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 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 .