What it does
The Children (Education and Care Services National Law Application) Act 2010 (the Application Act) operates as the legislative bridge that gives effect in New South Wales to the Education and Care Services National Law set out in the Schedule to the Victorian Education and Care Services National Law Act 2010. Section 4(1) provides that the National Law, as in force from time to time, applies as a law of NSW with the modifications set out in Schedule 1, may be cited as the Children (Education and Care Services) National Law (NSW), and is to be read as if it formed part of the Application Act itself.
The core regulatory architecture is therefore national, yet Schedule 1 overlays more than 50 NSW-specific provisions. The most significant is the new s 3A (inserted by Schedule 1 [1]), which declares that “the protection of the rights and best interests of each child and the children attending education and care services must be the paramount consideration” in the exercise of every function under the Law. Subsection (2) expressly states that this paramountcy prevails over the financial interests of approved providers and over any other fiduciary duties owed by persons with management or control. Complementary amendments to s 4 (Schedule 1 [1B]) reinforce that, in any conflict between provider interests and child interests, the latter prevail, and declare the new provisions to be Corporations legislation displacement provisions under s 5G of the Corporations Act 2001 (Cth). This has the direct effect of subordinating directors’ duties under Commonwealth corporations law to the child-protection imperative.
The Application Act also creates a suite of NSW-specific definitions (s 7) that adapt the generic language of the National Law. “Child protection law” is defined to include the Children and Young Persons (Care and Protection) Act 1998 and Parts 6 and 8 of the Children’s Guardian Act 2019. “Public authority”, “magistrate”, “superior court” and “this jurisdiction” are all mapped to NSW equivalents. “Working with children law” is declared to be the Child Protection (Working with Children) Act 2012.
Enforcement tools have been expanded. New ss 178 and 178A (Schedule 1 [4O]) allow the Regulatory Authority to issue suspension notices or supervision notices to any person “involved in the provision” of an approved service where there is non-compliance or risk to children. The show-cause period is shortened to 14 days for urgent cases. A new s 166A creates a tiered offence of subjecting a child to “inappropriate conduct”, defined in the new s 5AA (Schedule 1 [1E]) by reference to what a reasonable person would consider inappropriate, taking into account the child’s age, developmental stage, risk of harm, and purpose of the conduct. Consent of the child or the belief of the perpetrator is declared irrelevant.
Penalties throughout the National Law have been substituted with three-tiered amounts: a baseline for individuals, a 15-fold multiplier for “large child care providers” (defined by cross-reference to the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) plus any person prescribed by NSW regulation), and a five-fold multiplier for other bodies corporate. Examples include the offence of operating without approval (s 103 as modified) which now carries $68,700 / $1,034,100 / $344,700 respectively.
Part 9A (inserted by Schedule 1 [19]) confers emergency closure powers where an “emergency event” (epidemic, flood, terrorist act etc.) threatens children. The Regulatory Authority may order statewide or regional closure by Gazette or legislation website notice. Part 10A (Schedule 1 [20]) allows the NSW Minister to issue guidelines and, after consultation with the Regulatory Authority, to give binding directions to prioritised child safety. Ministerial control over systemic policy and “systemic matters” is confirmed in new s 261B, while preserving independence on individual licensing and prosecution decisions.
Whistleblower protections are codified in a new Division 7 of Part 14 (Schedule 1 [44]). A “protected disclosure” includes any honest disclosure to the Regulatory Authority or a manager that an offence has been committed or that children’s safety is at risk. “Serious detrimental action” is broadly defined and attracts criminal, civil and injunctive remedies, with reverse onus on the defendant once detriment is shown. The Supreme Court may grant injunctions, including reinstatement, without requiring an undertaking as to damages.
Publication and transparency obligations have been widened. Modified s 270 permits the Regulatory Authority to publish details of compliance notices, suspension and supervision notices, prosecutions, enforceable undertakings, prohibition notices and emergency removals of children, provided children are not identified. New s 272 expands mandatory and permissive disclosure of prohibition, suspension, supervision and disciplinary information to approved providers, recruitment agencies and labour-hire firms.
Transitional provisions (s 17 and new Division 8A of Part 14) automatically carry forward approvals, supervisors, compliance notices and undertakings granted under the repealed Chapters 12 and 12A of the Children and Young Persons (Care and Protection) Act 1998. Section 17A modifies the National Law’s transitional supervisor rules so that the Regulatory Authority can require an approved provider to nominate a single declared nominated supervisor and can withdraw transitional protections if the provider fails to do so.
In short, the Application Act does far more than adopt a national scheme. It rewrites the normative hierarchy so that child safety is paramount, equips the regulator and Minister with sweeping emergency and directional powers, dramatically increases financial consequences for large operators, protects whistleblowers, and mandates transparency. The result is one of the most interventionist early childhood regulatory regimes in Australia.