Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW)
An Act to regulate the provision of certain children’s education and care services; to align the regulation of those services with the Children (Education and Care Services) National Law (NSW); and for other purposes.
This Act is the Children (Education and Care Services) Supplementary Provisions Act 2011.
This Act commences on a day or days to be appointed by proclamation.
In this Act:
(a) a person who holds a provider approval granted under the National Law Alignment Provisions, or
(b) a person who is taken to be an approved provider under Division 3 of Part 4.
Notes included in this Act do not form part of this Act.
For the purposes of this Act, each of the following is a
(a) a
mobile education and care service , being an education and care service that visits specific premises, areas or places at specified times for the purpose of providing the care,(b) an
occasional education and care service , being an education and care service that is provided at fixed premises (other than the home of the approved provider of the service) primarily on an ad hoc or casual basis and that does not usually offer full-time or all day education and care to children on an ongoing basis.
An
However, a
(a) a service that is an education and care service within the meaning of the National Law (disregarding this Act),
(b) a service provided by a designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998,
(c) a babysitting, playgroup or child-minding service that is organised informally by the parents of the children concerned,
(d) a service provided for fewer than 5 children (disregarding any children who are related to the person providing the service) at the premises at which at least one of the children resides, being a service that is not advertised,
(e) a service involving medical or clinical care provided by a hospital,
(f) a regular child-minding service:
(i) that is provided in connection with a hospital, health service or a recreational or commercial facility, and
(ii) that is provided by or on behalf of the person conducting the hospital, health service or recreational or commercial facility, and
(iii) that is provided to care for children only:
(A) while a sibling of the child being cared for is being treated at the hospital or health service, or
(B) while the children’s parents or authorised carers are visiting or being treated at the hospital or health service or are using the recreational or commercial facility,
(g) a service principally conducted to provide instruction in a particular activity,
Note— Instruction in sport, dance, music, culture, language or religion are examples.
(h) a service under which formal education in accordance with the school curriculum set out in Part 3 of the Education Act 1990 is provided by a government school or a registered non-government school within the meaning of that Act,
(i) a service provided at exempt premises, but only if the service is established, registered or licensed as part of the institution operating on those premises,
(j) a service excluded from the operation of this Act by the regulations.
In this section:
(a) a private health facility licensed under the Private Health Facilities Act 2007, or
(b) a declared mental health facility or a private mental health facility within the meaning of the Mental Health Act 2007, or
(c) a public hospital within the meaning of the Health Services Act 1997.
The regulations may prescribe any class of premises as exempt premises for the purposes of this Act.
The Minister may, by order published in the Gazette, declare any premises to be exempt premises for the purposes of specified provisions of this Act.
A reference in this Act to
(a) any premises belonging to a class of premises prescribed by the regulations as exempt premises, and
(b) in relation to any provision of this Act, any premises declared to be exempt premises for the purposes of that provision by an order of the Minister under this section, being an order that is in force.
The National Law Alignment Provisions provide for the objectives and guiding principles that apply to the provision of State regulated education and care services.
A reference in sections 3 and 4 of the National Law to the national education and care services quality framework is to be read, for the purposes of the National Law Alignment Provisions, as a reference to the framework for the provision of State regulated education and care services established by this Act.
(Repealed)
A person must not provide a State regulated education and care service unless:
(a) the person is an approved provider in respect of that service, and
(b) the service is an approved education and care service.
Maximum penalty: $22,000.
A nominated supervisor of a State regulated education and care service who is not the approved provider of the service does not commit an offence against this section in respect of anything done in the course of supervising that service in accordance with this Act.
An employee or other person who provides or assists in providing a State regulated education and care service does not commit an offence against this section if the employee or other person is acting in accordance with directions given by the approved provider of the service.
A person must not advertise or hold out that the person is willing to provide a State regulated education and care service unless:
(a) the person is an approved provider in respect of the service concerned, and
(b) the particular service being advertised is an approved education and care service.
Maximum penalty: $550.
A person must not knowingly publish any advertisement inviting the attendance of children at a State regulated education and care service that is not an approved education and care service.
Maximum penalty: $550.
A person is not guilty of an offence under subsection (1) or (2) if:
(a) the State regulated education and care service is a service that is proposed to be provided in the future, and
(b) the person has duly applied for any provider approval or service approval required to authorise the person to provide the proposed State regulated education and care service, and
(c) the application has not been finally determined.
A person must not advertise or hold out that the person is willing to provide a State regulated education and care service for which an application for any provider approval or service approval required to authorise the person to provide the proposed service is pending unless it is made clear that the service will be provided only after any such approval has been granted.
Maximum penalty: $550.
(Repealed)
The National Law Alignment Provisions provide for the grant of provider approvals for State regulated education and care services and other matters relating to provider approvals.
See also Division 3 of Part 4, which provides for the recognition, for the purposes of this Act, of provider approvals granted under the National Law.
An approved provider must not contravene a condition of a provider approval granted under the National Law Alignment Provisions.
Maximum penalty: $10,000 in the case of an individual or $50,000 in any other case.
The National Law Alignment Provisions provide for the grant of service approvals for State regulated education and care services and other matters relating to service approvals.
An approved provider must not contravene a condition of a service approval for a State regulated education and care service.
Maximum penalty: $10,000 in the case of an individual or $50,000 in any other case.
The National Law Alignment Provisions provide for the grant of service waivers and temporary waivers for State regulated education and care services and other matters relating to waivers.
Under Divisions 5 and 6 of Part 3 of the National Law, an approved provider of an education and care service may apply for a service (ie permanent) or temporary waiver from a requirement that the service comply with certain elements of the National Quality Standard (set out in the national regulations) or certain specified provisions of the national regulations.
The National Law Alignment Provisions provide for the assessment by the Regulatory Authority of State regulated education and care services and the determination of rating levels (other than the highest rating level) for the services.
The regulations may make provision for the award of the highest rating level to State regulated education and care services.
Subsection (2) does not prevent the Regulatory Authority from entering into arrangements with the National Authority for the assessment of State regulated education and care services and the award of the highest rating level to those services by the National Authority.
(Repealed)
The National Law, as in force from time to time:
(a) applies to State regulated education and care services as if those services were education and care services within the meaning of the National Law, and
(b) so applies with the modifications provided for by or under this Act, and
(c) as so applying may be referred to as the
National Law Alignment Provisions , and(d) so applies as if it were part of this Act.
Sections 7 to 16 of the Children (Education and Care Services National Law Application) Act 2010 apply to the National Law Alignment Provisions in the same way as they apply to the National Law, subject to any modifications provided for by this Act or the regulations under this Act.
Section 5 of the Children (Education and Care Services National Law Application) Act 2010 does not apply in respect of the National Law Alignment Provisions.
The Interpretation Act 1987 does not apply in respect of the National Law Alignment Provisions.
Schedule 1 to the National Law provides for interpretation of the provisions of the National Law. Those provisions also apply to the National Law Alignment Provisions.
To avoid doubt, a provider approval or service approval granted under the National Law Alignment Provisions in respect of a State regulated education and care service is not a provider approval or service approval (as the case requires) for the purposes of the National Law.
For the purposes of the National Law Alignment Provisions, the following provisions of the National Law are to be disregarded:
(a) sections 1, 2 and 3 (1) and (2) (d) (preliminary matters),
(b) section 7 (Single national entity),
(c) section 11 (a) (which dictates the jurisdiction in which an application for a provider approval must be made),
(d) section 19 (4) (offence of contravening conditions of provider approval),
(e) section 42 (Exercise of powers by another Regulatory Authority),
(f) section 44 (1) (a) (which dictates the jurisdiction in which an application for a service approval must be made),
(g) section 51 (8) (offence of contravening conditions of service approval),
(h), (i) (Repealed)
(j) section 101 (Exercise of powers by another Regulatory Authority—family day care services),
(k) section 102 (Application of Law to associated children’s services),
(l) section 103 (Offence to provide an education and care service without service approval),
(m) section 104 (Offence to advertise education and care service without service approval),
(n)–(s) (Repealed)
(t) section 134 (2) and Divisions 4–6 of Part 5 (which relate to certain assessment and rating functions of the National Authority),
(u) section 169 (7) and (8) (which relate to determinations of equivalent qualifications by the National Authority),
(v) (Repealed)
(w) section 198 (National Authority representative may enter service premises in company with Regulatory Authority),
(x) (Repealed)
(y) Part 10 (Ministerial Council),
(z) Part 11 (Australian Children’s Education and Care Quality Authority),
(aa) Part 13 (Information, records and privacy), except sections 267 (1)–(4), 270, 271, 272 (1) and 273,
(ab), (ac) (Repealed)
(ad) Divisions 1 to 3 and 8 of Part 14 (Miscellaneous),
(ae) Part 15 (Transitional provisions).
This section is subject to any modifications provided for by the regulations.
For the purposes of the National Law Alignment Provisions:
(a) a reference in the National Law to an education and care service is to be read as a reference to a State regulated education and care service, and
(b) a reference in the National Law to an approved education and care service is to be read as a reference to a State regulated education and care service that is an approved education and care service within the meaning of this Act.
For the purposes of the National Law Alignment Provisions, a reference in the National Law to the National Law itself (such as a reference to “this Law”) is to be read as a reference to this Act (including the National Law Alignment Provisions) and the regulations under this Act.
A reference in the National Law to a specific provision of the National Law is to be read as a reference to the corresponding provision of the National Law Alignment Provisions.
For the purposes of the National Law Alignment Provisions, a reference in the National Law to the Regulatory Authority is a reference to the Regulatory Authority for this jurisdiction.
Under section 9 of the Children (Education and Care Services National Law Application) Act 2010, the Regulatory Authority for this jurisdiction is the Secretary of the Department of Education.
The National Law Alignment Provisions do not confer a power to grant provider approvals and service approvals in respect of State regulated education and care services, or confer any other functions with respect to those services, on the Regulatory Authority for another jurisdiction under the National Law.
For the purpose of the National Law Alignment Provisions, references in the National Law to provider approvals or service approvals granted under the law of another jurisdiction are to be disregarded.
This section does not affect the operation of Division 3.
Division 3 provides for the recognition, for the purposes of this Act, of provider approvals granted under the National Law (including provider approvals granted by the Regulatory Authority for another jurisdiction).
For the purposes of the National Law Alignment Provisions, a reference in the National Law to the regulations made under that Law or to a matter prescribed under that Law is to be read as a reference to the regulations made under this Act or to a matter prescribed by the regulations under this Act, as the case requires.
For the purposes of the National Law Alignment Provisions, any of the following references in the National Law are to be disregarded:
(a) references to the National Authority,
(b) references to the Ministerial Council (except in relation to the National Quality Standard),
(c) references to the highest rating level for an education and care service,
(d) (Repealed)
(e) references to associated children’s services,
(f) (Repealed)
(g) references to family day care services.
A reference in the National Law to the National Quality Framework is to be read, for the purpose of the National Law Alignment Provisions, as a reference to the following:
(a) this Act (including the National Law Alignment Provisions),
(b) the regulations under this Act,
(c) the National Quality Standard,
(d) the rating system provided for by the regulations under this Act.
A reference in the National Law to the National Quality Standard is to be read, for the purpose of the National Law Alignment Provisions, as a reference to the National Quality Standard approved by the Ministerial Council under the National Law as in force from time to time.
The regulations may make further provision for the application of the National Quality Standard to State regulated education and care services, including by modifying the National Quality Standard as it applies to those services.
A reference in section 168 of the National Law to an approved learning framework is to be read, for the purpose of the National Law Alignment Provisions, as a reference to the learning framework approved by the Ministerial Council under the National Law as in force from time to time.
A reference in the National Law to qualifications required or approved under that Law includes, for the purpose of the National Law Alignment Provisions, a reference to any qualifications that have been determined by the National Authority to be equivalent to the qualifications required by the regulations under the National Law.
A reference in section 201 of the National Law to section 103 of the National Law is to be read, for the purpose of the National Law Alignment Provisions, as a reference to section 8 of this Act.
Accordingly the power to enter premises under section 201 of the National Law where a contravention of section 103 of the National Law is suspected is, for the purposes of the National Law Alignment Provisions, a power to enter premises where a contravention of section 8 of this Act is suspected.
The amount of a fee payable under the National Law Alignment Provisions in respect of a State regulated education and care service is the fee payable under the National Law in respect of an education and care service other than a family day care service.
The Regulatory Authority may waive, reduce, defer or refund any fee payable or paid to it under the National Law Alignment Provisions if there are exceptional circumstances.
For the purposes of the National Law Alignment Provisions, a reference in section 192 of the National Law to a reviewable decision for external review includes, in addition to the decisions listed in that section, any decision of the Regulatory Authority of a kind specified by the regulations to be a reviewable decision for external review.
The Minister is not to recommend the making of a regulation containing provisions for the purposes of this section unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions.
For the purposes of the National Law Alignment Provisions, the note at the end of section 192 of the National Law is to be disregarded.
The regulations may make further provision for the application of the National Law to and in respect of State regulated education and care services, including by making further modifications to the National Law for the purposes of the National Law Alignment Provisions.
A person who holds a provider approval in relation to an education and care service within the meaning of the National Law is taken to be an approved provider in relation to State regulated education and care services under this Act.
A person who is authorised to be an authorised officer by the Regulatory Authority of this jurisdiction under Part 9 of the National Law is taken to be an authorised officer for the purposes of Part 9 of the National Law Alignment Provisions.
An identity card issued to the authorised officer under the National Law is taken to be an identity card identifying the authorised officer as an authorised officer authorised by the Regulatory Authority under this Act.
This section does not prevent the issue of a separate identity card by the Regulatory Authority for the purposes of this Act.
(Repealed)
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Without limiting subsection (1), the regulations may make provision for or with respect to the following matters:
(a) any matter for which national regulations can be made by the Ministerial Council under the National Law,
Note— See, in particular, section 301 of the National Law.
(b) (Repealed)
(c) exempting specified occasional or mobile education and care services, or occasional or mobile education and care services of a specified class, from the requirement that they be provided by an approved provider or the subject of a service approval (or both) and regulating the services so exempted (including, without limitation, establishing standards to be met by those services).
A regulation may create an offence punishable by a penalty not exceeding $2,000.
The regulations may apply, adopt or incorporate, wholly or in part and with or without modifications, any standard, rule, code, specification or other document prescribed or published by any person or body (whether of New South Wales or elsewhere) and as in force at a particular time or from time to time.
In particular, the regulations may apply, adopt or incorporate, wholly or in part and with or without modification, any of the national regulations made by the Ministerial Council under the National Law, as in force at a particular time or as in force from time to time.
The State Records Act 1998 does not apply to a private children’s service and such a service is not a public office for the purposes of that Act.
In this section:
(a) a department, office, commission, board, corporation, agency, service or instrumentality exercising any function of any branch of the Government of the State, or
(b) a council or county council under the Local Government Act 1993.
The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date and has effect despite anything to the contrary in this Schedule.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Without limiting subclauses (1) and (2), regulations made for the purposes of this clause may amend this Schedule to provide for additional or different savings and transitional provisions instead of including the provisions in the regulations.
The Children’s Services Regulation 2004 (
To avoid doubt, the Subordinate Legislation Act 1989 applies in respect of the Regulation as a statutory rule published on 30 September 2004.
On and from the date of assent to the Children (Education and Care Services) Supplementary Provisions Amendment Act 2018, a person may not apply to the Regulatory Authority:
(a) for a provider approval or service approval for a home based education and care service under the National Law Alignment Provisions, or
(b) for an approval to provide a centre based education and care service that is a child-minding service at a retail shopping centre under Part 8 of the Children (Education and Care Services) Supplementary Provisions Regulation 2012.
(Repealed)
The Children (Education and Care Services) National Law (NSW) applies, with modifications, to State regulated education and care services under this Act. This Editorial note includes the provisions of that Law that apply to those services (the National Law Alignment Provisions), but further modifications to the interpretation of those provisions are made by Part 4 of this Act and the regulations under this Act.
In this Law—
(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;
(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) this Law; and
(b) the national regulations; and
(c) the National Quality Standard; and
(d) the prescribed rating system;
(a) who is a certified supervisor; and
(b) who is nominated by the approved provider of the service under Part 3 to be the nominated supervisor of that service; and
(c) who has consented to that nomination;
A person may be both the nominated supervisor of a family day care service and the family day care co-ordinator for that service if the person meets the criteria for each role.
(a) the principal office or any other business office of the approved provider of the service; or
(b) any premises of the service from which its 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) 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) if the provider or intended provider of the service is a body corporate, an officer of the body corporate within the meaning of the Corporations Act 2001 of the Commonwealth who is responsible for managing the delivery of the education and care service; or
(b) if the provider of the service is an eligible association, each member of the executive committee of the association who has the responsibility, alone or with others, for managing the delivery of the education and care service; or
(c) if the provider of the service is a partnership, each partner who has the responsibility, alone or with others, for managing the delivery of the education and care service; or
(d) in any other case, a person who has the responsibility, alone or with others, for managing the delivery of the education and care service;
(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 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) issued under Part 4 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 supervisor certificate 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.
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 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 a prescribed ineligible person, may apply to the Regulatory Authority for a provider approval.
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—
(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.
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; and
(b) undertake inquiries in relation to the person.
If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request and 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.
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(3), the period between the making of the request and the provision of the information 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.
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 (2); 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.
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) suspend the provider approval for a period not more than the prescribed period; or
(b) 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).
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, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed cancellation.
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;
(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:
• $3000 in the case of an individual.
• $15 000 in any other case.
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.
The nominated supervisor or any other person having day to day control 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 the nominated supervisor or any certified 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 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 for a further period 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.
An approved provider may apply to the Regulatory Authority for a service approval for an education and care service.
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 supervisor 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.
An application for a service approval must—
(b) be in writing; and
(c) include the prescribed information; and
(d) nominate a certified supervisor to be the nominated supervisor for the service and include that person’s 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.
The approved provider can be the nominated supervisor if he or she—
(a) is a certified supervisor; or
(b) has applied for a supervisor certificate—
however the Regulatory Authority must not grant the service approval unless the supervisor certificate has been granted.
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
(c) the adequacy of the policies and procedures of the service; and
(d) whether the applicant has a provider approval; and
(e) whether the nominated supervisor for the service is a certified supervisor and whether that person 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—
(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(2).
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 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.
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 is granted subject to any other conditions prescribed in the national regulations or imposed by—
(a) this Law; or
(b) the Regulatory Authority.
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 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 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 and 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.
An amendment cannot change a location of an education and care service.
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.
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 change the person nominated as the nominated supervisor of the education and care service.
The notice must—
(a) nominate a certified supervisor to be the nominated supervisor for the service and include that person’s written consent to the nomination; and
(b) include the prescribed information; and
(c) be given—
(i) at least 7 days before the new certified supervisor is to commence work as the nominated supervisor; or
(ii) if that period of notice is not possible in the circumstances, as soon as practicable and not more than 14 days after the certified supervisor commences work as the nominated supervisor.
If the Regulatory Authority amends a service approval under this Division, the Authority must provide an amended copy of the service approval to the approved provider.
(a) a legal or equitable estate in the land or other property; or
(b) a right, power or privilege over, or in relation to, the land or other property.
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and a letter.
(a) a Chapter, Part, Division, Subdivision, section, subsection, paragraph, subparagraph, sub-subparagraph or Schedule of or to this Law or the Act; or
(b) a section, clause, subclause, item, column, table or form of or in a Schedule to this Law or the Act; or
(c) the long title and any preamble to the Act.
(a) revoke or rescind; or
(b) repeal by implication; or
(c) abrogate or limit the effect of this Law or instrument concerned; or
(d) exclude from, or include in, the application of this Law or instrument concerned any person, subject matter or circumstance.
In a statutory instrument—
If this Law defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.
Definitions in or applicable to this Law apply except so far as the context or subject matter otherwise indicates or requires.
In this Law, words indicating a gender include each other gender.
In this Law—
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
In this Law, the word
In this Law, the word
This clause has effect despite any rule of construction to the contrary.
Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in this Law, or relevant provisions of this Law, under or for the purposes of which the instrument is made or in force.
This clause has effect in relation to an instrument except so far as the contrary intention appears in the instrument.
In this Law, a reference to a person generally (whether the expression “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” or “whoever” or another expression is used)—
(a) does not exclude a reference to a body corporate or an individual merely because elsewhere in this Law there is particular reference to a body corporate (however expressed); and
(b) does not exclude a reference to a body corporate or an individual merely because elsewhere in this Law there is particular reference to an individual (however expressed).
If a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under this Law—
(a) to produce the information or a document containing the information to a court, tribunal or person; or
(b) to make a document containing the information available for inspection by a court, tribunal or person;
then, unless the court, tribunal or person otherwise directs—
(c) the requirement obliges the person to produce or make available for inspection, as the case may be, a document that reproduces the information in a form capable of being understood by the court, tribunal or person; and
(d) the production to the court, tribunal or person of the document in that form complies with the requirement.
In this Law—
(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for this jurisdiction; and
(b) a reference to a locality or other matter or thing is a reference to such a locality or other matter or thing in and of this jurisdiction.
In this Law, a reference to a particular officer, or to the holder of a particular office, includes a reference to the person for the time being occupying or acting in the office concerned.
If a provision of this Law refers—
(a) to a Part, section or Schedule by a number and without reference to this Law—the reference is a reference to the Part, section or Schedule, designated by the number, of or to this Law; or
(b) to a Schedule without reference to it by a number and without reference to this Law—the reference, if there is only one Schedule to this Law, is a reference to the Schedule; or
(c) to a Division, Subdivision, subsection, paragraph, subparagraph, sub-subparagraph, clause, subclause, item, column, table or form by a number and without reference to this Law—the reference is a reference to—
(i) the Division, designated by the number, of the Part in which the reference occurs; and
(ii) the Subdivision, designated by the number, of the Division in which the reference occurs; and
(iii) the subsection, designated by the number, of the section in which the reference occurs; and
(iv) the paragraph, designated by the number, of the section, subsection, Schedule or other provision in which the reference occurs; and
(v) the paragraph, designated by the number, of the clause, subclause, item, column, table or form of or in the Schedule in which the reference occurs; and
(vi) the subparagraph, designated by the number, of the paragraph in which the reference occurs; and
(vii) the sub-subparagraph, designated by the number, of the subparagraph in which the reference occurs; and
(viii) the section, clause, subclause, item, column, table or form, designated by the number, of or in the Schedule in which the reference occurs;
as the case requires.
In this Law, a reference to a portion of this Law or an Act includes—
(a) a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Law or the Act referred to that forms the beginning of the portion; and
(b) a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Law or the Act referred to that forms the end of the portion.
A reference to “sections 5 to 9” includes both section 5 and section 9.
It is not necessary to refer to “sections 5 to 9 (both inclusive)” to ensure that the reference is given an inclusive interpretation.
If this Law confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.
If this Law confers a function or power on a particular officer or the holder of a particular office, the function may be performed, or the power may be exercised, by the person for the time being occupying or acting in the office concerned.
If this Law confers a function or power on a body (whether or not incorporated), the performance of the function, or the exercise of the power, is not affected merely because of vacancies in the membership of the body.
If this Law authorises or requires the making of an instrument or decision—
(a) the power includes power to amend or repeal the instrument or decision; and
(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.
If this Law authorises or requires the making of a statutory instrument in relation to a matter, a statutory instrument made under this Law may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of—
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a different kind);
as in force at a particular time or as in force from time to time.
If a statutory instrument applies, adopts or incorporates the provisions of a document, the statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the statutory instrument otherwise expressly provides.
A statutory instrument may
(a) apply generally throughout this jurisdiction or be limited in its application to a particular part of this jurisdiction; or
(b) apply generally to all persons, matters or things or be limited in its application to—
(i) particular persons, matters or things; or
(ii) particular classes of persons, matters or things; or
(c) otherwise apply generally or be limited in its application by reference to specified exceptions or factors.
A statutory instrument may—
(a) apply differently according to different specified factors; or
(b) otherwise make different provision in relation to—
(i) different persons, matters or things; or
(ii) different classes of persons, matters or things.
A statutory instrument may authorise a matter or thing to be from time to time determined, applied or regulated by a specified person or body.
If this Law authorises or requires a matter to be regulated by statutory instrument, the power may be exercised by prohibiting by statutory instrument the matter or any aspect of the matter.
If this Law authorises or requires provision to be made with respect to a matter by statutory instrument, a statutory instrument made under this Law may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Law in relation to another aspect of the matter or in relation to another matter.
A statutory instrument may provide for the review of, or a right of appeal against, a decision made under the statutory instrument, or this Law, and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.
A statutory instrument may require a form prescribed by or under the statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.
All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.
A statutory instrument is taken to be made under all powers under which it may be made, even though it purports to be made under this Law or a particular provision of this Law.
If this Law authorises or requires a person or body—
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a power; or
(c) to appoint a person or body to do another thing;
the person or body may make the appointment by—
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder of a particular office, by reference to the title of the office concerned.
An appointment of a particular officer, or the holder of a particular office, is taken to be the appointment of the person for the time being occupying or acting in the office concerned.
If this Law authorises a person or body to appoint a person to act in an office, the person or body may, in accordance with this Law, appoint—
(a) a person by name; or
(b) a particular officer, or the holder of a particular office, by reference to the title of the office concerned;
to act in the office.
The appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment.
The appointer may—
(a) determine the terms and conditions of the appointment, including remuneration and allowances; and
(b) terminate the appointment at any time.
The appointment, or the termination of the appointment, must be in, or evidenced by, writing signed by the appointer.
The appointee must not act for more than 1 year during a vacancy in the office.
If the appointee is acting in the office otherwise than because of a vacancy in the office and the office becomes vacant, then, subject to subclause (2), the appointee may continue to act until—
(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 section.
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 section.
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 subsection (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.
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