CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR COMMUNITIES and CAMP AUSTRALIA PTY LTD
[2012] WASAT 56
•23 MARCH 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: CHILD CARE SERVICES ACT 2007 (WA)
CITATION: CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR COMMUNITIES and CAMP AUSTRALIA PTY LTD [2012] WASAT 56
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
HEARD: 14 MARCH 2012
DELIVERED : 23 MARCH 2012
FILE NO/S: VR 3 of 2012
BETWEEN: CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR COMMUNITIES
Applicant
AND
CAMP AUSTRALIA PTY LTD
Respondent
Catchwords:
Disciplinary proceedings - Child care services - Jurisdiction - Whether allegation can be made to SAT that grounds for disciplinary action against a licensee exist because of a breach of the legislation that occurred prior to SAT acquiring jurisdiction to entertain such an application - Proper interpretation of legislation having regard to its object to protect, and promote the best interests of, children who require child care services - Provision of child care services at seven facilities without any supervising officer being present in breach of license conditions and in contravention of legislation - Failure to immediately notify applicant in writing when the supervising officer at six facilities resigned in contravention of legislation - Admission of contraventions of legislation and that grounds for disciplinary action exist - Penalty - Applicable principles in relation to penalty - Just punishment - Specific and general deterrence - Protection of children who receive child care services and their parents - Best interest of children paramount consideration - Aggravating circumstances Contraventions continued for substantial periods of time Contraventions continued despite written warnings in relation to five facilities Mitigating circumstances - Admission of contravention and cooperation with investigation - Early admission of liability in proceeding - Severe skills shortage in child care sector - Long history of statutory compliance - No evidence of failure to promote best interests of children - Provision of essential service - Whether, in addition to payment of a monetary penalty, respondent should be required to display a notice at each of the facilities advising parents of the Tribunal's determination that grounds for disciplinary action exist in relation to respondent and of the penalty imposed - Costs
Legislation:
Child Care Services (Outside School Hours Care) Regulations 2006 (WA), reg 11(c), reg 20(1)(c), reg 87(2)
Child Care Services Act 2007 (WA), s 3, s 5, s 6, s 7(b)(i), s 12, s 16(2)(d), s 18, s 20, s 24(c), s 29, s 30A, s s 32(1)(b), s 45(1), s 45(1)(a), s 52, s 56(2)
Child Care Services Amendment Act 2011 (WA)
Child Care Services Regulations 2007 (WA), reg 6C, reg 6F, reg 6G
Fisheries Act 1952 (Cth), s 9, s 9A(3A)
Interpretation Act 1994 (WA), s 46(1)
State Administrative Tribunal Act 2004 (WA), s 87(2)
Result:
Penalty of $52,500 imposed
Respondent to pay applicant's costs assessed at $2,066
Category: B
Representation:
Counsel:
Applicant: Mr DF Oliver
Respondent: Mr MJ Hardy
Solicitors:
Applicant: Department for Child Protection
Respondent: Hardy Bowen
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
La Macchia v Minister for Primary Industry (1986) 72 ALR 23
Legal Practitioners Complaints Committee and Tomlinson [2005] WASAT 214 (S)
Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 (S)
Legal Profession Complaints Committee and Love [2011] WASAT 13
Maxwell v Murphy (1957) 96 CLR 261
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On the same day that the Tribunal acquired jurisdiction to consider an allegation made by the Chief Executive Officer of the Department for Communities under the Child Care Services Act 2007 (WA) that grounds for disciplinary action exist in respect of a licensee under that Act, the Chief Executive Officer commenced this proceeding for such a finding and consequent disciplinary penalty against Camp Australia Pty Ltd. The Chief Executive Officer alleged that Camp Australia Pty Ltd had committed 13 contraventions of the child care services legislation relating to the failure to ensure that a 'supervising officer' was present at each of seven child care facilities, and further, the failure to immediately notify the Chief Executive Officer in writing when the supervising officers at six facilities resigned.
Camp Australia Pty Ltd admitted that it had committed each of the 13 contraventions and, consequentially, the Tribunal was only called upon to decide the appropriate penalty.
However, before the matter of penalty could be determined, the Tribunal had to consider whether it had jurisdiction to entertain the disciplinary proceeding at all, given that at the time when the contraventions of the legislation took place, the Chief Executive Officer did not have the ability to refer the matter to the Tribunal. The Tribunal agreed with the joint contention of the parties that it had jurisdiction to entertain the proceeding as the enabling Act did not, expressly or by implication, require that a contravention founding an allegation that grounds for disciplinary action exist had to occur after the commencement of the enabling Act.
In determining the appropriate monetary penalty, the Tribunal found that a penalty of $15,000 in relation to each of the seven contraventions of failing to ensure that a supervising officer was present at all times, totalling $105,000, would be appropriate, absent mitigating considerations. The Tribunal considered that no additional penalty should be imposed for the failure to notify the Chief Executive Officer of the resignations of supervising officers, because these contraventions formed, in substance, part of the same conduct as the other breaches. The Tribunal determined that mitigating considerations, including, most significantly, Camp Australia Pty Ltd's immediate acceptance and acknowledgement of the contraventions, cooperation with the investigation, carrying out of a substantial internal restructure to ensure that no further contraventions will take place in the future, and early admission of liability in the proceeding, and also a severe skills shortage, a long history of satisfactory compliance, no evidence that the objectives of the legislation were contravened, and the provision of an essential service for families with working parents, warrant a substantial reduction in the monetary penalty by half, to $52,500.
The Chief Executive Officer also submitted that Camp Australia Pty Ltd should be required to display a notice at the relevant child care facilities advising parents of the findings of the Tribunal. However, the Tribunal considered that this was not necessary, because the substantial monetary penalty imposed adequately achieved the protective purpose of the proceeding.
The Tribunal also ordered Camp Australia Pty Ltd to pay the Chief Executive Officer's legal costs in the amount of $2,066.
Introduction
On 9 January 2012, the Child Care Services Amendment Act 2011 (WA) (Amendment Act) commenced operation and amended or inserted a large number of provisions in the Child Care Services Act 2007 (WA) (CCS Act). Prior to the commencement of the Amendment Act, s 29(2) of the CCS Act enabled the Chief Executive Officer of the Department for Communities (CEO), if the CEO considered that grounds for cancellation of a licence for the provision of a child care service under the CCS Act existed, to refer the matter to the State Administrative Tribunal (SAT or Tribunal). Section 29(4) of the CCS Act provided that SAT could, if it was satisfied that grounds for the cancellation of a licence existed, cancel the licence.
The Amendment Act repealed and replaced s 29 of the CCS Act. Section 29(3) of the CCS Act now states as follows:
If the CEO considers that grounds for disciplinary action against a licensee exist, the CEO may make an allegation to the State Administrative Tribunal in respect of that person.
Under s 29(2) of the CCS Act, grounds for disciplinary action exist against the licensee if, among other things, the licensee has contravened the CCS Act (para (b)). Under s 46(1) of the Interpretation Act 1984 (WA), the reference to the contravention of the CCS Act in s 29(2)(b) of the CCS Act includes a contravention of any subsidiary legislation made under the CCS Act, including, relevantly, the Child Care Services (Outside School Hours Care) Regulations 2006 (WA) (OSHC Regulations), which, while preexisting the CCS Act, have effect under s 56(2) of the CCS Act as if made under s 52 of the CCS Act.
Section 29(4) of the CCS Act states, in part, as follows:
In proceedings commenced by an allegation under subsection (3) in respect of a person, the State Administrative Tribunal, if satisfied that grounds for disciplinary action exist, may make one or more of the following orders
(a)an order reprimanding the person;
(b)an order that the person
…
(iii) comply with any other specified requirement;
…
(d)subject to section 30A, an order requiring the person to pay a penalty not exceeding $25 000;
…
(g)an order cancelling a licence held by the person.
Section 30A of the CCS Act provides that SAT's power to impose a penalty under s 29(4)(d) of the CCS Act and the power of a court to impose a penalty for an offence under the CCS Act must not both be exercised in respect of an act or an omission of a person that is substantially the same (subsection (1)), and that SAT may not impose a penalty under s 29(4)(d) that exceeds the relevant maximum fine that a court could impose for the offence (subsections (2) and (3)).
On the same day that the Amendment Act commenced operation, the CEO made an allegation to SAT, pursuant to s 29(3) of the CCS Act, in respect of Camp Australia Pty Ltd (Camp), which is a licensee under the CCS Act, because the CEO considered that grounds for disciplinary action exist against Camp. In particular, the CEO alleged, and Camp admitted, that grounds for disciplinary action exist against Camp because Camp contravened:
•s 20 of the CCS Act, which provides that a licensee who contravenes a condition of a licence commits an offence, by breaching a condition imposed on every licence under s 18 of the CCS Act 'that the supervising officer for the child care service is present at the place where the service is provided at the times when the service is provided', at each of seven facilities where it provided child care services, namely:
•Cottesloe (between 20 May 2010 and 24 May 2011, other than during four periods of school holidays);
•North Morley (between 10 September 2010 and 24 May 2011, other than during two periods of school holidays);
•Swanbourne (between 24 January 2010 and 16 May 2011);
•Rockingham Beach (between 20 April 2010 and 24 June 2011, other than during five periods of school holidays);
•Freshwater Bay Beach (between 12 October 2010 and 25 May 2011, other than during three periods of school holidays);
•Christchurch Grammar (between 18 October 2010 and 15 June 2011, other than during two periods of school holidays); and
•Richmond (between 18 October 2010 and 4 August 2011, other than during three periods of school holidays); and
•reg 20(1)(c) of the OSHC Regulations, which provides that a licensee must immediately notify the CEO in writing if, relevantly, 'the supervising officer dies, is dismissed, resigns, retires or becomes incapable of being responsible for the supervision and control of the outside school hours care service', by failing to immediately notifying the CEO in writing when the supervising officer at each of six facilities resigned, namely:
•Cottesloe (after 19 May 2010);
•North Morley (after 9 September 2010);
•Swanbourne (after 24 January 2011);
•Rockingham Beach (after 1 April 2010);
•Freshwater Bay Beach (after 24 September 2010); and
•Christchurch Grammar (after 24 September 2010).
At the time when Camp committed these thirteen contraventions of the CCS Act, the term 'supervising officer' for a child care service was defined by s 3 of the CCS Act to mean, relevantly:
(i)the person specified in the licence document relating to the service as the person responsible for the daytoday supervision and control of the service; or
(ii)a person appointed under the Regulations to act in place of the person referred to in subparagraph (i).
It appears that, at or prior to the first (and only) directions hearing in this proceeding, which took place before the President on 17 January 2012, Camp admitted that it committed the thirteen contraventions of the CCS Act and that, therefore, grounds for disciplinary action exist against it. The President listed the matter of penalty for final hearing on 14 March 2012. However, before considering the issue of penalty, I must determine whether the Tribunal has jurisdiction to entertain this disciplinary proceeding.
Does the Tribunal have jurisdiction?
At the time when Camp committed the thirteen breaches of the CCS Act, the CEO could not make an allegation to SAT that grounds for disciplinary action exist against Camp, and the Tribunal did not have jurisdiction to entertain proceedings commenced by such an allegation, because the CCS Act did not contain what is now s 29 of that Act. However, the allegation by the CEO to SAT that grounds for disciplinary action exist against Camp was made under s 29(3) of the CCS Act after the commencement of that provision. Furthermore, as noted earlier, under s 29(2)(b) of the CCS Act, grounds for disciplinary action exist against a licensee if the licensee has contravened the CCS Act, and Camp admits that it has contravened the CCS Act in the thirteen respects referred to earlier.
It is common ground between the parties that the Tribunal has jurisdiction to entertain this proceeding. The jurisdiction of the Tribunal cannot be assumed or acquired by consent. However, I agree with the joint position of the parties that the Tribunal has jurisdiction in this case.
Section 29 of the CCS Act does not, either expressly or by implication, require that, in order for the Tribunal to entertain an allegation made by the CEO that grounds for disciplinary action exist against a licensee, because of the licensee's contravention of the CCS Act, that the contravention must have occurred after the commencement of that section. Indeed, having regard to the object of the CCS Act, 'to protect, and promote the best interests of, children who receive child care services' (s 5), the apparent legislative intention of s 29 is to enable the CEO to make allegations to SAT that grounds for disciplinary action exist in the circumstances of this case. The making of an allegation that grounds for disciplinary action exist, and the range of orders that SAT may impose under s 29(4) of the CCS Act if satisfied that grounds for disciplinary action exist, plainly serve to protect, and promote the best interests of, children who receive child care services.
This interpretation is supported by the decision of the full Federal Court in La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (La Macchia). Mr La Macchia was the holder of a master fisherman's licence and was one of the holders of a fishing boat licence. On 13 June 1985, Mr La Macchia was convicted of an offence against the Fisheries Act 1952 (Cth) (Fisheries Act). On 31 August 1985, the Fisheries Act was amended to include new s 9A(3A) which enabled the Minister to cancel a licence granted under s 9 of that Act if the holder of the licence was convicted of an offence against the Fisheries Act. On 14 October 1986, the Minister decided to cancel Mr La Macchia's licences. Mr La Macchia appealed to the Administrative Appeals Tribunal (AAT), which, in substance, confirmed the Minister's decision. Mr La Macchia appealed from the AAT's decision to the full Federal Court.
In La Macchia at 2627, Toohey J, with whom Bowen CJ agreed at 24, said:
… while the Minister could not have given a notice prior to the subsection coming into operation, he was not constrained thereafter to rely upon a conviction that itself occurred after the subsection commenced operation. The commission of an offence, whether before or after 31 August 1985, is a circumstance warranting the giving of a notice under subs (3A). The order does not have retrospective effect simply because it relies upon conduct that occurred before the power existed: see Re A Solicitor's Clerk [1957] 1 WLR 1219 at 1222; O'Neill v Reid [1959] NZLR 331 at 3356; Customs and Excise Commissioners v Thorn Electrical Industries Ltd [1975] 1 All ER 439 at 4478.
The third member of the full Federal Court in La Macchia, French J (as the Chief Justice of Australia then was), referred at 33 to the statement of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267 that:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
His Honour then held at 33 as follows:
The fact that the power to cancel a licence under s 9A(3A) is conditioned upon a class of past events, does not mean that the inclusion in that class of events which predated the law, renders its operation retrospective.
Similarly, in this case, s 29 of the CCS Act does not have any impermissible retrospective operation, by affecting rights or liabilities which the law had defined by reference to past events, but rather enables the CEO to make an allegation to SAT that grounds for disciplinary action exist against a licensee because the licensee contravened the CCS Act (or the OSHC Regulations) prior to the commencement of s 29 of the CCS Act.
The Tribunal, therefore, has jurisdiction to entertain this proceedings.
Applicable principles in relation to penalty
In 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:
18That 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.
19The 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).
20As 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.
21By 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.
These 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'.
What is the appropriate monetary penalty absent mitigating circumstances?
The parties agree that a monetary penalty under s 29(4)(d) of the CCS Act is warranted in the circumstances of this case. The CEO submitted that, for reasons of both personal deterrence for Camp not to reoffend and for general deterrence in the child care services sector, 'the Tribunal should set a high monetary penalty at a substantial percentage of the maximum [penalty]'. The maximum monetary penalty for the 13 contraventions of the CCS Act is $235,000 (seven contraventions of s 20 at $25,000 per contravention, that is $175,000, and six contraventions of reg 20(1)(c) at $10,000 per contravention, that is $60,000). The CEO submitted that a penalty of $100,000 would be appropriate, taking into account the mitigating circumstances of the early admission of the allegations and cooperation with the CEO's investigation.
Camp submitted that, having regard to six mitigating circumstances referred to below, a penalty of $35,000 would be appropriate. Camp submitted that $35,000 is a 'substantial penalty' that would sufficiently satisfy the requirements for personal and general deterrence in the sector.
The condition of every licence under the CCS Act that the licensee must ensure that the supervising officer for the child care service is present at the place where the service is provided at all times, imposed by s 18 of the CCS Act, is a key provision of the legislation. It is the only licence condition expressly stipulated in the CCS Act itself. Furthermore, this condition cannot be changed, removed, or the subject of an exemption: see s 24(c), s 32(1)(b) and s 45(1)(a) of the CCS Act.
To be a 'supervising officer', a person must be approved by the CEO, having regard to the best interests of children as the paramount consideration (s 6 of the CCS Act). In order to approve a person as a supervising officer, the CEO must be satisfied that the person is a fit and proper person to be involved in the provision of a child care service, and that the person has the ability to supervise and control, on a daytoday basis, the provision of the child care service: see s 16(2)(d) of the CCS Act prior to 9 January 2012 and reg 6C Child Care Services Regulations 2007 (WA) (CCS Regulations) from 9 January 2012. In considering whether to approve a person as a supervising officer, the CEO has regard to the person's academic qualifications and experience: see reg 11(c) OSHC Regulations and s 12 of the CCS Act prior to 9 January 2012 and reg 6C, reg 6F and reg 6G of the CCS Regulations from 9 January 2012.
Thus, the breaches of licence conditions (and, therefore, the contraventions of the CCS Act) in this case are fundamental and substantive.
Furthermore, an 'aggravating' circumstance in relation to penalty in this case is that the contraventions of s 20 of the CCS Act, in consequence of the breaches of the conditions imposed by s 18 of the CCS Act, continued for substantial periods of time, ranging from 108 days to 341 days, at the seven facilities. The average period of contravention at the facilities in question was almost six months. A further 'aggravating' circumstance is that Camp continued to operate child care services without supervising officers being present despite the CEO's written warnings in relation to five of the facilities, for approximately one month, (in one case), two months (in two cases), three months (in two cases) and six months (in one case).
Having regard to the fundamental and substantive breaches of licence conditions (and therefore contravention of the CCS Act) and the two aggravating circumstances referred to, in my view, absent mitigating circumstances discussed below, a penalty of $15,000 in respect of each of the seven contraventions of s 20 of the CCS Act is warranted, resulting in a total penalty of $105,000. Although Camp's failure to comply with its obligation under reg 20(1)(c) of the OSHC Regulations to immediately notify the CEO in writing if the supervising officer at a service resigns, which occurred in six cases, involves six additional contraventions of the CCS Act, these six contraventions formed, in substance, part of the same conduct as the contraventions of the licence conditions. In my view, therefore, no additional penalty should be imposed in consequence of the six contraventions of reg 20(1)(c) of the OSHC Regulations, in the circumstances of this case.
Mitigating circumstances
Camp submitted that the monetary penalty that would otherwise be imposed should be reduced on account of essentially six mitigating circumstances, which can be summarised as follows:
•Upon becoming aware of the contraventions, Camp immediately accepted and acknowledged that it had breached the legislation, fully cooperated with the CEO's investigation, and, at the earliest opportunity in this proceeding, admitted liability;
•Camp carried out an internal investigation that revealed that the principal reason for the contraventions was due to the absence of its regional manager on maternity leave, and it has substantially restructured its operations in Western Australia to ensure that no further contraventions will take place, with no further contraventions having taken place in the interim;
•the contraventions came about due to a severe skills shortage, with 59% staff turnover ratio in 2010 and 36% staff turnover ratio in 2011, which Camp acknowledged 'does not exonerate [it] from its obligations from the Act', but contended 'is a material mitigating factor … [and] highlights the absence of any [wilful] misconduct or mala fides';
•Camp is a major operator in the child care services sector in Australia, currently operating 372 child care service facilities and employing approximately 2,500 permanent employees, with a long history of statutory compliance 'as a good corporate citizen';
•There is no evidence that the contraventions have caused the objectives or guiding principles of the CCS Act to be contravened, nor is there any evidence of any complaints by parents regarding the quality of child care services during the periods of the contraventions; and
•Camp provides an essential service for families with working parents and, consequently, had the facilities in question ceased operation while there was no supervising officer present at the relevant facility, it would have had a 'catastrophic effect' for these families.
The CEO did not dispute any of these mitigating factors, other than the shortage of available staff, which the CEO submitted 'provides for no excuse', because the language of s 18 of the CCS Act is unequivocal and the service cannot legally be provided unless a supervising officer is present at the time and place the service is operated.
In my view, the mitigating circumstances identified by Camp, in aggregate, warrant a substantial reduction in the monetary penalty that would otherwise be imposed. The mitigating circumstances referred to in the first and second bullet points above are the most significant factors. These circumstances demonstrate a genuine consciousness of wrongdoing, contrition and a desire and effort to ensure that the breaches will not be repeated. They also show that there is little need for specific deterrence of Camp from engaging in the same conduct again. The extent of Camp's consciousness of wrongdoing, and desire and effort to ensure that it is not repeated, is apparent from the fact that, bearing in mind its size, its Chief Executive Officer became personally involved in remedying the contraventions and attended an interview with representatives of the CEO. Significantly, also, Camp acknowledged and admitted the breaches at the earliest opportunity in this proceeding, and this has enabled the matter to be satisfactorily resolved promptly and with minimal cost to the State.
The circumstances referred to in the third, fourth, fifth and sixth bullet points above, while not as significant as the circumstances referred to in the first and second bullet points, are still, in my view, relevant mitigating factors that warrant some reduction in penalty. While the CEO rejected the skills shortage as a relevant factor, in my view, the skills shortage suffered by Camp was extreme and to simply close the facilities, which otherwise appear to have operated satisfactorily, because of the absence of a supervising officer, would arguably not have been in the best interests of the displaced children and their parents.
In my view, in consequence of the mitigating circumstances, and most significantly the circumstances referred to in the first and second bullet points above, the monetary penalty that would otherwise be imposed by the Tribunal should be reduced by half.
I consider that an order requiring Camp to pay a penalty of $52,500 to the CEO within 28 days is the proper disciplinary consequence of the breaches of the legislation, taking into account both aggravating and mitigating circumstances, which appropriately protects and is in the best interest of children who receive child care services and their parents.
Should Camp be required to display a notice at the facilities?
Two days before the hearing of this matter, the CEO advised Camp that, in addition to the orders sought in the CEO's written submissions filed on 17 February 2012, the CEO would seek an order under s 29(4)(b)(iii) of the CCS Act requiring Camp to display a notice, at each of the services the subject of the proceeding, advising parents of the Tribunal's determination that there are grounds for disciplinary action against Camp, the nature of the breaches of the legislation, and the penalty imposed. At the hearing, the CEO observed that, under reg 87(2) of the OSHC Regulations, if a licensee is convicted of an offence, the CEO must notify the parents of children for whom an outside school hours care service is provided that the licensee has been convicted of that offence, and submitted that the Tribunal should make a similar order where there is a finding that grounds for disciplinary action exist and a civil penalty is imposed. The CEO also referred to s 7(b)(i) of the CCS Act, which provides that 'the principle that child care services should be provided in a way that … involves parents of the children to whom the services are provided' must be observed in the administration of the CCS Act, and submitted that an order requiring notices to be displayed at the relevant facilities would involve parents and inform them of the outcome of this proceeding.
Camp opposed the order sought by the CEO for the display of notices. Camp acknowledge that, in some circumstances, an order requiring notice to parents would be appropriate, particularly if it had the effect of remedying a breach. However, Camp submitted that, in the circumstances of this case, a substantial monetary penalty satisfactorily achieves the objectives of the legislation and the imposition of an additional requirement to place notices would be unnecessary and unreasonable.
It is well recognised that the purpose of disciplinary proceedings is not punishment of the person against whom the proceeding is brought, but rather protection of the public, relevantly, in this case, children who receive child care services and their parents. It follows that the proper disciplinary consequence of a finding that grounds for disciplinary action exist may be more severe to the person against whom the proceeding is brought than if the object of the proceeding was 'mere' punishment. However, I do not consider that an order requiring notices to be displayed at the various services which are the subject of this proceeding is necessary for the protection of children at Camp's facilities or their parents. The substantial monetary penalty that the Tribunal has decided to impose is adequate to achieve the protective purpose of this proceeding. Furthermore, although mandatory notice is to be given of convictions, the legislation does not mandate a similar result for a civil finding that grounds for disciplinary action exist. There is also a significant difference between a criminal conviction, which requires proof of each element of the offence beyond all reasonable doubt, and a disciplinary determination, which requires proof on a balance of probabilities, although subject to the Briginshaw principle: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361362.
For these reasons I do not consider that an order should be made under s 29(4)(b)(iii) of the CCS Act requiring Camp to comply with a requirement to place notices at the relevant facilities.
This does not, however, mean that the public interest in transparency and accountability in disciplinary proceedings is in any way diminished. This public interest is met by publication of these reasons and, even in cases resolved by facilitative dispute resolution, by the publication on the Tribunal's website of orders containing a recital of material facts and mitigating factors relied upon: see Legal Profession Complaints Committee and Love [2011] WASAT 13 at [20] [21].
Costs
The CEO sought an order, pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), requiring Camp to pay the CEO's legal costs of $2,066. Camp did not oppose this order.
The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body for disciplinary action by the Tribunal will usually lead to an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30], referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. This is the case even if ultimately only questions of penalty remain substantively at issue: Legal Practitioners Complaints Committee and Tomlinson [2005] WASAT 214 (S) at [25]. The philosophy behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30].
Although the CEO is not a 'vocational regulatory body' and, subject to budgetary considerations, has the resources of Government at the CEO's disposal, there is a sufficient analogy, in my view, between vocational disciplinary proceedings and disciplinary proceedings under the CCS Act, given the public interest which both proceedings serve, for the established practice in vocational disciplinary proceedings to be generally followed in disciplinary matters under the CCS Act. The amount of costs sought by the CEO is reasonable. An order for costs in the amount sought should therefore be made.
Conclusion
The Tribunal is satisfied, by reason of the admissions made by Camp, that grounds for disciplinary action in respect of Camp exist because of its contravention of the CCS Act in 13 respects. The Tribunal considers that the proper disciplinary consequence of the admitted breaches and grounds for disciplinary action is an order requiring Camp to pay a penalty of $52,500 within 28 days. In addition, Camp should pay the CEO's legal costs assessed in the amount of $2,066.
Orders
The Tribunal makes the following orders:
1.Within 28 days of the date of this order, the respondent must pay to the applicant a penalty of $52,500.
2.Within 28 days of the date of this order, the respondent must pay to the applicant the applicant's legal costs of this proceeding assessed in the amount of $2,066.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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