Zaksaw Pty Limited v Department of Education; Giacchi v Department of Education

Case •

[2024] NSWDC 550

•

28 June 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Zaksaw Pty Limited v Department of Education; Giacchi v Department of Education [2024] NSWDC 550
Hearing dates: 26 and 27 February 2024
Date of orders: 28 June 2024
Decision date: 28 June 2024
Jurisdiction:Criminal
Before: Kumar DCJ
Decision:

(1)   Each appeal against conviction is dismissed.

(2)   The orders of the Local Court are confirmed.

(3)   I reserve the question of costs.

(4)   Liberty to apply to the parties to relist the matter on the question of costs.

Catchwords:

CRIMINAL LAW – appeals and review – conviction appeal from Local Court – offences under the

Children (Education and Care Services) National Law (NSW) and Education and Care Services National Regulations (NSW)

CRIME – criminal liability – absolute liability – statutory offences – liability of approved provider and nominated supervisor at a centre under s 167 of the Children (Education and Care Services) National Law 2010 (NSW) – whether “must ensure” imports a standard of absolute liability – whether “every reasonable precaution is taken” attributes acts of employees to approved provider and/or nominated supervisor

Legislation Cited:

Children (Education and Care Services) National Law 2010 (NSW), ss 3, 5, 104, 162, 165, 269

Children’s Services Act 1996 (Vic), ss 26(1), 27(1)

Crimes (Appeal and Review) Act 2001 (NSW), s 11

Cases Cited:

ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138

Department of Education v Trad [2023] NSWCCA 329

He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43

Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28

Trad v Department of Education (NSW) [2023] NSWDC 168

Category:Principal judgment
Parties: Zaksaw Pty Limited (First Appellant)
Stefania Giacchi (Second Appellant)
Department of Education (Respondent)
Representation:

Counsel:
T Edwards SC and M Hunter (Appellants)
K Ng (Respondent)

Solicitors:
GMH Legal (Appellants)
Crown Solicitor (Respondent)
File Number(s): 2020/00326152
2020/00326144
 Decision under appeal 
Court or tribunal:
Local Court of New South Wales
Jurisdiction:
Criminal
Citation:

Unreported

Date of Decision:
8 November 2022
Before:
Horan LCM

JUDGMENT

  1. These are appeals pursuant to s 11 of Crimes (Appeal and Review) Act 2001 (NSW) against convictions imposed in the Local Court. Criminal proceedings were commenced by Ms Sharon Gudu, in her role as the Executive Director Quality Assurance and Regulatory Services, Early Childhood Education, Department of Education (“the respondent”) against Zaksaw Pty Ltd and Ms Stefania Giacchi (“the appellants”).

  2. Zaksaw Pty Limited (an approved provider) and Ms Stefania Giacchi (a nominated supervisor) were each convicted in the Local Court of an offence under section 167 of the Children (Education and Care Services) National Law 2010 (NSW) (“the National Law”).

  3. The offending related to the operation of a kindergarten when a 9-month-old baby came into contact with hot water because a jug of hot water had been placed on the ground. The infant suffered physical harm in the form of burns caused by the incident.

FACTUAL BACKGROUND

  1. The following aspects of what occurred on 14 October 2019, and the nature of the injuries suffered by the child, were agreed (8/11/22; T2.33), namely:

  1. The prosecution case arose out of an incident that occurred on 14 October 2019 at Rise & Shine Kindergarten and Childcare Service at Carlton in the State of NSW, which was an approved education service within the meaning of the National Law.

  2. Zaksaw Pty Ltd was the approved provider of the service, and Ms Giacchi was the nominated supervisor of the service.

  3. Between 10:20am and 10:30am on 14 October 2019, educators at the service were conducting an activity with the children involving the making of “goop”. “Goop” is a sensory experience which involves the mixing of corn flour with hot and cold water and food dye. A child, born in January 2019, was enrolled at the service and was participating in this experience.

  4. The hot water used during the “goop” experience was kept in an insulated jug. Two educators were in the room at the time of this experience, Ms Danielle Balloot, a trainee educator, and Ms Gata Sayed, who was an educator at the service. During the activity, Ms Balloot was seated at the child height table with the children surrounding it. Ms Balloot placed the hot water jug by her side on the floor, near her legs, while she was preparing the “goop” mixture at the children’s table.

  5. Ms Sayed saw that the hot water jug had been placed on the ground and attended to check that the lid was tightly closed. As she did this, she discovered that the child had spilled hot water on himself and saw that he had been injured by the hot water. She attended to take his pants off and run his leg under cold water. An ambulance was called, and the child was taken to St George Hospital for treatment. The child was not admitted to St George Hospital but received treatment at the Westmead Children’s Hospital Burn Unit over about a 7-day period.

  1. As a result of that incident, and an investigation into the incident by the Department of Education, (the respondent) commenced proceedings against the approved provider and nominated supervisor, alleging contraventions of s 167(1) and (2) of the National Law respectively, namely that each of them had failed to ensure that every reasonable precaution was taken to prevent a child in their care from harm and any hazard likely to cause injury.

PROCEDURAL BACKGROUND

  1. The proceedings were commenced in the Sutherland Local Court on 16 November 2020 by way of court attendance notices that alleged that the appellants had each respectively committed an offence against section 167(1) and (2) of the National Law arising out of an incident that occurred on 14 October 2019 at an approved education service operated by Zaksaw Pty Ltd, and where Ms Giacchi was the nominated supervisor of the approved education service.

  2. On 18 March 2021, the matter was set down for a three-day hearing from 20 -22 September 2021, however, on 20 September 2021, that hearing was vacated. The respondent submitted that the first hearing was vacated due to the late service of an expert report commissioned by the appellants (Respondent’s written submissions “RWS” [3]).

  3. The matter was heard in the Local Court on 26 - 28 April 2022 and was adjourned for judgment to 19 August 2022.

  4. The parties prepared written submissions (prosecutor’s submissions dated 18 July 2022, and defence submissions dated 26 July 2022).

  5. On 19 August 2022, the matter was listed for mention and the prosecutor indicated that she no longer pressed two particulars ((d) and (f)) on the court attendance notices filed on 16 November 2020, in respect of both appellants. The matter was further adjourned for judgment.

  6. On 8 November 2022, the magistrate found that Zaksaw Pty Limited (the approved provider) was guilty of an offence under s 167(1) of the National Law for failing to ensure every reasonable precaution taken to protect children from harm or hazard. The magistrate also found that Stefania Giacchi (the nominated supervisor) was guilty of an offence under s 167(2) to the National Law for failing to ensure every reasonable precaution taken to protect children from harm or hazard.

  7. On 21 November 2022, the appellants were formally convicted and sentenced as follows:

  1. In respect of Zaksaw Pty Ltd, her Honour convicted the defendant and fined it $3,000;

  2. In respect of Ms Giacchi, her Honour convicted her and fined her $600.

  1. The magistrate also ordered that both the defendants pay the costs of the prosecutor, with Zaksaw Pty Ltd to pay $9,000, and Ms Giacchi to pay $6,000. Her Honour also ordered that a moiety of 50% in respect of each of the fines be made payable to the prosecutor.

  2. On 8 December 2022, the appellants each filed a notice of appeal against conviction on the two grounds.

  3. On 15 December 2023, the Court of Criminal Appeal delivered its judgment in Department of Education v Trad [2023] NSWCCA 329 (“Trad”).

  4. The appeal hearing in this court proceeded on 26 and 27 February 2024. The material tendered in the appeal was the appeal book containing 55 documents (Exhibit A). The appeal book contained the respondent’s written submissions “RWS” (Tab 5) and the appellants’ written submissions in reply (Tab 6). The appellants did not file written submissions in the appeal prior to the respondent’s submissions (that is, the appellants did not file submissions in the appeal prior to their submissions in reply). The appellants did not specifically address me on the two grounds of appeal as set out in their notices of appeal but rather dealt with the “statutory construction point” and then the “policy and training point” (27/2/24; T30).   

NATURE OF APPEAL

  1. An appeal to the District Court of New South Wales is brought pursuant to s 11 Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Section 18(1) provides that “[a]n appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19”.

  2. These appeals proceeded on the basis that the appellants needed to, and could establish error, on the part of the magistrate: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218. The need to demonstrate error does not reverse the onus of proof. Demonstration of error can mean no more than satisfying the District Court judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 (“McNab”) at [90].

  3. That said, I am still required to form my own judgment as to the facts based on evidence given in the Local Court proceedings: s 18 CAR Act. The appeals must be upheld unless I am satisfied of the appellant’s guilt beyond reasonable doubt.

  4. These considerations do not preclude, either expressly or impliedly, reference to the reasons of the magistrate and any findings by the magistrate as to the credibility of witnesses: McNab at [29]-[41] & [69]-[82]. It is accepted that I can have regard to the magistrate’s reasons and her assessment of the witnesses.

  5. The task for a District Court judge when hearing a s 18 appeal is to form their own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt: Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92 at [28]; McNab at [25].

  6. I must form my own judgment as to the facts based on the evidence and transcript from the Local Court. If on the rehearing I conclude that the appellants’ guilt was not (and thus should not have been found to have been) established beyond reasonable doubt this will necessarily involve a conclusion that the magistrate committed some legal, factual or discretionary error.

  7. I note that on this appeal, no further evidence was received, pursuant to s 18(2) or s 19 of the CAR Act.

  8. Any judgment convicting a person must meet some minimum criteria. The level of detail required in a judgment must, however, be relevant to the complexity of the matter and the issues in dispute at the hearing. A Local Court judgment must refer to the findings of fact on which the magistrate relied. There must be evidence to support a particular finding. The magistrate must get the law right. Principles of law which are applied must be correctly formulated. The magistrate’s reasoning process must be exposed. Sometimes not withstanding some failure or omission in the judgment they can be excused if the judgment shows expressly or by implication that the correct principle was applied. If a warning is required to be taken into account, the magistrate is obliged to take the particular warning into account. That obligation must be seen to be discharged: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68.

  9. The focus of these appeals was on the interpretation of s 167 of the National Law.

JUDGMENT IN THE LOCAL COURT

  1. The magistrate commenced her Honour’s reasons by setting out the factual matters, which were not in dispute (8/11/22; T2-3). The magistrate then identified that the issue for determination was “whether each defendant ensured that every reasonable precaution was taken to protect the child from harm and from any hazard likely to cause injury” (8/11/22; T3.17). The prosecutor relied on four failures against the appellants (as set out in the court attendance notices).

  2. The magistrate summarised the evidence (8/11/22; T3.44-4.42).

  3. The magistrate then made findings based on the evidence. There is no challenge to the findings in respect of particular (b) and (c). The magistrate found that each defendant had failed to ensure that every reasonable precaution was taken to protect the child from harm and from any hazard likely to cause injury as required by s 167 (8/11/22; T4.45).

  4. The magistrate found that the respondent failed to prove beyond a reasonable doubt particular (a), namely that there was a failure to check the lids of the water jugs before each use to ensure they were not faulty (8/11/22; T5.35).

  5. The magistrate found that the other three particulars ((b), (c) and (e)) were proven beyond reasonable doubt.

  6. The magistrate found that the fact that the hot water jug was accessible by the children under supervision established particulars (b) and (c) beyond a reasonable doubt. These particulars were:

(b)   Failure to ensure that the water jugs were placed on an adult height-bench and not on the floor (8/11/22; T5.37);

(c)   Failure to ensure that the preparation required for activities was conducted at an adult­ height bench (8/11/22; T8.15).   

  1. The magistrate found that the actual fact of the hot water jug being on the floor and accessible to children constituted a breach of ss 167(1) and (2) (8/11/22; T 6.4).

  2. The magistrate found that ensuring that the hot water jugs were placed upon an adult-height bench was a reasonable precaution. It is a reasonable precaution that hot water is not accessible by children in a nursery (8/11/22; T6.19). It was a reasonable precaution to keep hot water out of reach of children (8/11/22; T7).

  3. The magistrate found that the appellants    failed to ensure that the hot water was inaccessible to children and failed to provide training for staff regarding the hazard of hot water (particular (e), 8/11/22; T9.25). The magistrate found that Ms Balloot’s oral evidence demonstrated a lack of knowledge of the appropriate policies in how to handle hot water jugs which was contrasted with the evidence of another educator who gave coherent and articulate answers about the hot water policy. The magistrate found that Ms Balloot had been deficiently trained in relation to handling hot water in the presence of children and that Ms Sayed failed to fully understand the policy that hot water was to remain at an adult height bench (8/11/22; T14.12).

  4. The magistrate found that three particulars had been proven in respect of each appellant.

  5. In so doing, the magistrate rejected the appellants’ submissions that they had policies and practices in place to ensure that the hot water jugs were kept out of reach of children. The magistrate rejected the appellants’ submission that because the policies and procedures were plainly adequate then the appellants must have taken every reasonable precaution within the meaning of s 167 of the National Law. The magistrate found that by placing and leaving the hot water jug on the floor within reach of the children on the day in question, the relevant staff failed to ensure that every reasonable precaution was taken to protect the child from harm and from any hazard likely to cause injury. The magistrate found that it was a reasonable precaution that hot water is not accessible by children in the nursery room (8/11/22; T6.13-23).

  6. Citing ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138, the magistrate found that the approved provider and nominated supervisor were guilty by the reason of the failure of its staff and that systems failure did not need to be established in order for the company to be found guilty. The magistrate stated that the “objective fact of non-compliance is enough, and it is not necessary to establish anything more” (8/11/22; T6.25-35).

  7. The magistrate referred to the document entitled “Prosecution Submissions on the Proper Construction of the National Law” and that the appellants did not take issue with the construction of the legislation as set out in the document and, that contained the proposition that the “duty to not to take reasonable steps but to ensure that every reasonable step is taken. A defendant will not avoid liability by establishing that they themselves took all reasonable precautions to them or that some reasonable precautions were taken when one or more reasonable precautions were otherwise available and not taken”. This was used to support the position that a nominated supervisor or an approved provider cannot therefore rely on the existence of policies and procedures to avoid responsibility under s 167 as the offence provision requires every reasonable precaution is taken (8/11/22; T7.16-25).

  8. The magistrate observed that the reasonable precaution of keeping the hot water at a height inaccessible to children was not taken, and that the community would rightly expect that hot water is not accessible to children under the age of two in the nursery room (8/11/22; T7.27-30).

  9. The magistrate summarised her Honour’s conclusions at T14.27-36.

GROUNDS OF APPEAL

  1. There are two grounds of appeal advanced by the appellants.

  2. The first ground contends that the “magistrate incorrectly applied a statutory duty to ensure that “every reasonable precaution is taken” as a duty to ensure a state of safety in its attribution of the acts of employees to employers”.

  3. The second ground contends that “the magistrate incorrectly applied the reasoning in ABC Development Learning Centres case to the legislation in which the offence provision arises in determining the availability of the “reasonable steps” defence”.

Legislative Provisions

  1. The objective of the National Law, as set out in s 3(1) of the National Law, is “to establish a national education and care services quality framework for the delivery of education and care services to children”. The objectives of the national education and care services quality framework include (at s 3(2)(a)) “to ensure the safety, health and wellbeing of children attending education and care services”. The guiding principles of the national education and care services quality framework include (s 3(3)):

(a) that the rights and best interests of the child are paramount;

…

(f) that best practice is expected in the provision of education and care services.

  1. Section 5(1), the definitions section, relevantly contains a definition of a “education and care service” which is defined as:

any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than - …

  1. Part 2 of the National Law deals with “provider approval”. An “approved provider” is a person who holds provider approval. Such a person may be (but is not necessarily) a corporation. Section 10 deals with applications for approval of approved providers; s 12 provides that the applicant must be a fit and proper person.

  2. Part 3 deals with “service approval”; i.e., approval for a particular service, which must have a nominated supervisor. An approved provider may apply to the Regulatory Authority (being the Secretary) for a service approval for an education and care service but only if the approved provider is or will be the operator of the education and care service and is or will be responsible for the management of the staff members and nominated supervisors of that service (see s 43(2)). An application for a service approval must, among other things, nominate one or more individuals to be nominated supervisors for the service (see s 44(1)(d)). A nominated supervisor may be the approved provider (see s 47(1)(e)).

  1. Accordingly, there must be the approved provider (in a position equivalent to the proprietor of the service) and there must be a nominated supervisor for each service.

  2. The definition of a nominated supervisor (s 5(1)) in relation to an education and care service is:

… an individual who -

(a) is nominated by the approved provider of the service under Part 3 to be a nominated supervisor of that service; and

(b) unless the individual is the approved provider, has provided written consent to that nomination

  1. The nominated supervisor must consent to his or her nomination (s 47(1)(e)); and the minimum requirements for such a person are prescribed in the Education and Care Services National Regulations 2011 (NSW) (reg 117C).

  2. Zaksaw Pty Limited was a nominated provider of an education and care service. Ms Stefania Giacchi was a nominated supervisor.

  3. Part 6 of the National Law, headed “Operating an education and care service”, sets out a series of offences, the language of which differs between sections imposing a positive “must ensure” obligation (see ss 162-170, 172) and others which impose a negative “must not” obligation (see ss 161 -161A). Other provisions provide for direction (see s 171) or notification (see ss 173-174A) or keeping records (see s 175). Further, there is a distinction in that some of the offences apply to approved providers of an education and care service and some to approved providers of a family day care service.

  4. So, for example, the approved provider of an education and care service: must not operate the service unless there is at least one nominated supervisor for that service (s 161); must not nominate an individual to be a nominated supervisor of that service unless that individual meets the prescribed minimum requirements for nomination as a nominated supervisor (s 161A); must ensure that one of the three specified persons (which may be a nominated supervisor) is present at all times that the service is educating and caring for children (s 162); and must ensure that each nominated supervisor and each person in day-to-day charge of the service has successfully completed any required child protection training (s 162A). Relevantly, s 162 contemplates that the approved provider of the service is not required to ensure that the nominated supervisor of the service is present at all times that the service is educating and caring for children (as long as the approved provider or a person in day-to-day charge of the service is there).

  5. From s 163, there is a series of offence provisions relating to the operation of family day care services (each using the language “must ensure”).

  6. Section 167 then provides (under the heading “Offence relating to protection of children from harm and hazards”):

(1) The approved provider of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury.

Penalty—

$11 400, in the case of an individual.

$57 400, in any other case.

(2) A nominated supervisor of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury.

Penalty: $11 400.

(3) A family day care educator must ensure that every reasonable precaution is taken to protect a child being educated and cared for as part of a family day care service from harm and from any hazard likely to cause injury.

Penalty: $11 400.

  1. Zaksaw Pty Limited was charged with and convicted of an offence under s 167(1). Ms Stefania Giacchi was charged with and convicted of an offence under s 167(2).

  2. As observed by Ward P in Trad in [59], after her Honour dealt with s 165 which was the focus of the stated case:

“Sections 166-170 contain a number of other offences couched in the terms “must ensure”; s 171 is an offence framed in terms “must comply” with a direction and ss 172-175 all impose obligations in terms of “must notify” or “must keep” the relevant documents or information. It is not until s 269 that there is an obligation on the approved provider to take reasonable steps to do something (to ensure that the information contained in the family day care register is accurate in respect of various persons engaged, employed and/or registered by or with the service).”

Relevant Authorities

  1. ABC Developmental Learning Centres Pry Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138 (“Wallace”), related to ss 26 and 27 of the Childrens Services Act 1996 (Vic) (“the Victorian Act”). Section 26 is the same as s 167(2) of the National Law. The only differences are the use of the term “proprietor” as opposed to “approved provider” and, “staff member” rather than “nominated supervisor”.

26. Protection of children from hazards

(1)   The proprietor of a children’s service must ensure that every reasonable precaution is taken to protect children being cared for or educated by the service from any hazard likely to cause injury.

Penalty: 50 penalty units.

(2)   A staff member of a children’s service must ensure that every reasonable precaution is taken to protect a child in the care of that staff member from any hazard likely to cause injury.

Penalty: 50 penalty units.

  1. At first instance, it was held that offences contrary to ss 26(1) and 27(1) of the Victorian Act were committed by the objective failure of the person to meet the specified standard, whether the failure was deliberate or inadvertent, the primary judge rejecting a submission on behalf of ABC Developmental Learning that if the non-compliance was due only to the actions of the company’s staff, the company was not liable. On appeal, the Court (Maxwell P, Chernov and Neave JJ) held that the liability for breach was absolute and that there was no “due diligence offence” nor was it a defence to show that the breach was “due to the act or default of another person”: Trad at [67].

  2. The facts in Wallace were as follows:

  1. In 2003, a child aged nearly three years old got out of a childcare centre into the surrounding streets while the staff were not looking. He was returned unharmed by a neighbour shortly afterwards.

  2. Section 26 of the Victorian Act required the proprietor of the centre, ABC Developmental Learning Centres Pty Ltd, and its staff, to ensure that every reasonable precaution was taken to protect the child from any hazard likely to cause injury. Section 27 required the company and its staff to ensure that he was adequately supervised.

  3. The Department of Human Services, through its officer Joanne Wallace, prosecuted ABC in the Magistrates’ Court for breaching ss 26 and 27. It could have prosecuted the staff as well, but it did not.

  4. An acting magistrate found the child got out because ABC’s staff failed to observe, and prevent, him from scaling a playground fence with a 90cm square foam cube that he pushed 12 metres for this purpose. His Honour held ABC was ultimately responsible for the failures of its staff, whether or not they too were responsible. He fined the company $200.00 without conviction on the inadequate supervision charge. He dismissed the other charge without penalty.

  5. ABC raised in the appeal a question of law: should the failures of ABC’s staff have been attributed to the company? Not in these circumstances, it contended, because there was no allegation of systemic or similar failure against the company. Therefore, the staff, if anybody, were entirely to blame.

  1. The respondent relied on this case and submitted that the principles discussed in both the first instance appeal judgement and the judgement in the Victorian Court of Appeal are of relevance in determining the scope of s 167 of the National Law.

  2. In Department of Education v Trad [2023] NSWCCA 329, the Court considered a question of law on a stated case. This decision was delivered after these proceedings were decided in the Local Court. The issue for determination was whether an offence in s 165 of the National Law is an offence of absolute liability (rather than, as had been contended in submissions in the District Court appeal, a strict liability offence to which a defence of honest and reasonable mistake of fact would lie).

  3. The facts as recorded in the stated case were that:

  1. Kidstart Family Day Care Pty Limited was the approved provider of an approved family day care service (the Service) within the meaning of s 5 of the National Law; and the respondent was the nominated supervisor for the Service within the meaning of that section.

  2. On 4 March 2019, Ms Helen Rateau, a registered family day care educator for the Service, providing education and care for children in her home, was responsible for the care of a baby. Ms Rateau placed the baby wearing a bib, with a loose sheet and a pillow, in a bassinet and left him in the bassinet unsupervised for approximately 35-45 minutes. So doing (i.e., placing the baby in the bed with a bib and a loose sheet and pillow and leaving him for over 35 minutes) was contrary to all safe sleep practices and Ms Rateau (who was a qualified and experienced day care educator who had previously worked at other premises) knew this. The baby died while in Ms Rateau’s care.

  3. The respondent (Ms Trad), the nominated supervisor for the Service, had made sure that Ms Rateau was qualified and had appropriate training and documentation; and the respondent knew that Ms Rateau had the knowledge that her conduct was contrary to safe sleep practices. The respondent, by reason of having taken the steps, and by making periodic inspections of the Service, took every reasonable precaution that the respondent was personally able to take to protect children being educated and cared for by the Service from harm and from any hazard likely to cause injury.

  4. The respondent had no knowledge of the circumstances that existed and the events that unfolded while the baby was in Ms Rateau’s care on 4 March 2019.

  5. The respondent was not present (and, pursuant to s 162(2) of the National Law, was not required to be present) at the Service on 4 March 2019.

  6. There was no allegation that any action or inaction by Ms Rateau was causally related to the death of the child.

  1. The respondent was charged with two offences contrary to the National Law and one offence contrary to the Education and Care Services National Regulations 2011 (NSW). The respondent was found guilty of the three offences with which she was charged. The respondent was sentenced on by way of financial penalty for each offence with orders in favour of the applicant being made for moiety pursuant to s 122 of the Fines Act 1996 (NSW) and for professional costs in the sum of $20,000 pursuant to s 215 of the Criminal Procedure Act 1986 (NSW).

  2. Relevantly, one of the two offences charged under the National Law was a breach of s 165(2) of the National Law which provided that a nominated supervisor of an education and care service “must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service”. The description of that offence in the CAN was as follows:

The defendant was a nominated supervisor of an education and care service and failed to ensure that all children being educated and cared for by the service were adequately supervised at all times that the children were in the care of that service.

  1. The short particulars of that offence set out in the CAN were:

A baby was placed in bassinet instead of cot, with bib around his neck, with loose sheet and pillow, and was not observed for 35-45 minutes.

  1. On appeal to the District Court, the District Court judge applied s 165 and held that Ms Trad had taken every reasonable precaution that she was personally able to do to protect the children being educated and cared for by the Service, therefore the offence was not proven.

  2. Counsel for the prosecutor appearing in the District Court did not expressly rely upon the offence being an “absolute liability” offence. Rather, in written submissions, the prosecutor stated that “ensure” means guarantee or make certain (which the Secretary contended on appeal reflected it being an absolute liability offence) and, in oral submissions, the prosecutor contended that the liability was “strict liability” and that the statutory provision allowed a defence of honest and reasonable mistake of the kind considered in Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28. As recorded in the stated case, the Secretary indicated that she had reconsidered her position and submitted that the offence in s 165 of the National Law was an offence of absolute liability.

  3. Ward P (with whom Dhanji and Sweeney JJ agreed) held that the offence under s 165 was an absolute liability offence. Ward P held that the legislative intent was clear enough to overturn the presumption of mens rea.

First appeal ground: Magistrate incorrectly applied statutory duty to ensure that “every reasonable precaution is taken” as a duty to ensure a state of safety in its attribution of the acts of employees to employers

Appellant’s Submissions

  1. The appellants conceded in this court that the two employees of Zaksaw did not ensure that every reasonable precaution was taken to protect the child from harm and from any hazard likely to cause injury (26/2/24; T3.21). However, the appellants submitted that the correct interpretation to s 167 was for this court to ask “did the approved provider and the nominated supervisor respectively, did they ensure that every reasonable precaution was taken and the contention and the reason we’re here is because - their position is that they did take every reasonable precaution and therefore liability doesn’t sheet home under 167(1) or (2)” (26/2/24; T3.33).

  2. The appellant’s contended that there were two parts to their appeals. First, there was the statutory construction point, and the second point was the training and policy point. The first point related to particulars (b) and (c). The second point related to particular (e) (27/2/24; T1.30-34). The appellants’ position was that the majority of the appeal was about the statutory construction point (27/2/24; T7.39).

  3. The appellants accepted that their appeals must fail if the court accepted the respondent’s interpretation of s 167 (26/2/24; T4.6-10). However, this court would need to analyse the evidence in respect of the third particular, namely (e) (26/2/24; T6.40).

  4. The appellants pointed to the “distinction … between an offence provision that has as part of it a reasonable steps provision” and pointed to the analogous position between s 269(2) and s 167 (27/2/24; T1.43-50). They highlighted the caution expressed by the courts in undertaking the task of determining whether an offence is one of absolute liability (27/2/24; T2.15). The appellants urged a construction of the offence that “the offence provision itself a precaution that is being taken to ensure that effective precaution is taken against construing absolute liability on the approved provider” (27/2/24; T2.25). The appellants submitted that s 167 cannot be construed as an offence of absolute liability (27/2/24; T2.45). The respondent pointed to the differences in Wallace and submitted that it was not binding (27/2/24; T3.3-33).

  5. The appellants submitted that Trad was concerned with an offence under s 165 and it does not contain an “every reasonable precaution” provision. The appellants submitted that these words in s 167 “have work to do” (27/2/24; T4.39). The appellants submitted at (27/2/24; T5.7-12):

“If I ask your Honour to accept that every reasonable precaution is a positive obligation on behalf of the approved provider because if your Honour determines that then it is construed in a different way to Trad where the provider doesn’t have to be present, the provider doesn’t have to have knowledge, any reasonable precautions that the provider would not provide a defence under s 165.”

  1. The appellants submitted that their construction was a literal interpretation of s 167 (27/2/24; T6.23-25).

  2. The appellants submitted that this Court would not accept that an obligation to take reasonable steps to ensure an outcome is different to ensuring that all reasonable steps are taken (27/2/24; T16.13-18). The appellants submitted that “the literal interpretation that an approved provider of an education and care service must ensure that every reasonable precaution is taken … favours [their] interpretation” (27/2/24; T16.20).

Respondent’s submissions

  1. The respondent submitted that “the focus is not on any question of attributing failures by the employees or educators to the approved provider and nominated supervisor rather … once that failure happens liability follows” (26/2/24; T6.28-31).

  2. The respondent submitted that the words “must ensure” are critical and that those words create the situation of absolute liability as was construed in Trad (27/2/24; T8.4-11). The respondent submitted that the words “must ensure” being used in 167 means the questions of attribution that are raised in the by this ground of appeal simply do not arise (27/2/24; T8.20).

  3. The respondent also relied on Trad and highlighted that “must ensure” in Trad has been interpreted; see in particular [106] (27/2/24; T10.18-29; T15.20-20). The respondent submitted that the words “must take reasonable steps” are not read into s 167 (27/2/24; T10.47). The respondent submitted that an obligation to take reasonable steps to ensure, is different to ensuring that all reasonable steps are taken (27/2/24; T11.24-26). The respondent submitted that the enquiry is to view the step particularised by the prosecutor as not being taken and consider whether that step particularised was a reasonable one to have been taken (27/2/24; T11.42).

  4. The respondent submitted that “because 165 and 167 aren’t different in any material way and I can take your Honour to that the finding in Trad must urge your Honour to find 167 is an absolute liability offence” (27/2/24; T12.34-36). The respondent submitted that a literal reading of s 167 (27/2/24; T13.45) means that the words “must ensure” requires a state of affairs that “every reasonable precaution” is taken to protect children being educated and cared for by the service from harm (27/2/24; T14.1-20).

  5. The respondent submitted that the first two particulars are conceded. However particular (e) involved a factual finding about the level of training that was provided to staff and this court would make the same finding as the magistrate (26/2/24; T6.38-47).

  6. The respondent submitted that this ground should be dismissed for the reasons that the magistrate rejected this argument. The magistrate rejected the appellants’ contention that in the circumstances of this case the fact that the appellants had in place policies that addressed the risk that was the subject of the charges was sufficient to have discharged their obligation to take “every reasonable precaution” to prevent harm coming to children in the care of the appellant. The respondent submitted that the magistrate specifically rejected this argument at (8/11/22 T6.6-T7.14) when her Honour held:

“Defence counsel accepts in written closing submissions that there were two mistakes that gave rise to the incident. The first being that any checking of the water jug prior to use was ineffective and second, and more importantly, that the jug of hot water should not have been taken to the children’s table at all and should have instead been kept on the adult kitchen bench within the classroom out of children’s reach.

The defendants argue that they had policies and practices in place to ensure that hot water jugs were kept out of reach of children and that jugs would be checked thoroughly before use. They argue that because the policies and procedures were plainly adequate to protect against harms or hazards, the defendants must be seen to have taken every reasonable precaution within the meaning of s 167 of the National Law. I cannot accept this submission. I find that by placing and leaving the hot water jug on the floor within reach of the children on the day in question, the two staff members failed to ensure every reasonable precaution was taken to protect the child from harm, any harm or hazard likely to cause injury. It is a reasonable precaution that hot water is not accessible by children in the nursery room.

The defendant company is found guilty by reason of the failures of its staff. The approved provider being a company can only act through those who work for it. An approved provider that is a company can only protect children from hazards and supervise them through employees, contract staff and similar persons. In terms of the offence provisions and the policy of legislation are such that the actions of such persons done within the scope of their work can be attributed to the company. Systems failure does not need to be established in order for the company to be found guilty. The objective fact of non-compliance is enough, and it is not necessary to establish anything more because the approved provider is a company.

These principles are clearly enunciated in the decision of ABC Developmental Learning Centres Pry Ltd v Wallace (2007) 16 VR 409; [2007] VSCA, where the Supreme Court of Victoria considered the provisions of ss 26 and 27 of the Children’s Services Act 1996, which was a precursor to the National Law. Section 26 of that Act reads in almost identical terms to s 167. In that case, it was held that the proprietor of the childcare service being accompanied could be found guilty of the offences by reason of the failures of its staff alone. It is agreed between the parties that the legislation imposes duties on a nominated supervisor and approved provider in equal terms.

At the commencement of the proceedings, the Department handed up a document entitled “Prosecution Submissions on the Proper Construction of Section 167 of the National Law”. Defence Counsel did not take issue with the construction of the legislation as set out in that document. That document sets out quite a number of propositions including the following:

‘Whilst nominated supervisors and approved providers have different roles in the management of education services, s 167 imposes upon them duties in relation to the safety of children in equal terms. Liability is not dependent upon proof of fault, lack of due diligence or negligence on the part of providers or supervisors. Similarly, proof of an offence does not necessarily lie with the specific actions or inactions of a particular defendant in relation to a particular incident. The duty is not to take reasonable steps but to ensure that every reasonable step is taken. A defendant will not avoid liability by establishing that they themselves took all reasonable precautions available to them or that some reasonable precautions were taken where one or more reasonable precautions were otherwise available and not taken.’

A nominated supervisor or an approved provider cannot therefore rely on the existence of policies and practices to avoid responsibility under s 167. The offence provision requires every reasonable precaution is taken. As I have already said, the prosecution does not rely on any systemic failures in respect to this particular failing. In circumstances where defence counsel accepts that taking the hot water jug to the children’s table where it is accessible to children on the floor was a mistake by made by the staff, the failures of the two staff members can be attributed to the defendant company and to the nominated supervisor. The legislative framework allows for this. The offence provision does not require intent.”

  1. The respondent submitted that the magistrate correctly applied the law. The respondent submitted that the magistrate correctly applied Wallace and that the findings in Wallace are relevant to the interpretation of s 167 of the National Law. The respondent submitted that the National Law was modelled on the Victorian legislation and became a part of the law in New South Wales through the enactment of the Children (Education and Care Services National Law Application) Act 2010. In particular, one of the objectives of enacting the National Law was to operationalise a “jointly governed, unified National Quality Framework for early childhood education and care” in NSW: see Second Reading Speech, Legislative Council, 23 November 2010 (Michael Veitch, Parliamentary Secretary, on behalf of Eric Roozendaal). The respondent relied on Farah Constructions Pty Ltd v SayDee PtJ Ltd (2007) 230 CLR 89 where the Court said at [135]:

“Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of. .. uniform national legislation unless they are convinced that the interpretation is plainly wrong...”

  1. The respondent submitted that whilst the Victorian Act was enforced at an earlier time and is more properly regarded as cognate legislation, the intention of the introduction of the National Law was clearly to introduce a “unified” framework. As such, the respondent submitted that the High Court’s guidance in Farah Constructions should be adopted in these circumstances, and that an intermediate Court of Appeal’s interpretation of the same provisions should be applied consistently.

  2. The respondent submitted that there is no reason to doubt the correctness of the approach in Wallace and this Court is bound by the authority in Wallace.

  3. The respondent submitted that despite Wallace’s focus on s 27 (which is substantially similar to s 165 of the National Law) rather than s 26 (being the analogous provision to s 167 of the National Law, and the offence creating provision in this case), the respondent submitted that the reasoning in Wallace is applicable to s 167 of the National Law as the determinative constructional reasoning in Wallace focused on the word “ensure” in s 27, which is present in s 26, and also present in s 167 of the National Law.

  4. The respondent submitted that it is the Parliamentary choice of the word “ensure” that attracted the dispositive reasoning that it is the state of affairs that must be “made certain” that led the Victorian Court of Appeal to determine that it was immaterial where in the organisation the failure occurred to result in the state of affairs not being “ensured”. Accordingly, the Victorian Court held that no question of “attribution” arises in the context of offences such as the present.

  5. The respondent submitted that insofar the appellants’ ground of appeal concerns concepts of “attribution”, the ground proceeds on an erroneous basis. There is simply no scope for that concept to arise in this case, and it was not an error for the magistrate to refuse to accept the appellants’ submissions insofar as they invoked principles of attribution. The respondent submitted that this Court would also not engage in reasoning that involves “attribution”.

  6. The respondent submitted that particular (e) was proven and the magistrate did not err in her approach to finding that there was a failure to provide training for staff regarding the hazard.

Determination

  1. The principles relevant to the question of statutory construction of s 165 in Trad are also relevant to the question of statutory construction of s 167 in this appeal. The principles which I have had regard to in construing s 167 are:

  1. To determine the legislative purpose, the following matters should be considered: the words of the statute creating the offence; the subject matter with which the statute deals, including the nature of the conduct being regulated, its impact on the community, and its seriousness; and whether treating the offence as one of absolute liability would assist in the enforcement of the legislative scheme (see He Kaw Teh at 529-530 per Gibbs CJ; applied in R v Clarke (2008) 100 SASR 363; [2008] SASC 100 at [17] per Doyle CJ, Bleby and David JJ). Of course, these indicators do not always point in the same direction (He Kaw Teh at 530 per Gibbs CJ) (see Trad at [93]).

  2. Where a statute engages words such as “knowingly” or “wilfully”, mens rea must be established as an element of the offence. However, the absence of such words does not establish the contrary (He Kaw Teh at 594 per Dawson J) (see Trad at [94]).

  3. Where an offence is serious, the general presumption of mens rea is more likely to apply, as it would be unlikely for Parliament to intend that a person with no intention or knowledge of wrongdoing be subject to such serious consequences (He Kaw Teh at 530, 535-536 per Gibbs CJ; see also at 555 per Wilson J). Conversely, if the subject matter of the legislation is offences which regulate social or industrial conditions or protect revenue and which impose a comparatively small monetary penalty, it is more likely that the offence be one of absolute (or strict) liability (He Kaw Teh at 595 (Dawson J) and see, for example, Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324 at [70] per Basten JA; Proudman v Dayman at 540 per Dixon J) (see Trad at [95]).

  4. Generally, offences which are criminal in nature are less likely to be found to be absolute liability offences in the absence of evidence of clear parliamentary intention (see Trad at [96]).

  5. A finding of absolute liability is unlikely where the court believes the public has no interest in punishing people for an honest or reasonable mistake (Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 at 750 (Gleeson CJ)), or where an imposition of absolute liability would not further the purpose of the legislative scheme (Greyhound Racing Victoria Stewards v Anderton [2018] VSC 64 at [86] (Zammit J)) (see Trad at [98]).

  6. In criminal cases, Dawson J suggested that an offence may be one of absolute liability if it would be difficult to source proof of intent and would represent a real impediment of the successful prosecution of offenders (He Kaw Teh at 595) (see Trad at [99]).

  7. There is a recognised hesitance on the part of courts to find that statute imposes absolute liability on offences if the legislature does not make its intention clear, especially if the offence is serious (see Trad at [101]).

  1. Turning now to s 167(1) and (2) of the National Law, the words “must ensure” are important in determining whether the offences are ones of absolute liability. The respondent’s position is that the approved provider (and/or nominated supervisor) is automatically liable whether or not the approved provider (and/or nominated supervisor) has any personal liability for the act or omission in question. The approved provider (and/or nominated supervisor) must guarantee that there will “every reasonable precaution…to protect children being educated and cared for by service” and, once that state of affairs is established not to have transpired, then the approved provider (or nominated supervisor) is liable. The respondent’s position is supported by Ward P’s construction of s 165 in Trad, where her Honour held at [102]-[103]:

“102 Turning now to s 165(2) of the National Law, the words “must ensure” give rise to no little difficulty here. In essence, as already explained, the Secretary’s position is that, if it is established that there was a lack of adequate supervision, then the nominated supervisor is automatically liable whether or not the nominated supervisor has any personal responsibility for the act or omission in question. In other words, the nominated supervisor is required to guarantee that there will be adequate supervision and, once that state of affairs is established not to have transpired, then the nominated supervisor is liable (whether or not the nominated supervisor could have done anything as a practical matter to ensure adequate supervision at the relevant time).

103 On a literal reading of s 165(2), the Secretary’s position must be accepted. To “ensure” something is to “make certain” of (or guarantee) that outcome. Read as a whole, the impugned provision focuses on the outcome of affairs; it does not indicate scope for fault in supervision on the part of the nominated supervisor himself or herself, as such. What makes s 165(2) difficult is that it does not identify any offending conduct on the part of the nominated supervisor; there is nothing to which mens rea can sensibly attach. Rather, it deems that a nominated supervisor is liable where the state of affairs (being inadequate supervision of children) is established. As a result, s 165(2) in its terms appears to attach liability to a finding of fact, not dependent on the knowledge or intention of the nominated supervisor.”

  1. On a literal reading of s 167, the respondent’s position must be accepted. That is that s 167 deems an approved provider and a nominated supervisor liable where the state of affairs (being failure to take every reasonable precaution) is established. I find that the choice of the words “must ensure” in s 167 is important and can be contrasted with other provisions in the National Law such as ss 103, 104, 161A, 166, 171-175 and 269. The language of “must ensure” requires the approved provider and nominated supervisor to “make certain” (or guarantee) that outcome. Section 167(1) and (2) deems that an approved provider (or nominated supervisor) is liable where the state of affairs (being unreasonable precaution is taken to protect children being educated and cared for by the service) is established. As a result, s 167(1) and (2) in its respective terms appears to attach liability to a finding of fact, not dependent on the knowledge or intention of the approved provider (or nominated supervisor).

  2. President Ward’s statements in Trad at [104]-[105] are applicable to the construction of s 167 in these appeals. President Ward said:

“104 As to the reference to “adequate” within s 165(2), I disagree with the respondent’s contention that this imports a consideration of the nominated supervisor’s knowledge of the risk in question. Further, it cannot be understood as importing any standard of negligence on the part of the nominated supervisor. The words “adequate supervision” qualify the required state of affairs that needs to be ensured – where there is “inadequate supervision” the nominated supervisor is made liable.

105 In this regard, it is significant that other provisions within the National Law (such as ss 104(1) and 269(2)) provide for offences referable to the person’s knowledge or “reasonable steps” the person can take to prevent the offence. There is no such language in s 165(2) of the National Law. It therefore does not appear to be the legislature’s intention to read “must ensure” as inclusive of “reasonable steps to ensure”. Nor can it be assumed that the absence of those words was a mere drafting error, given their inclusion in other provisions. There is no impossibility in giving the literal meaning to the text (aside from the perceived undesirability of its outcome); nor would giving s 165(2) its literal meaning be absurd or irrational or irreconcilable to the purpose of the National Law (see Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182 at [53]-[57] per Leeming JA, with whom Stern JA and Simpson AJA agreed).”

  1. As to the reference to the words “reasonable precaution”, this does not import a consideration of the approved provider’s (or nominated supervisor’s) knowledge of the risk in question: Trad at [104]. Section 167 “cannot be understood as importing any standard of negligence” on the part the approved provider (or nominated supervisor). The words “every reasonable precaution” qualify the required state of affairs that needs to be ensured – where there is “unreasonable precaution” the approved provider (or nominated supervisor) is made liable.

  2. As stated in Trad by Ward P at [106], the words “must ensure” do not carry with them the connotation of “must take reasonable steps to ensure”:

“106 In my opinion, the words “must ensure” do not carry with them the connotation of “must take reasonable steps to ensure”, such that a standard of fault was imposed upon the nominated supervisor by s 165(2). Such an interpretation would fall foul of principles of statutory interpretation as laid out by the High Court in Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38] (French CJ, Crennan and Bell JJ), approving Lord Diplock’s test in Jones v Wrotham Park Settled Estates [1980] AC 74 at 105-106.”

  1. President Ward interpretation of s 165 in [106] applies to the statutory interpretation of s 167(1) and (2). The words “must ensure” do not carry with them the connotation of “must take reasonable steps to ensure”, such that a standard of fault was imposed upon the approved provider by s 167(1) and the nominated supervisor by s 167(2).

  2. Based on the words of the provision alone, s 167(1) and (2) appear to be absolute liability offences. Therefore, I construe s 167(1) and (2) as offences which involve absolute liability. The actus reus of the offence is in essence the occurrence of a state of affairs (i.e., where there may be no act or omission on the part of the person made liable for the state of affairs in question; simply the conclusion that because the state of affairs has arisen there has been a failure to ensure or guarantee that this not occur) (see Trad at [92]).

  3. Turning to the second indicator identified by Gibbs CJ in He Kaw Teh, the subject matter and purpose of the statute here seem to point in the same direction. There is undoubtedly a “social concern” in ensuring the safety of children; that being an objective of the National Law’s objectives (see s 3), and one of high degree (cf Hawthorne (Department of Health) v MorcamPty Ltd (1992) 29 NSWLR 120 at 129 per Mahoney JA). This supports my conclusion that the legislature intended the offence to be one of absolute liability (applying Trad at [108]). It is obvious that there is a social concern and need to protect children who are less than five.

  4. I have taken into account the difficulty that, in a given situation, the approved provider (or nominated supervisor) may have no practical ability to ensure the requisite state of affairs (say, if they are not present at the premises at the time of the incident), notwithstanding that the approved provider (or nominated supervisor) may have taken all reasonable precautions to satisfy himself or herself of the training and qualifications of a family day care educator. This seems to me to be a matter pointing against there being an intention to impose criminal liability of an absolute kind on the approved provider and nominated supervisor (applying Trad at [112]).

  5. Turning to the third indicator identified by Gibbs CJ in He Kaw Teh, in respect of whether the finding of absolute liability would assist in the enforcement of the legislative scheme, Ward P in Trad found that “it seems to me that the imposition of a heavy burden on a nominated supervisor (by way of absolute liability) must increase the likelihood of compliance with the objectives of the National Law; and hence this third indicator also points towards absolute liability”: at [117]. This finding made by Ward P applies to the circumstances of this case to impose a heavy burden on both the approved provider and the nominated supervisor. I find that this heavy burden must increase the likelihood of compliance with the legislative scheme. The imposition of absolute liability in the present case would on one view promote conscious activity to assist in the observance of the obligation to ensure every reasonable precaution is taken to protect children being educated and cared for.

  6. I also have regard to Ward P’s observation in Trad that “the nominated supervisor is to operate independently of the approved provider. Nominated supervisors, although nominated by the approved provider, are only given this role if they have provided written consent to taking on such a role (see s 44(1)(da) of the National Law). This points to the legislature’s intent to ensure that those persons be aware of the obligations and onus placed on them when accepting such a position, including the potential offences of which they are or may be at risk”: Trad at [115]. Further, Ward P said at [119], “it is clear that such a person who accepts this role (by reference to the written consent the person must provide before the approved provider can appoint the nominated supervisor) must be aware of the gravity and seriousness of the task the person agrees to undertake”.

  1. Ward P concluded in Trad:

“120 Balancing the above is no simple task. On the one hand, the text of s 165 (compared with other sections in the legislation) points clearly to this being an offence of absolute liability. On the other hand, the unfairness of imposition of criminal liability on a person who is found to have taken all reasonable steps to ensure that the properly qualified person supervising children at a day care would provide “adequate supervision” points to the caution that must be exercised before construing a statutory offence as one of strict liability. That last concern would support a conclusion that the offence should properly be construed as one of strict liability (to which a Proudman v Dayman defence would lie in an appropriate case), as was the basis on which the Secretary argued the matter before McHugh SC DCJ.

121   Ultimately, having regard to the text of the legislation, I consider it difficult to conclude otherwise than that the legislature has made it clear that the nominated supervisor is to be held liable for any transgression from circumstances which satisfy “adequate supervision” irrespective of his or her mens rea.”

  1. Paragraphs [120] and [121] in Trad in respect of s 165 apply to s 167. Therefore, I consider that the legislature has made it clear that the approved provider and the nominated supervisor are to be held liable for any transgression from circumstances which do not satisfy “every reasonable precaution”.

  2. I accept the respondent’s interpretation that the state of affairs that must be ensured is every reasonable precautions. The precaution particularised by the prosecutor in the court attendance notice must be reasonable (27/2/24; T9.32-41).

  3. I therefore construe s 167 as an absolute liability offence. The liability under s 167(1) and (2) is that “the actus reus of the offence is in essence the occurrence of a state of affairs (i.e., where there may be no act or omission on the part of the person made liable for the state of affairs in question; simply the conclusion that because the state of affairs has arisen there has been a failure to ensure or guarantee that this not occur)”: Trad at [92].

  4. Therefore, for the above reasons, I conclude that the magistrate did not incorrectly apply a statutory duty to ensure that “every reasonable precaution is taken” as a duty to ensure a state of safety in its attribution of the acts of employees to employers.

  5. The first ground of appeal is not made out and is dismissed.

Second ground:   The magistrate incorrectly applied the reasoning in ABC Development Learning Centres case to the legislation in which the offence provision arises in determining the availability of the “reasonable steps” defence.

Appellant’s submissions

  1. The appellants did not specifically address me on the two grounds of appeal as set out in their notices of appeal but rather dealt with the “statutory construction point” and then the “policy and training point” (27/2/24; T30). Further, the appellants did not file submissions addressing their specific grounds of appeal. I have considered the submission of whether s 167 permits the availability of the “reasonable steps” defence.

  2. The appellants submitted in respect of particular (e), that the failure to ensure that it was inaccessible to children is something that can be proven only by reference to the educator’s actions, whereas of course, “the failure to provide training for staff regarding the hazard” is a systems issue over which the registered provider has some obligation (27/2/24; T18.23-27). The relevant policy is Exhibit 22 (AB 330). The appellants submitted that the clear, unequivocal policy document that says that the educator is to use boiling water in a jug and pour either in kitchen or on the adult bench, not on the children’s table. Further, there was an induction program. There was also evidence from of Dr Brenda Abbey that it was a sufficient policy to protect children. The appellants submitted that I would not find beyond reasonable doubt that either a registered provider or the nominated supervisor failed to provide training for staff regarding the hazard of hot water (27/2/24; T21.20).

Respondent’s submissions

  1. The respondent submitted in its written submissions when dealing with this ground of appeal that “there is no statutory defence of “reasonable steps”, nor any reference to “reasonable steps” within s 167 or its predecessor, s 26 of the Victorian Act”: see RWS [55].

  2. The respondent submitted that the concept of “reasonable steps” was referred to in the first instance appeal judgment at [19] and that paragraph was adopted in the decision of Wallace at [18] as a correct statement of the applicable principles. However, the reference to the “defence of taking reasonable steps” was not a reference to any aspect of the offences in ss 26 or 27 of the Victorian Act, but rather was introduced as a strand of the reasoning in drawing a distinction between ss 26 and 27 and other provisions in the Victorian Act which did have such a defence. That was one aspect of the reasoning that led the Court of Appeal to determine that, ultimately, questions of attribution do not arise in consideration of charges brought under ss 26 and 27 (see RWS [56]).

  3. The respondent submitted that Wallace is not authority for the proposition that offences under ss 26 and 27 (and therefore ss 167 and 165 of the National Law) can be met by establishing a “defence of taking reasonable steps”. The respondent submitted that s 167 provides that the duty is to ensure every reasonable precaution is taken to protect children in the care of the service from harm, and thus the concept of reasonableness forms a part of the offence-creating provision (see RWS [57]).

  4. The respondent submitted that the correct approach to analysing the appellants’ contention that the steps taken in this case were sufficient for the appellants to have discharged its obligations, and thereby avoid criminal liability, is as follows:

  1. First, identify what precaution was not taken;

  2. Secondly, identify whether that precaution was a reasonable one to take;

  3. Thirdly, and finally, identify whether that precaution not taken failed to protect a child in the care of the service from harm or hazard likely to cause injury (see RWS [59]).

  1. The respondent submitted that the provision is concerned with “ensuring” a particular state of affairs and invites focus on assessing the reasonableness of failing take a precaution, rather than focusing on the reasonableness of taking the precaution (see RWS [63]).

  2. The respondent further submitted that particular (b) is concerned with a failure to “ensure that the water jugs were placed on an adult-height bench and not on the floor”. The proper analysis of this particular is to consider whether the particularised precaution (water jugs being placed on an adult-height bench and not the floor) was a reasonable one to take. This invites consideration of the nature of the taking of the precaution, including the cost and effort of taking that precaution, and also the nature of the risk being guarded against (here the risk that hot water inside the jug presented) (see RWS [65]).

  3. The respondent referred to the appellants drawing attention to the training and policies that were in place at the time and contended that “there is ample evidence, therefore, that the defendants had instructed their staff members to keep the hot water jugs away from children, and particularly by keeping them up at the adult bench. It was not in the absence of such instruction, but in violation of it, that Ms Balloot removed a hot water jug from the bench and placed it near children on 14 October 2019” (see RWS [66]).

  4. The respondent submitted that the appellant’s focus was on what was done in violation of’ a policy that had been in place (see [67] of respondent’s written submissions). The respondent submitted that this is an incorrect focus, and the correct approach is to consider whether the taking of the precaution itself was reasonable, that is taking the precaution of keeping hot water jugs at an adult bench was not reasonable.

  5. Rather, the appellants focussed on the fact that, the failing to take a precaution occurred in contravention of a policy, which draws attention to explaining how the failure to take that precaution came into existence. The respondent submitted that the question of reasonableness does not attach to the “ensuring” aspect of the obligation. It only attaches to the precautions particularised (see [69] of respondent’s written submissions).

  6. The respondent submitted that the magistrate’s assessment of the “reasonableness” of the precaution focussed on, at least in part, the nature of the risk as follows (emphasis added) (see [70] of RWS):

“The reasonable precaution of keeping the hot water at a height inaccessible to children was not taken. The community would rightly expect that hot water is not accessible to children under the age of two in the nursery room of a childcare centre. Here, the trainee educator, Miss Belut, took the hot water jug to the children’s table and left it at her leg on the floor so that she could use it on and off when mixing the ingredients together. The supervisor, Ms Saeed checked the lid was locked, but left the hot water jug on the floor. Upon seeing the hot water jug on the floor next to the trainee, she did not move it up to the adult height bench and correct the error made by the trainee.”

  1. The respondent submitted that the magistrate’s decision is correct, noting that the magistrate’s findings of fact are unchallenged.

  2. The respondent submitted that the question of “reasonableness”, when approached as a part of the assessment of the nature of the precaution, rather than as a free-standing defence, or as a part of the analysis of the reasonableness of the failure to ensure, would result in a finding that the ground three of the appellant’s notice of appeal should be rejected, upon whichever interpretation is put to that ground.

Determination

  1. I accept the respondent’s submission that it is important that the proper analysis of s 167 is not whether there had been an unreasonable failure to take precautions, but rather whether there was a failure to ensure, that is to make sure, that all reasonable precautions were in fact taken to prevent harm or hazard.

  2. The focus of the determination is not on the reasonableness (or otherwise) of the failing. Rather, as the respondent submitted, the focus is on whether the identified precaution is reasonable to take. If the precaution is reasonable for the approved provider and/or nominated supervisor to take, then the obligation imposed by s 167 is that that precaution must be taken, otherwise criminal liability attaches to the failure to meet that statutory obligation.

  3. I accept the respondent’s argument that it is erroneous to focus on the steps that were taken, which is the premise of the appellants’ submission, as this directs attention to the reasonableness of not taking a precaution, rather than the reasonableness of the precaution itself.

  4. I am satisfied that the proper analysis of s 167 is not whether there had been an unreasonable failure to take precautions but rather whether there was a failure to ensure all reasonable precautions were in fact taken to prevent any hazard likely to cause injury. The magistrate’s interpretation and application of the provision is correct, and it is consistent with the approach taken in Trad.

  5. Applying Trad, the relevant offences under s 167 attract absolute liability. Such offences do not have available to them a “reasonable steps” defence. The magistrate did not err is her Honour’s application of s 167.

  6. In respect of the policy and training point regarding particular (e), the first aspect relates to the failure to ensure that hot water was inaccessible to children, and the second aspect relates to failing to provide training for staff in relation to the hazard of hot water. I accept the respondent’s submission at RWS [74]-[76] that “in the circumstances of this case, and given how the evidence developed, this particular focussed on whether Ms Balloot, who was ultimately the educator responsible for the incident (to use a neutral term) of leaving the hot water jug such that it was accessible by the relevant child causing the incident, was properly trained to be aware of the appropriate handling of the hot water jug. In short, her Honour found that Ms Balloot’s oral evidence demonstrated a lack of knowledge of the appropriate policies in how to handle hot water jugs. Her Honour also contrasted Ms Balloot’s evidence with the evidence of another educator who gave coherent and articulate answers about the hot water policy, to find that Ms Balloot had been deficiently trained in relation to handling hot water in the presence of children. Her Honour ultimately found:

“Ms Belut [sic] and Ms Saeed [sic] failed to fully understand the policy that the hot water was to remain [at] an adult height bench. I do not believe this is attributable to a lapse in memory in evidence given the passage of time, noting that their actions on 14 October 2019 were not consistent with the risk assessment.

As I have already said, the evidence establishes that there was an induction process in place and regular staff meetings were held. However, the lack of understanding from some of the witnesses that the hot water was to remain at adult height bench leads to an inference that there was a deficiency in the training program, at least for some of the staff as at October 2019. Having said that, noting that witnesses currently employed were aware of the policy and requirements surrounding hot water, I make a finding that there was a deficiency in training as at October 2019, but there is no evidence that there is a current deficiency in training with regard to hot water as a hazard””.

  1. I accept the respondent’s submission that although the magistrate did not expressly address whether appropriate training regarding hot water risks was a “reasonable precaution”, this is in the context of the appellants’ contention that all educators were properly trained. I accept that the magistrate’s finding as to the lack of training of both Ms Balloot and Ms Sayed as they failed to understand the policy that the hot water was to remain at adult height (8/11/22 T 14.12). This led to the magistrate finding that there was a deficiency in the training program as at October 2019 (8/11/22 T14.20). There is no error in her Honour’s findings which were open to the learned magistrate.

  2. Therefore, the magistrate did not incorrectly apply the reasoning in ABC Development Learning Centres case to the legislation in which the offence provision arises in determining the availability of the “reasonable steps” defence.

  3. I follow the reasoning of Ward P in Trad that “[i]t follows, in light of what was explored by the Victorian Court of Appeal, alongside my own analysis, that the decision in ABC Developmental Learning cannot be said to be plainly wrong and, given that the National Law follows the equivalent Victorian legislation, it compels the conclusion that the s 165(2) offence is one of absolute liability”; at [128]. Wallace also compels the conclusion that the s 167 (1) and (2) offences are ones of absolute liability.

  4. The second ground is not made out and is dismissed.

Conclusion

  1. In considering this appeal, my task is to determine whether evidence was sufficient in nature and quality to eliminate any reasonable doubt that the appellant is guilty of each offence: Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 at [7]. While I must be astute and alert to the possibility of error of reasoning in the court below, it is not my role to analyse with a fine comb the validity of the explicit reasons of the magistrate if they appear soundly based in the evidence before her Honour.

  2. Rather, I am required to make my own assessment of the evidence. I must ask; can I be satisfied of the guilt of the appellant beyond reasonable doubt, making due allowance for the ability of the magistrate to assess credibility in a case where all the critical evidence came from both participants in the disputed events, far more readily than an appellate judge reading a transcript.

  3. The magistrate had the considerable and distinct advantage of having seen and heard the evidence of the witnesses and it tested by cross-examination. But even without her credibility findings the prosecution case on the record had considerable and determinative probative force. Her Honour’s conclusion reinforced rather than undermined my conviction no miscarriage occurred, and the appellants were properly convicted.

  4. Having conduct my own independent assessment of the whole of the evidence and applied the necessary directions I am satisfied to beyond reasonable doubt that the appellants were guilty of each of the offences the subject of appeal.

Orders

  1. Each appeal against conviction is dismissed.

  2. The orders of the Local Court are confirmed.

  3. I reserve the question of costs.

  4. Liberty to apply to the parties to relist the matter on the question of costs.

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Decision last updated: 22 November 2024

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ABC Developmental Learning Centres Pty Ltd v Wallace [2007] VSCA 138
ABC Developmental Learning Centres Pty Ltd v Wallace [2007] VSCA 138
ABC Developmental Learning Centres Pty Ltd v Wallace [2007] VSCA 138