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

Secretary, NSW Department of Education v Gabriel's Family Day Care Pty Ltd - [2021] NSWCATAP 263 - NSWCATAP 2021 case summary — Zoe

Overview

The respondent is a family day care service company that provides education and care to children in the homes of multiple individuals who are referred to as educators. On 12 February 2014 it was granted a provider approval for this service pursuant to s 15 of the Children (Education and Care Services) National Law (NSW) (the National Law).
The appellant is the authority which has regulatory responsibility over the activities of family day care service providers. Under the National Law such service providers have strict responsibilities to oversee the operations of the educators, including the physical environment in each residential home and the keeping of records. These responsibilities are primarily directed to ensuring the safety and well-being of children.
In December 2019, a delegate of the appellant cancelled the respondent's provider approval acting under s 31 (e) of the National Law. There was a history of interaction between the appellant and the respondent before this decision was made. The appellant said it was moved by what it saw as systemic failures by the respondent.
The respondent was successful in having that decision set aside in administrative review proceedings brought in the Tribunal. The Tribunal set aside the delegate's decision and in substitution for that decision made orders imposing certain conditions by amending the provider approval. The appellant has appealed from the Tribunal's decision.
Whilst leave to appeal was sought in respect of alleged errors of fact, the appellant's submissions focused, primarily, upon alleged errors of law. The respondent sought to uphold the Tribunal's decision, including by relying upon a Tribunal decision made after the decision appealed from which, if correct, meant that the appellant had no power to cancel the provider approval in the circumstances of this case.
We have decided that this subsequent decision by the Tribunal about the appellant's power to cancel is not correct. We have also decided that the appeal should be allowed.
Despite written submissions from the appellant to the contrary, at the hearing of the appeal both parties accepted that if the appeal was to be allowed the proceedings would need to be remitted to a differently constituted Tribunal for redetermination, rather than by the Appeal Panel determining the review application by deciding what was the correct and preferable decision.
We have decided that this is the outcome of the appeal.
Our reasons for these conclusions are set out below.

[5]

The delegate's decision

The delegate decided to cancel the respondent's provider approval with effect from 8 January 2020. The decision was communicated to the respondent by a letter (14 pages) dated 19 December 2019. The letter said that the cancellation was pursuant to s 31 (e) of the National Law for alleged non-compliance with the National Law and the Education and Care Services National Regulations (2011 SI 653) (the Regulations). It was pointed out that compliance with the National Law was a statutory condition of the provider approval.
The letter set out the details of a conclusion that the respondent had breached this statutory condition based upon compliance visits from officers of the Department of Education on 17 April 2019 and 26 and 30 September 2019. Those details covered a lengthy range of matters concerning the respondent's oversight of educators, including alleged failures to ensure every reasonable precaution was taken to protect children from harm and hazard, to ensure certain risk assessments with respect to the premises of educators were conducted, and to ensure various records in relation to children under the care of educators were kept and properly completed. Alleged non--compliance with various sections of the National Law and various provisions of the Regulations were referred to.
Prior to the cancellation decision, as required by s 32 of the National Law, a show cause notice, dated 4 June 2019 (Show Cause Notice), was sent to the respondent based upon the monitoring visits on 17 April 2019. A lengthy response to that show cause notice, dated 12 July 2019, was sent by Meridian Lawyers on behalf of the respondent (SRC). This response included a denial that there were serious non-compliance issues in respect to the operation of the service or that there was an unacceptable risk to the safety, health and well-being of children being educated and cared for by the service. The response also said that whilst the respondent disputed many of the allegations of non-compliance against them, it acknowledged that improvements could be made. A proposed action plan to reduce risk was set out. It was submitted that non-compliances were largely in relation to paperwork, although the respondent fully appreciated the importance of these documents.
In the cancellation decision letter dated 19 December 2019 the delegate expressed the view that she was not convinced that the respondent had satisfactorily addressed each item of non-compliance set out in the show cause notice and said that this was supported by details that were outlined in the letter based upon monitoring visits on 26 and 30 September 2019.

[7]

National Law provisions

Section 31 of the National Law provides: 31 Grounds for cancellation of provider approval The Regulatory Authority may cancel a provider approval if - (a) the Regulatory Authority is satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or (b) 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; or (c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or (d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or (e) the approved provider has breached a condition of the provider approval; or (f) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension).
Section 32 of the National Law requires that a show cause notice of an intention to cancel a provider approval, where cancellation under s 31 is being considered, be provided. Section 33, relevantly, provides: 33 Decision in relation to cancellation (1) After considering any written response from the approved provider received within the time allowed under section 32(2)(c), the Regulatory Authority - (a) may - (i) cancel the provider approval; or (ii) suspend the provider approval for a period not more than the prescribed period; or (iii) decide not to cancel the provider approval; and (b) must give the approved provider written notice of the decision.
Section 19 of the National Law provides: 19 Conditions on provider approval (1) A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority. (2) Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law. (3) A condition of a provider approval applies to the provider as the operator of any education and care service or associated children's service, unless the condition expressly provides otherwise. (4) An approved provider must comply with the conditions of the provider approval. Penalty: $10 000, in the case of an individual. $50 000, in any other case.
Part 6 of the National law sets out a number of offences relating to operating an education and care service.
Strict obligations are placed upon approved providers (and in some cases upon supervisors and educators) in a number of respects, including under sections 167 and 175 as follows: 167 Offence relating to protection of children from harm and hazards (1) The approved provider of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury. Penalty: $10 000, in the case of an individual. $50 000, in any other case. (2) A nominated supervisor of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury. Penalty: $10 000. (3) A family day care educator must ensure that every reasonable precaution is taken to protect a child being educated and cared for as part of a family day care service from harm and from any hazard likely to cause injury. Penalty: $10 000. 175 Offence relating to requirement to keep enrolment and other documents (1) An approved provider of an education and care service must keep the prescribed documents available for inspection by an authorised officer in accordance with this section. Penalty: $4000, in the case of an individual. $20 000, in any other case. (2) Documents referred to in subsection (1) - (a) must, to the extent practicable, be kept at the education and care service premises if they relate to - (i) the operation of the service; or (ii) any staff member employed or engaged by the service; or (iii) any child cared for, or educated at, those premises - in the previous 12 months; and (b) in any other case, must be kept at a place, and in a manner, that they are readily accessible by an authorised officer. (3) A family day care educator who educates and cares for a child at a residence or approved family day care venue, as part of a family day care service, must keep the prescribed documents available for inspection by an authorised officer at that residence or venue. Penalty: $4000.
The National Law refers to the National Law Regulations: s 301. Relevantly, they are contained within the Regulations.
The Regulations include the following: 84 Awareness of child protection law The approved provider of an education and care service must ensure that nominated supervisors and 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. Penalty: $1000. 97 Emergency and evacuation procedures (1) The emergency and evacuation procedures required under regulation 168 must set out - (a) instructions for what must be done in the event of an emergency; and (b) an emergency and evacuation floor plan. (2) For the purposes of preparing the emergency and evacuation procedures, the approved provider of an education and care service must ensure that a risk assessment is conducted to identify potential emergencies that are relevant to the service. Penalty: $2000. ….. 100 Risk assessment must be conducted before excursion (1) The approved provider of an education and care service must 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. Penalty: $2000. ….. 102 Authorisation for excursions (1) The approved provider of an education and care service must ensure that a child being educated and cared for by the service is not taken outside the education and care service premises on an excursion unless written authorisation has been provided under subregulation (4). Penalty: $1000. ….. 103 Premises, furniture and equipment to be safe, clean and in good repair (1) The approved provider of an education and care service must 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. Penalty: $2000. (2) This regulation does not apply to a part of a family day care residence that is not used to provide a family day care service. 117 Glass (1) The approved provider of a family day care service must ensure that any glazed area of a residence or approved family day care venue of the service complies with subregulation (2) if the area - (a) is accessible to children; and (b) either - (i) is of or below the height above floor level, specified by AS 1288-2006Glass in buildings - Selection and installation, approved on behalf of the Council of Standards Australia, published on 16 January 2006, incorporating Amendments Nos 1 and 2; or (ii) if the residence or family day care venue was approved before 1 June 2014, is 0.75 metres or less above floor level. (2) The glazed area must be - (a) glazed with safety glass, if the Building Code of Australia requires this; or (b) in any other case - (i) treated with a product that prevents glass from shattering if broken; or (ii) guarded by barriers that prevent a child from striking or falling against the glass. 162 Health information to be kept in enrolment record The health information to be kept in the enrolment record for each child enrolled at the education and care service is - (a) the name, address and telephone number of the child's registered medical practitioner or medical service; and (b) if available, the child's Medicare number; and (c) details of any - (i) specific healthcare needs of the child, including any medical condition; and (ii) allergies, including whether the child has been diagnosed as at risk of anaphylaxis; and (d) any medical management plan, anaphylaxis medical management plan or risk minimisation plan to be followed with respect to a specific healthcare need, medical condition or allergy referred to in paragraph (c); and …..

[8]

The appellant's case before the Tribunal

The appellant's case before the Tribunal came to be centred upon a schedule of 89 alleged breaches of the National Law and Regulations (Breaches Schedule) in relation to which it contended: 1. The respondent had repeatedly breached various provisions of these laws; 2. At least some of these breaches were serious and indicative of a substantial, ongoing risk to the health, safety and well-being of children; 3. A number of similar harms and hazards were identified across multiple educators' homes over inspections conducted over the span of nearly a year; 4. Even where individual instances of non-compliance had been rectified, the respondent had failed to implement an effective system to ensure that similar instances of non-compliance do not occur in the future. As to this, there was no recognition by the respondent that it could have proactively identified the problem educators; 5. Non-compliances had occurred since the respondent obtained a stay from the Tribunal, in circumstances where the respondent would be expected to be on its best behaviour. 6. The respondent had a pattern and culture of non-compliance with these laws.
These submissions reflected the views expressed by the appellant's main witness, Ms Hammoudi. She is a Hub Coordinator employed in the Early Childhood Education Directorate of the Department of Education. Her responsibilities included to manage a team of officers who conduct compliance and monitoring activities of early childhood services.
The breaches were said to have been identified as a consequence of compliance inspections at different residences on 17 April 2019, 26 and 30 September 2019 and 19 February 2020.
It was clear from the appellant's submissions to the Tribunal and Ms Hammoudi's evidence that the appellant's case for the cancellation decision to be affirmed was founded upon both the seriousness and extent of the alleged breaches, including their quantity and the different locations and timing when they were alleged to have occurred.
The Breaches Schedule assembled the alleged breaches in order of the compliance inspections commencing with the inspections on 17 April 2019. The schedule listed breaches numbered 1 to 106 but 17 of these did not have associated alleged contraventions. It specified the provision of the National Law or Regulations alleged to have been breached, it described the facts relied upon, it specified the evidence relied upon and it set out the response by the respondent to the allegation. The first version of the schedule, without the respondent's response, was provided with the appellant's written submissions supplied about a month before the hearing. The final Breaches Schedule containing the respondent's response was supplied to the Tribunal during the hearing.
The Breaches Schedule was accompanied by another table (Annexure B) that arranged the alleged breaches according to the provision of the National Law or Regulations in issue commencing with ss 164, 165, 166, 167 and 175 of the National Law. With respect to each provision alleged to have been breached, this table specified the date and residence of the compliance visit and gave a cross-reference to the number of the alleged breach in the Breaches Schedule. From this table the number of breaches of each provision of the statute and regulations could be seen, as well as the dates of inspection at which each breach was said to have been identified. For example, 11 alleged breaches of s 167 were identified (at different residences, save for 2 of the breaches, some identified during the inspections on 17 April 2019, others on 26 and 30 September 2019 and others on 19 February 2020) and 20 alleged breaches of s 175 were identified (many at different residences and, again, resulting from inspections on these various dates).
The significance of the Breaches Schedule to the presentation of the appellant's case before the Tribunal and for identification of the issues to be determined is apparent from each party's written submissions supplied to the Tribunal before the hearing, from the oral openings of Counsel at the hearing, including the statement by Counsel for the respondent that the case may be most sensibly digested by reference to the two tables of breaches annexed to the appellant's written submissions (transcript page 129, line 20). This was a reference to the Breaches Schedule and Annexure B. He referred to these tables as a Scott Schedule of breaches.
A major part of the appellant's evidence was documentary. This consisted, principally, of 3 volumes of written accounts of the compliance visits prepared by those who were present at the visits and photographs. These documents were exhibited to an affidavit sworn by Ms Hammoudi on 20 March 2020 (as part of Exhibit N-H1, which became Exhibit 7 in the Tribunal proceedings). Ms Hammoudi's affidavit became Exhibit 3.
In a section of her affidavit under the heading "Gravity of the breaches and pattern of non-compliance", Ms Hammoudi deposed that: 1. The breaches varied in terms of their seriousness. While some were relatively minor, several were serious and indicative of a substantial, ongoing risk to the health, safety and well-being of children. Of greatest concern were breaches of s 167 (1) and s 175 (1), (2) and (3) of the National Law and regulation 116 of the Regulations: [75]. 2. Even where individual instances of non-compliance had been rectified, the respondent had failed to implement an effective system to ensure that similar instances of non-compliance did not occur in the future. This demonstrated a pattern and culture of non-compliance: [76]. The compliance history of the respondent indicated a pattern whereby the Department notified a breach, in most cases some action was taken to address the breach but at a later point the respondent engaged in similar breaches: [99] and [100]. 3. Of particular concern, was that a number of similar harms and hazards were identified across multiple educators and at all of the rounds of visits conducted on 17 April 2019, 26 to 30 September 2019 and 19 February 2020. Ms Hammoudi then set out the examples referred to in (4), (5), (6), (7) and (8) with references to the documentary evidence in Exhibit NH-1. 4. There were multiple examples of children having access to chemicals and medication which could cause harm. Here, she identified a compliance visit to the residence of Afaf El Ajouz on 17 April 2019, and visits the residences of Solange Loki Samba and Marie Sarkis during the 26 to 30 September 2019 compliance visits: [79]. 5. There were multiple instances of children having access to unsecured knives. Here, she identified the same compliance visit to the residence of Afaf El Ajouz on 17 April 2019 and to compliance visits to the residence of Marie Sarkis during the 26 to 30 September 2019 compliance visits: [80]. 6. There were repeated instances of children having access to glass which could cause injury. Here, she identified the same appliance visit to the residence of Afaf El Ajouz on 17 April 2019, the same compliance visit to the residence of Solange Loki Samba during the 26 to 30 September 2019 visits and a visit to the residence of Maggie Hanna on 19 February 2020: [81]. 7. There were multiple examples of animal faeces being identified in outdoor areas accessible to children. Here, she identified a visit to the residence of Zubaida Ismail on 17 April 2019 and a visit to the residence of Amel Zubi on 19th February 2020: [82]. 8. There were multiple examples of children having access to electrical cords, power boards or uncovered power outlets. Here, she identified visits to the different residences of Zubaida Ismail, Danielle Ismail, Afaf El Ajouz and Farah Javed on 17 April 2019, and visits to the residences of Solange Loki Samba and Marie Sarkis during the 26 to 30 September 2019 compliance visits: [83]. 9. The failure to keep accurate and up-to-date enrolment and other records was also a serious concern: [84]. There were numerous examples of inadequacies in the respondent's recordkeeping across all of the rounds of compliance visits which again demonstrated a pattern and culture of non-compliance: [87]. Examples were referred to arising from the compliance visits in April 2019, September 2019 and February 2020: [88]-[95].
Clearly enough, the examples mentioned by Ms Hammoudi were only a portion of the breaches in the Breaches Schedule.
In response to some issues raised by Ms Mataele's affidavit served by the respondent (referred to below) the appellant served statements by Ms McGarity and Ms Doolin dated 3 June 2020 about particular inspections they had been present at.
Ms McGarity gave evidence about an issue whether educators were confused or suffered language problems in responding to questions about whether they had particular records, about aspects of a visit to Ms Samba's residence on 26 September 2019 concerning children's access to hazardous items in the bathroom and about aspects of a visit to Ms Javed's residence on 26 September 2019 concerning potential hazards to children in the backyard and about a risk minimisation plan for a child with asthma.
Ms Doolin gave evidence about a visit to the residence of Ms Hannah on 19 February concerning the hazard caused by an unsecured glass table top.

[9]

The respondent's case before the Tribunal

The respondent did not contend that no breaches had occurred.
The respondent's main witness was Ms Mataele. She swore an affidavit on 22 April 2020. She is the Educational Leader employed by the respondent.
In her affidavit, Ms Mataele was able to give evidence within her personal knowledge of actions taken by the respondent in response to the information it received about the appellant's compliance visits. She was also able to give evidence based upon first-hand knowledge concerning some of the appellant's complaints about the absence of relevant records. On the other hand, she was not present during compliance visits at the residence of educators and was confined to giving hearsay evidence and comments about some aspects of what occurred during such visits. She noted that "many" of the allegations were denied in the SRC. She did not respond in a specific way to all of the examples of breaches described by Ms Hammoudi. A good part of her affidavit was concerned with remarks about compliance issues with the educators, Marie Sarkis, Solange Samba and Farah Javed.
The other witness presented by the respondent was Ms Tesifaye. She swore an affidavit on 30 January 2020. She is the Nominated Supervisor for the respondent. Her affidavit addressed the basis of the stay application and the effect of the cancellation decision and that there was no immediate threat to the safety, health and well-being of children. It did not provide any evidence seeking to disprove any of the alleged breaches. It referred to the September 2019 visits and said that Ms Sarkis' employment was terminated on 30 September 2019 following the allegations by the appellant, Solange Loki Samba resigned from employment some three weeks after the September visits and that Afa El Ajouz is no longer employed by the respondent. It asserted that the respondent would provide evidence that risk assessments had been undertaken, that some educators do not understand what is being requested of them during monitoring visits and that the response to the Show Cause Notice sets out the strong system of governance and extensive training delivered to educators.
No witness statements or affidavits were presented from the educators.
The respondent's written submissions supplied before the hearing (subsequent to the appellant's written submissions) did not address the alleged breaches in any specific way. The submissions included: 26. The submissions served by the [appellant] assert that there are 106 breaches that speak 6 reasons for which the [respondent's] approval should be cancelled. These reasons are…. a. repeated breaches; b. breaches being serious and indicative of ongoing risk to health, safety and well-being of children; c. similarity of several harms and hazards spanning a year and different educators; d. failure to implement effective system to ensure similar instances don't re-occur; e. non-compliances extend into (sic) operative period of a stay; and f. there is a pattern and culture of non-compliance. 27. The [respondent] denies: a. certain of the alleged repeated breaches; b. that any proved breaches are serious enough to warrant cancellation of provider approval; c. there has been a failure to implement effective systems to ensure compliance; d. that there has been a pattern and culture of non-compliance. 28. Prior to the hearing, the [respondent] will endeavour to complete a responsive column to the table at Annexure A to the submissions of the [appellant]. [The Breaches Schedule]. 29. The correct decision in this Honourable Tribunal is to not cancel the provider approval of the Applicant. The Applicant has: a. not breached conditions of provider approval is alleged by the [appellant] and otherwise; b. where it is found that there has been a breach of a condition of provider approval, has not done so in a manner that justifies cancellation of the provider approval. 30. Insofar as there are alleged non-compliance is with the LAW and related instruments, these are denied, and to the extent that they are not denied, it is submitted that they are not of a nature as to pose such an unacceptable risk to the safety, health and well-being of the child or children so as to warrant cancellation of approval. …… 41. Therefore, it is appropriate to read the statute as at least possibly allowing breach of a condition that will not necessarily lead to cancellation of provider approval. Of course, it might, but not always. 42. The question then becomes, is the nature of any proved breach of a condition or the law and regulations of such a nature that it justifies cancellation? ….. 47. In so far as the breaches alleged in the Decision to cancel are concerned, the [respondent] operates a documented and thorough system for the governance of the service and for the governance of education and care delivered by educators, including….. …. 49. Many instances of alleged breach concern recordkeeping, which while serious per se, do not in and of themselves pose a risk to a child in the moment of the default in the same way that the presence of an immediate danger does. In any event, such defaults are taken seriously by the Applicant. 50. In any distributed-carer system such as this, one might expect defaults from time to time to occur-what is crucial, is how these are managed as and when they arise, and otherwise minimise so as to occur as infrequently as possible, and be of no moment or immediate concern when they do arise. 51. The [respondent] has taken steps to rectify concerns, and pre-emptively address matters that had not (sic) there before been raised with the application. 52. No person in the position of the [respondent] can guarantee that the risk of harm, or the gravity of harm if it were to occur, is nil. With this in mind, the intention of the statute cannot be that any breach of the National Law or a condition will do to justify cancellation.
In his opening for the Tribunal, Counsel for the respondent said that some of the breaches would be admitted but these would be explained or otherwise argued did not justify cancellation (transcript page 131, line 45). He said that 82 of the 106 alleged breaches would be denied on either factual or legal grounds (transcript page 132, line 15). At this point, the response section in the Breaches Schedule was still being finalised.
Once finalised, the response in the Breaches Schedule gave rise to a considerable range of factual and legal issues.
An examination of the Breaches Schedule with respect to the alleged breaches of s 167 of the National Law, in conjunction with the table in Annexure B, illustrates the range of issues that arose. In some instances, the respondent took issue with the factual correctness of statements in the appellant's documents or with the factual inferences to be drawn from such statements. In other instances, it did not dispute the facts as to the breach but put forward explanations and other matters in mitigation and against a conclusion that breaches were sufficient to warrant a decision to cancel.
Annexure B shows that five of the eleven alleged breaches of s 167 were identified from inspections at different residences on 17 April 2019 (those numbered 13, 21, 26, 30 and 35). The Breaches Schedule showed that in respect of these alleged breaches: 1. Three were expressly denied (numbers 13, 21 and 35). 2. As to the remaining two (26 and 30), concerning inspections at the residences of Zubaida Ismail and Farah Javed, respectively, it would appear these fell within the admitted or non-disputed category mentioned by Counsel for the respondent in opening because no dispute as to the facts or conclusion of breach was expressed but facts in mitigation were put forward, namely that the hazards had not been sighted by the respondent on its visits to the premises, including during an initial home safety check. In addition, with respect to one of these (26), it was said that the educator was not providing education and care on the day of the inspection. 3. The denial of the breach alleged numbered 13 (concerning an inspection at the residence of Mabinty Bangura) raised factual issues about whether there were safety issues as described by the inspectors (the subject of written visit reports and photographs tendered by the appellant), whether the educator had already resigned at the time of the inspection or, in any event, was on leave. 4. The denial of the breach alleged numbered 21 (concerning an inspection at the residence of Afaf El Ajouz) also appeared to raise factual issues about whether there were safety issues as described by the inspectors in the visit reports and whether on the day of the inspection the educator had a party and was not providing education and care. 5. The denial of the breach alleged numbered 35 (concerning an inspection at the residence of Danielle Ismail) did not take issue with the safety circumstances described by the inspectors but raised a factual issue as to whether the educator was renovating her premises at the time of the inspection rather than providing education and care.
Annexure B shows that 3 of the alleged breaches of s 167 (those numbered 53, 61 and 70) were identified at two different premises on 26 September 2019 and on 30 September 2019 at one of these same premises. The Breaches Schedule showed that in respect of these alleged breaches: 1. Two were expressly denied (numbers 61 and 70). 2. It would appear the remaining breach (53) (concerning an inspection at the residence of Marie Sarkis) fell within the admitted or non-disputed category. Nothing was expressly disputed but in mitigation it was said that "Steps taken to deal with Ms Sarkis non-compliance". 3. The denials of the breaches alleged in numbers 61 and 70 referred to parts of Ms Mataele's affidavit and, with respect to number 61, also referred to a letter from the educator concerned. 4. As to the breach alleged in number 61, the parts of Ms Mataele's affidavit referred to raised factual issues (through hearsay evidence) about whether there were safety issues as described by the inspectors in the written visit reports and whether there were otherwise exculpatory explanations for some of the safety conditions that it was accepted were accurately described. 5. As to the breach alleged in number 70, the parts of Ms Mataele's affidavit referred to did not take issue with any of the facts described in the Breaches Schedule and the specific basis of the denial was not made clear.
Annexure B shows that 3 of the alleged breaches of s 167 were identified from inspections at different residences on 19 February 2020 (those numbered 77, 89 and 95). The Breaches Schedule shows that in respect of these alleged breaches: 1. One was expressly denied (number 89). 2. The response to the alleged breach numbered 77 raised no dispute as to the facts alleged but indicated that there was an issue as to whether what occurred established the alleged breach. If it did, facts in mitigation were put forward. 3. It would appear that the remaining breach (numbered 95) fell within the admitted or not disputed category. Facts in mitigation were put forward to the effect that the safety issue was not present when the respondent checked the premises and had now been removed from the premises.

[10]

The Tribunal's decision

The findings of the Tribunal concerning whether breaches had occurred and, if so, whether they were sufficient to warrant cancellation consisted, to a considerable extent, of the following: [99] On the balance of probabilities, the evidence provided by the [appellant] and the evidence provided by the [respondent] does not translate to a comfortable level of satisfaction commensurate with the gravity of the allegations that there have been established the multiple breaches of the National Law and the National Regulations which have been alleged. ….. [101] ….. It is considered that there does not exist an unacceptable risk of harm in this matter and the conditions which we propose should be imposed on the applicant pursuant to section 58 of the Civil and Administrative Tribunal Act will maintain risk to an acceptable level. [102] The [respondent] has also submitted that if there were established breaches of the National Law or National Regulations those breaches were insufficient to warrant cancellation of the provider approval. Having regard to all of the evidence submitted by both the [respondent] and the [appellant] this is a submission which is open to the applicant on the evidence before the Tribunal and is accepted by the Tribunal. [103] If the Tribunal has erred in finding that the alleged breaches have not been established, it is the Tribunal's view that the evidence has not established that it was appropriate in all the circumstances for the applicant's provider approval to be cancelled. ….. [109] The evidence does not reach the required level for the Tribunal to be comfortably satisfied that the allegations of breaches have all been made out. The Tribunal considers that even if the allegations had been established by the evidence to the requisite standard, the procedures and mitigating actions taken by the applicant warranted less drastic action in cancelling the provider approval. … [113] Having regard to all of the matters raised it is the Tribunal's decision that in all the circumstances the correct and preferable decision is that the decision of the Regulatory Authority is set aside because the evidence does not satisfy the Tribunal that the breaches have been established to the required standard. If the evidence did satisfy that standard the alleged breaches did not warrant cancellation of the provider approval. Consequently, the application for review is upheld but the Tribunal considers that the conditions proposed by the respondent should be implemented by amending the provider approval pursuant to section 58 of the Civil and Administrative Tribunal Act. ….
These conclusions were contained in the section of the reasons under the heading "Consideration" (at [89]-[105]) and under the heading "Conclusion" (at [106]-[113]. The Tribunal did not elaborate upon these conclusions.
In arriving at these conclusions the Tribunal decided that it was appropriate that it be "comfortably satisfied" of the facts in issue in view of the serious nature of the allegations, including that significant financial penalties could result after a successful prosecution of the alleged breaches: at [98]; [93]-[97]. In doing so, the Tribunal recognised that it was not bound by the rules of evidence and that it was to act with as little formality as the circumstances permit: at [36].
Earlier in its reasons, in a section under the heading "The Evidence", the Tribunal referred to where the evidence was to be found and discussed some issues that arose. Factual findings and conclusions were limited as appears below (those contained in [60] and [61] may have been a continuous account of contentions by the respondent): [60] The [respondent] states in relation to the show cause notice that some of the educators to whom visits were made by the respondent's offices were not on the day of the visit providing care for children. Afaf El Ajouz was on leave on 17 April 2019 and was not providing education and care for the provider at the time of the compliance visit. Zubaida Ismail was not registered with the service at the time of the monitoring visit as she left service with effect from 8 April 2019. Mabinty Bangura was on leave from the service since 8 April 2019 prior to the time of the monitoring visit and did not return to the service. Danielle Ismail was not providing education and care on the day of the visit because she was renovating as informed by a letter dated 8 April 2019, and this educator does not provide care to children under the age of 5 so the child seen at her home by the officers is assumed to have been a relative. [61] During the visits made in September 2019 non-compliance was alleged to have taken place at the residences of the family day care educators. In relation to Marie Sarkis the [respondent] says that she was terminated on 30 September following the allegations of hazards to children (including a small dog for which there was apparently no permission or knowledge by the [respondent]) being found at her residence. The [respondent] also says that during previous inspections carried out by the [respondent] for that residence its safety was compliant. Solange Loki Samba resigned from her employment 3 weeks after the September visits. Afaf El Ajouz is no longer employed by the service. [64] …. This allegation [about inability to produce a letter of acceptance for the role of education leader] cannot be sustained because there was in fact a record kept… [65] ….. This allegation [that the nominated supervisor was unaware of her obligations to report any allegations of child abuse] cannot be sustained because the Tribunal is satisfied that the nominated supervisor was in fact aware of the requirements. [66] Gabriel's now maintains electronic sign in & out records so the issue raised in terms of paper attendance records completed by the educator and checked fortnightly by the service is no longer relevant. [67] [An allegation that an enrolment form for a particular child did not contain the required authorisation in respect of medical treatment]…. The child did not have any medical conditions. There is now also a system of monthly doublechecking by the provider. This is obviously not an ongoing issue. It was also a relatively minor issue in the particular instance. [68] In relation to the allegations concerning treatment of glass sliding doors and other glass areas so that they are compliant with safety glass requirements, and the failure of the educator to provide evidence, the [respondent] in the response to the show cause notice indicated that glass is required to be treated by the educators before education and care commences at the premises, and the glass is able to be so treated by independent third-party contractor. The relevant glass sliding doors were observed to have the appropriate safety stickers affixed. [70] In relation to emergency and evacuation procedures, the provider provides in-house training sessions to all educators in the first 3 months registration with the service called "Emergency Evacuation and Lockdown Procedures" and provided a copy of a copy of the relevant booklet to the respondent. Following monitoring visit the service provider directed its coordinators to ensure that every detail in relation to the emergency and evacuation procedures, the display and rehearsal is checked at every home visit. This is not a continuing issue. [71] It is able to be inferred to the appropriate standard from the evidence to the Tribunal that the other matters raised in relation to the compliance visits which occurred on 17 April 2019 have been adequately addressed by the response to the show cause notice and by the policies and procedures of the applicant produced in response to those complaints. [73] In particular, Ms Mataele states that she personally prepared the risk assessments for potential emergencies in consultation with the relevant carer and says that each risk assessment is tailored to the particular residents being assessed. The educators answered "no" to the question posed to them by the authorised officers. The evidence from the applicant is that all of the educators in fact had those documents but due to the issues of language and the stress of the particular visits were not able to then provide them to the authorised officers. In addition, the authorisations for the children to travel on excursions is dealt with extensively in the affidavit evidence. It is not proposed to repeat that evidence in these reasons, and there is little reason to disbelieve that evidence. The Tribunal accepts that evidence in response to the allegations is adequate to satisfy legislative requirements. [74] The applicant through Ms Mataele identifies that it always attaches a copy of the child's birth certificate to the enrolment form and since the September visit has required both parents' names to be included on an enrolment form. It is further explained that some of the parents do not wish to state the name of the other parent on the form because they are single parents and wish to protect their privacy. There were 2 children whose forms allegedly did not include both parents. The Tribunal accepts the explanation and the evidence provided by the applicant. ….. [77] In relation to the allegation concerning asthma and no risk minimisation or communication plan in place, from the evidence of Ms Mataele it would appear that only one of the 2 children the subject of the allegation in fact was said to have asthma and the mother did not permit or authorise anyone in the service to provide medication for her child. It is said that consequently there was no risk minimisation plan prepared. The applicant stopped the child from attending education and care and asked the parents to seek medical advice. The mother then provided evidence that child does not in fact have asthma. This evidence is not disputed. [79] Ms Mataele disagreed with the authorised officer's views that there were insufficient resources at another educator's home. It is not possible for the Tribunal to resolve the conflict between those opinions. ….. [83] It is submitted by the [appellant] that the more serious breaches alleged relate to children having access to chemicals and medication in 3 different carers' homes; children having access to unsecured knives in inspections at 2 homes; children having access to "unsecured glass" in 3 homes (see the discussion in the previous paragraph); children having access to animal faeces in 2 homes. It is submitted that none of those alleged breaches are trivial. [84] [In relation to the access to chemicals and medication allegation]…. There are raised contested factual matters arising from these allegations which are unable to be resolved in these proceedings. [85] The photographs at tab 33 and tab 120 of Exhibit 7 show cutlery drawers which contain knives. The reference to these matters is in Exhibit 3 at [80] These matters relate to Afaf El Ajouz who was not registered with the applicant by September 2019 and Marie Sarkis was terminated with the applicant on 30 September 2019. Ms Sarkis' premises were observed by the applicant to have appropriate safety locks on the kitchen drawers and cupboards on 27 August 2019. …. [87] Animal faeces refers to the allegations in Exhibit 3 at [82] and at tab 43, tab 146 and tab 147 of Exhibit 7. Of course, the presence of animal faeces in areas which are used by children is to be discouraged and prevented. The photographs provided are not clear enough to determine whether this is an area which is frequented by children even though it may well be theoretically accessible by children, and whether the owners of the animals (if they were acknowledged to be the educators) acknowledge the existence of the faeces and have not taken steps to remove them…. Since the family day care is provided in residential homes it is something which is within the knowledge of the Tribunal that it is entirely plausible animals (such as cats or possums for example) from neighbouring properties could be responsible for animal faeces in the garden without the knowledge of the educator…. It is the Tribunal's assessment that a breach of that provision has not been established to the requisite satisfaction without further information. [88] In other respects, the evidence of the [respondent], which is accepted, is that the issues raised by the [appellant] have been appropriately addressed to the extent that they required any further action.
The Tribunal did not elaborate upon the conclusions which it expressed in [71], [79], [84] and [88] above.
The Tribunal did not purport to address the issues arising in respect of all of the alleged breaches in this section concerning "The Evidence" or an any other part of the reasons or explain why it chose to deal with those that it did or why it was unnecessary to deal with each of the alleged breaches and the issues arising in respect of them.
In respect of some of the factual issues that the Tribunal did refer to in the section of the reasons concerning "The Evidence", the Tribunal did not resolve the factual questions that arose as follows: [75] It is disputed by the [respondent] that the enrolment forms did not contain a request for parental authority to use an ambulance service. …. [80] In relation to the glass table referred to in evidence of Ms Doolin it is said by the [respondent] that the glass was safety glass. If that is the case, although the table was eventually removed from the premises, the concern raised by the [appellant] that it posed a risk to the safety of children should they bump it or fall on it arose because it was unsecured rather than the risk posed by the glass in itself. Ms Doolin did not observe any sticker or other indication that the tabletop was safety glass or otherwise treated. Other tables at the residents were observed to have stickers on them indicating they were safe. It is possible that this table was also safe in terms of the type of glass, being likely to be safety glass.
The key conclusions of the Tribunal about whether breaches had been established (those in [99], [109] and [113]) were in terms that it considered that not all of the breaches had been established but it did not state which breaches had been established.
On one reading these conclusions suggest that the Tribunal considered that success for the appellant depended upon a conclusion that all of the breaches were established. Alternatively, it is possible that the Tribunal's conclusion was that none of the alleged breaches had been established (as contended by the appellant on appeal). However, it did not state its conclusion in these terms and such a conclusion would have been at odds with the conditions imposed upon the respondent by the Tribunal's orders and with the concessions from the respondent (to which we refer below).
In saying this, we note that the Tribunal did not explain the reasons for imposing the conditions that it did.
The Tribunal barely mentioned the Breaches Schedule. The only reference to it was as follows: [16] ….. A table was prepared by both parties which identified the alleged breaches on inspection and which helpfully summarised the evidence identifying its location in the large volume of documents filed in the registry. The responses by the [respondent] are also included in the final form of that document.
In addition to what was said about imposing conditions on the provider approval in [113] of the reasons (see above), the Tribunal said the following about imposing such conditions: [104] The alternative submission made by the [appellant] is that, should the cancellation decision be set aside, certain conditions should be imposed on the [respondent] pursuant to section 58 of the [NCAT Act]. [105] In granting the stay which is currently in place conditions were imposed (see Gabriel's Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 43 at [63]). Similar conditions may be imposed now on the final decision.

[11]

The Notice of Appeal-grounds of appeal

As we have said, the appellant relied upon both errors of law and errors of fact, although it, principally, relied upon the former. Its grounds of appeal set out 16 errors of law and 4 errors of fact. It sought leave to appeal in relation to the errors of fact.
Included in these 16 errors of law were 2 errors that the appellant sought to add to its grounds of appeal at the hearing of the appeal. These were Grounds 12A and 12B. At the hearing of the appeal, Mr Condylis, of Counsel, who appeared for the respondent, initially objected to these grounds on the basis that excessive grounds of appeal had been advanced. However, he did not press the objection in light of the fact that the new grounds had been outlined in the February 2021 written submissions of the appellant and no complaint about them had been made in the respondent's written submissions in answer to those from the appellant.
In these circumstances, we grant leave to the appellant to amend its grounds of appeal to include these two new grounds, although, as appears below, they are not relevant to the disposition of this appeal.
In his oral submissions at the hearing of the appeal, Mr J Emmett SC, who appeared with Mr Birch and Ms Poukchanski for the appellant, gave emphasis to the following contentions of error of law: 1. The Tribunal failed to exercise its jurisdiction because it failed to deal with the case before it by considering allegations squarely raised and seriously advanced by the appellant: Grounds 5, 6 and 11. 2. The Tribunal failed to give adequate reasons for decision: Ground 13.
Grounds 5, 6, 11 and 13 of the appeal stated: 5. The Tribunal erred in failing to give proper consideration to: a. each of the alleged breaches of the National law and National Regulations; and b. the submissions of the Respondent, including the Respondent's submissions as to the reasons why the cancellation decision should be affirmed; c. the evidence of Nicole McGarity and Louise Doolin. 6. The Tribunal erred by failing to exercise its jurisdiction in that it failed to resolve relevant disputed factual matters: [75], [79], [80], [84]. 11. The Tribunal erred in failing to properly apply s 33 of the National Law, in finding that the alleged breaches did not warrant cancellation of the provider approval on the bases that those issues were said to have been rectified: [66], [67], [70], [71], [88], [109], [113]; in circumstances where the Tribunal failed to take into account that: a. at least some of the breaches alleged were serious and indicative of a substantial, ongoing risk to the health, safety and well-being of children at the Applicant's service; b. a number of similar harms and hazards were identified across multiple educators' homes over inspections conducted over the span of nearly a year; c. even where individual instances of non-compliance had been rectified, there was no evidence that the Applicant had implemented an effective system to ensure that similar instances of non-compliance do not occur in the future; d. those non-compliance is extended into the period during which the Applicant had been operating its business by virtue of a stay of the Cancellation Decision granted by the Tribunal; and e. accordingly, that the Applicant had a pattern and culture of non-compliance with the National Law and National Regulations. 13. The Tribunal erred at law by failing to give adequate reasons for its decision in accordance with s 62 (3) of the Civil and Administrative Tribunal Act 2013, in that the Tribunal: a. failed to set out findings on material questions of fact, with reference to the evidence upon which those findings were based (see schedule of material questions of fact which the Tribunal failed to resolve); b. failed to set out the Tribunal's understanding of the applicable law, particular with respect to each alleged contravention of the National Law; and c. failed to explain the process which led the Tribunal to the conclusion it made. In particular, the Tribunal failed to provide adequate reasons with respect to: d. the reasons why the Tribunal was not satisfied that each alleged contravention of the National Law and National Regulations was not established; e. the reasons why, even if the alleged contraventions of the National Law and National Regulations were established, the Tribunal did not consider that Cancellation of the provider approval was the correct and preferable decision; and f. the reasons why it was appropriate to impose conditions.
Amongst the other grounds of appeal, the issue was raised whether the Briginshaw standard of proof of comfortable satisfaction ought to have been applied in the circumstances of this case (Ground 1).

[12]

The Reply to Appeal

In its Reply to Appeal the respondent took issue with the errors alleged in Grounds 5, 6, 11 and 13 of the appeal. With respect to Grounds 6 and 13, the respondent said that, in the alternative, if the Tribunal did err in the manner asserted then the same conclusion would, in any event, have followed.
In its written submissions on appeal, the respondent, in its introduction, said: [8] Gabriels position in respect of this appeal is, in summary, that: a. Some errors pleaded by the Secretary in the grounds to Notice of Appeal filed on 11 November 2020 (Notice of appeal) can be established; b. Nonetheless, such errors do not justify the orders sought by the Secretary being made, as the outcome would have been the same; and c. In the alternative, the matter should be remitted to a differently constituted Tribunal, to be determined according to law. [9] Simply put, the Secretary seeks to hold the Tribunal to an inappropriately high standard and, in any event, ignores the substance of its findings.
At the hearing of the appeal the respondent lodged an amended Annexure A to the Reply to Appeal containing two additional points.
First, it put forward the following additional reason to support the orders made by the Tribunal, in addition to the reasons relied upon by the Tribunal: 1(d). The Appellant could not cancel the Respondent's provider approval under s 31(e) of the Children (Education and Care Services) National Law 2010 (NSW) (National Law) for any breach of a condition on the provider approval only arising due to s 19 (2) of the National Law, the reason being that s 31 (e) is not engaged by such a breach.
This new point of law was drawn to the attention of the Tribunal and the respondent by Counsel for the appellant in a supplementary note provided on 19 May 2021. This note addressed the recent decision of the Tribunal in Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 28 (Early Childhood) in which the Tribunal decided that the ground of cancellation in s 31 (e) did not include a breach of the condition imposed by s 19 (2) of the National Law. The appellant contended that this decision was wrong.
Secondly, the respondent put forward the following in answer to the grounds of appeal: 19. In complete answer to all of the Appellant's grounds of appeal: (a) the Tribunal's orders were discretionary and the only grounds upon which the Appellant may challenge the Tribunal's orders are confined to those identified in House v The King. (b) the Tribunal's decision was not unreasonable or plainly unjust; (c) the Appellant accepted the reasonableness of the approach ultimately taken by the Tribunal (i.e., imposition of conditions rather than cancellation) in its written submissions below at [73] (Appeal Book 3 to 9) and its oral closing submissions below at Appeal Book 305.15-.18.
No objection was taken to these additional points. We grant leave to the respondent to rely upon them.

[14]

New point of law-whether the appellant had power to cancel provider approval for breach of s 19 (2) condition of approval

We have referred to the new point of law about power to cancel raised by the respondent in 1 (d) of the Reply to Appeal.
The respondent contended that the decision in Early Childhood was correct and that the reference to a breach of a condition of provider approval in s 31 (e) of the National Law did not include the statutory condition of provider approval imposed by s 19 (2) (set out above).
In Early Childhood, in brief reasons on the point, the Tribunal said: 77 The Regulator also submits that s 31 (e) is engaged. The Regulator submits that ECE has breached a condition of its provider approval by failing to comply with the National Law. 78 Section 19 (2) of the National Law requires that "a provider approval is subject to the condition that the approved provider must comply with [the National Law]". …. 80 Firstly, the Regulator's interpretation of s 31 (e) is inconsistent with the terms of s 31 (d), which says "the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction." If the phrase "breached a condition of the provider approval" in s 31 (e) is intended to capture breaches of the National Law, then s 31 (d) is otiose. 81 Section 19 (1) of the National Law allows the Regulator to grant provider approval subject to conditions determined by the Regulator-being conditions other than a condition that a provider comply with the National Law. Section 31 (e) is more properly understood to refer to a breach of conditions determined by the Regulator.
The respondent adopted this reasoning. Mr Condylis also submitted: 1. The regulator had two options when it considered there had been a breach or breaches of the National Law neither of which permitted it to cancel a provider approval. It could prosecute for an offence or it could suspend approval pursuant to s 25 of the National Law. That section did not include the ground in s 31 (d) as a ground of cancellation so that the narrowing of the ambit of breach of a condition of provider approval that occurred with respect to s 31 (e) because of the inclusion of s 31 (d) did not apply to a suspension. With these two options, the interests of a child were protected. Furthermore, a suspension could lead to satisfaction of the ground for cancellation in s 31 (f). 2. This change between the grounds for cancellation compared to the grounds for suspension was explicable because of the severity of the step of cancellation so as to ensure there could not be cancellation when there was a breach of the National Law without a finding of guilt of an offence. 3. Such a construction was the more harmonious one in the context of the statute as a whole and accorded with the objects of the legislation set out in s 3.
Section 25 of the National Law provides: 25 Grounds for suspension of provider approval The Regulatory Authority may suspend a provider approval if - (a) the approved provider has been charged with an indictable offence, or with an offence that if committed in this jurisdiction would be an indictable offence, or any other circumstance indicates that the approved provider may not be a fit and proper person to be involved in the provision of an education and care service; or (b) the approved provider has failed to comply with a condition of the provider approval; or (c) the approved provider has failed to comply with this Law as applying in any participating jurisdiction; or (d) action is being taken under Part 7 (other than a compliance direction) in respect of more than one education and care service operated by the approved provider; 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 (f) the approved provider purported to transfer or receive a transfer of an approved education and care service without the consent of the Regulatory Authority; or (g) the approved provider has not paid any outstanding prescribed fees.
The appellant submitted that there were five reasons why the proper construction of s 31 (e) is that it is engaged by a breach of the condition of provider approval imposed by s 19 (2).
First, the plain and ordinary meaning "condition of the provider approval" in s 31 (e) applied to pick up the condition imposed by s 19 (2) and there was no basis to restrict the meaning to conditions imposed by s 19 (1) or otherwise exclude the s 19 (2) condition from the operation of s 31 (e).
Second, the Tribunal's construction in Early Childhood would appear to render s 19 (2) otiose. This was because it was difficult to see what substantive consequence could arise from a failure to comply with the statutory condition imposed by s 19 (2). The respondent's response to this argument is to say that the s 19 (2) condition applies to suspension but not to cancellation.
Thirdly, the context and general purpose and policy of s 31 is to identify classes of matters which permit (but do not require) cancellation of a provider approval. It is consistent to construe s 19 (2) as ensuring that compliance with the National Law was a matter which may, without more, justify the Secretary taking such regulatory action.
Fourth, s 31 (d) is not rendered otiose by a construction of s 31 (e) which extends to failure to comply with the statutory condition in s 19 (2). It is entirely possible to envisage a circumstance in which s 31 (d) is engaged but s 31 (e) is not. This is because s 31 (d) applies where the approved provider has been found guilty of an offence under the National Law as applying in any participating jurisdiction. It is clear that where the words "this Law" alone are used (as in s 19 (2)) those words refer to the Children (Education and Care Services) National Law (NSW), adopted as a law of New South Wales by s4 of the Children (Education and Care Services National Law Application) Act 2010 (NSW), and not to the analogous laws of the other States and Territories. The addition in s 31 (d) of the words "as applying in any participating jurisdiction" was, clearly, intended to extend s 31 (d) to guilt for offences under the equivalent or corresponding legislation in other States and Territories: see the definition of "participating jurisdiction" in s 5 (1) and also s 5 (6).
Fifthly, the fact that more than one ground for cancellation of a provider approval is engaged in a given case is not surprising. Several grounds other than s 31 (e) will overlap with each other in some cases. It is consistent with the statutory scheme to accept that there may be multiple grounds engaged simultaneously, providing additional and cumulative support to a decision to cancel a provider approval.
We agree that s 31 (d) applies to offences of both the National Law and of the equivalent or corresponding laws to that of the National Law in other States and Territories, whereas s 19 (2) prescribes a condition that is confined to compliance with the National Law.
The following provisions of the National Law are sufficient to bear this out: 2 Commencement This Law commences in a participating jurisdiction as provided under the Act of that jurisdiction that applies this Law as a law of that jurisdiction. 5 Definitions (1) In this Law - ….. participating jurisdiction means a State or Territory in which - (a) this Law applies as a Law of the State or Territory; or (b) a law that substantially corresponds to the provisions of this Law has been enacted; ….. provider approval means a provider approval - (a) granted under Part 2 of this Law or this Law as applying in another participating jurisdiction; and (b) as amended under this Law or this Law as applying in another participating jurisdiction - but does not include a provider approval that has been cancelled; (6) In this Law, a reference to this Law as applying in a jurisdiction includes a reference to a law that substantially corresponds to this Law enacted in a jurisdiction. ….. 7 Single national entity (1) It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of other participating jurisdictions, has the effect that an entity established by this Law is one single national entity, with functions conferred by this Law as so applied.
Furthermore, findings of guilt in respect of particular types of offences under laws in other States and Territories, as well as laws of NSW, are the subject of both s 31 (c) and (d). In these cases, a finding of guilt is the trigger for a potential exercise of the cancellation power. That gives utility to s 31 (d) in circumstances where s 31 (e) applies to a breach of the condition in s 19 (2). If prosecution is the chosen course and this results in a finding of guilt there can be no dispute that a condition for the exercise of the power to cancel has occurred. On the other hand, if a prosecution is not pursued (a step that carries the burden of proof beyond reasonable doubt) but cancellation of provider approval is, then the Tribunal will need to be satisfied on the material before it that a relevant breach has occurred. In this respect, it can be seen that each of s 31 (d) and s 31 (e) are separate grounds for cancellation with a differing scope for operation.
We do not agree with the respondent that to construe s 31 (e) in the way it contends is more harmonious with the text of the statute and consistent with the objects. Nothing in the language of s 31 provides any support for confining s 31 (e) to the conditions in s 19 (1), namely those prescribed in the Regulations or those determined by the Secretary. If this was the intention one would have expected it to have been specified in s 31 (e). On the contrary, the language in s 31 (e) is unconstrained and, plainly, applies to the condition imposed by s 19 (2). Furthermore, no rationale emerges for confining s 31 (e) to the conditions in s 19 (1)-the latter conditions could be expected to range in their nature and there is no reason why a breach of those conditions should be seen as having greater significance than a breach of the condition in s 19 (2). Yet further, no rationale emerges for an intention that a breach of the s 19 (2) condition should be excluded as a ground for cancellation despite the fact that it is a condition of the provider approval.
Accordingly, we agree with the appellant's submissions about the construction of s 31 (e). We reject the respondent's contention that the Secretary had no power to cancel the provider approval in the circumstances of this case.

[15]

Grounds 5, 6 and 11, failure to deal with the appellant's case-submissions

The appellant's submissions concerning Grounds 5, 6 and 11 of the appeal included the following: 1. In the context of review proceedings the Tribunal was required to consider and respond to allegations which have been squarely raised and seriously advanced by the Secretary: Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [170]-[175]; see also D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 per Basten JA at [230]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47]. Otherwise, there is a constructive failure to exercise jurisdiction. We note that these contentions are consistent with the decision of Gummow and Callinan JJ (Hayne agreeing at [95]) in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]; 77 ALJR 1088. 2. The Tribunal failed to address the alleged breaches by reference to the Breaches Schedule, including the implicit admissions by the respondent and other responses from it set out in the schedule, in circumstances where both parties proceeded on the basis that this was the central document from which to identify the allegations, the issues arising and the evidence of the parties (or lack thereof) relied upon. 3. Only a few of the allegations of breaches were specifically addressed, the reasons do not disclose the basis upon which it came to address those and not others, and the admitted breaches and their significance were not addressed. 4. The Tribunal failed to resolve many of the allegations of breaches which the Secretary had contended were particularly serious, despite probative evidence and an absence of any probative evidence from the respondent. One clear illustration of this was the statement from the Tribunal in [84] (set out above) in respect of an allegation about access to chemicals and medication that the factual matters arising were unable to be resolved in the proceedings. 5. If the Tribunal took the approach that it did because it was of the view that it was necessary for the Secretary to establish all the breaches then that was a plain error of law. Section 31 (e) of the National Law is clear-it is engaged where the approved provider has breached a condition of the provider approval, which occurs where the approved provider breaches the National Law and/or Regulations. 6. The Tribunal failed to address the Secretary's contentions about the nature of the breaches and why they warranted cancellation (referred to in paragraph 24 above).
The respondent's submissions about these grounds included: 1. The Tribunal did recognise and consider admitted breaches but, having regard to all the evidence, it concluded that any such breaches were insufficient to warrant cancellation. 2. The Tribunal "expressly mentioned" those alleged breaches that are "of most concern to the Tribunal", being those arising in respect of the Show Cause Notice (at [60] of the reasons), those arising from the September 2019 visits (at [61] and onwards) and those arising from the February 2020 visits (at [76] and onwards). The Tribunal "expressly addressed" the more serious allegations being those concerning chemicals and medication, access to knives, unsecured glass and animal faeces (at [83] and onwards). 3. The Tribunal rightly focused on the most serious alleged breaches (at [83] and onwards). 4. It was not necessary for the Tribunal to address every piece of evidence and every submission and issue. Latitude is afforded to an administrative decision maker in the manner in which they express themselves. It was appropriate for the Tribunal to proceed with a generalised comment about the alleged breaches as a whole and to then deal with those which it viewed as most serious. 5. Given the extensive list of allegations it was not incumbent on the Tribunal to mention every allegation, or even those that the Secretary contended were the most serious. The Tribunal appropriately sought to dispose of the proceedings in a holistic and comprehensible way, as opposed to treating the list of allegations like a checklist. 6. It was not necessary for the Tribunal to engage with the Secretary's submissions about the nature of the breaches and why they justified cancellation in a direct fashion. Either the Tribunal did not accept the breaches at all or, in any event, did not consider the breaches significant.

[16]

Ground 13, inadequate reasons-submissions

The appellant's submissions concerning Ground 13 included the following: 1. Section 62 (3) of the NCAT Act supplied important guidance as to what should be set out by the Tribunal in reasons which it chooses to give them even without a request for reasons pursuant to s 62 (2): NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578 per Bell P at [53]-[54]. 2. Whilst reasons need not refer to every piece of evidence or submissions, nevertheless, they must do justice to the issues posed by the parties' cases and enable the parties to identify the basis of the decision and the extent to which their arguments had been understood and accepted: Beale v Government Insurance Office (NSW) (1997) 48 NSW LR 430 at 442-443; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]. 3. Bald conclusionary statements should be eschewed: Pollard at [64]. 4. Where it is apparent from a judgement that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgement for rejecting it, it is apparent that the process of fact-finding miscarried: Pollard at [66]. 5. The Tribunal failed to give adequate reasons in four respects. First, the Tribunal gave bald conclusionary statements for its key conclusions which were not supported by any reasoning or intermediate conclusions as to the evidence upon which it relied. Second, with regard to several material and contested factual matters, the Tribunal failed to give reasons as to how it came to accept the evidence of the respondent over that of the appellant's evidence. Thirdly, the Tribunal failed to refer to relevant evidence that was critical to the determination of the matter before it. Fourthly, the Tribunal failed to set out its reasons for coming to certain conclusions of fact and law. Illustrations of these deficiencies were outlined.
The respondent's submissions concerning Ground 13 included the following: 1. The appellant's submissions wrongly raise the standard required of an administrative decision maker with respect to the provision of adequate reasons to be the equivalent of a Chapter III Court. In this respect, the respondent pointed to what was said by Ward JA in Orr about the content of reasons required of the Tribunal under any implied statutory obligation or any common law obligation, namely that it should not be assumed that it should mirror that required of a court: at [114]. 2. The Tribunal was not required to deal with the Breaches Schedule as if it were a pleading. It was important to take account of the provisions in the NCAT Act concerning the lack of formality with respect to the manner in which the Tribunal is to determine proceedings, including s 38 of the NCAT Act. 3. The test was whether the reasons meet the minimum acceptable standard: per Bell P in Orr at [66]. 4. When properly approached, including with regard to the reasons as a whole and read beneficially, the reasons were sufficient. They are intelligible and disclose why the Tribunal arrived at its decision. Having looked at the totality of the material before it, it is obvious that the Tribunal did not believe the material before it was adequate to cancel the provider approval. 5. Mr Condylis submitted that if the problem with the decision was inadequate reasons then the Appeal Panel should give a direction, pursuant to s 81 (1) of the NCAT Act, for the Tribunal to supply better reasons.

[17]

Ground 13, inadequate reasons-consideration

We deal, first, with Ground 13.
We must assess whether the reasons meet the minimum acceptable standard rather than the optimal level of detail: per Bell P in Orr at [66].
The reasons need not be elaborate, the basis for the decision should be made apparent, and the features required for reasons (where requested) set out in s 62 (3) of the NCAT Act provide guidance as to the detail to be supplied in the present case: see at [71] and [74] per Bell P in Orr.
We have also had regard to the factors that Mr Condylis no doubt had in mind when he said we must read the reasons beneficially, namely what was set out in [77] of the judgement of Bell P in Orr : These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291.
We recognise the scale of the task that the Tribunal confronted, however, in our opinion, this is clear case where the reasons do not meet the minimum acceptable standard.
Following upon our earlier analysis of the reasons (paragraphs 49 to 60 above), the reasons did not explain the basis for the broad conclusion that the evidence did not lead the Tribunal to be comfortably satisfied that the multiple breaches alleged had been established: at [99] and [109]. If this was a conclusion that not all of the breaches were established, although some were (see paragraph 57 above), as we think it was, the Tribunal did not identify which breaches were established and which were not and explain the reasoning process which led to such conclusions. It did not identify in any comprehensive way the issues that arose. Instead, it discussed some issues without identifying why these and not others were selected for consideration. It did not deal with the evidence about each of the alleged breaches or explain why it was unnecessary to do so with respect to each alleged breach. It did not explain why the documentary evidence concerning the breaches adduced by the appellant compared with such answering material as there was from the respondent was not sufficient to establish the breaches. The like deficiencies exist If the decision was that none of the breaches were established.
The reasons did not explain the basis for the broad conclusion that if there were breaches they were insufficient to warrant cancellation of the provider approval: at [102] and [109] and the associated broad conclusions in [71] and [88]. The reasons did not identify which breaches were assumed and explain the link between these and insufficiency to warrant cancellation. They did not explain how assumed or alleged breaches were said to have been adequately addressed or rectified or why, despite having been rectified, they did not reveal the systemic and cultural problem advanced by the appellant where this was a recurring issue.
The reasons did not explain the basis for the decision to impose conditions on the provider approval contained in the Tribunal orders. There are no findings or conclusions which relate to this decision or explanations linking relevant findings or conclusions with those orders.
The reasons did not explain the basis for the Tribunal's conclusions that it was unable to resolve conflicts in the evidence: at [79] and [84].
These inadequacies are sufficient to lead us to the conclusion that the decision must be set aside.
Requiring the Tribunal to now provide adequate reasons is not the remedy for this problem. The Tribunal's decision is fundamentally flawed because of the deficiency of reasons and it cannot stand. Furthermore, the absence of reasons may mask material error of both law and fact and the decision is unreliable.

[18]

Grounds 5,6 and 11-failure to deal with the appellant's case-consideration

Furthermore, the nature and scope of the deficiency of reasons has led us to conclude that the Tribunal erred in law by failing to deal with the essence of the appellant's case. We now turn to that issue.
The appellant's case was founded upon the seriousness, extent, location and timing of alleged breaches but the reasons disclose that the Tribunal did not grapple with a case of this nature.
It did not identify in any comprehensive way the issues that arose. It did not explain why some issues and not others were dealt with. It did not address the evidence concerning each alleged breach, other than to refer to where the evidence was to be found, or otherwise provide some reason for not doing so - for example, by a conclusion there was a class of alleged breaches that were so trivial they could not be material in any way or a conclusion that a class of alleged breaches could be disregarded because of a common deficiency in the evidence about them.
The Tribunal did not follow the path set by the Breaches Schedule, despite the central importance of that document to the appellant's case, the respondent's adoption of its significance and the Tribunal's indication in closing submissions that it was going to have to go through the response in the Breaches Schedule to each alleged breach (transcript, page 298, line 16).
Without findings about the nature and extent of breaches the Tribunal could not sensibly address the questions whether the breaches had been rectified and even where rectified whether what had occurred disclosed a systemic failure by the respondent to meet its responsibilities.
The Tribunal made no factual findings as to whether or not the alleged breaches concerning risk of exposure to chemicals and medication, unsecured knives and unsecured glass had been established, which breaches were emphasised by the appellant as matters of serious concern: see, for example, at [75], [78]-[81] of Ms Hammoudi's affidavit. The Tribunal did not mention other alleged breaches of serious concern: at [83] of Ms Hammoudi's affidavit. It was not sufficient for the Tribunal to simply mention these breaches which the appellant identified as being of most serious concern, as submitted by the respondent.
In relation to the 17 April 2019 compliance visits, the Tribunal referred to the response from the respondent that some educators were not on the day of the visit providing care for children: at [60]. The specific situation concerning four named educators was then set out. It may be that these were just more specifics about the response from the respondent, rather than findings. If they were findings to the effect that these educators were not providing care on the day in question and from which it followed there could be no breaches, then there was no discussion of the evidence against such findings. These were disputed matters in respect of which the appellant relied upon contemporaneous notes of the visits that it said were indicative that the educators were working and that hazards were continuing in nature (oral submissions, transcript pages 287-293 and 298).
In relation to alleged breaches about a lack of risk assessments the Tribunal referred to assertions by the respondent that some educators suffered from language difficulties from which it seems it was contended that the evidence against them was unreliable: at [62]. However, no findings were made about this and the competing material before the Tribunal on the issue was not assessed, nor was any reference made to the evidence from Ms McGarity.

[20]

Ground 1, failure to apply the correct standard of fact-finding

Relying, particularly, on the decisions in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 and Greyhound Racing Authority v Bragg [2003] NSWCA 388, the Tribunal concluded that it was appropriate that it should be "comfortably satisfied" that the evidence establishes the facts in issue concerning the alleged breaches, according to the "Briginshaw concepts": at [96]-[98].
The appellant submitted that the Tribunal misunderstood and misapplied the Briginshaw test in two ways. It said that neither party contended that it should apply a "comfortably satisfied" test.
First, the Tribunal failed to properly apply the underlying logic of the principle in Briginshaw because it failed to appreciate that the allegations of breaches were not allegations at the required level of serious misconduct such as dishonesty, fraud or criminal conduct. It submitted that the alleged conduct of the respondent, in essence, a failure of oversight which was outside the realm of the Briginshaw test.
Secondly, the Tribunal applied a more stringent onus of proof than was appropriate given the processes of the Tribunal, particularly the procedural requirements in the NCAT Act that it act with as little formality as the circumstances of the case permit, without regard to technicalities or legal forms and that it facilitate the just, quick and cheap resolution of the real issues in the proceedings: ss 36 and 38 of the NCAT Act.
The respondent submitted that the Tribunal did not err in the approach it took. It was available on the authorities and it was a sensible and reasonable approach in the circumstances.
We agree with the respondent that the Tribunal did not err in this regard.
We apply what was said by Leeming JA in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 (Gleeson JA agreeing at [37]) (Bronze Wing), namely: 126. It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate "must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence". However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]-[40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]-[30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]-[122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted] 127. In those circumstances, his Honour's reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.
We note the Tribunal's recent application of this approach in Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103 (Mikhail) at [25]-[26] where it said: 25. The onus of proof is that of the applicant, the HCCC. The Tribunal is not bound by rules in respect of the admissibility of evidence (see cl 2 of Sch 5D, National Law). Strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 per Leeming JA at [127]; Gleeson JA at [37] agreeing. In Sullivan v Civil Aviation Authority [2014] 226 FCR 555 the Full Federal Court said there is no principle that an administrative tribunal is bound to apply the Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) standard to fact-finding which is material to its reasoning process where those findings are grave or serious. Rather, the Tribunal must inform itself "by reference to the evidence or other materials which properly supports the seriousness of the findings being made and the seriousness of those findings upon a party" (at [106]). 26. While we are not bound to adopt the approach set out in Briginshaw, or in s 140 of the Evidence Act 1995 (NSW), that general approach may be justified. When deciding whether the evidence is sufficient to meet the civil standard of proof, the Tribunal will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding. In the recent decision of Gautam v Health Care Complaints Commission [2021] NSWCA 85, the Court of Appeal specifically referred to the Briginshaw test, and the wording of "comfortably satisfied", in the context of health practitioner disciplinary proceedings and adopted that test as correct (per Payne JA at [89]; Leeming JA at [1] and Simpson AJA at [118] agreeing). We apply this test in making our findings in the disciplinary application before us.
What was said by the Tribunal in Mikhail accords with the often cited remarks of Dixon CJ in Briginshaw as follows: … But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…: (1938) 60 CLR at 361 to 362.
In the present case, the Tribunal recognised it was not bound by the rules of evidence and that it should approach its determination by reference to the procedural requirements in ss 36 and 38: at [35]-[37].
The Tribunal said that neither party in the proceedings bore an onus of proof: at [96]. On appeal, no party contended that this was not correct or that, despite having said this, the Tribunal, incorrectly, proceeded on the basis that the appellant did bear the onus of proof.
With the alteration that no party bore an onus of proof, in our opinion, the Tribunal's adoption of the "comfortably satisfied" test complied with these authorities (Bronze Wing was listed amongst the cases cited, although it was not referred to in the reasons).
In our opinion, the Tribunal was correct to treat the allegations as involving a level of seriousness of conduct and gravity of consequence such as to attract the test that it applied. In this regard, the serious nature of the conduct alleged should be approached by recognising that the essence of the appellant's case was that the conduct of the respondent involved a systemic failure to carry out its oversight type obligations designed to avoid harm to children. Furthermore, the consequence to the respondent of such a conclusion, namely cancellation of provider approval, was grave.
Accordingly, we disagree with the appellant's submissions.
In his oral submissions, Mr Emmett SC put the question that if the appellant's evidence in this case was not enough then what would be enough, by which we took him to be suggesting that if the detailed documentary evidence of the appellant consisting of authoritative and contemporaneous records and photographs of compliance visits was not enough then the requirements of proof in proceedings of this nature became too demanding.
However, as we see it, this is an issue for the proper application of the "comfortably satisfied" test, rather than the correctness of the test itself.

[22]

Grounds 8 and 14

Ground 8 of the appeal was that the Tribunal erred by failing to properly apply Regulation 160 (3) (b) of the Regulations in respect of the requirements that an enrolment form must include details in respect of each known parent of a child. We have not dealt with this ground because a breach of this regulation is not specified in Annexure B and the Breaches Schedule.
Ground 14 is as follows: The Tribunal erred at law to the extent that the Tribunal's orders impose conditions on the respondent's provider approval (as opposed to imposing a condition in the exercise of the Tribunal power under s 58 of the [NCAT Act]). It is beyond the jurisdiction of the Tribunal to impose conditions on a provider approval as part of proceedings for review of a decision to cancel a provider approval under s 33 of the National law.
As appears from orders 1 and 2 made by the Tribunal and [113] of the reasons, the conditions were imposed by an order pursuant to s 58 of the NCAT Act that the provider approval be amended so as to make provision for the conditions.
In written submissions the Secretary contends that the error was that the Tribunal made an order to amend the provider approval itself. It submitted that if there was power to amend it was apparently pursuant to s 23 of the National Law but no party sought an order to that effect and the Tribunal did not raise the possibility of making an order of this kind. It submitted that it was accepted that the Tribunal could make an order on conditions pursuant to s 58 of the NCAT Act (indeed that was the Secretary's fallback position in the proceedings) but that was not what the Tribunal did-for example, the Tribunal did not order that, subject to particular conditions occurring, the cancellation would be set aside.
In written submissions the respondent submitted that if the appellant was correct about this then the appropriate way to deal with the issue was to re- draft the order.
In oral submissions, in response to debate with the Appeal Panel as to why such an amendment could not be ordered by the Tribunal pursuant to a combination of s 193 (3) and s 23 of the National Law, Mr Emmett SC submitted that it was not clear that s 23 was available to the Tribunal. We were also referred to the view, briefly expressed, by the Tribunal in Kids Belong Family Day Care Pty Ltd v Department of Education [2021] NSWCATAD 112 at [122] that it could not be inferred from the express words of s 193 that the Tribunal was vested with power to make a decision to impose or amend a condition on a provider approval.
Not only is it unnecessary for us to determine the merits of Ground 14, we also think it is undesirable for us to do so in circumstances where this point concerning Tribunal power was not fully argued before us.

[24]

Orders

As we have already said, the parties accept that if we allow the appeal then the proceedings must be remitted to a differently constituted Tribunal for redetermination. The respondent submits that if this is the outcome of the appeal then provision should be made for the parties to file and serve updated evidence. The appellant submits that the question whether any further evidence should be permitted should be considered by the Tribunal in the remitted proceedings. We think the latter course is the appropriate one, although, because of the prospect of a fresh exercise of the discretionary cancellation, there would appear to be potential scope for the parties to provide additional evidence.
At the hearing of the appeal, Mr Emmett SC submitted that if we were to allow the appeal, set aside the Tribunal's orders (which set aside the cancellation decision) and remit the proceedings for redetermination, it would follow that the stay orders made by the Tribunal on 6 February 2020 with respect to the Secretary's decision to cancel should be restored pending the redetermination. Mr Condylis took no issue with that position.
We agree with that course, although we have adjusted those stay orders to take account of subsequent events, in particular, it would appear that the stay order for suspension of particular educators has been overtaken by the Tribunal's condition for these educators to be terminated. In case any issue arises concerning these stay orders we have made provision for liberty to the parties to apply in respect of them.
Accordingly, for the above reasons we make the following orders: 1. The appeal is allowed. 2. The orders made by the Tribunal on 14 October 2020 are set aside. 3. The proceedings are remitted to a differently constituted Tribunal for redetermination based upon the evidence already adduced to the Tribunal and such further evidence, if any, as the Tribunal may allow. 4. The decision made by the delegate of the appellant on 19 December 2019 to cancel the respondent's provider approval is stayed until the redetermination of the proceedings by the Tribunal or further order on the following conditions: 1. The respondent is prohibited from accepting any new enrolments in its education and care service. 2. The respondent is prohibited from engaging or registering: 1. any new educators; or 2. previously engaged or registered educators (including Marie Sarkis, Solange Loki Samba, Ouahiba Bougharga and Afaf El Ajouz). 1. Liberty to apply for a variation of the stay order in order 4 within 14 days of the publication of these reasons.

At a glance

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Judgment (25 paragraphs)

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