Independent reviews and market monitoring reports. The Act at section 5 empowers a commissioned person to undertake independent reviews of the childcare sector and to prepare market monitoring reports. Section 4 of this Regulation defines the scope of those reviews. The commissioned person must consider and report on matters the Minister directs, and may also consider matters the commissioned person considers relevant, including whether specialised services are needed for five named groups: rural and remote communities, culturally and linguistically diverse persons and communities, persons with disabilities, Aboriginal and Torres Strait Islander persons, and persons living in low SEIFA-index areas. This gives the Minister substantial control over the content of reports, while also embedding a non-exhaustive list of equity concerns.

Information gathering. Section 5 of the Regulation expands the Act’s compulsory information-gathering power (section 7). “Relevant information” now expressly includes workforce information about the childcare sector. Additionally, government agencies (defined at subsection 5(3) to include public authorities, NSW government agencies, Public Service agencies, local councils and state owned corporations) are prescribed as persons who can be required to give information or answer questions. This extends the reach of the information power beyond private sector operators to public sector bodies.

Disclosure and use of information. Section 6 authorises the commissioned person to share information obtained under section 7 of the Act with the Education Secretary. The Education Secretary is then permitted to use and disclose that information for the purposes of the Act and this Regulation. This creates a conduit for information to flow from a review body into the departmental machinery, raising questions about how widely the information might be disseminated.

Board membership and procedure. Schedule 1 sets out detailed rules. Appointed members must hold substantial experience or expertise in at least one of five areas: childcare sector; finance, governance and risk management; infrastructure planning, funding and delivery; development and delivery of government policy; or procurement of goods and services by or for government agencies. Members are part-time. Independent appointed members receive remuneration determined by the Minister. Vacancy triggers include death, resignation, non-reappointment, removal by the Minister (with Treasurer’s concurrence), absence from six consecutive meetings without leave, bankruptcy, mental incapacity, or conviction of a serious offence. Pecuniary interests must be disclosed; after disclosure the member may not be present or vote unless the Minister or Board otherwise determines. The Board sets its own procedure; quorum is a majority including the Chairperson and at least one independent appointed member. The Chairperson has a deliberative and casting vote. Business may be conducted by circulating papers or by electronic means.

Delegation. Section 8 prescribes that any member of staff of the Department of Education may exercise delegated functions under section 26(c) of the Act. This allows the Minister to delegate decision-making to departmental officials.

Transitional arrangements. For the financial year ending 30 June 2023, the Board and the Fund are not required to produce an annual report, an audit report of the Fund, or other annual financial reports. This temporary exemption eases compliance in the first year of operation but also reduces transparency during that period.

The Regulation directly affects commissioned persons who undertake independent reviews or produce market monitoring reports. They must comply with the mandatory and discretionary matters set out in section 4, which broadens their analytical scope beyond purely economic or efficiency concerns. It also affects childcare providers and workforce participants, because “relevant information” now includes workforce information. If the Minister or a commissioned person exercises the information-gathering power under the Act, providers may be required to produce staffing data, qualifications, pay rates or other workforce details. Government agencies are now explicitly subject to the information powers: a public authority, NSW government agency, Public Service agency, local council or state owned corporation can be required to provide information and answer questions. This expands the compliance burden from private operators to the public sector, meaning agencies like the Department of Education, local councils and state-owned corporations must respond to requests. The Education Secretary is authorised to receive and use disclosed information; this affects how information flows within government. Members of the Board are subject to appointment criteria, part-time tenure, remuneration policies, vacancy rules, and stringent pecuniary interest disclosure obligations. The requirement for substantial experience in limited areas may restrict the pool of potential appointees, affecting who can sit on the Board. Staff of the Department of Education may be delegated functions under section 26(c), meaning they could exercise powers originally vested in the Minister, which affects internal departmental accountability. The Minister and the Treasurer have removal powers and remuneration determination powers. Communities identified in section 4 - rural and remote communities, culturally and linguistically diverse persons, persons with disabilities, Aboriginal and Torres Strait Islander persons, and those in low SEIFA areas - are indirectly affected because reviews and reports must at least consider the need for specialised services for them. This could influence future funding allocations or policy design. The Fund itself is affected only in that transitional reporting relief applies for 2022-2023; after that, normal reporting obligations resume. Taxpayers and the broader public are affected because the Fund is a public funding vehicle, and the Regulation shapes how it operates and how transparent it is. The annual report exemption for the first year reduces public accountability for that period.

Duties of the commissioned person. Under section 4, a commissioned person undertaking a review must consider and report on matters the Minister directs, and may also consider matters the person considers relevant, including but not limited to the need for specialised services for the five listed groups. The language is mandatory for Minister-directed matters and permissive for the others. This means the commissioned person has a duty to follow ministerial directions, but retains discretion to add additional considerations.

Rights of the commissioned person. Under section 6, the commissioned person is authorised to disclose information obtained under section 7 of the Act to the Education Secretary. This is a right of disclosure, not a duty. The commissioned person may also require information under the Act, including workforce information from childcare providers and government agencies, as prescribed by section 5.

Duties of persons subject to information requirements. Any person (including the prescribed government agencies) who receives a notice under section 7 of the Act must comply: they must give relevant information (now including workforce information) and answer questions. The Regulation does not specify penalties for non-compliance, but the Act likely does (the Regulation does not reproduce them). The duty is onerous: there is no exception for commercial sensitivity or privacy, though the disclosure provisions in section 6 may be considered a safeguard.

Duties of Board members. Schedule 1 imposes several duties. Under clause 1A, there is a duty on the Minister to appoint members with substantial experience or expertise in at least one of the listed areas. Clause 6 requires members to disclose direct or indirect pecuniary interests that appear to conflict with their duties; disclosure must be as soon as possible. After disclosure, the member must not be present during deliberation or take part in a decision unless the Minister or Board determines otherwise. The member also has a duty not to participate in any Board determination on whether they should be allowed to participate. The contravention does not invalidate the decision. Clause 4 sets out the conditions for vacancy, including removal by the Minister with Treasurer’s concurrence at any time. This gives the Minister a right to remove without cause, subject only to the concurrence requirement.

Rights of Board members. Independent appointed members have the right to be paid remuneration and allowances as determined by the Minister (clause 3). Members have the right to participate in meetings, vote, and for the Chairperson to have a casting vote (clause 10). They also have the right to transact business outside meetings by circulation of papers or by electronic means (clause 12). A member who would normally be disqualified by other Acts (such as requiring full-time devotion) is not disqualified from being an appointed member (clause 7(2)).

Rights of the public. Under clause 6(6), any person may inspect the record of pecuniary interest disclosures at all reasonable hours on payment of a reasonable fee determined by the Board. This creates a limited right of access to information about potential conflicts.

Rights of the Education Secretary and Department staff. The Education Secretary is authorised to use and disclose information obtained under the Act for its purposes (section 6). Staff of the Department of Education may be delegated functions under the Act (section 8). No corresponding duty is placed on them by this Regulation.

Transitional relief. The Board and the Fund have the right not to produce annual report, audit report and other annual financial reports for the 2022-2023 financial year (section 9). This is a temporary exemption from duties that would otherwise apply under the Act.

The Regulation itself does not create offences or monetary penalties. It is a subordinate instrument that prescribes matters under the principal Act. Enforcement is therefore governed by the Childcare and Economic Opportunity Fund Act 2022. The Regulation expands the scope of the information-gathering power under section 7 of that Act, so failure to comply with a requirement to give information or answer questions would be a breach of the Act, which likely carries its own penalty provisions. However, the Regulation does not specify those penalties; they are found in the Act. Similarly, the pecuniary interest disclosure obligations in Schedule 1 clause 6 are enforceable by the Board and the Minister, but clause 6(9) provides that a contravention of that clause does not invalidate a decision of the Board. This means that even if a member fails to disclose an interest or votes improperly, the Board’s decision remains legally effective. The enforcement mechanism for non-disclosure would be internal: the Minister may remove the member under clause 4(2) (with Treasurer’s concurrence) or the Chairperson may enforce through meeting procedure. The absence of invalidation reduces the deterrent effect of the disclosure obligations, as a non-disclosing member can still affect outcomes without risking the validity of the outcome. The Minister’s power to remove an appointed member “at any time” with the Treasurer’s concurrence is a strong enforcement tool, though it is not tied directly to any specific breach. The requirement that the quorum include at least one independent appointed member provides a check: if all independent members are absent, no formal decisions can be made, effectively enforcing attendance. For commissioned persons, the duty under section 4 is to consider and report on Minister-directed matters. Failure to do so would likely be a breach of the terms of their commission, which could be enforced by the Minister through contract or by withholding payment. The transitional exemption in section 9 is a one-off; for subsequent years, the reporting obligations under the Act apply and the relevant enforcement mechanisms (likely audits and ministerial accountability) come into play.

The Regulation is made under the Childcare and Economic Opportunity Fund Act 2022 and must be read together with that Act. The Act contains definitions, powers and duties that this Regulation supplements. The Regulation also interacts with the Interpretation Act 1987 (NSW), as noted in the definition section. That Act governs the interpretation of all NSW legislation, including this Regulation. Schedule 1 clause 7 provides two important interactions with other Acts. First, the provisions of the Government Sector Employment Act 2013 relating to employment of Public Service employees do not apply to independent appointed members. This ensures that board membership is not treated as public service employment, which would impose different conditions. Second, clauses in any Act or instrument that require a person to devote their whole time to a specified office, or that prohibit engaging in employment outside that office, do not disqualify a person from being an appointed member. This overrides provisions in other Acts (for example, the Government Sector Employment Act 2013 or the Local Government Act 1993) that might otherwise prevent, say, a senior public servant or a council employee from serving on the Board. The Regulation thus creates a carve-out from whole-of-government and sector-specific employment rules to facilitate board composition from diverse backgrounds. The definition of “government agency” in section 5(3) incorporates references to other legislation: public authorities constituted by or under an Act, NSW government agencies, Public Service agencies (under the Government Sector Employment Act 2013), local councils (under the Local Government Act 1993), and state owned corporations (under the State Owned Corporations Act 1989). This means the information-gathering power under the Act, as expanded by this Regulation, applies to entities created under a wide range of statutes. The Regulation does not interact with Commonwealth laws such as the Privacy Act 1988 or the Competition and Consumer Act 2010, but those laws may impose additional constraints on information sharing or market monitoring activities; this Regulation does not provide any override of Commonwealth law. The transitional provision in section 9 interacts with the Act’s reporting requirements: it suspends obligations under sections 22(1) and 22(2) of the Act for the 2022-2023 financial year only. No amendment was made to the Act itself. The Regulation also interacts with the Board’s own procedural rules: the Board determines its own procedure subject to the Regulation (Schedule 1 clause 8), so the Board can supplement these rules with its own resolutions.

The Regulation as presented notes one amendment. The entry “sch 1: Am 2026 (95), Sch 1” indicates that Schedule 1 was amended by an instrument numbered 2026 No 95, Schedule 1. This is likely a future amendment - the number 2026 suggests it may have been made in 2026, which is after the Regulation’s commencement in 2023. The amendment appears to affect Schedule 1 only; the rest of the Regulation remains unamended at the time of writing. No details of the amendment’s content are provided in the source text. Because the user provided the source as reproduced, we must rely on that note alone. It is possible that the amendment modifies the Board’s membership or procedure. The other provisions (sections 4-9) appear not to have been amended. The Regulation itself is new, commencing on publication on the NSW legislation website (section 2). There is no amendment history listed for sections 1-3, section 4, section 5, section 6, section 7, section 8, or section 9. The transitional exemption for 2022-2023 was likely always present and has been spent. No amending instruments are mentioned for those sections. The Regulation is a relatively straightforward prescribed matter regulation, so amendment activity is modest.

The source text does not cite any litigation history. No cases are mentioned. As a subordinate regulation that is only a few years old and deals with procedural and prescribed matters, it is unlikely to have generated significant case law. The principal Act may have been litigated, but the Regulation itself has no recorded court decisions. The pecuniary interest provisions (Schedule 1 clause 6) or the information-gathering powers (section 5) could be challenged in the future on grounds such as unreasonable delegation or interference with property rights, but no such challenges are noted. The Regulation’s interaction with other employment laws (clause 7) could also be tested if a person is disqualified by another Act and the Regulation’s override is contested. There are no known tribunal or court proceedings related to the Regulation.

Broad delegation to departmental staff. Section 8 prescribes any member of staff of the Department of Education as a person who may be delegated functions under section 26(c) of the Act. This is extremely broad: it covers administrative officers, policy analysts, even temporary staff. Delegated powers could include making decisions about the Fund, issuing information notices, or directing commissioned persons. There is no requirement for seniority, expertise or training. This creates risks of low-quality or inconsistent decision-making.

Board removal without cause. Schedule 1 clause 4(2) allows the Minister, with the concurrence of the Treasurer, to remove an appointed member at any time. There is no requirement for cause or procedural fairness. This gives the executive significant control over Board composition, potentially undermining the Board’s independence. A member who disagrees with government policy could be removed.

Pecuniary interest disclosure does not invalidate decisions. Clause 6(9) states that a contravention of the disclosure provisions does not invalidate a Board decision. This means that even if a member votes on a matter in which they have an undisclosed financial interest, the decision stands. The only remedies are internal (removal) or reputational (the disclosure record is publicly inspectable). This weakens the integrity safeguard.

Information powers extend to all government agencies, including local councils. Under section 5, a local council is a government agency that can be required to give information or answer questions. Councils already face significant information-gathering burdens from other bodies; this adds another layer. There is no mention of cost recovery or limitation to information already held. Compliance could be costly.

Workforce information is “relevant information.” Section 5(1) prescribes that relevant information includes information about the childcare workforce. This could encompass employee names, hours, pay, qualifications, possibly even personal information. The Regulation does not include any privacy safeguards or restrictions on use beyond the disclosure to the Education Secretary. Providers and employees may be concerned about data exposure.

Transitional reporting exemption may hide problems. The exemption for the first financial year means no annual report, audit report or other financial reports are required for the Fund or the Board. This period of non-reporting could mask early mismanagement, weak financial controls, or misallocation of funds. Accountability is deferred to the next financial year.

Chairperson controls quorum and has casting vote. Quorum requires the Chairperson and at least one independent appointed member (Schedule 1 cl 9(2)). If the Chairperson is absent, there may be no quorum even if many other members attend. The Chairperson also has a second or casting vote on an equality (cl 10(2)). This concentrates power in one person.

Board sets its own procedure, subject only to the Regulation. Clause 8 allows the Board to determine its own procedure. This gives the Board flexibility but also means that procedural protections (like notice periods, access to documents, or rights to be heard) are not guaranteed. Members should ensure that the Board adopts transparent rules early.

Overriding of other Acts. Clause 7(2) overrides provisions in other Acts that require a person to devote their whole time to an office or prohibit outside employment. This means that a person who is, say, a full-time public servant can be an appointed member without breaching their primary employment obligations. This could create conflicts of interest with their main role.

No sunset or review clause. The Regulation does not contain a sunset date or a requirement for periodic review. It will remain in force indefinitely unless repealed or amended. This means that the prescribed matters, definitions and procedures become locked in and may become outdated.

For commissioned persons. Ensure that any independent review or market monitoring report prepared under section 5 of the Act addresses, as a minimum, all matters the Minister directs. Additionally, consider whether the report should address the need for specialised services for rural and remote communities, culturally and linguistically diverse persons, persons with disabilities, Aboriginal and Torres Strait Islander persons, and persons in low SEIFA areas. Document the reasoning for including or excluding these matters. If information is gathered under section 7 of the Act (including workforce information), maintain confidentiality but be aware of the authorisation to disclose to the Education Secretary under section 6.

For persons subject to information requests. If you receive a notice under section 7 of the Act (which now includes a government agency), you must comply by providing the requested relevant information (including workforce information) and answering questions. There is no statutory exemption for privacy or commercial sensitivity in this Regulation, but you should check the principal Act for any protections. Keep a record of the request and your response. If you are a government agency (including a local council or state owned corporation), ensure that you have internal procedures to respond promptly.

For Board members. Before appointment, ensure you meet the experience or expertise criteria in Schedule 1 clause 1A. After appointment, familiarise yourself with the pecuniary interest disclosure rules in clause 6. At the first meeting where a matter arises that may give rise to a conflict, disclose the interest promptly in writing to the Board and have it recorded. Do not participate in deliberation or voting on that matter unless the Minister or Board explicitly determines otherwise. Do not participate in the Board’s own determination on whether you may participate. If you are an independent appointed member, you are entitled to remuneration as determined by the Minister, but you are part-time and not a public service employee. Ensure you attend meetings; six consecutive absences without leave or excuse triggers vacancy. If you want to resign, do so in writing to the Minister.

For the Board secretary or administrative support. Keep a document recording all pecuniary interest disclosures (clause 6(5)). Make that document available for public inspection at reasonable hours, upon payment of a fee determined by the Board. Maintain minutes that reflect the transacting of business. If business is conducted by circulation of papers, ensure all members receive the papers and record the resolution. For electronic meetings, ensure members can hear each other.

For the Minister and the Department. When appointing Board members, ensure they have substantial experience or expertise in at least one of the listed areas. Determine remuneration for independent appointed members. When removing a member, obtain the Treasurer’s concurrence. When delegating functions to staff of the Department of Education, do so in writing and specify the scope. When directing a commissioned person on matters to include in a review, issue clear written directions.

For the Board as a whole. At the first meeting, adopt procedural rules under clause 8. Ensure that quorum is met as per clause 9: a majority of members including the Chairperson and at least one independent appointed member. If the Chairperson and at least one independent member are not present, the meeting cannot validly transact business. Decisions are by majority vote; the Chairperson has a casting vote if needed. Business can be conducted by circulation of papers or electronic means, but ensure each member has the ability to participate.

For government agencies. If you are a public authority, NSW government agency, Public Service agency, local council or state owned corporation, you are now prescribed as a person under section 5(2). This means you can be required to give information under section 7 of the Act. Prepare a point of contact and internal procedures to respond quickly to any notice. Consider whether you routinely hold workforce information about the childcare sector that might be requested.