Kids Community Pty Ltd and Secretary, Department of Education, Skills and Employment

This matter concerned the Administrative Appeals Tribunal's review of a decision by the Secretary, Department of Education, Skills and Employment, to cancel Kids Community Pty Ltd's approval to operate a child care service under the family assistance law. The Applicant had received approval in 2011, but following notices of intention to cancel and further contraventions identified by the Department, its approval was ultimately cancelled in January 2019, to take effect from March 2019. An internal review affirmed this decision, leading to the Applicant's application for review by the Tribunal.

The primary legal issues before the Tribunal were whether the Applicant had contravened the conditions for continued approval under the family assistance law, and if so, what sanction, if any, should be imposed. Specifically, the Tribunal was required to determine if the Applicant's non-compliance constituted an unacceptable risk to the safety, health, or wellbeing of children, and to consider other relevant matters, including the Applicant's overall record and the nature of the legislative scheme, when assessing the seriousness of the contraventions and the appropriateness of any penalty.

The Tribunal found that while the Applicant had indeed failed to comply with several conditions for continued approval, including misreporting sessions of care, incorrect payments of subsidies due to children being overseas or child swapping, and contraventions of child care ratios and reporting timeframes, these instances did not demonstrate an unacceptable risk to the safety, health, or wellbeing of the children. The Tribunal accepted evidence that the Applicant's director was a credible witness, genuine in his endeavour to understand and comply with obligations, and had proposed significant improvements to governance and training.

Consequently, the Tribunal set aside the decision to cancel the Applicant's approval. Instead of cancellation, the Tribunal determined that a suspension of the Applicant's approval was the appropriate sanction, reflecting the contraventions identified while acknowledging the Applicant's commitment to future compliance and the absence of demonstrated risk to children.