Early Childhood Legislation Amendment (Premises Approval in Principle) Act 2023 (Vic)

Early Childhood Legislation Amendment (Premises Approval in Principle) Act 2023

No. 33 of 2023

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Education and Care Services National Law

3Definitions

4Application for service approval

5Determination of application

6Grounds for refusal

7New section 49A inserted

8New Part 4 inserted

9Reviewable decision—internal review

10New Division 8 of Part 15 inserted

Part 3—Amendment of Education and Care Services National Law Act 2010

11New sections 5A and 5B inserted

12New sections 15 and 15A inserted

Part 4—Amendment of Children's Services Act 1996—Approvals in principle

13Definitions

14Determination of application

15Grounds for refusal

16New Part 3A inserted

17Reviewable decision—internal review

Part 5—Further amendment of Children's Services Act 1996—Infringement offences

18Matters to be taken into account in assessing whether fit and proper person

19New section 178A inserted

Part 6—Repeal of this Act

20Repeal of this Act

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Endnotes

1      General information

Early Childhood Legislation Amendment (Premises Approval in Principle) Act 2023

No. 33 of 2023

[Assented to 21 November 2023]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1Purposes

The main purposes of this Act are—

(a)to amend the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010—

(i)to establish an approval in principle process in participating jurisdictions for certain proposed education and care service premises located in multi-storey buildings and other buildings; and

(ii)to make an approval in principle a precondition of service approval for certain education and care services (other than family day care services) in certain participating jurisdictions; and

(b)to amend the Education and Care Services National Law Act 2010—

(i)to declare that the approval in principle process applies in Victoria; and

(ii)to enable the Minister to declare by order that an approval in principle is a precondition of service approval in certain cases; and

(iii)to make other necessary and consequential amendments; and

(c)to amend the Children's Services Act 1996—

(i)to establish an approval in principle process for proposed children's services located in multi-storey buildings and other buildings; and

(ii)to make certain offences infringement offences.

2Commencement

(1)This Act (except Parts 3 and 4) comes into operation on the day after the day on which it receives the Royal Assent.

(2)Subject to subsection (3), Parts 3 and 4 come into operation on a day or days to be proclaimed.

(3)If a provision of this Act does not come into operation before 1 October 2024, it comes into operation on that day.

PART 2—AMENDMENT OF EDUCATION AND CARE SERVICES NATIONAL LAW

3Definitions

In section 5(1) of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 insert the following definitions—

"approval in principle means an approval in principle granted under section 110 for a proposed education and care service premises;

approval in principle criteria means, of the national regulations that regulate the education and care service premises, those which are prescribed to be the approval in principle criteria;

approval in principle holder means—

(a)a person granted an approval in principle under section 110; or

(b)if the approval in principle is transferred to another person under section 118 or 119, that person;

mandatory approval in principle jurisdiction means a Part 4 jurisdiction in which section 49A of this Law applies;

Note

See section 49A.

Part 4 building means—

(a)a building that has 3 or more storeys (including the ground level and each level of a split level); or

(b)a building of a prescribed class;

Part 4 building law, in relation to a participating jurisdiction, means a law declared by or under a law of that jurisdiction to be a Part 4 building law;

Part 4 jurisdiction means a participating jurisdiction in which Part 4 of this Law applies;

Note

See section 105.

Part 4 planning law, in relation to a participating jurisdiction, means a law declared by or under a law of that jurisdiction to be a Part 4 planning law;".

4Application for service approval

At the foot of section 43 of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 insert—

"Note

Mandatory approval in principle jurisdictions require an approved provider to hold an approval in principle under Part 4 for the education and care service premises as a precondition of service approval. See section 49A.".

5Determination of application

After section 47(1)(b) of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 insert—

"(ba)any approval in principle held by the approved provider for the education and care service premises, and whether the premises were constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle; and

Note

The approval in principle process in Part 4 only applies to certain premises in certain participating jurisdictions. See section 105.".

6Grounds for refusal

After section 49(2) of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 insert—

"(3)The Regulatory Authority must not refuse to grant a service approval on the ground that the education and care service premises do not meet the approval in principle criteria if—

(a)the approved provider is an approval in principle holder for the premises; and

(b)the premises were constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle.

Note

The approval in principle process in Part 4 only applies to certain premises in certain participating jurisdictions. See section 105.

(4)Subsection (3) does not prevent the Regulatory Authority from refusing to grant a service approval on any other ground, including a ground set out in subsection (1)(a) or section 47(1)(b).".

7New section 49A inserted

After section 49 of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 insert—

49AAdditional ground for refusal in certain participating jurisdictions—mandatory approval in principle"

(1)This section applies to, and in relation to, a Part 4 jurisdiction if a law of the Part 4 jurisdiction, or an instrument made under that law, specifically declares that section 49A of this Law applies.

(2)Without limiting section 49(1), the Regulatory Authority must refuse to grant a service approval if—

(a)the education and care service premises for the service (other than a family day care service) are located in a Part 4 building; and

(b)under a Part 4 planning law or Part 4 building law (or both) of the Part 4 jurisdiction, a permit or approval is or was required for the construction, alteration or repair of the premises or the development of the land; and

(c)either—

(i)the approved provider is not the approval in principle holder for the premises; or

(ii)the premises are not constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle.

(3)Despite subsection (2), the Regulatory Authority may grant a service approval for an education and care service—

(a)if satisfied that—

(i)the service approval is required for the emergency relocation of an education and care service; and

(ii)the education and care service premises is the most suitable available premises for the education and care service; or

(b)in any other prescribed circumstances.

(4)Subsection (2) does not apply if—

(a)a service approval was previously granted for an education and care service at the premises; and

(b)since the cancellation or surrender of that service approval, there has been no further construction, alteration or repair of the premises requiring a permit or approval under a Part 4 planning law or Part 4 building law (or both) of the Part 4 jurisdiction.".

8New Part 4 inserted

After Part 3 of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 insert—

PART 4—APPROVAL IN PRINCIPLE FOR EDUCATION AND CARE SERVICE PREMISES LOCATED IN CERTAIN TYPES OF BUILDINGS"

Division 1—Application of this Part

105Application of Part to certain participating jurisdictions only

This Part applies to, and in relation to, a participating jurisdiction if a law of the participating jurisdiction, or an instrument made under that law, specifically declares that Part 4 of this Law applies.

Division 2—Application for approval in principle

106Application for approval in principle

(1)A person may apply to the Regulatory Authority for the approval in principle of proposed education and care service premises.

(2)An application may be made if—

(a)the premises are for an education and care service (other than a family day care service); and

(b)the premises are proposed to be located in a new or existing Part 4 building; and

(c)under a Part 4 planning law or Part 4 building law (or both) of the Part 4 jurisdiction, a permit or approval is required for the construction, alteration or repair of the proposed education and care service premises or the development of the land.

107Form and timing of application

(1)An application for an approval in principle must—

(a)be made to the Regulatory Authority of the Part 4 jurisdiction in which the building is to be located or is located; and

(b)be in writing; and

(c)include any plan, drawing or specification as to the construction, alteration or repair of the proposed premises and building in which the premises are or will be located; and

(d)include the prescribed information; and

(e)include payment of the prescribed fee.

(2)An application for an approval in principle must be made to the Regulatory Authority within the period declared by or under a law of the Part 4 jurisdiction to be the application period.

108Regulatory Authority may seek further information

(1)The Regulatory Authority may ask an applicant for an approval in principle to provide any further information that is reasonably required for the purpose of assessing the application.

(2)If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 110 for the Regulatory Authority to make a decision on the application.

109Determination of application for an approval in principle

In determining an application for an approval in principle, the Regulatory Authority must have regard to—

(a)the suitability of the proposed education and care service premises and the site and location of those premises for the operation of an education and care service; and

(b)whether the proposed education and care service premises would meet the approval in principle criteria once constructed, altered or repaired; and

(c)whether the proposed education and care service premises will have direct egress to an assembly area to allow the safe evacuation of all children; and

(d)any other matter the Regulatory Authority considers relevant; and

(e)any other prescribed matters.

110Grant or refusal of approval in principle

(1)On receiving an application under section 106, the Regulatory Authority may—

(a)subject to section 111, grant an approval in principle; or

(b)refuse to grant an approval in principle.

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

Note

If further information is requested under section 108(1), the period between the making of the request and the provision of the information is not included in the 60 day period.

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

(4)The Regulatory Authority is taken to have refused to grant an approval in principle if the Regulatory Authority has not made a decision under subsection (1)—

(a)within the relevant time required under subsection (2); or

(b)within the period extended under subsection (3)—

as the case requires.

111Regulatory Authority must refuse to grant approval in principle unless satisfied of certain matters

The Regulatory Authority must refuse to grant an approval in principle unless satisfied that—

(a)the proposed education and care service premises (once constructed, altered or repaired) and the site and location of those premises—

(i)will be suitable for the operation of an education and care service; and

(ii)will meet the approval in principle criteria; and

(b)the proposed education and care service premises will have direct egress to an assembly area to allow the safe evacuation of all children.

112Notice of decision on application for approval in principle

The Regulatory Authority must give written notice to the applicant of a decision under section 110 and the reasons for the decision within 7 days after the decision is made.

113Copy of approval in principle to be provided

(1)If the Regulatory Authority grants an approval in principle, the Regulatory Authority must give a copy of the approval in principle to the applicant stating—

(a)the name of the approval in principle holder; and

(b)the site and location of the building or proposed building; and

(c)the location of the proposed education and care service premises within the building or proposed building; and

(d)the date on which the approval in principle was granted; and

(e)the date on which the approval in principle expires; and

Note

An approval in principle expires 3 years from the day it is granted. See section 123.

(f)any other prescribed matters.

(2)The copy of the approval in principle must—

(a)attach a copy of any plan, drawing or specification that is the basis of the approval in principle of the premises; or

(b)sufficiently describe any such plan, drawing or specification.

Division 3—Duties of approval in principle holder

114Duty to notify Regulatory Authority of any material change

The approval in principle holder must notify the Regulatory Authority of any material change to—

(a)any plan, drawing or specification attached to, or described in, the approval in principle in accordance with section 113(2); or

(b)the environment surrounding the proposed education and care service premises that may affect the suitability of the premises for the operation of an education and care service.

Example

A neighbouring building is constructed which impacts adequate natural light in the indoor spaces of the proposed premises.

Division 4—Amendment and transfer of approval in principle

115Amendment of approval in principle on application

(1)The approval in principle holder may apply to the Regulatory Authority for an amendment of an approval in principle.

(2)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

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

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

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

(6)The Regulatory Authority must decide the application by—

(a)amending the approval in principle in the way applied for; or

(b)with the applicant's written agreement, amending the approval in principle in another way; or

(c)refusing to amend the approval in principle.

(7)An amendment cannot change the location of the proposed education and care service premises.

(8)The Regulatory Authority must give written notice of its decision to the approval in principle holder within 7 days after the decision is made.

116Amendment of approval in principle by Regulatory Authority

(1)The Regulatory Authority may amend an approval in principle at any time without an application.

(2)The Regulatory Authority must give written notice of the amendment to the approval in principle holder and the reasons for the decision within 7 days after the decision is made.

(3)An amendment under this section has effect—

(a)14 days after the Regulatory Authority gives notice of the amendment under subsection (2); or

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

117Copy of amended approval in principle to be provided

If the Regulatory Authority amends an approval in principle under section 115 or 116, the Regulatory Authority must give an amended copy of the approval in principle to the approval in principle holder.

118Transfer of approval in principle

(1)The approval in principle holder (transferring approval in principle holder) may transfer the approval in principle to another person (receiving approval in principle holder).

(2)A transfer takes effect on the day the Regulatory Authority receives a notice of transfer in accordance with subsection (3).

(3)A notice of transfer must—

(a)be in writing; and

(b)be signed by both the transferring approval in principle holder and the receiving approval in principle holder; and

(c)include the prescribed information; and

(d)include payment of the prescribed fee.

(4)As soon as practicable after receiving a notice of transfer, the Regulatory Authority must—

(a)amend the approval in principle to specify the name of the receiving approval in principle holder; and

(b)provide an amended copy of the approval in principle to the receiving approval in principle holder.

119Transfer of approval in principle by Regulatory Authority

(1)The Regulatory Authority may transfer an approval in principle to another person if the Regulatory Authority becomes aware that the approval in principle holder has died or does not exist.

(2)On transferring an approval in principle, the Regulatory Authority must—

(a)amend the approval in principle to specify the name of the receiving approval in principle holder; and

(b)provide an amended copy of the approval in principle to the receiving approval in principle holder.

Division 5—Cancellation of approval in principle

120Regulatory Authority may cancel approval in principle

The Regulatory Authority may cancel an approval in principle if the Regulatory Authority is satisfied—

(a)that the proposed education and care service premises to which the approval relates, or the site or location of those premises, is no longer suitable for the operation of an education and care service; or

(b)the proposed education and care service premises will not be constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle.

121Show cause notice before cancellation

If the Regulatory Authority is considering the cancellation of an approval in principle under section 120, the Regulatory Authority must first give the approval in principle holder a show cause notice stating—

(a)that the Regulatory Authority intends to cancel the approval in principle; and

(b)the reasons for the proposed cancellation; and

(c)that within 30 days after the notice is given, the holder may give the Regulatory Authority a written response to the proposed cancellation.

122Decision in relation to cancellation

(1)After considering any written response from the approval in principle holder received within the time allowed by section 121(c), the Regulatory Authority must—

(a)cancel the approval in principle; or

(b)decide not to cancel the approval in principle.

(2)The Regulatory Authority must give the approval in principle holder written notice of the decision and the reasons for the decision within 7 days after the decision is made.

(3)The decision to cancel the approval in principle takes effect—

(a)14 days after the Regulatory Authority gives notice of the decision; or

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

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

Division 6—Expiry of approval in principle

123Expiry of approval in principle

(1)An approval in principle expires—

(a)on the third anniversary of the day on which the approval in principle was granted; or

(b)if the approval in principle is extended under section 124, on the day determined by the Regulatory Authority in accordance with that section.

(2)Despite subsection (1), if an application for extension is made under section 124 before the expiry of the approval in principle, the approval in principle does not expire before the application for extension is determined by the Regulatory Authority.

(3)Despite subsection (1), if an application for service approval is made before the expiry of the approval in principle, the approval in principle does not expire before the application for service approval is determined by the Regulatory Authority.

124Approval in principle may be extended

(1)Any time before an approval in principle expires, the Regulatory Authority may extend an approval in principle—

(a)on the application of the approval in principle holder; or

(b)without an application.

(2)The Regulatory Authority may extend an approval in principle for a period no longer than 3 years after the date on which the approval in principle would otherwise expire under section 123(1)(a).

(3)An application for extension must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(4)The Regulatory Authority may ask the applicant to provide further information that is reasonably required for the purpose of assessing the application.

(5)In determining an application for extension, the Regulatory Authority—

(a)must consider whether, before the proposed new expiry date—

(i)the construction, alteration or repair of the proposed education and care service premises is likely to be completed; and

(ii)an application for a service approval is likely to be made; and

(b)may consider whether—

(i)the proposed education and care service premises is, or is being, constructed, altered or repaired in accordance with the approval in principle; and

(ii)the approval in principle has previously been extended; and

(iii)the approval in principle has previously been reinstated.

(6)After considering an application for extension, the Regulatory Authority must—

(a)decide to extend the approval in principle; or

(b)refuse to extend the approval in principle.

(7)If the Regulatory Authority decides to extend an approval in principle, the Regulatory Authority must—

(a)amend the approval in principle to specify the new date on which the approval in principle expires; and

(b)provide an amended copy of the approval in principle to the approval in principle holder.

(8)If the Regulatory Authority decides not to extend an approval in principle, the Regulatory Authority must give the approval in principle holder written notice of its decision and the reasons for the decision within 7 days after the decision is made.

125Expired approval in principle may be reinstated

(1)If an approval in principle expires, the former approval in principle holder may apply to the Regulatory Authority for reinstatement of the approval in principle.

(2)An application for reinstatement must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(3)The application for reinstatement must be made no later than 6 months after the date on which the approval in principle expired.

(4)The Regulatory Authority may ask the applicant to provide further information that is reasonably required for the purpose of assessing the application.

(5)In determining whether to reinstate an approval in principle, the Regulatory Authority—

(a)must consider whether, within the period that the approval in principle is to be reinstated—

(i)the construction, alteration or repair of the proposed education and care service premises is likely to be completed; and

(ii)an application for a service approval is likely to be made; and

(b)may consider whether—

(i)the proposed education and care service premises is, or is being, constructed, altered or repaired in accordance with the approval in principle; and

(ii)the approval in principle has previously been extended; and

(iii)the approval in principle has previously expired and been reinstated.

(6)The Regulatory Authority must—

(a)reinstate an approval in principle; or

(b)refuse to reinstate an approval in principle.

(7)A reinstated approval in principle expires 12 months after the day on which the decision to reinstate the approval in principle is made.

(8)If the Regulatory Authority reinstates an approval in principle, the Regulatory Authority must give the approval in principle holder a copy of the reinstated approval in principle which specifies the date on which the reinstated approval in principle expires.

(9)If the Regulatory Authority refuses to reinstate an approval in principle, the Regulatory Authority must give the applicant written notice of its decision and the reasons for the decision within 7 days after the decision is made.".

9Reviewable decision—internal review

After section 190(f) of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 insert—

"(fa)to refuse to grant an approval in principle; or

(fb)to amend or refuse to amend an approval in principle; or

(fc)to transfer an approval in principle under section 119; or

(fd)to cancel an approval in principle; or

(fe)to refuse to extend an approval in principle; or

(ff)to refuse to reinstate an approval in principle; or".

10New Division 8 of Part 15 inserted

After Division 7 of Part 15 of the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 insert—

Division 8—Transitional provisions—Early Childhood Legislation Amendment (Premises Approval in Principle) Act 2023"

340Transitional provision—approvals in principle—applications for service approval

(1)This section applies if—

(a)a participating jurisdiction declares that section 49A applies to, and in relation to, that jurisdiction; and

(b)before, on or after the commencement day , a person makes an application for a service approval in respect of education and care service premises located in a Part 4 building; and

(c)before the commencement day, a permit or approval under a Part 4 planning law or Part 4 building law was issued for the premises.

(2)Despite section 49A(2)—

(a)the applicant for the service approval is not required to be an approval in principle holder for the premises; and

(b)the Regulatory Authority must not refuse to grant a service approval on the ground that the applicant is not an approval in principle holder for the premises.

(3)In this Division—

commencement day, in relation to a mandatory approval in principle jurisdiction, means the day on which section 49A is declared to come into operation in that jurisdiction.".

PART 3—AMENDMENT OF EDUCATION AND CARE SERVICES NATIONAL LAW ACT 2010

11New sections 5A and 5B inserted

After section 5 of the Education and Care Services National Law Act 2010 insert—

"5A   Application of Part 4 of National Law (approval in principle)

For the purposes of section 105 of the Education and Care Services National Law, Part 4 of that Law is declared to apply to, and in relation to, this jurisdiction.

5BMinister may declare section 49A of National Law to apply (mandatory approval in principle)

(1)The Minister, by Order published in the Government Gazette, may declare that section 49A of the Education and Care Services National Law applies to, and in relation to, this jurisdiction.

(2)Before making an Order under subsection (1), the Minister must consult the Minister responsible for administering the Building Act 1993.

(3)An Order made under this section takes effect—

(a)on and from the day it is published in the Government Gazette; or

(b)if a later day is specified in the Order, on and from that day.

(4)An Order made under this section may be varied or revoked by Order published in the Government Gazette.

(5)An Order made under this section is not a legislative instrument within the meaning of the Subordinate Legislation Act 1994.".

12New sections 15 and 15A inserted

After section 14 of the Education and Care Services National Law Act 2010 insert—

"15 Part 4 building law

For the purposes of the definition of Part 4 building law in section 5 of the Education and Care Services National Law (Victoria), the Building Act 1993 and the regulations made under that Act are declared to be a Part 4 building law for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).

15APart 4 application period

For the purposes of section 107(2) of the Education and Care Services National Law (Victoria), the period during which an application for approval in principle must be made to the Regulatory Authority is declared to be any time before the day on which a building permit is issued under the Building Act 1993 for the construction, alteration or repair of the education and care service premises.".

PART 4—AMENDMENT OF CHILDREN'S SERVICES ACT 1996—APPROVALS IN PRINCIPLE

13Definitions

In section 3(1) of the Children's Services Act 1996 insert the following definitions—

"approval in principle means an approval in principle granted under section 100E for a proposed children's service premises;

approval in principle criteria means, of the regulations that regulate the children's service premises, those which are prescribed to be the approval in principle criteria;

approval in principle holder means—

(a)a person granted an approval in principle under section 100E; or

(b)if the approval in principle is transferred to another person under section 100M or 100N, that person;

Part 3A building means—

(a)a building that has 3 or more storeys (including the ground level and each level of a split level); or

(b)a building of a prescribed class;".

14Determination of application

After section 46(1)(a) of the Children's Services Act 1996 insert—

"(ab)any approval in principle held by the approved provider for the children's service premises, and whether the premises were constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle; and".

15Grounds for refusal

After section 48(2) of the Children's Services Act 1996 insert—

"(3)The Regulatory Authority must not refuse to grant a service approval on the ground that the proposed children's service premises do not meet the approval in principle criteria if—

(a)the approved provider is an approval in principle holder for the premises; and

(b)the premises were constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle.

(4)Subsection (3) does not prevent the Regulatory Authority from refusing to grant a service approval on any other ground, including a ground set out in subsection (1)(a) or section 46(1)(a).".

16New Part 3A inserted

After Part 3 of the Children's Services Act 1996 insert—

"PART 3A—APPROVALS IN PRINCIPLE FOR CHILDREN'S SERVICE PREMISES LOCATED IN CERTAIN TYPES OF BUILDINGS

Division 1—Application for approval in principle

100AApplication for approval in principle

(1)A person may apply to the Regulatory Authority for the approval in principle of proposed children's service premises.

(2)An application may be made if—

(a)the premises are for a children's service; and

(b)the premises are proposed to be located in a new or existing Part 3A building; and

(c)a building permit is required under the Building Act 1993 for the construction, alteration or repair of the proposed children's service premises.

100BForm and timing of application

(1)An application for an approval in principle must—

(a)be in writing; and

(b)include any plan, drawing or specification as to the construction, alteration or repair of the proposed premises and building in which the premises are or will be located; and

(c)include the prescribed information; and

(d)include payment of the prescribed fee.

(2)An application for an approval in principle must be made to the Regulatory Authority before the day on which a building permit is issued under the Building Act 1993 for the construction, alteration or repair of the children's service premises.

100CRegulatory Authority may seek further information

(1)The Regulatory Authority may ask an applicant for an approval in principle to provide any further information that is reasonably required for the purpose of assessing the application.

(2)If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 100E for the Regulatory Authority to make a decision on the application.

100DDetermination of application for an approval in principle

In determining an application for an approval in principle, the Regulatory Authority must have regard to—

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

(b)whether the proposed children's service premises would meet the approval in principle criteria once constructed, altered or repaired; and

(c)whether the proposed children's service premises will have direct egress to an assembly area to allow the safe evacuation of all children; and

(d)any other matter the Regulatory Authority considers relevant; and

(e)any other prescribed matters.

100EGrant or refusal of approval in principle

(1)On receiving an application under section 100A, the Regulatory Authority may—

(a)subject to section 100F, grant an approval in principle; or

(b)refuse to grant an approval in principle.

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

Note

If further information is requested under section 100C(1), the period between the making of the request and the provision of the information is not included in the 60 day period.

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

(4)The Regulatory Authority is taken to have refused to grant an approval in principle if the Regulatory Authority has not made a decision under subsection (1)—

(a)within the relevant time required under subsection (2); or

(b)within the period extended under subsection (3)—

as the case requires.

100FRegulatory Authority must refuse to grant approval in principle unless satisfied of certain matters

The Regulatory Authority must refuse to grant an approval in principle unless satisfied that—

(a)the proposed children's service premises (once constructed, altered or repaired) and the site and location of those premises—

(i)will be suitable for the operation of a children's service; and

(ii)will meet the approval in principle criteria; and

(b)the proposed children's service premises will have direct egress to an assembly area to allow the safe evacuation of all children.

100GNotice of decision on application for approval in principle

The Regulatory Authority must give written notice to the applicant of a decision under section 100E and the reasons for the decision within 7 days after the decision is made.

100HCopy of approval in principle to be provided

(1)If the Regulatory Authority grants an approval in principle, the Regulatory Authority must give a copy of the approval in principle to the applicant stating—

(a)the name of the approval in principle holder; and

(b)the site and location of the building or proposed building; and

(c)the location of the proposed children's service premises within the building or proposed building; and

(d)the date on which the approval in principle was granted; and

(e)the date on which the approval in principle expires; and

Note

An approval in principle expires 3 years from the day it is granted. See section 100R.

(f)any other prescribed matters.

(2)The copy of the approval in principle must—

(a)attach a copy of any plan, drawing or specification that is the basis of the approval in principle of the premises; or

(b)sufficiently describe any such plan, drawing or specification.

Division 2—Duties of approval in principle holder

100IDuty to notify Regulatory Authority of any material change

The approval in principle holder must notify the Regulatory Authority of any material change to—

(a)any plan, drawing or specification attached to, or described in, the approval in principle in accordance with section 100H(2); or

(b)the environment surrounding the proposed children's service premises that may affect the suitability of the premises for the operation of a children's service.

Example

A neighbouring building is constructed which impacts adequate natural light in the indoor spaces of the proposed premises.

Division 3—Amendment and transfer of approval in principle

100JAmendment of approval in principle on application

(1)The approval in principle holder may apply to the Regulatory Authority for an amendment of an approval in principle.

(2)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

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

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

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

(6)The Regulatory Authority must decide the application by—

(a)amending the approval in principle in the way applied for; or

(b)with the applicant's written agreement, amending the approval in principle in another way; or

(c)refusing to amend the approval in principle.

(7)An amendment cannot change the location of the proposed children's service premises.

(8)The Regulatory Authority must give written notice of its decision to the approval in principle holder within 7 days after the decision is made.

100KAmendment of approval in principle by Regulatory Authority

(1)The Regulatory Authority may amend an approval in principle at any time without an application.

(2)The Regulatory Authority must give written notice of the amendment to the approval in principle holder and the reasons for the decision within 7 days after the decision is made.

(3)An amendment under this section has effect—

(a)14 days after the Regulatory Authority gives notice of the amendment under subsection (2); or

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

100LCopy of amended approval in principle to be provided

If the Regulatory Authority amends an approval in principle under section 100J or 100K, the Regulatory Authority must give an amended copy of the approval in principle to the approval in principle holder.

100MTransfer of approval in principle

(1)The approval in principle holder (transferring approval in principle holder) may transfer the approval in principle to another person (receiving approval in principle holder).

(2)A transfer takes effect on the day the Regulatory Authority receives a notice of transfer in accordance with subsection (3).

(3)A notice of transfer must—

(a)be in writing; and

(b)be signed by both the transferring approval in principle holder and the receiving approval in principle holder; and

(c)include the prescribed information; and

(d)include payment of the prescribed fee.

(4)As soon as practicable after receiving a notice of transfer, the Regulatory Authority must—

(a)amend the approval in principle to specify the name of the receiving approval in principle holder; and

(b)provide an amended copy of the approval in principle to the receiving approval in principle holder.

100NTransfer of approval in principle by Regulatory Authority

(1)The Regulatory Authority may transfer an approval in principle to another person if the Regulatory Authority becomes aware that the approval in principle holder has died or does not exist.

(2)On transferring an approval in principle, the Regulatory Authority must—

(a)amend the approval in principle to specify the name of the receiving approval in principle holder; and

(b)provide an amended copy of the approval in principle to the receiving approval in principle holder.

Division 4—Cancellation of approval in principle

100ORegulatory Authority may cancel approval in principle

The Regulatory Authority may cancel an approval in principle if the Regulatory Authority is satisfied—

(a)that the proposed children's service premises to which the approval relates, or the site or location of those premises, is no longer suitable for the operation of a children's service; or

(b)the proposed children's service premises will not be constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle.

100PShow cause notice before cancellation

If the Regulatory Authority is considering the cancellation of an approval in principle under section 100O, the Regulatory Authority must first give the approval in principle holder a show cause notice stating—

(a)that the Regulatory Authority intends to cancel the approval in principle; and

(b)the reasons for the proposed cancellation; and

(c)that within 30 days after the notice is given, the holder may give the Regulatory Authority a written response to the proposed cancellation.

100QDecision in relation to cancellation

(1)After considering any written response from the approval in principle holder received within the time allowed by section 100P(c), the Regulatory Authority must—

(a)cancel the approval in principle; or

(b)decide not to cancel the approval in principle.

(2)The Regulatory Authority must give the approval in principle holder written notice of the decision and the reasons for the decision within 7 days after the decision is made.

(3)The decision to cancel the approval in principle takes effect—

(a)14 days after the Regulatory Authority gives notice of the decision; or

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

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

Division 5—Expiry of approval in principle

100RExpiry of approval in principle

(1)An approval in principle expires—

(a)on the third anniversary of the day on which the approval in principle was granted; or

(b)if the approval in principle is extended under section 100S, on the day determined by the Regulatory Authority in accordance with that section.

(2)Despite subsection (1), if an application for extension is made under section 100S before the expiry of the approval in principle, the approval in principle does not expire before the application for extension is determined by the Regulatory Authority.

(3)Despite subsection (1), if an application for service approval is made before the expiry of the approval in principle, the approval in principle does not expire before the application for service approval is determined by the Regulatory Authority.

100SApproval in principle may be extended

(1)Any time before an approval in principle expires, the Regulatory Authority may extend an approval in principle—

(a)on the application of the approval in principle holder; or

(b)without an application.

(2)The Regulatory Authority may extend an approval in principle for a period no longer than 3 years after the date on which the approval in principle would otherwise expire under section 100R(1)(a).

(3)An application for extension must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(4)The Regulatory Authority may ask the applicant to provide further information that is reasonably required for the purpose of assessing the application.

(5)In determining an application for extension, the Regulatory Authority—

(a)must consider whether, before the proposed new expiry date—

(i)the construction, alteration or repair of the proposed children's service premises is likely to be completed; and

(ii)an application for a service approval is likely to be made; and

(b)may consider whether—

(i)the proposed children's service premises is, or is being, constructed, altered or repaired in accordance with the approval in principle; and

(ii)the approval in principle has previously been extended; and

(iii)the approval in principle has previously been reinstated.

(6)After considering an application for extension, the Regulatory Authority must—

(a)decide to extend the approval in principle; or

(b)refuse to extend the approval in principle.

(7)If the Regulatory Authority decides to extend an approval in principle, the Regulatory Authority must—

(a)amend the approval in principle to specify the new date on which the approval in principle expires; and

(b)provide an amended copy of the approval in principle to the approval in principle holder.

(8)If the Regulatory Authority decides not to extend an approval in principle, the Regulatory Authority must give the approval in principle holder written notice of its decision and the reasons for the decision within 7 days after the decision is made.

100TExpired approval in principle may be reinstated

(1)If an approval in principle expires, the former approval in principle holder may apply to the Regulatory Authority for reinstatement of the approval in principle.

(2)An application for reinstatement must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(3)The application for reinstatement must be made no later than 6 months after the date on which the approval in principle expired.

(4)The Regulatory Authority may ask the applicant to provide further information that is reasonably required for the purpose of assessing the application.

(5)In determining whether to reinstate an approval in principle, the Regulatory Authority—

(a)must consider whether, within the period that the approval in principle is to be reinstated—

(i)the construction, alteration or repair of the proposed children's service premises is likely to be completed; and

(ii)an application for a service approval is likely to be made; and

(b)may consider whether—

(i)the proposed children's service premises is, or is being, constructed, altered or repaired in accordance with the approval in principle; and

(ii)the approval in principle has previously been extended; and

(iii)the approval in principle has previously expired and been reinstated.

(6)The Regulatory Authority must—

(a)reinstate an approval in principle; or

(b)refuse to reinstate an approval in principle.

(7)A reinstated approval in principle expires 12 months after the day on which the decision to reinstate the approval in principle is made.

(8)If the Regulatory Authority reinstates an approval in principle, the Regulatory Authority must give the approval in principle holder a copy of the reinstated approval in principle which specifies the date on which the reinstated approval in principle expires.

(9)If the Regulatory Authority refuses to reinstate an approval in principle, the Regulatory Authority must give the applicant written notice of its decision and the reasons for the decision within 7 days after the decision is made.".

17Reviewable decision—internal review

After section 132(f) of the Children's Services Act 1996 insert—

"(fa)to refuse to grant an approval in principle; or

(fb)to amend or refuse to amend an approval in principle; or

(fc)to transfer an approval in principle under section 100N; or

(fd)to cancel an approval in principle; or

(fe)to refuse to extend an approval in principle; or

(ff)to refuse to reinstate an approval in principle; or".

PART 5—FURTHER AMENDMENT OF CHILDREN'S SERVICES ACT 1996—INFRINGEMENT OFFENCES

18Matters to be taken into account in assessing whether fit and proper person

In the note at the foot of section 13(1)(a) of the Children's Services Act 1996—

(a)after "National Law" (where first occurring) insert "or this Act";

(b)after "National Law" (where secondly occurring) insert "and section 178A of this Act".

19New section 178A inserted

After section 178 of the Children's Services Act 1996 insert—

"178A   Infringement offences

(1)An authorised officer or other person authorised by the Regulatory Authority may serve an infringement notice on a person for a contravention of—

(a)section 112, 113 or 116; or

(b)offences against the regulations that are prescribed for the purposes of this section.

(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.

(3)The infringement penalty for an infringement offence is the amount which is 10 per cent of the maximum penalty that could be imposed on the person if the person were prosecuted in a court.

(4)The payment of an infringement penalty is not to be considered in assessing whether a person is a fit and proper person to be involved in the provision of, or to be a nominated supervisor of, a children's service.

Note

Payment of the infringement penalty and

any relevant fee expiates the offence. See section 32(1A)(a)(i) of the Infringements Act 2006.".

PART 6—REPEAL OF THIS ACT

20Repeal of this Act

This Act is repealed on the second anniversary of the day on which it receives the Royal Assent.

Note

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

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ENDNOTES

1   General information

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

Minister's second reading speech—

Legislative Assembly: 18 October 2023

Legislative Council: 2 November 2023

The long title for the Bill for this Act was "A Bill for an Act to amend the Education and Care Services National Law Act 2010 and the Education and Care Services National Law set out in the Schedule to that Act to provide for the approval in principle of certain types of education and care service premises, to amend the Children's Services Act 1996 to make certain offences infringement offences and to provide for the approval in principle of certain types of children's service premises, and for other purposes."