Education and Care Services National Law Act 2010 (Vic)
Version No. 021
Education and Care Services National Law Act 2010
No. 69 of 2010
Version incorporating amendments as at
1 October 2024
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Definitions
Part 2—Adoption of National Law
4Adoption of Education and Care Services National Law
5Exclusion of legislation of this jurisdiction
5AApplication of Part 4 of National Law (approval in principle)
5BMinister may declare section 49A of National Law to apply (mandatory approval in principle)
6Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction
7Relevant tribunal or court
8Regulatory Authority
9Children's services law
10Education law
11Former education and care services law
12Infringements law
13Public sector law
14Working with children law
15Part 4 building law
15APart 4 application period
16Transitional
Part 2A—Compliance with Child Safe Standards
16ADefinitions
16BFunctions of the Regulatory Authority as integrated sector regulator
16CModification of Education and Care Services National Law (Victoria)—Child Safe Standards condition
16DModification of Education and Care Services National Law (Victoria)—enforcement by Regulatory Authority of Child Safe Standards condition
16EModification of Education and Care Services National Law (Victoria)—function of the National Authority with respect to support and training of Regulatory Authority staff
16FModification of Education and Care Services National Law (Victoria)—references to the Law and its application to the Child Safe Standards condition
Part 3—Miscellaneous
17Power to fund education and care services and associated children's services
18Regulations modifying references to the Law and National Quality Framework in national regulations in relation to Child Safe Standards condition
19Transitional provision—Integrated licences including limited hours services
20Transitional provision—Early Childhood Legislation Amendment Act 2022
Schedule
Education and Care Services National Law
Part 1—Preliminary
1Short title
2Commencement
3Objectives and guiding principles
4How functions to be exercised
5Definitions
5AMeaning of person with management or control
6Interpretation generally
7Single national entity
8Extraterritorial operation of Law
9Law binds the State
Part 2—Provider Approval
Division 1—Application for provider approval
10Application for provider approval
11Form of application
12Applicant must be fit and proper person
13Matters to be taken into account in assessing whether fit and proper person
14Regulatory Authority may seek further information
15Grant or refusal of provider approval
16Notice of decision on application
17Duration of provider approval
18Effect of provider approval
19Conditions on provider approval
20Copy of provider approval
Division 2—Reassessment
21Reassessment of fitness and propriety
Division 3—Amendment of provider approvals
22Amendment of provider approval on application
23Amendment of provider approval by Regulatory Authority
24Copy of amended provider approval to be provided
Division 4—Suspension or cancellation of provider approval
25Grounds for suspension of provider approval
26Show cause notice before suspension
27Decision to suspend after show cause process
28Suspension without show cause notice
29Notice and taking effect of suspension
30Effect of suspension
31Grounds for cancellation of provider approval
32Show cause notice before cancellation
33Decision in relation to cancellation
34Effect of cancellation
35Approved provider to provide information to Regulatory Authority
36Notice to parents of suspension or cancellation
37Voluntary suspension of provider approval
38Surrender of provider approval by approved provider
Division 5—Approval of executor, representative or guardian as approved provider
39Death of approved provider
40Incapacity of approved provider
41Decision on application
Division 6—Exercise of powers by another Regulatory Authority
42Exercise of powers by another Regulatory Authority
Part 3—Service Approval
Division 1—Application for service approval
43Application for service approval
44Form of application
45Regulatory Authority may seek further information
46Investigation of application for service approval
47Determination of application
48Grant or refusal of service approval
49Grounds for refusal
49AAdditional ground for refusal in certain participating jurisdictions—mandatory approval in principle
50Notice of decision on application
50AApproval of a place as a family day care venue
51Conditions on service approval
52Copy of service approval to be provided
53Annual fee
Division 2—Amendment of service approval
54Amendment of service approval on application
55Amendment of service approval by Regulatory Authority
55ACondition relating to family day care co‑ordinators
56Notice of addition of nominated supervisor
56ANotice of change of a nominated supervisor's name or contact details
57Copy of amended service approval to be provided
Division 3—Transfer of service approval
58Service approval may be transferred
59Regulatory Authority to be notified of transfer
59AFurther notification required in case of delay to transfer date
60Consent of Regulatory Authority required for transfer
61Consent taken to be given unless Regulatory Authority intervenes
62Transfer may be subject to intervention by Regulatory Authority
63Effect of intervention
64Regulatory Authority may request further information
65Decision after intervention
66Regulatory Authority to notify outcome 10 days before transfer
67Transfer of service approval without consent is void
67ARequest for earlier transfer date after consent given to transfer
68Confirmation of transfer
69Notice to parents
Division 4—Suspension or cancellation of service approval
70Grounds for suspension of service approval
71Show cause notice before suspension
72Decision in relation to suspension
73Suspension of service approval without show cause
74Notice and effect of decision
75Suspension of service approval to the extent that it relates to associated children's service
76Transfer of suspended service
77Grounds for cancellation of service approval
78Show cause notice before cancellation
79Decision in relation to cancellation
80Cancellation of service approval to the extent that it relates to associated children's service
81Application for transfer of cancelled service
82Decision on application to transfer cancelled service
83Approved provider to provide information to Regulatory Authority
84Notice to parents of suspension or cancellation
85Voluntary suspension of service approval
86Surrender of service approval
Division 5—Application for service waiver
87Application for service waiver for service
88Form of application
89Powers of Regulatory Authority in considering application
90Matters to be considered
91Decision on application
92Revocation of service waiver
93Effect of service waiver
Division 6—Temporary waiver
94Application for temporary waiver
95Form of application
96Regulatory Authority may seek further information
97Special circumstances
98Decision on application
99Revocation of temporary waiver
100Effect of temporary waiver
Division 7—Exercise of powers by another Regulatory Authority
101Exercise of powers by another Regulatory Authority—family day care services
Division 8—Associated children's services
102Application of this Law to associated children's services
Division 9—Offences
103Offence to provide an education and care service without service approval
103AOffence relating to places where education and care is provided as part of a family day care service
104Offence to advertise education and care service without service approval
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
Division 2—Application for approval in principle
106Application for approval in principle
107Form and timing of application
108Regulatory Authority may seek further information
109Determination of application for an approval in principle
110Grant or refusal of approval in principle
111Regulatory Authority must refuse to grant approval in principle unless satisfied of certain matters
112Notice of decision on application for approval in principle
113Copy of approval in principle to be provided
Division 3—Duties of approval in principle holder
114Duty to notify Regulatory Authority of any material change
Division 4—Amendment and transfer of approval in principle
115Amendment of approval in principle on application
116Amendment of approval in principle by Regulatory Authority
117Copy of amended approval in principle to be provided
118Transfer of approval in principle
119Transfer of approval in principle by Regulatory Authority
Division 5—Cancellation of approval in principle
120Regulatory Authority may cancel approval in principle
121Show cause notice before cancellation
122Decision in relation to cancellation
Division 6—Expiry of approval in principle
123Expiry of approval in principle
124Approval in principle may be extended
125Expired approval in principle may be reinstated
Part 5—Assessments and Ratings
Division 1—Assessment and rating
133Assessment for rating purposes
134Rating levels
135Rating of approved education and care service
136Notice to approved education and care service of rating
137Suspension of rating assessment
Division 2—Reassessment and re-rating
138Regulatory Authority may reassess and re-rate approved education and care service
139Application for reassessment and re-rating by approved provider
140Application of Division 1
Division 3—Review by Regulatory Authority
141Review by Regulatory Authority
142Process for review
143Outcome of review by Regulatory Authority
Division 4—Review by Ratings Review Panel
Subdivision 1—Application for review
144Application for further review by Ratings Review Panel
145Form and time of application
Subdivision 2—Establishment of Ratings Review Panel
146Establishment of Ratings Review Panel
147Review Panel pool
148Procedure of Panel
149Transaction of business by alternative means
Subdivision 3—Conduct of review
150Conduct of review
151Decision on review by Ratings Review Panel
Division 5—Awarding of highest rating
152Application for highest rating
153Assessment of education and care service
154Board may seek information and documents
155Decision on application
156Notice of decision
157Reassessment of highest rating level
158Revocation of highest rating level
159Re-application for highest rating level
Division 6—Publication of rating levels
160Publication of ratings
Part 6—Operating an Education and Care Service
161Offence to operate education and care service without nominated supervisor
161AOffence for nominated supervisor not to meet prescribed minimum requirements
162Offence to operate education and care service unless responsible person is present
162AChild protection training
163Offence relating to appointment or engagement of family day care co-ordinators
164Offence relating to assistance to family day care educators
164AOffence relating to the education and care of children by family day care service
165Offence to inadequately supervise children
166Offence to use inappropriate discipline
167Offence relating to protection of children from harm and hazards
168Offence relating to required programs
169Offence relating to staffing arrangements
170Offence relating to unauthorised persons on education and care service premises
171Offence relating to direction to exclude inappropriate persons from education and care service premises
172Offence to fail to display prescribed information
173Offence to fail to notify certain circumstances to Regulatory Authority
174Offence to fail to notify certain information to Regulatory Authority
174AFamily day care educator to notify certain information to approved provider
175Offence relating to requirement to keep enrolment and other documents
Part 7—Compliance with this Law
Division 1—Notices
176Compliance directions
177Compliance notices
178Notice to suspend education and care by a family day care educator
179Emergency action notices
Division 2—Enforceable undertakings
179AEnforceable undertakings
179BCertain actions prohibited while undertaking is in force
180Certain actions prohibited if undertaking is complied with
181Failure to comply with enforceable undertakings
Division 3—Prohibition notices
182Grounds for giving prohibition notice
183Show cause notice to be given before prohibition notice
184Deciding whether to give prohibition notice
185Content of prohibition notice
186Cancellation of prohibition notice
187Person must not contravene prohibition notice
188Offence to engage person to whom prohibition notice applies
188AFalse or misleading information about prohibition notice
Division 4—Emergency removal of children
189Emergency removal of children
Part 8—Review
Division 1—Internal review
190Reviewable decision—internal review
191Internal review of reviewable decisions
Division 2—External review
192Reviewable decision—external review
193Application for review of decision of the Regulatory Authority
Division 3—General
194Relationship with Act establishing administrative body
Part 9—Monitoring and Enforcement
Division 1—Authorised officers
195Authorisation of authorised officers
196Identity card
Division 2—Powers of entry
197Powers of entry for assessing and monitoring approved education and care service
198National Authority representative may enter service premises in company with Regulatory Authority
199Powers of entry for investigating approved education and care service
200Powers of entry to business premises
200AEntry to premises without search warrant
201Entry to premises with search warrant
202Seized items
203Court may extend period
Division 3—Other powers
204Power to require name and address
205Power to require evidence of age, name and address of person
206Power of authorised officers to obtain information documents and evidence
Division 4—Offences relating to enforcement
207Offence to obstruct authorised officer
208Offence to fail to assist authorised officer
209Offence to destroy or damage notices or documents
210Offence to impersonate authorised officer
211Protection against self incrimination
212Warning to be given
213Occupier's consent to search
Division 5—Powers of Regulatory Authority
214Powers of Regulatory Authority to obtain information for rating purposes
215Power of Regulatory Authority to obtain information, documents and evidence by notice
216Power of Regulatory Authority to obtain information, documents and evidence at education and care service
217Offence to fail to comply with notice or requirement
218Offence to hinder or obstruct Regulatory Authority
219Self incrimination not an excuse
Part 10—Ministerial Council
220Functions of Ministerial Council
221Powers of Ministerial Council
222Directions
223How Ministerial Council exercises powers
Part 11—Australian Children's Education and Care Quality Authority
Division 1—The National Authority
224National Authority
225Functions of National Authority
226National Authority may advise and seek guidance of Ministerial Council
227Powers of National Authority
228Co-operation with participating jurisdictions and Commonwealth
229National audit functions
Division 2—The Board of the National Authority
Subdivision 1—Establishment and responsibilities
230National Authority Board
231Responsibilities of Board
232Membership of Board
Subdivision 2—Members
233Terms of office of members
234Remuneration
235Vacancy in the office of member
236Acting positions
237Leave of absence
238Disclosure of conflict of interest
Subdivision 3—Procedure of Board
239General procedure
240Quorum
241Chief executive officer may attend meetings of the Board
242Presiding member
243Voting
244Defects in appointment of members
245Transaction of business by alternative means
246Delegation by Board
247Committees
Subdivision 4—Chief executive officer of the National Authority
248Chief executive officer
249Functions of chief executive officer
250Terms and conditions of appointment
251Remuneration
252Vacancy in office
253Resignation
254Termination of appointment
255Acting chief executive officer
256Disclosure of interests
Subdivision 5—Staff, consultants and contractors
257Staff of National Authority
258Staff seconded to National Authority
259Consultants and contractors
Part 12—Regulatory Authority
260Functions of Regulatory Authority
261Powers of Regulatory Authority
262Delegations
Part 13—Information, Records and Privacy
Division 1—Privacy
263Application of Commonwealth Privacy Act
Division 2—Application of Commonwealth FOI Act
264Application of Commonwealth FOI Act
Division 3—Application of New South Wales State Records Act
265Application of State Records Act
Division 4—Registers
266Register of approved providers
267Register of education and care services
269Register of family day care educators, co‑ordinators and assistants
Division 5—Publication of information
270Publication of information
Division 6—Disclosure of information
271Disclosure of information to other authorities
272Disclosure of information to approved providers
273Duty of confidentiality
Part 14—Miscellaneous
Division 1—Finance
274Australian Children's Education and Care Quality Authority Fund
275Payments into Authority Fund
276Payments out of Authority Fund
277Investment of money in Authority Fund
278Financial management duties of National Authority
Division 2—Reporting
279Annual report
280Tabling and publication of annual report
281Other reporting
Division 3—Application of Commonwealth Ombudsman Act
282Application of Commonwealth Ombudsman Act
Division 4—Legal proceedings
283Who may bring proceedings for an offence?
284When proceedings may be brought
285Offences by bodies corporate
286Application of Law to partnerships and eligible associations and other entities
287Multiple holders of an approval
288Double jeopardy
289Immunity
290Immunity—education law
291Infringement offences
292Evidentiary certificates
Division 5—Service of notices
293Service of notices
294Service by post
Division 6—False or misleading information
295False or misleading information or documents
Division 7—Protection from reprisal
296Definitions
297Protection from reprisal
298Proceedings for damages for reprisal
299Application for injunction or order
300Injunction or order
Division 8—National regulations
301National regulations
302Publication of national regulations
303Parliamentary scrutiny of national regulations
304Effect of disallowance of national regulation
Part 15—Transitional Provisions
Division 1—Introductory
305Definitions
Division 2—Education and care services
306Approved provider
307Service approvals
308Approved family day care venues
309Approval of declared out of scope services
310Application for service waiver or temporary waiver
311Existing applicants
312Existing multiple approvals to merge
313Display of accreditation and rating
314Effect of non-compliance in 3 years before scheme commencement day
315Certified supervisors
316Nominated supervisors
317Notices and undertakings
318Offences
Division 3—National Authority
319First meeting of National Authority
320First chief executive officer of National Authority
321First annual report of National Authority
Division 4—General
322Information retention and sharing
323Approved learning framework
324Savings and transitional regulations
Division 5—Transitional provisions—Education and Care Services National Law Amendment Act 2017
325Definitions
326Approved family day care venues
327Declared approved family day care venues continue to be approved
328Service approval condition requiring sufficient family day care co-ordinators
329Service approval condition requiring minimum number of family day care co‑ordinators
Division 6—Further transitional provisions—Education and Care Services National Law Amendment Act 2017
332Definitions
333Partial assessment and re-rating
334Application for highest rating level made before commencement day
335Highest rating level awarded before, or on application made before, commencement day
Division 7—Transitional provisions—Early Childhood Legislation Amendment Act 2022
336Transitional provision—notification of persons with management or control of an education and care service
337Transitional provision—assessment of provider approval applications
338Transitional provision—service waivers
339Transitional provision—temporary waivers
Division 8—Transitional provisions—Early Childhood Legislation Amendment (Premises Approval in Principle) Act 2023
340Transitional provision—approvals in principle—applications for service approval
__________________
SCHEDULES
SCHEDULE 1
SCHEDULE 2
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Endnotes
1 General information
2 Table of Amendments
3 Explanatory details
Version No. 021
Education and Care Services National Law Act 2010
No. 69 of 2010
Version incorporating amendments as at
1 October 2024
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purpose
The purpose of this Act is to create a National Law to regulate education and care services for children.
2Commencement
(1)This Act comes into operation on a day or days to be proclaimed.
(2)Different days may be proclaimed under subsection (1) for the commencement of different provisions of the Education and Care Services National Law set out in the Schedule.
3Definitions
(1)For the purposes of this Act, the local application provisions of this Act are the provisions of this Act other than the Education and Care Services National Law set out in the Schedule.
(2)In the local application provisions of this Act—
Child Safe Standards condition, in relation to a service approval granted in this jurisdiction, means the condition to which the service approval is subject pursuant to section 16C(1);
Education and Care Services National Law (Victoria) means the provisions applying in this jurisdiction because of section 4.
(3)Terms used in the local application provisions of this Act and also in the Education and Care Services National Law set out in the Schedule have the same meanings in those provisions as they have in that Law.
PART 2—ADOPTION OF NATIONAL LAW
4Adoption of Education and Care Services National Law
The Education and Care Services National Law set out in the Schedule—
(a)applies as a law of this jurisdiction; and
(b)as so applying may be referred to as the Education and Care Services National Law (Victoria); and
(c)as so applying, is part of this Act.
5Exclusion of legislation of this jurisdiction
(1)The following Acts of this jurisdiction do not apply to the Education and Care Services National Law (Victoria) or to the instruments made under that Law—
(a)the Freedom of Information Act 1982;
* * * * *
(c)the Interpretation of Legislation Act 1984;
(ca)the Privacy and Data Protection Act 2014;
(d)the Subordinate Legislation Act 1994.
(2)The following Acts of this jurisdiction do not apply to the Education and Care Services National Law (Victoria) or to the instruments made under that Law, except to the extent that that Law and those instruments apply to the Regulatory Authority and the employees, decisions, actions and records of the Regulatory Authority—
(a)the Audit Act 1994;
(b)the Financial Management Act 1994;
(c)the Ombudsman Act 1973;
(d)the Public Administration Act 2004;
(e)the Public Records Act 1973.
5AApplication 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.
6Meaning of generic terms in Education and Care Services National Law for the purposes of this jurisdiction
(1)In the Education and Care Services National Law (Victoria)—
child protection law means the Children, Youth and Families Act 2005, the Child Wellbeing and Safety Act 2005 and the Family Violence Protection Act 2008;
court means the Magistrates' Court of Victoria;
de facto relationship means—
(a)a registered domestic relationship; or
(b)a relationship between 2 people who are not married to each other but who are living together as a couple on a genuine domestic basis (irrespective of gender);
local authority means a municipal council;
magistrate means a magistrate within the meaning of the Magistrates' Court Act 1989;
public authority means a body established for a public purpose by or under an Act;
superior court means the Supreme Court of Victoria;
this jurisdiction means Victoria.
(2)For the purposes of the definition of de facto relationship in subsection (1)—
(a)registered domestic relationship has the same meaning as in the Relationships Act 2008;
(b)in determining whether persons who are not in a registered domestic relationship are in a domestic relationship, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
7Relevant tribunal or court
For the purposes of the definition of relevant tribunal or court in section 5 of the Education and Care Services National Law (Victoria)—
(a)the Magistrates' Court of Victoria is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 181 of that Law;
(b)VCAT is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Part 8 of that Law.
8Regulatory Authority
For the purposes of the definition of Regulatory Authority in section 5 of the Education and Care Services National Law (Victoria), the Secretary of the Department of Education and Training is declared to be the Regulatory Authority for this jurisdiction for the purposes of that Law.
9Children's services law
(1)For the purposes of the definition of children's services law in section 5 of the Education and Care Services National Law (Victoria), the Children's Services Act 1996 and the regulations made under that Act are declared to be a children's services law for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(2)For the purposes of the definition of children's services regulator in section 5 of the Education and Care Services National Law (Victoria), the Secretary of the Department of Education and Training is declared to be a children's services regulator for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
10Education law
For the purposes of the definition of education law in section 5 of the Education and Care Services National Law (Victoria), the Education and Training Reform Act 2006 and the regulations made under that Act are declared to be an education law for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
11Former education and care services law
For the purposes of the definition of former education and care services law in section 5 of the Education and Care Services National Law (Victoria), the Children's Services Act 1996 and the regulations made under that Act (both as in force before the commencement of Part 3 of the Education and Care Services National Law (Victoria) are declared to be a former education and care services law for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
12Infringements law
(1)For the purposes of the definition of infringements law in section 5 of the Education and Care Services National Law (Victoria), the Infringements Act 2006 and the regulations made under that Act are declared to be an infringements law for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(2)For the purposes of the definition of infringements law in section 5 of the Education and Care Services National Law (Victoria), the Fines Reform Act 2014 and the regulations made under that Act are declared, for the purpose of enforcing an infringement notice, to be an infringements law for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
13Public sector law
For the purposes of the definition of public sector law in section 5 of the Education and Care Services National Law (Victoria), the Public Administration Act 2004 and the regulations made under that Act are declared to be a public sector law for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
14Working with children law
For the purposes of the definition of working with children law in section 5 of the Education and Care Services National Law (Victoria), the Worker Screening Act 2020 to the extent that it relates to working with children and the regulations made under that Act are declared to be a working with children law for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
15Part 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.
16Transitional
(1)For the purposes of the definition of declared approved family day care service in section 305 of the Education and Care Services National Law (Victoria), a service to which a licence to operate a family day care service applied under the Children's Services Act 1996 is declared to be a declared approved family day care service for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(2)For the purposes of the definition of declared approved family day care venue in section 305 of the Education and Care Services National Law (Victoria), a family day care venue approved under section 25J or 25L of the Children's Services Act 1996 is declared to be a declared approved family day care venue for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(3)For the purposes of the definition of declared approved provider in section 305 of the Education and Care Services National Law (Victoria), a person who held a licence under the Children's Services Act 1996 to operate a service declared under subsection (4) to be a declared approved service is declared to be a declared approved provider for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(4)Subject to subsection (4A), for the purposes of the definition of declared approved service in section 305 of the Education and Care Services National Law (Victoria), an outside school hours care Type 1 or Type 2 service, an integrated service, a family day care service or a standard service under the Children's Services Act 1996 is declared to be a declared approved service for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(4A)A service is not a declared approved service if it is, or to the extent that it is—
(a)a standard service excluded by the regulations; or
(b)a service that provides education and care for no more than 4 weeks per calendar year during school holidays; or
(c)a limited hours Type 1 or Type 2 service or a short term Type 1 or Type 2 service under the Children's Services Act 1996.
(5)For the purposes of the definition of declared certified supervisor in section 305 of the Education and Care Services National Law (Victoria), a person who was a primary nominee or approved nominee under the Children's Services Act 1996 of a declared approved service is declared to be a declared certified supervisor for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(6)For the purposes of the definition of declared compliance notice in section 305 of the Education and Care Services National Law (Victoria), an order or a notice issued under section 43 or 43A of the Children's Services Act 1996 is declared to be a declared compliance notice for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(7)For the purposes of the definition of declared nominated supervisor in section 305 of the Education and Care Services National Law (Victoria), a person who was a primary nominee under the Children's Services Act 1996 of a declared approved service is declared to be a declared nominated supervisor for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
(8)For the purposes of the definition of former approval in section 305 of the Education and Care Services National Law (Victoria), a licence under the Children's Services Act 1996 to operate a service declared under subsection (4) to be a declared approved service is declared to be a former approval for this jurisdiction for the purposes of the Education and Care Services National Law (Victoria).
PART 2A—COMPLIANCE WITH CHILD SAFE STANDARDS
16ADefinitions
In this Part—
Child Safe Standards has the same meaning as in the Child Wellbeing and Safety Act 2005;
Commission for Children and Young People means the Commission for Children and Young People established by section 6 of the Commission for Children and Young People Act 2012;
integrated sector regulator has the same meaning as in the Child Wellbeing and Safety Act 2005;
relevant entity means an approved provider of an approved education and care service located in this jurisdiction;
sector regulator has the same meaning as in the Child Wellbeing and Safety Act 2005.
16BFunctions of the Regulatory Authority as integrated sector regulator
(1)The Regulatory Authority, as an integrated sector regulator, has the following functions in this jurisdiction—
(a)in relation to a relevant entity—
(i)to provide education, information and advice on the Child Safe Standards to promote consistency in child safety outcomes; and
(ii)to collect, analyse and publish information and data regarding compliance with the Child Safe Standards by relevant entities; and
(iii)to promote continuous improvement by relevant entities in relation to the safety of children, the prevention of child abuse and the proper response to allegations of child abuse;
(b)to collaborate with persons and bodies in relation to the safety of children and compliance with the Child Safe Standards;
(c)to work collaboratively with the Commission for Children and Young People, sector regulators and other integrated sector regulators in relation to the safety of children and compliance with the Child Safe Standards.
(2)Without limiting subsection (1)(b), the Regulatory Authority may collaborate with persons and bodies with functions or powers under a law of another State, a Territory or the Commonwealth relating to the monitoring or enforcement of compliance with standards (however described) that correspond to the Child Safe Standards.
(3)The Regulatory Authority may—
(a)give information to persons and bodies in relation to the safety of children and compliance with the Child Safe Standards; and
(b)give information to persons and bodies with functions or powers under a law of another State, a Territory or the Commonwealth relating to the monitoring or enforcement of compliance with standards (however described) that correspond to the Child Safe Standards; and
(c)give information and data mentioned in subsection (1)(a)(ii) to the Commission for Children and Young People.
(4)In carrying out its functions under subsection (1) or doing any thing referred to in subsection (3) in respect of a relevant entity, the Regulatory Authority must consider the most effective means of promoting compliance by the relevant entity with the Child Safe Standards.
16CModification of Education and Care Services National Law (Victoria)—Child Safe Standards condition
(1)The Education and Care Services National Law (Victoria) applies as a law of this jurisdiction as if before section 51(5) of that Law there were inserted—
"(4C)A service approval granted in this jurisdiction is subject to the condition that the approved provider must ensure that the education and care service is operated in a way that complies with the Child Safe Standards.".
Note
The Regulatory Authority may perform its functions under section 260 of the Education and Care Services National Law (Victoria) in relation to whether there has been compliance with the condition imposed on a service approval pursuant to subsection (1).
(2)For the purposes of subsection (1), a reference in the Education and Care Services National Law (Victoria) to a condition of a service approval granted in this jurisdiction is to be read as if it includes a reference to the Child Safe Standards condition.
16DModification of Education and Care Services National Law (Victoria)—enforcement by Regulatory Authority of Child Safe Standards condition
The Education and Care Services National Law (Victoria) applies as a law of this jurisdiction as if after section 260 of that Law there were inserted—
"260A Regulatory Authority's enforcement and compliance function in relation to Child Safe Standards condition
(1)In carrying out its function under section 260(c) in relation to an approved provider that is granted a service approval in this jurisdiction that is subject to the Child Safe Standards condition, the Regulatory Authority must consider the most effective means of promoting compliance by the approved provider with the Child Safe Standards condition.
(2)In this section—
Child Safe Standards condition means the condition subject to which a service approval is granted in this jurisdiction pursuant to section 16C(1) of the Education and Care Services National Law Act 2010.".
16EModification of Education and Care Services National Law (Victoria)—function of the National Authority with respect to support and training of Regulatory Authority staff
The Education and Care Services National Law (Victoria) applies as a law of this jurisdiction as if after section 225(1)(o) of that Law there were inserted—
"(oa)in relation to staff of the Regulatory Authority, to provide support and training other than in relation to monitoring and enforcing compliance with the Child Safe Standards condition, meaning the condition subject to which a service approval is granted in this jurisdiction pursuant to section 16C(1) of the Education and Care Services National Law Act 2010;".
16FModification of Education and Care Services National Law (Victoria)—references to the Law and its application to the Child Safe Standards condition
(1)Subject to subsection (3), a reference in the Education and Care Services National Law (Victoria) to "this Law", or the Law as it applies in a participating jurisdiction, includes a reference to the Education and Care Services National Law (Victoria) as modified under section 16C(1).
(2)Subject to subsection (4), a reference in the Education and Care Services National Law (Victoria) to the National Quality Framework includes a reference to the Education and Care Services National Law (Victoria) as modified under section 16C(1).
Note
The National Quality Framework includes the Education and Care Services National Law (Victoria). See definition of national education and care services quality framework in section 5(1) of the Education and Care Services National Law (Victoria).
(3)A reference in the following provisions of the Education and Care Services National Law (Victoria) to "this Law" does not include a reference to the Education and Care Services National Law (Victoria) as modified by subsection (1)—
(a)section 135;
(b)section 150;
(c)section 220;
(d)section 221;
(e)section 222;
(f)section 223;
(g)section 225(1)(n);
(h)section 226;
(i)section 231;
(j)section 249;
(k)section 282.
(4)A reference in the following provisions of the Education and Care Services National Law (Victoria) to the National Quality Framework does not include a reference to the Education and Care Services National Law (Victoria) as modified by subsection (2)—
(a)section 220;
(b)section 222;
(c)section 225(1)(b), (k), (l)(ii) and (m);
(d)section 227(2)(b);
(e)section 231;
(f)section 249.
PART 3—MISCELLANEOUS
17Power to fund education and care services and associated children's services
The Regulatory Authority may provide grants, payments, subsidies or other financial assistance to any person providing or operating an approved education and care service or an associated children's service from funds administered by the Regulatory Authority for that purpose on terms and conditions that the Regulatory Authority considers appropriate.
18Regulations modifying references to the Law and National Quality Framework in national regulations in relation to Child Safe Standards condition
(1)The Governor in Council may make regulations for or with respect to—
(a)the modification of references to the "Law" or the "National Quality Framework" in the national regulations in relation to the Child Safe Standards condition;
(b)the application of the national regulations as a law of this jurisdiction subject to modifications referred to in paragraph (a).
(2)The regulations may—
(a)be of general or limited application;
(b)differ according to differences in time, place or circumstances.
19Transitional provision—Integrated licences including limited hours services
(1)This section applies in respect of a licence under the Children's Services Act 1996 to operate an integrated service that includes a limited hours Type 1 or Type 2 service.
(2)The licensee for the service may notify the Secretary in writing that, on and from the scheme commencement day, the limited hours service is to be included in a service approval under the Education and Care Services National Law (Victoria) as an associated children's service within the meaning of the Education and Care Services National Law (Victoria).
(3)Any service approval provided under section 307(9) of the Education and Care Services National Law (Victoria) must include the associated children's service.
(4)In this section—
scheme commencement day has the meaning given in section 305 of the Education and Care Services National Law (Victoria).
20Transitional provision—Early Childhood Legislation Amendment Act 2022
On and after the commencement of section 4 of the Early Childhood Legislation Amendment Act 2022, the following service approvals are subject to the Child Safe Standards condition—
(a)a service approval granted in this jurisdiction that is in force immediately before the commencement of that section 4;
(b)a service approval granted in this jurisdiction that is suspended under section 72 or 85 of the Education and Care Services National Law (Victoria) immediately before the commencement of that section 4.
SCHEDULE
EDUCATION AND CARE SERVICES NATIONAL LAW
PART 1—PRELIMINARY
1Short title
This Law may be cited as the Education and Care Services National Law.
2Commencement
This Law commences in a participating jurisdiction as provided under the Act of that jurisdiction that applies this Law as a law of that jurisdiction.
3Objectives 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.
4How 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.
5Definitions
(1)In this Law—
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;
approved education and care service means an education and care service for which a service approval exists;
approved family day care service means an approved education and care service that is a family day care service;
approved family day care venue means a place (other than a residence) approved under section 50A or 54(8A) as a family day care venue for an approved family day care service;
approved learning framework means a learning framework approved by the Ministerial Council;
approved provider means a person who holds a provider approval;
associated children's service means a children's service that is operated or intended to be operated by an approved provider at the same place as an approved education and care service;
Australian Accounting Standards means the standards issued or pronounced by the Australian Accounting Standards Board;
authorised officer means a person authorised to be an authorised officer under Part 9;
Authority Fund means the Australian Children's Education and Care Quality Authority Fund established under section 274;
Board means the Australian Children's Education and Care Quality Authority Board established under this Law;
* * * * *
chief executive officer means the chief executive officer of the National Authority appointed under this Law;
children's service means a service providing or intended to provide education and care on a regular basis to children under 13 years of age that is primarily regulated under a children's services law of a participating jurisdiction and is not an education and care service;
children's services law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a children's services law for the purposes of this Law;
children's services regulator, in relation to a participating jurisdiction, means a person declared by a law of that jurisdiction to be the children's services regulator for the purposes of this Law;
Commonwealth Minister means the Minister of the Commonwealth who is responsible for policies and programs relating to education and care services;
compliance direction means a compliance direction under section 176;
compliance notice means a compliance notice under section 177;
education and care service means any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than—
(a)a school providing full-time education to children, including children attending in the year before grade 1 but not including a preschool program delivered in a school or a preschool that is registered as a school; or
(b)a preschool program delivered in a school if—
(i)the program is delivered in a class or classes where a full-time education program is also being delivered to school children; and
(ii)the program is being delivered to fewer than 6 children in the school; or
(c)a personal arrangement; or
(d)a service principally conducted to provide instruction in a particular activity; or
Example
Instruction in a particular activity could be instruction in sport, dance, music, culture or language or religious instruction.
(e)a service providing education and care to patients in a hospital or patients of a medical or therapeutic care service; or
(f)care provided under a child protection law of a participating jurisdiction; or
(g)a prescribed class of disability service; or
(h)a service of a prescribed class;
Example
Education and care services to which this Law applies include long day care services, family day care services, outside school hours services and preschool programs including those delivered in schools, unless expressly excluded.
education and care service premises means—
(a)in relation to an education and care service other than a family day care service, each place at which an education and care service operates or is to operate; or
(b)in relation to a family day care service—
(i)an office of the family day care service; or
(ii)an approved family day care venue; or
(iii)each part of a residence used to provide education and care to children as part of a family day care service or used to provide access to the part of the residence used to provide that education and care;
education law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be an education law for the purposes of this Law;
educator means an individual who provides education and care for children as part of an education and care service;
eligible association means an association of a prescribed class;
family day care co-ordinator means a person employed or engaged by an approved provider of a family day care service to monitor and support the family day care educators who are part of the service;
family day care educator means an educator engaged by or registered with a family day care service to provide education and care for children in a residence or at an approved family day care venue;
family day care educator assistant means a person engaged by or registered with a family day care service to assist family day care educators;
family day care residence means a residence at which a family day care educator educates and cares for children as part of a family day care service;
family day care service means an education and care service that—
(a)is delivered through the use of 2 or more educators to provide education and care to children; and
(b)operates from 2 or more residences;
Note
A family day care service that is an approved family day care service may provide education and care to children from a family day care residence or an approved family day care venue.
family member, in relation to a child, means—
(a)a parent, grandparent, brother, sister, uncle, aunt, or cousin of the child, whether of the whole blood or half-blood and whether that relationship arises by marriage (including a de facto relationship) or by adoption or otherwise; or
(b)a relative of the child according to Aboriginal or Torres Strait Islander tradition; or
(c)a person with whom the child resides in a family-like relationship; or
(d)a person who is recognised in the child's community as having a familial role in respect of the child;
former education and care services law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a former education and care services law for the purposes of this Law;
grade 1, in relation to a school, means the first year of compulsory full-time schooling;
guardian, in relation to a child, means the legal guardian of the child;
infringements law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be an infringements law for the purposes of this Law;
mandatory approval in principle jurisdiction means a Part 4 jurisdiction in which section 49A of this Law applies;
Note
See section 49A.
Ministerial Council means a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters under this Law;
National Authority means the Australian Children's Education and Care Quality Authority established under this Law;
national education and care services quality framework means—
(a)this Law; and
(b)the national regulations; and
(c)the National Quality Standard; and
(d)the prescribed rating system;
National Partnership Agreement means the National Partnership Agreement on the National Quality Agenda for Early Childhood and Care entered into by the States and Territories and the Commonwealth on 7 December 2009, as amended from time to time;
National Quality Framework means the national education and care services quality framework;
National Quality Standard means the National Quality Standard prescribed by the national regulations;
national regulations means the regulations made under this Law;
nominated supervisor, in relation to an education and care service, means an individual who—
(a)is nominated by the approved provider of the service under Part 3 to be a nominated supervisor of that service; and
(b)unless the individual is the approved provider, has provided written consent to that nomination;
Note
An individual may be both a nominated supervisor of a family day care service and a family day care co‑ordinator for that service if the individual meets the criteria for each role.
office, in relation to a family day care service, means—
(a)the principal office of the service; or
(b)the principal office of the approved provider of the service; or
(c)any other business office of the approved provider of the service; or
(d)any premises of the service from which the service's family day care educators are co-ordinated;
parent, in relation to a child, includes—
(a)a guardian of the child; and
(b)a person who has parental responsibility for the child under a decision or order of a court;
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;
participating jurisdiction means a State or Territory in which—
(a)this Law applies as a Law of the State or Territory; or
(b)a law that substantially corresponds to the provisions of this Law has been enacted;
payment, in relation to a prescribed fee, includes payment by electronic or other means;
person means—
(a)an individual; or
(b)a body corporate; or
(c)an eligible association; or
(d)a partnership; or
(e)a prescribed entity;
person in day-to-day charge, in relation to an education and care service, means a person who is placed in day-to-day charge of the service in accordance with the national regulations;
person with management or control means a person referred to in section 5A;
personal arrangement means education and care provided to a child—
(a)by a family member or guardian of a child personally, otherwise than as a staff member of, or under an engagement with, a service providing education and care on a regular basis to children under 13 years of age; or
(b)by a friend of the family of the child personally under an informal arrangement where no offer to provide that education and care was advertised;
preschool program means an early childhood educational program delivered by a qualified early childhood teacher to children in the year that is 2 years before grade 1 of school;
prescribed ineligible person means a person in a class of persons prescribed by the national regulations to be prescribed ineligible persons;
prohibition notice means a prohibition notice given under section 182(1) or 182(3);
protected disclosure—see section 296;
provider approval means a provider approval—
(a)granted under Part 2 of this Law or this Law as applying in another participating jurisdiction; and
(b)as amended under this Law or this Law as applying in another participating jurisdiction—
but does not include a provider approval that has been cancelled;
public sector law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a public sector law for the purposes of this Law;
rating assessment means an assessment or reassessment of an approved education and care service under Part 5;
Ratings Review Panel means a Ratings Review Panel established under section 146;
receiving approved provider has the meaning set out in section 58;
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;
relevant Commonwealth Department means the government department administered by the Commonwealth Minister;
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;
residence means the habitable areas of a dwelling;
school children includes children attending school in the year before grade 1;
school means—
(a)a government school; or
(b)a non-government school that is registered or accredited under an education law of a participating jurisdiction;
serious detrimental action—see section 296;
serious incident means an incident or class of incidents prescribed by the national regulations as a serious incident;
service approval means a service approval—
(a)granted under Part 3 of this Law or this Law as applying in another participating jurisdiction; and
(b)as amended under this Law or this Law as applying in another participating jurisdiction—
but does not include a service approval that has been cancelled;
staff member, in relation to an education and care service, means any individual (other than a nominated supervisor or a volunteer) employed, appointed or engaged to work in or as part of an education and care service, whether as family day care co-ordinator, educator or otherwise;
* * * * *
transferring approved provider has the meaning set out in section 58;
working with children card means a card issued to a person under a working with children law of a participating jurisdiction that permits that person to work with children;
working with children check means a notice, certificate or other document granted to, or with respect to, a person under a working with children law to the effect that—
(a)the person has been assessed as suitable to work with children; or
(b)there has been no information that if the person worked with children the person would pose a risk to the children; or
(c)the person is not prohibited from attempting to obtain, undertake or remain in child-related employment;
working with children law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a working with children law for the purposes of this Law;
working with vulnerable people law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a working with vulnerable people law for the purposes of this Law.
(2)In this Law, a reference (either generally or specifically) to a law or a provision of a law (including this Law) includes a reference to the statutory instruments made or in force under the law or provision.
(3)In this Law a reference to education and care includes a reference to education or care.
(4)In this Law, an education and care service as defined in subsection (1) is an education and care service even if the service also provides education and care to children of or over the age of 13 years.
(5)In this Law, a children's service as defined in subsection (1) is a children's service even if the service also provides education and care to children of or over the age of 13 years.
(6)In this Law, a reference to this Law as applying in a jurisdiction includes a reference to a law that substantially corresponds to this Law enacted in a jurisdiction.
5AMeaning of person with management or control
For the purposes of this Law, each of the following persons is a person with management or control of an education and care service—
(a)if the provider or intended provider of the service is a body corporate—
(i)an officer (within the meaning of the Corporations Act 2001 of the Commonwealth) of the body corporate who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and
(ii)any other person who—
(A)is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or
(B)has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service;
(b)if the provider or intended provider of the service is an eligible association—
(i)each member of the executive committee of the association who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and
(ii)any other person who—
(A)is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or
(B)has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service;
(c)if the provider or intended provider of the service is a partnership—
(i)each partner who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and
(ii)any other person who—
(A)is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or
(B)has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service;
(d)in any other case, any person who—
(i)is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or
(ii)has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service.
6Interpretation generally
(1)Schedule 1 applies in relation to this Law.
(2)The National Partnership Agreement is declared to be a relevant document for the purposes of paragraph (h) of the definition of extrinsic material in clause 8(1) of Schedule 1.
7Single national entity
(1)It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of other participating jurisdictions, has the effect that an entity established by this Law is one single national entity, with functions conferred by this Law as so applied.
(2)An entity established by this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction.
(3)An entity established by this Law may exercise its functions in relation to—
(a)one participating jurisdiction; or
(b)2 or more or all participating jurisdictions collectively.
* * * * *
8Extraterritorial operation of Law
It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following—
(a)things situated in or outside the territorial limits of this jurisdiction;
(b)acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;
(c)things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.
9Law binds the State
(1)This Law binds the State.
(2)In this section—
State means the Crown in right of this jurisdiction, and includes—
(a)the Government of this jurisdiction; and
(b)a Minister of the Crown in right of this jurisdiction; and
(c)a statutory corporation, or other entity, representing the Crown in right of this jurisdiction.
__________________
PART 2—PROVIDER APPROVAL
Division 1—Application for provider approval
10Application for provider approval
(1)A person, other than a prescribed ineligible person, may apply to the Regulatory Authority for a provider approval.
(2)An application may be made by more than one person.
(3)If an application is made by more than one person—
(a)the prescribed information must be provided in respect of each person; and
(b)the requirements of this Division must be complied with by and in respect of each person.
11Form of application
An application under section 10 must—
(a)be made to the Regulatory Authority of the participating jurisdiction—
(i)in which the applicant, or any of the applicants, is ordinarily resident; or
(ii)if the applicant or applicants are not individuals, in which the principal office of the applicant or any of the applicants is located; and
(b)be in writing; and
(c)include the prescribed information; and
(d)include payment of the prescribed fee.
12Applicant must be fit and proper person
(1)An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service.
(2)If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that—
(a)each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and
(b)the applicant is a fit and proper person to be involved in the provision of an education and care service.
(3)The head of a government department administering an education law of a participating jurisdiction is taken to be a fit and proper person for the purposes of this Part.
13Matters to be taken into account in assessing whether fit and proper person
(1)In determining whether a person is a fit and proper person under this Division, the Regulatory Authority must have regard to—
(a)the person's history of compliance with—
(i)this Law as applying in any participating jurisdiction; and
(ii)a former education and care services law of a participating jurisdiction; and
(iii)a children's services law of a participating jurisdiction; and
(iv)an education law of a participating jurisdiction; and
Note
If a person has been served with an infringement notice for an offence under this Law, and the person has paid the penalty, the Regulatory Authority cannot consider that conduct when determining whether the person is fit and proper. See section 291(5).
(b)any decision under a former education and care services law, a children's services law or an education law of a participating jurisdiction to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification or other authorisation granted to the person under that law; and
(c)either—
(i)any prescribed matters relating to the criminal history of the person to the extent that history may affect the person's suitability for the role of provider of an education and care service; or
(ii)any check of the person under a working with vulnerable people law of a participating jurisdiction; and
(d)whether the person is bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors or, in the case of a body corporate, is insolvent under administration or an externally-administered body corporate.
(2)Without limiting subsection (1), the Regulatory Authority may have regard to—
(a)whether the person has a medical condition that may cause the person to be incapable of being responsible for providing an education and care service in accordance with this Law; and
(b)whether the financial circumstances of the person may significantly limit the person's capacity to meet the person's obligations in providing an education and care service in accordance with this Law; and
(c)whether the person has the management capability to operate an education and care service in accordance with this Law; and
(d)any of the following actions taken under the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth in relation to a child care service approved under that Act, operated by the person or in relation to which the person was a person with management or control—
(i)any sanction imposed under
section 195H of that Act;
(ii)any suspension imposed under section 197A of that Act;
(iii)any infringement notice given under section 219WA of that Act.
(3)Nothing in subsection (1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service.
14Regulatory Authority may seek further information
(1)For the purpose of carrying out an assessment as to whether a person is a fit and proper person, the Regulatory Authority may—
(a)ask the person to provide further information, including for the purposes of assessing the person's knowledge of the National Quality Framework; and
(b)undertake inquiries in relation to the person; and
(c)by written notification, require the person to undergo an oral or written assessment of the person's knowledge of the National Quality Framework.
(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 15 for the Regulatory Authority to make a decision on the application.
(3)If the Regulatory Authority requires the applicant to undergo an assessment under this section, the period from the giving of the notification until the conduct of the assessment is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application.
15Grant or refusal of provider approval
(1)On an application under section 10, the Regulatory Authority may—
(a)grant the provider approval; or
(b)refuse to grant the provider approval.
Note
A provider approval is granted subject to conditions in accordance with section 19.
(2)The Regulatory Authority must not grant a provider approval unless the Authority is satisfied as to the matters in section 12.
(3)Subject to subsection (4), the Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application.
Notes
1. If further information is requested under section 14(1)(a), the period between the making of the request and the provision of the information is not included in the 60 day period.
2. If an assessment is required under section 14(1)(c), the period between the giving of the notification and the conduct of the assessment is not included in the 60 day period.
(4)The period referred to in subsection (3) may be extended by up to 30 days with the agreement of the applicant.
(5)The Regulatory Authority is taken to have refused to grant a provider approval if the Regulatory Authority has not made a decision under subsection (1)—
(a)within the relevant period required under subsection (3); or
(b)within the period extended under subsection (4)—
as the case requires.
16Notice of decision on application
The Regulatory Authority must give written notice to the applicant of a decision under section 15 and the reasons for that decision within 7 days after the decision is made.
(a)to produce the information or a document containing the information to a court, tribunal or person; or
(b)to make a document containing the information available for inspection by a court, tribunal or person;
then, unless the court, tribunal or person otherwise directs—
(c)the requirement obliges the person to produce or make available for inspection, as the case may be, a document that reproduces the information in a form capable of being understood by the court, tribunal or person; and
(d)the production to the court, tribunal or person of the document in that form complies with the requirement.
18References to this jurisdiction to be implied
In this Law—
(a)a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for this jurisdiction; and
(b)a reference to a locality or other matter or thing is a reference to such a locality or other matter or thing in and of this jurisdiction.
19References to officers and holders of offices
In this Law, a reference to a particular officer, or to the holder of a particular office, includes a reference to the person for the time being occupying or acting in the office concerned.
20Reference to certain provisions of Law
If a provision of this Law refers—
(a)to a Part, section or Schedule by a number and without reference to this Law—the reference is a reference to the Part, section or Schedule, designated by the number, of or to this Law; or
(b)to a Schedule without reference to it by a number and without reference to this Law—the reference, if there is only one Schedule to this Law, is a reference to the Schedule; or
(c)to a Division, Subdivision, subsection, paragraph, subparagraph, sub-subparagraph, clause, subclause, item, column, table or form by a number and without reference to this Law—the reference is a reference to—
(i)the Division, designated by the number, of the Part in which the reference occurs; and
(ii)the Subdivision, designated by the number, of the Division in which the reference occurs; and
(iii)the subsection, designated by the number, of the section in which the reference occurs; and
(iv)the paragraph, designated by the number, of the section, subsection, Schedule or other provision in which the reference occurs; and
(v)the paragraph, designated by the number, of the clause, subclause, item, column, table or form of or in the Schedule in which the reference occurs; and
(vi)the subparagraph, designated by the number, of the paragraph in which the reference occurs; and
(vii)the sub-subparagraph, designated by the number, of the subparagraph in which the reference occurs; and
(viii)the section, clause, subclause, item, column, table or form, designated by the number, of or in the Schedule in which the reference occurs;
as the case requires.
21Reference to provisions of this Law or an Act is inclusive
In this Law, a reference to a portion of this Law or an Act includes—
(a)a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Law or the Act referred to that forms the beginning of the portion; and
(b)a reference to the Chapter, Part, Division, Subdivision, section, subsection or other provision of this Law or the Act referred to that forms the end of the portion.
Example.
A reference to "sections 5 to 9" includes both section 5 and section 9.
It is not necessary to refer to "sections 5 to 9 (both inclusive)" to ensure that the reference is given an inclusive interpretation.
Part 4Functions and powers
22Performance of statutory functions
(1)If this Law confers a function or power on a person or body, the function may be performed, or the power may be exercised, from time to time as occasion requires.
(2)If this Law confers a function or power on a particular officer or the holder of a particular office, the function may be performed, or the power may be exercised, by the person for the time being occupying or acting in the office concerned.
(3)If this Law confers a function or power on a body (whether or not incorporated), the performance of the function, or the exercise of the power, is not affected merely because of vacancies in the membership of the body.
23Power to make instrument or decision includes power to amend or repeal
If this Law authorises or requires the making of an instrument or decision—
(a)the power includes power to amend or repeal the instrument or decision; and
(b)the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.
24Matters for which statutory instruments may make provision
(1)If this Law authorises or requires the making of a statutory instrument in relation to a matter, a statutory instrument made under this Law may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of—
(a)an Act or statutory instrument; or
(b)another document (whether of the same or a different kind);
as in force at a particular time or as in force from time to time.
(2)If a statutory instrument applies, adopts or incorporates the provisions of a document, the statutory instrument applies, adopts or incorporates the provisions as in force from time to time, unless the statutory instrument otherwise expressly provides.
(3)A statutory instrument may—
(a)apply generally throughout this jurisdiction or be limited in its application to a particular part of this jurisdiction; or
(b)apply generally to all persons, matters or things or be limited in its application to—
(i)particular persons, matters or things; or
(ii)particular classes of persons, matters or things; or
(c)otherwise apply generally or be limited in its application by reference to specified exceptions or factors.
(4)A statutory instrument may—
(a)apply differently according to different specified factors; or
(b)otherwise make different provision in relation to—
(i)different persons, matters or things; or
(ii)different classes of persons, matters or things.
(5)A statutory instrument may authorise a matter or thing to be from time to time determined, applied or regulated by a specified person or body.
(6)If this Law authorises or requires a matter to be regulated by statutory instrument, the power may be exercised by prohibiting by statutory instrument the matter or any aspect of the matter.
(7)If this Law authorises or requires provision to be made with respect to a matter by statutory instrument, a statutory instrument made under this Law may make provision with respect to a particular aspect of the matter despite the fact that provision is made by this Law in relation to another aspect of the matter or in relation to another matter.
(8)A statutory instrument may provide for the review of, or a right of appeal against, a decision made under the statutory instrument, or this Law, and may, for that purpose, confer jurisdiction on any court, tribunal, person or body.
(9)A statutory instrument may require a form prescribed by or under the statutory instrument, or information or documents included in, attached to or given with the form, to be verified by statutory declaration.
25Presumption of validity and power to make
(1)All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.
(2)A statutory instrument is taken to be made under all powers under which it may be made, even though it purports to be made under this Law or a particular provision of this Law.
26Appointments may be made by name or office
(1)If this Law authorises or requires a person or body—
(a)to appoint a person to an office; or
(b)to appoint a person or body to exercise a power; or
(c)to appoint a person or body to do another thing;
the person or body may make the appointment by—
(d)appointing a person or body by name; or
(e)appointing a particular officer, or the holder of a particular office, by reference to the title of the office concerned.
(2)An appointment of a particular officer, or the holder of a particular office, is taken to be the appointment of the person for the time being occupying or acting in the office concerned.
27Acting appointments
(1)If this Law authorises a person or body to appoint a person to act in an office, the person or body may, in accordance with this Law, appoint—
(a)a person by name; or
(b)a particular officer, or the holder of a particular office, by reference to the title of the office concerned;
to act in the office.
(2)The appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment.
(3)The appointer may—
(a)determine the terms and conditions of the appointment, including remuneration and allowances; and
(b)terminate the appointment at any time.
(4)The appointment, or the termination of the appointment, must be in, or evidenced by, writing signed by the appointer.
(5)The appointee must not act for more than 1 year during a vacancy in the office.
(6)If the appointee is acting in the office otherwise than because of a vacancy in the office and the office becomes vacant, then, subject to subclause (2), the appointee may continue to act until—
(a)the appointer otherwise directs; or
(b)the vacancy is filled; or
(c)the end of a year from the day of the vacancy;
whichever happens first.
(7)The appointment ceases to have effect if the appointee resigns by writing signed and delivered to the appointer.
(8)While the appointee is acting in the office—
(a)the appointee has all the powers and functions of the holder of the office; and
(b)this Law and other laws apply to the appointee as if the appointee were the holder of the office.
(9)Anything done by or in relation to a person purporting to act in the office is not invalid merely because—
(a)the occasion for the appointment had not arisen; or
(b)the appointment had ceased to have effect; or
(c)the occasion for the person to act had not arisen or had ceased.
(10)If this Law authorises the appointer to appoint a person to act during a vacancy in the office, an appointment to act in the office may be made by the appointer whether or not an appointment has previously been made to the office.
28Powers of appointment imply certain incidental powers
(1)If this Law authorises or requires a person or body to appoint a person to an office—
(a)the power may be exercised from time to time as occasion requires; and
(b)the power includes—
(i)power to remove or suspend, at any time, a person appointed to the office; and
(ii)power to appoint another person to act in the office if a person appointed to the office is removed or suspended; and
(iii)power to reinstate or reappoint a person removed or suspended; and
(iv)power to appoint a person to act in the office if it is vacant (whether or not the office has ever been filled); and
(v)power to appoint a person to act in the office if the person appointed to the office is absent or is unable to discharge the functions of the office (whether because of illness or otherwise).
(2)The power to remove or suspend a person under subclause (1)(b) may be exercised even if this Law provides that the holder of the office to which the person was appointed is to hold office for a specified period.
(3)The power to make an appointment under subclause (1)(b) may be exercised from time to time as occasion requires.
(4)An appointment under subclause (1)(b) may be expressed to have effect only in the circumstances specified in the instrument of appointment.
29Delegation of functions
(1)If this Law authorises a person or body to delegate a function, the person or body may, in accordance with this Law and any other applicable law, delegate the function to—
(a)a person or body by name; or
(b)a specified officer, or the holder of a specified office, by reference to the title of the office concerned.
(2)The delegation may be—
(a)general or limited; and
(b)made from time to time; and
(c)revoked, wholly or partly, by the delegator.
(3)The delegation, or a revocation of the delegation, must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for the purpose.
(4)A delegated function may be exercised only in accordance with any conditions to which the delegation is subject.
(5)The delegate may, in the performance of a delegated function, do anything that is incidental to the delegated function.
(6)A delegated function that purports to have been exercised by the delegate is taken to have been properly exercised by the delegate unless the contrary is proved.
(7)A delegated function that is properly exercised by the delegate is taken to have been exercised by the delegator.
(8)If, when exercised by the delegator, a function is dependent on the delegator's opinion, belief or state of mind, then, when exercised by the delegate, the function is dependent on the delegate's opinion, belief or state of mind.
(9)If—
(a)the delegator is a specified officer or the holder of a specified office; and
(b)the person who was the specified officer or holder of the specified office when the delegation was made ceases to be the holder of the office;
then—
(c)the delegation continues in force; and
(d)the person for the time being occupying or acting in the office concerned is taken to be the delegator for the purposes of this clause.
(10)If—
(a)the delegator is a body; and
(b)there is a change in the membership of the body;
then—
(c)the delegation continues in force; and
(d)the body as constituted for the time being is taken to be the delegator for the purposes of this clause.
(11)If a function is delegated to a specified officer or the holder of a specified office—
(a)the delegation does not cease to have effect merely because the person who was the specified officer or the holder of the specified office when the function was delegated ceases to be the officer or the holder of the office; and
(b)the function may be exercised by the person for the time being occupying or acting in the office concerned.
(12)A function that has been delegated may, despite the delegation, be exercised by the delegator.
(13)The delegation of a function does not relieve the delegator of the delegator's obligation to ensure that the function is properly exercised.
(14)Subject to subclause (15), this clause applies to a subdelegation of a function in the same way as it applies to a delegation of a function.
(15)If this Law authorises the delegation of a function, the function may be subdelegated only if the Law expressly authorises the function to be subdelegated.
30Exercise of powers between enactment and commencement
(1)If a provision of this Law (the empowering provision) that does not commence on its enactment would, had it commenced, confer a power—
(a)to make an appointment; or
(b)to make a statutory instrument of a legislative or administrative character; or
(c)to do another thing;
then—
(d)the power may be exercised; and
(e)anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
(2)If a provision of a Victorian Act (the empowering provision) that does not commence on its enactment would, had it commenced, amend a provision of this Law so that it would confer a power—
(a)to make an appointment; or
(b)to make a statutory instrument of a legislative or administrative character; or
(c)to do another thing;
then—
(d)the power may be exercised; and
(e)anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment, instrument or other thing into effect;
before the empowering provision commences.
(3)If—
(a)this Law has commenced and confers a power to make a statutory instrument (the basic instrument-making power); and
(b)a provision of a Victorian Act that does not commence on its enactment would, had it commenced, amend this Law so as to confer additional power to make a statutory instrument (the additional instrument-making power);
then—
(c)the basic instrument-making power and the additional instrument-making power may be exercised by making a single instrument; and
(d)any provision of the instrument that required an exercise of the additional instrument-making power is to be treated as made under subclause (2).
(4)If an instrument, or a provision of an instrument, is made under subclause (1) or (2) that is necessary for the purpose of—
(a)enabling the exercise of a power mentioned in the subclause; or
(b)bringing an appointment, instrument or other thing made or done under such a power into effect;
the instrument or provision takes effect—
(c)on the making of the instrument; or
(d)on such later day (if any) on which, or at such later time (if any) at which, the instrument or provision is expressed to take effect.
(5)If—
(a)an appointment is made under subclause (1) or (2); or
(b)an instrument, or a provision of an instrument, made under subclause (1) or (2) is not necessary for a purpose mentioned in subclause (4);
the appointment, instrument or provision takes effect—
(c)on the commencement of the relevant empowering provision; or
(d)on such later day (if any) on which, or at such later time (if any) at which, the appointment, instrument or provision is expressed to take effect.
(6)Anything done under subclause (1) or (2) does not confer a right, or impose a liability, on a person before the relevant empowering provision commences.
(7)After the enactment of a provision mentioned in subclause (2) but before the provision's commencement, this clause applies as if the references in subclauses (2) and (5) to the commencement of the empowering provision were references to the commencement of the provision mentioned in subclause (2) as amended by the empowering provision.
(8)In the application of this clause to a statutory instrument, a reference to the enactment of the instrument is a reference to the making of the instrument.
Part 5Distance, time and age
31Matters relating to distance, time and age
(1)In the measurement of distance for the purposes of this Law, the distance is to be measured along the shortest road ordinarily used for travelling.
(2)If a period beginning on a given day, act or event is provided or allowed for a purpose by this Law, the period is to be calculated by excluding the day, or the day of the act or event, and—
(a)if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
(b)in any other case—by including the day on which the purpose is to be fulfilled.
(3)If the last day of a period provided or allowed by this Law for doing anything is not a business day in the place in which the thing is to be or may be done, the thing may be done on the next business day in the place.
(4)If the last day of a period provided or allowed by this Law for the filing or registration of a document is a day on which the office is closed where the filing or registration is to be or may be done, the document may be filed or registered at the office on the next day that the office is open.
(5)If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the prescribed occasion happens.
(6)If, in this Law, there is a reference to time, the reference is, in relation to the doing of anything in a jurisdiction, a reference to the legal time in the jurisdiction.
(7)For the purposes of this Law, a person attains an age in years at the beginning of the person's birthday for the age.
Part 6Effect of repeal, amendment or expiration
32Time of Law ceasing to have effect
If a provision of this Law is expressed—
(a)to expire on a specified day; or
(b)to remain or continue in force, or otherwise have effect, until a specified day;
this provision has effect until the last moment of the specified day.
33Repealed Law provisions not revived
If a provision of this Law is repealed or amended by a Victorian Act, or a provision of a Victorian Act, the provision is not revived merely because the Victorian Act or the provision of the Victorian Act—
(a)is later repealed or amended; or
(b)later expires.
34Saving of operation of repealed Law provisions
(1)The repeal, amendment or expiry of a provision of this Law does not—
(a)revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b)affect the previous operation of the provision or anything suffered, done or begun under the provision; or
(c)affect a right, privilege or liability acquired, accrued or incurred under the provision; or
(d)affect a penalty incurred in relation to an offence arising under the provision; or
(e)affect an investigation, proceeding or remedy in relation to such a right, privilege, liability or penalty.
(2)Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired.
35Continuance of repealed provisions
If a Victorian Act repeals some provisions of this Law and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence.
36Law and amending Acts to be read as one
This Law and all Victorian Acts amending this Law are to be read as one.
Part 7Instruments under Law
37Schedule applies to statutory instruments
(1)This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Law, and things that may be done or are required to be done under this Law, except so far as the context or subject matter otherwise indicates or requires.
(2)The fact that a provision of this Schedule refers to this Law and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Law.
Part 8Application to coastal sea
38Application
This Law has effect in and relation to the coastal sea of this jurisdiction as if that coastal sea were part of this jurisdiction.
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SCHEDULE 2
POWERS OF ENTRY BY SEARCH WARRANT
1Application for warrant
(1)An authorised officer may apply to a magistrate of a participating jurisdiction for a search warrant in relation to premises if the officer believes on reasonable grounds that—
(a)a person is or has been operating an education and care service at the premises in contravention of this Law; or
(b)documents or other evidence relevant to the possible commission of an offence against this Law are present at the premises.
(2)The authorised officer must prepare a written application that states the grounds on which the warrant is sought.
(3)The written application must be sworn.
(4)The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.
2Issue of warrant
(1)The magistrate may issue the warrant in respect of premises only if the magistrate is satisfied there are reasonable grounds to believe that—
(a)a person is operating an education and care service at the premises in contravention of this Law; or
(b)documents or other evidence relevant to the possible commission of an offence against this Law are present at the premises.
(2)The warrant must state—
(a)that a stated authorised officer may, with necessary and reasonable help and force—
(i)enter the premises and any other premises necessary for entry; and
(ii)exercise the authorised officer's powers under this Schedule; and
(b)the matter for which the warrant is sought; and
(c)the evidence that may be seized under the warrant; and
(d)the hours of the day or night when the premises may be entered; and
(e)the date, within 14 days after the warrant's issue, the warrant ends.
3Application by electronic communication
(1)An authorised officer may apply for a warrant by phone, facsimile, email, radio, video conferencing or another form of communication if the authorised officer considers it necessary because of—
(a)urgent circumstances; or
(b)other special circumstances, including the authorised officer's remote location.
(2)The application—
(a)may not be made before the authorised officer prepares the written application under clause 1(2); but
(b)may be made before the written application is sworn.
(3)The magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied—
(a)it was necessary to make the application under subclause (1); and
(b)the way the application was made under subclause (1) was appropriate.
(4)After the magistrate issues the original warrant—
(a)if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised officer, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised officer; or
(b)otherwise—
(i)the magistrate must tell the authorised officer the date and time the warrant is issued and the other terms of the warrant; and
(ii)the authorised officer must complete a form of warrant including by writing on it—
(A)the magistrate's name; and
(B)the date and time the magistrate issued the warrant; and
(C)the other terms of the warrant.
(5)The copy of the warrant referred to in subclause (4)(a), or the form of warrant completed under subclause (4)(b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant.
(6)The authorised officer must, at the first reasonable opportunity, send to the magistrate—
(a)the written application complying with clause 1(2) and (3); and
(b)if the authorised officer completed a form of warrant under subclause (4)(b), the completed form of warrant.
(7)The magistrate must keep the original warrant and, on receiving the documents under subclause (6), file the original warrant and documents in the court.
(8)Despite subclause (5), if—
(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this clause; and
(b)the original warrant is not produced in evidence—
the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.
(9)This clause does not limit clause 1.
4Procedure before entry under warrant
(1)Before entering premises under a warrant, an authorised officer must do or make a reasonable attempt to do the following—
(a)identify himself or herself to a person present at the premises who is an occupier of the premises by producing the authorised officer's identity card;
(b)give the person a copy of the warrant;
(c)tell the person the authorised officer is permitted by the warrant to enter the premises;
(d)give the person an opportunity to allow the authorised officer immediate entry to the premises without using force.
(2)However, the authorised officer need not comply with subclause (1) if the authorised officer reasonably believes that immediate entry to the premises is required to ensure the effective execution of the warrant is not frustrated.
5Powers after entering premises
(1)This clause applies if an authorised officer enters premises under clause 4.
(2)The authorised officer may for the purposes of the investigation do the following—
(a)search any part of the premises;
(b)inspect, measure, test, photograph or film, or make audio recordings of, any part of the premises or anything at the premises;
(c)take a thing, or a sample of or from a thing, at the premises for analysis, measurement or testing;
(d)copy, or take an extract from, a document, at the premises;
(e)take into or onto the premises any person, equipment and materials the authorised officer reasonably requires for exercising a power under this Schedule;
(f)require the occupier of the premises, or a person at the premises, to give the authorised officer reasonable help to exercise the authorised officer's powers under paragraphs (a) to (e);
(g)require the occupier of the premises, or a person at the premises, to give the authorised officer information to help the authorised officer in conducting the investigation.
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ENDNOTES
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 2 September 2010
Legislative Council: 12 September 2010
The long title for the Bill for this Act was "A Bill for an Act to provide for a National Law to regulate education and care services for children and for other purposes."
The Education and Care Services National Law Act 2010 was assented to on 12 October 2010 and came into operation as follows:
Part 1 (sections 1–3), sections 4, 5, 6, 8, 18 and the Schedule (except
Parts 2–9, section 229, Part 12, Divisions 1–5 of Part 13, sections 271, 272, 279, 280, Division 3 of Part 14, sections 285–288, 289(3)(4), 290–292, Divisions 5–7 of Part 14, Divisions 1 and 2 of Part 15, sections 322, 323 and Schedule 2 of the National Law set out in the Schedule) on 1 January 2011: Special Gazette (No. 502) 20 December 2010 pages 1, 2.
Sections 7, 9–16, 17, 19 and the remaining provisions of the Schedule (except sections 70(d), 152, 153(2)–(4), 154–159, Division 6 of Part 5, sections 172(d), 266–268 and 270(1)(d), (2), (3) and (4) of the National Law set out in the Schedule) on 1 January 2012: Special Gazette (No. 423) 21 December 2011 page 1.
Sections 70(d), 152, 153(2)–(4), 154–159, Division 6 of Part 5, sections 172(d), 266–268 and 270(1)(d), (2), (3) and (4) of the National Law set out in the Schedule on 1 May 2013: Special Gazette (No. 156) 23 April 2013 page 1.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Education and Care Services National Law Act 2010 by Acts and subordinate instruments.
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Education and Care Services National Law Act 2010, No. 69/2010
Assent Date: 12.10.10 Commencement Date: S. 18(5) on 1.11.11: Special Gazette (No. 502) 20.12.10 pp 1, 2; Sch. ss 330(2), 331(2) inserted on 1.10.17 by No. 9/2017: Special Gazette (No. 303) 12.9.17 p. 1 Note: S. 18(5) repealed s. 18 on 31.12.12; Sch. s. 330(2) provided that Sch. s. 330 expired on 31.12.21; Sch. s. 331(2) provided that Sch. s. 331 expired on 31.12.21 CurrentState: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Children's Services Amendment Act 2011, No. 80/2011
Assent Date: 21.12.11 Commencement Date: Ss 60–78 on 22.12.11: s. 2(1) CurrentState: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Fines Reform Act 2014, No. 47/2014
Assent Date: 1.7.14 Commencement Date: S. 263 on 31.12.17: Special Gazette (No. 443) 19.12.17 p. 1 Current State: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Privacy and Data Protection Act 2014, No. 60/2014
Assent Date: 2.9.14 Commencement Date: S. 140(Sch. 3 item 14) on 17.9.14: Special Gazette (No. 317) 16.9.14 p. 1 CurrentState: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Education and Care Services National Law Amendment Act 2017, No. 9/2017
Assent Date: 27.3.17 Commencement Date: Ss 4−29, 32–67 on 1.10.17: Special Gazette (No. 303) 12.9.17 p. 1; ss 30, 31, 68 on 1.2.18: Special Gazette (No. 303) 12.9.17 p. 1 Current State: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Freedom of Information Amendment (Office of the Victorian Information Commissioner) Act 2017, No. 20/2017
Assent Date: 16.5.17 Commencement Date: S. 134(Sch. 1 item 7) on 1.9.17: s. 2(3) CurrentState: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Worker Screening Act 2020, No. 34/2020
Assent Date: 4.11.20 Commencement Date: S. 206 on 1.2.21: Special Gazette (No. 647) 8.12.20 p. 1 Current State: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Regulatory Legislation Amendment (Reform) Act 2022, No. 13/2022
Assent Date: 29.3.22 Commencement Date: Ss 6–14, 63 on 30.3.22: s. 2(3) Current State: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Early Childhood Legislation Amendment Act 2022, No. 43/2022
Assent Date: 27.9.22 Commencement Date: S. 99 on 28.9.22: s. 2(1); ss 3–6 on 1.1.23: s. 2(2); ss 15–21, 34, 38 on 1.7.23: Special Gazette (No. 253) 23.5.23 p. 1; ss 22–33, 35–37, 52–98 on 1.10.23: s. 2(4) Current State: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
Early Childhood Legislation Amendment (Premises Approval in Principle) Act 2023, No. 33/2023
Assent Date: 21.11.23 Commencement Date: Ss 3−10 on 22.11.23: s. 2(1); ss 11, 12 on 1.10.24: s. 2(3) Current State: This information relates only to the provision/s amending the Education and Care Services National Law Act 2010
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3 Explanatory details
No entries at date of publication.
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