Div 9Offences

Division 9—Offences 103—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. 104—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—Approval in principle for education and care service premises located in certain types of buildings Division 1—Application of this Part 105—Application of Part to certain participating jurisdictions only This Part applies to, and in relation to, a participating jurisdiction if a law of the participating jurisdiction, or an instrument made under that law, specifically declares that Part 4 of this Law applies. Division 2—Application for approval in principle 106—Application for approval in principle (1) A person may apply to the Regulatory Authority for the approval in principle of proposed education and care service premises. (2) An application may be made if— (a) the premises are for an education and care service (other than a family day care service); and (b) the premises are proposed to be located in a new or existing Part 4 building; and (c) under a Part 4 planning law or Part 4 building law (or both) of the Part 4 jurisdiction, a permit or approval is required for the construction, alteration or repair of the proposed education and care service premises or the development of the land. 107—Form and timing of application (1) An application for an approval in principle must— (a) be made to the Regulatory Authority of the Part 4 jurisdiction in which the building is to be located or is located; and (c) include any plan, drawing or specification as to the construction, alteration or repair of the proposed premises and building in which the premises are or will be located; and (d) include the prescribed information; and (e) include payment of the prescribed fee. (2) An application for an approval in principle must be made to the Regulatory Authority within the period declared by or under a law of the Part 4 jurisdiction to be the application period. 108—Regulatory Authority may seek further information (1) The Regulatory Authority may ask an applicant for an approval in principle 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 110 for the Regulatory Authority to make a decision on the application. 109—Determination of application for an approval in principle In determining an application for an approval in principle, the Regulatory Authority must have regard to— (a) the suitability of the proposed education and care service premises and the site and location of those premises for the operation of an education and care service; and (b) whether the proposed education and care service premises would meet the approval in principle criteria once constructed, altered or repaired; and (c) whether the proposed education and care service premises will have direct egress to an assembly area to allow the safe evacuation of all children; and (d) any other matter the Regulatory Authority considers relevant; and (e) any other prescribed matters. 110—Grant or refusal of approval in principle (1) On receiving an application under section 106, the Regulatory Authority may— (a) subject to section 111, grant an approval in principle; or (b) refuse to grant an approval in principle. (2) Subject to subsection (3), the Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application. If further information is requested under section 108(1), the period between the making of the request and the provision of the information is not included in the 60 day period. (3) The period referred to in subsection (2) may be extended with the agreement of the applicant. (4) The Regulatory Authority is taken to have refused to grant an approval in principle 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), 111—Regulatory Authority must refuse to grant approval in principle unless satisfied of certain matters The Regulatory Authority must refuse to grant an approval in principle unless satisfied that— (a) the proposed education and care service premises (once constructed, altered or repaired) and the site and location of those premises— (i) will be suitable for the operation of an education and care service; and (ii) will meet the approval in principle criteria; and (b) the proposed education and care service premises will have direct egress to an assembly area to allow the safe evacuation of all children. 112—Notice of decision on application for approval in principle The Regulatory Authority must give written notice to the applicant of a decision under section 110 and the reasons for the decision within 7 days after the decision is made. 113—Copy of approval in principle to be provided (1) If the Regulatory Authority grants an approval in principle, the Regulatory Authority must give a copy of the approval in principle to the applicant stating— (a) the name of the approval in principle holder; and (b) the site and location of the building or proposed building; and (c) the location of the proposed education and care service premises within the building or proposed building; and (d) the date on which the approval in principle was granted; and (e) the date on which the approval in principle expires; and An approval in principle expires 3 years from the day it is granted. See section 123. (2) The copy of the approval in principle must— (a) attach a copy of any plan, drawing or specification that is the basis of the approval in principle of the premises; or (b) sufficiently describe any such plan, drawing or specification. Division 3—Duties of approval in principle holder 114—Duty to notify Regulatory Authority of any material change The approval in principle holder must notify the Regulatory Authority of any material change to— (a) any plan, drawing or specification attached to, or described in, the approval in principle in accordance with section 113(2); or (b) the environment surrounding the proposed education and care service premises that may affect the suitability of the premises for the operation of an education and care service. A neighbouring building is constructed which impacts adequate natural light in the indoor spaces of the proposed premises. Division 4—Amendment and transfer of approval in principle 115—Amendment of approval in principle on application (1) The approval in principle holder may apply to the Regulatory Authority for an amendment of an approval in principle. (3) The Regulatory Authority may ask the applicant to provide 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 approval in principle in the way applied for; or (b) with the applicant's written agreement, amending the approval in principle in another way; or (c) refusing to amend the approval in principle. (7) An amendment cannot change the location of the proposed education and care service premises. (8) The Regulatory Authority must give written notice of its decision to the approval in principle holder within 7 days after the decision is made. 116—Amendment of approval in principle by Regulatory Authority (1) The Regulatory Authority may amend an approval in principle at any time without an application. (2) The Regulatory Authority must give written notice of the amendment to the approval in principle holder and the reasons for the decision within 7 days after the decision is made. (3) An amendment under this section has effect— (a) 14 days after the Regulatory Authority gives notice of the amendment under subsection (2); or 117—Copy of amended approval in principle to be provided If the Regulatory Authority amends an approval in principle under section 115 or 116, the Regulatory Authority must give an amended copy of the approval in principle to the approval in principle holder. 118—Transfer of approval in principle (1) The approval in principle holder (transferring approval in principle holder) may transfer the approval in principle to another person (receiving approval in principle holder). (2) A transfer takes effect on the day the Regulatory Authority receives a notice of transfer in accordance with subsection (3). (3) A notice of transfer must— (b) be signed by both the transferring approval in principle holder and the receiving approval in principle holder; and (4) As soon as practicable after receiving a notice of transfer, the Regulatory Authority must— (a) amend the approval in principle to specify the name of the receiving approval in principle holder; and (b) provide an amended copy of the approval in principle to the receiving approval in principle holder. 119—Transfer of approval in principle by Regulatory Authority (1) The Regulatory Authority may transfer an approval in principle to another person if the Regulatory Authority becomes aware that the approval in principle holder has died or does not exist. (2) On transferring an approval in principle, the Regulatory Authority must— (a) amend the approval in principle to specify the name of the receiving approval in principle holder; and (b) provide an amended copy of the approval in principle to the receiving approval in principle holder. Division 5—Cancellation of approval in principle 120—Regulatory Authority may cancel approval in principle The Regulatory Authority may cancel an approval in principle if the Regulatory Authority is satisfied— (a) that the proposed education and care service premises to which the approval relates, or the site or location of those premises, is no longer suitable for the operation of an education and care service; or (b) the proposed education and care service premises will not be constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle. 121—Show cause notice before cancellation If the Regulatory Authority is considering the cancellation of an approval in principle under section 120, the Regulatory Authority must first give the approval in principle holder a show cause notice stating— (a) that the Regulatory Authority intends to cancel the approval in principle; and (c) that within 30 days after the notice is given, the holder may give the Regulatory Authority a written response to the proposed cancellation. 122—Decision in relation to cancellation (1) After considering any written response from the approval in principle holder received within the time allowed by section 121(c), the Regulatory Authority must— (a) cancel the approval in principle; or (b) decide not to cancel the approval in principle. (2) The Regulatory Authority must give the approval in principle holder written notice of the decision and the reasons for the decision within 7 days after the decision is made. (3) The decision to cancel the approval in principle takes effect— (a) 14 days after the Regulatory Authority gives notice of the decision; or (4) The notice of a decision to cancel must set out the date on which the cancellation takes effect. Division 6—Expiry of approval in principle 123—Expiry of approval in principle (1) An approval in principle expires— (a) on the third anniversary of the day on which the approval in principle was granted; or (b) if the approval in principle is extended under section 124, on the day determined by the Regulatory Authority in accordance with that section. (2) Despite subsection (1), if an application for extension is made under section 124 before the expiry of the approval in principle, the approval in principle does not expire before the application for extension is determined by the Regulatory Authority. (3) Despite subsection (1), if an application for service approval is made before the expiry of the approval in principle, the approval in principle does not expire before the application for service approval is determined by the Regulatory Authority. 124—Approval in principle may be extended (1) Any time before an approval in principle expires, the Regulatory Authority may extend an approval in principle— (a) on the application of the approval in principle holder; or (b) without an application. (2) The Regulatory Authority may extend an approval in principle for a period no longer than 3 years after the date on which the approval in principle would otherwise expire under section 123(1)(a). (3) An application for extension must— (4) The Regulatory Authority may ask the applicant to provide further information that is reasonably required for the purpose of assessing the application. (5) In determining an application for extension, the Regulatory Authority— (a) must consider whether, before the proposed new expiry date— (i) the construction, alteration or repair of the proposed education and care service premises is likely to be completed; and (ii) an application for a service approval is likely to be made; and (b) may consider whether— (i) the proposed education and care service premises is, or is being, constructed, altered or repaired in accordance with the approval in principle; and (ii) the approval in principle has previously been extended; and (iii) the approval in principle has previously been reinstated. (6) After considering an application for extension, the Regulatory Authority must— (a) decide to extend the approval in principle; or (b) refuse to extend the approval in principle. (7) If the Regulatory Authority decides to extend an approval in principle, the Regulatory Authority must— (a) amend the approval in principle to specify the new date on which the approval in principle expires; and (b) provide an amended copy of the approval in principle to the approval in principle holder. (8) If the Regulatory Authority decides not to extend an approval in principle, the Regulatory Authority must give the approval in principle holder written notice of its decision and the reasons for the decision within 7 days after the decision is made. 125—Expired approval in principle may be reinstated (1) If an approval in principle expires, the former approval in principle holder may apply to the Regulatory Authority for reinstatement of the approval in principle. (2) An application for reinstatement must— (3) The application for reinstatement must be made no later than 6 months after the date on which the approval in principle expired. (4) The Regulatory Authority may ask the applicant to provide further information that is reasonably required for the purpose of assessing the application. (5) In determining whether to reinstate an approval in principle, the Regulatory Authority— (a) must consider whether, within the period that the approval in principle is to be reinstated— (i) the construction, alteration or repair of the proposed education and care service premises is likely to be completed; and (ii) an application for a service approval is likely to be made; and (b) may consider whether— (i) the proposed education and care service premises is, or is being, constructed, altered or repaired in accordance with the approval in principle; and (ii) the approval in principle has previously been extended; and (iii) the approval in principle has previously expired and been reinstated. (6) The Regulatory Authority must— (a) reinstate an approval in principle; or (b) refuse to reinstate an approval in principle. (7) A reinstated approval in principle expires 12 months after the day on which the decision to reinstate the approval in principle is made. (8) If the Regulatory Authority reinstates an approval in principle, the Regulatory Authority must give the approval in principle holder a copy of the reinstated approval in principle which specifies the date on which the reinstated approval in principle expires. (9) If the Regulatory Authority refuses to reinstate an approval in principle, the Regulatory Authority must give the applicant written notice of its decision and the reasons for the decision within 7 days after the decision is made. Part 5—Assessments and ratings Division 1—Assessment and rating 133—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. 134—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. 135—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. 136—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. 137—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 138—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. 139—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. 140—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 141—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; and 142—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. 143—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 144—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. 145—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 146—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. 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. 148—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. 149—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 150—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. 151—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 152—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. 153—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. 154—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. 155—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 5 years, unless sooner revoked. 156—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. 157—Reassessment of highest rating level The Board may at any time reassess an approved education and care service in accordance with section 153. 158—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). 159—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 160—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 161—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 one nominated supervisor for that service. 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. 162—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; (c) a person in day-to-day charge of the service. (2) This section does not apply to an approved family day care service. 162A—Child protection training An approved provider of an education and care service must ensure that each of the following persons completes prescribed child protection training within the prescribed period: (a) a nominated supervisor of the service; (b) a person in day‑to‑day charge of the service; (c) a staff member of the service; (d) a volunteer at the service. 162B—Child safety training An approved provider of an education and care service must ensure that each of the following persons completes prescribed child safety training within the prescribed period: (a) a person with management and control of the service; (c) a person in day‑to‑day charge of the service; (d) a staff member of the service; (e) a volunteer at the service. 163—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. 164—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; (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. 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. 165—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. 166—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— 166A—Offences relating to inappropriate conduct (1) An approved provider of an education and care service must ensure that no child is subjected to conduct that a reasonable person would consider to be inappropriate in an education and care service while that child is being educated and cared for by the service. (b) $172 000, in any other case. (2) A nominated supervisor of an education and care service must ensure that no child is subjected to conduct that a reasonable person would consider to be inappropriate in an education and care service while that child is being educated and cared for by the service. (3) An approved provider of an education and care service must not subject a child being educated or cared for by the service to conduct that a reasonable person would consider to be inappropriate in an education and care service. (4) A nominated supervisor of an education and care service must not subject a child being educated or cared for by the service to conduct that a reasonable person would consider to be inappropriate in an education and care service. (5) A staff member of an education and care service must not subject a child being educated or cared for by the service to conduct that a reasonable person would consider to be inappropriate in an education and care service. (6) A volunteer at an education and care service must not subject a child being educated or cared for by the service to conduct that a reasonable person would consider to be inappropriate in an education and care service. (7) For the purposes of subsections (1) to (6), whether or not a reasonable person would consider the conduct to be inappropriate in an education and care service depends on the circumstances. (8) For the purposes of subsection (7)— (a) the circumstances may include any of the following: (i) whether the conduct is generally accepted practice in the provision of education and care; (ii) whether the conduct is likely to cause or result in harm (including emotional, psychological or physical harm) or injury to a child or children enrolled at the service; (iii) the child's age and stage of development; (iv) whether the conduct is sexual, aggressive or violent; and (b) it is immaterial whether— (i) the child has consented to being subjected to the conduct; or (ii) the person subjecting the child to the conduct believes the child has consented to being subjected to the conduct; or (iii) the person subjecting the child to the conduct is related to the child. (9) For the purposes of this section, filming, recording, taking or otherwise capturing an image of a child is subjecting a child to conduct. (10) For the purposes of this section, the conduct may be constituted by conduct— (a) engaged in on a single occasion; or (b) engaged in on a number of occasions over a period of time; or (c) that is part of an ongoing pattern. (11) In this section— conduct means— (a) an act; or (b) an omission to perform an act. 167—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. 168—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: $13 500. 169—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. 170—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. (a) $3 300, in the case of an individual. (b) $17 100, 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. 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. 171—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. 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. A person who is under the influence of drugs or alcohol. 172—Offence to fail to display prescribed information (1) An approved provider of an education and care service (other than a family day care service) must ensure that the prescribed information about the following is displayed, in the prescribed form (if any), 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; (2) An approved provider of a family day care service must ensure that the prescribed information about the following is displayed at the education and care service premises of the family day care service in accordance with the national regulations: (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; 173—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. (1A) An approved provider that is a body corporate must notify the Regulatory Authority if 50 per cent or more of the approved provider's ownership or voting rights is acquired. (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), (1A) 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. (4A) A notice under subsection (1A) must be provided to the Regulatory Authority that granted the approved provider's provider approval within 7 days after the date on which 50 per cent or more of the approved provider's ownership or voting rights is acquired. (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. 174—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. 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. 175—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: $13 500.