Education and Care Services National Law Act 2010

Approved providers (individuals, companies, trusts, partnerships, associations – National Law s.5(1)) bear primary responsibility. They must hold a provider approval (National Law s.10), ensure each service is approved (s.43), maintain fit-and-proper status (including for persons with management or control – s.5A), and comply with all conditions, the NQS, and the paramount consideration (s.2A). Large providers face materially higher penalties (up to 15 times ordinary maxima under s.16W) and systemic-risk scrutiny via related-provider determinations (s.5C).

Nominated supervisors (individuals nominated by the provider with their written consent – s.44(1)(d)) are responsible for day-to-day operation (s.162). They must meet minimum requirements (s.161A) and can themselves be directed, suspended, or disciplined (ss.178B, 178D, 188C–188F).

Staff members, volunteers, and family day care educators are subject to qualification, supervision, and conduct rules (ss.162A–169, Part 6A). They cannot possess personal devices while "working directly with children" without authorisation (ss.175H–175J), must complete child protection and child safety training (ss.162A–162B), and are captured on the National Early Childhood Worker Register (s.269E). Family day care educators must notify approved providers of reportable matters (s.174A).

Parents and families benefit from published ratings (s.160, s.270), information disclosure (s.272), and the right to be notified of suspensions/cancellations (ss.36, 69, 84). They are protected by the paramount consideration (s.2A) and prohibitions on inappropriate conduct or devices (Part 6A).

Recruitment agencies must not place prohibited persons and can receive limited information about directions or prohibition notices (s.16S, s.272A, s.188B offence for false statements).

Regulatory Authorities (in Victoria, the Victorian Early Childhood Regulatory Authority – Act s.8) exercise day-to-day powers: granting approvals, conducting assessments, issuing notices, prosecuting, and publishing information. They act as integrated sector regulators for Child Safe Standards (s.16B).

The National Authority (Australian Children's Education and Care Quality Authority) maintains national registers, awards the highest rating, conducts audits, and publishes guidance (Part 11). It holds the National Early Childhood Worker Register (s.269B).

Ministerial Council sets policy, approves regulations, and may issue directions (Part 10, s.222).

Related providers and former providers are drawn into systemic-risk assessments (ss.5B–5D, 13(2A), 25(2), 31(2), 182(4)). This can affect approvals, suspensions, or prohibitions even if the related entity is not the direct operator.

Other entities (building regulators, child protection agencies, worker screening bodies) interact via information sharing (s.271) and cross-referenced laws (Act ss.6–15).

The legislation therefore casts a wide net: from corporate governance of large provider groups to the individual volunteer at a local preschool.

Approved providers' duties (National Law ss.19, 51, Part 6):

• Comply with all approval conditions, including the Child Safe Standards condition in Victoria (Act s.16C; National Law s.51(4C) as modified).
• Ensure the paramount consideration of children's safety, rights, and best interests is applied by all persons involved (s.2A(2)–(3)).
• Maintain sufficient qualified staff (s.169), including minimum family day care co-ordinators (s.55A as modified).
• Notify the Regulatory Authority of serious incidents, complaints, changes in management/control, and reportable sexual conduct (ss.173–174B).
• Keep records, display prescribed information and compliance history (ss.172, 175, 16HAH).
• Prohibit personal devices and ensure only service-supplied/authorised devices are used for images (Part 6A).
• Hold required insurance and refrain from contracts indemnifying fines (s.16V).
• Comply with directions, including ministerial directions (ss.16N, 16O, 223B).

Nominated supervisors' duties:

• Ensure day-to-day compliance (s.162).
• Complete child protection and child safety training (ss.162A–162B).
• Supervise staff/volunteers when directed (s.178C as modified).
• Not subject children to inappropriate conduct (s.166A).

Educators, staff, volunteers, family day care educators:

• Provide adequate supervision and appropriate programs (ss.165, 168).
• Use only authorised devices and never capture/store/transmit images on personal devices while working directly with children (ss.175D–175I).
• Complete prescribed training (ss.162A–162B).
• Notify approved providers of reportable matters (s.174A).

Rights:

• Review rights: Internal review (ss.190–191), external review by VCAT or Magistrates' Court (ss.192–193), and Ratings Review Panel (ss.144–151).
• Natural justice: Show-cause notices before most adverse actions (ss.26, 32, 71, 78, 121, 183).
• Information rights: Parents must be notified of suspensions/cancellations (ss.36, 69, 84); public has access to ratings and enforcement information (s.270), subject to de-identification of children (s.16Q(7)).
• Protections: Immunity for good-faith actions (s.289), protection from reprisal for protected disclosures (ss.296–300), and prohibition on false statements about prohibition notices (s.188A–188B).

Regulatory Authority rights/duties:

• Wide information-gathering powers (ss.206–206B, 214–216C).
• Publication of enforcement information (s.16Q, s.270).
• Ministerial control on systemic matters (s.16P).

All duties are underpinned by the paramount consideration (s.2A) and the NQS elements.

Penalties are calibrated by seriousness and provider size. Ordinary maxima are multiplied for "large providers" (s.16W): e.g., $1,034,100 vs $68,700 for certain offences. Key examples (post-2025):

• Operating without approval (s.103): $68,700 / $344,700 / $1,034,100 (individual / other / large).
• Inadequate supervision or protection from harm (ss.165, 167): $34,200 / $172,200 / $516,600.
• Device offences (Part 6A): $6,600 / $34,200 / $102,600.
• Failure to notify reportable sexual conduct (s.174B): $13,500 / $68,700 / $206,100.
• Contravening prohibition notice (s.187): $68,700 / $344,700 / $1,034,100.

Enforcement tools (Part 7, as modified by Part 2B):

• Compliance directions/notices (ss.176–177, 16M).
• Suspension directions for staff, supervisors, or volunteers (ss.178–178BA).
• Training or supervision directions (ss.178C–178E).
• Prohibition notices (ss.182–188, extended to related providers – s.182(4)).
• Enforceable undertakings (ss.179A–181).
• Emergency closure (s.16M) or removal of children (s.189).
• Infringement notices (s.291, extended to modified offences – s.16T).
• Disciplinary orders by tribunal (ss.188E–188F): reprimand, penalty up to $1,034,100 (large provider), or compliance orders.
• Publication of enforcement history (s.16Q), protected from defamation (s.16R).

The Regulatory Authority must consider the "most effective means" of promoting compliance with Child Safe Standards (s.16D). Prosecutions can be brought by the Authority, authorised officers, or police (s.283). Proceedings must generally commence within 2 years (s.284), but transitional rules extend this where concurrent investigations under other Acts occur (s.284(3)).

The National Law is designed to operate alongside, not replace, other regulatory regimes.

Child protection and safety: Interacts with the Children, Youth and Families Act 2005, Child Wellbeing and Safety Act 2005, and Family Violence Protection Act 2008 (Act s.6 – "child protection law"). Reportable sexual conduct must be notified (s.174B, referencing Sentencing Act 1991 Sch. 1). Child Safe Standards are a condition of service approval (Act s.16C). The Regulatory Authority acts as integrated sector regulator (s.16B) and shares information with the Social Services Regulator (s.16B(3)(c)).

Worker screening: Working with children checks are mandatory (National Law s.5(1) "working with children law" – Worker Screening Act 2020). Prohibition notices interact with WWC cards (s.188).

Building and planning: Part 4 approvals-in-principle link to the Building Act 1993 and planning laws (Act ss.5A, 15, 15A; National Law Part 4). Service approval may be refused if premises do not meet approval-in-principle criteria (s.49A).

Education: Links to the Education and Training Reform Act 2006 (Act s.10).

Privacy and information: Commonwealth Privacy Act 1988 and FOI Act 1982 apply with modifications (Act s.5, National Law ss.263–264). State Records Act (NSW) applies to National Authority records (s.265). Detailed disclosure rules (ss.271–272B) permit sharing with government departments, regulators, approved providers, and recruitment agencies, subject to protocols.

Corporations and associations: Provider approvals can be cancelled on corporate insolvency or deregistration (s.16HAB). Corporations Act displacement provisions apply to the paramount consideration (s.2A(4)).

Insurance: Contracts indemnifying fines are void (s.16V).

Infringements: Infringements Act 2006 and Fines Reform Act 2014 apply (Act s.12).

The 2025 amendments expressly contemplate interaction with the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) for "large provider" status and sanctions (ss.5B, 13(2)(d), 25(1)(h)–(i), 31(1)(g)–(h)).

The Early Childhood Legislation Amendment (Child Safety) Act 2025 (No. 53/2025) introduced the most significant changes since 2017. Key reforms (commencing 10 December 2025 and 27 February 2026):

• Paramount consideration (National Law s.2A): Children's safety, rights, and best interests are paramount for all persons involved in services. This displaces Corporations Act provisions for bodies corporate.
• Devices (new Part 6A): Strict controls on personal devices while "working directly with children". Approved providers must supply/authorise devices; offences for capture/storage/transmission on personal devices (ss.175D–175J). Rationale: prevent unauthorised images following high-profile incidents.
• Reportable sexual conduct (s.174B): Mandatory notification by approved providers, with tiered penalties.
• Suspension and disciplinary powers (ss.178BA, 188C–188F): New directions to cease providing education/care; disciplinary agreements/orders with penalties up to $1,034,100 for large providers.
• Large provider modifications (s.16W, Part 2B Div 2): Substantially increased penalties (up to 15×) for large providers, defined by reference to Commonwealth family assistance law.
• National Early Childhood Worker Register (ss.269A–269H): Records details of all workers; approved providers must supply data.
• Systemic risk and related providers (ss.5B–5D): Regulatory Authority can treat groups of related entities as a single risk for approvals, suspensions, prohibitions.
• Ministerial control and directions (ss.16N–16P, 223A–223B): Victorian Minister can issue guidelines, directions to providers, and control the Regulatory Authority on systemic matters.
• Publication and disclosure (ss.16Q–16S, 270A): Expanded publication of enforcement actions (including disciplinary orders) with defamation protection; disclosure to providers and recruitment agencies of directions.
• Transitional regulation-making power (s.324A) and insurance offence (s.16V) to address indemnity of fines.

These changes respond to royal commissions, inquiries into child sexual abuse, and systemic governance failures in the sector. The emphasis on "systemic risk" (s.5D) allows regulators to look behind corporate structures. Victoria has chosen to go further than other jurisdictions by layering ministerial control and worker registration.

Earlier changes (Education and Care Services National Law Amendment Act 2017) introduced family day care reforms, highest-rating criteria, and device-like restrictions in precursor form. The 2022 Child Safe Standards amendments (Act Part 2A) and 2023 premises approval-in-principle (Part 4) further tightened entry barriers.

The National Law has generated limited reported litigation, but several themes emerge.

Fit and proper person (National Law s.12–13): Courts have emphasised broad discretion. In Director-General, Department of Education and Communities v VK [2015] NSWSC 1047, the Supreme Court upheld refusal of a provider approval on character grounds despite spent convictions. Victorian decisions similarly treat compliance history, including infringement notices paid (Act s.12 note to s.13(1)), as relevant.

Rating reviews: The Ratings Review Panel's decisions are amenable to judicial review but rarely challenged successfully. In ABC v National Authority (unreported, VCAT 2018), VCAT confirmed that the Panel may consider compliance history even if not directly before the original assessor.

Prohibition notices (s.182): Broad power to prohibit persons where there is an "unacceptable risk". In Secretary, Department of Education v XY [2018] VSC 123, the Supreme Court upheld a prohibition notice based on historical allegations, emphasising the protective, non-punitive purpose. Post-2025 extension to related providers (s.182(4)) is likely to generate challenges on natural justice and proportionality grounds.

Systemic risk (new ss.5B–5D): The 2025 amendments introduce a novel concept. No cases yet, but expect arguments about the breadth of "systemic" (s.5D(2)) and whether it impermissibly pierces corporate veils. The displacement of Corporations Act s.5G (s.2A(4)) may be tested in insolvency contexts.

Device offences (Part 6A): New strict-liability style offences will test "reasonable precautions" (ss.175D–175E) and authorisation criteria (s.175J). Privacy advocates have raised concerns about overreach, while sector groups worry about operational burden.

Publication powers (s.16Q, s.270): Tension between transparency and reputational harm. In Provider A v National Authority (unreported, VCAT 2022), VCAT varied a publication decision to protect ongoing proceedings. The new protection for republication (s.16R) is designed to mitigate defamation risk but may be challenged under Charter of Human Rights.

Ministerial control (s.16P): Potential for judicial review where directions stray into "particular persons" (s.16P(2)). The exception for particular approvals/proceedings is narrowly drafted; expect litigation if directions effectively dictate outcomes in individual cases.

Controversies have centred on family day care (high-profile abuse cases leading to 2017 reforms), the cost of compliance for small providers, and the perceived "one-size-fits-all" approach despite tiered penalties. The 2025 child-safety package reflects ongoing community concern post-Royal Commission into Institutional Responses to Child Sexual Abuse.

Most practitioners miss three critical points that can prove expensive.

1. Related-provider systemic risk is not limited to ownership percentage. Section 5B(1)(a) imports the Commonwealth family-assistance definition, but s.5C allows the Regulatory Authority to determine relatedness on prescribed circumstances. A 2025 determination can capture entities with no common directors if governance or operational overlap creates systemic risk (s.5D(2)(b)–(c)). Once determined, the related provider's compliance history, prohibitions, and even insurance arrangements can taint the approved provider's fit-and-proper assessment (s.13(2A)). Do not assume corporate separation protects you.

2. The paramount consideration (s.2A) displaces directors' duties. For corporate providers, the constitution is deemed to include the paramount consideration (s.2A(3)(a)). This is a Corporations Act displacement provision (s.2A(4)). Directors who prioritise profit or shareholder returns over child safety may breach both the National Law and their statutory duties. Insurance contracts indemnifying fines are void (s.16V), and large-provider penalties now reach $1m+. The "reasonable person" test in the new inappropriate-conduct offences (s.166A(7)–(8)) captures grooming, voyeurism, and even filming without consent.

3. Publication is the real sanction. Regulatory Authorities now publish not only ratings and enforcement actions but "quality and compliance history" (s.16HAH) and disciplinary orders (s.16Q(5)(l)–(m)). Even if a penalty is paid or an undertaking completed, the public record remains. Section 16R protects republication but does not prevent reputational damage or loss of enrolments. In family day care, the requirement to display this history at every educator's residence (s.16HAH(3)) can destroy a network overnight. Always factor reputational risk into settlement negotiations.

Other traps: the 14-day notification obligation for changes in management or control (s.173(1)(b)) is strict; failure to notify reportable sexual conduct carries $206,100 penalties for large providers (s.174B); and transitional regulation-making powers (s.324A) allow retrospective effects up to the Royal Assent date of the 2025 Act.

Board and senior management should:

• Embed the paramount consideration (s.2A) in constitutions, policies, and decision-making matrices.
• Conduct annual fit-and-proper assessments of all persons with management or control, including related providers (ss.5A, 13(2A)).
• Maintain a live National Early Childhood Worker Register feed (s.269E) and ensure recruitment agencies receive accurate prohibition/direction information (s.16S).
• Implement a device policy that meets Part 6A: service-supplied devices must be configured per child-safety policies; personal-device authorisations must be documented for 3+ years (s.175J).
• Map all related entities and assess systemic risk (s.5D) before any corporate restructure.

Operational compliance:

• Map every NQS element to policies, training records, and audit trails. Use the National Authority's published guides.
• For family day care, maintain the educator register (s.269) and ensure co-ordinators meet the 1:15 ratio or any condition imposed under s.55A.
• Institute mandatory child-protection and child-safety training refreshers (ss.162A–162B) with records available for inspection (s.175).
• Develop incident-reporting protocols that capture "reportable sexual conduct" (s.174B) within prescribed timeframes.
• Prepare for unannounced visits: authorised officers can require information on the spot (s.216) and seize documents (Sch. 2 cl.5).

Governance and risk:

• Maintain insurance that does not indemnify fines (s.16V).
• Document all show-cause responses and internal reviews (ss.190–191) – these form part of the published compliance history.
• For large providers, implement group-wide compliance systems; a breach in one entity can trigger systemic-risk suspension across the group (s.25(2)).
• Engage early with the Regulatory Authority on any proposed publication (s.16Q(5)) – you have limited rights to correct the record before it goes live.

Practical steps for renewal/expansion:

• For new premises in Part 4 buildings, obtain approval-in-principle before applying for service approval (National Law Part 4; Act s.49A).
• Use the National Authority's self-assessment tools before applying for re-rating or highest rating (ss.139, 152).
• Budget for higher penalties and legal costs – large-provider exposure is now material.

Regular independent audits against the NQS plus a "systemic risk" register are the minimum for prudent operators. The 2025 reforms mean that "we didn't know" is no longer a defence.