Education and Care Services National Law (Queensland) (Qld)

Education and Care Services National Law (Queensland)

Editor’s note—

The Education and Care Services National Law is applied (with modifications) as a law of Queensland by the Education and Care Services National Law (Queensland) Act 2011. This version is the Law as it applies in Queensland—see the Education and Care Services National Law (Queensland) Act 2011, section 4. It is intended a new reprint of the National Law will be prepared by the Office of the Queensland Parliamentary Counsel when any change in the National Law takes effect.

Part 1    Preliminary

1   Short title

This Law may be cited as the Education and Care Services National Law (Queensland).

2   Commencement

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.

3   Objectives and guiding principles

(1)The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.

(2)The objectives of the national education and care services quality framework are—

(a)to ensure the safety, health and wellbeing of children attending education and care services;

(b)to improve the educational and developmental outcomes for children attending education and care services;

(c)to promote continuous improvement in the provision of quality education and care services;

(d)to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework;

(e)to improve public knowledge, and access to information, about the quality of education and care services;

(f)to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth.

(3)The guiding principles of the national education and care services quality framework are as follows—

(a)that the rights and best interests of the child are paramount;

(b)that children are successful, competent and capable learners;

(c)that the principles of equity, inclusion and diversity underlie this Law;

(d)that Australia’s Aboriginal and Torres Strait Islander cultures are valued;

(e)that the role of parents and families is respected and supported;

(f)that best practice is expected in the provision of education and care services.

4   How functions to be exercised

An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.

5   Definitions

(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;

certified supervisor ...

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;

supervisor certificate ...

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.

5A   Meaning 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.

6   Interpretation 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.

7   Single 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.

(4)(Repealed)

8   Extraterritorial 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.

9   Law 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

10   Application 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.

11   Form 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.

12   Applicant 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.

13   Matters 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.

14   Regulatory 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.

15   Grant 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—

1If 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.

2If 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.

16   Notice 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.

17   Duration of provider approval

A provider approval granted under section 15 continues in force until it is cancelled or surrendered under this Law, or this Law as applying in a participating jurisdiction.

18   Effect of provider approval

A provider approval authorises the approved provider to operate an approved education and care service and an associated children’s service if the approved provider is the holder of the service approval for those services.

19   Conditions on provider approval

(1)A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority.

(2)Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law.

(3)A condition of a provider approval applies to the provider as the operator of any education and care service or associated children’s service, unless the condition expressly provides otherwise.

(4)An approved provider must comply with the conditions of the provider approval.

Penalty:

$11 400, in the case of an individual.

$57 400, in any other case.

20   Copy of provider approval

If the Regulatory Authority grants a provider approval under this Part, the Regulatory Authority must provide a copy of the provider approval to the approved provider stating—

(a)the name of the approved provider; and

(b)if the approved provider is not an individual, the address of the principal office of the provider; and

(c)any conditions to which the approval is subject; and

(d)the date that the provider approval was granted; and

(e)the provider approval number; and

(f)any other prescribed matters.

Division 2 Reassessment

21   Reassessment of fitness and propriety

(1)The Regulatory Authority may at any time assess—

(a)whether an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or

(b)whether a person with management or control of an education and care service operated by an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or

(c)whether a person who becomes a person with management or control of an education and care service operated by the approved provider after the grant of the provider approval is a fit and proper person to be involved in the provision of an education and care service.

(2)Sections 13 and 14 apply to the reassessment.

Division 3 Amendment of provider approvals

22   Amendment of provider approval on application

(1)An approved provider may apply to the Regulatory Authority for an amendment of the provider approval.

(2)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

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

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

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

(c)refusing to amend the provider approval.

(4)The Regulatory Authority must make a decision on the application within 30 days after the Regulatory Authority receives the application.

(5)Without limiting subsection (3), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.

23   Amendment of provider approval by Regulatory Authority

(1)The Regulatory Authority may amend a provider approval at any time without an application from the approved provider.

(2)Without limiting subsection (1), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.

(3)The Regulatory Authority must give written notice to the approved provider of the amendment.

(4)An amendment under this section has effect—

(a)14 days after the Regulatory Authority gives notice of the amendment under subsection (3); or

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

24   Copy of amended provider approval to be provided

If the Regulatory Authority amends a provider approval under this Division, the Regulatory Authority must—

(a)provide an amended copy of the provider approval to the approved provider; and

(b)make any necessary amendments to any service approval held by the provider and provide an amended copy of the service approval to the approved provider.

Division 4 Suspension or cancellation of provider approval

25   Grounds for suspension of provider approval

The Regulatory Authority may suspend a provider approval if—

(a)the approved provider has been charged with an indictable offence, or with an offence that if committed in this jurisdiction would be an indictable offence, or any other circumstance indicates that the approved provider may not be a fit and proper person to be involved in the provision of an education and care service; or

(b)the approved provider has failed to comply with a condition of the provider approval; or

(c)the approved provider has failed to comply with this Law as applying in any participating jurisdiction; or

(d)action is being taken under Part 7 (other than a compliance direction) in respect of more than one education and care service operated by the approved provider; or

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

(f)the approved provider purported to transfer or receive a transfer of an approved education and care service without the consent of the Regulatory Authority; or

(g)the approved provider has not paid any outstanding prescribed fees; or

(h)under section 195H(1)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth, the approved provider’s approval as a provider has been cancelled for the reason that the approved provider has not satisfied, or is not satisfying, the provider eligibility rules in section 194C(b), (c) or (d) of that Act; or

Note—

It is a condition for continued approval of an approved provider that the approved provider continues to satisfy the provider eligibility rules—see section 195A(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.

(i)the approved provider has been refused approval as a provider under section 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth for the reason that the provider does not satisfy the provider eligibility rules in section 194C(b), (c) or (d) of that Act.

Note—

The Secretary must refuse to approve a provider if the Secretary is not satisfied that the provider satisfies the provider eligibility rules—see section 194B(1)(a) and (6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.

26   Show cause notice before suspension

(1)This section applies if the Regulatory Authority is considering the suspension of a provider approval under section 25.

(2)The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—

(a)that the Regulatory Authority intends to suspend the provider approval; and

(b)the proposed period of suspension; and

(c)the reasons for the proposed suspension; and

(d)that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed suspension.

27   Decision to suspend after show cause process

After considering any written response from the approved provider received within the time allowed by section 26(2)(d), the Regulatory Authority may—

(a)if the suspension was proposed on a ground referred to in section 25(a), accept an undertaking from the approved provider under section 179A; or

(b)in any case—

(i)suspend the provider approval for a period not more than the prescribed period; or

(ii)decide not to suspend the provider approval.

28   Suspension without show cause notice

(1)The Regulatory Authority may suspend the provider approval on a ground referred to in section 25 without giving the approved provider a show cause notice under section 26 if the Regulatory Authority is satisfied that there is an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by an education and care service operated by the provider.

(2)The suspension may not be for a period of more than 6 months.

29   Notice and taking effect of suspension

(1)The Regulatory Authority must give the approved provider written notice of the decision to suspend the provider approval.

(2)The notice of a decision to suspend must set out the period of suspension and the date on which it takes effect.

(3)The decision under section 27 to suspend takes effect at the end of 14 days after the date of the decision, or, if another period is specified by the Regulatory Authority, at the end of that period.

(4)The decision under section 28 to suspend takes effect on the giving of the notice.

30   Effect of suspension

(1)Subject to this section, if a provider approval is suspended under section 27 or 28 of this Law as applying in any participating jurisdiction, all service approvals held by the provider are also suspended for the same period.

(2)A suspension under subsection (1) applies to both education and care services and any associated children’s services.

(3)A person whose provider approval is suspended is taken not to be an approved provider for the period of the suspension.

(4)A service approval is not suspended under subsection (1) during any period that a person is approved under section 41 to manage or control the education and care service.

(5)The Regulatory Authority may consent under Part 3 to the transfer of a service approval that is suspended under section 27 or 28.

(6)The suspension of the service approval ceases on the transfer taking effect, unless the conditions imposed by the Regulatory Authority on the consent to the transfer specify a later date.

31   Grounds for cancellation of provider approval

The Regulatory Authority may cancel a provider approval if—

(a)the Regulatory Authority is satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or

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

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

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

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

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

(g)under section 195H(1)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth, the approved provider’s approval as a provider has been cancelled for the reason that the approved provider has not satisfied, or is not satisfying, the provider eligibility rules in section 194C(b), (c) or (d) of that Act; or

Note—

It is a condition for continued approval of an approved provider that the approved provider continues to satisfy the provider eligibility rules—see section 195A(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.

(h)the approved provider has been refused approval as a provider under section 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth for the reason that the provider does not satisfy the provider eligibility rules in section 194C(b), (c) or (d) of that Act.

Note—

The Secretary must refuse to approve a provider if the Secretary is not satisfied that the provider satisfies the provider eligibility rules—see section 194B(1)(a) and (6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth.

32   Show cause notice before cancellation

(1)This section applies if the Regulatory Authority is considering the cancellation of a provider approval under section 31.

(2)The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—

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

(b)the reasons for the proposed cancellation; and

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

33   Decision in relation to cancellation

(1)After considering any written response from the approved provider received within the time allowed under section 32(2)(c), the Regulatory Authority—

(a)may—

(i)cancel the provider approval; or

(ii)suspend the provider approval for a period not more than the prescribed period; or

(iii)decide not to cancel the provider approval; and

(b)must give the approved provider written notice of the decision.

(2)The decision to cancel the provider approval takes effect at the end of 14 days after the date of the decision or, if another period is specified by the Regulatory Authority, at the end of that period.

(3)The notice of a decision to cancel the provider approval must set out the date on which it takes effect.

(4)This Law applies to a suspension of a provider approval under this section as if it were a suspension under section 27.

34   Effect of cancellation

(1)Subject to this section, if a provider approval is cancelled under section 33 of this Law as applying in any participating jurisdiction, all service approvals held by the person who was the approved provider are also cancelled.

(2)A cancellation under subsection (1) applies to both education and care services and any associated children’s services.

(3)A service approval is not cancelled under subsection (1) if before that cancellation a person is approved under section 41 to manage or control the education and care service.

(4)A service approval is cancelled if a person referred to in subsection (3) ceases to manage or control the service.

(5)A provider whose provider approval is to be cancelled under section 33 may apply to the Regulatory Authority under Part 3 for consent to transfer a service approval held by the provider.

(6)The application for consent to transfer must be made within 14 days after the date of the decision to cancel the provider approval is made.

(7)If an application for consent to transfer is made, the service approval is suspended until the Regulatory Authority determines the application.

(8)The suspension of the service approval ceases on the transfer taking effect, unless the conditions of the transfer specify a later date.

(9)If the Regulatory Authority refuses to consent to the transfer, the service approval is cancelled on the making of the decision to refuse consent.

35   Approved provider to provide information to Regulatory Authority

(1)This section applies if a show cause notice has been given to an approved provider under section 26 or 32.

(2)The approved provider, at the request of the Regulatory Authority, must, within 7 days of the request, provide the Regulatory Authority with the contact details of the parents of all children enrolled at each education and care service operated by the approved provider.

(3)The Regulatory Authority may use the information provided under subsection (2) solely to notify the parents of children enrolled at an education and care service about the suspension or cancellation.

36   Notice to parents of suspension or cancellation

(1)This section applies if a provider approval has been suspended or cancelled under section 27, 28, 33 or 34.

(2)The Regulatory Authority may require the person who is or was the approved provider to give written notice of the suspension or cancellation and its effect to the parents of children enrolled at all or any of the education and care services operated by that person.

(3)A person must comply with a requirement made of that person under subsection (2).

Penalty:

$3400, in the case of an individual.

$17 200, in any other case.

37   Voluntary suspension of provider approval

(1)An approved provider may apply to the Regulatory Authority for a suspension of the provider approval for a period of not more than 12 months.

(2)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(3)The approved provider must, at least 14 days before making an application under this section, notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to make the application.

(4)The Regulatory Authority must within 30 days after the application is made decide whether or not to grant the application.

(5)The Regulatory Authority must give written notice of its decision (including the period of suspension) to the approved provider.

(6)If the Regulatory Authority decides to grant the application, the suspension takes effect on a date agreed between the Regulatory Authority and the approved provider.

(7)A suspension under this section remains in force for the period of time specified in the notice.

(8)The approved provider may apply to the Regulatory Authority to revoke the suspension before the end of the suspension period.

(9)If the Regulatory Authority grants the application to revoke the suspension, the suspension ceases on the date determined by agreement with the approved provider.

(10)If a provider approval is suspended under this section, each service approval held by the provider is also suspended for the same period unless—

(a)a person is approved under section 41 to manage or control the education and care service to which the approval relates; or

(b)the service approval is transferred under Division 3 of Part 3.

38   Surrender of provider approval by approved provider

(1)An approved provider may surrender the provider approval by written notice to the Regulatory Authority.

(2)The notice must specify a date on which the surrender is intended to take effect which must be—

(a)after the notice is given; and

(b)after the end of the period of notice required under subsection (3).

(3)The approved provider must notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to surrender the provider approval, at least 14 days before the surrender is intended to take effect.

(4)If a provider approval is surrendered, the approval is cancelled on the date specified in the notice.

(5)If a provider approval is surrendered, any service approval held by the provider is also taken to be surrendered.

Note—

If a service approval is surrendered, it is cancelled—see section 86. A cancelled service approval cannot be transferred—see definition of service approval and also Division 3 of Part 3.

Division 5 Approval of executor, representative or guardian as approved provider

39   Death of approved provider

(1)This section applies if an approved provider dies.

(2)A nominated supervisor or a person in day to-day charge of an education and care service of the approved provider must notify the Regulatory Authority of the approved provider’s death within 7 days after that death.

(3)The executor of the estate of the approved provider may continue to operate any approved education and care service of the approved provider for the relevant period provided that at least one nominated supervisor continues to manage the day-to-day operation of the service.

(4)The executor of the estate of the approved provider may transfer, surrender or apply for suspension of a service approval of the approved provider under this Law during the relevant period as if the executor were the approved provider.

(5)The executor of the estate of the approved provider may apply to the Regulatory Authority for a provider approval.

(6)The application must be made within 30 days of the death of the approved provider and must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

(7)In this section relevant period means—

(a)the period of 30 days after the death of the approved provider; or

(b)if the executor of the estate of the approved provider makes an application under subsection (5) within that period, until the application is finally determined under this Law.

40   Incapacity of approved provider

(1)This section applies if an approved provider has become incapacitated.

(2)The legal personal representative or guardian of an approved provider may apply to the Regulatory Authority for a provider approval.

(3)The application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

41   Decision on application

(1)The Regulatory Authority must not grant a provider approval to a person who has made an application under section 39 or 40 unless the Regulatory Authority is satisfied that the person is a fit and proper person to be involved in the provision of an education and care service.

(2)Sections 12, 13 and 14 apply to the assessment of a person under subsection (1).

(3)Subject to this section, the Regulatory Authority may—

(a)grant the provider approval; or

(b)grant the provider approval subject to conditions; or

(c)refuse to grant the provider approval.

(4)An approval under this section—

(a)may be granted for a period of not more than 6 months; and

(b)may be extended or further extended for periods of not more than 6 months—

at the discretion of the Regulatory Authority.

(5)The provider approval is granted only in relation to the operation of the approved education and care services of the approved provider for whom the applicant is the executor, legal personal representative or guardian, as the case requires.

Division 6 Exercise of powers by another Regulatory Authority

42   Exercise of powers by another Regulatory Authority

(1)This section applies if the Regulatory Authority has granted a provider approval under this Part.

(2)A Regulatory Authority of another participating jurisdiction may exercise all of the powers and perform all of the functions of the Regulatory Authority under this Part (except Division 5) in respect of the provider approval if the approved provider operates an approved education and care service in that participating jurisdiction.

(3)A Regulatory Authority (including the Regulatory Authority of this jurisdiction) may only exercise a power to amend, suspend or cancel a provider approval after consulting with the Regulatory Authority of each participating jurisdiction in which the approved provider operates an approved education and care service.

(4)A failure by a Regulatory Authority to comply with subsection (3) does not affect the validity of the exercise of the power.

(5)A cancellation or suspension of a provider approval in another participating jurisdiction has effect in this jurisdiction.

Part 3    Service approval

Division 1 Application for service approval

43   Application for service approval

(1)An approved provider may apply to the Regulatory Authority for a service approval for an education and care service.

(2)An approved provider may only apply for a service approval for an education and care service if the approved provider is or will be the operator of the education and care service and is or will be responsible for the management of the staff members and nominated supervisors of that service.

(3)A person who has applied for a provider approval may apply to the Regulatory Authority for a service approval, however the Regulatory Authority must not grant the service approval unless the provider approval is granted.

Note—

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

44   Form of application

(1)An application for a service approval must—

(a)be made to the Regulatory Authority of the participating jurisdiction in which the service is to be located; and

(b)be in writing; and

(c)include the prescribed information; and

(d)nominate one or more individuals to be nominated supervisors of the service; and

(da)include from each nominated individual (other than the approved provider) the written consent to the nomination; and

(e)include payment of the prescribed fee.

(2)An application for service approval may include an associated children’s service.

(3)An application for a service approval for a family day care service may include a request for approval of a place (other than a residence) as a family day care venue for that service.

Note—

This approval is granted under section 50A only if exceptional circumstances exist.

45   Regulatory Authority may seek further information

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

(2)If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 48 for the Regulatory Authority to make a decision on the application.

46   Investigation of application for service approval

(1)For the purposes of determining an application for a service approval, the Regulatory Authority may—

(a)undertake inquiries and investigations, including inquiries relating to the previous licensing, accreditation or registration of the education and care service under a former education and care services law, a children’s services law or an education law of any participating jurisdiction; and

(b)inspect the education and care service premises; and

(c)inspect the policies and procedures of the service.

(2)For the purposes of an inspection under subsection (1)(b) or (c), the Regulatory Authority may enter the education and care service premises at any reasonable time.

47   Determination of application

(1)Subject to subsection (3), in determining an application under section 43, the Regulatory Authority must have regard to—

(a)the National Quality Framework; and

(b)except in the case of a family day care residence, the suitability of the education and care service premises and the site and location of those premises for the operation of an education and care service; and

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

Note—

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

(c)the adequacy of the policies and procedures of the service; and

(d)whether the applicant has a provider approval; and

(e)except in the case of a nominated supervisor who is the approved provider, whether each nominated supervisor has consented in writing to the nomination; and

(f)any other matter the Regulatory Authority thinks fit; and

(g)any other prescribed matter.

(2)In addition, the Regulatory Authority may have regard to either of the following—

(a)whether the applicant is capable of operating the education and care service having regard to its financial capacity and management capability and any other matter the Regulatory Authority considers relevant;

(b)the applicant’s history of compliance with this Law or this Law as applying in any participating jurisdiction, including in relation to any other education and care service it operates.

(3)Subject to subsection (4), in assessing an associated children’s service for the purposes of determining whether to grant a service approval, the Regulatory Authority must have regard to the criteria under the children’s services law of this jurisdiction for the grant of a children’s services licence.

(4)The criteria referred to in subsection (3) do not include criteria relating to whether the applicant is a fit and proper person.

48   Grant or refusal of service approval

(1)On an application under section 43, the Regulatory Authority may—

(a)grant the service approval; or

(b)refuse to grant the service approval.

Note—

A service approval is granted subject to conditions in accordance with section 51.

(2)Subject to subsection (3), the Regulatory Authority must make a decision on the application within 90 days after the Regulatory Authority received the application.

Note—

If further information is requested under section 45(2), the period between the making of the request and the provision of the information is not included in the 90 day period.

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

(4)The Regulatory Authority may grant a service approval solely for an education and care service if—

(a)the application includes an application for an associated children’s service; and

(b)that associated children’s service does not comply with the criteria referred to in section 47(3).

(5)The Regulatory Authority is taken to have refused to grant a service approval if the Regulatory Authority has not made a decision under subsection (1)—

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

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

as the case requires.

(6)A service approval cannot be granted solely for an associated children’s service.

49   Grounds for refusal

(1)The Regulatory Authority must refuse to grant a service approval if—

(a)the Regulatory Authority is satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the education and care service; or

(b)the applicant does not have a provider approval.

(2)The Regulatory Authority may refuse to grant a service approval on any other grounds prescribed in the national regulations.

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

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

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

Note—

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

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

49A   Additional ground for refusal in certain participating jurisdictions-mandatory approval in principle

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

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

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

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

(c)either—

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

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

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

(a)if satisfied that—

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

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

(b)in any other prescribed circumstances.

(4)Subsection (2) does not apply if—

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

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

50   Notice of decision on application

The Regulatory Authority must give written notice to the applicant of a decision under section 48 and the reasons for the decision within 7 days after the decision is made.

50A   Approval of a place as a family day care venue

The Regulatory Authority may, at the time of granting the service approval for a family day care service, approve a place (other than a residence) as a family day care venue for that service if the Regulatory Authority considers exceptional circumstances exist.

51   Conditions on service approval

(1)A service approval is granted subject to the condition that the education and care service is operated in a way that—

(a)ensures the safety, health and wellbeing of the children being educated and cared for by the service; and

(b)meets the educational and developmental needs of the children being educated and cared for by the service.

(2)A service approval for a family day care service is granted subject to a condition that the approved provider must ensure that each family day care educator engaged by or registered with the service is adequately monitored and supported by a family day care co-ordinator.

(2A)A service approval for a family day care service is granted subject to a condition that each family day care residence, and any approved family day care venue of the service, are to be located within this jurisdiction.

(3)A service approval is granted subject to a condition that the approved provider must commence ongoing operation of the service within 6 months after the approval is granted unless the Regulatory Authority agrees to an extension of time.

(4)A service approval is granted subject to a condition that the approved provider must hold the prescribed insurance in respect of the education and care service.

(4A)A service approval for an education and care service other than a family day care service is granted subject to a condition that the approved provider must ensure that the number of children educated and cared for by the service at any one time does not exceed the maximum number of children specified in the service approval.

(4B)An approved provider is not required to comply with subsection (4A) if—

(a)the maximum number of children is exceeded because a child is, or 2 or more children from the same family are, being educated and cared for by the education and care service in an emergency; and

(b)the approved provider is satisfied on reasonable grounds that this will not affect the health, safety and wellbeing of any other child who is attending the education and care service.

Example—

An emergency under this subsection would include circumstances where a child is in need of protection under a child protection order or where the parent of a child needs urgent health care that prevents that parent caring for the child.

(5)A service approval is granted subject to any other conditions prescribed in the national regulations or imposed by—

(a)this Law; or

(b)the Regulatory Authority.

(6)A condition of a service approval does not apply to an associated children’s service unless the condition is expressed to apply to that associated children’s service.

(7)A condition of a service approval may be expressed to apply solely to an associated children’s service only if the Regulatory Authority has first consulted with the children’s services regulator.

(8)An approved provider must comply with the conditions of a service approval held by the approved provider.

Penalty:

$11 400, in the case of an individual.

$57 400, in any other case.

52   Copy of service approval to be provided

If the Regulatory Authority grants a service approval under this Part, the Regulatory Authority must provide a copy of the service approval to the approved provider stating—

(a)the name of the education and care service; and

(b)the location of the education and care service or, if the education and care service is a family day care service, the location of the principal office of the service and any approved family day care venue for the service; and

(c)any conditions to which the service approval is subject; and

(d)the date the service approval was granted; and

(e)the service approval number; and

(f)the name of the approved provider; and

(g)for a service other than a family day care service, the maximum number of children who can be educated and cared for by the service at any one time; and

(h)the details of any service waiver under Division 5 or temporary waiver under Division 6 applying to the service; and

(i)any other prescribed matters.

53   Annual fee

An approved provider must, in accordance with the national regulations, pay the prescribed annual fee in respect of each service approval held by the approved provider.

Division 2 Amendment of service approval

54   Amendment of service approval on application

(1)An approved provider may apply to the Regulatory Authority for an amendment of a service approval.

(1A)An application under subsection (1) may include a request for the approval of a place (other than a residence) as a family day care venue for a family day care service.

(2)An application must—

(a)be in writing; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

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

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

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

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

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

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

(c)refusing to amend the service approval.

(7)Without limiting subsection (6), an amendment may vary a condition of the service approval or impose a new condition on the service approval.

(8)Subject to subsection (8A), an amendment cannot change a location of an education and care service.

(8A)The Regulatory Authority may approve a place (other than a residence) as a family day care venue for a family day care service if the Regulatory Authority considers exceptional circumstances exist.

(9)The Regulatory Authority must give written notice of its decision to the approved provider.

55   Amendment of service approval by Regulatory Authority

(1)The Regulatory Authority may amend a service approval at any time without an application from the approved provider.

(2)Without limiting subsection (1), an amendment may vary a condition of the service approval or impose a new condition on the service approval.

(3)The Regulatory Authority must give written notice of the amendment to the approved provider.

(4)An amendment under this section has effect—

(a)14 days after the Regulatory Authority gives notice of the amendment under subsection (3); or

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

(5)The Regulatory Authority must amend a service approval to the extent that it relates to an associated children’s service in accordance with any direction by the children’s services regulator if that direction is given in accordance with the children’s services law of this jurisdiction.

55A   Condition relating to family day care co-ordinators

(1)Without limiting section 55, an amendment under that section may impose a condition on the service approval for a family day care service requiring the approved provider to ensure that there is a minimum of one qualified person employed or engaged as a family day care co-ordinator for every 15 family day care educators (or part of that number) engaged by or registered with that service.

Example—

If between 1 and 15 family day care educators are engaged by or registered with the family day care service, at least one qualified person must be employed or engaged by the approved provider as a family day care co-ordinator.

If between 16 and 30 family day care educators are engaged by or registered with the family day care service, at least 2 qualified persons must be employed or engaged by the approved provider as a family day care co-ordinator.

(2)A condition may only be imposed under subsection (1) if—

(a)the family day care service has been operating for more than 12 months; and

(b) the Regulatory Authority—

(i)has taken into account the approved provider’s capability and compliance with this Law in respect of the family day care service; and

(ii)considers that family day care educators are not adequately monitored and supported by a family day care co-ordinator.

(3)Section 163 does not apply if a condition is imposed under subsection (1) in respect of a family day care service.

(4)A person is a qualified person under this section if the person has the qualifications prescribed by the national regulations.

56   Notice of addition of nominated supervisor

(1)The approved provider of an education and care service must give written notice to the Regulatory Authority in accordance with this section if the approved provider wishes to add a new nominated supervisor of the education and care service.

(2)The notice must—

(a)nominate one or more individuals to be nominated supervisors of the service and, unless the individual nominated is the approved provider, include from each nominated individual the written consent to the nomination; and

(b)include the prescribed information; and

(c)be given—

(i)at least 7 days before the individual is to commence work as a nominated supervisor; or

(ii)if that period of notice is not possible in the circumstances, as soon as practicable but not more than 14 days after the individual commences work as a nominated supervisor.

Note—

Section 173(2)(b) requires an approved provider to notify the Regulatory Authority of the removal of a nominated supervisor.

56A   Notice of change of a nominated supervisor’s name or contact details

The approved provider of an education and care service must give written notice to the Regulatory Authority of any change to the name or contact details of any nominated supervisor of the education and care service.

57   Copy of amended service approval to be provided

If the Regulatory Authority amends a service approval under this Division, the Authority must provide an amended copy of the service approval to the approved provider.

Division 3 Transfer of service approval

58   Service approval may be transferred

(1)Subject to this Division, an approved provider who holds a service approval (transferring approved provider) may transfer the service approval to another approved provider (receiving approved provider).

(2)If a service approval is transferred to a receiving approved provider the transfer includes the transfer of the service approval for any associated children’s service.

(3)A person who holds a provider approval may transfer a service approval held by the provider even if the provider approval or service approval is suspended.

59   Regulatory Authority to be notified of transfer

(1)The transferring approved provider and the receiving approved provider must jointly notify the Regulatory Authority of the transfer—

(a)at least 60 days before the transfer is intended to take effect; or

(b)if the Regulatory Authority considers that the circumstances are exceptional, a lesser period agreed to by the Regulatory Authority.

(2)The notice must—

(a)be in writing; and

(ab)specify the date on which the transfer is intended to take effect; and

(b)include the prescribed information; and

(c)include payment of the prescribed fee.

59A   Further notification required in case of delay to transfer date

(1)If, after giving a notification under section 59, the transfer is to be delayed, the transferring approved provider and the receiving approved provider must jointly notify the Regulatory Authority as soon as practicable of the new date that the transfer is intended to take effect.

(2)A notification under subsection (1) does not affect consent to the transfer given or taken to have been given by the Regulatory Authority before it received that notification.

60   Consent of Regulatory Authority required for transfer

A service approval cannot be transferred without the consent of the Regulatory Authority.

61   Consent taken to be given unless Regulatory Authority intervenes

The Regulatory Authority is taken to have consented to the transfer of a service approval if—

(a)the parties have given a notification under section 59; and

(b)28 days before the transfer is intended to take effect, the Regulatory Authority has not notified the parties that it intends to intervene under section 62.

62   Transfer may be subject to intervention by Regulatory Authority

(1)The Regulatory Authority may intervene in a transfer of a service approval if the Regulatory Authority is concerned as to any of the following matters—

(a)whether the receiving approved provider is capable of operating the education and care service having regard to its financial capacity and management capability and any other matter the Regulatory Authority considers relevant;

(b)the receiving approved provider’s history of compliance with this Law as applying in a participating jurisdiction, including in relation to any other education and care service it operates or has operated;

(c)any other matter relevant to the transfer of the service approval.

(2)The Regulatory Authority must notify the transferring approved provider and the receiving approved provider of the decision to intervene.

(3)Subject to subsection (5), the notice must be given at least 28 days before the date on which the transfer is intended to take effect.

(4)A notification under subsection (2) must—

(a)be in writing; and

(b)include the prescribed information.

(5)The period within which notice must be given under subsection (3) does not apply where the Regulatory Authority has not been notified of the intended transfer of a service approval in accordance with section 59.

63   Effect of intervention

If the Regulatory Authority intervenes under section 62, the transfer must not proceed unless and until the Regulatory Authority gives written consent to the transfer.

64   Regulatory Authority may request further information

If the Regulatory Authority has intervened under section 62, the Regulatory Authority may—

(a)request further information from the transferring approved provider or receiving approved provider for the purposes of deciding whether to consent to the transfer; and

(b)undertake inquiries in relation to the receiving approved provider for that purpose.

65   Decision after intervention

(1)If the Regulatory Authority has intervened under section 62, it may decide—

(a)to consent to the proposed transfer; or

(b)to refuse to consent to the proposed transfer.

(2)If the Regulatory Authority consents to the proposed transfer the Regulatory Authority may impose conditions on the consent, including specifying the date on which the proposed transfer is to take effect.

(3)The service approval must be transferred in accordance with the conditions imposed on the consent.

66   Regulatory Authority to notify outcome 10 days before transfer

(1)If the Regulatory Authority has intervened in the transfer of a service approval, the Authority must, at least 10 days before the date on which the transfer is intended to take effect, give a notice to each party specifying that the Authority—

(a)consents to the transfer; or

(b)refuses to consent to the transfer; or

(c)has suspended further consideration of the transfer until further information is received and that the transfer may not proceed until a further notice is given under this section consenting to the transfer; or

(d)has not yet made a decision on the transfer and that the Regulatory Authority will make a decision on the transfer within 28 days and that the transfer may not proceed until a further notice is given under this section consenting to the transfer.

(2)If the Regulatory Authority consents to the transfer, the notice—

(a)must specify—

(i)the date on which the transfer is to take effect; and

(ii)any conditions on the consent to the transfer; and

(b)may include notice of any condition that the Regulatory Authority has imposed on the provider approval or a service approval of the receiving approved provider because of the transfer.

(3)If the Regulatory Authority refuses to consent to the transfer, the notice must include the reasons for the refusal.

67   Transfer of service approval without consent is void

A transfer of a service approval is void if—

(a)it is made without the consent of the Regulatory Authority; or

(b)it is made in contravention of the conditions imposed by the Regulatory Authority on the consent to the transfer; or

(c)it is made to a person who is not the approved provider who gave the notification under section 59 as the receiving approved provider.

(c) any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being reproduced (with or without the aid of another article or device).

electronic communication means—

(a)a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or

(b)a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system.

estate includes easement, charge, right, title, claim, demand, lien or encumbrance, whether at law or in equity.

expire includes lapse or otherwise cease to have effect.

external Territory means a Territory, other than an internal Territory, for the government of which as a Territory provision is made by a Commonwealth Act.

fail includes refuse.

financial year means a period of 12 months beginning on 1 July.

foreign country means a country (whether or not an independent sovereign State) outside Australia and the external Territories.

function includes a power, authority or duty.

Gazette means the Government Gazette of this jurisdiction.

gazetted means published in the Gazette.

Gazette notice means notice published in the Gazette.

Government Printer means the Government Printer of this jurisdiction, and includes any other person authorised by the Government of this jurisdiction to print an Act or instrument.

individual means a natural person.

information system means a system for generating, sending, receiving, storing or otherwise processing electronic communications.

insert, in relation to a provision of this Law, includes substitute.

instrument includes a statutory instrument.

interest, in relation to land or other property, means—

(a)a legal or equitable estate in the land or other property; or

(b)a right, power or privilege over, or in relation to, the land or other property.

internal Territory means the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory.

Jervis Bay Territory means the Territory mentioned in the Jervis Bay Territory Acceptance Act 1915 (Cwlth).

make includes issue or grant.

minor means an individual who is under 18.

modification includes addition, omission or substitution.

month means a calendar month.

named month means 1 of the 12 months of the year.

Northern Territory means the Northern Territory of Australia.

number means—

(a)a number expressed in figures or words; or

(b)a letter; or

(c)a combination of a number so expressed and a letter.

oath, in relation to a person allowed by law to affirm, declare or promise, includes affirmation, declaration or promise.

office includes position.

omit, in relation to a provision of this Law or an Act, includes repeal.

party includes an individual or a body politic or corporate.

penalty includes forfeiture or punishment.

power includes authority.

prescribed means prescribed by, or by regulations made or in force for the purposes of or under, this Law.

printed includes typewritten, lithographed or reproduced by any mechanical means.

proceeding means a legal or other action or proceeding.

property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

provision, in relation to this Law or an Act, means words or other matter that form or forms part of this Law or the Act, and includes—

(a)a Chapter, Part, Division, Subdivision, section, subsection, paragraph, subparagraph, sub-subparagraph or Schedule of or to this Law or the Act; or

(b)a section, clause, subclause, item, column, table or form of or in a Schedule to this Law or the Act; or

(c)the long title and any preamble to the Act.

record includes information stored or recorded by means of a computer.

repeal includes—

(a)revoke or rescind; or

(b)repeal by implication; or

(c) abrogate or limit the effect of this Law or instrument concerned; or

(d)exclude from, or include in, the application of this Law or instrument concerned any person, subject matter or circumstance.

sign includes the affixing of a seal or the making of a mark.

statutory declaration means a declaration made under an Act, or under a Commonwealth Act or an Act of another jurisdiction, that authorises a declaration to be made otherwise than in the course of a judicial proceeding.

statutory instrument means an instrument (including a regulation) made or in force under or for the purposes of this Law, and includes an instrument made or in force under any such instrument.

swear, in relation to a person allowed by law to affirm, declare or promise, includes affirm, declare or promise.

word includes any symbol, figure or drawing.

writing includes any mode of representing or reproducing words in a visible form.

(2)In a statutory instrument—

the Law means this Law.

13   Provisions relating to defined terms and gender and number

(1)If this Law defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.

(2)Definitions in or applicable to this Law apply except so far as the context or subject matter otherwise indicates or requires.

(3)In this Law, words indicating a gender include each other gender.

(4)In this Law—

(a)words in the singular include the plural; and

(b)words in the plural include the singular.

14   Meaning of “may” and “must” etc

(1)In this Law, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.

(2)In this Law, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.

(3)This clause has effect despite any rule of construction to the contrary.

15   Words and expressions used in statutory instruments

(1)Words and expressions used in a statutory instrument have the same meanings as they have, from time to time, in this Law, or relevant provisions of this Law, under or for the purposes of which the instrument is made or in force.

(2)This clause has effect in relation to an instrument except so far as the contrary intention appears in the instrument.

16   Effect of express references to bodies corporate and individuals

In this Law, a reference to a person generally (whether the expression “person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” or “whoever” or another expression is used)—

(a)does not exclude a reference to a body corporate or an individual merely because elsewhere in this Law there is particular reference to a body corporate (however expressed); and

(b)does not exclude a reference to a body corporate or an individual merely because elsewhere in this Law there is particular reference to an individual (however expressed).

17   Production of records kept in computers etc

If a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under this Law—

(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.

18   References 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.

19   References 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.

20   Reference 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.

21   Reference 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 4    Functions and powers

22   Performance 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.

23   Power 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.

24   Matters 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.

25   Presumption 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.

26   Appointments 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.

27   Acting 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.

28   Powers 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.

29   Delegation 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.

30   Exercise 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 5    Distance, time and age

31   Matters 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 6    Effect of repeal, amendment or expiration

32   Time 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.

33   Repealed 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.

34   Saving 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.

35   Continuance 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.

36   Law and amending Acts to be read as one

This Law and all Victorian Acts amending this Law are to be read as one.

Part 7    Instruments under Law

37   Schedule 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 8    Application to coastal sea

38   Application

This Law has effect in and relation to the coastal sea of this jurisdiction as if that coastal sea were part of this jurisdiction.

Schedule 2 Powers of entry by search warrant

1   Application 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.

2   Issue 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 otherpremises 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.

3   Application 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.

4   Procedure 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.

5   Powers 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.