170Offence relating to unauthorised persons on education and care service premises

170 Offence relating to unauthorised persons on education and care service premises

170 Offence relating to unauthorised persons on education and care service premises

(1) This section applies to an education and care service operating in a participating jurisdiction that has a working with children law.

(2) The approved provider of the education and care service must ensure that a person does not remain at the education and care service premises while children are being educated and cared for at the premises, unless—

(a) the person is an authorised person; or

(b) the person—

(i) is under the direct supervision of an educator or other staff member of the service; and

(ii) is not a person who has applied for but has not yet been granted a working with children check clearance under a working with children law.

Note—

This is a substituted NSW provision.

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.

(3) A nominated supervisor of the education and care service must ensure that a person does not remain at the education and care service premises while children are being educated and cared for at the premises, unless—

(a) the person is an authorised person; or

(b) the person is under the direct supervision of an educator or other staff member of the service.

Penalty—$3,300

Note—

This penalty is a substituted NSW provision.

(4) A family day care educator must ensure that a person does not remain at the family day care residence or approved family day care venue at which the educator is educating and caring for children, unless—

(a) the person is an authorised person; or

(b) the person is under the direct supervision of the educator.

Penalty—$3,300.

Note—

This penalty is a substituted NSW provision.

(5) In this section—

authorised nominee, in relation to a child, means a person who has been given permission by a parent or family member of the child to collect the child from the education and care service or the family day care educator;

authorised person means a person who is—

(a) a person who holds a current working with children check clearance under a working with children law but does not include a person who has applied for but not yet been granted a working with children check clearance under that law; or

Note—

This is a substituted NSW provision.

(b) a parent or family member of a child who is being educated and cared for by the education and care service or the family day care educator; or

(c) an authorised nominee of a parent or family member of a child who is being educated and cared for by the education and care service or the family day care educator; or

(d) in the case of an emergency, medical personnel or emergency service personnel; or

(e) a person who is exempt under a working with children law of this jurisdiction from the requirement to hold a working with children check clearance under that law.

Note—

This is a substituted NSW provision.

(6) A reference in subsection (5) to a parent or family member of a child does not include a person—

(a) whose access to the child is prohibited or restricted by an order of a court or tribunal of which the approved provider, nominated supervisor or family day care educator (as the case requires) is aware; or

(b) who is an inappropriate person within the meaning of section 171.

s 170: Am 2025 No 56, Sch 2[2]; 2025 No 68, Sch 1[7].