Wonderschool (Dickson) Pty Ltd v The Australian Capital Territory (As Represented By the Act Education Directorate) (Administrative Review)
[2021] ACAT 127
•21 December 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
WONDERSCHOOL (DICKSON) PTY LTD v THE AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY THE ACT EDUCATION DIRECTORATE) (Administrative Review) [2021] ACAT 127
AT 17/2021
Catchwords: ADMINISTRATIVE REVIEW – Education and Care Services National Law (ACT) Act 2011 – review of decision granting service approval to increase the number children permitted for a childcare centre – where approval subject to indoor and outdoor area, ventilation, solar access, environmental access, and shade – application of care principles and guidelines – suitability of areas of a childcare facility to be considered as a totality, rather than fragmented into areas and individually assessed – consistency with applicable guidelines – where dispute is in relation to the suitability of a specific area – decision set aside and substituted
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 68
Education and Care Services National Law (ACT) Act 2011 s 6
Education and Care Services National Law Act 2010 (Vic) ss 3, 4, 47, 48, 51, 193, 224, 225, 301, 324
Subordinate
Legislation cited: The Education and Care Services National Regulations 2011 ss 107, 108, 110, 113, 114
Cases cited:Brodie v Singleton Shire Council [2001] HCA 29
Tribunal:Senior Member G Lunney SC (Presiding)
Senior Member Prof. T Foley
Date of Orders: 21 December 2021
Date of Reasons for Decision: 21 December 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 17/2021
BETWEEN:
WONDERSCHOOL (DICKSON) PTY LTD
Applicant
AND:
THE AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY THE ACT EDUCATION DIRECTORATE)
Respondent
TRIBUNAL:Senior Member G Lunney SC (Presiding)
Senior Member Prof. T Foley
DATE:21 December 2021
ORDER
The Tribunal orders that:
The decision under review is set aside and substituted with service approval to provide education and care to a maximum of 95 children.
………………………………..
Senior Member G Lunney SC
For and on behalf of the Tribunal
REASONS FOR DECISION
Wonderschool (Dickson) Pty Ltd (the applicant) has sought review of a decision dated 23 February 2021 of the Australian Capital Territory (as represented by the ACT Education Directorate) (the respondent) to issue it with a service approval pursuant to section 48 of the Education and Care Services National Law (ACT) Act 2011 restricted to 72 childcare places.
Jurisdiction to review the respondent’s decision is conferred on the Tribunal by section 193 of the Education and Care Services National Law (the National Law)[1] which applies as if it were part of the Education and Care Services National Law (ACT) 2011 by operation of section 6 of that Act which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The review is an application for review by the ACT Civil and Administrative Tribunal pursuant to section 68 of the ACAT Act.
[1] As set out in the schedule to the Education and Care Services National Law Act 2010 (Vic)
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application.
The hearing
The matter was heard on 29 and 30 July 2021. The Tribunal had before it the documents provided by the respondent on which its decision was based (the T Documents), the submissions and submissions in reply of the parties. The applicant was represented by Mr M Costello of counsel instructed by Clayton Utz. The respondent was represented by Mr K Archer of counsel instructed by the ACT Government Solicitor.
On the morning of the 30 July 2021 the Tribunal carried out a view of the premises in company with instructing solicitors and parties. The view commenced at about 9:25am before recommencement of the second day of hearing. It was a clear frosty morning. The inspecting party climbed the stairs to the first floor and under the guidance of the child care manager commenced a tour of the premises. The morning activities of the centre continued with children undertaking mostly outdoor activities in appropriate attire which included parkas and beanies.
The members were provided with a plan which showed an area which was shaded red which was referred to as a disputed area. The members inspected the area, noting lighting conditions and comparing them to those in undisputed areas. The members did note some artificial lighting in some areas where the balcony area extended into the area within the footprint of the building.
The inspecting party then descended into the internal open quadrangle area formed by the buildings which make up the complex. The members were told that the area was available for excursions of children from the centre. The view concluded at about 10:00am.
At the conclusion of the hearing the matter was adjourned for the preparation of a transcript incorporating, if necessary, any agreed corrections. The applicant and respondent then made additional written submissions.
The Tribunal reserved its decision and indicated it would provide written reasons. These are those reasons.
Background
The applicant is a childcare provider operating on the first floor of a mixed-use multi-storey building at 101/21 Challis Street Dickson (the premises). The applicant was issued with a provider approval by the respondent on 14 July 2020. On 19 October 2020 the applicant applied for a service approval to provide education and care for 95 children at the childcare centre. On 23 December 2020 the applicant was issued with a service approval restricted to 72 children.
The applicant applied for an internal review of the respondent’s decision. On 23 February 2021 the internal review affirmed that decision.
On 22 March 2021 the applicant applied to ACT Civil and Administrative Tribunal (the ACAT) for review of the reviewable decision.
Pursuant to orders of the tribunal, the respondent filed and served a supplementary statement of reasons on 14 May 2021.
The relevant law
National Law
The National Law, as in force from time to time, and set out in the schedule to the Education and Care Services National Law Act 2010 (Vic) applies as if it were part of the ACT Act.
Sections 3 and 4 of the National Law provides:
3 Objectives and guiding principles
(1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.
(2) The objectives of the national education and care services quality framework are—
(a)to ensure the safety, health and wellbeing of children attending education and care services;
(b)to improve the educational and developmental outcomes for children attending education and care services;
(c)to promote continuous improvement in the provision of quality education and care services;
(d)to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework;
(e)to improve public knowledge, and access to information, about the quality of education and care services;
(f)to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth.
(3) The guiding principles of the national education and care services quality framework are as follows—
(a)that the rights and best interests of the child are paramount;
(b)that children are successful, competent and capable learners;
(c)that the principles of equity, inclusion and diversity underlie this Law;
(d)that Australia's Aboriginal and Torres Strait Islander cultures are valued;
(e)that the role of parents and families is respected and supported;
(f)that best practice is expected in the provision of education and care services.
4 How functions to be exercised
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.
Section 47 of the National Law provides the matters the regulator must have regard to in determining applications for service approval:
47 Determination of application
(1) Subject to subsection (3), in determining an application under section 43, the Regulatory Authority must have regard to—
(a)the National Quality Framework; and
(b)except in the case of a family day care residence, the suitability of the education and care service premises and the site and location of those premises for the operation of an education and care service; and
(c)the adequacy of the policies and procedures of the service; and
(d)whether the applicant has a provider approval; and
(e)except in the case of a nominated supervisor who is the approved provider, whether each nominated supervisor has consented in writing to the nomination; and
(f)any other matter the Regulatory Authority thinks fit; and
(g)any other prescribed matter.
Section 48 of the National Law provides for the grant or refusal of a service approval and notes that a service approval is granted subject to conditions in accordance with section 51.
Section 51 of the National Law relevantly provides:
51 Conditions on service approval
(4A) A service approval for an education and care service other than a family day care service is granted subject to a condition that the approved provider must ensure that the number of children educated and cared for by the service at any one time does not exceed the maximum number of children specified in the service approval.
(5) A service approval is granted subject to any other conditions prescribed in the national regulations or imposed by—
(a)this Law; or
(b)the Regulatory Authority.
The National Law makes various provisions with respect to the National Authority.
Section 224 establishes the National Authority:
National Authority
(1) The Australian Children's Education and Care Quality Authority is established.
(2) The National Authority—
(a)is a body corporate with perpetual succession; and
(b)has a common seal; and
(c)may sue and be sued in its corporate name.
(3) The National Authority represents the State.
Section 225 details the functions of National Authority, relevantly:
(a) to guide the implementation and administration of the National Quality Framework and to monitor and promote consistency in its implementation and administration;
…
(l) to publish guides and resources—
(i)to support parents and the community in understanding quality in relation to education and care services; and
(ii)to support the education and care services sector in understanding the National Quality Framework;
…
(n) to publish practice notes and guidelines for the application of this Law;
…
The Regulations
The Education and Care Services National Regulations 2011 (the Regulations) are made pursuant to sections 301 and 324 of the National Law. The Regulations relevantly provide the following requirements for indoor space:
107 Space requirements—indoor space
…
(4) The area of a verandah may be included in calculating the area of indoor space only with the written approval of the Regulatory Authority.
(5) A verandah that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space.
110 Ventilation and natural light
The approved provider of an education and care service must ensure that the indoor spaces used by children at the education and care service premises—
(a)are well ventilated; and
(b)have adequate natural light; and
(c)are maintained at a temperature that ensures the safety and wellbeing of children.
The Regulations relevantly provide the following requirements for outdoor space:
108 Space requirements—outdoor space
(1) This regulation does not apply in respect of a family day care residence.
(2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space.
Penalty: $2000.
(3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded—
(a)any pathway or thoroughfare, except where used by children as part of the education and care program;
(b)any car parking area;
(c)any storage shed or other storage area;
(d)any other space that is not suitable for children.
(4) A verandah that is included in calculating the area of indoor space cannot be included in calculating the area of outdoor space.(5) An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if—
(a)the Regulatory Authority has given written approval, and
(b)that indoor space has not been included in calculating the indoor space under regulation 107.
113 Outdoor space—natural environment
The approved provider of a centre-based service must ensure that the outdoor spaces provided at the education and care service premises allow children to explore and experience the natural environment.
Example—
The use of natural features such as trees, sand and natural vegetation.
…
114 Outdoor space – shade
The approved provider of a centre-based service must ensure that outdoor spaces provided at the education and care service premises include adequate shaded areas to protect children from overexposure to ultraviolet radiation from the sun.
The matter at issue
The matter at issue is the correctness of the reviewable decision to impose a condition on the applicant’s service approval such that the applicant be approved to provide education and care to a maximum of 72 children. This condition is predicated on the basis that the applicant only meets the regulatory requirements for outdoor space for this number of children. The applicant contends that its outdoor space is sufficient to allow approval for a maximum of 95 children.
Submissions of the parties
Written submissions were submitted in accordance with a timetable agreed to by the parties. Both parties had prepared submissions in preparation for the hearing, and there was some repetition.
The applicant
In its prehearing submissions, the applicant had reviewed the legislative context of regulation 108.
The early sections of the National Law set out the objectives and guiding principles as follows (previously quoted in paragraph 15):
3 Objectives and guiding principles
(1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.
(2) The objectives of the national education and care services quality framework are—
(a)to ensure the safety, health and wellbeing of children attending education and care services;
(b)to improve the educational and developmental outcomes for children attending education and care services;
(c)to promote continuous improvement in the provision of quality education and care services;
…
(3) The guiding principles of the national education and care services quality framework are as follows—
(a)that the rights and best interests of the child are paramount;
(b)that children are successful, competent and capable learners;
(c)that the principles of equity, inclusion and diversity underlie this Law;
(d)that Australia’s Aboriginal and Torres Strait Islander cultures are valued;
(e)that the role of parents and families is respected and supported;
(f)that best practice is expected in the provision of education and care services.
The applicant noted that issues in dispute had been narrowed in the course of the hearing. It sought to persuade the Tribunal to accept three basic propositions.
First, that once the minimum requirements of available outdoor space set out in regulation 108 are satisfied, it is not open for the regulator to limit child numbers by reference to regulation 113 or by any other practical matter.
Second, satisfaction of the requirements of regulation 113 cannot be determined by reference to a single aspect of the natural environment, specifically solar access.
Third, the totality of the outdoor space (rather than a subdivided portion of it) must be considered when considering regulation 113.
The applicant’s submissions related regulations 108, 113 and 114 with the general legislative background to the grant of a service approval.
The respondent
The respondent in its final submissions referenced its initial submissions prepared in anticipation of the hearing in which it had carefully set out the legislative background and context of the regulations the focus of the hearing.
The respondent at paragraph 20 of those submission had referred to the Outdoor Guidelines which had been developed by the ACT Regulatory Authority.[2] These guidelines did not have statutory recognition and do not bind decision makers. However, they provide guidance to achieve consistency and transparency. In a section dealing with verandahs and eves, the guidelines refer to outdoor space (as quoted in the submissions) as follows:
To be considered as outdoor space the areas must still be largely open to the sky, be well ventilated with adequate natural light, and readily allow children to explore and experience the natural environment.
[2] Outdoor Environment Guidelines: Requirements for approval of centre-based care services in the ACT, December 2019, ACT Education Directorate
The initial submissions of the respondent referred to that part of the Outdoor Guidelines which dealt with centres in multi-story buildings. This part recognises that providers face significant challenges in meeting their obligations under the legislation regarding provision of outdoor space. The part states that a centre should ideally be located on the ground floor to provide access to outdoor space exclusive to the centre.
Those submissions note that the Oxford English dictionary defines ‘outdoor’ as meaning “out of doors; in or into the open air”.
The submissions extensively analysed the expert evidence.
Consideration
In their final submissions both counsel submitted that it would be appropriate for the Tribunal to consider the outdoor area as a whole.[3] The Tribunal agrees with that approach in this case, and considers that the outdoor space is of such consistently high quality that dividing it into particular areas is inappropriate.
[3] The applicant in part D.1.2 of their closing submissions and the respondent at paragraph 9 of their final submissions.
The principles relating to the provision of and value of outdoor play areas for young children are well canvassed in the legislation and expert reports. There is virtually universal agreement on these. The areas of dispute in this case are relatively narrow and involve evaluation of the attributes of physical areas, in particular outdoor areas, available to children attending the centre. In those circumstances, previous decisions are useful in illustrating application of principle. However, each matter differs according to the facts and determination of the principles to them.
In designing the complex of buildings in a busy commercial area, a significant consideration was the convenience to parents with children and their children to have a childcare centre within that complex. The facilities in the centre are many and of evident high standard. It is evident that care and expertise has been devoted to the creation of the centre.
In the view of the Tribunal is not necessary to examine in detail the expert evidence since the applicable principles are easily ascertainable and have been referred to earlier in this decision. They commence with the proposition that the welfare of the children is of paramount consideration. The Tribunal on its inspection was impressed with the quality of the physical environment provided for the children. There was no location within the outdoor area that was unsuitable for the children, and there was no need or call to judge whether one area was more suitable for their use than another. There were variations in conditions but there was no detriment to being in one location rather than another.
As Callinan J said in Brodie v Singleton Shire Council, “The world is not a level playing field”.[4] The Tribunal’s view is that the outdoor area is entirely suitable for the purpose for which it was built and equipped. There was no justification for examining whether any particular area was inferior to another. There was seamless movement and use of all areas including the area in dispute.
[4] [2001] HCA 29 at [355]
It was a simple issue and artificial analysis was unnecessary. It is the view of the Tribunal, the entirety of the outdoor space should be used for calculation of the number of children leading to the conclusion that the number should be 95.
The decision under review should therefore be set aside and the original decision varied by substituting 95 as the maximum number of children that the service is approved to care for in lieu of 72.
Decision
The decision under review is set aside and substituted with service approval to provide education and care to a maximum of 95 children.
………………………………..
Senior Member G Lunney SC
For and on behalf of the Tribunal
| Date(s) of hearing | 29 and 30 July 2021 | |
| Counsel for the Applicant: | Mr M Costello | |
| Solicitor for the Applicant: | Ms K Crawford, Clayton Utz | |
| Counsel for the Respondent: | Mr K Archer | |
| Solicitors for the Respondent: | Mr M Roberts, ACT Government Solicitor | |
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Administrative Decisions (Human Rights) Act
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Substitution of Decision
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