Early Childhood Education Australia Pty Ltd v Secretary, Department of Education

[2021] NSWCATAD 161

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 161

Hearing dates:

24-27 August 2020

Date of orders:

7 June 2021

Decision date:

07 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Easton, Senior Member
M Bolt, General Member

Decision:

1.   In matter 2020/00102585 the decision by the    Secretary of the Department of Education to    cancel the provider approval of Early Childhood    Education Australia Pty Ltd on 26 March 2020    is set aside.

2.   The stay order made on 16 April 2020 will be    rescinded on 1 July 2021;

3. Between 1 July 2021 until 31 December 2021 ECE’s provider approval granted under s 15 of the Children (Education and Care Services) National Law (NSW) (“the National Law”) is amended pursuant to s 23(2) of the National Law to include the following conditions:

   a.   between 1 July 2021 and 31 August          2021 the approved provider must not          employ or engage any more than 12          Educators at any one time;

   b.   between 1 September 2021 and 31          October 2021 the approved provider          must not employ or engage any more          than 15 Educators at any one time;

   c.   between 1 November 2021 and 31          December 2021 the approved provider          must not employ or engage any more          than 20 Educators at any one time;

d. the approved provider is to continue to conduct a monthly audit of each educator employed or engaged by the service. The audit is to include a thorough inspection of each educator residence to ensure that each educator is providing education and care in accordance with the National Law and the Education and Care Services National Regulations ("the National Regulations').

   e.   Without limiting condition (d), the             approved provider, in its monthly audits,          is to ensure:

      i.   that there are no risks of harm or             any hazard likely to cause injury             to children being educated and             cared for at the service premises;

ii. that each educator has the prescribed information displayed at their residence in accordance with section 172 of the National Law and regulation 173 of the National Regulations;

iii. that each educator has a copy of the documents required to be kept under regulation 178 of the National Regulations, and that those documents are up to date and accurate;

      iv.   that each educator has obtained             authorisations for, and has             conducted risk assessments. for             excursions and that those                documents are up to date:

      v.   that each educator has conducted          rehearsals of the emergency and             evacuation procedures, and has             documented those rehearsals in             accordance with regulation             97(3)(ab) and (b) of the National             Regulations.

f. The approved provider must produce a record of all monthly audits conducted under conditions (d) and (e), showing any identified breaches of the National Law and the National Regulations and confirming that the matters identified in condition (e) have been checked. The approved provider must submit to the Regulatory Authority a copy of any audit report upon the request of the Regulatory Authority, and within two business days of the making of any such request;

   g.   Upon the request of the Regulatory          Authority, the approved provider must          submit to the Regulatory Authority any          further information arising from the          audits referred to in conditions (d) and          (e), within two business days of the          making of any such request.

   h.   The approved provider must submit to          the Regulatory Authority by 1 July 2021          a plan of how it intends to ensure that          each educator employed or engaged by          the service maintains an adequate          knowledge and understanding of the          provision of education and care to          children.

      i.   Ms Krystal Bak must, by 24             August 2021, undertake relevant             training on the governance and             management of an education and          care service, and must provide             proof of having undertaken the             training to the Regulatory                Authority within 7 days of                completion. The training must:

      ii.   be delivered by a recognised             Registered Training Organisation             or peak body, such as Early             Childhood Education Services             and Training, Community Early             Learning Australia or Early             Childhood Australia; and

      iii.   be approved by the Regulatory             Authority.

Catchwords:

ADMINISTRATIVE LAW - Education and Care Services National Law – review of decision to cancel provider approval - fit and proper person - breach of approval condition - alternative measures available to the decision maker - new approval conditions imposed

Legislation Cited:

Children (Education and Care Services) National Law (NSW)

Cases Cited:

Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 28

Texts Cited:

Nil

Category:

Consequential orders

Parties:

Early Childhood Education Australia Pty Ltd (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Counsel:
GP Diggins (Applicant)
R Mansted (Respondent)

Solicitors:
Denison Toyer (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00102585

Publication restriction:

Nil

SUPPLEMENTARY Judgment

1. In our earlier decision (Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 28) we determined that the correct and preferable decision by the Regulator was to amend ECE’s provider approval to require ECE to implement a stringent supervision regime for its centres, under the indirect supervision of the Regulator, to ensure that ECE properly fulfilled its role in the co-regulation model (at [90]).

2. We directed the parties to confer on the terms of the conditions to be imposed and we are pleased to note that almost all the conditions are agreed between the parties.

3. One possible condition remains in dispute. In this decision we will finalise the matter before us by standing in the shoes of the Regulator and imposing new conditions upon ECE’s approval.

4. The Regulator proposed a new condition that would limit the number of employed or engaged educators to 12. ECE opposes this proposed term on several grounds:

1. such a cap was [said to be] outside the contemplation of our earlier decision;

2. it is not procedurally fair to allow the Regulator to reopen its case and seek a new form of remedy that did not form part of our original reasoning;

3. the Regulator did not make such a submission in the earlier proceedings; and

4. the factual findings do not warrant such a condition.

5. The notion of a continued tighter cap on the number of educators is sufficiently connected to our earlier findings and the key elements of the new conditions to be imposed, in so far as we accept the general notion that ECE is more likely to improve its supervision and operation of centres during the period in which these new conditions operate if it has less educators and centres to supervise.

6. We note that the respondent has appealed our earlier decision and sought a stay pending the outcome of the appeal.

7. Our task is almost complete and we are concerned that the Regulator’s appeal will unnecessarily bifurcate the proceedings before us.

8. It is of course a matter for the Appeal Panel whether a stay is granted. Taking into account all of the above matters we have decided to quickly publish our final decision in this matter and make necessary orders to establish the varied conditions to apply to ECE’s approval, but to slightly delay the commencement of the new conditions in order to facilitate the orderly determination of the Regulator’s stay application.

9. In this regard our orders will not operate until 1 July 2021 and the stay orders made last year, including the condition that no new educators are engaged, will continue until that date. We accept in part the Regulator’s submissions that a sharp and dramatic increase in the number of educators engaged by ECE might compromise ECE’s attempts to improve its organisation. Accordingly, we will allow a graduated return to ECE’s cap of 30 educators over the course of the operation of the new conditions.

10. We make the following orders:

1. In matter 2020/00102585 the decision by the Secretary of the Department of Education to cancel the provider approval of Early Childhood Education Australia Pty Ltd on 26 March 2020 is set aside.

2. The stay order made on 16 April 2020 will be rescinded on 1 July 2021;

3. Between 1 July 2021 until 31 December 2021 ECE’s provider approval granted under s 15 of the Children (Education and Care Services) National Law (NSW) (“the National Law”) is amended pursuant to s 23(2) of the National Law to include the following conditions:

1. between 1 July 2021 and 31 August 2021 the approved provider must not employ or engage any more than 12 Educators at any one time;

2. between 1 September 2021 and 31 October 2021 the approved provider must not employ or engage any more than 15 Educators at any one time;

3. between 1 November 2021 and 31 December 2021 the approved provider must not employ or engage any more than 20 Educators at any one time;

4. the approved provider is to continue to conduct a monthly audit of each educator employed or engaged by the service. The audit is to include a thorough inspection of each educator residence to ensure that each educator is providing education and care in accordance with the National Law and the Education and Care Services National Regulations ("the National Regulations').

5. Without limiting condition (d), the approved provider, in its monthly audits, is to ensure:

1. that there are no risks of harm or any hazard likely to cause injury to children being educated and cared for at the service premises;

2. that each educator has the prescribed information displayed at their residence in accordance with section 172 of the National Law and regulation 173 of the National Regulations;

3. that each educator has a copy of the documents required to be kept under regulation 178 of the National Regulations, and that those documents are up to date and accurate;

4. that each educator has obtained authorisations for, and has conducted risk assessments. for excursions and that those documents are up to date:

5. that each educator has conducted rehearsals of the emergency and evacuation procedures, and has documented those rehearsals in accordance with regulation 97(3)(ab) and (b) of the National Regulations.

6. The approved provider must produce a record of all monthly audits conducted under conditions (d) and (e), showing any identified breaches of the National Law and the National Regulations and confirming that the matters identified in condition (e) have been checked. The approved provider must submit to the Regulatory Authority a copy of any audit report upon the request of the Regulatory Authority, and within two business days of the making of any such request;

7. Upon the request of the Regulatory Authority, the approved provider must submit to the Regulatory Authority any further information arising from the audits referred to in conditions (d) and (e), within two business days of the making of any such request.

8. The approved provider must submit to the Regulatory Authority by 1 July 2021 a plan of how it intends to ensure that each educator employed or engaged by the service maintains an adequate knowledge and understanding of the provision of education and care to children.

9. Ms Krystal Bak must, by 24 August 2021, undertake relevant training on the governance and management of an education and care service, and must provide proof of having undertaken the training to the Regulatory Authority within 7 days of completion. The training must:

1. be delivered by a recognised Registered Training Organisation or peak body, such as Early Childhood Education Services and Training, Community Early Learning Australia or Early Childhood Australia; and

2. be approved by the Regulatory Authority.

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

Registrar

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: 07 June 2021