Precious Family Day Care and Secretary, Department of Education - [2023] AATA 99

Precious Family Day Care and Secretary, Department of Education [2023] AATA 99 (8 February 2023)
Division:GENERAL DIVISION
File Number(s): 2021/4390
Re:Precious Family Day Care
APPLICANT

AndSecretary, Department of Education
RESPONDENT

Decision
Tribunal:Ms A E Burke AO, Member
Date:8 February 2023
Place:Melbourne

The Tribunal affirms the decision under review.
....................... ..[sgd]...............................................
Ms A E Burke AO, Member
Catchwords
CHILD CARE – family assistance law – child-care benefit – refusal to approve child care service for Child Care Subsidy (CCS) – whether a fit and proper person – inadequate governance documentation – whether previously a person with management or control where previous breaches of conditions of provider approval – decision affirmed
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
Child Care Subsidy Minister's Rules 2017 (Cth)
Education and Care Services National Law Act 2010 (Vic)
Education and Care Services National Regulations 2011 (Vic)
Cases
Al-Huda Pty Limited v Secretary, Department of Education, Skills and Employment [2020] FCA 1613
Azizi and Minister for Home Affairs [2018] AATA 2561
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Forever Family Day Care Pty Ltd and Secretary, Department of Education [2022] AATA 2755
Secretary, Department of Education and Training v Simpson Networks Pty Ltd t/as Melbourne School Holiday Club (2019) 273 FCR 252
Secondary Materials
CCMS Fact Sheet – 2012 Changes (3) Personnel Records & Security of CCMS Registered Software
Child Care Provider Handbook, Version 2, June 2019
REASONS FOR DECISION
Ms A E Burke AO, Member
8 February 2023

This application by Precious Family Day Care Pty Ltd (Precious FDC) is for review of a decision made by the Authorised Review Officer (ARO) of the Respondent, the Secretary of the Department of Education, Skills and Employment (the Department), on 3 June 2021. That decision affirmed the decision of the delegate dated 1 April 2020 which refused provider approval of Precious FDC under the family assistance law (FAL), pursuant to section 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).
Precious FDC sought review of the ARO decision by the Administrative Appeals Tribunal on 1 July 2021 stating in its application:
The Applicant seeks a review of the decision made by the Secretary, Department of Education, Skills and Employment (the Secretary) on 3 June 2021 (the Review Decision) to affirm the original decision made by the Secretary on 1 April 2020 (the Original Decision) to refuse approval of the Applicant under subsection 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act).
The Applicant contends that the correct or preferable decision is to set aside the Original Decision and the Review Decision and to approve the Applicant’s application under section 194A of the Act to have the Applicant approved for the purposes of family assistance for reasons including that:
1. the Applicant holds any approvals or licences required to operate a child care service for the Service;
2. the Applicant and any person with management or control of the Applicant is a fit and proper person to be involved in the administration of Child Care Subsidy and Additional Child Care Subsidy;
3. the Applicant’s alleged involvement in Golden Heart Family Day Care is inaccurate and false;
4. the Applicant’s history of alleged non-compliance relating to Golden Heart Family Day Care and otherwise does not support, justify or necessitate the making of the Original Decision or the Review Decision;
5. the Applicant’s governance arrangements will ensure the Applicant will comply with its obligations under the Act;
6. the Applicant has implemented comprehensive measures to ensure that it will properly and adequately administer Commonwealth funds; and
7. the person with management and control of the Applicant has extensive and adequate experience and expertise and has demonstrable understanding of the obligations applicable under the Act and a commitment to complying with same.
Precious FDC was represented by Mr Tom Lui of Counsel. The Secretary of the Department was represented by Mr Tom Galvin of Minter Ellison.
BACKGROUND
On 29 February 2012 Precious FDC was registered as a proprietary company in Victoria; at the time Ms Nasra Elmi was one of the directors.
On 15 March 2016 Precious FDC was granted service approval under section 48 of the Education and Care Services National Law Act 2010 (Vic) (the National Law) as a Family Day Care provider.
On 16 April 2018, Ms Muna Abdi was appointed a Director of Precious FDC. Ms Abdi advised the Tribunal that she had purchased Precious FDC from her sister-in-law, Ms Elmi.
On 19 November 2018, Precious FDC submitted a Child Care Subsidy (CCS) application seeking approval to be a provider under the FAL. The application identified Ms Abdi as a person with management and control of the service. The application was submitted with numerous supporting documents.
On 14 December 2018, the Department advised Ms Abdi that her application was incomplete as various required documents had not been submitted with the application. On 11 and 14 January 2019, Ms Abdi submitted additional documents in response to the Department’s request.
On 22 January 2020, Ms Abdi, at the invitation of the Department, attended a CCS information session at the Victorian office of the Department. Following the session, Ms Abdi signed and returned the ‘Key Responsibilities Checklist & Declaration’ in which she committed to complying with all the obligations of the FAL. Subsequently on 18 February 2020, Ms Abdi undertook the written assessment component of the approval process.
On 1 April 2020 a delegate of the Respondent refused to approve the Applicant for the purposes of CCS under subsection 194B(6) of the Administration Act.
On 15 April 2020, Mills Oakleigh, on behalf of Precious FDC, sought internal review of the CCS refusal. On 18 August 2020, Mills Oakleigh provided supplementary information in support of the CCS application, asserting that Ms Abdi was a fit and proper person in accordance with 194C(b) and (c) of the Administration Act, outlined in section 194E(1) of the Administration Act and section 46 of the Child Care Subsidy Minister’s Rules 2017 (the Minister’s Rules), asserting:

194E(1) Mandatory Consideration Department’s Position (Summary) Service’s Response

(a)
any non−compliance by a relevant person with a law of the Commonwealth or a

State or Territory
No adverse findings.
The Service agrees that there be no adverse

findings in respect of paragraph (a).

(b)
any proceedings currently before a court or tribunal

that involve a relevant person
No adverse findings.
The Service agrees that there be no adverse

findings in respect of paragraph (b).

(c)
any decision made under a law of the Commonwealth or a State or Territory relating to child care which

adversely affects a relevant person
No adverse findings. The Service agrees that there be no adverse findings in respect of paragraph (c).

(d)
subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or

violence
No adverse findings. The Service agrees that there be no adverse findings in respect of paragraph (d).

(e)
any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision o f a law

of the Commonwealth or a State or Territory
No adverse findings. The Service agrees that there be no adverse findings in respect of paragraph (e).

Mills Oakley provided numerous documents in support of Precious FDC’s application for CCS approval on 18 and 19 August 2020, 14 April and 25 May 2021.
On 3 June 2021 the ARO affirmed the original decision to refuse to grant Precious FDC CCS approval. The reasons for the decision state:
Grounds for making decision
6. I have decided to affirm the original decision to refuse approval of the provider as I am satisfied that the provider does not meet the requirements for approval as per section 194B(1)(a) of the Administration Act, specifically that the provider does not meet the applicable provider eligibility rules under section 194C of the Administration Act.
7. In particular, I am not satisfied that the provider meets the requirements of sections 194C(b) and 194C(c) of the Administration Act being:
·(b) the provider is a fit and proper person to be involved in the administration of CCS and
·(c) any person with management or control of the provider is a fit and proper person to be involved in the administration of CCS and ACCS.
8. In determining whether the provider and any persons with management or control of the provider are fit and proper persons, I have had regard to the matters listed in section 194E(1) of the Administration Act. This also includes matters prescribed in section 46 of the Child Care Subsidy Minister's Rules 2017 ('Minister's Rules') and any other matter I consider relevant.
9. As I am not satisfied the provider meets the requirement in section 194B(1)(a) of the Administration Act, I must, under section 194B(6) of that Act, refuse to approve the provider for the purposes of the family assistance law.
…..
100. I consider that as a Company Director and Officeholder for the provider it is critical that Ms Abdi reports accurate and current personal details to ASIC. I consider her failure to update her address with ASIC for an extended period, reflects poorly upon Ms Abdi's capacity and commitment to complying with reporting obligations imposed upon her by relevant Government authorities.
101. I consider this is relevant to an assessment of Ms Abdi in regard to the matters set out at section 194E(1)(g), as accurate reporting is fundamental to compliance with family assistance law, not only with regard to reporting via the CCSS but also complying with notification obligations such as those set out in section 204F of the Administration Act and section 55 of the Minister's Rules.
…
139. I note that the provider has operated Little Beginners Family Day care with no compliance history and this weighs in favour of the provider. However, Ms Abdi at her own admission, left Queensland in February 2017 and has not played a significant role in the operation of the service, with the majority of day to day operations undertaken by Ms Kin Roble Ms Abdi's mother and joint Company Director.
In relation to Precious FDC’s governance documents, the ARO decision stated:
102. In considering the provider's governance arrangements, I have had regard to all of the documents submitted by the provider. Of particular relevance are the following documents which I will hereafter refer to collectively as the 'provider's governance documents.
• Policy and Procedures
• Business Plan
• Scheme and Educator Agreement
• Part Time (Award) Employment Contract
• Parent Handbook
From the outset, I note the general formatting of each of the governance documents are a cause for concern. Each of the documents submitted contain many spelling and grammatical errors, the size and style of font changes regularly throughout, there are tracked changes included in the documents and at times segments of the policy have simply been copied and pasted from the Child Care Provider Handbook and other resources including the National Law and National Regulations. I find this lack of care and attention to detail in preparing these policies, particularly where the provider's lack of attention to detail in their policy documents was identified as an issue in the original decision, demonstrates a concerning lack of regard for the important role these documents play in ensuring the provider is able to comply with its obligations under both family assistance law as well as the National Law and National Regulations. I find these errors significant errors to be a contradiction to Ms Abdi's claims in her resume that she is very thorough with all aspects of paperwork and is praised for her attention to detail.
Policy and Procedures Manual (submitted to the department 18 August 2020)
103. I have analysed the provider's Policy and Procedures Manual manual'), and in particular, considered how it describes the provider's governance and how it will support adherence to the family assistance law. I have set out my comments in the following paragraphs.
104. The manual covers a broad range of topics. It is 232 pages long, presented in sections which contain a description of the policy and the relevant procedures as they apply to the various roles at the service.
105. The original decision set out findings with regard to the manual as it was presented to the department in the provider's original application (169 pages). I note the provider has rewritten portions of the manual in light of the delegates refusal finding. In particular, the provider has expanded on the requirements of family assistance law and on the provider's proposed measures to ensure compliance with family assistance law.
106. The manual however appears to be unfinished with the document containing tracked changes, numerous typographical errors, inaccuracies and inconsistencies. Many sections contain incomplete sentences as well as incorrect and conflicting information.
107. Pages 213 to 232 are a repeat of pages 138 to 156. In several places, the provider states that CCS is income tested and in the very next sentence states that it is not income tested. The provider also incorrectly states that CCS covers up to 50 per cent of gap fees up to a maximum of $7,500.00 per year.
108. Under 'Notifying the Department of an Enrolment of a new child' the provider has inaccurately stated 'the enrolment and attendance of a new child must be submitted within a period of seven days of the enrolment'. This inaccuracy is repeated again under the heading 'Ensure to meet all the obligations under the family law' where the provider states' Precious Family Cay Care must notify the information of a child for care at the service within seven days of the child starting care '.
109. A further inconsistency which I find concerning as it relates to the health and safety of children is identified between point 5 of 'Operational Safety' which out that hot water accessible to children will be maintained at 43.5 degrees Celsius and information in the 'Burns and Scalds' section, which recommend that the hot water temperature is set between 50— 55 degrees.
110. The document provides reference points for further information relating to Excursions (page 80) Enrolment processes (page 117), Monitoring of Educators, Assistants and Adult Occupants (page 179) and Serious Breach of the Agreement Obligations however these reference points cannot be located in the document or have been incorrectly inserted.
111. The provider has submitted incorrect information in relation to National Law under the heading 'Role of an Educator Assistant'. Almost all of the information on the requirements for an educator assistant is inconsistent with what is specified in the National Regulations. For example, the provider sets out that:
The Educator assistant can only perform under the following circumstances:
In an emergency situation including when the family day care educator assistant requires urgent medical care or treatment.
If a family day care educator assistant must attend an appointment (other than a non regular appointment) providing the absence is less than 4 hours, the family day care service has approved the absence and notice of the absence has been given to parents.
To provide assistance to the educator assistant while they are educating and caring for children
Regulation 144 of the Education and Care National Regulations specifies circumstances where an educator assistant can assist a family day care educator, including:
In the absence of the family day care educator, in emergency situations, including when the educator requires urgent medical care or treatment
In the absence of the family day care educator, to enable the educator to attend an appointment (other than a regular appointment) in unforeseen or exceptional circumstances, if the absence is for less than 4 hours and the approved provider of the family day care service has approved that absence and notice of that absence has been given to the parents of the child.
While the educator is educating and caring for children as part of the family day care service.
112. Pages 143 to 145 provides information on Statements of Entitlement which the provider has incorrectly identified as Statements of Eligibility. This error is repeated further in the document.
Business Plan (submitted to the department 18 August 2020)
113. I have reviewed the Business Plan for the provider as presented to the authorised review officer. In particular I have considered how the Business Plan describes the provider's governance and how it will support adherence to the family assistance law. I have set out my comments in the following paragraphs.
114. The Business Plan is 27 pages long and covers an extensive range of topics. The Business Plan sets out the organisation's vision, goals and objectives and the 'Roles and Responsibilities' of each member of the organisational structure.
115. The original decision set out findings with regard to the Business Plan as it was presented to the department in the provider's original application. I note the provider has updated the Business Plan in light of the delegates refusal finding. I consider the provider has strengthened the Business Plan's focus on compliance, in particular:
·the process for recruiting suitable educators
·practical strategies for monitoring educators
·enrolment processes and fee charging practices
However errors and unclear information persist such as outdated references to CCB and that service charges families the 'GAP FEE' and it is mandatory that they are always paying', which is contrary to family assistance where families must be charged a full fee for which they are genuinely liable.
…
134. I consider the provider's inadequate governance documents combined with the provider's failure to report accurately to ASIC to be an important consideration that weighs very heavily against a finding that Ms Abdi and the provider are fit and proper persons to be involved in the operation of CCS and ACCS
In relation to Ms Abdi’s role at Golden Heart Family Day Care (Golden Heart), the ARO decision states:
61. I also find that Ms Abdi was a person with management and control of Golden Heart Family Day Care Pty Ltd as per the definition in section 194F(1)(c) of the Administration Act. I have reached this conclusion based on the evidence set out below.
62. In the written submissions for internal review the provider submitted a document titled 'Muna − Resume'. This document set out the skills, qualifications and recent work history of Ms Abdi. In this document Ms Abdi listed work history for the period from 2011 to 2017 with three separate businesses as follows:
RECENT WORK HISTORY
2017− Current Little Beginners Family Day Care Director
2013 – 2016 Sherwood state school before and outside school hours Role: Coordinator and person in charge
2011−2012 Placement in Early Learning Centres Role: student undertaking placement units for
63. A check of the department's Child Care Management System interface identified that for the period from 2014 to 2018 Ms Abdi worked at three different Family Day Care Services which had not been included in her resume.

Period

Service

Role

26/06/2014 to 31/12/2016

Golden Heart Family Day Care

Educator and Staff member

16/01/2017 to 8/01/2018

Growing Kids Children Services

Educator

27/02/2017 to 7/04/2017

Early Childhood Learning FDC

Educator

64. On 29 March 2021, Ms Abdi was emailed clarifying questions with regard to her work history and particularly her engagement with Golden Heart Family Day Care as follows:
A check of the Child Care Management System ('CCMS') has identified that you worked as a Family Day Care educator for Early Childhood Learning Family Day Care and Growing Kids Children Services during 2017 and 2018. It has also identified that you worked both as an educator and authorised personnel — Administration Officer for Golden Heart Family Day Care from 2014 to 2016.
In regard to the document titled 'RESUME−Muna' submitted to the department on 19 August 2020 (attached for your reference) please
1. Advise why you did not include the above mentioned work history in the Recent Work History section of your resume.
2. Provide details of any additional employment history in child care services that is not listed (including as a relief educator and in administrative roles).
3. Confirm if you (Ms Abdi), in your role as 'Administration at Golden Heart Family Day Care had an ID for the purposes of accessing the Child Care Management System via Hubworks (or any other third party software provider).
If you did have an ID for the purposes of accessing the Child Care Management System, please:
1. Confirm if the details of your ID, including your password, were shared with any other individuals at any time.
2. Confirm if you used this ID to make or authorise any changes to the personnel records for Golden Heart Family Day Care or if you used this ID to authorise any session reports to the CCMS.

65. In the response of 14 April 2021, Ms Abdi's provided the following information:
Ms Abdi never worked as an educator at Golden Heart Family Day Care. Ms Abdi did work as an Administration Officer at the service from 2014 to 2016.
Ms Abdi was not provided with a unique ID whilst working at Golden Heart Family Day Care for the purpose of accessing the CCMS via Hubworks or any other third party software provider
To the extent of whether Ms Abdi had any involvement in the reporting of to CCMS, Ms Abdi had no such access and did not report any attendances to CCMS whilst employed at Golden Heart Family Day Care.

66. On 27 April 2021, Ms Abdi was issued an additional matters notice which set out relevant matters with regard to Ms Abdi's role during her employment with Golden Heart Family Day Care.
67. On 25 May 2021, Ms Abdi's legal representative responded to the additional matters notice via Emails and made the following statements:
Additional matters notice:
An extract from the Child Care Management System sourced by the department on 30 March 2021 showed that throughout the period from 27 October 2015 to 26 July 2016 Authorised Person Id 'A01004' attributed to 'Muna Abdi' updated personnel records for Golden Heart Family Day Care. These updates related to changes in details of educators engaged by Golden Heart Family Day Care.
On 26 June 2016, Muna Abdi updated her own role from Carer to staff member and Authorisation Status from Not authorised to Authorised.
Extracts from the CCMS sourced by the department on 1 April 2021 detailed the following information on Muna Abdi's activity as authorised person A01004 and Carer C01461 at Golden Heart Family Day Care:
·4,133 sessions of care were attributed to Carer C01461 Muna Abdi for sessions occurring between 7 December 2015 to 24 September 2016. The Personnel ID's authorising submission of these session reports to the CCMS were:
oAli Elmi, who I note is Muna Abdi's husband
oA01002, Kadra Elmi, who I note is Muna Abdi's sister in law.
oA01003 Jessica Dunbar; and
oA01004 Muna Abdi herself.

·2,905 processed and cancelled sessions of care for the period between 12 October 2015 to 24 September 2016 were authorised and submitted to the CCMS by A01004 Muna Abdi. Of these 2,905 sessions, 358 were attributed to Carer C01461 Muna Abdi.

Provider's response:
Three Statutory Declarations signed on 25 May 2021 by Muna Abdi, Elmi and Kadra Elmi setting out that Muna Abdi was only ever employed as an Administrative Officer at Golden Heart Family Day Care and never cared for children and that it was common practice for staff to use each other's Authorised Ids, including a generic Id to enter information into the CCMS.

68. I have undertaken a comprehensive review of the submissions made by the provider as set out above in paragraphs 62 to 67 and I make the following comments.
69. The evidence before me and the submissions made by the provider are at best contradictory. On one hand Ms Abdi asserts that she did not have an Authorised Person ID for the purposes of accessing CCMS (14 April 2021. response) yet in her Statutory Declaration dated 25 May 2021 she sets out that she 'accessed the areas of Golden Heart's Child Care Management System (CCMS) required for me role as and Administrative and that would not necessarily access Golden Heart's CCMS using the user profile in my name'.
70. Furthermore an ID clearly attributed to 'Muna Abdi' updated personnel records in the CCMS for Golden Heart Family Day Care, including updates to educator details, an update to Ms Abdi's role type from 'Carer' to 'Staff Member' and authorisation status from 'Not Authorised' to 'Authorised' and submitted thousands of attendance reports to the CCMS.
71. Ms Abdi relies upon supportive statements made in statutory declarations completed by Ms Kadra and Mr Elmi (provided with the response to Additional Matters Notice) former directors of Golden Heart Family Day Care. Both Kadra Elmi and Ali Elmi do not dispute that Muna Abdi accessed the CCMS as an person suggesting that she would use a generic user profile rather than her own.
…
82. On 22 December 2016, Queensland Department of Education and Training (SRA) notified the department that suspension of service approval of Golden Heart Family Day Care Pty Ltd was imposed under the Education and Care Services National Law effective from 22 December 2016.
83. On 23 December 2016, the provider approval of Golden Heart Family Day Care Pty Ltd was immediately suspended due to the suspension of the service's approval under National Law.
84. On 20 February 2017, the provider approval of Golden Heart Family Day Care Pty Ltd for the purposes of family assistance law was cancelled due to the provider's failure to comply with conditions for continued approval. Specifically, the provider was issued a notice of intention to sanction on 10 November 2016 which set out apparent non−compliance with regard to:
· Inaccurate reporting
·Making reckless false statements
·Obtaining fee reduction and child care rebate payments by making reckless misleading or false statements
·Failing to remit child care benefit amounts to the Secretary
·Reporting care that was not provided (overseas educators and overseas children).

…
89. I find this non−compliance by a relevant person weighs very heavily against a finding that Ms Abdi and the provider are fit and proper persons to be involved in the operation of CCS and ACCS.

LEGISLATIVE FRAMEWORK

The FAL, as it relates to child care fee assistance, is wholly directed to supporting eligible individuals (for example, parents/guardians) with child care costs. In this context, the FAL provides a statutory framework under which parents have child care fee assistance calculated based on their individual circumstances, including by reference to personal income and activity-based parameters such as paid employment.
What is known as the FAL comprises two statutes being A New Tax System (Family Assistance) Act 1999 (the Assistance Act) and the Administration Act. The FAL creates a system that provides several entitlements including CCS and additional child care subsidy (ACCS) which is paid to particularly vulnerable or disadvantaged families and children. These benefits are payable subject to satisfaction of certain conditions contained in the FAL, in respect of child care sessions provided by an approved child care service. Payments are only payable in respect of child care sessions provided by an approved child care service.
Anyone seeking to operate a child care service may apply for approval as an approved child care service for the purpose of claiming benefits under the FAL under s 194 of the Administration Act. When approval is granted to the operator of a child care service under Division 1 of Part 8 of the Administration Act, the approval is subject to conditions that the approved child care serve must comply with at all times. These conditions are extensive and include, but are not limited to, eligibility requirements, compliance with FAL, compliance with Commonwealth, State and Territory laws, financial viability, compliance with child care placement limits and compliance with conditions imposed by the Minister and/or the Secretary.
The central requirement of the family assistance framework is that child care service operators must report fully and accurately to the Department. Accurate reporting is essential for the Department to correctly calculate childcare fee assistance, and to ensure that no overpayments of public funding occur. In addition, when any payments of child care fee assistance are first made to child care service operators, the FAL requires that operators fully pass on any such financial assistance to eligible individuals by way of fee reduction. If that is not able to occur (for example, because the care was not actually provided), then child care service operators are required to immediately remit such amounts of fee assistance to the Department.
Section 194A details the process of application for approval:
Application
(1) Any of the following (a provider):
(a) an individual;
(b) a body corporate;
(c) a partnership;
(d) an entity or body prescribed by the Minister’s rules;
may apply to be approved for the purposes of the family assistance law in respect of one or more child care services that the provider operates or proposes to operate.
(2) The application must:
(a) be given in a form and manner approved by the Secretary; and
(b) contain any information prescribed by the Secretary’s rules; and
(c) contain any other information, and be accompanied by the documents, required by the Secretary.
(3) An application is taken not to have been made:
(a) if the application does not comply with subsection (2); or
(b) in circumstances prescribed by the Minister’s rules.
Section 194B describes the conditions for provider approval:
(1) The Secretary may approve a provider for the purposes of the family assistance law if the Secretary is satisfied that:
(a) the provider satisfies the provider eligibility rules in section 194C; and
(b) the provider operates, or will operate, at least one child care service that satisfies the service eligibility rules in section 194D.
Approval in respect of child care service
(2) If the Secretary approves a provider under subsection (1), the Secretary:
(a) must approve the provider in respect of at least one child care service that meets the requirements in subsection (3); and
(b) may approve the provider in respect of one or more other child care services that meet the requirements in subsection (3).
(3) For a provider to be approved in respect of a child service, the Secretary must be satisfied that the service:
(a) is or will be operated by the provider; and
(b) satisfies the service eligibility rules in section 194D.
….
Refusal
(6) The Secretary must refuse to approve a provider for the purposes of the family assistance law if the Secretary is not satisfied of one or more of the matters referred to in subsection (1).
(7) The Secretary must refuse to approve a provider in respect of a child care service if the Secretary is not satisfied of one or more of the matters referred to in subsection (3) in respect of the service.
(8) If the Secretary refuses to approve a provider for the purposes of the family assistance law or refuses to approve the provider in respect of a child care service, the Secretary must give the applicant notice of:
(a) the refusal; and
(b) the reasons for the refusal.
Section 194C details the Provider eligibility rules:
A provider satisfies the provider eligibility rules if:
(a) for each child care service in respect of which the provider is seeking approval—the provider holds any approvals or licences required to operate a child care service under the law of the State or Territory in which the service is situated; and
(b) the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and
(c) any person with management or control of the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and
(d) any person who will be a person with management or control of the provider on the day the provider’s approval takes effect, or the day the provider’s approval in respect of a child care service takes effect, is a fit and proper person to be involved in the administration of CCS and ACCS; and
Note: See section 194F for the definition of person with management or control.
Section 194D outlines the service eligibility rules:
A child care service satisfies the service eligibility rules if:
(a) the service is of a type referred to in subclause 2(3) of Schedule 2 to the Family Assistance Act but is not any of the following:
(i) informal care provided through personal arrangements;
(ii) a service primarily conducted to provide instruction in an activity (such as sport or music);
(iii) a service primarily conducted to provide a disability or early intervention service;
(iv) a service where a parent primarily provides care or is readily available and retains responsibility for the child while the service is provided (such as a play group);
(v) a service primarily providing short‑term irregular care at premises where the parent is a visitor or guest and the parent is readily available (such as a service provided by a gym);
(vi) a service that primarily provides an early educational program to children in the year that is 2 years before grade 1 of school (such as a preschool or kindergarten); and
(b) the provider of the service holds any approvals or licences required to operate the service under the law of the State or Territory in which the service is situated; and
(c) each person who is responsible for the day‑to‑day operation of the service (whether or not the person is employed by the provider of the service) is a fit and proper person to be involved in the administration of CCS and ACCS; and
(d) each person who will be responsible for the day‑to‑day operation of the service (whether or not the person is employed by the provider of the service) on the day that the provider’s approval in respect of the service takes effect is a fit and proper person to be involved in the administration of CCS and ACCS; and
(e) in the case where the service is covered by allocation rules—if the provider of the service were to be approved, child care places would be allocated to the service under section 198B; and
(f) the Secretary is satisfied that it is appropriate for the provider to be approved in respect of the service having regard to the following:
(i) if the provider is already an approved provider—any conditions imposed on the provider’s approval;
(ii) any non‑compliance by the provider with a law of the Commonwealth or a State or Territory;
(iii) the provider’s record of administering payments under the family assistance law;
(iv) the provider’s record of administering of Commonwealth, State or Territory funds;
(v) the capacity for staff working at the service to use the electronic system for managing child care payments under the family assistance law;
(vi) any other matter prescribed by the Minister’s rules;
(vii) any other matter the Secretary considers relevant; and
(g) the service satisfies any other criteria prescribed by the Minister’s rules.
Section 194E details the fit and proper person considerations:
(1) The Secretary must have regard to the following matters in determining whether a person is a fit and proper person for the purpose of paragraph 194C(b), (c) or (d) or 194D(c) or (d):
(a) any non‑compliance by a relevant person with a law of the Commonwealth or a State or Territory;
(b) any proceedings currently before a court or tribunal that involve a relevant person;
(c) any decision made under a law of the Commonwealth or a State or Territory relating to child care which adversely affects a relevant person;
(d) subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or violence;
(e) any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a State or Territory;
(f) any act of a relevant person involving fraud or dishonesty;
(g) the arrangements the person has:
(i) to ensure the person complies with the family assistance law; and
(ii) to ensure anyone the person is responsible for managing complies with the family assistance law;
(h) the record of administering of Commonwealth, State or Territory funds of a relevant person;
(i) any debts to the Commonwealth incurred by a relevant person (whether or not the debt has been discharged);
(j) the record of financial management of a relevant person, including any instances of bankruptcy, insolvency or external administration involving the person;
(k) any other matter prescribed by the Minister’s rules;
(l) any other matter the Secretary considers relevant.
(2) For the purposes subsection (1), a relevant person is:
(a) the person; and
(b) another person or body in respect of which the person is or has ever been a person with management or control.
Note: See section 194F for the definition of person with management or control.
Section 194F defines a person with management or control:
(1) A person is a person with management or control of a body, if the person is any of the following:
(a) a member of the group of persons responsible for the executive decisions of the body;
(b) a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the body;
(c) a person who is responsible for the day-to-day operation of the body
(whether or not the person is employed by the body);
(d) a person who is responsible for the day-to-day operation of a child care service in respect of which the body is approved or is seeking to be approved (whether or not the person is employed by the body).
(2) Without limiting paragraph (1)(a), the following persons are taken to be members of the group referred to in that paragraph:
(a) if the body is a body corporate--an officer of the body corporate (within the meaning of the Corporations Act 2001);
(b) if the body is a partnership--a partner;
(c) in any other case--a member of the body's governing body.
ISSUE
The Tribunal must consider whether Precious FDC meets the requirements for approval for CCS and ACCS in accordance with section 194B(1) of the Administration Act.
EVIDENCE
The evidence before the Tribunal included documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and further documentation lodged by solicitors for Precious FDC.
Ms Abdi was born in Somalia and is the eldest of six children. She and her family fled the war in Somalia; first to New Zealand where she commenced her education and then later moved to Australia, settling in Queensland where she finalised her schooling and commenced her tertiary studies. In her numerous statements and oral evidence before the Tribunal, Ms Abdi outlined her qualifications and extensive experience working in the child care sector:
(a)Ms Abdi’s education:
(i)In 2012 she achieved a Certificate III in Children’s Services from Australian Child Care Career Options (ACCCO)
(ii)In 2017 she achieved a Diploma of Early Childhood Education and Care from the Advanced Training Institute
(iii)She has received a number of certificates for training in child care, early childhood learning, first aid and safety, and workplace management and safety.
(iv)She is currently pursuing a Bachelor of Education, currently at Victoria University but previously at Queensland University of Technology and Griffith University.
(b)Ms Abdi’s completed student placements at:
(i)Jellybeans Child Care Centre in 2012
(ii)Busy Learnings Early Education Centre in 2014
(iii)Corinda State School in 2015
(iv)Watson Road Primary School in 2016
(c)Ms Abdi’s relevant employment history:
(i)2013: casual coordinator and person in charge at Sherwood State School Before and After School Care
(ii)2013-2016: administration officer Golden Heart where Mr Ali Elmi (Ms Abdi’s now husband) and Ms Kadra Elmi (her now sister-in-law) were directors
(iii)2017: educator at Growing Kids Children Family Day Care for a short time
(iv)2017: established and commenced as director of Little Beginners Family Day Care (Little Beginners) in partnership with her mother Ms Kin Abdullah Roble. Ms Abdi continues to be a director of Little Beginners.
(v)2018: commenced as director of Precious FDC (purchasing the business from her sister-in-law Ms Nasra Elmi)

In her witness statements and oral evidence, Ms Abdi provided her personal circumstances. In 2015 she married Mr Ali Elmi, who she met through her employment at Golden Heart. Together they have four children, born in 2016, 2017, 2019 and 2021. In early 2017 the family moved to Melbourne from Queensland.
Ms Abdi’s affidavit of 7 June 2022 affirms:
44. I believe that family day care is a great alternative to traditional child care, as it allows culturally and linguistically diverse children who have English as a second language to be cared for more closely and develop social skills that allow for enrichment of the children’s lives in their new country, whilst also allowing the children to remain in an environment which reflects their cultural upbringing.
…
46 From my various roles across the different areas of work I was involved with, I found that a lot of my skills in relation to administration services and child care were transferrable to working with children and in family day care.
47. I frequently found myself using my organisational skills, time management skills, administrative skills and attention to detail when caring for children.
48. I started to think about the future and how I would like to progress in family day care. In the long term, I wanted to be able to influence the quality and delivery of family day care services and to enhance the role it had in the community.
49. I wanted to provide employment opportunities as educators for mothers in my local community who were not able to work while providing care to their own children, or as a result of other factors such as language barriers or a lack of education. A role as an educator in a family day care service provides a unique opportunity for women from culturally diverse backgrounds to be part of the workforce.
…
54. In April 2017, Kin and I commenced operating Little Beginners Family Day Care (Little Beginners).
55. On or about 10 April 2017, Little Beginners was granted approval by the Department for the purposes of CCS.
56. On or about 17 April 2017, Little Beginners was granted provider approval by the Queensland Department.
57. My involvement in Little Beginners includes:
(a) Running the day-to-day management of the company, including dealing with new educations, contracting educators and hiring staff;
(b) Dealing with the needs and any complaints of educators and staff;
(c) Communicating with the Department directly;
(d) Arranging training programmes and sessions for educators and staff;
(e) Maintaining a record of educator qualifications to ensure they are up to date at all times;
(f) Enrolling children;
(g) Running staff meetings, including the taking of minutes;
(h) Completing inspection registers based on monitoring visits undertaken by co-ordinators and following up any educators where required based on the outcome of the visits to ensure compliance at all times; and
(i) Entering attendance on the services software provider system
58. Little Beginners employs 4 staff members in addition to myself.
59. These staff members include two administrators and two co-ordinators
…
61. I retain overall responsibility and provide supervision to Little beginners staff. Little beginners staff are employees of the company
62. There are currently 15 educators managed by Little Beginners.
63. There are currently approximately 120 children enrolled with Little Beginners.
64. The number of staff employed by Little Beginners allows me to have a ratio of two coordinators to 15 educators (rather than the requisite 1 educator to 15 educators ratio).
65. Since Little Beginners has been operating, there have not been any compliance issues.
66. I have established a reputation in the community as a provider of quality care. I have invested much of my time and money into its operations.
67. I am committed to Little Beginners operating in full compliance with the FAL and have a strong understanding of the FAL, national law and national regulations.
68. Little beginners operates in Brisbane alone.
69. In 2018, after having recently moved to Melbourne in the year prior and recognising the demand for family day care services, I decided to establish Precious FDC in 2018.
…
77. After taking these steps, I wrote and prepared Precious FDC’s governance documents. I utilised the templates provided by ACECQA together with the policies and procedures I had already prepared for Little Beginners as a guide to prepare the relevant governance documents for Precious FDC. Once I had drafted the documents, I engaged Jodie Signorino of JPS Family Day Care Advisers to assist me with reviewing and finalising the documents.
…
82. I am the sole director of Precious FDC.
83. As director, my intended role in Precious FDC will be similar to my role in Little Beginners, with a largely managerial approach where I am responsible for and oversee the day to day activities of the service as well as working with a strong group of staff members to ensure the effective running of the service. Specifically, my intended role in Precious FDC will involve:
(a) responsibility for the day to day operation of Precious FDC;
(b) arranging for the development of policies and procedures consistent with the legislative and regulatory requirements and ensuring that these policies and procedures are upheld at all times;
(c) ensuring the health, safety, wellbeing and supervision of the children being cared for by PFDC, and that care arrangements in place are appropriate for educators and families;
(d) overseeing the recruitment and vetting of potential new educators;
(e) ensuring that persons engaged as educators, assistant educators and staff hold approved qualifications to work with children and are fit and proper persons, who are aware of the FAL;
(f) assigning coordinators to educators to facilitate the provision of face-to-face monitoring;
(g) ensuring that a sufficient number of competent persons are engaged as coordinators in accordance with the 1 coordinator to 15 HGXFDWRUV¶ ratio, to effectively support educators and ensure that they are continually monitored for compliance with the FAL, National Law and National Regulations;
(h) liaising with the Respondent;
(i) oversee all financial matters regarding CCS, fees and fortnightly statements to ensure that childcare fees are paid in full after the CCS is deducted should the parent be entitled to CCS. Alternatively, if the parent is not entitled to CCS, they must pay the full fee;
(j) ensuring that record keeping is undertaken in accordance with the FAL at all time;
(k) develop and maintain a Quality Improvement Plan; and
(l) making myself available as the day-to-day contact for SFDC, for staff, educators and families.
84. This intend on having four staff members, with a structure similar to that of Little Beginners, as follows:
(a) One Nominated Supervisor
(b) One Co-ordinator; and
(c) Two administrative offers.
…
88. This If the Review Decision is overturned, Precious FDC intends on engaging educators up to 15 educators to ensure that the company is able to remain compliant and does not become too big and unmanageable.
…
114. As outlined above at Paragraph 25, my duties and responsibilities whilst employed as an administration officer at Golden Heart were purely administrative in nature.
115. At no time was I involved in any decisions made by the service, including issues such as who was to visit and monitor each educator, who was employed, the educators that were engaged, the reporting of care and attendance records to the Respondent, or the cancellation of educator’s contract with the service.
116. I did not have any say or involvement in the making of executive decisions.
117. I did not hold any authority, responsibility, or significant influence over the planning, directing or controlling of the activities of the service.
118. I was not responsible for the day to day operation of the service, and did not have any insight in to the day to day operation, other than what I was required to do in respect to data entry of new enrolment details and the other duties
119. I worked under direction and supervision at all times, save for where I performed general office duties such as tidying up papers and scanning and photocopying documents.
120. When the Department contacted Golden Heart by telephone, which I recall happening on several occasions, the Department would request to speak with the Approved Provider or Nominated Supervisor. I would not speak with them and would pass the phone to the Nominated Supervisor or one of the directors if they were available.
121. When the Department attended the office of Golden Heart, I would greet the Department Officers and get the Nominated Supervisor or one of the Directors to attend to speak with the Department Officers. The Department Officers would sit and wait for the Approved Provider or Nominated Supervisor to arrive. I would not speak to them further than greeting them.
122. In my opinion, I was not a person with management and control of Golden Heart.
…
Section 194E(1)(g) arrangements to ensure compliance with the FAL
134. The Refusal Decision refers at [96] to my interactions with the Australian Securities and Investment Commission (ASIC) to be relevant in determining my capacity and commitment to complying with obligations imposed by Government authorities.
135. I accept that at the relevant times, being those when I changed residential addresses, I should have notified ASIC promptly of the relevant changes.
136. The Refusal Decision at [102] refers at to demonstrate adequate arrangements to ensure compliance with the FAL.
137. Since the Refusal Decision, I have worked closely with an independent consultant, Valerie Tillett of Evolve Consultancy to conduct a full review and update and improve Precious FDC governance documents. I have also undertaken an extensive review of the governance documents myself.
Mr Ali Elmi’s affidavit of 7 June 2022 states:
I was a director of Golden Heart …between around 2009 and 2019.
…
During the course of Muna’s employment, she retained the role of Administrative Officer at all times.
During the course of Muna’s employment, and in her role as an Administrative Officer, her duties and responsibilities included:
a). Carrying out general administrative duties including organising documents in physical paper files and in digital folders;
b). Enrolling children and educators and archiving them when necessary;
c). Answering the phone and taking front desk enquiries; and
d). Sourcing materials and information, scanning, photocopying and printing
Muna’s role did not involve accessing CCMS for the purposes of submitting care session report.
During the course of Muna’s employment, at no time was Muna responsible for:
a). making business decisions of Golden Heart;
b). planning, directing or controlling the activities of Golden Heart; or
c). the day-to-day operations of Golden Heart or Golden Heart FDC.
Ms Kadra Elmi’s affidavit of 8 June 2022 states:
I was previously a director of Golden Heart Family Day Care…
Muna’s role was employed to perform a purely administrative role. During the course of her employment, Muna’s role included:
a). performing general administrative tasks such as filing and management of paper and digital files;
b). entering details of new child enrolments into Golden Heart’s CCMS and archiving them when necessary; and
c). working in the office and answering the phone and take inquiries.
Muna’s role did not involve taking payments or undertaking any activities relating to reporting sessions of care.
At no time during the course of her employment was Muna responsible for:
a). making business decisions of Golden Heart;
b). planning, directing or controlling the activities of Golden Heart; or
c). the day-to-day operations of Golden Heart or Golden Heart FDC.
Ms Valerie Tillett’s affidavit of 19 October 2022 states:
I am a Early Childhood Education and Care Consultant who assists Family Day Care new providers in the process of gaining provider, service and CCS approval.
…
In my experience, it is common for Approved Providers in Centre Based and Family Day Care services to employ or engage staff members in relatively junior administrative support roles to assist with the reporting of attendances and other data including submitting enrolment notices and updating in the Child Care Management System (CCMS).
These roles are routinely completed by junior staff members under the delegated authority of people with management and control of the early childhood education and care service.
In my experience, it is common for administrative support roles to, under delegated authority, change financial information provided to the Department, approve and submit sessions of care reports and enrolment notices and create and update personal records. These tasks are often seen as administrative and easily completed by the administrative staff.
In my opinion based on my experience, if an administrative staff member’s role involves the reporting of attendances and other data within CCMS this does not of itself elevate the role of that person to being a person with management or control of the early childhood education and care service.
Ms Kathryn Lewis’ affidavit of 19 August 2022 states:
I am currently a Compliance Officer of the Compliance Operations Team in the Victorian office of the Department.
…
As a member of the Compliance Operations Team, I am authorised by the Secretary of the Department to undertake compliance actions, or otherwise deal with incidents of non-compliance or suspected non-compliance in relation to the family assistance law, identified as a result of reviewing the sources of information available to the Compliance Operations Team.
…
Golden Heart
Based on my review of systems information held by the Department, I am satisfied that the Excel spreadsheets at T58–T62 and ST35–ST40 of the T-documents are accurate extracts of Golden Heart's CCMS information held by the Department.
The information submitted by Golden Heart to CCMS shows:
a. a person named Miss Muna Abdi, with a date of birth of 29 August 1993, and a Personnel ID of A01004, was added into CCMS as Authorised Person (Administrative Officer) at Golden Heart with a start date of 26 June 2014: T58. For CCMS purposes, persons who were Authorised Persons had permission from the provider or key personnel to perform a range of functions on the provider's behalf, including changing financial information provided to the Department about the service, authorising and submitting session of care reports and enrolment notices, and creating or updating personnel records for the provider;
b. Miss Abdi as an Authorised Person submitted 2,905 session of care reports to CCMS for Golden Heart for the period between 12 October 2015 and 24 September 2016: ST36–ST38;
c. Miss Abdi as an Authorised Person submitted 83 formal enrolment notices to CCMS on behalf of Golden Heart and updated 18 formal enrolment notices (including 4 notices that were submitted by Kadra Elmi or Ali Elmi) for enrolments ranging from those with a start date of 25 May 2015 and an end date of 21 May 2017: ST40;
d. Miss Abdi as an Authorised Person updated personnel (educator) records in CCMS for Golden Heart with a date of effect between 27 October 2015 and 26 July 2016: T58; T62.
Little Beginners
I have reviewed information submitted to CCSS by Little Beginners, which shows that as of 16 August 2022:
a. 42 educators are registered with Little Beginners on CCSS; and
b. 24 of these educators do not have current working with children checks in CCSS.
The data extracted from CCSS that demonstrates this is exhibited to me at the time of affirming this affidavit and marked 'Exhibit KL-1'.
Based on information available to the Department, I am aware the service has additional conditions on its National Law service approval, including the condition that the approved provider must not engage or register more than 15 family day care educators with the service: T19, 247.
Ms Jennifer Cocks’ affidavit of 17 August 2022 states:
I am currently an Assistant Director of the Provider Approvals Team in the Australian Capital Territory Office of the Department.
…
As a member of the Provider Approvals Team, I am authorised by the Secretary of the Department to review and approve (or refuse) applications for provider approval under the family assistance law, having regard to information provided by an applicant and other sources of information available to the Provider Approvals Team.
…
Department's policy on governance arrangements
In light of non−compliance risks in the family day care sector, the Department has developed a policy on what governance arrangements a family day care provider seeking approval under the family assistance law should have in place. The Department’s policy is set out in:
a. the CCS Service Governance Statement;
b. the Assessment Record – Family Day Care Service Governance; and
c. the Child Care Provider Governance Requirements information sheet.
These policy documents provide guidance for decision-makers in the Provider Approvals Team in assessing whether a provider is a fit and proper person to be involved in the administration of CCS and Additional Child Care Subsidy (ACCS), and in particular, whether a provider has sufficient arrangements in place to ensure compliance with the family assistance law. These policy documents do not limit decision-makers’ ability to consider other relevant considerations.
When the Department is considering whether a provider is a fit and proper person to be involved in the administration of CCS and ACCS, a provider's governance arrangements are of vital significance. In the case of providers that are not currently operating a child care service, a provider's governance documents provide the principal means by which the Department can understand how a prospective child care will be run by a provider. Specifically, a provider's governance documents:
a. set out how a provider operates, or proposes to operate, their child care This enables the Department to assess whether a provider has set up its operations — including how decisions are made within the organisation, how staff are recruited, trained and supervised, what financial controls and audits are in place, and how records are kept and managed — to ensure compliance with reporting and other obligations under the family assistance law. This ensures that a provider is not at risk of non−compliance due to poor business practices and policies; and
b. set out how a provider will oversee educators and other personnel, and thereby manage risks of non−compliance which may arise from fraud or misconduct engaged in by educators or other personnel. Historically, providers that have failed to comply with their obligations under the family assistance law have sought to excuse themselves on the basis that they did not have any visibility or awareness of educator fraud or misconduct. A provider's governance arrangements enable the Department to assess what arrangements a provider has in place to detect and prevent the occurrence of fraud and misconduct by educators and other personnel, and thereby ensure the compliant operation of the child care service.
ContentionS
It was not in dispute between the parties that Ms Abdi is a person with management or control of Precious FDC, and Precious FDC is therefore a "relevant person" for the purpose of section 194E of the FAL.
Nor was it in not in dispute between the parties that Ms Abdi is a person with management or control of Little Beginners, and Little Beginners is therefore a "relevant person" for the purpose of section 194E of the FAL.
The Tribunal finds that Ms Abdi is a person with management or control of Precious FDC and Little Beginners which are both "relevant persons" for the purpose of section 194E of the FAL.
There was considerable dispute between the parties about whether Ms Abdi was a person with management or control of Golden Heart for the purpose of section 194E of the FAL.
Precious FDC
Counsel for Precious FDC contended that the Tribunal should set aside the review decision of 3 June 2021 to refuse to approve Precious FDC as an approved provider for CCS under the FAL. Counsel contended that the evidence before the Tribunal clearly indicated Ms Abdi, being the “relevant person”, has relevant experience, expertise and an extensive work history in the family day care sector. Counsel submitted the evidence demonstrated that Ms Abdi holds extensive qualifications relevant to the provision of child care and is currently completing a bachelor’s degree in education. Additionally, Ms Abdi has operated a family day care centre in Queensland, Little Beginnings, since 2017 and prior to this she worked as a staff member of two family day care services.

Counsel contended that much of the Respondent’s case had effectively fallen away over the course of the hearing as the Respondent had relied upon three headline factors to refuse approval to Precious FDC as an approved provider for CCS under the FAL, characterised as: Golden Heart FDC, Little Beginners, and governance issues.
Additionally, Counsel for Precious FDC contended that the Respondent had incorrectly determined that Precious FDC and Ms Abdi were not fit and proper persons. Conversely, Counsel submitted that the evidence had demonstrated that Precious FDC and Ms Abdi fulfill the requirements of 194E(1).
Counsel further submitted that Ms Abdi was an open, honest and credible witness, had made appropriate concessions where necessary, and had provided detailed answers to all questions put to her about every aspect of her application for CCS approval. Counsel submitted that this demonstrated Ms Abdi’s detailed and technical understanding of the CCS system and family day care in general. In particular, Counsel referred to Ms Abdi’s detailed answer about her intention to move from a paper-based system for monitoring children’s attendance to utilising an electronic system. Counsel submitted this demonstrated Ms Abdi knowledge that the old paper-based system had been the cause of many problems in the family day care sector in the past.
Counsel submitted that Ms Tillet’s evidence should be considered favourably by the Tribunal as she has an extraordinary track record and experience in the child care sector. Counsel contended that Ms Tillet’s evidence was supportive of Precious FDC’s application for CCS approval and Ms Abdi’s understanding of her responsibilities as a director of a family day care service.
Golden Heart
Counsel for Precious FDC submitted that the Tribunal must find that Ms Abdi did not satisfy the definition in section 194F with respect to Golden Heart and was, therefore, not a person with management or control of Golden Heart.
Counsel contended that the Respondent’s case that Ms Abdi was accountable for the failures of Golden Heart had fallen away over the course of the hearing as none of it bore out to the high-water mark of the ARO’s determination that ‘Ms Abdi was a person with management and control of Golden Heart Family Day Care Pty Ltd as per the definition in section 194F(1)(c) of the Administration Act’.
Counsel submitted that the Tribunal must find on the evidence that Golden Heart was not a “relevant person” for the purposes of its consideration of Section 194F of the Administration Act. Counsel submitted that this should weigh very heavily in favour of a finding that Ms Abdi and Precious FDC are fit and proper persons to be involved in the administration of CCS.
Counsel contended that the evidence clearly demonstrated that at all times Ms Abdi’s role at Golden Heart was purely administrative in nature and involved filing and management of paper-based files, answering phone calls and data entry tasks. That at no time during the course of her employment at Golden Heart was Ms Abdi responsible for:
(a)making business decisions;
(b)planning, directing or controlling the activities of Golden Heart; or
(c)the day-to-day operations of Golden Heart or its business.
Counsel for Precious FDC submitted that the Respondent’s contention that Ms Abdi worked as an educator at Golden Heart and was a person with management and control of Golden Heart, was not demonstrated during the hearing. Counsel submitted the Respondent was relying on data contained in spreadsheets extracted from its Child Care Management System (CCMS) which originates from data reported to the Respondent by Golden Heart. Counsel submitted that there was no one who could vouch for the accuracy of Golden Heart’s data, submitting the data was plainly inaccurate and the Tribunal should not place any weight on it.
Counsel submitted that the Respondent had invited the Tribunal to find that Ms Abdi’s name recorded on the spreadsheet as an authorised officer was accurate, whilst all other records were inaccurate. Counsel contended that this contention was unsustainable from any perspective or normative standards, particularly in respect of the critical need for accurate submissions and reports to CCMS under the FAL and was not a good standard for the Tribunal to set.
Counsel submitted that the Respondent was attempting to have a two-way bet on the data from Golden Heart, by simultaneously claiming the data was both accurate and inaccurate. Counsel submitted the Tribunal was required to look closely at all the spreadsheets relied upon by the Respondent to determine if it was satisfied that there was proof that Ms Abdi was an authorised person at Golden Heart, let alone a person with management and control of the service.
Counsel submitted that the Respondent’s contention based on the evidence extracted from the spreadsheets from the Child Care Subsidy System (CCSS), was a bad proposition because:
(a)they are relying on data from a cancelled service which was cancelled as it had failed to comply with its obligation to provide accurate reports under section 219N and for making false statements;
(b)it boiled down to one cell in one row of a spreadsheet which on closer scrutiny the spreadsheet revealed itself to be unsatisfactory;
(c)it demonstrated numerous inconsistencies about Ms Abdi's authorised status as the spreadsheets recorded 15 entries where her name and date of birth were inconsistent;
(d)it demonstrated that Ms Abdi was recorded as an authorised person at the same time as being recorded as not an authorised person, as out of the 15 references to Ms Abdi, six of those refer to Ms Abdi as an authorised person and nine of those as not authorised;
(e)there was no evidence of Ms Abdi having ever dealt with the regulator in respect of Golden Heart; and
(f)it contains a number of inconsistencies, for example in one column Ms Abdi is recorded as 'not key person' and in another her position type and title is recorded as 'administration' and 'administration officer'.
Counsel contended that the Tribunal was being asked to place significant weight on the spreadsheet which is underpinned by inaccurate data whilst ignoring evidence which substantially outweighs the evidence contained in the spreadsheet.
Counsel for Precious FDC contended that there was little the Tribunal can legitimately draw from the Golden Heart data relied upon by the Respondent and, fundamentally, the Respondent can't have it both ways. That on one hand the Respondent was agreeing that the data was false and inaccurate and had conceded that Ms Abdi was not an educator, but also on the other hand was suggesting that Ms Abdi was a person with management and control of Golden Heart. To demonstrate this point, Counsel noted the determination to cancel Golden Heart’s provider approval which stated: ‘Golden Heart has failed to comply with its obligations to provide accurate information to the Department in its reports under section 219N of the Administration Act’ and ‘the service has made false statements in its section 219N reports’. Counsel submitted that these findings about the inaccuracy and the falsity of Golden Heart’s 219N reports to the Department were unchallenged in this proceeding.
Counsel urged the Tribunal not to accept the Respondent’s submission or finding of fact that Ms Abdi was a person with management or control of Golden Heart, but to accept the Applicant’s evidence that Ms Abdi was only an administrative officer, earning $19 an hour, who was not responsible for submitting reports to the Respondent, was not an authorised person, and was legally never a person with management and control at Golden Heart.
Counsel submitted that section 194F did not require the Tribunal to make finding on whether Ms Abdi was an authorised person but rather required the Tribunal to make a finding on whether Ms Abdi was a person with management and control under s 194F(1). That is, was Ms Abdi:
(a)a member of the group of persons responsible for the executive decisions of the body; or
(b)a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the body; or
(c)a person who is responsible for the day-to-day operation of the body (whether or not the person is employed by the body); or
(d)a person who is responsible for the day-to-day operation of a child care service in respect of which the body is approved or is seeking to be approved (whether or not the person is employed by the body).
Counsel contended the decision before the Tribunal on this one central question (was Ms Abdi a person with management and control under s 194F(1)) was normative and would have far-reaching consequences. Counsel referred the Tribunal to the oft-quoted matter of Azizi and Minister Home Affairs [2018] AATA 2561 (Azizi) where Deputy President Raymond found at [6]:
Consistency of decision-making does not only affect the extent to which one Tribunal member ought in the usual case to follow and apply an existing decision of this Tribunal. A fully considered decision of this Tribunal is to be treated as normative not only by other members of this Tribunal but by government departments and agencies from whose decisions applications for review are brought to this Tribunal. Delegates of the Minister are departmental officers.
Counsel contended that the Respondent’s contention that Ms Abdi was a person with management and control of Golden Heart required an anterior finding and gave rise to an unattractive proposition of creating a precedent. Counsel contended that if the Tribunal accepted this submission, it would mean any administrative officer working in a family day care service who is identified in the system as an authorised person, whether to their knowledge or with their consent, would be found to be a person with management and control. Counsel submitted this was contrary to all the evidence in this matter which indicated that Ms Abdi performed limited administrative duties and only entered enrolments into the CCMS system.
Counsel submitted that the Tribunal needed to focus on substance over form and ultimately, in accordance with Azizi, was required to set the appropriate normative standard on the question of an authorised person. Counsel contended this precedent and normative standard was particularly unsatisfactory because it could have potentially lifelong ramifications for Ms Abdi if she was found to be a person with management and control of another entity. Counsel submitted that there would be very long running ramifications of such a finding, and it shouldn't be one which is lightly made by the Tribunal, especially not when made with form over substance, that being an interpretation of spreadsheets over the preponderance of evidence.
Counsel contended that the Tribunal should find on the evidence that Ms Abdi was not a person with management and control of Golden Heart under section 194F, and if the Tribunal accepts that finding, the issue of Golden Heart falls away and Ms Abdi can't be blamed for the failures of that service or have her application of CCS for Precious FDC denied.
Little Beginners
Counsel for Precious FDC submitted that Ms Abdi has been a director of Little Beginners since April 2017 and there has not been any non-compliance identified by the Respondent throughout Little Beginners’ operation. Counsel contended that this demonstrated that Ms Abdi had a strong record of compliance with the FAL.
Counsel contended that the ARO’s determination that ‘the provider has operated Little Beginners Family Day Care with no compliance history and this weighs in favour of the provider’ had been affirmed during the hearing. In particular, Counsel contended that the issues raised in Ms Lewis’ evidence that ‘42 educators are registered with Little Beginners on CCSS’ and ‘24 of these educators do not have current working with children checks in CCSS’ had been responded to by Ms Abdi, and Ms Lewis stated during the hearing that she was satisfied on the basis of Ms Abdi’s second affidavit that this non-compliance no longer stands.
Counsel submitted that the Tribunal should view Ms Abdi’s involvement in Precious FDC as a positive when considering its application for CCS approval. Counsel submitted the following important features should be favourably viewed by the Tribunal:
(a)Little Beginners has operated for five years continuously and the most significant concession it has made is that it reported the same data to Queensland but failed to report concurrently to the Commonwealth authorities;
(b)In those five years there have been no breaches of Little Beginners’ financial reporting obligations or administrative issues identified by the Respondent. There was no evidence or contentions that suggested Little Beginners had received payments for which they were not entitled, had a debt to the Commonwealth or had engaged in the oft-seen non-compliance issues in the family day care sector such as overseas educators or children; child swapping, overlapping sessions of care or care in own home; and
(c)There was no evidence that Little Beginners had breached child safety laws; particularly as the Respondent had conceded that all educators at Little Beginners had current Working with Children Checks (WWCC) and Little Beginners had not exceeded its educator limit of 15.
Counsel for Precious FDC contended that Little Beginners must now be viewed as a significant net positive for Precious FDC as its track record, particularly no history of overpayments, indicated that Ms Abdi had demonstrated that she had instituted and maintained good governance practices to ensure compliance with the FAL.
Governance Issues
Counsel for Precious FDC conceded that the first iteration of Precious FDC’s governance documents were simply not up to scratch. However, Counsel contended that Ms Abdi had meticulously amended Precious FDC’s governance documents to address every criticism made at every level of decision-making, assisted by an external expert. Additionally, Ms Abdi had continued to engage solicitors, not only for the present proceedings, but for ongoing advice on compliance with the FAL.
Counsel contended that the ARO’s determination that ‘I consider the provider’s inadequate governance documents combined with the provider’s failure to report accurately to ASIC to be an important consideration that weighs very heavily against a finding that Ms Abdi and the provider are fit and proper persons to be involved in the operation of CCS and ACCS’, was not sustained on the evidence before the Tribunal. Counsel submitted the Tribunal should find that the governance arrangements which Precious FDC had now submitted to the Respondent ensure compliance with the FAL.
Counsel contended that Ms Cocks’ evidence for the Respondent confirmed that part of the CCS approval process recognised the need for services to seek guidance on their governance documentation as providers are often invited to resubmit their governance documentation. Additionally, Counsel contended that Ms Cocks had referred to the “additional matters notice” as one of ways in which the Department can request further refinements to governance documents. Counsel submitted that the Tribunal should find that Precious FDC’s engagement with the Department to refine its governance documentation was something to be praised and not criticised. Counsel submitted that the Tribunal should weigh Ms Abdi’s willingness to engage in an iterative process even before the Tribunal (as still part of the administrative decision-making continuum) in favour of granting Precious FDC CCS approval as it demonstrated significant improvements have been made and will continue to be made to ensure ongoing compliance with the requirements of the FAL.
Counsel submitted an aide-memoir in which Ms Abdi responded to adverse comments on Previous FDC’s governance documentation. Counsel submitted that this was also to Ms Abdi’s credit as Ms Cocks gave evidence at the hearing that she would give credit to a provider if the material in the aide-memoir was in their governance documents.
Counsel submitted that the documentation provided by Ms Abdi in her second affidavit dated 19 October 2022 addressed the critical issue of the administration of Commonwealth funds. Counsel also contended that this document had not been the subject of further specific criticism in witness evidence and urged the Tribunal to find that this document, and others referenced in the aide-memoir, demonstrates that there are adequate governance arrangements in place to ensure Precious FDC fulfills CCS compliance.
Counsel contended that the Tribunal should look at Precious FDC’s governance documentation through the lens of proportionality. Counsel submitted that Ms Abdi’s testimony demonstrated her knowledge of the FAL but also her willingness to continue to learn by making concessions on specific issues put to her and accepting that in places the documentation still required refinement. Counsel contended that there was nothing put to Ms Abdi which was so dispositive that it should outweigh the credit the Tribunal should award. Counsel submitted that Ms Abdi’s actual track record of running Little Beginners, Precious FDC’s other governance documents which were not disputed by the Respondent, and Ms Abdi’s deep knowledge of the FAL which she demonstrated in her evidence, all weighed in Precious FDC’s favour and should be given considerable weight by the Tribunal in favour of granting approval.
Fit and Proper Person
Counsel for Precious FDC contended that the Tribunal should find Ms Abdi and Precious FDC are fit and proper persons on the evidence before it; submitting the Respondent had not demonstrated where Ms Abdi failed to meet the criteria in section 194(1). Counsel submitted:
(a)any non‑compliance by a relevant person with a law of the Commonwealth or a State or Territory: Counsel contended the Respondent’s reliance solely on the non-compliance history of Golden Heart in making an adverse finding in respect of section 194(1)(a) could not be sustained by the evidence, as Ms Abdi was not a person with management or control at Golder Heart.
(b)any proceedings currently before a court or tribunal that involve a relevant person: Respondent made no adverse findings about Ms Abdi and Precious FDC.
(c)any decision made under a law of the Commonwealth or a State or Territory relating to child care which adversely affects a relevant person: Counsel contended the Respondent’s reliance solely on the non-compliance history of Golden Heart in making an adverse finding in respect of section194(1)(c) could not be sustained by the evidence, as Ms Abdi was not a person with management or control at Golder Heart.
(d)subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or violence: Respondent made no adverse findings about Ms Abdi and Precious FDC.
(e)any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a State or Territory: Respondent made no adverse findings about Ms Abdi and Precious FDC.
(f)any act of a relevant person involving fraud or dishonesty: Respondent made no adverse findings about Ms Abdi and Precious FDC.
(g)the arrangements the person has: (i) to ensure the person complies with the family assistance law; and (2) to ensure anyone the person is responsible for managing complies with the family assistance law;
(i)Counsel contended in making an adverse finding for this consideration, the Respondent relied on two grounds:
A. a failure by Ms Abdi to update her address records with ASIC in respect of Ms Abdi being an officer of Little Beginners; and
B. alleged inadequacies with the governance documents, policies and procedures prepared by PFDC.
(ii)Counsel for Precious FDC conceded that Ms Abdi had failed to update her address records with ASIC but the oversight had been corrected and her address updated with ASIC. Counsel submitted the issues of governance documents, policies and procedures prepared by PFDC had been resolved as demonstrated during the hearing process.
(h)to ensure the person complies with the family assistance law: Respondent made no adverse findings about Ms Abdi and Precious FDC.
(i)the record of administering of Commonwealth, State or Territory funds of a relevant person: Counsel contended the Respondent’s reliance solely on the non-compliance history of Golden Heart in making an adverse finding in respect of section 194(1)(h) could not be sustained by the evidence, as Ms Abdi was not a person with management or control at Golder Heart.
(j)any debts to the Commonwealth incurred by a relevant person (whether or not the debt has been discharged): Respondent made no adverse findings about Ms Abdi and Precious FDC.
(k)the record of financial management of a relevant person, including any instances of bankruptcy, insolvency or external administration involving the person: Respondent made no adverse findings about Ms Abdi and Precious FDC.
(l)any other matter prescribed by the Minister’s rules: In making an adverse finding for this consideration, the Respondent relied on Section 46(3) of the Minister’s Rules regarding the understanding that can be demonstrated by the provider or person with management or control of the obligations that would apply under the FAL and the level of commitment to complying with those obligations. Counsel for Precious FDC submitted Ms Abdi’s written assessment on 18 February 2020, where she
(i)Answered 14 multiple choice questions correctly out of a possible 19;
(ii)answered 3 short answer questions correctly or satisfactorily out of a possible 5; and
(iii)demonstrated her sound knowledge and commitment to the FAL. Counsel submitted the Tribunal should find Ms Abdi and Precious FDC are a fit and proper persons based on her performance in the written test and knowledge demonstrated at the hearing.
(m)any other matter the Secretary considers relevant: Respondent made no adverse findings about Ms Abdi and Precious FDC.
Respondent

There was much made by the parties about the normative standard the Tribunal would be setting in respect of making a determination of whether Ms Abdi was a person with management or control of Golden Heart.
Counsel for Precious FDC stated in closing submission:
Starting with the Golden Heart issue, can I again just give the tribunal a reference to a decision that I referred to in my opening which is Azizi v Minister for Home Affairs [2018] AATA 2561. I don’t need to read from it in detail but it contains a very important statement of principle from Deputy President Rayment who says, at paragraph 6 that;
A fully considered decision of this tribunal is to be treated as normative, not only by other members of this tribunal but by government departments and agencies from whose decisions applications for review are brought to this tribunal.
And Deputy President Rayment in that decision collects the leading authorities for that principle which is longstanding and explains the importance of the AAT not just deciding single cases according to the merits but also setting normative standards in doing so for government departments to follow.
That critical principle impacts this tribunal’s analysis of the Golden Heart issue in two ways. To underpin that principle on the Golden Heart issue the submission that I make is that the tribunal needs to focus on substance over form and ultimately, in accordance with the principle in Azizi, that is the appropriate and correct normative standard to set and not elevate form over substance. So with those two principal submissions framing what I am about to say next, it impacts the assessment of the Golden Heart issue in these two ways. First, it highlights what I said in opening, which is that the respondent’s case on the Golden Heart issue which requires an anterior finding that Ms Abdi is a person - or was a person with management and control of that service, gives rise to the very unattractive proposition of creating a precedent where an administrative officer who is identified in a system, whether to their knowledge or consent or not, is found to be a person with management or control when their evidence is “I was limited to administrative duties only (indistinct) did enrolments.”
The precedent for that normative standard is particularly unsatisfactory for this reason - for this additional reason, which the present case also highlights. It can have potentially lifelong ramifications for a person if they are found to be a person with management or control of another entity. This case illustrates that because of the respondent’s - or in particular because of the authorised review officer’s decision that Ms Abdi was a person with management or control of Golden Heart, that became the positive issue on the review decision for declining Precious Family Day Care’s CCS application.
This is all a way of me saying, Member Burke, that there are very long running ramifications of such a finding and it should not be one that is lightly made and it should certainly not be one that is made by elevating in form what appears in a label on a spreadsheet over substance, which is a bulk and a preponderance of the evidence in this case.
The case of Azizi relevantly states at [3]-[9]:
A question has arisen as a preliminary point before me whether the decision on the issue decided by Senior Member McGrowdie ought to be treated as normative. Such a question is of great significance in this Tribunal and indeed relates in my understanding to one of the reasons for its establishment.
Some remarks were made by Brennan J, the first President of this Tribunal in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (another predecessor of the Minister who is the respondent in this case) which is reported at 2 ALD 634 in the context of a decision in relation to questions of deportation which are similar to those which arise in the present proceedings in some respects.
Brennan J gave consideration to the question of possible inconsistency of decision making in respect to deportation issues. His Honour said at page 639 of the report:
…
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. In matters of deportation, which so profoundly affect the interests of the deportee and his family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so.
Consistency of decision-making does not only affect the extent to which one Tribunal member ought in the usual case to follow and apply an existing decision of this Tribunal. A fully considered decision of this Tribunal is to be treated as normative not only by other members of this Tribunal but by government departments and agencies from whose decisions applications for review are brought to this Tribunal. Delegates of the Minister are departmental officers.
The Tribunal forms and was intended to form an effective wing of the executive government with power to substitute a relevant decision for that of members of the executive government who are employed as public servants.
The matter was considered in this Tribunal in Scott and the Commissioner for Superannuation (1986) 9 ALD 491. The Tribunal on that occasion was a full Tribunal constituted by Deputy President I. R. Thompson and Members Pascoe and Dr Davis. Having referred to a portion of the judgment of Brennan J which I have set out above, the full Tribunal said as follows at page 499 of the report:
Although that was said in relation to a consideration of whether or not it was proper for the Minister to have a policy and to make his decisions by applying that policy, it can properly be applied also to decisions of the Administrative Appeals Tribunal. One effect of the Tribunal's decisions is to establish administrative norms; they enable legislation to be administered consistently. For the Tribunal to make decisions inconsistent with its own previous decisions adversely affects that process. Doubtless, in some instances, where a matter has been decided by the Tribunal without full argument or full consideration and it is necessary for the Tribunal in later proceedings to examine the matter fully, it may then properly reach a conclusion different from the previous decision. In that event, because the later decision is the first made upon a full consideration of the matter, it is clear to administrators that that decision should be followed rather than the previous decision. More rarely there may be instances where, notwithstanding that the Tribunal has reached a decision on a certain matter after full consideration, it is nevertheless manifest that there was an error in the reasoning which led to that decision. To adapt what was said by Isaacs J in Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 278 , it is not better that the Tribunal should be persistently wrong than that it should be ultimately right. Nevertheless, where a matter has been decided by the Tribunal after full consideration of competing arguments, the decision is one which is reasonably tenable and there have been no changes to the legislation and no new decisions of the High Court of Australia or the Federal Court which may be relevant, it seems to us that it would be extremely unhelpful for the Tribunal in subsequent proceedings to decide the matter in a manner inconsistent with that decision, particularly when the arguments advanced are substantially the same as those advanced in the previous case.
The matter is also discussed in the current edition of Administrative Appeals Tribunal (4th edition) by Emeritus Professor D.C. Pearce AO, at page 323, where the author, in the course of discussing the two authorities to which I have just referred, says:
Second, and importantly in terms of its position in the administrative structure, the AAT performs a normative or systemic role. Many decisions of the AAT will have the significance of a test case for decision-makers. The ruling on one application may need to be applied to many like cases arising in the course of the agency’s general business. Consistency in treatment of like cases is a hallmark of good administration.
Counsel for the Department stated in closing submissions:
The point I’d started to make was where my learned friend’s submission about the enormity of influence of your decision of this question of whether an administrative officer is a person with management or control will have over future applications for the Department and review applications before the tribunal and that’s not a submission that I dispute. And I will just note that we have not identified any authority that addresses the question. So your decision will likely be the first decision that considered the point and that in some ways does make good that submission of my learned friend.
However, contrary to my learned friend’s additional submission that a finding in the secretary’s favour will have a negative effect on the sector the secretary contends that such a finding will simply reflect the adoption of government policy that applied at the time of Golden Heart’s operation, as well as the evidence of two experts with the childcare industry and more specifically with expertise in the family day care centre. And that’s the evidence of Ms Tillet and Ms Lewis
But the additional point I’ll make on that point, Member Burke, is that contrary to my learned friend’s submission if you find for the applicant on this point it is my submission that that will arguably result in an accountability gap in respect of individual administrative officers who are responsible for these important day to day administrative functions as an authorised person and as a person who under departmental policy should be held responsible for those actions.
Now obviously the service that they’re authorising the reports on behalf of. There’s no issue there both in relation to the specific individual and whether that responsibility that they hold can subsequently be considered in a different context. For example, in in this context, in a separate provider application. That issue and the evidence that you’ve heard it’s my submission that the better view is that Ms Abdi in her particular role as an administrative officer – not all administrative officers – that the nature of her particular role and her status as an authorised person meant that she in the factual circumstances here was responsible for the day to day operation of Golden Hearts Family Day Care Service which means that (indistinct) definition of a person having full control.
Now I’m only just to clarify one point about the enormity of the impact of your import of your decision. Obviously your decision is an application of the law and the evidence to the specific circumstances here. You’re not being invited to find that all administrative officers engaged by Family Day Care Services will be brought into the definition of person with management and control as a result of finding that Ms Abdi is a person with management or control. And the key link – key difference here – other cases may be her status as an authorised person here and the reports over a consistently long period of time authorised in her name.
The Tribunal cannot but agree with the learned determination of Deputy President Rayment in Azizi at [13] that the “dictates of justice, good administration and good government” requires consistency of decision making and, as Justice Brennan elegantly put it in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639, “Inconsistency is not merely inelegant”. It was a nice try by all concerned to elevate the matter before the Tribunal, however the Tribunal was not persuaded that its determination will be seen as anything more than a determination of the merits of this case within the construct of the law. Indeed, it will be for others to make that determination as it would appear this is the first case on which this proposition of whether an administrative officer is a person with management or control has been prosecuted.
Golden Heart
The Tribunal found it difficult to comprehend that a staff member employed as administrative officer in a family day care service to submit data onto the Harmony system would be defined as person with management or control of that service.
The Tribunal concurred with Precious FDC’s Counsel that it:
… gives rise to the very unattractive proposition of creating a precedent where an administrative officer who is identified in a system, whether to their knowledge or consent or not, is found to be a person with management or control when their evidence is “I was limited to administrative duties only (indistinct) did enrolments.”
The Tribunal is not completely persuaded by the Respondent’s assurance that it was not being invited to find that all administrative officers engaged by family day care services would be brought into the definition of a person with management and control because Ms Abdi’s status as an authorised person who had consistently submitted sessions of care reports over a long period of in her name, distinguished her from other administrative staff.
The Tribunal is not persuaded that the evidence demonstrated the ARO’s finding that:
On the balance of the evidence before me I consider that Ms Abdi's role at Golden Heart Family Day Care, over a period of almost 2 and a half years, was such that Ms Abdi meets the criteria of a person with management or control within section 194F(1)(c) of the Administration Act. That is 'a person who is responsible for the day−to−day operation of a child care service in respect of which the body is approved'.
The Tribunal finds it difficult to comprehend how the Department could, on the one hand, consider Golden Heart’s data was so inaccurate and fraudulent that it warranted cancellation of its approval, yet on the other hand relied upon that same data to determine that Ms Abdi was an authorised person. As demonstrated during the hearing by all parties, the inconsistencies and inaccuracies in Golden Heart’s data made reliance upon it as evidentiary proof that Ms Abdi was a person responsible for the day-to-day operation of the service too high a bar for the Tribunal.
Nevertheless, the Tribunal was completely underwhelmed by the evidence of Ms Abdi, and Ms and Mr Elmi and is not persuaded that their evidence demonstrated that Ms Abdi was not a person responsible for the day-to-day operations of Golden Heart. The Tribunal relies on the following evidence to the Tribunal in this finding:
(a)Ms Abdi
So it’s correct that you submitted enrolment notices and updated educator records in CCMS?   Yes.
Okay. Now, in addition to doing those things in CCMS, were there other tasks that you did in CCMS?   No
So is your evidence that you only accessed areas of CCMS in relation to child enrolments?   Yes.
Okay, so the     ?   Not just   not just child enrolments
Okay?   But educator, you know, if there’s an educator that’s leaving, I’ll cease her. So child enrolments, and like, updating an educator if she moves houses, I would update her, you know, new address. And enrolments in respect to, you know, when   when the parent does their, you know, their orientation with Kadra, she would bring me the forms and say, “Can you put that in the system?”, and I would do that. But it’s nothing   yes, it’s nothing that I could, you know   yes, I think that’s it.
s Abdi, I put to you that this spreadsheet records that you submitted 2905 session of care reports in your capacity as an authorised person while you were working for Golden Heart. Do you accept that?   No.
How do you explain the use of your name as the authorised person for the submission of those reports?   I have no explanation. The   that wasn’t in my scope, to be entering time sheets, attendance records. So yes.
Did you provide your credentials to log into the system to other persons?   My credentials were   it   like, we didn’t have passwords. So especially before Harmony Web Online, you would be logged in a computer, and yes, I’ve seen people use, and I’ve   I have seen people use the login details of each other, and it wasn’t something like, this is my username, or this is yours, you keep it. It was just MA. And you enter into the system, you go lunchbreak, someone else is sitting there using it. In my understanding at the time, I   what I understood was, “This is your scope. This is what you can do.” Even if it’s your, you know, login details, you can’t get out of your scope. So yes, that’s my explanation.
So did you use other people’s login details?   Yes, if it’s logged in, I’m not going to just sign out. If I need to get a, you know, a phone number of an educator, I’d look, but I didn’t   I never submitted attendance records for the company.
Who was responsible for submitting attendance records at the company?   The nominated supervisor and the directors of the company.
And by supervisor, that’s a reference to Jessica Dunbar?   Jessica and Ali and Kadra. The authorised person here, that doesn’t mean it’s the person that submitted it. Harmony right now, for me, Harmony right now, if I log in and I want to submit, it will come up with Kin and it will come up with, you know, other users, but that doesn’t mean the person that submitted those timesheets is that person. It doesn’t show the login details. This is Muna Abdi, my credentials was MA, you know what I mean? So over here it has my full name, so it must have been   I believe that it was something where someone clicked into. When you’re submitting the attendance   like, Harmony, when you’re submitting the attendance records, you choose Kadra, Jessica, whoever, and you click one and it will submit.
So why would somebody submit your name as being the authorised person if that was not part of your role?   I’m not sure. I’m   that’s something I don’t understand till today.
I put to you that it’s not a plausible explanation for why this records your name as the authorised person. What do you say about that?   I didn’t submit these attendance records. That’s what I have to say. And who did, that’s not something I can answer
MR GALVIN: So you had access, as an authorised person, to other reports and functions in Harmony, other than just the enrolment details for children and for the educator details. Is that what you’re saying?   When I see this now, I can see that I had more functionalities, but my scope and my job only consisted of admin. Here are the enrolment forms, put them in for the (indistinct). That’s all I did in that company, and that’s all I did until I finished working there.
(b)Ms Elmi
I put to you that that shows that Ms Abdi was an authorised person in your CCMS system, in Harmony, and that she submitted these what I’m calling session of care reports onto CCMS. What do you say about that?---I said before, Muna was not authorised personnel in Golden Heart whatsoever, and she never ever used to submit anything to do with data entry into session reporting and anything to the system.
Can you explain why Muna Abdi is listed as an authorised person?---I honestly don’t know.
Can you explain why a person with the name of Muna Abdi has authorised those sessions of care?---I don’t know.
So you don’t know – you can’t tell from looking at that document who the authorised person was for reporting those sessions of care?---I can see what you provided to me. It says “Muna,” but in my knowledge, Muna was not authorised personnel in that company whatsoever.
Who were the authorised persons?---Me and my brother.
And there was nobody else who was authorised?---Nobody else.
Does that mean that somebody else must have authorised these reports and not Muna Abdi?---I don’t know.
(c)Mr Elmi
I put to you, Mr Elmi, that this document indicates that Ms Abdi was an authorised person for Golden Heart and that she authorised the submission of each of the session of care reports in Harmony that are set out in this table; do you accept that?---No, I don’t accept because the approved provider is the only one that authorises attendance submission. So how this document came about, I really can’t tell you to be honest.
A person who has authorised the change in her details. I put to you that it wasn’t an error in the system, it’s actually been changed in the system by Kadra Elmi?---That’s what it says, I’m following you, but again, Muna’s role was never to do or to be authorised or to - to do anything more than being an admin
Well, can you explain how that information could have been provided to the Department?---I can’t explain it to you, just the same way as the other spreadsheet that you showed me. This clearly, from what you have explained to me and what is in here, and what we’ve gone through, is basically saying that Muna submitted attendance record, she was an educator, she submitted her own time sheet - definitely not. She was never an educator

The Tribunal considers the ARO’s other finding in respect of Golden Heart was more appropriate to the consideration of Ms Abdi’s role in this cancelled service:
I consider the non−compliance identified reflects poorly on the provider's (Golden Heart Family Day Care Pty Ltd) administering of Commonwealth funds. In particular, I consider the non−compliance with regard to inaccurate reporting and reporting care that was not provided, reflects very poorly upon the honesty and accuracy of the provider's reporting and therefore their record of administering Commonwealth funds.
I have placed moderate weight upon this finding in making my decision to refuse the approval of the provider as there is no evidence to suggest Ms Abdi herself played a significant role in the administering of Commonwealth funds at Golden Heart Family Day Care.
The Tribunal considers the CCMS Fact Sheet relied upon by the Respondent was not determinative in arriving at a conclusion that Ms Abdi was person with management or control at Golden Heart. The fact sheet articulates that staff who are not authorised persons can submit data onto the CCMS registered software:
Who authorises the attendance and enrolment records submitted to the CCMS?
The name of a key or authorised person must be listed on transaction records submitted to the CCMS. This is the person that DET holds responsible for ensuring the information contained on the transactions are accurate and comply with the requirements of family assistance law.
The key or authorised person is not required to be the staff member that actually enters the data into CCMS Registered Software, or actually submits the transactions. Key or authorised persons should have complete confidence in the people who carry out those functions
Whilst Ms Abdi’s evidence was slightly confused on this point, she conceded that she did enter various records onto the CCMS system whilst employed at Golden Heart but was adamant that she was not an authorised person.
Based upon the evidence, the Tribunal is unable to determine whether Ms Abdi was an authorised person at Golden Heart. Based upon the conflicting evidence and lack of sound data, the Tribunal cannot make a finding that she was a person with management or control of the service.
However, The Tribunal does find that Ms Abdi’s role at Golden Heart should be considered as a moderate factor for refusing Precious FDC’s approval for CCS as she was an integral staff member at the service during its period of significant non-compliance.
Little Beginners
The Tribunal finds that Ms Abdi’s role at Little Beginners weighs both in favour and against Precious FDC’s approval to administer CCS. On the one hand, the Tribunal finds that Ms Abdi has been running Little Beginners successfully, without any major blemish in respect of its compliance record, for the past three years. However, on the other hand, the Tribunal is not persuaded that Ms Abdi had a sound knowledge of her obligations under the FAL which was of concern to the Tribunal as Ms Abdi is currently a co-director of an approved provider.
Additionally, the Tribunal is not convinced that Ms Abdi would be able to undertake both her roles at Little Beginners and Precious FDC, which would reduce her ability to comply with the FAL. The Tribunal relied upon Ms Abdi’s evidence to the Tribunal when arriving at this conclusion:
Can you please describe for the tribunal what your role is with Little Beginners? Right now? My role for Little Beginners is I am the I’m a director. So basically, I’m the approved provider, so I oversee staff members, I allocate staff members with roles, I’m in charge of I’m in yes, I’m in charge of changing, like, policies and enrolment forms and updating any of the forms that we need. I am in charge of also you know, I am the first point of contact, so if a family is interested in, you know, in someone looking after their children, I will be the first point of contact. Because Little Beginners is in a where it’s located, it’s residential, so families don’t in first, like, their first instant is not to just to come to the office. They normally call. So normally I answer their phone calls, I talk to them, I set up orientation, you know like, the orientation process with them. I tell them about, you know, how our fees work and everything. And then, that’s when they come to the office and Kin is there as well to assist them, and the admins. So that’s, yes, my role. And also, the you know, I deal with the regulatory authorities and if we get just now in August, we were allocated with new offices, so I went down so I go back and forth to Brisbane when needed. We were introduced to a new regulatory authority. So yes, so I went down and met them. They did their monitoring, the educator visits. They did the office visits. So yes, that’s my role wrapped up.
The Tribunal considers that Ms Abdi’s role as director of Little Beginners weighs neither for nor against Precious FDC being granted CCS approval.
Governance Issues
As the Tribunal has observed in other decisions, there is no dispute that the day-to-day managerial, administrative and regulatory requirements to operate a family day care service are extremely complex, particularly as care is provided to hundreds of children, across numerous locations in educators’ private homes. The complexities of the FAL have been noted by the Full Court of the Federal Court which observed in Secretary, Department of Education and Training v Simpson Networks Pty Ltd t/as Melbourne School Holiday Club (2019) 273 FCR 252 at [21] that:
The provisions of the Act and the Administration Act are a thicket of obscurity created by interwoven lengthy provisions that appear to seek to deal in a prescriptive manner with every possible eventuality…They would defy ready interpretation by any person that the legislation is intended to benefit.
The FAL requires Ms Abdi to be conversant with multiple state and federal legislative requirements. Service providers such as Precious FDC must not only ensure they are providing quality, safe, secure and pedagogically sound childcare but also to accurately administer Commonwealth funds. Often this complex and varied administrative task can result in providers failing to meet their statutory obligations as a result of administrative, computer or human errors, and the willful non-compliance of educators and parents.
It also requires the Department to administer regular and complex reviews of all FDC services to ensure compliance, which is not straight forward given the observation of the Federal Court in Al-Huda Pty Limited v Secretary, Department of Education, Skills and Employment [2020] FCA 1613 at [1] that: “There is a myriad of complexity in the rules with which providers must comply under childcare subsidy arrangements”.
For the Tribunal to ascertain if Precious FDC has the capacity to comply with these complex obligations under the FAL, it must have demonstrated that it understands the compliant management systems, processes and procedures required to receive and administer Australian government payments on behalf of individuals eligible for child care fee assistance. Given Precious FDC is seeking registration of a new service, the Tribunal is guided primarily by the policy documents and procedures submitted, Ms Abdi’s demonstrated knowledge in the written assessment, and in this instance is assisted by her record as a director of an existing service.
The Tribunal concurs with the Department’s findings that there are significant deficiencies in the policies and procedures submitted by Precious FDC; noting Ms Abdi’s own evidence that “So according to the criticisms there was - there was a lot of criticisms, and they covered a lot of the policy”.
Upon reviewing Precious FDC’s governance documents, the Tribunal found the governance documents were still lacking detail about how the service proposed to ensure compliance with the FAL, in spite of the various iterations of the documents produced by the Applicant to respond to concerns raised by the Department. The Tribunal finds that Precious FDC’s governance documents are poorly designed, poorly presented, created uncertainty and confusion, and did not provide accessible or comprehendible guidance to staff, educators and/or parents.
The Tribunal appreciates that the documents represent Precious FDC’s aspirations to achieve operational compliance and excellence, however the documentation does not demonstrate that there are robust policies and procedures in place to ensure Precious FDC would comply with its obligations under the FAL.
The Tribunal, considering the current governance documentation submitted by Precious FDC in the course of the hearing, finds that they have not addressed the original concerns of the Department. The Tribunal concurs with the original determination which found:
If the service were approved, I am of the view the applicant would not have appropriate mechanisms in place to ensure compliance with its obligations under family assistance law, such as reporting sessions of care, liability to pay, enrolling children, record keeping and notifications.
I am particularly concerned about the inability of the applicant’s sole PMC (director) to respond satisfactorily to the questions relating to fraud, reporting sessions of care and enrolments. Submitting incorrect data to the CCSS and fraudulent conduct are major reasons for non-compliance within family day care services.
I am concerned that the applicant has submitted this document without undertaking the relevant checks and balances prior to submitting it as a supporting document to the CCS application. This does not give me confidence in the applicant’s ability to appropriately check and monitor the accuracy of attendance reports to ensure compliance with the family assistance law.
The Tribunal also relied upon Ms Abdi’s evidence at the hearing, which continued to demonstrate her inability to address the serious governance issues identified by the Department during the application process:
You say, “Family day care services are” - sorry it says;
Family Day Care Services are responsible for the accuracy of claims made by educators and families, have their responsibilities and their obligations to ensure child care subsidies are administered correctly, therefore Precious Family Day Care will contact at random every three months to confirm that the child care attendance matches the digital attendance records submitted.
So that states that those random checks will be conducted every three months. So is it each fortnight or every three months that the checks will be conducted?---In the end of the prevention - I think somewhere - over every - so the thing that will happen quarterly is the unannounced, so that I would have to change. The parents would be contacted one family at a time would be contacted fortnightly and if there’s any inconsistency then they will be contacted then.
So each family will be contacted once a fortnight?---No, one family a fortnight.
One family per fortnight?---Yes. Unless they are inconsistent with - - -
Okay?---Yes, that would make maybe two or three families.
So over the course of a month there might be two families that you check. One, the first fortnight and then another one the second fortnight?---Yes.
So this statement here is incorrect?---That’s (indistinct) yes.
Additionally, the Tribunal considered the Applicant’s aide-mémoire lodged on 28 October 2022 also continued to demonstrate a lack of clarity and understanding of the need for clear and concise governance documents, for example:

Comment Number Respondent witness Summary of comment Precious Response

12 Jennifer Cocks
This time there was discussion around random phone calls which is what we would look for.

I would have liked the document to specify, for example, saying 3 random checks per month, we will take photos of children, if care is incorrect then what will we do.

At page 42A of Exhibit MA1 is a power point presentation named ‘CCS personal training’. At page 11 of the power point it states that parents will be randomly called consistently.

At page 314 of Exhibit MA1, it states that as part of the prevention of fraud policy random parent checks will be done and documented to ensure consistency. This will be used to cross check attendances and absences reported by educators. This will help Precious FDC monitor parents and educators and prevent collusion. It also mentions if any inconsistency is found immediately termination will be given.

At page 520 of Exhibit MA1 is a copy of the template form for an unannounced visit.

The Tribunal finds that this documentation exemplifies the lack of clarity and understanding by Precious FDC of its obligations in administering the FAL. The Tribunal found these documents difficult to navigate and interpret. These policies and procedures were contradictory, and this was compounded by Ms Abdi’s contradictory evidence to the Tribunal. The Tribunal could not find one clear concise document to assist staff, educators and parents to comprehend their requirements under the FAL. The Tribunal finds this lack of clarity and understanding is sufficient enough to warrant the refusal of Precious FDC’s CCS approval, as it is this very lack of guidance to staff, educators and parents that leads to human error and fraudulent activity resulting in overpayments and subsequent debts to the Commonwealth.
The Tribunal concurs with the original decision maker’s determination that Precious FDC’s governance documents exhibit the same lack of detailed understanding of its FAL obligations that Ms Abdi demonstrated in her written assessment. The Tribunal was not persuaded by Precious FDC’s counsel that Ms Abdi had demonstrated sound knowledge of her obligations under FAL during her evidence in chief and her written assessment. Ms Abdi demonstrated an understanding at a basic level of the requirements of the day-to-day running of a family day care centre but was not able to persuade the Tribunal that she had sufficient knowledge for Precious FDC to be granted approval for CCS.
The Tribunal was concerned by Ms Abdi’s inability to clearly demonstrate her knowledge of the requirements of the FAL as she is and has been a co-director of an existing service for the past three years. Given Ms Abdi’s involvement at Little Beginners, the Tribunal considers that Ms Abdi should have had no difficulty in completing the written assessment, providing concise policies and procedures for Precious FDC, and demonstrating knowledge of FAL obligations in her evidence before the Tribunal. The Tribunal appreciates that the law has changed since Little Beginners was registered, however part of a provider’s obligation under the FAL is to be current with existing legislation.
The Tribunal finds that Ms Abdi did not demonstrate a sound knowledge and understanding of the FAL and this weighs against granting CCS approval to Precious FDC.
Fit and Proper Person
The Tribunal finds that Ms Abdi had a genuine desire to provide a much-needed child care service to the ethnically diverse, lower sociodemographic families within her community. The Tribunal finds that there is no evidence that Ms Abdi had been involved in any fraudulent activity or mismanagement in her role as a director of Little Beginnings.
The Tribunal accepts the Respondent’s contention that governance arrangements are of vital significance in determining whether a provider is a fit and proper person to be involved in the administration of CCS and ACCS. On this basis, as the Tribunal has found that Precious FDC’s governance arrangements are inadequate, this weighs heavily against a finding that Ms Abdi and Precious FDC are fit and proper persons to be involved in the administration of CCS and ACCS.
decision
The Tribunal, having determined that Ms Abdi and Precious FDC are not fit and proper persons to be involved in the administration of CCS and ACCS, affirms the decision under review.

I certify that the preceding 183 (one hundred and eighty-three) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

.................[sgd].....................................
Associate
Dated: 8 February 2023

Date of hearing:
25,26 and 28 October 2022

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Tmrom Lui

Mr Sindri Bergsson
Mills Oakleigh

Mr Tom Lui

Mills Oakleigh

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Tom Galvin
Minter Ellison

Minter Ellison

194E(1)	Mandatory Consideration	Department’s Position (Summary)	Service’s Response
(a)	any non−compliance by a relevant person with a law of the Commonwealth or a State or Territory	No adverse findings.	The Service agrees that there be no adverse findings in respect of paragraph (a).
(b)	any proceedings currently before a court or tribunal that involve a relevant person	No adverse findings.	The Service agrees that there be no adverse findings in respect of paragraph (b).
(c)	any decision made under a law of the Commonwealth or a State or Territory relating to child care which adversely affects a relevant person	No adverse findings.	The Service agrees that there be no adverse findings in respect of paragraph (c).
(d)	subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or violence	No adverse findings.	The Service agrees that there be no adverse findings in respect of paragraph (d).
(e)	any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision o f a law of the Commonwealth or a State or Territory	No adverse findings.	The Service agrees that there be no adverse findings in respect of paragraph (e).

Period	Service	Role
26/06/2014 to 31/12/2016	Golden Heart Family Day Care	Educator and Staff member
16/01/2017 to 8/01/2018	Growing Kids Children Services	Educator
27/02/2017 to 7/04/2017	Early Childhood Learning FDC	Educator