Children (Education and Care Services) National Law (NSW) (NSW)
The Education and Care Services National Law is applied and modified as a law of NSW by the NSW Children (Education and Care Services National Law Application) Act 2010. This version is the Law as it currently applies in NSW.
The Education and Care Services National Law is applied and modified as a law of NSW by the NSW Children (Education and Care Services National Law Application) Act 2010. This version is the Law as it currently applies in NSW.
This Law may be cited as the Children (Education and Care Services) National Law (NSW).
This Law commences in a participating jurisdiction as provided under the Act of that jurisdiction that applies this Law as a law of that jurisdiction.
The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.
The objectives of the national education and care services quality framework are—
(a) to ensure the safety, health and wellbeing of children attending education and care services;
(b) to improve the educational and developmental outcomes for children attending education and care services;
(c) to promote continuous improvement in the provision of quality education and care services;
(d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework;
(e) to improve public knowledge, and access to information, about the quality of education and care services;
(f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth.
The guiding principles of the national education and care services quality framework are as follows—
(a) that the rights and best interests of the child are paramount;
(b) that children are successful, competent and capable learners;
(c) that the principles of equity, inclusion and diversity underlie this Law;
(d) that Australia’s Aboriginal and Torres Strait Islander cultures are valued;
(e) that the role of parents and families is respected and supported;
(f) that best practice is expected in the provision of education and care services.
The protection of the rights and best interests of each child and the children attending education and care services must be the paramount consideration in giving effect to this Law, including in making decisions or otherwise exercising functions under this Law.
Without limiting subsection (1), the protection of the rights and best interests of each child and the children attending education and care services prevails over—
(a) the financial interests of approved providers; and
(b) other fiduciary duties owed by persons with management or control of education and care services.
This section is an additional NSW provision.
An entity that has functions under this 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 sections 3 and 3A.
In this Law—
(a) a person granted an approval in principle under section 110; or
(b) if the approval in principle is transferred to another person under section 118 or 119, that person;
(a) a school providing full-time education to children, including children attending in the year before grade 1 but not including a preschool program delivered in a school or a preschool that is registered as a school; or
(b) a preschool program delivered in a school if—
(i) the program is delivered in a class or classes where a full-time education program is also being delivered to school children; and
(ii) the program is being delivered to fewer than 6 children in the school; or
(c) a personal arrangement; or
(d) a service principally conducted to provide instruction in a particular activity; or
Example. Instruction in a particular activity could be instruction in sport, dance, music, culture or language or religious instruction.
(e) a service providing education and care to patients in a hospital or patients of a medical or therapeutic care service; or
(f) care provided under a child protection law of a participating jurisdiction; or
(g) a prescribed class of disability service; or
(h) a service of a prescribed class;
Education and care services to which this Law applies include long day care services, family day care services, outside school hours services and preschool programs including those delivered in schools, unless expressly excluded.
(a) in relation to an education and care service other than a family day care service, each place at which an education and care service operates or is to operate; or
(b) in relation to a family day care service—
(i) an office of the family day care service; or
(ii) an approved family day care venue; or
(iii) each part of a residence used to provide education and care to children as part of a family day care service or used to provide access to the part of the residence used to provide that education and care;
This definition is an additional NSW provision.
This definition is an additional NSW provision.
(a) is delivered through the use of 2 or more educators to provide education and care to children; and
(b) operates from 2 or more residences;
A family day care service that is an approved family day care service may provide education and care to children from a family day care residence or an approved family day care venue.
(a) a parent, grandparent, brother, sister, uncle, aunt, or cousin of the child, whether of the whole blood or half-blood and whether that relationship arises by marriage (including a de facto relationship) or by adoption or otherwise; or
(b) a relative of the child according to Aboriginal or Torres Strait Islander tradition; or
(c) a person with whom the child resides in a family-like relationship; or
(d) a person who is recognised in the child’s community as having a familial role in respect of the child;
(a) has the same meaning as in the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth; and
(b) includes a person prescribed by the NSW regulations;
This definition is an additional NSW provision.
See section 49A.
(a) is constituted from time to time by Ministers of the Crown of the Commonwealth, State and Territory Governments; and
(b) is responsible for early childhood education and care matters;
(a) this Law; and
(b) the national regulations; and
(c) the National Quality Standard; and
(d) the prescribed rating system;
(a) is nominated by the approved provider of the service under Part 3 to be a nominated supervisor of that service; and
(b) unless the individual is the approved provider, has provided written consent to that nomination;
This definition is an additional NSW provision.
(a) a provision that forms part of this Law because of a modification made by the Children (Education and Care Services National Law Application) Act 2010; or
(b) a NSW regulation;
This definition is an additional NSW provision.
This definition is an additional NSW provision.
(a) the principal office of the service; or
(b) the principal office of the approved provider of the service; or
(c) any other business office of the approved provider of the service; or
(d) any premises of the service from which the service’s family day care educators are co-ordinated;
(a) a guardian of the child; and
(b) a person who has parental responsibility for the child under a decision or order of a court;
(a) a building that has 3 or more storeys (including the ground level and each level of a split level); or
(b) a building of a prescribed class;
See section 105.
(a) this Law applies as a Law of the State or Territory; or
(b) a law that substantially corresponds to the provisions of this Law has been enacted;
(a) an individual; or
(b) a body corporate; or
(c) an eligible association; or
(d) a partnership; or
(e) a prescribed entity;
(a) by a family member or guardian of a child personally, otherwise than as a staff member of, or under an engagement with, a service providing education and care on a regular basis to children under 13 years of age; or
(b) by a friend of the family of the child personally under an informal arrangement where no offer to provide that education and care was advertised;
(a) granted under Part 2 of this Law or this Law as applying in another participating jurisdiction; and
(b) as amended under this Law or this Law as applying in another participating jurisdiction—
but does not include a provider approval that has been cancelled;
(a) a related provider under the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth, section 4A(3); or
(b) deemed by the Regulatory Authority to be a related provider under section 5B;
This definition is an additional NSW provision.
(a) a government school; or
(b) a non-government school that is registered or accredited under an education law of a participating jurisdiction;
(a) granted under Part 3 of this Law or this Law as applying in another participating jurisdiction; and
(b) as amended under this Law or this Law as applying in another participating jurisdiction—
but does not include a service approval that has been cancelled;
(a) the person has been assessed as suitable to work with children; or
(b) there has been no information that if the person worked with children the person would pose a risk to the children; or
(c) the person is not prohibited from attempting to obtain, undertake or remain in child-related employment;
In this Law, a reference (either generally or specifically) to a law or a provision of a law (including this Law) includes a reference to the statutory instruments made or in force under the law or provision.
In this Law a reference to education and care includes a reference to education or care.
In this Law, an education and care service as defined in subsection (1) is an education and care service even if the service also provides education and care to children of or over the age of 13 years.
In this Law, a children’s service as defined in subsection (1) is a children’s service even if the service also provides education and care to children of or over the age of 13 years.
In this Law, a reference to this Law as applying in a jurisdiction includes a reference to a law that substantially corresponds to this Law enacted in a jurisdiction.
In this Law,
In deciding whether a reasonable person would consider conduct inappropriate in an education and care service, the following must be considered—
(a) whether the conduct is expected practice in the provision of education and care services;
(b) the child’s age and stage of development;
(c) whether a child is likely to suffer emotional, psychological or physical harm as a result of the conduct;
(d) the purpose of the conduct, including whether the conduct, in the circumstances in which the conduct occurs, could be considered sexual or violent.
In deciding whether conduct is inappropriate conduct in relation to a child, the following is irrelevant—
(a) whether the child consents to the conduct;
(b) whether the person engaging in the conduct believes the child consents to the conduct.
A child may be subjected to conduct that is inappropriate conduct—
(a) in person, both directly and otherwise; or
Example— conduct witnessed by a child
(b) by communication, including—
(i) verbal communication; and
(ii) electronic communication received in real or close to real time; or
(c) by electronic capture, including photography and recording; or
(d) through a pattern of behaviour.
This section is an additional NSW provision.
For the purposes of this Law, each of the following persons is a
(a) if the provider or intended provider of the service is a body corporate—
(i) an officer (within the meaning of the Corporations Act 2001 of the Commonwealth) of the body corporate who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and
(ii) any other person who—
(A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or
(B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service;
(b) if the provider or intended provider of the service is an eligible association—
(i) each member of the executive committee of the association who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and
(ii) any other person who—
(A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or
(B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service;
(c) if the provider or intended provider of the service is a partnership—
(i) each partner who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and
(ii) any other person who—
(A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or
(B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service;
(d) in any other case, any person who—
(i) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or
(ii) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service.
The Regulatory Authority may deem a provider to be a related provider of an approved provider if the provider—
(a) shares one or more persons with management or control with the approved provider; or
(b) shares a person who is not a person with management or control in common with the approved provider; or
(c) owns part of the approved provider or receives dividends from the approved provider; or
(d) meets the characteristics prescribed by the regulations.
This section is an additional NSW provision.
The Regulatory Authority has the same functions and powers under this Law in relation to a related provider of an approved provider as the Regulatory Authority has in relation to the approved provider.
For subsection (1), a reference in this Law to an approved provider is taken to include a reference to the related providers of the approved provider.
This section is an additional NSW provision.
Schedule 1 applies in relation to this Law.
The National Partnership Agreement is declared to be a relevant document for the purposes of paragraph (h) of the definition of extrinsic material in clause 8(1) of Schedule 1.
It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of other participating jurisdictions, has the effect that an entity established by this Law is one single national entity, with functions conferred by this Law as so applied.
An entity established by this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction.
An entity established by this Law may exercise its functions in relation to—
(a) one participating jurisdiction; or
(b) 2 or more or all participating jurisdictions collectively.
(Repealed)
It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following—
(a) things situated in or outside the territorial limits of this jurisdiction;
(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.
This Law binds the State.
In this section—
(a) the Government of this jurisdiction; and
(b) a Minister of the Crown in right of this jurisdiction; and
(c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction.
A person, other than the following persons, may apply to the Regulatory Authority for a provider approval—
(a) a prescribed ineligible person;
(b) a person who has, in the previous 12 months, received a notice under section 16 that the Regulatory Authority has refused to grant the person a provider approval, unless the Regulatory Authority has notified the person that the person may apply for a provider approval within 12 months after receiving the notice;
(c) a person who has, in the previous 12 months, received a notice under section 50 that the Regulatory Authority has refused to grant the person a service approval, unless the Regulatory Authority has notified the person that the person may apply for a provider approval within 12 months after receiving the notice.
This subsection is a substituted NSW provision.
An application may be made by more than one person.
If an application is made by more than one person—
(a) the prescribed information must be provided in respect of each person; and
(b) the requirements of this Division must be complied with by and in respect of each person.
An application under section 10 must—
(a) be made to the Regulatory Authority of the participating jurisdiction—
(i) in which the applicant, or any of the applicants, is ordinarily resident; or
(ii) if the applicant or applicants are not individuals, in which the principal office of the applicant or any of the applicants is located; and
(b) be in writing; and
(c) include the prescribed information; and
(d) include payment of the prescribed fee.
An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service.
If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that—
(a) each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and
(b) the applicant is a fit and proper person to be involved in the provision of an education and care service.
The head of a government department administering an education law of a participating jurisdiction is taken to be a fit and proper person for the purposes of this Part.
In determining whether a person is a fit and proper person under this Division, the Regulatory Authority must have regard to—
(a) the person’s history of compliance with—
(i) this Law as applying in any participating jurisdiction; and
(ii) a former education and care services law of a participating jurisdiction; and
(iii) a children’s services law of a participating jurisdiction; and
(iv) an education law of a participating jurisdiction; and
Note. If a person has been served with an infringement notice for an offence under this Law, and the person has paid the penalty, the Regulatory Authority cannot consider that conduct when determining whether the person is fit and proper. See section 291(5).
(b) any decision under a former education and care services law, a children’s services law or an education law of a participating jurisdiction to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification or other authorisation granted to the person under that law; and
(c) either—
(i) any prescribed matters relating to the criminal history of the person to the extent that history may affect the person’s suitability for the role of provider of an education and care service; or
(ii) any check of the person under a working with vulnerable people law of a participating jurisdiction; and
(d) whether the person is bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors or, in the case of a body corporate, is insolvent under administration or an externally-administered body corporate.
Without limiting subsection (1), the Regulatory Authority may have regard to—
(a) whether the person has a medical condition that may cause the person to be incapable of being responsible for providing an education and care service in accordance with this Law; and
(b) whether the financial circumstances of the person may significantly limit the person’s capacity to meet the person’s obligations in providing an education and care service in accordance with this Law; and.
(c) whether the person has the management capability to operate an education and care service in accordance with this Law; and
(d) any of the following actions taken under the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth in relation to a child care service approved under that Act, operated by the person or in relation to which the person was a person with management or control—
(i) any sanction imposed under section 200 of that Act;
(ii) any suspension imposed under section 201A of that Act;
(iii) any infringement notice given under section 219TSI of that Act.
Nothing in subsection (1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service.
For the purpose of carrying out an assessment as to whether a person is a fit and proper person, the Regulatory Authority may—
(a) ask the person to provide further information, including for the purposes of assessing the person’s knowledge of the National Quality Framework; and
(b) undertake inquiries in relation to the person; and
(c) by written notification, require the person to undergo an oral or written assessment of the person’s knowledge of the National Quality Framework.
If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application.
If the Regulatory Authority requires the applicant to undergo an assessment under this section, the period from the giving of the notification until the conduct of the assessment is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application.
On an application under section 10, the Regulatory Authority may—
(a) grant the provider approval; or
(b) refuse to grant the provider approval.
A provider approval is granted subject to conditions in accordance with section 19.
The Regulatory Authority must not grant a provider approval unless the Authority is satisfied as to the matters in section 12.
Subject to subsection (4), the Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application.
If further information is requested under section 14(1)(a), the period between the making of the request and the provision of the information is not included in the 60 day period.
If an assessment is required under section 14(1)(c), the period between the giving of the notification and the conduct of the assessment is not included in the 60 day period.
The period referred to in subsection (3) may be extended by up to 30 days with the agreement of the applicant.
The Regulatory Authority is taken to have refused to grant a provider approval if the Regulatory Authority has not made a decision under subsection (1)—
(a) within the relevant period required under subsection (3); or
(b) within the period extended under subsection (4)—
as the case requires.
The Regulatory Authority must give written notice to the applicant of a decision under section 15 and the reasons for that decision within 7 days after the decision is made.
A provider approval granted under section 15 continues in force until it is cancelled or surrendered under this Law, or this Law as applying in a participating jurisdiction.
A provider approval authorises the approved provider to operate an approved education and care service and an associated children’s service if the approved provider is the holder of the service approval for those services.
A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority.
Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law.
A condition of a provider approval applies to the provider as the operator of any education and care service or associated children’s service, unless the condition expressly provides otherwise.
An approved provider must comply with the conditions of the provider approval.
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
This penalty is a substituted NSW provision.
In this section—
This subsection is an additional NSW provision.
If the Regulatory Authority grants a provider approval under this Part, the Regulatory Authority must provide a copy of the provider approval to the approved provider stating—
(a) the name of the approved provider; and
(b) if the approved provider is not an individual, the address of the principal office of the provider; and
(c) any conditions to which the approval is subject; and
(d) the date that the provider approval was granted; and
(e) the provider approval number; and
(f) any other prescribed matters.
The Regulatory Authority may at any time assess—
(a) whether an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or
(b) whether a person with management or control of an education and care service operated by an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or
(c) whether a person who becomes a person with management or control of an education and care service operated by the approved provider after the grant of the provider approval is a fit and proper person to be involved in the provision of an education and care service.
Sections 13 and 14 apply to the reassessment.
An approved provider may apply to the Regulatory Authority for an amendment of the provider approval.
The application must—
(a) be in writing; and
(b) include the prescribed information; and
(c) include payment of the prescribed fee.
The Regulatory Authority must decide the application by—
(a) amending the provider approval in the way applied for; or
(b) with the applicant’s written agreement, amending the provider approval in another way; or
(c) refusing to amend the provider approval.
The Regulatory Authority must make a decision on the application within 30 days after the Regulatory Authority receives the application.
Without limiting subsection (3), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.
The Regulatory Authority may amend a provider approval at any time without an application from the approved provider.
Without limiting subsection (1), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.
The Regulatory Authority must give written notice to the approved provider of the amendment.
An amendment under this section has effect—
(a) 14 days after the Regulatory Authority gives notice of the amendment under subsection (3); or
(b) if another period is specified by the Regulatory Authority, at the end of that period.
If the Regulatory Authority amends a provider approval under this Division, the Regulatory Authority must—
(a) provide an amended copy of the provider approval to the approved provider; and
(b) make any necessary amendments to any service approval held by the provider and provide an amended copy of the service approval to the approved provider.
The Regulatory Authority may suspend a provider approval if—
(a) the approved provider has been charged with an indictable offence, or with an offence that if committed in this jurisdiction would be an indictable offence, or any other circumstance indicates that the approved provider may not be a fit and proper person to be involved in the provision of an education and care service; or
(b) the approved provider has failed to comply with a condition of the provider approval; or
(c) the approved provider has failed to comply with this Law as applying in any participating jurisdiction; or
(d) action is being taken under Part 7 (other than a compliance direction) in respect of more than one education and care service operated by the approved provider; or
(e) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension); or
(f) the approved provider purported to transfer or receive a transfer of an approved education and care service without the consent of the Regulatory Authority; or
(g) the approved provider has not paid any outstanding prescribed fees; or
(h) under section 195H(1)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth, the approved provider’s approval as a provider has been cancelled for the reason that the approved provider has not satisfied, or is not satisfying, the provider eligibility rules in section 194C(b), (c) or (d) of that Act; or
Note It is a condition for continued approval of an approved provider that the approved provider continues to satisfy the provider eligibility rules—see section 195A(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.
(i) the approved provider has been refused approval as a provider under section 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth for the reason that the provider does not satisfy the provider eligibility rules in section 194C(b), (c) or (d) of that Act.
Note The Secretary must refuse to approve a provider if the Secretary is not satisfied that the provider satisfies the provider eligibility rules—see section 194B(1)(a) and (6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.
This section applies if the Regulatory Authority is considering the suspension of a provider approval under section 25.
The Regulatory Authority must first give the approved provider a notice (
(a) that the Regulatory Authority intends to suspend the provider approval; and
(b) the proposed period of suspension; and
(c) the reasons for the proposed suspension; and
(d) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed suspension.
After considering any written response from the approved provider received within the time allowed by section 26(2)(d), the Regulatory Authority may—
(a) if the suspension was proposed on a ground referred to in section 25(a), accept an undertaking from the approved provider under section 179A; or
(b) in any case—
(i) suspend the provider approval for a period not more than the prescribed period; or
(ii) decide not to suspend the provider approval.
The Regulatory Authority may suspend the provider approval on a ground referred to in section 25 without giving the approved provider a show cause notice under section 26 if the Regulatory Authority is satisfied that there is an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by an education and care service operated by the provider.
The suspension may not be for a period of more than 6 months.
The Regulatory Authority must give the approved provider written notice of the decision to suspend the provider approval.
The notice of a decision to suspend must set out the period of suspension and the date on which it takes effect.
The decision under section 27 to suspend takes effect at the end of 14 days after the date of the decision, or, if another period is specified by the Regulatory Authority, at the end of that period.
The decision under section 28 to suspend takes effect on the giving of the notice.
Subject to this section, if a provider approval is suspended under section 27 or 28 of this Law as applying in any participating jurisdiction, all service approvals held by the provider are also suspended for the same period.
A suspension under subsection (1) applies to both education and care services and any associated children’s services.
A person whose provider approval is suspended is taken not to be an approved provider for the period of the suspension.
A service approval is not suspended under subsection (1) during any period that a person is approved under section 41 to manage or control the education and care service.
The Regulatory Authority may consent under Part 3 to the transfer of a service approval that is suspended under section 27 or 28.
The suspension of the service approval ceases on the transfer taking effect, unless the conditions imposed by the Regulatory Authority on the consent to the transfer specify a later date.
The Regulatory Authority may cancel a provider approval if—
(a) the Regulatory Authority is satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or
(b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or
(c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or
(d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or
(e) the approved provider has breached a condition of the provider approval; or
(f) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension); or
(g) under section 195H(1)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth, the approved provider’s approval as a provider has been cancelled for the reason that the approved provider has not satisfied, or is not satisfying, the provider eligibility rules in section 194C(b), (c) or (d) of that Act; or
Note It is a condition for continued approval of an approved provider that the approved provider continues to satisfy the provider eligibility rules—see section 195A(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.
(h) the approved provider has been refused approval as a provider under section 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth for the reason that the provider does not satisfy the provider eligibility rules in section 194C(b), (c) or (d) of that Act.
Note The Secretary must refuse to approve a provider if the Secretary is not satisfied that the provider satisfies the provider eligibility rules—see section 194B(1)(a) and (6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.
The Regulatory Authority may also cancel a provider approval if the provider has ceased to operate or exist because the provider—
(a) has been deregistered under the Corporations Act 2001 of the Commonwealth; or
(b) is under administration or in liquidation; or
(c) is an association whose registration has been cancelled under the Associations Incorporations Act 2009; or
(d) has otherwise ceased to operate or exist.
This subsection is an additional NSW provision.
This section applies if the Regulatory Authority is considering the cancellation of a provider approval under section 31.
The Regulatory Authority must first give the approved provider a notice (
(a) that the Regulatory Authority intends to cancel the provider approval; and
(b) the reasons for the proposed cancellation; and
(c) that the approved provider may give the Regulatory Authority a written response to the proposed cancellation—
(i) for a proposed cancellation under section 31(1)—within 30 days after the notice is given; and
(ii) for a proposed cancellation under section 31(2)—within 14 days after the notice is given.
Note— This paragraph is a substituted NSW provision.
After considering any written response from the approved provider received within the time allowed under section 32(2)(c), the Regulatory Authority—
(a) may—
(i) cancel the provider approval; or
(ii) suspend the provider approval for a period not more than the prescribed period; or
(iii) decide not to cancel the provider approval; and
(b) must give the approved provider written notice of the decision.
The decision to cancel the provider approval takes effect at the end of 14 days after the date of the decision or, if another period is specified by the Regulatory Authority, at the end of that period.
The notice of a decision to cancel the provider approval must set out the date on which it takes effect.
This Law applies to a suspension of a provider approval under this section as if it were a suspension under section 27.
Subject to this section, if a provider approval is cancelled under section 33 of this Law as applying in any participating jurisdiction, all service approvals held by the person who was the approved provider are also cancelled.
A cancellation under subsection (1) applies to both education and care services and any associated children’s services.
A service approval is not cancelled under subsection (1) if before that cancellation a person is approved under section 41 to manage or control the education and care service.
A service approval is cancelled if a person referred to in subsection (3) ceases to manage or control the service.
A provider whose provider approval is to be cancelled under section 33 may apply to the Regulatory Authority under Part 3 for consent to transfer a service approval held by the provider.
The application for consent to transfer must be made within 14 days after the date of the decision to cancel the provider approval is made.
If an application for consent to transfer is made, the service approval is suspended until the Regulatory Authority determines the application.
The suspension of the service approval ceases on the transfer taking effect, unless the conditions of the transfer specify a later date.
If the Regulatory Authority refuses to consent to the transfer, the service approval is cancelled on the making of the decision to refuse consent.
This section applies if a show cause notice has been given to an approved provider under section 26 or 32.
The approved provider, at the request of the Regulatory Authority, must, within 7 days of the request, provide the Regulatory Authority with the contact details of the parents of all children enrolled at each education and care service operated by the approved provider.
The Regulatory Authority may use the information provided under subsection (2) solely to notify the parents of children enrolled at an education and care service about the suspension or cancellation.
This section applies if a provider approval has been suspended or cancelled under section 27, 28, 33 or 34.
The Regulatory Authority may require the person who is or was the approved provider to give written notice of the suspension or cancellation and its effect to the parents of children enrolled at all or any of the education and care services operated by that person.
A person must comply with a requirement made of that person under subsection (2).
Penalty—
(a) for an individual—$10,200; or
(b) for a large child care provider—$154,800; or
(c) otherwise—$51,600.
This penalty is a substituted NSW provision.
An approved provider may apply to the Regulatory Authority for a suspension of the provider approval for a period of not more than 12 months.
The application must—
(a) be in writing; and
(b) include the prescribed information; and
(c) include payment of the prescribed fee.
The approved provider must, at least 14 days before making an application under this section, notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to make the application.
The Regulatory Authority must within 30 days after the application is made decide whether or not to grant the application.
The Regulatory Authority must give written notice of its decision (including the period of suspension) to the approved provider.
If the Regulatory Authority decides to grant the application, the suspension takes effect on a date agreed between the Regulatory Authority and the approved provider.
A suspension under this section remains in force for the period of time specified in the notice.
The approved provider may apply to the Regulatory Authority to revoke the suspension before the end of the suspension period.
If the Regulatory Authority grants the application to revoke the suspension, the suspension ceases on the date determined by agreement with the approved provider.
If a provider approval is suspended under this section, each service approval held by the provider is also suspended for the same period unless—
(a) a person is approved under section 41 to manage or control the education and care service to which the approval relates; or
(b) the service approval is transferred under Division 3 of Part 3.
An approved provider may surrender the provider approval by written notice to the Regulatory Authority.
The notice must specify a date on which the surrender is intended to take effect which must be—
(a) after the notice is given; and
(b) after the end of the period of notice required under subsection (3).
The approved provider must notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to surrender the provider approval, at least 14 days before the surrender is intended to take effect.
If a provider approval is surrendered, the approval is cancelled on the date specified in the notice.
If a provider approval is surrendered, any service approval held by the provider is also taken to be surrendered.
If a service approval is surrendered, it is cancelled—see section 86. A cancelled service approval cannot be transferred—see definition of
This section applies if an approved provider dies.
A nominated supervisor or a person in day to-day charge of an education and care service of the approved provider must notify the Regulatory Authority of the approved provider’s death within 7 days after that death.
The executor of the estate of the approved provider may continue to operate any approved education and care service of the approved provider for the relevant period provided that at least one nominated supervisor continues to manage the day-to-day operation of the service.
The executor of the estate of the approved provider may transfer, surrender or apply for suspension of a service approval of the approved provider under this Law during the relevant period as if the executor were the approved provider.
The executor of the estate of the approved provider may apply to the Regulatory Authority for a provider approval.
The application must be made within 30 days of the death of the approved provider and must—
(a) be in writing; and
(b) include the prescribed information; and
(c) include payment of the prescribed fee.
In this section
(a) the period of 30 days after the death of the approved provider; or
(b) if the executor of the estate of the approved provider makes an application under subsection (5) within that period, until the application is finally determined under this Law.
This section applies if an approved provider has become incapacitated.
The legal personal representative or guardian of an approved provider may apply to the Regulatory Authority for a provider approval.
The application must—
(a) be in writing; and
(b) include the prescribed information; and
(c) include payment of the prescribed fee.
The Regulatory Authority must not grant a provider approval to a person who has made an application under section 39 or 40 unless the Regulatory Authority is satisfied that the person is a fit and proper person to be involved in the provision of an education and care service.
Sections 12, 13 and 14 apply to the assessment of a person under subsection (1).
Subject to this section, the Regulatory Authority may—
(a) grant the provider approval; or
(b) grant the provider approval subject to conditions; or
(c) refuse to grant the provider approval.
An approval under this section—
(a) may be granted for a period of not more than 6 months; and
(b) may be extended or further extended for periods of not more than 6 months—
at the discretion of the Regulatory Authority.
The provider approval is granted only in relation to the operation of the approved education and care services of the approved provider for whom the applicant is the executor, legal personal representative or guardian, as the case requires.
This section applies if the Regulatory Authority has granted a provider approval under this Part.
A Regulatory Authority of another participating jurisdiction may exercise all of the powers and perform all of the functions of the Regulatory Authority under this Part (except Division 5) in respect of the provider approval if the approved provider operates an approved education and care service in that participating jurisdiction.
A Regulatory Authority (including the Regulatory Authority of this jurisdiction) may only exercise a power to amend, suspend or cancel a provider approval after consulting with the Regulatory Authority of each participating jurisdiction in which the approved provider operates an approved education and care service.
A failure by a Regulatory Authority to comply with subsection (3) does not affect the validity of the exercise of the power.
A cancellation or suspension of a provider approval in another participating jurisdiction has effect in this jurisdiction.
A person, other than the following persons, may apply to the Regulatory Authority for a service approval—
(a) a person who has, in the previous 12 months, received a notice under section 16 that the Regulatory Authority has refused to grant the person a provider approval, unless the Regulatory Authority has notified the person that the person may apply for a service approval within 12 months after receiving the notice;
(b) a person who has, in the previous 12 months, received a notice under section 50 that the Regulatory Authority has refused to grant the person a service approval, unless the Regulatory Authority has notified the person that the person may apply for a service approval within 12 months after receiving the notice.
This subsection is a substituted NSW provision.
An approved provider may only apply for a service approval for an education and care service if the approved provider is or will be the operator of the education and care service and is or will be responsible for the management of the staff members and nominated supervisors of that service.
A person who has applied for a provider approval may apply to the Regulatory Authority for a service approval, however the Regulatory Authority must not grant the service approval unless the provider approval is granted.
Mandatory approval in principle jurisdictions require an approved provider to hold an approval in principle under Part 4 for the education and care service premises as a precondition of service approval. See section 49A.
An application for a service approval must—
(a) be made to the Regulatory Authority of the participating jurisdiction in which the service is to be located; and
(b) be in writing; and
(c) include the prescribed information; and
(d) nominate one or more individuals to be nominated supervisors of the service; and
(da) include from each nominated individual (other than the approved provider) the written consent to the nomination; and
(e) include payment of the prescribed fee.
An application for service approval may include an associated children’s service.
An application for a service approval for a family day care service may include a request for approval of a place (other than a residence) as a family day care venue for that service.
This approval is granted under section 50A only if exceptional circumstances exist.
The Regulatory Authority may ask an applicant for a service approval to provide any further information that is reasonably required for the purpose of assessing the application.
If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 48 for the Regulatory Authority to make a decision on the application.
For the purposes of determining an application for a service approval, the Regulatory Authority may—
(a) undertake inquiries and investigations, including inquiries relating to the previous licensing, accreditation or registration of the education and care service under a former education and care services law, a children’s services law or an education law of any participating jurisdiction; and
(b) inspect the education and care service premises; and
(c) inspect the policies and procedures of the service.
For the purposes of an inspection under subsection (1)(b) or (c), the Regulatory Authority may enter the education and care service premises at any reasonable time.
Subject to subsection (3), in determining an application under section 43, the Regulatory Authority must have regard to—
(a) the National Quality Framework; and
(b) except in the case of a family day care residence, the suitability of the education and care service premises and the site and location of those premises for the operation of an education and care service; and
(ba) any approval in principle held by the approved provider for the education and care service premises, and whether the premises were constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle; and
Note The approval in principle process in Part 4 only applies to certain premises in certain participating jurisdictions. See section 105.
(c) the adequacy of the policies and procedures of the service; and
(d) whether the applicant has a provider approval; and
(e) except in the case of a nominated supervisor who is the approved provider, whether each nominated supervisor has consented in writing to the nomination; and
(f) any other matter the Regulatory Authority thinks fit; and
(g) any other prescribed matter.
In addition, the Regulatory Authority may have regard to either of the following—
(a) whether the applicant is capable of operating the education and care service having regard to its financial capacity and management capability and any other matter the Regulatory Authority considers relevant;
(b) the applicant’s history of compliance with this Law or this Law as applying in any participating jurisdiction, including in relation to any other education and care service it operates.
Subject to subsection (4), in assessing an associated children’s service for the purposes of determining whether to grant a service approval, the Regulatory Authority must have regard to the criteria under the children’s services law of this jurisdiction for the grant of a children’s services licence.
The criteria referred to in subsection (3) do not include criteria relating to whether the applicant is a fit and proper person.
On an application under section 43, the Regulatory Authority may—
(a) grant the service approval; or
(b) refuse to grant the service approval.
A service approval is granted subject to conditions in accordance with section 51.
Subject to subsection (3), the Regulatory Authority must make a decision on the application within 90 days after the Regulatory Authority received the application.
If further information is requested under section 45(2), the period between the making of the request and the provision of the information is not included in the 90 day period.
The period referred to in subsection (2) may be extended with the agreement of the applicant.
The Regulatory Authority may grant a service approval solely for an education and care service if—
(a) the application includes an application for an associated children’s service; and
(b) that associated children’s service does not comply with the criteria referred to in section 47(3).
The Regulatory Authority is taken to have refused to grant a service approval if the Regulatory Authority has not made a decision under subsection (1)—
(a) within the relevant time required under subsection (2); or
(b) within the period extended under subsection (3)—
as the case requires.
A service approval cannot be granted solely for an associated children’s service.
The Regulatory Authority must refuse to grant a service approval if—
(a) the Regulatory Authority is satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the education and care service; or
(b) the applicant does not have a provider approval.
The Regulatory Authority may refuse to grant a service approval on any other grounds prescribed in the national regulations.
The Regulatory Authority must not refuse to grant a service approval on the ground that the education and care service premises do not meet the approval in principle criteria if—
(a) the approved provider is an approval in principle holder for the premises; and
(b) the premises were constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle.
The approval in principle process in Part 4 only applies to certain premises in certain participating jurisdictions. See section 105.
Subsection (3) does not prevent the Regulatory Authority from refusing to grant a service approval on any other ground, including a ground set out in subsection (1)(a) or section 47(1)(b).
This section applies to, and in relation to, a Part 4 jurisdiction if a law of the Part 4 jurisdiction, or an instrument made under that law, specifically declares that section 49A of this Law applies.
Without limiting section 49(1), the Regulatory Authority must refuse to grant a service approval if—
(a) the education and care service premises for the service (other than a family day care service) are located in a Part 4 building; and
(b) under a Part 4 planning law or Part 4 building law (or both) of the Part 4 jurisdiction, a permit or approval is or was required for the construction, alteration or repair of the premises or the development of the land; and
(c) either—
(i) the approved provider is not the approval in principle holder for the premises; or
(ii) the premises are not constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle.
Despite subsection (2), the Regulatory Authority may grant a service approval for an education and care service—
(a) if satisfied that—
(i) the service approval is required for the emergency relocation of an education and care service; and
(ii) the education and care service premises is the most suitable available premises for the education and care service; or
(b) in any other prescribed circumstances.
Subsection (2) does not apply if—
(a) a service approval was previously granted for an education and care service at the premises; and
(b) since the cancellation or surrender of that service approval, there has been no further construction, alteration or repair of the premises requiring a permit or approval under a Part 4 planning law or Part 4 building law (or both) of the Part 4 jurisdiction.
The Regulatory Authority must give written notice to the applicant of a decision under section 48 and the reasons for the decision within 7 days after the decision is made.
The Regulatory Authority may, at the time of granting the service approval for a family day care service, approve a place (other than a residence) as a family day care venue for that service if the Regulatory Authority considers exceptional circumstances exist.
A service approval is granted subject to the condition that the education and care service is operated in a way that—
(a) ensures the safety, health and wellbeing of the children being educated and cared for by the service; and
(b) meets the educational and developmental needs of the children being educated and cared for by the service.
A service approval for a family day care service is granted subject to a condition that the approved provider must ensure that each family day care educator engaged by or registered with the service is adequately monitored and supported by a family day care co-ordinator.
A service approval for a family day care service is granted subject to a condition that each family day care residence, and any approved family day care venue of the service, are to be located within this jurisdiction.
A service approval is granted subject to a condition that the service must commence ongoing operation of the service within 6 months after the approval is granted unless the Regulatory Authority agrees to an extension of time.
A service approval is granted subject to a condition that the approved provider must hold the prescribed insurance in respect of the education and care service.
A service approval for an education and care service other than a family day care service is granted subject to a condition that the approved provider must ensure that the number of children educated and cared for by the service at any one time does not exceed the maximum number of children specified in the service approval.
An approved provider is not required to comply with subsection (4A) if—
(a) the maximum number of children is exceeded because a child is, or 2 or more children from the same family are, being educated and cared for by the education and care service in an emergency; and
(b) the approved provider is satisfied on reasonable grounds that this will not affect the health, safety and wellbeing of any other child who is attending the education and care service.
An emergency under this subsection would include circumstances where a child is in need of protection under a child protection order or where the parent of a child needs urgent health care that prevents that parent caring for the child.
A service approval is granted subject to any other conditions prescribed in the national regulations or imposed by—
(a) this Law; or
(b) the Regulatory Authority.
A condition of a service approval does not apply to an associated children’s service unless the condition is expressed to apply to that associated children’s service.
A condition of a service approval may be expressed to apply solely to an associated children’s service only if the Regulatory Authority has first consulted with the children’s services regulator.
An approved provider must comply with the conditions of a service approval held by the approved provider.
Penalty—
(a) for an individual—$34,200; or
(b) for a large child care provider—$516,600; or
(c) otherwise—$172,200.
This penalty is a substituted NSW provision.
If the Regulatory Authority grants a service approval under this Part, the Regulatory Authority must provide a copy of the service approval to the approved provider stating—
(a) the name of the education and care service; and
(b) the location of the education and care service or, if the education and care service is a family day care service, the location of the principal office of the service and any approved family day care venue for the service; and
(c) any conditions to which the service approval is subject; and
(d) the date the service approval was granted; and
(e) the service approval number; and
(f) the name of the approved provider; and
(g) for a service other than a family day care service, the maximum number of children who can be educated and cared for by the service at any one time; and
(h) the details of any service waiver under Division 5 or temporary waiver under Division 6 applying to the service; and
(i) any other prescribed matters.
An approved provider must, in accordance with the national regulations, pay the prescribed annual fee in respect of each service approval held by the approved provider.
An approved provider may apply to the Regulatory Authority for an amendment of a service approval.
An application under subsection (1) may include a request for the approval of a place (other than a residence) as a family day care venue for a family day care service.
An application must—
(a) be in writing; and
(b) include the prescribed information; and
(c) include payment of the prescribed fee.
The Regulatory Authority may ask the approved provider to provide any further information that is reasonably required for the purpose of assessing the application.
If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in subsection (5).
The Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application.
The Regulatory Authority must decide the application by—
(a) amending the service approval in the way applied for; or
(b) with the applicant’s written agreement, amending the service approval in another way; or
(c) refusing to amend the service approval.
Without limiting subsection (6), an amendment may vary a condition of the service approval or impose a new condition on the service approval.
Subject to subsection (8A), an amendment cannot change a location of an education and care service.
The Regulatory Authority may approve a place (other than a residence) as a family day care venue for a family day care service if the Regulatory Authority considers exceptional circumstances exist.
The Regulatory Authority must give written notice of its decision to the approved provider.
The Regulatory Authority may amend a service approval at any time without an application from the approved provider.
Without limiting subsection (1), an amendment may vary a condition of the service approval or impose a new condition on the service approval.
The Regulatory Authority must give written notice of the amendment to the approved provider.
An amendment under this section has effect—
(a) 14 days after the Regulatory Authority gives notice of the amendment under subsection (3); or
(b) if another period is specified by the Regulatory Authority, at the end of that period.
The Regulatory Authority must amend a service approval to the extent that it relates to an associated children’s service in accordance with any direction by the children’s services regulator if that direction is given in accordance with the children’s services law of this jurisdiction.
Without limiting section 55, an amendment under that section may impose a condition on the service approval for a family day care service requiring the approved provider to ensure that there is a minimum of one qualified person employed or engaged as a family day care co-ordinator for every 15 family day care educators (or part of that number) engaged by or registered with that service.
If between 1 and 15 family day care educators are engaged by or registered with the family day care service, at least one qualified person must be employed or engaged by the approved provider as a family day care co-ordinator. If between 16 and 30 family day care educators are engaged by or registered with the family day care service, at least 2 qualified persons must be employed or engaged by the approved provider as a family day care co-ordinator.
If between 16 and 30 family day care educators are engaged by or registered with the family day care service, at least 2 qualified persons must be employed or engaged by the approved provider as a family day care co-ordinator.
A condition may only be imposed under subsection (1) if—
(a) the family day care service has been operating for more than 12 months; and
(b) the Regulatory Authority—
(i) has taken into account the approved provider’s capability and compliance with this Law in respect of the family day care service; and
(ii) considers that family day care educators are not adequately monitored and supported by a family day care co-ordinator.
Section 163 does not apply if a condition is imposed under subsection (1) in respect of a family day care service.
A person is a qualified person under this section if the person has the qualifications prescribed by the national regulations.
The approved provider of an education and care service must give written notice to the Regulatory Authority in accordance with this section if the approved provider wishes to add a new nominated supervisor of the education and care service.
The notice must—
(a) nominate one or more individuals to be nominated supervisors of the service and, unless the individual nominated is the approved provider, include from each nominated individual the written consent to the nomination; and
(b) include the prescribed information; and
(c) be given—
(i) at least 7 days before the individual is to commence work as a nominated supervisor; or
(ii) if that period of notice is not possible in the circumstances, as soon as practicable but not more than 14 days after the individual commences work as a nominated supervisor.
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy;
whichever happens first.
The appointment ceases to have effect if the appointee resigns by writing signed and delivered to the appointer.
While the appointee is acting in the office—
(a) the appointee has all the powers and functions of the holder of the office; and
(b) this Law and other laws apply to the appointee as if the appointee were the holder of the office.
Anything done by or in relation to a person purporting to act in the office is not invalid merely because—
(a) the occasion for the appointment had not arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not arisen or had ceased.
If this Law authorises the appointer to appoint a person to act during a vacancy in the office, an appointment to act in the office may be made by the appointer whether or not an appointment has previously been made to the office.
If this Law authorises or requires a person or body to appoint a person to an office—
(a) the power may be exercised from time to time as occasion requires; and
(b) the power includes—
(i) power to remove or suspend, at any time, a person appointed to the office; and
(ii) power to appoint another person to act in the office if a person appointed to the office is removed or suspended; and
(iii) power to reinstate or reappoint a person removed or suspended; and
(iv) power to appoint a person to act in the office if it is vacant (whether or not the office has ever been filled); and
(v) power to appoint a person to act in the office if the person appointed to the office is absent or is unable to discharge the functions of the office (whether because of illness or otherwise).
The power to remove or suspend a person under subclause (1)(b) may be exercised even if this Law provides that the holder of the office to which the person was appointed is to hold office for a specified period.
The power to make an appointment under subclause (1)(b) may be exercised from time to time as occasion requires.
An appointment under subclause (1)(b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.
If this Law authorises a person or body to delegate a function, the person or body may, in accordance with this Law and any other applicable law, delegate the function to—
(a) a person or body by name; or
(b) a specified officer, or the holder of a specified office, by reference to the title of the office concerned.
The delegation may be—
(a) general or limited; and
(b) made from time to time; and
(c) revoked, wholly or partly, by the delegator.
The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.
A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.
The delegate may, in the performance of a delegated function, do anything that is incidental to the delegated function.
A delegated function that purports to have been exercised by the delegate is taken to have been properly exercised by the delegate unless the contrary is proved.
A delegated function that is properly exercised by the delegate is taken to have been exercised by the delegator.
If, when exercised by the delegator, a function is dependent on the delegator’s opinion, belief or state of mind, then, when exercised by the delegate, the function is dependent on the delegate’s opinion, belief or state of mind.
If—
(a) the delegator is a specified officer or the holder of a specified office; and
(b) the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the holder of the office;
then—
(c) the delegation continues in force; and
(d) the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this clause.
If—
(a) the delegator is a body; and
(b) there is a change in the membership of the body;
then—
(c) the delegation continues in force; and
(d) the body as constituted for the time being is taken to be the delegator for the purposes of this clause.
If a function is delegated to a specified officer or the holder of a specified office—
(a) the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the function was delegated ceases to be the officer or the holder of the office; and
(b) the function may be exercised by the person for the time being occupying or acting in the office concerned.
A function that has been delegated may, despite the delegation, be exercised by the delegator.
The delegation of a function does not relieve the delegator of the delegator’s obligation to ensure that the function is properly exercised.
Subject to subclause (15), this clause applies to a subdelegation of a function in the same way as it applies to a delegation of a function.
If this Law authorises the delegation of a function, the function may be subdelegated only if the Law expressly authorises the function to be subdelegated.
If a provision of this Law (the
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative character; or
(c) to do another thing;
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
If a provision of a Victorian Act (the
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or administrative character; or
(c) to do another thing;
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
If—
(a) this Law has commenced and confers a power to make a statutory instrument (the
basic instrument-making power ); and(b) a provision of a Victorian Act that does not commence on its enactment would, had it commenced, amend this Law so as to confer additional power to make a statutory instrument (the
additional instrument-making power );
then—
(c) the basic instrument-making power and the additional instrument-making power may be exercised by making a single instrument; and
(d) any provision of the instrument that required an exercise of the additional instrument-making power is to be treated as made under subclause (2).
If an instrument, or a provision of an instrument, is made under subclause (1) or (2) that is necessary for the purpose of—
(a) enabling the exercise of a power mentioned in the subclause; or
(b) bringing an appointment, instrument or other thing made or done under such a power into effect;
the instrument or provision takes effect—
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at such later time (if any) at which, the instrument or provision is expressed to take effect.
If—
(a) an appointment is made under subclause (1) or (2); or
(b) an instrument, or a provision of an instrument, made under subclause (1) or (2) is not necessary for a purpose mentioned in subclause (4);
the appointment, instrument or provision takes effect—
(c) on the commencement of the relevant empowering provision; or
(d) on such later day (if any) on which, or at such later time (if any) at which, the appointment, instrument or provision is expressed to take effect.
Anything done under subclause (1) or (2) does not confer a right, or impose a liability, on a person before the relevant empowering provision commences.
After the enactment of a provision mentioned in subclause (2) but before the provision’s commencement, this clause applies as if the references in subclauses (2) and (5) to the commencement of the empowering provision were references to the commencement of the provision mentioned in subclause (2) as amended by the empowering provision.
In the application of this clause to a statutory instrument, a reference to the enactment of the instrument is a reference to the making of the instrument.
In the measurement of distance for the purposes of this Law, the distance is to be measured along the shortest road ordinarily used for travelling.
If a period beginning on a given day, act or event is provided or allowed for a purpose by this Law, the period is to be calculated by excluding the day, or the day of the act or event, and—
(a) if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
(b) in any other case—by including the day on which the purpose is to be fulfilled.
If the last day of a period provided or allowed by this Law for doing anything is not a business day in the place in which the thing is to be or may be done, the thing may be done on the next business day in the place.
If the last day of a period provided or allowed by this Law for the filing or registration of a document is a day on which the office is closed where the filing or registration is to be or may be done, the document may be filed or registered at the office on the next day that the office is open.
If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the prescribed occasion happens.
If, in this Law, there is a reference to time, the reference is, in relation to the doing of anything in a jurisdiction, a reference to the legal time in the jurisdiction.
For the purposes of this Law, a person attains an age in years at the beginning of the person’s birthday for the age.
If a provision of this Law is expressed—
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise have effect, until a specified day;
this provision has effect until the last moment of the specified day.
If a provision of this Law is repealed or amended by a Victorian Act, or a provision of a Victorian Act, the provision is not revived merely because the Victorian Act or the provision of the Victorian Act—
(a) is later repealed or amended; or
(b) later expires.
The repeal, amendment or expiry of a provision of this Law does not—
(a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b) affect the previous operation of the provision or anything suffered, done or begun under the provision; or
(c) affect a right, privilege or liability acquired, accrued or incurred under the provision; or
(d) affect a penalty incurred in relation to an offence arising under the provision; or
(e) affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty.
Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.
If a Victorian Act repeals some provisions of this Law and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.
This Law and all Victorian Acts amending this Law are to be read as one.
This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Law, and things that may be done or are required to be done under this Law, except so far as the context or subject matter otherwise indicates or requires.
The fact that a provision of this Schedule refers to this Law and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Law.
This Law has effect in and relation to the coastal sea of this jurisdiction as if that coastal sea were part of this jurisdiction.
An authorised officer may apply to a magistrate of a participating jurisdiction for a search warrant in relation to premises if the officer believes on reasonable grounds that—
(a) a person is or has been operating an education and care service at the premises in contravention of this Law; or
(b) documents or other evidence relevant to the possible commission of an offence against this Law are present at the premises.
The authorised officer must prepare a written application that states the grounds on which the warrant is sought.
The written application must be sworn.
The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
The magistrate may issue the warrant in respect of premises only if the magistrate is satisfied there are reasonable grounds to believe that—
(a) a person is operating an education and care service at the premises in contravention of this Law; or
(b) documents or other evidence relevant to the possible commission of an offence against this Law are present at the premises.
The warrant must state—
(a) that a stated authorised officer may, with necessary and reasonable help and force—
(i) enter the premises and any other premises necessary for entry; and
(ii) exercise the authorised officer’s powers under this Schedule; and
(b) the matter for which the warrant is sought; and
(c) the evidence that may be seized under the warrant; and
(d) the hours of the day or night when the premises may be entered; and
(e) the date, within 14 days after the warrant’s issue, the warrant ends.
An authorised officer may apply for a warrant by phone, facsimile, email, radio, video conferencing or another form of communication if the authorised officer considers it necessary because of—
(a) urgent circumstances; or
(b) other special circumstances, including the authorised officer’s remote location.
The application—
(a) may not be made before the authorised officer prepares the written application under clause 1(2); but
(b) may be made before the written application is sworn.
The magistrate may issue the warrant (the
(a) it was necessary to make the application under subclause (1); and
(b) the way the application was made under subclause (1) was appropriate.
After the magistrate issues the original warrant—
(a) if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised officer, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised officer; or
(b) otherwise—
(i) the magistrate must tell the authorised officer the date and time the warrant is issued and the other terms of the warrant; and
(ii) the authorised officer must complete a form of warrant including by writing on it—
(A) the magistrate’s name; and
(B) the date and time the magistrate issued the warrant; and
(C) the other terms of the warrant.
The copy of the warrant referred to in subclause (4)(a), or the form of warrant completed under subclause (4)(b) (in either case the
The authorised officer must, at the first reasonable opportunity, send to the magistrate—
(a) the written application complying with clause 1(2) and (3); and
(b) if the authorised officer completed a form of warrant under subclause (4)(b), the completed form of warrant.
The magistrate must keep the original warrant and, on receiving the documents under subclause (6), file the original warrant and documents in the court.
Despite subclause (5), if—
(a) an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this clause; and
(b) the original warrant is not produced in evidence—
the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.
This clause does not limit clause 1.
Before entering premises under a warrant, an authorised officer must do or make a reasonable attempt to do the following—
(a) identify himself or herself to a person present at the premises who is an occupier of the premises by producing the authorised officer’s identity card;
(b) give the person a copy of the warrant;
(c) tell the person the authorised officer is permitted by the warrant to enter the premises;
(d) give the person an opportunity to allow the authorised officer immediate entry to the premises without using force.
However, the authorised officer need not comply with subclause (1) if the authorised officer reasonably believes that immediate entry to the premises is required to ensure the effective execution of the warrant is not frustrated.
This clause applies if an authorised officer enters premises under clause 4.
The authorised officer may for the purposes of the investigation do the following—
(a) search any part of the premises;
(b) inspect, measure, test, photograph or film, or make audio recordings of, any part of the premises or anything at the premises;
(c) take a thing, or a sample of or from a thing, at the premises for analysis, measurement or testing;
(d) copy, or take an extract from, a document, at the premises;
(e) take into or onto the premises any person, equipment and materials the authorised officer reasonably requires for exercising a power under this Schedule;
(f) require the occupier of the premises, or a person at the premises, to give the authorised officer reasonable help to exercise the authorised officer’s powers under paragraphs (a) to (e);
(g) require the occupier of the premises, or a person at the premises, to give the authorised officer information to help the authorised officer in conducting the investigation.
Children (Education and Care Services) National Law (NSW) (applied and modified as a law of New South Wales by the Children (Education and Care Services National Law Application) Act 2010 No 104). Date of commencement, except Parts 2–9, sec 229, Part 12, Divs 1–5 of Part 13, secs 271, 272, 279, 280, 282, 285–288, 289 (3) and (4) and 290–292, Divs 5–7 of Part 14, Divs 1 and 2 of Part 15, secs 322 and 323 and Sch 2), 1.1.2011, sec 2 and 2010 (695) LW 16.12.2010; date of commencement of Parts 2–9, sec 229, Part 12, Divs 1–5 of Part 13, secs 271, 272, 279, 280, 282, 285–288, 289 (3) and (4) and 290–292, Divs 5–7 of Part 14, Divs 1 and 2 of Part 15, secs 322 and 323 and Sch 2 (except secs 70 (d), 152, 153 (2)–(4), 154–160, 172 (d), 266–268 and 270 (1) (d) and (2)–(4)), 1.1.2012, sec 2 and 2011 (688) LW 23.12.2011; date of commencement of secs 70 (d), 152, 153 (2)–(4), 154–160, 172 (d), 266–268 and 270 (1) (d) and (2)–(4), 1.5.2013, sec 2 and 2013 (149) LW 19.4.2013. This Law has been amended as follows—
No 80 | Children’s Services Amendment Act 2011 of Victoria. Assented to 21.12.2011. Date of commencement of secs 62–78, the day after the date of assent, sec 2 (1). | |
No 9 | Education and Care Services National Law Amendment Act 2017 of Victoria. Assented to 27.3.2017. Date of commencement of secs 4–29 and 31–67, 1.10.2017, sec 2 and Special Gazette No 303 of 12.9.2017, p 1; date of commencement of secs 30, 31 and 68: 1.2.2018, sec 2 and Special Gazette No 303 of 12.9.2017, p 1. | |
No 20 | Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017 of Victoria. Assented to 16.5.2017. Date of commencement of item 7 of Sch 1, 1.9.2017, sec 2 (3). | |
No 43 | Early Childhood Legislation Amendment Act 2022 of Victoria. Assented to 27.9.2022. Date of commencement of secs 15–21, 34 and 38, 1.7.2023, sec 2(3) and Special Gazette No 253 of 23.5.2023, p 1.; date of commencement of secs 22–33 and 35–37 and Part 7, 1.10.2023, sec 2(4). | |
No 33 | Early Childhood Legislation Amendment (Premises Approval in Principle) Act 2023 of Victoria. Assented to 21.11.2023. Date of commencement of Part 2, the day after the date of assent, sec 2(1). | |
No 56 | Child Protection (Working with Children) and Other Legislation Amendment Act 2025. Assented to 23.9.2025. Date of commencement of Sch 2, assent, sec 2(b). | |
No 68 | Children (Education and Care Services National Law Application) Amendment Act 2025. Assented to 28.10.2025. Date of commencement of Sch 1[6], except to the extent it inserts Sch 1[1B] [1C], to the extent it inserts the definitions of |
No reference is made to amendments made by Acts of Parliament of Victoria.
Sec 3A | Ins 2025 No 68, Sch 1[6]. |
Sec 4 | Am 2025 No 68, Sch 1[6]. |
Sec 5 | Am 2025 No 56, Sch 2[2]; 2025 No 68, Sch 1[6]. |
Sec 5AA | Ins 2025 No 68, Sch 1[6]. |
Sec 5B | Ins 2025 No 68, Sch 1[6]. |
Sec 5C | Ins 2025 No 68, Sch 1[6]. |
Sec 10 | Am 2025 No 68, Sch 1[6]. |
Sec 19 | Am 2025 No 68, Sch 1[6]. |
Sec 31 | Am 2025 No 68, Sch 1[6]. |
Sec 32 | Am 2025 No 68, Sch 1[6]. |
Sec 36 | Am 2025 No 68, Sch 1[6]. |
Sec 43 | Am 2025 No 68, Sch 1[6]. |
Sec 51 | Am 2025 No 68, Sch 1[6]. |
Sec 68 | Am 2025 No 68, Sch 1[6]. |
Sec 69 | Am 2025 No 68, Sch 1[6]. |
Sec 84 | Am 2025 No 68, Sch 1[6]. |
Sec 87 | Am 2025 No 68, Sch 1[6]. |
Sec 90 | Am 2025 No 68, Sch 1[6]. |
Sec 91 | Am 2025 No 68, Sch 1[6]. |
Sec 103 | Am 2025 No 68, Sch 1[6]. |
Sec 103A | Am 2025 No 68, Sch 1[6]. |
Sec 104 | Am 2025 No 68, Sch 1[6]. |
Sec 134 | Am 2025 No 68, Sch 1[6]. |
Sec 135 | Am 2025 No 68, Sch 1[6]. |
Sec 138A | Ins 2025 No 68, Sch 1[6]. |
Sec 140A | Ins 2025 No 68, Sch 1[6]. |
Sec 161 | Am 2025 No 68, Sch 1[6]. |
Sec 161A | Am 2025 No 68, Sch 1[6]. |
Sec 162 | Am 2025 No 68, Sch 1[6]. |
Sec 163 | Am 2025 No 68, Sch 1[6]. |
Sec 164 | Am 2025 No 68, Sch 1[6]. |
Sec 164A | Am 2025 No 68, Sch 1[6]. |
Sec 165 | Am 2025 No 68, Sch 1[6]. |
Sec 166 | Am 2025 No 68, Sch 1[6]. |
Sec 166A | Ins 2025 No 68, Sch 1[6]. |
Sec 167 | Am 2025 No 68, Sch 1[6]. |
Sec 168 | Am 2025 No 68, Sch 1[6]. |
Sec 169 | Am 2025 No 68, Sch 1[6]. |
Sec 170 | Am 2025 No 56, Sch 2[2]; 2025 No 68, Sch 1[7]. |
Sec 171 | Am 2025 No 68, Sch 1[8]. |
Sec 172 | Am 2025 No 68, Sch 1[8]. |
Sec 173 | Am 2025 No 68, Sch 1[8]. |
Sec 174 | Am 2025 No 68, Sch 1[8]. |
Sec 174A | Am 2025 No 68, Sch 1[8]. |
Sec 174AA | Ins 2025 No 68, Sch 1[8]. |
Sec 174AB | Ins 2025 No 68, Sch 1[8]. |
Sec 175 | Am 2025 No 68, Sch 1[8]. |
Sec 176 | Am 2025 No 68, Sch 1[8]. |
Sec 177 | Am 2025 No 68, Sch 1[8]. |
Sec 179 | Am 2025 No 68, Sch 1[8]. |
Sec 187 | Am 2025 No 68, Sch 1[8]. |
Sec 188 | Am 2025 No 68, Sch 1[8]. |
Sec 188A | Subst 2025 No 68, Sch 1[8]. |
Sec 190 | Am 2025 No 68, Sch 1[8]. |
Sec 191 | Am 2025 No 68, Sch 1[8]. |
Sec 192 | Am 2025 No 56, Sch 2[2]; 2025 No 68, Sch 1[8] [9]. |
Sec 196 | Am 2025 No 68, Sch 1[9]. |
Sec 206 | Am 2025 No 68, Sch 1[9]. |
Sec 207 | Am 2025 No 68, Sch 1[9]. |
Sec 208 | Am 2025 No 68, Sch 1[9]. |
Sec 209 | Am 2025 No 68, Sch 1[9]. |
Sec 210 | Am 2025 No 68, Sch 1[9]. |
Sec 217 | Am 2025 No 68, Sch 1[9]. |
Sec 218 | Am 2025 No 68, Sch 1[9]. |
Part 10A | Ins 2025 No 68, Sch 1[9]. |
Sec 223A | Ins 2025 No 68, Sch 1[9]. |
Sec 223B | Ins 2025 No 68, Sch 1[9]. |
Sec 261A | Ins 2025 No 68, Sch 1[9]. |
Sec 261B | Ins 2025 No 68, Sch 1[9]. |
Sec 269 | Am 2025 No 68, Sch 1[9]. |
Sec 270 | Am 2025 No 68, Sch 1[9]. |
Sec 270A | Ins 2025 No 68, Sch 1[9]. |
Sec 272 | Am 2025 No 68, Sch 1[9]. |
Sec 273 | Am 2025 No 68, Sch 1[9]. |
Sec 284 | Subst 2025 No 68, Sch 1[9]. |
Sec 287A | Ins 2025 No 68, Sch 1[9]. |
Sec 291 | Am 2025 No 68, Sch 1[9]. |
Sec 295 | Am 2025 No 68, Sch 1[9]. |
Part 14, Div 7 | Subst 2025 No 68, Sch 1[9]. |
Part 14, Div 7, Subdiv 1 | Ins 2025 No 68, Sch 1[9]. |
Sec 296 | Subst 2025 No 68, Sch 1[9]. |
Sec 297 | Subst 2025 No 68, Sch 1[9]. |
Sec 298 | Subst 2025 No 68, Sch 1[9]. |
Part 14, Div 7, Subdiv 2 | Ins 2025 No 68, Sch 1[9]. |
Sec 299 | Subst 2025 No 68, Sch 1[9]. |
Sec 300 | Subst 2025 No 68, Sch 1[9]. |
Sec 300A | Ins 2025 No 68, Sch 1[9]. |
Sec 300B | Ins 2025 No 68, Sch 1[9]. |
Sec 300C | Ins 2025 No 68, Sch 1[9]. |
Part 14, Div 7, Subdiv 3 | Ins 2025 No 68, Sch 1[9]. |
Sec 300D | Ins 2025 No 68, Sch 1[9]. |
Sec 300F | Ins 2025 No 68, Sch 1[9]. |
Sec 300G | Ins 2025 No 68, Sch 1[9]. |
Sec 301 | Am 2025 No 68, Sch 1[9]. |
Sec 301A | Ins 2025 No 68, Sch 1[9]. |
Sec 322 | Am 2025 No 68, Sch 1[9]. |
Part 15, Div 8A | Ins 2025 No 68, Sch 1[9]. |
Sec 340A | Ins 2025 No 68, Sch 1[9]. |
Sec 340B | Ins 2025 No 68, Sch 1[9]. |
Sec 340C | Ins 2025 No 68, Sch 1[9]. |
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