CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES and CAMP AUSTRALIA PTY LTD - [2017] WASAT 109

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: EDUCATION AND CARE SERVICES NATIONAL LAW (WA) ACT 2012

CITATION: CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES and CAMP AUSTRALIA PTY LTD [2017] WASAT 109

MEMBER: MS K WHITNEY (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 17 AUGUST 2017

FILE NO/S: VR 170 of 2016

BETWEEN: CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITIES
Applicant
AND
CAMP AUSTRALIA PTY LTD
Respondent

Catchwords:

Disciplinary proceedings - Education and care services - Failure to ensure children are adequately supervised at all times - Effect of prior contraventions of the Education and Care Services National Law on fine - Whether orders compelling a written supervision risk assessment at multiple services operated by a provider ought to be imposed

Legislation:

Child Care Services Act 2007 (WA), s 5, s 6
Education and Care Services National Law (WA) Act 2012, s 7; Schedule - Education and Care Services National Law s 3, s 4, s 23, s 23(1), s 23(2), s 165, s 165(1), s 177(1), s 177(2), s 188, s 188A, s 188B, s 188C, Pt 2 Div 1, Div 3,
Div 4, Pt 3 Div 1, Div 2, Div 4, Pt 6, Pt 7 Div 3A
State Administrative Tribunal Act 2004 (WA), s 13(1), s 15, s 16(1)

Result:

Fine of $7,000 imposed

Summary of Tribunal's decision:

The Chief Executive Officer of the Department of Local Government and Communities (applicant) commenced proceedings in the Tribunal alleging that grounds for disciplinary action exist against Camp Australia Pty Ltd t/as Coogee Primary School OSHC (the respondent) pursuant to s 188B(2) of the Education and Care Services National Law (WA) Act 2012 Schedule 1 Education and Care Services National Law (the National Law). The applicant alleged that the respondent contravened s 165(1) of the National Law on 29 July 2016 in that it inadequately supervised a child in the care of the service. The applicant conceded the contravention and the matter was referred to the Tribunal for determination of penalty.
The applicant submitted that the appropriate penalty was a fine which recognised that the respondent had contravened s 165(1) a total of four times between 2014 and 2016 (inclusive of the present matter) across the 87 education and care services it operated in Western Australia. The applicant also sought an order to the effect that the respondent must conduct a written supervision risk assessment at each of its 87 education and care services (the compulsive orders).
The Tribunal agreed with the applicant that prior contraventions of the same provision of the National Law are not irrelevant in determining an appropriate fine. However, the Tribunal did not accept on the evidence presented that the respondent's contraventions shared any commonality, such as commonality of staffing, contravention of procedures, failure of equipment, or otherwise. In the absence of facts of this nature, the Tribunal did not accept that the facts were sufficiently similar or linked in a way to support a finding that the contraventions were not isolated instances. The Tribunal found that the impact of the respondent's prior contraventions on the seriousness of the conduct in the present matter was nominal. On all the facts and circumstances made available to the Tribunal, the Tribunal imposed a fine in the amount of $7,000.
The Tribunal also agreed with the applicant that in a matter involving a finding that an education and care service contravened s 165(1), it would be open to the Tribunal, upon being satisfied of the necessary facts, to order a person linked to a WA service to take certain actions, or refrain from taking certain actions, to comply with the law. Such actions might include, in appropriate circumstances, an order that the approved provider conduct an audit of the education and care service to ensure that its practices and procedures and physical parameters of the service as they relate to supervision reflect the guiding principles of the national education and care services quality framework. However, such facts were not established in the present matter and the Tribunal was not satisfied that the actions sought were fair and reasonable in all the circumstances. The Tribunal was also not satisfied on the facts that a written supervision risk assessment was reasonable or necessary to provide adequate supervision at the respondent's 86 other education and care services.

Category: B

Representation:

Counsel:

Applicant: Mr B Nelson
Respondent: Mr M Howard SC

Solicitors:

Applicant: State Solicitor's Office
Respondent: Maddocks

Case(s) referred to in decision(s):

Chief Executive Officer of the Department for Communities and Camp Australia Pty Ltd [2012] WASAT 56
Legal Profession Complaints Committee and Park [2017] WASAT 89

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 13 October 2016, the Chief Executive Officer of the Department of Local Government and Communities (the applicant) commenced proceedings in the Tribunal alleging that grounds for disciplinary action exist against Camp Australia Pty Ltd t/as Coogee Primary School OSHC (the respondent) pursuant to s 188B(2) of the Education and Care Services National Law (WA) Act 2012 Schedule 1 Education and Care Services National Law (the National Law).
By orders of the Tribunal dated 4 April 2017 made by consent, the matter was ordered to be determined entirely on the documents. The applicant and respondent filed a Statement of Agreed Facts (SAF) on 15 May 2017. The applicant's submissions were filed on 16 May 2017 and the respondent's submissions in reply were filed on 30 May 2017. The Tribunal sought further submissions from the parties, which were received 21 June and 4 July 2017 respectively, and the decision was reserved on 5 July 2017.

Statutory scheme

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: s 3(1) National Law. The objectives of the national education and care services quality framework include ensuring the safety, health and wellbeing of children attending education and care services (s 3(2)(a) National Law) and promoting continuous improvement in the provision of quality education and care services: s 3(2)(c) National Law.
The guiding principles of the national education and care services quality framework include that the best interests of the child are paramount (s 3(3)(a) National Law) and that best practice is expected in the provision of education and care services: s 3(3)(f) National Law. An entity that has functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in s 3: s 4 National Law. This includes the Tribunal in this matter.
Parts 2 and 3 of the National Law regulate the approval of education and care providers (Pt 2) and education and care services (Pt 3). Each Part provides not only for initial assessment and either refusal or approval by a Regulatory Authority (Div 1 of each Part), but also amendment of approval (Div 3 of Pt 2 and Div 2 of Pt 3), and suspension or cancellation of approval (Div 4 of each Part). Section 23 provides that the Regulatory Authority may amend a provider approval at any time, including varying conditions of the provider approval or imposing new conditions on the provider approval: s 23(1) and (2) National Law.
Part 6 of the National Law provides for a range of offences arising from the operation of an education and care service, including s 165(1), the offence of inadequately supervising children:
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.
In addition to the offences provided for in Pt 6, Pt 7 of the National Law empowers the Regulatory Authority to issue compliance notices in circumstances where a Regulatory Authority is satisfied that an education and care service is not complying with any provision of the National Law: s 177(1) and (2) National Law. In such circumstances, an approved provider must comply with the compliance notice or face a penalty of $6,000 (for an individual) or $30,000 (in any other case): s 177(3) National Law.
In Western Australia (WA), disciplinary action against a person linked to a WA service is governed by Div 3A of Pt 7, which provides as follows:
188A. Persons against whom disciplinary action may be taken
In this Division
person linked to a WA service means any of the following
(a)an approved provider operating a WA service;
(b)a nominated supervisor of a WA service;
(c)a certified supervisor engaged at a WA service;
(d)a person with management or control of a WA service;
(e)a family day care educator engaged by or registered with a WA service;
WA service means an education and care service located in this jurisdiction.
188B. Disciplinary action
(1)Grounds for disciplinary action exist against a person linked to a WA service if
(a)the person has failed to comply with this Law as applying in this jurisdiction; or
(b)the person is a person with management or control of a body corporate that is itself a person linked to a WA service and
(i)the body corporate has failed to comply with this law as applying in this jurisdiction; and
(ii)the person with management or control of the body corporate has failed to exercise due diligence to prevent that failure.
(2)If the Regulatory Authority of this jurisdiction considers that grounds for disciplinary action exist in respect of a person linked to a WA service, the Regulatory Authority may make an allegation to the relevant tribunal or court of this jurisdiction in respect of that person.
(3)In proceedings commenced by an allegation under subsection (2) in respect of a person, the relevant tribunal or court of this jurisdiction, if satisfied that grounds for disciplinary action exist, may make one or more of the following orders
(a)an order reprimanding the person;
(b)subject to section 188C, an order requiring the person to pay a fine not exceeding $50 000;
(c)an order to take certain actions, or refrain from taking certain actions, to comply with this Law.
(4)The relevant tribunal or court may make an order under subsection (3)(a) or (b) in respect of a person whether or not at the time when the order is made the person is a person linked to a WA service.
188C. Limitation on section 188B(3)(b)
(1)The power described in section 188B(3)(b) to impose a fine, and the power of a court to impose a penalty for an offence under this Law as it applies in this, or another participating jurisdiction, cannot both be exercised in respect of an act or omission of a person that is substantially the same.
(2)A fine that exceeds the relevant maximum fine cannot be imposed under section 188B(3)(b).
(3)In subsection (2)
relevant maximum fine means, if the fine is to be imposed in respect of an act or omission that constitutes an offence under this Law, the maximum fine that could be imposed by a court for that offence.
The 'relevant tribunal or court' in WA is declared to be the State Administrative Tribunal: s 7 Education and Care Services National Law (WA) Act 2012. Accordingly, the Tribunal has jurisdiction pursuant to s 13(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). As this matter does not involve a review of a decision, the matter comes within the Tribunal's original jurisdiction: s 15 SAT Act. In the exercise of its original jurisdiction, the Tribunal is to deal with the matter in accordance with the SAT Act and the enabling Act: s 16(1) SAT Act.

Agreed facts

The SAF submitted by the parties provided as follows:
1.The parties have agreed the following relevant facts:
1.1Camp Australia holds, and on all relevant dates below held, a service approval under the National Law to operate an education and care service at Coogee Primary School, 23 Mayor Road, Coogee (Service), subject to the National Law.
1.2Camp Australia is currently approved under the National Law to operate 87 outside of school hours care services throughout Western Australia.
1.3Camp Australia manages 13,465 bookings each week in WesternAustralia for children to be placed in services at which it provides outside of school hours care.
1.4In the morning of 29 July 2016, sometime between 8.10am and 8:15am, a 5 year old child enrolled at, and attending, the Service left the Service unsupervised.
1.5An educator from the Service noticed the child was missing at 8:15am, or shortly thereafter, and searched for her but could not find her. At the time, there were 19 children attending the Service with two educators to supervise them.
1.6Sometime between 8:15am and 8:20am, the child was found by one of the Coogee Primary school's educator assistants in the preprimary play area. The educator assistant informed the child's class teacher, who returned the child to the Service at about 8:20am.
1.7The child remained absent from, and unsupervised by, the Service for approximately 510 minutes.
1.8The Respondent thereby contravened section 165(1) of the National Law by failing 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.
2.The Respondent submits and the Applicant accepts the following matters in mitigation:
2.1The prescribed number of staff were present and on duty at the Service.
2.2The staff on duty were appropriately qualified.
2.3The Coordinator became aware that the child was missing and immediately started looking for the child.
2.4The child was located by a teacher from the School after approximately 5 minutes and brought back the Service. The child did not leave the School grounds.
2.5The complaint made by the child's mother was reported to the Department within 24 hours of the complaint in accordance with section 174(4) of the National Law.
2.6Camp Australia has at all times cooperated with the Department in relation to the investigation, the proceedings and to changes to Camp Australia's practices requested by the Department.
2.7Camp Australia contacted the child's parents within 24 hours and there has been ongoing communication with both the parents and the School.
2.8Camp Australia has shown genuine remorse and contrition for the incident and has demonstrated that the contravention did not occur through wilful misconduct, neglect or malice on the part of the Service or its employees.
2.9Camp Australia immediately carried out its own internal investigation after the incident and has conducted regular visits to the Service to review procedures and operations.
2.10Since the incident and the investigation, Camp Australia:
2.10.1reviewed and modified its supervision plan for the Service to ensure no further contraventions will take place. Supervision procedures have been modified to ensure that children are supervised at all times and specifically:
(a)an educator is to stand at the door and observe children when they are outside the class room; and
(b)a direct line of sight with the children is to be maintained at all times;
2.10.2introduced the following changes to its procedures:
(a)implemented the use of walkie talkies at the Service and any other service that may require it to support operations;
(b)implemented 15 minute headcounts (previously 30 minute headcounts) at the Service and at all sites in the State. This procedure has been implemented nationally;
2.10.3issued the Coordinator for the Service at the time of the incident with a Performance Development Plan, which seeks to address the areas of supervision and communication; and
2.10.4has undertaken retraining of its staff, including specifically:
(a)the following new Learning Management System (LMS) courses have been developed and made available to all educators:
(i)Safety Course; and
(ii)Guiding and Supporting Children;
(b)all staff at the Service received additional training including:
(i)LMS Safety Course;
(ii)'On the Job Assessment' tools;
(iii)effective walkie talkie use;
(iv)sign in processes; and
(v)'How to Keep Our Kids Safe' Instructional Guide for Educators.
(c)staff across Western Australia have been trained on the 'How to Keep Our Kids Safe' Instructional Guide for Educators and the LMS Safety Course;
(d)network sessions were held across Western Australia in October 2016 with a focus on National Quality Standard Element 2.3.1 (Children adequately supervised at all times). The document 'How to Keep Our Kids Safe' Instructional Guide for Educators has also been provided in these sessions;
(e)network sessions were held across Western Australia in March 2017. All educators were invited to attend these sessions. These sessions included 'Control of the Room' training to assist educators in maintaining a safe environment for all children. The information provided at this session can also be accessed online by educators. Regional coordinators are working with each of the services to ensure that this training is put into practice;
(f)'Safety and Supervision VSHAPE' face to face training sessions were provided in Perth and a number of regional locations in March 2017. This training is mandatory for Camp Australia educators. This training provides guidance to all educators on how to supervise children. Regional coordinators are working with each of the services to ensure that this training is put into practice; and
(g)'Bootcamp Training' is being undertaken by all new coordinators. Where necessary, current coordinators are also undertaking this training. This training provides guidance on how to ensure children are properly supervised at Camp Australia's services.
3.Statements of Prior Breaches
3.1The Respondent has been disciplined by this Tribunal on 2 previous occasions for contraventions of s 165 of the National Law:
3.1.1In matter VR 207 of 2014, the Respondent was penalised $8,000 in relation to breaches of ss 165(1) and 174(2)(a) of the National Law.
3.1.2The Respondent was penalised $7,000 in relation to the breach of s 165(1), in circumstances where a child left its education and care service at Richmond Primary School in East Fremantle on his own, unnoticed, and walked 1.4km to his home, including by crossing major roads.
3.1.3The child's absence was not noted for approximately 15 minutes, until the child's mother contacted the service.
3.1.4In matter VR 4 of 2016, the Respondent was penalised $30,000 in relation to breaches of ss 165(1) and 172(2)(e) of the National Law.
3.1.5The Respondent was penalised.$20,000 in relation to the breach of s 165(1), in circumstances where a child left its education and care service at Cloverdale Primary School in Cloverdale on his own, unnoticed.
3.1.6The child was absent from 3.45pm until 4.10pm, at which time a member of the public found the child in their backyard (near the School grounds) and contacted the Cloverdale Primary School on noting the child's school uniform.
3.1.7Particular circumstances of this contravention were:
(a)the vulnerability of the particular child, who was diagnosed as Down Syndrome, lowfunctioning, nonverbal and on the autism spectrum, and small for his age; and
(b)the fact that the child's route likely crossed a road with traffic hazards, and resulted into his wandering into a stranger's yard containing various potential hazards including a large dog.

Issues

The issues for determination are:
•Whether the Tribunal is satisfied that grounds for disciplinary action exist; and
•If so, whether the Tribunal should make one or more of the orders referred to in s 188B(3) of the National Law.

Applicant's submissions

The applicant submits that by reason of the respondent's admission in paragraph 1.8 of the SAF, it is open to the Tribunal to be satisfied that grounds for disciplinary action exist.
The applicant further submits that the Tribunal should make the following orders:
•That the respondent pay a fine pursuant to s 188B(3)(b) of the National Law; and
•That the respondent take the following actions pursuant to s 188B(3)(c) of the National Law:
(1)Within 6 months after the date of these orders, Camp Australia Pty Ltd must ensure that a written supervision risk assessment is prepared for each service Camp Australia provides in Western Australia. Each assessment supervision risk assessment [sic] should be prepared in accordance with the Service Safety Audit (Annexure B) and the Service Safety and Supervision Plan (Annexure C) which includes consideration of:
(a)assessment of risks the service premises poses [sic] for children potentially leaving the premises unsupervised, including but not limited to:
i what barriers exist to stop children leaving the service;
iiwhat obstructions might stop educators keeping all children in sight at all times;
iiiwhat opportunities children might have to leave unsupervised considering the physical site, children's arrival and departure times to and from the service, and educator rosters; and
ivprobable risks to children's safety in the vicinity of the premises should they leave unsupervised;
(b)strategies to deal with the assessed risks, including but not limited to:
iwhere possible, any physical modification to the premises that might be required;
iirostering and positioning of educators;
iiiconsideration of whether particular children require particular supervisions, and resulting implications for supervision of all other children; and
ivconsideration whether effective supervision in all circumstances [sic] staffing above the minimum prescribed ratio;
(c)a supervision plan or plans for existing and incoming educators at each service, including transient educators, to be trained in 'active supervision' the assessed risks for that particular service site and of the strategies to negate them, as set out in the written risk assessment; and
(d)a timeframe within which each existing and incoming educator at each service, including transient educators, will be trained.
(2)Camp Australia Pty Ltd will provide to the Department of Local Government and Communities a list of all services for which the risk assessment and training referred to in the above order has been completed.
(a)2 months from the date of these orders;
(b)4 months from the date of these orders; and
(c)6 months from the date of these orders.
The applicant refers to the proposed orders set out above which are sought pursuant to s 188B(3)(c) of the National Law as the 'compulsive orders'. The Tribunal will do the same.
In respect of the fine, the applicant maintains that a relevant factor in determining the seriousness of the contravention is the potential for harm to the child: Applicant's Submissions (AS) at paragraph 31. In the present matter, this includes the age of the child (five years), that the child left the education and care service unsupervised, and that the child remained unsupervised for about five to 10 minutes: AS at paragraph 32. The applicant maintains that the objective severity of the contravention in the present matter is less than in two matters where the Tribunal has previously imposed fines on the respondent for contraventions of s 165(1) of the National Law: VR 207 of 2014 ($7,000) and VR 4 of 2016, ($20,000) See AS at paragraphs 44 47. The applicant submits that the fine imposed on the respondent as a result of the present contravention should:
•be congruent with matters VR 207 of 2014 and VR 4 of 2016 and recognise the objective seriousness of the contravention (as outlined above);
•recognise the need for specific and general deterrence;
•take into account the mitigatory matters addressed in the SAF; and
•recognise that the respondent has now contravened s 165(1) of the National Law and been penalised by the Tribunal on two previous occasions, and has also conceded contravention of the same provision of the National Law in the concurrent matter VR 171 of 2016 and as a consequence has contravened the specific requirement imposed by the National Law on at least four occasions including the present applications.
(AS atparagraph 48)
On the relevance of the respondent's other contraventions of the same provision of the National Law to the Tribunal's assessment of penalty, the applicant maintains this demonstrates that:
•the respondent has a relevant disciplinary history (namely contraventions of the same provision of the National Law which share factual similarities with the prior contraventions);
•by virtue of the factual similarities and the timing of the respective contraventions, the present contravention and the contravention in VR 171 of 2016 are not contraventions of an entirely 'isolated' nature by the respondent; and
•given the respondent has a relevant disciplinary history (and the contraventions are not of an entirely isolated nature), the prior contraventions are:
i)matters to be considered in determining the objective seriousness of the contravening behaviour (which is then consequentially relevant to the question of what penalty ought to be penalty imposed); and
ii)demonstrative that consideration of the present contraventions alone is unlikely to act as a sufficient specific deterrent to the respondent.
(Applicant's Supplementary Submissions (ASupS) at paragraph 8)
The applicant submits 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. The applicant further maintains that consideration of previous disciplinary action against the respondent, and the factual similarities and differences between the prior and the current contraventions, is important in determining any penalty to ensure consistency of decisionmaking: ASupS at paragraph 10.
In respect of the proposed compulsive orders, the applicant submits that the ambit of the discretion permitted by the language of s 188B(3)(c) of the National Law is broad enough to include the compulsive orders sought. The applicant says s 188B(3) should be taken to (implicitly) require the Tribunal to take into consideration the established purpose of disciplinary proceedings of this kind namely to protect the public from the risks associated with a person being allowed to continue to offer to provide the particular service where there is reason to doubt that the person will (continue to) meet the standards imposed for the protection of the public: AS at paragraph 22. In this particular context, the applicant submits that contraventions of the relevant standards represent a breach of significant trust placed by parents and the community in child care services to protect particularly vulnerable people children of a young age: AS at paragraph 23.
The applicant maintains that in the context of s 188B(3)(c) of the National Law, an order which requires a person to take some step which will tend to eliminate, minimise or reduce the risk of future contraventions will be consistent with that purpose, because fewer contraventions will tend to protect those using the education and care service, and any narrower a construction would render the apparent remedial purpose of the National Law ineffective: AS at paragraphs 25 26. The applicant adds:
This would be contrary to the rule that if a statutory power can be characterised as 'remedial', in the sense that its specific purpose is to provide a remedy for the problem it identifies, [then] a construction of that power which promotes [its] purpose will be the one which tends to make the remedy effective.
On the basis of the above, the Applicant submits that the Tribunal has statutory power to make the kind of compulsive orders sought pursuant to s 188B(3)(c). Further submissions in relation to exercise of the discretion are below at Part VI.
(AS at paragraphs 27 28 (footnotes omitted))
The applicant maintains that the compulsive orders, which require the respondent to conduct a written supervision risk assessment in relation to each service it provides in WA, are selfevidently (by the terms of the orders) designed to identify and ameliorate the risk of a child leaving a service unnoticed and suffering harm as a consequence: AS at paragraph 52. Accordingly, there is a 'firm correlation, or nexus', between these 'actions' and the purpose of ensuring that the respondent is compliant with the National Law in future particularly the obligation imposed by s 165 and contravened in this matter: AS at paragraph 53.
The applicant further submits that:
… the burden imposed by the proposed order is commensurate with the seriousness of the purpose for which it is imposed, particularly in circumstances where the penalised breaches in 2014 and 2016 and the current breaches demonstrate that the contravention in this matter was not [a] 'oneoff' event unlikely to be repeated.
The Applicant considers that the above orders would complement those mitigatory steps already taken by the Respondent, and that the fact of those measures does not undermine the warrant for the proposed orders.
The terms of the proposed orders are sufficiently final in that they do not involve any impermissible delegation by the Tribunal to anyone (including the Applicant or the Department) in order to determine compliance.
(AS at paragraphs 54 56 (footnotes omitted))

Respondent's submissions

The respondent concedes that there are grounds for disciplinary action to be taken against it in relation to the contravention outlined in the SAF, and that it is open to (and appropriate for) the Tribunal to fine the respondent in relation to the matter.
In respect of the quantum of the fine, the respondent submits that the matter involving Kahlia Holding trading as Ladybugs Out of School Care ANZAC (SAT matter VR 1 of 2015) is analogous. The respondent maintains that in that matter, a four and a half yearold child was inadequately supervised and left the service. Educators at the service noted the child's absence a short time later and an educator left the service to search for the child. The educator located the child playing in a nearby park. The penalty ordered by the Tribunal in that case for a contravention of s 165(1) of the National Law was $6,000: Respondent's Submissions (RS) at paragraph 47.
In the respondent's original submissions, the respondent noted as follows:
The Respondent acknowledges that Kahlia [Holding] had no previous history of noncompliance with s 165(1) of the National Law. The Respondent also acknowledges that its previous noncompliance is relevant to the Tribunal's determination of the quantum of the monetary penalty that should be applied.
The Respondent submits that it would be appropriate to account for this previous noncompliance by ordering a penalty of $12,000 being twice the penalty ordered in the analogous matter.
(RS at paragraph 48 49)
However, in response to the Tribunal's request for further submissions on the question of the relevance of the respondent's contraventions of the same provision of the National Law in assessing penalty, the respondent added:
2.The Respondent accepts that conceptually a respondent's previous breach/es of say s.165 of the National Law may be taken into account when the Tribunal is determining the disciplinary action to be taken under S.188B against that respondent for a further breach. The Respondent made submissions to that effect at [40(d)] of its first submissions in this matter dated 30 May 2017.
…
4.The Respondent submits, however, in this case, that the incident at the Coogee Service was, and should be treated as, an 'isolated' incident.
5.That is, when the Tribunal has regard to the time period which has elapsed from the earlier breaches and the number of services provided by the Respondent on an ongoing basis (see [1.2] [1.3] of the Agreed Facts filed by the parties and dated 15 May 2017), then there is a very weak connection or relationship between the present matter and the previous breaches. Consequently, the previous breaches have, at their highest, a very low relevance to the exercise that the Tribunal is to undertake under s.188B of the National Law[.]
(Respondent's Supplementary Submissions (RSS) at paragraph 2 5)
The respondent accepts that a fine is an appropriate penalty in the present matter. It does not, however, accept that the Tribunal is empowered to make the compulsive orders sought by the applicant. The respondent submits, in the alternative, that the Tribunal ought not to exercise its discretion to make such orders if it does have the power to do so.
On the question of whether the Tribunal is empowered to make the compulsive orders, the respondent notes that allegations presently under consideration in this matter and the concurrent matter VR 171 of 2016 occurred at only two of the respondent's 87 education and care services in WA. Under the compulsive orders sought, all 87 education and care services in WA would be caught by the orders. None of the other 85 education and care services is the subject of proceedings: RS at paragraph 26. The respondent further notes that this is not a general prosecution of the respondent for systemic contraventions or failures, and that there is simply no sufficient nexus between the failure to comply at the present education and care service and the imposition of the compulsive orders across all 87 education and care services in the state: RS at paragraph 27 28.
The respondent also notes that there is no evidence (nor any allegation by the applicant) that the respondent's other services in WA are not complying with s 165(1) of the National Law. Further, there is no evidence (nor any allegation by the applicant) that the respondent does not carry out appropriate risk assessments in regards to the supervision of children at the services it operates in WA: RS at paragraph 29. The respondent says the applicant has not sought to demonstrate why the compulsive orders are necessary for the respondent 'to comply' with the National Law: RS at paragraph 30. In such circumstances, the applicant cannot maintain that the compulsive orders can be made pursuant to some 'protective' jurisdiction: RS at paragraph 32.
The respondent also rejects the applicant's assertion that 'even a relatively slight connection between the "actions" and the objective should be sufficient':
That assertion fails to give weight to the statutory language used; which allows for the order to be made to 'comply' following a particular failure to comply (as alleged by the regulator).
If accepted, the assertion made by the applicant would allow a rather opportunistic grab for a power which she does not expressly, or otherwise it is submitted, have.
(RS at paragraph 33 35 (footnotes omitted))
In the alternative, if the Tribunal determines that it does have the power to make the compulsive orders, the respondent maintains that such orders are not warranted in the present matter given the lack of nexus between the failure to comply and the compulsive orders: RS at paragraph 38.

Whether the Tribunal is satisfied that grounds for disciplinary action exist

Section 188B(1)(a) of the National Law provides that grounds for disciplinary action exist against a person linked to a WA service if the person 'has failed to comply with this Law as applying in this jurisdiction'.
The respondent is 'a person linked to a WA service' as defined in s 188A of the National Law in that it holds a service approval (and is an approved provider) under the National Law to operate an education and care service at Coogee Primary School (the Coogee Service): SAF at paragraph 1.1. In the SAF, the parties agree that on the morning of 29 July 2016 at between 8.10 am and 8.15 am, a fiveyearold child enrolled at and attending the Coogee Service left the Coogee Service unsupervised. The child's absence was noticed, a search commenced, and the child was located in the preprimary play area. The child was returned to the Coogee Service at 8.20 am: SAF at paragraph 1.4 1.6. The parties agree that the child was unsupervised by the Coogee Service for approximately five to 10 minutes and that the respondent thereby contravened s 165(1) of the National Law: SAF at paragraph 1.7 1.8.
Section 165(1) of the National Law requires the respondent, an approved provider of an education and care service, to 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. The respondent admits that the child in question was unsupervised by the Coogee Service for approximately five to 10 minutes, and the respondent thereby contravened s 165(1) of the National Law. The Tribunal is satisfied on this admission that the respondent failed to comply with s 165(1) of the National Law.
For these reasons, on the facts agreed by the parties, the Tribunal is satisfied, and so finds, that grounds for disciplinary action exist against the respondent on the basis that the respondent has failed to comply with the National Law as applying in WA.

Whether the Tribunal should make one or more of the orders referred to in s 188B(3) of the National Law

The applicant seeks orders that the respondent pay a fine pursuant to s 188B(3)(b) of the National Law and that the respondent be subject to the compulsive orders referred to at [13] above pursuant to s 188B(3)(c) of the National Law.
The applicable principles in relation to penalty 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 (Camp Australia) at [23] [24], albeit in the context of a predecessor to the National Law, the Child Care Services Act 2007 (WA) (Child Care Services Act).
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 [2935]; NSW Bar Association v Meakes [2006] NSWCA 340 at [109114]; 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 441446, 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 cooperation 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'.

The principles referred to by the Tribunal in Camp Australia as being enshrined in s 5 and s 6 of the Child Care Services Act (for example, that the segment of the public to be protected by the disciplinary proceedings is children who receive child care services and that 'the best interests of the child are paramount') are likewise enshrined in s 3 and s 4 of the National Law.
In Legal Profession Complaints Committee and Park [2017] WASAT 89 at [26], the Tribunal recently reiterated the following principles in relation to penalty in disciplinary proceedings against a legal practitioner:
In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:
1)Any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foreman at 440C; Hamman at [77]).
2)The need to protect the public through general deterrence of other practitioners from similar conduct (Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]).
3)The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and [79]), such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval (Craig v The Medical Board of South Australia [2001] SASC 169 at [64]; Johnson at [103]).
4)In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnson at [109]; Foreman at 445B 445G).
5)Whether the practitioner has breached any:
a)Act;
b)Regulations;
c)Guidelines or Code of Conduct, issued by the relevant professional body; and
d)whether the practitioner has done so knowingly.
6)Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
7)Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E 442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63).
8)The practitioner's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
9)Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 (Lashansky) at [31][52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]).
10)The desirability of making available to the public any special skills possessed by the practitioner.
11)The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paridis) at [30(5)]).
12)The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).

Fine

The applicant accepts in its submissions that the facts in the present matter are 'objectively less severe' than two previous admitted contraventions (VR 207 of 2014 and VR 4 of 2016) in which penalties were agreed in the amount of $7,000 and $20,000 respectively. The applicant does not, however, propose any particular amount for the fine. Rather, the applicant submits that the fine imposed should be congruent with these two fines, recognising the need for specific and general deterrence and taking into account the mitigating factors addressed in the SAF. The applicant further contends that the fine should recognise that the respondent has now contravened s 165(1) of the National Law and been penalised by the Tribunal on two previous occasions, and has also conceded contravention of the same provision of the National Law in the concurrent matter VR 171 of 2016.
The facts of VR 207 of 2014 and VR 4 of 2016 are incorporated into the Tribunal's orders published on its website. Both matters involved a child leaving a service unsupervised. In VR 207 of 2014 the child was eight and a half years old, and walked unsupervised from the service to his home approximately 1.4 kilometres away, crossing major roads. The service did not notice the child's absence and was alerted by the child's mother when he reached home. There were a number of mitigating factors noted, and the agreed penalty was $7,000.
In VR 4 of 2016, a vulnerable sevenyearold special needs child walked unsupervised from the service, likely crossing a road with traffic hazards, and wandered into a stranger's yard containing various potential hazards, including a large dog. There were both aggravating factors and a number of mitigating factors noted, and the agreed penalty was $20,000.
In VR 1 of 2015, which the respondent says is analogous, a four and a half yearold child was inadequately supervised and left an education and care service. Educators at the service noted the child's absence a short time later and an educator left the service to search for the child. The educator located the child playing in a nearby park. The agreed penalty ordered by the Tribunal in that case for a contravention of s 165(1) of the National Law was $6,000.
In other recent matters, the agreed penalties imposed upon other education and care services for inadequately supervising special needs children aged 5 (two of whom walked distances of 1 and 2.8 kilometres respectively from the service unsupervised) ranged from $8,500 to $12,000: VR 49 of 2017 Department of Local Government and Communities and The Catholic Education Commission of Western Australia Trustees Association (Inc) (10 May 2017); VR 5 of 2017 CEO of the Department of Local Government and Communities and Mission Australia Early Learning (28 June 2017); VR 60 of 2017 CEO of the Department of Local Government and Communities and Horizons Childhood Learning Centres Pty Ltd (20 June 2017).
In VR 86 of 2017 CEO of the Department of Local Government and Communities and The Catholic Education Commission of Western Australia Trustees Association (Inc) (9 June 2017), the agreed penalty was $8,000 where a sixyearold left a service unnoticed and unsupervised and was located by a member of the public approximately 250 metres away. The child was absent for approximately 30 minutes and the child's absence remained unnoticed by staff.
In 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.
Based 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.
The 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.
Factoring 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.
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.
The 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.
The 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).
There 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.
For 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.
For 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'.

Compulsive orders

Additionally, the applicant seeks orders that the respondent take certain actions (as detailed at [13] above) pursuant to s 188B(3)(c) of the National Law. In essence, the orders seek to compel the respondent to conduct a written supervision risk assessment for each of the 87 services it operates in WA.
Section 188B(3)(c) of the National Law provides that in proceedings commenced by an allegation under s 188B(2), if the Tribunal is satisfied that grounds for disciplinary action exist, it may make 'an order to take certain actions, or refrain from taking certain actions, to comply with [the National] Law'.
The applicant maintains that in context of s 188B(3)(c) of the National Law, an order which requires a person to take a step which will tend to eliminate, minimise or reduce a risk of future contraventions will be consistent with that purpose, because fewer contraventions will tend to protect those using the education and care service. The Tribunal agrees, provided the step which the person is ordered to take under s 188B(3)(c) of the National Law is reasonably related to and reasonably for the purpose of remedying the contravention in question. The Tribunal's power to make an order under s 188B(3)(c) of the National Law is not a power to impose a general supervisory regime. The powers exercised under s 188B(3) arise in respect of a specific allegation that grounds for disciplinary action (as defined in s 188B(1)) exist: National Law s 188B(2). The power to make an order under s 188B(3)(c) of the National Law is necessarily limited to the particular allegation the subject of the grounds for disciplinary action.
In a matter involving a finding that an education and care service contravened s 165(1) of the National Law by failing to ensure that all children were adequately supervised, it would be open to the Tribunal, upon being satisfied of the necessary facts, to order a person linked to a WA service to take certain actions, or refrain from taking certain actions, to comply with the law. Such actions might include, in appropriate circumstances, an order that the approved provider conduct an audit of the education and care service to ensure that its practices and procedures and the physical parameters of the service as they relate to supervision reflect the guiding principles of the national education and care services quality framework.
Such facts have not been established in the present matter, however. Although the respondent admits that it failed to ensure that a child was adequately supervised, the SAF is silent as to how or why this occurred. The SAF is silent on why, as a matter of fact, a written supervision risk assessment is reasonably necessary to ensure the future safety, health and wellbeing of children attending the Coogee Service, particularly in light of the facts agreed at paragraph 2.10 of the SAF.
The Tribunal does not accept, as submitted by the applicant, that it is sufficient to identify actions which, 'selfevidently by the terms of the order, are designed to identify and ameliorate the risk of a child leaving a service unnoticed and suffering harm as a consequence'. Rather, there must be facts capable of supporting a finding that requiring the actions sought is fair and reasonable in all of the facts and circumstances in the matter before the Tribunal. In respect of the Coogee Service, the applicant has not tendered evidence to establish that the action sought is reasonably necessary in the circumstances to achieve specific deterrence, general deterrence, or to reduce the likelihood of any repetition of the same, or similar conduct.
Furthermore, the Tribunal is not satisfied it could (or should) order the approved provider to conduct the same audit in the 86 other services it operates in the absence of evidence that the issue was a systemic one, or linked to other incidents at other services. For the order to serve a remedial function, it must provide a remedy for an identified problem. In the present matter, the only evidence of the 'problem' is an admission by the respondent that a child at one service was not adequately supervised for a period of time, and that this has also occurred at three other services operated by the respondent in the past few years, in the context of 13,465 bookings per week. The Tribunal is not satisfied this is sufficient basis to find that a written supervision risk assessment is reasonably necessary to provide adequate supervision at every one of the respondent's 86 other education and care services.
As noted above, there 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 he or she 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 across the 87 education and care services the respondent operates.
The applicant appears to presume that the respondent's contravention of s 165(1) on four occasions across 87 services is sufficient evidence of practices and procedures in need of systematic review. This is not supported by the evidence, and the Tribunal does not agree with the applicant's submission that requiring some nexus between the contravention and the remedial order defeats the rules of statutory construction in respect of remedial statutory powers.
The Tribunal's view is that it is not fair or reasonable to impose orders requiring the respondent to take action to ensure compliance with s 165(1) of the National Law at any of its 87 services without evidence of some relationship between the action required and the contravention alleged or established.

Finally, the Tribunal notes that if, as the applicant suggests at paragraph 22 of its submissions, the applicant has reason to doubt that the respondent will continue to meet the standards imposed for the protection of the public, it has a range of potential options available to it under Pt 2 and Pt 3 of the National Law. Part 2 and Pt 3 of the National Law regulate the approval of education and care providers (Pt 2) and education and care services (Pt 3). Each Part provides not only for initial assessment and either refusal or approval by a Regulatory Authority (Div 1 of each Part), but also amendment of approval (Div 3 of Pt 2 and Div 2 of Pt 3), and suspension or cancellation of approval (Div 4 of each Part). Section 23 of the National Law provides that the Regulatory Authority may amend a provider approval at any time, including varying conditions of the provider approval or imposing new conditions on the provider approval.

Costs

The applicant did not seek costs for this matter, only in the concurrent matter VR 171 of 2016. Accordingly, there will be no order as to costs.

Conclusion

The Tribunal is satisfied, by reason of the admissions made by the respondent that grounds for disciplinary action in respect of the respondent exist because of its contravention of s 165(1) of the National Law. The Tribunal considers that the proper disciplinary consequence of the grounds for disciplinary action is an order requiring the respondent to pay a fine of $7,000 within 28 days. There is no order as to costs.

Orders

The Tribunal's orders are:
1.On 29 July 2016 the respondent contravened s 165(1) of the Education and Care Services National Law (WA) Act2012 by failing to ensure that children receiving education and care at its Coogee Primary School OSHC Service were adequately supervised at all times the children were in the care of the Coogee Primary School OSHC Service.
2.Within 28 days of the date of this order, or within such other time as agreed in writing between the parties, the respondent must pay to the applicant a fine of $7,000 for contravention of s 165(1) of the Education and Care Services National Law (WA) Act 2012.
3.There is no order as to costs.
4.The application is otherwise dismissed.

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS K WHITNEY, MEMBER