of the Department of Education.

Jurisdiction

1. The jurisdiction is considered to be conferred on the Tribunal under the general jurisdiction provision in s 29 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal's jurisdiction is not one in relation to an external appeal under section 31 of that Act. The National Law refers to "external review", not "external appeal". As set out in the reasoning in DBU v Secretary, Department of Education [2017] NSWCATAD 257, section 29 of the Tribunal Act is the source of jurisdiction in this matter.
2. In Secretary, Department of Education v Joys Child Care Ltd [2017] NSWSC 749, Justice Parker acknowledged that there were two views about the statutory basis for the Tribunal's review power. The court in that matter did not need to reach any conclusion as to whether the Tribunal was exercising its jurisdiction under section 43 of the Civil and Administrative Tribunal Act or section 60 of the Administrative Decisions Review Act. Section 43 of the Civil and Administrative Tribunal Act is the equivalent stay provision to section 60 of the Administrative Decisions Review Act.
3. In DBU v Secretary, Department of Education [2017] NSWCATAD 257 (DBU) it was held by Senior Member Ransome at [22] that: In summary, while the National Law and associated legislation provide for review of some decisions with respect to child care services to be dealt with in the Tribunal's administrative review jurisdiction, that does not include the decision presently under review because it relates to a family day care service. That decision therefore falls for review within the Tribunal's residual general jurisdiction in s 29 of the Tribunal Act.
4. Because the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) (especially sections 4 and 17) applies to "State regulated education and care services" and family day care services are excluded from the definition, the provisions of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) do not apply to this application. For the reasons given by Senior Member Ransome in DBU the previous determinations as to the exercise of the Tribunal's jurisdiction identified as having been conferred by section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) is in error and those previous decisions respectfully were incorrectly decided in that respect. It is noted that Senior Member Dr Lucy has also held that to be so in CYU v Secretary, Department of Education [2017] NSWCATAD 290.
5. Section 192 of the National Law relevantly provides: 192 Reviewable decision-external review A reviewable decision for external review is- (a) a decision of the Regulatory Authority made under section 191 (other than a decision in relation to the issue of a compliance direction or a compliance notice); or (b) a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction- (i) to suspend a provider approval under section 27; or (ii) to cancel a provider approval under section 33; or (iii) to suspend a service approval under section 72; or (iv) to cancel a service approval under section 79 or 307; or (v) to suspend or cancel a supervisor certificate under section 125; or (vi) to direct the approved provider of a family day care service to suspend the care and education of children by a family day care educator; or (vii) to give a prohibition notice or to refuse to cancel a prohibition notice. Note : A person is not entitled to a review under this section in respect of a suspension or cancellation of a service approval if that suspension or cancellation relates only to an associated children's service. Any right of review would be under the children's services law.
6. The decision under section 33 of the National Law is thus a reviewable decision for external review pursuant to section 192 (b)(ii) of the National Law.
7. Section 193 of the National Law provides: 193 Application for review of decision of the Regulatory Authority (1) A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision. (2) An application must be made within 30 days after the day on which the applicant is notified of the decision that is to be reviewed. (3) After hearing the matter, the relevant tribunal or court may- (a) confirm the decision of the Regulatory Authority; or (b) amend the decision of the Regulatory Authority; or (c) substitute another decision for the decision of the Regulatory Authority. (4) In determining any application under this section, the relevant tribunal or court may have regard to any decision under this Law as applying in another participating jurisdiction of a relevant tribunal or court of that jurisdiction.
8. In section 5 of the National Law the definition of relevant tribunal or court is: "relevant tribunal or court" , in relation to a participating jurisdiction, means the tribunal or court declared by a law of that jurisdiction to be the relevant tribunal or court for the purposes of this Law or a provision of this Law;
9. In section 8 of the Children (Education and Care Services National Law Application) Act 2010 the relevant Tribunal is declared: 8 Relevant tribunal or court For the purposes of the definition of "relevant tribunal or court" in section 5 of the Children (Education and Care Services) National Law (NSW) : (a) the District Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 181 of that Law, and (b) the Civil and Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Part 8 of that Law.
10. As Senior Member Ransome stated in DBU at [24]-[26]: [24] What then is the Tribunal's task on review in the present case? Under s 192 of the National Law the Tribunal is to conduct an "administrative review" of the decision made by the Regulatory Authority. That term is not defined. While the Tribunal Act sets out the practice and procedure to be followed by the Tribunal in its proceedings, it also is silent on what the Tribunal's task in its general jurisdiction with respect to an administrative review. [25] Consideration of the scope of an administrative review function arose most notably in the case of Drake v Minister for Immigration and Ethnic Affairs(1979) 24 ALR 577 where, in relation to the then newly established Commonwealth Administrative Appeals Tribunal (AAT), the Full Federal Court stated at 579 that the AAT's task was to reach "the correct or preferable decision" on the material before it. That description (and the similar formulation "correct and preferable") of a decision-maker's obligations when conducting administrative review has been repeated many times since, both in case law and in legislation. Indeed, under s 63 of the ADR Act in its administrative review jurisdiction, this Tribunal is tasked with making the "correct and preferable decision". [26] In my view, in conducting an administrative review in the exercise of its general jurisdiction under s 29 of the Tribunal Act, the Tribunal is required to perform essentially the same task as it would if the matter fell within its jurisdiction under s 30 of the Tribunal Act, that is, it is required to make the correct and preferable decision on the material before it. The High Court in the case of Shi v Migration Agents Registration Authority (2008) CLR 286 (sic) confirmed that administrative review is conducted at the time of the review on the material available to the Tribunal at the time of the review, which may include new or additional material that was not before the original decision-maker.
11. Therefore, the scheme of the legislation is that the Civil and Administrative Tribunal is the relevant Tribunal to which an application may be made for external review of a decision of the Regulatory Authority under section 192(b)(ii) of the National Law. The powers given to the Tribunal are those in section 193 of the National Law. In addition, the National Law provides at section 194 that the Act which establishes this Tribunal is not limited by the National Law. The Tribunal therefore is required to make the correct and preferable decision on the material before it.

The evidence relied upon in the hearing

1. The documents relied upon by the parties in evidence before the Tribunal are: 1. Affidavit of Meskerem Tesifaye sworn 30 January 2020: Exhibit 1. 2. Affidavit of Hingano Mataele sworn 22 April 2020 and filed 3 July 2020: Exhibit 2. 3. Affidavit of Nadal Hammoudi affirmed 20 March 2020: Exhibit 3. 4. Supplementary statement of Nadal Hammoudi dated 3 June 2020: Exhibit 4. 5. Statement of Nicole Jodi McGarity dated 3 June 2020: Exhibit 5. 6. Statement of Louise Doolin dated 3 June 2020: Exhibit 6. 7. Exhibit N-H to the affidavit of Nadal Hammoudi 20 March 2020, 3 volumes: Exhibit 7. 8. Mabinty Bangura signed permission to the Regulatory Authority to inspect premises dated 17 April 2019: Exhibit 8. 9. Afaf El-Ajouz signed permission to the Regulatory Authority to inspect premises dated 17 April 2019: Exhibit 9. 10. Educator Area Report: Exhibit 10. 11. WhatsApp chat: Exhibit 11. 12. Documents from the volumes of the applicant's material provided to the Tribunal, as identified in the Aide Memoire provided by applicant's counsel: Exhibit 12.

Further Legislative Provisions relevant to the decision

1. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
3. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
4. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division on an application for this review is entitled to be represented by a lawyer without requiring leave of the Tribunal: see sections 16, 17 and Schedule 3, clause 9, of the Civil and Administrative Tribunal Act. There is no automatic prohibition on the publication of names under section 65 of the Civil and Administrative Tribunal Act because this review is not one under the Supplementary Provisions Act. This does not prevent the Tribunal from making nonpublication order under section 64 of the Civil and Administrative Tribunal Act of its own motion. The Tribunal does not consider a nonpublication order appropriate in the circumstances of this matter and no order was sought by the parties.

The Issue

1. As previously referred to, the issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Secretary Department of Education: see DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [24]-[26]; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
2. There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
3. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

The Evidence

1. As previously identified in decisions in the Tribunal the National Law regulates a range of "education and care services" including "family day care services". A family day care service is an education and care service that is delivered through the use of 2 or more family daycare educators at 2 or more residences.
2. The scheme of the legislation is that a person who wishes to operate a family day care service must obtain "provider approval" under Part 2 of the National Law. Once a person holds a provider approval they are known as an "approved provider". The applicant was granted provider approval on 12 February 2014 and service approval on 23 April 2014.
3. A service approval must also be obtained for a family day care service. This approval is granted under Part 3 of the National Law. This approval focuses upon the education and care service which is actually operated and involves consideration of those matters specified in the Education and Care Services National Regulations 2011 (NSW) ("National Regulations") at clause 6.
4. Once there is a provider approval and a service approval in place, the approved provider and the family daycare educators have continuing obligations under the statutory regime.
5. A person, which includes a body corporate, may apply to the Secretary for provider approval. The Secretary may grant or refuse to grant provider approval. It is necessary that the Secretary is satisfied that the applicant for provider approval is fit and proper to be involved in the provision of an education and care service: National Law, section 15 (2). An applicant who is a body corporate (a company: like the applicant in this matter) must satisfy the Secretary that each person who has management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service, and the applicant is a fit and proper person to be involved in the provision of an education and care service: National Law, section 12 (2).
6. When a provider approval has been granted, an approved provider may apply to the Secretary for a service approval for an education and care service. The approved provider has personal responsibility for and overall management and control of, an education and care service. A provider approval is subject to the condition by reason of subsection 19 (2) of the National Law that approved provider must comply with the National Law. The penalty for the applicant in this matter for not doing so is, according to subsection 19(4), $50,000. There are a significant number of regulatory requirements with which approved providers must comply under Part 6 of the National Law and in the associated regulations. The list of those numerous requirements is not necessary for the purpose of these reasons.
7. On 17 April 2019, authorised officers of the New South Wales Department of Education inspected the principal office of Gabriel's Family Day Care Pty Ltd. During the inspection Meskerem Tesifaye, the nominated supervisor for the applicant, was present. The authorised officers then visited family daycare residences or venues where educators purportedly registered with the service were educating and caring for children. There were a number of areas of non-compliance with the National Law and/or the Regulations which led to the conclusion by the relevant delegate that there were serious non-compliance issues in respect to the operation of the family day care service. In summary form they are said to be inadequate measures to protect the safety, health and well-being of children and insufficient understanding of the regulatory requirements by both the provider and the educators registered with the family daycare service.
8. It should be observed that the National Law and the National Regulations require strict compliance by providers and educators: see 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22]; DPW v Secretary, Department of Education [2018] NSWCATAD 257 at [29]; Faaea v Secretary, Department of Education [2018] NSWCATAD 85 at [25].
9. A show cause notice dated 4 June 2019 was issued by the relevant delegate. The issue of this notice is required by subsection 32 (2) of the National Law. Attached to that show cause notice was a table of the identified alleged breaches and references to the applicable legislative provisions which were said to be breached.
10. The evidence concerning these alleged breaches is contained in the affidavit of Ms Hammoudi Exhibit 3 at paragraphs [30]-[43] and Exhibit 7 Tabs 8-78. The show cause notice is at Tab 79 Exhibit 7 and the applicant's response is at Tab 80 of Exhibit 7. The response is also contained in the applicant's bundle at pages 3028-4137, including the relevant annexures.
11. The respondent, through Ms Hammoudi in Exhibit 3 at [46], says consistent with its usual practice following the receipt of the response to the show cause notice, there was further monitoring and compliance visits by the respondent to assess whether the issues addressed in the show cause notice had been in fact rectified. Accordingly, from 26 to 30 September 2019 there was further monitoring and compliance visits to the principal office of the applicant as well as to the residences of educators engaged by the applicant. The records concerning those visits commence at Tab 81 of Exhibit 7 and continue to Tab 130 of Exhibit 7.
12. Following the grant of the stay on 6 February 2020 the respondent conducted further compliance and monitoring visits on 19 February 2020, the records of which are at Tabs 132 to 167 of Exhibit 7.
13. The most serious of the alleged contraventions are identified by the respondent in Exhibit 3 at [75] as: 1. the requirement to ensure that every reasonable precaution is taken to protect children from harm and from any hazards likely to cause injury: section 167 (1) of the National Law; 2. the requirement to keep enrolment and other documentation: section 175 of the National Law; 3. the requirement of an approved provider to conduct an assessment (including a risk assessment) of each proposed residence to ensure the health, safety and well-being of children who are being educated and cared for by the service: clause 116 of the National Regulations.
14. Section 167 of the National Law provides; 167 OFFENCE RELATING TO PROTECTION OF CHILDREN FROM HARM AND HAZARDS (1) The approved provider of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury. 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 every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury. Penalty: $10 000. (3) A family day care educator must ensure that every reasonable precaution is taken to protect a child being educated and cared for as part of a family day care service from harm and from any hazard likely to cause injury. Penalty: $10 000.
15. Section 175 of the National Law provides: 175 OFFENCE RELATING TO REQUIREMENT TO KEEP ENROLMENT AND OTHER DOCUMENTS (1) An approved provider of an education and care service must keep the prescribed documents available for inspection by an authorised officer in accordance with this section. Penalty: $4000, in the case of an individual. $20 000, in any other case. (2) Documents referred to in subsection (1)-- (a) must, to the extent practicable, be kept at the education and care service premises if they relate to-- (i) the operation of the service; or (ii) any staff member employed or engaged by the service; or (iii) any child cared for, or educated at, those premises-- in the previous 12 months; and (b) in any other case, must be kept at a place, and in a manner, that they are readily accessible by an authorised officer. (3) A family day care educator who educates and cares for a child at a residence or approved family day care venue, as part of a family day care service, must keep the prescribed documents available for inspection by an authorised officer at that residence or venue. Penalty: $4000.
16. Clause 116 of the National Regulations provides: 116 ASSESSMENTS OF FAMILY DAY CARE RESIDENCES AND APPROVED FAMILY DAY CARE VENUES (1) The approved provider of a family day care service must conduct an assessment (including a risk assessment) of each proposed residence and each proposed family day care venue of the service before education and care is provided to children at the residence or venue as part of the service to ensure that the health, safety and wellbeing of children who are educated and cared for by the service are protected. Penalty: $2000. (1A) Subregulation (1) does not apply in respect of an approved family day care venue if an assessment (including a risk assessment) of the family day care venue was included in-- (a) an application for a service approval under regulation 26(n)(iii); or (b) an application to amend a service approval under regulation 34(f)(iii). (1B) The approved provider of a family day care service must conduct an assessment (including a risk assessment) of each residence and each approved family day care venue of the service at least annually to ensure that the health, safety and wellbeing of children who are educated and cared for by the service are protected. Penalty: $2000. (2) The following matters must be considered as part of an assessment-- (a) the matters relating to family day care services in Division 1 and regulation 117; (b) the suitability of the residence (and areas within the residence) or venue according to the number, ages and abilities of children attending, or likely to attend, the service at the residence or venue; (c) the suitability of nappy change arrangements for children attending, or likely to attend, the service at the residence or venue, who wear nappies; (d) the existence of any water hazards, water features or swimming pool at or near the residence or venue; (e) the risk posed by any animals at the residence or venue. (3) The approved provider of a family day care service must require each family day care educator educating and caring for children at a residence or approved family day care venue as part of the service to advise the provider of-- (a) any proposed renovations to the residence or venue; and (b) any changes relating to the residence or venue affecting any of the matters set out in subregulation (2); and (c) any other changes to the residence or venue that will affect the education and care provided to children at the service. Note : A compliance direction may be issued for failure to comply with subregulation (1).
17. In addition, clauses 84, 97, 100, 102, 103, 105, 117, 162, 164A, 170, and 171 of the National Regulations are alleged to have been breached.
18. In addition to sections 167 and 175, sections 164, 165, 166, and 168 of the National Law are alleged to have been breached.
19. The applicant states in relation to the show cause notice that some of the educators to whom visits were made by the respondent's officers were not on the day of the visit providing care for children. Afaf El Ajouz was on leave on 17 April 2019 and was not providing education and care for the provider at the time of the compliance visit. Zubaida Ismail was not registered with the service at the time of the monitoring visit as she left service with effect from 8 April 2019. Mabinty Bangura was on leave from the service since 8 April 2019 prior to the time of the monitoring visit and did not return to the service. Danielle Ismail was not providing education and care on the day of the visit because she was renovating as informed by a letter dated 8 April 2019, and this educator does not provide care to children under the age of 5 so the child seen at her home by the officers is assumed to have been a relative.
20. During the visits made in September 2019 noncompliance was alleged to have taken place at the residences of the family daycare educators. In relation to Marie Sarkis the applicant says that she was terminated on 30 September following the allegations of hazards to children (including a small dog for which there was apparently no permission or knowledge by the applicant) being found at her residence. The applicant also says that during previous inspections carried out by the applicant for that residence its' safety was compliant. Solange Loki Samba resigned from her employment 3 weeks after the September visits. Afaf El Ajouz is no longer employed by the service.
21. It is also stated by the applicant that risk assessments for potential emergencies are undertaken and there is reference to substantiating evidence in the records of the applicant. It is also said that some educators do not understand what is being requested of them during a particular compliance visit as English is not their first language, most of them are Arabic speakers as their first language. The coordinators and fieldworkers, it was suggested by the applicant, could be able to help to identify the documents for the educators when they may not be able to identify the document being requested by the respondent. In addition, it is said that when the educators came to the head office for Gabriel's there is someone there who can translate when this is necessary. The evidence from the respondent is that the officers do not take translators on the compliance visit and instead they ask whether the educator requires a translation, and it is acknowledged some speak English better than others. A translator service is also offered but it is apparent that none were used in the visits which form the evidence relied upon.
22. The evidence of Hingano Mataele in Exhibit 2 and in her oral evidence addresses and responds to the allegations made by the respondent as to noncompliance with the National Law and regulations. Ms Mataele denied that she was telling lies about the timing of the resignation of carers when she was challenged in cross-examination.
23. It was alleged that Ms Mataele's letter of acceptance for the role of educational leader was unable to be produced by the applicant when requested by the respondent's officers on 17 April 2019. It is conceded that the letter was not able to be produced on the day. A letter dated 17 July 2017 was subsequently provided which is at page 4136 and 4137 of the applicant's bundle. This allegation cannot be sustained because there was in fact a record kept, it wasn't able to be located and produced when requested: see 175(2)(a) of the National Law.
24. The nominated supervisor Meskerem Tesifaye was alleged to be unaware of her obligations to report any allegations of child abuse regarding staff members or educators to the Ombudsman. This allegation was addressed in detail in the response to the show cause notice with attachments evidencing the assertions in the response. The nominated supervisor has been trained in child protection and was aware at the time of the requirement, but the document which was posted on the wall of the office omitted that requirement. The educators are required to refresh their child protection training every year and had training about this matter. This allegation cannot be sustained because the Tribunal is satisfied that the nominated supervisor was in fact aware of the requirements.
25. Gabriel's now maintains electronic sign in and sign out records so the issue raised in terms of paper attendance records completed by the educator and checked fortnightly by the service is no longer relevant.
26. It is alleged that an enrolment form for a particular child did not contain a signed authorisation for medical treatment from a registered medical practitioner, hospital or ambulance service; or transportation of the child by an ambulance service. The response indicates that the particular box had not been signed by the parent and that a new checkbox has now been inserted onto the enrolment form to ensure that all questions and essential items on the form have been completed. The child did not have any medical conditions. There is now also a system of monthly double checking by the provider. This is obviously not an ongoing issue. It was also a relatively minor issue in the particular instance. This issue was addressed in the response to the show cause notice.
27. In relation to the allegations concerning treatment of glass sliding doors and other glass areas so that they are compliant with safety glass requirements, and the failure of the educator to provide evidence, the applicant in the response to the show cause notice indicated that glass is required to be treated by the educators before education and care commences at the premises, and the glass is able to be so treated by an independent third-party contractor. The relevant glass sliding doors were observed to have the appropriate safety stickers affixed.
28. It is alleged that the provider failed to ensure that a child being educated and cared for by the service is not taken outside the education and care service premises on an excursion unless written authorisation has been provided. The provider responded that each and every educator registered with the service has been informed of the requirements for a risk assessment and signed authorisation form by parents following the risk assessment for an excursion.
29. In relation to emergency and evacuation procedures, the provider provides in-house training sessions to all educators in the first 3 months registration with the service called "Emergency Evacuation and Lockdown Procedures" and provided a copy of a copy of the relevant booklet to the respondent. Following monitoring visit the service provider directed its coordinators to ensure that every detail in relation to the emergency and evacuation procedures, the display and rehearsal is checked at every home visit. This is not a continuing issue.
30. It is able to be inferred to the appropriate standard from the evidence to the Tribunal that the other matters raised in relation to the compliance visits which occurred on 17 April 2019 have been adequately addressed by the response to the show cause notice and by the policies and procedures of the applicant produced in response to those complaints.
31. In relation to the monitoring and compliance visits which occurred in September 2019 it is observed that Ms Mataele's affidavit addresses the allegations arising from those visits.
32. In particular, Ms Mataele states that she personally prepared the risk assessments for potential emergencies in consultation with the relevant carer and says that each risk assessment is tailored to the particular residence being assessed. The educators answered "no" to the question posed to them by the authorised officers. The evidence from the applicant is that all of the educators in fact had those documents but due to the issues of language and the stress of the particular visits were not able to then provide them to the authorised officers. In addition, the authorisations for the children to travel on excursions is dealt with extensively in the affidavit evidence. It is not proposed to repeat that evidence in these reasons, and there is little reason to disbelieve that evidence. The Tribunal accepts that evidence in response to the allegations is adequate to satisfy the legislative requirements.
33. The applicant through Ms Mataele identifies that it always attaches a copy of the child's birth certificate to the enrolment form and since the September visit has required both parents' names to be included on an enrolment form. It is further explained that some of the parents do not wish to state the name of the other parent on the form because they are single parents and wish to protect their privacy. There were 2 children whose forms allegedly did not include both parents. The Tribunal accepts the explanation and the evidence provided by the applicant.
34. It is disputed by the applicant that the enrolment forms did not contain a request for parental authority to use an ambulance service.
35. In relation to the February 2020 monitoring visits Ms Mataele provides evidence that she had completed home safety assessments but had not fully completed the paperwork.
36. In relation to the allegation concerning asthma and no risk minimisation or communication plan in place, from the evidence of Ms Mataele it would appear that only one of the 2 children the subject of the allegation in fact was said to have asthma and the mother did not permit or authorise anyone in the service to provide medication for her child. It is said that consequently there was no risk minimisation plan prepared. The applicant stopped the child from attending education and care and asked the parents to seek medical advice. The mother then provided evidence that child does not in fact have asthma. This evidence is not disputed.
37. Ms Mataele stated that every educator has risk assessments and instructions as to what to do in the event of storms, earthquakes and other disasters. There is also a risk assessment in relation to electrical hazards. It is said that at a particular carer's home referred to in the evidence of the respondent there was an emergency evacuation plan at every exit including the front entrance. The carer also requested another copy of the fire drill procedure so that she could display this at the front entrance.
38. Ms Mataele disagreed with the authorised officer's views that there were insufficient resources at another educator's home. It is not possible for the Tribunal to resolve the conflict between those opinions.
39. In relation to the glass table referred to in evidence of Ms Doolin it is said by the applicant that the glass was safety glass. If that is the case, although the table was eventually removed from the premises, the concern raised by the respondent that it posed a risk to the safety of children should they bump it or fall on it arose because it was unsecured rather than the risk posed by the glass itself. Ms Doolin did not observe any sticker or other indication that the tabletop was safety glass or otherwise treated. Other tables at the residence were observed to have stickers on them indicating they were safe. It is possible that this table was also safe in terms of the type of glass, being likely to be safety glass.
40. Clause 117 of the National Regulation provides: 117 GLASS (1) The approved provider of a family day care service must ensure that any glazed area of a residence or approved family day care venue of the service complies with subregulation (2) if the area-- (a) is accessible to children; and (b) either-- (i) is of or below the height above floor level, specified by AS 1288-2006Glass in buildings--Selection and installation , approved on behalf of the Council of Standards Australia, published on 16 January 2006, incorporating Amendments Nos 1 and 2; or Note : The height above floor level specified in subparagraph (i) does not apply in Western Australia. The applicable height above floor level is 1 metre--see regulation 117(1)(b) of the Education and Care Services National Regulations 2012 of Western Australia. (ii) if the residence or family day care venue was approved before 1 June 2014, is 0.75 metres or less above floor level. (2) The glazed area must be-- (a) glazed with safety glass, if the Building Code of Australia requires this; or (b) in any other case-- (i) treated with a product that prevents glass from shattering if broken; or (ii) guarded by barriers that prevent a child from striking or falling against the glass. Note : A compliance direction may be issued for failure to comply with this regulation.
41. The definition of "glazed area" is not included in the definitions' clause of the National Regulation. It is not clear that the clause relates to glass tables, glass bottles and jars, or simply to windows and glass doors. The windows and doors are not said to be non-compliant in the evidence provided to the Tribunal. It is noted that a compliance direction may be issued if the clause is not being complied with by the provider. That may well be an appropriate response in order to ensure the safety of children in the future.
42. It is submitted by the respondent that the more serious breaches alleged relate to children having access to chemicals and medication in 3 different carers' homes; children having access to unsecured knives in inspections at 2 homes; children having access to "unsecured glass" in 3 homes (see the discussion in the previous paragraph); children having access to animal faeces in 2 homes. It is submitted that none of those alleged breaches are trivial.
43. The access to chemicals and medication allegation relies upon tab 29, tab 91, and tab 107 of Exhibit 7. The reference to these matters is in Exhibit 3 at [79] and Exhibit 5. The evidence concerning the bleach and beauty products in the September compliance visit from Ms Mataele is at [47] of her affidavit. There are raised contested factual matters arising from these allegations which are unable to be resolved in these proceedings.
44. The photographs at tab 33 and tab 120 of Exhibit 7 show cutlery draws which contain knives. The reference to these matters is in Exhibit 3 at [80]. These matters relate to Afaf El Ajouz who was not registered with the applicant by September 2019 and Marie Sarkis was terminated with the applicant on 30 September 2019. Ms Sarkis' premises were observed by the applicant to have appropriate safety locks on the kitchen drawers and cupboards on 27 August 2019.
45. The "unsecured glass" refers to tab 34, tab 105, and tab 153 of Exhibit 7. The reference to these matters is in Exhibit 3 at [81] and Exhibit 6. These matters arising from clause 117 of the National Regulations have been referred to elsewhere in these reasons. It is not clear that the regulation is referring to the matters about which the authorised officers have taken issue.
46. Animal faeces refers to the allegations in Exhibit 3 at [82] and at tab 43, tab 146 and tab 147 of Exhibit 7. Of course, the presence of animal faeces in areas which are used by children is to be discouraged and prevented. The photographs provided are not clear enough to determine whether this is an area which is frequented by children even though it may well be theoretically accessible by children, and whether the owners of the animals (if they were acknowledged to be the educators) acknowledge the existence of the faeces and have not taken steps to remove them. Since the family day care is provided in residential homes it is something which is within the knowledge of the Tribunal that it is entirely plausible that animals (such as cats or possums for example) from neighbouring properties could be responsible for animal faeces in a garden without the knowledge of the educator. The vines in which the animal faeces were apparently located were also considered a trip hazard even though it appears they were growing from the garden bed. It is said that this is a breach of section 167 of the National Law. The obligation imposed is that the educator "must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury." It is the Tribunal's assessment that a breach of that provision has not been established to the requisite satisfaction without further information.
47. In other respects, the evidence of the applicant, which is accepted, is that the issues raised by the respondent have been appropriately addressed to the extent that they required any further action.

Consideration

1. The objectives and guiding principles under the National Law are in subsections 3(2) and 3(3) stated to be: (2) The objectives of the national education and care services quality framework are- (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows- (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
2. The rights and best interests of the children are paramount in implementing the National Law. Since section 4 of the National Law requires an entity that has functions under the law to exercise those functions having regard to the objectives and guiding principles set out in section 3, the Tribunal is required to regard the rights and best interests of the children as paramount in making a determination as to the correct and preferable decision in this matter.
3. Section 260 of the National Law identifies the functions of the Regulatory Authority as follows: 260 Functions of Regulatory Authority The Regulatory Authority has the following functions under this Law in relation to this jurisdiction- (a) to administer the National Quality Framework; (b) to assess approved education and care services against the National Quality Standard and the national regulations and determine the ratings of those services; (c) to monitor and enforce compliance with this Law; (d) to receive and investigate complaints arising under this Law; (e) in conjunction with the National Authority and the relevant Commonwealth Department, to educate and inform education and care services and the community in relation to the National Quality Framework; (f) to work in collaboration with the National Authority to support and promote continuous quality improvements in education and care services; (g) to undertake information collection, review and reporting for the purposes of- (i) the regulation of education and care services; and (ii) reporting on the administration of the National Quality Framework; and (iii) the sharing of information under this Law; (h) any other functions conferred on the Regulatory Authority under this Law.
4. In addition to its policing role the Regulatory Authority thus has an educative function and a function to implement improvements in the quality of education and care services.
5. The allegations made in relation to the applicant's conduct are serious allegations and it is noted that the alleged contraventions of the National Law and National Regulations may in some provisions at least attract significant financial penalties if a successful prosecution occurs.
6. Despite the allegations of breaches of the National Law and National Regulations it would appear, because the Tribunal was not informed to the contrary, that there have not been successful prosecution proceedings for those alleged breaches. No evidence has been provided to the Tribunal of any infringement notices being issued for any alleged breaches which is provided for by the legislation and regulations.
7. The proceedings in this Tribunal are not proceedings to establish and prosecute for breach of the provisions of the National Law or the National Regulations. These are administrative review proceedings in a Tribunal with a primary purpose to protect the safety health and well-being of children in family daycare and accordingly oversight of the providers of a family day care service.
8. For the reasons set out in Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 at [32]-[38] neither party to these proceedings bears an onus of proof. It is considered appropriate that the Tribunal should be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'.
9. In Greyhound Racing Authority v Bragg [2003] NSWCA 388 at [35], Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of this type of Tribunal concerned with questions of the type in issue in this case, being alleged breaches of the National Law and National Regulations: "The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body."
10. It is considered that the serious nature of the allegations, including the fact that significant financial penalties could result after the successful prosecution of breaches of the National Law or National Regulations, means that the Tribunal should be comfortably satisfied that the evidence establishes the alleged breaches.
11. On the balance of probabilities, the evidence provided by the respondent and the evidence provided by the applicant does not translate to a comfortable level of satisfaction commensurate with the gravity of the allegations that there have been established the multiple breaches of the National Law and the National Regulations which have been alleged.
12. The applicant has in its written submissions referred to the concept of unacceptable risk of harm because this provides an alternate basis on which there may be a cancellation decision under section 31 of the National Law. This is not the basis relied upon by the original decision.
13. In the decision of Nilufar v Secretary Department of Education [2020] NSWCATAD 37 at [55]-[58] the concept of unacceptable risk is considered in a different context to this matter but approved the statement in Kendrick v Secretary Department of Education [2019] NSWCATAD 45 at [50]-[51]. Relevantly, the likelihood of risk and the gravity of risk is a necessary part of the assessment of unacceptable risk. Those statements are considered a correct statement of the concept of unacceptable risk and are adopted by this decision. It is considered that there does not exist an unacceptable risk of harm in this matter and the conditions which we propose should be imposed on the applicant pursuant to section 58 of the Civil and Administrative Tribunal Act will maintain risk to an acceptable level.
14. The applicant has also submitted that if there were established breaches of the National Law or National Regulations those breaches were insufficient to warrant cancellation of the provider approval. Having regard to all of the evidence submitted by both the applicant and the respondent this is a submission which is open to the applicant on the evidence before the Tribunal and is accepted by the Tribunal.
15. If the Tribunal has erred in finding that the alleged breaches have not been established, it is the Tribunal's view that the evidence has not established that it was appropriate in all the circumstances for the applicant's provider approval to be cancelled.
16. The alternative submission made by the respondent is that, should the cancellation decision be set aside, certain conditions should be imposed on the applicant pursuant to section 58 of the Civil and Administrative Tribunal Act.
17. In granting the stay which is currently in place conditions were imposed (See Gabriel's Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 43 at [63]). Similar conditions may be imposed now on the final decision.

Conclusion

1. The determination of the correct and preferable decision must regard the rights and best interests of the child who may receive the benefit of the service as paramount and to ensure the safety, health and wellbeing of children attending education and care services.
2. The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.
3. The objectives of the National Law are promoted where persons with management or control of an education and care service have knowledge and understanding of the National Law and Regulations.
4. The evidence does not reach the required level for the Tribunal to be comfortably satisfied that the allegations of breaches have all been made out. The Tribunal considers that even if the allegations had been established by the evidence to the requisite standard, the procedures and mitigating actions taken by the applicant warranted less drastic action than cancelling the provider approval.
5. The Regulatory Authority has an educative function and a function to implement improvements in the quality of education and care services. Gabriel's Family Day Care Pty Ltd, has been providing education and care to children as a family day care service since approximately 2014 and has modified its practices and procedures responsively to interventions by the Regulatory Authority.
6. The Tribunal is not confined in its consideration of this matter to the reasons identified in the reasons for the original decision; Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45].
7. The Tribunal members have had the benefit of hearing the oral evidence, the oral submissions of the parties' representatives in addition to their written material. That additional material has been taken into account together with the reasons originally provided.
8. Having regard to all of the matters raised it is the Tribunal's decision that in all the circumstances the correct and preferable decision is that the decision of the Regulatory Authority is set aside because the evidence does not satisfy the Tribunal that the breaches have been established to the required standard. If the evidence did satisfy that standard the alleged breaches did not warrant cancellation of the provider approval. Consequently, the application for review is upheld but the Tribunal considers that the conditions proposed by the respondent should be implemented by amending the provider approval pursuant to section 58 of the Civil and Administrative Tribunal Act.

Order

1. The orders of the Tribunal are that: 1. The decision of the respondent on 19 December 2019 to cancel the provider approval for Gabriel's Family Day Care Pty Ltd on the ground contained in section 31(e) of the Children (Education and Care Services) National Law (NSW) is set aside and in substitution for that decision the provider approval is amended in accordance with order 2. 2. The Tribunal imposes the following conditions in relation to the provider approval for Gabriel's Family Day Care Pty Ltd pursuant to section 58 of the Civil and Administrative Tribunal Act: 1. The applicant is to terminate the provision of education and care by the following educators: 1. Olivera Ali Obaid; 2. Farah Javed; and 3. Rita Suman. 1. The applicant is prohibited from engaging or registering the following educators: 1. Marie Sarkis; 2. Solange Loki Samba; 3. Ouahiba Bougharga; 4. Afaf El Ajouz; 5. Olivera Ali Obaid; 6. Farah Javed; and 7. Rita Saman. 1. The application for review filed 16 January 2020 is otherwise dismissed.

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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: 14 October 2020