Education and Care Services National Amendment Regulations 2013 (WA)

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WESTERN 6151
AUSTRALIAN
GOVERNMENT

ISSN 1448-949X PRINT POST APPROVED PP665002/00041

PERTH, FRIDAY, 13 DECEMBER 2013 No. 226 SPECIAL
PUBLISHED BY AUTHORITY JOHN A. STRIJK, GOVERNMENT PRINTER AT 11.30 AM
© STATE OF WESTERN AUSTRALIA

Education and Care Services National Law (Western Australia)

Education and Care Services National

Amendment Regulations 2013

Made by the Governor in Executive Council.
1. Citation

These regulations are the Education and Care Services National
Amendment Regulations 2013.

2. Commencement
These regulations come into operation as follows —

(a) regulations 1 and 2 — on the day on which these
regulations are published in the Gazette;

(b) the rest of the regulations — on 31 December 2013.

3. Regulations amended

These regulations amend the Education and Care Services
National Regulations 2012.

4. Regulation 4 amended

(1) In regulation 4(1) insert in alphabetical order:
safety screening clearance means a safety screening
clearance issued by the Department of Education of
Tasmania;

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working with children check number has the same meaning as it has in the Child Protection (Working With Children) Act 2012 of New South Wales;

(2) After regulation 4(1) insert:

(1A)

A requirement under these Regulations applying in relation to a stated number of children applies each time there is the stated number of children or a part of
the stated number.
Example: There are 33 children aged 36 months or over (not including
children over preschool age) at a centre-based service.
Regulation 123(1)(c)(ii) requires 1 educator for each 10 children.
In this case 4 educators would be required.

5. Regulation 9 replaced
Delete regulation 9 and insert:
9. Prescribed entities
For the purposes of paragraph (e) of the definition of person in section 5(1) of the Law, the following are
prescribed entities —

(a)

the Catholic Education Commission of Western Australia;
(b) a body politic.

6. Regulation 12 amended
Delete regulation 12(b) and insert:

(b)

any incident involving serious injury or trauma to, or illness of, a child while being educated

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and cared for by an education and care
service —
(i) which a reasonable person would consider required urgent medical attention from a registered medical
practitioner; or

Examples: Whooping cough, broken limb, anaphylaxis reaction.
(ii) for which the child attended, or ought reasonably to have attended, a hospital;

7. Regulation 14 amended
In regulation 14:

(a) in paragraph (f) before “if the participating jurisdiction”
insert:

except in the case of an application to the New South
Wales Regulatory Authority or the Queensland
Regulatory Authority,
(b) in paragraph (f)(ii) delete “law; or” and insert:
law;

(c) delete paragraph (f)(iii);
(d) after paragraph (f) insert:

(fa) in the case of an application to the New South
Wales Regulatory Authority, the applicant’s
working with children check number or a copy
of the applicant’s current working with children
card or working with children check;

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(fb) in the case of an application to the Queensland
Regulatory Authority, a copy of the applicant’s
current working with children card or working
with children check;
(fc) in the case of an application to the Tasmanian
Regulatory Authority, a copy of the applicant’s
safety screening clearance;

(e) in paragraph (h) before “a criminal history statement”
insert:

if a criminal history record check has been provided
under paragraph (g)(ii),

8. Regulation 20 amended
In regulation 20:

(a) in paragraph (g) before “if the participating jurisdiction”
insert:

except in the case of an application to the New South
Wales Regulatory Authority or the Queensland
Regulatory Authority,
(b) in paragraph (g)(ii) delete “law; or” and insert:
law;

(c) delete paragraph (g)(iii);
(d) after paragraph (g) insert:

(ga) in the case of an application to the New South
Wales Regulatory Authority, the applicant’s

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working with children check number or a copy
of the applicant’s current working with children
card or working with children check;

(gb) in the case of an application to the Queensland
Regulatory Authority, a copy of the applicant’s
current working with children card or working
with children check;
(gc) in the case of an application to the Tasmanian
Regulatory Authority, a copy of the applicant’s
safety screening clearance;

(e) in paragraph (i) before “a criminal history statement”
insert:

if a criminal history record check has been provided
under paragraph (h)(ii),

9. Regulation 22 amended
In regulation 22:

(a) in paragraph (g) before “if the participating jurisdiction”
insert:

except in the case of an application to the New South
Wales Regulatory Authority or the Queensland
Regulatory Authority,
(b) in paragraph (g)(ii) delete “law; or” and insert:
law;

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(c) delete paragraph (g)(iii);
(d) after paragraph (g) insert:

(ga) in the case of an application to the New South
Wales Regulatory Authority, the applicant’s
working with children check number or a copy
of the applicant’s current working with children
card or working with children check;

(gb) in the case of an application to the Queensland
Regulatory Authority, a copy of the applicant’s
current working with children card or working
with children check;
(gc) in the case of an application to the Tasmanian
Regulatory Authority, a copy of the applicant’s
safety screening clearance;

(e) in paragraph (i) before “a criminal history statement”
insert:

if a criminal history record check has been provided
under paragraph (h)(ii),

10. Regulation 25 amended

(1) In regulation 25 delete “In addition” and insert:

(1) Subject to subregulation (2), in addition
(2) At the end of regulation 25 insert:

(2) A regulatory authority may determine that the
information set out in subregulation (1)(b) or (g) is not

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required to be provided if the approved provider is
seeking —

(a)
to relocate the education and care service to 12 months; or

(b) to locate the education and care service on a school site.

11. Regulation 33 amended
In regulation 33 delete the passage that begins with
“approval —” and continues to the end of the regulation and
insert:
approval on or before 1 July each year.

Note: The note at the end of amended regulation 33 is deleted.

12. Regulation 46 amended

(1) In regulation 46(1):

(a) in paragraph (f) before “the following” insert:
except in the case of an application to the New South
Wales Regulatory Authority, the Queensland Regulatory
Authority or the Tasmanian Regulatory Authority,
(b) delete paragraph (f)(iii);
(c) in paragraph (f)(iv)(D) delete “applicant.” and insert:
applicant;

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(d) after paragraph (f) insert:

(g) in the case of an application to the New South
Wales Regulatory Authority, the applicant’s
working with children check number or a copy
of the applicant’s current working with children
card or working with children check;

(h) in the case of an application to the Queensland
Regulatory Authority, a copy of the applicant’s

current working with children card or working
with children check;
(i) in the case of an application to the Tasmanian
Regulatory Authority, a copy of the applicant’s
safety screening clearance.

(2) In regulation 46(2) delete “management and control” and insert:
management or control
13. Regulation 97 amended
Delete regulation 97(3)(a) and insert:

(a)
emergency and evacuation procedures are
rehearsed every 3 months by the staff members,
in the case of a centre-based service, the on the day of the rehearsal and the responsible person in relation to the service who is present at the time of the rehearsal; and

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(ab) in the case of a family day care service, the
emergency and evacuation procedures are
rehearsed every 3 months by each family day
care educator and the children being educated
and cared for by the family day care educator
on that day; and

14. Regulation 107 amended
After regulation 107(5) insert:

(6) In this regulation a reference to a child does not
include —

(a) a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5); or
(b) an additional child being educated or cared for in exceptional circumstances as set out in regulation 124(5) and (6).

15. Regulation 108 amended
After regulation 108(5) insert:

(6) In this regulation a reference to a child does not
include —

(a)

a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5); or

(b)

an additional child being educated or cared for in exceptional circumstances as set out in regulation 124(5) and (6).

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16.           Regulation 123 amended

(1) Before regulation 123(1) insert:

(1A) In this regulation —
emergency, in relation to a child, means a serious and
unexpected short term care emergency that requires the
child to be provided with immediate education and
care.
Examples:
1          A child is determined to be in need of protection under a child protection order.
2          The parent of a child needs urgent health care that prevents them caring for the child.

(2) Delete regulation 123(5) and insert:

(5) In subregulations (1) and (2) a reference to children
does not include a child who is, or 2 or more children
from the same family who are, educated and cared for
at a centre-based service in an emergency for a period
of not more than 2 consecutive days on which the
service operates.
(6) An approved provider of a centre-based service must
not permit an additional child or additional children to
be educated and cared for at the service in an
emergency in the circumstances set out in
subregulation (5) unless the approved provider is
satisfied on reasonable grounds that this will not affect
the health, safety and wellbeing of all the children
attending the service.

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(7) Despite subregulations (1) and (2), for the purposes of
determining the minimum number of educators
required under this regulation, a child of a certain age
is to be treated as up to 6 months older or 6 months
younger than the child’s actual age if —

(a) the approved provider or, if the approved provider is not an individual, the nominated
supervisor, of the service —
(i) is satisfied on reasonable grounds that it is developmentally appropriate for the child to be so treated; and
(ii) makes and keeps a record of that decision;

and

(b) a parent of the child has agreed with that decision and has signed the record of the decision to indicate that agreement.

17. Regulation 129 amended
After regulation 129(2) insert:

(3) In this Division a reference to a number of children
being educated or cared for by a centre-based service
does not include a child being educated or cared for in
an emergency in the circumstances set out in
regulation 123(5).

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18. Regulation 131 amended
In regulation 131(1) after “the service is” insert:
educating or

19. Regulation 139 amended
In regulation 139(1)(a) delete “regulations 140 to 143; and” and
insert:
regulations 140, 141(1), 142 and 143; and

20. Regulation 140 amended
In regulation 140(j)(i)(A) and (ii) delete “primary and”.

21. Regulation 141 amended

(1) In regulation 141 delete “The following documents” and insert:
(1) The following documents
(2) Delete regulation 141(c).

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(3) At the end of regulation 141 insert:

(2) If the qualification was awarded, or the educational
institution was attended, in a country other than
Australia, the applicant must, at the request of the
National Authority, give the National Authority a
certification of the Australian Qualification Framework
level of the qualification from —

(a) the Australian Education International National Office of Overseas Skills Recognition, located in the Department of Industry of the
Commonwealth; or

(b)

Trades Recognition Australia, located in the Department of Industry of the Commonwealth; or

(c)

an overseas qualification unit, or other unit responsible for recognising overseas qualifications, of the State or Territory where the applicant resides.

Note: At the end of amended regulation 141 the following note is inserted:
Note: This regulation differs from regulation 141 of the national regulations
made by the Ministerial Council.

22. Regulation 143 amended
In regulation 143 after “the application” insert:
or otherwise to the National Authority

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23. Regulation 146 amended
Delete regulation 146(d) and insert:

(d) if the education and care service is located in a jurisdiction with a working with children law or a working with vulnerable people law, a record of the identifying number of the current check conducted under that law and the expiry date of that check, if applicable, unless paragraph (e) applies;
(e) if the nominated supervisor has provided proof as permitted by regulation 46 of the
supervisor’s current teacher registration under

an education law of a participating jurisdiction,
a record of the identifying number of the
teacher registration and the expiry date of that
registration;
(f) in relation to Tasmania, a record of the identifying number of the nominated
supervisor’s safety screening clearance and the
expiry date of that clearance.

24. Regulation 147 amended
Delete regulation 147(d) and insert:

(d)

if the education and care service is located in a jurisdiction with a working with children law or a working with vulnerable people law, a record of the identifying number of the current check conducted under that law and the expiry date of that check, if applicable, unless paragraph (e) applies;

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(e) except in the case of New South Wales, Queensland and Tasmania, if the staff member
has provided proof of the staff member’s

current teacher registration under an education
law of a participating jurisdiction, a record of
the identifying number of the teacher
registration and the expiry date of that
registration;
(f) in relation to Tasmania, a record of the
identifying number of the staff member’s safety

screening clearance and the expiry date of that
clearance.

25. Regulation 163 amended

(1) In regulation 163(4) delete “The approved provider” and insert:
Except in the case of New South Wales, Queensland, Tasmania
or Victoria, the approved provider
(2) After regulation 163(4) insert:

(4A) In New South Wales or Queensland, the approved
provider must consider the person’s current working
with children check or working with children card.
(4B) In Victoria, the approved provider must consider the
person’s current working with children check or
current teacher registration.
(4C) In Tasmania, the approved provider must consider the
person’s safety screening clearance.

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26.           Regulation 175 amended
After regulation 175(2)(c) insert:

(ca) the attendance at the approved education and
care service of any additional child or children
being educated and cared for in an emergency
in the circumstances set out in
regulation 123(5), including —
(i)      a description of the emergency; and
(ii)      a statement by the approved provider that the approved provider had taken into account the safety, health and

wellbeing of all the children attending
the education and care service when
deciding to provide education and care
to the additional child or children;

27. Regulation 176 amended
After regulation 176(2)(b) insert:

(ba) in the case of a notice under
regulation 175(2)(ca), within 24 hours of the
commencement of the attendance of the child
or children at the education and care service;

28. Regulation 177 amended
In regulation 177(1)(da) delete “regulation 123(5);” and insert:
regulation 123(7);

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Note: The note at the end of amended regulation 177 is to read:
Notes:
1 A compliance direction may be issued for failure to comply with subregulation (2) or (3).
2 This regulation differs from regulation 177 of the national regulations made by the Ministerial Council.

29. Regulation 208 amended
In regulation 208(c) delete “principal executive” and insert:
principal officer

30. Regulation 227 amended

(1) In regulation 227(1) delete “subregulation (2).” and insert:
subregulation (2) and any matter prescribed in
subregulation (2A).
(2) In regulation 227(2):

(a) in paragraph (e) delete “enforcement;” and insert:
enforcement.

(b) delete paragraph (f).

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(3) After regulation 227(2) insert:

(2A) For the purposes of section 270(5)(b), the following
matters are prescribed —

(a)

proceedings commenced by an allegation made under section 188B of the Law that grounds for disciplinary action exist;
(b) any order made in such proceedings.

(4) In regulation 227(3):

(a) delete paragraph (d)(vii);
(b) after paragraph (d) insert:

(e) for the matters prescribed in

subregulation (2A) —

(i)      any allegation made under section 188B of the Law that grounds for disciplinary action exist; and
(ii)      the provision of the Law that there has been a failure, or alleged failure, to comply with, and the circumstances of that failure, or alleged failure; and
(iii)      any relevant dates regarding the proceedings or any order made; and
(iv)      information about the content of any order made, and the reasons given for the making of the order.

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31. Regulation 241 amended

In regulation 241(1)(g), (3) and (4) delete “Education
(Queensland College of Teaching) Act 2005” and insert:
Education (Queensland College of Teachers) Act 2005

32. Regulation 242 amended
In regulation 242(2)(a) before “early” insert:
approved

33. Regulation 243A inserted
After regulation 243 insert:

243A. Persons taken to hold an approved diploma level
education and care qualification for regulation 128
in Queensland
Without limiting regulation 243, a person is taken to
hold an approved diploma level education and care
qualification for the purposes of regulation 128 if,
immediately before the scheme commencement day,
the person, in Queensland, held a qualification that is
published under regulation 137(2)(d) in the list of
qualifications and former qualifications for family day
care coordinators.

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34. Regulation 379 amended
In regulation 379(2) delete “133(1)” and insert:
133(1)(b)

Note: At the end of amended regulation 379 the following note is inserted:
Note: This regulation differs from regulation 379 of the national regulations
made by the Ministerial Council.
G. MOORE, Clerk of the Executive Council..

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WESTERN	6151
AUSTRALIAN
GOVERNMENT
ISSN 1448-949X	PRINT POST APPROVED PP665002/00041

(2)	After regulation 4(1) insert:
(1A)	A requirement under these Regulations applying in relation to a stated number of children applies each time there is the stated number of children or a part of
the stated number.

except in the case of an application to the New South Wales Regulatory Authority or the Queensland Regulatory Authority,
(b)	in paragraph (f)(ii) delete “law; or” and insert:

(fb)	in the case of an application to the Queensland
Regulatory Authority, a copy of the applicant’s
current working with children card or working with children check;
(fc)	in the case of an application to the Tasmanian
Regulatory Authority, a copy of the applicant’s
safety screening clearance;
(e)	in paragraph (h) before “a criminal history statement”

except in the case of an application to the New South Wales Regulatory Authority or the Queensland Regulatory Authority,
(b)	in paragraph (g)(ii) delete “law; or” and insert:

(gb)	in the case of an application to the Queensland
Regulatory Authority, a copy of the applicant’s
current working with children card or working with children check;
(gc)	in the case of an application to the Tasmanian
Regulatory Authority, a copy of the applicant’s
safety screening clearance;
(e)	in paragraph (i) before “a criminal history statement”

(a)	in paragraph (f) before “the following” insert:
except in the case of an application to the New South Wales Regulatory Authority, the Queensland Regulatory Authority or the Tasmanian Regulatory Authority,
(b)	delete paragraph (f)(iii);
(c)	in paragraph (f)(iv)(D) delete “applicant.” and insert:

(2)	In regulation 46(2) delete “management and control” and insert:
management or control

(a)	a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5); or
(b)	an additional child being educated or cared for in exceptional circumstances as set out in regulation 124(5) and (6).

(1)	Before regulation 123(1) insert:
(1A)	In this regulation —
*emergency*, in relation to a child, means a serious and unexpected short term care emergency that requires the child to be provided with immediate education and care.

(7)	Despite subregulations (1) and (2), for the purposes of determining the minimum number of educators required under this regulation, a child of a certain age is to be treated as up to 6 months older or 6 months
younger than the child’s actual age if —

(1)	In regulation 141 delete “The following documents” and insert:
(1) The following documents
(2)	Delete regulation 141(c).

(b)	Trades Recognition Australia, located in the Department of Industry of the Commonwealth; or
(c)	an overseas qualification unit, or other unit responsible for recognising overseas qualifications, of the State or Territory where the applicant resides.

Note:	At the end of amended regulation 141 the following note is inserted:
Note:	This regulation differs from regulation 141 of the national regulations made by the Ministerial Council.

(d)	if the education and care service is located in a jurisdiction with a working with children law or a working with vulnerable people law, a record of the identifying number of the current check conducted under that law and the expiry date of that check, if applicable, unless paragraph (e) applies;
(e)	if the nominated supervisor has provided proof as permitted by regulation 46 of the

an education law of a participating jurisdiction, a record of the identifying number of the teacher registration and the expiry date of that registration;
(f)	in relation to Tasmania, a record of the identifying number of the nominated

current teacher registration under an education law of a participating jurisdiction, a record of the identifying number of the teacher registration and the expiry date of that registration;
(f)	in relation to Tasmania, a record of the

(1)	In regulation 163(4) delete “The approved provider” and insert:
Except in the case of New South Wales, Queensland, Tasmania or Victoria, the approved provider
(2)	After regulation 163(4) insert:
(4A)	In New South Wales or Queensland, the approved
provider must consider the person’s current working
with children check or working with children card.
(4B)	In Victoria, the approved provider must consider the
person’s current working with children check or
current teacher registration.
(4C)	In Tasmania, the approved provider must consider the
person’s safety screening clearance.

(ca)	the attendance at the approved education and care service of any additional child or children being educated and cared for in an emergency in the circumstances set out in
regulation 123(5), including —

Note:	The note at the end of amended regulation 177 is to read:
Notes:
1	A compliance direction may be issued for failure to comply with subregulation (2) or (3).
2	This regulation differs from regulation 177 of the national regulations made by the Ministerial Council.

(1)	In regulation 227(1) delete “subregulation (2).” and insert:
subregulation (2) and any matter prescribed in subregulation (2A).
(2)	In regulation 227(2):

(3)	After regulation 227(2) insert:
(2A)	For the purposes of section 270(5)(b), the following
matters are prescribed —

(a)	proceedings commenced by an allegation made under section 188B of the Law that grounds for disciplinary action exist;
(b)	any order made in such proceedings.

243A.	Persons taken to hold an approved diploma level education and care qualification for regulation 128 in Queensland
Without limiting regulation 243, a person is taken to hold an approved diploma level education and care qualification for the purposes of regulation 128 if, immediately before the scheme commencement day, the person, in Queensland, held a qualification that is published under regulation 137(2)(d) in the list of qualifications and former qualifications for family day care coordinators.