Part 11Australian Children's Education and Care Quality Authority

Part 11—Australian Children's Education and Care Quality Authority Division 1—The National Authority 224—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. 225—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; (ga) to establish, maintain and publish the National Early Childhood Worker Register; (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 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. 226—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. 227—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 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. 228—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. 229—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 230—National Authority Board The National Authority has a governing body known as the Australian Children's Education and Care Quality Authority Board. 231—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. 232—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 233—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. 234—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. 235—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. 236—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. 237—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. 238—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 239—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. 240—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. 241—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. 242—Presiding member The Chairperson (or, in the absence of the Chairperson, the Deputy Chairperson) is to preside at a meeting of the Board. 243—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. 244—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. 245—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. 246—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. 247—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 248—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. 249—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. 250—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. 251—Remuneration The chief executive officer is to be paid the remuneration and allowances decided by the Board. 252—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. 253—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. 254—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 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. 255—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. 256—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 257—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. 258—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. 259—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.