2AParamount consideration—safety, rights and best interests of children

2A Paramount consideration—safety, rights and best interests of children (1) The safety, rights and best interests of children is the paramount consideration in the operation of an education and care service and the delivery of education and care services to children (the ***paramount consideration***). (2) The following persons must have regard to and apply the paramount consideration when making any decision or taking any action in relation to the operation of an education and care service or the delivery of education and care services to children— (a) an approved provider of an education and care service; (b) a person with management or control of an education and care service; (c) a person in day-to-day charge of an education and care service; (d) a nominated supervisor of an education and care service; (e) a staff member of an education and care service; (f) a volunteer at an education and care service. (3) For the purposes of this section— (a) in the case of an approved provider that is a body corporate, the constitution or rules of the body corporate is taken to include a provision requiring the body corporate to have regard to and apply the paramount consideration; and (b) in the case of an approved provider that is an eligible association, the constitution or rules of the eligible association is taken to include a provision requiring the eligible association to have regard to and apply the paramount consideration; and (c) in the case of an approved provider that is a partnership, the partnership agreement is taken to include a provision requiring the partnership to have regard to and apply the paramount consideration. (4) Subsections (2)(a) and (b) and (3)(a) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of that Act. Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision for the purposes of that section, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not operate to the extent necessary to avoid the inconsistency. 3 Objectives and guiding principles (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children. (2) The objectives of the national education and care services quality framework are— (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows— Sch. s. 3(3)(a) substituted by No. 53/2025 s. 62. (a) the paramount consideration set out in section 2A(1); (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services*.* 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3. 5 Definitions (1) In this Law— Sch. s. 5(1) def. of *approval in principle* inserted by No. 33/2023 s. 3. ***approval in principle*** means an approval in principle granted under section 110 for a proposed education and care service premises; Sch. s. 5(1) def. of *approval in principle criteria* inserted by No. 33/2023 s. 3. ***approval in principle criteria*** means, of the national regulations that regulate the education and care service premises, those which are prescribed to be the approval in principle criteria; Sch. s. 5(1) def. of *approval in principle holder* inserted by No. 33/2023 s. 3. ***approval in principle holder*** means— (a) a person granted an approval in principle under section 110; or (b) if the approval in principle is transferred to another person under section 118 or 119, that person; ***approved education and care service*** means an education and care service for which a service approval exists; ***approved family day care service*** means an approved education and care service that is a family day care service; Sch. s. 5(1) def. of *approved family day care venue* substituted by No. 9/2017 s. 4(b). ***approved family day care venue*** means a place (other than a residence) approved under section 50A or 54(8A) as a family day care venue for an approved family day care service; ***approved learning framework*** means a learning framework approved by the Ministerial Council; ***approved provider*** means a person who holds a provider approval; ***associated children's service*** means a children's service that is operated or intended to be operated by an approved provider at the same place as an approved education and care service; ***Australian Accounting Standards*** means the standards issued or pronounced by the Australian Accounting Standards Board; ***authorised officer*** means a person authorised to be an authorised officer under Part 9; ***Authority Fund*** means the Australian Children's Education and Care Quality Authority Fund established under section 274; ***Board*** means the Australian Children's Education and Care Quality Authority Board established under this Law; Sch. s. 5(1) def. of *certified supervisor* repealed by No. 9/2017 s. 4(h). ***chief executive officer*** means the chief executive officer of the National Authority appointed under this Law; ***children's service*** means a service providing or intended to provide education and care on a regular basis to children under 13 years of age that is primarily regulated under a children's services law of a participating jurisdiction and is not an education and care service; ***children's services law***, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a children's services law for the purposes of this Law; ***children's services regulator***, in relation to a participating jurisdiction, means a person declared by a law of that jurisdiction to be the children's services regulator for the purposes of this Law; ***Commonwealth Minister*** means the Minister of the Commonwealth who is responsible for policies and programs relating to education and care services; ***compliance direction*** means a compliance direction under section 176; ***compliance notice*** means a compliance notice under section 177; Sch. s. 5(1) def. of *education and care related work* inserted by No. 53/2025 s. 3. ***education and care related work*** means work in or as part of an education and care service involving the provision of education and care; ***education and care service*** means any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than— (a) a school providing full-time education to children, including children attending in the year before grade 1 but not including a preschool program delivered in a school or a preschool that is registered as a school; or (b) a preschool program delivered in a school if— (i) the program is delivered in a class or classes where a full-time education program is also being delivered to school children; and (ii) the program is being delivered to fewer than 6 children in the school; or (c) a personal arrangement; or (d) a service principally conducted to provide instruction in a particular activity; or Instruction in a particular activity could be instruction in sport, dance, music, culture or language or religious instruction. (e) a service providing education and care to patients in a hospital or patients of a medical or therapeutic care service; or (f) care provided under a child protection law of a participating jurisdiction; or (g) a prescribed class of disability service; or (h) a service of a prescribed class; Education and care services to which this Law applies include long day care services, family day care services, outside school hours services and preschool programs including those delivered in schools, unless expressly excluded. ***education and care service premises*** means— (a) in relation to an education and care service other than a family day care service, each place at which an education and care service operates or is to operate; or (b) in relation to a family day care service— (i) an office of the family day care service; or (ii) an approved family day care venue; or (iii) each part of a residence used to provide education and care to children as part of a family day care service or used to provide access to the part of the residence used to provide that education and care; ***education law***, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be an education law for the purposes of this Law; ***educator*** means an individual who provides education and care for children as part of an education and care service; ***eligible association*** means an association of a prescribed class; Sch. s. 5(1) def. of *excursion* inserted by No. 53/2025 s. 63(1). ***excursion*** means an outing organised by an education and care service to and from a destination outside of the education and care service premises, but does not include an outing organised by an education and care service provided at a school if— (a) the children taking part in the excursion leave the education and care service premises in the company of an educator; and (b) the children do not leave the school; ***family day care co-ordinator*** means a person employed or engaged by an approved provider of a family day care service to monitor and support the family day care educators who are part of the service; ***family day care educator*** means an educator engaged by or registered with a family day care service to provide education and care for children in a residence or at an approved family day care venue; Sch. s. 5(1) def. of *family day care educator assistant* inserted by No. 9/2017 s. 4(a). ***family day care educator assistant*** means a person engaged by or registered with a family day care service to assist family day care educators; ***family day care residence*** means a residence at which a family day care educator educates and cares for children as part of a family day care service; Sch. s. 5(1) def. of *family day care service* substituted by No. 9/2017 s. 4(c). ***family day care service*** means an education and care service that— (a) is delivered through the use of 2 or more educators to provide education and care to children; and (b) operates from 2 or more residences; A family day care service that is an approved family day care service may provide education and care to children from a family day care residence or an approved family day care venue. ***family member***, in relation to a child, means— (a) a parent, grandparent, brother, sister, uncle, aunt, or cousin of the child, whether of the whole blood or half-blood and whether that relationship arises by marriage (including a de facto relationship) or by adoption or otherwise; or (b) a relative of the child according to Aboriginal or Torres Strait Islander tradition; or (c) a person with whom the child resides in a family-like relationship; or (d) a person who is recognised in the child's community as having a familial role in respect of the child; ***former education and care services law***, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a former education and care services law for the purposes of this Law; Sch. s. 5(1) def. of *former provider* inserted by No. 53/2025 s. 63(1). ***former provider*** means a person who held a provider approval that is surrendered, suspended or cancelled under this Law; ***grade 1***, in relation to a school, means the first year of compulsory full-time schooling; ***guardian***, in relation to a child, means the legal guardian of the child; ***infringements law***, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be an infringements law for the purposes of this Law; Sch. s. 5(1) def. of *mandatory approval in principle jurisdiction* inserted by No. 33/2023 s. 3. ***mandatory approval in principle jurisdiction*** means a Part 4 jurisdiction in which section 49A of this Law applies; See section 49A. Sch. s. 5(1) def. of *Ministerial Council* substituted by Nos 9/2017 s. 4(d), 13/2022 s. 63. ***Ministerial Council*** means a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters under this Law; ***National Authority*** means the Australian Children's Education and Care Quality Authority established under this Law; Sch. s. 5(1) def. of *National Early Childhood Worker Register* inserted by No. 53/2025 s. 63(1). ***National Early Childhood Worker Register*** means the register established under section 269B; ***national education and care services quality framework*** means— (a) this Law; and (b) the national regulations; and (c) the National Quality Standard; and (d) the prescribed rating system; ***National Partnership Agreement*** means the National Partnership Agreement on the National Quality Agenda for Early Childhood and Care entered into by the States and Territories and the Commonwealth on 7 December 2009, as amended from time to time; ***National Quality Framework*** means the national education and care services quality framework; ***National Quality Standard*** means the National Quality Standard prescribed by the national regulations; ***national regulations*** means the regulations made under this Law; Sch. s. 5(1) def. of *nominated supervisor* substituted by No. 9/2017 s. 4(e). ***nominated supervisor***, in relation to an education and care service, means an individual who— (a) is nominated by the approved provider of the service under Part 3 to be a nominated supervisor of that service; and (b) unless the individual is the approved provider, has provided written consent to that nomination; An individual may be both a nominated supervisor of a family day care service and a family day care co‑ordinator for that service if the individual meets the criteria for each role. Sch. s. 5(1) def. of *office* substituted by No. 9/2017 s. 4(f). ***office***, in relation to a family day care service, means— (a) the principal office of the service; or (b) the principal office of the approved provider of the service; or (c) any other business office of the approved provider of the service; or (d) any premises of the service from which the service's family day care educators are co-ordinated; ***parent***, in relation to a child, includes— (a) a guardian of the child; and (b) a person who has parental responsibility for the child under a decision or order of a court; Sch. s. 5(1) def. of *Part 4 building* inserted by No. 33/2023 s. 3. ***Part 4 building*** means— (a) a building that has 3 or more storeys (including the ground level and each level of a split level); or (b) a building of a prescribed class; Sch. s. 5(1) def. of *Part 4 building law* inserted by No. 33/2023 s. 3. ***Part 4 building law***, in relation to a participating jurisdiction, means a law declared by or under a law of that jurisdiction to be a Part 4 building law; Sch. s. 5(1) def. of *Part 4 jurisdiction* inserted by No. 33/2023 s. 3. ***Part 4 jurisdiction*** means a participating jurisdiction in which Part 4 of this Law applies; See section 105. Sch. s. 5(1) def. of *Part 4 planning law* inserted by No. 33/2023 s. 3. ***Part 4 planning law***, in relation to a participating jurisdiction, means a law declared by or under a law of that jurisdiction to be a Part 4 planning law; ***participating jurisdiction*** means a State or Territory in which— (a) this Law applies as a Law of the State or Territory; or (b) a law that substantially corresponds to the provisions of this Law has been enacted; ***payment***, in relation to a prescribed fee, includes payment by electronic or other means; ***person*** means— (a) an individual; or (b) a body corporate; or (c) an eligible association; or (d) a partnership; or (e) a prescribed entity; Sch. s. 5(1) def. of *person in day-to-day charge* inserted by No. 9/2017 s. 4(a). ***person in day-to-day charge***, in relation to an education and care service, means a person who is placed in day-to-day charge of the service in accordance with the national regulations; Sch. s. 5(1) def. of *person with management or control* substituted by No. 43/2022 s. 15. ***person with management or control*** means a person referred to in section 5A; ***personal arrangement*** means education and care provided to a child— (a) by a family member or guardian of a child personally, otherwise than as a staff member of, or under an engagement with, a service providing education and care on a regular basis to children under 13 years of age; or (b) by a friend of the family of the child personally under an informal arrangement where no offer to provide that education and care was advertised; ***preschool program*** means an early childhood educational program delivered by a qualified early childhood teacher to children in the year that is 2 years before grade 1 of school; ***prescribed ineligible person*** means a person in a class of persons prescribed by the national regulations to be prescribed ineligible persons; Sch. s. 5(1) def. of *prohibition notice* inserted by No. 9/2017 s. 4(a), amended by No. 53/2025 s. 63(2). ***prohibition notice*** means a prohibition notice given under section 182(1), (3) or (4); ***protected disclosure***—see section 296; ***provider approval*** means a provider approval— (a) granted under Part 2 of this Law or this Law as applying in another participating jurisdiction; and (b) as amended under this Law or this Law as applying in another participating jurisdiction— but does not include a provider approval that has been cancelled; ***public sector law***, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a public sector law for the purposes of this Law; ***rating assessment*** means an assessment or reassessment of an approved education and care service under Part 5; ***Ratings Review Panel*** means a Ratings Review Panel established under section 146; ***receiving approved provider*** has the meaning set out in section 58; Sch. s. 5(1) def. of *recruitment agency* inserted by No. 53/2025 s. 3. ***recruitment agency*** means a person that carries on (whether or not with a view to profit and whether or not in conjunction with any other business) the business of procuring education and care related work for individuals seeking such work, whether or not the business includes procuring any other kind of work for those individuals or any other individuals; ***Regulatory Authority*** means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction; Sch. s. 5(1) def. of *related provider* inserted by No. 53/2025 s. 63(1). ***related provider*** has the meaning given by section 5B; Sch. s. 5(1) def. of *related provider determination* inserted by No. 53/2025 s. 63(1). ***related provider determination*** means a determination made under section 5C(1)(a) or (b); ***relevant Commonwealth Department*** means the government department administered by the Commonwealth Minister; ***relevant tribunal or court***, in relation to a participating jurisdiction, means the tribunal or court declared by a law of that jurisdiction to be the relevant tribunal or court for the purposes of this Law or a provision of this Law; ***residence*** means the habitable areas of a dwelling; ***school children*** includes children attending school in the year before grade 1; ***school*** means— (a) a government school; or (b) a non-government school that is registered or accredited under an education law of a participating jurisdiction; ***serious detrimental action***—see section 296; Sch. s. 5(1) def. of *serious incident* inserted by No. 9/2017 s. 4(a). ***serious incident*** means an incident or class of incidents prescribed by the national regulations as a serious incident; ***service approval*** means a service approval— (a) granted under Part 3 of this Law or this Law as applying in another participating jurisdiction; and (b) as amended under this Law or this Law as applying in another participating jurisdiction— but does not include a service approval that has been cancelled; Sch. s. 5(1) def. of *staff member* amended by No. 9/2017 s. 4(g). ***staff member***, in relation to an education and care service, means any individual (other than a nominated supervisor or a volunteer) employed, appointed or engaged to work in or as part of an education and care service, whether as family day care co-ordinator, educator or otherwise; Sch. s. 5(1) def. of *supervisor certificate* repealed by No. 9/2017 s. 4(h). Sch. s. 5(1) def. of *systemic risk* inserted by No. 53/2025 s. 63(1). ***systemic risk***, in relation to an applicant for a provider approval, an approved provider, a related provider of an applicant for a provider approval or a related provider of an approved provider, has the meaning given by section 5D; ***transferring approved provider*** has the meaning set out in section 58; ***working with children card*** means a card issued to a person under a working with children law of a participating jurisdiction that permits that person to work with children; ***working with children check*** means a notice, certificate or other document granted to, or with respect to, a person under a working with children law to the effect that— (a) the person has been assessed as suitable to work with children; or (b) there has been no information that if the person worked with children the person would pose a risk to the children; or (c) the person is not prohibited from attempting to obtain, undertake or remain in child-related employment; ***working with children law***, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a working with children law for the purposes of this Law; ***working with vulnerable people law***, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a working with vulnerable people law for the purposes of this Law. (2) In this Law, a reference (either generally or specifically) to a law or a provision of a law (including this Law) includes a reference to the statutory instruments made or in force under the law or provision. (3) In this Law a reference to education and care includes a reference to education or care. (4) In this Law, an education and care service as defined in subsection (1) is an education and care service even if the service also provides education and care to children of or over the age of 13 years. (5) In this Law, a children's service as defined in subsection (1) is a children's service even if the service also provides education and care to children of or over the age of 13 years. Sch. s. 5(6) inserted by No. 80/2011 s. 62. (6) In this Law, a reference to this Law as applying in a jurisdiction includes a reference to a law that substantially corresponds to this Law enacted in a jurisdiction. Sch. s. 5A inserted by No. 43/2022 s. 16. 5A Meaning of person with management or control For the purposes of this Law, each of the following persons is a ***person with management or control*** of an education and care service— (a) if the provider or intended provider of the service is a body corporate— (i) an officer (within the meaning of the Corporations Act 2001 of the Commonwealth) of the body corporate who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and (A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or (B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; (b) if the provider or intended provider of the service is an eligible association— (i) each member of the executive committee of the association who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and (A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or (B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; (c) if the provider or intended provider of the service is a partnership— (i) each partner who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and (A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or (B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; (d) in any other case, any person who— (i) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or (ii) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service. Sch. s. 5B inserted by No. 53/2025 s. 64. 5B Who is a *related provider*? In this Law, a ***related provider*** means a person who is— (a) a related provider within the meaning of section 4A(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth; or (b) an approved provider who is determined to be related to another approved provider or an applicant for a provider approval under a related provider determination; or (c) a former provider who is determined to be related to an approved provider or an applicant for a provider approval under a related provider determination. Sch. s. 5C inserted by No. 53/2025 s. 64.