The principal office of the applicant is at Lavington, in New South Wales. It is a small country town near the Victorian border.
As noted above, on 26 October 2016, the applicant informed the respondent that it had commenced its family day care service. At the time the applicant's service approval had two additional conditions imposed on its provider approval as follows:
1. that no more than 60 family day care educators were to be employed or engaged by the service during the first year of operation; and
2. the approved provider was required to employ at least one full time family day care co-ordinator for every 15 family day care educators providing education and care to children.
On 14 February 2018, the respondent undertook an assessment of the applicant's family daycare service (applicant's daycare service).
On 19 March 2018, following the assessment of the applicant's daycare service, the respondent gave the service an overall rating of 'Working Towards the National Quality Standard'.
On 3 May 2018, officers of the respondent visited the office of the applicant's daycare service and found a number of areas of non-compliance with the National Law and Regulation.
On 13 June 2018, the respondent issued a letter of non-compliance to the applicant. Attached to the letter was a table that identified five areas of non-compliance with specific clauses of the Regulations (i.e. regs 80, 153, 173(1) and (2) and 160(3)). In the letter, the respondent noted the following:
NOTE: As the approved provider, it is your responsibility to ensure that you and your service Kids Belong Family Day Care Pty Ltd comply with the requirements of the National Law and Regulations at all times.
The applicant's non-compliance was resolved on 29 June 2018, with the respondent being satisfied that the applicant's response to the letter of non-compliance was adequate.
Because the applicant had a high risk rating on the National Quality Agenda on-line IT System, in early 2019, the respondent selected the applicant's daycare service for monitoring and compliance.
On 22 May 2019, authorised officers of the respondent conducted compliance visits of the applicant's daycare service. The officers visited the principal office of the applicant and nine (9) family daycare residents of educators registered with the applicant's daycare service. The residences of the educators were at different localities within NSW. Three were in the same area as the principal office of the applicant, two were located in or near Wagga Wagga, one at Campbelltown and the remainder were located in or near Wollongong. During their visits, the officers of the respondent identified a number of areas of non-compliance with the National Law and Regulations.
On 25 June 2019, the respondent sent a 'Show Cause Notice' to the applicant pursuant to s 32 of the National Law. In that Notice, the respondent advised that it was intended to cancel the applicant's provider approval on the grounds that it had breached a condition of its provider approval, namely a failure to comply with the National Law and the Regulations: National Law, s 19(2) and 31(e). The respondent went on to say:
Based on the findings of the authorised officers, I am of the opinion that there are serious non-compliance issues in respect to the operation of the Service, and that the nature of the non-compliance, including such matters as:
• inadequate measure to protect the safety, health and well being of children; and
• insufficient understanding of the regulatory requirements by the Provider and the educators registered with the Service;
constitutes an unacceptable risk to the safety, health or wellbeing of children being educated and cared for by the service.
I am also concerned that the Provider has failed to put in place adequate governance systems in respect to issues such as record keeping practices and the monitoring and support of educators. Under the National Law:
• an approved [provider] must not register or engage a person as a family day care educator unless the approved provider has taken reasonable steps to ensure that the person has adequate knowledge and understanding of the provision of education and care to children
• an approved provider must take reasonable steps to ensure that each family day care educator engaged or registered with the service maintains an adequate knowledge and understanding of the provision of education and care to children.
Attached to the 'Show Cause Notice' was a table setting out the alleged breaches of the National Law and Regulations on which the respondent relied in issuing the 'Notice' (i.e. National Law ss 164A, 167(1) and 269, and National Regulation cll 84, 92(1), 96(2), (3) and (4), 100, 101, 102, 103, 116(1), (3) and (4A), 117, 153(1)(p)(ii), 158, 166(1), 168(1), and 170).
On 24 July 2019, the applicant's solicitor, Ammanah Legal, provided a written response to the respondent's 'Show Cause Notice'. It was a comprehensive response that addressed each area of concern identified by the respondent in the Attachment to the 'Show Cause Notice'. In some case, the identified area of concern was disputed by the applicant and in others, the applicant stated that corrective actions had been taken or proposed, such as taking reasonable steps to educate and inform its educators about the statutory requirements of the National Law and the Regulations.
In the response, it was said that the applicant was committed to compliance with the requirements of the National Law and the Regulations. In this regard, the applicant had accepted its responsibility and obligations:
1. to conduct refresher education and training of educators on the issues identified by the respondent (it was noted that the first educator training on issues of child protection had been conducted on 12 July 2019),
2. to conduct an internal and external audit of the practices, policies and procedures of the service's existing governance arrangements, and
3. to implement a three month probation period for all educators with fortnightly unannounced visits.
In assessing the response of the applicant, the officers of the respondent identified a number of ongoing concerns and decided to do a follow-up monitoring and compliance visit of the principal office of the applicant's NSW approved service and another nine educators of the applicant's service. These follow-up visits were conducted on 15 and 17 October 2019. The residences of these nine educators were all within the Wollongong area. In some cases the officers were unable to conduct any monitoring as no one was home. However, where the officers of the respondent were able to conduct a monitoring visit, a number of areas of non-compliance with the National Law and Regulations were also identified, some of which were of the same kind as identified in the May 2019 visits.
During the October 2019 visits, the officers of the respondent visited the residence of educator Ms FU. During that visit officers of the respondent made note of a number of items that failed to comply with the Regulations. These failures included two nappy change mats with torn and exposed corners, a double power point and power board without a safety cap, 30 wooden fence panels with rusty nails lying on the ground against the back fence, 4 aluminium gates with corroded spears also loose against the fence, 3 large garbage bays with household rubbish and unused and broken dog kennel. The officers also found that the two child car seats in the vehicle of Ms FU and her husband had been incorrectly fitted.
On 5 November 2019, officers of the respondent again visited the residence of Ms FU and served her with a Prohibition Show Cause Notice under s 183 of the National Law on the basis of the abovementioned failures. Eight days later, on 13 November 2019, the respondent issued a notice to the applicant, under s 178 of the National Law, directing it to suspend the services of Ms FU, and to provide the respondent with evidence as to how it intended to ensure that Ms FU did not continue to operate as an educator for its service.
On the following day, 14 November 2019, Ms Mulenda, on behalf of the applicant, sent an email to the respondent attaching a copy of the email and the Suspension letters she had sent to Ms FU that day.
On 14 February 2020, the respondent sent the applicant its 'Notice of Decision to Cancel' its provider authority, under s 33(1)(a)(i) of the National Law. The grounds on which it was cancelled were the same as those set out in the 'Show Cause Notice' in that the respondent was satisfied that the applicant had breached a condition of its provider approval by failing to comply with the National Law and Regulations in respect to its daycare service approval. The respondent also formed the view that the nature of the applicant's non-compliance with the National Law and Regulations posed a risk to the safety, health and wellbeing of a child or children being educated and cared for by the applicant, as the approved provider for the daycare service.
In the 'Notice of Decision to Cancel', the respondent identified the breaches that were relied on to issue the Notice and the evidence that supported each breach. This included the breaches that had been the subject of the 'Show Cause Notice' and those that had been identified subsequently.
In the 'Notice of Decision to Cancel, the respondent identified ongoing breaches (failures) by the applicant, as an approved provider of the approved education and care service, of the following provisions of the National Law and the Regulations:
[2]
National Law
s 164A - to ensure that any child being educated and cared for as part of the service is not educated by a person other than a family day care educator or an educator assistant that is registered under reg 144 of the National Regulations
s 165(1) - inadequate supervision of children
s 167(1) - ensure every reasonable precaution is taken to protect children from harm and hazards likely to cause injury
s 175 - requirement to keep enrolment and other records
s 269 - ensure that the register of family day care educators includes all the prescribed information
[3]
National Regulations
reg 84 - to ensure staff members at the service who work with children are advised of -
(a) the existence and application of the current child protection law; and
(b) any obligations that they may have under that law
reg 97(2) - ensure that a risk assessment is conducted to identify potential emergencies that are relevant to the service
reg 100 - 102 - ensure a risk assessment is carried out in accordance with regulation 101 before an authorisation referred to in regulation 102(4) is sought for an excursion and ensure children are not taken outside the education and care service premises on an excursion unless written authorisation has been obtained
reg 103 - ensure that the education and care service premises and all equipment and furniture used in providing the education and care service are safe, clean and in good repair
reg 117 - ensure that any glazed area of a residence or approved family day care venue of the service complies with the safety requirements in subregulation (2) if the area is accessible to children
reg 143B(a) - take reasonable steps to ensure that each family day care educator engaged by or registered with the service maintains an adequate knowledge and understanding of the provision of education and care to children
reg 158 - ensure that a record of attendance is kept for the service that -
(a) records the full name of each child attending the service; and
(b) records the date and time each child arrives and departs; and
(c) is signed by one of the following persons at the time that the child arrives and departs -
(i) the person who delivers the child to the education and care service premises or collects the child from the education and care service premises;
(ii) a nominated supervisor or an educator.
reg 166 - take all reasonable steps to ensure that a child being educated and cared for at a family day care residence or approved family day care venue as part of the service is not left alone with a visitor to the residence or venue
reg 168 and 170 - ensure that the service has in place policies and procedures in relation to the matters set out in subregulation reg 168(2) and that these are followed. The policies that are required relate to health and safety, injuries and illness, dealing with medical conditions, delivery of children to, and collection of children from the education and care service premises and providing a safe environment
The respondent also identified a number of additional non-compliance matters observed during a visit to specified family day care residences in October 2019 which, in the opinion of the respondent, posed a significant risk to the safety, health and wellbeing of children who were being provided education and care by the applicant's approved service. The identified non-compliance matters were in respect of the following provisions:
1. National Law - s 165(1) (inadequately supervise children), s 175 (failure to keep enrolment and other records)
2. National Regulations - reg 89(1) (failure to keep first aid kits that complied with the regulation), reg 110 (failure to ensure that indoor spaces had adequate natural light and ventilation), reg 77 (failure to ensure that staff members at the service implemented adequate health and hygiene practices), reg 105 (failure to ensure the family day care premises of the service had access to sufficient materials and developmentally appropriate equipment suitable for the education and care of a child at the service), reg 78 (ensure that an educator of children educated and cared for by the service are provided with food and beverage is nutritious and adequate in quantity) and reg 165(1) (ensure that that a record is kept of all visitor to a family day care residence of the service).
[4]
Material before the Tribunal
The applicant's application was heard on 22 June and 23 July 2020, via the Tribunal's audio-visual equipment. That is, the legal representative and witnesses of each party appeared via audio-visual.
At the hearing the applicant relied on the following material:
1. affidavit of Jodie Signorino, sworn on 16 May 2020;
2. affidavit of Mujing'a Gisele Mulenda, sworn on 16 June 2020;
3. an internal review report of Vertex Consulting and Compliance Group in regard to the operations of the applicant;
4. a further affidavit of Mujing'a Gisele Mulenda, sworn on 16 June 2020;
5. references from Dhan Maya Bhujel (undated), Isata Kebe (sent 22 March 2020 and Kafwa Musosi (dated 30 April 2020); and
6. transcript of a radio interview with Martin Graham, the executive director of early childhood education at the NSW Department of Education, on 27 March 2020; and
On 23 July 2020, when both parties made oral submissions, I accepted into evidence, subject to weight, a pro-forma daily checklist of the applicant dated 23 November 2019, two first aid certificates issued to the husband of Ms FU, a former educator of the applicant, and a PayPal receipt from NSW Family Day Care Association Inc to Ms Mulenda, dated 16 July 2020, for a webinar training session on 4 August 2020.
At the hearing, the respondent relied on the following material:
1. a tender bundle (TB) of documents relevant to the cancellation of the applicant's provider approval. There are three folders which make up this tender bundle; and
2. witness statement of Glenda Buckley (Ms Buckley), Director of Statewide Operations for Early Childhood Education Directorate of the respondent's Department.
At the hearing of the applicant's application its sole director, Ms Mulenda gave evidence and was cross-examined by counsel for the respondent.
Ms Buckley also gave evidence and was cross-examined by the applicant's solicitor.
During the course of the hearing the respondent also tendered into evidence a copy its guide on action that is to be taken where there is evidence of breaches of regulatory requirement as for children's health and safety etc.
Both parties provided written submissions. Additional submissions were filed and served by the applicant after the hearing.
[5]
Evidence of Ms Mulenda
In her affidavit affirmed on 16 May 2020, Ms Mulenda said that she and applicant's coordinator, Ms Rimal, were present when the officers of the respondent attended the office of the respondent on 22 May 2019. She said that she and Ms Rimal felt flustered, intimidated, offended and traumatised by the manner in which the officers spoke to them. She also said that an educator who had been visited by the same officers on the same day had also told her that she felt intimidated and traumatised, by the manner in which the officers had spoken to her. Ms Mulenda said that the educator, who has a 'lack of comprehensive knowledge of the English language', did not understand what was being asked of her and that she also thought that the questions being asked appeared to be 'pedantic and overly technical in nature'.
Ms Mulenda said that, following a visit, in October 2019, by the officers of he respondent, another educator of the applicant's daycare service had told her that she felt ashamed and embarrassed by the insensitive nature in which she was asked questions by the officers.
In her affidavit affirmed on 16 June 2020, Ms Mulenda provided a response to the matters of concern listed in the statement of Ms Buckley. At the conclusion of her affidavit, Ms Mulenda said that she rejected all assertions of a 'culture of non-compliance' by the applicant. She said she took immediate steps as and when required to ensure compliance and, where an educator committed an inexcusable offence his/her employment with the applicant's daycare service was terminated. She said that in the event the applicant's provider approval is reinstated, a fresh start will be made with new educators.
In regard to the specific contraventions noted by Ms Buckley in her statement, Ms Mulenda said:
1. she had taken action to ensure that every reasonable precaution is taken to protect children from harm and from any hazard likely to cause injury - in this regard Ms Mulenda pointed to
1. the development of a compliance booklet for educators to monitor, on a daily basis, the existence of any health hazard. A copy of that form was subsequently provided and tendered into evidence (see EX A9);
2. the hiring of Vertex Consulting & Compliance Pty Ltd (Vertex), to conduct an audit and to assist in implementing a strategic plan;
3. the hiring of a compliance expert, Ms Jodie Signorino; and
4. the implementation of dedicated training for future educators by way of webinars and on-site and external training;
1. she is now 'comprehensively aware of child protection laws' and will ensure that any future educators are trained and educated in such laws;
2. she has created a 'physical authorisation form' so that 'any assistant to an educator must first obtain written authority from a child's parents before commencing with the Applicant';
3. to the best of her belief and knowledge, the non-compliant glazed area of the five residential premises the officers of the respondent had identified in their May 2019 visits, Ms Mulenda said that in many cases the premises of the applicant's educators are rented and it is impossible to make serious modifications to fixtures. However, prior to the visits of the officers of the respondent she had asked each educator to purchase special film from Bunnings and apply it to the widows of their residences. On this basis, she asserted that the applicant had complied with reg 117 of the National Regulations. She also rejected the assertion of Ms Buckley that she had failed to take any action after the May 2019 visits by the officers of the respondent;
4. contrary to the findings of the officers of the respondent, the husband of Ms FU was the holder of a first aid certificate, and that she was in the process of obtaining the same for presentation to the Tribunal. As I have noted above a copy of these were provided on 20 July 2020. One was dated 2 December 2017 and the other was dated 19 October 2019(see Ex A9);
5. while the husband of Ms FU had failed to obtain written authorisation from parents to transport the children in the care of his wife, he did have their oral agreement to do so. Furthermore, while Ms FU and her husband had been unable to demonstrate to the officers of the respondent on how to install a car seat for children, she, Ms Mulenda, had been assured that the car seat, as installed, did not pose a significant risk to the children in their care. The applicant went on to note the concerns of Ms Buckley in regard to the ongoing contraventions of Ms FU, she said she ultimately decided to terminate the MS FU's employment with the applicant's daycare service as an educator;
6. in regard to the other contraventions identified by the officers of the respondent during their visit to the residents of another four educators of the applicant, Ms Mulenda said:
1. in regard to the cot used by educator Ms AC that was found not to comply with Australian Standards, she asserted that it is reasonable to assume that the purchase such products within Australia will meet the requisite Australian Standard and had the educator been informed that it did not do so, she would have immediately made efforts to change the cot;
2. the cigarette buts and pins on the notice board that were accessible to the children at the residence of educator Ms OS these were immediately removed by Ms OS after the visit of the officers of the respondent;
3. the building material including a ladder, pieces of wood and wire accessible to the children in back yard of educator Ms MA were also immediately removed by Ms MA after the visit of the officers of the respondent; and
4. the glass beer bottles and ashtray with butts in it that were accessible to the children at the residence of educator Ms TI were immediately removed by Ms TI after the visit of the officers of the respondent;
1. in regard to the harms and hazards identified by the officers of the respondent on their October 2019 visit to the residence of educator, Ms SI, who had commenced with the applicant in mid July 2019, Ms Mulenda said:
1. from her own personal knowledge, the tear in the trampoline at, the residence of Ms SI was minor. However, after being informed by Ms SI of the concerns of the officers of the respondent, she instructed Ms SI to remove the trampoline, which she did. She also removed the string that was tied between a water main and the trampoline which had been identified by the officers of the respondent to pose a strangulation risk;
2. she otherwise disputed the veracity, or seriousness of the other breaches identified by the officers of the respondent in that she did not think that there was a risk of the shade shelter breaking apart and to the best of her belief and knowledge, the broken pool fence was not accessible to the children in the care of Ms SI;
1. in regard to the harms and hazards identified by the officers of the respondent during their visit, on 17 October 2019, to the residence of educator Ms KA, Ms Mulenda said:
1. she instructed Ms KA to secure the television, to replace the broken window sill, and to remove the sharp edges on the chicken wire. She went on to say that Ms KA acted on these instructions;
2. she strongly warned Ms KA abut the dishwashing liquid in an unlock cupboard accessible to children and Ms KA responded by saying she had removed the dishwashing liquid;
3. Ms KA had fixed the car seats immediately on being informed they had not been installed correctly;
1. contrary to the evidence of Ms Buckley, the applicant's daycare service did have a child protection policy. Ms Mulenda went on to say that many of the problems identified by the officers of the respondent arose from her and the educators lack of understanding of English and that in future she intended to hire a full time translator to work out of the principal office of the applicant, or given the number of languages involved, a telephone translation service will be sought;
2. in regard to the educators the officers of the respondent had identified as having inadequate knowledge or awareness of child protection law, Ms Mulenda reiterated that this was due to the educators having difficulty in comprehending the English language. She said:
… [An] ability to speak, or write English at a high level, is not indicative of the quality of care and education services that were provided. In the past, the Applicant relied on assistant educators to help with the translation of instructions and training. However, as per 30 above, a proper translator … will be engaged in the future by the respective educators.
1. in regard to the educator, Ms AC, using an unauthorised assistant when she collecting children from school. Ms Mulenda said she was unaware of this and her employment had been terminated. In regard to the officers of the respondent having observed, on three occasions, an educator having left children in their care unsupervised for a short period of time, Ms Mulenda said she was not present when this occurred but had terminated the employment of those educators (two in number). The officers recorded that one educator had left the children unsupervised for about eight minutes on two occasions and another educator was observed leaving the children unsupervised as she took rubbish to the garbage; and
2. Ms Mulenda rejected Ms Buckley's assertion that, following the May 2019 visits by the officers of the respondent, the applicant did not say that it would take any immediate steps to conduct a review of all educators to ensure that their premises were safe. She said she did visit the homes of the educators 'for the urgent purposes of compliance and rectification'. Ms Mulenda went on to say that, in addition to new systems and training that are to be implemented, she had taken concrete steps to operate a centre within the meaning of the National Law, including the hiring of Vertex, Ms Signorino and the engagement of a translator in the future.
In her oral evidence Ms Mulenda made concessions about the lack of written procedures, training and staff appraisal systems for educators registered with the applicant's daycare service. She also acknowledged that she had failed to observe some of the issues identified by the officers of the respondent in their visits to the educator's residences and that there was no evidence before the Tribunal in regard to some of the follow-up action she asserted to have taken.
Ms Mulenda explained that there were about 16 educators employed or registered with the applicant's daycare service at any one time. She said that her mother tongue was French and that the educators of the applicant were originally from Bhutan, Africa, Lebanon and Sudan. She said that in recruiting educators for the applicant's daycare service she would interview them and ask them questions to ascertain whether they were suitable to look after children. She would make sure that the prospective educator had the relevant documentation, namely a working with children check clearance, a childcare certificate and a first aid certificate. She said that all educators underwent some form of induction and prior to them starting to care for children she would visit the premises of the educator and identify what needed to be fixed and once fixed they could start. She acknowledged that she had failed to do this in regard to a more recently engaged educator.
In regard to monitoring the educators of the applicant's daycare service, Ms Mulenda said she would regularly call each educator and also make monthly visits (announced and unannounced). She said that if the applicant's provider authority were to be restored she would conduct fortnightly visits.
[6]
Evidence of Ms Signorino
In her affidavit, affirmed on 16 May 2020, Ms Signorino explained that she is the director of JPS Family Day Care Advisers Pty Ltd (JPS Consulting), a consulting firm that offers governance and management services to education and care providers. Ms Signorino has a graduate diploma of Human Resources in Early Childhood Education and Teaching, an Advanced Diploma in Children's Services and is in the process of undertaking a Masters Degree in Business Administration. She said that she made her affidavit in support of the applicant's application to have its provider authority restored. She went on to outline the support JPS Consulting would be able to give the applicant over the course of six months, which included policies and procedures with related templates and resources, recruitment packages including contracts and statements of undertakings, compliance review and assessments, quality improvement and development and training, advice and support.
[7]
Referee evidence
The applicant relies on three references from parents who used the applicant's service. While these referees make no mention of the contraventions identified by the officers of the respondent during their May and October 2019, they set out the impact the cancellation of the applicant's provider approval has had on them as follows:
1. Referee 1 - is a single parent who is learning English at TAFE - she said that being able to leave her children in the care of the applicant's service she had enough time to get herself ready and catch the bus to reach her classes on time. Now that the applicant's service is closed she struggles, as she needs to take her children to school. She does not have a car and is struggling to get to TAFE. She said 'some of the parents stop going to TAFE to learn English because there is no one behind us, who can look after our children's before and after school';
2. Referee 2 - is also a single parent who works full time hours and is struggling to find someone suitable to look after her three kids. She said the previous carers of the applicant's service had become accustomed to her kids and knowing their needs and how to best assist them and fit their schedules with hers. In the absence of finding suitable carers she often has to take time off work; and
3. Referee 3 - is a recent migrant to Australia from Africa with his wife kids. He and his wife attend TAFE four days a week, but since the cancellation of the applicant's service his wife has ceased going to TAFE as it is no longer possible for her to attend TAFE on time and take the kids to school. Referee 3 said the following:
It is the same for most of migrant parents without much English, Kids Belong was helpful. Being in care with educators who speak our mother tongues was ideal for maintaining our languages and cultures in our children. There are also lots of new migrant parents in our community that are unable to attend TAFE because they failed to find appropriate daycare for their kids since Kids Belong closed. The issue is that most of those migrant parents are not able to communicate with other daycare educators in English.
[8]
Submissions
In his written submission, dated 29 April 2020, the solicitor for the applicant contended that:
1. the applicant was denied procedural fairness in that it was not given sufficient time to effect all of the required changes, despite taking immediate steps to rectify the contraventions identified by the respondent in its Show Cause Notice. In all the circumstances, the respondent could have issued a Show Cause Notice for Suspension, instead it issued a Show Cause Notice for imminent cancellation of its provider authority;
2. the applicant has accepted the legislative requirements for change and has appointed a compliance expert in the field to provide immediate an ongoing assistance;
3. there is evidence that the applicant has acted with the deliberate intent to improve its ability in providing appropriate care and educational facilities, as well as strict enforcement of ongoing compliance;
4. it can be inferred that, in this case, the respondent's intention was to take punitive action rather than fulfil its function of educating and informing the applicant, an education and care service, about the National Quality Framework as set out in s 260(e) of the National Law. In this regard, the applicant relied on the decision of the Tribunal in CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190; and
5. the decision of the respondent was manifestly excessive and unjust, given the vast and disastrous consequences that immediately followed for the applicant, the educators and the families who were using the applicant's service.
In his written submissions in reply dated 18 June 2020, the solicitor for the applicant reiterated the statutory role of the respondent to educate and summarised the matters the applicant had taken to address the concerns identified by the officers of the respondent during their compliance and monitoring visits.
In his oral submissions, the solicitor for the applicant noted that while Ms Mulenda resides in Wodonga, Victoria, the applicant's principal office is in New South Wales close to the Victorian border. However, its educators were all located in Wollongong and its surrounding areas.
The applicant's solicitor suggested that in the circumstances, where the applicant had been given insufficient time to fully address the concerns of the respondent, a temporary suspension of the applicant's provider was appropriate. A cancellation would otherwise be prejudicial to the applicant being granted provider approval at some time in the future. The applicant's solicitor went on to say that during the period of suspension, the applicant would continue with its professional development and that conditions could be placed on the applicant's provider approval. Conditions such as limits on the number of educators the applicant can engage for its service and a requirement for mandatory reporting on compliance every two months for a period of time.
[9]
Evidence of Ms Buckley
In her statement Ms Buckley explained what her role was as the Director Statewide Operations and the extent of her delegated authority. That authority included making a decision to suspend and cancel a provider approval under the National Law.
In her statement, Ms Buckley noted the monitoring and compliance visits that had been made by the officers of the respondent in May 2019. Ms Buckley also cross-referenced each visit with the notes and other records (e.g. photos) of the officers as contained in the tender bundle of documents filed by the respondent.
In regard to her decision to issue the applicant with the Show Cause Notice under s 32 of the National Law, Ms Buckley explained that, based on the May 2019 monitoring and compliance visits, she had formed the view that the applicant's non-compliance constituted an unacceptable risk to the safety, health and wellbeing of children being educated and cared for in its daycare service. She noted that in accordance with s 32(2)(c) of the National Law the applicant was given 30 days in which to respond to that Notice.
Ms Buckley said that, in accordance with the respondent's usual practice, on 8 October 2019, it was determined to undertake further monitoring and compliance visits to assess whether the issues identified in the Show Cause Notice had in fact been rectified.
Ms Buckley again noted the monitoring and compliance visits of the officers of the respondent in October and 5 November 2019 and cross-referenced each visit with the notes and other records (e.g. photos) of the officers as contained in the tender bundle of documents filed by the respondent.
In regard to her decision, made on 14 February 2019, to cancel the applicant's provider approval, Ms Buckley said:
1. she was satisfied that the applicant had breached a condition of its provider approval by failing to comply with the law in respect of its daycare service approval and that the non-compliance posed a risk to the safety, health and wellbeing of the children in the care of the applicant's service;
2. she formed the view that the continued provision of education and care services by the applicant's daycare service would constitute an unacceptable risk to the safety, health and wellbeing of any child or class of children being educated or cared for by the applicant's service. Of particular concern to her was the following:
1. the significant number of breaches of the National Law and the Regulations, some of which were serious and gave rise to an unacceptable risk to the safety, health and wellbeing of any children;
2. the applicant had been given an opportunity to improve the quality of its daycare service in order to comply with the National Law and the Regulations, but she was not satisfied that the steps taken were adequate; and
3. the identified breaches were systemic and Ms Mulenda had failed to demonstrate and ability to know, understand, or effectively apply the National Law and the Regulations.
1. she considered whether to suspend the provider approval, but decided that a suspension would not be appropriate as 'the provider had failed to demonstrate either a willingness or ability to rectify significant and systemic regulatory breaches'. She said that suspensions are ordinarily only used where the risks to children are regarded as 'significant but limited' and where the provider demonstrates an ability to rectify these within a specified period;
2. of greatest concern to her were the failure to comply with the following requirements under the National Law and the Regulations:
1. to ensure that every reasonable precaution is taken to protect children from harm and any hazard likely to cause injury (National Law, s 167(1));
2. to ensure that educators are aware of child protection laws and their obligations under them (the Regulations, reg 84);
3. to ensure that children are:
1. not educated and cared for by any person not authorised to do so (National Law, s 164)
2. not left alone with visitors (the Regulations, reg 166); and
3. adequately supervised (National Law, s 165);
1. to ensure any glazed area of the residence or venue complies with safety requirements (the Regulations, reg 117).
In her statement, Ms Buckley went on to describe the various incidences observed by the officers of the respondent during their visits that fell within one or more of the abovementioned categories.
Ms Buckley also noted that the officers of the respondent had identified a significant number of breaches arising from a failure to keep adequate records, maintain appropriate procedures and conduct risk assessments.
In her oral evidence, Ms Buckley reiterated what she had said in her statement. When asked during cross-examination, what steps had the respondent taken to help the applicant comply with the National Law and the Regulations, Ms Buckley said this was the responsibility of the applicant, who, as an approved provider was required to ensure that the educators of its daycare service also complied with these laws.
In this regard Ms Buckley pointed out that the applicant had not participated in any training or sought to engage with the available quality support services. She said that the compliance and monitoring visits were also in a sense educative, but the applicant's response to these was far from adequate. At the same time, Ms Buckley accepted that there had been some improvement.
Ms Buckley also accepted that the applicant did have a child protection policy. However, it was a policy that was not understood by its educators.
Ms Buckley accepted that at the time the applicant was granted its provider approval there was no pre-approval testing of the regulatory requirements imposed on providers under the National Law and Regulations. However, there is such a requirement now and if the applicant were to make a fresh application for a provider approval she would need to sit those tests.
[10]
Submissions
In her written submissions, counsel for the respondent, submitted that just because there was an available alternative to cancellation, namely suspension, this did not mean that the decision of the respondent to cancel the applicant's provider approval was either 'unjust' or 'excessive'.
On the contrary, it was contended that:
1. having regard to the ongoing contraventions of the National Law and Regulations that had been identified in the Show Cause Notice (i.e. ss 164A, 167(1) and 29 of the National Law and regs 84, 97(2)-(4), 100, 101,102,103, 117, 143B, 158, 166 and 170 of the Regulations);
2. together with the additional contraventions identified in the Cancellation Notice (i.e. ss 165(1) and 175 of the National Law and regs 77, 78, 89(1), 105 and 110) relating to areas of health, hygiene and safe food practices, provision of food and beverages, first aid kits, ventilation and natural light and furniture and equipment;
the decision of the respondent is the correct and preferable decision.
In regard to the Vertex Report, counsel for the respondent noted that this report was not prepared for the purpose of evaluating the compliance of the applicant's daycare service with the National Law and Regulations. The Report, it was noted, was prepared for the purpose of assessing the 'business management and overall governance structure' of the applicant's approved service. In that regard, the Report identified a 'high risk' gap in 'educator management and monitoring' as well as 'medium risk' gaps in 'children attendance and monitoring' and governance focus'. It was also noted that the Report did not identify what remedies had been put in place to address the specific breaches identified in the Show Cause Notice. Instead it identified remedies that could be put into place in the future.
Counsel for the respondent also submitted that:
1. despite the emotions expressed by Ms Mulenda, Ms Rimal and the other educators in regard to the compliance visits of the officers of the respondent, they do not indicate any inappropriate exertion of 'duress' of any officer. On the contrary, their visits were well documented and did not indicate any Code of Conduct breaches; and
2. there was no evidence the applicant having been denied procedural fairness in the making of the cancellation decision as she was not accorded sufficient time to rectify the problems leading to the contraventions that had been identified. In this regard, the applicant did not ask for an extension of time to rectify the problems identified in the Show Cause Notice.
In her oral submissions, counsel for the respondent reiterated what was contained in her written submissions. In this regard she said that on the evidence before the Tribunal, the applicant had not done anything to address the contraventions that were identified in the Show Cause Notice which would warrant a change in the decision that had been made.
The contraventions identified by the officers of the respondent were widespread and systemic and steps that were taken by the applicant to correct the breaches of its educators only occurred on the prompting of the respondent. Hence, there could be no confidence in the applicant having the capacity to comply with the National Law and Regulations in the future.
[11]
Consideration
The powers of the Tribunal on review are set out in s 193 of the National Law which relevantly provides as follows:
193 Application for review of decision of the Regulatory Authority
…
(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.
As I have noted above, in addition to making provision for the cancellation of a provider approval, Division 4 of Part 2 of the National Law makes provision for the suspension of a provider approval. The grounds for suspension include the following:
25 Grounds for suspension of provider approval
The Regulatory Authority may suspend a provider approval if -
…
(b) the approved provider has failed to comply with a condition of the provider approval; or
…
(e) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension); or …
Except where there is an 'immediate risk to the safety, health or well being of a child or children being educated or cared for by an education and care service operated by the provider', before a decision is made to suspend a provider authority, the Regulatory Authority is required to issue a Show Cause Notice on the provider: National Law, s 26 and 28. The requirements of such a Notice is similar to that of a Show Cause Notice to cancel the provider approval. That is, the Notice is to contain details of the provider's failures to comply with a condition of its provider approval and the fact that the provider has 30 days within which to respond to the Notice.
After considering any written response received from the provider, s 27(b) of the National Law provides that the Regulatory Authority may:
(i) suspend the provider approval for a period not more than the prescribed period; or
(ii) decide not to suspend the provider approval.
The prescribed period of suspension is 12 months: Regulations, reg 18.
As I have noted, a decision to suspend a provider approval has the effect of suspending all service approval held by the provider for the same period of suspension: National Law, s 30(1).
I accept that Ms Mulenda, Ms Rimal and some of the educators of the applicant's daycare service may have found the May and October 2019 monitoring and compliance visits by the officers of the respondent intimidating, especially as they were not given any prior warning about the visits. However, there is no evidence to indicate that any of the officers of the respondent acted inappropriately. On the contrary, the evidence is that the officers followed standard procedures for such compliance and monitoring visits, which are conducted without any prior warning.
I am satisfied, based on the recorded incidents of non-compliance by the officers of the respondent that they evidence a failure by the applicant to comply with its obligations, as the approved provider of its daycare service, under the National Law and Regulations. These failures of the applicant can conveniently be categorised as the inadequate and up to date keeping of its own records, the lack of written policies and procedures of its daycare service and the lack of ongoing training, monitoring and regulation of the educators. On this basis, I agree with the respondent that the applicant's failures, when considered as a whole, are of considerable concern as they involve failures that go to the applicant's core responsibilities as an approved provider to ensure that it and the educators of its daycare service comply with all the requirements of the National Law and Regulations. As I have already noted, s 51(2) of the National Law expressly provides that a family day care service is granted subject to the approved provider (in this case the applicant) ensuring that each family day care educator engaged or registered with its daycare service is adequately monitored and supported by a family day care co-ordinator.
I also accept that the failures of the applicant, if left unaddressed, could constitute an unacceptable risk to the safety, health or wellbeing of a child being educated and cared for by the service operated by the applicant. However, there is no evidence of a serious incident, as defined in s 5(1) of the National Law and reg 12 of the Regulations having occurred, or that there was an imminent possibility of this occurring. Nor, other than in the case of educator, Ms FU, did the respondent consider the non-compliance issues identified by the officers during their visits to have been such that there was an immediate risk to the safety, health or well being of a child or children being educated or cared for by the applicant's daycare service. In the case of the immediate risks identified during the visit of Ms FU's residence, the respondent appropriately issued a Prohibition Show Cause Notice. On being advised of this action, Ms Mulenda took immediate steps, on behalf of the applicant's daycare service, to suspend Ms FU's daycare service. At the same time, it was another three months before the respondent issued a Cancellation Notice on the applicant.
While the applicant's failures are of concern, I accept they were not deliberate, but were largely due to Ms Mulenda's inadequate understanding of the relevant requirements the applicant had to meet. As explained by Ms Buckley, at the time the applicant was granted its provider and service approval there were no procedures in place to test a person's understanding of the National Law and Regulations, which as I have noted are very comprehensive. I find that Ms Mulenda, as the sole director of the applicant, accepts that the applicant requires assistance in ensuring that its approved daycare service complies with the National Law and Regulations. It is on this basis that the Vertex Report and the assistance of Ms Signorino were sought.
I accept that there is a need for family daycare services for children from families of different backgrounds and differing understanding of the English language. However, the provisions of the National Law and Regulations equally apply to all approved providers, approved daycare services and registered educators of such services. In this regard it is the responsibility of the approved provider to ensure that the educators of their respective daycare services all understand and comply with the provisions of the National Law and Regulations. That is, in this case, the responsibility rested with the applicant and the onus was on it to ensure that there was compliance by the educators of its daycare service, including ensuring that their respective residences complied. Having educators located so far from the principal office of the applicant was undoubtedly difficult, but a difficulty the applicant was required to resolve. The same applies to the specific requirements of educators registered with the applicant's daycare service. These requirements are those specified in the National Law and Regulations of which the applicant must familiarise itself with and ensure that they are complied with at all times. For example, reg 136(5) of the Regulations defines what is meant by the term 'approved first aid qualification'. Those provided by Mr FU are clearly not sufficient to satisfy what is required. Another example being reg 117 which sets out the requirements concerning glazed areas of the residence of a family day care educator where children are to be educated and cared for.
In my view, on the material before the Tribunal the applicant has shown a willingness to ensure compliance with the requisite requirements of the National Law and Regulations and to implement the necessary changes for that purpose. To do so it has recognised that it requires external assistance in this regard and additional time. In this regard the applicant asserts it was given insufficient guidance and time within which to implement the requisite changes to its daycare services. Hence, the question is, should the applicant be given time to implement those changes.
I appreciate that it is now more than 12 months since the decision to cancel the applicant's provider authority was made. Nevertheless, in my view, on the material before the Tribunal and the relevant law, the applicant should be given an opportunity to implement the proposed changes if that remains its intention. However, in light of the applicant's concessions that it must implement changes to its daycare service in order to ensure compliance with the National Law and Regulations, that opportunity should not be given by reinstating its provider approval. In my view, it should be granted through a short period of suspension of no more than six (6) months. In that regard I note the applicant does not seek to reinstate its previously approved educators. Instead it will recruit new educators once the changes have been implemented.
Hence, in my view, a cancellation of the applicant's provider approval is not the correct and preferable decision. Instead, the correct and preferable decision is a decision to suspend the applicant's provider approval for a period of six months so that the applicant can demonstrate that it has the requisite knowledge of its obligations under the National Law and Regulations, an appropriate management structure for its approved daycare service and the educators it recruits, together with the appropriate policies, record keeping and written procedures.
In the event the applicant no longer wishes to pursue its proposed changes to its daycare service, it is open to it to surrender its provider approval under s 38 of the National Law.
[12]
Conclusion and orders
For the reasons set out above, I find that the correct and preferable decision is a decision that the applicant's provider authority be suspended for a period of no more than six months, beginning from the date of the publication of this decision.
As I have noted, the effect of a suspension of the applicant's provider approval is to also suspend the applicant's service approval for the same period of time: National Law, s 30(1).
In making my decision, I have had regard to the applicant's suggestion that it is open to me to place a condition on the applicant's provider approval that limits the number of educators its daycare service can register or employ.
In my view, contrary to the recent decision of the Tribunal in EEP v Secretary, Department of Education [2021] NSWCATAD 34, at [172], I am not satisfied that the Tribunal has jurisdiction to impose or amend the conditions of a provider approval under its general jurisdiction in s 29(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Nor, in my view, does it arise under s 58 of the NCAT Act.
As I have noted above, s 19 of the National Law makes provision for the Regulatory Authority to impose conditions on a provider approval at the time it is granted. Section 23(2) gives the Regulatory Authority the power to amend or vary a condition of the provider authority, or impose a new condition on the provider approval. Again, the Regulatory Authority is required to give notice of any proposed amendment or change.
I note that a decision to impose or amend a condition on a provider approval and a service approval is a reviewable decision on internal review: National Law, s 190(c). However, it is not a decision that is identified as a decision that is reviewable externally under s 193. Nor, in my view can it be inferred from the express words of s 193 that the Tribunal is vested with the power to make a decision to impose or amend a condition on a provider approval.
Accordingly, I order:
1. The name of the applicant is amended to Kids Belong Family Daycare Pty Ltd.
2. The decision of the respondent, made on 14 February 2020, to cancel the applicant's provider authority is set aside and in substitution thereof a decision is made that the applicant's provider authority is suspended for a period of six (6) months, commencing as at the date of the publication of this decision.
[13]
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: 06 May 2021
Mujinga Gisele Mulenda (Ms Mulenda) is the sole director of the applicant, Kids Belong Family Daycare Pty Ltd. On 26 February 2015, the respondent, the Secretary of the Department of Education, granted the applicant a provider approval under s 15 of the Children (Education and Care Services) National Law (NSW) No 104a of 210 (National Law). On 25 September 2015, the respondent granted the applicant a service approval under s 48 of the National Law. These approvals authorised the applicant to operate a 'family day care service', which is defined to mean a 'service that is delivered through the use of 2 or more educators and operates from 2 or more residences: National Law, s 5(1).
The applicant commenced operation on 24 October 2016.
On 14 February 2020, the respondent determined to cancel the applicant's provider approval on the grounds that it had breached a condition of its provider approval: National law, ss 19(2) and 31(e).
On 27 February 2020, Ms Mulenda filed an application for external review of the respondent's determination to cancel the applicant's provider authority on the grounds that the determination was manifestly unjust or excessive and lacking in procedural fairness.
In the application for review, Ms Mulenda named herself as the applicant. However, there was no question that the provider approval that was the subject of the respondent's determination was the corporate entity of which Ms Mulenda was the sole director. At my request, following the hearing of the application, the parties provided copies of the relevant company searches of the corporate entity applicant of which Ms Mulenda was the sole director. Having reviewed this material and that which was before the Tribunal I am satisfied that the corporate entity 'Kids Belong Family Daycare Pty Ltd' is the correctly named applicant in these proceedings and not Ms Mulenda. Hence I have made an order amending the name of the applicant accordingly.
There is no dispute that the Tribunal has jurisdiction, under its general jurisdiction (s 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act)), to hear and determine the applicant's application: National Law, ss 192 and 193; Children (Education and Care Services National Law Application) Act 2010 (NSW) (National Law Application Act) and DBU v Secretary, Department of Education [2017] NSWCATAD 257, at [22] and [26] and Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [20].
Nor is it disputed that the role of the Tribunal is to determine the correct and preferable decision having regard to the material before it.
For the reasons set out below, there is little dispute that the compliance and monitoring visits of the officers of the respondent to the principal office of the applicant and to the residence of many educators of the applicant's approved service identified a number of matters that were failures to comply with the provisions of the National Law and the Education and Care Services National Regulations (Regulations). Those matters, amounted to a failure by the applicant, as the approved provider of the service, to comply with its obligations under the National Law and Regulations. Hence, the applicant has breached a condition on which its provider approval was granted (National Law, s 19(2)), which formed a ground on which the applicant's provider approval was cancelled.
What is in issue in this application is whether, in the context of the rights and best interests of the child being paramount, the material before the Tribunal and the applicable provisions of the National Law and Regulations, the decision to cancel the applicant's provider approval is the correct and preferable decision. The applicant contends that it has addressed the matters raised, or was in the process of addressing them when its provider approval was cancelled. Hence, it contends that the decision to cancel its provider approval is not the correct and preferred decision.
In my view, given the concessions made by the applicant, this application turns on what (if any) disciplinary action should be taken in regard to the applicant's failures to meet its obligations under the National Law and Regulations.
For the reasons that follow, in my opinion, the decision of the respondent to cancel the applicant's provider approval is not the correct and preferable decision. However, I agree that the applicant's failures warrant a suspension of its provider approval so as to give it the opportunity to review the conduct and governance of its business and services.
The National Law
The National Law, which came into operation in 2010, established 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 and guiding principles of the 'national education and care services quality framework' are set out in s 3(2) and (3) of the National Law. Section 3(3)(a) provides that the rights and best interests of the child are the paramount guiding principle.
The term 'national education and care services quality framework' is defined in s 5(1) of the National Law to mean:
(a) the National Law; and
(b) the National Regulations; and
(c) the National Quality Standard; and
(d) the prescribed rating system
The 'National Quality Standard' is that which is prescribed by the Regulations that are made under the National Law: s 5(1).
An 'education and care service' is any service providing education and care on a regular basis to children under 13 years of age, unless excluded under the meaning of this term in s 5(1) of the National Law. It includes a 'family day care service', which is defined to mean a 'service that is delivered through the use of 2 or more educators and operates from 2 or more residences: National Law, s 5(1).
To operate an education and care service (including a family day care service) a person must be the holder of a provider approval and a service approval, issued by the 'Regulatory Authority', under s 15 of Part 2 and s 48 of Part 3 of the National Law. In New South Wales the 'Regulatory Authority' is the respondent: National Law Application Act, s 9.
As noted by counsel for the respondent, under the National Law and Regulations, the oversight of 'family day care services', is in part 'co-regulatory', in that the Regulatory Authority regulates the persons who are holders of a provider approval and those persons who are holders of a provider approval are responsible for 'regulatingˆ (in a supervisory sense) the 'educators' they use to operate their family day services: see National Law, s 51(2) below and Jump Start Family Day Care Pty Ltd v Department of Education and Training (Review and Regulation) [2019] VCAT 1631 at [4].