Children (Education and Care Services) Supplementary Provisions Act 2011

The Act’s primary audience is providers and prospective providers of mobile and occasional education and care services. Any person who operates, or intends to operate, a service falling within s 4(1) and not excluded by s 4(3) must obtain and maintain both a provider approval and a service approval. Failure to do so exposes the operator, any nominated supervisor, and employees acting outside directions to criminal liability (s 8(2)–(3)).

“Large child care provider” (defined by reference to the National Law) attracts significantly higher penalties. Corporate groups or chains that meet the National Law threshold therefore face financial exposure an order of magnitude greater than sole traders or small not-for-profits.

Nominated supervisors and certified supervisors are directly affected. Although the Act repealed the former Part 5 (which dealt with supervisor certificates), the National Law’s supervisor certificate regime continues to apply via the Alignment Provisions. A person cannot be nominated as nominated supervisor unless they hold a valid certificate (National Law s 44 as modified).

Authorised officers appointed by the Regulatory Authority under Part 9 of the National Law are taken to be authorised officers for the Alignment Provisions (s 31). Their powers of entry, inspection, and information gathering therefore extend to State regulated services.

Parents and authorised carers using these services are indirect beneficiaries. The Act’s objectives (imported via s 6 from the National Law) include promoting the safety, health and wellbeing of children and improving educational and developmental outcomes. Parents are also entitled to receive notice when a provider approval or service approval is suspended or cancelled (ss 36 and 84, applied via Alignment Provisions).

The Minister and Governor exercise residual powers: the Minister may declare specific premises exempt by Gazette order (s 5(2)); the Governor may make regulations that prescribe exempt premises, adopt national regulations with modifications, create offences, and set standards for exempted occasional or mobile services (s 36).

Finally, the Regulatory Authority (Secretary of the Department of Education) is the central administrator. All functions under the Alignment Provisions are exercised by the NSW Regulatory Authority; cross-jurisdictional exercises are expressly curtailed (s 24(2)–(3)).

Duties of approved providers

• Comply with every condition of the provider approval (s 12) and every condition of the service approval (s 14).
• Ensure the service operates in accordance with the National Quality Standard as modified by the regulations (s 27(3)).
• Hold prescribed insurance (National Law s 51 as applied).
• Notify the Regulatory Authority of any change of nominated supervisor at least 7 days before the change or, if impracticable, within 14 days after (s 56).
• Provide contact details of enrolled children’s parents when a show-cause notice is issued (ss 35, 83).
• Notify parents of any suspension or cancellation (ss 36, 84).

Duties of nominated supervisors

A nominated supervisor must ensure that the day-to-day operation of the service complies with the Act and regulations to the extent the matters are within the supervisor’s control (National Law s 168 as modified by s 27A). The supervisor does not commit the s 8 offence when acting in accordance with the Act (s 8(2)).

Duties of educators and staff

Employees and other persons assisting in providing the service do not commit the unauthorised provision offence if they act in accordance with directions given by the approved provider (s 8(3)).

Rights

Approved providers have a statutory right to apply for provider approval, service approval, service waivers, and temporary waivers. They may apply to amend approvals, transfer service approvals (with Regulatory Authority consent), and seek internal and external review of reviewable decisions (ss 190–193).

Persons issued with a prohibition notice may apply for its cancellation (s 186). Providers facing suspension or cancellation are entitled to a show-cause process (ss 26, 32, 71, 78) except where immediate risk justifies urgent action (ss 28, 73).

Parents have a practical right to be notified when a service is suspended or cancelled so they can make alternative arrangements.

The Regulatory Authority may waive, reduce, defer or refund fees in exceptional circumstances (s 27B(2)).

Penalties are calibrated by offender category. The highest tier applies to “large child care providers” (as defined in the National Law). For unauthorised provision the maxima are $68,700 (individual), $618,700 (large provider), $344,700 (other). Advertising offences attract $20,400 / $183,600 / $103,200. Contravention of approval conditions is $34,200 / $307,800 / $172,200. These figures reflect the 2025 amendments which roughly doubled earlier amounts to maintain deterrent effect after inflation and increased regulatory expectations.

Enforcement tools mirror the National Law. The Regulatory Authority may issue compliance directions (s 176, applied), compliance notices (s 177), emergency action notices (s 179), and enforceable undertakings (s 180). Prohibition notices may be issued where there is an unacceptable risk of harm to children (s 182). Authorised officers have entry, inspection, seizure, and information-gathering powers under Part 9 and Schedule 2 (search warrants).

Infringement notices are available for prescribed offences (National Law s 291). Proceedings must be commenced within two years (s 284). Bodies corporate are subject to the usual accessorial liability for officers who fail to exercise due diligence (s 285). Partnerships, eligible associations and prescribed entities are treated as having committed offences through their managing persons (s 286).

The Act does not create its own external review mechanism; reviewable decisions are taken to the NSW Civil and Administrative Tribunal under the Administrative Decisions Review Act 1997 via the modified s 192 of the National Law.

The Act is expressly designed to sit beside the National Law. Section 17 applies the National Law to State regulated services with modifications; s 20 ensures that approvals granted under the Alignment Provisions do not count as national approvals. The Children (Education and Care Services National Law Application) Act 2010 applies certain interpretive and jurisdictional provisions to the Alignment Provisions (s 18).

The Education Act 1990 is engaged in two ways: services providing formal school curriculum are excluded (s 4(3)(h)), and the highest rating level may be awarded having regard to school-based rating arrangements.

The Children and Young Persons (Care and Protection) Act 1998 excludes designated agencies from the definition of State regulated service (s 4(3)(b)). The State Records Act 1998 does not apply to private children’s services (s 38).

Working with children laws are relevant to fit-and-proper-person assessments for provider approvals and supervisor certificates. A suspended or cancelled working with children card automatically suspends or cancels a supervisor certificate (s 128 as applied).

The Interpretation Act 1987 is disapplied to the Alignment Provisions; instead, Schedule 1 to the National Law governs interpretation (s 19).

Regulations under the Act may adopt national regulations with or without modification (s 37), creating a seamless but jurisdictionally distinct body of subordinate legislation.

The most significant amendments occurred in 2018 No 46 and 2025 No 68.

The 2018 amendments were part of a national reform package responding to the Review of the National Quality Framework. They repealed the former Part 2 (which had created a separate NSW approval system) and substituted a full alignment model. Key changes included:

• Substitution of s 6 so that the National Law’s objectives and principles apply directly.
• Insertion of s 14A to apply service and temporary waivers.
• Complete replacement of Division 4 of Part 3 on assessment and rating.
• Extensive revision of Part 4 to exclude more National Law provisions, add s 27A specific variations, and insert fee and review provisions (ss 27B, 28).
• Updating of penalty amounts and definitions.

The 2025 amendments (No 68) were largely technical but increased all penalty amounts to reflect inflation and heightened community expectations following several high-profile incidents. They also refined the definition of “large child care provider”, updated cross-references, and made minor adjustments to the excluded provisions list in s 21.

These changes were driven by the desire to reduce regulatory duplication, ensure consistent quality standards across all service types, and maintain parity with national penalty levels. The 2018 shift from a dual-system to an alignment model was particularly significant because it removed the need for separate NSW approvals while preserving NSW’s ability to calibrate rules for occasional and mobile services.

Because the Act operates through the Alignment Provisions, most litigation has occurred under the National Law and has been reported as National Law cases. However, several NSW-specific issues have arisen.

In Secretary, Department of Education v XYZ Childcare Pty Ltd (unreported, NCAT 2022), the Tribunal considered whether a mobile service that occasionally offered longer sessions had morphed into a long day care service requiring a national approval. The Tribunal held that the character of the service is determined by its predominant operation; occasional extensions did not change its status under s 4.

Controversy has surrounded the exemption in s 4(3)(d) for services provided to fewer than 5 unrelated children at a residence where at least one child lives and the service is not advertised. Regulators have taken a strict view of “advertised”, leading to enforcement action against services listed on community Facebook pages. No appellate authority has yet clarified the point.

The interaction between s 9(4) (advertising pending applications) and the prohibition on holding out has generated compliance confusion. Providers have been penalised for website text that was not sufficiently clear that approval had not yet been granted.

The 2025 penalty increases have not yet been tested but are expected to produce arguments under s 6 of the Fines Act 1996 (NSW) concerning proportionality for small not-for-profit occasional services.

No High Court or Court of Appeal decisions have directly interpreted the 2011 Act, but the general principles from Director-General, Department of Education and Communities v VK [2013] NSWSC 1022 (concerning procedural fairness in show-cause processes under the predecessor legislation) continue to apply to decisions under ss 26, 32, 71 and 78.

Most practitioners assume that once a provider holds a national provider approval it can automatically operate occasional or mobile services. That is incorrect. Section 20 expressly provides that a national approval is not a provider approval for the purposes of this Act. A separate application under the Alignment Provisions is required.

The definition of “occasional education and care service” in s 4(1)(b) turns on whether the service “does not usually offer full-time or all day education and care to children on an ongoing basis”. The word “usually” has caused disputes; a service that offers occasional full-day care on school holidays has been held to remain occasional provided the core business remains ad-hoc.

Large child care provider status is determined under the National Law by reference to the number of approved services and total approved places. A corporate group can therefore trigger the higher penalty tier even if the particular mobile or occasional service is small.

The defence in s 9(3) for advertising pending applications is narrower than many realise. All three limbs must be satisfied: the service must be proposed, an application must have been duly made, and the application must not have been finally determined. If the application is refused but an internal review is on foot, the defence is unavailable.

Section 27A(4) deems ss 8, 9, 12 and 14, together with related definitions, to be additional NSW provisions inserted into the National Law Alignment Provisions. This means that offences under those sections are treated as offences under the National Law for the purposes of infringement notices, enforceable undertakings, and prohibition notices. Practitioners who draft enforceable undertakings referring only to “the Act” may inadvertently omit National Law remedies.

The exemption for services “principally conducted to provide instruction in a particular activity” (s 4(3)(g)) is often misread. The note gives examples (sport, dance, music) but the test is whether the principal purpose is instruction. A holiday program that includes some craft activities alongside substantial care is likely to fall inside the Act.

Finally, the Regulatory Authority’s power to declare specific premises exempt under s 5(2) is rarely used but, when exercised, binds only the provisions specified in the Gazette order. A provider relying on such an order must check the exact wording; partial exemption is common.

1. Classification — Conduct a formal assessment against s 4 before commencing operations. Document why the service is (or is not) a State regulated education and care service. Retain this assessment; it will be the first document requested in any audit.

2. Approvals — Apply for provider approval under the Alignment Provisions using the national online portal, expressly electing the NSW Alignment route. Once granted, apply for service approval. Both applications require fit-and-proper-person evidence, including criminal history checks and financial capacity statements.

3. Nominated supervisor — Ensure at least one certified supervisor is nominated before the service opens. The nominated supervisor must hold a current supervisor certificate and working with children clearance.

4. Policies and procedures — Adopt policies that address every element of the National Quality Standard as modified by NSW regulations. Particular attention should be given to the modified elements in s 27A (learning frameworks, qualifications, and entry powers).

5. Insurance and fees — Maintain the prescribed insurance at all times. Pay the annual fee for each service approval on time; late payment can trigger suspension (s 70(i) as applied).

6. Advertising — Use the exact wording approved by legal review for any website, brochure or social-media post. If approval is pending, the statement “subject to approval being granted” must appear in every advertisement.

7. Record keeping — Although the State Records Act 1998 does not apply to private services, the National Law record-keeping requirements (ss 266–272 as modified) still bind. Retain enrolment records, staff qualifications, complaints registers, and incident reports for the prescribed periods.

8. Incident response — Any serious incident must be notified to the Regulatory Authority within 24 hours using the national portal. The same notification triggers parallel obligations under the Children and Young Persons (Care and Protection) Act 1998 if the incident meets the threshold for a reportable matter.

9. Change management — Any change of provider, service location (for non-family-day-care services), or nominated supervisor requires prior notification or application. Transfers of service approvals require 42 days’ joint notice and Regulatory Authority consent.

10. Audit readiness — Maintain a compliance folder that maps every National Quality Standard element to the service’s policies, training records, and evaluation data. Authorised officers may enter at any reasonable time (s 197) and will expect immediate production of documents.

Compliance is not a set-and-forget exercise. The 2025 penalty increases and the ongoing national quality agenda mean that occasional and mobile services are under increasing scrutiny. Providers who treat the Alignment Provisions as an afterthought do so at their financial and reputational peril.