Global Family Day Care Pty Ltd v Secretary Department of Education

[2020] NSWCATAD 248

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Global Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 248

Hearing dates:

9 July 2020, 10 July 2020, 13 July 2020

Date of orders:

14 October 2020

Decision date:

14 October 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer Senior Member
L Houlahan Senior Member

Decision:

The decision of the respondent dated 17 January 2020 is confirmed.

Catchwords:

EDUCATION and Care Services National Law – Provider approval – Breach of condition of approval – Objects and Principles of National Law – Children – Childcare Services –– Safety and Wellbeing of Children- Cancellation of service approval – Stay of Service approval – fit and proper person to be operator of family day care service – history of non compliance – whether conditions on approval appropriate

Legislation Cited:

A New Tax System (Family Assistance (Administration) Act 1999 (Cth)

Administrative Decisions Review Act 1997

Children (Education and Care Services) National Law (NSW) No 104a

Children (Education and Care Services National Law Application) Act 2010 No 104

Children (Education and Care Services) Supplementary Provisions Regulation 2012

Civil and Administrative Tribunal Act 2013

Education and Care Services National Regulations

Cases Cited:

Australian Broadcasting Tribunal v Bond (1980) HCA 33 170 CLR 380

CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60

CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190

CZR v Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 282

DBU v Secretary, Department of Education [2017] NSWCATAD 257

Jessica Education Centre Pty Ltd (KA Family Day Care) v Secretary Department of Education [2020] NSWCATAD 99

Hughes v Vale Pty Ltd v NSW (No.2) [1955] HCA 28; (1955) 93 CLR 127

Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45

Nilufar v Secretary, Department of Education [2020] NSWCATAD 37

Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Global Family Day Care Pty Limited (Applicant)
Secretary Department of Education (Respondent)

Representation:

Counsel:
J Bennett (Applicant)
C Trahanas (Respondent)

Solicitors:
Meridian Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00019596

Publication restriction:

Nil

REASONS FOR decision

Introduction

1. The applicant is a Company operating a Family Day Care business in suburban Sydney following an approval by the respondent under the Children (Education and Care Services) National Law NSW No 104a (the National Law). The respondent -the Secretary of the Department of Education (the Department), is the approver and regulator of matters under the National Law within the State of New South Wales.

2. The applicant, Global Family Day Care Pty Ltd (Global), is the provider of a family day care service which operates from the residences of 16 educators. On 11 March 2013 the Department granted provider approval to Global under s 15 of the National Law.

3. On 17 January 2020 the Department decided to cancel the provider approval of Global to operate family day care businesses on the basis that Global had a history of non-compliance with the National Law, and inadequate governance systems to address the non-compliance. In addition the Department determined that the nature of the non-compliance posed a risk to the safety and well being of children, and because of repeated non-compliance, Global (through their Director) was not a fit and proper person to operate an education and care service.

4. On 20 January 2020 Global filed an application for administrative review with the Tribunal. That application concerned the decision of the Department of 17 January 2020 to cancel the provider approval for Global.

5. The question to be determined by the Tribunal is whether Global’s provider approval should be cancelled in accordance with the National Law.

Background

6. The application and approval was made under the National Law whereby various criteria for approval and maintaining of the currency of the approval are set out.

7. In summary, following approval in March 2013 Global began operating family day care in suburban Sydney. The Department conducted compliance monitoring of Global in the period February 2015 – January 2020. Some of Global’s operating sites were subject to compliance visits.

8. The first compliance visits occurred on 3 February 2015 and 5 February 2015. On 9 February 2015 the Department advised Global that instances of non-compliance with the National Law had been detected at the inspected sites. The non compliance related to child assessment evaluations (concerning delivery of educational programs) not being available on site, a failure to display a weekly menu for the children in care, a failure to ensure that the sleep and rest provisions for the children met the ages and developmental stages of the children (type and suitability of sleep / rest equipment). In addition matters relating to a lack of risk assessments prior to excursions, inadequate education materials, furniture, and equipment for educational or play needs and development of children were also identified.

9. Further compliance visits occurred at the Principal Office of Global in November 2016. Identified breaches included lack of available emergency evacuation procedures, lack of assessments of children’s outcomes / documentation regarding specific children held at the residence, premises not safe and secure, Register of Educators not complete, lack of appropriate materials / equipment for each child (related to age and developmental level).

10. In December 2016 the Department issued Global with a non compliance letter in respect of the identified breaches of the National Regulations - the Children (Education and Care Services) Supplementary Provisions Regulation 2012.

11. In January 2017 the respondent notified Global that it was assessed as ‘working towards National Quality Standard’. In February 2017 Global advised the Department of the action taken in response to the reported non-compliance at those sites.

12. On 1 March 2018 and 5 April 2018 two children under the care of Global sustained serious injuries at a residence of an Educator. In October 2018 Global was issued with a caution letter which stated that Global had contravened s 174 (2) of the National Law and regulation 176 (2) of the National Regulation by failing to notify the Department of the incidents as required by the National Law and Regulation.

13. During late 2018 the Department conducted various visits and inspections of the Principal Office of Global and residences of Educators registered with Global. These visits identified further instances of non-compliance with the National Law and National Regulations. In November 2018 a child left the residence of an Educator registered with Global undetected. In April 2019 a further caution letter issued by the Department to Global concerning the November 2018 incident. This raised a breach of the National Law by a failure to supervise children at all times.

14. In April 2019 the Department’s officers conducted compliance monitoring visits with Global’s Principal Office and 19 residences of Educators registered with Global. On 19 June 2019 the Department issued Global with a Notice of their intention to cancel the provider approval by way of a Notice to Show Cause (NTSC). This NTSC set out concerns about systematic issues relating to the family day care operations and that the non compliance constituted an unacceptable risk to the safety health and well-being of children being cared for and educated by the service as a basis for cancellation of the provider approval. In addition the NTSC also stated that failure to comply with the National Law and National Regulations by failing to comply with a condition of the provider approval was serious and a basis for cancellation. Further the NTSC set out that because of the matters identified in the NTSC, Global (through Mr Gaal Gaal - Global’s Director) was not a fit and proper person to operate an education and care service because of the history and systemic nature of the non compliance, and, a lack of governance and or ability to comply with the regulatory requirements imposed by the National Law and National Regulation.

15. In July 2019 Global responded to the NTSC and the Department gave Global time to implement the measures necessary to remedy the matters identified in the NTSC. In October 2019 follow up monitoring and compliance visits at the residences of nine Educators identified instances of non-compliance with the National Law and National Regulations.

16. On 17 January 2020 the Department cancelled Global’s provider approval.

17. In cancelling the provider approval the Department determined that there were systematic non-compliance issues in respect of the operation of the service, there were inadequate governance systems in place to satisfactorily address those issues, and the applicant was not a fit and proper person to operate an education and care service.

18. On 20 January 2020 Global filed their application with the Tribunal for administrative review of the decision and at the same time sought a stay. On 24 January 2020 the Tribunal granted a stay but with the condition that the business operated in a restricted capacity (less educators and children enrolled with the service).

The legislative scheme

19. The National Law is expressed in the Note to the Long Title as: The Education and Care Services National Law is applied and modified as a law of NSW by the NSW Children (Education and Care Services National Law Application) Act 2010.

20. The Children (Education and Care Services National Law Application) Act 2010 (the Application Act) has a long title which states that it is:

An Act to apply as a law of this State a national law relating to the regulation of education and care services for children.

21. Whilst the Application Act has no objects section, it can be gleaned from the long title that a purpose of the Act is to apply law, which is directed towards relating to the regulation of education and care services for children.

22. The objects section of the National Law is expressed as objectives and guiding principles at section 3 and goes to the provision of a quality framework, which improves and measures the provision of services to children. The section states:

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.

   23. The National Law provides under Part 3 for a natural person or company to operate an education and care service, which includes family day care services. An applicant must obtain service approval under Part 3 in order to operate an education and care service.

   24. The process as taken from the National Law provides that under Part 2 an applicant must have provider approval from the regulatory body, which is defined in section 5. Under the Application Act the Regulatory Authority is taken to be the Secretary of the Department of Education.

9 Regulatory Authority

For the purposes of the definition of Regulatory Authority in section 5 of the Children (Education and Care Services) National Law (NSW), the Director-General of the Department of Education and Communities is declared to be the Regulatory Authority for this jurisdiction for the purposes of that Law.

25. Section 51 of the National Law addresses conditions of service approval. The section provides for the following specified mandatory and additional conditions of service approval:

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.

1. A service approval is granted subject to a condition that the service 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.

2. 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.

1. 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.

2. 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.

3. 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.

4. An approved provider must comply with the conditions of a service approval held by the approved provider.

Penalty:

$10 000, in the case of an individual.

$50 000, in any other case.

26. The Regulatory Authority has a number of consequential powers and functions under the National Law following the granting of service approval. These are in the nature of application and refusal, amendment, transfer, suspension, cancellation, application for waiver of approval and temporary waiver. These matters are set out at Divisions 1 – 6 (inclusive) of Part 3 of the National Law.

27. Section 31 of the National Law provides for grounds for the regulatory Authority to cancel the provider approval in accordance with its powers under section 33 of the National Law.

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).

28. Section 33 of the National Law provides:

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.

   29. As set out above the grounds for the cancellation focused on the provisions under s 31 (a) and (b) of the National Law, that the applicant was not a fit and proper person, and that the continued provisions of education and care services would constitute an unacceptable risk to the safety, health or well-being of the children in the service.

Jurisdiction

30. The jurisdiction of the Tribunal arises from the operation of both the National Law and the Application Act. The Tribunal has previously determined that these matters under the National Law fall within the Tribunal’s general review jurisdiction. The National Law provides for external review of the material decision. Section 192 (b) (ii) provides:

192 Reviewable decision—external review

A reviewable decision for external review is—

(a)   a decision of the Regulatory Authority made under section 191 (other than a decision in relation to the issue of a compliance direction or a compliance notice); or

(b)   a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction—

(i)   to suspend a provider approval under section 27; or

(ii)   to cancel a provider approval under section 33; or

…

31. Section 193 under Part 8 of the National Law provides for the manner of external review of a decision of the Regulatory Authority:

193 Application for review of decision of the Regulatory Authority

(1)   A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision.

(2)   An application must be made within 30 days after the day on which the applicant is notified of the decision that is to be reviewed.

(3)   After hearing the matter, the relevant tribunal or court may -

(a)   confirm the decision of the Regulatory Authority; or

(b)   amend the decision of the Regulatory Authority; or

(c)   substitute another decision for the decision of the Regulatory Authority.

(4)   In determining any application under this section, the relevant tribunal or court may have regard to any decision under this Law as applying in another participating jurisdiction of a relevant tribunal or court of that jurisdiction.

32. Section 5 of the National Law defines relevant tribunal or court.

5 Definitions

(1)   In this Law—

….

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;

33. Section 8 of the Application Act provides that NCAT is the relevant Tribunal for the purpose of such an external review.

8 Relevant tribunal or court

For the purposes of the definition of relevant tribunal or court in section 5 of the Children (Education and Care Services) National Law (NSW):

(a)   the District Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 181 of that Law, and

(b)   the Civil and Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Part 8 of that Law.

The Hearing

34. The matter was heard over three sitting days: 9, 10 and 13 July 2020. Due to the Covid-19 hearing requirements the hearing took place by Audio Visual Link (AVL) but at times due to technical issues parties and witnesses appeared by telephone.

35. At the beginning of the hearing the Department outlined the three matters that the Tribunal needed to identify:

• Did Global breach the National Law and Regulation, and do any breaches show a history and governance issues that Global’s operations present an unacceptable risk to the safety and well-being of children.

• Whether Global is fit and proper person.

• Whether Global has breached a condition of its provider approval by failing to comply with the National Law.

36. Global submitted as an opening that the exercise of the power in sections 31 and 33 of the National Law is discretionary, however the power of the regulator must be exercised in accordance with the intention and purpose of the statute. Global submitted through their Counsel that the breach issues came to a head when the show cause notice was issued in June 2019. However Global submitted that there must be systemic problems with their ability to regulate their care and that the factual matters underlying the cancellation are either not made good or do not meet the requisite threshold, as the statute does not impose a mandatory requirement absent the word ‘must’.

37. The Tribunal must determine what is the correct and preferable decision having regard to the material before it, as held in DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [24]- [26]. It is not confined to the material before the original decision maker or the reasons identified in the decision under review. (Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [28], [41], [87]).

38. The Tribunal may confirm or amend the decision under review, or substitute another decision for the decision under review (s 193 National Law).

39. There is no onus of proof upon either party - Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 at [32]- [38].

Documentary Evidence

40. Global filed the following material in addition to their oral evidence:

• Affidavit of Teresa Scuderi sworn 30 March 2020 Exhibit A 1

• Affidavit of Michelle Chidiac sworn 30 March 2020 ‘Exhibit A 2’.

• Affidavit of Mr Gaal Gaal sworn 30 March 2020 ‘Exhibit A 3’.

• Further Affidavit of Mr Gaal Gaal sworn 8 July 2020 ‘Exhibit A 4’.

• Written submissions of Counsel dated 25 June 2020

41. The respondent filed the following material:

• The section 58 documents – inconformity with the Administrative Decisions Act 1997 (the ADR Act) ‘Exhibit R 1’.

• Policy Documents relating to the National Law Exhibit ‘R-2’

• Statement of G Buckley 19 May 2020 Exhibit ‘R-3’

• Statement of M Hyde 19 May 2020 Exhibit ‘R-4’

• Statement of K Reeves 19 May 2020 Exhibit ‘R-5’

• Statement of J Smith 19 May 2020 Exhibit ‘R - 6’

• Statement of L Doolin 21 May 2020 Exhibit ‘R- 7’

• Statement of A Bell 19 May 2020 Exhibit ‘R-8’

• Supplementary Statement of J Smith 8 July 2020 Exhibit ‘R-9’

• Written submissions of Counsel filed 6 July 2020.

The total amount of material submitted by the parties amounted to thousands of folios including annexures.

Evidence at hearing

42. The applicant Mr Gaal Gaal Director and Principal of Global gave evidence at the hearing. In Evidence in chief he adopted his affidavits as true and correct.

43. In cross-examination Mr Gaal confirmed that he was the sole Director of Global. When asked to what extent he knew and understood the National Law he said that he did so to the best of his ability. Mr Gaal said that he was unaware of any breaches until he received the respondent’s letter. However as soon as he was aware he took steps to rectify the breaches.

44. There was an exchange during cross-examination about how Global believed that they had become compliant. Mr Gaal confirmed that his understanding was that they were compliant because once he advised the Department of the action taken (and he heard nothing further) he believed that Global must have satisfactorily addressed the breaches. If something further was required he believed that the Department had a responsibility to raise it.

45. Mr Gaal stated that there were a lot of breaches identified where the operators are independent of the company. Global was not able to monitor all Educators sites daily, so there was always the possibility of breaches on minor matters.

46. Mr Gaal was asked about an evacuation floor plan as referred to in his March 2020 affidavit. He said that the business does not operate from a central premises. As such it is not possible to check each Educator’s premises in the morning and again at the end of the day. The issue concerning the evacuation floor plan being absent was said to be due to the failure of the ‘blue-tac’ to keep the plan adhered to the visible location (on the wall). Mr Gaal said that he had thought about installing a standardised central board for these important notices but had not done so as many of the Educators premises are rented and as such installation of a board bolted to an internal wall would not be permitted.

47. Mr Gaal illustrated the nature of the business and the difficulty with some aspects of compliance and education. The purpose of this appeared to be put matters into some sort of context. He said that 99% of Global’s Educators are women who came to Australia in their 20s. He said that they meet the Educators twice a month when they come to the office to drop off their time sheets. Mr Gaal said that they (the operators / supervisors) are only required to visit the sites monthly. However Mr Gaal stated that Global also conducts ‘spot visits’. Mr Gaal was asked whether he thought that fires were dangerous (in the context of missing fire evacuation plans). Mr Gaal said that as it is your own residence then it is less important (as the educators knew the layout of their homes). However Mr Gaal agreed that it was more of an important issue for others who did not live at the residence and as a result were less familiar with the layout.

48. Mr Gaal was also questioned about an incident where an Educator took children in their care swimming. Mr Gaal agreed that no permission had been sought from the parents of the children to go on an excursion. He stated that swimming is not part of an Educator's role. They can take children to an authorised facility with prior permission (such as a swim school) but this was not the case in this instance. The Department raised with Mr Gaal evidence that the Educator who took the children swimming could not swim themselves.

49. Mr Gaal was asked whether he understood that as an approved provider under the National Law he understood that risk assessments needed to be carried out for each premises. Mr Gaal advised that he did understand this requirement. When asked wether a lack of a risk assessment posed a tangible risk to the safety of children Mr Gaal advised that was correct. However he said that the risks in some homes were greater than others and some issues like being on a flood plain could not be addressed.

50. When asked about the response provided to the breach notice and whether he drafted the response Mr Gaal advised that he and his team completed the response. When asked whether he signed the response Mr Gaal said that it was either himself or the supervisor.

51. When asked directly whether it was his position that only the Department was responsible for notifying him of breaches Mr Gaal advised that he now believed it was also his duty to notify the Department. In respect of the inspections he conceded that the responsibility for compliance rests with him as the Director and approved provider.

52. Mr Gaal gave evidence that he was an office bearer in an Association of Family Day Care providers in Sydney and noted that from that role that he was aware that 80% of the family day care businesses were rated with the standard of ‘working towards’, (satisfactory standard) as Global had been prior to the cancellation of the approval. In this regard Mr Gaal did not see the matter concerning Global as in any way unusual.

53. During his evidence Mr Gaal repeatedly returned to the position that the Department had not followed up or further advised him that the measures put in place were not sufficient and that the business remained non compliant. The reoccurring position was that whilst the approved provider had obligations there were also obligations on the Department. An example in evidence was a statement that the Department did not follow up each particular complaint issue after November 2016. Mr Gaal conceded that there were similar issues identified in subsequent inspections but that these involved different Educators to those identified in earlier breaches. A chronology supporting these concerns was set out at [41] of Exhibit ‘A-3’.

54. Mr Gaal advised that there were a high turnover of Educators and this contributed to the compliance issues and keeping on top of the training and supervision. The Department pointed out that the evidence at [19] (e) and [41] (g) of Exhibit ‘A-3’ highlighted repeated instances of exactly the same non-compliance issue (evacuation plans at Educator residences) over the period 2017 to late 2018.

55. Mr Gaal was questioned about the incorrect or age inappropriate equipment used by some Educators. It was put to Mr Gaal that more than one breach of a provision shows a systemic problem. Mr Gaal was non-committal in his answer to this question and referred to the amount of compliance required by the Department. However Mr Gaal did acknowledge that he is responsible for the well being of the children and that he needed to ensure that developmentally appropriate material is available and that failure to provide such material could be construed as a risk to the child. An example was provided during the hearing of preschool age play equipment being able to be used by older children as a climbing frame or ladder.

56. Mr Gaal was asked about a conversation with a Departmental Officer in January 2019 where non-compliance issues were raised. Mr Gaal questioned whether the Departmental officer had lied to him in saying (in Jan 2019) that she did not have any knowledge of any breaches. This matter related to a child going missing from an Educators residence. Mr Gaal’s evidence was that the Educator nursed the child to sleep (the other children were sleeping). When she thought the child was asleep she went to the bathroom and when she returned the child was missing. The child was eventually located after a search of the neighbourhood and Police and the child’s mother being notified.

57. Global installed gates to the entrance to the carer room and other parts of the residence in response to this incident. Mr Gaal’s evidence was that the Educator did not inform him of the incident because she was fearful of not being allowed to continue to care for children. The Educator was dismissed by Global and the Department issued a Show Cause Notice.

58. Mr Gaal was questioned about incidents where Global’s Educators were not following the safe sleep checklist. Global conducted training in safe sleep practices in October 2019 however the Department officers found that unsafe sleep practices were continuing even after this training. The Department characterised these matters as a breach of s 167 of the National Law.

59. Mr Gaal referred to Gobal’s field workers which were the company co-ordinators or supervisors for the Educators. He said that the field workers speak the same language as the Educators (English being a second or subsequent language) and communicate with them in their first language. However the Tribunal noted that all of the documents and signage required by the National Law was presented (in the evidence in these proceedings) in English.

60. Mr Gaal advised that in response to the compliance issues his co-ordinators and the Educators cannot understand properly what the Department’s officers say. Mr Gaal said that the Department’s officers never provide the Educators with translators. He said that their visits were very ‘hush hush’ as in there was no notice. When Global conducted their own visits of the Educator’s residences they referred to them as ‘spot checks’. Mr Gaal said that Global gave the Educators time to implement changes arising from their checks, but that the Department does not. He said that the Department conducted their inspections in a military style approach sending one group to Global’s Office at the same time that another group is in the field about to visit an Educator’s residence.

61. Mr Gaal was asked a number of questions about his obligations as Director of Global. He was asked whether the notified the Department when his Child Care Benefit (CCB) approval was cancelled in June 2019, as required under the National Law. He said that he did not notify the Department of this matter until December 2019 as he was appealing the Commonwealth decision to cancel the CCB. Mr Gaal noted that if clients are able to pay the full fee then he would be able to continue operating without the CCB.

62. Mr Gaal was asked generally about his obligations under the National Law and whether he was fully aware of them. The Department referred to the company Universal Family Day Care being deregistered by ASIC in 2018. Mr Gaal said that he can operate irrespective of ASIC’s decision in that Company.

63. Mr Gaal was questioned about matters outlined in his statement of 8 July 2020 (Exhibit ‘A 4’). The statement was responsive to matters raised by the Department about non-compliance issues. Emergency evacuation procedures, parents not signing children in and out, matters concerning safety of items in the education and care premises such as plastic chairs, as well as written approval to take children off premises were all canvassed in the statement. Mr Gaal gave various explanations for these matters such as parents being busy and rushed and not wanting to sign on behalf of their children. In respect of the evacuation plan issues Mr Gaal could not understand why the Educator was non compliant on the day of the visit (no visible plan displayed) as she had been given training and knew what was required. Mr Gaal noted however that in the relevant assessment and rating process this issue of non-compliance was not raised.

64. In addition fire extinguisher inspections had not occurred and Mr Gaal advised that whilst Global does follow ups it is the servicing company’s responsibility to schedule the inspection visit.

65. Mr Gaal outlined concerns with the Departmental practices during the Educator inspections. He advised that the Educators had told Global that the way which the inspectors ask their questions and coupled with this occurring while they are still tending to children, makes the interactions difficult. Mr Gaal’s view was that the Inspectors should go through Global’s office. However the Department pointed out that the March 2020 inspection (which covered some of the above issues) occurred whilst there were no children in the care of the relevant Educator at the time of the inspection.

66. Mr Gaal was taken to his evidence at [24] of ‘A-3’.

1. We were not aware (because we were not informed) that preschool children were being taken out of the premises without written parental authority for school drop off. We would never allow this to happen and would require a full risk assessment before seeking written parental authority. I believe that this had only happened in a couple of days or a week before the visit and this educator had made an honest mistake in this instance in not having the form completed. Had this been going on for longer, then we would have been aware of this and would have required the risk assessment and written parental authority.

   67. There was also evidence at [28] of Mr Gaal’s 8 July 2020 statement that an Educator had a private arrangement with parents to provide a transport service for the school age children to and from school. In this context Mr Gaal was asked whether he was aware that the children being dropped off were being marked in the official records. Mr Gaal said that he was aware of this and the Department noted that in such circumstances the matter could not be referred to as a ‘private arrangement’.

   68. Mr Gaal was questioned about other matters of non-compliance including a cracked glass wall. He confirmed that the coordinator from Global had not noticed it on the last inspection. However the Department noted that the coordinator had told the Department that she had previously seen the cracked glass wall. Questions related to Global’s knowledge of the equipment at educator sites. Once piece of play equipment was referred to as a plastic slide but in fact was a combination slide table and bench. The concern (as noted previously) was that the equipment could be used by children to scale walls and exit the Educator’s premises.

   69. In re-examination Mr Gaal was asked about his earlier evidence where Educators were terminated. He was asked who makes the decision to terminate an Educator. Mr Gaal advised that either a supervisor / coordinator or himself makes the decision.

   70. When asked why he might terminate an employee Mr Gaal advised that non compliance with the legislation would be a basis for termination. Mr Gaal was asked (bearing in mind his earlier evidence) how he would know if an Educator understood the obligations and requirements placed on them. Mr Gaal said that Global updates the Educators with policies by USB and email. When asked whether Covid-19 had impacted on the business Mr Gaal advised that it had, as there were currently less supervisor / coordinator visits but more online training and updates.

   71. The Tribunal inquired of the witness at the end of re-examination in accordance with the provisions of s 38 (2) of the NCAT Act. Mr Gaal agreed with his earlier evidence that 99% of the Educators were born in Iran and had poor English skills. He referred to the training of Educators and said that some of the training occurs in the residences with the Educators and some at Global’s central office. When asked by the Tribunal to give a logistical description of the size of the business he said that there were over 100 Educator sites being Educator households providing family day care services under the company. Some Educators were mothers and some were grandmothers.

   72. When asked to characterise the case against Global by the Department he said that he viewed some of the breaches as minor things. Mr Gaal generally at this point talked up the staff and their life experiences and their dedication to the care of young children. Mr Gaal characterised some of the breaches as ‘just normal human error’. He said that all staff were qualified and had completed their Child Care Certificate (CCC) or Diploma.

   73. Mr Gaal was asked to elaborate on his references to the Department engaging in ‘military style operations’ when conducting inspections. Mr Gaal told the Tribunal that the process tended to ‘unsettle the Educators’. Mr Gaal sought to contrast the current practice with previous practice. He said that in the past four or five years the Department had stopped calling owners so they could accompany the Inspectors into the residences. He said that 70% of the Educators with Global were from a Syrian cultural background and the (inspection) process was not fully understood by them.

   74. The Tribunal asked further questions about the ratio of Educators to Coordinators / Supervisors. Mr Gaal said that the ration is meant to be 15 to one but that he always has more Coordinators. These extra workers cover issues arising with the high level of Syrian and Arabic languages. Mr Gaal was asked to give a breakdown of the situation today and he advised that he only has 15 Educators and has three Coordinators two of which speak Arabic. The Tribunal questioned Mr Gaal on the inconsistency of these figures with his earlier evidence (where he stated at [71] that there were over 100 sites). Mr Gaal said that the recent figures were as a result of the conditions that the Department placed on Global following the cancellation and the terms of the Stay Order, where they could only operate at reduced capacity and not receive the CCB – pending an appeal.

   75. The parties’ representatives asked final questions of the witness arising from the Tribunal’s questioning. Mr Bennet for Global asked whether there were any Educators who did not speak English. Mr Gaal answered that ’they all speak English to a certain degree.’ He was then asked whether any educators did not read English. Mr Gaal answered that ‘they all read to a certain degree.’

   76. Ms Trehanas for the Department asked to clarify whether the funding cuts relating to the reduced operations were Commonwealth or State based. Mr Gaal said that they were Commonwealth based. In respect of the training that Global provided the staff, that occurred (pre-Covid). Mr Gaal was asked whether that was funded by Global or the Educators. He said that it was 50 / 50.

   77. Mr Gaal was also asked whether he had agreed to the conditions of the stay in respect of taking on limited work. Mr Gaal confirmed that he had agreed to those conditions but that he was ‘forced to, in order to be able to work.’

Respondent’s witnesses

78. Four of the respondent’s officers were required for cross-examination. Officers Hyde, Rees, Doolin and Buckley gave evidence on the second day of the hearing. Three of these officers conducted inspections of Global’s Educator’s residences.

Ms Hyde

79. In cross-examination Ms Hyde was questioned about the evidence in her statement (Exhibit ‘R 4’).

80. Ms Hyde was asked about a particular inspection visit concerning Ms ‘M’ who was providing care in a converted garage. Ms Hyde said that during her visit she did not witness any preparation of food for the children receiving care. The Educator’s mother, brother or father were not present during the inspection and the children were in the double garage the entire time. When asked whether the Educator was ‘agreeable’ during the inspection the witness agreed with that characterisation. The witness was asked about the Educator’s accent and agreed that she spoke with an accent. In respect of whether the Educator was ‘stressed’ during the inspection the witness believed that she may have been.

81. In re-examination the witness confirmed that the Educator’s sister arrived after about 10 minutes. Exhibit ‘R 4’ set out a number of concerns about the absence of a menu for the children’s food, incomplete attendance records, fire extinguisher compliance, lack of age appropriate resources, play equipment placement to allow children to climb out of care area and other concerns about accessing the sleep area through a window from the care area. The inspection occurred in March 2020.

Ms Rees

82. In evidence in chief Ms Rees altered one aspect of her statement (Exhibit ‘R 5’) replacing the reference to one item in an annexure to five items.

83. In cross-examination the witness was asked in broad terms about her experience with non-English speaking clients. She agreed that many Educators have English as a second language. The witness said that she and her colleague did not speak to Ms ‘Y’ on the day of the visit so she was unsure about her level of English. The witness agreed however that Ms ‘G’ did not speak ‘perfect English’, but she did speak English. The witness said that she offered the support of an Interpreter but the Educator was content to use the support worker to interpret. The witness agreed that the visits are unannounced and that they work through a compliance checklist.

84. The witness was asked questions about the height of the pool fence and whether the Smartphone App that she used to measure the fence was accurate. The witness agreed that she could not discount with absolute certainty that the fence was not higher than 1:05 metres. When asked whether the Educator was stressed or distracted during the inspection the witness said that she tried to create a rapport with the Educator to ease any stress.

85. In re-examination the witness was asked why she did not speak to Ms ‘Y’ during the visit. The witness said that Ms ‘Y’ was not about the house when she attended for the inspection and that her evidence was based on speaking to and observing the Educator that was present. Ms Rees’ evidence addressed concerns about the plastic slide or slippery dip being 30cm from the pool fence, a significant crack in a glass wall / floor to ceiling glass panel between the indoor and outdoor play environment. A portable cot was set up in front of an emergency exit. The presence of foam pads inside a sleeping cot contrary to safe sleep rules requiring only a mattress and bedding but no other objects. There was also evidence of transporting under school age children with the school age children on school runs without parental authorisation. The inspection occurred in March 2020.

86. The Tribunal asked for clarification about the assistant interpreting for the Educator. The witness said that Ms ‘G’ wanted to use her daughter. The Tribunal asked what was the level of engagement in respect of the cracked glass. There was some engagement about whether the glass was safe and reference to a previous glazier’s certificate. Mr Bennet asked the witness whether she asked Ms ‘G’ when the glass was damaged and she confirmed that she did not ask that.

87. The witness gave evidence in her statement about the swimming pool fence, a slide close to the pool fence (as a climbing risk), a bar-b-que and associated gas cylinders / bottles and equipment accessible behind a sliding gate, the cracked glass panel, a cot blocking an emergency exit, unauthorised items, safety hazards in cot, an unauthorised Educator Assistant, lack of authorisations for excursions, as well as health and hygiene issues around nappy changing.

Ms Doolin

88. The witness adopted her statement (Exhibit ‘R 7’). In cross-examination the witness was asked about how she recorded the details of her inspections. She said that she made contemporary notes. The witness added that sometimes she takes her ‘National Law and Regulations book’ with her on inspections. When asked whether she takes a third officer with her Ms Doolin denied ever taking more than one colleague with her on an inspection visit. She advised that telephone translators are offered when the circumstances arise in an inspection visit. The witness agreed that many Family Day Care workers are from a non-English speaking background.

89. The witness was asked whether she agreed that educator Ms ‘S’ did not speak perfect English. The witness disagreed with this proposition. Likewise the witness disagreed that Ms ‘S’ did not understand what was being put to her. The witness also disagreed that another Educator Ms ‘H’ did not understand or that her English was not perfect.

90. The witness was asked about the compliance checklist and whether the term ‘must’ is a requirement in meeting compliance. The witness advised that it is up to the lead investigator to implement the National Law in any particular inspection scenario. The witness said that as a Senior Field Officer we make sure that the Educators know who we are at the beginning of an inspection. If there are children in care at that time we apply one compliance check process. If there are no children in care at the time we attend then we go down a different course. When asked about the differing obligations when children are and are not present the witness advised that some obligations persist irrespective of whether children are in attendance or not. An example given was the record keeping and display of mandatory notices which always apply.

91. The witness was asked about Regulation 166 concerning inappropriate discipline generally. The witness said that children’s behaviour can be unpredictable at times but that Educators have an obligation to appropriately supervise the children. The witness said that in her experience with Global two staff would be engaged. When asked if the staff could be distracted during the inspection she advised that this was not the case.

92. The witness was asked whether she would agree that an Educator might answer a question as asked even if they did not understand it. The witness confirmed that this may have been the case with aspects of Ms ‘S’s answers at [8] and [9] of ‘R 7’. The witness was asked for examples of the types of risk assessments required under the rules. She said that emergency procedures, transport issues and excursions were the main types of matters involving risk assessments.

93. The witness was questioned about her evidence in her statement about non-compliance with safe food practice. The witness said that Ms ‘S’ did not wipe down the food surfaces and as a result the witness believed that the Educator (Ms ‘S’) was in breach of the National Law and Regulations.

94. The witness confirmed that she would include any conversation that she thought was important (to the extent possible) in her statement such as the initial exchange between her and Ms ‘S’ when she arrived for the inspection (at [9] of her statement). In respect of the cracked plastic chair the witness could not confirm exactly what was discussed.

95. When asked about the documentation at the premises as set out at [19] of her statement the witness referred to the colour tabs on the pages with incomplete records / documentation. The witness conceded that she did not specifically ask about these deficiencies during the inspection. However the witness confirmed that the missing information was spoken about at the time.

96. In re-examination the witness was asked about the exchange between her and Ms ‘S” about the incomplete records relating to child movement and transportation out of the residence. The witness said that she believed that Ms ‘S’ gave her answers (as set out at [19] and [23] of the statement) openly and was not confused or otherwise not understanding.

97. The Tribunal asked the witness what was the practice in respect of dealing with issues identified during the inspections. The witness said that they try and follow through with ‘guided compliance’ where the approach is to rectify any issues capable of being addressed at the time of the inspection.

98. The witness confirmed to the Tribunal that there was no evidence generally of Educators being distracted during the inspections, nor was there any evidence of Educators not understanding the written documents (notwithstanding their language difficulties). If Educators were distracted from the inspection by a child or inquiry from a parent then they came back later that day to complete any outstanding inspections.

99. The witness statement dealt with emergency practices and lack of risk assessments at the residence, incomplete authorisations for excursions, unsafe food and general safety practices concerning food preparation areas, a broken plastic chair and lack of compliance with fire safety equipment inspections.

Ms Buckley

100. Ms Buckley is the Director of Statewide Operations for the Early Childhood Directorate of the Department and she adopted her statement (Exhibit ‘R 3’ ) less one paragraph.

101. In cross-examination the witness was asked whether she had direct knowledge of investigations taking place at any given time. The witness advised that this was usually only when matters needed to escalate that she was brought up to speed on what was being examined. She advised that there are 5,500 visits per annum across NSW and acknowledged that Family Day Care operations will always have a range of experiences upon inspection.

102. The witness was asked about the proposition that the Rules do not set out specific toys that could be used for specific age children. The witness agreed with the general proposition but said that generally suitable ‘age appropriate’ toys and materials should be utilised. The witness agreed with the proposition that reasonable minds could differ as to what was appropriate for child play.

103. The witness endorsed the checklist as a positive approach because the Department needs to have a consistent approach. The witness was also asked about the cultural observations of the Investigators in compiling their reports about Global’s operations. The witness agreed that the provision of care by persons from the same culture as the children in their care was an important consideration and would be beneficial to the children.

104. The witness confirmed that she did not work on any of the matters involving Global prior to 2019 (the 2015-2018 investigations). She confirmed that the references to that material (prior to 2019) in her statement (Exhibit ‘R 3’) arises from Departmental records.

105. The witness was asked about the list at [32] of her statement. She said that those Educators at (g) – (k) from that list, were the only Educators where compliance checks were actually completed on 5 April 2019 out of the overall visits to 18 residences and the central office that day. The witness was asked whether there were any other compliance checks carried out on Global since 2013 that were not referred to in her statement. The witness said that it is possible that there may have been other visits.

106. The witness told the Tribunal that if an unannounced visit occurs and there are no compliance issues, then it is possible that no further communication from the Department will occur, in that Global or the provider depending on which business, may not be advised.

107. The Tribunal asked whether the witness was the delegated decision maker in the current matter. She advised that she was on leave when the cancellation decision was made by a delegated colleague, but that she would make the same decision based on the material that she was aware of. The Tribunal was referred to [55] of her statement.

Applicant’s Grounds / Written submissions

108. Global relied on their written submissions filed and served on 26 June 2020 but no longer pressed an issue about reducing regulatory complexity. Global submitted that the preferred decision for the Tribunal was to find that Mr Gaal is a fit and proper person to whom provider approval should be granted, and that he neither poses an unacceptable risk to children or failed to comply with a law in respect of the operation of the services or has not done so in a manner that justifies cancellation of the provider approval.

109. Global in written submissions focused on the issue of whether the evidence should be interpreted from a perspective of strict compliance with the National Law and Regulations. Global submitted that strict compliance was not pressed and pointed to the fact that historically the Department’s approach had not been to cancel the provider approval on the breach of a single condition but to engage with the provider to rectify compliance. Global submitted that strict compliance would be contrary to s 3 of the National Law (as set out at [22] above) in that such an interpretation would be against the guidance provided by the section.

110. Global submitted that the regime should be considered as at least allowing a breach of a condition that will not necessarily lead to cancellation of provider approval. In this context Global sought to characterise the test as one whereby the Tribunal (or decision maker) needed to ask itself the question by examining the nature of the breach of a condition or the law and regulations and determine whether it was of such a nature that it justifies cancellation.

111. Reference was made to the case of CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190 at [89] where the Tribunal observed:

1. The assessment whether the applicant is a fit and proper person is a value judgment by the Tribunal; it takes its meaning from its context, the activities in which the person is engaged and the ends to be served by those activities. The assessment relates to not only character, reputation and moral integrity but also includes public confidence that the person is able to maintain high standards of rectitude and that their likely future conduct will keep to those standards. The question as to whether a company is fit and proper person may be determined by reference to the conduct, character and reputation of a single person associated with the company.

   112. Reference was also made to CZR v Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 282 where at [35] to [37] the following was stated:

2. “The expression “fit and proper person” “takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities”. Australian Broadcasting Tribunal v Bond (1980) HCA 33 170 CLR 380.

3. In Hughes v Vale Pty Ltd v NSW (No.2) [1955] HCA 28; (1955) 93 CLR 127 the High Court considered that “fitness” had three components; honesty, ability and most relevantly, ‘knowledge’ in the sense of knowing what ought to be done.

Conclusion

1. The Tribunal agrees with the respondent’s submission and finds that a ‘fit and proper person’ for the purposes of s.12 of the National Law must demonstrate detailed and accurate knowledge and understanding of the National law and the Regulation. While a knowledge of National Law is not expressly contemplated in s.13(1) and (2) of the National Law in determining ‘a fit and proper person”, s.13(3) of the National Law makes it clear that factors not expressly listed may be taken into account in determining whether a person is a fit and proper person.

   113. Reference was made to Mr Gaal Gaal the Director of Global being a former Special Constable with the London Metropolitan Police. Global submitted that for this and other reasons he was a person of ‘good standing’. Global was fit and proper and had always been honest in their dealings with the Department. Global submitted that breaches are denied and to the extent that they are not denied it was submitted that the breaches are not of a nature to pose such an unacceptable risk to the safety, health and well-being of a child or children so as to warrant cancellation of approval.

   114. Reference was made to the case of Nilufar v Secretary, Department of Education [2020] NSWCATAD 37 at [55] - [58] where it was stated in respect of the notion of unacceptable risk:

What is an unacceptable risk

1. The term “unacceptable risk’ is not defined in the legislation. In Kendrick it was held that:

   “The assessment of unacceptable risk of harm is dependent upon a consideration of the objectives under the National Law, and unacceptability of risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate.” (at 50-51]).

2. The objectives in s 3 include ensuring the safety, health and wellbeing of children attending education and care services. In addition s 3(3)(a) states that one of the guiding principles is that the rights and best interests of the child are paramount.

3. Secondly as noted above the National Law is protective in nature.

4. In our view, therefore, in this context a risk is unacceptable if it is not compatible with, or would detract from ensuring the safety, health and wellbeing of children attending the services provided by the applicant and promoting the rights and bests interests of children.

   115. Reference was made to the case of Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 which was referred to in Nilufar. In respect of unacceptable risk of harm that was submitted as being dependent on both the likelihood of risk and the gravity of the risk that may eventuate.

   116. Global set out in written submissions all of the compliance activity that they conduct in order to mitigate risk of harm in the provision of service for children. Global conducts initial home checks, induction processes for Educators, monthly home visits, engages external experts for fire evacuation and associated processes, educates staff re: safe sleeping practices for young children, engages with the Department and is responsive to matters raised.

   117. Global submitted that they have a history of monitoring for compliance and when there is default, taking steps to rectify compliance. In addition Global submitted that no person in their position can guarantee that the risk of harm or the gravity of harm if it were to occur is nil. In this context Global submitted that the intention of the statute could not include that any breach of the National Law or a condition will do enough to justify cancellation of provider approval.

Further submissions at hearing

118. At the conclusion of the evidence Global’s Counsel made further submissions in addition to their reliance of the written submissions. Global summarised the issue for the Tribunal to consider:

• whether they were fit and proper (Mr Gaal),

• whether the continued operation of the service would pose an unacceptable risk to children,

• whether there had been a failure to comply with the National Law.

119. Global noted that the Department’s argument was that the breaches were so regular as to be of concern. However Global submitted that to allege that the breaches are repeated does not address the circumstances of the breaches. In this regard they could not all be characterised as being breaches of the same nature or seriousness. Regulation 81 of the Education and Care Services National Regulations was cited as an example of breaches in the sleep and rest provisions and that they were not all of the same type or seriousness.

119. Global submitted that in respect of a number of breaches of these matters no action was taken by the Department and referred to evidence in the statements of Mr Gaal. Global submitted that the identified breaches around the area of inadequate educational material or age appropriate material were not significant breaches.

120. Global submitted that they rely on third party providers and consultants to develop policies in respect of the running of the business and their compliance with the National Law. In response to the evidence of the Solicitor for the Department who examined Global’s policies and noted their similarities and that they were generic in nature, Global submitted that they were merely trying to maintain a consistent industry standard.

121. Global also addressed the matters raised by the Department in the material concerning Mr Gaal’s involvement with company Universal Family Day Care. That entity was deregistered by ASIC according to Global, because of a failure on the part of the Company accountant to bring the relevant Notice to the Director’s attention. Global submitted that Mr Gaal was not at fault in that regard and that weight should only be placed on evidence adduced in these proceedings not proceedings elsewhere.

122. Counsel for Global submitted that the question for the Tribunal was: do the breaches as established, give rise to a level of concern warranting cancellation? Global submitted that from 2015 onwards the responses do not identify matters or such matters that create or establish an unacceptable risk.

123. In respect of the incident where the child left the care premises Global submitted that the issue was rectified by placing locks on the doors and or gates. The issue was whether this should have been done sooner.

124. In closing, in respect of the responses to the gravity of the circumstances of a breach Global submitted that the test from Kendrick should apply, and in the alternate conditions could be placed on the approval (as reinstated). The issue in Kendrick related to a very serious matter where child abuse material was found on a USB stick in premises where care was provided under the provisions of the National Law. However whilst many of the instances were of lesser seriousness than the facts in Kendrick, the same rules applied to the current matter.

Respondent’s submissions

126. In oral submissions the Department submitted that the decision should be affirmed for the following main reasons:

• Global’s history of non-compliance with the National Law and the National Regulations;

• Global’s approach to certain of the instances of non-compliance and the compliance monitoring visits that have been conducted by authorised officers;

• The cancellation of Global’s approval under the A New Tax System (Family Assistance (Administration) Act 1999 (Cth) (the ‘FAA Act’);

• Mr Gaal’s involvement with other family day care services.

127. In the area of non-compliance there has been five years of documented incidents of non-compliance with the National Law and the National Regulations. These matters are set out in detail in the evidence adduced in the proceedings. The Department submitted that Global should not rely on the Department to identify areas of non-compliance to ensure that Global takes appropriate compliance measures. The Department cannot rely on Global to comply with the National Law and National Regulations because of this history. The Department submitted that this goes to the question of whether Global (and Mr Gaal) are fit and proper to be entrusted with this service as the evidence demonstrates that they do not possess adequate knowledge and understanding of their responsibilities as approved providers.

128. Global’s approach to the non-compliance matters have been repeated breaches of the same provision and not ‘one off’ matters. The repeated breaches have occurred despite Global claiming to have taken measures to prevent and address the relevant breach following notification by the Department.

129. Examples in the areas of: safe sleep practices, first aid kits, evacuation plans, potential safety hazards in care areas, movement of children outside of care area without authorisation, lack of risk assessments, failure to ensure appropriate education, play and other developmental equipment is age appropriate to children in care, failure to maintain enrolment records including health and safety and contact details for children were all cited by the Department and set out in detail in the evidence. The Department submitted that with this history the measures put in place by Global have been ineffective.

130. The Department also submitted that the above matters constituted a risk to children due to safety or placing children at risk of harm due to lack of adherence to mandatory legislated requirements in a care setting. The documented injuries to children in care in March and April 2018 and the November 2018 ‘child leaving incident’ (which carried with it the risk that the child who left the residence of the Educator could have been harmed) all illustrate risk to the safety and well-being of children.

131. Regarding Global’s approach to non compliance the Department submitted that Global did not have an adequate understanding of the responsibilities of an approved provider or the management capability to operate a family day care service.

132. The Department submitted that Global had not complied with the National Law and continued to deny non compliance. Global’s attitude to record keeping demonstrates a lack of understanding of the requirements and obligations of an approved family day care provider under the National Law. Global consistently submitted that non compliance with record keeping does not (in and of itself) pose a risk to the safety of a child in the same way that the presence of immediate danger does. However the Department relied on the evidence of the witness Buckley from Exhibit ‘R 3’ which canvassed the importance of record keeping in the context of the care regime under the National Law. At [60] of that statement Ms Buckley sets out that the failure to keep accurate and up to date records of care:

May mean that provider and educators are not aware of their obligations under the National Law and Regulations and that they may miss risks to the safety and wellbeing of children.

133. The Department submitted that Global’s attitude to record keeping demonstrates that they do not understand the purpose of the obligations. Whilst Global had claimed to have conducted extensive training of Educators the evidence in the proceedings demonstrates that Educators do not have a good understanding of the policies and procedures and the checklists and their purpose.

134. The Department submitted that no evidence from Educators was provided. Global’s witnesses sought to convey their understanding of the Educators position during inspection / compliance visits. The witnesses advised that the Educators felt stressed and for that reason did not answer questions correctly. However the Department said that Global’s witnesses were not present at this time and greater weight should be given to the first hand accounts of the Departmental witnesses.

135. The Department drew the Tribunal’s attention in submissions to the cancellation of the CCB by the Commonwealth Department. This was because they were satisfied that Global had not complied with their conditions of approval for the CCB. The Commonwealth findings included that Global had failed to adequately monitor and supervise their Educators and had tried to avoid responsibility for non compliance with their obligations by nominating others as being at fault (attributing the blame to staff and Educators).

136. In addition the Commonwealth Department found that Global had inaccurately reported its activities, such as including 143 sessions of care when Educators were overseas and 265 sessions of care that could not have occurred because the nominated children were overseas. In addition 149 sessions of care were reported by Global when eligibility for the CCB was not available because the child’s parent or partner of the parent provided the care.

137. Neither Mr Gaal or Global notified the Department of the cancellation of the CCB. Under the National Law Global had a duty to disclose this matter and the Department submitted that as a result the applicant is not fit and proper to deliver this service. (The Tribunal notes that Global has appealed this decision to the Administrative Appeal Tribunal (AAT), and the matter had not been determined at the time of this hearing, a conditional stay being granted in March 2020).

138. In respect of Mr Gal’s involvement in other family day care services the Department submitted that Mr Gaal is not a fit and proper person to have control of Global. Whilst Mr Gaal had referred to his experience as Special Constable of the London Metropolitan Police, the Department submitted that this does not equate to such a position holder being a fit and proper person. The Department noted that the Special Constable role in the United Kingdom is a volunteer role and no evidence was provided to explain how such attributes are transferrable to equipping an individual to manage and control a family day care service.

139. The Department referred to Mr Gaal’s involvement in Universal Family Day Care and Galaxy Family Day Care, and noted that the CCB approval was cancelled for Universal and that service approvals for both Universal and Galaxy have been refused. The Department submitted that these matters (including Mr Gaal’s track record with Global) call into question his fitness and propriety to manage and control Global’s family day care service.

140. The Department noted that the CCB cancellation decision for Universal was affirmed by the AAT on review. In addition Universal’s ASIC deregistration as referred to above (like any deregistration) calls into question the fitness and propriety of the responsible person to run such an entity including a similar entity such as Global. The Department also referred to other adverse matters relating to the operations of Universal and Galaxy in written submissions.

141. In oral submissions the Department submitted that Global is not someone who can be relied upon to comply with the National Law. In addition the Department reinforced in submissions that the best interests of the child were the paramount consideration including clearly matters relating to the welfare of the child. The Department emphasised that the scheme applies only to children under 13 years of age (infants, preschool and primary school aged children).

142. In respect of the submissions and Mr Gaal’s assertions that the Department engaged in ‘military style operations’ and was ‘insensitive to cross cultural matters’, the Department submitted that there was no evidence of this. Global’s evidence referred to ‘teething matters’ with some new Educators however the Notice to Show Cause and the evidence which formed the basis to issue it showed evidence of Educators continually breaching the requirements through their application of policies and practices which equate to beaches of the National Law and National Regulation.

Reply submissions

143. Global’s counsel submitted that whilst the matter was in the hands of the Tribunal, consideration could be given to granting approval with conditions (if that was deemed appropriate and necessary), rather than cancellation. The Department submitted that the continued breaches and failure to take appropriate and effective measures in mitigation illustrate why such a course is not appropriate.

Consideration

144. We have carefully set out the evidence of the parties given over three days of hearing to identify the nature of the matters that brought about the cancellation of Global’s service approval. We have taken this step because the case leading to the cancellation was brought about by a long history of monitoring and noted lack of compliance with repeated breaches of the National Law. These matters were initially in significant contest between the parties at hearing, and remained so to some extent.

145. The Notice of Decision to Cancel Provider Approval dated 17 January 2020 is the decision under review in these proceedings. The decision maker found that the nature of non compliance posed a risk to the safety, health and well-being of a child or children being educated and cared for by Global as the approved provider of the service. In addition the decision maker was not convinced that Global had satisfactorily addressed each element of the non-compliance as set out in the Notice to Show Cause. We note that there were breaches identified in the following areas:

• Regulation 81 (1) Sleep and Rest;

• Regulation 89 (1) (b) First Aid Kits;

• Regulation 97 (3) (ab) and (4) Emergency and evacuation procedures;

• Regulation 102 (1) and (4) Authorisation for excursions;

• Regulation 103 (1) Premises, furniture and equipment to be safe, clean and in good repair;

• Regulation 104 Fencing;

• Regulation 117 (1) Glass;

• Regulation 171 (1) and (4) Polices and procedures to be kept available;

• Law 269 (1) (a) Register of family day care educators, coordinators and assistants;

• Regulation 185 Law and regulations to be available;

• Law 167 (1) Offence relating to protection of children from harm and hazards;

• Law 19 (4) Conditions of provider approval.

146. In this regard we make findings that having regard to the evidence before the Tribunal, on the matters identified in the decision under review, Global has breached the National Law and Regulations. Strictly those findings are borne out by the evidence, which at times was unchallenged and in many instances conceded in cross-examination by Gobal’s only witness at hearing Mr Gaal.

147. In making these findings we note that whilst some of these matters may appear minor we also note that this is a protective jurisdiction where the interests and welfare and well-being of children are paramount.

148. In CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 at paragraph 58 the Tribunal observed the following abut how the National law should be applied when competing interests arose.

1. …. The system therefore is not designed to operate in order to facilitate the business variables of operators but clearly is designed with some flexibility to take these matters into account. It is therefore not a blunt bureaucratic instrument, but rather a regulatory scheme that have objects that go towards the provision of quality service in a somewhat protective environment. It is evident that the legislation should be applied and directed beneficially towards achieving the objects and guiding principles as set out in section 3.

   149. In this regard the position of Global that many of the breaches were minor in nature, or of no great consequence and their initial stated position that the majority of matters had no bearing on the safety and well-being of children is in our view misplaced. The regulatory and compliance regime operates in the context of the protective jurisdiction as set out by the objectives and guiding principles of the National Law in s 3.

   150. The guiding principles in s 3 (3) of the National Law are in our view matters which Global did not focus in both their adherence to the National Law and Regulations, but also in their monitoring of their own compliance measures and response to identified breaches. The principles are:

2. 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.

   151. On our assessment of their evidence before the Tribunal, Global fell down in a number of areas in operating the family day care service in adherence to these principles, and in particular s (3) (a), (b) (e) and (f) of the National Law.

Fit and Proper

152. Is Global (and Mr Gaal) a fit and proper person to operate a family day care business under the National law. The Department submits that they are not fit and proper.

153. Section 13 provides the matters to be taken into account in assessing fitness and propriety:

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 200 of that Act;

   (ii)   any suspension imposed under section 201A of that Act;

   (iii)   any infringement notice given under section 219TSI 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.

   154. Reference is often made to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The Department referred to this case in their submissions. We observe the reasons of Justices Toohey and Gaudron in Bond. At paragraph 36 of their reasons their Honours observed:

4. The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

   155. Relevant to the question of fit and proper is an assessment as to whether the person has adequate knowledge and understanding of the responsibilities of an approved provider. Do they act in accordance with those responsibilities and do they have sufficient integrity and character to be entrusted with the responsibility of the provision of education and care services.

   156. In Jessica Education Centre Pty Ltd (KA Family Day Care) v Secretary Department of Education [2020] NSWCATAD 99 the Tribunal observed the following in respect of whether the operator was a fit and proper person to operate a family day care service. At [46 ] of Jessica the Tribunal observed:

1. On the issue of “fit and proper” the Tribunal said in Two Cubed at [54]-[58]:

   “The context in which the person is or will be engaged in the underlying principles and objects of the legislation give the phrase meaning in particular circumstances: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380. A definition of fitness and propriety at least includes “honesty, knowledge and ability”: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156.

   An assessment of fitness and propriety “also includes public confidence that the person is able to maintain high standards of rectitude and that they likely future conduct will keep to that standard”: CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190 at [89].

   In the regulatory regime surrounding provider approvals, the term “fit and proper” in context refers to the provision of education and care services to children under 13 years of age. An applicant’s fitness and propriety may well be dependent then on an adequate knowledge and understanding of the responsibilities of an approved provider, whether the applicant acts in accordance with those responsibilities and whether the applicant has sufficient moral integrity and character to be entrusted with the provision of education and care services: Tanyous v Secretary, Department of Education [2018] NSWCATAD 197 at [31]; Brandusoiu v Commissioner of Police [2015] NSWCATAD 204 at [91]- [92].

   Compliance with the National Law is a mandatory consideration in the assessment of the applicant’s fitness and propriety because of the conditions attached to provider approvals. A person’s management capability to operate an efficient education and care service in accordance with the National Law is a relevant consideration in assessing whether a person is a fit and proper person to be engaged in education and care services.

   157. In our view the weight of the evidence is that Global (and Mr Gaal) have not demonstrated that they have adequate knowledge and understanding of their responsibilities. Prior to the decision to cancel the provider approval Global was on notice as to their deficiencies on their provision of the family day care service, based on apparent breaches of the National Law and Regulations. Global was given time to rectify matters on multiple occasions and whilst they provided advice as to the detailed steps that they had taken, in practice the evidence indicates that they were unable to rectify matters. This was clear from follow up inspections of Educator sites providing family day care both prior to the issuing of the NTSC for many years but also following the NTSC.

   158. Mr Gaal’s evidence that the Department did not provide assessments of the steps taken by Global or provide feedback in the manner he suggests, is in our view illustrative of an apparent misunderstanding of the roles and responsibility of the service provider (Global).

   159. The position in summary seemed to be that unless Global heard again from the Department then everything was deemed to be operating satisfactorily. Little responsibility appears to have been accepted by Global that there is a positive obligation on the provider to comply with the Law. The Department (as regulator) is required to afford the entities procedural fairness in their dealings, but only up to a point. In our view the evidence shows that all inspections, compliance visits and outcomes relating to satisfactory and unsatisfactory matters were done in a professional and fair manner.

   160. Mr Gaal’s evidence that matters occurred in a ‘military style manner’ without a chance to engage or accompany Inspectors on their visits is simply not borne out by the evidence. Even if it was such matters would only go to fairness in the application of the regulatory process. Mr Gaal’s opinion of the Department’s approach appears reactive to the non-compliance findings and breaches identified. The evidence of the Departmental Officers was unchallenged by witnesses who gave evidence at the hearing. The statements of Global’s coordinator / supervisors was largely based on second hand accounts from Educators which were unable to be tested. It might be open to the Tribunal to draw an adverse inference from Global’s failure to call Educator’s as witnesses. However in the circumstances (and noting the employer / employee or subcontractor arrangements between Global and the Educators), in our view it would be inappropriate to formally draw any adverse inference and we do not.

   161. In our view on a total assessment of the evidence, Global does not have adequate knowledge and understanding of the responsibilities of an approved provider.

   162. In addition, noting the evidence of Mr Gaal which at times was critical of the need to comply strictly with the provisions of the National Law and Regulation, however onerous, coupled with his track record as a Director of an approved family day care provider, we are not satisfied that he possesses sufficient integrity and character to be entrusted with the responsibility of operating a family day care business.

   163. The matters involving Universal and Galaxy, as well as the cancellation of the CCB for Global, and the ensuing failure to notify the Department, illustrate an approach to the role which runs counter to the guiding principles and objects of the National Law.

   164. Having made the findings that we have, we are required to ascertain (notwithstanding that finding) what is the correct and preferable decision on the application before us.

   165. We have considered whether it would be appropriate to set aside the decision and place conditions on the approval in accordance with the Regulation.

   166. Sections 55 and 55A of the National Law provide for the regulatory authority to impose conditions on a particular provider approval.

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 each 15 family day care educators engaged by or registered with that service.

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.

   167. However having examined the long history of repeated non compliance, as summarised at [7] - [15] above, and the evidence adduced in the proceedings, we are not satisfied that even with the imposition of conditions, that on current evidence the business would operate in accordance with the National Law and Regulations.

   168. For those reasons we decline to make a substitute decision that the business can operate with reduced numbers, or at reduced locations, or any of the other matters specified in s 55 and s 55A of the National Law. We are not satisfied that such conditions would ensure adherence to the guiding principles or objects of the National Law which place the interests of the child above all.

Conclusion

169. As we have sustained the findings against Global, and determined that they are not (through their sole Director) a fit and proper person to operate or provide a family day care service, the actions of the Department appear both lawful and appropriate at the time of cancellation.

170. Having considered all of the evidence and submissions given by the parties, and having regard to the objects and principles of the National Law and Regulation, for the reasons set out above, it is appropriate to make the following order.

Orders

1. The decision of the respondent dated 17 January 2020 is confirmed.

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

Registrar

Decision last updated: 14 October 2020