Montessori Stars Pty Ltd v Secretary, Department of Education

[2021] NSWCATAD 295

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Montessori Stars Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 295

Hearing dates:

30 June 2021

Date of orders:

13 October 2021

Decision date:

13 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
R Royer, General Member

Decision:

1. The decision to refuse an application for provider approval on 7 December 2020 to Montessori Stars Pty Ltd reviewed and affirmed by way of internal review decision dated 3 March 2021 is confirmed.

2. The application for review filed 24 February 2021 is dismissed.

Catchwords:

ADMINISTRATIVE LAW- Education and Care Services National Law – review of decision to refuse provider approval - Objects and Principles of National Law – Children – Childcare Services – Administrative review jurisdiction – correct and preferable decision - whether the Tribunal should uphold and confirm the decision or substitute decision.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Children (Education and Care Services National Law Application) Act 2010 (NSW)

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

Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW)

Children (Education and Care Services) Supplementary Provisions Regulation 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Education and Care Services National Regulations 2011 (NSW)

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 231

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41

CMD v NSW Office of the Children’s Guardian [2018] NSWSC 1348

Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205

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

CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132

CVM v New South Wales Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 108

CVN v New South Wales Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 109

CVT v NSW Department of Education & Communities, Early Childhood Education & Care Directorate [2017] NSWCATAD 74

CYU v Secretary, Department of Education [2017] NSWCATAD 290

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

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257

Gabriel’s Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 43

Greyhound Racing Authority v Bragg [2003] NSWCA 388

Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378

Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176

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

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173

Nilofar v Secretary Department of Education [2020] NSWCATAD 37

Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

Tanyous v Secretary, Department of Education [2018] NSWCATAD 197

YG & GG v Minister for Community Services [2002] NSWCA 247

Category:

Principal judgment

Parties:

Montessori Stars Pty Ltd (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Counsel:
M Pulsford (Respondent)

Solicitors/Representative:
I Barodawala (Applicant’s Director)
Crown Solicitor (Respondent)

File Number(s):

2021/00052804

Publication restriction:

The order made on 6 May 2021 pursuant to section 64 (1) (c) of the Civil and Administrative Tribunal Act 2013 is amended to prohibit the publication of the Secretary Department of Education’s marking rubrics (being the documents referred to at Tabs 8, 10, 15, 17, 30, 33, 38 and 41 of the tender bundle filed on behalf of the respondent in these proceedings) and the information contained therein.

Reasons for Decision

Introduction

1. The applicant Montessori Stars Pty Ltd (“the company”), was represented in this application by Ismail Barodawala who is a director of the company. The issue is whether the company should be granted a centre based provider approval pursuant to section 15 (1) of the Children (Education and Care Services) National Law 2010 (NSW) (referred to as “the National Law”).

2. The Secretary of the Department of Education (“the Secretary”) is the Regulatory Authority in New South Wales under the National Law. The order made on 6 May 2021 prohibiting publication of the marking rubrics referred incorrectly to the “applicant” and obviously should have referred to the Secretary’s marking rubrics (since the applicant does not utilise those marking rubrics). That order has been amended accordingly. The amended order now reads:

“The order made on 6 May 2021 pursuant to section 64 (1) (c) of the Civil and Administrative Tribunal Act 2013 is amended to prohibit the publication of the Secretary Department of Education’s marking rubrics (being the documents referred to at Tabs 8, 10, 15, 17, 30, 33, 38 and 41 of the tender bundle filed on behalf of the respondent in these proceedings) and the information contained therein.”

3. On 7 December 2020 the delegate of the Secretary, Department of Education determined to refuse provider approval to the company pursuant to section 15(2) of the National Law.

4. The Secretary’s delegate decided that the nominated person with management or control, Ismail Barodawala, is not a fit and proper person to be involved in the provision of an education and care service as required by section 12 (2) of the National Law. The regulatory authority must not grant a provider approval unless satisfied of the matters provided in section 12 of the National Law because of section 15 (2) of the National Law.

5. The decision to refuse the provider approval is a reviewable decision for internal review pursuant to section 191 of the National Law, and a decision made under section 191 (other than a decision in relation to the issue of a compliance direction or a compliance notice) is a reviewable decision for external review under section 192 (a) of the National Law. The decision to refuse the provider approval is premised on the view that Mr Barodawala did not have a sufficient understanding of the regulatory requirements of the National Law after an evaluation of his responses to centre-based care assessment scenarios which he completed by interviews conducted on 18 August 2020 and 12 November 2020.

6. Mr Barodawala sought an internal review of the decision on 14 December 2020. That internal review was completed on 3 March 2021. That review confirmed the original decision on the same grounds and for similar reasons. The internal reviewer accepted that the application for provider approval met the mandatory and permissive requirements in section 13 (1) and 13 (2) of the National Law. However, the internal reviewer concluded that Mr Barodawala had “not demonstrated that he has sufficient knowledge and understanding of the applicable laws in the context of an approved provider” and was not satisfied that he was a fit and proper person. In CZR v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 282 (CZR) at [37] the Tribunal found 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.” This is not a contentious statement and it is noted that ‘fitness’ has three components set out in the next paragraph and that is referable to High Court authority: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157.

7. The National Law requires an approved person to be a fit and proper person to be involved in the provision of an education and care service. Fitness is recognised as having “three components: honesty, ability and most relevantly, ‘knowledge’ in the sense of knowing what ought to be done.” See CZR at [36].

8. 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: section 193 of the National Law. The Tribunal (NCAT) is the relevant venue by reason of section 5 of the National Law and section 8 (b) of the Children (Education and Care Services National Law Application) Act 2010 (NSW) (“the National Law Act Application Act”).

9. On 24 February 2021 the applicant lodged an application for external review of the decision.

10. The original decision may have been perfectly reasonable and beyond reproach. The decision may still be seen as perfectly reasonable and beyond reproach. The decision the Tribunal has to make is whether it is the correct and preferable decision at the time the Tribunal considers all the relevant matters, or in other words to determine what "the correct and preferable decision is having regard to the material then before it".

Background matters

11. The hearing took place by way of audio-visual link. This obviously has its limitations but was necessary because of the COVID-19 pandemic and the difficulty in ensuring that the participants in the hearing could do so safely in a face-to-face confined Tribunal room. However, the examination and questioning of the witnesses occurred in a respectful and constructive manner by means of this technology.

12. Also because of the limitations imposed by the audio-visual link a large number of documents were provided to the Tribunal in anticipation that some of them will be essential for the decision which the Tribunal is to make.

Legislative background

13. The objectives and guiding principles of the National Law are:

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.

14. The functions under the National Law are to be exercised as follows:

4 How functions to be exercised

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

15. The National Law provides for a person or company to operate an education and care service. The applicant in this matter is a company rather than a natural person. An applicant must obtain provider approval under Part 2 in order to operate an education and care service.

16. The Regulatory Authority is defined in section 5 to be:

"Regulatory Authority" means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction...

17. Pursuant to section 24 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) references to Regulatory Authority in the National Law is a reference to the Regulatory Authority for this jurisdiction. Under section 9 of the Children (Education and Care Services National Law Application) Act 2010 (NSW), the Regulatory Authority for NSW is the Director-General of the Department of Education and Communities, now known as the Secretary of the Department of Education.

Jurisdiction

18. The jurisdiction is considered to be conferred on the Tribunal under the general jurisdiction provision in s 29 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal’s jurisdiction is not one in relation to an external appeal under section 31 of that Act. The National Law refers to “external review”, not “external appeal”. As set out in the reasoning in DBU v Secretary, Department of Education [2017] NSWCATAD 257, section 29 of the Tribunal Act is the source of jurisdiction in this matter.

19. In Secretary, Department of Education v Joys Child Care Ltd [2017] NSWSC 749, Justice Parker acknowledged that there were two views about the statutory basis for the Tribunal’s review power. The court in that matter did not need to reach any conclusion as to whether the Tribunal was exercising its jurisdiction under section 43 of the Civil and Administrative Tribunal Act or section 60 of the Administrative Decisions Review Act. Section 43 of the Civil and Administrative Tribunal Act is the equivalent stay provision to section 60 of the Administrative Decisions Review Act.

20. In DBU v Secretary, Department of Education [2017] NSWCATAD 257 (DBU) it was held by Senior Member Ransome at [22] that:

In summary, while the National Law and associated legislation provide for review of some decisions with respect to child care services to be dealt with in the Tribunal’s administrative review jurisdiction, that does not include the decision presently under review because it relates to a family day care service. That decision therefore falls for review within the Tribunal’s residual general jurisdiction in s 29 of the Tribunal Act.

21. Because the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) (especially sections 4 and 17) applies to “State regulated education and care services” and family day care services are excluded from the definition, the provisions of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) do not apply to this application. For the reasons given by Senior Member Ransome in DBU the previous determinations as to the exercise of the Tribunal’s jurisdiction identified as having been conferred by section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) is in error and those previous decisions respectfully were incorrectly decided in that respect. It is noted that Senior Member Dr Lucy has also held that to be so in CYU v Secretary, Department of Education [2017] NSWCATAD 290.

22. Section 192 of the National Law relevantly 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

(iii) to suspend a service approval under section 72; or

(iv) to cancel a service approval under section 79 or 307; or

(v) to suspend or cancel a supervisor certificate under section 125; or

(vi) to direct the approved provider of a family day care service to suspend the care and education of children by a family day care educator; or

(vii) to give a prohibition notice or to refuse to cancel a prohibition notice.

Note : A person is not entitled to a review under this section in respect of a suspension or cancellation of a service approval if that suspension or cancellation relates only to an associated children’s service. Any right of review would be under the children’s services law.

23. Section 193 of the National Law provides:

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.

24. In section 5 of the National Law the definition of relevant tribunal or court is:

"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;

25. In section 8 of the Children (Education and Care Services National Law Application) Act 2010 the relevant Tribunal is declared:

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.

26. As Senior Member Ransome stated in DBU at [24]-[26]:

[24] What then is the Tribunal’s task on review in the present case? Under s 192 of the National Law the Tribunal is to conduct an “administrative review” of the decision made by the Regulatory Authority. That term is not defined. While the Tribunal Act sets out the practice and procedure to be followed by the Tribunal in its proceedings, it also is silent on what the Tribunal’s task in its general jurisdiction with respect to an administrative review.

[25] Consideration of the scope of an administrative review function arose most notably in the case of Drake v Minister for Immigration and Ethnic Affairs(1979) 24 ALR 577 where, in relation to the then newly established Commonwealth Administrative Appeals Tribunal (AAT), the Full Federal Court stated at 579 that the AAT’s task was to reach “the correct or preferable decision” on the material before it. That description (and the similar formulation “correct and preferable”) of a decision-maker’s obligations when conducting administrative review has been repeated many times since, both in case law and in legislation. Indeed, under s 63 of the ADR Act in its administrative review jurisdiction, this Tribunal is tasked with making the “correct and preferable decision”.

[26] In my view, in conducting an administrative review in the exercise of its general jurisdiction under s 29 of the Tribunal Act, the Tribunal is required to perform essentially the same task as it would if the matter fell within its jurisdiction under s 30 of the Tribunal Act, that is, it is required to make the correct and preferable decision on the material before it. The High Court in the case of Shi v Migration Agents Registration Authority (2008) CLR 286 (sic) confirmed that administrative review is conducted at the time of the review on the material available to the Tribunal at the time of the review, which may include new or additional material that was not before the original decision-maker.

27. Therefore, the scheme of the legislation is that the Civil and Administrative Tribunal is the relevant Tribunal to which an application may be made for external review of a decision of the Regulatory Authority under section 192(a) of the National Law. The powers given to the Tribunal are those in section 193 of the National Law. In addition, the National Law provides at section 194 that the Act which establishes this Tribunal is not limited by the National Law. The Tribunal therefore is required to make the correct and preferable decision on the material before it.

The evidence relied upon in the hearing

28. The documents relied upon by the parties in evidence before the Tribunal are:

1. Application filed 24 February 2021: Exhibit 1.

2. Statement of Mr Barodawala dated 26 May 2021: Exhibit 2.

3. Applicant’s submissions dated 23 June 2021: Exhibit 3.

4. Respondent’s tender bundle: Exhibit 4.

5. USB audio files: Exhibit 5.

6. Statement of Abigail Weldon-Chan filed 27 April 2021 (regarding the assessment process in particular): Exhibit 6.

7. Submissions of the respondent dated 4 June 2021: Exhibit 7.

Further Legislative Provisions relevant to the decision

29. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

30. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

31. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

32. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division on an application for this review is entitled to be represented by a lawyer without requiring leave of the Tribunal: see sections 16, 17 and Schedule 3, clause 9, of the Civil and Administrative Tribunal Act. There is no automatic prohibition on the publication of names under section 65 of the Civil and Administrative Tribunal Act because this review is not one under the Supplementary Provisions Act. This does not prevent the Tribunal from making nonpublication order under section 64 of the Civil and Administrative Tribunal Act and of its own motion.

The Issue

33. As previously referred to, the issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Secretary Department of Education: see DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [24]-[26]; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.

34. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

35. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

The Evidence

36. As previously identified in decisions in the Tribunal the National Law regulates a range of “education and care services”.

37. The scheme of the legislation is that a person who wishes to operate an approved education and care service must obtain “provider approval” under Part 2 of the National Law. Once a person holds a provider approval they are known as an “approved provider”.

38. A person, which includes a body corporate, may apply to the Secretary for provider approval. The Secretary may grant or refuse to grant provider approval. It is necessary that the Secretary is satisfied that the applicant for provider approval is fit and proper to be involved in the provision of an education and care service: National Law, section 15 (2). An applicant who is a body corporate (a company: like the applicant in this matter) must satisfy the Secretary that each person who has management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service, and the applicant is a fit and proper person to be involved in the provision of an education and care service: National Law, section 12 (2).

39. The approved provider has personal responsibility for and overall management and control of, an education and care service. A provider approval is subject to the condition by reason of subsection 19 (2) of the National Law that approved provider must comply with the National Law. There is a penalty for the applicant in this matter for not doing so according to section 19. There are a significant number of regulatory requirements with which approved providers must comply under Part 6 of the National Law and in the associated National Regulations. The list of those numerous requirements is not necessary for the purpose of these reasons.

40. It should be observed that the National Law and the National Regulations require strict compliance by providers and educators: see 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22]; DPW v Secretary, Department of Education [2018] NSWCATAD 257 at [29]; Faaea v Secretary, Department of Education [2018] NSWCATAD 85 at [25].

41. In CYU v Secretary Department of Education [2017] NSWCATAD 290 (CYU) Dr Lucy senior member expressed the view that the Secretary’s practice of conducting an assessment to determine whether applicants were “fit and proper” was not authorised by section 14 (1) (b) of the National Law. Dr Lucy concluded that the assessment results of the applicant in that case was either improperly or unlawfully obtained. Despite that, Dr Lucy decided to admit the evidence, considering that the public policy considerations favoured admission of the evidence and outweighed the public policy considerations against admitting the evidence (CYU at [72]).

42. As observed by Dr Lucy in Tanyous v Secretary, Department of Education [2018] NSWCATAD 197 at [30] the important factor to consider, when determining whether to admit evidence is its probative value referring to Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [28]. It is accepted by the Tribunal that the evidence in this matter is of probative value. Any potential question as to the legality of the assessment process is moot because it is our assessment considering the public policy considerations which favoured admission of the evidence that they outweighed the public policy considerations against admitting the evidence.

43. The applicant through the statement by Mr Barodawala broadly asserted that any person can apply for provider approval. It is submitted correctly that it is not necessary to have a relevant background in education and care services.

44. It is asserted that the respondent did not complete the approval process within the timeframes permitted by the National Law. Mr Barodawala stated that he was at a disadvantage due to the video interviews and Internet “dropout”. There was also some issues about the echo for part of the interview. It is submitted that Mr Barodawala achieved the requisite result in the assessment and therefore he should be considered a fit and proper person based upon the respondent’s own criteria when analysing the assessment process. Although Mr Barodawala asserts that there was prejudgment before he completed the assessment, his primary submission is that he achieved a high enough assessment to be granted an approval. The Tribunal has placed no weight on the evidence presented that Mr Barodawala had a court case in India and some proceedings in relation to a strata dispute. The evidence of previous applications by the applicant and others is not considered relevant to current assessment of fitness. Mr Barodawala does not assert that the assessment process was unlawful and appeared to willingly participate, indeed, the respondent relies upon his express acknowledgement and agreement that the assessment sessions and any observations made would be taken into consideration used by the Secretary in assessing the application.

45. Mr Barodawala has obtained premises in which to operate an approved child care centre should he obtain provider approval for the applicant, and has expended financial resources to do so. This was a source of anxiety for him as he had a debt and was concerned with the delays in assessing the application. Mr Barodawala has also completed some courses of study including two CELA study courses, certificates for which are included in the exhibits, in order to improve his knowledge prior to the assessments. The CELA course is a total of 7.5 hours in length. The certificates do not indicate anything other than attendance. They do not demonstrate his level of knowledge of the regulatory environment in which Centre based care services operate. Also, there were some other courses he completed which did not provide evidence of competence.

46. An analysis of the records of the respondent in relation to Mr Barodawala indicates that this is his fourth attempt to gain sufficient marks in the knowledge assessment as part of the provider approval process. It is recorded that there had been an improvement in the marks he achieved for the knowledge tests, but that he had not achieved the requisite marks to “pass”. It is said that the responses to the scenario questions were not of sufficient quality to offer a further interview to Mr Barodawala to further explore his knowledge of the National Law and National Regulations. The Secretary has introduced the knowledge assessment process in order to assist in determining whether an applicant (not limited to this applicant) can demonstrate that they understand how an education and care service is to operate in compliance with the regulatory framework. It is to be noted that the Secretary considered the applicant was satisfactory in many respects including compliance with the applicable laws, a satisfactory criminal history check, working with children clearance, not being an undischarged bankrupt, not suffering from any medical condition that may affect the ability to operate an education and care service, satisfactory financial circumstances, and the absence of any action taken under the A New Tax System (Family Assistance) Administration Act 1999 (Cth).

47. The Tribunal has had regard to the transcript of Mr Barodawala’s answers to the scenario questions in both of his interviews which informed the subject of this decision under review. The evidence indicates that not only was Mr Barodawala given appropriate credit for correct answers, on the internal review application the reviewer gave him additional marks for some of his answers. It is clear that the assessments were appropriately rated by experienced persons who investigate complaints and incidents, conduct compliance inspections, and assess and rate education and care services as part of their employment. The questioning of Mr Barodawala was not confusing and the questions were clear. Although Mr Barodawala has improved upon his knowledge and achieved an average of 62.75% from his previous average of 54%, this range of marks is not close to a “pass” mark of 80%. The Tribunal has reviewed and considered the questions and answers as recorded. The process of interview and marking or grading of the answers is generally defensible, although it is clearly recognised different markers approached the answers with their own independent and informed assessments.

48. It is evident from the evidence that there were deficiencies in Mr Barodawala’s understanding of the National Law and National Regulations as set out in detail in the submissions on behalf of the Secretary concerning the identification and explanation of breaches; the identification and explanation of relevant policies behind the regulatory framework; the identification of responses to inappropriate discipline; incident, injury, illness and trauma records and emergency and evacuation procedures; child safe environments; and the administration of medication.

49. The Tribunal observed that Mr Barodawala may adequately recite some of the regulatory requirements in his responses during the assessments, but there is insufficient evidence within his responses of a solid grasp of what those requirements mean in a practical everyday situation. During the hearing there was no basis shown to consider that his knowledge has significantly improved since the assessments.

50. It is also not contested that Mr Barodawala has no formal qualifications relating to the provision of education and care services. The evidence is that he has a Bachelor of Commerce from Bombay University in 1984 and a 1993 Associate Diploma in Business (Accounting) from TAFE. Mr Barodawala has professional experience since 1993 as a self-employed sole director of a company engaged with export of metals to Southeast Asia. That is not considered relevant to an assessment of fitness in relation to this application but shows in a positive light his breadth of professional experience.

Consideration

51. The objectives and guiding principles under the National Law are in subsections 3(2) and 3(3) stated to be:

(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.

52. The rights and best interests of the children are paramount in implementing the National Law. Since section 4 of the National Law requires an entity that has functions under the law to exercise those functions having regard to the objectives and guiding principles set out in section 3, the Tribunal is required to regard the rights and best interests of the children as paramount in making a determination as to the correct and preferable decision in this matter.

53. Section 260 of the National Law identifies the functions of the Regulatory Authority as follows:

260 Functions of Regulatory Authority

The Regulatory Authority has the following functions under this Law in relation to this jurisdiction-

(a) to administer the National Quality Framework;

(b) to assess approved education and care services against the National Quality Standard and the national regulations and determine the ratings of those services;

(c) to monitor and enforce compliance with this Law;

(d) to receive and investigate complaints arising under this Law;

(e) in conjunction with the National Authority and the relevant Commonwealth Department, to educate and inform education and care services and the community in relation to the National Quality Framework;

(f) to work in collaboration with the National Authority to support and promote continuous quality improvements in education and care services;

(g) to undertake information collection, review and reporting for the purposes of-

(i) the regulation of education and care services; and

(ii) reporting on the administration of the National Quality Framework; and

(iii) the sharing of information under this Law;

(h) any other functions conferred on the Regulatory Authority under this Law.

54. In addition to its policing role the Regulatory Authority thus has an educative function and a function to implement improvements in the quality of education and care services. The administration of the assessment process assists in fulfilling the role of the Regulatory Authority in multiple aspects.

55. For the reasons set out in Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 at [32]-[38] neither party to these proceedings bears an onus of proof. It is considered appropriate that the Tribunal should be ‘comfortably satisfied’ of the facts in issue.

CONCLUSION

56. The determination of the correct and preferable decision must regard the rights and best interests of the child who may receive the benefit of the service as paramount and to ensure the safety, health and wellbeing of children attending education and care services.

57. The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.

58. The objectives of the National Law are promoted where persons with management or control of an education and care service have knowledge and understanding of the National Law and National Regulations.

56. The Tribunal is not confined in its consideration of this matter to the reasons identified in the reasons for the original decision; Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45].

57. The Tribunal members have had the benefit of hearing the oral evidence, the oral submissions of the parties in addition to their written material. That additional material has been taken into account together with the reasons and evidence originally provided.

58. Having regard to all of the matters raised it is the Tribunal’s decision that in all the circumstances the correct and preferable decision is that the decision of the Regulatory Authority is confirmed, because Mr Barodawala is not a fit and proper person to be involved in the provision of an education and care service. The lack of knowledge and understanding of the National Law and National Regulations makes him unfit to be involved in the provision of an education and care service for children. Having reviewed the evidence in this matter the Tribunal has formed the view and is comfortably satisfied that Mr Barodawala, failed in the identification and explanation of relevant policies behind the regulatory framework; did not adequately identify responses to inappropriate discipline; had insufficient grasp of required incident, injury, illness and trauma records and emergency and evacuation procedures; did not appreciate sufficiently how to ensure child safe environments; and did not understand the requirements for the administration of medication.

59. Consequently, the decision under review is confirmed and the application for review is dismissed.

ORDER

63. The orders of the Tribunal are that:

1. The decision to refuse an application for provider approval on 7 December 2020 to Montessori Stars Pty Ltd reviewed and affirmed by way of internal review decision dated 3 March 2021 is confirmed.

2. The application for review filed 24 February 2021 is dismissed.

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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: 13 October 2021