JLBE Pty Ltd t/as Fun2Learn Early Learning Centre v NSW Early Learning Commissioner [2026] NSWCATAD 3;

1. The applicant operates an early learning centre, being an education and care service under the National Law. The applicant has held a service approval for the education and care service since 2012.
2. Section 4(1) of the Application Act applies the Education and Care Services National Law, as in force from time to time, set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria, as a law of New South Wales, with some modifications.
3. On 29 September 2025, a delegate of the Secretary, Department of Education gave the applicant written notice, under s 78 of the National Law, that she intended to cancel its service approval (the show cause notice). The notice stated that the delegate was of the opinion that there were systemic, non-compliance issues in respect to the operation of the applicant's education and care service, including inadequate measures to protect the safety, health and wellbeing of children. The delegate stated, in support of her reasons for the proposed cancellation of the applicant's service approval on the ground of an unacceptable risk to the health, safety and wellbeing of children, that she relied on the applicant's history of non-compliance with the National Law and Education and Care Services National Regulations (NSW) (the Regulations).
4. The delegate also referred in the show cause notice to s 51(1) of the National Law, which provides:

51 Conditions on service approval

(1) A service approval is granted subject to the condition that the education and care service is operated in a way that -

(a) ensures the safety, health and wellbeing of the children being educated and cared for by the service; and

(b) meets the educational and developmental needs of the children being educated and cared for by the service.

1. The delegate considered that there were serious non-compliance issues with respect to the operation of the applicant's service, the nature and circumstances of which were serious in terms of the risks posed to the safety, health and well-being of children in education and care. She found that the applicant had not complied with the conditions of the service approval as set out in section 51 of the National Law.
2. The applicant provided a response to the show cause notice on 29 October 2025.
3. On 15 December 2025, the delegate of the Acting Commissioner, NSW Early Learning Commission (the delegate), decided to cancel the applicant's service approval under s 79(1)(a)(i) of the National Law, effective 12 January 2026.
4. The delegate stated in the letter of cancellation that she had decided to cancel the service approval on the grounds set out in paragraphs 77(a) and (d) of the National Law. Section 77 provides:

77 Grounds for cancellation of service approval

A Regulatory Authority may cancel a service approval if -

(a) the Regulatory Authority reasonably believes that the continued operation of the education and care service would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by the education and care service; or

(b) the service has been suspended under section 72 or 73 and the reason for the suspension has not been rectified at or before the end of the period of suspension; or

(c) the service approval was obtained improperly; or

(d) a condition of the service approval has not been complied with.

1. The delegate identified a number of legislative provisions which she said the applicant had not complied with on a number of occasions, being regulations 77, 103, 160, 162 and 272 of the Regulations and s 167 of the National Law.
2. Part 8 of the National Law contains provisions concerning review of decisions made under the National Law. 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 (National Law, s 193(1)).
3. The "relevant tribunal or court" is the Civil and Administrative Tribunal for New South Wales for the purposes of Part 8 of the National Law (Application Act, s 8).
4. A decision to cancel a service approval under section 79 of the National Law is a reviewable decision for external review (National Law, s 192(1)(b)(iv)). However, a "decision to cancel a service approval under section 77(a)" of the National Law is not a reviewable decision if s 192(2) of the National Law applies.
5. Section 192 relevantly provides:

192 Reviewable decision - external review

(1) A reviewable decision for external review is -

...

(b) a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction -

...

(iv) to cancel a service approval under section 79 ...

(2) However, the following decisions are not reviewable decisions for external review if made on the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children -

(a) a decision to cancel a provider approval under section 31(1)(b);

(b) a decision to refuse to grant a service approval under section 49(1)(a);

(c) a decision to cancel a service approval under section 77(a).

Note -

This subsection is an additional NSW provision.

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.

1. On 18 December 2025, the applicant applied to the Tribunal for review of the delegate's decision and, on the same day, applied for an urgent stay of the cancellation decision. In a letter accompanying the application for review and stay application, the applicant stated that it sought a merits review of the cancellation decision, limited only to the parts of the decision made under section 77(d) of the National Law.
2. As the parties agreed, an application for review of a cancellation of a service approval falls within the Tribunal's general jurisdiction under s 29 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) (see DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [8] to [26]; Forever Family Day Care Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 318 at [9]).
3. Section 43(3) of the NCAT Act gives the Tribunal power to stay, or conditionally stay, a decision to which a pending general application relates. It provides:

(3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.

1. On 19 December 2025, the Tribunal listed the proceedings for an interim hearing on 22 December 2025 to consider:

(1) whether the Tribunal has jurisdiction to review the respondent's decision, having regard to s 192(2)(c) of the National Law; and

(2) if so, whether the applicant's application for a stay should be granted.

1. In support of its application for a stay of the respondent's decision, and its contention that the Tribunal has jurisdiction to review that decision, the applicant relied upon written submissions filed on 19 December 2025 and an affidavit of Dieu Tran (Lisa) Thai affirmed on 18 December 2025. It also relied upon an expert witness report made by Jennifer Ribarovski of JR Education Consulting Services Pty Ltd dated 20 December 2025, in which Ms Ribarovski recommended a stay subject to specified conditions.
2. In support of its submission that the Tribunal has jurisdiction to hear and determine its application for review, the applicant relied upon the principle that a grant of jurisdiction is not to be read by making implications or imposing limitations which are not found in the express words (Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404). It also submitted that laws excluding jurisdiction are to be construed narrowly.
3. Mr Li, of counsel, submitted for the applicant that s 192(1) of the National Law confers jurisdiction on the Tribunal whereas s 192(2) contracts it. He submitted that the Tribunal's jurisdiction is only ousted by s 192(2) "if the decision is based on a finding that the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children." It is not ousted, in his submission, "if the Regulatory Authority makes a different finding to the effect that it holds a reasonable belief as to risk."
4. The basis for the applicant's proposed construction is that the chapeau to s 192(2) of the National Law refers to "the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children" but does not refer to the decision-maker's state of mind. The three provisions referred to in paragraphs (a) to (c) of s 192(2) each refer to the decision-maker's state of mind:

(1) section 31(1)(b), referred to in s 192(2)(a), provides that a ground for cancellation of a provider approval exists if the Regulatory Authority "is satisfied that" the provision of services would constitute an unacceptable risk;

(2) section 49(1)(a), referred to in s 192(2)(b), provides that the Regulatory Authority must refuse to grant a service approval if it "is satisfied that" the service would constitute an unacceptable risk;

(3) section 77(a), referred to in s 192(2)(c), provides that the Regulatory Authority may cancel a service authority if it "reasonably believes" that the operation of the service would constitute an unacceptable risk.

1. The applicant refers to authorities to the effect that a state of satisfaction requires a greater degree of conviction and certainty than a reasonable belief (George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 115-116; Marine Power Australia Pty Ltd v Comptroller-General of Customs [1989] FCA 336; (1989) 18 ALD 572; (1989) 89 ALR 561 at ALD 575; Khant v Minister for Immigration and Citizenship [2009] FCA 1247 at [70]). It contends that only a reading consistent with the ordinary meaning of s 192(2), that turns on an actual finding of risk and not just a reasonable belief as to risk, would promote the uniform application of s 192(2).
2. The applicant urges the Tribunal to adopt the approach courts take to privative clauses, when interpreting the "ouster" of jurisdiction in s 192(2) (relying upon Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). It submits that "[i]t is only the most egregious that should be subject to the draconian effects of being denied merits review"; that is, the subcategory of cancellation decisions in which a finding of actual risk has been made.
3. The applicant says that the delegate's reasons, given in the notice of cancellation, show only that the delegate formed a reasonable belief as to risk; not that the delegate made a positive finding about unacceptable risk. Accordingly, in the applicant's submission, the Tribunal has jurisdiction to review the delegate's decision under s 192(1) of the National Law.
4. In the alternative, the applicant argues that if, contrary to its primary submission, s 192(2) is engaged in the circumstances of this case, it is only engaged with respect to that part of the decision based on s 77(a) of the National Law. The Tribunal retains jurisdiction, in its submission, to review "so much of the findings made pursuant to s 77(d)."

1. The respondent relied upon submissions filed on 22 December 2025 and a tender bundle filed on the same day, in accordance with the Tribunal's orders.
2. The respondent's position is that the Tribunal does not have jurisdiction to hear or determine the applicant's application for review.
3. The respondent submits that, on its proper construction, the phrase "if made on the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children" as it appears in s 192(2) of the National Law should be read by reference to the grounds for the decisions referred to in the subsections that follow, and not by imposing a separate factual criterion.

1. When approaching the construction of section 192 of the National Law, I have applied the principles endorsed by Gageler CJ, Gordon, Edelman and Gleeson JJ in DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 at [23]:

The principles of statutory construction are well established. The language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention. One reason that the context and purpose of a provision are important to its proper construction is that an object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. Or, as was explained in Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355 at [69]], statutory construction requires deciding what the legal meaning of the relevant provision is "by reference to the language of the instrument viewed as a whole". Further, the purpose of the legislation is not to be derived from any a priori assumption about the desired reach or operation of the relevant provisions. (footnotes omitted)

1. It is also relevant to note that Schedule 1 of the National Law contains some principles of interpretation which must be applied unless a contrary intention appears (National Law, s 6(1), Sch 1, cl 1). These include that, in the interpretation of a provision of the National Law, the interpretation that will best achieve the purpose or object of the National Law is to be preferred to any other interpretation (National Law, Sch 1, cl 7(1)).
2. Schedule 1 also provides for the consideration of extrinsic material. Clause 8 of Sch 1 provides:

8 Use of extrinsic material in interpretation

(1) In this clause -

extrinsic material means relevant material not forming part of this Law, including, for example -

(a) material that is set out in the document containing the text of this Law as printed by the Government Printer; and

(b) a relevant report of a Royal Commission, Law Reform Commission, commission or committee of inquiry, or a similar body, that was laid before the Parliament of this jurisdiction before the provision concerned was enacted; and

(c) a relevant report of a committee of the Parliament of this jurisdiction that was made to the Parliament before the provision was enacted; and

(d) a treaty or other international agreement that is mentioned in this Law; and

(e) an explanatory note or memorandum relating to the Bill that contained the provision, or any relevant document, that was laid before, or given to the members of, the Parliament of this jurisdiction by the member bringing in the Bill before the provision was enacted; and

(f) the speech made to the Parliament of this jurisdiction by the member in moving a motion that the Bill be read a second time; and

(g) material in the Votes and Proceedings of the Parliament of this jurisdiction or in any official record of debates in the Parliament of this jurisdiction; and

(h) a document that is declared by this Law to be a relevant document for the purposes of this clause.

ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in this Law and to the purpose of this Law.

(2) Subject to subclause (3), in the interpretation of a provision of this Law, consideration may be given to extrinsic material capable of assisting in the interpretation -

(a) if the provision is ambiguous or obscure - to provide an interpretation of it; or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or

(c) in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision.

(3) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to -

(a) the desirability of a provision being interpreted as having its ordinary meaning; and

(b) the undesirability of prolonging proceedings without compensating advantage; and

(c) other relevant matters.

1. As the parties both accepted, there are some anomalies in the drafting of s 192(2) of the National Law. Each of paragraphs (a), (b) and (c) of s 192(2) refer to a decision of a certain kind "under" a specified provision. In each case, the specified provision provides a ground for the making of the decision, and is not a provision conferring power to make the relevant decision. Taking them each in turn:

(1) section 192(2)(a) refers to "a decision to cancel a provider approval under section 31(1)(b)" where the relevant power to cancel a provider approval is contained in s 33(1) and s 31(1)(b) provides for a ground for cancellation;

(2) section 192(2)(b) refers to "a decision to refuse to grant a service approval under section 49(1)(a)" where there is a power to refuse to grant a service approval in s 48(1) (albeit that s 49(1)(a) makes refusal mandatory if the ground in that paragraph applies); and

(3) section 192(2)(c) refers to "a decision to cancel a service approval under section 77(a)" where the relevant power to cancel a provider approval is contained in s 79(1) and s 77(a) provides for a ground for cancellation.

1. The context indicates that the word "under" in paragraphs (a) to (c) of s 192(2) should be read to mean "on the ground set out in".
2. Another feature of the provision is that the chapeau to s 192(2) refers to decisions "made on the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children" whereas the grounds contained in the provisions set out in paragraphs (a), (b) and (c) are worded differently. The wording of the relevant provisions is set out in the table below:

"made on the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children"

"the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider"

"the Regulatory Authority is satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the education and care service"

"the Regulatory Authority reasonably believes that the continued operation of the education and care service would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by the education and care service"

1. As the applicant points out, each of the provisions referred to in paragraphs (a) to (c) of s 192 requires the decision-maker to hold a specified state of mind, whereas the chapeau to s 192 does not refer to a state of mind. Further, although the applicant did not make this submission, the chapeau refers only to the safety of children whereas the specified provisions refer to "the safety, health or wellbeing" of children.
2. The applicant contends that the distinction between the language used in the chapeau, and the language of the provisions to which s 192(2)(a) to (c) refer, support a literal construction of the chapeau, such that the decision-maker must have made a finding that there exists an unacceptable risk to the safety of children for s 192(2) to apply. Its position is that a reasonable belief as to unacceptable risk is insufficient.
3. The text of s 192(2) does not support that construction.
4. First, the chapeau to s 192(2) refers to a decision being made on "the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children" (emphasis added). As already indicated, each of the specified provisions in s 192(2)(a) to (c) contains a ground for the decision referred to in that paragraph. That is a strong indication that the words in the chapeau following the word "grounds" correspond to the three grounds set out in the paragraphs which follow it.
5. It would be very unusual if Parliament intended the subsection to apply in circumstances which differed from the grounds set out in the legislation. On the applicant's construction, a decision-maker making a decision to cancel a service approval under s 79(1)(a)(i) of the National Law, on the ground set out in s 77(a), would have to turn his or her mind to a question which does not form part of the ground, and make a separate finding about that. That is, for s 192(2) to be engaged, the decision maker, having formed a reasonable belief about an unacceptable risk to the safety, health or wellbeing of a child, would have to make a separate finding that an unacceptable risk to the safety of a child exists in fact (that is, that it can be concluded, with a higher degree of certainty, that there is in fact an unacceptable risk to a child's safety, as opposed to an unacceptable risk to a child's safety, health or wellbeing). It is doubtful that making such a finding would be within the scope of the decision-maker's powers.
6. As submitted for the respondent at the hearing, the text of s 192(2) is more internally consistent if the words "the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children" are read as a loose summary of the grounds set out in the provisions specified in s 192(2)(a) to (c). That construction might explain why the legislature has used the plural ("grounds") in the chapeau to s 192(2).
7. As the applicant submitted, this construction results in some surplusage (in that the description of the grounds in the chapeau to s 192(2) is strictly unnecessary). Nevertheless, the respondent's construction is most consistent with the language and purpose of all the provisions of the statute (in particular, with those provisions referred to in s 192(2)) and should be preferred. Kiefel and Bell JJ made the following relevant observations in Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106; at [55]:

[W]hilst it must be accepted that words chosen by the legislature should be given meaning and endeavours should be made to avoid them being seen as redundant, they should not be given a strained meaning, one at odds with the scheme of the statute. Moreover, it has been recognised more than once that Parliament is sometimes guilty of 'surplusage' or even 'tautology'. The possibility that Parliament may not have appreciated that the reference in [legislation] was not necessary, and was liable to confuse, is not a reason for giving it a literal interpretation.

1. In this case, to read the words in the chapeau to s 192 in the way contended for by the applicant would be to give them a strained meaning, at odds with the scheme of the statute. It would also require the words "made on the grounds" in the chapeau to s 192 to be read as not referring to grounds set out in the National Law for the making of the relevant decisions, but rather as referring to a separate "ground" set out in s 192(2), being that "the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children." That is not a construction the legislature is likely to have intended.
2. I have considered the general principle that a grant of jurisdiction is not to be read by making implications or imposing limitations which are not found in the express words. However, I am not satisfied that the principle applies to the construction of s 192(2). Section 192(2) is not so much a grant of jurisdiction but a provision taking jurisdiction away or, more accurately, a provision narrowing the scope of reviewable decisions. The provision conferring jurisdiction is s 193 of the National Law, which provides for a right of review of a "reviewable decision" and for the powers of the "relevant court or tribunal" on review. Section 192(1) defines "reviewable decision" and s 192(2) qualifies that definition by removing some decisions from the scope of the term. Jurisdiction is then conferred on NCAT through the interaction of ss 192 and 193 of the National Law, and provisions of the Application Act and the NCAT Act.
3. Even if the principle is capable of application, I consider that the "limitation" in question is found in the express words of s 192(2). That is, the word "grounds" in the chapeau and the express references to particular sections containing grounds in s 192 make plain that the subsection applies when a decision is made on a ground specified in one of the paragraphs of s 192(2).
4. Contrary to the applicant's submission, it is not appropriate to take the approach courts take to privative clauses when construing s 192(2) of the National Law. A privative clause is a statutory provision which purports to oust the jurisdiction of superior courts to review the decisions of inferior courts or tribunals. This is a very different context: the issue is the construction of a part of a definition of "reviewable decision", defining the scope of decisions which may be subject of administrative review. The considerations relevant to legislative attempts to limit the powers of superior courts do not apply.

1. It is also relevant to consider the purpose and context of a provision, and the purpose of the Act of which it forms part, when construing the provision. Purpose may be considered at a specific level (the purpose of s 192(2)) and at a broader level (the purpose of the National Law). As mentioned above, the interpretation that will best achieve the purpose or object of the National Law is to be preferred to any other interpretation (National Law, Sch 1, cl 7(1)).
2. The objective of the National Law is "to establish a national education and care services quality framework for the delivery of education and care services to children" (National Law, s 3(1)). The objectives of the national education and care services quality framework include "to ensure the safety, health and wellbeing of children attending education and care services" (National Law, s 3(2)(a)).
3. The purpose of s 192(2) may be understood by reference to its legislative history. Section 192(2) was inserted into the National Law by the Children (Education and Care Services National Law Application) Amendment Act 2025 (the Amendment Act).
4. The Explanatory note (the Explanatory Note) to the Children (Education and Care Services National Law Application) Amendment Bill 2025 (the Amendment Bill) may be considered, if section 192(2) is ambiguous, to provide an interpretation of it. There is some ambiguity in the provision, given the discrepancy between the words used in the chapeau and the words used in the provisions to which it refers. The Explanatory Note sets out the objects of the bill as follows:

Overview of Bill

The object of this Bill is to make amendments to the Children (Education and Care Services National Law Application) Act 2010 that modify the Children (Education and Care Services) National Law (NSW) (the National Law) and the Education and Care Services National Regulations (the national regulations), following the Early Childhood Education and Care Regulation in NSW Independent Review, to -

(a) provide that protection of the rights and best interests of children is paramount in the provision and regulation of early childhood education and care, and

(b) improve the quality and performance of the early childhood education and care sector (the sector), and

(c) strengthen regulatory presence, intensity and efficacy in the sector, including through increased penalties, additional offences, and heightened monitoring and enforcement, and

(d) increase transparency, proactive publication and information sharing in the sector, and

(e) improve public confidence in the sector.

1. The Explanatory Note indicated that the Amendment Bill's provisions modified the application of the National Law in New South Wales to (among other things) "provide that an application for internal review does not stay the operation of the decision being reviewed, and that certain decisions made on the grounds of an unacceptable risk to the safety of children are not subject to external review" (see Explanatory Note, referring to Schedule 1[5]-[8] at (k)).
2. The Explanatory Note does not provide a strong indication as to the interpretation of s 192(2) which is to be preferred, but it is notable that one of the Amendment Bill's objects was to "strengthen regulatory presence, intensity and efficacy" in the early childhood education and care sector.
3. The Amendment Act inserted a new s 3A into the National Law, providing for a paramount consideration of protecting the rights and best interests of children. It provides:

3A Paramount consideration [NSW]

(1) The protection of the rights and best interests of each child and the children attending education and care services must be the paramount consideration in giving effect to this Law, including in making decisions or otherwise exercising functions under this Law.

(2) Without limiting subsection (1), the protection of the rights and best interests of each child and the children attending education and care services prevails over -

(a) the financial interests of approved providers; and

(b) other fiduciary duties owed by persons with management or control of education and care services.

1. The Amendment Act also inserted other provisions into the National Law, strengthening regulatory control or supervision of persons involved the provision of approved education and care services where there is a risk to the safety, health or wellbeing of a child, and encouraging disclosure of such risks:

(1) A new s 178, which applies where there is a risk to the safety, health or wellbeing of certain children, empowers the Regulatory Authority to give a relevant person a show cause notice;

(2) A new s 223B(1) empowers the NSW Minister, by order, to direct relevant persons to take specified action to prioritise the safety, welfare or wellbeing of children attending education and care services;

(3) A new s 261A empowers the Regulatory Authority, by order, to direct relevant persons to take action specified in the order for the safety, welfare or wellbeing of a child or children to whom education and care is provided by the relevant persons. It may only do so, however, if it has reasonable grounds to believe giving the direction is necessary to prevent unacceptable risk to the safety, welfare or wellbeing of a child or children to whom education and care is provided by the relevant persons;

(4) New provisions conferring protections on persons making disclosures where the disclosure tends to show that the safety, health or wellbeing of a child or children being educated and cared for by an education and care service is at risk (see the new s 297 and new Part 14, Div 7).

1. Taken together, these provisions demonstrate a legislative intention to address risks to the safety, welfare or wellbeing of children being educated and cared for by an education and care service. The new s 3A makes "the rights and best interests of" children the paramount consideration in giving effect to the National Law. That might also suggest that a construction of s 192(2) most consistent with protecting the best interests of children is to be preferred, as being more harmonious with the other provisions of the National Law (in particular, with s 3A).
2. One of the ways the Amendment Act addressed risks to child safety is by removing a right to internal and external merits review of decisions "made on the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children" (ss 190(2), 192(2)). The respondent's construction of s 192(2) best achieves the purpose of the Amendment Act to "strengthen regulatory presence, intensity and efficacy in the sector," in that a regulator's decision cancelling or refusing to grant a provider or service approval on the basis of unacceptable risk to child safety cannot be overturned on review. Further, it best achieves the Amendment Act's purpose of addressing risks to the safety, welfare or wellbeing of children, for the same reason. It also furthers a purpose of the National Law, as expressed in the paramount consideration, being to protect the rights and best interests of each child and the children attending education and care services (see National Law, s 3A).
3. The respondent's construction best achieves one of the objectives of the national education and care services quality framework, being "to ensure the safety, health and wellbeing of children attending education and care services" (National Law, s 3(2)(a)). It does so by removing the possibility that a cancellation decision made upon a ground of an unacceptable risk to the safety of children will be overturned in a merits review process.

1. For these reasons, the text, context and purpose of s 192 and of the National Law more generally support the construction of s 192(2) of the National Law advanced by the respondent. That is, the words in the chapeau ("if made on the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children") are a short-hand reference to the grounds in the provisions set out in s 192(a) to (c). They do not impose a separate test or apply only if the Regulatory Authority has made a positive finding about unacceptable risk, distinct from a finding that a ground in a provision in s 192(a) to (c) applies.
2. It is not in dispute that one of the grounds relied upon by the delegate to cancel the applicant's service approval is contained in s 77(a), being that "the Regulatory Authority reasonably believes that the continued operation of the education and care service would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by the education and care service." Accordingly, s 192(2)(c) is engaged in the circumstances of the case.

1. It remains to deal with the applicant's alternative argument, being that s 192(2) is only engaged with respect to that part of the decision based on s 77(a) of the National Law and that the Tribunal may review the respondent's "findings" made pursuant to s 77(d).
2. The Tribunal has jurisdiction to review a "decision," not to review "findings." Section 193(1) of the National Law provides that 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 (emphasis added). Section 4 of the Application Act applies the National Law as a law of New South Wales. Section 28(1) of the NCAT Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation. Read together, those provisions give the Tribunal power to review a reviewable decision for external review made under the National Law.
3. The reviewable decision is not severable into parts. If it is "a decision to cancel a service approval under section 77(a)" (read as "a decision to cancel a service approval on the ground in section 77(a)") then it retains that character, even if it is also made on a different ground.
4. The applicant argued that it could seek judicial review of the respondent's decision and, "[i]f the decision is severable then the Supreme Court could quash so much of the decision covered by the privative clause and the Tribunal is left to complete the exercise of its jurisdiction over the balance." Leaving aside that s 192(2) is not a "privative clause," the argument fails because the premise is false. The respondent's decision is not severable and, if the applicant successfully sought judicial review of the decision, the Court would likely quash the whole decision. It would not quash part of the decision.
5. For these reasons, the applicant's alternative position as to jurisdiction cannot be sustained.

1. The respondent's decision to cancel the applicant's service approval is not a reviewable decision for external review, as it is a decision referred to in s 192(2)(c) of the National Law. It follows that the Tribunal does not have jurisdiction to review the decision.
2. I have accordingly dismissed the applicant's application for review of the respondent's decision, pursuant to s 55(1)(b) of the NCAT Act.

(1) Secretary, Department of Education is amended to NSW Early Learning Commissioner.

(2) The application is dismissed because the Tribunal has no jurisdiction.

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.