CTZ v NSW Department of Education, Early Childhood Education and Care Directorate

[2017] NSWCATAD 132

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132
Hearing dates:	2 February 2017
Date of orders:	27 April 2017
Decision date:	27 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	1) The decision of the respondent dated 11 October 2016 is set aside. 2) In substitution the following decision is made: That the applicant is granted an extension of time within which to commence ongoing operation of the family day care service. That extension period is 6 months from the date of this decision.
Catchwords:	ADMINISTRATIVE LAW- Education and Care Services National Law – Operator approval – Breach of condition of approval – Objects and Principles of National Law – Children – Childcare Services – Failure to commence operating with 6 months – Administrative review jurisdiction– External Appeal jurisdiction.
Legislation Cited:	A New Tax System (Family Assistance Administration) Act 1999 (Cth) Administrative Decisions Review Act 1997(NSW) Children (Education and Care Services) National Law (NSW) No 104a Children (Education and Care Services National Law Application) Act 2010 (NSW) Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) Children (Education and Care Services) Supplementary Provisions Regulation 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 CTG v NSW Department of Education Early Childhood and Care Directorate [2017] NSWCATAD 60 CVN v New South Wales Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 109 CVM v New South Wales Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 108 CVT v NSW Department of Education & Communities, Early Childhood Education & Care Directorate [2017] NSWCATAD 74 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Long Life Family Daycare v Director General Education Directorate (Administrative Review) [2016] ACAT 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CTZ (Applicant) NSW Department of Education, Early Childhood Education & Care Directorate (Respondent)
Representation:	Counsel/Advocates: E Aldhafiri (Applicant‘s Director) C Frommer (Solicitor)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378452, 1610700
Publication restriction:	Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013 a person must not, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal.Note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for Decision

Introduction

1. The applicant is known by the pseudonym ‘CTZ’ in these proceedings in order to protect the identity of the applicant in accordance with Procedural Direction 9 of the NSW Civil and Administrative Tribunal and due to the fact that the matter is heard under the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). This arises because the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) is part of the defined “community welfare legislation” under that Act and therefore section 65(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) makes it an offence, except with the consent of the Tribunal, whether before or after the proceedings are disposed of, to publish or broadcast the name of any person who appears as a witness before the Tribunal in any proceedings, or to whom any proceedings in the Tribunal relate, or who is mentioned or otherwise involved in any proceedings in the Tribunal. It is noted for the purposes of that section that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

2. On 11 February 2015 the applicant was granted service approval to run a proposed Family Day Care Service pursuant to section 48 of the Children (Education and Care Services) National Law (NSW) No 104a (the National Law). The document certifying the approval stated that the approval was granted on conditions, including that the provider operate in compliance with the conditions imposed by section 51 of the National Law.

3. The respondent on 11 October 2016 cancelled the service approval granted to the applicant. The applicant seeks to overturn the decision to cancel the approval while having the opportunity to complete the process of obtaining Child Care Benefit approval. The respondent submits that the correct and preferable decision is that the decision under review be affirmed pursuant to section 193 (3) (a) of the National Law.

Legislative background

4. The objectives and guiding principles of the National Law are in section 3:

3 Objectives and guiding principles

(1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.

(2) The objectives of the national education and care services quality framework are-

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

(b) to improve the educational and developmental outcomes for children attending education and care services;

(c) to promote continuous improvement in the provision of quality education and care services;

(d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework;

(e) to improve public knowledge, and access to information, about the quality of education and care services;

(f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth.

(3) The guiding principles of the national education and care services quality framework are as follows-

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

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

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

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

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

(f) that best practice is expected in the provision of education and care services.

5. Section 4 provides how the functions under the National Law are to be exercised as follows:

4 How functions to be exercised

An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.

6. The National Law provides, under Part 3, for a natural person or company to operate an education and care service, which includes family day care services. The applicant in this matter is a company. An applicant must obtain service approval under Part 3 in order to operate an education and care service.

7. The process under the National Law provides that under Part 2 an applicant must have provider approval from the regulatory body, which is defined in section 5. The Regulatory Authority is defined in section 5 to be:

"Regulatory Authority" means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction...

8. Pursuant to section 24 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) references to Regulatory Authority in the National Law is a reference to the Regulatory Authority for this jurisdiction. Under section 9 of the Children (Education and Care Services National Law Application) Act 2010 (NSW), the Regulatory Authority for this jurisdiction (NSW) is the Director-General of the Department of Education and Communities.

9. A service approval is granted pursuant to section 48 of the National Law.

10. There are conditions which attach to the grant of a service approval as provided by section 51 of the National Law, and relevantly for this application, to commence operating within 6 months after the approval is granted by reason of section 51 (3). The penalty for failure to comply is $50,000 in the case of a company such as the applicant in this matter. The provisions of section 51 of the National Law are as follows:

51 Conditions on service approval

(1) A service approval is granted subject to the condition that the education and care service is operated in a way that-

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

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

(2) A service approval for a family day care service is granted subject to the additional condition that the approved provider must ensure that-

(a) sufficient persons are appointed as family day care co-ordinators to monitor and support the family day care educators engaged by or registered with the service; and

(b) each family day care educator is adequately monitored and supported by a family day care co-ordinator.

(3) 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.

(4) A service approval is granted subject to a condition that the approved provider must hold the prescribed insurance in respect of the education and care service.

(5) A service approval is granted subject to any other conditions prescribed in the national regulations or imposed by-

(a) this Law; or

(b) the Regulatory Authority.

(6) A condition of a service approval does not apply to an associated children’s service unless the condition is expressed to apply to that associated children’s service.

(7) A condition of a service approval may be expressed to apply solely to an associated children’s service only if the Regulatory Authority has first consulted with the children’s services regulator.

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

Penalty:

$10 000, in the case of an individual.

$50 000, in any other case.

11. The National Law also provides a mechanism for the Regulatory Authority to suspend or cancel a provider approval and a service approval. Relevantly for this matter section 77 of the National Law provides:

77 Grounds for cancellation of service approval

A Regulatory Authority may cancel a service approval if-

(a) the Regulatory Authority reasonably believes that the continued operation of the education and care 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 education and care 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.

12. If the Regulatory Authority is considering the cancellation of the service approval under section 77 a “show cause notice” must issue under section 78 of the National Law. In this matter a show cause notice was issued on 6 September 2016. Pursuant to section 78(2)(c) the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed cancellation. No response to the show cause notice issued in this matter was received by the respondent within that time frame.

13. After considering any written response to the show cause notice received within 30 days, the Regulatory Authority may cancel, suspend or decide not to cancel the service approval pursuant to section 79 of the National Law. The decision is a discretionary decision. It is noted that the Regulatory Authority may also grant an extension of time within which to comply.

14. It is also an offence to fail to notify the Regulatory Authority in writing that the education and care service does not commence within 6 months (or within such time as agreed by the regulatory authority) after being granted service approval by reason of section 173 (1) (c) of the National Law which is as follows:

173 Offence to fail to notify certain circumstances to Regulatory Authority

(1) An approved provider must notify the Regulatory Authority of the following in relation to the approved provider or each approved education and care service operated by the approved provider-

(a) a change in the name of the approved provider;

(b) any appointment or removal of a person with management or control of an education and care service operated by the approved provider;

(c) a failure to commence operating an education and care service within 6 months (or within the time agreed with the Regulatory Authority) after being granted a service approval for the service.

Penalty:

$4000, in the case of an individual.

$20 000, in any other case...

15. In this application the respondent decided to cancel the service approval because of the failure to commence operating an education and care service within 6 months after being granted a service approval.

Jurisdiction

16. In CTG v NSW Department of Education Early Childhood and Care Directorate [2017] NSWCATAD 60, Senior Member McAteer determined that the application before the Tribunal is in the review jurisdiction rather than as an external appeal. This decision was followed by the Senior Member in CVT v NSW Department of Education & Communities, Early Childhood Education & Care Directorate [2017] NSWCATAD 74. It is also my determination that this application is heard in the review jurisdiction of the Tribunal. The reasons for that conclusion are in accord with the reasons of Senior Member McAteer, but there is an additional reason for that conclusion.

17. Pursuant to section 28 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) a reference in section 192 of the National Law to a reviewable decision for external review includes “any decision of the Regulatory Authority of a kind specified for the regulations to be a reviewable decision for external review.” Clause 114 of the Children (Education and Care Services) Supplementary Provisions Regulation 2012 (NSW) in relation to a reviewable decision states:

114 Reviewable decisions

For the purposes of section 28 of the Act, the following decisions of the Regulatory Authority are reviewable decisions for external review:

(a) a decision to require an approved provider to employ additional staff,

(b) a decision to refuse an application for an approval to provide a child-minding service under Part 8.

18. Pursuant to section 28 (a1) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) a decision that is administratively reviewable for external review under section 192 of the National Law Alignment Provisions is to be heard in the Civil and Administrative Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW). The National Law Alignment Provisions is defined in section 17 of the Children (Education and Care Services) Supplementary Provisions Act as follows:

17 Alignment with National Law

The National Law, as in force from time to time:

(a) applies to State regulated education and care services as if those services were education and care services within the meaning of the National Law, and

(b) so applies with the modifications provided for by or under this Act, and

(c) as so applying may be referred to as the "National Law Alignment Provisions" , and

(d) so applies as if it were part of this Act.

19. Section 192 of the National Law relevantly provides:

192 Reviewable decision-external review

A reviewable decision for external review is-

(a) a decision of the Regulatory Authority made under section 191 (other than a decision in relation to the issue of a compliance direction or a compliance notice); or

(b) a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction-

(i) to suspend a provider approval under section 27; or

(ii) to cancel a provider approval under section 33; or

(iii) to suspend a service approval under section 72; or

(iv) to cancel a service approval under section 79 or 307; or

(v) to suspend or cancel a supervisor certificate under section 125; or

(vi) to direct the approved provider of a family day care service to suspend the care and education of children by a family day care educator; or

(vii) to give a prohibition notice or to refuse to cancel a prohibition notice.

Note : A person is not entitled to a review under this section in respect of a suspension or cancellation of a service approval if that suspension or cancellation relates only to an associated children’s service. Any right of review would be under the children’s services law.

20. The cancellation of a service approval under section 79 of the National Law is thus a reviewable decision for external review pursuant to section 192 (b) (iv) of the National Law.

21. Section 193 of the National Law provides:

193 Application for review of decision of the Regulatory Authority

(1) A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision.

(2) An application must be made within 30 days after the day on which the applicant is notified of the decision that is to be reviewed.

(3) After hearing the matter, the relevant tribunal or court may-

(a) confirm the decision of the Regulatory Authority; or

(b) amend the decision of the Regulatory Authority; or

(c) substitute another decision for the decision of the Regulatory Authority.

(4) In determining any application under this section, the relevant tribunal or court may have regard to any decision under this Law as applying in another participating jurisdiction of a relevant tribunal or court of that jurisdiction.

22. In section 5 of the National Law the definition of relevant tribunal or court is:

"relevant tribunal or court" , in relation to a participating jurisdiction, means the tribunal or court declared by a law of that jurisdiction to be the relevant tribunal or court for the purposes of this Law or a provision of this Law;

23. In section 8 of the Children (Education and Care Services National Law Application) Act 2010 the relevant Tribunal is declared:

8 Relevant tribunal or court

For the purposes of the definition of "relevant tribunal or court" in section 5 of the Children (Education and Care Services) National Law (NSW) :

(a) the District Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 181 of that Law, and

(b) the Civil and Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Part 8 of that Law.

24. Therefore, the scheme of the legislation is that the Civil and Administrative Tribunal is the relevant tribunal to which an application may be made for external review of a decision of the Regulatory Authority under section 79 of the National Law. The powers given to the Tribunal by section 193 of the National Law are not as extensive as the powers under section 63(3) of the Administrative Decisions Review Act 1997 (NSW).

25. Since the application to this Tribunal is an administrative review it is considered that the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: section 63(1) Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

The evidence relied upon in the hearing

26. The documents in evidence before the Tribunal are:

1. Administrative review application form received by the Tribunal on 27 October 2016 including email correspondence from the managing Director of the applicant: Exhibit 1.

2. Letter dated 21 December 2016 response by the applicant: Exhibit 2.

3. Respondent bundle of documents filed in the tribunal on 25 November 2016: Exhibit 3.

4. Affidavit attaching a letter from the Australian Government Department of Education and Training Director for New South Wales/ACT Early Childhood and Childcare: Exhibit 4.

5. Submissions of the respondent filed 20 January 2017: Exhibit 5.

27. The Tribunal has been assisted by the parties’ representatives and their respective submissions.

28. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil standard of proof which is the balance of probabilities.

Onus of proof

29. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

30. This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.

31. Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

32. The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted:

“[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].

[72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

…

[74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

33. The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis “) at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

34. The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button’s decision and orders in Bronze Wing.

35. The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

Further Legislative Provisions relevant to the decision

36. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

37. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

38. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

39. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division on an application for review is not entitled to be represented by a lawyer without requiring leave of the Tribunal: see sections 16, 17 and Schedule 3, clause 9, of the Civil and Administrative Tribunal Act.

The Issue

40. As previously referred to, the issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the NSW Department of Education, Early Childhood Education & Care Directorate: section 63(1) Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

41. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

42. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

43. The application and approval was made under the National Law where various criteria for approval and maintaining of the currency of the approval are set out. The respondent on or about 27 April 2015 spoke to a Director of the applicant in relation to the application for Child Care Benefits approval. On 28 July 2015 the applicant was informed of the requirements to commence operations within the six-month period imposed by section 51(3) of the National Law. While it is true that operation of the family day care service can occur even without Child Care Benefits approval it is highly unlikely that any parents will leave their child with the service if the service is not eligible for Child Care Benefit payments.

44. The Tribunal received into evidence Exhibit 2, comprising a letter dated 21 December 2016 from the Director of the applicant in response to the show cause notice. It is to be recalled that the show cause notice was issued on 6 September 2016. The letter was sent well outside the 30 day period stipulated for a response. The letter records that without the Child Care Benefit (‘CCB’) parents will not leave their children in the day care scheme without a government subsidy. Unless the applicant is able to show that it has a current provider approval it cannot obtain the CCB approval. The application filed 27 October 2016 stated that a letter was sent to the respondent but it did not receive the letter. Presumably, that is referring to Exhibit 2. The applicant sought an extension of time within which to obtain the CCB approval.

45. The application filed 27 October 2016 explains that the applicant has been seeking CCB approval but cannot operate without that approval because educators and families will not enrol with them without that approval.

46. The formal service approval pursuant to section 48 of the National Law, telephone filenotes, the show cause notice and the notice of decision to cancel the service approval dated 11 October 2016 are comprised in Exhibit 3.

47. The respondent also obtained a letter from the Commonwealth Department of Education and Training concerning the application by the applicant for approval under Part 8 of the A New Tax System (Family Assistance Administration) Act 1999 (Cth) which is an Act that is part of the “family assistance law”. It is explained that approval under the family assistance law is not a requirement to operate or begin operating a childcare service in Australia. That approval is required for parents to receive Commonwealth fee assistance for sessions of childcare provided by service. This is the CCB payments which parents receive from the Commonwealth. It is apparently possible for approval under the family assistance law to be granted with backdated effect. In Exhibit 4 a letter dated 23 December 2016 from the Director of the relevant part of the Department of Education and Training states that the applicant is still being considered for approval, but enquiries are being undertaken before that approval can be granted or refused.

Consideration

48. On 11 February 2015 the applicant was granted service approval to run a proposed Family Day Care Service pursuant to section 48 of the National Law. The document certifying the approval stated that the approval was granted on conditions, including that the provider operate in compliance with the conditions imposed by section 51 of the National Law. The relevant and only condition relied upon by the respondent is the provision in section 51 (3) to commence within 6 months.

49. The respondent submits that the National Law requires strict compliance. The exercise of discretion, the respondent submits, relevantly considers the amount of time that the applicant has been in breach of any condition, and whether the applicant made an application to extend the time during which operations might commence. In addition, the respondent submits that the reason provided by the applicant for the failure to comply with the condition in section 51 (3) of the National Law is also relevant to the exercise of discretion.

50. The respondent submits that the failure to obtain CCB approval does not weigh strongly against the decision to cancel service approval for 3 reasons. The first reason is that the applicant can commence operations without CCB approval. The applicant says that no parents will be attracted to the service without Commonwealth fee assistance. This appears to be a valid reason. The second reason is that the delay in obtaining CCB approval has resulted from the conduct of the applicant in failing to provide the information required in a timely way. That is really a matter for consideration by the relevant decision maker in relation to the Child Care Benefit process. The third reason is that the outcome of the CCB approval process and when it will be completed remains uncertain. While that is true, the applicant seeks a six-month extension of time and not an indefinite extension.

51. The respondent also submits that an extension of time to commence operations for a period of approximately 2 years (that is since 11 February 2015 to date) when the provisions of section 51 (3) of the National Law contemplates 6 months within which to commence operations, is manifestly excessive. The National Law does not prescribe the number of extensions which may be granted or the length of any such extension. Since the decision maker in relation to the family assistance law has had the application since February 2015, the applicant appears to be engaged in the process sufficiently for that approval not to have been refused. There is an element of inequity to this argument which does not sit well with the principles in section 3 of the National Law.

48. The applicant seeks an extension of time in order to be able to obtain the CCB approval so that payments made by users of the service can be the subject of fee assistance from the Commonwealth under the family assistance law.

49. It appears from the evidence before the Tribunal that the application was made by the applicant for approval under Part 8 of the family assistance law on or about 27 February 2015. This is very shortly after the approval was granted under the National Law. The application for approval so that CCB assistance can be granted has not been refused. Neither has it been granted. The approval process remains incomplete at this time.

50. The National Law provides that the Regulatory Authority may cancel, suspend or decide not to cancel the service approval pursuant to section 79 of the National Law. The decision is a discretionary decision. It has already been noted that the Regulatory Authority may also grant an extension of time within which to comply.

51. The guiding principles under the National Law are in subsection 3(3) stated to be:

(3) The guiding principles of the national education and care services quality framework are as follows-

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

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

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

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

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

(f) that best practice is expected in the provision of education and care services.

56. The rights and best interests of the child are paramount in implementing the National Law. Since section 4 of the National Law requires an entity that has functions under the law to exercise those functions having regard to the objectives and guiding principles set out in section 3, the Tribunal is required to regard the rights and best interests of the child as paramount in making a determination as to the correct and preferable decision in this matter.

57. The condition of the approval in section 51(3) of the National Law contemplates that an extension of time may be granted by the Regulatory Authority. The other subsections in section 51 of the National Law referred to matters which are clearly designed to ensure the delivery of the best possible service for the care of children. There is no rationale provided to explain the limitation of time to a period of 6 months. There is a penalty provided for failing to comply with that condition by reason of section 173 (1) (c) of the National Law. The breach of that condition is therefore a serious matter.

Conclusion

58. The determination of the correct and preferable decision must regard the best interests of the child who may receive the benefit of the service as paramount.

59. The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children. The fact that the applicant received service approval to run a proposed Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children.

60. The choice of a limitation period of 6 months during which it is presumed that the provider will commence delivery of a service for the benefit of children appears an arbitrary period, especially considering that the Regulatory Authority or this Tribunal in a review application may extend that period of time.

61. According to the applicant, and this is not disputed by the respondent, the only difficulty preventing the commencement of the Family Day Care Service is the inability to obtain approval for Child Care Benefits under the family assistance law. Without that approval, parents of children will not receive Commonwealth fee assistance for sessions of care provided by the service. The role of parents is also to be respected and supported under the principles to be applied by the National Law. It is in the best interests of children to receive quality childcare and for their parents to receive fee assistance in order to obtain that quality childcare, if the service is eligible. This provides respect and support for the parents of the children. This is also a matter where it is considered in the best interests of children to have the opportunity to access quality and well regulated childcare.

62. There is no real prejudice to the respondent which can be identified simply by the extension of time. There were no additional matters which were raised by the respondent which were relied upon to support the cancellation of the approval.

63. Having regard to all of the matters raised it is the Tribunal’s decision that in all the circumstances the correct and preferable decision is that the applicant should have the benefit of an extension of time to allow the completion of the approval process in relation to the Child Care Benefits under the family assistance law.

Order

64. The orders of the Tribunal are that:

1. The decision of the respondent dated 11 October 2016 is set aside.

2. In substitution the following decision is made: That the applicant is granted an extension of time within which to commence ongoing operation of the family day care service. That extension period is 6 months from the date of this decision.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 April 2017