Education and Care Services National Regulations

The primary duty-bearers are approved providers—individuals, companies, or incorporated associations granted provider approval under section 14 of the Law. An approved provider may operate multiple services and bears overarching responsibility for compliance (see, e.g., regulations 77(1), 168(1), 177(1)). In practice, most approved providers are not-for-profit community organisations, local councils, or large commercial chains.

Nominated supervisors (sections 44(1)(da) and 56 of the Law) are the on-the-ground managers. They must hold, or be actively working towards, the same qualifications as educators and must ensure day-to-day compliance (regulation 170(2)). The Regulations now require approved providers to assess a prospective nominated supervisor’s compliance history before nomination (regulation 117C).

Educators and family day care educators are the front-line workers. They must hold approved certificate III or diploma qualifications (regulations 126, 127), maintain first-aid and anaphylaxis training (regulation 136), and implement the educational program (regulation 73). Family day care educators operate from their own homes or approved venues and are subject to monthly water-hazard inspections (regulation 116A).

Family day care educator assistants may assist with transport or emergency care but must be at least 18, hold a working with children check, and never be left alone with children except in narrowly defined circumstances (regulation 144).

Staff members and volunteers who are not educators are still captured by health and safety, child protection, and policy obligations (regulations 77, 84, 168). Anyone over 18 residing at a family day care residence must hold a working with children check or criminal history record check (regulation 163).

Parents are both beneficiaries and participants. They must be given access to the QIP (regulation 31), information about the educational program (regulation 76), and the medical conditions policy (regulation 91). They must also provide authorisations for medication, excursions, and transport (regulations 92, 102, 102D).

Regulatory Authorities (state and territory departments) and the National Authority (ACECQA) administer the system. They assess applications, conduct rating visits, issue compliance directions, and maintain the public registers (regulations 63, 173, 229–230).

Finally, building practitioners, medical practitioners, and course providers are indirectly affected through requirements for soil assessments (regulation 25(1)(d)), medical management plans (regulation 90), and approval of qualifications (regulation 137).

The reach is therefore wide: from a sole-trader family day care educator in rural Western Australia to a multi-state not-for-profit operating 200 centres.

Approved providers hold the heaviest duties. They must:

• Hold public liability insurance of at least $10 million (regulation 29) and, for family day care, ensure each educator does likewise (regulation 30).
• Prepare and implement 18 categories of policies and procedures, including sleep and rest (regulation 84B), safe arrival of children (regulation 102AAB), and transport risk assessments (regulation 102C).
• Maintain educator-to-child ratios at all times (regulation 123) and ensure at least 50 % of educators hold or are working towards a diploma-level qualification (regulation 126(1)(a)).
• Conduct annual sleep and rest risk assessments (regulation 84C(1)) and transport risk assessments (regulation 102B(1)).
• Keep detailed records: enrolment (regulation 160), attendance (regulation 158), incidents (regulation 87), medication (regulation 92), and QIPs (regulation 31).
• Notify the Regulatory Authority of serious incidents within 24 hours (section 174(2)(a) of the Law, implemented via regulation 12) and of any change likely to affect safety (regulation 175(2)(c)).

Nominated supervisors and persons in day-to-day charge must:

• Implement policies (regulation 170(2)).
• Ensure no child leaves the premises except in accordance with regulation 99(4).
• Be at least 18, have adequate knowledge of education and care, and have no adverse compliance history (regulations 117B–117C).

Educators must:

• Hold (or be actively working towards) an approved certificate III or diploma (regulations 126–127).
• Implement the educational program (regulation 73) and document assessments (regulation 74).
• Follow health, hygiene, and safe food practices (regulation 77(3)).
• Not be affected by alcohol or drugs (regulation 83(3)).

Parents have rights to:

• Enter the premises at any time their child is present (regulation 157(1)), subject to safety exceptions.
• Be notified within 24 hours of any incident, injury, trauma, or illness (regulation 86).
• Receive information about the educational program (regulation 76) and a copy of the QIP on request (regulation 31(c)).
• Be consulted on sleep and rest policies (regulation 84B(d)) and safe arrival policies (regulation 102AAB(2)(b)).

Children are the ultimate rights-holders. The NQS and Regulations repeatedly require that their agency, dignity, and best interests be paramount (elements 1.2.2, 5.1.1, 5.2.2 of the NQS; regulations 84A, 99(4), 155).

The Regulations create a tiered enforcement pyramid. At the base are compliance directions under section 176 of the Law for breaches of the 40+ provisions listed in Schedule 3 (e.g. failure to keep a QIP available, regulation 31). Directions are non-punitive but must be complied with within the stated time.

Mid-tier are infringement notices. Regulation 190 prescribes 12 offences for which penalty notices may issue, carrying penalties of $1,100 or $2,200.

At the apex are criminal offences. Most operational breaches carry a maximum penalty of $2,200 (e.g. regulation 77(1)–(3), 82(1), 97(2)–(4)). Failure to notify a serious incident under section 174(2)(a) of the Law is a strict-liability offence with a $10,000 penalty for an individual. The most serious contravention—operating without approval—carries up to $20,000 for an individual or $100,000 for a body corporate (section 103 of the Law).

The Regulatory Authority may also suspend or cancel approvals (sections 70, 77 of the Law) or issue prohibition notices (section 182). In Western Australia, monetary orders made under the former Child Care Services Act 2007 are preserved (regulation 384 of the Western Australian version).

Civil consequences flow from breach of conditions. A service approval is granted subject to conditions including public liability insurance (regulation 29), a current QIP (regulation 31), and entitlement to occupy premises (regulation 32). Breach can lead to cancellation.

Recent enforcement data (grounded in Regulatory Authority annual reports incorporated by reference in the NQS assessment process) shows increasing focus on sleep and rest, transportation, and unauthorised persons at family day care venues. In 2022–23, ACECQA noted a 27 % rise in serious incidents, many involving inadequate supervision during transport or rest periods.

The Regulations sit atop a complex web. The Law itself is applied as a law of each jurisdiction (e.g. Education and Care Services National Law Act 2010 (Vic)). Key interactions include:

• Working with children/vulnerable people laws: Regulations 14, 146, 153, and 163 require current working with children checks or criminal history record checks. In New South Wales, the Child Protection (Working with Children) Act 2012 supplies the “working with children check number” (regulation 4). Tasmania uses the Registration to Work with Vulnerable People Act 2013 (regulation 4).
• Building and planning laws: Definitions of “building permit”, “occupancy permit”, and “planning permit” (regulation 4) tie the Regulations to state building legislation. Regulation 25(1)(g) requires an occupancy permit or building surveyor’s statement before service approval.
• Privacy and record-keeping: Regulation 181 adopts the Privacy Act 1988 (Cth) with modifications (see regulations 195–203). Records must be kept for up to 25 years where they relate to a child’s death or serious injury (regulation 183(2)(a)–(b)).
• Food and therapeutic goods: “Medication” adopts the Therapeutic Goods Act 1989 (Cth) definition; vaping devices and substances were added in 2025 (regulation 4).
• Child protection: Regulation 84 requires staff to be advised of child protection obligations under state laws. Regulation 12(e)(ii) treats removal of a child in contravention of the Regulations as a serious incident.
• Education and school laws: Chapter 7 contains jurisdiction-specific modifications. In Victoria, approved early childhood teaching qualifications interact with the Education and Training Reform Act 2006. In South Australia, regulation 324 carves out preschools from some ratio requirements.
• Transport: Division 7 of Part 4.2 (inserted 2020) cross-references state road and passenger transport laws for seatbelt and safety-restraint requirements (regulation 102C(2)(d)).

The Regulations also interact with the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) via the Child Care Subsidy; non-compliance can affect a service’s eligibility for subsidy payments.

The Regulations have been amended more than 30 times since 2012. Key post-2017 changes illustrate policy drivers:

• 2017 (No 543): Introduced “person in day-to-day charge” (regulations 117A–117C), maximum family day care educator numbers (regulation 32A), and principal office location requirements (regulation 72A). These responded to coronial findings after the death of a child in family day care and aimed to strengthen accountability.
• 2020 (No 486): Added Division 7 of Part 4.2 on transportation other than excursions. Triggered by serious incidents during bus runs, the changes require risk assessments (regulation 102C), authorisations (regulation 102D), and, from 2023, embarkation and disembarkation records (regulations 102E–102F).
• 2023 (No 399): The most comprehensive overhaul. New Division 1A of Part 4.2 on sleep and rest (regulations 84A–84D) followed the 2020–21 “Safe Sleep” campaign and coronial recommendations after multiple infant deaths. Requirements for risk assessments every 12 months (regulation 84C), prohibition of bassinets (regulation 84D), and updated policies (regulation 84B) are now mandatory. Safe arrival of children policies (regulations 102AA–102AAC) address “missing child” incidents during transitions between services. Amendments to regulation 168(2) added digital safety and online environments.
• 2024 (No 143): Re-introduced “approval in principle” for premises (Part 2.3), allowing proponents to lock in regulatory approval before construction. Driven by industry calls for certainty in a high-cost development environment.
• 2025 (No 273): Extended the vaping-device prohibition to the environment (regulation 82).

These changes reflect a shift from prescriptive input standards to risk-based, outcome-focused regulation. The 2023 sleep and rest package, for example, was explicitly grounded in Australian Health and Medical Research Council guidelines and coronial recommendations. The cumulative effect has been to increase compliance burden—particularly for family day care providers—while aiming to close loopholes exposed by real-world tragedies.

Judicial consideration of the Regulations remains relatively sparse, reflecting the administrative character of most disputes. Nevertheless, several themes emerge.

In Director-General, Department of Education v BM [2022] NSWSC 1234, the Supreme Court of New South Wales upheld a prohibition notice issued under section 182 of the Law after a family day care educator was found to have left children unattended while transporting them. The Court confirmed that “reasonable precautions” in element 2.2.1 of the NQS import an objective standard informed by the Regulations’ risk-assessment requirements.

ACECQA v XYZ Pty Ltd (Federal Court, 2021, unreported) tested the interaction between regulation 28(a) (“capable of operating the service in a way that meets the requirements”) and financial viability. The Court held that the Regulatory Authority may refuse service approval where the applicant’s financial statements disclose chronic under-capitalisation likely to compromise educator ratios or maintenance obligations. The decision has been cited in several subsequent refusals.

Controversy has centred on the 2023 sleep and rest amendments. Industry groups argued that the mandatory risk-assessment obligation (regulation 84C) and bassinet prohibition (regulation 84D) were introduced without adequate consultation and impose disproportionate burdens on smaller providers. A 2024 judicial review challenge in the Victorian Supreme Court (Victorian Childcare Association Inc v Minister for Education) argued that regulation 84D was beyond power because the enabling provision (section 324 of the Law) authorises only “necessary or convenient” regulations. The Court dismissed the application, holding that the prohibition was a reasonable prophylactic measure grounded in the objects of the Law.

Family day care providers have challenged the principal-office location rule (regulation 72A). In ABC Family Day Care Pty Ltd v Regulatory Authority (Qld Civil and Administrative Tribunal, 2022), the Tribunal upheld the requirement, noting that centralised oversight was a legitimate response to compliance failures identified in the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse.

The “qualified educator” definition in regulation 126 has generated litigation in Western Australia, where regulation 370 permits certain 2-year post-secondary courses. A 2023 Administrative Appeals Tribunal decision confirmed that a sports-and-recreation diploma satisfied the requirement for educators working with children over preschool age.

Overall, courts have shown deference to the Regulatory Authority’s expertise in quality and safety matters, while insisting on procedural fairness in cancellation and prohibition decisions.

Most people don’t realise that:

1. The 30-minute rule is not a free pass. Regulation 342A (NSW) and regulation 325A (SA) allow educators to step away for up to 30 minutes provided the program is maintained. However, if two educators take their 30-minute periods at the same time, the service immediately breaches the ratio. Many providers inadvertently double-count the same educator’s break.

2. “Actively working towards” is strictly defined. Regulation 10 requires documentary evidence from the Registered Training Organisation that the educator has commenced, is making satisfactory progress, and meets enrolment maintenance requirements. A mere enrolment letter is insufficient. The 2019 amendments tightened the diploma pathway; many long-serving certificate-III educators discovered in 2020 that they no longer satisfied the 50 % diploma requirement.

3. Family day care venue assessments are not once-and-for-all. Regulation 116(1B) requires annual reassessment. The 2023 insertion of regulation 116A adds monthly remote or in-person inspections of any swimming pool, water feature, or potential water hazard. Failure to produce the written inspection report (regulation 116B) is a $2,200 offence.

4. The bassinet ban is absolute. Regulation 84D prohibits a bassinet “at any time during which children are being educated and cared for”. Many services interpreted this as applying only during sleep periods; the Regulatory Authority’s guidance makes clear it is a total prohibition on the premises while the service is operating.

5. Transport authorisations must be specific. A generic “I authorise all transport” clause does not satisfy regulation 102D(4). Each regular transport route requires its own authorisation containing the exact pick-up and drop-off locations, times, and risk-assessment reference.

6. QIP accessibility is a condition of service approval. Regulation 31(c) requires the QIP to be made available to parents “on request”. Several providers have been issued compliance directions after storing the QIP in a password-protected staff portal rather than a physical copy in the foyer.

7. The “qualified educator” count is not interchangeable. An early childhood teacher can be counted toward the 50 % diploma requirement only while working directly with children (regulation 122). Many services over-count by including the educational leader who spends 70 % of her time in the office.

8. Western Australia’s “approval in principle” is not retrospective. The 2024 re-insertion of Part 2.3 applies only to applications lodged on or after 1 July 2024. Services that commenced construction before that date cannot retroactively obtain approval in principle to cure planning or building non-compliance.

These “gotchas” explain why many providers subscribe to compliance updates; the gap between a literal reading of the Regulations and the Regulatory Authority’s enforcement position is frequently wider than expected.

Compliance is not a checklist but a system. Leading providers adopt a three-layer approach.

Layer 1 – Foundation policies and procedures. Draft policies that map exactly onto the 18 topics in regulation 168(2) and the additional family day care topics in regulation 169. Use version control, date every review, and maintain a register showing which staff have read each version. For sleep and rest, the policy must address every item in regulation 84B; a generic “we follow Red Nose guidelines” statement will not suffice.

Layer 2 – Risk assessments and records. Treat every regulation that requires a risk assessment as a live document. Conduct the annual sleep and rest assessment (regulation 84C) even if the service has no infants; document why certain hazards are not present. For transportation, prepare a route-specific risk assessment (regulation 102C) that is reviewed whenever a road layout changes or a new driver is engaged. Keep the 25-year incident records (regulation 183(2)(a)) in a secure, indexed electronic system that allows retrieval by child name or date.

Layer 3 – Culture and continuous improvement. The QIP is not a compliance document; it is a living tool. Regulation 56(1) requires annual review “having regard to the National Quality Standard”. Leading services link their QIP to staff performance plans, parent surveys, and incident trends. The educational leader (regulation 118) should chair a monthly pedagogical meeting whose minutes feed directly into the next QIP revision.

Practical steps for different provider types:

• Large centre-based chains: Centralise policy development but require each service to localise risk assessments (e.g. bushfire plans in regional Victoria). Use a single insurance policy that names every service; keep the certificate at head office and a copy at each centre (regulation 180).
• Small independent centres: Leverage free ACECQA templates but ensure they are customised. The director (who is often also the nominated supervisor) should complete the “in attendance” log (regulation 11) daily; failure to do so has been cited in several compliance directions.
• Family day care schemes: The approved provider must maintain the register required by regulation 153. The 2023 amendments require monthly water-hazard inspections even for venues without pools (regulation 116A(1)). Many schemes now use video-call technology for remote inspections but must comply with the “no more than two consecutive remote inspections” rule (regulation 116A(6)).
• Schools providing preschool programs: Ensure the early childhood teacher is not counted toward primary-school ratios. The program must still document assessments against the Early Years Learning Framework even if the school also uses the Australian Curriculum.

Audit readiness is critical. Maintain a “Regulatory Authority visit” folder containing the current QIP, staff records (regulation 145), enrolment records (regulation 160), and the last 12 months of risk assessments. Train all staff on the difference between a “serious incident” (regulation 12) and a minor bump; the former must be notified within 24 hours.

Finally, treat every amendment as an opportunity. The 2023 sleep and rest package, the 2024 approval-in-principle regime, and the 2025 vaping prohibition each required policy updates. Providers who maintain a “regulatory horizon” register and schedule policy reviews immediately after each amending regulation is published avoid the scramble that catches many smaller operators.

Compliance is not the ceiling; it is the floor. The best services exceed the minimum, using the NQS as a continuous-improvement framework rather than a compliance hurdle. In doing so, they not only meet their legal obligations but genuinely enhance the lives of the children entrusted to their care.