Children (Education and Care Services National Law Application) Act 2010

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.

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.

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.

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”.

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.

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.

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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).

9. 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.

10. 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.