CYD v Secretary of the Department of Education NSW

[2017] NSWCATAD 190

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190
Hearing dates:	31 May 2017 and 1 June 2017
Date of orders:	16 June 2017
Decision date:	16 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	1. The decision of the respondent on 12 January 2017 to cancel the provider approval granted to the applicant with effect from 26 January 2017 pursuant to section 33 (1) (a) of the National Law is set aside.  2. In substitution for the decision set aside the provider approval previously granted to the applicant and the service approval previously held by the applicant are both hereby reinstated and confirmed.
Catchwords:	ADMINISTRATIVE LAW- Education and Care Services National Law - cancellation of provider approval - breach of condition of approval – Objects and Principles of National Law – Children – Childcare Services – Administrative review jurisdiction – what is the correct and preferable decision - whether the Tribunal should uphold the decision or substitute a decision – whether to remit – whether to impose additional conditions – correct and preferable decision is to set aside the decision and restore the approvals previously granted.
Legislation Cited:	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) Education and Care Services National Regulations 2011 (NSW)
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 231 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 CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132 Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 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 YJ v Chief Executive Officer, Work Cover Authority [2006] NSWADT 306
Category:	Principal judgment
Parties:	CYD (Applicant) Secretary of the Department of Education NSW (Respondent)
Representation:	Counsel: A Howell (Applicant) H El Hage (Respondent)   Solicitors: Birchgrove Legal (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00031267
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 “CYD” 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. The respondent is properly referred to and known as the Secretary of the Department of Education (NSW) and the parties consented to the amendment of the name of the respondent on 1 June 2017 during the hearing of this matter. The matter was heard on 31 May 2017 and 1 June 2017 and the parties were represented by solicitors and counsel with the leave of the Tribunal.

3. In March 2014 the applicant was granted both approval to provide and operate an education and care service under section 15 of the Children (Education and Care Services) National Law (NSW) No 104a (the National Law) and service approval to operate a family day care service under section 48 of the National Law. Since that time the applicant has operated a family day care service which it delivered through the operation of up to 59 family day care residences around the Sydney metropolitan area. 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 the National Law.

4. The respondent on 12 January 2017 cancelled the provider approval granted to the applicant with effect from 26 January 2017 expressed to be pursuant to section 33 (1) (a) of the National Law. The respondent submits that the provider approval should be cancelled on that ground and because of alleged failures to comply with the National Law, that is, under section 31(1)(e). The applicant seeks to reverse the decision to cancel the approval. The applicant seeks a substituted decision, or a remittal under section 65 of the Administrative Decisions Review Act 1997 (NSW) or the imposition of a further condition upon the 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.

5. The application for review was filed on 31 January 2017. A stay of the decision to cancel the provider approval was granted on 15 February 2017.

Legislative background

6. 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.

7. 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.

8. 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.

9. The process pursuant to the National Law provides that under Part 2 an applicant must have provider approval from the oversight 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...

10. 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, now known as the Secretary of the Department of Education.

11. There are conditions which attach to the grant of a provider approval as provided by section 19 of the National Law, and relevantly for this application, to comply with the National Law and regulations or conditions that are determined by the Regulatory Authority. The penalty for failure to comply is $50,000 in the case of a company such as the applicant in this matter.

12. 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 31 of the National Law provides:

31 Grounds 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 an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or

(b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or

(c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or

(d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or

(e) the approved provider has breached a condition of the provider approval; or

(f) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension).

13. If the Regulatory Authority is considering the cancellation of the provider approval under section 31 a “show cause notice” must issue under section 32 of the National Law. In this matter a show cause notice was issued on 13 September 2016. Pursuant to section 32(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. The applicant provided a response to the show cause notice on 13 October 2016.

14. 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 provider approval pursuant to section 33 of the National Law. The decision is a discretionary decision. The decision is to take effect at the end of 14 days after the date of the decision or other period as specified by the Regulatory Authority. The provider approval was cancelled by notice of decision dated 12 January 2017 to take effect from 26 January 2017.

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

16. There are conditions which attach to the grant of a service approval as provided by section 51 of the National Law. 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.

Jurisdiction

17. 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 and I have made that determination previously in CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132. The reasons for determining that are now set out.

18. 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.

19. 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.

20. 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.

21. The cancellation of a provider approval under section 33 of the National Law is thus a reviewable decision for external review pursuant to section 192 (b) (ii) of the National Law.

22. 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.

23. 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;

24. 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.

25. 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). In addition the National Law provides at section 194 that the Act which establishes this Tribunal is not limited by the National Law. The Civil and Administrative Tribunal Act 2013 (NSW) section 30 identifies that the Administrative Decisions Review Act provides for the circumstances in which the Tribunal has administrative review jurisdiction. The Tribunal has power to remit a decision pursuant to section 65 of the Administrative Decisions Review Act for reconsideration by the administrator who made the decision. This power is in addition to the powers granted to the Tribunal pursuant to section 193 of the National Law.

26. 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

27. The documents in evidence before the Tribunal are:

1. Affidavit of the Director of the applicant filed 18 May 2017: Exhibit 1.

2. Bundle of documents in support of the application: Exhibit 2.

3. Submissions of the applicant filed 25 May 2017: Exhibit 3.

4. Affidavit of AB filed 24 March 2017 for the respondent: Exhibit 4.

5. Affidavit of LD filed 24 March 2017 for the respondent: Exhibit 5.

6. Affidavit of SK filed 27 March 2017 for the respondent: Exhibit 6.

7. Affidavit of CL filed 27 March 2017 for the respondent: Exhibit 7.

8. Affidavit of AB sworn 29 May 2017 and filed in the Tribunal on 31 May 2017 for the respondent: Exhibit 8.

9. Submissions of the respondent filed 29 May 2017: Exhibit 9.

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

29. 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

30. 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.”

31. 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.

32. 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.”

33. 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.”

34. 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)

35. 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.

36. 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

37. 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.

38. 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.

39. 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.

40. 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

41. 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 Secretary Department of Education: 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].

42. 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.

43. 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

44. The application and approval was made under the National Law where various criteria for approval and maintaining the currency of the approval are set out. By reason of section 19 (2) of the National Law the provider approval is issued upon the condition that the approved provider must comply with the National Law.

45. In August 2016 the respondent received session data from the Commonwealth Department of Education which records when particular children have been educated and cared for by a particular education and care service. After receipt of that information the respondent chose 5 family day care educators, registered with the applicant to provide education and care for children in their residences, to receive compliance visits. They were chosen on the basis that this represented approximately 10% of the total number of family day care educators registered with the applicant.

46. Later in August 2016 compliance visits were conducted at the Coordination Office and three of the residences of the selected family day care educators. The compliance visits could not be conducted at two of the premises because one of the educators had become a coordinator and another of the educators was not home. Therefore the sample was three educators.

47. In the course of the compliance visits breaches and deficiencies in the applicant’s records and processes were identified by the inspectors in relation to other family day care educators than those who were originally selected for compliance visits.

48. The powers of the Regulatory Authority are able to be delegated by reason of section 262 of the National Law. In this matter there is no issue taken with the delegation of authority.

49. The Regulations which are made pursuant to the National Law form part of the legislative landscape within which the applicant must operate. The respondent fairly submits that the non-compliance which is alleged varies in terms of the level of seriousness of the breaches.

50. There are 14 breaches by the applicant of the National Law, including the regulations, alleged by the respondent. The applicant says that the alleged 14 breaches “extend well beyond the matters raised in the Reasons for Decision” [1] provided by the respondent. The applicant also properly submits that the Tribunal is not confined in its consideration of this matter to the reasons identified in the Reasons for Decision. [2] The applicant also submits that the initial examination was restricted to 3 out of 59 educators, and there have been significant enhancements to the administration, systems, policies and procedures which the applicant has implemented.

    1. Exhibit 3 [19]

    2. Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45]:

51. Pursuant to section 269 of the National Law and regulation 153 (o) of the Education and Care Services National Regulations 2011 (NSW) (the regulations), it is necessary for the applicant to keep a register of each family day care educator which must contain prescribed information and which register is to be provided to the Regulatory Authority on request. The prescribed information is the working with children check identifying number or teacher registration and expiry date. That check for registration must be sighted by the approved provider or nominated supervisor of the service and the date of that sighting is to be recorded. The respondent says that the documents inspected did not record, in respect of all the educators, the dates upon which they are engaged, the hours when they usually provide education and care, any evidence of training, the evidence of the working with children check clearances either for the educators or persons over 18 years of age normally residing at the family day care residences, the full names and dates of births of persons both under and over 18 years of age who are normally residing the family day care residences, or the dates upon which the working with children check clearances were sighted by the applicant or the nominated supervisor of its service. It is therefore contended that the register maintained by the applicant for the purposes of section 269 of the National Law was deficient.

44. The register now kept by the applicant is subject to more stringent onsite requirements and the coordinator is to ensure that the records are accurate. The applicant submits that the broad failure to keep a register of the kind contemplated by regulation 153 and section 269 of the National Law was not referred to in the Reasons for Decision, although there is reference to the qualifications of the educators in the Reasons for Decision. Much of the information concerning educators is computerised and there was apparently no single register kept by the applicant at the relevant time which could be produced to the inspectors. The Tribunal accepts that the information required to be kept in order to permit the identification of the educators and the children who were with them was able to be accessed, but not in the format preferred by the Regulatory Authority nor strictly in accordance with the regulations. The applicant submits that its systems have changed to be more accurate and provide that detailed information in the register. This breach is not one which would have warranted cancellation of the provider approval if it was the only instance of failure to keep a specific register, since it would appear that most of the required information was available in a different format. Now there is a specific policy to address the record keeping requirement and the register is to be kept in a locked cabinet at the coordination unit according to Exhibit 1 [53]-[54] an AS6 p106, pp 118-119.

45. The respondent says that one of the educators (NK) who was visited by employees of the respondent was not able to produce a working with children check clearance to them. There was no record at the coordination office of the dates that the approved provider had sighted the working with children check clearances. The applicant in response identified that one of the people identified has a clearance but it was in his prior name and it was kept in the applicant’s office. Another educator had applied for a clearance and it was the practice of the applicant to call the Children’s Guardian and confirm that an application had been made, and in this instance that is what had occurred. The show cause notice itself recorded the application number given by the Children’s Guardian for that educator. There was in fact a valid clearance produced, a photograph of which was reproduced in Exhibit 6 at [24] SK1 Tab 1 p13. It was not held by the applicant at its office. Clearances in relation to the other people were later produced confirming that they had the appropriate working with children authorisation and thus did not pose a risk to the safety of children.

46. The evidence is that the son of one of the educators turned 18 in April 2016. The supervisor employed by the applicant telephoned the educator to advise that she had to obtain the working with children check clearance for his son. There is evidence that the educator was contacted and told that she had to obtain the working with children check clearance for the son but told the investigator SK: “…he has not completed the form. He’s been too busy.”[3] The clearance was subsequently obtained. The applicant has changed its procedures so that now educators are required to produce evidence of a clearance prior to the commencement of the provision of care. The procedure has been further refined so that a document will be kept by the applicant recording the date and signature of a staff member who has sighted the relevant certificate. The applicant has employed a coordinator manager to oversight the work of the coordinators and whose specific role it is to examine the enrolment forms to check for compliance with the regulations: Exhibit 1 [9(b)], [47], [55(f)]. The applicant has conducted an audit to back capture potential non-compliance with recordkeeping: Exhibit 1 [44]-[45]. The applicant has adopted a template regulation 153 compliant register published by the Australian Children Education and Care Quality Authority as its current educator enrolment form: Exhibit 1 [55(a)] AS6 pp 118-119.

    3. Exhibit 6 [22].

47. The issue of working with children check clearances is a very important part of child -related employment. It would appear that although the recordkeeping was deficient, the educators are now required to provide evidence of the clearance from the beginning of their engagement. The evidence from the director of the applicant is that the applicant has adopted policies which should ensure future compliance. Criminal history checks will also be undertaken and monitoring visits will take place every 4 to 6 weeks, which is at a greater frequency than happened in the past, according to his evidence.

48. There was no evidence that the person AM, a family day care educator registered with the applicant since June 2016, had completed the First Aid qualifications and training required by reason of regulation 136 (3) of the regulations. The evidence of the respondent is that the other files which were reviewed showed compliance. [4] The allegation of non-compliance was denied by the applicant. The obligation cast by regulation 136 is not a recordkeeping obligation but one of ensuring compliance. The respondent was provided with certificates of completion that showed the relevant educator had in fact completed the required training. [5] There was an oversight in the recordkeeping and the filing checklists which have since been updated to ensure that the three requirements of clause 136 of the regulations are now recorded. This alleged breach is not made out.

    4. Exhibit 5 LS1 p4 and p12.

    5. Exhibit 4 AB1 Tab 15 pp629-632.

49. The coordination office and three of the educators, it was alleged, did not have enrolment records consistent with the requirements of regulation 160 which includes the name and address and contact details of each of the parents and an emergency contact person, court orders, parenting orders, the gender of the child, language used in the child’s home, cultural background of the child, authorisations and relevant health information. In response the applicant identifies that the enrolment forms may well have been completed correctly but did not record all information required by clause 160 of the regulations. The example given in the submissions by the applicant is an emergency contact if a parent cannot be immediately contacted. There may be no person other than a parent available as an emergency contact for the particular child, it is suggested, and so the answer to that part of the form may well be “No” or “None”. The applicant’s evidence is that the required details to be contained in a copy of the child enrolment records must exist before those details can be entered into the computerised Commonwealth system for payment of the child care benefit. The educators were provided copies of the child enrolment forms for inclusion on their files. In order to ensure compliance in the future the applicant has engaged a coordinator manager to oversee the work of the coordinators, whose task it is to review the new enrolment forms to check for compliance with the regulations. Educators will now be required to sign to acknowledge that they have received a copy of the child enrolment forms and that they will be stored in accordance with regulation 182. The forms will now be emailed to educators as a PDF document upon enrolment, ensuring easy access and constant availability to the educators. In addition, the educators are now required to acknowledge privacy and confidentiality regulations. The applicant says that the remedied policies, systems and procedures now implemented by the applicant will be adequate to ensure that the children are not exposed to risk.

50. The respondent alleges that the educators did not keep adequate records of attendance of the children cared for by the educator on particular days. The parents are required to “sign in” and “sign out” their children. The parents did not do that each day but did it each week for one of the educators interviewed. The requirement of the National Law is that accurate records are kept in relation to attendance of children with their educators. The applicant identifies that there was no breach alleged in relation to clause 158 of the regulations in the Show Cause Notice. The requirement of that clause is that there is a record of the date and time each child arrives and departs and is signed at the time that the child arrives and departs. The Show Cause Notice alleged a breach of clause 159 of the regulations which is an obligation cast upon the educator. These matters are dealt with at length by the submissions of the applicant. In summary, the two educators have since been terminated, and the applicant has standard form timesheets for completion by the educators which meet the requirements of the regulations. The educators are required to submit those forms to the applicant’s head office every fortnight and when the coordinators perform home visits they will always check the time and attendance records. In addition, the evidence of the director of the applicant identifies that the applicant has instituted spot-checks as well as routine inspections to ensure compliance with the regulations by the educators.

51. Deficiencies in the records kept at the applicant’s office for health information and dietary issues, allergies, medical conditions and immunisation status have also been alleged by the respondent. The applicant denied any contravention. The respondent identified the wrong educator for the three named children. The respondent alleged only one educator did not have the completed health authorisations in their enrolment records for those children. The Reasons for Decision made no reference to the alleged non-compliance with clause 162 of the regulations. The affidavit evidence by the director of the applicant and the evidence provided by the respondent of the alleged contravention, could not support a finding of systemic or negligent non-compliance with the National Law on the basis of this allegation.

52. The Show Cause Notice alleged failures with respect to clauses 100 and 102 of the regulations. By reason of regulation 100 an approved provider must ensure a risk assessment is carried out in accordance with clause 101 before an authorisation is sought for an excursion under clause 102 of the regulations. The allegation was that educators had failed to carry out a risk assessment when children were transported from the family day care residence to school. The applicant denied contraventions and submitted that copies of the risk assessments which had been misfiled on the day of the inspections were later supplied. The applicant has instituted a new policy which ensures that the risk assessments and other forms are included in the educator’s file. The enrolment form included parental authorisation for “your child to be transported in the educator’s vehicle or via public transport to get to and from school…” But the applicant agreed that separate forms were more appropriate. Apparently new forms have been created which will be kept at both the applicant’s head office and with the educator. A policy has been devised and a checklist created to ensure that risk assessments and authorisations have been correctly completed. Additional training of educators will also be undertaken by the applicant according to the evidence before the Tribunal.

53. Within each educator’s residence areas of glass, such as windows and doors, should meet the requirements of clause 117 of the regulations. Any glazed area that is accessible to children and at certain heights above the floor must be glazed with safety glass or be treated with a product to prevent glass from shattering if broken, or is guarded by a barrier “that prevents the child from striking or falling against the glass.” The visit to the home of one of the educators by the inspector observed a floor-to-ceiling window in her lounge room. The educator was not able to advise whether the window was made of safety glass and it was not readily ascertained whether it was made of safety glass. A couch and a wooden chair had been placed in front of the window by the educator. The inspector considered the barrier imposed by the chair and the couch was not adequate. The educator explained to the applicant that she was renting the premises and was unable to make any structural modifications to the property. The applicant had requested that the educator find alternate rental accommodation if the window could not be altered. The physical barrier of the couch and the chair was a temporary measure until the educator found new premises. The educator’s registration was terminated prior to the decision by the respondent because she could not comply with the regulation. The Reasons for Decision made no reference to any alleged failure to comply with clause 117 of the regulations. The applicant’s evidence is that a glazier will be instructed to do an assessment if an issue arises from a first visit to the educator’s home. After a second visit if there is anything outstanding the educator will not be enrolled with the applicant unless and until they are rectified.

54. An approved provider must have in place certain policies and procedures including in relation to emergencies and evacuations. Those procedures should be rehearsed every three months by each family day care educator and the children being educated and cared for by the family day care educator on that day. Those rehearsals are required to be documented. In addition a copy of the emergency and evacuation floor plan and instructions should be displayed in a prominent position near each exit at the family day care residence. At the time of the compliance visit there were no emergency plans and instructions displayed near the exit but simply displayed on a fridge, and there were no documents evidencing the rehearsal every three months of the emergency evacuation procedures. The applicant says that some new strategies have been adopted to enhance compliance which are set out in Exhibit 1 at [79]-[82] and AS10. Information will be required to be displayed by the educators. Significantly coordinators will be present when emergency drills are conducted for observation, the recording of evidence of compliance, and the provision of any feedback that may be required.

55. An approved provider of an education and care service must ensure that information concerning the provider approval, the service approval, the nominated supervisor, the rating of the service, any service waivers or temporary waivers held by the service, and any other prescribed matters is clearly visible to anyone from the main entrance to the education and care service premises. [6] At the compliance visits to 2 of the educators’ homes, that information was not displayed. The requirements of clauses 172 and 173 of the regulations were not complied with by two educators inspected. They have now both been terminated. The evidence of the applicant is that its policy has been amended so as to require coordinators, on their 4 to 6 weekly visits to educators’ homes to “ensure that all relevant signs, posters, forms are completed and displayed if needed.”

    6. Regulation 172 of the regulations.

56. When children are provided food and beverages, the weekly menu must be displayed so that it is accessible by the children’s parents and accurately describes the food and beverages provided each day to the children who attend the family day care service. [7] This was not observed at one of the homes visited during compliance check. That person also did not have the enrolment records and therefore the health information in relation to the children in her care. It is possible that one of the children had allergies to the food which was being provided, or the parents of any of the children may have had concerns about the nutritional basis of the diet. There were no other educators included in this alleged breach. As a future strategy to ensure compliance the applicant says that it will conduct further refresher courses for those educators who are eligible to provide food children in their care and highlight the importance of displaying the menu during hours of care. That appears to be a reasonable response to an acknowledged failure. The applicant says that it will work together with the “Munch n Move” and “Crunch n Sip” government programs to provide further knowledge and understanding of healthy eating and menu planning to educators, families and children.

    7. Regulation 80 of the regulations.

57. Inaccuracies in the register of family day care educators required to be kept by the applicant pursuant to regulation 153 of the regulations and section 269 of the National Law, were observed during the compliance visit.

58. Each of the educators educating and caring for children for the service are required to meet qualification criteria relevant to the educators role pursuant to regulations 127 and 169 (2) of the regulations. The relevant prescribed level of education is an approved certificate III level education and care qualification which is listed in regulation 137 of the regulations. It was alleged at the compliance visit there was a lack of evidence that each of the family day care educators either possessed or were otherwise “actively working towards” an approved prescribed certificate III level of education and care qualification. The applicant provided certificates and information supplied to it by its educators. The applicant however did not routinely undertake an investigation of whether the provider of the qualification was in fact a registered organisation or connected with a registered organisation. The applicant has enhanced its practices and procedures to ensure compliance with the National Law by ensuring that the family day care educator has, or is actively working towards, at least an approved certificate III level education and care qualification which will be screened for legitimacy and checked in relation to dates and signatures on the certificate. Educators will also undertake an induction process to ensure their understanding of their duties and responsibilities as an educator consistent with the qualification.

59. Observations at two of the educators’ homes raised “possible non-compliance” [8] under regulation 103 of the regulations which require providers to ensure that education and care service premises are safe, clean and in good repair.

    8. Exhibit 9 [78]

60. The applicant submits that there has been no deliberate non-compliance with the requirements of the National Law and any non-compliance was largely the result of an inadequate understanding of the relevant requirement, or deficiencies in the applicant’s processes arising from poor administration. The applicant says that many of these issues have been addressed as a result of an overhaul of procedures and the way in which the family day care service is administered.

61. In order to address the prior poor administration the applicant has undertaken training in office administration for its staff to ensure they have good practices in the workplace concerning filing, data entry and monitoring.

62. The cancellation of the provider approval under section 33 of the National Law has the effect that all service approvals held by the person who was the approved provider, are also cancelled. [9] If the provider approval is cancelled or suspended, notice of that event and its effect must be given to the parents of children enrolled at all or any of the education and care services operated by that person, on penalty for failure to comply with that notice provision in the sum of $15,000 for the applicant in this matter. [10]

    9. Section 34 (1) of the National Law.

    10. section 36 of the National Law

63. The applicant submitted that the cancellation of the provider approval was the “most draconian” of the alternatives available to the Regulatory Authority when it is remembered that the applicant had been operating for over 3 years and there were more than 200 children who were provided a service. Additionally, the applicant submitted that there were no complaints received by the Regulatory Authority from any of the parents of the children.

44. The respondent submitted that there are two fundamental reasons why the Tribunal should affirm the decision as correct and preferable. Firstly, the respondent relies upon the breaches of the conditions of the provider approval which is a sufficient basis for the cancellation of the approval. The respondent says that the applicant has “repeatedly disregarded and acted in contravention of laws aimed at ensuring public safety” [11] Secondly, the respondent submits that pursuant to section 21 of the National Law the applicant is not “a fit and proper person” and/or a person having management of the applicant is not “a fit and proper person”. It is possible pursuant to section 21 of the National Law to reassess the fitness and propriety of an approved provider at any time having regard in particular to sections 13 and 14 of the National Law.

    11. Exhibit 9 [80]

45. What is meant by “fit and proper” is not defined in the National Law or the regulations. The context in which the words appear is a statutory regime which is intended to protect the safety and welfare of children and the respondent contends that persons who are unable to meet their obligations under the National Law are persons who should be excluded from participating in the scheme. The intent is clearly to provide quality early childhood education in stimulating, nurturing and safe environments. There are significant penalties attached to breaches of the National Law which are an indication that the legislation is intended to be a deterrent for behaviour which cannot comply with the statutory norms.

46. The respondent relies upon a summary of the authorities contained in YJ v Chief Executive Officer, Work Cover Authority [2006] NSWADT 306 at [35]-[42]. The assessment is a value judgment by the decision-maker; it takes its meaning from its context, the activities in which the person is engaged and the ends to be served by those activities. The assessment relates to not only character, reputation and moral integrity but also includes public confidence that the person is able to maintain high standards of rectitude and that their likely future conduct will keep to those standards. Similarly the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 231, at 382-383, per Toohey and Gaudron JJ, the question as to whether a company is fit and proper person may be determined by reference to the conduct, character and reputation of a single person associated with the company.

47. The respondent also relies upon similar histories of inadequate record-keeping and breaches of the National Law in relation to family day care services in which the Director of the applicant is a stakeholder or Director, where there has been issued show cause notices or the provider approval cancelled. This it is said indicates that the applicant is not fit and proper to hold the relevant approval.

48. The applicant takes issue with the submissions of the respondent in relation to whether the applicant is a “fit and proper person” and contends that those submissions should be rejected. The show cause notice which is required to be issued prior to a decision by the Regulatory Authority did not refer to this particular ground. The applicant submits that it is not now available to the Regulatory Authority or the Tribunal to act upon this ground. The director of the applicant is now the sole director. Previously, there were two directors. The current director of the applicant relied upon the previous director when he purchased the business at the beginning of 2016. Since that time the director has obtained the services of a consultancy to assist in the improvement of procedures and policies of the business operated by the applicant.

Consideration

77. The objectives and guiding principles under the National Law are in subsections 3(2) and 3(3) stated to be:

(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.

78. 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.

79. The applicant refers specifically to section 260 of the National Law which identifies the functions of the Regulatory Authority as follows:

260 Functions of Regulatory Authority

The Regulatory Authority has the following functions under this Law in relation to this jurisdiction-

(a) to administer the National Quality Framework;

(b) to assess approved education and care services against the National Quality Standard and the national regulations and determine the ratings of those services;

(c) to monitor and enforce compliance with this Law;

(d) to receive and investigate complaints arising under this Law;

(e) in conjunction with the National Authority and the relevant Commonwealth Department, to educate and inform education and care services and the community in relation to the National Quality Framework;

(f) to work in collaboration with the National Authority to support and promote continuous quality improvements in education and care services;

(g) to undertake information collection, review and reporting for the purposes of-

(i) the regulation of education and care services; and

(ii) reporting on the administration of the National Quality Framework; and

(iii) the sharing of information under this Law;

(h) any other functions conferred on the Regulatory Authority under this Law.

80. In addition to its policing role the Regulatory Authority thus has an educative function and a function to implement improvements in the quality of education and care services. The applicant identifies that there are a number of other actions that the Regulatory Authority could have taken other than cancelling the provider approval to achieve the objectives and guiding principles under the National Law consistent with the functions identified in section 260. The applicant submits that the Tribunal may take those alternative actions if that is considered the correct and preferable decision.

81. There have been record-keeping breaches by the applicant identified in the inspection which occurred. The evidence of the applicant is that these deficiencies have now been remedied. There is no contrary evidence.

82. The applicant submits that the policies and procedures which have been instituted identify that the applicant is aware of its obligations under the National Law and has put in place policies, systems and procedures to ensure compliance.

Conclusion

83. 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.

84. 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 provider and service approval to run a Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children. It did so for a number of years.

85. The Tribunal is not confined in its consideration of this matter to the reasons identified in the Reasons for Decision. [12] The initial examination by the Regulatory Authority was restricted to 3 out of 59 educators, and there have been significant enhancements to the administration, systems, policies and procedures which the applicant has implemented.

    12. Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45]

86. The applicant says that the remedied policies, systems and procedures now implemented by the applicant will be adequate to ensure that the children are not exposed to risk. That is likely to be so, and further compliance visits will ensure there is no repetition of identified failings.

87. The Tribunal accepts that there has been no deliberate non-compliance with the requirements of the National Law and any non-compliance was largely the result of an inadequate understanding of the relevant requirement, or deficiencies in the applicant’s processes arising from inadequate administration. The applicant identified in its evidence and submissions that many of these issues have been addressed as a result of an examination of procedures and the manner in which the family day care service is administered.

88. The evidence of the applicant is that any prior deficiencies have now been remedied. There is evidence that the applicant has acted with deliberate and thoughtful intent to improve its ability to provide appropriate care for the children in its education and care. Despite the inability of the director to be able to identify a specific policy in his oral evidence, it is clear that there are procedures and oversight implemented to address the deficiencies which have been acknowledged.

89. The assessment whether the applicant is a fit and proper person is a value judgment by the Tribunal; it takes its meaning from its context, the activities in which the person is engaged and the ends to be served by those activities. The assessment relates to not only character, reputation and moral integrity but also includes public confidence that the person is able to maintain high standards of rectitude and that their likely future conduct will keep to those standards. The question as to whether a company is fit and proper person may be determined by reference to the conduct, character and reputation of a single person associated with the company.

90. The applicant and its director have properly acknowledged failings in compliance with the National Law and have taken reasonable steps to address those shortcomings. The matters raised in relation to other services which have had their provider approval cancelled or the approval for childcare meant benefits cancelled by the Commonwealth Department of education and the indication that the respondent is currently “considering” issuing a show cause notice to one of those services are matters which bear upon the general competence of the applicant and its director to adhere to the legislative scheme. In addition the respondent relies upon assessments undertaken of the Director in August 2016 and his knowledge of the law. It is asserted that the Director gave responses which were “inadequate”. The Director is not a lawyer. The Director was represented by lawyers before the Tribunal. The evidence is that the applicant has obtained the services of a consultancy to ensure it complies with the National Law. In a context where the highest standards of care are sought to be provided to children, and one of the roles of the National Law and the Regulatory Authority is to improve services currently provided to children, the actions of the applicant and the ends to be served by those actions indicate that at this time the applicant is a fit and proper person to hold a provider approval. There is insufficient evidence to conclude that the director of the applicant will not keep to the standards which he has outlined in his evidence to this Tribunal.

91. The Tribunal therefore finds that the applicant is currently a fit and proper person.

92. The role of parents is to be respected and supported under the principles to be applied by the National Law. It is in the best interests of children receive quality childcare and for their parents to the assured that their children are in safe hands. It is in the best interests of children to have improved early childhood education from providers who are able to analyse their deficiencies and take appropriate steps to improve the delivery of the service.

93. 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 decision of the Regulatory Authority is set aside.

Order

94. The orders of the Tribunal are that:

1. The decision of the respondent on 12 January 2017 to cancel the provider approval granted to the applicant with effect from 26 January 2017 pursuant to section 33 (1) (a) of the National Law is set aside.

2. In substitution for the decision set aside the provider approval previously granted to the applicant and the service approval previously held by the applicant are both hereby reinstated and confirmed.

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Endnotes

“[45] Section 22(2) permits a person who has been disqualified by the Commissioner to apply to the Tribunal for a review of the decision. Section 63(1) of the ADT Act obliges the Tribunal to decide “what the correct and preferable decision is having regard to the material then before it” and by para (a) this is to include “any relevant factual material”. Such an inquiry cannot be confined within the particulars of the reason, ground or matter specified in the original notice or notices. The third alleged error of law has not been established.”

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: 16 June 2017