Part 14Miscellaneous

Part 14—Miscellaneous Division 1—Finance 274—Australian Children's Education and Care Quality Authority Fund (1) The Australian Children's Education and Care Quality Authority Fund is established. (2) The Authority Fund is a fund to be administered by the National Authority. (3) The National Authority may establish accounts with any financial institution for money in the Authority Fund. (4) The Authority Fund does not form part of the consolidated fund or consolidated account of a participating jurisdiction or the Commonwealth. 275—Payments into Authority Fund There is payable into the Authority Fund— (a) all money provided by a participating jurisdiction or the Commonwealth for the purposes of the Fund; and (b) the proceeds of the investment of money in the Fund; and (c) all grants, gifts and donations made to the National Authority, but subject to any trusts declared in relation to the grants, gifts or donations; and (d) all money directed or authorised to be paid into the Fund by or under this Law, any law of a participating jurisdiction or any law of the Commonwealth; and (e) any other money and property prescribed by the national regulations; and (f) any other money or property received by the National Authority in connection with the exercise of its functions. 276—Payments out of Authority Fund Payments may be made from the Authority Fund for the purpose of— (a) paying any costs or expenses, or discharging any liabilities, incurred by the National Authority in the administration or enforcement of this Law or in the performance of its functions or duties or the exercise of its powers; and (b) paying any remuneration or allowances payable under this Law by the National Authority; and (c) allocating, transferring or reimbursing money to a participating jurisdiction in accordance with the national regulations; and (d) any other payments recommended by the National Authority and approved by the Ministerial Council. 277—Investment of money in Authority Fund The National Authority may invest money in the Authority Fund in accordance with the national regulations. 278—Financial management duties of National Authority The National Authority must— (a) ensure that its operations are carried out efficiently, effectively and economically; and (b) keep proper books and records in relation to the Authority Fund; and (c) ensure that expenditure is made from the Authority Fund for lawful purposes only and, as far as possible, reasonable value is obtained for money expended from the Fund; and (d) ensure that its procedures, including internal control procedures, afford adequate safeguards with respect to— (i) the correctness, regularity and propriety of payments made from the Authority Fund; and (ii) receiving and accounting for payments made to the Authority Fund; and (iii) prevention of fraud or mistake; and (e) take any action necessary to ensure the preparation of accurate financial statements in accordance with Australian Accounting Standards for inclusion in its annual report; and (f) take any action necessary to facilitate the audit of those financial statements in accordance with this Law; and (g) arrange for any further audit by a qualified person of the books and records kept by the National Authority in relation to the Authority Fund, if directed to do so by the Ministerial Council. Division 2—Reporting 279—Annual report (1) The Board must, within 4 months after the end of each financial year, submit an annual report of the National Authority for the financial year to the Ministerial Council. (2) The annual report must include— (a) an audited financial statement for the period to which the report relates; and (b) a report about the National Authority's performance of its functions under this Law during the period to which the annual report relates; and (c) an assessment of the implementation and administration of the National Quality Framework; and (d) all directions given to the National Authority by the Ministerial Council and the Authority's response; and (e) all directions given to the Regulatory Authorities by the Ministerial Council and the Regulatory Authorities' responses; and (f) a report on any committees established by the Board; and (g) any other matter determined by the Ministerial Council. (3) The financial statement is to be prepared in accordance with Australian Accounting Standards. (4) The financial statement is to be audited by a public sector auditor and a report is to be provided by the auditor. (5) The Ministerial Council may extend, or further extend, the period for submission of an annual report to the Council by a total period of up to 3 months. (6) In this section— public sector auditor means— (a) the Auditor‑General (however described) of a participating jurisdiction or the Commonwealth; or (b) an auditor employed, appointed or otherwise engaged by an Auditor‑General of a participating jurisdiction or the Commonwealth. 280—Tabling and publication of annual report (1) The Ministerial Council must make arrangements for the tabling of the annual report of the National Authority, and the report of the public sector auditor with respect to the financial statement in the report, in the Parliament of a participating jurisdiction determined by the Ministerial Council. (2) As soon as practicable after the annual report has been tabled in the Parliament determined under subsection (1), the National Authority must publish a copy of the report on its website. 281—Other reporting (1) The National Authority may make any reports to the Ministerial Council that it considers necessary in the performance of its functions. (2) The Chairperson of the Board must provide to the Ministerial Council any other reports and documents and information relating to the operations of the National Authority that the Ministerial Council requires. (3) The Chairperson of the Board may provide to the responsible Minister of a participating jurisdiction and the Commonwealth Minister any reports and documents and information relating to the operations of the National Authority that the responsible Minister requires. (4) The reports, documents and information referred to in subsection (2) must be provided within the time set by the Ministerial Council. Division 3—Application of Commonwealth Ombudsman Act 282—Application of Commonwealth Ombudsman Act (1) The Ombudsman Act applies as a law of a participating jurisdiction for the purposes of this Law except to the extent that this Law applies to a Regulatory Authority and the employees, decisions, actions and records of a Regulatory Authority. (2) For the purposes of subsection (1), the Ombudsman Act applies— (a) as if a reference to the Commonwealth Ombudsman were a reference to the Education and Care Services Ombudsman; and (b) with any other modifications made by the national regulations. (a) provide that the Ombudsman Act applies under subsection (1) as if a provision of the Ombudsman Act specified in the regulations were omitted; or (b) provide that the Ombudsman Act applies under subsection (1) as if an amendment to the Ombudsman Act made by a law of the Commonwealth, and specified in the regulations, had not taken effect; or Ombudsman Act means the Ombudsman Act 1976 of the Commonwealth, as in force from time to time. Division 4—Legal proceedings 283—Who may bring proceedings for an offence? (1) The following persons may bring proceedings for an offence under this Law: (a) the Regulatory Authority; (b) a person authorised by the Regulatory Authority; (c) a police officer. (2) In a proceeding for an offence against this Law or the regulations it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceeding was authorised to bring it. 284—When proceedings may be commenced (1) Subject to section 181(6) and subsection (3), proceedings for an offence under this Law must be commenced by a person referred to in section 283(1) within 2 years after the date on which the person becomes aware of the alleged offence. (2) Subsection (1) applies whether the date on which the person referred to in section 283(1) becomes aware of the alleged offence is before, on or after the commencement of section 11 of the Early Childhood Legislation Amendment (Child Safety) Act 2025 of Victoria. (3) If the Regulatory Authority becomes aware of an alleged offence but is required to suspend taking action under this Law in relation to the alleged offence because of a concurrent investigation or proceeding in relation to the same conduct under another Act, proceedings for the offence against this Law must be commenced within 2 years after any investigation or proceeding (as the case requires) in relation to the conduct under the other Act have been finalised. 285—Offences by bodies corporate (1) If a body corporate commits an offence against this Law, any person with management or control of the body corporate who failed to exercise due diligence to prevent the contravention that is the subject of the offence also commits that offence and is liable to the penalty for that offence. (2) The penalty for an offence referred to in this section is the penalty applicable to an individual. 286—Application of Law to partnerships and eligible associations and other entities (1) If this Law would otherwise require or permit something to be done by a partnership, the thing may be done by one or more of the partners on behalf of the partnership. (2) If this Law would otherwise require or permit something to be done by an eligible association, the thing may be done by one or more of the members of the executive committee on behalf of the association. (3) If this Law would otherwise require or permit something to be done by a prescribed entity, the thing may be done by one or more of the persons with management or control of the entity on behalf of the entity. (4) An offence against this Law that would otherwise be committed by the partnership is taken to have been committed by each partner who is a person with management or control of the partnership. (5) An offence against this Law that would otherwise be committed by an eligible association is taken to have been committed by each person who is a person with management or control of the association. (6) An offence against this Law that would otherwise be committed by a prescribed entity is taken to have been committed by each person who is a person with management or control of that entity. (7) The penalty for an offence that is taken to be committed under this section is the penalty applicable to an individual. 287—Multiple holders of an approval If more than one person holds a provider approval or service approval under this Law each holder of the approval is jointly and severally responsible for compliance with this Law. 288—Double jeopardy If a person has been convicted or found guilty in another participating jurisdiction for an offence against this Law as it applies in that jurisdiction, proceedings cannot be brought in this jurisdiction against the same person in respect of an offence concerning the same subject‑matter. 289—Immunity (1) A member of the Board of the National Authority, a committee of the Board or a Ratings Review Panel is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a power or the performance of a function under this Law; or (b) in the reasonable belief that the action or omission was in the exercise of the power or the performance of the function under this Law. (2) Any liability resulting from an act or omission that would, but for subsection (1), attach to an individual referred to in that subsection attaches instead to the National Authority. (3) The Regulatory Authority (if an individual) or a member of the governing body of the Regulatory Authority is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a power or the performance of a function under this Law; or (b) in the reasonable belief that the action or omission was in the exercise of the power or the performance of the function under this Law. (4) Any liability resulting from an act or omission that would, but for subsection (3), attach to an individual referred to in that subsection attaches instead to the State. 290—Immunity—education law (1) This section applies if the Regulatory Authority becomes aware of misconduct by a registered teacher or other person who could be subject to disciplinary action under an education law of a participating jurisdiction. (2) The Regulatory Authority may refer the matter to the relevant disciplinary body under the education law. (3) If the Regulatory Authority refers a matter under subsection (2), a prosecution cannot be brought under this Law for an offence in relation to that matter. 291—Infringement offences (1) An authorised officer or other person authorised by the Regulatory Authority may serve an infringement notice on a person for a contravention of— (a) section 36(3), 68(1), 69(1), 84(3), 161, 161A, 162(1), 163(1), 170(2), (3) or (4), 172, 173, 174(1) or (2), 175(1) or (3), 176(3), 177(3), 178(7), 179(3), 217 or 269; or (b) offences against the national regulations that are prescribed for the purposes of this section. (2) The infringement penalty for an offence for which an infringement notice may be served on a person is the amount which is 10 per cent of the maximum penalty that could be imposed on the person in respect of that offence. (3) An infringement notice must be in the form prescribed or contain the information prescribed by the infringements law of this jurisdiction. (4) Subject to this section, the infringements law of this jurisdiction applies to infringement notices served under this section in this jurisdiction. (5) The payment of an infringement penalty expiates the offence and is not to be considered in— (a) assessing whether a person is a fit and proper person to be involved in the provision of, or to be a supervisor of, an education and care service; or (b) assessing an approved education and care service under Part 5. 292—Evidentiary certificates A certificate purporting to be signed by the chief executive officer of the National Authority or by a Regulatory Authority and stating any of the following matters is prima facie evidence of the matter: (a) a stated document is one of the following things made, given, issued or kept under this Law: (i) an appointment, approval or decision; (ii) a notice, direction or requirement; (iv) a register, or an extract from a register; (v) a record, or an extract from a record; (b) a stated document is another document kept under this Law; (c) a stated document is a copy of a document mentioned in paragraph (a) or (b); (d) on a stated day, or during a stated period, a stated person was or was not an approved provider; (e) on a stated day, or during a stated period, an education and care service was or was not an approved education and care service; (f) on a stated day, or during a stated period, an approval was or was not subject to a stated condition; (g) on a stated day, an approval was suspended or cancelled; (h) on a stated day, or during a stated period, an appointment as authorised officer was, or was not, in force for a stated person; (i) on a stated day, a stated person was given a stated notice or direction under this Law; (j) on a stated day, a stated requirement was made of a stated person. Division 5—Service of notices 293—Service of notices (1) If this Law requires or permits a notice to be served on a person, the notice may be served— (a) on an individual by— (i) delivering it to the individual personally; or (ii) leaving it at, or by sending it by post to, the address notified to the sender by the individual as an address at which service of notices under this Law will be accepted or otherwise the address of the place of residence or business of the individual last known to the person serving the document; or (iii) sending it by facsimile transmission to a facsimile number notified to the sender by the individual as an address at which service of notices under this Law will be accepted; or (iv) sending it by email to an internet address notified to the sender by the individual as an address at which service of notices under this Law will be accepted; or (b) on a person other than an individual by— (i) leaving it at, or by sending it by post to, the address notified to the sender by the person as an address at which service of notices under this Law will be accepted or otherwise the address of the head office, a registered office or the principal place of business of the person; or (ii) sending it by facsimile transmission to a facsimile number notified to the sender by the person as an address at which service of notices under this Law will be accepted; or (iii) sending it by email to an internet address notified to the sender by the person as an address at which service of notices under this Law will be accepted. (2) Subsection (1) applies whether the word "deliver", "give", "notify", "send" or "serve" or another expression is used. (3) Subsection (1) does not affect the power of a court or tribunal to authorise service of a notice otherwise than as provided in that subsection. 294—Service by post If a notice authorised or required to be served (whether the word "deliver", "give", "notify", "send" or "serve" or another expression is used) on a person is served by post, service of the notice— (a) may be effected by properly addressing, prepaying and posting a letter containing the document; and (b) in Australia or in an external Territory—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth day after the letter was posted; and (c) in another place—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of the post. Division 6—False or misleading information 295—False or misleading information or documents (1) A person must not give the Regulatory Authority or an authorised officer under this Law any information or document that the person knows is false or misleading in a material particular. (2) Subsection (1) does not apply in respect of the giving of a document, if the person when giving the document— (a) informs the Regulatory Authority or authorised officer, to the best of the person's ability, how it is false or misleading; and (b) gives the correct information to the Regulatory Authority or authorised officer if the person has, or can reasonably obtain, the correct information. Division 7—Protection from reprisal 296—Definitions protected disclosure means a disclosure of information or provision of documents to the Regulatory Authority— (a) pursuant to a request under this Law; or (b) where the person making the disclosure has a reasonable belief that— (i) an offence against this Law has been or is being committed; or (ii) the safety, health or wellbeing of a child or children being educated and cared for by an education and care service is at risk; serious detrimental action includes dismissal, involuntary transfer, loss of promotion and demotion. 297—Protection from reprisal (1) A person must not take serious detrimental action against a person in reprisal for a protected disclosure. (2) A person takes serious detrimental action in reprisal for a protected disclosure if— (a) the person takes or threatens to take the action because— (i) a person has made, or intends to make, a protected disclosure; or (ii) the person believes that a person has made or intends to make the protected disclosure; or (b) the person incites or permits another person to take or threaten to take the action for either of those reasons. (3) In determining whether a person takes serious detrimental action in reprisal, it is irrelevant whether or not a reason referred to in subsection (2) is the only or dominant reason as long as it is a substantial reason. 298—Proceedings for damages for reprisal (1) A person who takes serious detrimental action against a person in reprisal for a protected disclosure is liable in damages to that person. (2) The damages may be recovered in proceedings as for a tort in any court of competent jurisdiction. (3) Any remedy that may be granted by a court with respect to a tort, including exemplary damages, may be granted by a court in proceedings under this section. (4) The right of a person to bring proceedings for damages does not affect any other right or remedy available to the person arising from the serious detrimental action. 299—Application for injunction or order A person who believes that serious detrimental action has been taken or may be taken against him or her in reprisal for a protected disclosure may apply to the superior court for— (a) an order requiring the person who has taken the serious detrimental action to remedy that action; or (b) an injunction. 300—Injunction or order (1) If, on receipt of an application under section 299, the superior court is satisfied that a person has taken or intends to take serious detrimental action against a person in reprisal for a protected disclosure, the court may— (a) order the person who took the serious detrimental action to remedy that action; or (b) grant an injunction in any terms the court considers appropriate. (2) The superior court, pending the final determination of an application under section 299, may— (a) make an interim order in the terms of subsection (1)(a); or (b) grant an interim injunction. Division 8—National regulations 301—National regulations (1) The Ministerial Council may make regulations for the purposes of this Law. (2) The national regulations may provide for any matter that is required or permitted to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Law. (3) Without limiting subsection (1), the national regulations may provide for the following: (a) fees (including application fees and annual fees) for approvals and other things done under this Law; (b) the indexation of fees; (c) standards for education and care services; (d) requirements for educational programs, including the quality of those programs and their development, documentation and delivery; (e) requirements and standards to be complied with for the safety, health and wellbeing of children being educated and cared for by an education and care service; (f) requirements and standards to be complied with for safety, security, cleanliness, comfort, hygiene and repair of premises, outdoor spaces, fencing, gates, resources and equipment used for providing education and care services; (g) requirements and standards about the premises to be used to provide an education and care service including siting, design, layout, space, security and entitlement to occupy; (h) requirements and standards for the staffing of education and care services including the recruitment (and conduct of criminal history or other security checks) and the appointment of staff, performance improvement, professional standards, professional development, numbers and qualifications of educators (including minimum age and requirements concerning groups of children of different ages and composition) and staffing rosters and arrangements; (i) requirements and standards about educators' relationships with children, interactions and behaviour guidance and inclusion policies and practice for education and care services; (j) requirements and standards for partnerships between education and care services and the community in which they are located and the families of children being educated and cared for by education and care services, including requirements for services to link to other support services for children and families; (k) requirements and standards as to the leadership and management of education and care services including governance and fitness and propriety of all staff members and volunteers, management of grievances and complaints and the provision of information to families; (l) the records, policies and procedures to be kept by approved providers and family day care educators including enrolment and attendance information; (m) requirements and standards about first aid and management of children's medical conditions including— (i) the training of educators and staff members; and (ii) plans, policies and procedures used to manage medical conditions and first aid; and (iii) the keeping and storage of first aid kits and medications; (n) information required to be submitted for applications made under this Law; (o) requirements and standards for the provision and display of information by approved providers; (p) the publication of information about enforcement actions taken under this Law, including notice and review of proposals to publish information; (q) matters relating to the application of this Law to partnerships, eligible associations or prescribed entities; (r) requirements relating to the receipt and payment and distribution of fees and monetary penalties payable under this Law. (4) The national regulations— (a) may be of a general or limited application; and (b) may differ according to differences in time, place (including jurisdiction) or circumstances; and (c) may differ according to the type or class of education and care service and the ages of children being educated and cared for by a service; and (d) may exempt any education and care service or any type or class of education and care service from complying with all or any of the regulations; and (e) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a Regulatory Authority; and (f) may apply, adopt or incorporate by reference any document either— (i) as in force at the date the national regulations come into operation or at any date before then; or (ii) wholly or in part or as amended by the national regulations; and (g) may impose penalties not exceeding $6 600 for offences against the national regulations. 302—Publication of national regulations (1) The national regulations are to be published on the NSW Legislation website in accordance with Part 6A of the Interpretation Act 1987 of New South Wales. (2) A regulation commences on the day or days specified in the regulation for its commencement (being not earlier than the date it is published). 303—Parliamentary scrutiny of national regulations (1) The member of the Ministerial Council representing a participating jurisdiction is to make arrangements for the tabling of a regulation made under this Law in each House of the Parliament of the participating jurisdiction. (2) A committee of the Parliament of a participating jurisdiction may consider, and report to the Parliament about, the regulation in the same way the committee may consider and report to the Parliament about regulations made under Acts of that jurisdiction. (3) A regulation made under this Law may be disallowed in a participating jurisdiction by a House of the Parliament of that jurisdiction in the same way, and within the same period, that a regulation made under an Act of that jurisdiction may be disallowed. 304—Effect of disallowance of national regulation (1) If a regulation ceases to have effect under section 303 any law or provision of a law repealed or amended by the regulation is revived as if the disallowed regulation had not been made. (2) The restoration or revival of a law under subsection (1) takes effect at the beginning of the day on which the disallowed regulation by which it was amended or repealed ceases to have effect. (3) A reference in this section to the repeal or amendment of a law or a provision of a law extends to the revocation or variation of a regulation or a provision of a regulation.