CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES and OSHCLUB PTY LTD T/AS TREENDALE OSHCLUB
[2019] WASAT 101
•31 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EDUCATION AND CARE SERVICES NATIONAL LAW (WA) ACT 2012
CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES and OSHCLUB PTY LTD T/AS TREENDALE OSHCLUB [2019] WASAT 101
MEMBER: MS D QUINLAN, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 31 OCTOBER 2019
FILE NO/S: VR 77 of 2019
BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
Applicant
AND
OSHCLUB PTY LTD T/AS TREENDALE OSHCLUB
Respondent
FILE NO/S: VR 82 of 2019
BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
Applicant
AND
OSHCLUB PTY LTD T/AS BICTON OSHCLUB
Respondent
Catchwords:
Vocational regulation - Disciplinary proceedings - Preliminary issue - Failure to ensure children are adequately supervised at all times - Proposed consent orders - Relevance of prior contraventions - Previous Tribunal decision
Legislation:
Child Care Services Act 2007 (WA)
Education and Care Services National Law Act (WA) 2012, s 3, s 3(1), s 3(2)(a), s 3(2)(c), s 3(3)(a), s 3(3)(f), s 4, s 65(1), s 165(1), s 188AB(1)(a), s 188AB(3), s 188AB(3)(b), s 188AC(1), s 188(2), Pt 6, Pt 7
Education and Care Services National Law Regulations 2012 (WA)
State Administrative Tribunal Act 2004 (WA), s 87
Result:
Decline to follow previous Tribunal decision
Category: B
Representation:
VR 77 of 2019
Solicitors:
| Applicant | : | Department of Communities |
| Respondent | : | Minter Ellison |
VR 82 of 2019
Solicitors:
| Applicant | : | Department of Communities |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Chief Executive Officer of the Department for Communities and Camp Australia Pty Ltd [2012] WASAT 56
Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd [2017] WASAT 109
Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd [2017] WASAT 111
Mustac v Medical Board of Western Australia [2007] WASCA 128
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These two proceedings arise in the Tribunal pursuant to two allegations made by the Chief Executive Officer (applicant or CEO) of the Department of Communities (Department) that grounds for disciplinary action exist against OSHClub Pty Ltd (respondent or OSHClub) under s 188AB(1)(a) of the Schedule to the Education and Care Services National Law (WA) Act 2012 (National Law).
The CEO submits that grounds for disciplinary action exist in relation to the alleged failure of OSHClub to comply with the National Law at two education and care services provided outside of school hours by the respondent at Treendale Primary School, Australind (Treendale OSHClub) and Bicton Primary School, Bicton (Bicton OSHClub).
In relation to the Treendale OSHClub, the CEO alleges that on 11 February 2019 the respondent, as the approved provider of an education and care service, contravened s 165(1) of the National Law by failing to ensure that all children being educated and cared for by its service were adequately supervised at all times the children were in the care of its service.
In relation to the Bicton OSHClub, the CEO alleges that on two occasions on 8 and 13 February 2019 the respondent, as the approved provider of an education and care service, contravened s 165(1) of the National Law by failing to ensure that all children being educated and cared for by its service were adequately supervised at all times the children were in the care of its service.
The CEO seeks consequential orders in both proceedings, namely an order pursuant to s 188AB(3)(b) of the National Law that OSHClub pay a fine and costs under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Consent orders proposing final determination of both proceedings
On 28 June 2019 the parties, of their own volition and without any mediation having been undertaken at the Tribunal, filed consent orders in both proceedings as to the background facts and proposed consequential orders as to fines and costs (the two consent orders).
OSHClub accepts, based on the facts outlined in the two consent orders, that it contravened s 165(1) of the National Law on three occasions by failing to ensure that all children being educated and cared for by its service were adequately supervised at all times while in its care.
Under the National Law the Tribunal has been given the statutory task of determining allegations as to whether grounds for disciplinary action exist, and if so, exercise its discretion as to what orders should be made.
Since its inception, the Tribunal has actively engaged in and encouraged the practice by parties of facilitative dispute resolution across almost all of its numerous and various types of proceedings.
Vocational regulation proceedings are one such type of proceeding where facilitative dispute resolution, for instance at directions hearings or mediation or informal negotiations between parties, has (with one caveat) been actively encouraged by the Tribunal with significant positive results for both the parties and the Tribunal. The caveat is, even when the parties have reached agreement, ultimately the determination remains with the Tribunal as to whether grounds for disciplinary action exist, and if so, the appropriate consequential orders that should be made in the circumstances.
As outlined in the Tribunal's Practice Note 10, the practice is (as was followed by the parties in the two consent orders) that parties submit signed consent orders with agreed facts and proposed orders. The Tribunal then gives its own consideration as to whether the agreed facts support the proposed orders and whether the proposed sanction is within a reasonable and appropriate range of sanctions available to the Tribunal in the circumstances.
Therefore, there are some occasional instances where, whilst the parties have agreed an outcome to vocational regulation proceedings, the Tribunal in the exercise of its statutory function has refused to make the proposed orders.
Following receipt of the two consent orders on 28 June 2019, both proceedings were listed for a directions hearing on 8 July 2019 where a query was raised by Senior Member Spillane as to whether the agreed proposed fines were appropriate given previous findings against OSHClub in VR 138 of 2015 and VR 54 of 2017, as referred to in Annexure A to the two consent orders.
The CEO submitted that the proposed penalties were agreed by the CEO having regard to two prior related decisions of the Tribunal in Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd [2017] WASAT 109 (CEO and Camp Australia (1))and Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd [2017] WASAT 111 (CEO and Camp Australia (2)). The two proceedings were heard and determined together by the same Tribunal member regarding the same issues. The applicant did not appeal the two decisions. These reasons will subsequently only refer to paragraphs from CEO and Camp Australia (1).
The CEO submitted that, when it agreed to the proposed orders in the two consent orders (perhaps in circumstances where it had elected not to appeal), it had considered itself bound by the reasoning of the Tribunal in CEO and Camp Australia (1). In particular, the CEO had considered itself bound by the reasoning in CEO and Camp Australia (1) at [52] ‑ [53] that previous contraventions by the respondent of the same statutory provision should be of 'very limited weight in assessing an appropriate penalty' and that the impact of the respondent's 'prior contraventions on the seriousness of the conduct in the present matter is nominal'.
Preliminary issue to be determined
A preliminary issue has arisen in relation to both proceedings.
The preliminary issue which arises for determination in both proceedings is, in the exercise of its discretion as to the appropriate consequential orders to make in the present two proceedings, whether the Tribunal should follow any of the reasoning or statements of principle set out in CEO and Camp Australia (1).
In accordance with the Tribunal's directions and by consent of the parties this preliminary issue is to be determined on the documents. Written submissions were provided by the parties with the last submissions received by the Tribunal on 5 August 2019.
A directions hearing was held on 23 September 2019 where the Tribunal sought to clarify the position of the parties as to the outcome once determination of the preliminary issue had occurred. It was agreed that should the Tribunal agree with the reasoning and any statements of principle set out in CEO and Camp Australia (1) that the Tribunal should then issue final orders in terms of the two consent orders. However, should the Tribunal distinguish or decline to follow any reasoning or principles set out in CEO and Camp Australia (1), it was agreed that the Tribunal would publish reasons for taking that view and then, at the request of OSHClub, hear further from the parties before proceeding to determine the appropriate consequential orders.
For the reasons which follow, the Tribunal has declined to make final orders in terms of the two consent orders. It is relevant for the determination of the preliminary issue and for the progression of both proceedings for the Tribunal to refer to the agreed facts in both proceedings and the concessions made by OSHClub. However, in circumstances where the Tribunal still needs to hear further from the parties as to the appropriate consequential orders, the Tribunal does not consider it appropriate to refer in these reasons to the agreed fines that were proposed by the parties in the two consent orders.
Agreed facts
Unless noted otherwise, the parties have agreed the following facts in relation to both proceedings.
The Tribunal notes there has been some discrepancy between the information provided by each party as to the number of services operated by OSHClub and the number of children who attend on a weekly basis. The CEO informed the Tribunal in its submissions that OSHClub currently operates 114 services in Western Australia and manages on average 23,494 bookings each week for children placed in those services. OSHClub informed the Tribunal in its submissions that OSHClub currently operates 88 services in Western Australia and manages on average 14,100 bookings each week for children placed in those services. In determining the preliminary issue, regardless of the correct numbers, it is not in dispute that OSHClub is a large approved service provider operating across a significant number of services caring for thousands of children each week.
OSHClub holds, and on all relevant dates held, service approvals under the National Law to operate education and care services at Treendale OSHClub and Bicton OSHClub with such services subject to the National Law as well as the Education and Care Services National Law Regulations 2012 (WA) (National Regulations).
The following facts are agreed particular to the Treendale OSHClub proceeding:
a)The Treendale OSHClub operates from one or more rooms at the Treendale Primary School and provides before and after school care.
b)On 11 February 2019 a four‑and‑a‑half year old child in the care of the service (the Treendale child) was found by another school parent outside the school and by the side of the road. That parent took the Treendale child to a school teacher. The school teacher returned the Treendale child at around 3.15 pm to the service. There is no indication that educators from the Treendale OSHClub were conducting any kind of search for the Treendale child before he was brought back.
c)On 11 February 2019, at the afternoon session of care, there were 29 children attending with three educators to supervise. Prior to the start of the session the plan was for one educator to collect the kindy and pre‑primary children from their class and bring them back to the service, for the second educator to collect the year one children and for the third educator to remain at the service and sign in the children as they arrived.
d)The first educator collected six children, including the Treendale child, at about 3.05 pm and left them inside a room the service was using with the third educator. The first educator then left the room with an upset child and went to collect two more pre‑primary aged children. The first and second educators returned with all the other children around 3.15 pm. This was when the school teacher returned the Treendale child to the service.
e)The Treendale child was not adequately supervised by the service between collecting him from his classroom and when he was brought back to the service by the school teacher.
The following facts are agreed particular to the Bicton OSHClub proceeding:
a)On Friday 8 February 2019 a child three years and nine months of age at the time (the first Bicton child), was enrolled at the service for after school care. The first Bicton child was collected from his school classroom by one of the service educators at around 3.05 pm. However, at around 3.15 pm the first Bicton child was found by his kindergarten teacher and education assistant standing in front at around 3.25 pm of his classroom alone and unsupervised and took him to the room from which the Bicton OSHClub was operating. The first Bicton child had been left alone and unsupervised for about 10 minutes.
b)The Bicton OSHClub service educator failed to report the incident. The respondent became aware of the incident when the first Bicton child's mother complained after being informed of the incident by her older child who also attended the service.
c)On Wednesday 13 February 2019 a child three years and seven months of age at the time (the second Bicton child), was enrolled at the service for after school care. The second Bicton child was signed into the care of the service at 3.00 pm. At 3.45 pm the second Bicton child with 24 other children went to the outside play area with four educators supervising them.
d)At 4.15 pm the mother of the second Bicton child arrived in the school teachers' carpark to collect him and found him standing in the carpark alone and unsupervised. He had left the playground and got into the carpark sometime between 3.45 pm and 4.15 pm without any educators noticing his absence. There was a gap in the fence around the outside play area, opening on to the school teachers' carpark.
In relation to both proceedings, OSHClub submitted and the CEO accepted as a matter in mitigation that the three breaches of s 165(1) of the National Law did not arise from any wilful misconduct or mala fides. Further, the Treendale child has continued care at the Treendale OSHClub since the incident.
The following additional matters in mitigation applicable to both proceedings were also accepted by the CEO:
a)at all times, OSHClub had the required number of qualified staff working at each of the services; and
b)after the incidents OSHClub:
a.conducted thorough internal investigations at Treendale OSHClub and Bicton OSHClub;
b.provided comprehensive reports to the Department;
c.commenced implementing additional staff training;
d.cooperated with the Department's investigation; and
e.has shown genuine contrition and a desire to ensure similar incidents do not occur again.
Finally, it was agreed that OSHClub has two prior contraventions of s 165(1) of the National Law where, with consent of the parties, the Tribunal imposed penalties of $8,500 (VR 138 of 2015) and $12,000 (VR 54 of 2017).
The material facts of those two prior contraventions were detailed in OSHClub's submissions as follows:
a)In VR 138 of 2015, two children, aged five and six, were inadequately supervised and left the education and care service. The children were found by one of the children's parents approximately 25 minutes later on a nearby street. The service was unaware the children were missing until the parent telephoned them to state the children were with her.
b)In VR 54 of 2017 an eight year old child left the service unsupervised and walked to his home, where he was found by his sister. Upon being aware the child had left the service, a search was immediately conducted. The child was unsupervised somewhere between 19 and 42 minutes.
National Law
Section 3 of the National Law sets out the objectives and guiding principles of the legislation. Section 3(1) states that the objective of the National Law is to establish a national education and care services quality framework for the delivery of education and care services to children. The objectives include ensuring the safety, health and wellbeing of children attending education and care services and promoting continuous improvement in the provision of quality education and care services: see s 3(2)(a) and (c) of the National Law.
The guiding principles include that the best interests of the child are paramount and that best practice is expected in the provision of education and care services: see s 3(3)(a) and (f) of the National Law. Section 4 of the National Law provides that an entity that has functions under the National Law (this includes the Tribunal) is to exercise those functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in s 3.
Part 6 of the National Law provides for a range of offences (to be convicted by a court following a prosecution) arising from the operation of an education and care service, including s 165(1) which states as follows:
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.
Penalty:$10 000, in the case of an individual.
$50 000, in any other case.
Part 7 of the National Law provides for a range of ways that a regulatory authority can act to ensure compliance with the National Law such as the issuing of compliance directions and compliance notices. Further, Pt 7 includes provision for disciplinary action to be taken against a person in the Tribunal.
Relevantly, s 188AB(1)(a) of the National Law provides that grounds for disciplinary action exist against a person if it has failed to comply with the National Law. Relevantly, s 188(2) provides that if the regulatory authority considers that grounds for disciplinary action exist it may make an allegation to the Tribunal.
Pursuant to s 188AB(3) of the National Law, if the Tribunal is satisfied that grounds for disciplinary action exist it may make an order for one or more of the following: reprimand, a fine not exceeding $50,000 (subject to s 188AC(1)) and/or take certain actions or refrain from taking certain actions, to comply with the National Law.
The applicable principles in relation to a fine in such matters were set out by the Tribunal in Chief Executive Officer of the Department for Communities and Camp Australia Pty Ltd [2012] WASAT 56 at [23] ‑ [24], albeit in the context of a predecessor to the National Law, the Child Care Services Act 2007 (WA):
23In Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 (S) at [18] ‑ [21], the Tribunal identified the following principles in relation to penalty in disciplinary proceedings against a legal practitioner:
That the disciplinary jurisdiction is based on the protection of the public, including by maintaining professional standards, rather than punishment as such, is well established, particularly in serious cases where the issue is whether a practitioner may continue to be held out as fit to practice. The proceedings are not criminal in nature. A practitioner whose integrity is not in question but whose capability is impaired may, in the interests of the public, be precluded from practising. The object of protection of the public includes not only deterring the practitioner in question from future conduct the subject of the complaint, but also by publicly denouncing that conduct, deterring others who might be tempted to engage in it. The imposition of a fine of the nature which the LPCC proposes can only be understood as operating in the nature of a deterrent. Moreover, recent cases in Australia recognise that whilst the object of the proceedings is the protection of the public, the punitive effects on the practitioner are not to be ignored.
The principles applicable to sentencing (just punishment, specific and general deterrence, denunciation, protection of the community, rehabilitation) apply by analogy ‑ Quinn v Law Institute of Victoria Limited [2007] VSCA 122 at [29 ‑ 35]; NSW Bar Association v Meakes [2006] NSWCA 340 at [109 ‑ 114]; Law Society of NSW v Foreman (1994) 34 NSWLR 408 (Foreman) (reference to principles of double jeopardy, continuous course of conduct at 413, 417). That does not of itself operate to the benefit of the practitioner under investigation. Such factors may operate more severely against an individual practitioner than if regard is limited to the protection of the public (Foreman at 441 ‑ 446, 471).
As a practical matter, courts and tribunals dealing with the appropriate penalty in disciplinary proceedings often have regard to factors such as the gravity of the charge, the effect of the misconduct on the client, the practitioner's previous good character, her or his level of co¬operation with the regulating authority and the effect of the penalty (and an order for costs) in the circumstances. We are prepared to consider the practitioner's submissions of 'facts in mitigation' on this basis.
By the same principle, in determining penalty we take the view that we are required to consider all the material circumstances supporting and relating to the charges; that is, both the 'aggravating' as well as the 'mitigating' circumstances. The issue is not merely finding a penalty appropriate to the specific charge without regard to the facts supporting it, as the practitioner's submissions at some points appear to suggest.
24These principles are also applicable in disciplinary proceedings under the CCS Act. However, it is to be noted that the specific segment of the public that is to be protected by the present disciplinary proceedings is children who receive child care services and their parents (see the object of the CCS Act stated in s 5). Moreover, under s 6 of the CCS Act, the Tribunal 'must … regard the best interests of children as the paramount consideration'.
(emphasis added)
CEO and Camp Australia
In CEO and Camp Australia (1) and CEO and Camp Australia (2) the parties agreed facts and the respondent conceded that grounds for disciplinary action existed in that Camp Australia had contravened s 165(1) of the National Law by failing to ensure that all children being educated and cared for by its service were adequately supervised at all times the children were in the care of its service.
In CEO and Camp Australia (1) the Tribunal approached its task of determining the appropriate fine to impose with the following reasoning at [45] ‑ [54]:
45In the present matter, the child (aged 5) left the Coogee Service unsupervised, but did not leave the school grounds. The child's absence was noticed after less than five minutes, and the child was located after having been outside the supervision of the Coogee Service for between five and 10 minutes. The parties agreed mitigating circumstances are detailed at paragraphs 2.1 2.10.4 of the SAF.
46Based on the facts as agreed by the parties, the Tribunal considers the current matter to be of a lower level of seriousness than VR 207 of 2014, VR 4 of 2016, VR 49 of 2017, VR 5 of 2017, VR 60 of 2017, or VR 86 of 2017 and at about the same level of seriousness as VR 1 of 2015. Of particular relevance in the present matter is that, apart from the age, the child had no particular vulnerabilities, the child did not leave the school premises, and the Coogee Service identified that the child was absent after a very short period of time, and took immediate steps to locate the child.
47The parties agree that the respondent has shown genuine remorse and contrition for the incident and that the contravention did not occur through wilful misconduct, neglect or malice on the part of the Coogee Service or its employees. The respondent has also conducted an internal investigation which resulted in the respondent modifying its supervision procedures to ensure that future contraventions are avoided.
48Factoring in all of these facts and circumstances (but not the impact of the respondent's other contraventions of s 165(1) of the National Law), the Tribunal considers the appropriate fine to be $7,000. This figure is congruent with both the respondent's and the applicant's assessments of the seriousness of the current contravention. It also reflects that fines agreed by the parties in recent matters have increased somewhat over the past few years.
49The remaining factor to be considered is the relevance of the respondent's other contraventions of s 165(1) of the National Law. The applicant maintains that such disciplinary history is relevant because it involved contraventions which were not isolated incidents, sharing factual similarities and occurring in a relatively close timeframe. The applicant maintains that the existence of these contraventions increases the objective seriousness of the respondent's contravening behaviour, and demonstrates that 'consideration of the present contraventions alone is unlikely to act as a sufficient specific deterrent to the respondent'. The applicant maintains that it would be contrary to the protective purpose of the National Law, and have the consequence of undermining public confidence, for factually similar contraventions of the same provision of the National Law, by the same respondent, within a three to four year period, to be treated as irrelevant in determining the appropriate penalty in this case: ASupS at paragraph 9.
50The Tribunal agrees with the applicant that prior contraventions of the same provision of the National Law are not irrelevant in determining the appropriate fine. The task for the Tribunal is to consider what weight such contraventions should have in assessing the seriousness of the current contravention, in all the facts and circumstances. The Tribunal agrees with the applicant's submission that an important factor is whether such contraventions were isolated incidents.
51The respondent is an education and care services provider operating 87 separate education and care services throughout WA and managing 13,465 bookings each week for children placed in those services. The respondent has, in the course of caring for these children, contravened s 165(1) of the National Law on three other occasions between 2014 and the present (including the contravention in the concurrent matter VR 171 of 2016).
52There are some factual similarities between the current matter and the other three incidents (particularly that in each case the education and care service was operated by the same corporate entity and in each case a child was unsupervised to the extent that it was able to leave the premises). However, the applicant has not tendered evidence of any other commonality. There is no evidence tendered of commonality of staffing, contravention of procedures, failure of equipment, or otherwise. The applicant has not tendered evidence of any specific systemic issues, or any pattern of neglect or systemic disregard for rules, systemic problems with supervision or management, or any other factors common. In the absence of facts of this nature, the Tribunal does not accept, as maintained by the applicant, that the facts are sufficiently similar or linked in a way that suggests the respondent's contraventions are not isolated instances.
53For these reasons, the Tribunal is satisfied (and so finds) that the respondent's other contraventions of s 165(1) of the National Law were isolated incidents. There is no basis on the evidence before the Tribunal to find that such contraventions negatively impact upon the respondent's worthiness or reliability to provide education and care services in the future. Accordingly, the Tribunal considers that the respondent's disciplinary history to be a matter of very limited weight in assessing an appropriate penalty. The Tribunal does not accept the applicant's submission that, in the present case, the contraventions significantly increase the objective seriousness of the respondent's contravening behaviour. The impact of the respondent's prior contraventions on the seriousness of the conduct in the present matter is nominal.
54For these reasons, and in all the facts, circumstances made available to the Tribunal, the Tribunal is satisfied that the fine imposed by the Tribunal in this matter should be $7,000. In the absence of a finding that the contraventions are related and not isolated, the Tribunal does not accept, as maintained by the applicant, that 'consideration of the present contraventions alone is unlikely to act as a sufficient specific deterrent to the respondent'.
In CEO and Camp Australia (2), apart from imposing a marginally higher fine of $8,500 based on the particular facts of the contravention in that proceeding, the Tribunal followed identical reasoning as in CEO and Camp Australia (1).
In both CEO and Camp Australia (1) and CEO and Camp Australia (2) the Tribunal approached the task of determining the appropriate consequential orders by first arriving at a calculation for the amounts of the fines based on the particular facts and circumstances of the contraventions of s 165(1) of the National Law along with a comparison of the fines imposed in other matters under s 65(1) of the National Law. The Tribunal then considered the impact, if any, that prior contraventions by Camp Australia should have on the ultimate fine and ultimately determined that the prior contraventions would have no impact on the amount of the fine imposed.
The CEO's submissions on the preliminary issue
In relation to the preliminary issue, the CEO submits, with all due respect, that the learned Member of the Tribunal in CEO and Camp Australia (1) gave too little weight to previous contraventions by a respondent in determining an appropriate penalty for a subsequent contravention of the same statutory provision by the same respondent.
In summary, the CEO submits that the reasoning in CEO and Camp Australia (1) should not be followed in the present two proceedings for the following reasons:
a)Prior disciplinary actions over contraventions by the same respondent of the same statutory provision are relevant and should be taken into account to the extent they demonstrate that the respondent has a relevant disciplinary history where current breaches share factual similarities with the previous contraventions.
b)The factual similarities of the present and prior breaches as well as their closeness in time means it cannot be found that they are breaches of an entirely 'isolated nature'.
c)Given the respondent has a relevant disciplinary history (and the breaches are not of an entirely isolated nature), the prior breaches are matters to be considered in determining the objective seriousness of the contravening behaviour (which is relevant to the question of penalty) and also demonstrates that consideration of the present breaches alone is unlikely to act as a sufficient specific deterrent to the respondent.
d)It would be contrary to the protective purpose of the National Law, and have the effect of undermining public confidence, for factually similar breaches of the same provision of the National Law, by the same respondent, within a three to four year period to be given little or no weight in the determination of the appropriate penalty in this case.
e)For comparative purposes, in CEO and Camp Australia (1) at [51], it was detailed that Camp Australia (at that time) operated 87 services and 13,465 bookings each week. OSHClub currently operates 114 services in Western Australia and manages on average 23,494 bookings each week for children placed in those services. They are both large service providers in Western Australia.
f)While a provider of many services statistically is perhaps more likely to risk contravening s 165(1) more often than a single service provider, a provider of many services is also more able to apply lessons learned from an incident at one service to the operations of its other services. A provider of many services takes on the responsibility to ensure adequate supervision across all its services, and therefore the risk it may not ensure adequate supervision in every service at all times they operate.
OSHClub's submissions on the preliminary issue
OSHClub conceded in relation to both proceedings, on the basis of the agreed facts described in Annexure A to the two consent orders, that there are grounds for disciplinary action to be taken against OSHClub in relation to the three contraventions outlined and it is open to (and appropriate for) the Tribunal to fine OSHClub in relation to both proceedings.
OSHClub submitted that the applicable reasoning derived from CEO and Camp Australia (1) at [50] and [52] is as follows:
a)Prior contraventions of the same provision of the National Law are not irrelevant in determining an appropriate fine.
b)The task for the Tribunal is to consider what weight such contraventions should have in assessing the seriousness of the current contravention, in all the facts and circumstances.
c)For this purpose, an important factor is whether such contraventions were isolated incidents.
d)The fact that factual similarities exist between the current contravention and prior contraventions is not itself determinative.
e)As to whether contraventions are considered isolated incidents, evidence that is tendered of commonality (other than any factual similarities) is determinative, namely: commonality of staffing, contravention of procedures, failure of equipment, or otherwise; any specific systemic issues, or any pattern of neglect or systemic disregard for rules, systemic problems with supervision or management, or any other common factors.
f)In the absence of evidence of this nature, it is open to the Tribunal to accept that the facts arising from the prior contraventions and an existing contravention before the Tribunal are not sufficiently similar or linked in any way and to support a finding that the prior contraventions and the existing contravention are isolated instances.
OSHClub submitted that the Tribunal in the two present proceedings should follow the Tribunal's reasoning in CEO and Camp Australia (1) and further submitted, in summary, as follows:
a)The current contraventions and the prior contraventions are all isolated incidents, and should therefore not go towards assessing the seriousness of the current contravention (and consequentially the quantum of the relevant penalty to be imposed). In support of this submission, OSHClub submits further that:
a.OSHClub is an education and care services provider operating 88 services in Western Australia and managing 14,100 bookings each week across before school care, after school care and pupil free day care for children placed in those services;
b.Treendale OSHClub manages 179 bookings each week for children which equates to 7,150 bookings per year; and
c.Bicton OSHClub manages 192 bookings each week for children which equates to 7,680 bookings per year.
b)In response to the CEO's submission that in light of the factual similarities of the current contraventions and the prior contraventions it cannot be said they are breaches of an entirely 'isolated' nature', OSHClub submits this reasoning has no basis in view of the legal principle set out in CEO and Camp Australia (1) at [52] that factual similarities alone is not determinative (when there is no evidence of commonality).
c)In any event, OSHClub submits the factual similarities are limited to there being an incident where there was inadequate supervision and there are no prior contraventions involving the same service, which is the subject of the current contraventions.
d)The timing of the prior contraventions is irrelevant, and were in any event some two and three years earlier at wholly separate and unconnected services.
e)The CEO does not provide any basis or adduce any evidence which establishes elements of any commonality, having regard to the terms considered determinative by the Tribunal in CEO and Camp Australia (1) at [52].
f)OSHClub says there is no such commonality.
g)For these reasons, and consistent with the Tribunal's findings in CEO and Camp Australia (1), the OSHClub submits:
a.it is open (and appropriate for) the Tribunal to find that the prior contraventions, and the current contraventions are isolated incidents;
b.the respondent's disciplinary history is of very limited weight in assessing an appropriate penalty; and
c.the impact of the respondent's prior contraventions on the seriousness of the conduct in the present matters is nominal.
Consideration of the preliminary issue
It is worth noting that the determination of the preliminary issue in these proceedings is not an appeal of the two decisions of the Tribunal in CEO and Camp Australia (1). It is trite to say, however the Tribunal will also note, where there is an exercise of discretion by the Tribunal, particularly when considering factors relevant to the action to be taken under s 188AB(3), most commonly the imposition of a fine (often referred to as a 'penalty'), the decision often turns on the particular facts and circumstances of the particular case.
The preliminary issue which arises for determination in both proceedings is, in the exercise of its discretion as to the appropriate consequential orders to make in the present two proceedings, whether the Tribunal should follow any of the reasoning or statements of principle set out in CEO and Camp Australia (1).
The Court of Appeal in Mustac v Medical Board of Western Australia [2007] WASCA 128 has made it clear that, although principles of good administration and consistency of decision‑making may be relevant to the approach taken, judicial comity does not apply between Tribunal decision‑makers. His Honour Martin CJ (Wheeler JA and Buss JA agreeing) found at [37] ‑ [38] that:
Judicial Comity
37The Tribunal cited no authority for the assertions contained in [63] of the reasons for decision (set out above), which are at the heart of the Tribunal's determination. When regard is had to authority, those assertions cannot be sustained for three reasons:
(a)judicial comity is a practice which applies to the law to be applied at the point of decision – usually final but conceivably also to interlocutory decisions - it does not operate as a legal principle confining the scope of the issues open to parties to proceedings;
(b)judicial comity does not operate as between decisions of courts and decisions of administrative tribunals although principles of good administration and consistency of decision may be relevant to the approach properly taken by an administrative tribunal;
(c)judicial comity has no operation in relation to issues of fact.
38The practice of judicial comity is, of course, distinct from, but related to, the doctrine of precedent (or stare decisis) which compels each court in a judicial hierarchy to follow and apply decisions of any court higher in that hierarchy on questions of law. The practice of judicial comity applies to augment that doctrine by creating a non binding practice applicable to decisions of courts of co ordinate jurisdiction, or as between a court in one judicial hierarchy, and a court at the same or a higher level in another judicial hierarchy, and provides that questions of law should usually (but not always) be determined the same way. The practice was described well by Justice Burchett in La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 in the following terms at page 204:
"The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while 'deserving of the closest and respectful consideration', does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that 'a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong': Halsbury, 4th ed, vol 26, para 580. The word 'usually' indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle. (For example, it has been suggested that decisions upon the effect of sections of the Income Tax Assessment Act 1936 (Cth) present a special need for consistency: Rabinov v FCT 82 ATC 4517 at 4523. Understood as expressing a usual or general rule, the following statement of Rogers J in Hamilton Island Enterprises Pty Ltd v FCT [1982] 1 NSWLR 113 at 119 is consistent with the proposition I have quoted from Halsbury:
'In my view it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising federal jurisdiction should strive for uniformity in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of coordinate authority was clearly wrong I would follow his decision.'"
His Honour Martin CJ went on to consider the authorities and concluded that:
46These authorities amply sustain the three propositions which I have set out above, namely:
(a)judicial comity is a practice, not a legal principle, the practical application of which will vary depending upon the individual circumstances of the cases in question - so it could never operate to constrain the issues to be litigated as between parties and only arises when all the evidence and argument relevant to the question under consideration has been received;
(b)the practice only applies as between courts of coordinate jurisdiction or to a situation in which a court is being asked to follow a decision of another court at an equivalent level or higher in a comparable judicial hierarchy; and
(c)the practice is limited to questions of law, and has no application to questions of fact.
47In [63] of its reasons for decision (which I have set out above), the Tribunal appears to have attached some significance to the fact that it was constituted by the President, who is a judge of the Supreme Court, when assessing the nature of the relationship between previous decisions of the Supreme Court and issues arising in the Tribunal. With respect, this approach seems to me to be wrong in principle.
48The Tribunal is an administrative tribunal, not a court. It is obviously bound to apply the law of the State. Not only is that proposition obvious, but it is inherent in sections such as s 59 and s 105 of the SAT Act, which deal with the resolution of questions of law. The law of the State is enunciated by the courts of the State, including the Supreme Court and the High Court. When questions of law arise for determination in the Tribunal, the Tribunal is required to apply the law as enunciated by the State courts and the High Court, at least by any court in the appellate structure above the Tribunal - see Re Adams and The Tax Agents' Board (1976) 12 ALR 239; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
To the extent that it can be said that any principles can be derived from the Tribunal's decision in CEO and Camp Australia (1) on the facts and circumstances of those two proceedings, such as those elicited by the respondent in its submissions, the Tribunal in these two present proceedings declines to follow any such principles.
The Tribunal does agree with the statement of principle made in the submissions by the CEO in the two current proceedings, submissions which were also made in CEO and Camp Australia (1) (see also [16]) and again summarised by the Tribunal in that decision at [49] as follows:
The remaining factor to be considered is the relevance of the respondent's other contraventions of s 165(1) of the National Law. The applicant maintains that such disciplinary history is relevant because it involved contraventions which were not isolated incidents, sharing factual similarities and occurring in a relatively close timeframe. The applicant maintains that the existence of these contraventions increases the objective seriousness of the respondent's contravening behaviour, and demonstrates that 'consideration of the present contraventions alone is unlikely to act as a sufficient specific deterrent to the respondent'. The applicant maintains that it would be contrary to the protective purpose of the National Law, and have the consequence of undermining public confidence, for factually similar contraventions of the same provision of the National Law, by the same respondent, within a three to four year period, to be treated as irrelevant in determining the appropriate penalty in this case: ASupS at paragraph 9.
Therefore, having found to the extent that any principles can be elicited from CEO and Camp Australia (1) I respectfully decline to follow any such principles or reasoning, it follows that the Tribunal does not agree with many of the submissions advanced by OSHClub in both of these proceedings.
For example, the Tribunal does not agree with OSHClub's proposition that the CEO's submission is incorrect, that in light of the factual similarities of the current contraventions and the prior contraventions it cannot be said they are breaches of an entirely 'isolated nature'. The Tribunal finds, where there are factual similarities of prior contraventions of the same provision of the National Law by the same approved provider (that is, OSHClub, not one of its individual services) that are proximate in time to the present contraventions these contraventions cannot be found to be of an isolated nature. The Tribunal further finds that even if that approved provider is large, generally, such prior contraventions also cannot be found to be of an isolated nature.
Further, the Tribunal does not agree with OSHClub's submission that the factual similarities are limited to there being an incident where there was inadequate supervision and there are no prior contraventions involving the same service, which is the subject of the current contraventions. Firstly, the incidents (both prior and present) are factually very similar in nature. They all involve a child wandering off and away from supervision albeit for somewhat different periods of time. Further, all but one incident involves the educators being unaware the child was missing. The Tribunal finds, therefore, that the incidents (both prior and present) are not of an entirely isolated nature.
Secondly, the Tribunal finds that Treendale OSHClub and Bicton OSHClub are not wholly separate and unconnected services. Both services, as do the services involved with the prior contraventions, exist within the 'legal umbrella' of OSHClub as the approved provider. The 'person' (which at law includes a proprietary limited company) against whom the allegations of grounds for disciplinary action exist is OSHClub. The 'trading as' component of the party name in each of the present proceedings is simply a descriptor of which service the proceedings relate to and does not alter the subject of the allegations that disciplinary matters exist. The subject of the allegations is OSHClub.
The Tribunal further finds that it cannot agree with the submission from OSHClub that the CEO does not provide any basis or adduce any evidence which establishes elements of any commonality, having regard to the terms considered determinative by the Tribunal in CEO and Camp Australia (1) at [52]. To accept this proposition would result in a strange scenario that the evidence required to establish commonality of prior contraventions would be more onerous than the evidence required for determining final orders proposed by consent. The Tribunal finds, in circumstances where the Tribunal has previously made final orders in accordance with annexed agreed facts, that generally those facts would be more than sufficient evidence for determining the relevance of prior contraventions to any present proceedings and the extent of any commonality.
The Tribunal finds it is relevant in determining the appropriate sanction that a provider of many services statistically is perhaps more likely to risk contravening s 165(1) of the National Law more often than a single service provider. However, it is also relevant that a provider of many services is also more able to apply lessons learned from an incident at one service to the operations of its other services. Moreover, the Tribunal finds that a provider of many services takes on the responsibility to ensure adequate supervision of the children being cared for across all its services as well as the risk, in circumstances where adequate supervision is not provided, that an allegation that grounds for disciplinary action exist may follow.
Conclusion
The Tribunal concludes in answer to the preliminary issue that, to the extent that any principles can be derived or reasoning followed in CEO and Camp Australia (1), the Tribunal in these two proceedings declines to follow any such principles or reasoning.
Based on the agreed facts, the Tribunal is satisfied, and so finds, that grounds for disciplinary action exist in both proceedings in that s 165(1) of the National Law was contravened on three occasions, namely the one incident at Treendale OSHClub and the two incidents at Bicton OSHClub where on all occasions OSHClub failed to ensure that all children being educated and cared for by the service were adequately supervised at all times the children were in the care of the service. The Tribunal will make orders to that effect relevant to each proceeding.
In accordance with the agreed approach at the directions hearing on 23 September 2019, the Tribunal will now hear from the parties as to the appropriate consequential orders to be made pursuant to s 188AB(3) of the National Law. The matters will now be listed together for a further directions hearing. However, in the meantime, the Tribunal requests that the parties confer with each other as to the appropriate programming orders to be made. The Tribunal invites both parties to again confer to ascertain whether consent orders can be agreed and proposed, or a mediation sought in the Tribunal, or for the consequential orders to be determined on the documents with appropriate programming orders for the exchange of submissions and evidence in support.
Orders
For proceeding VR 77 of 2019, the Tribunal orders as follows:
1.Grounds exist for disciplinary action against the respondent under s 188AB(1)(a) of the Education and Care Services National Law (WA) Act 2012 in that on 11 February 2019 it contravened s 165(1) of the Education and Care Services National Law (WA) Act 2012 by failing to ensure that all children being educated and cared for by its Treendale OSHClub service were adequately supervised at all times the children were in the care of its service.
2.The matter is listed for a directions hearing at 2.00 pm on 15 November 2019 in the State Administrative Tribunal building at 565 Hay Street, Perth.
For proceeding VR 82 of 2019, the Tribunal orders as follows:
1.Grounds exist for disciplinary action against the respondent under s 188AB(1)(a) of the Education and Care Services National Law (WA) Act 2012 in that on 8 and 13 February 2019 it twice contravened s 165(1) of the Education and Care Services National Law (WA) Act 2012 by failing to ensure that all children being educated and cared for by its Bicton OSHClub service were adequately supervised at all times the children were in the care of its service.
2.The matter is listed for a directions hearing at 2.00 pm on 15 November 2019 in the State Administrative Tribunal building at 565 Hay Street, Perth.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS D QUINLAN, MEMBER
31 OCTOBER 2019
0
13
4