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

In Zaksaw Pty Limited v Department of Education and Giacchi v Department of Education, the appellants, Zaksaw Pty Limited and Giacchi, appealed against their convictions in the Local Court, which found them guilty of statutory offences under the Children (Education and Care Services) National Law 2010 (NSW) and the Education and Care Services National Regulations 2011 (NSW). The dispute arose from incidents at an early childhood education and care service centre where a child suffered serious injuries. The appellants, being the approved provider and nominated supervisor of the centre, were charged with offences under section 167 of the National Law, which imposes an obligation to ensure compliance with the regulations. The central issue before the court was whether the statutory phrase "must ensure" imposed a standard of absolute liability upon the appellants and whether the phrase "every reasonable precaution is taken" meant that the acts of employees could be attributed to the approved provider and nominated supervisor.

The court examined the statutory language and the legislative framework to determine the intended scope of the duty imposed on the appellants. The court found that the phrase "must ensure" did not necessarily impose absolute liability but rather required the appellants to take all reasonable steps to ensure compliance with the regulations. The court emphasised that the imposition of absolute liability would be contingent upon clear and unambiguous legislative intent, which was not present in this case. Regarding the phrase "every reasonable precaution is taken," the court held that it did not automatically attribute the acts of employees to the appellants unless there was evidence of a failure to take reasonable steps to prevent such acts. The court noted that the statutory provisions required a proactive approach to ensure compliance but did not impose strict liability for the actions of employees.

The court dismissed the appeals against conviction and confirmed the orders of the Local Court. The reasoning was that while the appellants had a duty to ensure compliance, this did not equate to absolute liability. The court held that the convictions were properly based on the evidence that the appellants failed to take reasonable steps to ensure the safety of the child, thereby breaching their statutory obligations. The court reserved the question of costs and granted liberty to apply to relist the matter on the question of costs.