provide for a national scheme regarding the regulation of education and care services for children; and
make consequential and other amendments to various other Acts,
and for related purposes.
Part 1 — Preliminary
1. Short title
This is the Education and Care Services National Law (WA) Act 2012.
2. Commencement
This Act comes into operation as follows —
(a) sections 1 and 2 — on the day on which this Act receives the Royal Assent (assent day);
(b) Part 4 Division 3 —
(i) on a day fixed by proclamation; or
(ii) if the day fixed under subparagraph (i) is before the day on which the Health, Safety and Civil Liability (Children in Schools and Child Care Services) Act 2011 Part 2 (Part 2) comes into operation — immediately after Part 2 comes into operation;
(c) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
3. Terms used
(1) For the purposes of this Act, the local application provisions of this Act are the provisions of this Act other than the Education and Care Services National Law set out in the Schedule.
(2) In the local application provisions of this Act —
Education and Care Services National Law (Western Australia) means the provisions applying in this jurisdiction because of section 4.
(3) If a term is given a meaning in the Education and Care Services National Law set out in the Schedule, it has the same meaning in the local application provisions of this Act.
Part 2 — Application of Education and Care Services National Law
4. Application of the Education and Care Services National Law
The Education and Care Services National Law set out in the Schedule —
(a) applies as a law of this jurisdiction; and
(b) as so applying, may be referred to as the ; and
Education and Care Services National Law (Western Australia)
(c) as so applying, is part of this Act.
5. Exclusion of legislation of this jurisdiction
(1) Except as provided in section 17, the following Acts of this jurisdiction do not apply to the Education and Care Services National Law (Western Australia) or to the instruments made under that Law —
(a) the Freedom of Information Act 1992;
(b) the Interpretation Act 1984.
(2) The following Acts of this jurisdiction do not apply to the Education and Care Services National Law (Western Australia) or to the instruments made under that Law, except to the extent that that Law and those instruments apply to the Regulatory Authority and the employees, decisions, actions and records of the Regulatory Authority —
(a) the Auditor General Act 2006;
(b) the Financial Management Act 2006;
(c) the Parliamentary Commissioner Act 1971;
(d) the Public Sector Management Act 1994;
(e) the State Records Act 2000.
6. Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction
In the Education and Care Services National Law (Western Australia) —
child protection law means the Children and Community Services Act 2004;
court means the Magistrates Court of Western Australia established under the Magistrates Court Act 2004;
de facto relationship has the meaning given in the Interpretation Act 1984 section 13A;
local authority means a local government established under the Local Government Act 1995;
magistrate means —
(a) a magistrate within the meaning of the Magistrates Court Act 2004; or
(b) a justice of the peace;
public authority has the meaning given in the Child Care Services Act 2007 section 3;
registered teacher has the meaning given in the Teacher Registration Act 2012 section 3;
superior court means the Supreme Court of Western Australia;
this jurisdiction means Western Australia.
[Section 6 amended: No. 18 of 2018 s. 4.]
7. Relevant tribunal or court
For the purposes of the definition of relevant tribunal or court in the Education and Care Services National Law (Western Australia) section 5, the State Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of that Law.
8. Regulatory Authority
For the purposes of the definition of Regulatory Authority in the Education and Care Services National Law (Western Australia) section 5, the chief executive officer of the department principally assisting in the administration of the Child Care Services Act 2007 is declared to be the regulatory authority for this jurisdiction for the purposes of that Law*.*
9. Children’s services law
(1) For the purposes of the definition of children’s services law in the Education and Care Services National Law (Western Australia) section 5, the Child Care Services Act 2007 and the regulations made under that Act are declared to be a children’s services law for this jurisdiction for the purposes of that Law.
(2) For the purposes of the definition of children’s services regulator in the Education and Care Services National Law (Western Australia) section 5, the chief executive officer of the department principally assisting in the administration of the Child Care Services Act 2007 is declared to be a children’s services regulator for this jurisdiction for the purposes of that Law.
10. Education law
For the purposes of the definition of education law in the Education and Care Services National Law (Western Australia) section 5, the School Education Act 1999 and the regulations made under that Act and the Teacher Registration Act 2012 and the regulations made under that Act are declared to be an education law for this jurisdiction for the purposes of that Law.
[Section 10 amended: No. 18 of 2018 s. 5.]
11. Former education and care services law
For the purposes of the definition of former education and care services law in the Education and Care Services National Law (Western Australia) section 5, the Child Care Services Act 2007 and the regulations made under that Act (both as in force immediately before the commencement of the Education and Care Services National Law (Western Australia) Part 3) are declared to be a former education and care services law for this jurisdiction for the purposes of that Law.
12. Infringements law
For the purposes of the definition of infringements law in the Education and Care Services National Law (Western Australia) section 5, the Criminal Procedure Act 2004 Part 2 and the regulations made for the purposes of that Part of that Act are declared to be an infringements law for this jurisdiction for the purposes of that Law.
13. Public sector law
For the purposes of the definition of public sector law in the Education and Care Services National Law (Western Australia) section 5, the Public Sector Management Act 1994 and the regulations made under that Act are declared to be a public sector law for this jurisdiction for the purposes of that Law.
14. Working with children law
For the purposes of the definition of working with children law in the Education and Care Services National Law (Western Australia) section 5, the Working with Children (Screening) Act 2004 and the regulations made under that Act are declared to be a working with children law for this jurisdiction for the purposes of that Law*.*
[Section 14 amended: No. 47 of 2022 s. 53.]
15. Transitional
(1) For the purposes of the definition of declared approved provider in the Education and Care Services National Law (Western Australia) section 305, a person who held a licence, other than a licence to provide a family day care service, under the Child Care Services Act 2007 is declared to be a declared approved provider for this jurisdiction for the purposes of that Law.
(2) For the purposes of the definition of declared approved service in the Education and Care Services National Law (Western Australia) section 305, a service to which a licence to provide a child care service, other than a licence to provide a family day care service, applied under the Child Care Services Act 2007 is declared to be a declared approved service for this jurisdiction for the purposes of that Law.
[(3) deleted]
(4) For the purposes of the definition of declared nominated supervisor in the Education and Care Services National Law (Western Australia) section 305, the following persons are declared to be declared nominated supervisors for this jurisdiction for the purposes of that Law —
(a) for a declared approved service, a person who was a supervising officer under the Child Care Services Act 2007 for that service;
(b) for a declared out of scope service, a person recognised as the coordinator of the service by the National Childcare Accreditation Council Inc.
(5) For the purposes of the definition of declared out of scope service in the Education and Care Services National Law (Western Australia) section 305, a service that —
(a) was delivered through the use of 2 or more individuals who each held a licence to provide a family day care service under the Child Care Services Act 2007; and
(b) provided education and care for children in residences whether or not the service also provided education and care to children at a place other than a residence,
is declared to be a declared out of scope service for this jurisdiction for the purposes of that Law.
(6) For the purposes of the definition of former approval in the Education and Care Services National Law (Western Australia) section 305, a licence to provide a child care service, other than a licence to provide a family day care service, under the Child Care Services Act 2007 is declared to be a former approval for this jurisdiction for the purposes of that Law*.*
[Section 15 amended: No. 18 of 2018 s. 6.]
Part 3 — Other local provisions
16. Tabling of annual report
In addition to the requirements of the Education and Care Services National Law (Western Australia) section 280, the Minister must cause the annual report of the National Authority, and the report of the public sector auditor with respect to the financial statement in the report, to be laid before each House of the Western Australian Parliament as soon as is practicable after those reports have been tabled under that section.
17. National regulations under the WA national law
Where regulations may be made under the Education and Care Services National Law (Western Australia) section 301 by the Governor —
(a) the Governor means the Governor of Western Australia and includes the officer for the time being administering the Government of Western Australia; and
(b) the Interpretation Act 1984 sections 41, 42 and 60 apply to, and in respect of the making of, regulations by the Governor under that section.
18. Review of Act
(1) The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiration of 5 years from the commencement of this section.
(2) The Minister is to prepare a report based on the review carried out under subsection (1) and is to cause the report to be laid before each House of the Western Australian Parliament as soon as is practicable after the report is prepared, and in any event, not later than 12 months after the requirement to carry out the review arose.
[19. Deleted: No. 18 of 2018 s. 7(1).]
[Part 4 (s. 20‑54) deleted: No. 18 of 2018 s. 8.]
Schedule — Education and Care Services National Law
[s. 4]
Short title
This Law may be cited as the Education and Care Services National Law.
Commencement
This Law commences in a participating jurisdiction as provided under the Act of that jurisdiction that applies this Law as a law of that jurisdiction.
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 —
(a) that the best interests of the child are paramount;
(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.
Note: This section differs from section 3 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
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.
Definitions
(1) In this Law —
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;
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;
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;
community kindergarten means a kindergarten registered under the School Education Act 1999 Part 5:
compliance direction means a compliance direction under section 176;
compliance notice means a compliance notice under section 177;
disciplinary action means disciplinary action under Part 7 Division 3A;
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 an educational program to school children in accordance with the School Education Act 1999; or
(b) a community kindergarten providing an educational program to children in accordance with the School Education Act 1999; or
(c) a personal arrangement; or
(d) a service principally conducted to provide instruction in a particular activity; or
Example: 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;
Example: Education and care services to which this Law applies include long day care services, family day care services and outside school hours services, 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;
educational program means an educational programme as defined in the School Education Act 1999;
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;
executor, in relation to an approved provider, includes a person —
(a) entitled to a grant of letters of administration in relation to the estate of the approved provider, including with the will annexed; or
(b) granted letters of administration in relation to the estate of the approved provider, including with the will annexed; or
(c) granted probate of the will of the approved provider; or
(d) named as executor in a valid will of the approved provider;
Note: This definition is not included in section 5 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
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;
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;
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;
Note: 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;
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;
Ministerial Council means the Ministerial Council which —
(a) is constituted from time to time by Ministers of the Crown of the Commonwealth, State and Territory Governments; and
(b) is responsible for early childhood education and care matters;
National Authority means the Australian Children’s Education and Care Quality Authority established under this Law;
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;
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;
Note: 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.
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, means a person who at law has responsibility for —
(a) the long term care, welfare and development of the child; or
(b) the day‑to‑day care, welfare and development of the child;
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;
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;
person with management or control, in relation to an education and care service, means —
(a) if the provider or intended provider of the service is a body corporate, an officer of the body corporate within the meaning of the Corporations Act 2001 of the Commonwealth who is responsible for managing the delivery of the education and care service; or
(b) if the provider of the service is an eligible association, each member of the executive committee of the association who has the responsibility, alone or with others, for managing the delivery of the education and care service; or
(c) if the provider of the service is a partnership, each partner who has the responsibility, alone or with others, for managing the delivery of the education and care service; or
(d) in any other case, a person who has the responsibility, alone or with others, for managing the delivery of the education and care service;
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;
prescribed ineligible person means a person in a class of persons prescribed by the national regulations to be prescribed ineligible persons;
prohibition notice means a prohibition notice given under section 182(1) or 182(3);
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;
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;
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 students, as defined in the School Education Act 1999, attending school 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;
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;
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;
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.
(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, or applying, in a jurisdiction.
Note: This section differs from section 5 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 5 amended: No. 18 of 2018 s. 10.]
Interpretation generally
(1) Schedule 1 applies in relation to this Law.
(2) The National Partnership Agreement is declared to be a relevant document for the purposes of paragraph (h) of the definition of extrinsic material in clause 8(1) of Schedule 1.
Single national entity
(1) It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of other participating jurisdictions, has the effect that an entity established by this Law is one single national entity, with functions conferred by this Law as so applied.
(2) An entity established by this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction.
(3) An entity established by this Law may exercise its functions in relation to —
(a) one participating jurisdiction; or
(b) 2 or more or all participating jurisdictions collectively.
Extraterritorial operation of Law
It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following —
(a) things situated in or outside the territorial limits of this jurisdiction;
(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.
Law binds the State
(1) This Law binds the State.
(2) In this section —
State means the Crown in right of this jurisdiction, and includes —
(a) the Government of this jurisdiction; and
(b) a Minister of the Crown in right of this jurisdiction; and
(c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction.
Part 2 — Provider approval
Division 1 — Application for provider approval
Application for provider approval
(1) A person, other than a prescribed ineligible person, may apply to the Regulatory Authority for a provider approval.
(2) An application may be made by more than one person.
(3) If an application is made by more than one person —
(a) the prescribed information requested under section 11(c) must be provided in respect of each person; and
(b) the requirements of this Division must be complied with by and in respect of each person.
Note: This section differs from section 10 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
Form of application
An application under section 10 must —
(a) be made to the Regulatory Authority of the participating jurisdiction —
(i) in which the applicant, or any of the applicants, is ordinarily resident; or
(ii) if the applicant or applicants are not individuals, in which the principal office of the applicant or any of the applicants is located; and
(b) be in writing; and
(c) include the prescribed information that is requested by the Regulatory Authority; and
(d) include payment of the prescribed fee.
Note: This section differs from section 11 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 11 amended: No. 18 of 2018 s. 90.]
Applicant must be fit and proper person
(1) An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service.
(2) If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that —
(a) each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and
(b) the applicant is a fit and proper person to be involved in the provision of an education and care service.
(3) The head of a government department administering an education law of a participating jurisdiction is taken to be a fit and proper person for the purposes of this Part.
Matters to be taken into account in assessing whether fit and proper person
(1) In determining whether a person is a fit and proper person under this Division, the Regulatory Authority must have regard to —
(a) the person’s history of compliance with —
(i) this Law as applying in any participating jurisdiction; and
(ii) a former education and care services law of a participating jurisdiction; and
(iii) a children’s services law of a participating jurisdiction; and
(iv) an education law of a participating jurisdiction; and
Note: If a person has been served with an infringement notice for an offence under this Law, and the person has paid the penalty, the Regulatory Authority cannot consider that conduct when determining whether the person is fit and proper. See section 291(5).
(b) any decision under a former education and care services law, a children’s services law or an education law of a participating jurisdiction to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification or other authorisation granted to the person under that law; and
(c) either —
(i) any prescribed matters relating to the criminal history of the person to the extent that history may affect the person’s suitability for the role of provider of an education and care service; or
(ii) any check of the person under a working with vulnerable people law of a participating jurisdiction; and
(d) whether the person is bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors or, in the case of a body corporate, is insolvent under administration or an externally‑administered body corporate.
(2) Without limiting subsection (1), the Regulatory Authority may have regard to —
(a) whether the person has a medical condition that may cause the person to be incapable of being responsible for providing an education and care service in accordance with this Law; and
(b) whether the financial circumstances of the person may significantly limit the person’s capacity to meet the person’s obligations in providing an education and care service in accordance with this Law; and
(c) whether the person has the management capability to operate an education and care service in accordance with this Law; and
(d) any of the following actions taken under the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth in relation to a child care service approved under that Act, operated by the person or in relation to which the person was a person with management or control —
(i) any sanction imposed under section 200 of that Act;
(ii) any suspension imposed under section 201A of that Act;
(iii) any infringement notice given under section 219TSI of that Act.
(3) Nothing in subsection (1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service.
[Section 13 amended: No. 18 of 2018 s. 11.]
Regulatory Authority may seek further information
(1) For the purpose of carrying out an assessment as to whether a person is a fit and proper person, the Regulatory Authority may —
(a) ask the person to provide further information; and
(b) undertake inquiries in relation to the person.
(2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application.
[Section 14 amended: No. 18 of 2018 s. 12.]
Grant or refusal of provider approval
(1) On an application under section 10, the Regulatory Authority may —
(a) grant the provider approval; or
(b) refuse to grant the provider approval.
Note: A provider approval is granted subject to conditions in accordance with section 19.
(2) The Regulatory Authority must not grant a provider approval unless the Authority is satisfied as to the matters in section 12.
(3) Subject to subsection (4), the Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application.
Note: If further information is requested under section 14(2), the period between the making of the request and the provision of the information is not included in the 60 day period.
(4) The period referred to in subsection (3) may be extended by up to 30 days with the agreement of the applicant.
(5) The Regulatory Authority is taken to have refused to grant a provider approval if the Regulatory Authority has not made a decision under subsection (1) —
(a) within the relevant period required under subsection (3); or
(b) within the period extended under subsection (4),
Notice of decision on application
The Regulatory Authority must give written notice to the applicant of a decision under section 15 and the reasons for that decision within 7 days after the decision is made.
Duration of provider approval
A provider approval granted under section 15 continues in force until —
(a) it is cancelled or surrendered under this Law, or this Law as applying in a participating jurisdiction; or
(b) if the provider approval is granted to an individual — the individual dies.
Note: This section differs from section 17 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 17 amended: No. 18 of 2018 s. 13.]
Effect of provider approval
A provider approval authorises the approved provider to operate an approved education and care service and an associated children’s service if the approved provider is the holder of the service approval for those services.
Conditions on provider approval
(1) A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority.
(2) Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law.
(3) A condition of a provider approval applies to the provider as the operator of any education and care service or associated children’s service, unless the condition expressly provides otherwise.
(4) An approved provider must comply with the conditions of the provider approval.
Copy of provider approval
If the Regulatory Authority grants a provider approval under this Part, the Regulatory Authority must provide a copy of the provider approval to the approved provider stating —
(a) the name of the approved provider; and
(b) if the approved provider is not an individual, the address of the principal office of the provider; and
(c) any conditions to which the approval is subject; and
(d) the date that the provider approval was granted; and
(e) the provider approval number; and
(f) any other prescribed matters.
Division 2 — Reassessment
Reassessment of fitness and propriety
(1) The Regulatory Authority may at any time assess —
(a) whether an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or
(b) whether a person with management or control of an education and care service operated by an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or
(c) whether a person who becomes a person with management or control of an education and care service operated by the approved provider after the grant of the provider approval is a fit and proper person to be involved in the provision of an education and care service.
(2) Sections 13 and 14 apply to the reassessment.
Division 3 — Amendment of provider approvals
Amendment of provider approval on application
(1) An approved provider may apply to the Regulatory Authority for an amendment of the provider approval.
(3) The Regulatory Authority must decide the application by —
(a) amending the provider approval in the way applied for; or
(b) with the applicant’s written agreement, amending the provider approval in another way; or
(c) refusing to amend the provider approval.
(4) The Regulatory Authority must make a decision on the application within 30 days after the Regulatory Authority receives the application.
(5) Without limiting subsection (3), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.
Note: This section differs from section 22 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 22 amended: No. 18 of 2018 s. 90.]
Amendment of provider approval by Regulatory Authority
(1) The Regulatory Authority may amend a provider approval at any time without an application from the approved provider.
(2) Without limiting subsection (1), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.
(3) The Regulatory Authority must give written notice to the approved provider of the amendment.
(4) An amendment under this section has effect —
(a) 14 days after the Regulatory Authority gives notice of the amendment under subsection (3); or
Copy of amended provider approval to be provided
If the Regulatory Authority amends a provider approval under this Division, the Regulatory Authority must —
(a) provide an amended copy of the provider approval to the approved provider; and
(b) make any necessary amendments to any service approval held by the provider and provide an amended copy of the service approval to the approved provider.
Division 4 — Suspension or cancellation of provider approval
Grounds for suspension of provider approval
(1) The Regulatory Authority may suspend a provider approval if —
(a) the approved provider, or a person with management or control of an education and care service operated by the approved provider, has been charged with an indictable offence, or with an offence that if committed in this jurisdiction would be an indictable offence, or any other circumstance indicates that the approved provider, or a person with management or control of an education and care service operated by the approved provider, may not be a fit and proper person to be involved in the provision of an education and care service; or
(b) the approved provider has failed to comply with a condition of the provider approval; or
(c) the approved provider has failed to comply with this Law as applying in any participating jurisdiction; or
(d) action is being taken under Part 7 (other than a compliance direction) in respect of more than one education and care service operated by the approved provider; or
(e) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension); or
(f) the approved provider purported to transfer or receive a transfer of an approved education and care service without the consent of the Regulatory Authority; or
(g) the approved provider has not paid —
(i) an amount due under a monetary order made under, or in relation to proceedings commenced by an allegation made under, section 188AB; or
(ii) any outstanding prescribed fees.
(2) In subsection (1) —
monetary order has the meaning given in the State Administrative Tribunal Act 2004 section 3(1).
Note: This section differs from section 25 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 25 amended: No. 18 of 2018 s. 14.]
Show cause notice before suspension
(1) This section applies if the Regulatory Authority is considering the suspension of a provider approval under section 25.
(a) that the Regulatory Authority intends to suspend the provider approval; and
(b) the proposed period of suspension; and
(c) the reasons for the proposed suspension; and
(d) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed suspension.
Decision to suspend after show cause process
After considering any written response from the approved provider received within the time allowed by section 26(2)(d), the Regulatory Authority may —
(a) if the suspension was proposed on a ground referred to in section 25(1)(a), accept an undertaking from the approved provider under section 179A; or
(b) in any case —
(i) suspend the provider approval for a period not more than the prescribed period; or
(ii) decide not to suspend the provider approval.
Note: This section differs from section 27 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 27 amended: No. 18 of 2018 s. 15.]
Suspension without show cause notice
(1) The Regulatory Authority may suspend the provider approval on a ground referred to in section 25 without giving the approved provider a show cause notice under section 26 if the Regulatory Authority is satisfied that there is an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by an education and care service operated by the provider.
(2) The suspension may not be for a period of more than 6 months.
Notice and taking effect of suspension
(1) The Regulatory Authority must give the approved provider written notice of the decision to suspend the provider approval.
(2) The notice of a decision to suspend must set out the period of suspension and the date on which it takes effect.
(3) The decision under section 27 to suspend takes effect at the end of 14 days after the date of the decision, or, if another period is specified by the Regulatory Authority, at the end of that period.
(4) The decision under section 28 to suspend takes effect on the giving of the notice.
Effect of suspension
(1) Subject to this section, if a provider approval is suspended under section 27 or 28 of this Law as applying in any participating jurisdiction, all service approvals held by the provider are also suspended for the same period.
(2) A suspension under subsection (1) applies to both education and care services and any associated children’s services.
(3) A person whose provider approval is suspended is taken not to be an approved provider for the period of the suspension.
(4) A service approval is not suspended under subsection (1) during any period that a person is approved under section 41 to manage or control the education and care service.
(5) The Regulatory Authority may consent under Part 3 to the transfer of a service approval that is suspended under section 27 or 28.
(6) The suspension of the service approval ceases on the transfer taking effect, unless the conditions imposed by the Regulatory Authority on the consent to the transfer specify a later date.
Grounds for cancellation of provider approval
The Regulatory Authority may cancel a provider approval if —
(a) the Regulatory Authority is satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or
(b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or
(c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or
(d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or
(e) the approved provider has breached a condition of the provider approval; or
(f) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension).
Show cause notice before cancellation
(1) This section applies if the Regulatory Authority is considering the cancellation of a provider approval under section 31.
(a) that the Regulatory Authority intends to cancel the provider approval; and
(b) the reasons for the proposed cancellation; and
(c) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed cancellation.
Decision in relation to cancellation
(1) After considering any written response from the approved provider received within the time allowed under section 32(2)(c), the Regulatory Authority —
(a) may —
(i) cancel the provider approval; or
(ii) suspend the provider approval for a period not more than the prescribed period; or
(iii) decide not to cancel the provider approval; and
(b) must give the approved provider written notice of the decision.
(2) The decision to cancel the provider approval takes effect at the end of 14 days after the date of the decision or, if another period is specified by the Regulatory Authority, at the end of that period.
(3) The notice of a decision to cancel the provider approval must set out the date on which it takes effect.
(4) This Law applies to a suspension of a provider approval under this section as if it were a suspension under section 27.
Effect of cancellation
(1) Subject to this section, if a provider approval is cancelled under section 33 of this Law as applying in any participating jurisdiction, all service approvals held by the person who was the approved provider are also cancelled.
(2) A cancellation under subsection (1) applies to both education and care services and any associated children’s services.
(3) A service approval is not cancelled under subsection (1) if before that cancellation a person is approved under section 41 to manage or control the education and care service.
(4) A service approval is cancelled if a person referred to in subsection (3) ceases to manage or control the service.
(5) A provider whose provider approval is to be cancelled under section 33 may apply to the Regulatory Authority under Part 3 for consent to transfer a service approval held by the provider.
(6) The application for consent to transfer must be made within 14 days after the date of the decision to cancel the provider approval is made.
(7) If an application for consent to transfer is made, the service approval is suspended until the Regulatory Authority determines the application.
(8) The suspension of the service approval ceases on the transfer taking effect, unless the conditions of the transfer specify a later date.
(9) If the Regulatory Authority refuses to consent to the transfer, the service approval is cancelled on the making of the decision to refuse consent.
Approved provider to provide information to Regulatory Authority
(1) This section applies if a show cause notice has been given to an approved provider under section 26 or 32.
(2) The approved provider, at the request of the Regulatory Authority, must, within 7 days of the request, provide the Regulatory Authority with the contact details of the parents of all children enrolled at each education and care service operated by the approved provider.
(3) The Regulatory Authority may use the information provided under subsection (2) solely to notify the parents of children enrolled at an education and care service about the suspension or cancellation.
Notice to parents of suspension or cancellation
(1) This section applies if a provider approval has been suspended or cancelled under section 27, 28, 33 or 34.
(2) The Regulatory Authority may require the person who is or was the approved provider to give written notice of the suspension or cancellation and its effect to the parents of children enrolled at all or any of the education and care services operated by that person.
(3) A person must comply with a requirement made of that person under subsection (2).
Voluntary suspension of provider approval
(1) An approved provider may apply to the Regulatory Authority for a suspension of the provider approval for a period of not more than 12 months.
(3) The approved provider must, at least 14 days before making an application under this section, notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to make the application.
(4) The Regulatory Authority must within 30 days after the application is made decide whether or not to grant the application.
(5) The Regulatory Authority must give written notice of its decision (including the period of suspension) to the approved provider.
(6) If the Regulatory Authority decides to grant the application, the suspension takes effect on a date agreed between the Regulatory Authority and the approved provider.
(7) A suspension under this section remains in force for the period of time specified in the notice.
(8) The approved provider may apply to the Regulatory Authority to revoke the suspension before the end of the suspension period.
(9) If the Regulatory Authority grants the application to revoke the suspension, the suspension ceases on the date determined by agreement with the approved provider.
(10) If a provider approval is suspended under this section, each service approval held by the provider is also suspended for the same period unless —
(a) a person is approved under section 41 to manage or control the education and care service to which the approval relates; or
(b) the service approval is transferred under Division 3 of Part 3.
Note: This section differs from section 37 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 37 amended: No. 18 of 2018 s. 90.]
Surrender of provider approval by approved provider
(1) An approved provider may surrender the provider approval by written notice to the Regulatory Authority.
(2) The notice must specify a date on which the surrender is intended to take effect which must be —
(a) after the notice is given; and
(b) after the end of the period of notice required under subsection (3).
(3) The approved provider must notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to surrender the provider approval, at least 14 days before the surrender is intended to take effect.
(4) If a provider approval is surrendered, the approval is cancelled on the date specified in the notice.
(5) If a provider approval is surrendered, any service approval held by the provider is also taken to be surrendered.
Note: If a service approval is surrendered, it is cancelled — see section 86. A cancelled service approval cannot be transferred — see definition of service approval and also Division 3 of Part 3.
Division 5 — Approval of executor, representative or guardian as approved provider
Death of approved provider
(1) This section applies if an approved provider dies.
(2) A nominated supervisor or a person in day‑to‑day charge of an education and care service of the approved provider must notify the Regulatory Authority of the approved provider’s death within 7 days after that death.
(3) The executor of the estate of the approved provider may continue to operate any approved education and care service of the approved provider for the relevant period provided that at least 1 nominated supervisor continues to manage the day‑to‑day operation of the service.
(4) The executor of the estate of the approved provider may transfer, surrender or apply for suspension of a service approval of the approved provider under this Law during the relevant period as if the executor were the approved provider.
(5) The executor of the estate of the approved provider may apply to the Regulatory Authority for a provider approval.
(6) The application must be made within 30 days of the death of the approved provider and must —
(7) In this section —
relevant period means —
(a) the period of 30 days after the death of the approved provider; or
(b) if the executor of the estate of the approved provider makes an application under subsection (5) within that period, until the application is finally determined under this Law.
Note: This section differs from section 39 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria), including that the term executor is defined in section 5 of this Law.
[Section 39 amended: No. 18 of 2018 s. 16.]
Incapacity of approved provider
(1) This section applies if an approved provider has become incapacitated.
(2) The legal personal representative or guardian of an approved provider may apply to the Regulatory Authority for a provider approval.
Note: This section differs from section 40 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 40 amended: No. 18 of 2018 s. 90.]
Decision on application
(1) The Regulatory Authority must not grant a provider approval to a person who has made an application under section 39 or 40 unless the Regulatory Authority is satisfied that the person is a fit and proper person to be involved in the provision of an education and care service.
(2) Sections 12, 13 and 14 apply to the assessment of a person under subsection (1).
(3) Subject to this section, the Regulatory Authority may —
(a) grant the provider approval; or
(b) grant the provider approval subject to conditions; or
(c) refuse to grant the provider approval.
(4) An approval under this section —
(a) may be granted for a period of not more than 6 months; and
(b) may be extended or further extended for periods of not more than 6 months,
at the discretion of the Regulatory Authority.
(5) The provider approval is granted only in relation to the operation of the approved education and care services of the approved provider for whom the applicant is the executor, legal personal representative or guardian, as the case requires.
Note: Executor is defined in section 5 of this Law but is not defined in section 5 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 41 amended: No. 18 of 2018 s. 17.]
Division 6 — Exercise of powers by another Regulatory Authority
Exercise of powers by another Regulatory Authority
(1) This section applies if the Regulatory Authority has granted a provider approval under this Part.
(2) A Regulatory Authority of another participating jurisdiction may exercise all of the powers and perform all of the functions of the Regulatory Authority under this Part (except Division 5) in respect of the provider approval if the approved provider operates an approved education and care service in that participating jurisdiction.
(3) A Regulatory Authority (including the Regulatory Authority of this jurisdiction) may only exercise a power to amend, suspend or cancel a provider approval after consulting with the Regulatory Authority of each participating jurisdiction in which the approved provider operates an approved education and care service.
(4) A failure by a Regulatory Authority to comply with subsection (3) does not affect the validity of the exercise of the power.
(5) A cancellation or suspension of a provider approval in another participating jurisdiction has effect in this jurisdiction.
Part 3 — Service approval
Division 1 — Application for service approval
Application for service approval
(1) An approved provider may apply to the Regulatory Authority for a service approval for an education and care service.
(2) An approved provider may only apply for a service approval for an education and care service if the approved provider is or will be the operator of the education and care service and is or will be responsible for the management of the staff members and nominated supervisors of that service.
(3) A person who has applied for a provider approval may apply to the Regulatory Authority for a service approval, however the Regulatory Authority must not grant the service approval unless the provider approval is granted.
[Section 43 amended: No. 18 of 2018 s. 18.]
Form of application
(1) An application for a service approval must —
(a) be made to the Regulatory Authority of the participating jurisdiction in which the service is to be located; and
(b) be in writing; and
(c) include the prescribed information that is requested by the Regulatory Authority; and
(d) nominate one or more individuals to be nominated supervisors of the service; and
(da) include from each nominated individual (other than the approved provider) the written consent to the nomination; and
(e) include payment of the prescribed fee.
(2) An application for service approval may include an associated children’s service.
(3) An application for a service approval for a family day care service may include a request for approval of a place (other than a residence) as a family day care venue for that service.
Notes:
This approval is granted under section 50A only if exceptional circumstances exist.
This section differs from section 44 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 44 amended: No. 18 of 2018 s. 19.]
Regulatory Authority may seek further information
(1) The Regulatory Authority may ask an applicant for a service approval to provide any further information that is reasonably required for the purpose of assessing the application.
(2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 48 for the Regulatory Authority to make a decision on the application.
Investigation of application for service approval
(1) For the purposes of determining an application for a service approval, the Regulatory Authority may —
(a) undertake inquiries and investigations, including inquiries relating to the previous licensing, accreditation or registration of the education and care service under a former education and care services law, a children’s services law or an education law of any participating jurisdiction; and
(b) inspect the education and care service premises; and
(c) inspect the policies and procedures of the service.
(2) For the purposes of an inspection under subsection (1)(b) or (c), the Regulatory Authority may enter the education and care service premises at any reasonable time.
Determination of application
(1) Subject to subsection (3), in determining an application under section 43, the Regulatory Authority must have regard to —
(a) the National Quality Framework; and
(b) except in the case of a family day care residence, the suitability of the education and care service premises and the site and location of those premises for the operation of an education and care service; and
(c) the adequacy of the policies and procedures of the service; and
(d) whether the applicant has a provider approval; and
(e) except in the case of a nominated supervisor who is the approved provider, whether each nominated supervisor has consented in writing to the nomination; and
(f) any other matter the Regulatory Authority thinks fit; and
(g) any other prescribed matter.
(2) In addition, the Regulatory Authority may have regard to either of the following —
(a) whether the applicant is capable of operating the education and care service having regard to its financial capacity and management capability and any other matter the Regulatory Authority considers relevant;
(b) the applicant’s history of compliance with this Law or this Law as applying in any participating jurisdiction, including in relation to any other education and care service it operates.
(3) Subject to subsection (4), in assessing an associated children’s service for the purposes of determining whether to grant a service approval, the Regulatory Authority must have regard to the criteria under the children’s services law of this jurisdiction for the grant of a children’s services licence.
(4) The criteria referred to in subsection (3) do not include criteria relating to whether the applicant is a fit and proper person.
[Section 47 amended: No. 18 of 2018 s. 20.]
Grant or refusal of service approval
(1) On an application under section 43, the Regulatory Authority may —
(a) grant the service approval; or
(b) refuse to grant the service approval.
Note: A service approval is granted subject to conditions in accordance with section 51.
(2) Subject to subsection (3), the Regulatory Authority must make a decision on the application within 90 days after the Regulatory Authority received the application.
Note: If further information is requested under section 45(2), the period between the making of the request and the provision of the information is not included in the 90 day period.
(3) The period referred to in subsection (2) may be extended with the agreement of the applicant.
(4) The Regulatory Authority may grant a service approval solely for an education and care service if —
(a) the application includes an application for an associated children’s service; and
(b) that associated children’s service does not comply with the criteria referred to in section 47(3).
(5) The Regulatory Authority is taken to have refused to grant a service approval if the Regulatory Authority has not made a decision under subsection (1) —
(a) within the relevant time required under subsection (2); or
(b) within the period extended under subsection (3) —
(6) A service approval cannot be granted solely for an associated children’s service.
Grounds for refusal
(1) The Regulatory Authority must refuse to grant a service approval if —
(a) the Regulatory Authority is satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the education and care service; or
(b) the applicant does not have a provider approval.
(2) The Regulatory Authority may refuse to grant a service approval on any other grounds prescribed in the national regulations.
Notice of decision on application
The Regulatory Authority must give written notice to the applicant of a decision under section 48 and the reasons for the decision within 7 days after the decision is made.
50A. Approval of a place as a family day care venue
The Regulatory Authority may, at the time of granting the service approval for a family day care service, approve a place (other than a residence) as a family day care venue for that service if the Regulatory Authority considers exceptional circumstances exist.
[Section 50A inserted: No. 18 of 2018 s. 21.]
Conditions on service approval
(1) A service approval is granted subject to the condition that the education and care service is operated in a way that —
(a) ensures the safety, health and wellbeing of the children being educated and cared for by the service; and
(b) meets the educational and developmental needs of the children being educated and cared for by the service.
(2) A service approval for a family day care service is granted subject to a condition that the approved provider must ensure that each family day care educator engaged by or registered with the service is adequately monitored and supported by a family day care co‑ordinator.
(2A) A service approval for a family day care service is granted subject to a condition that each family day care residence, and any approved family day care venue of the service, are to be located within this jurisdiction.
(3) A service approval is granted subject to a condition that the service must commence ongoing operation of the service within 6 months after the approval is granted unless the Regulatory Authority agrees to an extension of time.
(4) A service approval is granted subject to a condition that the approved provider must hold the prescribed insurance in respect of the education and care service.
(4A) A service approval for an education and care service other than a family day care service is granted subject to a condition that the approved provider must ensure that the number of children educated and cared for by the service at any one time does not exceed the maximum number of children specified in the service approval.
(4B) An approved provider is not required to comply with subsection (4A) if —
(a) the maximum number of children is exceeded because a child is being educated and cared for by the education and care service in an emergency; and
(b) the approved provider is satisfied on reasonable grounds that this will not affect the health, safety and wellbeing of any other child who is attending the education and care service.
Example: An emergency under this subsection would include circumstances where a child is in need of protection under a child protection order or where the parent of a child needs urgent health care that prevents that parent caring for the child.
(5) A service approval is granted subject to any other conditions prescribed in the national regulations or imposed by —
(a) this Law; or
(b) the Regulatory Authority.
(6) A condition of a service approval does not apply to an associated children’s service unless the condition is expressed to apply to that associated children’s service.
(7) A condition of a service approval may be expressed to apply solely to an associated children’s service only if the Regulatory Authority has first consulted with the children’s services regulator.
(8) An approved provider must comply with the conditions of a service approval held by the approved provider.
Note: This section differs from section 51 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 51 amended: No. 18 of 2018 s. 22.]
Copy of service approval to be provided
If the Regulatory Authority grants a service approval under this Part, the Regulatory Authority must provide a copy of the service approval to the approved provider stating —
(a) the name of the education and care service; and
(b) the location of the education and care service or, if the education and care service is a family day care service, the location of the principal office of the service and any approved family day care venue for the service; and
(c) any conditions to which the service approval is subject; and
(d) the date the service approval was granted; and
(e) the service approval number; and
(f) the name of the approved provider; and
(g) for a service other than a family day care service, the maximum number of children who can be educated and cared for by the service at any one time; and
(h) the details of any service waiver under Division 5 or temporary waiver under Division 6 applying to the service; and
(i) any other prescribed matters.
[Section 52 amended: No. 18 of 2018 s. 23.]
Annual fee
An approved provider must, in accordance with the national regulations, pay the prescribed annual fee in respect of each service approval held by the approved provider.
Division 2 — Amendment of service approval
Amendment of service approval on application
(1) An approved provider may apply to the Regulatory Authority for an amendment of a service approval.
(1A) An application under subsection (1) may include a request for the approval of a place (other than a residence) as a family day care venue for a family day care service.
(3) The Regulatory Authority may ask the approved provider to provide any further information that is reasonably required for the purpose of assessing the application.
(4) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in subsection (5).
(5) The Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application.
(6) The Regulatory Authority must decide the application by —
(a) amending the service approval in the way applied for; or
(b) with the applicant’s written agreement, amending the service approval in another way; or
(c) refusing to amend the service approval.
(7) Without limiting subsection (6), an amendment may vary a condition of the service approval or impose a new condition on the service approval.
(8) Subject to subsection (8A), an amendment cannot change a location of an education and care service.
(8A) The Regulatory Authority may approve a place (other than a residence) as a family day care venue for a family day care service if the Regulatory Authority considers exceptional circumstances exist.
(9) The Regulatory Authority must give written notice of its decision to the approved provider.
Note: This section differs from section 54 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 54 amended: No. 18 of 2018 s. 24.]
Amendment of service approval by Regulatory Authority
(1) The Regulatory Authority may amend a service approval at any time without an application from the approved provider.
(2) Without limiting subsection (1), an amendment may vary a condition of the service approval or impose a new condition on the service approval.
(3) The Regulatory Authority must give written notice of the amendment to the approved provider.
(4) An amendment under this section has effect —
(a) 14 days after the Regulatory Authority gives notice of the amendment under subsection (3); or
(5) The Regulatory Authority must amend a service approval to the extent that it relates to an associated children’s service in accordance with any direction by the children’s services regulator if that direction is given in accordance with the children’s services law of this jurisdiction.
55A. Condition relating to family day care co‑ordinators
(1) Without limiting section 55, an amendment under that section may impose a condition on the service approval for a family day care service requiring the approved provider to ensure that there is a minimum of 1 qualified person employed or engaged as a family day care co‑ordinator for each 15 family day care educators engaged by or registered with that service.
(2) A condition may only be imposed under subsection (1) if —
(a) the family day care service has been operating for more than 12 months; and
(b) the Regulatory Authority —
(i) has taken into account the approved provider’s capability and compliance with this Law in respect of the family day care service; and
(ii) considers that family day care educators are not adequately monitored and supported by a family day care co‑ordinator.
(3) Section 163 does not apply if a condition is imposed under subsection (1) in respect of a family day care service.
(4) A person is a qualified person under this section if the person has the qualifications prescribed by the national regulations.
[Section 55A inserted: No. 18 of 2018 s. 25.]
Notice of change to nominated supervisor
(1) The approved provider of an education and care service must give written notice to the Regulatory Authority in accordance with this section if the approved provider wishes to add a new nominated supervisor of the education and care service.
(2) The notice must —
(a) nominate one or more individuals to be nominated supervisors of the service and, unless the individual nominated is the approved provider, include from each nominated individual the written consent to the nomination; and
(c) be given —
(i) at least 7 days before the individual is to commence work as a nominated supervisor; or
(ii) if that period of notice is not possible in the circumstances, as soon as practicable but not more than 14 days after the individual commences work as a nominated supervisor.
Notes:
Section 173(2)(b) requires an approved provider to notify the Regulatory Authority of the removal of a nominated supervisor
This section differs from section 56 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 56 inserted: No. 18 of 2018 s. 26.]
56A. Notice of change of a nominated supervisor’s name or contact details
The approved provider of an education and care service must give written notice to the Regulatory Authority of any change to the name or contact details of any nominated supervisor of the education and care service.
[Section 56A inserted: No. 18 of 2018 s. 26.]
Copy of amended service approval to be provided
If the Regulatory Authority amends a service approval under this Division, the Authority must provide an amended copy of the service approval to the approved provider.
Division 3 — Transfer of service approval
Service approval may be transferred
(1) Subject to this Division, an approved provider who holds a service approval (transferring approved provider) may transfer the service approval to another approved provider (receiving approved provider).
(2) If a service approval is transferred to a receiving approved provider the transfer includes the transfer of the service approval for any associated children’s service.
(3) A person who holds a provider approval may transfer a service approval held by the provider even if the provider approval or service approval is suspended.
Regulatory Authority to be notified of transfer
(1) The transferring approved provider and the receiving approved provider must jointly notify the Regulatory Authority of the transfer —
(a) at least 42 days before the transfer is intended to take effect; or
(b) if the Regulatory Authority considers that the circumstances are exceptional, a lesser period agreed to by the Regulatory Authority.
(2) The notice must —
Note: This section differs from section 59 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 59 amended: No. 18 of 2018 s. 90.]
Consent of Regulatory Authority required for transfer
A service approval cannot be transferred without the consent of the Regulatory Authority.
Consent taken to be given unless Regulatory Authority intervenes
The Regulatory Authority is taken to have consented to the transfer of a service approval if —
(a) the parties have given a notification under section 59; and
(b) 28 days before the transfer is intended to take effect, the Regulatory Authority has not notified the parties that it intends to intervene under section 62.
Transfer may be subject to intervention by Regulatory Authority
(1) The Regulatory Authority may intervene in a transfer of a service approval if the Regulatory Authority is concerned as to any of the following matters —
(a) whether the receiving approved provider is capable of operating the education and care service having regard to its financial capacity and management capability and any other matter the Regulatory Authority considers relevant;
(b) the receiving approved provider’s history of compliance with this Law as applying in a participating jurisdiction, including in relation to any other education and care service it operates;
(c) any other matter relevant to the transfer of the service approval.
(2) The Regulatory Authority must notify the transferring approved provider and the receiving approved provider of the decision to intervene.
(3) Subject to subsection (5), the notice must be given at least 28 days before the date on which the transfer is intended to take effect.
(4) A notification under subsection (2) must be in writing.
(5) The period within which notice must be given under subsection (3) does not apply where the Regulatory Authority has not been notified of the intended transfer of a service approval in accordance with section 59.
Note: This section differs from section 62 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 62 amended: No. 18 of 2018 s. 27.]
Effect of intervention
If the Regulatory Authority intervenes under section 62, the transfer must not proceed unless and until the Regulatory Authority gives written consent to the transfer.
Regulatory Authority may request further information
If the Regulatory Authority has intervened under section 62, the Regulatory Authority may —
(a) request further information from the transferring approved provider or receiving approved provider for the purposes of deciding whether to consent to the transfer; and
(b) undertake inquiries in relation to the receiving approved provider for that purpose.
Decision after intervention
(1) If the Regulatory Authority has intervened under section 62, it may decide —
(a) to consent to the proposed transfer; or
(b) to refuse to consent to the proposed transfer.
(2) If the Regulatory Authority consents to the proposed transfer the Regulatory Authority may impose conditions on the consent, including specifying the date on which the proposed transfer is to take effect.
(3) The service approval must be transferred in accordance with the conditions imposed on the consent.
Regulatory Authority to notify outcome 7 days before transfer
(1) If the Regulatory Authority has intervened in the transfer of a service approval, the Authority must, at least 7 days before the date on which the transfer is intended to take effect, give a notice to each party specifying that the Authority —
(a) consents to the transfer; or
(b) refuses to consent to the transfer; or
(c) has suspended further consideration of the transfer until further information is received and that the transfer may not proceed until a further notice is given under this section consenting to the transfer; or
(d) has not yet made a decision on the transfer and that the Regulatory Authority will make a decision on the transfer within 28 days and that the transfer may not proceed until a further notice is given under this section consenting to the transfer.
(2) If the Regulatory Authority consents to the transfer, the notice —
(a) must specify —
(i) the date on which the transfer is to take effect; and
(ii) any conditions on the consent to the transfer; and
(b) may include notice of any condition that the Regulatory Authority has imposed on the provider approval or a service approval of the receiving approved provider because of the transfer.
(3) If the Regulatory Authority refuses to consent to the transfer, the notice must include the reasons for the refusal.
Transfer of service approval without consent is void
A transfer of a service approval is void if —
(a) it is made without the consent of the Regulatory Authority; or
(b) it is made in contravention of the conditions imposed by the Regulatory Authority on the consent to the transfer; or
(c) it is made to a person who is not the approved provider who gave the notification under section 59 as the receiving approved provider.
Confirmation of transfer
(1) The transferring approved provider and the receiving approved provider must give written notice to the Regulatory Authority within 2 days after the transfer takes effect specifying the date of the transfer.
(2) On receipt of a notice under this section, the Regulatory Authority must amend the service approval and provide an amended copy of the service approval to the receiving approved provider.
(3) The amendment to the service approval is taken to take effect on the date of the transfer.
(4) An approved provider who gives notice under this section is not guilty of an offence for a failure of any other person to give that notice.
Notice to parents
(1) The receiving approved provider must give written notice to the parents of children enrolled at an education and care service of the transfer of the service approval for that service to that provider.
(2) The notice must be given at least 2 days before the date on which the transfer of the service approval takes effect.
Division 4 — Suspension or cancellation of service approval
Grounds for suspension of service approval
(1) A Regulatory Authority may suspend a service approval if —
(a) the Regulatory Authority reasonably believes that it would not be in the best interests of children being educated and cared for by the service for the service to continue; or
(b) a condition of the service approval has not been complied with; or
(c) the service is not being managed in accordance with this Law; or
(d) the service has operated at a rating level as not meeting the National Quality Standard and —
(i) a service waiver or temporary waiver does not apply to the service in respect of that non‑compliance; and
(ii) there has been no improvement in the rating level; or
(e) the approved provider has contravened this Law as applying in any participating jurisdiction; or
(f) the approved provider has failed to comply with a direction, compliance notice or emergency order under this Law as applying in any participating jurisdiction in relation to the service; or
(g) the approved provider has —
(i) ceased to operate the education and care service at the education and care service premises for which the service approval was granted; and
(ii) within 6 months of ceasing to operate the service, has not transferred the service to another approved provider; or
(h) the approved provider has not, within 6 months after being granted a service approval, commenced ongoing operation of the service; or
(i) the approved provider has not paid —
(i) an amount due under a monetary order made under, or in relation to proceedings commenced by an allegation made under, section 188AB; or
(ii) any outstanding prescribed fees.
(2) In subsection (1) —
monetary order has the meaning given in the State Administrative Tribunal Act 2004 section 3(1).
Note: This section differs from section 70 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 70 amended: No. 18 of 2018 s. 28.]
Show cause notice before suspension
(1) This section applies if the Regulatory Authority is considering the suspension of a service approval under section 70.
(a) that the Regulatory Authority intends to suspend the service approval; and
(b) the proposed period of suspension; and
(c) the reasons for the proposed suspension; and
(d) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed suspension.
Decision in relation to suspension
After considering any written response from the approved provider received within the time allowed by section 71(2)(d), the Regulatory Authority may —
(a) if the suspension was proposed on the ground referred to in section 70(1)(a), (c) or (d), accept an undertaking from the approved provider under section 179A; or
(b) in any case —
(i) suspend the service approval for a period not more than the prescribed period; or
(ii) decide not to suspend the service approval.
Note: This section differs from section 72 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 72 amended: No. 18 of 2018 s. 29.]
Suspension of service approval without show cause
The Regulatory Authority may suspend the service approval without giving the approved provider a show cause notice under section 71 if the Regulatory Authority is satisfied that there is an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by the education and care service.
Notice and effect of decision
(1) The Regulatory Authority must give the approved provider written notice of the decision to suspend.
(2) Subject to section 76, the decision under section 72 to suspend takes effect at the end of 14 days after the date of the decision, or, if another period is specified by the Regulatory Authority, at the end of that period.
(3) Subject to section 76, the decision under section 73 to suspend takes effect on the giving of the notice.
(4) The notice of a decision to suspend must set out —
(a) the period of suspension; and
(b) the date on which it takes effect.
(5) A suspension of a service approval also suspends the service approval to the extent that it relates to an associated children’s service.
Suspension of service approval to the extent that it relates to associated children’s service
(1) If the Regulatory Authority considers that a service approval should be suspended to the extent only that it applies to an associated children’s service, the Regulatory Authority must refer the matter to the children’s services regulator of this jurisdiction for determination under the children’s services law.
(2) The children’s services regulator must notify the Regulatory Authority if it proposes to conduct any investigation or inquiry into an associated children’s service under the children’s services law.
(3) If a final determination is made under the children’s services law of this jurisdiction that a service approval should be suspended to the extent that it relates to an associated children’s service —
(a) the children’s services regulator must advise the Regulatory Authority of that determination; and
(b) the service approval is suspended to the extent that it relates to the associated children’s service in accordance with that determination.
Transfer of suspended service
(1) The Regulatory Authority may consent under this Part to the transfer of a service approval that is suspended under section 72 or 73.
(2) The suspension of the service approval ceases on the transfer taking effect, unless the conditions of the Regulatory Authority’s consent to the transfer otherwise provide.
Grounds for cancellation of service approval
A Regulatory Authority may cancel a service approval if —
(a) the Regulatory Authority reasonably believes that the continued operation of the education and care service would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by the education and care service; or
(b) the service has been suspended under section 72 or 73 and the reason for the suspension has not been rectified at or before the end of the period of suspension; or
(c) the service approval was obtained improperly; or
(d) a condition of the service approval has not been complied with.
Show cause notice before cancellation
(1) This section applies if the Regulatory Authority is considering the cancellation of a service approval under section 77.
(a) that the Regulatory Authority intends to cancel the service approval; and
(b) the reasons for the proposed cancellation; and
(c) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed cancellation.
Decision in relation to cancellation
(1) After considering any written response from the approved provider received within the time allowed by section 78(2)(c), the Regulatory Authority —
(a) may —
(i) cancel the service approval; or
(ii) suspend the service approval for a period not more than the prescribed period; or
(iii) decide not to cancel the service approval; and
(b) must give the approved provider written notice of the decision.
(2) Subject to section 81, the decision to cancel the service approval takes effect —
(a) at the end of 14 days after the date of the decision; or
(3) The notice of a decision to cancel must set out the date on which it takes effect.
(4) A cancellation of a service approval includes the cancellation of the service approval to the extent that it relates to an associated children’s service.
(5) This Law applies to a suspension of a service approval under this section as if it were a suspension under section 72.
Cancellation of service approval to the extent that it relates to associated children’s service
(1) If the Regulatory Authority considers that a service approval should be cancelled to the extent only that it applies to an associated children’s service, the Regulatory Authority must refer the matter to the children’s services regulator of this jurisdiction for determination under the children’s services law.
(2) The children’s services regulator must notify the Regulatory Authority if it proposes to conduct any investigation or inquiry into an associated children’s service under the children’s services law.
(3) If a final determination is made under the children’s services law of this jurisdiction that a service approval should be cancelled to the extent that it relates to an associated children’s service —
(a) the children’s services regulator must advise the Regulatory Authority of that determination; and
(b) the service approval is cancelled to the extent that it relates to the associated children’s service in accordance with that determination.
Application for transfer of cancelled service
(1) An approved provider may apply to the Regulatory Authority under this Part for consent to transfer a service approval that is to be cancelled under this Part.
(2) The application for consent to transfer must be made within 14 days after the decision to cancel the service approval is made.
(3) If an application for consent to transfer is made, the cancellation of the service approval does not take effect, and the service approval is suspended, until the Regulatory Authority determines the application.
(4) An application cannot be made under this section for consent to transfer a cancelled service approval if the cancellation relates only to an associated children’s service.
Decision on application to transfer cancelled service
(1) If the Regulatory Authority consents to the transfer —
(a) the decision to cancel the service approval is revoked; and
(b) the suspension of the service approval ceases on the transfer taking effect, unless the conditions imposed by the Regulatory Authority on the consent to the transfer specify a later date for the suspension to cease.
(2) If the Regulatory Authority refuses to consent to the transfer, the service approval is cancelled on the making of the decision to refuse to consent.
Approved provider to provide information to Regulatory Authority
(1) This section applies if a show cause notice has been given to an approved provider under section 71 or 78.
(2) The approved provider, at the request of the Regulatory Authority, must provide the Authority with the contact details of the parents of all children enrolled at the education and care service.
(3) The Regulatory Authority may use the information provided under subsection (2) solely to notify the parents of children enrolled at an approved education and care service of a suspension or cancellation of the service approval for the service.
Notice to parents of suspension or cancellation
(1) This section applies if a service approval has been suspended or cancelled under section 72, 73, 79 or 82.
(2) The Regulatory Authority may require the approved provider to give written notice of the suspension or cancellation and its effect to the parents of children enrolled at the education and care service to which the approval relates and any associated children’s service.
(3) The approved provider must comply with a requirement made under subsection (2).
[Section 84 amended: No. 18 of 2018 s. 30.]
Voluntary suspension of service approval
(1) An approved provider may apply to the Regulatory Authority for the suspension of a service approval for a period of not more than 12 months.
(3) The Regulatory Authority may agree to the suspension, having regard to whether the suspension is reasonable in the circumstances.
(4) The approved provider must, at least 14 days before making an application under this section, notify the parents of children enrolled at the education and care service and any associated children’s service of the intention to make the application.
(5) The Regulatory Authority must, within 30 days after the application is made, decide whether or not to grant the application.
(6) If the Regulatory Authority decides to grant the application, the suspension takes effect on a date agreed between the Regulatory Authority and the approved provider.
Note: This section differs from section 85 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 85 amended: No. 18 of 2018 s. 90.]
Surrender of service approval
(1) An approved provider may surrender a service approval by written notice to the Regulatory Authority.
(2) The notice must specify a date on which the surrender is intended to take effect which must be —
(a) after the notice is given; and
(b) after the end of the period of notice required under subsection (3).
(3) The approved provider must notify the parents of children enrolled at the education and care service to which the approval relates and any associated children’s service of the intention to surrender the service approval, at least 14 days before the surrender is intended to take effect.
(4) If a service approval is surrendered, the approval is cancelled on the date specified in the notice.
Division 5 — Application for service waiver
Application for service waiver for service
(1) An approved provider may apply to the Regulatory Authority for a waiver from a requirement that an approved education and care service comply with a prescribed element or elements of the National Quality Standard and the national regulations as provided for in the national regulations.
(2) A person who applies for a service approval may apply for a service waiver under this section together with the application for the service approval.
(3) The Regulatory Authority must not grant a service waiver to a person who applies under subsection (2) unless the service approval is granted to that person.
Form of application
An application under section 87 must —
Note: This section differs from section 88 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 88 amended: No. 18 of 2018 s. 90.]
Powers of Regulatory Authority in considering application
(1) For the purpose of determining an application under this Division, the Regulatory Authority may —
(a) ask the applicant to provide further information; and
(b) inspect the education and care service premises and the office of the applicant.
(2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of that request until the provision of further information is not included in the period referred to in section 91(2) for the Regulatory Authority to make a decision on the application.
[Section 89 amended: No. 18 of 2018 s. 31.]
Matters to be considered
In considering whether the grant of a service waiver is appropriate, the Regulatory Authority may have regard to either or both of the following —
(a) whether the education and care service is able to meet the prescribed element or elements of the National Quality Standard and the national regulations by alternative means that satisfy the objectives of those elements;
(b) any matters disclosed in the application that are relevant to the application for the service waiver.
Decision on application
(1) On an application under this Division, the Regulatory Authority may decide to grant the service waiver or refuse the application.
(2) Subject to subsection (3), the Regulatory Authority must notify the applicant within 60 days after the application is made of the Authority’s decision on the application.
(3) If an application for a service waiver has been made together with an application for service approval, the Regulatory Authority may notify the applicant of the Authority’s decision on the application at the same time as the notice of the decision on the application for the service approval.
(4) If a service waiver is granted, the Regulatory Authority may place any conditions on the service waiver, including any condition limiting the use of the service waiver.
(5) The Regulatory Authority may, at any time remove, add to or vary any conditions placed on a service waiver under subsection (4).
(6) If a service waiver is granted or its conditions are amended under subsection (5), the Regulatory Authority must issue or reissue the service approval specifying —
(a) the element or elements of the National Quality Standard and the national regulations that have been waived; and
(b) any conditions placed on the waiver.
[Section 91 amended: No. 18 of 2018 s. 32.]
Revocation of service waiver
(1) The Regulatory Authority may, at its discretion, revoke a service waiver.
(2) An approved provider may apply to the Regulatory Authority for the revocation of a service waiver applying to any education and care service that it operates.
(3) A revocation under this section takes effect at the end of the period prescribed in the national regulations.
Effect of service waiver
While a service waiver is in force, the approved education and care service is taken to comply with the element or elements of the National Quality Standard and the national regulations that are specified in the service waiver.
Division 6 — Temporary waiver
Application for temporary waiver
An approved provider may apply to the Regulatory Authority for a temporary waiver from a requirement that an approved education and care service comply with any prescribed element or elements of the National Quality Standard and the national regulations as provided for in the national regulations.
Form of application
An application under section 94 must —
Note: This section differs from section 95 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 95 amended: No. 18 of 2018 s. 90.]
Regulatory Authority may seek further information
(1) For the purpose of determining an application under this Division, the Regulatory Authority may —
(a) ask the applicant to provide further information; and
(b) inspect the education and care service premises and the office of the applicant.
(2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of that request until the provision of further information is not included in the period referred to in section 98(1) for the Regulatory Authority to make a decision on the application.
[Section 96 amended: No. 18 of 2018 s. 33.]
Special circumstances
In considering whether the grant of a temporary waiver is appropriate, the Regulatory Authority must have regard to whether special circumstances disclosed in the application reasonably justify the grant of the temporary waiver.
Decision on application
(1) The Regulatory Authority must notify the applicant within 60 days after the application is made of the Authority’s decision on the application.
(2) A temporary waiver must specify the period of the waiver which cannot be for a period of more than 12 months.
(3) The Regulatory Authority, on the application of the approved provider, may —
(a) extend and further extend the period of a temporary waiver by periods of not more than 12 months; and
(b) grant a further temporary waiver for an education and care service under this Division.
(4) An application under subsection (3) must include payment of the prescribed fee.
(5) If a temporary waiver is granted, the Regulatory Authority may place any conditions on the temporary waiver, including any condition limiting the use of the temporary waiver.
(6) The Regulatory Authority may, at any time remove, add to or vary any conditions placed on a temporary waiver under subsection (5).
(7) If a temporary waiver is granted or its conditions are amended under subsection (6), the Regulatory Authority must issue or reissue the service approval specifying —
(a) the element or elements of the National Quality Standard and the national regulations that have been temporarily waived; and
(b) the period of the waiver; and
(c) any conditions placed on the waiver.
[Section 98 amended: No. 18 of 2018 s. 34.]
Revocation of temporary waiver
The Regulatory Authority may, at its discretion, revoke a temporary waiver.
Effect of temporary waiver
While a temporary waiver is in force, the approved education and care service is not required to comply with the element or elements of the National Quality Standard and the national regulations that have been temporarily waived.
Division 7 — Exercise of powers by another Regulatory Authority
Exercise of powers by another Regulatory Authority — family day care services
(1) This section applies if the Regulatory Authority has granted a service approval under this Part to an approved provider for a family day care service.
(2) A Regulatory Authority of another participating jurisdiction may exercise all the powers and perform all the functions of a Regulatory Authority under this Part (except Division 3 or section 76, 81 or 82) in respect of the service approval if the family day care service operates in that participating jurisdiction.
(3) A Regulatory Authority (including the Regulatory Authority of this jurisdiction) may only exercise a power to amend, suspend or cancel a service approval after consulting with the Regulatory Authority of each participating jurisdiction in which the family day care service operates.
(4) A failure by a Regulatory Authority to comply with subsection (3) does not affect the validity of the exercise of the power.
(5) A cancellation or suspension of a service approval for a family day care service in another participating jurisdiction has effect in this jurisdiction.
Division 8 — Associated children’s services
Application of this Law to associated children’s services
This Law does not apply to an associated children’s service except as expressly provided in this Law.
Division 9 — Offences
Offence to provide an education and care service without service approval
(1) A person must not provide an education and care service unless —
(a) the person is an approved provider in respect of that service; and
(b) the education and care service is an approved education and care service.
(2) Subsection (1) does not apply to a family day care educator providing education and care to children as part of an approved family day care service.
103A. Offence relating to places where education and care is provided as part of a family day care service
An approved provider of a family day care service must ensure that education and care is not provided to children, as part of the service, from a place that is not a family day care residence or an approved family day care venue unless otherwise permitted by this Law.
[Section 103A inserted: No. 18 of 2018 s. 35.]
Offence to advertise education and care service without service approval
(1) A person must not knowingly publish or cause to be published an advertisement for an education and care service unless it is an approved education and care service.
(2) Subsection (1) does not apply if an application for a service approval in respect of the education and care service has been made under this Law but has not been decided.
[Part 4 (s. 105‑132) deleted: No. 18 of 2018 s. 36.]
Part 5 — Assessments and ratings
Division 1 — Assessment and rating
Assessment for rating purposes
(1) The Regulatory Authority that granted the service approval for an education and care service may at any time assess the service in accordance with the national regulations to determine whether and at what rating level the service meets the National Quality Standard and the requirements of the national regulations.
(2) Until an approved education and care service is first assessed under this Part, it is taken to have the prescribed provisional rating.
Rating levels
(1) The rating levels for the purposes of this Law are the levels prescribed by the national regulations.
(2) The highest rating level prescribed by the national regulations can only be given by the National Authority under this Part.
Rating of approved education and care service
(1) After carrying out a rating assessment of an approved education and care service, the Regulatory Authority must determine the rating level (other than the highest rating level) —
(a) for each quality area stated in the National Quality Standard; and
(b) for the overall rating of the service.
(2) In determining a rating level, the Regulatory Authority may have regard to —
(a) any information obtained in the rating assessment; and
(b) any information obtained in any monitoring or investigation of the service under this Law; and
(c) the service’s history of compliance with this Law as applying in any participating jurisdiction; and
(d) any other prescribed information.
Notice to approved education and care service of rating
(1) The Regulatory Authority must give written notice to the approved provider of an approved education and care service of the outcome of the rating assessment and the rating levels for that service determined under section 135.
(2) The notice under subsection (1) must be given within 60 days —
(a) after the completion of the assessment by an authorised officer under Part 9 of the premises of the approved education and care service for the purpose of the rating assessment; or
(b) if section 137 applies, after the end of the final period for review of the applicable decision or action referred to in section 137(1).
(3) A rating level set out in the notice is to be a rating level for the education and care service for the purposes of this Law unless a review of the rating level is sought under Division 3 or 4.
Suspension of rating assessment
(1) This section applies in respect of a rating assessment of an approved education and care service if the assessment has not been completed and —
(a) the provider approval or the service approval for the service is suspended or cancelled; or
(b) a compliance notice has been given to the approved provider in respect of the service; or
(c) a notice has been given under section 179 in respect of the service; or
(d) an action has been taken under section 189 in respect of a child or children being educated and cared for by the service.
(2) The Regulatory Authority must give the approved provider a written notice stating that notice of the outcome of the rating assessment will be given under section 136 within 60 days after —
(a) the end of the final period for review of the decision or action referred to in subsection (1); or
(b) if that review is sought, the determination of the review.
Division 2 — Reassessment and re‑rating
Regulatory Authority may reassess and re‑rate approved education and care service
The Regulatory Authority may at any time reassess an approved education and care service or any aspect or element of an approved education and care service in accordance with the national regulations to determine whether and at what rating level it meets the National Quality Standard and the requirements of the national regulations for the purpose of rating that service.
Application for reassessment and re‑rating by approved provider
(1) An approved provider may apply to the Regulatory Authority for a reassessment and re‑rating of an approved education and care service or any aspect or element of an approved education and care service which is rateable against the National Quality Standard or the national regulations.
(3) An application under this section can only be made once in every 2 year period, unless the Regulatory Authority agrees otherwise.
Note: This section differs from section 139 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 139 amended: No. 18 of 2018 s. 90.]
Application of Division 1
Division 1 applies (with any necessary changes) to a reassessment and re‑rating of an approved education and care service or any aspect or element of an approved education and care service under this Division.
Division 3 — Review by Regulatory Authority
Review by Regulatory Authority
(1) This section applies to an approved provider that is given a notice under section 136.
(2) The approved provider may ask the Regulatory Authority that determined the rating levels to review the rating levels.
(3) A request must be made within 14 days after the approved provider receives the notice.
(4) A request must —
(b) set out the grounds on which review is sought; and
(c) be accompanied by the prescribed information that is requested by the Regulatory Authority; and
(d) include payment of the prescribed fee.
Note: This section differs from section 141 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 141 amended: No. 18 of 2018 s. 90.]
Process for review
(1) The person who conducts a review of rating levels for an approved education and care service for the Regulatory Authority must not be a person who was involved in the assessment or rating of the service.
(2) The person conducting the review may ask the approved provider and any person who was involved in the assessment or rating of the service for further information.
(3) A review under this section must be conducted within 30 days after the application for review is received.
(4) The Regulatory Authority may extend the 30 day review period under subsection (3) in one of the following circumstances —
(a) for an additional period of up to 30 days, if a request for further information is made under subsection (2);
(b) for an additional period of up to 30 days, by agreement between the approved provider and the Regulatory Authority;
(c) for an additional period of up to 60 days, where the Regulatory Authority considers there are special circumstances that warrant an extension of time to conduct the review.
[Section 142 amended: No. 18 of 2018 s. 37.]
Outcome of review by Regulatory Authority
(1) Following a review under section 142, the Regulatory Authority may —
(a) confirm the specific rating levels or the overall rating or both; or
(b) amend the specific rating levels or the overall rating or both.
(2) The Regulatory Authority must give the approved provider written notice of the decision on the review within 30 days after the decision is made.
(3) The notice must set out —
(a) the rating levels and overall rating for the approved education and care service; and
(b) the reasons for the decision.
(4) Unless an application is made under Division 4 for a review of the rating levels, the rating levels set out in the notice are the rating levels for the approved education and care service for the purposes of this Law.
Division 4 — Review by Ratings Review Panel
Subdivision 1 — Application for review
Application for further review by Ratings Review Panel
(1) This section applies if the Regulatory Authority has conducted a review of any rating levels of an approved education and care service under Division 3.
(2) The approved provider may apply to the National Authority for a further review by a Ratings Review Panel of the rating levels confirmed or amended by the Regulatory Authority under Division 3.
(3) An application may only be made on the ground that the Regulatory Authority —
(a) did not appropriately apply the prescribed processes for determining a rating level; or
(b) failed to take into account or give sufficient weight to special circumstances existing or facts existing at the time of the rating assessment.
Form and time of application
(1) An application must be made under section 144 within 14 days after the decision of the Regulatory Authority is received under Division 3.
(3) An application must not include information or evidence that was not given to the Regulatory Authority for the purpose of a determination under Division 1, 2 or 3.
(4) The National Authority must —
(a) within 7 days after receipt of the application, give written notice to the Regulatory Authority of an application under this Division to review a determination of the Regulatory Authority; and
(b) invite the Regulatory Authority to make submissions to the review.
Subdivision 2 — Establishment of Ratings Review Panel
Establishment of Ratings Review Panel
(1) The Board must establish a Ratings Review Panel for the purposes of conducting a review under this Division.
(2) The Panel is to consist of up to 3 members appointed by the Board.
(3) One of the members is to be appointed as chairperson.
(4) The members are to be appointed from the Review Panel pool established under section 147.
Review Panel pool
(1) The Board must establish a pool of persons to act as members of a Ratings Review Panel.
(2) The pool may consist of persons nominated by the Regulatory Authorities of each participating jurisdiction and the Commonwealth Minister.
(3) Subject to subsection (4), the persons approved as members of the pool must have expertise or expert knowledge in one or more of the following areas —
(a) early learning and development research or practice;
(b) law;
(c) a prescribed area.
(4) A member of staff of the National Authority may be approved as a member of the pool.
Procedure of Panel
(1) Subject to this Law, the procedure of a Ratings Review Panel is in its discretion.
(2) The chairperson of a Panel must convene meetings of the Panel.
(3) A Panel must keep minutes of its deliberations setting out —
(a) the dates and duration of its deliberations; and
(b) its decisions on the review.
(4) The Panel must seek to make decisions by consensus.
(5) In the absence of a consensus, a decision of the Panel is a decision of the majority of the members of the Panel.
(6) If a majority decision is not reached, the Panel is taken to have confirmed the rating levels determined by the Regulatory Authority.
Transaction of business by alternative means
(1) A Ratings Review Panel may, if it thinks fit, transact any of its business by the circulation of papers among all the members of the Panel for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Panel.
(2) The Panel may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed‑circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.
(3) Papers may be circulated among the members for the purposes of subsection (1) by facsimile, email or other transmission of the information in the papers concerned.
Subdivision 3 — Conduct of review
Conduct of review
(1) In conducting a review, the Ratings Review Panel may consider —
(a) any documents or other information or plans, photographs or video or other evidence available to the Regulatory Authority in carrying out the rating assessment; and
(b) the approved provider’s history of compliance with this Law as applying in any participating jurisdiction; and
(c) the approved education and care service’s history of compliance with this Law as applying in any participating jurisdiction; and
(d) the application for review to the Regulatory Authority; and
(e) any submissions made by the approved provider to the review by the Regulatory Authority; and
(f) the written findings on the review by the Regulatory Authority; and
(g) the application for review to the Ratings Review Panel; and
(h) any written submissions or responses made to the Ratings Review Panel by the approved provider; and
(i) any written submissions or responses made to the Ratings Review Panel by the Regulatory Authority relating to the stated grounds for review; and
(j) any advice received from the National Authority, at the request of the Ratings Review Panel, about how the prescribed processes for rating assessments are intended to be applied that is relevant to the review.
(2) The Ratings Review Panel is not required to hold an oral hearing for a review.
(3) The Ratings Review Panel may ask the Regulatory Authority to provide in writing any information in relation to the assessment.
(4) The Ratings Review Panel may ask the approved provider for further written information in relation to its application.
(5) The Ratings Review Panel must ensure that the approved provider is provided with a copy of, and an opportunity to respond in writing to, any documents, information or evidence provided to the Panel by the Regulatory Authority.
Decision on review by Ratings Review Panel
(1) Following a review, the Ratings Review Panel may —
(a) confirm the rating levels determined by the Regulatory Authority; or
(b) amend the rating levels.
(2) The Ratings Review Panel must make a decision on the review within 60 days after the application for review was made.
(3) The chairperson of the Panel may extend the period for the making of a decision by a Ratings Review Panel if the chairperson considers there are special circumstances that warrant that extension.
(4) The period for the making of a decision by a Ratings Review Panel may be extended by agreement between the chairperson of the Panel and the approved provider.
(5) The Ratings Review Panel must give the approved provider, the Regulatory Authority and the National Authority written notice of the decision on the review within 14 days after the decision is made setting out its findings on each review ground.
(6) A rating level confirmed or amended on a review under this Division by the Ratings Review Panel is the rating level for the approved education and care service for the purposes of this Law.
Division 5 — Awarding of highest rating
Application for highest rating
(1) An approved provider may apply to the National Authority for an approved education and care service operated by that provider to be assessed for the highest rating level for the education and care service if the criteria determined by the National Authority are met.
(2) The highest rating level is an overall rating of the education and care service.
(3) An application must —
(4) An application may be made only once every 3 years, unless the National Authority determines otherwise in a particular case.
(5) An application may be made for the highest rating level only if the approved education and care service holds the rating levels prescribed for the purposes of this section.
[Section 152 amended: No. 18 of 2018 s. 38.]
Assessment of education and care service
(1) The National Authority may determine and publish criteria that must be met by approved education and care services in respect of the award of the highest rating level.
(2) The Board must assess the approved education and care service in accordance with the criteria published under subsection (1) to determine whether the service meets the highest rating level in meeting the National Quality Standard and the requirements of the national regulations.
(3) The Board must ask for, and take into account, the advice of the Regulatory Authority in carrying out the assessment.
(4) The advice of the Regulatory Authority may include —
(a) previous rating assessments and ratings for the education and care service; and
(b) information about the service’s compliance history; and
(c) any other relevant information.
Board may seek information and documents
(1) The Board for the purposes of the rating assessment may —
(a) ask the approved provider of the approved education and care service for any information and documents; and
(b) make any inquiries it considers appropriate.
(2) If the Board asks the approved provider for further information and documents under subsection (1), the period from the making of the request until the provision of the further information and documents is not included in the period referred to in section 155(2) for the Board to make a decision on the application.
Decision on application
(1) After assessing the approved education and care service, the Board must —
(a) if it is satisfied that it is appropriate to do so, give the approved education and care service the highest rating level; or
(b) otherwise refuse to give that rating.
(2) The Board must make its decision within 60 days after the application is received.
(3) The period specified in subsection (2) may be extended by up to 30 days —
(a) if a request for information and documents is made under section 154; or
(b) by agreement between the approved provider and the Board.
(4) If the Board gives the highest rating level to an approved education and care service, that rating becomes the rating level for that service.
(5) The highest rating level awarded to an approved education and care service applies to that service for 3 years, unless sooner revoked.
Notice of decision
(1) The Board must give written notice of its decision under section 155 in relation to an approved education and care service to —
(a) the approved provider; and
(b) the Regulatory Authority.
(2) The notice must be given within 14 days of making the decision.
Reassessment of highest rating level
The Board may at any time reassess an approved education and care service in accordance with section 153.
Revocation of highest rating level
The Board must revoke the highest rating level of an approved education and care service if —
(a) it determines that the service no longer meets the criteria for the highest rating level; or
(b) the Regulatory Authority advises the Board that the service no longer meets the requirements for the rating levels prescribed for the purposes of section 152(5).
[Section 158 amended: No. 18 of 2018 s. 39.]
Re‑application for highest rating level
(1) An approved provider of an approved education and care service that has been awarded the highest rating level may reapply for the award of the highest rating level for the service.
(2) The application must be made within 90 days before the expiry of the existing highest rating level for the approved education and care service.
Division 6 — Publication of rating levels
Publication of ratings
(1) The National Authority must publish the rating levels for an approved education and care service in accordance with this section.
(2) The National Authority must publish any rating levels determined under Division 1 or 2 at the end of the period for requesting a review of the rating levels under Division 3 if no request for review is received in that period.
(3) If a review by the Regulatory Authority is requested under Division 3, the rating levels must be published at the end of the period for requesting a further review of the rating under Division 4 if no request for further review is received in that period.
(4) If a further review is requested under Division 4, the rating levels must be published after the notification to the approved provider of the decision on the review.
(5) The National Authority must publish notice of the giving of the highest rating level to an approved education and care service under Division 5, as soon as possible after the Regulatory Authority and the approved provider are notified of the decision of the Board under that Division.
Part 6 — Operating an education and care service
Offence to operate education and care service without nominated supervisor
The approved provider of an education and care service must not operate the service unless there is at least 1 nominated supervisor for that service.
[Section 161 amended: No. 18 of 2018 s. 40.]
161A. Offence for nominated supervisor not to meet prescribed minimum requirements
The approved provider of an education and care service must not nominate an individual to be a nominated supervisor of that service unless that individual meets the prescribed minimum requirements for nomination as a nominated supervisor.
[Section 161A inserted: No. 18 of 2018 s. 41.]
Offence to operate education and care service unless responsible person is present
(1) The approved provider of an education and care service must ensure that one of the following persons is present at all times that the service is educating and caring for children —
(a) the approved provider, if the approved provider is an individual or, in any other case, a person with management or control of an education and care service operated by the approved provider;
(b) a nominated supervisor of the service;
(c) a person in day‑to‑day charge of the service.
(2) This section does not apply to an approved family day care service.
[Section 162 amended: No. 18 of 2018 s. 42.]
162A. Persons in day‑to‑day charge and nominated supervisors to have child protection training
The approved provider of an education and care service must ensure that each nominated supervisor and each person in day‑to‑day charge of the service has successfully completed the child protection training (if any) required by or under the law of this jurisdiction, a Government protocol applying to the approved provider in this jurisdiction or otherwise required by this jurisdiction.
[Section 162A inserted: No. 18 of 2018 s. 43.]
Offence relating to appointment or engagement of family day care co‑ordinators
(1) The approved provider of a family day care service must ensure that at all times the prescribed minimum number of qualified persons are employed or engaged as family day care co‑ordinators of the family day care service —
(a) to assist with the operation of the family day care service; and
(b) to support, monitor and train the family day care educators of that service.
(2) A person is a qualified person under this section if the person has the qualifications prescribed by the national regulations.
[Section 163 amended: No. 18 of 2018 s. 44.]
Offence relating to assistance to family day care educators
(1) The approved provider of a family day care service must ensure that, at all times that a family day care educator is educating and caring for a child as part of the service, one of the following persons is available to provide support to the family day care educator —
(a) the approved provider, if the approved provider is an individual, or a person with management or control of the family day care service, in any other case;
(b) a nominated supervisor of the service;
(c) a person in day‑to‑day charge of the service.
(2) For the purposes of this section, the requirement to be available to provide support to a family day care educator includes being available to be contacted by telephone to provide advice and assistance to the family day care educator.
[Section 164 amended: No. 18 of 2018 s. 45.]
164A. Offence relating to the education and care of children by family day care service
(1) The approved provider of a family day care service must ensure that any child being educated and cared for as part of the service is not educated and cared for by a person other than a family day care educator, except in the circumstances prescribed by the national regulations.
(2) A family day care educator must ensure that any child being educated and cared for by the educator as part of a family day care service is not educated or cared for by any other person at the family day care residence or approved family day care venue, except in the circumstances prescribed by the national regulations.
[Section 164A inserted: No. 18 of 2018 s. 46.]
Offence to inadequately supervise children
(1) The approved provider of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service.
(2) A nominated supervisor of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service.
(3) A family day care educator must ensure that any child being educated and cared for by the educator as a part of a family day care service is adequately supervised.
[Section 165 amended: No. 18 of 2018 s. 47.]
165A. Offence relating to children leaving the education and care service premises unauthorised
(1) The approved provider of an education and care service must ensure that a child who is being educated and cared for by the education and care service does not leave the education and care service premises except in accordance with subsection (4).
(2) A nominated supervisor of an education and care service must ensure that a child who is being educated and cared for by the education and care service does not leave the education and care service premises except in accordance with subsection (4).
(3) A family day care educator must ensure that a child who is being educated and cared for by the educator as part of a family day care service does not leave the residence or approved family day care venue except in accordance with subsection (4).
(4) The child may only leave the relevant premises if the child —
(a) is given into the care of —
(i) a parent of the child; or
(ii) an authorised nominee named in the child’s enrolment record; or
(iii) a person authorised by a parent or authorised nominee named in the child’s enrolment record to collect the child from the premises; or
(b) leaves the premises in accordance with the written authorisation of the child’s parent or authorised nominee named in the child’s enrolment record; or
(c) is taken on an excursion in accordance with the national regulations; or
(d) is given into the care of a person or taken outside the premises —
(i) because the child requires medical, hospital or ambulance care or treatment; or
(ii) because of another emergency.
(5) In this section —
authorised nominee has the meaning given in section 170(5);
parent does not include a parent who is prohibited by a court order from having contact with the child.
Note: Section 165A does not form part of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 165A amended: No. 18 of 2018 s. 48.]
Offence to use inappropriate discipline
(1) The approved provider of an education and care service must ensure that no child being educated and cared for by the service is subjected to —
(2) A nominated supervisor of an education and care service must ensure that no child being educated and cared for by the service is subjected to —
(3) A staff member of, or a volunteer at, an education and care service must not subject any child being educated and cared for by the service to —
(4) A family day care educator must not subject any child being educated and cared for by the educator as part of a family day care service to —
[Section 166 amended: No. 18 of 2018 s. 49.]
Offence relating to protection of children from harm and hazards
(1) The approved provider of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury.
(2) A nominated supervisor of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury.
(3) A family day care educator must ensure that every reasonable precaution is taken to protect a child being educated and cared for as part of a family day care service from harm and from any hazard likely to cause injury.
Offence relating to required programs
(1) The approved provider of an education and care service must ensure that a program is delivered to all children being educated and cared for by the service that —
(a) is based on an approved learning framework; and
(b) is delivered in a manner that accords with the approved learning framework; and
(c) is based on the developmental needs, interests and experiences of each child; and
(d) is designed to take into account the individual differences of each child.
(2) A nominated supervisor of an education and care service must ensure that a program is delivered to all children being educated and cared for by the service that —
(a) is based on an approved learning framework; and
(b) is delivered in a manner that accords with the approved learning framework; and
(c) is based on the developmental needs, interests and experiences of each child; and
(d) is designed to take into account the individual differences of each child.
Penalty: $4 000.
Offence relating to staffing arrangements
(1) An approved provider of an education and care service must ensure that, whenever children are being educated and cared for by the service, the relevant number of educators educating and caring for the children is no less than the number prescribed for this purpose.
(2) An approved provider of an education and care service must ensure that each educator educating and caring for children for the service meets the qualification requirements relevant to the educator’s role as prescribed by the national regulations.
(3) A nominated supervisor of an education and care service must ensure that, whenever children are being educated and cared for by the service, the relevant number of educators educating and caring for the children is no less than the number prescribed for this purpose.
(4) A nominated supervisor of an education and care service must ensure that each educator educating and caring for children for the service meets the qualification requirements relevant to the educator’s role as prescribed by the national regulations.
(5) A family day care educator must ensure that the number of children being educated and cared for by the family day care educator at any one time is no more than the number prescribed for this purpose.
(6) Subsections (1), (2), (3), (4) and (5) do not apply in respect of an education and care service —
(a) to the extent that it holds a temporary waiver under Division 6 of Part 3 in respect of this requirement; or
(b) to the extent that it holds a service waiver under Division 5 of Part 3 in respect of this requirement.
(7) The National Authority may, on application, determine qualifications, including foreign qualifications, to be equivalent to the qualifications required by the national regulations.
(8) If a determination is made under subsection (7), any person holding the qualification is to be taken to be qualified in accordance with the national regulations.
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 —
(b) the person is under the direct supervision of an educator or other staff member of the service.
Penalty: $1 000, in the case of an individual.
$5 000, in any other case.
(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 —
(b) the person is under the direct supervision of an educator or other staff member of the service.
(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 —
(b) the person is under the direct supervision of the educator.
(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 or working with children card; or
(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 permitted under the working with children law of this jurisdiction to remain at the education and care service premises without holding a working with children check or a working with children card.
(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.
[Section 170 amended: No. 18 of 2018 s. 50.]
Offence relating to direction to exclude inappropriate persons from education and care service premises
(1) The Regulatory Authority may direct an approved provider, a nominated supervisor or a family day care educator to exclude a person whom the Authority is satisfied is an inappropriate person from the education and care service premises while children are being educated and cared for at the premises for such time as the Authority considers appropriate.
(2) A person to whom a direction is given under subsection (1) must comply with the direction.
(3) In this section —
inappropriate person means a person —
(a) who may pose a risk to the safety, health or wellbeing of any child or children being educated and cared for by the education and care service; or
(b) whose behaviour or state of mind or whose pattern of behaviour or common state of mind is such that it would be inappropriate for him or her to be on the education and care service premises while children are being educated and cared for by the education and care service.
Example: A person who is under the influence of drugs or alcohol.
Offence to fail to display prescribed information
An approved provider of an education and care service must ensure that the prescribed information about the following is positioned so that it is clearly visible to anyone from the main entrance to the education and care service premises —
(a) the provider approval;
(b) the service approval;
(c) each nominated supervisor of the service;
(d) the rating of the service;
(e) any service waivers or temporary waivers held by the service;
(f) any other prescribed matters.
[Section 172 amended: No. 18 of 2018 s. 51.]
Offence to fail to notify certain circumstances to Regulatory Authority
(1) An approved provider must notify the Regulatory Authority of the following in relation to the approved provider or each approved education and care service operated by the approved provider —
(a) a change in the name of the approved provider;
(b) any appointment or removal of a person with management or control of an education and care service operated by the approved provider;
(c) a failure to commence operating an education and care service within 6 months (or within the time agreed with the Regulatory Authority) after being granted a service approval for the service.
(2) An approved provider must notify the Regulatory Authority of the following in relation to an approved education and care service operated by the approved provider —
(a) if the approved provider is notified of the suspension or cancellation of a working with children card or teacher registration of, or disciplinary proceedings under an education law of a participating jurisdiction in respect of, a nominated supervisor engaged by the service;
(b) if a nominated supervisor of an approved education and care service —
(i) ceases to be employed or engaged by the service; or
(ii) is removed from the role of nominated supervisor; or
(iii) withdraws consent to the nomination;
(c) any proposed change to the education and care service premises of an approved education and care service (other than a family day care residence);
(d) if the approved provider ceases to operate the education and care service;
(e) in the case of an approved family day care service, a change in the location of the principal office of the service;
(f) an intention to transfer a service approval, as required under section 59.
(3) A notice under subsection (1) or (2) must —
(b) include any prescribed information.
(4) A notice under subsection (1) must be provided within the relevant prescribed time to the Regulatory Authority that granted the provider approval to which the notice relates.
(5) A notice under subsection (2) must be provided within the relevant prescribed time to the Regulatory Authority that granted the service approval for the education and care service to which the notice relates.
[Section 173 amended: No. 18 of 2018 s. 52.]
Offence to fail to notify certain information to Regulatory Authority
(1) An approved provider must notify the Regulatory Authority of the following information in relation to the approved provider or each approved education and care service operated by the approved provider —
(a) any change relevant to whether the approved provider is a fit and proper person to be involved in the provision of an education and care service;
(b) information in respect of any other prescribed matters.
(2) An approved provider must notify the Regulatory Authority of the following information in relation to an approved education and care service operated by the approved provider —
(a) any serious incident at the approved education and care service;
(b) any complaints alleging —
(i) that a serious incident has occurred or is occurring while a child was or is being educated and cared for by the approved education and care service; or
(ii) that this Law has been contravened;
(c) information in respect of any other prescribed matters.
(3) A notice under subsection (1) must be in writing and be provided within the relevant prescribed time to the Regulatory Authority that granted the provider approval.
(4) A notice under subsection (2) must be in writing and be provided within the relevant prescribed time to —
(a) the Regulatory Authority that granted the service approval for the education and care service to which the notice relates; and
(b) in the case of a family day care service, the Regulatory Authority in each participating jurisdiction in which the family day care service operates.
[Section 174 amended: No. 18 of 2018 s. 53.]
174A. Family day care educator to notify certain information to approved provider
A family day care educator who educates and cares for children as part of a family day care service must notify the approved provider of the service of the following information —
(a) any serious incident that occurs while a child is being educated and cared for by the educator as part of the service;
(b) any complaints alleging —
(i) that a serious incident has occurred or is occurring while a child was or is being educated and cared for by the educator; or
(ii) that this Law has been contravened;
(c) information in respect of any other prescribed matters.
[Section 174A inserted: No. 18 of 2018 s. 54.]
Offence relating to requirement to keep enrolment and other documents
(1) An approved provider of an education and care service must keep the prescribed documents available for inspection by an authorised officer in accordance with this section.
(2) Documents referred to in subsection (1) —
(a) must, to the extent practicable, be kept at the education and care service premises if they relate to —
(i) the operation of the service; or
(ii) any staff member employed or engaged by the service; or
(iii) any child cared for, or educated at, those premises —
in the previous 12 months; and
(b) in any other case, must be kept at a place, and in a manner, that they are readily accessible by an authorised officer.
(3) A family day care educator who educates and cares for a child at a residence or approved family day care venue, as part of a family day care service, must keep the prescribed documents available for inspection by an authorised officer at that residence or venue.
Penalty: $4 000.
Part 7 — Compliance with this Law
Division 1 — Notices
Compliance directions
(1) This section applies if the Regulatory Authority is satisfied that an education and care service has not complied with a provision of this Law that is prescribed by the national regulations.
(2) The Regulatory Authority may give the approved provider a written direction (a compliance direction) requiring the approved provider to take the steps specified in the direction to comply with that provision.
(3) An approved provider must comply with a direction under subsection (2) within the period (being not less than 14 days) specified in the direction.
Penalty: $2 000, in the case of an individual.
$10 000, in any other case.
Compliance notices
(1) This section applies if the Regulatory Authority is satisfied that an education and care service is not complying with any provision of this Law.
(2) The Regulatory Authority may give the approved provider a notice (a compliance notice) requiring the approved provider to take the steps specified in the notice to comply with that provision.
(3) An approved provider must comply with a compliance notice under subsection (2) within the period (being not less than 14 days) specified in the notice.
Notice to suspend education and care by a family day care educator
(1) This section applies if the Regulatory Authority is satisfied that because of the conduct of, or the inadequacy of the service provided by, a family day care educator engaged by or registered with a family day care service —
(a) the approved provider or a nominated supervisor of an approved family day care service is not complying with any provision of this Law; or
(b) there is a risk to the safety, health or wellbeing of children being educated and cared for by the family day care educator.
(2) The Regulatory Authority may give the approved provider, the nominated supervisor (if applicable) and the educator a notice (show cause notice) stating —
(a) that the Regulatory Authority intends to give the approved provider a notice directing the provider to suspend the provision of education and care by the educator; and
(b) the reasons for the proposed direction; and
(c) that the approved provider, nominated supervisor or educator, (as the case requires) may, within 14 days after the show cause notice is given, make submissions to the Regulatory Authority in respect of the proposed direction.
(3) The show cause notice must be served by delivering it personally to the family day care educator.
(4) The Regulatory Authority —
(a) must consider any submissions from the approved provider, the nominated supervisor and the family day care educator received within the time allowed by subsection (2)(c); and
(b) may consider any other submissions and any matters the Regulatory Authority considers relevant; and
(c) may —
(i) give the approved provider a notice directing the provider to suspend the provision of education and care of children by the family day care educator; or
(ii) decide not to give that direction.
(5) The Regulatory Authority must give the family day care educator a notice of the decision under subsection (4).
(6) If the Regulatory Authority decides not to give the direction to suspend, the Regulatory Authority must give the approved provider notice of the decision.
(7) A person must comply with a direction under subsection (4).
[Section 178 amended: No. 18 of 2018 s. 55.]
Emergency action notices
(1) This section applies if the Regulatory Authority is satisfied that an education and care service is operating in a manner that poses, or is likely to pose, an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by the service.
(2) The Regulatory Authority may, by written notice, direct the approved provider of the education and care service to take the steps specified in the notice to remove or reduce the risk within the time (not more than 14 days) specified in the notice.
(3) An approved provider must comply with a direction given under subsection (2).
Division 2 — Enforceable undertakings
[Heading inserted: No. 18 of 2018 s. 56.]
179A. Enforceable undertakings
(1) This section applies —
(a) if a person has, or believes the person may have, contravened, or if the Regulatory Authority alleges a person has contravened, a provision of this Law; or
(b) in the circumstances set out in section 27(a), 72(a) or 184(3).
(2) If subsection (1)(a) applies, the Regulatory Authority may accept a written undertaking from the person, under which the person undertakes to take certain actions, or refrain from taking certain actions, to comply with this Law.
(3) If subsection (1)(b) applies in relation to the approved provider of an education and care service, the Regulatory Authority may accept a written undertaking from the approved provider, under which the approved provider undertakes to take certain actions, or refrain from taking certain actions in relation to the education and care service.
(4) If subsection (1)(b) applies in relation to a person other than the approved provider of an education and care service, the Regulatory Authority may accept a written undertaking from the person, under which the person undertakes to take certain actions, or refrain from taking certain actions in relation to an education and care service.
(5) A person may, with the consent of the Regulatory Authority, withdraw or amend an undertaking.
(6) The Regulatory Authority may withdraw its acceptance of the undertaking at any time and the undertaking ceases to be in force on that withdrawal.
(7) The Regulatory Authority may publish on the Regulatory Authority’s website an undertaking accepted under this section.
Note: This section differs from section 179A of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 179A inserted: No. 18 of 2018 s. 56.]
179B. Certain actions prohibited while undertaking is in force
(1) While an undertaking is in force under section 179A(2), proceedings may not be brought for any offence constituted by the contravention or alleged contravention in respect of which the undertaking is given.
(2) While an undertaking is in force under section 179A(3), the Regulatory Authority must not (as the case requires) —
(a) suspend the provider approval under section 27 in relation to a matter that is the subject of the undertaking; or
(b) suspend the service approval under section 72 in relation to a matter that is the subject of the undertaking; or
(c) give a prohibition notice under section 182 in relation to a matter that is the subject of the undertaking.
(3) While an undertaking is in force under section 179A(4), the Regulatory Authority must not give a prohibition notice under section 182 in relation to a matter that is the subject of the undertaking.
[Section 179B inserted: No. 18 of 2018 s. 56.]
Certain actions prohibited if undertaking is complied with
(1) If a person complies with the requirements of an undertaking under section 179A(2), no further proceedings may be brought for any offence constituted by the contravention or alleged contravention in respect of which the undertaking was given.
(2) If an approved provider complies with the requirements of an undertaking under section 179A(3), the Regulatory Authority must not (as the case requires) —
(a) suspend the provider approval under section 27 in relation to a matter that is the subject of the undertaking; or
(b) suspend the service approval under section 72 in relation to a matter that is the subject of the undertaking; or
(c) give a prohibition notice under section 182 in relation to a matter that is the subject of the undertaking.
(3) If a person complies with the requirements of an undertaking under section 179A(4), the Regulatory Authority must not give a prohibition notice under section 182 in relation to a matter that is the subject of the undertaking.
[Section 180 inserted: No. 18 of 2018 s. 56.]
Failure to comply with enforceable undertakings
(1) If the Regulatory Authority considers that a person who gave an undertaking under section 179A has failed to comply with any of its terms, the Regulatory Authority may apply to the relevant tribunal or court for an order under subsection (2) to enforce the undertaking.
(2) If the relevant tribunal or court is satisfied that the person has failed to comply with a term of the undertaking, the relevant tribunal or court may make any of the following orders —
(a) an order directing the person to comply with the term of the undertaking;
(b) an order that the person take any specified action for the purpose of complying with the undertaking;
(c) any other order that the relevant tribunal or court considers appropriate in the circumstances.
(3) If the relevant tribunal or court determines that the person has failed to comply with a term of an undertaking under section 179A(2), proceedings may be brought for any offence constituted by the contravention or alleged contravention in respect of which the undertaking was given.
(4) If the relevant tribunal or court determines that an approved provider has failed to comply with a term of an undertaking under section 179A(3), the Regulatory Authority may without further notice —
(a) if the undertaking was given in circumstances set out in section 27(a), suspend the provider approval under section 27; or
(b) if the undertaking was given in circumstances set out in section 72(a), suspend the service approval under section 72; or
(c) if the undertaking was given in circumstances set out in section 184(3), give a prohibition notice under section 182 in relation to a matter that is the subject of the undertaking.
(5) If the relevant tribunal or court determines that a person has failed to comply with a term of an undertaking under section 179A(4), the Regulatory Authority may, without further notice, give a prohibition notice under section 182 in relation to a matter that is the subject of the undertaking.
(6) Proceedings referred to in subsection (3) may be brought within 6 months of the determination or within 2 years of the date of the alleged offence, whichever occurs last.
[Section 181 inserted: No. 18 of 2018 s. 56.]
Division 3 — Prohibition notices
Grounds for giving prohibition notice
(1) The Regulatory Authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed —
(a) to remain on the education and care service premises; or
(b) to provide education and care to children.
(2) For the purposes of subsection (1), a person may be involved in the provision of an approved education and care service as any of the following —
(a) an approved provider;
(b) a nominated supervisor;
(c) an educator;
(d) a family day care educator;
(e) an employee;
(f) a contractor;
(g) a volunteer;
(h) a person who was formerly a person referred to in paragraphs (a) to (g) in relation to the approved education and care service,
or in any other capacity.
(3) The Regulatory Authority may give a prohibition notice to a person to —
(a) prohibit the person from being nominated as a nominated supervisor if the Regulatory Authority considers the person is not a fit and proper person to be nominated as a nominated supervisor of a service; or
(b) impose one or more conditions on the nomination of the person as a nominated supervisor that the Regulatory Authority considers appropriate, if the Regulatory Authority considers the person is a fit and proper person to be nominated as a nominated supervisor of a service subject to those conditions.
[Section 182 amended: No. 18 of 2018 s. 57.]
Show cause notice to be given before prohibition notice
(1) Before giving a person a prohibition notice, the Regulatory Authority must give the person a notice (a show cause notice) —
(a) stating that the Regulatory Authority proposes to give the person a prohibition notice; and
(b) stating the reasons for the proposed prohibition; and
(c) inviting the person to make a written submission to the Regulatory Authority, within a stated time of at least 14 days, about the proposed prohibition.
(2) Subsection (1) does not apply if the Regulatory Authority is satisfied it is necessary, in the interests of the safety, health or wellbeing of a child or children, to immediately issue a prohibition notice to the person.
Deciding whether to give prohibition notice
(1) If the Regulatory Authority gives a show cause notice under section 183 to a person, the Regulatory Authority must have regard to any written submission received from the person within the time stated in the show cause notice before deciding whether to give the person a prohibition notice.
(2) If the Regulatory Authority decides not to issue a prohibition notice to the person, the Regulatory Authority must give the person notice of the decision.
(3) The Regulatory Authority may accept an undertaking from a person under section 179A instead of giving a prohibition notice under this Division.
[Section 184 amended: No. 18 of 2018 s. 58.]
Content of prohibition notice
(1) A prohibition notice given to a person under section 182(1) must state that the person is prohibited from doing one or more of the following —
(a) providing education and care to children for an education and care service;
(b) being engaged as an educator, family day care educator, employee, contractor or staff member of, or being a volunteer at, an education and care service;
(c) carrying out any other activity relating to an education and care service.
(2) A prohibition notice given to a person under section 182(3) must state that either —
(a) the person is prohibited from being nominated as a nominated supervisor of an education and care service; or
(b) the person may only be nominated as a nominated supervisor of an education and care service on the condition or conditions specified by the Regulatory Authority in the notice.
(3) A prohibition notice given to a person under section 182(1) or (3) must state —
(a) that the person may apply for cancellation of the notice; and
(b) how an application for cancellation must be made.
[Section 185 inserted: No. 18 of 2018 s. 59.]
Cancellation of prohibition notice
(1) If the Regulatory Authority is satisfied there is not a sufficient reason for a prohibition notice to remain in force for a person, the Regulatory Authority must cancel the prohibition notice and give the person notice of the cancellation.
(2) A person for whom a prohibition notice is in force may apply to the Regulatory Authority to cancel the notice.
(c) be signed by the person.
(4) The person may state in the application anything the person considers relevant to the Regulatory Authority’s decision about whether there would be an unacceptable risk of harm to children if the person were —
(a) to remain at the education and care service premises; or
(b) to provide education and care to children.
(4A) The person may state in the application anything the person considers relevant to the Regulatory Authority’s decision about whether the person is a fit and proper person to be nominated as a nominated supervisor with or without conditions.
(5) The application may include a statement setting out any change in the person’s circumstances since the prohibition notice was given or since any previous application under this section that would warrant the cancellation of the notice.
(6) The Regulatory Authority must decide the application as soon as practicable after its receipt.
[Section 186 amended: No. 18 of 2018 s. 60.]
Person must not contravene prohibition notice
(1) While a prohibition notice under section 182(1) is in force under this Law as applying in any participating jurisdiction for a person, the person must not —
(a) provide education and care to children for an education and care service; or
(b) be engaged as an educator, family day care educator, employee, contractor or staff member of, or perform volunteer services for, an education and care service; or
(c) carry out any other activity relating to education and care services.
Penalty: $20 000.
(2) While a prohibition notice under section 182(3) is in force under this Law as applying in any participating jurisdiction for a person, the person must not —
(a) in the case of a prohibition notice under section 182(3)(a), consent to a nomination of that person as a nominated supervisor of an education and care service; or
(b) in the case of a prohibition notice under section 182(3)(b), consent to a nomination of that person as a nominated supervisor of an education and care service in contravention of a condition or conditions stated in the prohibition notice.
Penalty: $20 000.
[Section 187 amended: No. 18 of 2018 s. 61.]
Offence to engage person to whom prohibition notice applies
(1) An approved provider must not engage a person as an educator, family day care educator, employee, contractor or staff member of, or allow a person to perform volunteer services for, an education and care service if the provider knows, or ought reasonably to know, a prohibition notice is in force under this Law as applying in any participating jurisdiction in respect of the person.
(2) An approved provider must not nominate a person as a nominated supervisor of an education and care service if the approved provider knows, or ought reasonably to know, that a prohibition notice is in force under this Law as applying in any participating jurisdiction prohibiting the nomination of that person as a nominated supervisor of an education and care service.
(3) An approved provider must not nominate a person as a nominated supervisor of an education and care service if the approved provider knows, or ought reasonably to know, that the nomination would place the person in contravention of a condition of a prohibition notice in force under this Law as applying in any participating jurisdiction.
[Section 188 amended: No. 18 of 2018 s. 62.]
188A. False or misleading information about prohibition notice
A person who is subject to a prohibition notice under this Law as applying in any participating jurisdiction must not give an approved provider any information about the content or existence of the prohibition notice that is false or misleading in any material particular.
Penalty: $6 000.
[Section 188A inserted: No. 18 of 2018 s. 63.]
Division 3A — Disciplinary action
Note: Division 3A of Part 7 does not form part of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
188AA. Persons against whom disciplinary action may be taken
person linked to a WA service means any of the following —
(a) an approved provider operating a WA service;
(b) a nominated supervisor of a WA service;
[(c) deleted]
(d) a person with management or control of a WA service;
(e) a family day care educator engaged by or registered with a WA service;
WA service means an education and care service located in this jurisdiction.
Note: Section 188AA does not form part of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 188AA, formerly section 188A renumbered as section 188AA: No. 18 of 2018 s. 67; amended: No. 18 of 2018 s. 64.]
188AB. Disciplinary action
(1) Grounds for disciplinary action exist against a person linked to a WA service if —
(a) the person has failed to comply with this Law as applying in this jurisdiction; or
(b) the person is a person with management or control of a body corporate that is itself a person linked to a WA service and —
(i) the body corporate has failed to comply with this law as applying in this jurisdiction; and
(ii) the person with management or control of the body corporate has failed to exercise due diligence to prevent that failure.
(2) If the Regulatory Authority of this jurisdiction considers that grounds for disciplinary action exist in respect of a person linked to a WA service, the Regulatory Authority may make an allegation to the relevant tribunal or court of this jurisdiction in respect of that person.
(3) In proceedings commenced by an allegation under subsection (2) in respect of a person, the relevant tribunal or court of this jurisdiction, if satisfied that grounds for disciplinary action exist, may make one or more of the following orders —
(a) an order reprimanding the person;
(b) subject to section 188AC, an order requiring the person to pay a fine not exceeding $50 000;
(c) an order to take certain actions, or refrain from taking certain actions, to comply with this Law.
(4) The relevant tribunal or court may make an order under subsection (3)(a) or (b) in respect of a person whether or not at the time when the order is made the person is a person linked to a WA service.
Note: Section 188AB does not form part of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 188AB, formerly section 188B renumbered as section 188AB: No. 18 of 2018 s. 67; amended: No. 18 of 2018 s. 65.]
188AC. Limitation on section 188AB(3)(b)
(1) The power described in section 188AB(3)(b) to impose a fine, and the power of a court to impose a penalty for an offence under this Law as it applies in this, or another participating jurisdiction, cannot both be exercised in respect of an act or omission of a person that is substantially the same.
(2) A fine that exceeds the relevant maximum fine cannot be imposed under section 188AB(3)(b).
(3) In subsection (2) —
relevant maximum fine means, if the fine is to be imposed in respect of an act or omission that constitutes an offence under this Law, the maximum fine that could be imposed by a court for that offence.
Note: Section 188AC does not form part of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 188AC, formerly section 188C renumbered as section 188AC: No. 18 of 2018 s. 67; amended: No. 18 of 2018 s. 66.]
Division 4 — Emergency removal of children
Emergency removal of children
(1) This section applies if the Regulatory Authority considers, on reasonable grounds, that there is an immediate danger to the safety or health of a child or children being educated and cared for by an education and care service.
(2) The Regulatory Authority may remove, or cause the removal of, the child or children from the education and care service premises.
(3) In exercising a power under subsection (2) —
(a) the Regulatory Authority may be given such assistance by other persons (including police officers) as is reasonably required; and
(b) the Regulatory Authority and any person assisting the Regulatory Authority may —
(i) enter the education and care service premises, without warrant; and
(ii) use reasonable force as necessary.
(4) If a child is removed from the education and care service premises under subsection (2), the Regulatory Authority must ensure that the child’s parents are immediately notified of the situation and the child’s current location.
Part 8 — Review
Division 1 — Internal review
Reviewable decision — internal review
A reviewable decision for internal review is a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction —
(a) to refuse to grant a provider approval or a service approval; or
(b) to amend or refuse to amend a provider approval, a service approval or a supervisor certificate; or
(c) to impose a condition on a provider approval, a service approval or a supervisor certificate; or
(d) to suspend —
(i) a provider approval under section 28; or
(ii) a service approval under section 73; or
(e) to refuse to consent to the transfer of a service approval; or
(f) to revoke a service waiver; or
(g) to issue a compliance direction; or
(h) to issue a compliance notice.
[Section 190 amended: No. 18 of 2018 s. 68.]
Internal review of reviewable decisions
(1) A person who is the subject of a reviewable decision for internal review may apply to the Regulatory Authority in writing for review of the decision.
(2) An application under subsection (1) must be made —
(a) within 14 days after the day on which the person is notified of the decision; or
(b) if the person is not notified of the decision, within 14 days after the person becomes aware of the decision.
(3) The person who conducts the review for the Regulatory Authority must not be a person who was involved in the assessment or investigation of the person or service to whom or which the decision relates.
(4) The person conducting the review may ask the person who applied for the review for further information.
(5) A review under this section must be conducted within 30 days after the application is made.
(6) The period specified in subsection (5) may be extended by up to 30 days —
(a) if a request for further information is made under subsection (4); or
(b) by agreement between the person who applied for the review and the Regulatory Authority.
(7) The Regulatory Authority may, in relation to an application under subsection (1) —
(a) confirm the decision; or
(b) make any other decision that the Regulatory Authority thinks appropriate.
Division 2 — External review
Reviewable decision — external review
A reviewable decision for external review is —
(a) a decision of the Regulatory Authority made under section 191 (other than a decision in relation to the issue of a compliance direction or a compliance notice); or
(b) a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction —
(i) to suspend a provider approval under section 27; or
(ii) to cancel a provider approval under section 33; or
(iii) to suspend a service approval under section 72; or
(iv) to cancel a service approval under section 79 or 307; or
[(v) deleted]
(vi) to direct the approved provider of a family day care service to suspend the care and education of children by a family day care educator; or
(vii) to give a prohibition notice or to refuse to cancel a prohibition notice.
Note: A person is not entitled to a review under this section in respect of a suspension or cancellation of a service approval if that suspension or cancellation relates only to an associated children’s service. Any right of review would be under the children’s services law.
[Section 192 amended: No. 18 of 2018 s. 69.]
Application for review of decision of the Regulatory Authority
(1) A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision.
(2) An application must be made within 30 days after the day on which the applicant is notified of the decision that is to be reviewed.
(3) After hearing the matter, the relevant tribunal or court may —
(a) confirm the decision of the Regulatory Authority; or
(b) amend the decision of the Regulatory Authority; or
(c) substitute another decision for the decision of the Regulatory Authority.
(4) In determining any application under this section, the relevant tribunal or court may have regard to any decision under this Law as applying in another participating jurisdiction of a relevant tribunal or court of that jurisdiction.
Division 3 — General
Relationship with Act establishing administrative body
This Part applies despite any provision to the contrary in the Act that establishes the relevant tribunal or court but does not otherwise limit that Act.
Part 9 — Monitoring and enforcement
Division 1 — Authorised officers
Authorisation of authorised officers
(1) The Regulatory Authority may authorise any person who the Regulatory Authority is satisfied is an appropriate person to be an authorised officer for the purposes of this Law.
(2) In considering whether a person is an appropriate person to be an authorised officer, the Regulatory Authority must take into account the requirements for the authorisation of authorised officers determined by the National Authority under subsection (5).
(3) An authorised officer holds office on any terms and conditions stated in the authorisation.
(4) A defect in the authorisation of an authorised officer does not affect the validity of any action taken or decision made by the authorised officer under this Law.
(5) The National Authority may determine the requirements for the authorisation of authorised officers under this section.
(6) A determination under subsection (5) must be published on the website of the National Authority.
Identity card
(1) The Regulatory Authority must issue to each authorised officer an identity card in the form prescribed by the national regulations.
(2) The identity card must identify the authorised officer as an authorised officer authorised by the Regulatory Authority under this Law.
(3) An authorised officer must —
(a) carry the identity card whenever the officer is exercising his or her functions under this Law; and
(b) show the identity card —
(i) before exercising a power of entry under this Law; and
(ii) at any time during the exercise of a power under this Law when asked to do so.
(4) An authorised officer who fails to comply with subsection (3)(b) in relation to the exercise of a power ceases to be authorised to exercise the power in relation to the matter.
(5) An authorised officer must return his or her identity card to the Regulatory Authority on ceasing to be authorised as an authorised officer for the purposes of this Law.
Division 2 — Powers of entry
Powers of entry for assessing and monitoring approved education and care service
(1) An authorised officer may exercise a power under this section for any of the following purposes —
(a) monitoring compliance with this Law;
(ab) monitoring compliance with a working with children law by specified persons in relation to the provision of an education and care service;
(b) a rating assessment of an approved education and care service under Part 5;
(c) obtaining information requested under section 35 or 83.
(2) An authorised officer may, at any reasonable time and with such assistants as may reasonably be required, enter any education and care service premises and do any of the following —
(a) inspect the premises and any plant, equipment, vehicle or other thing;
(b) photograph or film, or make audio recordings or make sketches of, any part of the premises or anything at the premises;
(c) inspect and make copies of, or take extracts from, any document kept at the premises;
(d) take any document or any other thing at the premises;
(e) ask a person at the premises —
(i) to answer a question to the best of that person’s knowledge, information and belief; or
(ii) to take reasonable steps to provide information or produce a document.
(3) A power under subsection (2)(a) to (d) is limited to a document or thing that is used or likely to being used in, or in relation to, the provision of the education and care service.
(4) If the authorised officer takes any document or thing under subsection (2), he or she must —
(a) give notice of the taking of the document or thing to the person apparently in charge of it or to an occupier of the premises; and
(b) return the document or thing to that person or the premises within 7 days after taking it.
(5) An authorised officer may not, under this section, enter a residence unless —
(a) an approved education and care service is operating at the residence at the time of entry; or
(b) the occupier of the residence has consented in writing to the entry and the inspection.
(6) In this section —
specified person has the meaning given in section 206(4).
Note: This section differs from section 197 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
National Authority representative may enter service premises in company with Regulatory Authority
(1) A person authorised by the National Authority, in company with an authorised officer, may enter premises used by an approved education and care service within the usual hours of operation of the service at those premises.
(2) The entry by the person authorised by the National Authority is solely for the purpose of informing the National Authority of the rating assessment processes of the Regulatory Authority under Part 5 to assist the National Authority in promoting consistency across participating jurisdictions.
Powers of entry for investigating approved education and care service
(1) An authorised officer may exercise the powers under this section to investigate an approved education and care service if the authorised officer reasonably suspects that an offence may have been or may be being committed against this Law.
(2) The authorised officer, with any necessary assistants, may with or without the consent of the occupier of the premises, enter the education and care service premises at any reasonable time and do any of the following —
(b) inspect, measure, test, photograph or film, or make audio recordings of, any part of the premises or anything at the premises;
(e) take into or onto the premises any person, equipment and materials the authorised officer reasonably requires for exercising a power under this subsection;
(f) require the occupier of the premises, or a person at the premises, to give the authorised officer information to help the authorised officer in conducting the investigation.
(3) A power under subsection (2)(b) to (d) is limited to a document or thing that is used or likely to be used in the provision of the education and care service.
(4) An authorised officer may not, under this section, enter a residence unless —
(a) the authorised officer reasonably believes that an approved education and care service is operating at the residence at the time of entry; or
(ab) the register of family day care educators records that the approved education and care service operates at the residence at the time of entry; or
(b) the occupier of the residence has consented in writing to the entry and the inspection.
[Section 199 amended: No. 18 of 2018 s. 70.]
Powers of entry to business premises
(1) An authorised officer may exercise powers under this section if the authorised officer reasonably suspects that documents or other evidence relevant to the possible commission of an offence against this Law are present at the principal office of the approved provider of the service or any other business office of the approved provider of the service.
(2) The authorised officer, with the consent of the occupier of the premises, may enter the premises and do any of the following —
(b) inspect, measure, test, photograph or film, or make audio recordings of, any part of the premises or anything at the premises;
(e) take into or onto the premises any person, equipment and materials the authorised officer reasonably requires for exercising a power under this subsection;
(f) require the occupier of the premises, or a person at the premises, to give the authorised officer information to help the authorised officer in conducting the investigation.
(3) An authorised officer must not enter and search the premises with the consent of the occupier unless, before the occupier consents to that entry, the authorised officer has —
(a) produced his or her identity card for inspection; and
(b) informed the occupier —
(i) of the purpose of the search and the powers that may be exercised; and
(ii) that the occupier may refuse to give consent to the entry and search or to the taking of anything found during the search; and
(iii) that the occupier may refuse to consent to the taking of any copy or extract from a document found on the premises during the search.
[Section 200 amended: No. 18 of 2018 s. 71.]
200A. Entry to premises without search warrant
(1) An authorised officer may enter any premises (including residential or business premises) for the purpose of determining whether an education and care service is operating without a service approval at or from the premises, if —
(a) the authorised officer reasonably believes that a person is operating an education and care service in contravention of section 103 at the premises; and
(b) the occupier of the premises has consented in writing to the entry and inspection.
(2) An authorised officer must not enter and search the premises under this section unless, before the occupier consents to the entry, the authorised officer has —
(a) produced the authorised officer’s identity card for inspection; and
(b) informed the occupier —
(i) of the purpose of the search and the powers that may be exercised; and
(ii) that the occupier may refuse to consent to the entry and search or the taking of anything found during the search; and
(iii) that the occupier may refuse to consent to the taking of any copy or extract from a document found on the premises during the search.
(3) An authorised officer who exercises a power of entry under this section may for the purposes of the investigation do any of the things referred to in clause 5(2)(a) to (e) of Schedule 2 as if a reference to that Schedule included a reference to this section.
[Section 200A inserted: No. 18 of 2018 s. 72.]
Entry to premises with search warrant
(1) An authorised officer under the authority of a search warrant may enter premises if the authorised officer reasonably believes that a person is operating an education and care service in contravention of section 103 at or from the premises.
(2) An authorised officer under the authority of a search warrant may enter any education and care service premises or any premises where the authorised officer reasonably believes that an approved education and care service is operating if the authorised officer reasonably believes that the education and care service is operating in contravention of this Law.
(3) An authorised officer under the authority of a search warrant may enter the principal office of the approved provider of the service or any other business office of the approved provider of the service if the authorised officer reasonably believes that documents or other evidence relevant to the possible commission of an offence against this Law are present at those premises.
(4) Schedule 2 applies in relation to the issue of the search warrant and the powers of the authorised officer on entry.
[Section 201 amended: No. 18 of 2018 s. 73.]
Seized items
(1) If an authorised officer has taken a thing under section 199, 200 or 200A or under a search warrant under section 201, the authorised officer must take reasonable steps to return the thing to the person from whom it was taken if the reason for the taking no longer exists.
(2) If the thing has not been returned within 60 days after it was taken, the authorised officer must take reasonable steps to return it unless —
(a) proceedings have been commenced within the period of 60 days and those proceedings (including any appeal) have not been completed; or
(b) a court makes an order under section 203 extending the period the thing can be retained.
(3) If an authorised officer has taken a thing under section 199, 200 or 200A or under a search warrant under section 201, the authorised officer must provide the owner of the thing with reasonable access to the thing.
[Section 202 amended: No. 18 of 2018 s. 74.]
Court may extend period
(1) An authorised officer may apply to a court within the period of 60 days referred to in section 202 or within a period extended by the court under this section for an extension of the period for which the thing can be held.
(2) The court may order the extension if satisfied that retention of the thing is necessary —
(a) for the purposes of an investigation into whether an offence has been committed; or
(b) to enable evidence of an offence to be obtained for the purposes of a prosecution.
(3) The court may adjourn an application to enable notice of the application to be given to any person.
Division 3 — Other powers
Power to require name and address
(a) an authorised officer finds a person committing an offence against this Law or a working with children law; or
(b) an authorised officer finds a person in circumstances that lead, or the authorised officer has information that leads, the officer to reasonably suspect the person is committing, or has committed, an offence against this Law or a working with children law.
(2) The authorised officer may require the person to state the person’s name and residential address.
(3) The authorised officer may require the person to give evidence of the correctness of the stated name or residential address if the officer reasonably suspects the stated name or address to be false.
Note: This section differs from section 204 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
Power to require evidence of age, name and address of person
(a) the national regulations require a staff member, a family day care educator or a volunteer to have attained a prescribed minimum age; and
(b) an authorised officer reasonably suspects that a person —
(i) is employed or engaged as a staff member or a family day care educator by, or is a volunteer at, an education and care service; and
(ii) has not attained that prescribed minimum age.
(2) The authorised officer may require the person to state the person’s correct date of birth, whether or not when requiring the person to state the person’s correct name and address.
(3) Also, the authorised officer may require the person to provide evidence of the correctness of the stated date of birth —
(a) at the time of making the requirement under subsection (2) if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated date of birth; or
(b) otherwise, within 14 days of making the requirement under subsection (2).
(4) The authorised officer may require the person to state the person’s name and residential address if —
(a) the person refuses or is unable to comply with a requirement under subsection (2) or (3); or
(b) according to the date of birth the person states, or the evidence of the person’s age the person gives, the person has not attained the prescribed minimum age.
Power of authorised officers to obtain information documents and evidence
(1) An authorised officer may exercise a power under this section for any of the following purposes —
(a) monitoring compliance with this Law;
(ab) monitoring compliance with a working with children law by specified persons in relation to the provision of an education and care service;
(b) a rating assessment of an approved education and care service under Part 5;
(c) obtaining information requested under section 35 or 83.
(2) An authorised officer may, by written notice, require a specified person to provide to the authorised officer, by writing signed by that person or, if the person is not an individual, by a competent officer of that person, within the time and in the manner specified in the notice, any relevant information that is specified in the notice.
(3) The time specified in the notice must not be less than 14 days from the date the notice is issued.
specified person means a person who is or has been —
(a) an approved provider, a nominated supervisor or a staff member of, or a volunteer at, an approved education and care service; or
(b) a family day care educator.
Note: This section differs from section 206 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 206 amended: No. 18 of 2018 s. 75.]
Division 4 — Offences relating to enforcement
Offence to obstruct authorised officer
A person must not obstruct an authorised officer in exercising his or her powers under this Law.
Offence to fail to assist authorised officer
A person must not —
(a) refuse to answer a question lawfully asked by an authorised officer (other than a question asked under section 197(2)(e)); or
(b) refuse to provide information or produce a document lawfully required by an authorised officer; or
(c) fail to comply with a requirement made by an authorised officer under clause 5(2)(f) or (g) of Schedule 2.
Note: This section differs from section 208 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
Offence to destroy or damage notices or documents
A person must not, without lawful authority, destroy or damage any notice or document given or prepared or kept under this Law.
Offence to impersonate authorised officer
A person must not impersonate an authorised officer.
Penalty: $8 000.
Protection against self-incrimination
(1) An individual may refuse or fail to give information or do any other thing that the individual is required to do by or under this Law if giving the information or doing the thing might incriminate the individual.
(2) However, subsection (1) does not apply to —
(a) the production of a document or part of a document that is required to be kept under this Law; or
(b) the giving of the individual’s name or address in accordance with this Law; or
(c) anything required to be done under section 215 or 216.
(3) Any document referred to in subsection (2)(a) that is produced by an individual or any information obtained directly or indirectly from that document produced by an individual is not admissible in evidence against the individual in any criminal proceedings (except for criminal proceedings under this Law) or in any civil proceedings.
Warning to be given
(1) Before requiring a person to answer a question or provide information or a document under this Part or Schedule 2, an authorised officer must —
(a) identify himself or herself to the person as an authorised officer by producing the officer’s identity card; and
(b) warn the person that a failure to comply with the requirement or to answer the question, without reasonable excuse, would constitute an offence; and
(c) in the case of an individual, warn the person about the effect of section 211.
(2) Nothing in this section prevents an authorised officer from obtaining and using evidence given to the authorised officer voluntarily by any person.
(3) This section does not apply to a request made under section 197.
Occupier’s consent to search
(1) An occupier who consents in writing to the entry and inspection of his or her premises under Division 2 must be given a copy of the signed consent immediately.
(2) If, in any proceeding, a written consent is not produced to the court, it must be presumed until the contrary is proved that the occupier did not consent to the entry and search.
Division 5 — Powers of Regulatory Authority
Powers of Regulatory Authority to obtain information for rating purposes
The Regulatory Authority may, for the purpose of a rating assessment —
(a) ask the approved provider of the approved education and care service for any information and documents; and
(b) make any inquiries it considers appropriate.
Power of Regulatory Authority to obtain information, documents and evidence by notice
(1) This section applies if the Regulatory Authority reasonably suspects that an offence has or may have been committed against this Law.
(2) The Regulatory Authority may, by written notice, require a person —
(a) to provide to the Regulatory Authority, in writing signed by that person or, if the person is not an individual, by a competent officer of that person, within the time and in the manner specified in the notice, any relevant information that is specified in the notice; or
(b) to produce to the Regulatory Authority, or to a person specified in the notice acting on the Regulatory Authority’s behalf, in accordance with the notice, any relevant document referred to in the notice; or
(c) to appear before the Regulatory Authority, or a person specified in the notice acting on the Regulatory Authority’s behalf, at a time and place specified in the notice to give any evidence or to produce any relevant document specified in the notice.
(3) The notice must —
(a) warn the person that failure or refusal to comply with the notice would constitute an offence; and
(b) warn the person about the effect of sections 217, 218 and 219.
(4) The Regulatory Authority or the person specified in the notice acting on the Regulatory Authority’s behalf may require the evidence referred to in subsection (2)(c) to be given on oath or affirmation and for that purpose may administer an oath or affirmation.
(5) The person may give evidence under subsection (2)(c) by telephone or video conference or other electronic means unless the Regulatory Authority, on reasonable grounds, requires the person to give that evidence in person.
Note: This section differs from section 215 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
Power of Regulatory Authority to obtain information, documents and evidence at education and care service
(1) This section applies if the Regulatory Authority reasonably suspects that an offence has or may have been committed against this Law.
(2) The Regulatory Authority may require a person at an education and care service —
(a) to provide the Regulatory Authority, or a person acting on the Regulatory Authority’s behalf, with any specified information that is relevant to the suspected offence; or
(b) to produce to the Regulatory Authority, or to a person acting on the Regulatory Authority’s behalf, any specified document that is relevant to the suspected offence.
(3) The Regulatory Authority must —
(a) warn the person that failure or refusal to comply with the requirement would constitute an offence; and
(b) warn the person about the effect of sections 217, 218 and 219.
(4) The Regulatory Authority must not require a person to remain at the education and care service more than a reasonable time for the purposes of providing information or producing documents under subsection (2).
Note: This section differs from section 216 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
Offence to fail to comply with notice or requirement
A person must not refuse or fail to comply with a requirement under section 215 or 216 to the extent that the person is capable of complying with that requirement.
Offence to hinder or obstruct Regulatory Authority
A person must not obstruct or hinder the Regulatory Authority in exercising a power under section 215 or 216.
Self-incrimination not an excuse
(1) A person is not excused from complying with a notice or requirement under section 215 or 216 on the ground that complying with the notice or requirement may result in information being provided that might tend to incriminate the person.
(2) Subject to subsection (3), disclosed information is not admissible in evidence against the individual in any disciplinary proceedings or in any criminal proceedings (other than proceedings under section 218 or 295) or in any civil proceedings.
(3) Despite subsection (2), any information obtained from a document or documents required to be kept under this Law, or required under section 215(2)(b) or 216(2)(b), that is produced by a person is admissible in evidence against the person in disciplinary proceedings or in criminal proceedings under this Law.
disclosed information means —
(a) the answer by an individual to any question asked under section 215 or 216; or
(b) the provision by an individual of any information in compliance with section 215 or 216; or
*[(c) this national law provision does not apply as a law of WA.]*
Note: This section differs from section 219 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
Part 10 — Ministerial Council
Functions of Ministerial Council
(1) The Ministerial Council has the following functions under this Law —
(a) to oversee the implementation and administration of the National Quality Framework;
(b) to promote uniformity in the application and enforcement of the National Quality Framework;
(c) to review and approve the National Quality Standard and set specific standards for education and care services and classes of education and care services;
(d) to review and approve the rating level system to be used in rating education and care services;
(e) to review and approve the fee structure under this Law;
(f) to review and approve new learning frameworks for the purposes of this Law;
(g) to monitor the implementation and operation of, and recommend or approve amendments to, this Law;
(h) to monitor the implementation and operation of the national regulations;
(i) to review the education and care services to which this Law applies and recommend, or amend the national regulations to provide for, the inclusion of new classes of education and care services under this Law;
(j) to appoint the members of the Board;
(k) to monitor and review the performance of the National Authority;
(l) any other functions given to the Ministerial Council by or under this Law.
(2) The Ministerial Council must have regard to the objectives and guiding principles of the National Quality Framework in carrying out its functions.
Powers of Ministerial Council
The Ministerial Council may —
(a) make recommendations to the Board in relation to the exercise of the National Authority’s functions under this Law; and
(b) refer any matter to the Board for consideration and advice; and
*[(c) this national law provision does not apply as a law of WA.]*
(d) do anything necessary or convenient to be done in carrying out its functions.
Note: This section differs from section 221 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
Directions
(1) The Ministerial Council may give directions to the Board in relation to the carrying out of the National Authority’s functions under this Law, including the following —
(a) reporting and accountability to the Ministerial Council and Regulatory Authorities;
(b) the application of the National Quality Framework;
(c) the rating level system to be used in rating education and care services;
(d) the collection and use of information.
(2) The Ministerial Council may give directions to a Regulatory Authority with respect to the administration of the National Quality Framework.
(3) A direction under this section cannot be about —
(a) a particular person or education and care service; or
(b) a particular application, approval, notification, assessment or proceeding; or
(c) the determination of a rating for a particular education and care service.
(4) A direction must be in writing.
(5) A direction must not be inconsistent with this Law.
(6) A direction is not a legislative instrument or an instrument of a legislative character.
(7) A direction to the Board under this section must be given to the Chairperson of the Board.
(8) The Board or a Regulatory Authority must comply with a direction given to the Board or the Authority by the Ministerial Council under this section.
How Ministerial Council exercises powers
(1) The Ministerial Council is to give a direction for the purposes of this Law by resolution of the Council passed in accordance with procedures determined by the Council.
(2) An act or thing done by the Ministerial Council (whether by resolution, instrument or otherwise) does not cease to have effect merely because of a change in the Council’s membership.
Part 11 — Australian Children’s Education and Care Quality Authority
Division 1 — The National Authority
National Authority
(1) The Australian Children’s Education and Care Quality Authority is established.
(2) The National Authority —
(a) is a body corporate with perpetual succession; and
(b) has a common seal; and
(c) may sue and be sued in its corporate name.
(3) The National Authority represents the State.
Functions of National Authority
(1) The functions of the National Authority are as follows —
(a) to guide the implementation and administration of the National Quality Framework and to monitor and promote consistency in its implementation and administration;
(b) to report to and advise the Ministerial Council on the National Quality Framework;
(c) to report to the Regulatory Authorities and the relevant Commonwealth Department in relation to the following —
(i) the collection of information under this Law;
(ii) the evaluation of the National Quality Framework;
(d) to establish consistent, effective and efficient procedures for the operation of the National Quality Framework;
(e) to determine the arrangements for national auditing for the purposes of this Law;
(f) to keep national information on the assessment, rating and regulation of education and care services;
(g) to establish and maintain national registers of approved providers and approved education and care services and to publish those registers;
(h) to promote and foster continuous quality improvement by approved education and care services;
(i) to publish, monitor and review ratings of approved education and care services;
(j) to make determinations with respect to the highest level of rating for approved education and care services;
(k) in conjunction with the Regulatory Authorities, to educate and inform education and care services and the community about the National Quality Framework;
(l) to publish guides and resources —
(i) to support parents, family members and the community in understanding quality in relation to education and care services; and
(ii) to support the education and care services sector in understanding the National Quality Framework;
(m) to publish information about the implementation and administration of the National Quality Framework and its effect on developmental and educational outcomes for children;
(n) to publish practice notes and guidelines for the application of this Law;
(o) to provide support and training for staff of Regulatory Authorities;
(p) to determine the qualifications required to be held by educators, including the assessment of equivalent qualifications;
(q) any other function given to the National Authority by or under this Law.
(2) In carrying out its functions, the National Authority must ensure that the regulatory burden on education and care services is minimised as far as possible.
(3) In carrying out its functions, the National Authority must have regard to the objectives and guiding principles of the National Quality Framework.
Note: This section differs from section 225 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 225 amended: No. 18 of 2018 s. 76.]
National Authority may advise and seek guidance of Ministerial Council
The National Authority may provide advice to and seek the guidance of the Ministerial Council if the National Authority considers it necessary in carrying out its functions under this Law.
Powers of National Authority
(1) The National Authority has all the powers of an individual and, in particular, may —
(a) enter into contracts; and
(b) acquire, hold, dispose of, and deal with, real and personal property; and
(c) borrow and invest money; and
(d) develop and supply resources and consultancy services to the education and care sector on a commercial basis; and
(e) do anything necessary or convenient to be done in carrying out its functions.
(2) Without limiting subsection (1), the National Authority may —
(a) collect, hold and use information obtained under this Law by the National Authority or a Regulatory Authority about the provision of education and care to children including information about outcomes for children and about providers of education and care services in each participating jurisdiction; and
Note: See section 270, which provides for the National Authority to publish information about approved providers.
(b) develop protocols for communication and dispute resolution among the National Authority, the Regulatory Authorities and the relevant Commonwealth Department to provide for consistency in the implementation and administration of the National Quality Framework; and
(c) collect, waive, reduce, defer and refund fees and enter into agreements in relation to fees in accordance with the national regulations; and
(d) enter into agreements in relation to fees and funding with the Regulatory Authorities; and
(e) undertake research and evaluation activities for the purpose of its functions under this Law.
Co‑operation with participating jurisdictions and Commonwealth
(1) The National Authority may exercise any of its functions in co‑operation with or with the assistance of a participating jurisdiction or the Commonwealth, including in co‑operation with or with the assistance of any of the following —
(a) a government agency of a participating jurisdiction or of the Commonwealth; or
(b) an educational body or other body established by or under a law of a participating jurisdiction or the Commonwealth; or
(c) a prescribed body or body in a prescribed class of bodies.
(2) In particular, the National Authority may —
(a) ask a person or body referred to in subsection (1) for information that the Authority requires to carry out its functions under this Law; and
(b) use the information to carry out its functions under this Law.
(3) A person or body referred to in subsection (1) that receives a request for information from the National Authority is authorised to give the information to the National Authority.
National audit functions
(1) The National Authority is to undertake national audits of the administration of the National Quality Framework and —
(a) review the findings of the national audit processes; and
(b) evaluate trends in the administration of the National Quality Framework across participating jurisdictions; and
(c) advise the Regulatory Authorities about the outcomes of the national audit processes and its evaluations; and
(d) report to the Ministerial Council on the outcomes of the national audit and evaluation processes.
(2) The audits are to be undertaken at the intervals, and by the means, determined by the National Authority.
Division 2 — The Board of the National Authority
Subdivision 1 — Establishment and responsibilities
National Authority Board
The National Authority has a governing body known as the Australian Children’s Education and Care Quality Authority Board.
Responsibilities of Board
(1) The affairs of the National Authority are to be controlled by the Board.
(2) The Board has all the powers and duties and all the functions of the National Authority.
(3) All acts and things done in the name of, or on behalf of, the National Authority by or with the authority of the Board are taken to have been done by the National Authority.
(4) The Board must ensure that the National Authority carries out its functions and duties and exercises its powers in a proper, effective and efficient way.
(5) The Board has any other functions given to it under this Law.
(6) Any report to the Ministerial Council under this Law is to be made by or through the Board.
(7) The Board must act in accordance with any directions given to the National Authority by the Ministerial Council under section 222.
(8) The Board must work collaboratively with the Regulatory Authorities and the relevant Commonwealth Department to support and promote the National Quality Framework.
Membership of Board
(1) The Board consists of up to 13 members appointed by consensus of the Ministerial Council.
(2) The Ministerial Council must appoint by consensus one person to be the Chairperson of the Board.
(3) One member is to be appointed for each State and Territory from 2 persons nominated by each State or Territory Minister on the Ministerial Council.
(4) The Commonwealth Minister may nominate up to 8 persons for appointment to the Board.
(5) Four of the persons nominated under subsection (4) must be appointed to the Board.
(6) The Ministerial Council must appoint by consensus one of the members referred to in subsection (3) or (5) to be the Deputy Chairperson of the Board.
(7) The members appointed to the Board must have professional skills and expertise in one or more of the following areas —
(a) assessment of quality in education and care services or other relevant services;
(b) early childhood development;
(c) labour market and workforce participation and development;
(d) best practice regulation;
(e) financial management and corporate governance;
(f) research, evaluation and performance;
(g) any other areas of skill determined by the Ministerial Council.
(8) In appointing members of the Board, the Ministerial Council must have regard to the need for the Board to have an appropriate balance of skills and expertise among its members.
Subdivision 2 — Members
Terms of office of members
(1) Subject to this Subdivision, members of the Board hold office on the terms and conditions determined by the Ministerial Council.
(2) Subject to this Subdivision, a member of the Board holds office for a period, being not more than 3 years, specified in the member’s appointment.
(3) A member may be reappointed for a further period of not more than 3 years.
(4) The maximum consecutive period of appointment of a member is 2 terms.
Remuneration
The remuneration and allowances (if any) to be paid to members of the Board are to be determined from time to time by the Ministerial Council.
Vacancy in the office of member
(1) The office of a member of the Board becomes vacant if the member —
(a) completes a term of office; or
(b) resigns the office by instrument addressed to the Chairperson of the Board; or
(c) is removed from office by the Ministerial Council under this section; or
(d) in the case of the Chairperson of the Board, is absent, without leave first being granted by the Chairperson of the Ministerial Council, from 3 or more consecutive meetings of the Board; or
(e) in the case of any other member, is absent, without leave first being granted by the Chairperson of the Board, from 3 or more consecutive meetings of the Board of which reasonable notice has been given to the member personally or by post; or
(f) dies.
(2) The Chairperson of the Ministerial Council may remove a member of the Board from office if —
(a) the member has been found guilty of an offence (whether in a participating jurisdiction or elsewhere) that, in the opinion of the Chairperson of the Ministerial Council, renders the member unfit to continue to hold the office of member; or
(b) the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member’s creditors or makes an assignment of the member’s remuneration for their benefit; or
(c) the Board recommends the removal of the member, on the basis that the member has engaged in misconduct or has failed, or is unable, to properly carry out the member’s functions as a member.
(3) The Chairperson of the Board may resign by written notice addressed to the Chairperson of the Ministerial Council.
(4) A resignation takes effect on the day that it is received by the Chairperson of the Board or the Chairperson of the Ministerial Council (as the case requires) or a later day specified in the notice of resignation.
(5) If the office of a member of the Board becomes vacant, the Chairperson of the Board must notify the Chairperson of the Ministerial Council of the vacancy.
(6) If the office of the Chairperson of the Board becomes vacant, the Deputy Chairperson of the Board must notify the Chairperson of the Ministerial Council of the vacancy.
Acting positions
(1) The Deputy Chairperson of the Board is to act as the Chairperson of the Board —
(a) during a vacancy in the office of Chairperson; or
(b) during any period that the Chairperson —
(i) is absent from duty; or
(ii) is, for any reason, unable to carry out the duties of that office.
(2) While the Deputy Chairperson of the Board is acting in the office of Chairperson —
(a) he or she has all the powers and functions of the Chairperson; and
(b) this Law and other laws apply to the Deputy Chairperson as if he or she were Chairperson.
(3) Anything done by or in relation to the Deputy Chairperson when purporting to act in the office of Chairperson is not invalid merely because the occasion for the Deputy Chairperson to act had not arisen or had ceased.
(4) The Ministerial Council may, by consensus, appoint a member of the Board to be the Deputy Chairperson of the Board —
(a) during a vacancy in the office of Deputy Chairperson; or
(b) during any period that the Deputy Chairperson —
(i) is acting as the Chairperson; or
(ii) is absent from duty; or
(iii) is, for any reason, unable to carry out the duties of that office.
(5) A person nominated by a Minister on the Ministerial Council may, with the approval of the Chairperson of the Board, act as a member of the Board in the place of the member appointed on the nomination of that Minister if that member is unable to attend a meeting of the Board.
Leave of absence
(1) The Chairperson of the Ministerial Council may grant the Chairperson of the Board a leave of absence on the terms and conditions determined by the Chairperson of the Ministerial Council.
(2) The Chairperson of the Board may grant leave of absence to any other member of the Board on the terms and conditions determined by the Chairperson of the Board.
(3) The Chairperson of the Board must notify the Chairperson of the Ministerial Council if the Chairperson of the Board grants to a member a leave of absence of more than 6 months.
(4) If a member of the Board has been granted a leave of absence of 3 months or more, the Ministerial Council may appoint a person nominated by the Minister who nominated the member to act as a member of the Board in the place of the member during that leave of absence.
Disclosure of conflict of interest
(1) If —
(a) a member of the Board has a direct or indirect pecuniary or other interest in a matter being considered or about to be considered at a meeting of the Board; and
(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter —
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Board.
(2) Particulars of any disclosure made under subsection (1) must be recorded by the Board.
(3) After a member has disclosed the nature of an interest in any matter, the member must not, unless the Ministerial Council or the Board otherwise determines —
(a) be present during any deliberation of the Board with respect to the matter; or
(b) take part in any decision of the Board with respect to the matter; or
(c) be provided with any written material in relation to the matter.
(4) For the purposes of the making of a determination by the Board under subsection (3), a member who has a direct or indirect pecuniary or other interest in a matter to which the disclosure relates must not —
(a) be present during any deliberation of the Board for the purpose of making the determination; or
(b) take part in the making of the determination by the Board.
(5) A contravention of this section does not invalidate any decision of the Board.
Subdivision 3 — Procedure of Board
General procedure
(1) The Board must hold such meetings as are necessary for it to perform its functions.
(2) Subject to this Law, the procedure for the calling of meetings of the Board and for the conduct of business at those meetings is to be as determined by the Board.
(3) The Chairperson of the Board may convene any meetings of the Board that are, in his or her opinion, necessary for the efficient performance of the functions of the Board.
(4) The Chairperson of the Board must convene a meeting of the Board at the written request of the Ministerial Council.
(5) The Board must keep minutes of its meetings.
Quorum
The quorum for a meeting of the Board is 9 members of whom —
(a) one must be the Chairperson or Deputy Chairperson; and
(b) five must be members appointed on the nomination of State and Territory Ministers; and
(c) one may be a member appointed on the nomination of the Commonwealth Minister.
Chief executive officer may attend meetings of the Board
(1) The chief executive officer of the National Authority, subject to the policies and procedures of the Board, may attend meetings of the Board and participate in its deliberations but —
(a) is not a member of the Board; and
(b) is not entitled to vote at a meeting of the Board.
(2) Section 238 applies to the chief executive officer in relation to attendance at meetings of the Board as if the chief executive officer were a member of the Board.
Presiding member
The Chairperson (or, in the absence of the Chairperson, the Deputy Chairperson) is to preside at a meeting of the Board.
Voting
(1) At a meeting of the Board each member will have a deliberative vote.
(2) A decision supported by a majority of the votes cast at the meeting of the Board at which a quorum is present is the decision of the Board.
(3) In the event of an equality of votes the Chairperson (or the Deputy Chairperson if the Chairperson is not present), will have a second or casting vote.
(4) The Board must keep a record of all decisions made at a meeting.
(5) If a decision of the Board to recommend a matter to the Ministerial Council is not arrived at unanimously, the Chairperson of the Board must advise the Ministerial Council of the reasons for and extent of the minority opinions.
Defects in appointment of members
A decision of the Board is not invalidated by any defect or irregularity in the appointment of any member (or acting member) of the Board.
Transaction of business by alternative means
(1) The Board may, if it thinks fit, transact any of its business by the provision of papers to all the members of the Board for the time being, and a resolution in writing approved in writing by a majority of the members constituting a quorum of the Board is taken to be a decision of the Board.
(2) The Board may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed‑circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.
(3) For the purposes of —
(a) the approval of a resolution under subsection (1); or
(b) a meeting held in accordance with subsection (2),
the Chairperson and each member have the same voting rights as they have at an ordinary meeting of the Board.
(4) Papers may be circulated among the members for the purposes of subsection (1) by facsimile, email or other transmission of the information in the papers concerned.
Delegation by Board
(1) The Board may, in writing, delegate any of its functions, powers or duties to —
(a) a Regulatory Authority; or
(b) the chief executive of an entity or the head of a government department of a participating jurisdiction nominated by the member of the Ministerial Council who represents that jurisdiction; or
(c) the chief executive officer of the National Authority; or
(d) a committee established by the Board; or
(e) any other entity with the approval of the Ministerial Council.
(2) Subject to the delegation under subsection (1), a chief executive of an entity or head of a government department may subdelegate a delegated function, power or duty to a member of staff of the entity or department.
(3) The chief executive officer of the National Authority may subdelegate a delegated power, function or duty to a member of the staff of the National Authority.
Committees
(1) The Board may establish committees to assist it in carrying out its functions.
(2) The Board must determine —
(a) the membership and functions of a committee; and
(b) the procedure at or in relation to meetings of the committee including —
(i) the convening of meetings; and
(ii) the quorum for meetings; and
(iii) the selection of a committee member to be the chairperson of the committee; and
(iv) the manner in which questions arising at meetings of the committee are to be decided; and
(c) the procedures for reporting to the Board.
(3) A committee must give the Board any reports, documents and information relating to the committee’s functions and activities that the Board requests.
(4) The Board must report to the Ministerial Council on any committees it establishes.
Subdivision 4 — Chief executive officer of the National Authority
Chief executive officer
(1) Subject to this section, the Chairperson of the Board is to appoint a person as chief executive officer of the National Authority.
(2) The appointment may only be made after the Ministerial Council has first endorsed the appointment on the recommendation of the Board.
Functions of chief executive officer
(1) The chief executive officer is responsible for the day‑to‑day management of the affairs of the National Authority.
(2) The chief executive officer has any other functions given to him or her or delegated to him or her under this Law.
(3) Subject to this Law, the chief executive officer must comply with the directions and policies of the Board in carrying out his or her functions.
(4) The chief executive officer is to report to the Board.
(5) The chief executive officer must manage the affairs of the National Authority in a way that —
(a) promotes the effective use of the resources of the National Authority; and
(b) is consistent with this Law.
(6) The chief executive officer must work collaboratively with the Regulatory Authorities and the relevant Commonwealth Department to support and promote the National Quality Framework.
[Section 249 amended: No. 18 of 2018 s. 77.]
Terms and conditions of appointment
(1) The chief executive officer of the National Authority is to be appointed for a period, not more than 3 years, specified in the officer’s appointment, but is eligible for reappointment.
(2) A member of the Board cannot be appointed as chief executive officer.
(3) Subject to this Law, the chief executive officer holds office subject to any terms and conditions that are decided by the Board.
(4) The chief executive officer must not engage in paid employment outside the duties of his or her office without the approval of the Chairperson of the Board.
(5) The Chairperson of the Board must notify the Chairperson of the Ministerial Council of any approval given under subsection (4).
(6) The chief executive officer of the National Authority is taken, while holding that office, to be a member of the staff of the National Authority.
Remuneration
The chief executive officer is to be paid the remuneration and allowances decided by the Board.
Vacancy in office
The office of the chief executive officer of the National Authority becomes vacant if —
(a) the chief executive officer resigns from office by written notice addressed to the Chairperson of the Board; or
(b) the appointment of the chief executive officer is terminated by the Board under this Law; or
(c) the chief executive officer dies.
Resignation
(1) The chief executive officer may resign the office by written notice addressed to the Chairperson of the Board.
(2) The resignation takes effect on the day that it is received by the Chairperson of the Board or a later day specified in the notice of resignation.
(3) The Chairperson of the Board must notify the Ministerial Council of that resignation.
Termination of appointment
(1) The Board may terminate the appointment of the chief executive officer —
(a) for misconduct or for physical or mental incapacity that significantly impacts on the ability of the chief executive officer to perform the role; or
(b) if the Board is satisfied that the performance of the chief executive officer has been unsatisfactory; or
(c) if the chief executive officer engages in paid employment outside the duties of his or her office without the approval of the Chairperson of the Board; or
(d) if the chief executive officer has been found guilty of an offence (whether in a participating jurisdiction or elsewhere) that, in the opinion of the Board, makes the chief executive officer unfit to continue to be appointed.
(2) The Board must terminate the appointment of the chief executive officer if the chief executive officer —
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the chief executive officer’s creditors or makes an assignment of the chief executive officer’s remuneration for their benefit; or
(b) is absent, except on a leave of absence approved by the Chairperson of the Board, for 14 consecutive days or for 28 days in any period of 12 months; or
(c) fails, without reasonable excuse, to comply with section 256.
(3) The Chairperson of the Board must notify the Chairperson of the Ministerial Council of the termination of the appointment of the chief executive officer.
Acting chief executive officer
(1) The Board may appoint a person to act as the chief executive officer —
(a) during any vacancy in the office of chief executive officer; or
(b) during any period that the chief executive officer —
(i) is absent from duty; or
(ii) is, for any reason, unable to perform the duties of that office.
(2) The period of the acting appointment must not exceed 6 months.
Disclosure of interests
The chief executive officer must give written notice to the Chairperson of the Board as soon as possible of any direct or indirect personal or pecuniary interest that the chief executive officer has, or acquires, or may acquire, that conflicts or could conflict with the proper carrying out of the chief executive officer’s functions.
Subdivision 5 — Staff, consultants and contractors
Staff of National Authority
(1) The National Authority may, for the purpose of carrying out its functions, employ staff.
(2) The staff of the National Authority are to be employed on the terms and conditions determined by the National Authority from time to time.
(3) Subsection (2) is subject to any relevant industrial award or agreement that applies to the staff.
Staff seconded to National Authority
The National Authority may, in consultation with the relevant Regulatory Authority or the relevant Commonwealth Department, make arrangements for the secondment of staff.
Consultants and contractors
(1) The National Authority may engage persons with suitable qualifications and experience as consultants or contractors.
(2) The terms and conditions of engagement of consultants or contractors are as decided by the National Authority from time to time.
Part 12 — Regulatory Authority
Functions of Regulatory Authority
The Regulatory Authority has the following functions under this Law in relation to this jurisdiction —
(a) to administer the National Quality Framework;
(b) to assess approved education and care services against the National Quality Standard and the national regulations and determine the ratings of those services;
(c) to monitor and enforce compliance with this Law;
(d) to receive and investigate complaints arising under this Law;
(e) in conjunction with the National Authority and the relevant Commonwealth Department, to educate and inform education and care services and the community in relation to the National Quality Framework;
(f) to work in collaboration with the National Authority to support and promote continuous quality improvements in education and care services;
(g) to undertake information collection, review and reporting for the purposes of —
(i) the regulation of education and care services; and
(ii) reporting on the administration of the National Quality Framework; and
(iii) the sharing of information under this Law;
(h) any other functions conferred on the Regulatory Authority under this Law.
Powers of Regulatory Authority
(1) The Regulatory Authority has the power to do all things that are necessary or convenient to be done for, or in connection with, or that are incidental to the carrying out of its functions under this Law.
(2) Without limiting subsection (1), the Regulatory Authority has the following powers under this Law in relation to this jurisdiction —
(a) to collect, hold and use information obtained under this Law by the Regulatory Authority or the National Authority about the provision of education and care to children including information about outcomes for children and information about providers of education and care services in each participating jurisdiction;
(b) subject to the Privacy Act 1988 of the Commonwealth, to collect, hold and use information about providers of education and care services, family day care educators and nominated supervisors;
(c) to maintain and publish registers of approved providers and approved education and care services;
(d) to publish information about the National Quality Framework, including ratings and prescribed information about compliance with this Law;
(e) to collect, waive, reduce, defer and refund fees (including late payment fees) and enter into agreements in relation to fees;
(f) to enter into agreements relating to fees and funding with the National Authority;
(g) to exercise any other powers conferred on it by this Law.
[Section 261 amended: No. 18 of 2018 s. 78.]
Delegations
(1) The Regulatory Authority may in writing delegate any of its functions and powers under this Law (other than this power of delegation) to —
(a) any person employed under a public sector law of this jurisdiction; or
(b) a prescribed person or a person in a prescribed class of persons.
(2) A delegate of the Regulatory Authority must disclose to the Regulatory Authority, at the request of the Authority, any direct or indirect personal or pecuniary interest the delegate may have in relation to the delegated functions and powers.
Part 13 — Information, records and privacy
Division 1 — Privacy
Application of Commonwealth Privacy Act
(1) The Privacy Act applies as a law of a participating jurisdiction for the purposes of the National Quality Framework.
(2) For the purposes of subsection (1), the Privacy Act applies —
(a) as if a reference to the Office of the Privacy Commissioner were a reference to the Office of the National Education and Care Services Privacy Commissioner; and
(b) as if a reference to the Privacy Commissioner were a reference to the National Education and Care Services Privacy Commissioner; and
(c) with any other modifications made by the national regulations.
(3) Without limiting subsection (2)(c), the national regulations may —
(a) provide that the Privacy Act applies under subsection (1) as if a provision of the Privacy Act specified in the national regulations were omitted; or
(b) provide that the Privacy Act applies under subsection (1) as if an amendment to the Privacy Act made by a law of the Commonwealth, and specified in the national regulations, had not taken effect; or
Privacy Act means the Privacy Act 1988 of the Commonwealth, as in force from time to time.
Division 2 — Application of Commonwealth FOI Act
Application of Commonwealth FOI Act
(1) The FOI Act applies as a law of a participating jurisdiction for the purposes of the National Quality Framework.
(2) For the purposes of subsection (1), the FOI Act applies —
(a) as if a reference to the Office of the Freedom of Information Commissioner were a reference to the Office of the National Education and Care Services Freedom of Information Commissioner; and
(b) as if a reference to the Freedom of Information Commissioner were a reference to the National Education and Care Services Freedom of Information Commissioner; and
(c) with any other modifications made by the national regulations.
(a) provide that the FOI Act applies under subsection (1) as if a provision of the FOI Act specified in the national regulations were omitted; or
(b) provide that the FOI Act applies under subsection (1) as if an amendment to the FOI Act made by a law of the Commonwealth, and specified in the national regulations, had not taken effect; or
FOI Act means the Freedom of Information Act 1982 of the Commonwealth, as in force from time to time.
Division 3 — Application of New South Wales State Records Act
Application of State Records Act
(1) The State Records Act applies as a law of a participating jurisdiction for the purposes of the National Quality Framework except to the extent that this Law applies to a Regulatory Authority and the records of a Regulatory Authority.
(2) The national regulations may modify the State Records Act for the purposes of this Law.
(a) provide that the State Records Act applies under subsection (1) as if a provision of the State Records Act specified in the national regulations were omitted; or
(b) provide that the State Records Act applies under subsection (1) as if an amendment to the State Records Act made by a law of New South Wales, and specified in the national regulations, had not taken effect; or
State Records Act means the State Records Act 1998 of New South Wales, as in force from time to time.
Division 4 — Registers
Register of approved providers
(1) The National Authority must keep a register of approved providers.
(2) The register must contain —
(a) the name of each approved provider; and
(b) any other prescribed information.
(3) The register of approved providers may be inspected at the office of the National Authority during normal office hours without charge.
(4) A person may obtain a copy of, or extract from, the register of approved providers on payment of the prescribed fee.
Register of education and care services
(1) The Regulatory Authority must keep a register of approved education and care services operating in the participating jurisdiction.
(2) The register of approved education and care services must contain the following information —
(a) the name of each service;
(b) the name of the approved provider of each service;
(c) except in the case of a family day care service, the address of each education and care service premises;
(d) in the case of an approved family day care service, the address of the principal office of the service;
(e) the rating levels for each service;
(f) any other prescribed information.
(3) The register of approved education and care services may be inspected at the office of the Regulatory Authority during normal office hours without charge.
(4) A person may obtain a copy of, or extract from, the register of approved education and care services on payment of the prescribed fee.
(5) The Regulatory Authority must provide a copy of the register of approved education and care services (as updated from time to time) to the National Authority and the relevant Commonwealth Department.
[268. Deleted: No. 18 of 2018 s. 79.]
Register of family day care educators, co‑ordinators and assistants
(1) The approved provider of a family day care service must keep a register at the principal office of the service that contains the prescribed information in respect of the following persons —
(a) each family day care educator engaged by or registered with the service;
(b) each family day care co‑ordinator employed or engaged by the service;
(c) each family day care educator assistant engaged by or registered with the service.
(2) The approved provider must take reasonable steps to ensure that the information contained in the register is accurate.
(3) The approved provider must provide any information on the register and any changes to the information on the register to the Regulatory Authority on request within 24 hours of the Regulatory Authority’s request.
[Section 269 inserted: No. 18 of 2018 s. 80.]
Division 5 — Publication of information
Publication of information
(1) The National Authority and the Regulatory Authority may publish the following information about approved providers, approved education and care services and nominated supervisors —
(a) the name of each provider, service or supervisor;
(b) except in the case of approved family day care services, the address of each education and care service premises;
(c) in the case of approved family day care services, the address of the principal office of each service;
(d) the rating levels of each approved education and care service;
(e) other prescribed information in respect of approved education and care services.
(2) The National Authority —
(a) must publish on its website the register of approved providers; and
(b) may publish on its website the register of approved education and care services as kept by a Regulatory Authority.
(3) The Regulatory Authority must publish on its website the register of approved education and care services kept by the Regulatory Authority.
(4) The relevant Commonwealth Department is authorised to publish the register of approved education and care services on a website kept by that department.
(5) The Regulatory Authority may publish the prescribed information about —
(a) enforcement actions taken under this Law, including information about compliance notices, prosecutions, enforceable undertakings, suspension or cancellation of approvals; and
(b) any prescribed matters.
(6) Information published under this section must not include information that could identify or lead to the identification of an individual other than —
(a) an approved provider or nominated supervisor; or
(b) a person who is being prosecuted for an offence against this Law; or
(c) if the Regulatory Authority is satisfied that it is in the public interest to do so, a person with management or control of an education and care service; or
(d) a person against whom disciplinary action has been taken.
Note: This section differs from section 270 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 270 amended: No. 18 of 2018 s. 81.]
Division 6 — Disclosure of information
Disclosure of information to other authorities
(1) The National Authority may disclose information in respect of an education and care service for a purpose listed in subsection (4), to —
(a) a relevant Commonwealth Government Department; or
(b) any State or Territory Government Department; or
(c) any Commonwealth, State or Territory public authority; or
(d) any State or Territory local authority; or
(e) a Regulatory Authority of a participating jurisdiction.
(2) The Regulatory Authority may disclose information in respect of an education and care service for a purpose listed in subsection (4), to —
(a) a relevant Commonwealth Government Department; or
(b) any State or Territory Government Department; or
(c) any Commonwealth, State or Territory public authority; or
(d) any State or Territory local authority; or
(e) a Regulatory Authority of another participating jurisdiction.
(3) The National Authority, the Regulatory Authority and any Government Department, public authority or local authority may disclose information to each other in respect of an education and care service for a purpose listed in subsection (4).
(4) The purposes for disclosure of information under this section are —
(a) the disclosure is reasonably necessary to promote the objectives of the national education and care services quality framework; or
(b) the disclosure is for the purposes of enabling or assisting the other entity to perform or exercise any of its functions or powers under this Law; or
(c) the disclosure is for the purposes of research or the development of National, State or Territory policy with respect to education and care services; or
(d) the disclosure is for a purpose relating to the funding of education and care services; or
(e) the disclosure is for a purpose relating to the payment of benefits or allowances to persons using education and care services, provided the disclosure of information is not otherwise prohibited by law.
(5) The Regulatory Authority must disclose to the Regulatory Authorities of other participating jurisdictions the suspension or cancellation of a working with children check, working with children card or teacher registration of a nominated supervisor of which it is notified under this Law.
(6) The Regulatory Authority may disclose to the head of the government department responsible for the administration of a working with children law, any prohibition notice given under this Law as applying in any participating jurisdiction in respect of the person.
(7) A disclosure of information under this section is subject to Division 1 and any protocol agreed for the purposes of this section by —
(a) the National Authority, all participating jurisdictions and the Commonwealth; and
(b) subject to any protocol referred to in paragraph (a), the National Authority and the Regulatory Authority, or the National Authority, the Regulatory Authority and any Regulatory Authority of another participating jurisdiction.
(8) Information disclosed under this section for the purpose of research or the development of National, State or Territory policy with respect to education and care services must not include information that could identify or lead to the identification of an individual other than —
(a) an approved provider or a nominated supervisor; or
(b) a family day care educator who has been suspended from providing education and care to children as part of a family day care service; or
(c) a person to whom a prohibition notice applies; or
(d) a person who is being prosecuted for an offence against this Law.
[Section 271 inserted: No. 18 of 2018 s. 82.]
Disclosure of information to education and care services
(1) At the request of an approved provider, the National Authority or the Regulatory Authority may disclose the following information to the provider, if the National Authority or Regulatory Authority considers on reasonable grounds that the provider requires the information to comply with the provider’s obligations under this Law —
(a) whether a person named in the request is subject to a prohibition notice given under section 182;
(b) whether a family day care educator named in the request has been suspended from providing education and care to children as part of a family day care service under section 178.
(2) A disclosure of information under this section is subject to Division 1 and any protocol agreed for the purposes of this section by —
(a) the National Authority, all participating jurisdictions and the Commonwealth; and
(b) subject to any protocol referred to in paragraph (a), the National Authority and the Regulatory Authority, or the National Authority, the Regulatory Authority and any Regulatory Authority of another participating jurisdiction.
[Section 272 inserted: No. 18 of 2018 s. 82.]
Duty of confidentiality
(1) An individual who is, or who has been, a person exercising functions under this Law must not disclose to another person protected information.
Penalty: $5 000.
(2) However, subsection (1) does not apply if —
(a) the information is disclosed in the exercise of a function under, or for the purposes of, or in accordance with, this Law; or
(b) the disclosure is authorised or required by any law of a participating jurisdiction, or is otherwise required or permitted by law; or
(c) the disclosure is with the agreement of the person to whom the information relates; or
(d) the information relates to proceedings before a court or tribunal and the proceedings are or were open to the public; or
(e) the information is, or has been accessible to the public, including because it was published for the purposes of, or in accordance with, this Law; or
(f) the disclosure is otherwise authorised by the Ministerial Council.
(3) In this section —
protected information means information —
(a) that is personal to a particular individual and that identifies or could lead to the identification of the individual; and
(b) that comes to a person’s knowledge in the course of, or because of, the person exercising functions under this Law.
Part 14 — Miscellaneous
Division 1 — Finance
Australian Children’s Education and Care Quality Authority Fund
(1) The Australian Children’s Education and Care Quality Authority Fund is established.
(2) The Authority Fund is a fund to be administered by the National Authority.
(3) The National Authority may establish accounts with any financial institution for money in the Authority Fund.
(4) The Authority Fund does not form part of the consolidated fund or consolidated account of a participating jurisdiction or the Commonwealth.
Payments into Authority Fund
There is payable into the Authority Fund —
(a) all money provided by a participating jurisdiction or the Commonwealth for the purposes of the Fund; and
(b) the proceeds of the investment of money in the Fund; and
(c) all grants, gifts and donations made to the National Authority, but subject to any trusts declared in relation to the grants, gifts or donations; and
(d) all money directed or authorised to be paid into the Fund by or under this Law, any law of a participating jurisdiction or any law of the Commonwealth; and
(e) any other money and property prescribed by the national regulations; and
(f) any other money or property received by the National Authority in connection with the exercise of its functions.
Payments out of Authority Fund
Payments may be made from the Authority Fund for the purpose of —
(a) paying any costs or expenses, or discharging any liabilities, incurred by the National Authority in the administration or enforcement of this Law or in the performance of its functions or duties or the exercise of its powers; and
(b) paying any remuneration or allowances payable under this Law by the National Authority; and
(c) allocating, transferring or reimbursing money to a participating jurisdiction in accordance with the national regulations; and
(d) any other payments recommended by the National Authority and approved by the Ministerial Council.
Investment of money in Authority Fund
The National Authority may invest money in the Authority Fund in accordance with the national regulations.
Financial management duties of National Authority
The National Authority must —
(a) ensure that its operations are carried out efficiently, effectively and economically; and
(b) keep proper books and records in relation to the Authority Fund; and
(c) ensure that expenditure is made from the Authority Fund for lawful purposes only and, as far as possible, reasonable value is obtained for money expended from the Fund; and
(d) ensure that its procedures, including internal control procedures, afford adequate safeguards with respect to —
(i) the correctness, regularity and propriety of payments made from the Authority Fund; and
(ii) receiving and accounting for payments made to the Authority Fund; and
(iii) prevention of fraud or mistake; and
(e) take any action necessary to ensure the preparation of accurate financial statements in accordance with Australian Accounting Standards for inclusion in its annual report; and
(f) take any action necessary to facilitate the audit of those financial statements in accordance with this Law; and
(g) arrange for any further audit by a qualified person of the books and records kept by the National Authority in relation to the Authority Fund, if directed to do so by the Ministerial Council.
Division 2 — Reporting
Annual report
(1) The Board must, within 4 months after the end of each financial year, submit an annual report of the National Authority for the financial year to the Ministerial Council.
(2) The annual report must include —
(a) an audited financial statement for the period to which the report relates; and
(b) a report about the National Authority’s performance of its functions under this Law during the period to which the annual report relates; and
(c) an assessment of the implementation and administration of the National Quality Framework; and
(d) all directions given to the National Authority by the Ministerial Council and the Authority’s response; and
(e) all directions given to the Regulatory Authorities by the Ministerial Council and the Regulatory Authorities’ responses; and
(f) a report on any committees established by the Board; and
(g) any other matter determined by the Ministerial Council.
(3) The financial statement is to be prepared in accordance with Australian Accounting Standards.
(4) The financial statement is to be audited by a public sector auditor and a report is to be provided by the auditor.
(5) The Ministerial Council may extend, or further extend, the period for submission of an annual report to the Council by a total period of up to 3 months.
(6) In this section —
public sector auditor means —
(a) the Auditor‑General (however described) of a participating jurisdiction or the Commonwealth; or
(b) an auditor employed, appointed or otherwise engaged by an Auditor‑General of a participating jurisdiction or the Commonwealth.
Tabling and publication of annual report
(1) The Ministerial Council must make arrangements for the tabling of the annual report of the National Authority, and the report of the public sector auditor with respect to the financial statement in the report, in the Parliament of a participating jurisdiction determined by the Ministerial Council.
(2) As soon as practicable after the annual report has been tabled in the Parliament determined under subsection (1), the National Authority must publish a copy of the report on its website.
Other reporting
(1) The National Authority may make any reports to the Ministerial Council that it considers necessary in the performance of its functions.
(2) The Chairperson of the Board must provide to the Ministerial Council any other reports and documents and information relating to the operations of the National Authority that the Ministerial Council requires.
(3) The Chairperson of the Board may provide to the responsible Minister of a participating jurisdiction and the Commonwealth Minister any reports and documents and information relating to the operations of the National Authority that the responsible Minister requires.
(4) The reports, documents and information referred to in subsection (2) must be provided within the time set by the Ministerial Council.
Division 3 — Application of Commonwealth Ombudsman Act
Application of Commonwealth Ombudsman Act
(1) The Ombudsman Act applies as a law of a participating jurisdiction for the purposes of this Law except to the extent that this Law applies to a Regulatory Authority and the employees, decisions, actions and records of a Regulatory Authority.
(2) For the purposes of subsection (1), the Ombudsman Act applies —
(a) as if a reference to the Commonwealth Ombudsman were a reference to the Education and Care Services Ombudsman; and
(b) with any other modifications made by the national regulations.
(a) provide that the Ombudsman Act applies under subsection (1) as if a provision of the Ombudsman Act specified in the regulations were omitted; or
(b) provide that the Ombudsman Act applies under subsection (1) as if an amendment to the Ombudsman Act made by a law of the Commonwealth, and specified in the regulations, had not taken effect; or
Ombudsman Act means the Ombudsman Act 1976 of the Commonwealth, as in force from time to time.
Division 4 — Legal proceedings
Who may bring proceedings for an offence?
(1) The following persons may bring proceedings for an offence under this Law —
(a) the Regulatory Authority;
(b) a person authorised by the Regulatory Authority;
(c) a police officer.
(2) In a proceeding for an offence against this Law or the regulations it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceeding was authorised to bring it.
When proceedings may be brought
Subject to section 181(6), proceedings for an offence under this Law must be commenced within 2 years of the date of the alleged offence.
[Section 284 amended: No. 18 of 2018 s. 83.]
Offences by bodies corporate
(1) If a body corporate commits an offence against this Law, any person with management or control of the body corporate who failed to exercise due diligence to prevent the contravention that is the subject of the offence also commits that offence and is liable to the penalty for that offence.
(2) The penalty for an offence referred to in this section is the penalty applicable to an individual.
Application of Law to partnerships and eligible associations and other entities
(1) If this Law would otherwise require or permit something to be done by a partnership, the thing may be done by one or more of the partners on behalf of the partnership.
(2) If this Law would otherwise require or permit something to be done by an eligible association, the thing may be done by one or more of the members of the executive committee on behalf of the association.
(3) If this Law would otherwise require or permit something to be done by a prescribed entity, the thing may be done by one or more of the persons with management or control of the entity on behalf of the entity.
(4) An offence against this Law that would otherwise be committed by the partnership is taken to have been committed by each partner who is a person with management or control of the partnership.
(5) An offence against this Law that would otherwise be committed by an eligible association is taken to have been committed by each person who is a person with management or control of the association.
(6) An offence against this Law that would otherwise be committed by a prescribed entity is taken to have been committed by each person who is a person with management or control of that entity.
(7) The penalty for an offence that is taken to be committed under this section is the penalty applicable to an individual.
Multiple holders of an approval
If more than one person holds a provider approval or service approval under this Law each holder of the approval is jointly and severally responsible for compliance with this Law.
Double jeopardy
If a person has been convicted or found guilty in another participating jurisdiction for an offence against this Law as it applies in that jurisdiction, proceedings cannot be brought in this jurisdiction against the same person in respect of an offence concerning the same subject‑matter.
Immunity
(1) A member of the Board of the National Authority, a committee of the Board or a Ratings Review Panel is not personally liable for anything done or omitted to be done in good faith —
(a) in the exercise of a power or the performance of a function under this Law; or
(b) in the reasonable belief that the action or omission was in the exercise of the power or the performance of the function under this Law.
(2) Any liability resulting from an act or omission that would, but for subsection (1), attach to an individual referred to in that subsection attaches instead to the National Authority.
(3) The Regulatory Authority (if an individual) or a member of the governing body of the Regulatory Authority is not personally liable for anything done or omitted to be done in good faith —
(a) in the exercise of a power or the performance of a function under this Law; or
(b) in the reasonable belief that the action or omission was in the exercise of the power or the performance of the function under this Law.
(4) Any liability resulting from an act or omission that would, but for subsection (3), attach to an individual referred to in that subsection attaches instead to the State.
Immunity — education law
(1) This section applies if the Regulatory Authority becomes aware of misconduct by a registered teacher or other person who could be subject to disciplinary action under an education law of a participating jurisdiction.
(2) The Regulatory Authority may refer the matter to the relevant disciplinary body under the education law.
(3) If the Regulatory Authority refers a matter under subsection (2), a prosecution cannot be brought under this Law for an offence in relation to that matter.
Infringement offences
(1) An authorised officer or other person authorised by the Regulatory Authority may serve an infringement notice on a person for a contravention of —
(a) section 172, 173, 176 or 269; or
(b) offences against the national regulations that are prescribed for the purposes of this section.
(2) The infringement penalty for an offence for which an infringement notice may be served on a person is the amount which is 10 per cent of the maximum penalty that could be imposed on the person in respect of that offence.
(3) An infringement notice must be in the form prescribed or contain the information prescribed by the infringements law of this jurisdiction.
(4) Subject to this section, the infringements law of this jurisdiction applies to infringement notices served under this section in this jurisdiction and for that purpose —
(a) this law is taken to be a prescribed Act under Part 2 of the infringements law; and
(b) an offence against a provision referred to in subsection (1)(a) or prescribed under subsection (1)(b) is taken to be an offence prescribed under section 5(1) of the infringements law; and
(c) the infringement penalty referred to in subsection (2) for an offence is taken to be the modified penalty prescribed under the infringements law for that offence; and
(d) the matters to be prescribed under section 6 of the infringements law are to be prescribed in the national regulations.
(5) The payment of an infringement penalty expiates the offence and is not to be considered in —
(a) assessing whether a person is a fit and proper person to be involved in the provision of, or to be a supervisor of, an education and care service; or
(b) assessing an approved education and care service under Part 5.
Note: This section differs from section 291 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 291 amended: No. 18 of 2018 s. 84.]
Evidentiary certificates
A certificate purporting to be signed by the chief executive officer of the National Authority or by a Regulatory Authority and stating any of the following matters is prima facie evidence of the matter —
(a) a stated document is one of the following things made, given, issued or kept under this Law —
(i) an appointment, approval or decision;
(ii) a notice, direction or requirement;
[(iii) deleted]
(iv) a register, or an extract from a register;
(v) a record, or an extract from a record;
(b) a stated document is another document kept under this Law;
(c) a stated document is a copy of a document mentioned in paragraph (a) or (b);
(d) on a stated day, or during a stated period, a stated person was or was not an approved provider;
(e) on a stated day, or during a stated period, an education and care service was or was not an approved education and care service;
(f) on a stated day, or during a stated period, an approval was or was not subject to a stated condition;
(g) on a stated day, an approval was suspended or cancelled;
(h) on a stated day, or during a stated period, an appointment as authorised officer was, or was not, in force for a stated person;
(i) on a stated day, a stated person was given a stated notice or direction under this Law;
(j) on a stated day, a stated requirement was made of a stated person.
[Section 292 amended: No. 18 of 2018 s. 85.]
Division 5 — Service of notices
Service of notices
(1) If this Law requires or permits a notice to be served on a person, the notice may be served —
(a) on an individual by —
(i) delivering it to the individual personally; or
(ii) leaving it at, or by sending it by post to, the address notified to the sender by the individual as an address at which service of notices under this Law will be accepted or otherwise the address of the place of residence or business of the individual last known to the person serving the document; or
(iii) sending it by facsimile transmission to a facsimile number notified to the sender by the individual as an address at which service of notices under this Law will be accepted; or
(iv) sending it by email to an internet address notified to the sender by the individual as an address at which service of notices under this Law will be accepted; or
(b) on a person other than an individual by —
(i) leaving it at, or by sending it by post to, the address notified to the sender by the person as an address at which service of notices under this Law will be accepted or otherwise the address of the head office, a registered office or the principal place of business of the person; or
(ii) sending it by facsimile transmission to a facsimile number notified to the sender by the person as an address at which service of notices under this Law will be accepted; or
(iii) sending it by email to an internet address notified to the sender by the person as an address at which service of notices under this Law will be accepted.
(2) Subsection (1) applies whether the word “deliver”, “give”, “notify”, “send” or “serve” or another expression is used.
(3) Subsection (1) does not affect the power of a court or tribunal to authorise service of a notice otherwise than as provided in that subsection.
Service by post
If a notice authorised or required to be served (whether the word “deliver”, “give”, “notify”, “send” or “serve” or another expression is used) on a person is served by post, service of the notice —
(a) may be effected by properly addressing, prepaying and posting a letter containing the document; and
(b) in Australia or in an external Territory — is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth day after the letter was posted; and
(c) in another place — is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of the post.
Division 6 — False or misleading information
False or misleading information or documents
(1) A person must not give the Regulatory Authority or an authorised officer under this Law any information or document that the person knows is false or misleading in a material particular.
(2) Subsection (1) does not apply in respect of the giving of a document, if the person when giving the document —
(a) informs the Regulatory Authority or authorised officer, to the best of the person’s ability, how it is false or misleading; and
(b) gives the correct information to the Regulatory Authority or authorised officer if the person has, or can reasonably obtain, the correct information.
Division 7 — Protection from reprisal
Definitions
protected disclosure means a disclosure of information or provision of documents to the Regulatory Authority —
(a) pursuant to a request under this Law; or
(b) where the person making the disclosure has a reasonable belief that —
(i) an offence against this Law has been or is being committed; or
(ii) the safety, health or wellbeing of a child or children being educated and cared for by an education and care service is at risk;
serious detrimental action includes dismissal, involuntary transfer, loss of promotion and demotion.
Protection from reprisal
(1) A person must not take serious detrimental action against a person in reprisal for a protected disclosure.
(2) A person takes serious detrimental action in reprisal for a protected disclosure if —
(a) the person takes or threatens to take the action because —
(i) a person has made, or intends to make, a protected disclosure; or
(ii) the person believes that a person has made or intends to make the protected disclosure; or
(b) the person incites or permits another person to take or threaten to take the action for either of those reasons.
(3) In determining whether a person takes serious detrimental action in reprisal, it is irrelevant whether or not a reason referred to in subsection (2) is the only or dominant reason as long as it is a substantial reason.
Proceedings for damages for reprisal
(1) A person who takes serious detrimental action against a person in reprisal for a protected disclosure is liable in damages to that person.
(2) The damages may be recovered in proceedings as for a tort in any court of competent jurisdiction.
(3) Any remedy that may be granted by a court with respect to a tort, including exemplary damages, may be granted by a court in proceedings under this section.
(4) The right of a person to bring proceedings for damages does not affect any other right or remedy available to the person arising from the serious detrimental action.
Application for injunction or order
A person who believes that serious detrimental action has been taken or may be taken against him or her in reprisal for a protected disclosure may apply to the superior court for —
(a) an order requiring the person who has taken the serious detrimental action to remedy that action; or
(b) an injunction.
Injunction or order
(1) If, on receipt of an application under section 299, the superior court is satisfied that a person has taken or intends to take serious detrimental action against a person in reprisal for a protected disclosure, the court may —
(a) order the person who took the serious detrimental action to remedy that action; or
(b) grant an injunction in any terms the court considers appropriate.
(2) The superior court, pending the final determination of an application under section 299, may —
(a) make an interim order in the terms of subsection (1)(a); or
(b) grant an interim injunction.
Division 8 — National regulations
National regulations
(1) The Governor may make regulations for the purposes of this Law.
(2) The national regulations may provide for any matter that is required or permitted to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Law.
(3) Without limiting subsection (1), the national regulations may provide for the following —
(a) fees (including application fees and annual fees) for approvals and other things done under this Law;
(b) the indexation of fees;
(c) standards for education and care services;
(d) requirements for educational programs, including the quality of those programs and their development, documentation and delivery;
(e) requirements and standards to be complied with for the safety, health and wellbeing of children being educated and cared for by an education and care service;
(f) requirements and standards to be complied with for safety, security, cleanliness, comfort, hygiene and repair of premises, outdoor spaces, fencing, gates, resources and equipment used for providing education and care services;
(g) requirements and standards about the premises to be used to provide an education and care service including siting, design, layout, space, security and entitlement to occupy;
(h) requirements and standards for the staffing of education and care services including the recruitment (and conduct of criminal history or other security checks) and the appointment of staff, performance improvement, professional standards, professional development, numbers and qualifications of educators (including minimum age and requirements concerning groups of children of different ages and composition) and staffing rosters and arrangements;
(i) requirements and standards about educators’ relationships with children, interactions and behaviour guidance and inclusion policies and practice for education and care services;
(j) requirements and standards for partnerships between education and care services and the community in which they are located and the families of children being educated and cared for by education and care services, including requirements for services to link to other support services for children and families;
(k) requirements and standards as to the leadership and management of education and care services including governance and fitness and propriety of all staff members and volunteers, management of grievances and complaints and the provision of information to families;
(l) the records, policies and procedures to be kept by approved providers and family day care educators including enrolment and attendance information;
(m) requirements and standards about first aid and management of children’s medical conditions including —
(i) the training of educators and staff members; and
(ii) plans, policies and procedures used to manage medical conditions and first aid; and
(iii) the keeping and storage of first aid kits and medications;
(n) information required to be submitted for applications made under this Law;
(o) requirements and standards for the provision and display of information by approved providers;
(p) the publication of information about enforcement actions taken under this Law, including notice and review of proposals to publish information;
(q) matters relating to the application of this Law to partnerships, eligible associations or prescribed entities;
(r) requirements relating to the receipt and payment and distribution of fees and monetary penalties payable under this Law.
(4) The national regulations —
(a) may be of a general or limited application; and
(b) may differ according to differences in time, place (including jurisdiction) or circumstances; and
(c) may differ according to the type or class of education and care service and the ages of children being educated and cared for by a service; and
(d) may exempt any education and care service or any type or class of education and care service from complying with all or any of the regulations; and
(e) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a Regulatory Authority; and
(f) may apply, adopt or incorporate by reference any document either —
(i) as in force at the date the national regulations come into operation or at any date before then; or
(ii) wholly or in part or as amended by the national regulations; and
(g) may impose penalties not exceeding $2000 for offences against the national regulations.
Note: This section differs from section 301 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 301 amended: No. 18 of 2018 s. 86.]
Publication of national regulations
Note: Section 302 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria) does not apply as a law of WA.
Parliamentary scrutiny of national regulations
Note: Section 303 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria) does not apply as a law of WA.
Effect of disallowance of national regulation
Note: Section 304 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria) does not apply as a law of WA.
Part 15 — Transitional provisions
Division 1 — Introductory
Definitions
In this Part —
declared approved family day care service, in relation to a participating jurisdiction, means an education and care service that is declared by a law of that jurisdiction to be a declared approved family day care service for the purposes of this Law;
declared approved family day care venue, in relation to a participating jurisdiction, means a place other than a residence that is declared by a law of that jurisdiction to be a declared approved family day care venue for the purposes of this Law;
declared approved provider, in relation to a participating jurisdiction, means a person or a person in a class of persons declared by a law of that jurisdiction to be a declared approved provider for the purposes of this Law;
declared approved service, in relation to a participating jurisdiction, means an education and care service that is declared by a law of that jurisdiction to be a declared approved service for the purposes of this Law;
declared compliance notice, in relation to a participating jurisdiction, means an order or notice under a former education and care services law that is declared by a law of that jurisdiction to be a declared compliance notice for the purposes of this Law;
declared enforceable undertaking, in relation to a participating jurisdiction, means an undertaking entered into under a former education and care services law that is declared by a law of that jurisdiction to be a declared enforceable undertaking under this Law;
declared nominated supervisor, in relation to a participating jurisdiction, means a person or a person in a class of persons declared by a law of that jurisdiction to be a declared nominated supervisor for the purposes of this Law;
declared out of scope service, in relation to a participating jurisdiction, means an education and care service —
(a) for which a former approval was not required under a former education and care services law; and
(b) that is declared by a law of that jurisdiction to be a declared out of scope service for the purposes of this Law;
former approval, in relation to a participating jurisdiction, means an approval, licence or other authorisation under a former education and care services law that is declared by a law of that jurisdiction to be a former approval for the purposes of this Law;
scheme commencement day means the day on which Parts 2, 3 and 4 of this Law commence.
Note: This section differs from section 305 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
[Section 305 amended: No. 18 of 2018 s. 87.]
Division 2 — Education and care services
Approved provider
(1) Any person who immediately before the scheme commencement day was a declared approved provider is taken to be an approved provider under this Law.
(2) Subsection (1) does not apply if the declared approved provider is a prescribed ineligible person.
(3) Subsection (1) does not apply to a declared approved provider whose former approval was suspended under the former education and care services law immediately before the scheme commencement day because the provider was not a fit and proper person (however described) to operate the declared approved service.
(4) If a declared approved provider is a trust, the trustee or trustees of the trust are taken to be an approved provider under this Law.
(5) The trust must, within 30 days after the scheme commencement day, notify the Regulatory Authority of the identity of the trustees of the trust.
(6) If a notice is not given under subsection (5) within the required period, each trustee of the trust ceases to be an approved provider under this Law at the end of that period.
(7) If a person is taken under this section to be an approved provider, the person is taken to be the holder of a provider approval for the purposes of this Law.
(8) If a person is taken under this section to hold a provider approval, any conditions of the former approval relating to that person are taken to be conditions of the provider approval unless they are inconsistent with this Law.
(9) The Regulatory Authority must, on or before 30 June 2012*, provide each person who is taken under this section to be the holder of a provider approval with a copy of the provider approval setting out the relevant matters in section 20.
[*Modified by regulations 1 to apply for WA as if amended to read 31 January 2013.]
Service approvals
(1) Any person who immediately before the scheme commencement day held a former approval in respect of a declared approved service (other than a declared approved family day care service) is taken to hold a service approval in respect of that service under this Law.
(2) Any person who immediately before the scheme commencement day held a former approval with respect to a declared approved family day care service is taken to hold a service approval for that family day care service under this Law.
(3) Subsections (1) and (2) do not apply if the person is a prescribed ineligible person.
(4) If subsection (1) or (2) applies, the declared approved service is taken from the scheme commencement day to be an approved education and care service.
(5) This section does not apply to a former approval that was under suspension under the former education and care services law immediately before the scheme commencement day because the person who held that approval was not a fit and proper person (however described) to operate the declared approved service.
(6) If a former approval was under suspension under the former education and care services law immediately before the scheme commencement day for a reason other than the reason in subsection (5), the service approval for the education and care service under this Law is taken to be suspended under this Law for the period of the suspension.
(7) The Regulatory Authority must determine before the expiry of the period of suspension referred to in subsection (6) (other than for a voluntary suspension) whether —
(a) the suspension should be cancelled or a further period of suspension should be imposed; or
(b) the service approval should be cancelled.
(8) Any conditions imposed on the former approval under the former education and care services law are taken to be conditions on the service approval unless the conditions are inconsistent with this Law.
(9) The Regulatory Authority must, on or before 30 June 2012*, provide each person who is taken under this section to hold a former approval in respect of a declared approved service with a copy of the service approval for the service setting out the relevant matters in section 52.
[*Modified by regulations 1 to apply for WA as if amended to read 31 January 2013.]
Approved family day care venues
A declared approved family day care venue existing under a former education and care services law immediately before the scheme commencement day is taken on and after the scheme commencement day to be an approved family day care venue under this Law.
Approval of declared out of scope services
A person who operated a declared out of scope service immediately before the scheme commencement day is taken under this Law to hold a provider approval and a service approval for the declared out of scope service for the period from and including 1 January 2012* —
(a) to 30 June 2012†, unless paragraph (b) applies; or
(b) if the person applies under this Law to the Regulatory Authority for a provider approval and for a service approval and the applications are received by the Regulatory Authority on or before 30 June 2012†, to the date on which those applications are finally determined under this Law.
[*Modified by regulations 1 to apply for WA as if amended to read 1 August 2012.]
[†Modified by regulations 1 to apply for WA as if amended to read 31 January 2013.]
Application for service waiver or temporary waiver
(1) This section applies to an education and care service that was exempt under a former education and care services law from a requirement of that law.
(2) The education and care service is taken to comply with an equivalent requirement under this Law for the period from and including 1 January 2012* —
(a) to 31 March 2012†, unless paragraph (b) applies; or
(b) if the provider of the education and care service applies to the Regulatory Authority under this Law for a temporary waiver or service waiver under this Law in respect of that requirement and the application is received by the Regulatory Authority on or before 31 March 2012†, to the date on which the application is finally determined under this Law.
[*Modified by regulations 1 to apply for WA as if amended to read 1 August 2012.]
[†Modified by regulations 1 to apply for WA as if amended to read 1 November 2012.]
Existing applicants
(1) This section applies if a person has made an application for a former approval under a former education and care services law in respect of an education and care service before the scheme commencement day.
(2) The applicant is taken to be an applicant for a provider approval and a service approval under this Law.
(3) The Regulatory Authority may —
(a) ask the applicant for more information; and
(b) inspect —
(i) the premises of the service and the offices of the applicant; and
(ii) any documents relating to the applicant; and
(c) exercise any power under section 14 or section 46 in relation to the application.
(4) This section does not apply if the applicant is a prescribed ineligible person.
Existing multiple approvals to merge
(1) If the holder of a former approval held more than one former approval in respect of the same premises, the former approvals are taken to be one service approval in respect of those premises for the purposes of this Law.
(2) This section does not apply to a former approval for a family day care service.
(3) This section does not apply to a former approval to which section 311 applies.
Display of accreditation and rating
(1) This section applies to a declared approved service that is taken under this Part to be an approved education and care service.
(2) The approved provider must display the provisional rating of that approved education and care service in accordance with section 172 until a first rating assessment is completed and a rating level given to the service after that assessment is published under Part 5.
(3) If the education and care service was accredited by the National Child Care Accreditation Council before the scheme commencement day, the approved provider of the education and care service must continue to display that accreditation at the service together with the provisional rating until a first rating assessment is completed and a rating (other than a provisional rating) given to the service after that assessment is published under Part 5.
Effect of non‑compliance in 3 years before scheme commencement day
(1) In determining whether to suspend or cancel under Part 2 a provider approval referred to in section 306, the Regulatory Authority —
(a) may take into account any non‑compliance by the approved provider with a former education and care services law that occurred in the period of 3 years immediately preceding the scheme commencement day; but
(b) must not suspend or cancel the provider approval solely on the basis of that non‑compliance.
(2) In determining whether to suspend or cancel under Part 3 a service approval referred to in section 307(1), the Regulatory Authority —
(a) may take into account any non‑compliance by the approved provider with a former education and care services law that occurred in the period of 3 years immediately preceding the scheme commencement day; but
(b) must not suspend or cancel the service approval solely on the basis of that non‑compliance.
Certified supervisors
Note: Section 315 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria) does not apply as a law of WA.
[Section 315 inserted: No. 18 of 2018 s. 88]
Nominated supervisors
(1) A person who immediately before the scheme commencement day was a declared nominated supervisor —
(a) for a declared approved service that is taken under section 307 to be an approved education and care service; or
(b) for a declared out of scope service, the operator of which is taken under section 309 to hold a service approval for the service,
is taken to be the nominated supervisor for that approved education and care service.
(2) Subsection (1) ceases to apply if —
(a) the approved provider does not confirm the nomination within a time specified by the Regulatory Authority after being requested in writing to do so by the Regulatory Authority; or
(b) the person advises the Regulatory Authority in writing that the person does not consent to being the nominated supervisor of the education and care service.
Note: This section differs from section 316 of the national law as set out in the Schedule to the Education and Care Services National Law Act 2010 (Victoria).
Notices and undertakings
(1) A declared compliance notice in force under a former education and care services law immediately before the scheme commencement day is taken on and after the scheme commencement day to be a compliance notice under this Law.
(2) A declared enforceable undertaking in force under a former education and care services law immediately before the scheme commencement day is taken on and after the scheme commencement day to be an enforceable undertaking under this Law.
Offences
The Regulatory Authority may bring or continue a prosecution for any offence under a former education and care services law in relation to a service that is taken to be an education and care service.
Division 3 — National Authority
First meeting of National Authority
Despite section 239, the Ministerial Council is to convene the first meeting of the Board of the National Authority.
First chief executive officer of National Authority
(1) Despite section 248, the first chief executive officer of the National Authority is to be appointed by the Chairperson of the Ministerial Council on the basis of a consensus recommendation of the Ministerial Council.
(2) The appointment is to be on the remuneration and other terms and conditions set out in the appointment.
(3) Any amount payable to the first chief executive officer under the appointment is payable from the Authority Fund.
First annual report of National Authority
Despite section 279, the first annual report of the National Authority —
(a) is to be made within 4 months after the end of the financial year ending 30 June 2012; and
(b) is to cover the period from the first meeting of the National Authority until 30 June 2012.
Division 4 — General
Information retention and sharing
(1) The Regulatory Authority must, in accordance with the national regulations, keep all prescribed information held by the Regulatory Authority (or any regulatory body under the former education and care services law) in relation to —
(a) the licensing or approval of education and care services under the former education and care services law; and
(b) the monitoring and enforcement of the former education and care services law in relation to education and care services.
(2) Information referred to in subsection (1) may be —
(a) used for information purposes under this Law; and
(b) held by the Regulatory Authority in any form; and
(c) made available to the Regulatory Authorities of other participating jurisdictions and the National Authority.
(3) A provider of an education and care service existing immediately before the scheme commencement day must, in accordance with the national regulations —
(a) continue to keep all documents required under the former education and care services law to be kept in respect of the service; and
(b) make those documents available to the Regulatory Authority on request.
Approved learning framework
A declared approved learning framework is taken to be an approved learning framework under this Law.
Savings and transitional regulations
(1) The national regulations may contain provisions (savings and transitional provisions) of a savings or transitional nature —
(a) consequential on the enactment of this Law in a participating jurisdiction; or
(b) to otherwise allow or facilitate the change from the operation of a former education and care services law of a participating jurisdiction to the operation of this Law.
(2) Savings and transitional regulations may have retrospective operation to a day not earlier than the day on which section 1 of this Law commences.
Division 5 — Transitional provisions — Education and Care Services National Law (WA) Amendment Act 2018