South Asian Australian Association v Secretary, Department of Education - [2024] NSWCATAD 272 - NSWCATAD 2024 case summary — Zoe

NSWNSWCATAD

South Asian Australian Association v Secretary, Department of Education

[2024] NSWCATAD 272

NCAT Administrative and Equal Opportunity|2024-08-14

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Court

NCAT Administrative and Equal Opportunity

Decision date

2024-08-14

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Introduction

By an application filed with the Tribunal on 11 March 2024, the applicant sought review by the Tribunal of a decision made by the respondent to refuse an application for service approval of a proposed education service.
The applicant organisation, the South Asian Australian Association (SAAA) made an application for service approval of a mobile preschool education and care service that was proposed to be operated two days per week from 9am to 4.30 pm based at a community hall.
On 25 August 2023, a delegate of the respondent notified the applicant that the application for service approval had been refused. This was because the delegate was "not satisfied that the proposed service fits the criteria for the mobile service model" (referring to the definition in s 4(1)(a) of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) (Supplementary Provisions Act)). The delegate stated that mobile services tend "to operate in regional or remote areas where centre based services are not available".
The applicant sought internal review of the refusal decision on 10 September 2023. The original application had included a venue management plan and a site visit was conducted by officers of the respondent on 22 December 2023. In a report of that visit, the officers raised a number of concerns and recommended that the respondent should not grant service approval to the applicant.
An updated venue management plan was submitted on 15 January 2024, following the site visit.
On 9 February 2024, a delegate of the respondent conducted the internal review. While the delegate found that the service did meet the criteria for a mobile education and care service, the delegate refused the application on two bases: 1. First, the delegate found in accordance with s 49(1)(a) of the Children (Education and Care Services) National Law (NSW) (the National Law), the Regulatory Authority was required to refuse the applicable as it found that the proposed service would constitute an unacceptable risk to the safety, health and wellbeing of the children who would be educated there; 2. Second, the delegate was not satisfied (referring to s 49(2) of the National Law) that the applicant was capable of operating the service in a way that would meet the statutory requirements of the regulatory framework (outlined below).

[2]

Legislative Framework

The National Law implements a uniform national scheme for the regulation of education and care services for children. It applies as a law of NSW pursuant to s 4 of the Children (Education and Care Services National Law Application) Act 2010 (NSW) (the Application Act).
The guiding principles and objectives of the National Law are set out in s 3 as follows: 3 Objectives and guiding principles (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children. (2) The objectives of the national education and care services quality framework are - (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows - (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
By s 4, the respondent (the Regulatory Authority is the Secretary: Department of Education - see Application Act, s 9) and the Tribunal, exercising its merits review function (ie, standing in the shoes of the decision maker), are required to have regard to those objectives and principles.
An education and care service is defined in s 5 of the National Law. That provision also excludes certain types of service from being education and care service under the National Law. Those exclusions include, by s 5(1)(h): "a service of a prescribed class". This requires consideration of the Education and Care Services National Regulations 2011 (NSW) (National Regulations). Of relevance here is cl 5(2)(h) which excludes from the definition "a service providing education and care primarily to children preschool age or under that transports its equipment and materials or staff to one or more locations on each occasion that the service is provided". A note to that clause states "this form of care is commonly called a mobile service".
The Supplementary Provisions Act regulates certain State regulated education and care services (see s 4) that are not subject to the National Law (see also s 4(2) and s 4(3)). By s 4(1)(a) of the Supplementary Provisions Act, a mobile education and care service is a "State regulated education and care service" for the purposes of that Act (and is not an education and care service under the National Law: s 4(3)(a)).
Section 17 of the Supplementary Provisions Act applies the National Law to State regulated education and care services as if they were education and care services within the meaning of the National Law, subject to any modifications provided for, by or under the Supplementary Provisions Act (see s 17(b) of the Supplementary Provisions Act). Section 17(c) of that Act provides that in that context, "the National Law may be referred to as the National Law Alignment Provisions".
Another relevant component of the regulatory scheme is the National Education and Care Services Quality Framework (also referred to in s 5 of the National Law as the National Quality Framework). By s 5 of the National Law, the National Quality Framework is comprised of the National Law, the National Regulations, the National Quality Standard, and the prescribed rating system. The National Quality Standard is set out in the schedule to the National Regulations, and includes a number of specified quality areas, standards and elements: see National Law, s 5(1) and National Regulations, Reg 8 and Schedule 1.
Section 8(1) of the Supplementary Provisions Act makes it an offence to provide a State regulated education and care service unless the provider is an approved provider in respect of that service and the service is an approved education and care service (see also s 8(2) and s 8(3), which provide for limited exceptions).
Part 2 of the National Law governs provider approvals while Part 3 governs service approvals. In the case of State regulated education and care services (such as the mobile service at issue in this case), s 11 of the Supplementary Provisions Act provides that the National Law alignment provisions provide for the grant of provider approvals and by s 13, the National Law alignment provisions provide for the grant of service approvals.
Section 49(1) of the National Law provides that the Regulatory Authority (the respondent: see in addition to s 9 of the Application Act, s 24(1) of the Supplementary Provisions Act) must refuse to grant a service approval if it is satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the service (s 49(1)(a)) or the applicant does not have a provider approval (s 49(1)(b)). The applicant in the present case has a provider approval under the National Law, which is taken to make it an approved provider under the Supplementary Provisions Act: see s 30 of that Act.
By s 49(2), the Regulatory Authority may refuse to grant a service approval on any other grounds prescribed in the National Regulations. Under reg 28(a) of the National Regulations, the Regulatory Authority may refuse to grant a service approval if it is not satisfied that the applicant is capable of operating the proposed service in a way that meets the requirements of the National Law, the National Regulations or the National Quality Standard.
The Regulatory Authority is required to have regard to certain factors set out in s 47(1) of the National Law: these include 1. the National Quality Framework; 2. … the suitability of the education and care service premises and the site and location of those premises for the operation of an education and care service; 3. the adequacy of the policies and procedures of the service; and … 1. (f) any other matter the Regulatory Authority thinks fit...
Chapter 4 of the National Regulations sets out some of the requirements for operating an education and care service. Among these, reg 168 of the National Regulations prescribes a range of matters upon which an approved provider must have policies and procedures in place, the adequacy of which fall to be considered in determining an application for service approval in accordance with s 47(l)(c) of the National Law.
The Children (Education and Care Services) Supplementary Provisions Regulation 2024 (Supplementary Provisions Regulation 2024) came into effect on 9 August 2024, replacing the Supplementary Provisions Regulation 2019, which had been relied upon by the respondent in its decision, and also in its written submissions provided to the Tribunal. By reg 15(1), if a mobile education and care service is to be provided on premises that do not comply with any of regs 80, 104-110 or 112-115 of the National Regulations (most of which impose requirements in respect of the physical environment at which services are provided) a "venue management plan" must be submitted to, and approved by, the Regulatory Authority. A "venue management plan" is defined in reg 15(4) as: ... a plan describing how the safety and well-being of children being educated at particular premises at which a mobile education and care service is being provided will be ensured despite the premises not complying with specified provisions of the [National Regulations].
By reg 15(2), the Regulatory Authority "must not grant a service approval for a mobile education and care service in relation to which a venue management plan is required unless it has approved a venue management plan". If the service has an approved venue management plan, it is, by reg 15(3)(a) "taken to comply with the provisions of the National Law Regulations specified in the venue management plan".

[3]

The review jurisdiction of the Tribunal

Part 8 of the National Law provides for the review of decisions made under it (and also under the National Law Alignment Provisions). By s 190(a) of the National Law, a decision to refuse to grant a service approval is a reviewable decision for internal review. Section s 191 provides for the process of internal review. By s 192, a decision made under s 191, ie, an internal review decision, is "a reviewable decision for external review". A person entitled to seek external review "may apply to the relevant tribunal or court", which, under s 8 of the National Law Application Act, is the Tribunal. On review, the Tribunal may (see s 193(3)) "confirm, amend or substitute another decision for that of the Regulatory Authority".
Also relevant is s 28(1)(a1) of the Community Services (Complaints, Review and Monitoring) Act 1993 (NSW). It provides that a person may apply to the Tribunal for a review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision that is "an externally reviewable decision under s 192 of the National Law Alignment Provisions (within the meaning of the … Supplementary Provisions Act)".
It follows that the internal review decision is reviewable by the Tribunal and is a decision to which the ADR Act applies. In determining the application for review, the Tribunal operates in accordance with s 63(1) of the ADR Act. That provision sets out the role of the Tribunal as being to decide what is the correct and preferable decision having regard to the material before it. That can include material that postdates the decision under review (see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). The Tribunal can exercise all of the functions of the person who made the decision: and in determining an application for review, it can affirm the decision; vary the decision; set the decision aside and substitute for it a different decision, or set the decision aside and remit it to the decision maker for reconsideration in accordance with any directions or recommendations of the Tribunal.

[4]

The internal review decision

While the Tribunal is not limited to considering only the correctness or otherwise of the reviewable decision, that decision provides a clear explanation of the basis of the respondent's position (also elaborated upon in submissions provided to the Tribunal by the respondent). After setting out a summary of the regulatory background, and a list of the matters that must be taken into consideration by decision-makers, as well as those that may be considered, the internal reviewer noted that, despite the preparation of a comprehensive risk assessment, she was concerned that the risks posed by the venue had not been adequately mitigated. These included the unsuitability of the proposed mobile venue and the inadequacy of some of the policies and procedures. As a result she was not satisfied that the applicant would have the ability to operate the service in compliance with the National Quality Framework.
The delegate also stated that as she had not approved the venue management plan, it followed from the requirements of clause 17(3) of the Supplementary Provisions Regulation (now clause 15(2) of the Supplementary Provisions Regulation 2024), that she could not approve the application for service approval.
The delegate acknowledged that the applicant was the holder of a provider approval and that criterion was met and was not in issue. However, the delegate noted that the venue management plan initially submitted by the applicant expressly indicated that the mobile venue did not comply with regulations 104, 109, 112 and 115 of the National Regulations. Following a site visit conducted by authorised officers on 22 December 2023, the applicant submitted a revised venue management plan that included some of the matters that had been omitted and which had been prepared by a security consultant.
These were not considered by the Hub Coordinator (the officer who undertook the site visit in December 2023) to be sufficient to address the risks that had been identified. Those matters included 1. The proposed mobile venue was on the corner of a busy street with a roundabout; 2. There was a low and climbable fence and a gate that could be easily opened by a young child; and 3. The non-exclusive nature of the outdoor space which was part of a community park.
While a number of strategies had been proposed to mitigate those risks, such as the hiring of a security guard and the use of a sectioned off area using movable cones, none of these was considered sufficient to ensure each child's safety or the provision of a quality environment for children.
A number of other concerns were identified. These included: 1. limited detail provided by the Emergency Management plan including how there would be adequate supervision when using maxi taxis to evacuate children; and 2. the limited number of toilets on the site, effectively one for 22 children as well as concerns about supervision of the children when one of them was using the toilet.
The delegate reiterated that the regulatory authority is unable to approve a service if it does not have an approved venue management plan (referring to the predecessor to what is now cl 15 of the Supplementary Provisions Regulation 2024).
Also found inadequate were a number of the policies and procedures that are required by the National Regulations to be in place. The delegate indicated that these included the matters listed in reg 168(2)(a)(i), (ii), (iii), (iv) and (v) dealing with health and safety, including matters related to diet; sun protection; water safety, first aid, sleep and rest; and a range of others under reg 168(2)(b) including but not limited to dealing with injuries and illness; emergency and evacuation; delivery of children to and from the centre; excursions and transportation; the provision of a child safe environment; staffing; governance and management; interactions with children and complaint handling.
After the applicant had been advised of these issues, it provided revised policies and procedures on 25 January 2024. The delegate found, in relation to those revised policies and procedures: 1. Reg 168(2)(a)(iii): water safety policy - no revised policy was provided; 2. Reg 168(2)(c): infectious diseases - this was found not to address cleaning and maintenance processes sufficiently, nor the provision of information to families. It also did not address evaluation of any occurrence of infectious disease; 3. Reg 168(2)(e): emergency and evacuation - there was no consideration of an assembly point and issues that might arise in inclement weather or if there are other risks, and no information as to communication with families; 4. Reg 168(2)(f): delivery of children to and collection of children from premises - no revised policy was provided; 5. Reg 168(2)(ga) - if the service transports or arranges transportation of children other than as part of an excursion - no revised policy was provided; 6. Reg 168(2)(gb): the safe arrival of children who travel between an education and care service and any other education or early childhood service - no revised policy was provided; 7. Reg 168(2)(i) - staffing, including a code of conduct for staff members, and determining the responsible person present at the service, and the participation of volunteers and students on practicum placements. The delegate considered that the document did not sufficiently address the action to be taken for a breach of the code of conduct. 8. Reg 168(2)(j): Interactions with children - No revised policy was provided; 9. Reg 168(2)(k): Enrolment and orientation: as there did not appear to be any changes to the policy first provided, the policy was still considered inadequate. 10. Reg 168(2)(l): Governance and management of the service, including confidentiality of records. The revised document did not sufficiently address self-assessment and quality improvement; how the service would ensure the health, safety and well-being of children; how educational and developmental needs would be met and record keeping and storage.
The reviewer went on to explain the reasons for her decision. Contrary to the finding of the primary decision maker, she accepted that the service meets the criteria for a mobile education and care service. But she found that the proposed service would "present an unacceptable risk to the safety, health and wellbeing of children and that the applicant is not capable of operating the service in accordance with the National Law, the National Regulations and the National Quality Framework", referring in particular to the inadequacy of some of the policies and procedures and the unsuitability of the venue.
The delegate then turned to consideration of the NQF and concluded that she was of the opinion that the objectives and guiding principles of the NQF may not be furthered by granting the application for service approval. That led the delegate to reject the application for service approval. It was from that decision that the applicant applied to the Tribunal for review.

[5]

Applicant's evidence and submissions

The matter was heard in person by the Tribunal on 14 August 2024. The applicant was represented by Ms Madhulika Roy, who gave unchallenged affidavit evidence and also gave oral evidence at the hearing. In her affidavit, Ms Roy described herself as a volunteer community language teacher in the SAAA of which she was one of the founding members and for which she has worked as a volunteer since 2015. She is also the public officer of the SAAA and is the principal of the SAAA Hindi school.
Also in evidence on behalf of the applicant were affidavits of Ms Rita Hinduja and of Mr Mritunday Kumar Singh, both of whom are officers of the SAAA. Neither of these witnesses was cross examined by the respondent though both attended the hearing.
The applicant provided three documents by way of submissions in support of the case: 1. An email dated 10 May 2024 was sent to the Crown Solicitor's Office (representing the respondent). It was submitted that there had been no consideration of the extensive risk management plan nor why access to the outdoor area cannot be considered a regular outing/excursion. There was also reference to the toilet issue and supervision. In relation to the policies and procedures, it was said: "Whilst our team acknowledges the gaps in the submitted document we consider that the reviewer has taken a punitive approach in determining the adequacy of the supplied document". It was also noted that the applicant had hired an external consultant who had commented that the level of detail "at this preliminary state seems unreasonable". As for the objectives of the NQF, it was acknowledged that the decision was attributed to the inability of SAAA to meet objective no 1, ie to "ensure the safety, health and wellbeing of children attending education and care services" but it was noted that the decision did not deal with the other five objectives. The applicant submitted, after stating that it could be argued that safety and well-being should be dealt with as separate factors, "SAAA strongly believes that excessive and narrow emphasis on safety is detrimental to the well-being of children". 2. In submissions filed by the applicant dated 11 July 2024, the applicant referred to affidavits filed on behalf of SAAA and stated that "it is still not clear what criteria is used for approving venue management plan for mobile services which operate from different venues such as community halls". It also sought any relevant documents for approved plans for two other identified mobile preschools and further information about the approval of those services. 3. On the day before the hearing (13 August 2024), the applicant provided a document headed "Applicant's summary of argument". In that document, the applicant reiterated that there are other services that operate from community halls. It was also stated that the applicant had hired a security consultant but this was deemed unsatisfactory "and the only rationale provided for the decision is that the risk management plan does not address risks posed to the children". The applicant noted that it was continuing to investigate services it considered similar to the one it was proposing. The applicant also contended that no consideration had been given to the fact that it was only a 2 day per week service and it was considered to be "very unfortunate that the respondent has solely used submitted policies and procedures documents to determine capacity of the applicant to deliver proposed service". After setting out the text of s 51(1) of the National Law, which deals with conditions on service approval and provides that such approval is granted subject to a condition that it is operated in a way that (a)"ensures the safety, health and wellbeing of the children … and (b), meets the educational and developmental needs of the children…" the applicant contended that it was "very unfortunate that the respondent has placed sole emphasis on safety and not acknowledged the significance of wellbeing and unique way of meeting the educational and developmental needs of the children in a cultural context." (original emphasis)

[6]

Respondent's evidence

Two officers of the respondent provided affidavit evidence in the proceedings and both were questioned by the applicant at the hearing. The person who made the internal review decision, Ms Dayna Greenfield, provided an affidavit, exhibited to which were a number of policies, most of which were made by the Australian Children's Education and Care Quality Authority (ACECQA), an organisation whose website notes that it "supports all governments and the education and care sector to realise the benefits of the National Quality Framework".
Ms Greenfield is the Manager, Legal Advice and Legislation, Early Childhood Education and Care Regulatory Authority within the respondent department. She described the purpose of her affidavit as being to provide further explanation about why she formed the view she did, specifically that the service would constitute an unacceptable risk to the safety, health and well-being of the children who would be educated and cared for by the Service, and that the Service would not be operated in a way that meets the requirements of eh National Law Alignment Provisions or the National Quality Standards.
Ms Sharna Bertolla (also known professionally as Sharna Morris), who also provided an affidavit, is a Hub Co-ordinator in the Statewide Operations Network of the Early Childhood Education and Care Regulatory Authority within the respondent department. She gave evidence of her role in assessing the application for service approval. That included being tasked with having her team conduct a site visit at both the proposed office location for the service, and the operating location (the community hall). She conducted that site visit on 22 December 2023 with a more senior officer. She did not assess the applicant's policies and procedures, other than to review the proposed venue management plan and emergency management plan.
She explained that is it possible, where a proposed service may fall short of all the requirements for registration, that this can be remedied by the approved provider after a site visit. But before she can recommend that a service be approved and it commence operation, it must fully comply with the National Law and National Regulations. In this case, it was her opinion that what she considered the inadequacies of the site "cannot be remedied through further work with the applicant. This is due to inherent risks associated with the Hall venue that the applicant has been unable to address".
In her affidavit, Ms Bertolla set out details of the correspondence with Ms Roy prior to and following the site visit. She also elaborated upon the matters identified as raising issues about the proposed service, some of which are detailed in the internal review decision. These included fencing that she considered did not meet the standard required by the National Regulations; inadequate (or no) dedicated outdoor space (cf reg 108 of the National Regulations); problems the site created for supervision of the children (which were not alleviated by the proposal to have a security guard); and issues about emergency management and safety, among others.
Both Ms Greenfield and Ms Bertolla were questioned by Ms Roy on behalf of the applicant in the course of the hearing. Much of the questioning focused on seeking explanations for the decision to refuse service approval.
Ms Bertolla was asked why she had not followed up on a range of other matters identified in her site visit summary/ report. She was specifically asked about the following paragraph in that summary: There were other matters that did not meet the requirements … [These are] physical issues with the premises that cannot be managed through a venue management plan as they present too high a risk to the children attending this location and will have a significant impact on the provision of a quality service should the venue be approved. Therefore, we have decided not to request further evidence from the provider relating to other matters in relation to our visit as we cannot support the application for this venue and saw no value in requesting the provider provide evidence in support of the other matters identified.
When asked by the applicant to elaborate, she stated that the respondent is a risk based regulator and applies a risk framework. In her professional opinion, safety is the most important thing, particularly for children who are vulnerable. It was the concern about safety that led to the decision not to follow up on all the other matters as none of those could alleviate the safety concerns.

[7]

Respondent's submissions

The respondent filed written submissions with the Tribunal on 17 June 2024. In those submissions, the respondent set out in some detail the background to the decision, including the reasons given by the delegate on internal review for affirming the decision to refuse the application. The respondent then outlined the statutory framework, placing emphasis on s 49(1) of the National Law which requires the respondent to refuse to grant a service approval if it is satisfied that it would constitute an unacceptable risk to the safety, health or well-being of children. The respondent referred also to s 49(2) by which the authority may refuse to grant a service approval if not satisfied that the service is capable of operating in a manner that conforms with the regulatory framework. A precondition for service approval for a mobile service of the kind in issue here is that the service has an approved venue management plan: without one, the authority "must not grant a service approval". After referring to the Tribunal's review jurisdiction, the respondent set out its grounds for submitting that the decision should be affirmed.
In relation to ground 1, the respondent submitted that the proposed service does not have an approved venue management plan, which is a statutory precondition to service approval (referring to reg 17 of the Supplementary Provisions Regulation, now reg 15 of the Supplementary Provisions Regulation 2024). That provision provides an alternative pathway by which approval for a mobile education and care service that does not comply with any of regs 80, 104-110 or 112-115 of the National Regulations (ie, the proposed premises do not comply with certain physical requirements otherwise applicable to all types of education and care services) can be obtained. Approval under the alternative pathway requires the respondent to have exercised its power to approve a venue management plan.
The respondent also submitted that the decision to approve a venue management plan is not reviewable by the Tribunal as it is not listed in either s 190 or s 192 of the National Law, nor prescribed as externally reviewable under the Supplementary Provisions Act.
As it was said to be common ground that there was no such approved plan, the respondent submitted that neither the respondent nor the tribunal upon review was able to grant a service approval. It followed, according to the respondent, that the decision under review must be confirmed.
In relation to ground 2, the respondent submitted that the ground arises only if ground one was rejected. By this ground it was contended that the decision had to be confirmed on the same basis as the internal reviewer's decision, specifically: 1. The Tribunal would be satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or well-being of children attending it, in which case it must refuse to grant service approval: s 49(1)(a) of the National Law; 2. alternatively, the Tribunal would not be satisfied that the applicant is capable of operating the proposed service in a way that meets the requirements of the National Quality Framework (which includes the National Law, the National Regulations and the National Quality Standard), in which case it may refuse to grant service approval, and should do so (cl 28(a) of the National Regulations).
The respondent noted that there was substantial overlap in each of these alternatives, as both involved assessment of the (hypothetical) risks that would arise should the service operate. However, each was qualitatively different: s 49(1)(a) requires the Tribunal to reach a positive state of satisfaction that there is an "unacceptable risk": the second depends upon the Tribunal not being satisfied of the applicant's capacity to operate the service in a compliant way (emphasis added by respondent). The evidence in each case was similar: it concerned what was said to be the unsuitability of the venue; and identified deficiencies in the policies and procedures that a service is required to have under reg 168 of the National Regulations.
In the remaining part of the respondent's submissions, the respondent summarised the evidence provided by Ms Greenfield and Ms Bertolla about the safety concerns identified with the venue, and the gaps and inadequacies in the required policies and procedures.
As for the suitability of the venue (see s 47(1)(b)) National Law), it was contended that some of the risks were inherent to the proposed venue with the consequence that they could not be remedied through further work, particularly because the applicant does not have exclusive control of that space., referring in particular to regs 103, 104(1); 108, 109, 115 and 168 of the National Regulations and to Ms Bertolla's affidavit.
In the context of what were submitted to be inadequacies in the policies and procedures, this was said to be referable to what is in Ms Greenfield's evidence (summarised above at [41]). The respondent contended that this inadequacy required the refusal of service approval as the Tribunal would be satisfied that without those policies in place, the operation of the service would constitute an unacceptable risk to the safety, health or wellbeing of children. In addition, the absence of policies adequate to ensure the safety, health and wellbeing of children may also result in the Tribunal, standing in the shoes of the respondent, not being satisfied that the applicant is capable of operating the proposed service in a way that meets the regulatory requirements (cf reg 28(a) of the National Regulations). This was said to be because a number of the policies and procedures required by reg 168(2) are expressly required to include measures for complying with other substantive regulatory provisions, and because it is implicit in the statutory scheme that policies and procedures a service is required to have must be adequate to ensure the safety, health and wellbeing of children (referring to the NQF and s 3(2)(a) of the National Law).
The respondent summarised those aspects of the policies that were considered deficient, inadequate or simply absent and submitted that in those circumstances the decision should be confirmed.
On 26 July 2024, the respondent provided a two page summary of argument. The respondent noted that the applicant had not addressed Ground One in its submissions (the absence of an approved venue management plan, which is a statutory precondition of approval) and thus the Tribunal was required to confirm the decision. This was because it was common ground that the proposed service did not comply with regs 104, 108, 109, 112 and 115 of the National Regulations such that a venue management plan was required (referring to documents in evidence provided by the applicant). If the Tribunal were to go on consider Ground Two (which it submitted, arises only if the Tribunal rejects Ground One), it ought also find that it was satisfied the service would constitute an unacceptable risk to the safety, health or well-being of the children attending it and thus must refuse to grant approval (s 49(1)(a) of the National Law). It was also submitted that the Tribunal would not be satisfied that the applicant is capable of operating the service in a way that meets the requirements of the National Quality Framework in which case it may and should refuse to grant service approval.

[8]

Consideration

The regulatory scheme governing this application has been the subject of a number of decisions of this Tribunal. In Global Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 248, the Tribunal stated at [147]-[149]: [147] … [T]his is a protective jurisdiction where the interests and welfare and well-being of children are paramount. [148] In CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 [CTG] at paragraph 58 the Tribunal observed the following about how the National law should be applied when competing interests arose. …. The system therefore is not designed to operate in order to facilitate the business variables of operators but clearly is designed with some flexibility to take these matters into account. It is therefore not a blunt bureaucratic instrument, but rather a regulatory scheme that have objects that go towards the provision of quality service in a somewhat protective environment. It is evident that the legislation should be applied and directed beneficially towards achieving the objects and guiding principles as set out in section 3. [149] … The regulatory and compliance regime operates in the context of the protective jurisdiction as set out by the objectives and guiding principles of the National Law in s 3.
In a number of decisions, the Tribunal has described the National Law as a law calling for "strict compliance": see Faaea v Secretary, Department of Education [2018] NSWCATAD 85 at [25] where the Tribunal referred to CTG at [45], citing Long Life Family Daycare v Director General Education Directorate [2016] ACAT 69). Similarly, in Montessori Stars Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 295 (Montessori Stars), the Tribunal stated at [40]: It should be observed that the National Law and the National Regulations require strict compliance by providers and educators: see 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22]; DPW v Secretary, Department of Education [2018] NSWCATAD 257 at [29]; Faaea v Secretary, Department of Education [2018] NSWCATAD 85 at [25].
And in Mother's Choice Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 194 the Tribunal, at [6], referring to the authorities cited in Montessori Stars, stated "The National Law imposes a large number of regulatory requirements and requires strict compliance".
The Tribunal agrees that it is apparent from the nature of the language used in the National Law, and the other aspects of the regulatory framework outlined by the Tribunal above, that strict compliance with all elements of the regulatory framework is required.
Ground One
Clause 15(1) of the Supplementary Provisions Regulation 2024 (cl 17 of the Supplementary Provisions Regulation 2019) provides that if a mobile education and care service is to be provided on premises that do not comply with any of regs 80, 104-110 or 112-115 of the National Regulations, a "venue management plan" must be submitted to, and approved by, the Regulatory Authority. A "venue management plan" is defined in cl 15(4) the text of which is set out above at [22]
By reg 15(2), the Regulatory Authority "must not grant a service approval for a mobile education and care service in relation to which a venue management plan is required unless it has approved a venue management plan".
As the respondent submitted, in this case, the applicant has acknowledged in the revised venue management plan submitted on 15 January 2024 that the premises do not comply with the identified parts of the National Regulations. Thus in order for the service to be approved, it would require there to be a venue management plan that has been approved by the Regulatory Authority. The applicant has made no challenge to the fact that there has not been a venue management plan approved.
On this basis, the respondent, and the Tribunal standing in the shoes of the respondent "must not grant a service approval": cl 15(2) of the Supplementary Provisions Regulation 2024. Thus, as the respondent submitted, that would be a sufficient basis upon which to confirm the decision. However, for abundant caution, the Tribunal considered it appropriate to determine Ground Two, notwithstanding the respondent's contention that Ground Two fell for consideration only if Ground One was determined in the applicant's favour.
Ground Two
Like Ground One, this ground fell to be determined on the applicant's own concession that the service could not be found to meet the various statutory exhortations that require an education and care service "to ensure the safety, health and wellbeing of children attending education and care services": see for example, National Law, s 3(2)(a); s 49(1)(a); s 51(1)(a); s 189. In its submissions dated 10 May 2024, the Applicant stated that "SAAA strongly believes that excessive and narrow emphasis on safety is detrimental to the well-being of children". And in the summary of argument provided to the Tribunal on 13 August 2024, the applicant submitted: that it was "very unfortunate that the respondent has placed sole emphasis on safety and not acknowledged the significance of wellbeing and unique way of meeting the educational and developmental needs of the children in a cultural context." (original emphasis).
A similar submission was made orally at the hearing. It is apparent that the applicant did not seek to challenge the respondent's submission that it (and the Tribunal exercising its merits review jurisdiction) were required to refuse to grant a service approval if "satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the education and care service": National Law s 49(1)(a)). In the absence of any real challenge to that proposition, and in light of the underlying requirement of strict compliance with the statutory scheme, the Tribunal must refuse to grant a service approval in view of the evidence before it which demonstrates ways in which the proposed service would constitute an unacceptable risk to children's safety.
The acknowledged existence of that risk, in combination with the inadequacies and gaps in the required policies and procedures (including those directed at risk management), also leads the Tribunal to find (see s 47(2)(a); s 49(2) of the National Law and reg 28(1)(a) of the National Regulations) that it is not satisfied that the applicant is capable of operating the proposed service in a way that meets the requirements of the National Law, the National Regulations or the National Quality Standard.
In light of the approach taken by the applicant, and the concessions made about the inability to meet the safety requirement, the Tribunal does not consider it necessary to consider each of the regulatory lacunae in the policies and procedures identified by Ms Greenfield in her evidence outlined above, and in the internal review decision.

[9]

Application to adduce further evidence

The applicant did not seek to provide any updated policy documents in the material that was submitted to the Tribunal prior to hearing. However, after the applicant had given oral evidence at the hearing, and in the course of questioning witnesses of the respondent, the applicant sought leave to adduce further evidence. She indicated that her husband (Mr Singh, who had also provided an affidavit) could prepare a document in which he could identify where in the material submitted by the applicant it had in fact met what was required by way of policies and procedures. The respondent objected to the applicant being granted leave to adduce any further evidence.
The Tribunal refused that request for a number of reasons. 1. First, the matter had been listed for hearing and had been the subject of case management directions for some considerable period of time. The applicant was at all times on notice that a key factor on which the respondent relied was the gaps or inadequacies in its policies and procedures documentation. 2. As recently as the day prior to the hearing, the applicant had provided a further submission for which no provision had been made in the case management directions. No objection was taken to that by the respondent. That additional submission did not require any postponement or adjournment of the hearing. By contrast, if the applicant were permitted to seek to address what was said to be the inadequacy or gaps in the policies and procedures provided (something that had not been challenged in any of the three submissions), that would necessarily require the hearing to be adjourned part heard and would delay the making of the decision. 3. In determining an application to adduce further evidence, particularly one that would delay completion of the hearing, the Tribunal must have regard to the guiding principle set out in s 36 of the Civil and Administrative Tribunal Act 2013 which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". In light of the applicant's apparent concession that it does not meet the criteria for approval (in particular, the mandatory requirements of ensuring children's safety), there would be no utility in providing the applicant with a further opportunity to address the issue of the policies and procedures. Put simply, even if the applicant could provide all the requisite policy and procedures documentation, that could not make a difference to the final decision if it remains the case that the applicant is unable to ensure the safety of the children that would be using the service.

South Asian Australian Association v Secretary, Department of Education

At a glance

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Decision date

Source

Judgment (12 paragraphs)

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Legislation Cited (7)

Cases Cited (10)

Cited By (1)