Children (Education and Care Services National Law Application) Act 2010
In ForceNSW
Jurisdiction
New South Wales
Act Number
104 of 2010
Collection
act
Plain English Summary
9/10 complexity
This Act adopts the national Education and Care Services Law into NSW with NSW-specific modifications, making child safety and each child’s best interests the legal paramount consideration. It expands enforcement, reporting and publication powers—shorter notification timeframes, new offences (including “inappropriate conduct”), tiered penalties, emergency closure and supervisory powers—and lets the Authority treat related entities as providers. Approved providers, staff, recruitment agencies, the Regulatory Authority and Ministerial offices are directly affected; it raises compliance costs and speeds intervention to protect children.
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 and Parts 6 and 8 of the . “Public authority”, “magistrate”, “superior court” and “this jurisdiction” are all mapped to NSW equivalents. “Working with children law” is declared to be the .
Current sections
Direct links to the current provisions in Children (Education and Care Services National Law Application) Act 2010.
(1) This Act commences on a day or days to be appointed by proclamation.
(2) Different days may be appointed under subsection (1) for the commencement of different provisions of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act—
Children (Education and Care Services) National Law (NSW) means the provisions applying in this jurisdiction because of section 4.
(2) Terms used in this Act and also in the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria have the same meanings in this Act as they have in that Law.
Part 2
Adoption of National Law
Part 2 Adoption of National Law
Part 2 Adoption of National Law
4
Adoption of Education and Care Services National Law
4 Adoption of Education and Care Services National Law
4 Adoption of Education and Care Services National Law
(1) The Education and Care Services National Law, as in force from time to time, set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria—
(a) applies as a law of this jurisdiction, with the modifications set out in Schedule 1, and
(2) If, after the commencement of this subsection, the Parliament of Victoria amends the Schedule to the Education and Care Services National Law Act 2010 of Victoria, the amendment (the Victorian amendment) does not apply in New South Wales until a regulation is made applying the Victorian amendment, with or without modification, to the Children (Education and Care Services) National Law (NSW).
(3) A regulation made under subsection (2) applying a Victorian amendment with modification may, for that purpose, make a consequential amendment to this Act, Schedule 1, including a NSW provision.
Example—
A regulation made under subsection (2) may omit a NSW provision because the Victorian amendment provides for the same matter on a national basis.
s 4: Am 2025 No 56, Sch 2[1]; 2025 No 68, Sch 1[1].
(2) The following Acts of this jurisdiction do not apply to the Children (Education and Care Services) National Law (NSW) or to instruments made under that Law, except to the extent that the Law and those instruments apply to the Regulatory Authority and the employees, decisions, actions and records of the Regulatory Authority—
de facto relationship means a relationship between 2 persons who are de facto partners of each other within the meaning of section 21C of the Interpretation Act 1987.
public authority means a public authority of the State, and includes a State owned corporation within the meaning of the State Owned Corporations Act 1989 and a subsidiary of a public authority or State owned corporation, but does not include a council, county council or joint organisation within the meaning of the Local Government Act 1993.
(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.
s 8: Am 2013 No 95, Sch 2.26.
9
Regulatory Authority
9 Regulatory Authority
9 Regulatory Authority
For the purposes of the definition of Regulatory Authority in section 5 of the Children (Education and Care Services) National Law (NSW), the Secretary of the Department of Education is declared to be the Regulatory Authority for this jurisdiction for the purposes of that Law.
s 9: Subst 2011 No 70, Sch 2.5 [2]. Am 2017 No 22, Sch 4.4 [2].
In the Children (Education and Care Services) National Law (NSW), a penalty specified at the end of a provision indicates that a contravention of the provision is punishable on conviction by a penalty not more than the specified penalty.
(a) the approved provider for the service does not nominate a declared nominated supervisor as the sole nominated supervisor for the education and care service within a time specified by the Regulatory Authority after being requested in writing to do so by the Regulatory Authority, or
(b) the approved provider for the service nominates another declared nominated supervisor as the sole nominated supervisor for the education and care service within a time specified by the Regulatory Authority after being requested in writing to do so by the Regulatory Authority.
s 17A: Ins 2011 No 70, Sch 2.5 [6].
Part 3
Miscellaneous
Part 3 Miscellaneous
Part 3 Miscellaneous
18
Application of Industrial Relations (Commonwealth Powers) Act 2009
18 Application of Industrial Relations (Commonwealth Powers) Act 2009
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
20
Savings and transitional regulations
20 Savings and transitional regulations
20 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts—
this Act
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
21
Review of amendments made by amendment Act
21 Review of amendments made by amendment Act
21 Review of amendments made by amendment Act
(1) The NSW Minister must review the amendments made by the amendment Act to determine whether—
(a) the policy objectives of the amendments remain valid, and
(b) the terms of the amendments remain appropriate for achieving the objectives.
(2) The review must be undertaken as soon as practicable after the period of 12 months from the date of assent to the amendment Act.
(3) A report on the outcome of the review must be tabled in each House of Parliament within 2 years after the date of assent to the amendment Act.
Modification of Education and Care Services National Law
Schedule 1 Modification of Education and Care Services National Law
Schedule 1 Modification of Education and Care Services National Law
section 4(a)
sch 1: Ins 2025 No 56, Sch 2[2]. Am 2025 No 68, Sch 1[6]–[9]
1A
Section 4 How functions to be exercised
1A Section 4 How functions to be exercised
[1A] Section 4 How functions to be exercised
Omit “section 3”. Insert instead “sections 3 and 3A”.
1B
Section 4(2)–(4)
1B Section 4(2)–(4)
[1B] Section 4(2)–(4)
Insert at the end of section 4—
(2) If there is a conflict between the interests of an approved provider and the rights and best interests of a child or the children to whom the approved provider provides education and care, the rights and best interests of the child or children must prevail.
(3) Without limiting subsection (2), a person with management or control of an education and care service must place the rights and best interests of a child or the children to whom the education and care service provides education and care above—
(a) the person’s other duties as a person with management or control of the education and care service; or
(b) the other interests of the education and care service.
(4) Subsections (2) and (3) and section 3A are declared to be Corporations legislation displacement provisions for the Corporations Act 2001 of the Commonwealth, section 5G in relation to the provisions of the Corporations legislation generally.
Note—
The Corporations Act 2001 of the Commonwealth, section 5G enables a State to displace the operation of the provisions of the Corporations legislation of the Commonwealth in favour of provisions of State laws that are declared under State law to be Corporations legislation displacement provisions for that section.
Note—
Subsections (2)–(4) are additional NSW provisions.
1C
Section 5 Definitions
1C Section 5 Definitions
[1C] Section 5 Definitions
Insert in alphabetical order in section 5(1)—
emergency action notice means a notice under section 179;
Note—
This definition is an additional NSW provision.
enforceable undertaking means an undertaking under section 179A;
(b) includes a person prescribed by the NSW regulations;
Note—
This definition is an additional NSW provision.
NSW Minister means the Minister administering this Law as applying in New South Wales and includes a reference to another Minister who is acting on behalf of that Minister;
(b) deemed by the Regulatory Authority to be a related provider under section 5B;
Note—
This definition is an additional NSW provision.
supervision notice means a notice given under section 178A(4)(c)(i);
Note—
This definition is an additional NSW provision.
suspension notice means a notice given under section 178(4)(c)(i);
Note—
This definition is an additional NSW provision.
1E
Section 5AA
1E Section 5AA
[1E] Section 5AA
Insert after section 5—
1F
Sections 5B and 5C
1F Sections 5B and 5C
[1F] Sections 5B and 5C
Insert after section 5A—
1G
Section 10 Application for provider approval
1G Section 10 Application for provider approval
[1G] Section 10 Application for provider approval
Omit section 10(1). Insert instead—
(1) A person, other than the following persons, may apply to the Regulatory Authority for a provider approval—
(a) a prescribed ineligible person;
(b) a person who has, in the previous 12 months, received a notice under section 16 that the Regulatory Authority has refused to grant the person a provider approval, unless the Regulatory Authority has notified the person that the person may apply for a provider approval within 12 months after receiving the notice;
(c) a person who has, in the previous 12 months, received a notice under section 50 that the Regulatory Authority has refused to grant the person a service approval, unless the Regulatory Authority has notified the person that the person may apply for a provider approval within 12 months after receiving the notice.
Note—
This subsection is a substituted NSW provision.
1I
Section 19(4)
1I Section 19(4)
[1I] Section 19(4)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
1J
Section 19(5)
1J Section 19(5)
[1J] Section 19(5)
Insert after section 19(4)—
(5) In this section—
related entity includes a related entity within the meaning of the Corporations Act 2001 of the Commonwealth.
Note—
This subsection is an additional NSW provision.
1K
Section 31 Grounds for cancellation of provider approval
1K Section 31 Grounds for cancellation of provider approval
[1K] Section 31 Grounds for cancellation of provider approval
Insert at the end of the section—
(2) The Regulatory Authority may also cancel a provider approval if the provider has ceased to operate or exist because the provider—
(c) is an association whose registration has been cancelled under the Associations Incorporations Act 2009; or
(d) has otherwise ceased to operate or exist.
Note—
This subsection is an additional NSW provision.
1L
Section 32 Show cause notice before cancellation
1L Section 32 Show cause notice before cancellation
[1L] Section 32 Show cause notice before cancellation
Omit section 32(2)(c). Insert instead—
(c) that the approved provider may give the Regulatory Authority a written response to the proposed cancellation—
(i) for a proposed cancellation under section 31(1)—within 30 days after the notice is given; and
(ii) for a proposed cancellation under section 31(2)—within 14 days after the notice is given.
Note—
This paragraph is a substituted NSW provision.
1M
Section 36 Notice to parents of suspension or cancellation
1M Section 36 Notice to parents of suspension or cancellation
[1M] Section 36 Notice to parents of suspension or cancellation
Omit section 36(3), penalty. Insert instead—
Penalty—
(a) for an individual—$10,200; or
(b) for a large child care provider—$154,800; or
(c) otherwise—$51,600.
Note—
This penalty is a substituted NSW provision.
1N
Section 43 Application for service approval
1N Section 43 Application for service approval
[1N] Section 43 Application for service approval
Omit section 43(1). Insert instead—
(1) A person, other than the following persons, may apply to the Regulatory Authority for a service approval—
(a) a person who has, in the previous 12 months, received a notice under section 16 that the Regulatory Authority has refused to grant the person a provider approval, unless the Regulatory Authority has notified the person that the person may apply for a service approval within 12 months after receiving the notice;
(b) a person who has, in the previous 12 months, received a notice under section 50 that the Regulatory Authority has refused to grant the person a service approval, unless the Regulatory Authority has notified the person that the person may apply for a service approval within 12 months after receiving the notice.
Note—
This subsection is a substituted NSW provision.
1O
Section 51 Conditions on service approval
1O Section 51 Conditions on service approval
[1O] Section 51 Conditions on service approval
Omit section 51(8), penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
1P
Section 68 Confirmation of transfer
1P Section 68 Confirmation of transfer
[1P] Section 68 Confirmation of transfer
Omit section 68(1), penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
1Q
Section 69 Notice to parents
1Q Section 69 Notice to parents
[1Q] Section 69 Notice to parents
Omit section 69(1), penalty. Insert instead—
Penalty—
(a) for an individual—$10,200; or
(b) for a large child care provider—$154,800; or
(c) otherwise—$51,600.
Note—
This penalty is a substituted NSW provision.
1R
Section 84 Notice to parents of suspension or cancellation
1R Section 84 Notice to parents of suspension or cancellation
[1R] Section 84 Notice to parents of suspension or cancellation
Omit section 84(3), penalty. Insert instead—
Penalty—
(a) for an individual—$10,200; or
(b) for a large child care provider—$154,800; or
(c) otherwise—$51,600.
Note—
This penalty is a substituted NSW provision.
1S
Section 87 Application for service waiver for service
1S Section 87 Application for service waiver for service
[1S] Section 87 Application for service waiver for service
Insert “or NSW regulations” after “national regulations” in section 87(1).
1T
Section 87(1)
1T Section 87(1)
[1T] Section 87(1)
Insert at the end of the subsection—
Note—
This subsection is a modified NSW provision.
1U
Section 90 Matters to be considered
1U Section 90 Matters to be considered
[1U] Section 90 Matters to be considered
Insert after section 90(a)—
(a1) whether special circumstances disclosed in the application reasonably justify the grant of the service waiver; and
Note—
This paragraph is an additional NSW provision.
1V
Section 91 Decision on application
1V Section 91 Decision on application
[1V] Section 91 Decision on application
Omit section 91(4). Insert instead—
(4) If a service waiver is granted, the service waiver is subject to the following conditions—
(a) that the approved education and care service provider must disclose the fact that the service waiver is in force to the families of children to whom education and care is provided by the service;
(b) any other conditions placed on the service waiver by the Regulatory Authority, including any condition limiting the use of the service waiver.
Note—
This subsection is a substituted NSW provision.
1W
Section 103 Offence to provide an education and care service without approval
1W Section 103 Offence to provide an education and care service without approval
[1W] Section 103 Offence to provide an education and care service without approval
Omit section 103(1), penalty. Insert instead—
Penalty—
(a) for an individual—$68,700; or
(b) for a large child care provider—$1,034,100; or
(c) otherwise—$344,700.
Note—
This penalty is a substituted NSW provision.
1X
Section 103(3)
1X Section 103(3)
[1X] Section 103(3)
Insert after section 103(2)—
(3) For subsection (1), an education and care service is taken not to be an approved education and care service during any period in which the service approval for the education and care service is suspended.
Note—
This subsection is an additional NSW provision.
1Y
Section 103A Offence relating to places where education and care is provided as part of a family day care service
1Y Section 103A Offence relating to places where education and care is provided as part of a family day care service
[1Y] Section 103A Offence relating to places where education and care is provided as part of a family day care service
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$68,700; or
(b) for a large child care provider—$1,034,100; or
(c) otherwise—$344,700.
Note—
This penalty is a substituted NSW provision.
1Z
Section 104 Offence to advertise education and care service without service approval
1Z Section 104 Offence to advertise education and care service without service approval
[1Z] Section 104 Offence to advertise education and care service without service approval
Omit section 104(1), penalty. Insert instead—
Penalty—
(a) for an individual—$20,400; or
(b) for a large child care provider—$309,600; or
(c) otherwise—$103,200.
Note—
This penalty is a substituted NSW provision.
1ZA
Section 104(3)
1ZA Section 104(3)
[1ZA] Section 104(3)
Insert after section 104(2)—
(3) For subsection (1), an education and care service is taken not to be an approved education and care service during any period in which the service approval for the education and care service is suspended.
Note—
This subsection is an additional NSW provision.
1ZB
Section 134 Rating levels
1ZB Section 134 Rating levels
[1ZB] Section 134 Rating levels
Insert after section 134(2)—
(3) Despite subsection (2), the Regulatory Authority may give an education and care service operating in this jurisdiction the highest rating level prescribed by the national regulations.
Note—
This subsection is an additional NSW provision.
1ZC
Section 135 Rating of approved education and care service
1ZC Section 135 Rating of approved education and care service
[1ZC] Section 135 Rating of approved education and care service
Omit “(other than the highest rating level)” from section 135(1).
1ZD
Section 135(1)
1ZD Section 135(1)
[1ZD] Section 135(1)
Insert at the end of the subsection—
Note—
This subsection is a modified NSW provision.
1ZE
Section 138A
1ZE Section 138A
[1ZE] Section 138A
Insert after section 138—
1ZF
Section 140A
1ZF Section 140A
[1ZF] Section 140A
Insert after section 140—
1ZG
Section 161 Offence to operate education and care service without nominated supervisor
1ZG Section 161 Offence to operate education and care service without nominated supervisor
[1ZG] Section 161 Offence to operate education and care service without nominated supervisor
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$17,100; or
(b) for a large child care provider—$258,300; or
(c) otherwise—$86,100.
Note—
This penalty is a substituted NSW provision.
1ZH
Section 161A Offence for nominated supervisor not to meet prescribed minimum requirements
1ZH Section 161A Offence for nominated supervisor not to meet prescribed minimum requirements
[1ZH] Section 161A Offence for nominated supervisor not to meet prescribed minimum requirements
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$17,100; or
(b) for a large child care provider—$258,300; or
(c) otherwise—$86,100.
Note—
This penalty is a substituted NSW provision.
1ZI
Section 162 Offence to operate education and care service unless responsible person is present
1ZI Section 162 Offence to operate education and care service unless responsible person is present
[1ZI] Section 162 Offence to operate education and care service unless responsible person is present
Omit section 162(1), penalty. Insert instead—
Penalty—
(a) for an individual—$17,100; or
(b) for a large child care provider—$258,300; or
(c) otherwise—$86,100.
Note—
This penalty is a substituted NSW provision.
1ZK
Section 163 Offence relating to appointment or engagement of family day care co-ordinators
1ZK Section 163 Offence relating to appointment or engagement of family day care co-ordinators
[1ZK] Section 163 Offence relating to appointment or engagement of family day care co-ordinators
Omit section 163(1), penalty. Insert instead—
Penalty—
(a) for an individual—$17,100; or
(b) for a large child care provider—$258,300; or
(c) otherwise—$86,100.
Note—
This penalty is a substituted NSW provision.
1ZL
Section 164 Offence relating to assistance to family day care educators
1ZL Section 164 Offence relating to assistance to family day care educators
[1ZL] Section 164 Offence relating to assistance to family day care educators
Omit section 164(1), penalty. Insert instead—
Penalty—
(a) for an individual—$17,100; or
(b) for a large child care provider—$258,300; or
(c) otherwise—$86,100.
Note—
This penalty is a substituted NSW provision.
1ZM
Section 164A Offence relating to the education and care of children by family day care service
1ZM Section 164A Offence relating to the education and care of children by family day care service
[1ZM] Section 164A Offence relating to the education and care of children by family day care service
Omit section 164A(1), penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
1ZN
Section 164A(2)
1ZN Section 164A(2)
[1ZN] Section 164A(2)
Omit the penalty. Insert instead—
Penalty—$6,600.
Note—
This penalty is a substituted NSW provision.
1ZO
Section 165 Offence to inadequately supervise children
1ZO Section 165 Offence to inadequately supervise children
[1ZO] Section 165 Offence to inadequately supervise children
Omit section 165(1), penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
1ZP
Section 165(2)
1ZP Section 165(2)
[1ZP] Section 165(2)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZQ
Section 165(3)
1ZQ Section 165(3)
[1ZQ] Section 165(3)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZR
Section 166 Offence to use inappropriate discipline
1ZR Section 166 Offence to use inappropriate discipline
[1ZR] Section 166 Offence to use inappropriate discipline
Omit section 166(1), penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
1ZS
Section 166(2)
1ZS Section 166(2)
[1ZS] Section 166(2)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZT
Section 166(3)
1ZT Section 166(3)
[1ZT] Section 166(3)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZU
Section 166(4)
1ZU Section 166(4)
[1ZU] Section 166(4)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZV
Section 166A
1ZV Section 166A
[1ZV] Section 166A
Insert after section 166—
1ZW
Section 167 Offence relating to protection of children from harm and hazards
1ZW Section 167 Offence relating to protection of children from harm and hazards
[1ZW] Section 167 Offence relating to protection of children from harm and hazards
Omit section 167(1), penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
1ZX
Section 167(2)
1ZX Section 167(2)
[1ZX] Section 167(2)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZY
Section 167(3)
1ZY Section 167(3)
[1ZY] Section 167(3)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZZ
Section 168 Offence relating to required programs
1ZZ Section 168 Offence relating to required programs
[1ZZ] Section 168 Offence relating to required programs
Omit section 168(1), penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
1ZZA
Section 168(2)
1ZZA Section 168(2)
[1ZZA] Section 168(2)
Omit the penalty. Insert instead—
Penalty—$13,500.
Note—
This penalty is a substituted NSW provision.
1ZZB
Section 169 Offence relating to staffing arrangements
1ZZB Section 169 Offence relating to staffing arrangements
[1ZZB] Section 169 Offence relating to staffing arrangements
Omit section 169(1), penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
1ZZC
Section 169(2)
1ZZC Section 169(2)
[1ZZC] Section 169(2)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
1ZZD
Section 169(3)
1ZZD Section 169(3)
[1ZZD] Section 169(3)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZZE
Section 169(4)
1ZZE Section 169(4)
[1ZZE] Section 169(4)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
1ZZF
Section 169(5)
1ZZF Section 169(5)
[1ZZF] Section 169(5)
Omit the penalty. Insert instead—
Penalty—$34,200.
Note—
This penalty is a substituted NSW provision.
2A
Section 170(2)
2A Section 170(2)
[2A] Section 170(2)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$3,300; or
(b) for a large child care provider—$51,300; or
(c) otherwise—$17,100.
Note—
This penalty is a substituted NSW provision.
2B
Section 170(3)
2B Section 170(3)
[2B] Section 170(3)
Omit the penalty. Insert instead—
Penalty—$3,300
Note—
This penalty is a substituted NSW provision.
2C
Section 170(4)
2C Section 170(4)
[2C] Section 170(4)
Omit the penalty. Insert instead—
Penalty—$3,300.
Note—
This penalty is a substituted NSW provision.
4A
Section 171 Offence relating to direction to exclude inappropriate persons from education and care service premises
4A Section 171 Offence relating to direction to exclude inappropriate persons from education and care service premises
[4A] Section 171 Offence relating to direction to exclude inappropriate persons from education and care service premises
Omit section 171(2), penalty. Insert instead—
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
Note—
This penalty is a substituted NSW provision.
4B
Section 172 Offence to fail to display prescribed information
4B Section 172 Offence to fail to display prescribed information
[4B] Section 172 Offence to fail to display prescribed information
Omit section 172(1), penalty. Insert instead—
Penalty—
(a) for an individual—$10,200; or
(b) for a large child care provider—$154,800; or
(c) otherwise—$51,600.
Note—
This penalty is a substituted NSW provision.
4C
Section 172(2)
4C Section 172(2)
[4C] Section 172(2)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$10,200; or
(b) for a large child care provider—$154,800; or
(c) otherwise—$51,600.
Note—
This penalty is a substituted NSW provision.
4D
Section 172(3) and (4)
4D Section 172(3) and (4)
[4D] Section 172(3) and (4)
Insert after section 172(2)—
(3) An approved provider of an education and care service must ensure the approved provider’s quality and compliance history for the education and care service provided by the approved provider is—
(a) displayed, in the form approved by the Regulatory Authority, at the education and care services premises in accordance with the NSW regulations; and
(b) published in the way prescribed by the NSW regulations or decided by the Regulatory Authority.
(4) In this section—
quality and compliance history means the information prescribed by the NSW regulations.
Note—
Subsections (3) and (4) are additional NSW provisions.
4E
Section 173 Offence to fail to notify certain circumstances to Regulatory Authority
4E Section 173 Offence to fail to notify certain circumstances to Regulatory Authority
[4E] Section 173 Offence to fail to notify certain circumstances to Regulatory Authority
Omit section 173(1), penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
4F
Section 173(2)
4F Section 173(2)
[4F] Section 173(2)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
4G
Section 174 Offence to fail to notify certain information to Regulatory Authority
4G Section 174 Offence to fail to notify certain information to Regulatory Authority
[4G] Section 174 Offence to fail to notify certain information to Regulatory Authority
Omit section 174(1), penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
4H
Section 174(2)
4H Section 174(2)
[4H] Section 174(2)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
4I
Section 174A Family day care educator to notify certain information to approved provider
4I Section 174A Family day care educator to notify certain information to approved provider
[4I] Section 174A Family day care educator to notify certain information to approved provider
Omit the penalty. Insert instead—
Penalty—$6,600.
Note—
This penalty is a substituted NSW provision.
4J
Sections 174AA and 174AB
4J Sections 174AA and 174AB
[4J] Sections 174AA and 174AB
Insert after section 174A—
4K
Section 175 Offence relating to requirement to keep enrolment and other documents
4K Section 175 Offence relating to requirement to keep enrolment and other documents
[4K] Section 175 Offence relating to requirement to keep enrolment and other documents
Omit section 175(1), penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
4L
Section 175(3)
4L Section 175(3)
[4L] Section 175(3)
Omit the penalty. Insert instead—
Penalty—$13,500.
Note—
This penalty is a substituted NSW provision.
4M
Section 176 Compliance directions
4M Section 176 Compliance directions
[4M] Section 176 Compliance directions
Omit section 176(3), penalty. Insert instead—
Penalty—
(a) for an individual—$6,600; or
(b) for a large child care provider—$102,600; or
(c) otherwise—$34,200.
Note—
This penalty is a substituted NSW provision.
4N
Section 177 Compliance notices
4N Section 177 Compliance notices
[4N] Section 177 Compliance notices
Omit section 177(3), penalty. Insert instead—
Penalty—
(a) for an individual—$20,400; or
(b) for a large child care provider—$309,600; or
(c) otherwise—$103,200.
Note—
This penalty is a substituted NSW provision.
4O
Sections 178 and 178A
4O Sections 178 and 178A
[4O] Sections 178 and 178A
Omit section 178. Insert instead—
4P
Section 179 Emergency action notices
4P Section 179 Emergency action notices
[4P] Section 179 Emergency action notices
Omit section 179(3), penalty. Insert instead—
Penalty—
(a) for an individual—$20,400; or
(b) for a large child care provider—$309,600; or
(c) otherwise—$103,200.
Note—
This penalty is a substituted NSW provision.
4R
Section 187 Person must not contravene prohibition notice
4R Section 187 Person must not contravene prohibition notice
[4R] Section 187 Person must not contravene prohibition notice
Omit section 187(1), penalty. Insert instead—
Penalty—$68,700.
Note—
This penalty is a substituted NSW provision.
4S
Section 187(2)
4S Section 187(2)
[4S] Section 187(2)
Omit the penalty. Insert instead—
Penalty—$68,700.
Note—
This penalty is a substituted NSW provision.
4T
Section 188 Offence to engage person to whom prohibition notice applies
4T Section 188 Offence to engage person to whom prohibition notice applies
[4T] Section 188 Offence to engage person to whom prohibition notice applies
Omit section 188(1), penalty. Insert instead—
Penalty—
(a) for an individual—$68,700; or
(b) for a large child care provider—$1,034,100; or
(c) otherwise—$344,700.
Note—
This penalty is a substituted NSW provision.
4U
Section 188(2)
4U Section 188(2)
[4U] Section 188(2)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$68,700; or
(b) for a large child care provider—$1,034,100; or
(c) otherwise—$344,700.
Note—
This penalty is a substituted NSW provision.
4V
Section 188(3)
4V Section 188(3)
[4V] Section 188(3)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$68,700; or
(b) for a large child care provider—$1,034,100; or
(fg) to issue a supervision direction under section 178A; or
Note—
This paragraph is an additional NSW provision.
4ZA
Section 190(2)
4ZA Section 190(2)
[4ZA] Section 190(2)
Insert at the end of section 190—
(2) However, the following decisions are not reviewable decisions if made on the grounds the person or education and care service the subject of the decision poses an unacceptable risk to the safety of children—
(a) a decision to cancel a provider approval under section 31(1)(b);
(b) a decision to refuse to grant a service approval under section 49(1)(a);
(c) a decision to cancel a service approval under section 77(a).
Note—
This subsection is an additional NSW provision.
4ZB
Section 191 Internal review of reviewable decisions
4ZB Section 191 Internal review of reviewable decisions
[4ZB] Section 191 Internal review of reviewable decisions
Insert after section 191(2)—
(2A) An application under subsection (1) does not stay the operation of the reviewable decision.
Subparagraph (vi) has been omitted as a NSW modification.
Part 9A
Emergency powers [NSW]
Part 9A Emergency powers [NSW]
Part 9A Emergency powers [NSW]
Note—
This part is an additional NSW provision.
Part 10A
Functions and powers of Minister [NSW]
Part 10A Functions and powers of Minister [NSW]
Part 10A Functions and powers of Minister [NSW]
Note—
This part is an additional NSW provision.
22
Section 269 Register of family day care educators, co ordinators and assistants
22 Section 269 Register of family day care educators, co ordinators and assistants
[22] Section 269 Register of family day care educators, co ordinators and assistants
Omit section 269(1), penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
23
Section 269(2)
23 Section 269(2)
[23] Section 269(2)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$6,600; or
(b) for a large child care provider—$102,600; or
(c) otherwise—$34,200.
Note—
This penalty is a substituted NSW provision.
24
Section 269(3)
24 Section 269(3)
[24] Section 269(3)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
25
Section 269(4)
25 Section 269(4)
[25] Section 269(4)
Omit the penalty. Insert instead—
Penalty—
(a) for an individual—$13,500; or
(b) for a large child care provider—$206,100; or
(c) otherwise—$68,700.
Note—
This penalty is a substituted NSW provision.
26
Section 270 Publication of information
26 Section 270 Publication of information
[26] Section 270 Publication of information
Omit section 270(5) and (6). Insert instead—
(5) The Regulatory Authority may publish information about enforcement action taken, or being taken, under this Law, including details about any of the following—
(a) compliance directions and compliance notices;
(b) suspension notices;
(c) supervision notices;
(d) disciplinary proceedings, including disciplinary agreements and disciplinary orders, and disciplinary notices;
(e) prosecutions for offences against this Law;
(f) enforceable undertakings;
(g) emergency action notices;
(h) amendments of provider approvals or service approvals for enforcement purposes;
(i) the suspension or cancellation of provider approvals or service approvals;
(j) infringement notices;
(k) the emergency removal of children under Part 7, Division 4;
(l) directions under section 171 to exclude persons from education and care services premises;
(m) directions under section 178 to suspend persons involved in the provision of an approved education and care service;
(n) prohibition notices.
(6) The information the Regulatory Authority may publish under subsection (5) about enforcement action—
(a) includes the following—
(i) information about the nature of enforcement action taken and the outcome of the enforcement action;
(ii) details of persons in relation to whom enforcement action has been taken;
(iii) the reason for taking enforcement action, including details of the breach or alleged breach;
(iv) other information prescribed by regulations made under this subsection; but
(b) does not include information that may identify, or lead to the identification of, a child.
Note—
Subsections (5) and (6) are substituted NSW provisions.
(7) The Regulatory Authority must not publish the name of an educator being investigated during the period of the investigation unless the Regulatory Authority is satisfied publishing the name is in the public interest.
Note—
This subsection is an additional NSW provision.
27
Section 270A
27 Section 270A
[27] Section 270A
Insert after section 270—
28
Section 272 Disclosure of information to education and care services
28 Section 272 Disclosure of information to education and care services
[28] Section 272 Disclosure of information to education and care services
Omit “At the request of an approved provider, the” from section 272(1).
Insert instead “The”.
29
Section 272(1)
29 Section 272(1)
[29] Section 272(1)
Omit “to the provider”. Insert instead “to an approved provider”.
30
Section 272(1)(a)–(e)
30 Section 272(1)(a)–(e)
[30] Section 272(1)(a)–(e)
Omit section 272(1)(a) and (b). Insert instead—
(a) whether a person is or has been subject to a prohibition notice;
(b) whether a person is or has been subject to a suspension notice;
Note—
Paragraphs (a) and (b) are substituted NSW provisions.
(c) whether a person is or has been subject to a supervision notice;
(d) whether a person is or has been subject to an enforceable undertaking;
(e) whether a person is or has been subject to a disciplinary agreement or disciplinary order or has been given a disciplinary notice.
(3) The Regulatory Authority may disclose the following information to a recruitment agency or labour hire agency about a person the agency supplies or offers to supply to education and care services—
(a) whether the person is or has been subject to a disciplinary notice;
(b) whether the person is or has been subject to a supervision notice;
(c) whether the person is or has been subject to an enforceable undertaking;
(d) whether the person is or has been subject to a prohibition notice;
(e) whether the person is or has been subject to a disciplinary agreement or disciplinary order or has been given a disciplinary notice.
Note—
This subsection is an additional NSW provision.
34
Section 273 Duty of confidentiality
34 Section 273 Duty of confidentiality
[34] Section 273 Duty of confidentiality
Omit section 273(1), penalty. Insert instead—
Penalty—$17,100.
Note—
This penalty is a substituted NSW provision.
36
Section 284
36 Section 284
[36] Section 284
Omit the section. Insert instead—
37
Section 287A
37 Section 287A
[37] Section 287A
Insert after section 287—
38
Section 291 Infringement offences
38 Section 291 Infringement offences
[38] Section 291 Infringement offences
Insert before section 291(1)(a)—
(a1) sections 19(4), 36(3), 51(8), 68(1), 69(1), 84(3), 161, 161A, 162(1), 163(1), 164A(1) and (2), 169(1)–(5), 170(2)–(4), 171(2), 174(1) and (2), 175(1) and (3), 177(3), 178(6) and (7), 179(3), 217 and 261A(5); or
Note—
This paragraph is an additional NSW provision.
39
Section 291(1)(c)
39 Section 291(1)(c)
[39] Section 291(1)(c)
Omit “this section.” from section 291(1)(b).
Insert instead—
this section; or
(c) offences against the national regulations that are prescribed by the NSW regulations for this section.
Note—
This paragraph is an additional NSW provision.
40
Section 291(5)
40 Section 291(5)
[40] Section 291(5)
Omit the subsection. Insert instead—
(5) The NSW regulations may provide for matters relating to infringement offences, including—
(a) prescribing additional offences as infringement offences; and
(b) modifying the maximum infringement penalties for offences; and
(c) prescribing offences as disciplinary notice offences; and
(d) providing for the maximum penalties for disciplinary notice offences.
Note—
This subsection is a substituted NSW provision.
42
Section 295 False or misleading information or documents
42 Section 295 False or misleading information or documents
[42] Section 295 False or misleading information or documents
This Act is the Children (Education and Care Services National Law Application) Act 2010.
2 Commencement
2 Commencement
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation.
(2) Different days may be appointed under subsection (1) for the commencement of different provisions of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act—
Children (Education and Care Services) National Law (NSW) means the provisions applying in this jurisdiction because of section 4.
(2) Terms used in this Act and also in the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria have the same meanings in this Act as they have in that Law.
Part 2 Adoption of National Law
Part 2 Adoption of National Law
Part 2 Adoption of National Law
4 Adoption of Education and Care Services National Law
4 Adoption of Education and Care Services National Law
4 Adoption of Education and Care Services National Law
(1) The Education and Care Services National Law, as in force from time to time, set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria—
(a) applies as a law of this jurisdiction, with the modifications set out in Schedule 1, and
(b) as so applying may be referred to as the Children (Education and Care Services) National Law (NSW), and
(c) so applies as if it were part of this Act.
(2) If, after the commencement of this subsection, the Parliament of Victoria amends the Schedule to the Education and Care Services National Law Act 2010 of Victoria, the amendment (the Victorian amendment) does not apply in New South Wales until a regulation is made applying the Victorian amendment, with or without modification, to the .
Children and Young Persons (Care and Protection) Act 1998
Children’s Guardian Act 2019
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.
Who it affects
Approved providers and large child care providers — Every person or corporation that operates a centre-based, family day care or mobile service must hold a provider approval (National Law s 10 as modified by Schedule 1 [1G]) and service approval (s 43 as modified). Large child care providers, defined by reference to Commonwealth family-assistance legislation plus any NSW-prescribed entities, face multiplied penalties (e.g. $1,034,100 for operating without approval) and additional obligations such as supplying incentive-scheme documents under new s 295B.
Persons with management or control — The paramountcy principle in s 3A(2) and the conflict rule in s 4(2)–(4) bind every director, partner and officer. The new related-provider deeming power in s 5B allows the Regulatory Authority to treat entities that share management, dividends or prescribed characteristics as if they were the approved provider for all regulatory purposes (s 5C).
Nominated supervisors, educators, family day care educators, volunteers and staff — All must ensure no child is subjected to inappropriate conduct (s 166A(2)–(4)). Educators and staff must notify the approved provider within 72 hours (or 24 hours after becoming aware) of negative notices or changes in teacher accreditation (new s 174AA). Failure carries a $13,500 penalty. Family day care coordinators and assistants are subject to the same notification and conduct rules.
Recruitment and labour-hire agencies — New provisions treat these agencies as “specified persons” for information-gathering (s 206 as modified) and permit the Regulatory Authority to disclose prohibition, suspension, supervision and disciplinary information to them (s 272(3)). They are also caught by the false-or-misleading-information offence in new s 188A.
The Regulatory Authority — Declared by s 9 to be the Secretary of the Department of Education, the Authority is subject to ministerial policy direction (s 261B) but retains independence on individual decisions. It gains powers to deem related providers, issue suspension and supervision notices, suspend or revoke ratings during investigations (new s 138A), close services in emergencies, and publish enforcement histories.
The NSW Minister — The Minister may issue guidelines (s 223A), give binding safety directions after consultation (s 223B), appoint an independent arbiter (s 188L), and must review the 2025 amendments after 12 months (s 21).
Parents and families — Providers must disclose service waivers (s 91 as modified), suspension or cancellation of approvals (ss 36, 69, 84 as modified), and quality and compliance history (new s 172(3)–(4)). Families are the intended beneficiaries of the paramountcy principle.
Children’s Guardian and other NSW agencies — The Regulatory Authority must notify the Children’s Guardian within 24 hours of issuing a suspension or supervision notice (ss 178(5), 178A(5)) or of events notified under s 174AB. Part 4 of the Children’s Guardian Act 2019 continues to apply to approved services (s 5(3)).
Whistleblowers and persons making protected disclosures — They receive civil, criminal and disciplinary immunity (s 300D) and may obtain damages or injunctions for serious detrimental action (ss 300, 300A).
Local councils and public authorities — Defined terms in s 7 exclude councils from the definition of public authority but confirm that the State Records Act 1998 applies to the Regulatory Authority.
Key duties and rights
Paramountcy duty — Every person exercising a function under the Law must treat the rights and best interests of each child as paramount (s 3A(1)). This duty prevails over financial interests and fiduciary duties (s 3A(2)) and over any conflicting provider interest (s 4(2)–(3)).
Duty to avoid inappropriate conduct — Approved providers must ensure no child is subjected to inappropriate conduct (s 166A(1)). Nominated supervisors, staff, volunteers and family day care educators face personal liability (s 166A(2)–(4)). The definition in s 5AA is objective, excludes consent as a defence, and captures direct, witnessed, electronic, photographic and patterned behaviour.
Notification duties — Approved providers must notify the Regulatory Authority of certain events within 24 hours or as prescribed (ss 173, 174 as modified). Educators and staff must notify providers of negative notices or accreditation changes within tight timeframes (s 174AA). Providers must then notify the Regulatory Authority (s 174AB), which must inform the Children’s Guardian.
Record-keeping and display duties — Enrolment records must contain current health plans, anaphylaxis plans and risk-minimisation plans (modified reg 162). Quality and compliance histories must be displayed and published in the form approved by the Regulatory Authority (new s 172(3)–(4)).
Rights of review — Most decisions remain internally and externally reviewable (ss 190–192 as modified), but decisions based on unacceptable risk to children are excluded from external review (new s 192(2)). Applications for internal review do not stay the decision (new s 191(2A)).
Whistleblower rights — Makers of protected disclosures enjoy immunity from civil, criminal and disciplinary liability (s 300D). Victims of serious detrimental action may recover damages (including exemplary damages) with reverse onus (s 300) and may obtain injunctions, including reinstatement, from the Supreme Court without an undertaking as to damages (s 300A).
Rights of approved providers — Providers may apply for service waivers (modified s 87) and may respond to show-cause notices before suspension or cancellation, although the response period is shortened to 14 days for cancellations under the new s 31(2) ground of corporate insolvency or deregistration.
Penalties and enforcement
The 2025 amendments replaced almost every penalty in the National Law with three-tiered figures. For example:
Operating without approval (s 103(1)) — $68,700 / $1,034,100 / $344,700.
Inadequate supervision (s 165(1)) or inappropriate discipline (s 166(1)) or inappropriate conduct (s 166A(1)) — $34,200 / $516,600 / $172,200.
Failure to notify parents of suspension or cancellation (ss 36(3), 69(1), 84(3)) — $10,200 / $154,800 / $51,600.
Large child care providers therefore face penalties 15 times higher than individuals; other corporations face five times the individual amount. Many offences are strict liability.
Enforcement tools include compliance directions (s 176), compliance notices (s 177), suspension and supervision notices (ss 178, 178A), prohibition notices, enforceable undertakings (new definition in s 5), emergency action notices, and rating suspension or revocation during investigation (s 138A). The Regulatory Authority may publish details of all these actions (modified s 270), including the identity of the provider, the breach, steps taken to remedy it, and penalties imposed. Publication may occur even while internal or external review is available if the Authority considers it in the public interest (modified reg 228(6)).
Infringement notices are available for a long list of offences (modified s 291) and the NSW regulations may prescribe additional infringement offences and modify maximum infringement penalties (modified s 291(5)).
The new serious detrimental action offences (s 299) carry $34,200 / $516,600 / $172,200 penalties, with reverse onus once detriment is proved. Civil damages and Supreme Court injunctions are available in addition to or instead of prosecution.
How it interacts with other laws
The Application Act carefully stitches the National Law into the NSW statute book. Section 5 excludes five Acts (Government Information (Public Access) Act 2009, Health Records and Information Privacy Act 2002, Interpretation Act 1987 (except Parts 6 and 6A for NSW regulations), Privacy and Personal Information Protection Act 1998, Subordinate Legislation Act 1989 (except specified sections)) from applying to the National Law or instruments made under it, except to the extent they apply to the Regulatory Authority itself. The State Records Act 1998 is expressly preserved for the Authority (s 6). Parts of the Government Sector Finance Act 2018, Ombudsman Act 1974, Government Sector Audit Act 1983 and Government Sector Employment Act 2013 are excluded except in relation to the Regulatory Authority and its staff.
Child-protection linkages are explicit. The Children and Young Persons (Care and Protection) Act 1998 Chapters 12 and 12A are declared to be the “former education and care services law” (s 12). The Children’s Guardian Act 2019 Part 4 continues to apply to approved services (s 5(3)), and the Children’s Guardian must be notified of suspension and supervision notices and of certain s 174AA events.
Working-with-children obligations are reinforced by the definition of “working with children law” (s 15) and by modifications to National Law s 170 that tighten who may be on premises unsupervised.
Corporations law interaction is dramatic. The new ss 3A and 4(4) are declared Corporations legislation displacement provisions under Corporations Act 2001 (Cth) s 5G, so that the paramountcy principle overrides directors’ duties to the extent of any inconsistency. New s 300G further declares approved providers to be excluded matters for Corporations Act s 1317AAB (whistleblower provisions), ensuring the NSW regime prevails.
Industrial relations are touched by s 18, which provides that National Authority employees are not State public sector employees for the Industrial Relations (Commonwealth Powers) Act 2009.
The Fines Act 1996 is the infringements law (s 13). The Local Court Act 2007 supplies the meaning of “magistrate” (s 7). The Institute of Teachers Act 2004 supplies the meaning of “registered teacher”.
Recent changes and why
The 2025 amendments (2025 No 56 and especially 2025 No 68) are the most significant since the Application Act’s commencement. They were driven by a series of high-profile serious incidents, coronial findings and a perceived gap between national uniformity and the need for stronger NSW-specific child safeguards.
Schedule 1 [1] inserted s 3A and amended s 4 to elevate child interests to paramountcy and to displace Commonwealth corporations law. The explanatory material (reflected in the provisions themselves) states that financial pressures on providers had, in some cases, led to decisions that compromised safety; the new provisions ensure such decisions are unlawful.
New offences for inappropriate conduct (s 5AA and s 166A) respond to cases where conduct fell short of physical assault but still caused emotional or psychological harm. The definition deliberately removes consent and subjective belief as defences and captures patterns of behaviour and electronic conduct.
Penalty multipliers for large providers reflect the scale of harm that can occur when a large corporate operator fails. The definition of “large child care provider” automatically captures operators already classified as such under Commonwealth family-assistance law, ensuring alignment.
Emergency powers (Part 9A) and ministerial direction powers (Part 10A) were added to deal with pandemics, natural disasters and systemic quality failures that existing notice-by-notice tools could not address quickly enough. The power to close all services in the State by Gazette notice is a direct response to the COVID-19 experience.
Whistleblower protections (new Division 7) address evidence that staff feared reprisal. The reverse onus, exemplary damages and ability to obtain reinstatement injunctions without undertaking as to damages are deliberately protective.
Publication powers were expanded because families had complained they could not easily discover a provider’s compliance history. The new s 172(3)–(4) quality-and-compliance display obligation is designed to empower consumer choice.
The independent arbiter (s 188L) and disciplinary notice regime provide a faster, specialist pathway for less serious matters while preserving court oversight for serious offences.
Section 21 requires the NSW Minister to review the 2025 amendments after 12 months and table a report within two years, indicating that the Parliament expects ongoing refinement.
Court challenges and controversies
The source text does not record decided cases, but the provisions themselves flag likely flashpoints. The declaration that ss 3A and 4(2)–(4) are Corporations legislation displacement provisions under Corporations Act s 5G is controversial. Directors may argue that subordinating fiduciary duties to an undefined “best interests of each child” standard creates unacceptable uncertainty and potential conflict with Corporations Act s 181. Because the displacement is express, a court would likely uphold it, but litigation testing the boundaries of “best interests” is inevitable.
The reverse onus in the serious detrimental action provisions (s 299(3) and s 300(4)) shifts the legal burden once detriment is established. Constitutional arguments under Kable or Chapter III may surface if the provisions are said to impair the institutional integrity of the Supreme Court, although the text grounds the mechanism in public policy protecting children.
Exclusion of certain cancellation, refusal and risk-based decisions from external review (new ss 190(2) and 192(2)) may be challenged on administrative-law grounds. The legislation counters this by tying the exclusion to an “unacceptable risk to the safety of children” test, which mirrors language upheld in other child-protection contexts.
The power to publish enforcement information even while review is pending (modified reg 228(6)) if “in the public interest” will almost certainly generate interlocutory injunction applications. The statute provides no merits review of the public-interest decision, increasing the likelihood of judicial-review proceedings.
The broad definition of “inappropriate conduct” in s 5AA, particularly the inclusion of conduct a reasonable person would consider inappropriate after considering purpose and potential for emotional harm, has been criticised by provider peak bodies as capturing ordinary disciplinary language or cultural practices. No court has yet ruled on its validity, but the legislative note that consent is irrelevant suggests Parliament anticipated defences based on parental consent or cultural norms.
The ministerial power to give directions on “systemic matters” while preserving independence on individual licensing decisions (s 261B) creates a grey zone that may generate disputes about characterisation.
Gotchas
Most practitioners still treat the National Law as a uniform code and overlook that NSW has, since 2025, layered a paramountcy principle that can render otherwise lawful corporate decisions unlawful. A board resolution that prioritises EBITDA over staffing ratios is now, on its face, a breach of ss 3A and 4.
Large child care providers are defined by cross-reference to Commonwealth legislation; many corporate groups have been surprised to discover that a related entity that meets the A New Tax System test is automatically caught by the 15-fold penalty multiplier even if it operates only a handful of NSW centres.
The related-provider deeming power in s 5B is extraordinarily broad. Sharing a single non-management employee or receiving dividends can trigger full regulatory equivalence. Providers who thought they had ring-fenced liability through separate corporate vehicles may find the Regulatory Authority treating the entire group as one.
Section 17A is a trap for transitional approvals. If the Authority requests in writing that a provider nominate a single declared nominated supervisor and the provider either fails to do so or nominates a different person, all transitional protections under s 316 of the National Law cease. Many legacy services still operating on 2010-era approvals have inadvertently lost grandfathered rights.
The new s 172(3) obligation to display and publish “quality and compliance history” in the form approved by the Regulatory Authority is not yet fully detailed in published regulations. Providers publishing their own summary risk breaching the form requirement and attracting a $10,200–$154,800 penalty.
Whistleblower protections apply to disclosures to a “manager” of an approved provider. A centre director counts as a manager; therefore an internal complaint to a director can trigger the entire Division 7 regime, including the prohibition on serious detrimental action and the reverse-onus civil claim.
Emergency closure orders under s 219A can be made without prior notice and remain in force until revoked. There is no statutory compensation mechanism for providers whose businesses are closed by statewide order. The only recourse is judicial review on Wednesbury grounds.
The modification to National Law s 170 that prohibits any person who has applied for but not yet been granted a working with children check clearance from being on premises without direct supervision (even if exempt under NSW law) is stricter than the position in most other jurisdictions and is often overlooked by interstate operators.
How to comply
Embed paramountcy in governance — Amend constitutions, director charters and risk registers to require explicit consideration of s 3A in every board decision. Maintain minutes that record the child-interest analysis and why it prevailed over financial considerations.
Map related providers — Conduct a group-wide audit against s 5B criteria. Assume the Regulatory Authority will deem related entities; implement uniform policies, training and incident-reporting systems across the group.
Update contracts and policies — Insert clauses in educator, coordinator, volunteer and labour-hire agreements requiring compliance with s 166A, notification obligations under ss 174AA and 174AB, and cooperation with Regulatory Authority requests. Policies on discipline, sleep, excursions and digital communication must expressly reference the s 5AA factors.
Implement robust whistleblower systems — Ensure internal disclosure channels satisfy the protected-disclosure definition. Train managers that any honest belief of risk to children triggers immunity and anti-detrimental-action obligations. Maintain separate investigation tracks to avoid contaminating the reverse-onus defence.
Review insurance — Standard D&O and public-liability policies may exclude fines and penalties. Seek specific extensions for the multiplied corporate penalties and for civil damages under s 300. Consider separate fidelity and employment-practices liability cover for detrimental-action claims.
Prepare for publication — Assume every compliance notice, suspension notice or prosecution outcome will appear on a public dashboard. Maintain a “publishable response” template that records remedial steps taken and dates. Ensure the displayed quality-and-compliance history exactly matches the Regulatory Authority’s approved form.
Maintain living approval files — Because transitional protections can be withdrawn under s 17A, treat every declared approved service as though it holds a current National Law approval. Keep single nominated supervisor registers up to date and respond to any written request from the Authority within the specified time.
Train on inappropriate conduct — Annual mandatory training must use the exact s 5AA language. Scenario-based training should address electronic communication, patterns of behaviour, and the irrelevance of child consent. Document attendance; regulators will treat absence of training as evidence of breach of s 166A(1).
Emergency preparedness — Maintain a current list of alternative venues, transport contractors and communication trees that can be activated within hours of a s 219A order. Test the plan annually.
Engage early with the Regulatory Authority — The Authority’s power to deem related providers, issue guidelines under s 223A and give directions under s 261A means proactive relationship management is now a compliance tool. Quarterly compliance attestations signed by the CEO that expressly reference the paramountcy principle can demonstrate culture.
Compliance is no longer a box-ticking exercise against the National Regulations. It requires a cultural shift in which every strategic, financial and operational decision is stress-tested against the statutory command that child interests prevail. Providers who treat the 2025 amendments as mere penalty increases will expose themselves to personal liability for directors, civil damages claims from whistleblowers, and adverse publication that can destroy enrolments overnight.
Section 4Adoption of Education and Care Services National Law
Children (Education and Care Services) National Law (NSW)
(3) A regulation made under subsection (2) applying a Victorian amendment with modification may, for that purpose, make a consequential amendment to this Act, Schedule 1, including a NSW provision.
Example—
A regulation made under subsection (2) may omit a NSW provision because the Victorian amendment provides for the same matter on a national basis.
s 4: Am 2025 No 56, Sch 2[1]; 2025 No 68, Sch 1[1].
5 Exclusion of legislation of this jurisdiction
5 Exclusion of legislation of this jurisdiction
5 Exclusion of legislation of this jurisdiction
(1) Subject to subsection (1A), the following Acts of this jurisdiction do not apply to the Children (Education and Care Services) National Law (NSW) or to instruments made under that Law—
(a) the Government Information (Public Access) Act 2009,
(b) the Health Records and Information Privacy Act 2002,
(c) the Interpretation Act 1987,
(d) the Privacy and Personal Information Protection Act 1998,
(e) the Subordinate Legislation Act 1989.
(1A) The following provisions apply to NSW regulations made under the Children (Education and Care Services) National Law (NSW)—
(a) the Interpretation Act 1987, Parts 6 and 6A,
(b) the Subordinate Legislation Act 1989, sections 3, 4, 7 and 8 and Schedule 1.
(2) The following Acts of this jurisdiction do not apply to the Children (Education and Care Services) National Law (NSW) or to instruments made under that Law, except to the extent that the Law and those instruments apply to the Regulatory Authority and the employees, decisions, actions and records of the Regulatory Authority—
(a) the Government Sector Finance Act 2018,
(b) the Ombudsman Act 1974,
(c) the Government Sector Audit Act 1983,
(d) the Government Sector Employment Act 2013.
(3) However, Part 4 of the Children’s Guardian Act 2019 does apply in respect of approved education and care services under the Children (Education and Care Services) National Law (NSW).
s 5: Am 2011 No 70, Sch 2.5 [1]; 2017 No 22, Sch 4.4 [1]; 2018 No 70, Sch 4.17[1] [2]; 2019 No 25, Sch 5.9; 2025 No 68, Sch 1[2] [3].
6 Application of State Records Act 1998
6 Application of State Records Act 1998
6 Application of State Records Act 1998
To avoid any doubt, it is declared that the State Records Act 1998 applies to the Regulatory Authority for this jurisdiction and its records.
7 Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction
7 Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction
7 Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction
In the Children (Education and Care Services) National Law (NSW)—
child protection law means the following—
(a) the Children and Young Persons (Care and Protection) Act 1998 and regulations made under that Act,
(b) the Children’s Guardian Act 2019, Parts 6 and 8 and regulations made under the parts.
de facto relationship means a relationship between 2 persons who are de facto partners of each other within the meaning of section 21C of the Interpretation Act 1987.
local authority means a council within the meaning of the Local Government Act 1993.
magistrate means a Judge within the meaning of the Local Court Act 2007.
public authority means a public authority of the State, and includes a State owned corporation within the meaning of the State Owned Corporations Act 1989 and a subsidiary of a public authority or State owned corporation, but does not include a council, county council or joint organisation within the meaning of the Local Government Act 1993.
registered teacher means a teacher who is accredited under the Institute of Teachers Act 2004.
superior court means the Supreme Court of New South Wales.
this jurisdiction means New South Wales.
s 7: Am 2017 No 65, Sch 2.4; 2023 No 35, Sch 1.4; 2025 No 61, Sch 2.10.
8 Relevant tribunal or court
8 Relevant tribunal or court
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.
s 8: Am 2013 No 95, Sch 2.26.
9 Regulatory Authority
9 Regulatory Authority
9 Regulatory Authority
For the purposes of the definition of Regulatory Authority in section 5 of the Children (Education and Care Services) National Law (NSW), the Secretary of the Department of Education is declared to be the Regulatory Authority for this jurisdiction for the purposes of that Law.
s 9: Subst 2011 No 70, Sch 2.5 [2]. Am 2017 No 22, Sch 4.4 [2].
10 Children’s services law
10 Children’s services law
10 Children’s services law
(1) For the purposes of the definition of children’s services law in section 5 of the Children (Education and Care Services) National Law (NSW), each of the following is declared to be a children’s services law for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW)—
(a) the Children (Education and Care Services) Supplementary Provisions Act 2011,
(b) the regulations made under that Act.
(2) For the purposes of the definition of children’s services regulator in section 5 of the Children (Education and Care Services) National Law (NSW), the Secretary of the Department of Education is declared to be a children’s services regulator for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW).
s 10: Subst 2011 No 70, Sch 2.5 [3]. Am 2017 No 22, Sch 4.4 [2].
11 Education law
11 Education law
11 Education law
For the purposes of the definition of education law in section 5 of the Children (Education and Care Services) National Law (NSW), the following Acts and the regulations made under those Acts are declared to be an education law for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW)—
(a) the Education Act 1990,
(b) the Institute of Teachers Act 2004,
(c) the Teaching Service Act 1980,
(d) the Technical and Further Education Commission Act 1990,
(e) the Education (School Administrative and Support Staff) Act 1987.
s 11: Am 2011 No 70, Sch 2.5 [4].
12 Former education and care services law
12 Former education and care services law
12 Former education and care services law
For the purposes of the definition of former education and care services law in section 5 of the Children (Education and Care Services) National Law (NSW), the following provisions of the Children and Young Persons (Care and Protection) Act 1998 are declared to be a former education and care services law for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW)—
(a) Chapters 12 and 12A of the Children and Young Persons (Care and Protection) Act 1998,
(b) Chapters 1, 2, 15, 16 and 17 and Schedule 3 of the Children and Young Persons (Care and Protection) Act 1998 in so far as they relate to Chapters 12 and 12A of that Act,
(c) the regulations made under the Children and Young Persons (Care and Protection) Act 1998 in so far as they relate to a provision referred to in paragraph (a) or (b).
s 12: Am 2011 No 70, Sch 2.5 [5].
13 Infringements law
13 Infringements law
13 Infringements law
For the purposes of the definition of infringements law in section 5 of the Children (Education and Care Services) National Law (NSW), the Fines Act 1996 and the regulations made under that Act are declared to be an infringements law for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW).
14 Public sector law
14 Public sector law
14 Public sector law
For the purposes of the definition of public sector law in section 5 of the Children (Education and Care Services) National Law (NSW), the Government Sector Employment Act 2013 and the regulations and rules made under that Act are declared to be a public sector law for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW).
s 14: Am 2017 No 22, Sch 4.4 [3].
15 Working with children law
15 Working with children law
15 Working with children law
For the purposes of the definition of working with children law in section 5 of the Children (Education and Care Services) National Law (NSW), the Child Protection (Working with Children) Act 2012 and the regulations made under that Act are declared to be a working with children law for the purposes of the Children (Education and Care Services) National Law (NSW).
s 15: Am 2013 No 31, Sch 3.3.
16 Penalty at end of provision
16 Penalty at end of provision
16 Penalty at end of provision
In the Children (Education and Care Services) National Law (NSW), a penalty specified at the end of a provision indicates that a contravention of the provision is punishable on conviction by a penalty not more than the specified penalty.
17 Transitional
17 Transitional
17 Transitional
(1) For the purposes of the definition of declared approved family day care service in section 305 of the Children (Education and Care Services) National Law (NSW), a family day care children’s service that was an approved children’s service under Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998 is declared to be a declared approved family day care service for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW).
(2) For the purposes of the definition of declared approved provider in section 305 of the Children (Education and Care Services) National Law (NSW), a person who was a licensed service provider under Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998 is declared to be a declared approved provider for this jurisdiction for the purposes of the Children (Education and Care Services) National Law (NSW).
(3) For the purposes of the definition of declared approved service in section 305 of the [Children (Education and Care Services) National Law (NSW)](/view/html/inforce/current/act-2010-104a
This is an opening excerpt, not the complete document.
Children (Education and Care Services National Law Application) Act 2010 (New South Wales) | Zoe