Children's Services Amendment Act 2019 (Vic)

Children's Services Amendment Act 2019

No. 37 of 2019

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Principal Act

Part 2—Amendment of the Children's Services Act 1996

4Section 1 substituted

5Definitions

6Non-application of this Act

7New sections 7, 8 and 9 inserted

8Parts 2 to 5 substituted

9Substitution of heading to Part 6

10New Division heading inserted in Part 6

11Sections 50, 51 and 52 renumbered

12Repeal of sections 52A to 53C

13Section 54 renumbered

14Repeal of sections 54A to 56

15New sections inserted at the end of Part 6

16Substitution of Parts 7 and 8

17Insertion of Schedule

Part 3—Amendments of other Acts

18Consequential amendment of the Education and Training Reform Act 2006

19Consequential amendment of the Children, Youth and Families Act 2005

20Consequential amendment of the Child Wellbeing and Safety Act 2005

21Consequential amendment of the Public Health and Wellbeing Act 2008

22Consequential amendment of the Tobacco Act 1987

Part 4—Repeal of this Act

23Repeal of this Act

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Endnotes

1      General information

Children's Services Amendment Act 2019

No. 37 of 2019

[Assented to 6 November 2019]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Children's Services Act 1996 to further provide for the regulation of children's services, in a manner that is consistent, where appropriate, with the regulation of education and care services under the Education and Care Services National Law (Victoria), by—

(i)establishing a scheme that provides for—

(A)the approval of persons who provide the services; and

(B)the operation of the services; and

(ii)providing for the monitoring and enforcement of the scheme; and

(iii)providing for other related matters; and

(b)to make related minor and consequential amendments to other Acts.

2Commencement

(1)This Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 18 May 2020, it comes into operation on that day.

3Principal Act

In this Act, the Children's Services Act 1996 is called the Principal Act.

Part 2—Amendment of the Children's Services Act 1996

4Section 1 substituted

For section 1 of the Principal Act substitute—

"1   Purpose

The main purpose of this Act is to regulate children's services, in a manner that is consistent, where appropriate, with the regulation of education and care services under the Education and Care Services National Law (Victoria), by—

(a)establishing a scheme that provides for—

(i)the approval of persons who provide the services; and

(ii)the operation of the services; and

(b)providing for the monitoring and enforcement of the scheme; and

(c)providing for other related matters.".

5Definitions

(1)In section 3(1) of the Principal Act insert the following definitions—

"approved children's service means a children's service for which a service approval exists;

approved learning framework has the same meaning as in the National Law;

children's service premises means each place at which a children's service operates or is to operate;

compliance direction means a compliance direction under section 116;

compliance notice means a compliance notice under section 117;

custodian, in relation to a child, means a person who has custody or control of the child who is not—

(a)a parent of the child; or

(b)a person providing a service of education and care to the child;

de facto relationship means—

(a)a registered domestic relationship; or

(b)a relationship between 2 people who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender);

education law means the Education and Training Reform Act 2006;

educator means an individual who provides education and care for children as part of a children's service;

eligible association means an association of a prescribed class;

family member, in relation to a child, means—

(a)a parent, grandparent, brother, sister, uncle, aunt, or cousin of the child, whether of the whole blood or halfblood 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;

identity card means—

(a)in relation to an authorised officer to whom paragraph (a) of the definition of authorised officer applies, the identity card issued under section 137; or

(b)in relation to an authorised officer to whom paragraph (b) of the definition of authorised officer applies, the identity card issued under the National Law;

municipal council has the same meaning as Council has in the Local Government Act 1989;

National Authority has the same meaning as in the National Law;

National Law approved provider means the holder of a provider approval under the National Law that is not suspended;

parent, in relation to a child, includes—

(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;

participating jurisdiction has the same meaning as in the National Law;

payment, in relation to a prescribed fee, includes payment by electronic or other means;

person means—

(a)an individual; or

(b)a body corporate; or

(c)an eligible association; or

(d)a partnership; or

(e)a prescribed entity;

person in day-to-day charge, in relation to a children's service, means a person who is placed in day-to-day charge of the service in accordance with the regulations;

person with management or control, in relation to a children's service, means—

(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 who is responsible for managing the delivery of the children's 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 children's 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 children's service; or

(d)in any other case, a person who has the responsibility, alone or with others, for managing the delivery of the children's service;

prescribed ineligible person means a person in a class of persons prescribed by the regulations to be prescribed ineligible persons;

prohibition notice means a prohibition notice given under section 123(1) or (3);

protected disclosure has the meaning set out in section 183;

public authority means a body established for a public purpose by or under an Act;

receiving approved provider has the meaning set out in section 58;

residence means the habitable areas of a dwelling;

serious incident means an incident or class of incidents prescribed by the regulations as a serious incident;

staff member, in relation to a children's service, means any individual (other than a nominated supervisor or a volunteer) employed, appointed or engaged to work in or as part of a children's service, whether as an educator or otherwise;

transferring approved provider has the meaning set out in section 58;

working with children assessment notice has the same meaning as assessment notice has in the Working with Children Act 2005;

working with vulnerable people law has the same meaning as in the National Law.".

(2)In section 3(1) of the Principal Act—

(a)for the definition of approved provider substitute—

"approved provider means—

(a)a person who holds a provider approval; and

(b)a person who is taken to have been granted a provider approval under section 16;";

(b)for the definition of authorised officer substitute—

"authorised officer means—

(a)a person authorised to be an authorised officer under Part 5B; or

(b)a person authorised to be an authorised officer under the National Law;";

(c)for the definition of children's service substitute—

"children's service means a service providing education and care for 4 or more children under the age of 13 years in the absence of the parents or custodians of the children, where the service—

(a)is provided—

(i)for fee or reward; or

(ii)while the parents or custodians of the children use sports, leisure or other prescribed services or facilities provided by the provider of the service for the children; and

(b)is not an education and care service, within the meaning of the National Law;";

(d)for the definition of guardian substitute—

"guardian, in relation to a child or other person, means the legal guardian of the child or person;";

(e)for the definition of nominated supervisor substitute—

"nominated supervisor, in relation to a children's service, means an individual who—

(a)is nominated by the approved provider of the service under Part 3 to be a nominated supervisor of that service; and

(b)unless the individual is the approved provider, has provided written consent to that nomination;";

(f)for the definition of provider approval substitute—

"provider approval means—

(a)an approval granted under Part 2; and

(b)if an approval granted under Part 2 has been amended under this Act, the approval as amended—

but does not include such an approval that has been cancelled;";

(g)for the definition of Regulatory Authority substitute—

"Regulatory Authority means the Secretary;";

(h)for the definition of service approval substitute—

"service approval means a service approval—

(a)granted under Part 3; and

(b)if an approval granted under Part 3 has been amended under this Act, the approval as amended—

but does not include such an approval that has been cancelled;".

(3)In section 3(1) of the Principal Act—

(a)in the definition of Department, for "Early Childhood Development" substitute "Training";

(b)in the definition of school, for "means Government" substitute "means a Government";

(c)in the definition of Secretary, for "Early Childhood Development" substitute "Training";

(d)in the definition of this Act, for "the Act." substitute "the Act;".

(4)In section 3(1) of the Principal Act, the definitions of approval of premises, approved associated children's service, approved education and care service, associated children's service, fit and proper person check, licensee, nominee, primary nominee, proprietor, registered medical practitioner and responsible person are repealed.

(5)After section 3(1) of the Principal Act insert—

"(1A)For the purposes of the definition of de facto relationship in subsection (1)—

(a)registered domestic relationship has the same meaning as in the Relationships Act 2008; or

(b)in determining whether persons who are not in a registered domestic relationship are in a de facto relationship, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

(1B)In this Act, a reference to education and care includes a reference to education or care.".

(6)Section 3(2) of the Principal Act is repealed.

(7)For section 3(3) and (4) of the Principal Act substitute—

"(3)In this Act, a children's service is a children's service even if the service also provides education and care to children of or over the age of 13 years.

(4)In this Act, a reference (either generally or specifically) to a law or a provision of a law (including this Act and the National Law) includes a reference to any statutory instrument made or in force under the law or provision.".

6Non-application of this Act

(1)In section 5(1B) of the Principal Act—

(a)paragraph (b) is repealed;

(b)paragraph (c) is repealed;

(c)in paragraph (g), for "the child." substitute "the child; or";

(d)after paragraph (g) insert—

"(h)to a service providing education and care to children at a camp, including a camp where the children stay overnight; or

(i)to any other prescribed class of service.".

(2)In section 5(3)(a) of the Principal Act, for "parent or guardian of" substitute "parent or custodian of".

(3)In section 5(4) of the Principal Act, for "parent or guardian of" substitute "parent or custodian of".

7New sections 7, 8 and 9 inserted

After section 6 of the Principal Act insert—

"7   Extraterritorial operation of Law

It is the intention of the Parliament that the operation of this Act includes, as far as possible, 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 Act, be governed or otherwise affected by the law of another jurisdiction.

8Objectives and guiding principles

(1)The objectives of this Act are—

(a)to ensure the safety, health and wellbeing of children attending children's services; and

(b)to improve the educational and developmental outcomes for children attending children's services; and

(c)to promote continuous improvement in the provision of quality children's services.

(2)The guiding principles of this Act are as follows—

(a)that the rights and best interests of the child are paramount;

(b)that children are successful, competent and capable learners;

(c)that the principles of equity, inclusion and diversity underlie this Act;

(d)that Australia's Aboriginal and Torres Strait Islander cultures are valued;

(e)that the role of parents and families is respected and supported;

(f)that best practice is expected in the provision of children's services.

9How functions exercised

An entity that has functions under this Act is to exercise its functions having regard to the objectives and guiding principles of this Act set out in section 8.".

8Parts 2 to 5 substituted

For Parts 2, 3, 3A, 4 and 5 the Principal Act substitute—

"Part 2—Provider approval

Division 1—Application for provider approval

10Application for provider approval

(1)A person, other than a prescribed ineligible person, may apply to the Regulatory Authority for a provider approval.

(2)An application may be made by more than one person.

(3)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.

11Form of application

An application under section 10 must—

(a)be made to the Regulatory Authority; and

(b)be in writing; and

(c)include the prescribed information; and

(d)include payment of the prescribed fee.

12Applicant must be fit and proper person

(1)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 a children's service.

(2)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 a children's service to be operated by the applicant is a fit and proper person to be involved in the provision of a children's service; and

(b)the applicant is a fit and proper person to be involved in the provision of a children's service.

13Matters to be taken into account in assessing whether fit and proper person

(1)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 Act; and

(ii)any law referred to in section 13(1)(a) of the National Law; and

Note

If a person has been served with an infringement notice for an offence under the National 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) of the National Law.

(b)any decision under this Act or the National Law to refuse, refuse to renew, suspend or cancel an approval or other authorisation granted under this Act or the National Law; and

(c)any decision referred to in section 13(1)(b) of the National Law; and

(d)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 a children's service; or

(ii)any check of the person under a working with vulnerable people law of a participating jurisdiction; and

(e)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.

(2)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 a children's service in accordance with this Act; and

(b)whether the financial circumstances of the person may significantly limit the person's capacity to meet the person's obligations in providing a children's service in accordance with this Act; and

(c)whether the person has the management capability to operate a children's service in accordance with this Act; and

(d)any of the following actions taken under the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth in relation to a child care service approved under that Act, operated by the person or in relation to which the person was a person with management or control—

(i)a sanction imposed under section 195H of that Act;

(ii)a suspension imposed under section 197A of that Act;

(iii)an infringement notice issued under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 of the Commonwealth in respect of section 219WA of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.

(3)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 a children's service.

14Regulatory Authority may seek further information

(1)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.

(2)If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application.

15Grant or refusal of provider approval

(1)On an application under section 10, the Regulatory Authority may—

(a)grant the provider approval; or

(b)refuse to grant the provider approval.

Note

A provider approval is granted subject to conditions in accordance with section 19.

(2)The Regulatory Authority must not grant a provider approval unless the Authority is satisfied as to the matters in section 12.

(3)Subject to subsection (4), the Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application.

Note

If further information is requested under section 14, the period between the making of the request and the provision of the information is not included in the 60 day period.

(4)The period referred to in subsection (3) may be extended by up to 30 days with the agreement of the applicant.

(5)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.

(6)The Regulatory Authority must give written notice to the applicant of a decision under this section and the reasons for that decision within 7 days after the decision is made.

16National Law approved providers, granting of provider approvals

(1)On a National Law approved provider making an application for a service approval under Part 3, the National Law approved provider is taken to be granted a provider approval under this Part.

(2)A provider approval to which subsection (1) applies is taken to be subject to any conditions to which the provider approval under the National Law of the approved provider is subject, unless the condition is inconsistent with this Act.

(3)A provider approval that is taken to be granted under subsection (1) is taken to be cancelled if either of the following occurs—

(a)the Regulatory Authority refuses the application for the service approval under section 47(1);

(b)the service approval is not granted within the period of 6 months after the provider approval is taken to be granted under subsection (1).

17National Law approved providers, transfers of provider approvals

(1)On a National Law approved provider giving notification to the Regulatory Authority of a proposal to transfer a service approval to the National Law approved provider under Division 3 of Part 3, the National Law approved provider is taken to be granted a provider approval under this Part.

(2)A provider approval to which subsection (1) applies is taken to be subject to any conditions to which the provider approval under the National Law of the approved provider is subject, unless the condition is inconsistent with this Act.

(3)A provider approval that is taken to be granted under subsection (1) is taken to be cancelled if either of the following occurs—

(a)the Regulatory Authority refuses to consent to the proposed transfer under section 65(1);

(b)the Regulatory Authority does not consent to the proposed transfer within the period of 6 months after the provider approval is taken to be granted under subsection (1).

18Duration and effect of provider approval

(1)A provider approval continues in force until it is cancelled or surrendered under this Act.

(2)A provider approval authorises the approved provider to operate an approved children's service if the approved provider is the holder of the service approval for the service.

19Conditions on provider approval

(1)A provider approval may be granted subject to any conditions that are prescribed in the regulations or that are determined by the Regulatory Authority.

(2)Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Act.

(3)A condition of a provider approval applies to the provider as the operator of any children's service, unless the condition expressly provides otherwise.

(4)An approved provider must comply with the conditions of the provider approval.

Penalty:60 penalty units, in the case of an individual.

300 penalty units, in any other case.

20Copy of provider approval

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.

Division 2—Reassessment

21Reassessment of fitness and propriety

(1)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 a children's service; or

(b)whether a person with management or control of a children's service operated by an approved provider continues to be a fit and proper person to be involved in the provision of a children's service; or

(c)whether a person who becomes a person with management or control of a children's 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 a children's service.

(2)Sections 13 and 14 apply to the reassessment.

Division 3—Amendment of provider approvals

22Amendment of provider approval on application

(1)An approved provider may apply to the Regulatory Authority for an amendment of the provider approval.

(2)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(3)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.

(4)The Regulatory Authority must make a decision on the application within 30 days after the Regulatory Authority receives the application.

(5)Without limiting subsection (3), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.

23Amendment of provider approval by Regulatory Authority

(1)The Regulatory Authority may amend a provider approval at any time without an application from the approved provider.

(2)Without limiting subsection (1), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.

(3)The Regulatory Authority must give written notice to the approved provider of the amendment.

(4)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.

24Copy of amended provider approval to be provided

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.

Division 4—Suspension or cancellation of provider approval

25Grounds for suspension of provider approval

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 Victoria 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 a children's 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—

(i)this Act; or

(ii)the National Law as applying in any participating jurisdiction; or

(d)action is being taken under Part 5 (other than a compliance direction) in respect of more than one children's service operated by the approved provider; or

(e)the approved provider has not operated any children's 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 children's service without the consent of the Regulatory Authority; or

(g)the approved provider has not paid any outstanding prescribed fees.

26Show cause notice before suspension

(1)This section applies if the Regulatory Authority is considering the suspension of a provider approval under section 25.

(2)The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—

(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.

27Decision to suspend after show cause process

After considering any written response from the approved provider received within the time allowed by section 26(2)(d), the Regulatory Authority may—

(a)if the suspension was proposed on a ground referred to in section 25(a), accept an undertaking from the approved provider under section 119; or

(b)in any case—

(i)suspend the provider approval for a period not more than the prescribed period; or

(ii)decide not to suspend the provider approval.

28Suspension without show cause notice

(1)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 a children's service operated by the provider.

(2)The suspension may not be for a period of more than 6 months.

29Notice and taking effect of suspension

(1)The Regulatory Authority must give the approved provider written notice of the decision to suspend the provider approval.

(2)The notice of a decision to suspend must set out the period of suspension and the date on which it takes effect.

(3)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.

(4)The decision under section 28 to suspend takes effect on the giving of the notice.

30Effect of suspension

(1)Subject to this section, if a provider approval is suspended under section 27 or 28, all service approvals held by the provider are also suspended for the same period.

(2)A person whose provider approval is suspended is taken not to be an approved provider for the period of the suspension.

(3)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 children's service.

(4)The Regulatory Authority may consent under Part 3 to the transfer of a service approval that is suspended under section 27 or 28.

(5)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.

31Grounds for cancellation of provider approval

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 a children's service operated by the approved provider is not a fit and proper person to be involved in the provision of a children's service; or

(b)the Regulatory Authority is satisfied that the continued provision of children's 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 a children's 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 Victoria would be an indictable offence; or

(d)the approved provider has been found guilty of an offence under—

(i)this Act; or

(ii)the National 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 children's service for a period of more than 12 months (including any period of suspension).

32Show cause notice before cancellation

(1)This section applies if the Regulatory Authority is considering the cancellation of a provider approval under section 31.

(2)The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—

(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.

33Decision in relation to cancellation

(1)After considering any written response from the approved provider received within the time allowed under section 32(2)(c), the Regulatory Authority—

(a)may—

(i)cancel the provider approval; or

(ii)suspend the provider approval for a period not more than the prescribed period; or

(iii)decide not to cancel the provider approval; and

(b)must give the approved provider written notice of the decision.

(2)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.

(3)The notice of a decision to cancel the provider approval must set out the date on which it takes effect.

(4)This Act applies to a suspension of a provider approval under this section as if it were a suspension under section 27.

34Effect of cancellation

(1)Subject to this section, if a provider approval is cancelled under section 33, all service approvals held by the person who was the approved provider are also cancelled.

(2)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 children's service.

(3)A service approval is cancelled if a person referred to in subsection (2) ceases to manage or control the service.

(4)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.

(5)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.

(6)If an application for consent to transfer is made, the service approval is suspended until the Regulatory Authority determines the application.

(7)The suspension of the service approval ceases on the transfer taking effect, unless the conditions of the transfer specify a later date.

(8)If the Regulatory Authority refuses to consent to the transfer, the service approval is cancelled on the making of the decision to refuse consent.

35Approved provider to provide information to Regulatory Authority

(1)This section applies if a show cause notice has been given to an approved provider under section 26 or 32.

(2)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 children's service operated by the approved provider.

(3)The Regulatory Authority may use the information provided under subsection (2) solely to notify the parents of children enrolled at a children's service about the suspension or cancellation.

36Notice to parents of suspension or cancellation

(1)This section applies if a provider approval has been suspended or cancelled under section 27, 28, 33 or 34.

(2)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 children's services operated by that person.

(3)A person must comply with a requirement made of that person under subsection (2).

Penalty:20 penalty units, in the case of an individual.

100 penalty units, in any other case.

37Voluntary suspension of provider approval

(1)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.

(2)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(3)The approved provider must, at least 14 days before making an application under this section, notify the parents of children enrolled at the children's services operated by the approved provider of the intention to make the application.

(4)The Regulatory Authority must within 30 days after the application is made decide whether or not to grant the application.

(5)The Regulatory Authority must give written notice of its decision (including the period of suspension) to the approved provider.

(6)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.

(7)A suspension under this section remains in force for the period of time specified in the notice.

(8)The approved provider may apply to the Regulatory Authority to revoke the suspension before the end of the suspension period.

(9)If the Regulatory Authority grants the application to revoke the suspension, the suspension ceases on the date determined by agreement with the approved provider.

(10)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 children's service to which the approval relates; or

(b)the service approval is transferred under Division 3 of Part 3.

38Surrender of provider approval by approved provider

(1)An approved provider may surrender the provider approval by written notice to the Regulatory Authority.

(2)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).

(3)The approved provider must notify the parents of children enrolled at the children's service 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.

(4)If a provider approval is surrendered, the approval is cancelled on the date specified in the notice.

(5)If a provider approval is surrendered, any service approval held by the provider is also taken to be surrendered.

Note

If a service approval is surrendered, it is cancelled—see section 84. A cancelled service approval cannot be transferred—see definition of service approval and also Division 3 of Part 3.

Division 5—Approval of executor, representative or guardian as approved provider

39Death of approved provider

(1)This section applies if an approved provider dies.

(2)A nominated supervisor or a person in day‑to-day charge of a children's service of the approved provider must notify the Regulatory Authority of the approved provider's death within 7 days after that death.

(3)The executor of the estate of the approved provider may continue to operate any approved children's service of the approved provider for the relevant period provided that at least one nominated supervisor continues to manage the day-to-day operation of the service.

(4)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 Act during the relevant period as if the executor were the approved provider.

(5)The executor of the estate of the approved provider may apply to the Regulatory Authority for a provider approval.

(6)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.

(7)In this section, relevant period means—

(a)the period of 30 days after the death of the approved provider; or

(b)if the executor of the estate of the approved provider makes an application under subsection (5) within that period, until the application is finally determined under this Act.

40Incapacity of approved provider

(1)This section applies if an approved provider has become incapacitated.

(2)The legal personal representative or guardian of an approved provider may apply to the Regulatory Authority for a provider approval.

(3)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

41Decision on application

(1)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 a children's service.

(2)Sections 12, 13 and 14 apply to the assessment of a person under subsection (1).

(3)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.

(4)An approval under this section—

(a)may be granted for a period of not more than 6 months; and

(b)may be extended or further extended for periods of not more than 6 months—

at the discretion of the Regulatory Authority.

(5)The provider approval is granted only in relation to the operation of the approved children's services of the approved provider for whom the applicant is the executor, legal personal representative or guardian, as the case requires.

Part 3—Service approval

Division 1—Application for service approval

42Application for service approval

(1)An approved provider under this Act or a National Law approved provider may apply to the Regulatory Authority for a service approval for a children's service.

(2)An approved provider under this Act or a National Law approved provider may only apply for a service approval for a children's service if the approved provider is or will be the operator of the children's service and is or will be responsible for the management of the staff members and nominated supervisors of that service.

(3)A person who has applied for a provider approval under this Act 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.

43Form of application

An application for a service approval must—

(a)be made to the Regulatory Authority; and

(b)be in writing; and

(c)include the prescribed information; and

(d)nominate one or more individuals to be nominated supervisors of the children's service; and

(e)include from each nominated individual (other than the approved provider) the written consent to the nomination; and

(f)include payment of the prescribed fee.

44Regulatory Authority may seek further information

(1)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.

(2)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 47 for the Regulatory Authority to make a decision on the application.

45Investigation of application for service approval

(1)For the purposes of determining an application for a service approval, the Regulatory Authority may—

(a)undertake inquiries and investigations, including inquiries relating to any previous licensing, accreditation or registration of the children's service under this Act or the National Law; and

(b)inspect the children's service premises; and

(c)inspect the policies and procedures of the service.

(2)For the purposes of an inspection under subsection (1)(b) or (c), the Regulatory Authority may enter the children's service premises at any reasonable time.

46Determination of application

(1)In determining an application under section 42, the Regulatory Authority must have regard to—

(a)the suitability of the children's service premises and the site and location of those premises for the operation of a children's service; and

(b)the adequacy of the policies and procedures of the service; and

(c)whether the applicant has a provider approval; and

(d)except in the case of a nominated supervisor who is the approved provider, whether each nominated supervisor has consented in writing to the nomination; and

(e)any other matter the Regulatory Authority thinks fit; and

(f)any other prescribed matter.

(2)In addition, the Regulatory Authority may have regard to either of the following—

(a)whether the applicant is capable of operating the children's service having regard to the financial capacity and management capability of the applicant and any other matter the Regulatory Authority considers relevant;

(b)the applicant's history of compliance with—

(i)this Act, including in relation to any other children's service the applicant operates or has operated; or

(ii)the National Law as applying in any participating jurisdiction, including in relation to any education and care service the applicant operates or has operated.

47Grant or refusal of service approval

(1)On an application under section 42, the Regulatory Authority may—

(a)grant the service approval for the children's service; or

(b)refuse to grant the service approval.

Note

A service approval is granted subject to conditions in accordance with section 50.

(2)Subject to subsection (3), the Regulatory Authority must make a decision on the application within 90 days after the Regulatory Authority received the application.

Note

If further information is requested under section 44(2), the period between the making of the request and the provision of the information is not included in the 90 day period.

(3)The period referred to in subsection (2) may be extended with the agreement of the applicant.

(4)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.

48Grounds for refusal

(1)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 children's service; or

(b)the applicant does not have a provider approval.

(2)The Regulatory Authority may refuse to grant a service approval on any other prescribed grounds.

49Notice of decision on application

The Regulatory Authority must give written notice to the applicant of a decision under section 47 and the reasons for the decision within 7 days after the decision is made.

50Conditions on service approval

(1)A service approval is granted subject to the condition that the children's service is operated in a way that—

(a)ensures the safety, health and wellbeing of the children being educated and cared for by the service; and

(b)meets the educational and developmental needs of the children being educated and cared for by the service.

(2)A service approval is granted subject to a condition that the service must commence ongoing operation of the service within 6 months after the approval is granted unless the Regulatory Authority agrees to an extension of time.

(3)A service approval is granted subject to a condition that the approved provider must hold the prescribed insurance in respect of the children's service.

(4)A service approval is granted subject to a condition that the approved provider must ensure that the number of children educated and cared for by the service at any one time does not exceed the maximum number of children specified in the service approval.

(5)An approved provider is not required to comply with subsection (4) if—

(a)the maximum number of children is exceeded because a child is, or 2 or more children from the same family are, being educated and cared for by the children's service in an emergency; and

(b)the approved provider is satisfied on reasonable grounds that this will not affect the health, safety and wellbeing of any other child who is attending the children's service.

Example

An emergency under this subsection would include circumstances where a child is in need of protection under a child protection order or where the parent of a child needs urgent health care that prevents that parent caring for the child.

(6)A service approval is granted subject to any other conditions prescribed in the regulations or imposed by—

(a)this Act; or

(b)the Regulatory Authority.

(7)An approved provider must comply with the conditions of a service approval held by the approved provider.

Penalty:60 penalty units, in the case of an individual.

300 penalty units, in any other case.

51Copy of service approval to be provided

(1)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 children's service; and

(b)the location of the children's 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)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.

(2)If a provider approval is taken to be granted under section 16(1), at the same time as the Regulatory Authority provides a copy of the service approval under subsection (1), the Regulatory Authority must provide a copy of the provider approval to the approved provider stating—

(a)the matters set out in section 20(a), (b), (c), (e) and (f); and

(b)the date that the provider approval is taken to be granted.

52Annual fee

An approved provider must, in accordance with the regulations, pay the prescribed annual fee in respect of each service approval held by the approved provider.

Division 2—Amendment of service approval

53Amendment of service approval on application

(1)An approved provider may apply to the Regulatory Authority for an amendment of a service approval.

(2)An application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(3)The Regulatory Authority may ask the approved provider to provide any further information that is reasonably required for the purpose of assessing the application.

(4)If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in subsection (5).

(5)The Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application.

(6)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.

(7)Without limiting subsection (6), an amendment may vary a condition of the service approval or impose a new condition on the service approval.

(8)An amendment cannot change a location of a children's service.

(9)The Regulatory Authority must give written notice of its decision to the approved provider.

54Amendment of service approval by Regulatory Authority

(1)The Regulatory Authority may amend a service approval at any time without an application from the approved provider.

(2)Without limiting subsection (1), an amendment may vary a condition of the service approval or impose a new condition on the service approval.

(3)The Regulatory Authority must give written notice of the amendment to the approved provider.

(4)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.

55Notice of addition of nominated supervisor

(1)The approved provider of a children's service must give written notice to the Regulatory Authority in accordance with this section if the approved provider wishes to add a new nominated supervisor of the children's service.

(2)The notice must—

(a)nominate one or more individuals to be nominated supervisors of the service and, unless the individual nominated is the approved provider, include from each nominated individual the written consent to the nomination; and

(b)include the prescribed information; and

(c)be given—

(i)at least 7 days before the individual is to commence work as a nominated supervisor; or

(ii)if that period of notice is not possible in the circumstances, as soon as practicable but not more than 14 days after the individual commences work as a nominated supervisor.

Note

Section 113(2)(c) requires an approved provider to notify the Regulatory Authority of the removal of a nominated supervisor.

56Notice of change of a nominated supervisor's name or contact details

The approved provider of a children's service must give written notice to the Regulatory Authority of any change to the name or contact details of any nominated supervisor of the children's service.

57Copy of amended service approval to be provided

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.

Division 3—Transfer of service approval

58Service approval may be transferred

(1)Subject to this Division, an approved provider who holds a service approval (transferring approved provider) may transfer the service approval to another approved provider under this Act or a National Law approved provider (receiving approved provider).

(2)A person who holds a provider approval under this Act may transfer a service approval held by the provider even if the provider approval or service approval is suspended.

59Regulatory Authority to be notified of transfer

(1)The transferring approved provider and the receiving approved provider must jointly notify the Regulatory Authority of the transfer—

(a)at least 42 days before the transfer is intended to take effect; or

(b)if the Regulatory Authority considers that the circumstances are exceptional, a lesser period agreed to by the Regulatory Authority.

(2)The notice must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

60Consent of Regulatory Authority required for transfer

A service approval cannot be transferred without the consent of the Regulatory Authority.

61Consent taken to be given unless Regulatory Authority intervenes

The Regulatory Authority is taken to have consented to the transfer of a service approval if—

(a)the parties have given a notification under section 59; and

(b)28 days before the transfer is intended to take effect, the Regulatory Authority has not notified the parties that it intends to intervene under section 62.

62Transfer may be subject to intervention by Regulatory Authority

(1)The Regulatory Authority may intervene in a transfer of a service approval if the Regulatory Authority is concerned as to any of the following matters—

(a)whether the receiving approved provider is capable of operating the children's service having regard to its financial capacity and management capability and any other matter the Regulatory Authority considers relevant;

(b)the receiving approved provider's history of compliance with—

(i)this Act, including in relation to any other children's service the provider operates or has operated; or

(ii)the National Law as applying in a participating jurisdiction, including in relation to any education and care service the receiving approved provider operates or has operated;

(c)any other matter relevant to the transfer of the service approval.

(2)The Regulatory Authority must notify the transferring approved provider and the receiving approved provider of the decision to intervene.

(3)Subject to subsection (5), the notice must be given at least 28 days before the date on which the transfer is intended to take effect.

(4)A notification under subsection (2) must—

(a)be in writing; and

(b)include the prescribed information.

(5)The period within which notice must be given under subsection (3) does not apply where the Regulatory Authority has not been notified of the intended transfer of a service approval in accordance with section 59.

63Effect of intervention

If the Regulatory Authority intervenes under section 62, the transfer must not proceed unless and until the Regulatory Authority gives written consent to the transfer.

64Regulatory Authority may request further information

If the Regulatory Authority has intervened under section 62, the Regulatory Authority may—

(a)request further information from the transferring approved provider or receiving approved provider for the purposes of deciding whether to consent to the transfer; and

(b)undertake inquiries in relation to the receiving approved provider for that purpose.

65Decision after intervention

(1)If the Regulatory Authority has intervened under section 62, it may decide—

(a)to consent to the proposed transfer; or

(b)to refuse to consent to the proposed transfer.

(2)If the Regulatory Authority consents to the proposed transfer the Regulatory Authority may impose conditions on the consent, including specifying the date on which the proposed transfer is to take effect.

(3)The service approval must be transferred in accordance with the conditions imposed on the consent.

66Regulatory Authority to notify outcome 7 days before transfer

(1)If the Regulatory Authority has intervened in the transfer of a service approval, the Authority must, at least 7 days before the date on which the transfer is intended to take effect, give a notice to each party specifying that the Authority—

(a)consents to the transfer; or

(b)refuses to consent to the transfer; or

(c)has suspended further consideration of the transfer until further information is received and that the transfer may not proceed until a further notice is given under this section consenting to the transfer; or

(d)has not yet made a decision on the transfer and that the Regulatory Authority will make a decision on the transfer within 28 days and that the transfer may not proceed until a further notice is given under this section consenting to the transfer.

(2)If the Regulatory Authority consents to the transfer, the notice—

(a)must specify—

(i)the date on which the transfer is to take effect; and

(ii)any conditions on the consent to the transfer; and

(b)may include notice of any condition that the Regulatory Authority has imposed on the provider approval or a service approval of the receiving approved provider because of the transfer.

(3)If the Regulatory Authority refuses to consent to the transfer, the notice must include the reasons for the refusal.

67Transfer of service approval without consent is void

A transfer of a service approval is void if—

(a)it is made without the consent of the Regulatory Authority; or

(b)it is made in contravention of the conditions imposed by the Regulatory Authority on the consent to the transfer; or

(c)it is made to a person who is not the approved provider who gave the notification under section 59 as the receiving approved provider.

68Confirmation of transfer

(1)The transferring approved provider and the receiving approved provider must give written notice to the Regulatory Authority within 2 days after the transfer takes effect specifying the date of the transfer.

Penalty:20 penalty units, in the case of an individual.

100 penalty units, in any other case.

(2)On receipt of a notice under this section, the Regulatory Authority must amend the service approval and provide an amended copy of the service approval to the receiving approved provider.

(3)If a provider approval is taken to be granted under section 17(1), at the same time as the Regulatory Authority provides an amended copy of the service approval under subsection (2), the Regulatory Authority must provide a copy of the provider approval to the approved provider stating—

(a)the matters set out in section 20(a), (b), (c), (e) and (f); and

(b)the date that the provider approval is taken to be granted.

(4)The amendment to the service approval is taken to take effect on the date of the transfer.

(5)An approved provider who gives notice under this section is not guilty of an offence for a failure of any other person to give that notice.

69Notice to parents

(1)The receiving approved provider must give written notice to the parents of children enrolled at a children's service of the transfer of the service approval for that service to that provider.

Penalty:20 penalty units, in the case of an individual.

100 penalty units, in any other case.

(2)The notice must be given at least 2 days before the date on which the transfer of the service approval takes effect.

Division 4—Suspension or cancellation of service approval

70Grounds for suspension of service approval

A Regulatory Authority may suspend a service approval if—

(a)the Regulatory Authority reasonably believes that it would not be in the best interests of children being educated and cared for by the service for the service to continue; or

(b)a condition of the service approval has not been complied with; or

(c)the service is not being managed in accordance with this Act; or

(d)the approved provider has contravened—

(i)this Act; or

(ii)the National Law as applying in a participating jurisdiction; or

(e)the approved provider has failed to comply with a direction, compliance notice or emergency order under this Act; or

(f)the approved provider has—

(i)ceased to operate the children's service at the children's service premises for which the service approval was granted; and

(ii)within 6 months of ceasing to operate the service, has not transferred the service to another approved provider; or

(g)the approved provider has not, within 6 months after being granted a service approval, commenced ongoing operation of the service; or

(h)the approved provider has not paid the prescribed annual fee for the service approval.

71Show cause notice before suspension

(1)This section applies if the Regulatory Authority is considering the suspension of a service approval under section 70.

(2)The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—

(a)that the Regulatory Authority intends to suspend the service 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.

72Decision in relation to suspension

After considering any written response from the approved provider received within the time allowed by section 71(2)(d), the Regulatory Authority may—

(a)if the suspension was proposed on the ground referred to in section 70(a) or (c), accept an undertaking from the approved provider under section 119; or

(b)in any case—

(i)suspend the service approval for a period not more than the prescribed period; or

(ii)decide not to suspend the service approval.

73Suspension of service approval without show cause

The Regulatory Authority may suspend the service approval without giving the approved provider a show cause notice under section 71 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 the children's service.

74Notice and effect of decision

(1)The Regulatory Authority must give the approved provider written notice of the decision to suspend.

(2)Subject to section 75, the decision under section 72 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.

(3)Subject to section 75, the decision under section 73 to suspend takes effect on the giving of the notice.

(4)The notice of a decision to suspend must set out—

(a)the period of suspension; and

(b)the date on which it takes effect.

75Transfer of suspended service

(1)The Regulatory Authority may consent under this Part to the transfer of a service approval that is suspended under section 72 or 73.

(2)The suspension of the service approval ceases on the transfer taking effect, unless the conditions of the Regulatory Authority's consent to the transfer otherwise provide.

76Grounds for cancellation of service approval

The Regulatory Authority may cancel a service approval if—

(a)the Regulatory Authority reasonably believes that the continued operation of the children's service would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by the children's service; or

(b)the service has been suspended under section 72 or 73 and the reason for the suspension has not been rectified at or before the end of the period of suspension; or

(c)the service approval was obtained improperly; or

(d)a condition of the service approval has not been complied with.

77Show cause notice before cancellation

(1)This section applies if the Regulatory Authority is considering the cancellation of a service approval under section 76.

(2)The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—

(a)that the Regulatory Authority intends to cancel the service 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.

78Decision in relation to cancellation

(1)After considering any written response from the approved provider received within the time allowed by section 77(2)(c), the Regulatory Authority—

(a)may—

(i)cancel the service approval; or

(ii)suspend the service approval for a period not more than the prescribed period; or

(iii)decide not to cancel the service approval; and

(b)must give the approved provider written notice of the decision.

(2)Subject to section 79, the decision to cancel the service approval takes effect—

(a)at the end of 14 days after the date of the decision; or

(b)if another period is specified by the Regulatory Authority, at the end of that period.

(3)The notice of a decision to cancel must set out the date on which it takes effect.

(4)This Act applies to a suspension of a service approval under this section as if it were a suspension under section 72.

79Application for transfer of cancelled service

(1)An approved provider may apply to the Regulatory Authority under this Part for consent to transfer a service approval that is to be cancelled under this Part.

(2)The application for consent to transfer must be made within 14 days after the decision to cancel the service approval is made.

(3)If an application for consent to transfer is made, the cancellation of the service approval does not take effect, and the service approval is suspended, until the Regulatory Authority determines the application.

80Decision on application to transfer cancelled service

(1)If the Regulatory Authority consents to the transfer—

(a)the decision to cancel the service approval is revoked; and

(b)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 for the suspension to cease.

(2)If the Regulatory Authority refuses to consent to the transfer, the service approval is cancelled on the making of the decision to refuse to consent.

81Approved provider to provide information to Regulatory Authority

(1)This section applies if a show cause notice has been given to an approved provider under section 71 or 77.

(2)The approved provider, at the request of the Regulatory Authority, must provide the Authority with the contact details of the parents of all children enrolled at the children's service.

(3)The Regulatory Authority may use the information provided under subsection (2) solely to notify the parents of children enrolled at an approved children's service of a suspension or cancellation of the service approval for the service.

82Notice to parents of suspension or cancellation

(1)This section applies if a service approval has been suspended or cancelled under section 72, 73, 78 or 80.

(2)The Regulatory Authority may require the approved provider to give written notice of the suspension or cancellation and its effect to the parents of children enrolled at the children's service to which the approval relates.

(3)The approved provider must comply with a requirement made under subsection (2).

Penalty:20 penalty units, in the case of an individual.

100 penalty units, in any other case.

83Voluntary suspension of service approval

(1)An approved provider may apply to the Regulatory Authority for the suspension of a service approval for a period of not more than 12 months.

(2)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(3)The Regulatory Authority may agree to the suspension, having regard to whether the suspension is reasonable in the circumstances.

(4)The approved provider must, at least 14 days before making an application under this section, notify the parents of children enrolled at the children's service of the intention to make the application.

(5)The Regulatory Authority must, within 30 days after the application is made, decide whether or not to grant the application.

(6)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.

84Surrender of service approval

(1)An approved provider may surrender a service approval by written notice to the Regulatory Authority.

(2)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).

(3)The approved provider must notify the parents of children enrolled at the children's service to which the approval relates of the intention to surrender the service approval, at least 14 days before the surrender is intended to take effect.

(4)If a service approval is surrendered, the approval is cancelled on the date specified in the notice.

Division 5—Application for service waiver

85Application for service waiver for service

(1)An approved provider may apply to the Regulatory Authority for a waiver from a requirement that an approved children's service comply with any prescribed requirements of the regulations.

(2)A person who applies for a service approval may apply for a service waiver under this section together with the application for the service approval.

(3)The Regulatory Authority must not grant a service waiver to a person who applies under subsection (2) unless the service approval is granted to that person.

86Form of application

An application under section 85 must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

87Powers of Regulatory Authority in considering application

(1)For the purpose of determining an application under this Division, the Regulatory Authority may—

(a)ask the applicant to provide further information; and

(b)inspect the children's service premises and the office of the applicant.

(2)If the Regulatory Authority asks the applicant for further information under this section, the period from the making of that request until the provision of further information is not included in the period referred to in section 89(2) for the Regulatory Authority to make a decision on the application.

88Matters to be considered

In considering whether the grant of a service waiver is appropriate, the Regulatory Authority may have regard to either or both of the following—

(a)whether the children's service is able to meet the prescribed requirements of the regulations by alternative means that satisfy the objectives of those regulations;

(b)any matters disclosed in the application that are relevant to the application for the service waiver.

89Decision on application

(1)On an application under this Division, the Regulatory Authority may decide to grant the service waiver or refuse the application.

(2)Subject to subsection (3), the Regulatory Authority must notify the applicant within 60 days after the application is made of the Authority's decision on the application.

(3)If an application for a service waiver has been made together with an application for service approval, the Regulatory Authority may notify the applicant of the Authority's decision on the application at the same time as the notice of the decision on the application for the service approval.

(4)If a service waiver is granted, the Regulatory Authority may place any conditions on the service waiver, including any condition limiting the use of the service waiver.

(5)The Regulatory Authority may, at any time remove, add to or vary any conditions placed on a service waiver under subsection (4).

(6)If a service waiver is granted or its conditions are amended under subsection (5), the Regulatory Authority must issue or reissue the service approval specifying—

(a)the regulations that have been waived; and

(b)any conditions placed on the waiver.

90Revocation of service waiver

(1)The Regulatory Authority may, at its discretion, revoke a service waiver.

(2)An approved provider may apply to the Regulatory Authority for the revocation of a service waiver applying to any children's service that it operates.

(3)A revocation under this section takes effect at the end of the period prescribed in the regulations.

91Effect of service waiver

While a service waiver is in force, the approved children's service is taken to comply with the regulations that are specified in the service waiver.

(ii)sending it by facsimile transmission to a facsimile number notified to the sender by the person as an address at which service of notices under this Act will be accepted; or

(iii)sending it by email to an internet address notified to the sender by the person as an address at which service of notices under this Act will be accepted.

(2)Subsection (1) applies whether the word "deliver", "give", "notify", "send" or "serve" or another expression is used.

(3)Subsection (1) does not affect the power of a court or tribunal to authorise service of a notice otherwise than as provided in that subsection.

181Service by post

If a notice authorised or required to be served (whether the word "deliver", "give", "notify", "send" or "serve" or another expression is used) on a person is served by post, service of the notice—

(a)may be effected by properly addressing, prepaying and posting a letter containing the document; and

(b)in Australia or in an external Territory—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth day after the letter was posted; and

(c)in another place—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of the post.

Division 4—False or misleading information

182False or misleading information or documents

(1)A person must not give the Regulatory Authority or an authorised officer under this Act any information or document that the person knows is false or misleading in a material particular.

Penalty:40 penalty units, in the case of an individual.

200 penalty units, in any other case.

(2)Subsection (1) does not apply in respect of the giving of a document, if the person when giving the document—

(a)informs the Regulatory Authority or authorised officer, to the best of the person's ability, how it is false or misleading; and

(b)gives the correct information to the Regulatory Authority or authorised officer if the person has, or can reasonably obtain, the correct information.

Division 5—Protection from reprisal

183Definitions

In this Division—

protected disclosure means a disclosure of information or provision of documents to the Regulatory Authority—

(a)pursuant to a request under this Act; or

(b)where the person making the disclosure has a reasonable belief that—

(i)an offence against this Act has been or is being committed; or

(ii)the safety, health or wellbeing of a child or children being educated and cared for by a children's service is at risk;

serious detrimental action includes dismissal, involuntary transfer, loss of promotion and demotion.

184Protection from reprisal

(1)A person must not take serious detrimental action against a person in reprisal for a protected disclosure.

Penalty:60 penalty units, in the case of an individual.

300 penalty units, in any other case.

(2)A person takes serious detrimental action in reprisal for a protected disclosure if—

(a)the person takes or threatens to take the action because—

(i)a person has made, or intends to make, a protected disclosure; or

(ii)the person believes that a person has made or intends to make the protected disclosure; or

(b)the person incites or permits another person to take or threaten to take the action for either of those reasons.

(3)In determining whether a person takes serious detrimental action in reprisal, it is irrelevant whether or not a reason referred to in subsection (2) is the only or dominant reason as long as it is a substantial reason.

185Proceedings for damages for reprisal

(1)A person who takes serious detrimental action against a person in reprisal for a protected disclosure is liable in damages to that person.

(2)The damages may be recovered in proceedings as for a tort in any court of competent jurisdiction.

(3)Any remedy that may be granted by a court with respect to a tort, including exemplary damages, may be granted by a court in proceedings under this section.

(4)The right of a person to bring proceedings for damages does not affect any other right or remedy available to the person arising from the serious detrimental action.

186Application for injunction or order

A person who believes that serious detrimental action has been taken or may be taken against him or her in reprisal for a protected disclosure may apply to the Supreme Court for—

(a)an order requiring the person who has taken the serious detrimental action to remedy that action; or

(b)an injunction.

187Injunction or order

(1)If, on receipt of an application under section 186, the Supreme Court is satisfied that a person has taken or intends to take serious detrimental action against a person in reprisal for a protected disclosure, the court may—

(a)order the person who took the serious detrimental action to remedy that action; or

(b)grant an injunction in any terms the court considers appropriate.

(2)The Supreme Court, pending the final determination of an application under section 186, may—

(a)make an interim order in the terms of subsection (1)(a); or

(b)grant an interim injunction.

Division 6—Miscellaneous matters

188Production of records kept in computers etc.

If a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under this Act—

(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.

189Determining age in years

For the purposes of this Act, a person attains an age in years at the beginning of the person's birthday for the age.

Division 7—Approved associated children's services National Law provisions not to apply

190Approved associated children's services, National Law provisions do not apply

The provisions of the National Law that provide for the authorisation of the operation of associated children's services and any other provisions relating to associated children's services do not apply in this State.

Division 8—Regulations

191Regulations

(1)The Governor in Council may make regulations for the purposes of this Act.

(2)The regulations may provide for any matter that is required or permitted to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(3)Without limiting subsection (1), the regulations may provide for the following—

(a)fees (including application fees and annual fees) for—

(i)approvals under this Act; and

(ii)other things done under this Act;

(b)requirements for educational programs, including the quality of those programs and their development, documentation and delivery;

(c)requirements to be complied with for the safety, health and wellbeing of children being educated and cared for by a children's service;

(d)requirements to be complied with for safety, security, cleanliness, comfort, hygiene and repair of premises, outdoor spaces, fencing, gates, resources and equipment used for providing children's services;

(e)requirements about the premises to be used to provide a children's service including siting, design, layout, space, security and entitlement to occupy;

(f)requirements for the staffing of children's services including the recruitment (and conduct of criminal history or other security checks) and the appointment of staff, performance improvement, professional standards, professional development, numbers and qualifications of educators (including minimum age and requirements concerning groups of children of different ages and composition) and staffing rosters and arrangements;

(g)requirements about educators' relationships with children, interactions and behaviour guidance and inclusion policies and practice for children's services;

(h)requirements for partnerships between children's services and the community in which they are located and the families of children being educated and cared for by children's services, including requirements for services to link to other support services for children and families;

(i)requirements as to the leadership and management of children's services including governance and fitness and propriety of all staff members and volunteers, management of grievances and complaints and the provision of information to families;

(j)the records, policies and procedures to be kept by approved providers including enrolment and attendance information;

(k)requirements about first aid and management of children's medical conditions including—

(i)the training of educators and staff members; and

(ii)plans, policies and procedures used to manage medical conditions and first aid; and

(iii)the keeping and storage of first aid kits and medications;

(l)information required to be submitted for applications made under this Act;

(m)requirements for the provision and display of information by approved providers;

(n)the publication of information about enforcement actions taken under this Act, including notice and review of proposals to publish information;

(o)matters relating to the application of this Act to partnerships, eligible associations or prescribed entities;

(p)requirements relating to the receipt and payment and distribution of fees and monetary penalties payable under this Act.

(4)The regulations—

(a)may exempt any children's service or any type or class of children's service from complying with all or any of the regulations; and

(b)may impose penalties not exceeding 10 penalty units for offences against the regulations.

192Matters for which regulations or other statutory instruments may make provision

(1)If this Act authorises or requires the making of a regulation or other statutory instrument in relation to a matter, a regulation or other statutory instrument made under this Act may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of—

(a)an Act, regulation or other 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.

(2)If a regulation or other statutory instrument applies, adopts or incorporates the provisions of a document, the regulation or other statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the regulation or other statutory instrument otherwise expressly provides.

(3)A regulation or other 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.

(4)A regulation or other 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; or

(iii)the type or class of children's service and the ages of children being educated and cared for by a service.

(5)A regulation or other statutory instrument may authorise a matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person or body.

(6)If this Act authorises or requires a matter to be regulated by regulation or other statutory instrument, the power may be exercised by prohibiting by regulation or other statutory instrument the matter or any aspect of the matter.

(7)If this Act authorises or requires provision to be made with respect to a matter by regulation or other statutory instrument, a regulation or other statutory instrument made under this Act may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Act in relation to another aspect of the matter or in relation to another matter.

(8)A regulation or other statutory instrument may provide for the review of, or a right of appeal against, a decision made under the regulation, other statutory instrument, or this Act, and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.

(9)A regulation or other statutory instrument may require a form prescribed by or under the regulation or other statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.'.

16Substitution of Parts 7 and 8

For Parts 7 and 8 of the Principal Act substitute—

'Part 7—Transitional provisions—Children's Services Amendment Act 2019

Division 1—Preliminary

193Definitions

In this Part—

commencement day means the day on which the 2019 Act comes into operation;

old Act means this Act as in force immediately before the commencement day;

old approved associated children's service means a children's service that was an approved associated children's service under the National Law immediately before the commencement day;

old licence means a licence to operate a children's service issued under the old Act and in force immediately before the commencement day which authorises the operation of a children's service;

old person in charge, in relation to a transitioned children's service, means a person who was, immediately before the commencement day, a nominee for that service within the meaning of nominee in the old Act, but does not include an old primary nominee for that service;

old primary nominee, in relation to a transitioned children's service, means the person who was, immediately before the commencement day, the primary nominee for that service within the meaning of primary nominee in the old Act;

transition period, in relation to an old approved associated children's service, means the period commencing on the commencement day and ending at the end of the day immediately preceding the day that is 2 years after the commencement day;

transitioned children's service means a children's service provided under an old licence in respect of which the licence holder, under Division 2, is taken to hold a provider approval and a service approval under this Act;

2019 Act means the Children's Services Amendment Act 2019.

Division 2—Old licences

194Status of old licences

(1)On and from the commencement day, a person who was the holder of an old licence—

(a)is taken to hold a provider approval in respect of the children's service for which the person held the licence; and

(b)is taken to hold a service approval for the children's service for which the person held the licence.

(2)A person who is taken to hold a provider approval in respect of a children's service under subsection (1)(a) must notify the Regulatory Authority of the name and contact details of each person with management or control of the children's service.

(3)A notice under subsection (2) must be given no more than 30 days after the commencement day.

(4)This Act applies to a provider approval and to a service approval that a person is taken to hold under subsection (1) as if—

(a)the provider approval and service approval had been granted under this Act; and

(b)as if the provider approval and service approval had been granted on the commencement day.

195Suspended licences

If an old licence which is taken to be a provider approval and service approval under section 194 was suspended immediately before the commencement day under the old Act—

(a)the provider approval and service approval are taken to be suspended for the remainder of the period for which the old licence was suspended under the old Act; and

(b)this Act applies to the suspension of the provider approval and service approval as if the approvals were suspended under this Act.

196Old licences held by trusts

(1)If, immediately before the commencement day, the holder of the old licence was a trust, the trustee or trustees of the trust are taken to be the approved provider of the children's service under section 194.

(2)The trust must, within 30 days after the commencement day, notify the Regulatory Authority of the identity of the trustee or trustees of the trust.

(3)If the notice is not given under subsection (2) within the required period, each trustee of the trust ceases to be an approved provider under this section at the end of that period.

197Conditions on old licences

(1)If, under this Division, a person is taken to hold a provider approval, any conditions of the old licence relating to that person are taken to be conditions of the provider approval, unless inconsistent with this Act.

(2)If, under this Division, a person is taken to hold a service approval, any conditions of the old licence relating to the children's service are taken to be conditions of the service approval, unless inconsistent with this Act.

198Copies of approvals to be given

(1)The Regulatory Authority must, within 6 months after the commencement day, give to each person who is taken to be the holder of a provider approval under this Division a copy of the provider approval setting out the matters listed in section 20.

(2)The Regulatory Authority must, within 6 months after the commencement day, give to each person who is taken to be the holder of a service approval under this Division a copy of the service approval setting out the matters listed in section 51.

199Existing multiple licences to merge

If, immediately before the commencement day, the holder of an old licence held more than one old licence in respect of the same premises, the old licences are taken to be one service approval in respect of those premises for the purposes of this Act.

Division 3—Approved associated children's services

200Transitional arrangements for old approved associated children's services

(1)Despite the commencement of section 190, for the transition period an old approved associated children's service may continue to operate as if section 190 had not been enacted.

(2)The provisions of this Act apply to an old approved associated children's service operating under subsection (1) as if—

(a)the old approved associated children's service were an approved children's service under this Act; and

(b)the approved provider of the old approved associated children's service under the National Law were the approved provider under this Act; and

(c)the person who was the nominated supervisor of the old approved associated children's service under the National Law were the nominated supervisor under this Act.

201Cessation of application of section 200

On and from the day that is 2 years after the commencement day section 200 ceases to apply to old approved associated children's services.

Division 4—Exemptions from requirements of the old Act

202Individual service exemptions

(1)This section applies in respect of the holder of an old licence for a children's service that was not required to comply with a requirement of the old Act under a relevant declaration immediately before the commencement day.

(2)The children's service is taken to comply with an equivalent requirement of this Act—

(a)for the period of 6 months from the commencement day; or

(b)if the holder of the old licence applies to the Regulatory Authority under this Act for a temporary waiver or service waiver under this Act in respect of that requirement and the application is received by the Regulatory Authority on or before the expiry of the 6-month period, to the date on which the application is finally determined under this Act.

(3)In this section—

relevant declaration, in relation to a children's service, means—

(a)a declaration made under section 29A of the old Act specifically in respect of the children's service; or

(b)a declaration made under section 6(1) of the old Act specifically in respect of the children's service.

203General service exemptions

On and from the commencement day, a declaration in respect of a specified type of service under section 6 or 29A of the old Act that was in force immediately before the commencement day, is taken to continue in force—

(a)as if the declaration applied to the equivalent requirement of this Act as in force on and from the commencement day; and

(b)unless sooner revoked, for the remainder of the period for which it was specified to remain in force in the notice of the declaration.

Division 5—Applications

204Existing applications

(1)On and from the commencement day, a person who applied for an old licence under the old Act whose application is on foot immediately before the commencement day is taken to have applied under this Act for a provider approval and a service approval.

(2)To avoid doubt, the Regulatory Authority has all the powers under this Act to deal with the application as if it were an application under this Act.

(3)This section does not apply if the applicant is a prescribed ineligible person.

Division 6—Nominated supervisors and other persons

205Nominated supervisors

(1)On and from the commencement day, an old primary nominee of a transitioned children's service is taken to be the nominated supervisor for that service.

(2)Subsection (1) ceases to apply if—

(a)the approved provider does not confirm the nomination within a time specified by the Regulatory Authority after being requested in writing to do so by the Regulatory Authority; or

(b)the person advises the Regulatory Authority in writing that the person does not consent to being the nominated supervisor of the children's service.

206Persons in day-to-day charge

(1)On and from the commencement day, an old person in charge of a transitioned children's service is taken to be a person in day-to-day charge for that service.

(2)Subsection (1) ceases to apply if another person is placed in day-to-day charge of the service under the regulations.

Division 7—Miscellaneous matters

207Notices to comply

(1)On and from the commencement day, an old Act compliance notice in force immediately before the commencement day is taken to be a compliance notice under this Act.

(2)In this section—

old Act compliance notice means a notice issued under section 43 or 43A of the old Act.

208Disclosure of information

For the purposes of section 166, information that may be disclosed by the Regulatory Authority includes information obtained or kept by the Regulatory Authority under the old Act.

209Keeping of old information

(1)A person who was the proprietor of a children's service immediately before the commencement day must—

(a)keep the prescribed records about the children's service for the prescribed period; or

(b)within the prescribed period after the commencement day, transfer the prescribed records about the children's service to the approved provider.

Penalty:15 penalty units, in the case of an individual.

125 penalty units, in any other case.

(2)A person who was the holder of an old licence immediately before the commencement day must keep the prescribed records about the children's service to which the licence applied for the prescribed period.

Penalty:15 penalty units, in the case of an individual.

125 penalty units, in any other case.

(3)An approved provider to whom records are transferred under subsection (1)(b) must keep the prescribed records for the prescribed period.

Penalty:15 penalty units, in the case of an individual.

125 penalty units, in any other case.

(4)A person who is required to keep records under this section must make the records available to the Regulatory Authority on being requested to do so by the Regulatory Authority in the prescribed manner.

Penalty:15 penalty units, in the case of an individual.

125 penalty units, in any other case.

210Regulation making powers

(1)The Governor in Council may make regulations providing for matters of a transitional nature, including matters of an application or saving nature required, necessary or convenient to be made as a result of the enactment of the 2019 Act, other than in relation to any matter provided for in this Part.

(2)A regulation made under subsection (1) may—

(a)have retrospective effect to the commencement day; and

(b)be of a general or limited application; and

(c)differ according to time, place or circumstance; and

(d)leave any matter or thing to be determined by the Regulatory Authority; and

(e)exempt any person or class of person from complying with the regulation.

(3)To the extent to which any provision of the regulations under this section takes effect from a date that is earlier than the date of its making, 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 making; 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 making.

(4)Sections 6 and 7 of the Subordinate Legislation Act 1994 do not apply to any regulations made under this section.

(5)This section expires on the second anniversary of the day on which it comes into operation.".

17Insertion of Schedule

At the end of the Principal Act insert—

"Schedule 1—Powers of entry by search warrant

1Application for warrant

(1)An authorised officer may apply to a magistrate for a search warrant in relation to premises if the officer believes on reasonable grounds that—

(a)a person is or has been operating a children's service at the premises in contravention of this Act; or

(b)documents or other evidence relevant to the possible commission of an offence against this Act are present at the premises.

(2)The authorised officer must prepare a written application that states the grounds on which the warrant is sought.

(3)The written application must be sworn.

(4)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.

2Issue of warrant

(1)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 a children's service at the premises in contravention of this Act; or

(b)documents or other evidence relevant to the possible commission of an offence against this Act are present at the premises.

(2)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.

3Application by electronic communication

(1)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.

(2)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.

(3)The magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied—

(a)it was necessary to make the application under subclause (1); and

(b)the way the application was made under subclause (1) was appropriate.

(4)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 facsimile 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.

(5)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 duplicate warrant), is a duplicate of, and as effectual as, the original warrant.

(6)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.

(7)The magistrate must keep the original warrant and, on receiving the documents under subclause (6), file the original warrant and documents in the court.

(8)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.

(9)This clause does not limit clause 1.

4Procedure before entry under warrant

(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.

(2)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.

5Powers after entering premises

(1)This clause applies if an authorised officer enters premises under clause 4.

(2)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.".

Part 3—Amendments of other Acts

18Consequential amendment of the Education and Training Reform Act 2006

For section 2.6.60A(6) of the Education and Training Reform Act 2006 substitute—

"(6)In this section—

waiver means—

(a)a service waiver or temporary waiver under the Children's Services Act 1996 that exempts a children's service from requirements under that Act for attendance of early childhood teachers; or

(b)a service waiver or temporary waiver under the Education and Care Services National Law (Victoria) that exempts an education and care service from requirements under that Law for attendance of early childhood teachers.".

19Consequential amendment of the Children, Youth and Families Act 2005

For section 182(1)(f) of the Children, Youth and Families Act 2005 substitute—

"(f)on and from the relevant date, the approved provider or nominated supervisor of or a person with a post-secondary qualification in the care, education or minding of children who is employed or engaged by, a children's service within the meaning of the Children's Services Act 1996;".

20Consequential amendment of the Child Wellbeing and Safety Act 2005

(1)In section 46A of the Child Wellbeing and Safety Act 2005—

(a)insert the following definition—

"approved children's service has the same meaning as in the Children's Services Act 1996;";

(b)for the definition of approved provider substitute—

"approved provider—

(a)in relation to an approved education and care service, has the same meaning as in section 5(1) of the Education and Care Services National Law (Victoria); and

(b)in relation to an approved children's service, has the same meaning as in the Children's Services Act 1996;";

(c)in the definition of relevant service, for paragraph (e) substitute—

"(e)an approved children's service; or".

(2)In section 46C(2) of the Child Wellbeing and Safety Act 2005, in paragraph (c) of the definition of first contact, for "a licensed children's service" substitute "an approved children's service".

(3)For section 46I(1)(f) of the Child Wellbeing and Safety Act 2005 substitute—

"(f)an approved provider of an approved children's service;".

(4)In section 46K of the Child Wellbeing and Safety Act 2005—

(a)in subsection (1)(n), for "a licensed children's service who is authorised in writing by the licensee of the service" substitute "an approved children's service who is authorised in writing by the approved provider of the service";

(b)in subsection (2), for "licensed children's service" substitute "approved children's service".

(5)In section 46L(4) of the Child Wellbeing and Safety Act 2005—

(a)for "A licensee of a licensed children's service" substitute "An approved provider of an approved children's service";

(b)for "the licensee" substitute "the approved provider";

(c)for "the licensed children's service" substitute "the approved children's service".

(6)For item 6 of Schedule 1 to the Child Wellbeing and Safety Act 2005 substitute—

"6An approved provider of an approved children's service within the meaning of the Children's Services Act 1996.".

(7)In Column 1 of item 17 of Schedule 6 to the Child Wellbeing and Safety Act 2005—

(a)for "a licensed children's service" substitute "an approved children's service";

(b)for "the licensee" substitute "the approved provider".

21Consequential amendment of the Public Health and Wellbeing Act 2008

In section 3(1) of the Public Health and Wellbeing Act 2008, in paragraph (b) of the definition of early childhood service, for "a service that is licensed" substitute "a children's service that is approved".

22Consequential amendment of the Tobacco Act 1987

In section 3 of the Tobacco Act 1987, for the definition of children's service premises substitute—

"children's service premises has the same meaning as in the Children's Services Act 1996;".

Part 4—Repeal of this Act

23Repeal of this Act

This Act is repealed on 18 May 2021.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 28 August 2019

Legislative Council: 17 October 2019

The long title for the Bill for this Act was "A Bill for an Act to amend the Children's Services Act 1996 to further provide for the regulation of children's services, consistently with the Education and Care Services National Law (Victoria) where appropriate, including establishing a scheme for the approval of persons who provide the services and for the operation of the services and to provide for the monitoring and enforcement of the scheme, to make related minor and consequential amendments to other Acts and for other purposes."