Universal Family Day Care Pty Ltd and Secretary, Department of Education

This matter concerned an appeal by Universal Family Day Care Pty Ltd against a decision by the Secretary, Department of Education, to cancel its approval as a child care provider. The dispute arose after the Australian Securities and Investments Commission (ASIC) deregistered Universal Family Day Care Pty Ltd due to unpaid annual review fees. Subsequently, the Department cancelled the company's provider approval on the basis that it had ceased to operate. The appeal was heard by Dr L Bygrave, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine two key legal issues. Firstly, whether Universal Family Day Care Pty Ltd had ceased to operate for the purposes of section 197H of the relevant Act as a consequence of its deregistration by ASIC. Secondly, the Tribunal had to consider whether the subsequent reinstatement of the company's registration by ASIC had any retrospective effect on the Department's decision to cancel its provider approval.

The Tribunal reasoned that the deregistration by ASIC, which occurred on 22 July 2018, meant that Universal Family Day Care Pty Ltd was not legally capable of operating as a company during the period it was deregistered. Although the company's educators continued to provide child care services in their homes, the Tribunal found that the company itself had ceased to operate for the purposes of section 197H of the Administration Act during the period of its deregistration, from 22 July 2018 to 14 August 2018. The Tribunal concluded that the subsequent re-registration by ASIC did not alter the fact that the company had ceased to operate during that specific period, and therefore was not eligible for child care subsidy. The Tribunal affirmed the decision under review.