Transcon Holding Pty Ltd t/as Sydney Multicultural Child Care Services v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2017-08-09

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Shi v Migration Agents Registration Authority (2008) CLR 286 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 YJ v Chief Executive Officer, Work Cover Authority [2006] NSWADT 306 Category: Principal judgment Parties: Transcon Holding Pty Ltd trading as Sydney Multicultural Child Care Services (Applicant) Secretary of the Department of Education NSW (Respondent) Representation: Counsel: L Rogers (Applicant) H Sims (Respondent)

Solicitors: Linda Rogers Solicitor (Applicant) NSW Crown Solicitor's Office (Respondent) File Number(s): 2017/00140180 Publication restriction: None

Legislative background

The objectives and guiding principles of the National Law are in section 3: 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.
Section 4 provides how the functions under the National Law are to be exercised as follows: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.
The National Law provides under Part 3 for a natural person or company to operate an education and care service, which includes family day care services. The applicant in this matter is a company. An applicant must obtain service approval under Part 3 in order to operate an education and care service.
The Regulatory Authority is defined in section 5 to be: "Regulatory Authority" means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction...
Pursuant to section 24 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) references to Regulatory Authority in the National Law is a reference to the Regulatory Authority for this jurisdiction. Under section 9 of the Children (Education and Care Services National Law Application) Act 2010 (NSW), the Regulatory Authority for this jurisdiction (NSW) is the Director-General of the Department of Education and Communities, now known as the Secretary of the Department of Education.
The National Law provides a mechanism for the Regulatory Authority to suspend or cancel a service approval.
If the Regulatory Authority is considering the cancellation of the service approval a "show cause notice" must issue. In this matter a show cause notice was issued on 22 March 2017. The applicant provided a response to the show cause notice on 23 March 2017, received by the respondent on 28 March 2017.
After considering any written response to the show cause notice received within 30 days, the Regulatory Authority may cancel, suspend or decide not to cancel the approval. The decision is a discretionary decision. The decision is to take effect at the end of 14 days after the date of the decision or other period as specified by the Regulatory Authority.
A service approval is granted pursuant to section 48 of the National Law.
There are conditions which attach to the grant of a service approval as provided by section 51 of the National Law. The penalty for failure to comply is $50,000 in the case of a company such as the applicant in this matter. The provisions of section 51 of the National Law are as follows: 51 Conditions on service approval (1) A service approval is granted subject to the condition that the education and care service is operated in a way that - (a) ensures the safety, health and wellbeing of the children being educated and cared for by the service; and (b) meets the educational and developmental needs of the children being educated and cared for by the service. (2) A service approval for a family day care service is granted subject to the additional condition that the approved provider must ensure that- (a) sufficient persons are appointed as family day care co-ordinators to monitor and support the family day care educators engaged by or registered with the service; and (b) each family day care educator is adequately monitored and supported by a family day care co-ordinator. (3) A service approval is granted subject to a condition that the service must commence ongoing operation of the service within 6 months after the approval is granted unless the Regulatory Authority agrees to an extension of time. (4) A service approval is granted subject to a condition that the approved provider must hold the prescribed insurance in respect of the education and care service. (5) A service approval is granted subject to any other conditions prescribed in the national regulations or imposed by- (a) this Law; or (b) the Regulatory Authority. (6) A condition of a service approval does not apply to an associated children's service unless the condition is expressed to apply to that associated children's service. (7) A condition of a service approval may be expressed to apply solely to an associated children's service only if the Regulatory Authority has first consulted with the children's services regulator. (8) An approved provider must comply with the conditions of a service approval held by the approved provider. Penalty: $10 000, in the case of an individual. $50 000, in any other case.

Jurisdiction

In CTG v NSW Department of Education Early Childhood and Care Directorate [2017] NSWCATAD 60, Senior Member McAteer determined that the application before the Tribunal is in the review jurisdiction rather than as an external appeal. This decision was followed by the Senior Member in CVT v NSW Department of Education & Communities, Early Childhood Education & Care Directorate [2017] NSWCATAD 74. It was also my determination that these applications are heard in the review jurisdiction of the Tribunal and I have made that determination previously in CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132.
The respondent submitted in this matter that CTG v NSW Department of Education [2017] NSWCATAD 60, CVM v NSW Department of Education [2017] NSWCATAD 108, CVN v NSW Department of Education [2017] NSWCATAD 109, CVT v NSW Department of Education [2017] NSWCATAD 74 and CTZ v NSW Department of Education [2017] NSWCATAD 132 were wrongly decided in respect of the identified jurisdiction and the reference to the jurisdiction conferred by section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) is in error and that jurisdiction is conferred on the Tribunal under the general jurisdiction provision in s 29 of the Civil and Administrative Tribunal Act 2013 (NSW). The respondent does not dispute that CTG is correct in finding that the Tribunal's jurisdiction is not one in relation to an external appeal under s 31 of that Act. The National Law refers to "external review", not "external appeal". It is apparent that the Tribunal in CTG and in my decision in CTZ did not give consideration to s 29 of the Tribunal Act as a source of jurisdiction.
In Secretary, Department of Education v Joys Child Care Ltd [2017] NSWSC 749, Justice Parker acknowledged that there were two views about the statutory basis for the Tribunal's review power. The court in that matter did not need to reach any conclusion as to whether the Tribunal was exercising its jurisdiction under section 43 of the Civil and Administrative Tribunal Act or section 60 of the Administrative Decisions Review Act. Section 43 of the Civil and Administrative Tribunal Act is the equivalent stay provision to section 60 of the Administrative Decisions Review Act.
In DBU v Secretary, Department of Education [2017] NSWCATAD 257 (DBU) it was held by Senior Member Ransome at [22] that: In summary, while the National Law and associated legislation provide for review of some decisions with respect to child care services to be dealt with in the Tribunal's administrative review jurisdiction, that does not include the decision presently under review because it relates to a family day care service. That decision therefore falls for review within the Tribunal's residual general jurisdiction in s 29 of the Tribunal Act.
Because the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) (especially sections 4 and 17) applies to "State regulated education and care services" and family day care services are excluded from the definition, the provisions of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) do not apply to this application. For the reasons given by Senior Member Ransome in DBU I respectfully agree that the previous determinations as to the exercise of the Tribunal's jurisdiction as conferred by section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) is in error and were incorrectly decided in that respect and accept the submission of the respondent in this matter. It is noted that Senior Member Dr Lucy has also held that to be so in CYU v Secretary, Department of Education [2017] NSWCATAD 290. In accord with that reasoning then the power to grant a stay of the decision of the Regulatory Authority is found in section 43 of the Civil and Administrative Tribunal Act.
Section 192 of the National Law relevantly provides: 192 Reviewable decision-external review A reviewable decision for external review is - (a) a decision of the Regulatory Authority made under section 191 (other than a decision in relation to the issue of a compliance direction or a compliance notice); or (b) a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction - (i) to suspend a provider approval under section 27; or (ii) to cancel a provider approval under section 33; or (iii) to suspend a service approval under section 72; or (iv) to cancel a service approval under section 79 or 307; or (v) to suspend or cancel a supervisor certificate under section 125; or (vi) to direct the approved provider of a family day care service to suspend the care and education of children by a family day care educator; or (vii) to give a prohibition notice or to refuse to cancel a prohibition notice. Note: A person is not entitled to a review under this section in respect of a suspension or cancellation of a service approval if that suspension or cancellation relates only to an associated children's service. Any right of review would be under the children's services law.
The cancellation of a service approval under section 79 of the National Law is thus a reviewable decision for external review pursuant to section 192 (b) (iv) of the National Law.
Section 193 of the National Law provides: 193 Application for review of decision of the Regulatory Authority (1) A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision. (2) An application must be made within 30 days after the day on which the applicant is notified of the decision that is to be reviewed. (3) After hearing the matter, the relevant tribunal or court may - (a) confirm the decision of the Regulatory Authority; or (b) amend the decision of the Regulatory Authority; or (c) substitute another decision for the decision of the Regulatory Authority. (4) In determining any application under this section, the relevant tribunal or court may have regard to any decision under this Law as applying in another participating jurisdiction of a relevant tribunal or court of that jurisdiction.
In section 5 of the National Law the definition of relevant tribunal or court is: "relevant tribunal or court" , in relation to a participating jurisdiction, means the tribunal or court declared by a law of that jurisdiction to be the relevant tribunal or court for the purposes of this Law or a provision of this Law;
In section 8 of the Children (Education and Care Services National Law Application) Act 2010 the relevant Tribunal is declared: 8 Relevant tribunal or court For the purposes of the definition of "relevant tribunal or court" in section 5 of the Children (Education and Care Services) National Law (NSW) : (a) the District Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 181 of that Law, and (b) the Civil and Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Part 8 of that Law.
As Senior Member Ransome stated in DBU at [24]-[26]: [24] What then is the Tribunal's task on review in the present case? Under s 192 of the National Law the Tribunal is to conduct an "administrative review" of the decision made by the Regulatory Authority. That term is not defined. While the Tribunal Act sets out the practice and procedure to be followed by the Tribunal in its proceedings, it also is silent on what the Tribunal's task in its general jurisdiction with respect to an administrative review. [25] Consideration of the scope of an administrative review function arose most notably in the case of Drake v Minister for Immigration and Ethnic Affairs(1979) 24 ALR 577 where, in relation to the then newly established Commonwealth Administrative Appeals Tribunal (AAT), the Full Federal Court stated at 579 that the AAT's task was to reach "the correct or preferable decision" on the material before it. That description (and the similar formulation "correct and preferable") of a decision-maker's obligations when conducting administrative review has been repeated many times since, both in case law and in legislation. Indeed, under s 63 of the ADR Act in its administrative review jurisdiction, this Tribunal is tasked with making the "correct and preferable decision". [26] In my view, in conducting an administrative review in the exercise of its general jurisdiction under s 29 of the Tribunal Act, the Tribunal is required to perform essentially the same task as it would if the matter fell within its jurisdiction under s 30 of the Tribunal Act, that is, it is required to make the correct and preferable decision on the material before it. The High Court in the case of Shi v Migration Agents Registration Authority (2008) CLR 286 confirmed that administrative review is conducted at the time of the review on the material available to the Tribunal at the time of the review, which may include new or additional material that was not before the original decision-maker.
Therefore, the scheme of the legislation is that the Civil and Administrative Tribunal is the relevant tribunal to which an application may be made for external review of a decision of the Regulatory Authority under section 79 of the National Law. The powers given to the Tribunal are those in section 193 of the National Law. In addition the National Law provides at section 194 that the Act which establishes this Tribunal is not limited by the National Law. The Tribunal therefore is required to make the correct and preferable decision on the material before it.

The evidence relied upon in the hearing

The documents in evidence before the Tribunal are: 1. Application filed 10 May 2017: Exhibit 1. 2. Affidavit of the director of the applicant filed 9 August 2017: Exhibit 2. 3. Documents provided by the respondent in support of the decision: Exhibit 3. 4. Affidavit of the Manager of Legal Advice and Legislation Early Childhood Education dated 31 July 2017 filed 1 August 2017: Exhibit 4. 5. Submissions of the respondent filed 1 August 2017: Exhibit 5. 6. Documents received from the applicant 4 September 2017: Exhibit 6. 7. Document received from the respondent 25 September 2017: Exhibit 7.
The director of the applicant was cross-examined during the course of the hearing in the Tribunal.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil standard of proof which is the balance of probabilities.

Onus of proof

The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing") at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted: "[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36]. [72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test. … [74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party."
The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 ("Karakatsanis ") at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis: "[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law. [37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])] [38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).] 'The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.' [39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present."(footnotes and references included)
The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button's decision and orders in Bronze Wing.
The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)

Further Legislative Provisions relevant to the decision

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

The Issue

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

Considerations and the Evidence

The application and approval was made under the National Law where various criteria for approval and maintaining the currency of the approval are set out. By reason of section 51(3) of the National Law the service approval is issued upon the condition that the service must commence ongoing operation of the service within 6 months after the approval is granted, unless the Regulatory Authority agrees to an extension of time. The Regulatory Authority has not agreed to an extension of time.
The respondent submits that a service may commence operation without CCB approval. The Regulatory Authority has no power to grant CCB approval which is controlled by Commonwealth legislation. There is a letter annexed to Exhibit 4, Annexure A which confirms this position.
The approval for Child Care Benefits is the mechanism for financial subsidy of the service and is not a barrier to the commencement of operations using the service approval. The service may also employ and register educators without CCB approval. These are factors which are not contentious.
The respondent also submits that the application for CCB approval has now been refused: see Exhibit 4, Annexure A. The respondent submitted that there is therefore a real doubt as to whether the applicant will ever commence operation if it is not eligible to receive CCB approval.
The respondent also submits that the reasons for the delay and refusal of CCB approval were not the result of factors outside the control of the applicant. This is a valid observation.
The respondent also submits that the breach of section 51 (3) of the National Law undermines the operation of the scheme for which the respondent has regulatory responsibility. It is submitted by the respondent that the delay in commencement of the service causes prejudice to the respondent and is not in the public interest because currency of credentials, approvals, training is important in the delivery of such a service. It is evident from the provisions of section 51 (3) of the National Law that in some circumstances, which are not specified within the legislation, the Regulatory Authority may in the exercise of its discretion extend that period of time. It is accepted that it is not in the public interest for there to be multiple extensions of time, or extensions which mean that the currency of credentials and approvals is rendered obsolete.
It is noted by the respondent that the applicant's approval was permitted to continue for just under 12 months prior to its cancellation. This is in excess of the six months for the applicant to commence operations required under the National Law.
The applicant raised grounds in the application filed in the Tribunal that the decision was made under an inflexible policy, it was said to be unreasonable and showed bad faith, and was also said to be a denial of natural justice.
The applicant's evidence is that the sole director was not aware of the requirement to commence operations within six months of the grant of the service approval until receipt of a letter from the respondent concerning the cancellation of the service approval. It is submitted on behalf the applicant that the director was entitled to assume that all necessary conditions had been met particularly when there were no further specified conditions than the two which were under the heading "Additional Conditions". The reference to section 51 of the National Law was not sufficient to alert the director who is not legally qualified to the condition and obligation to commence operations within 6 months of the service approval. There is no reference to the obligation to commence operations within 6 months contained within the correspondence to the applicant giving notice of "show cause".
The applicant gave evidence through the director that the possibility of commencing operations without CCB approval and therefore at a financial loss did not even occur to her as a possibility because it did not seem logical. The applicant submits that as a matter of fairness the six-month requirement should have been drawn to the attention of the director if not in the correspondence then in the subsequent telephone call with an officer of the respondent. The record of the conversation shows simply that the service was to be added to the "monitoring plan" (of the respondent) because the applicant had been approved for more than six months.
The decision to refuse the applicant CCB benefits approval occurred after the commencement of these proceedings. The applicant has said that it will submit a fresh application rather than seek a review of that decision.
The applicant submits that it will provide an integrated service to people of all ages as it already currently provides disability and aged care services. The provision of family day care services will enable the applicant to provide services across all ages and sectors. The applicant receives NDIS approval and it submits that many children with disabilities already have eligibility for Child Care Benefit and Childcare Rebate. Centrelink subsidises a maximum of 50 hours per week for childcare services, and the NDIS has no upper or lower limits and also provides greater flexibility according to the submissions of the applicant. This funding model means that the applicant operates a service which caters to children with disabilities and multicultural families. It is submitted by the applicant that family day care services generally only accept children without a disability. The applicant is a specialist provider of disability services and is able to provide services to both disabled children and children who are not disabled.
The evidence of the applicant is that family day care services have advantages for children with a disability by providing a familiar environment and a familiar carer with a small number of children in the family day care setting. The applicant considers that it can offer a day care service based on the language spoken by the carer in its multicultural service. Additionally, the applicant plans on providing the need for family day care after hours or weekends to assist working parents who work on weekends and parents of children with a disability.
The evidence of the applicant is that if the decision of the respondent is confirmed the applicant would let down people who have been relying upon her service including the multicultural workers who have been involved since the grant of the provider approval. The loss of the applicant's service would also impact upon parents and children who will seek to utilise the applicant's services.
The respondent submits that the services provided by the applicant do not meet the definition of a "family day care" service and therefore the respondent's decision may be affirmed on the basis that the applicant is yet to comply with the conditions of the service approval.
A "family day care service" is defined in section 5 of the National Law as follows: … means an education and care service that is delivered through the use of 2 or more educators to provide education and care for children in residences whether or not the service also provides education and care to children at a place other than a residence;
The respondent submits that the applicant is therefore operating a day time respite care or after hours care on an ad hoc basis utilising NDIS funding. This is not a family day care service as defined.
The provision of prescribed classes of disability services are excluded from the definition of an "education and care service". The Education and Care Services National Regulations 2011 (NSW) ("the Regulations") provides at clause 5 (1) that excluded services are those provided under the Disability Services Act 1993 (NSW), or the equivalent legislation in other States. It is also provided in clause 5 (2) (c) of the Regulations that services which are excluded are those provided on an occasional or ad hoc basis to children of preschool age or younger.
The submissions of the respondent are accepted as an accurate characterisation of the evidence given by the applicant's director. There would appear to be very few people who will in reality be let down if the applicant is not able to retain its service approval. The applicant is therefore operating a day time respite care or after hours care on an ad hoc basis utilising NDIS funding. The applicant is not operating a family day care service as defined.

Consideration

The objectives and guiding principles under the National Law are in subsections 3(2) and 3(3) stated to be: (2) The objectives of the national education and care services quality framework are - (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows- (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
The rights and best interests of the child are paramount in implementing the National Law. Since section 4 of the National Law requires an entity that has functions under the law to exercise those functions having regard to the objectives and guiding principles set out in section 3, the Tribunal is required to regard the rights and best interests of the child as paramount in making a determination as to the correct and preferable decision in this matter.
Section 260 of the National Law identifies the functions of the Regulatory Authority as follows: 260 Functions of Regulatory Authority The Regulatory Authority has the following functions under this Law in relation to this jurisdiction- (a) to administer the National Quality Framework; (b) to assess approved education and care services against the National Quality Standard and the national regulations and determine the ratings of those services; (c) to monitor and enforce compliance with this Law; (d) to receive and investigate complaints arising under this Law; (e) in conjunction with the National Authority and the relevant Commonwealth Department, to educate and inform education and care services and the community in relation to the National Quality Framework; (f) to work in collaboration with the National Authority to support and promote continuous quality improvements in education and care services; (g) to undertake information collection, review and reporting for the purposes of - (i) the regulation of education and care services; and (ii) reporting on the administration of the National Quality Framework; and (iii) the sharing of information under this Law; (h) any other functions conferred on the Regulatory Authority under this Law.
In addition to its policing role the Regulatory Authority thus has an educative function and a function to implement improvements in the quality of education and care services.
The 3 grounds raised by the applicant are not supported by the evidence. The respondent has not applied in inflexible policy but has sought to enforce the provisions of the National Law. The requirements to commence operations within 6 months of the grant of approval was well and truly exceeded in this matter. It could not be validly contended that there was the application of an inflexible policy in those circumstances.
The applicant also raised unreasonableness and bad faith without providing any persuasive evidence of those contentions. It is not unreasonable for the respondent to require the applicant to comply with the National Law when it is apparent that the applicant has not commenced operations as required by a condition imposed by the grant of the service approval. There is simply no evidence of bad faith: rather a subjective and an unwarranted feeling of unfairness and frustration at the bureaucratic delays expressed by the director of the applicant.
The applicant raised a ground of denial of procedural fairness, or natural justice as expressed in the application. However, the applicant was given appropriate procedural fairness when required to show cause as required by the National Law. The decision by the respondent is a discretionary decision which was not exercised in favour of the applicant. The director of the applicant was clearly aggrieved by the adverse decision, however that does not make the decision procedurally unfair or prove denial of natural justice.
The respondent has complied with its obligations under the National Law to monitor and enforce compliance with the law.
The applicant through its director gave extensive evidence of the intentions in relation to the service which the applicant wishes to provide in the future. The reasons were impressive and genuinely held. However, it is the Tribunal's finding that having regard to all of the evidence the applicant has not yet commenced ongoing operations in accordance with the National Law.

Conclusion

The determination of the correct and preferable decision must regard the best interests of the child who may receive the benefit of the service as paramount.
The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children. The fact that the applicant received provider and service approval to run a Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children.
The Tribunal is not confined in its consideration of this matter to the reasons identified in the Reasons for Decision; Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45].
The applicant has not complied with the provisions of the National Law and in particular has failed to commence operations within 6 months of the grant of the service approval. The Tribunal does not accept that the applicant has commenced operations as required by the National Law having regard to the definition of what constitutes an education and care service. It is highly unlikely that the applicant will be able to commence to provide the appropriate service without CCB approval. It is clear from the evidence before the Tribunal that the applicant has been refused that avenue of subsidised funding. There is in those circumstances no persuasive reason to extend the period of time for compliance.
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 confirmed.

Order

The orders of the Tribunal are that: 1. The decision of the respondent on 28 April 2017 to cancel with effect from 12 May 2017 the service approval previously granted to the applicant is confirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2017

Children (Education and Care Services) Supplementary Provisions Regulation 2012(NSW)

Because the Children (Education and Care Services) Supplementary Provisions Act 2011(NSW)

Disability Services Act 1993(NSW)

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