Operational Policy Manual for Regulatory Authorities...D. Operational Requirements 137 E....

April 2017

Operational Policy Manual for Regulatory Authorities

Last updated April 2017

copy 2015 Australian Childrenrsquos Education and Care Quality Authority

Copyright in this resource (including without limitation text images logos icons information data documents pages and images) (ldquothe materialrdquo) is owned or licensed by us

Copyright in material provided by the Commonwealth State or Territory agencies private individuals or organisations may belong to those agencies individuals or organisations and may be licensed by us

Subject to any contrary statement on relevant material you may use any of the material in this resource for your personal non-commercial use or use within your organisation for non-commercial purposes provided that an appropriate acknowledgment is made (retaining this notice) and the material is not altered or subjected to derogatory treatment Apart from any other use as permitted under the Copyright Act 1968 (Cth) all other rights are reserved

Requests and enquiries concerning further authorisation should be addressed to The Copyright Officer ACECQA PO Box A292 Sydney NSW 1235

Or emailed to enquiriesacecqagovau

Last updated April 2017 Introduction 1

A

Contents

A Introduction 2

B Good Regulatory Practice 7

C Applications and Approvals 25

D Operational Requirements 137

E Monitoring Compliance and Enforcement 251

F Fees 361

G Reviews 367

H Assessment and Rating 385

I Glossary 417

The purpose of this manual is to assist authorised officers and other staff of regulatory authorities to apply the Education and Care Services National Law (National Law) and the Education and Care Services National Regulations (National Regulations) The manual is not legal advice The manual should always be read with the National Law and Regulations The National Law and Regulations take precedence over any guidance in the manual

J Appendix One Family Day Care Protocol 437

2 Introduction Last updated April 2017

A

EDUCATIONAND CARE SERVICESNATIONAL

LAW


REGULATIONS

NATIONALQUALITY

STANDARD(SCHEDULE TO

NATIONALREGULATIONS)

APPROVEDLEARNING

FRAMEWORKS

SOURCEDOCUMENTS

Primary Audience Sector Providersservices Regulatory authorities

Introduction11 The Operational Policy Manual is intended to assist authorised officers and other regulatory

authority staff apply the Education and Care Services National Law (National Law) and the Education and Care Services National Regulations (National Regulations) In particular it is intended to support nationally consistent application of the National Quality Framework (NQF)

12 The manual should always be read with the National Law and Regulations It is not legal advice and the National Law and Regulations take precedence over any guidance in the manual

13 The diagram below shows how the manual aligns with the other supporting documents available on the ACECQA website at wwwacecqagovau

1

September 2013

Guide to the National Quality Framework

April 2012

National Quality Standard Assessment and Rating Instrument

January 2013

Guide to Assessment and Rating for Services


A

14 This manual is regularly reviewed and updated by ACECQA in consultation with the regulatory authorities and the Commonwealth Department of Education Employment and Workplace Relations Changes will be informed by the experience of authorised officers and other regulatory authority staff administering the National Law and Regulations Updates will be available on the ACECQA website at wwwacecqagovau

15 The manual includes the following chapters

Good Regulatory Practice

Sets out the objectives of the National Law It includes the best practice regulation principles and the principles of good administrative decision-making which the regulatory authorities have agreed will guide their work

Applications and Approvals

Provides information about processing applications for provider approval service approval waivers and supervisor certificates It also includes information about applying to use indoor space as outdoor space and including verandahs as indoor space

Operational Requirements

Sets out the requirements for operating an education and care service including the responsibilities of approved providers nominated supervisors and family day care educators It includes guidance for regulatory authorities to help determine whether operational requirements are being complied with

Monitoring Compliance and Enforcement

Provides information and guidance about monitoring for compliance with the National Law and Regulations It also includes guidance about using the compliance tools and powers available under the legislation

Fees Sets out fees payable to regulatory authorities

Reviews Provides information about decisions that are subject to internal review by the regulatory authority or external review by a court or tribunal It also provides broad guidance about administrative review by an Ombudsman and a personrsquos right to judicial review

Assessment and Rating Provides information about the assessment and rating process for an education and care service as required under the National Law and Regulations It also provides details about the assessment and rating visit and review of service rating against the National Quality Standard

Glossary Defines key terms used in this manual

16 This manual sometimes suggests other sources of information which regulatory authority staff and services may find helpful ACECQA and regulatory authorities do not endorse these resources or check their reliability


A


A

Last updated April 2017 Good Regulatory Practice 7

BGood Regulatory Practice


Contents

1 Good regulatory practice 8

Why are regulatory authorities regulating 8

Regulatory practice diagrams 12

Assessing risk to children 14

Good decision-making 18

8 Good Regulatory Practice Last updated April 2017

B

1 Good regulatory practice11 This chapter sets out the objectives of the National Law It includes the best practice regulation

principles and the principles of good administrative decision-making which regulatory authorities have agreed will guide their work

Why are regulatory authorities regulating

12 Regulatory authorities and the Australian Childrenrsquos Education and Care Quality Authority (ACECQA) are regulating to

bull further the objectives of the National Law

bull influence the behaviour of providers nominated supervisors and educators in ways that are consistent with these objectives and improve outcomes for children and

bull fulfil their obligations under the National Law and Regulations

Objectives of the National Law

13 The National Lawrsquos objectives are shared by regulatory authorities and ACECQA and underpin regulatory actions and decisions

14 The objectives of the Education and Care Services National Law are set out below

bull ensure the safety health and wellbeing of children attending education and care services

bull improve the educational and developmental outcomes for children attending education and care services

bull promote continuous improvement in the provision of quality education and care services

bull 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

bull improve public knowledge and access to information about the quality of education and care services and

bull reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth


B

Best practice regulation principles

15 Regulatory authorities and ACECQA have agreed to be guided by best practice regulation principles in the day-to-day implementation of the National Law

16 The nine principles below apply to all regulatory work from education and information giving to investigation and enforcement

Outcomes focussed

17 Regulatory actions should not be seen as ends in themselves They should promote improved quality outcomes for children and families and further the objectives of the National Law

18 All activities of regulatory authorities should

bull be clearly focussed on the underlying regulatory objectives

bull represent the course of action(s) that is likely to achieve these objectives in the most effective and efficient manner

bull be integrated and aligned that is they work towards common purposes and objectives and

bull be flexible and innovative achieving the best regulatory outcome in the particular circumstances of each case

19 Regulatory authorities should be guided by evidence and the objectives of the National Law to regularly review the effectiveness of regulatory actions

Proportionality and efficiency

110 The design and application of regulation should be proportionate to the problem or issue it is seeking to address Proportionality involves ensuring that regulatory measures do not lsquooverreachrsquo or extend beyond achieving an identified objective or addressing a specific problem The scope and nature of regulatory measures should match the benefits that may be achieved by improving outcomes for children or families or reducing risk of harm

111 Regulatory effort should also be focussed where it will generate the greatest benefits from the resources employed Actions should be targeted at areas where the largest gains can be made Regulatory authorities should prioritise effort and resources to areas where based on the available evidence the potential benefits and risks are more significant

Responsiveness and flexibility

112 Regulatory authorities should be responsive and flexible by

bull considering the full range of options available to them

bull tailoring their approach to account for the circumstances of each individual case

bull focusing on consistency of outcome and

bull regularly reviewing their practice and operational policy to ensure it is evidence based remains relevant and appropriate to changes in the sector


B

113 Regulatory authorities should be responsive to the particular circumstances of each region location and provider Regulatory authorities may adopt different approaches to the same or similar issues owing to for example the prevalence of that issue compliance history the particular importance of the issue or other relevant differences across jurisdictions or within a jurisdiction

114 Regulatory authorities should encourage and not constrain appropriate and desirable innovation by education and care providers within the bounds of regulatory requirements

Transparency and accountability

115 Regulatory actions should be open and transparent to encourage public confidence and provide certainty and assurance for regulated entities

116 Legislation should be fairly and consistently administered and enforced and where relevant regulatory authorities should explain the reasons for their decisions

117 Regulatory authorities should also be accountable for the actions they take and welcome public and sector scrutiny including the regular reporting of performance information

118 In general the design and administration of regulation should provide for transparent and robust mechanisms to appeal against decisions made by regulators

Independence

119 Regulatory authorities should ensure the integrity and objectivity of regulatory actions

120 Where regulatory authorities exercise powers or make decisions this should be done in the absence of actual or perceived conflicts of interest or other relationships measures or influences that may impinge or be seen to impinge upon their objectivity

121 Abiding by this principle should not jeopardise having constructive working relationships between regulators and regulated entities

Communication and engagement

122 Regulatory authorities operate in a dynamic context made up of a broad range of stakeholders including

bull government agencies (for example policy agencies other regulators)

bull the regulated sector (including providers supervisors and educators)

bull peak bodies

bull service users (ie children and families) and

bull the broader community

123 Engaging appropriately with each stakeholder group makes regulatory activities more efficient and effective for example

bull exchanging operational information with other government agencies can inform better policy development and mutually improve regulatory decision-making

bull appropriate relationships with the regulated sector can facilitate more effective educative and advisory regulatory approaches as well as enabling the regulator to obtain valuable feedback and information that improves its own performance and


B

bull outward communication of performance and outcomes to service users and the broader community supports better information and decision-making as well as greater transparency and public accountability

Mutual responsibility

124 Regulatory authorities should acknowledge the primary responsibility of education and care providers their owners managers and staff for maintaining and improving the quality of their services

125 Providers supervisors and educators are responsible for meeting their obligations under the National Law and Regulations for ensuring the safety health and wellbeing and improving the educational and developmental outcomes of children in their care

126 The role of regulatory authorities is to administer the National Law and Regulations promoting quality improvement through exercising the powers and functions given to them by the legislation

Consistency and cooperation across jurisdictions

127 Cooperation and coordination between the jurisdictions is critical to ensure efficiency consistency and predictability of regulatory systems It can also ensure that scarce public resources are employed efficiently reducing duplication of regulatory effort and improving effectiveness

128 Central to achieving cooperation across regulatory authorities is agreement on the sharing of data and information to the greatest extent possible within the limits of the law

129 Regulatory authorities should also share evidence experimentation experience and policy initiatives to facilitate the adoption of best practice across jurisdictions

Awareness of the broader regulatory environment

130 Regulatory authorities should be aware of the existence of other relevant and overlapping regulatory schemes the role these schemes perform and the obligations they impose on businesses and other organisations

131 Regulatory authorities should

bull minimise the duplication of regulatory obligations impositions and effort and

bull cooperate and coordinate information sharing

132 For those jurisdictions where some or all preschool services are delivered through the government school system regulatory action should be cognisant of the policy and regulatory environment in that system

133 Other relevant regulatory systems could include those relating to

bull child protection

bull occupational health and safety

bull planning and

bull food safety


B

Regulatory practice diagrams

Ayres and Braithwaite enforcement pyramid

134 In their book Responsive Regulation Transcending the deregulation debate Ian Ayres and John Braithwaite suggest a responsive compliance model This model can be depicted as a pyramid its shape indicating the

bull number of entities (ie service providers and others with liabilities under the legislation) likely to be found at each level of the model

bull hierarchical and escalating nature of regulatory engagement and

bull increasing focus towards the top of the pyramid on the small minority of entities that appear to deliberately not comply

135 The responsive compliance model is dynamic and allows versatility in managing non-compliance The modelrsquos strength is that it allows regulatory authorities to identify the best remedy for the particular situation This includes taking into account an entityrsquos efforts to comply Having a set of graduated responses enables the regulatory authority to

bull respond in a way that is proportionate to the risk

bull escalate regulatory action

bull de-escalate regulatory action and

bull minimise costs associated with a response

136 The diagram below is adapted from a version of the regulatory compliance pyramid published in the Australian National Audit Office Better Practice Guide The vertical arrow demonstrates the range of responses to regulation Providers and other people with obligations under the legislation who are willing and able to respond to regulation comply most of the time Those who are unwilling andor unable to respond require more persuasive deterrents and remedies The responsive compliance pyramid model is also consistent with the principle of earned autonomy where regulatory intervention is focussed towards those who are unwilling andor unable to comply


B

137 Prosecutions Bring an offence against the National Law or the National Regulations for decision by a court or tribunal

138 Statutory sanctions Cancellations suspensions conditions infringement notices compliance notices compliance directions enforceable undertakings emergency action notices prohibition notices direction to exclude an inappropriate person

139 Administrative actions Additional monitoring meetings warning letters or cautions

140 Information and guidance Factsheets newsletters FAQs helplines campaigns capacity-building practice notes and guidelines

Suspend or cancel

provider approvalservice approval

or supervisor certificate

Restrictusing proportionate statutory

sanctions such as acondition on an approval or

supervisor certifcate

Educateby providing information and guidance conducting targeted

information campaigns and giving feedback to supportcontinuous quality improvement such as through the

quality assessment and rating process

Direct and deterby giving specific directions using

administrative actions such as a warning letteror through statutory compliance tools such as a

compliance direction or an emergency action notice

Or by issuing a penalty to deter future non-compliancesuch as giving an infringement notice

Unwilling

amp

Unableable

Willing

amp

Unable

Willing

amp

Able

EA

RN

ED

AU

TO

NO

MY

PR

OS

EC

UT

E


B

Assessing risk to children

National Law sections 3-4

141 When exercising functions under the National Law regulatory authorities must consider the Lawrsquos objectives and guiding principles These include ensuring the safety health and wellbeing of children attending education and care services and improving their educational and developmental outcomes They also include promoting continuous improvement in the provision of quality education and care services

142 To fulfil this responsibility regulatory authorities often need to assess the level of risk to children at education and care services The guidance below is to help regulatory authorities carry out a risk assessment and determine appropriate follow up action

What is risk

143 The National Law and Regulations do not define lsquoriskrsquo A common tool used to analyse the level of risk is a risk matrix (see below) This tool helps identify the level of risk by looking at how likely it is a negative event may occur and the severity of the consequence should it occur

144 Risk can arise through any part of the environment where education and care is provided to children This includes the physical environment staff members and other people at the service Risk can arise from an action or through a failure to act Risks can also emerge from systemic failure such as a provider not having adequate systems in place to control for risk

Risk Matrix

Cons

eque

nces

Likelihood

Rare Unlikely Possible Likely Almost Certain

Major Moderate High High Critical Critical

Significant Moderate Moderate High High Critical

Moderate Low Moderate Moderate High High

Minor Very low Low Moderate Moderate Moderate

Insignificant Very low Very low Low Moderate Moderate


B

Likelihood

145 The risk matrix includes five levels of likelihood which are described below When thinking about likelihood regulatory authorities should take into account factors such as history of compliance as well as readiness willingness and ability to comply It is also important to consider how soon an event might occur as this will help decide the most suitable action for responding to the risk

Likelihood Description

Rare Very unlikely ndash the event may occur only in exceptional circumstances

Unlikely Improbable ndash the event is not likely to occur in normal circumstances

Possible Potential ndash the event could occur at some time

Likely Probable ndash the event will probably occur in most circumstances

Almost certain Very likely ndash the event is expected to occur in most circumstances

Consequence

146 The risk matrix includes five levels of consequence insignificant minor moderate significant and major This takes into account the impact or potential impact of an event including its scale and duration A consequence might affect the safety and wellbeing of children at the service their family or the wider community

147 When analysing the consequences of a potential event regulatory authorities should consider the vulnerability of people who might be affected For instance very young children or children with a disability may be particularly vulnerable because they are less able to act to protect their wellbeing

148 Harm to children might arise as the result of a single incident or from several incidents that occur over time This is known as cumulative harm


B

Risk prioritisation

149 A risk matrix helps work out the priority of a particular risk This can help regulatory authorities determine which risks to address first The priorities in the above risk matrix are very low low moderate high and critical

150 The Monitoring Compliance and Enforcement chapter has information about tools available to regulatory authorities which can be used to compel providers to reduce risks to children

151 Once the regulatory authority has taken action to compel the approved provider to reduce the risk it can reassess the level of risk to children using the risk matrix If it considers the risk to children is still moderate or greater the regulatory authority should consider further options for compelling the providerrsquos compliance The aim is to reduce the level of risk to very low or low However depending on the circumstances regulatory authorities may decide to act to address a low or very low level risk as there may be ways of further reducing the risk or removing it entirely

Unacceptable risk

152 The term lsquounacceptable riskrsquo appears in a number of provisions in the National Law and Regulations (see table below) The National Law and Regulations do not define lsquounacceptable riskrsquo This is because the nature and degree of risk to children will vary depending on the particular circumstances

153 The National Law allows regulatory authorities to prevent a provider or service from operating if the regulatory authority is satisfied there is an unacceptable risk to the health safety or wellbeing of children at the service In the case of a prohibition notice the regulatory authority can prevent a person from having any involvement with any service if they are satisfied there is an unacceptable risk

154 The regulatory authority may consider there is an unacceptable risk if the operation of the service has resulted in harm to children and the regulatory authority considers that there are no options for effectively reducing the risk to children For example the regulatory authority may have made previous attempts to ensure the provider reduces or eliminates risk to children without success

155 Because risk includes analysing potential consequences the regulatory authority might also be satisfied there is an unacceptable risk to children even where no child has been harmed

156 Regulatory authorities can use the risk matrix to help determine whether a risk is unacceptable It is likely that a risk that falls into the lsquocriticalrsquo category will be unacceptable but regulatory authorities should always use their judgement and take into account the specific circumstances when determining appropriate action


B

Provisions with reference to unacceptable risk to children

S 31 Grounds for cancellation of provider approval

The regulatory authority may cancel a provider approval if it is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider

Refer to the Applications and Approvals chapter for more information on cancelling a provider approval

S 49 Grounds for refusal to grant service approval

The regulatory authority must refuse to grant a service approval if it is satisfied that the service if permitted to operate would constitute an unacceptable risk to the safety health or wellbeing of children who would be educated or cared for by the education and care service

Refer to the Applications and Approvals chapter for more information on refusing to grant a service approval

S 77 Grounds for cancellation of service approval

A regulatory authority may cancel a service approval if it reasonably believes that the continued operation of the education and care service would constitute an unacceptable risk to the safety health or wellbeing of any child or class of children being educated and cared for by the education and care service

Refer to the Applications and Approvals chapter for more information on cancelling a service approval

S 182 Grounds for issuing prohibition notice

The regulatory authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed to remain on the education and care service premises or to provide education and care to children

Refer to the Monitoring Compliance and Enforcement chapter for more information on issuing a prohibition notice

R 25 Additional information about proposed education and care service premises

An application for a service approval for a centre-based service must include a statement made by the applicant that states that to the best of the applicantrsquos knowledge the site history does not indicate that the site is likely to be contaminated in a way that poses an unacceptable risk to the health of children

Refer to the Applications and Approvals chapter for more information on service approval applications

R 59 Significant improvement required

A significant improvement required rating may be given for a quality area stated in the National Quality Standard if the education and care service does not meet that quality area or a relevant regulation for that quality area in a way that the regulatory authority is satisfied constitutes an unacceptable risk to the safety health or wellbeing of any child or children being educated and cared for by the service

Refer to the Assessment and Rating chapter for more information on issuing a rating of significant improvement required


B

Good decision-making

157 Good decision-making refers to the lawful and proper exercise of public power Public power is the power vested in government agencies to make decisions which impact on the rights interests and legitimate expectations of individuals Administrative law regulates the exercise of public power by defining the extent of the power and by giving individuals the right to challenge decisions made by government

Preparing to make the decision

158 Before making a decision decision-makers must ensure they have prepared appropriately This involves identifying and recording key issues creating and maintaining a document trail checking any legal requirements and identifying the limits of the available decision-making power

Checking delegation

159 Decision-makers must check they are authorised to make the decision If the law does not give the decision-maker the power to make the decision themselves they need to check if this power has been delegated to them When a person with the authority to make a decision passes the power to someone else it is called a delegation Delegations are often specific to a position and are generally outlined in an operational document

160 If the decision-maker does not have the power to make the decision the decision may not be lawful

161 Authorised officers should check which decisions they are authorised to make and be aware that sometimes the authority to make a decision will rest with someone else within the regulatory authority

162 The person with the authority to make the decision is responsible for ensuring the decision is made properly

Power under the law

163 The power to make a decision and the limits on that power are set by acts of parliament (for example the National Law) associated instruments (for example the National Regulations) and case law (law made by courts)

164 For example the National Law sets out the types of decisions regulatory authorities can make about applications for provider or service approval or for an amendment to or suspension of an approval


B

Guidelines and policies

165 Government agencies generally have guidelines and policies to help guide decision-makers However decision-makers must remember that policy cannot override the law Although relevant policy should be considered when making a decision policy must be applied reasonably and consistently with the law Decision-makers must not make a decision without considering the merits of the particular case

Timeframes

166 When a timeframe for making a decision is included in the legislation for example lsquo30 days after receiving an applicationrsquo these timeframes must be adhered to The National Law specifies that for applications for provider approval service approval and supervisor certificates failing to make a decision within the set timeframe including timeframes extended under the legislation will automatically result in a lsquodeemed refusalrsquo of the application

167 A deemed refusal gives the applicant the right to apply for a review as if the regulatory authority had made a decision to refuse the application Where a regulatory authority is aware that it will not meet (or is not likely to meet) the timeframe set out in the legislation it should notify the applicant and wherever possible give an indication of when the decision will be made

168 For applications without a lsquodeemed refusalrsquo provision if the regulatory authority does not make a decision within the legislated timeframe an applicant may follow up the decision in a range of ways including by involving the relevant ombudsman In any case best practice is to inform applicants of any delays or potential delays in deciding an application

Considering the decision

169 Decision-makers must consider all relevant documents and information to ensure a fair and informed decision They must not take any irrelevant documents or information into account

170 Decision-makers must ensure they have fully considered all available evidence particularly when the decision-maker did not personally collect the evidence

171 The National Law sets out what the regulatory authority must consider when deciding an application and generally does not limit the regulatory authority from considering any other relevant matter

172 To ensure accountability and transparency decision-makers should always maintain accurate and complete records of the information that informs their decision


B

Natural justice

173 The terms lsquonatural justicersquo and lsquoprocedural fairnessrsquo are often used interchangeably

174 Natural justice means that any person who may be affected by the decision is given a chance to a fair hearing with full knowledge of their rights and responsibilities before a decision is made

175 Natural justice must be given when the rights interests or legitimate expectations of individuals may be affected by the exercise of power (ie when a decision may not be in favour of the person) However it is best practice to always give natural justice even when a decision may appear to be in favour of an affected person

176 Natural justice has three main elements

bull the notice requirement

bull the hearing rule and

bull the bias rule

The notice requirement

177 A person affected by the decision must be notified of any issues in enough detail to allow them to participate or respond in a meaningful way This may require the decision-maker to present the person with material that may be unfavourable to them

178 The National Law includes a number of lsquoshow causersquo provisions that underline the principles of natural justice lsquoShow causersquo provisions aim to ensure affected individuals are aware of the decision-makerrsquos intention the reasons why the decision-maker is considering making the decision and give an opportunity to respond

179 lsquoShow causersquo provisions apply to prohibition notices and the suspension or cancellation of provider approvals service approvals and supervisor certificates

180 A lsquoshow causersquo provision also applies to the suspension of education and care by a family day care educator However this lsquoshow causersquo provision is discretionary Regulatory authorities should still consider natural justice obligations despite the discretion

The hearing rule

181 Decision-makers must provide any affected person with a reasonable opportunity to respond to material provided by the decision-maker The hearing rule ensures the decision-maker has taken any responses into account in making the decision The hearing rule does not require a formal lsquohearingrsquo ndash the affected person could be provided with an opportunity to respond in writing


B

The bias rule

182 Decision-makers must act impartially and not in their own interests To maintain public confidence in the integrity of the system the rule also requires that the decision-maker is not perceived as being biased

183 Bias may arise from a conflict of interest or from the impression that the decision-maker has made a judgment on the issue without considering all relevant factors or by considering irrelevant factors

184 While a conflict of interest does not always demonstrate a decision-makerrsquos inability to make an impartial judgment it is generally considered best practice to employ a different decision-maker to avoid the perception of bias

Making the decision

185 Once the relevant information and documents have been collected and all affected people have been afforded natural justice decision-makers need to establish the facts In establishing the facts decision-makers must consider all available evidence before deciding which facts are relevant to the decision and which should be discarded due to irrelevance It is crucial that decision-makers establish facts based on clear evidence

186 Decision-makers can consult with other officers and refer to policies and guidelines to help them make a decision but they must act independently not at the direction of others when making a decision Refer to Reviews for more information about best practice decision making when conducting reviews

187 After determining the relevant facts the decision-maker must apply the relevant legislation to the facts Where there is uncertainty about the interpretation of the law the decision-maker should take into account the objectives and purpose of the legislation Decisions made under the National Law should consider the objectives and guiding principles set out at section 3

188 When a decision is made under a power granted by legislation it is important that the relevant legislation is correctly interpreted and applied If the decision-maker is in doubt about the interpretation they should seek legal advice

189 Once the decision is made the decision and all supporting evidence should be kept on record The decision-maker should also document all matters that were taken into account when making the decision Decision records must generally include the information outlined below and should be accompanied by a statement of reasons explaining the decision


B

Explaining recording and communicating the decision

190 Decisions in the public sector are recorded in a variety of ways The record of a decision must be a standalone record that can be read without reference to a file and should include the following information

bull the date

bull who the decision is about

bull what the decision is

bull who the decision-maker is and

bull the signature of the decision-maker

191 A statement of reasons isnrsquot always required for a decision However an affected person may request reasons sometimes a long time after the decision has been made For this reason it is best practice to record a statement of reasons at the time the decision is made

192 Individuals may access information including decision-making documentation from government agencies under Privacy and Freedom of Information legislation

193 A statement of reasons should be clear unambiguous jargon-free and easily read and understood by the affected persons

194 Generally statements of reasons should include the following information

bull the decision-makerrsquos findings on the facts

bull reference to or copies of documents evidence and relevant information considered in making the decision

bull a meaningful statement of reasons addressing all the critical issues and any adopted recommendations clearly explaining the decision-makerrsquos understanding and application of the law and

bull the identified grounds for review


B


B

Last updated April 2017 Applications and Approvals 25

CApplications and Approvals


Contents

1 Provider approval 27

Application for provider approval 27

Timeframe for assessing an application 29

Considering an application 30

Determining an application 36

After an application has been determined 37

Amending provider approval on application 38

Amending provider approval without application 41

Determining an application for provider approval in case of death or incapacity of approved provider 42

Voluntary suspension of provider approval 45

Surrender of provider approval 48

Exercise of powers by another regulatory authority 50

Offence related to provider approval 50

Additional information 51

2 Service approval 52

Application for service approval 54





Amending service approval on application 66

Amendment of service approval without application 69

Offences related to service approval 70

Transfer of service approval 71

Voluntary suspension of service approval 76

Surrender of service approval 79

Exercise of powers by another regulatory authority ndash family day care services 80

3 Other applications 81

Application to use indoor space as outdoor space 81

Application to use a verandah as indoor space 82

4 Waivers 85

Application for service waiver 85




After a service waiver has been granted 92

Revoking a service waiver 93

Application for temporary waiver 94




Combining a waiver with conditions on service approval 102

After a temporary waiver has been granted 103

5 Supervisor certificates 105

Prescribed class supervisor certificates 105

Supervisor certificates granted to an individual 107

Conditions on supervisor certificate 115

Providing a copy of a supervisor certificate 117

After a supervisor certificate has been granted 117

Amending a supervisor certificate 118

Automatic suspension or cancellation of supervisor certificates 121

Voluntary suspension or surrender of a supervisor certificate 122

6 Application checklists 123

C

26 Applications and Approvals Waivers Last updated April 2017

Requirement for which an approved provider may apply for a service or temporary waiver

A saving or transitional provision applies to the specified jurisdiction(s) or a different provision applies in WA

Requirement attaches to the approved provider

Requirement attaches to the nominated supervisor

Requirement attaches to the family day care educator

Requirement applies to centre-based services only

Requirement applies to family day care services only

A penalty attaches to the requirement

Legend

C

Last updated April 2017 Provider approval Applications and Approvals 27

1 Provider approval

National Law section 103

11 A person must have provider approval to operate an approved education and care service under the Education and Care Services National Law and Regulations Regulatory authorities are responsible for assessing and determining applications for provider approval This section sets out how applications are made and processed

Application for provider approval

What is an application for provider approval

12 This is the process to become an approved provider and gain approval to operate an education and care service under the National Law and Regulations

Who can apply for a provider approval


13 One or more persons may apply to the regulatory authority for a provider approval A prescribed ineligible person cannot apply for provider approval There are currently no prescribed ineligible persons under the National Regulations but regulatory authorities should be mindful of this provision and ensure they refer to a current copy of the National Regulations in case this changes

Guidance for regulatory authorities

14 Under the National Law a lsquopersonrsquo means an individual body corporate an eligible association a partnership or a prescribed entity See the Glossary for more information on the meaning of these terms

15 More than one entity may hold a provider or service approval Regulatory authorities should assess the risk associated with joint approvals when determining applications for approvals Where more than one entity holds an approval each entity is jointly and severally responsible for complying with the National Law and Regulations (see section 287)

C

28 Applications and Approvals Provider approval Last updated April 2017

How does a person apply

National Law section 11 WA

16 An application for provider approval must be made in writing to the regulatory authority where the applicant or any of the applicants lives If the applicant is an entity (not an individual) application must be made to the regulatory authority where the applicantrsquos principal office is located (or where any of the applicantsrsquo principal offices are located if there is more than one)

17 An application for provider approval must include payment of the prescribed fee (see Fees)


18 Regulatory authorities may receive provider approval applications through the National Quality Agenda (NQA) IT System or by hard copy forms downloaded from the ACECQA website at wwwacecqagovau and mailed faxed or emailed to the regulatory authority

What information needs to be included in an application

19 The National Regulations specify information that must be included in an application for provider approval (see Application checklists ndash Tables I II)


110 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau

111 The National Regulations do not specify what type of documentation is required as proof of identity for a provider approval application and does not require applicants to submit 100 points of identity or certified copies of their documentation The regulatory authority may request certified copies if it has concerns about the authenticity of documents included in an application

112 If the applicantrsquos address is not in the regulatory authorityrsquos jurisdiction the regulatory authority should contact the applicant to confirm they have applied in the right jurisdiction and to redirect the applicant to the correct regulatory authority if necessary

Incomplete applications

113 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information

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114 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant

115 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration

bull the amount and complexity of the information requested

bull the applicantrsquos capacity to provide information in that timeframe and

bull whether a timeframe applies to when the applicant must submit the application

116 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)

Timeframe for assessing an application

National Law sections 14ndash15

117 The regulatory authority must determine an application for provider approval within 60 calendar days of receiving the application If the regulatory authority requests more information from the applicant about their fitness and propriety the time taken to provide additional information is not included in the 60-day period

118 If the applicant agrees the 60-day period (not including any time taken to provide additional information) may be extended by up to 30 calendar days

119 If the regulatory authority does not determine an application within the specified timeframe it is taken to be refused


120 The regulatory authority must give the applicant written notice of its decision and reasons for the decision within seven calendar days after the decision is made

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Calculating time

121 The National Law sets out how timeframes are calculated at schedule 1 clause 31


122 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information

123 When calculating the timeframe the day the application is received is included lsquoDayrsquo means calendar day However if the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 60-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the sixtieth day

Considering an application

Is the applicant a fit and proper person


124 The applicant must satisfy the regulatory authority that they are a fit and proper person to be involved in the provision of an education and care service If the applicant is not an individual each person who will have management or control of an education and care service to be operated by the applicant and the applicant must satisfy the regulatory authority that they are fit and proper to be involved in the provision of an education and care service

125 The head of a government department administering an education law is taken to be a fit and proper person for the purposes of provider approval


126 The National Law specifies matters the regulatory authority must consider when determining whether a person is fit and proper which are outlined below (History of compliance and Criminal history) This does not limit the circumstances in which a person may be considered not to be fit and proper


127 To assess whether a person is fit and proper to provide an education and care service the regulatory authority may ask the person to provide more information or undertake inquiries in relation to the person

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128 The regulatory authority must not grant a provider approval unless satisfied the applicant or each person with management and control is fit and proper to provide an education and care service


129 It is the applicantrsquos responsibility to determine each individual who will be in management or control of the education and care service with reference to the definition in section 5 of the National Law For companies this will generally include the directors and for committees and associations it will usually include the executive members People in other positions within an organisation may also have management or control if they are responsible for delivery of the education and care service The regulatory authority might wish to discuss with the applicant how they determined who is a person with management or control and may form a different view

130 Where the regulatory authority needs more information to determine whether an applicant is a fit and proper person they may exercise the power to ask the person for more information or make inquiries about the person This may be in relation to one of the matters outlined below (History of compliance and Criminal history) or about any other matter the regulatory authority considers may affect the personrsquos fitness and propriety

131 If the regulatory authority obtains information from a source other than from the applicant and is considering making a decision that will adversely affect the applicant it must ensure its decision-making process accords with the principle of natural justice Decisions that adversely affect a person include refusing to grant provider approval or granting provider approval subject to conditions For more information see Good Regulatory Practice ndash Good decision-making

History of compliance


132 When determining whether a person is fit and proper the regulatory authority must consider the personrsquos history of compliance with any current or former education and care services law childrenrsquos services law or education law

133 The regulatory authority must also consider any decision made under a former education and care services law a childrenrsquos services law or an education law of any state or territory to refuse refuse to renew suspend or cancel a licence approval registration or certification issued to the person under that law

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134 If a person has been served with an infringement notice for an offence under the National Law and has paid the penalty the offence cannot be taken into account when determining the personrsquos fitness and propriety (section 291)

135 The National Law does not specify a time period in relation to a personrsquos compliance history When considering a personrsquos history of compliance for the purposes of assessing their fitness and propriety factors to consider may include the severity of any issues and how recently they occurred Regulatory authorities may also consider the personrsquos willingness to comply for example whether escalation was required to resolve compliance issues See also Good Regulatory Practice ndash Good decision-making

Criminal history


National Regulations regulation 16

136 Regulatory authorities must consider the personrsquos criminal history when determining whether they are fit and proper to be involved in the provision of an education and care service Because working with childrenvulnerable people legislation differs between jurisdictions the National Law includes two options for considering a personrsquos criminal history set out below

Matters the regulatory authority must consider about criminal history

Option 1 Option 2

The regulatory authority must consider the below matters to the extent that they may affect the personrsquos suitability to provide an education and care service

The regulatory authority must consider the personrsquos working with vulnerable people check

bull Any matters included in a criminal history check (except in Queensland) and

bull If there is a working with children law

ndash whether the person has a current working with children check or card or

ndash whether the person is a registered teacher under an education law in their state or territory

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137 In some instances a check may return information about a personrsquos criminal history that is not relevant to whether they are fit and proper to be involved in the provision of education and care to children Regulatory authorities should be aware that taking into account irrelevant considerations may lead to an unlawful decision Refer to Good Regulatory Practice ndash Good decision-making

138 Working with children check legislation applies in all states and territories except for Tasmania Working with vulnerable people legislation was enacted in the ACT on 8 November 2012 and will be fully enacted from 8 November 2013 See the table at the end of this section for details of working with children screening units in each state and territory

Financial matters


139 Regulatory authorities must consider whether the applicant is bankrupt or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors In the case of a body corporate the regulatory authority must consider whether the applicant is insolvent under administration or an externally-administered body corporate

140 Regulatory authorities may also consider whether the applicantrsquos financial circumstances may limit their capacity to meet their obligations for providing an education and care service in accordance with the National Law


141 If the applicant is bankrupt or insolvent according to their declaration the regulatory authority may consider

bull the period when bankruptcy is discharged

bull past circumstances and changes of circumstances or

bull legal advice about whether the regulatory authority is bound by other law

142 The National Personal Insolvency Index maintained by the Australian Financial Security Authority (Australian Government) may have information about an applicantrsquos financial position and can be accessed at wwwafsagovau

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143 Where there are concerns about an applicantrsquos financial circumstances raised through the initial application notification or lsquoother intelligencersquo the regulatory authority may ask an applicant to provide further information about their financial capacity to determine the likelihood that they will be able to sustain ongoing operation of a service For example information about

bull liquidity

bull cash flow

bull asset sustainability

bull capital structure and debt protection or

bull operating efficiency

144 If required regulatory authorities may seek external advice for example about the financial viability of an applicant to help analyse the financial capacity of applicants for provider approval

145 While regulatory authorities should be mindful of the duty of confidentiality provisions (National Law section 273) these provisions do not prohibit a regulatory authority from disclosing information when exercising a function under or for the purposes of the National Law such as assessing a provider approval application In addition section 14 of the National Law allows regulatory authorities to seek further information when determining whether a person is a fit and proper person including by making inquiries in relation to a person This includes seeking advice about an application from an external expert

Medical conditions


145 The regulatory authority may consider whether the person has a medical condition that may limit their capacity to be responsible for providing an education and care service in accordance with the National Law and Regulations


147 Applicants are not required to provide medical information in their initial application However where the regulatory authority is concerned about an applicantrsquos capacity it can ask for information such as an assessment by a medical practitioner The regulatory authority should detail why the assessment is needed and give a description of the role to guide the person doing the assessment The regulatory authority may require a written report to be provided

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Conditions on provider approval

148 A condition is a requirement that the person holding the approval must comply with to avoid committing an offence under the National Law


149 A provider approval is granted subject to the condition that the approved provider complies with the National Law In addition the regulatory authority may impose any condition it deems appropriate

150 A provider approval may also be granted subject to any conditions prescribed by the National Regulations

151 A condition on a provider approval applies to the provider as the operator of any education and care service or associated childrenrsquos service unless the condition expressly provides otherwise


152 In some instances the regulatory authority may consider it appropriate to impose a condition on provider approval For example if the regulatory authority has concerns about an applicantrsquos management capacity it may limit the number of services or size of the service the applicant can operate to help ensure the applicant operates the service in compliance with the National Law See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a provider approval

153 Although the National Law states provider approval is granted subject to any conditions prescribed in the National Regulations none currently exist However regulatory authorities should be mindful of this provision and ensure they refer to a current copy of the National Regulations

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Determining an application

Granting provider approval


154 If granted the regulatory authority must give the approved provider a copy of the provider approval stating

bull the name of the approved provider

bull if the approved provider is not an individual the address of the principal office of the provider

bull any conditions to which the approval is subject (see Conditions on provider approval above)

bull the date the provider approval was granted and

bull the provider approval number

National Law schedule 1 clause 31

155 The National Law does not specify how much time the regulatory authority has to give the approved provider a copy of the provider approval This means it must be done as soon as possible after deciding to grant the approval

Refusing to grant provider approval


156 The regulatory authority may refuse to grant provider approval if the regulatory authority is not satisfied that the grounds for granting provider approval are met The regulatory authority cannot grant provider approval unless satisfied the applicant is fit and proper (see Considering an application above)

Giving notice of the determination


157 The regulatory authority must give the applicant written notice of its decision to grant or refuse to grant approval and the supporting reasons within seven calendar days of making the decision (see Timeframe for assessing an application above)

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Appeals


158 A decision to refuse to grant a provider approval or to grant provider approval subject to conditions is a reviewable decision under the National Law Refer to Reviews

After an application has been determined

Publication on the register of approved providers

National Law sections 266 270


159 ACECQA must keep and publish a register of approved providers which includes the information set out below

Information on the register of approved providers

The name of the approved provider

The postal address of the approved provider

Any conditions on the approval

The date the provider approval was granted

The provider approval number and

The service approval numbers of all education and care services provided by the approved provider

160 The regulatory authority may publish the name of the approved provider

Duration and effect of provider approval


161 A provider approval authorises the holder to operate an approved education and care service and an associated childrenrsquos service It is valid nationally

162 A provider approval is ongoing unless cancelled or suspended by the regulatory authority or surrendered by the approved provider

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Reassessing fitness and propriety


163 The regulatory authority may reassess an approved providerrsquos fitness and propriety to provide an education and care service at any time This includes assessment of a person with management or control If a person is no longer a fit and proper person to be involved in the provision of an education and care service the regulatory authority may then consider suspending or cancelling the provider approval (see Monitoring Compliance and Enforcement)

Amending provider approval on application



164 An approved provider may apply to the regulatory authority for an amendment to their provider approval The application must be in writing


165 An application for amendment of a provider approval must include

bull the approved providerrsquos full name and provider approval number

bull the name and contact details for the application

bull details of the amendment applied for and

bull sufficient information or documentation to support the application for amendment



167 The National Law and Regulations do not prescribe the type or level of information needed to support an application for amendment of a provider approval other than requiring an application to include lsquosufficient informationrsquo lsquoSufficient informationrsquo means enough information for the regulatory authority to make a decision on the application

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172 The regulatory authority must decide whether to amend the provider approval within 30 calendar days after having received the application

Calculating time




175 When calculating the timeframe the day the application is received is included lsquoDayrsquo means calendar day However if the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 30-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the thirtieth day

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176 The regulatory authority may only exercise power to amend a provider approval after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the provider approval Failure to consult other regulatory authorities does not affect the validity of the regulatory authorityrsquos exercise of power


177 Regulatory authorities should wherever possible consult one another about actions that affect providers operating across jurisdictions Failure to consult other regulatory authorities may have broader implications for example where a compliance issue is escalated to prosecution


178 The regulatory authority must decide to amend the provider approval in the requested way or with the applicantrsquos written agreement in another way The regulatory authority may also decide to refuse to amend the provider approval

179 Amendment may include but is not limited to varying a condition of the provider approval or imposing a new condition

Appeals


180 A decision to refuse to amend a provider approval is a reviewable decision under the National Law Refer to Reviews

After approval has been amended

181 If the regulatory authority amends the approval it must give the approved provider a copy The regulatory authority must also make any necessary amendments to any service approval held by the approved provider and give the approved provider a copy


182 ACECQA will update the register of providers to reflect any amendments to the provider approval as necessary

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Amending provider approval without application


183 The regulatory authority may amend a provider approval at any time without application from the approved provider

184 Amendment may include but is not limited to varying a condition on the provider approval or imposing a new condition


185 The regulatory authority may only exercise a power to amend a provider approval after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the provider approval Failure to consult other regulatory authorities does not affect the validity of the regulatory authorityrsquos exercise of power




187 The regulatory authority must give the approved provider written notice of the amendment

188 Amendment without application takes effect 14 calendar days after the regulatory authority notifies the approved provider of the amendment or at the end of another period specified by the regulatory authority

189 The regulatory authority must give the approved provider a copy of the amended provider approval It must also make any necessary amendments to any service approval held by the approved provider and give the approved provider a copy


190 ACECQA will update the register of providers to reflect any amendments to a provider approval as necessary

C


Appeals


191 A decision to amend a provider approval is a reviewable decision under the National Law Refer to Reviews

Determining an application for provider approval in case of death or incapacity of approved provider

192 Where an approved provider can no longer fulfil their role due to death or incapacity a nominated executor legal personal representative or guardian can be appointed subject to meeting the requirements as the approved provider

Who can apply for provider approval in case of death or incapacity of approved provider


193 The regulatory authority may receive an application from the executor for a provider approval


194 If an approved provider becomes incapacitated their legal personal representative or guardian may apply to the regulatory authority for a provider approval


195 Under section 39 of the National Law the nominated supervisor or any other person having day-to-day control of an education and care service operated by the approved provider must notify the regulatory authority within seven calendar days if the approved provider dies

196 The executor of the approved providerrsquos estate may continue to operate any approved education and care service for the relevant period provided the nominated supervisor or a certified supervisor continues to manage the day-to-day operation of the service lsquoRelevant periodrsquo means 30 calendar days after the death of the approved provider or if the executor applies for a provider approval until the regulatory authority determines the application

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How does an executor legal representative or guardian apply

National Law sections 39 40 WA

197 An application must be made in writing and must include payment of the prescribed fee An application from an executor must be made within 30 calendar days of the providerrsquos death The National Regulations specify information that must be included in an application (see Application checklists ndash Tables III IV V VI)



199 Because a provider approval granted to an executor legal personal representative or guardian relates only to the education and care service formerly operated by the deceased or incapacitated approved provider the person cannot apply for a service approval for any additional services or receive a service approval transferred from another approved provider









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104 The National Law does not specify how much time the regulatory authority has to assess an application from an executor legal representative or guardian This means it must be done as soon as possible



105 The regulatory authority must consider whether the applicant is a fit and proper person to be involved in the provision of an education and care service See the requirements set out above at Is the applicant a fit and proper person The regulatory authority must not grant a provider approval to an executor personal legal representative or guardian unless they are satisfied the applicant is fit and proper



106 The regulatory authority may grant the provider approval grant the approval subject to conditions or refuse to grant the provider approval Approval may be granted for up to six months and this period may be extended by up to six months at the regulatory authorityrsquos discretion

107 If granted provider approval is granted only in relation to the operation of education and care services of the approved provider for whom the applicant is the executor personal legal representative or guardian

Appeals


1108 A decision to refuse to grant a provider approval is a reviewable decision under the National Law Refer to Reviews

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After approval has been granted


1109 The regulatory authority must give the approved provider a copy of the provider approval


1110 A service approval is not suspended during any period that a person is approved to manage or control the education and care service in the event that the approved provider dies or becomes incapacitated



Voluntary suspension of provider approval

What is voluntary suspension of provider approval


1112 The voluntary suspension of provider approval allows an approved provider to seek the regulatory authorityrsquos consent to put their provider approval lsquoon holdrsquo for up to 12 months During that time the person must not operate an education and care service

How does the approved provider apply


National Regulation regulation 19

1113 An application for voluntary suspension must be in writing


1115 The National Regulations specify information that must be included in an application to suspend provider approval (see Application checklists ndash Table VII)

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Notification to parents

1121 An approved provider must notify parents of children enrolled at their services of their intention to apply for voluntary suspension of a provider approval Notification must be given at least 14 calendar days before making the application

Timeframes for assessing an application

1122 The regulatory authority must decide whether to grant an application for voluntary suspension of provider approval within 30 calendar days after the application is made

C


Calculating time







1126 The regulatory authority can only exercise a power to suspend a provider approval after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the provider approval Failure to consult other regulatory authorities does not affect the validity of the regulatory authorityrsquos exercise of power





1128 If the regulatory authority grants an application for voluntary suspension of a provider approval it may agree the date the suspension takes effect with the approved provider


1129 The regulatory authority must give written notice of its decision and if granted advise the period of suspension

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After approval has been suspended


1130 The effect of suspension is that all service approvals held by the approved provider are suspended for the same period unless the service approval is transferred or a person is approved to manage or control an education and care service in the event the approved provider dies or becomes incapacitated

1131 The suspension of the provider approval remains in force for the period specified in the written notice of decision

1132 The approved provider may apply to have the suspension revoked before the end of the suspension period If the regulatory authority grants the application to revoke the suspension they may agree to a date for the suspension to cease with the approved provider

Surrender of provider approval

What is surrender of provider approval

1133 The surrender of provider approval means giving up a provider approval Once surrendered the person is not taken to be an approved provider and must not operate an education and care service


1134 Generally if an approved provider changes its legal status for example where a sole trader becomes a body corporate they will need to apply for a new provider approval

How does the approved provider surrender approval


1134 An approved provider can surrender their provider approval by giving written notice to the regulatory authority

C


What information needs to be included in the written notice


1136 The notice to the regulatory authority must specify a date on which the surrender is intended to take effect The date of effect must be after the notice is given to the regulatory authority and at least 14 calendar days after parents of children enrolled at any services are notified





1138 An approved provider must notify parents of children enrolled at any of their services of their intention to surrender their provider approval Parents must be notified at least 14 calendar days before the date of surrender is to take effect

After surrender of provider approval


1139 If a provider approval is surrendered the provider approval and any service approval held by the provider are cancelled on the date specified in the notice

C


Exercise of powers by another regulatory authority


1140 The regulatory authority of another jurisdiction may exercise all its powers and functions in relation to a provider approval if the approved provider operates an education and care service in its jurisdiction

1141 The regulatory authority may only exercise a power to amend suspend or cancel a provider approval after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the provider approval Failure to consult other regulatory authorities does not affect the validity of an exercise of power by a regulatory authority

1142 Cancellation or suspension of a provider approval in another participating jurisdiction has effect across all jurisdictions



Offence related to provider approval


1144 It is an offence under the National Law to provide an education and care service without service approval

C


Additional information

State and territory working with children screening units

Australian Capital Territory

ACT Government ndash Office for Regulatory Services

orsactgovau

New South Wales NSW Office of Communities ndash Commission for Children and Young People

checkkidsnswgovau

Northern Territory

NT Government workingwithchildrenntgovau

Queensland Queensland Commission for Children and Young People and Child Guardian

ccypcgqldgovau

South Australia Screening Unit of the Department for Communities and Social Inclusion (DCSI) South Australia

dcsisagovau

Tasmania Tasmania Department of Education educationtasgovau

Victoria Department of Justice Victoria justicevicgovau

Western Australia Working With Children Screening Unit (WWCSU) Department for Child Protection WA

checkwwcwagovaucheckwwc

C

52 Applications and Approvals Service approval Last updated April 2017

2 Service approval


21 A person must have service approval to operate an education and care service under the Education and Care Services National Law and Regulations Regulatory authorities are responsible for assessing and determining applications for service approval This section sets out how applications are made and processed



22 An education and care service is any service providing or intended to provide education and care on a regular basis to children under 13 years of age

23 Services that are excluded by the National Law and National Regulations and are not in scope of the National Quality Framework are listed below

Services out of scope of the National Quality Framework

A school providing full-time education to children including children in the year before Grade 1 but not including a preschool program delivered in a school or a preschool that is registered as a school (as these are within scope)

A preschool program delivered in a school if the program is delivered in a class or classes where a full-time education program is also being delivered to school children and the program is delivered to fewer than six children in the school (a composite class)

A personal arrangement

A service principally conducted to provide instruction in a particular activity (for example a language class or ballet class)

A service providing education and care to patients in a hospital or patients of a medical or therapeutic care service

Care provided under a child protection law of a participating jurisdiction

Disability services defined under state or territory law and early childhood intervention services for children with additional needs

Education and care in a childrsquos home

Except in WA education and care in a residence other than as part of a family day care service

Primarily ad hoc or casual education and care (commonly referred to as occasional care)

Education and care provided by a hotel or resort to children of short-term guests at the hotel or resort

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Last updated April 2017 Service approval Applications and Approvals 53


Education and care that is provided on an ad hoc basis to children of a guest visitor or patron where the person who is responsible for the children is readily available at all times

Education and care where it is primarily provided or shared by parents or family members

Education and care provided at a secondary school to a child of a student attending the school where the parent retains responsibility for the child

Mobile services

Services that provide education and care for no more than four weeks per calendar year during school holidays

Transition to school programs provided by a school to orient children to that school

Budget based funded services other than where they receive Child Care Benefit

Playschools licensed in the Australian Capital Territory

Stand-alone services in Queensland

Playcentres in South Australia

Services licensed as Centre-based Class 4 or 5 services under the Child Care Act 2001 in Tasmania

Licensed limited hours or short-term services in Queensland or Victoria

Government-funded services under the Children and Community Services Act 2004 of Western Australia


24 lsquoEducation and care servicesrsquo includes services which also care for children over 13 years of age

25 A transport service for children is not an education and care service for the purposes of the National Law

26 Where an education and care service offers transport between childrenrsquos homes and the service premises the approved provider should have regard to regulation 99 which requires that children leave the premises in accordance with the written authorisation of a childrsquos parents or their nominee

27 Approved providers should also consider other laws and rules that might apply to transport services in their jurisdiction such as road safety driver training and any working with children check requirements

C


Application for service approval

What is an application for service approval

28 This is the process to gain approval to operate an education and care service under the National Law and Regulations

Who can apply for service approval


29 An approved provider may apply to the regulatory authority for a service approval provided they operate (or will operate) the service and are responsible for the management of staff members and the nominated supervisor for the service

210 A person who has applied for a provider approval may also apply for a service approval However the regulatory authority can only grant the service approval if the provider approval is granted



How does an approved provider apply


212 An application for service approval must be made in writing to the regulatory authority where the service is to be located and must include payment of the prescribed fee (see Fees)



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Applications for service approval including an associated childrenrsquos service


214 Where an approved provider proposes to operate a service covered by the National Law on the same premises where they propose to operate a service regulated under a state or territory law (an associated childrenrsquos service) they may seek service approval under the National Law for both services


215 An associated childrenrsquos service means a childrenrsquos service that is operated or intended to be operated by the approved provider at the same place as the approved education and care service For example an approved provider may deliver a long day care service (approved education and care service) and an occasional care service (associated childrenrsquos service) from the same premises

216 An approved provider may not need separate approvals under different laws if they wish to operate an associated childrenrsquos service on the same premises as an education and care service but must operate the associated childrenrsquos service in compliance with the relevant state or territory childrenrsquos services law See the Glossary for relevant state and territory childrenrsquos services laws

What information needs to be included with an application

217 The National Regulations specify information that must be included in an application for service approval (see Application checklists ndash Tables VIII IX)


218 If the address of the proposed service is not in the regulatory authorityrsquos jurisdiction the regulatory authority should contact the applicant to confirm they have applied in the right jurisdiction and to redirect the applicant to the correct regulatory authority if necessary

C










Consent to be the nominated supervisor


223 The application must include written consent from a person who has a supervisor certificate (either as an individual or as a person in a prescribed class) to be the nominated supervisor for the service The approved provider can be the nominated supervisor for the service if they hold a supervisor certificate If they have applied for a supervisor certificate but their application for service approval has not yet been determined they may designate themselves as the nominated supervisor for the service but the regulatory authority can only grant the service approval if the supervisor certificate is granted



224 The regulatory authority must determine an application for service approval within 90 calendar days after it receives the application This period may be extended with the applicantrsquos agreement

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225 If the regulatory authority asks the applicant for more information to assess their application the time taken for information to be provided is not included in the timeframe for determining the application

226 If the regulatory authority does not make a decision on the application within the required timeframe (including any extension) it is taken to be refused


227 The regulatory authority must give the applicant written notice of its decision including the reasons within seven calendar days after it makes the decision


228 There is no limit on how long the timeframe for determining an application for service approval can be extended provided the applicant agrees

Calculating time




231 When calculating the timeframe the day the application is received is included If the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 90-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the ninetieth day


Conducting enquiries and investigations


232 When considering an application for service approval the regulatory authority may undertake inquiries and investigations including in relation to the previous licensing accreditation or registration of the service under a former education and care service childrenrsquos services or education law

233 The regulatory authority may inspect the policies and procedures for the service and may inspect the service premises It may enter the service premises at any reasonable time

C



234 Inspection of a proposed service premises should be part of the decision-making process wherever possible for an application for a centre-based service approval

235 Where an inspection by an authorised officer is not possible the regulatory authority may use other strategies such as inspection of certified plans or topographical evidence video or photographic evidence The regulatory authority may also delegate a visit by a third party as permitted under section 262 (see Monitoring Compliance and Enforcement)

Matters that the regulatory authority must consider



236 The regulatory authority must consider the below matters when determining an application for service approval

Matters the regulatory authority must consider for a service approval

The National Quality Framework (NQF)

Except for a family day care residence the suitability of the service premises and its site and location for operating an education and care service

The adequacy of the policies and procedures for the service (see Conducting enquiries and investigations above)

Whether the applicant is an approved provider and

Whether the nominated supervisor for the service holds a supervisor certificate and has given their written consent

Any suspension of or conditions on the applicantrsquos provider approval

The NQF means the national education and care services quality framework

237 The regulatory authority must also consider any other matters that are relevant to the application

238 Other matters the regulatory authority may consider include

bull whether the applicantrsquos financial capacity management ability or any other relevant matters affect their capacity to operate the service and

bull the applicantrsquos history of compliance with the National Law including in relation to any other service they operate

239 For applications that include an associated childrenrsquos service the regulatory authority must consider the criteria for grant of a childrenrsquos service licence under the relevant childrenrsquos services law not including the criteria for assessing the applicantrsquos fitness and propriety

C



240 The regulatory authority may check the status (ie approved suspended cancelled) of services in other jurisdictions associated with the approved provider for information that may be relevant to their ability to operate a service in accordance with the National Law

241 The regulatory authority may also request proposed budgets for the service including wages resources utility costs insurances maintenance of service and professional development However it is not the regulatory authorityrsquos responsibility to provide advice to applicants about operational budgets for a service

242 To determine the adequacy of policies and procedures for the service the regulatory authority may request the approved provider submit a sample of their policies for review If there are concerns about the adequacy of the policies the regulatory authority may seek to review further policies and procedures for the service

243 Regulatory authorities are not responsible for advising approved providers about the content of their policies and procedures However where the regulatory authority is concerned that a service policy is inadequate it may direct the provider to some best practice resources such as Staying Healthy Preventing infectious diseases in early childhood education and care services published by the National Health and Medical Research Council (wwwnhmrcgovau) and publications by organisations such as the Cancer Council (wwwcancerorgau) KidSafe (wwwkidsafecomau) Sids and Kids (wwwsidsandkidsorg) or a child protection agency (see Additional information)

Requiring more information to make decision on application


244 The regulatory authority may ask the applicant for any further information reasonably required to assess their application


245 The regulatory authority may decide it needs more information to determine an application where for example it is not satisfied the proposed education and care service premises will be suitable because its design makes supervision difficult In this case regulatory authority may ask to for more information from the approved provider about how they intend to mitigate design issues and ensure adequate supervision at all times

Conditions on service approval


C



National Regulations regulations 29ndash32

247 A service approval is granted subject to conditions that the approved provider must comply with set out in the table below

Conditions on a service approval

Condition

Centre-based service

Family day care service

The service is operated in a way that ensures the safety health and wellbeing of children educated and cared for by the service and meets childrenrsquos educational and developmental needs

3 3

The service commences ongoing operation within six months after the approval is granted unless the regulatory authority agrees to an extension

3 3

The approved provider has

bull a current insurance policy providing adequate cover for the service against public liability with a minimum cover of $10 million or

bull an insurance policy or indemnity against public liability provided for the service by a state or territory government

3 3

Sufficient persons are appointed as family day care coordinators to monitor and support the family day care educators engaged or registered with the service

3

Each family day care educator is adequately monitored and supported by a family day care coordinator

3

Each family day care educator holds public liability insurance with a minimum cover of $10 million

3

The servicersquos quality improvement plan is kept at the service premises (the principal office for family day care services)

3 3

The servicersquos quality improvement plan is made available for inspection by the regulatory authority or an authorised officer

3 3

The servicersquos quality improvement plan is made available on request to parents of children enrolled or seeking enrolment at the service

3 3

The service continues to be entitled to occupy the education and care service premises

3

C


248 The regulatory authority may impose any other conditions it deems appropriate on a service approval

249 A condition of service approval does not apply to an associated childrenrsquos service unless the regulatory authority specifies otherwise The regulatory authority may apply a condition of service approval solely to an associated childrenrsquos service only if it has first consulted with the relevant childrenrsquos services regulator

250 Conditions on service approval may be imposed at the time the service approval is granted or at a later time (see Amendment of service approval)


251 Where the regulatory authority has concerns about an approved providerrsquos ability or willingness to operate a service in accordance with the National Law and Regulations it may decide to put one or more conditions on the service approval For example if the regulatory authority has concerns about a providerrsquos ability to provide a child safe environment for infants at the service the regulatory authority may impose a condition preventing the approved provider from providing education and care for children under 12 months of age The regulatory authority may also impose a condition limiting the number of family day care educators that may be engaged by a service if it has concerns about the providerrsquos ability to manage the service in accordance with the National Law and Regulations See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a service approval

252 Occasionally an approved provider will engage a management company to help them operate their service Management companies vary in the range of services they offer from payroll bookkeeping and short notice staffing solutions to a wide range of day to day management services

253 The approved provider retains legal responsibility under the National Law for the service even if it engages a management company Approved providers cannot delegate or outsource their legal responsibilities regardless of what contractual arrangement the approved provider has with the management company

254 The approved provider may only apply for service approval if it (and not the management company) is or will be the operator of the service and is or will be responsible for the management of the staff members and nominated supervisor (section 43)


255 Regulatory authorities can seek further information from the approved provider to determine a service approval application (section 51) For example the regulatory authority may request details of the management companyrsquos name structure and experience in operating approved education and care services

Management companies

C


256 Where a management company is or will be involved in running the service it is good practice for the regulatory authority to make enquiries with the approved provider by interview or otherwise to satisfy itself of the following matters

bull that the approved provider will be responsible for management of staff members and the nominated supervisor

bull that the approved provider is fully aware of their responsibilities under the National Law and understands that they cannot lsquocontract outrsquo those obligations

bull that the approved provider has a contingency plan in place should the management company fail to meet expectations or the contract is terminated and

bull that services provided by the management company which directly impact the day to day operating of the education and care service are provided in a way that is compliant with the National Law and does not pose a risk to children or the ability of the provider to meet its obligations under the National Law

257 Where the regulatory authority considers it appropriate it may impose a condition on service approval (regulation 51(5)) For example a condition on a service approval could require the approved provider to notify the regulatory authority of a change in the management company a significant change in the scope of services supplied by the management company or that the approved provider is to ensure that officers engaged through the management company are fit and proper persons

258 Similarly where the regulatory authority becomes aware of a management company after granting a service approval and where appropriate the regulatory authority may amend the approval to impose a condition (section 55(2))


Granting service approval


259 If the regulatory authority grants a service approval it must provide a copy to the approved provider including the information below

Information on a service approval

The name of the service

The location of the service for centre-based services or the location of the principal office and any approved family day care venues

Any conditions on the service approval

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The date service approval was granted


Except for family day care services the maximum number of children who can be educated and cared by the service at any one time and

Details of any service waiver or temporary waiver that applies to the service


260 The approved provider of a centre-based service is responsible for ensuring the maximum number of children who may be educated and cared for at any one time is not exceeded See Operational Requirements ndash Excursions and Educator-to-child ratios


261 The National Law does not specify how much time the regulatory authority has to give the approved provider a copy of the service approval This means it must be done as soon as possible after deciding to grant the approval


262 If an application for service approval includes an associated childrenrsquos service that does not meet state or territory-based licensing requirements for childrenrsquos services the regulatory authority may grant a service approval only for the education and care service The regulatory authority cannot grant a service approval that is only for an associated childrenrsquos service

Refusing to grant service approval



263 The regulatory authority may refuse to grant a service approval if the regulatory authority is not satisfied that the grounds for granting service approval are met The regulatory authority cannot grant a service approval if the applicant does not have provider approval

264 If the regulatory authority is satisfied the operation of the service would constitute an unacceptable risk to the safety health or wellbeing of children who would be educated or cared for by the service it must refuse to grant the service approval

265 The regulatory authority may refuse to grant a service approval if it is not satisfied the applicant can operate the service in a way that meets the requirements of the National Law and Regulations including the National Quality Standard

266 For applications for centre-based service approval the regulatory authority may refuse to grant the service approval if it is not satisfied the applicant is entitled to occupy the proposed service premises

C



267 The regulatory authority may refuse to grant a service approval if for example it is not satisfied the provider can maintain the premises or equipment or provide staff as required by the National Law This may be due to the providerrsquos financial capacity management ability or another reason

268 In relation to an application for a family day care service approval the regulatory authority may refuse to grant the service approval if it is not satisfied the applicant is capable of assessing family day care venues or residences or monitoring family day care educators

269 In determining capacity to operate the proposed family day care service in a way that meets the requirements of the Law the Regulations or National Quality Standard there is a range of approaches that regulatory authorities may use including

bull assessing the adequacy of an applicantrsquos policies and procedures

bull holding information sessions for providers who wish to operate family day care services

bull conducting interviews with prospective family day care service providers to determine their understanding of policies the National Quality Standard and other requirements of the National Law and Regulations The questions asked should be questions that a person operating a service should reasonably be able to understand and answer

270 If the regulatory authority is not satisfied of the applicantrsquos capacity to operate a family day care service it may refuse to grant the service approval or grant approval subject to conditions (see Conditions on service approval)

271 All decision making should be carried out in accordance with the principles of administrative decision-making (see Good Regulatory Practice)


272 The regulatory authority has 90 calendar days to make a decision on an application for service approval and must give the applicant written notice of its decision and the supporting reasons within seven calendar days of making the decision (see Timeframe for assessing an application above)

Appeals


273 A decision to refuse to grant a service approval or to grant service approval subject to conditions is a reviewable decision under the National Law Refer to Reviews

C



Publication on the register of approved services



274 Regulatory authorities must keep a register of approved education and care services operating in their jurisdiction including the information set out below

Information on the register of approved services


The name of the approved provider for the service

Except in the case of a family day care service the address of each education and care service premises

In the case of an approved family day care service the address of the principal office of the service

The rating levels for each service

The contact details for the service

In relation to a centre-based service the hours of operation of the service

Any conditions to which the service approval is subject

In relation to a centre-based service the approved number of places

The date the approved provider was granted service approval

The service approval number and

The provider approval number

C


275 The regulatory authority and ACECQA may publish the name of the service the address of the education and care service (except for family day care services) and in the case of a family day care service the address of the principal office of the service the rating levels of the service

276 This published information must not identify or lead to the identification of an individual other than

bull an approved provider

bull a certified supervisor or

bull a person who is being prosecuted for an offence under the National Law


277 The address of the principal office of a family day care service should not be published if it is at a private residence In such cases the register will not include an address for the service ACECQA has agreed it will publish the register of approved services and regulatory authorities have agreed they will meet their obligation to publish by linking to the ACECQA website at wwwacecqagovau

Duration and effect of service approval

278 A service approval authorises the approved provider to operate the education and care service

279 A service approval is ongoing unless cancelled or suspended by the regulatory authority or surrendered or voluntarily suspended by the approved provider

Amending service approval on application


280 An approved provider may apply to the regulatory authority for an amendment of a service approval

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281 An application must be made in writing and must include payment of the prescribed fee (see Fees) An application for amendment of a service approval must include

bull the name of the service

bull the service approval number

bull the name and contact details for the contact person for the application and

bull the details of the amendment applied for and sufficient information or documentation to support the application

282 The regulatory authority may ask the approved provider for any further information reasonably required to assess the application



284 Regulatory authorities do not require an application to amend service approval to change the location of a family day care principal office Regulatory authorities should update the service approval when they receive a notification (see Operational Requirements ndash Leadership and service management and Applications and Approvals ndash Amendment of service approval without application)




C






288 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies toall jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)


289 The regulatory authority must decide whether to amend the service approval within 60 calendar days after having received the application

Calculating time




292 When calculating the timeframe the day the application is received is included If the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 60-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the sixtieth day

Considering the application


293 The National Law and Regulations do not prescribe the type or level of information needed to assess an application for amendment of service approval other than requiring an application to include lsquosufficient informationrsquo lsquoSufficient informationrsquo means enough information for the regulatory authority to make a decision on the application

C


Determining the application

294 The regulatory authority must decide to amend the service approval in the requested way or with the applicantrsquos written agreement in another way The regulatory authority may also decide to refuse to amend the service approval

295 Amendment may include but is not limited to varying a condition of the service approval or imposing a new condition

Appeals


296 A decision to refuse to amend a service approval is a reviewable decision under the National Law Refer to Reviews



297 If the regulatory authority amends the service approval it must give a copy to the approved provider

Amendment of service approval without application


298 The regulatory authority may amend a service approval at any time without an application from the approved provider Amendment of a service approval may include but is not limited to varying a condition or imposing a new condition on a service approval


299 Regulatory authorities should amend a service approval to reflect a change to the location of the principal office of a family day care service See Operational Requirements ndash Leadership and service management for information about providersrsquo obligations to notify the regulatory authority

C



2100 The regulatory authority must give the approved provider written notice of the amendment Amendment takes effect 14 calendar days after the regulatory authority notifies the approved provider or at the end of another period specified by the regulatory authority

2101 At the request of a relevant childrenrsquos services regulator the regulatory authority must amend a service approval that relates to an associated childrenrsquos service provided the request accords with the relevant childrenrsquos services law



Appeals


2103 A decision to amend a service approval is a reviewable decision under the National Law Refer to Reviews

Offences related to service approval

Operating a service without service approval


2104 It is an offence under the National Law for a person to provide an education and care service unless they are an approved provider of the service and the service is an approved education and care service A family day care educator providing education and care as part of an approved service is not committing an offence under this section

Advertising a service without service approval


2105 It is an offence for a person to publish (or cause to be published) an advertisement for an education and care service unless the service is approved or an application for service approval has been submitted to the regulatory authority but not yet decided

C



2106 A family day care educator can advertise if they make clear they are part of an approved service Any advertisement should indicate which approved service they are promoting and include contact details for that service

2107 Activities that are part of a planning process such as gauging interest in the feasibility of a service do not constitute advertising a non-approved service

Transfer of service approval


2108 An approved provider (the transferring approved provider) may transfer a service approval to another approved provider (the receiving approved provider)


2109 A transfer of service approval is void if it is made

bull without the regulatory authorityrsquos consent

bull in a way that does not accord with any conditions imposed on the regulatory authorityrsquos consent or

bull to a person other than the receiving approved provider who notified the regulatory authority of the transfer


2110 A cancelled service approval cannot be transferred A service approval that is going to be cancelled may be able to be transferred See Monitoring Compliance and Enforcement

Notification of decision to transfer



2111 The transferring and receiving approved providers must jointly notify the regulatory authority of the transfer at least 42 calendar days before it is intended to take effect The regulatory authority may agree to a shorter notification period if it considers there are exceptional circumstances

2112 The notice must be in writing include payment of the prescribed fee (see Fees) and the prescribed information (see Application checklists ndash Table X)

C




2114 Regulatory authorities may agree lsquoexceptional circumstancesrsquo exist to justify a shorter notification period of less than 42 calendar days where for example the approved provider is ill and no longer able to operate the service and it is in the best interests of the children at the service to ensure continuity by transferring the service to a new approved provider

Regulatory authority consent


2115 A service approval can only be transferred with the regulatory authorityrsquos consent The regulatory authority is taken to have consented if it is notified of the transfer and 28 calendar days before the transfer is to take effect has not advised the approved providers that it intends to intervene

Decision to intervene in transfer of service approval



2116 The regulatory authority may intervene in a transfer of a service approval if it is concerned about any matter it considers relevant This includes but is not limited to

bull whether the receiving approved provider is capable of operating the education and care service considering their financial capacity management ability and any other matter the regulatory authority thinks relevant and

bull the receiving approved providerrsquos history of compliance with the National Law and Regulations including in relation to any other education and care service they operate

C


2117 If the regulatory authority decides to intervene in a transfer of service approval it must notify both the transferring and receiving approved providers in writing at least 28 calendar days before the transfer is intended to take effect The notice must include the information set out below

Information that must be included in notification to intervene in transfer of service approval

The name of the education and care service

The service approval number

The transferring approved providerrsquos name

The receiving approved providerrsquos name

The matters about which the regulatory authority is concerned


2118 If the regulatory authority intervenes a transfer cannot proceed unless the regulatory authority gives its written consent

2119 If the regulatory authority intervenes it may request further information from the transferring or receiving approved providers to inform its decision to consent or refuse to consent to the transfer The regulatory authority may also make inquiries about the receiving approved provider

Decision following intervention in transfer


2120 The regulatory authority may decide whether to consent or refuse to consent to the transfer It may impose conditions on its consent to transfer including specifying the date transfer will take effect The service approval must be transferred in accordance with any conditions the regulatory authority imposes on its consent

2121 If the regulatory authority intervenes in a transfer of service approval it must notify the transferring and receiving approved providers of its decision at least seven calendar days before the transfer is intended to take effect

2122 The notice must specify the regulatory authorityrsquos decision according to the options set out below

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Transfer of service approval ndash notice of outcome

Consent to the transfer including the date on which the transfer will take effect and any conditions on the consent to transfer (notice may also include any new conditions placed on the receiving providerrsquos provider approval or service approval) or

Refusal to consent to the transfer (service cannot be transferred) including the reasons for refusal or

Suspension of consideration of the transfer until more information is received and that the transfer may not proceed until the regulatory authority gives its written consent or

Decision not yet made on the transfer but will decide within 28 calendar days and that the transfer may not proceed until the regulatory authority gives its written consent

Notification following transfer of service approval


2123 The transferring and receiving approved providers must notify the regulatory authority in writing within two calendar days after the transfer takes effect specifying the date of the transfer Transfer includes transferral of service approval for any associated childrenrsquos service

2124 On receiving notice that the service has been transferred the regulatory authority must amend the service approval and give the receiving approved provider an updated copy The amendment to the service approval is taken to have effect on the date of transfer


2125 The receiving approved provider must notify parents of children enrolled at the service of the transfer at least two calendar days before transfer takes effect

Transfer of suspended service approval


2126 The regulatory authority may consent to the transfer of a suspended service approval In this case the suspension ceases when the transfer takes effect unless the regulatory authority has imposed a condition on the transfer stating otherwise

C


Application to transfer service approval when provider approval is cancelled


2127 An approved provider whose provider approval is to be cancelled may apply to the regulatory authority for consent to transfer a service approval (see Monitoring Compliance and Enforcement)

2128 Application for consent to transfer must be made within 14 calendar days after the date of the decision to cancel the provider approval In this case the service approval is suspended until the regulatory authority has determined the application for consent to transfer

2129 If the regulatory authority consents to the transfer suspension of the service approval ceases on the date transfer takes effect unless conditions of transfer specify a later date

2130 If the regulatory authority decides not to consent to the transfer the service approval is cancelled from the date of its decision

Application to transfer cancelled service approval


2131 An approved provider may apply to the regulatory authority for consent to transfer a service approval that is to be cancelled unless the cancellation relates only to an associated childrenrsquos service

2132 The application must be made within 14 calendar days after the regulatory authority decides to cancel the service approval

2133 If the approved provider applies for consent to transfer the service approval is suspended rather than cancelled until the regulatory authority determines the application

2134 If the regulatory authority consents to the transfer its decision to cancel the service approval is revoked The suspension of the service approval ceases when the transfer takes effect unless the regulatory authority imposes a condition on their consent to transfer specifying a later date

2135 If the regulatory authority refuses to consent to the transfer the service approval is cancelled effective from the date of its decision


2136 The National Law does not prescribe how an approved provider whose provider approval is to be cancelled must apply for consent to transfer service approval To ensure it has all the necessary information to decide whether to consent to the transfer the regulatory authority can request an application be made in the same form as an application to transfer service approval in ordinary circumstances (See Notification of decision to transfer above)

C


Voluntary suspension of service approval

What is voluntary suspension of service approval


2137 The voluntary suspension of service approval allows an approved provider to seek the regulatory authorityrsquos consent to put their service approval lsquoon holdrsquo for up to 12 months During that time the person must not operate the education and care service


2138 An approved provider may apply for voluntary suspension of a service approval if for example they no longer wish to operate the service but have not negotiated transfer of the service to another approved provider or if they need to temporarily relocate a service to different premises during refurbishment

2139 See Monitoring Compliance and Enforcement for information on non-voluntary suspension of a service approval



2140 An application for voluntary suspension must be in writing and include payment of the prescribed fee




2141 The National Regulations specify information that must be included in an application to suspend service approval (see Application checklists ndash Table XI)

C













2147 An approved provider must notify parents of children enrolled at their services of their intention to apply for voluntary suspension of service approval Notification must be given at least 14 calendar days before making the application

C




Calculating time




2151 When calculating the timeframe the day the application is received is included lsquoDayrsquo means calendar day However if the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 90-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the ninetieth day



2152 The regulatory authority should consider whether the suspension is reasonable in the circumstances


2153 The regulatory authority can only exercise a power to suspend a service approval of a family day care service after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the service approval Failure to consult other regulatory authorities does not affect the validity of the regulatory authorityrsquos exercise of power


2154 Regulatory authorities should wherever possible consult one another about actions that affect family day care services operating across jurisdictions Failure to consult other regulatory authorities may have broader implications for example where a compliance issue is escalated to prosecution

C




2155 If the regulatory authority grants an application for voluntary suspension of service approval it may agree to the date the suspension takes effect with the approved provider


2156 The suspension of the service approval remains in force for the period specified in the written notice of decision The regulatory authority can lift a period of voluntary suspension of a service approval at the request of the approved provider

Surrender of service approval

What is surrender of service approval

2157 The surrender of service approval means giving up service approval Once surrendered the person is not taken to have service approval and cannot operate the education and care service



2158 An approved provider can surrender their service approval by giving written notice to the regulatory authority





C



2161 An approved provider must notify parents of children enrolled at the service of their intention to surrender the servicersquos approval Parents must be notified at least 14 calendar days before the date of surrender is to take effect

Exercise of powers by another regulatory authority ndash family day care services


2162 A regulatory authority in another state or territory may exercise all its powers and functions in relation to a family day care service approval for a service that operates in its jurisdiction except in relation to the transfer of a service approval (including transfer of a suspended or cancelled service approval)

2163 A regulatory authority may only exercise its power to amend suspend or cancel a family day care service approval after consulting the regulatory authority of each participating jurisdiction where the service operates This requirement also applies to the regulatory authority that granted the service approval

2164 Failure to consult another regulatory authority does not affect the validity of the exercise of a regulatory authorityrsquos power

2165 A cancellation or suspension of a service approval for a family day care service in another jurisdiction has effect in the jurisdiction where the service approval was granted



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Last updated April 2017 Other applications Applications and Approvals 81

3 Other applications

Application to use indoor space as outdoor space


31 The approved provider of a centre-based service or a family day care venue which educates and cares for children over preschool age may apply to the regulatory authority to include an area of unencumbered indoor space in calculating the outdoor space at the service Unencumbered indoor space cannot be counted towards outdoor space if it is being counted towards calculating the indoor space

32 Approval (if granted) must be in writing


33 An application may be made with the initial application for service approval or at a later time Regulatory authorities will need to consider applications on a case-by-case basis

34 When making a decision on an application regulatory authorities need to balance the objectives of the legislation to ensure the safety health and wellbeing of children and provide educational and developmental outcomes for children attending education and care services with the interests of providers to offer services and for families to have access to those services

35 Regulatory authorities may refer to the following factors to assist them in determining whether to approve an application

NOTE These factors are not criteria that must be satisfied for an application to be approved Regulatory authorities must consider each application on its merits

Number and ages of children and the time spent at the service

36 Regulatory authorities should consider the ages of the children at the service and what proportion of the children are over preschool age A provider can only be approved to use indoor space in calculating outdoor space when children over preschool age are being educated and cared for at the service

37 Where a large proportion of the children at the service are over preschool age it is more likely to be appropriate to approve the use of more indoor space in calculating the amount of outdoor space at the service

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82 Applications and Approvals Other applications Last updated April 2017

38 Regulatory authorities should also look at the amount of time children spend at the service It is more likely to be appropriate for indoor space to be used in calculating outdoor space at an outside school hours care service where children are only at the service for a couple of hours each morning andor afternoon than at a vacation care service where children attend from 8am to 5pm each day

Physical elements of the space

39 Regulatory authorities should consider how the indoor space can be used For example can the indoor space be safely used for activities which would ordinarily be undertaken outside such throwing a ball skipping or running To inform their view regulatory authorities may look at flooring whether any glass areas are or can be protected and whether the space is sufficiently lit and ventilated for physical activity

310 Where the space is intended to be used for these types of activities such as gymnasiums or halls or where they can be safely used for these types of activities they may be suitable to be included in calculating outdoor space

Proportion of indoor space to be included in calculating outdoor space

311 Consideration should be given to the proportion of indoor space which will be included in calculating outdoor space The greater the proportion of indoor space that will be included in calculating outdoor space the more important it will be for the regulatory authority to be satisfied that the space can be used for activities which would typically be undertaken outside

If an application is refused

312 If an application is refused the approved provider may apply for a service or temporary waiver See Waivers for more information

Application to use a verandah as indoor space


313 An approved provider of a centre-based service or a family day care venue must ensure the service premises has at least 325 square meters of unencumbered indoor space for each child educated and cared for by the service

314 The area of a verandah may be included in calculating the area of indoor space only with the written approval of the regulatory authority

315 A verandah that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space

C



316 An approved provider of a centre-based service may apply to the regulatory authority for approval for a verandah to be included as indoor space The application may be made with the initial application for service approval or at a later time

317 Verandahs must be approved by the regulatory authority to be included as indoor space as not all verandahs will be appropriate for indoor play activities on an ongoing basis Regulatory authorities will need to determine applications on a case-by-case basis

318 In some climates and in some buildings verandah space may be a preferable space for children to carry out indoor play activities Regulatory authorities should balance the health safety and wellbeing of children with the intent of the legislation to allow suitable verandahs to be included in indoor space calculations

319 Approval in Queensland is subject to evidence from a building practitioner which demonstrates that the verandah meets the requirements under the relevant building code to be classed as indoor space A building practitioner may impose requirements on an approved provider to enable such evidence to be provided (such as requiring the installation of waterproof blinds) and to ensure the space can be considered lsquoindoorsrsquo

320 The Early Childhood Centre and School Age Care Facilities Code restricts the Tasmanian Regulatory Authority from approving verandahs as indoor space due to the climate

321 All other regulatory authorities may consider the following factors in approving a verandah as indoor space

bull the square metres of usable and unencumbered space taking into account the physical elements of the space such as adequate flooring roofing and the shape of the space and

bull whether there are significant periods of the year in which the space will be unsuitable taking into account year round weather conditions community expectations of suitability and measures available to manage weather conditions such as air conditioning heating and weatherproofing



322 Regulatory authorities should consider whether the space is appropriate having overall regard to the wellbeing of the children To do this they may look at the physical elements of the space such as flooring and roofing and protection from the weather

323 Other considerations should include whether the space is unencumbered and whether the shape and position of the verandah affect usability

C


Usability of the verandah

324 Whether a verandah is suitable for indoor play activity will depend on the climate For instance in colder climates it may be necessary for the verandah to have temporary protection from the elements such as heaters blinds or waterproofing In warmer climates blinds and waterproofing may be unnecessary However fans shading or air-conditioning may be appropriate

325 Services in areas of extreme weather conditions may have different expectations about appropriate weather conditions and use of verandah space Assessment of the usability of a verandah may include consideration of local community expectations

326 Regulatory authorities may refuse applications if children are at risk of overcrowding because the verandah is unsuitable for indoor play activities for a significant period of time A significant period of time may be an entire season A significant period of time would not include situations where the verandah is unsuitable for a short period of time for example during a storm or on an unusually hot day

Minimum space requirements

327 There are no minimum space requirements for verandahs to be approved as indoor space

Building requirements

328 Except in Queensland regulatory authorities do not need to consider building approvals when assessing applications for verandahs to be included in indoor space calculations

Light and ventilation

329 The requirements for natural light ventilation and temperature that apply to indoor spaces do not apply to verandahs

Supervision

330 The ability to adequately supervise children is a key requirement under the legislation However it does not generally form part of the considerations for assessing whether verandahs are considered indoor or outdoor space as adequate supervision is a consideration for any part of the service premises where children are educated and cared for regardless of whether it is counted as indoor or outdoor space In cases where the approved provider alters or intends to alter the service premises as part of making a verandah suitable for use as indoor space the regulatory authority may consider whether this impacts on supervision (see Operational Requirements ndash Physical Environment for more information)

C

Last updated April 2017 Waivers Applications and Approvals 85

4 Waivers41 An approved provider may apply to a regulatory authority for a waiver of an element of

the National Quality Standard andor the National Regulations They may apply for a service waiver where an issue is likely to be ongoing or a temporary waiver where the issue can be addressed within 12 months Regulatory authorities are responsible for assessing and determining applications for waivers

Application for service waiver

What is a service waiver


42 A service waiver allows a service to be taken to comply with a specified requirement or requirements of the National Regulations and element or elements of the National Quality Standard

Who can apply for a service waiver


43 An approved provider may apply to the regulatory authority for a service waiver

C


What requirements can be the subject of a service waiver


44 Requirements that can be waived by the regulatory authority are set out in the National Regulations

Requirements that may be covered by a service waiver ndash family day care service

Reg Requirement

Physical environment

104 Fencing

107 Indoor space

108 Outdoor space

110 Ventilation and natural light

117 Glass

Staffing

124 Number of children who can be educated and cared for

127 Family day care educator qualifications

128 Family day care coordinator qualifications

Ch7 Any jurisdiction-specific transitional or saving provisions that apply in place of the regulations outlined above

See schedule 1 of the National Regulations for standards and elements in Quality Area 3 Physical Environment and Quality Area 4 Staffing Arrangements that may be waived

C


Requirements that may be covered by a service waiver ndash centre-based service

Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space


111 Administrative space

112 Nappy change facilities

113 Outdoor space ndash natural environment

114 Outdoor space ndash shade

115 Premises designed to facilitate supervision

Staffing

120 Supervision for educators under 18 years

123 Educator-to-child ratios

126 General educator qualifications

130 Early childhood teacher (fewer than 25 approved places)

131 Early childhood teacher (25 or more approved places but fewer than 25 children)

132 Early childhood teacher (25 to 59 children)


134 Early childhood teacher (more than 80 children)


See schedule 1 of the National Regulations for standards and elements in Quality Area 3 Physical Environment and Quality Area 4 Staffing Arrangements which may be waived

45 An approved provider may apply for a service waiver and a service approval at the same time

C




46 An application for a service waiver must be in writing and include payment of the prescribed fee (see Fees)

47 An approved provider can submit one application seeking a waiver from more than one regulation or element and a single fee is payable


48 An approved provider can only apply for a waiver of the prescribed regulations and elements set out in the above table If the regulatory authority receives an application for a waiver of a regulation or element that is not prescribed the application should be refused and the application fee should be refunded



49 The National Regulations specify information that must be included in an application for a service waiver (see Application checklists ndash Table XII)

410 An application for a service waiver must include details of any attempts made to comply with the requirement and the measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service



412 The National Law allows an approved provider to apply for a service waiver from staffing requirements However the regulatory authority should consider whether the issue is ongoing or whether it may be resolved within 12 months in which case a temporary waiver would be appropriate



C










417 The regulatory authority must notify the applicant of its decision within 60 calendar days after the application is made There is no provision to extend the timeframe for determining an application for a service waiver

418 If the approved provider applied for a service waiver and a service approval simultaneously the regulatory authority may notify the applicant of the outcome of both applications at the same time

Calculating time




421 When calculating the timeframe the day the application is received is included If the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 90-day timeframe the first day is the day the regulatory authority receives the application and the last day is the ninetieth day

C




422 When considering an application for a service waiver the regulatory authority may consider whether the service is able to meet the objectives of the element andor regulation by alternative means and any relevant matters disclosed in the application


423 The regulatory authority may ask the approved provider for more information or may inspect the service premises or office for the purpose of assessing the application


424 The regulatory authority would usually only approve an application for a service waiver when satisfied of the factors set out below

Factors the regulatory authority should consider when assessing a service waiver application

There is no unacceptable risk to childrenrsquos safety health or wellbeing in granting the waiver and

The issue is ongoing (ie longer than 12 months) and requires a service waiver rather than a temporary waiver and

It is genuinely not practical for the service to resolve the issue and

The service can meet the objectives by alternative means or on balance the granting of a waiver is preferred taking into account

bull the benefits to families children and communities in having the service operate

bull cost of any adjustments needed for the service to comply

bull the providerrsquos history of and approach to compliance

bull in the case of waivers from staffing requirements the availability of qualified staff

bull unusual or unforeseen circumstances such as natural disasters

bull the servicersquos quality improvement plan and

bull any attempts made by the provider to comply with the requirement(s)

C


Combining a waiver with conditions on service approval

425 The National Law allows the regulatory authority to impose any conditions it considers appropriate on a service approval but does not allow for conditions to be placed on a waiver In some instances the regulatory authority may grant a service waiver and decide to put the agreed grounds on which the waiver was approved as conditions on the service approval to help ensure the approved provider complies with the agreed grounds Failure to meet the specified conditions would constitute failure to comply with a condition of service approval In this situation the regulatory authority may consider whether it is appropriate to take compliance action

426 The regulatory authority might also decide to put a condition on the service approval at a later time if it has concerns about the providerrsquos efforts to comply with the grounds on which the waiver was granted

427 Regulatory authorities may use this approach where there is a greater risk to children in granting the waiver such as where the service would not be allowed to operate without meeting certain conditions or taking certain steps Regulatory authorities may also decide to use this approach where there are concerns about whether the approved provider will maintain their efforts to try and meet the waived requirement or follow through on any agreed actions

428 See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a service approval


Granting or refusing service waiver


429 The regulatory authority may decide to grant or refuse an application for a service waiver

430 If the regulatory authority grants a service waiver it must issue or reissue the service approval specifying the element andor the regulation to which the service waiver applies

C



431 If the regulatory authority decides it is appropriate to issue a service waiver it should make clear it is issued on the understanding that the grounds on which it was granted will continue to apply While the National Law does not allow regulatory authorities to put conditions on a service waiver there are two approaches available to ensure an approved provider takes the steps agreed to when a waiver is issued They are

bull to include a condition on service approval

bull to warn the approved provider that the waiver will be revoked if the agreed steps are not taken

432 When issuing a waiver regulatory authorities should make sure only the specific requirements that the service is unable to meet or that are met in other ways are waived

433 If the regulatory authority receives an application for a service waiver and determines that it should have been an application for a temporary waiver it can be processed as if it was an application for a temporary waiver The approved provider is not required to resubmit an application See Application for temporary waiver below

434 If the regulatory authority receives an application seeking a waiver of multiple requirements it may decide to grant a waiver in relation to some regulationselements but refuse others

After a service waiver has been granted


435 The regulatory authority must give the approved provider a copy of their service approval that lists the element andor regulation to which the waiver applies


436 Regulatory authorities should take a risk-based approach to monitoring the compliance of services with a waiver See the Monitoring Compliance and Enforcement chapter for more information about monitoring activities

437 If a service is transferred to a new provider any waivers that apply will remain in place However the regulatory authority might decide to more closely monitor the service after it is transferred to confirm the grounds on which the waiver was issued still exist

438 The National Law does not explicitly give regulatory authorities the power to publish information about waivers Regulatory authorities may however publish information about conditions on service approvals

C


Revoking a service waiver



439 A service waiver is ongoing and remains in force until revoked There is no maximum period for which a service waiver can apply

440 While a service waiver is ongoing it is not lsquopermanentrsquo as the regulatory authority may revoke a service waiver at its discretion If the regulatory authority revokes a service waiver the waiver ceases to apply

bull 60 calendar days after the regulatory authority notifies the approved provider of their decision or

bull at the end of a period determined by the regulatory authority and agreed by the approved provider

441 An approved provider may apply to the regulatory authority to have a service waiver revoked In this case the waiver ceases to apply

bull 14 calendar days after the regulatory authority notifies the approved provider that the application for revocation is approved or



442 If having decided it is to appropriate to grant a service waiver the regulatory authority later becomes aware that the grounds on which it was granted no longer apply or if a condition placed on the service approval has not been complied with it may consider revoking the waiver

443 If the regulatory authority revokes a waiver and the approved provider fails to comply with a requirement of the National Law and Regulations it may consider whether it is appropriate to take compliance action


C


Application for temporary waiver

What is a temporary waiver


445 A temporary waiver means a service is not required to comply with a specified requirement or requirements of the National Regulations and element or elements of the National Quality Standard


446 If the regulatory authority becomes aware of a service not being able to meet staffing or physical environment requirements despite attempts to comply it may inform the approved provider that they may apply for a temporary waiver if it is satisfied the approved provider has reasonable justification for not being able to comply

Who can apply for a temporary waiver


447 An approved provider may apply to the regulatory authority for a temporary waiver

C


What requirements can be the subject of an application for a temporary waiver


448 Requirements that can be temporarily waived by the regulatory authority are set out in the National Regulations

Requirements that may be covered by a temporary waiver ndash family day care service

Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space


117 Glass

Staffing




136 First aid qualifications



C


Requirements that may be covered by a temporary waiver ndash centre-based services

Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space







Staffing












C




449 An application for a temporary waiver must be in writing and include payment of the prescribed fee (see Fees)







452 The National Regulations specify information that must be included in an application for a temporary waiver (see Application checklists ndash Table XIII)



454 The National Regulations do not prescribe the type of evidence that must be included to support a waiver application Therefore the regulatory authority has discretion to accept a range of evidence

C












459 The regulatory authority must notify the applicant of their decision within 60 calendar days after the application is made There is no provision to extend the timeframe for determining an application for a service waiver

Calculating time





C




463 When deciding whether to grant a temporary waiver the regulatory authority must consider whether any special circumstances disclosed in the application reasonably justify the grant of a temporary waiver


464 The regulatory authority may ask the approved provider for more information or inspect the service premises or office for the purposes of determining the application


465 The regulatory authority would usually only approve an application for a temporary waiver when it is satisfied of the factors set out below

Factors the regulatory authority should consider when assessing a temporary waiver application


It is practicable for the service to make adjustments to meet the requirements of the legislation and these adjustments canshould be made within a 12-month timeframe and

The service has made genuine attempts or is taking steps or will take steps to comply with the elements and regulations and

There are special circumstances that reasonably justify the grant of a waiver including that the service can meet the objectives by alternative means or with consideration to


bull cost of adjustments needed for the service to comply




bull the servicersquos quality improvement plan

bull attempts made by the provider to comply

C


466 An example of lsquospecial circumstancesrsquo may include where a servicersquos premises are damaged by a natural disaster

467 When assessing waiver applications for a qualification requirement examples of a providerrsquos attempts to comply might include evidence listed below

Examples of evidence in a waiver application

Advertising for qualified staff in mainstream publications including websites

Transcripts demonstrating an educator is studying towards the required qualification or evidence of any other relevant qualifications

An educatorrsquos application to ACECQA to have an overseas qualification assessed for equivalence with an approved qualification

Contacting agencies that offer qualified relief staff

Mentoring between qualified and unqualified educators

Establishing links with other services or local training organisations

468 When considering an application the regulatory authority might also consider whether there is a genuine need for a waiver or whether the provider has applied for a waiver in the event that they are unable to meet a regulationelement such as if a qualified educator takes personal leave In such cases it would be expected that the provider establish links with a relief staff agency


Granting or refusing a temporary waiver


469 If granted the regulatory authority must specify the period for which the temporary waiver will apply which can be up to 12 months The regulatory authority must issue or reissue the service approval specifying the element andor regulation to which the temporary waiver applies and for what period

C



470 If the regulatory authority decides it is appropriate to issue a temporary waiver it should make clear it is issued on the understanding that the grounds on which it was granted will continue to apply While the National Law does not allow regulatory authorities to put conditions on a temporary waiver there are two approaches available to regulatory authorities to ensure an approved provider takes the steps agreed to when a waiver is issued They are

bull to include a condition on service approval or


471 When issuing a waiver regulatory authorities should make sure only the specific requirements that the service is unable to meet or that are met in other ways are waived For example if the regulatory authority decides it is appropriate to issue a waiver in relation to diploma qualified educators it should make clear that the relevant regulation is waived only in respect of the specified position that the approved provider has been unable to fill and not in its entirety


473 Where the regulatory authority grants a temporary waiver for more than one regulation or element it may apply different timeframes as appropriate For example the regulatory authority may decide it is appropriate to waive outdoor space requirements for 12 months and a qualification requirement for six months

Revoking a temporary waiver


474 The regulatory authority may revoke a temporary waiver at its discretion

475 An application for a temporary waiver must include details of any attempts made to comply with the requirement and the measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service If having decided it is appropriate to grant a temporary waiver the regulatory authority later becomes aware that the grounds on which it was granted no longer apply or if a condition placed on the service approval has not been complied with it may consider revoking the waiver

C

102 Applications and Approvals Supervisor certificate Last updated April 2017


476 See Granting or refusing a temporary waiver above for information on when a regulatory authority may revoke a temporary waiver

477 There is no notice period for revoking a temporary waiver


479 An approved provider may contact the regulatory authority seeking to have a temporary waiver revoked if it is no longer required The National Law does not prescribe the process for revoking a temporary waiver at a providerrsquos request


480 The National Law allows the regulatory authority to impose any conditions it considers appropriate on a service approval (but does not allow for conditions to be placed on a waiver) In some instances the regulatory authority may grant a temporary waiver and decide to put conditions on the service approval to help ensure the approved provider maintains their efforts to comply with the requirement Failure to meet the specified conditions would constitute a failure to comply with a condition of service approval and the regulatory authority may consider whether it is appropriate to take compliance action


482 Regulatory authorities may use this approach where there is a greater risk to children in granting the waiver such as where the service would not be allowed to operate without meeting certain conditions or taking certain steps

483 Regulatory authorities may also decide to use this approach where there are concerns about whether the approved provider will maintain their efforts to meet the requirement and follow through on any agreed actions

484 Because the approved provider must ensure details of any conditions on a service approval are displayed at the entrance to the service premises the regulatory authority may prefer this approach where it is important to make sure families using the service are aware of the grounds on which the waiver has been issued


C

Last updated April 2017 Supervisor certificate Applications and Approvals 103

After a temporary waiver has been granted


486 The regulatory authority must give the approved provider a copy of their service approval that lists the element andor regulation to which the waiver applies and the period of the waiver


487 Regulatory authorities should take a risk-based approach to monitoring compliance of services with a temporary waiver See the Monitoring Compliance and Enforcement chapter for more information about monitoring activities

488 If a service is transferred to a new provider any waivers that apply will remain in place However the regulatory authority might decide to monitor the service after it is transferred to ensure the grounds on which the waiver was issued still exist


Expiry of a temporary waiver


490 Once the period for which a temporary waiver is granted has passed the waiver no longer applies and the service must comply with the National Law and Regulations unless an extension has been granted


491 To help ensure families can access current information about the service the regulatory authority should reissue the service approval once a temporary waiver expires

492 Once a temporary waiver expires the regulatory authority might decide to monitor the service to ensure the requirement is being met Refer to the Monitoring Enforcement and Compliance chapter for more information about monitoring

C


Application to extend a temporary waiver


493 The approved provider may apply for an extension of a temporary waiver

494 The regulatory authority may extend a temporary waiver for up to 12 months on one or more occasions

495 The regulatory authority must determine an application for extension of a temporary waiver as soon as possible



497 The regulatory authority cannot extend a temporary waiver without an application from the approved provider

498 An application for extension of a temporary waiver should relate to the same regulations andor elements and circumstances for which the initial waiver was granted For instance a provider might apply for an extension to a temporary waiver if building works take longer than expected or if an educator needs some more time to complete their approved qualification If the provider is seeking a waiver of different requirements they should submit a new application

499 When considering an application for extension of a temporary waiver the regulatory authority should consider the same matters as for an initial application The regulatory authority should pay particular attention to the attempts made andor steps taken by the service to comply with the regulation andor elements See Considering an application above

C


5 Supervisor certificates WA

51 A person who is in day-to-day charge of an education and care service must hold a supervisor certificate under the Education and Care Services National Law and Regulations

52 A supervisor certificate allows a person to consent to be

bull the nominated supervisor of an approved service or

bull a certified supervisor placed in day-to-day charge of an approved service in the absence of the nominated supervisor and approved provider

53 There are two different types of supervisor certificates

1) Prescribed class supervisor certificates may be granted by a regulatory authority to cover people working in particular roles set out at regulation 49 within a school or preschoolkindergarten in certain states and territories The most common type of prescribed class supervisor certificate is service supervisor certificates These may be granted by a regulatory authority until 31 December 2016 to cover people who meet the definition at regulation 238A Service supervisor certificates were introduced on 1 June 2014 and apply to all states territories other than WA and

2) Supervisor certificates granted to an individual on application to the regulatory authority

54 See below for further detail about each type of supervisor certificate

National Regulations regulation 238A

55 Until 31 December 2016 the regulatory authority may issue a service supervisor certificate to a person in one of the following prescribed classes

Classes of persons for grant of a service supervisor certificate

A person employed or engaged by an approved provider to be responsible for the day-to-day management of an approved education and care service

A family day care co-ordinator

A person employed or engaged by an approved provider to exercise supervisory and leadership responsibilities in relation to a section of an approved service

Prescribed class supervisor certificates

Service supervisor certificates

C


Granting a supervisor certificate to a person in a prescribed class



56 The regulatory authority may grant a supervisor certificate to a person in a prescribed class

Prescribed class of persons for grant of supervisor certificate

A principal of a school that provides an education and care service at the school site

A person in charge of a campus of a school that provides an education and care service at that campus

A teacher at an off-site government preschool (within the meaning of the Education Act 2004 of the Australian Capital Territory)

A director of a preschool education program (within the meaning of the Education Act 1972 of South Australia) provided by either a government school or a registered non-government school (both within the meaning of the Act)

A director of a preschool education program provided in a childrenrsquos services centre registered under the Childrenrsquos Services Act 1985 of South Australia

A registered teacher delivering a pre-preparatory learning program under an education law of Queensland

A registered teacher (within the meaning of the Teachers Registration Act 2000 of Tasmania) providing a preschool program at a school established or registered under the Education Act 1994 of Tasmania

A teacher registered under the Teachers Registration Act 2012 (WA) providing education and care to children in their pre-compulsory education period (within the meaning of the School Education Act 1999 of Western Australia) in a school or community kindergarten established or registered under that 1999 Act


57 The regulatory authority will issue a service supervisor certificate to each approved education and care service Generally all approved services existing prior to June 2014 will have been issued with a service supervisor certificate

58 Regulatory authorities are not required to assess the fitness and propriety or the qualifications and experience of a person in a prescribed class as these matters will already have been considered by the provider or other responsible authority under similar processes

59 A supervisor certificate is issued to the class of persons in a particular service and is therefore not portable The certificate enables anyone in the class of persons in that particular service to be nominated as the nominated supervisor or to be designated as the certified supervisor in day-to-day charge

C



511 Regulatory authorities may issue supervisor certificates to a person in a prescribed class on receipt of a request form or may issue certificates proactively See above for information that must be included in a supervisor certificate issued to a person in a prescribed class

512 See below for conditions that apply to a supervisor certificate issued to a person in a prescribed class

Supervisor certificates granted to an individual WA

513 The introduction of the service supervisor certificates and prescribed class supervisor certificates means that most people are no longer required to hold supervisor certificates granted to individuals However existing individual supervisor certificates are still valid

514 While educators working in existing services may choose to apply for an individual supervisor certificate the majority of applications will be from individuals seeking to be the nominated supervisor of a new service This is because service approval cannot be applied for without suppling information about the nominated supervisor

515 A supervisor certificate granted to an individual is ongoing unless suspended cancelled or surrendered

Who can apply for a supervisor certificate

516 Applications for supervisor certificates granted to individuals are no longer necessary in most cases as most individuals are covered by either a service supervisor certificate or prescribed class supervisor certificate

517 The following sections sets out how applications for supervisor certificates granted to individuals are made and decided

National Law sections 106

518 A person who is 18 years or older may apply to the regulatory authority for a supervisor certificate granted to an individual

How does a person apply for a supervisor certificate


519 An application for a supervisor certificate granted to an individual must be in writing and include payment of the prescribed fee (see Fees) The application must be made to the regulatory authority in the jurisdiction where the applicant lives or intends to live

C




521 For most jurisdictions people employed at a service are required to undergo and maintain working with children checks Holding a supervisor certificate does not negate this responsibility




522 The National Regulations specify information that must be included in an application for a supervisor certificate (see Application checklists ndash Tables XIV XV)









C




527 The regulatory authority must determine an application for a supervisor certificate granted to an individual within 60 calendar days after it receives the application or if the applicant agrees within 90 calendar days

528 If the regulatory authority requests further information to assess the applicantrsquos fitness and propriety the time taken for the information to be provided is not included in the 60-day period

529 If the regulatory authority does not determine an application within the required timeframe the application is taken to be refused

Calculating time







533 An applicant for a supervisor certificate granted to an individual must satisfy the regulatory authority that they are a fit and proper person to be supervisor of an education and care service and that they meet the prescribed minimum requirements for qualifications experience and management capability

Fitness and propriety


534 A person who is a registered teacher or who holds a current working with children card is taken to be fit and proper to supervise a service in the absence of evidence to the contrary

C



535 The National Law sets out particular matters that the regulatory authority must consider when determining a personrsquos fitness and propriety but does not limit the circumstances in which it may consider a person is not fit and proper to supervise a service

536 In determining whether a person is fit and proper to supervise a service the regulatory authority must consider the personrsquos history of compliance with any current or former education and care services law childrenrsquos services law or education law If a person has been served with an infringement notice for an offence under the National Law and has paid the penalty the regulatory authority cannot take the offence into account when determining the personrsquos fitness and propriety


538 The regulatory authority must consider the applicantrsquos criminal history Because working with childrenvulnerable people legislation differs between jurisdictions there are three options for assessing an applicantrsquos criminal history

If the applicant has a working with children check the regulatory authority must consider this when determining the applicantrsquos fi tness and propriety

If the applicant does not have a working with children check but lives in a jurisdiction where a working with vulnerable people law applies (ACT) the regulatory authority must consider

bull any working with vulnerable people check held by the applicant or

bull whether they are a registered teacher in their jurisdiction

If the applicant does not have a working with children check but lives in a jurisdiction where a working with vulnerable people law does not exist the regulatory authority must consider

bull any matters included in a criminal history record check or


C


539 The regulatory authority may also consider whether the person has a medical condition that may affect their capacity to supervise a service


540 To assess whether a person is fit and proper to hold a supervisor certificate granted to an individual the regulatory authority may ask them for more information The regulatory authority may undertake inquiries or investigations in relation to the applicantrsquos fitness and propriety Refer above for information about timeframes for determining an application when more information is required


541 Applicants are not required to include medical information in their initial application However where the regulatory authority is concerned about an applicantrsquos capacity it may ask for information such as an assessment by a medical practitioner The regulatory authority should outline what they are seeking assessed and include background a description of the role and responsibilities and why the assessment is sought The regulatory authority may require a written report to be provided

542 When considering an application if the application is decided within 90 days the criminal history check and statement submitted by the applicant is generally considered to be current If other information in the application raises concerns about fitness or propriety then the regulatory authority might consider requesting an updated criminal history check andor statement to assist in the decision

543 If the application is decided after 90 days then the regulatory authority should consider

bull whether there are other matters which may show that the applicant is fit and proper

bull the time that has elapsed since the criminal history check was completed and

bull the cost and inconvenience to the applicant of obtaining a fresh criminal history check

C


Qualifications experience and management capability



544 The applicant must satisfy the regulatory authority that they meet the prescribed minimum requirements for qualifications experience and management capability set out below

Supervisor certificate ndash minimum requirements for qualifications experience and management capability

Regulation Requirement

47(1)(a)(i) Adequate knowledge and understanding of the provision of education and care to children and

47(1)(a)(ii) The ability to effectively supervise and manage an education and care service and

47(1)(b) One of the following

bull at least three yearsrsquo experience working as an educator in an education and care service childrenrsquos service a school or in a service regulated under a former education and care services law or

bull an approved diploma level education and care qualification or

bull an approved early childhood teaching qualification

545 All applicants must meet the requirement for adequate knowledge and understanding and management ability to be granted an individual supervisor certificate

546 The regulatory authority may grant a supervisor certificate to a person who does not have at least three yearsrsquo experience or an approved diploma or early childhood teaching qualification subject to the condition that the holder may only be a nominated supervisor or placed in day-to-day charge of a service that primarily educates and cares for children over preschool age


547 In many cases a single piece of evidence may demonstrate an applicantrsquos claim against more than one of the requirements For example evidence of completing an approved diploma level education and care qualification may satisfy the regulatory authority that the applicant has adequate knowledge and understanding of the provision of education and care to children

C


548 The regulatory authority should ensure it assesses an applicant against each of the requirements set out at regulation 47 Failure to meet one requirement does not necessarily mean failure to meet another For example a person with less than three yearsrsquo experience or who has completed a non-approved or lower level qualification such as a certificate III education and care qualification may have an adequate understanding of the provision of education and care to children Assessing each requirement separately will help ensure applicants who are unsuccessful understand the additional skills experience or qualifications that are needed to be granted a supervisor certificate

549 Lists of approved diploma and early childhood teaching qualifications are available on the ACECQA website at wwwacecqagovau

Adequate knowledge and understanding

550 Regulatory authorities should accept the following types of evidence against the requirement for adequate knowledge and understanding as well as any other type of evidence that satisfies it of the applicantrsquos management ability

bull a resumeacute detailing the applicantrsquos position duties duration of employment and their employerrsquos details

bull a written reference from an employer that addresses the applicantrsquos knowledge and understanding of the provision of education and care to children or

bull transcripts demonstrating completion of an education and care qualification

Management ability

551 Because the National Regulations require an applicant to satisfy the regulatory authority of their management ability rather than their management experience an applicant may meet the requirement even if they do not have experience managing a service For example an applicant may be able to demonstrate their ability to effectively supervise and manage an education and care service if they have management experience at other service types or in other industries

552 The regulatory authority should consider how an applicantrsquos skills and experience contribute to their ability to manage a service in accordance with the National Law and Regulations This may include consideration of an applicantrsquos

bull knowledge of and ability to apply practices that help ensure the education and care needs of children are met

bull knowledge of and ability to apply practices that help ensure a service complies with the National Law and Regulations and

bull skills in managing relationships with staff and families at the service

C


553 Regulatory authorities should accept the following types of evidence against this requirement as well as any other type of evidence that satisfies it of the applicantrsquos management ability

bull a resumeacute detailing their position duties duration of employment and their employerrsquos details and which indicates their management ability

bull a written reference from an employer that addresses the applicantrsquos management ability or

bull transcripts or a certificate of attainment demonstrating completion of units of study or professional development that are relevant to supervising or managing an education and care service For example courses or units that relate to staff management or managing an education and care service in accordance with the Education and Care Services National Law and Regulations

NOTE The WA Regulatory Authority will only review a reference from an employer when requested to do so on a case-by-case basis The Queensland Regulatory Authority does not accept evidence of completing relevant units of study or professional development as evidence of management ability

Three yearsrsquo experience

554 The requirement for at least three yearsrsquo experience as an educator intends to ensure that a person who has not attained an approved diploma or early childhood teaching qualification may only be placed in a position of responsibility within a service if they have substantial practical experience This may include three yearsrsquo experience working in either a part-time or full-time position

555 The National Regulations do not specify that an applicantrsquos experience must be gained over a consecutive three-year period or how recently it must have been gained However the currency of the applicantrsquos experience may impact on their ability to meet other minimum requirements for a supervisor certificate

556 Regulatory authorities should accept the following types of evidence against this requirement as well as any other type of evidence that satisfies it of the applicantrsquos level of experience

bull a resumeacute that outlines the applicantrsquos experience including dates of employment duties full-time or part-time basis and employerrsquos details or

bull a written reference from an employer outlining dates of employment duties full-time or part-time basis and details of their employer(s)

557 If an applicant falls short of meeting the requirement for three yearsrsquo experience (where relevant) the regulatory authority must determine the application accordingly It cannot leave the application open while the applicant gains further experience

C


Conditions on supervisor certificate


558 All types of supervisor certificates are subject to any conditions imposed by the National Law or the regulatory authority

559 A certified supervisor must comply with the conditions imposed on their supervisor certificate

560 All types of supervisor certificates are subject to the following conditions

bull the certified supervisor must to the extent that a matter is within their control comply with the National Law and

bull the certified supervisor must notify the regulatory authority of a change to their name or mailing address

561 The regulatory authority may impose any other condition it considers appropriate on any supervisor certificate


562 For applicants without three yearsrsquo experience as an educator or an approved diploma or early childhood teaching qualification the regulatory authority may grant a supervisor certificate to an individual that is subject to the condition the person is only appointed nominated supervisor or placed in day-to-day charge of a service that primarily educates and cares for children over preschool age


563 The National Law does not limit the type of conditions a regulatory authority may place on a supervisor certificate For example a regulatory authority may consider it appropriate to grant a supervisor certificate subject to a condition that the holder is the nominated supervisor or placed in day-to-day charge of only one particular service or a service of a particular type or size

564 The regulatory authority may impose a condition for working in a service that primarily educates and cares for children over preschool age if the applicantrsquos qualification or experience is specifically related to school age children

565 The regulatory authority may impose or vary a condition on a supervisor certificate and a certified supervisor may apply for an amendment of their supervisor certificate at any time (see Amending a supervisor certificate below)

566 See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a supervisor certificate

C


567 If the regulatory authority grants a supervisor certificate to an individual without the required experience and qualifications it may do so subject to the condition that the holder is only the nominated supervisor or placed in day-to-day charge of a service that primarily educates and cares for children over preschool age In such cases the regulatory authority may inform the holder of the factors taken into consideration when determining whether a service primarily educates and cares for children over preschool age For example

bull the operating hours of the service ndash operating mostly or solely out of school hours may indicate the lsquomain purposersquo of the services is to educate and care for school age children

bull the percentage of children receiving education and care over preschool age ndash for example the regulatory authority may consider 60 per cent is a persuasive factor 70 per cent would be more persuasive whereas 51 per cent would be less so and

bull any service advertising ndash advertising education and care for school age children may mean the servicersquos main purpose is to provide education and care to school age children

Granting or refusing a supervisor certificate


568 The regulatory authority may grant or refuse to grant a supervisor certificate to an individual


569 The regulatory authority must refuse to grant a supervisor certificate to an individual if

bull it is not satisfied the applicant is fit and proper to be the supervisor of an education and care service

bull it is not satisfied the applicant meets the prescribed minimum requirements for qualifications experience and management ability or

bull the applicant is under 18 years old


570 The regulatory authority must give the applicant for a supervisor certificate granted to an individual written notice of its decision including the reasons within seven calendar days after making the decision

C


Providing a copy of a supervisor certificate

National Law section 116National Regulations regulation 49

571 If granted the regulatory authority must issue a certificate that includes the information set out below

Information that must be included on a supervisor certificate

Supervisor certificate ndash standard Supervisor certificate for person in a prescribed class

The name of the certified supervisor The prescribed class of person to which the certified supervisor belongs

Any conditions imposed on the supervisor certificate


The date the certificate was granted If applicable the name of the school that provides the service (if different from the name of the service)

The certified supervisor number Any conditions imposed on the supervisor certificate

The date the certificate was granted

The certified supervisor number

After a supervisor certificate has been granted

Publication on register of certified supervisors


National Regulations regulation 49 231

572 ACECQA must publish on its website a register of certified supervisors with the following information for each certified supervisor

bull the certified supervisorrsquos name or the prescribed class of person

bull the date the supervisor certificate was granted

bull the supervisor certificate number and

bull if the supervisor is in a prescribed class of persons

ndash the prescribed class to which they belong and

ndash the name of the relevant approved education and care service and

ndash if applicable the name of the school that provides the relevant education and care service

C


(if different from the name of the approved education and care service)

Duration and effect of a supervisor certificate


573 A person who is granted a supervisor certificate is eligible to be placed in day-to-day charge of a service They may be appointed the nominated supervisor for the service or be the responsible person present at the service premises in the absence of the approved provider or nominated supervisor

574 A supervisor certificate remains in place unless suspended or cancelled by the regulatory authority (see Monitoring Compliance and Enforcement for more information) or voluntarily suspended by the holder (see Voluntary suspension of supervisor certificate below)


575 A certified supervisor placed in day-to-day charge of the service is not the nominated supervisor and does not have the responsibilities of a nominated supervisor under the National Law

Appeals


576 All decisions in relation to determining an application for a supervisor certificate are reviewable See Reviews

Amending a supervisor certificate



577 The regulatory authority may reassess a certified supervisorrsquos fitness and propriety at any time The requirements set out above under Fitness and propriety apply to the reassessment

C


Amending a supervisor certificate on application



578 A certified supervisor may apply in writing to the regulatory authority for an amendment of the supervisor certificate The application must include payment of the prescribed fee (see Fees)

579 The application for amendment must include details of the amendment applied for and the certified supervisorrsquos

bull full name and where relevant the class of prescribed persons

bull supervisor certificate number and

bull contact details

580 The regulatory authority must determine the application within 30 calendar days after it is received It must decide to

bull amend the supervisor certificate in the way applied for

bull amend the supervisor certificate in another way with the applicantrsquos written agreement or

bull refuse to amend the supervisor certificate

581 Amendment may include but is not limited to varying a condition or imposing a new condition on the supervisor certificate



583 The regulatory authority should inform the person of its decision including the date any amendment takes effect If the supervisor certificate is amended the regulatory authority should give the holder a revised copy

C










Notice of change of circumstances or information


588 A certified supervisor must notify the regulatory authority within seven calendar days of

bull any changes in circumstances that affects their fitness and propriety to supervise a service

bull any change in circumstances relevant to the information specified on their supervisor certificate (nameprescribed class of persons conditions)

bull the suspension or cancellation of their working with children check or card or teacher registration or

bull any disciplinary proceedings in relation to them under any state or territory education law

589 If the certified supervisor notifies the regulatory authority of a change to information shown on their supervisor certificate the regulatory authority may amend the certificate to show the correct information

C



590 If notified of any matter that may affect the certified supervisorrsquos fitness and propriety the regulatory authority should consider whether it is appropriate to amend suspend or cancel the supervisor certificate (see Monitoring Compliance and Enforcement)

591 Suspension or cancellation of a working with children check or teacher registration results in automatic suspension or cancellation of the personrsquos supervisor certificate (See Monitoring Compliance and Enforcement)

Amending a supervisor certificate without application


592 The regulatory authority may at any time amend a supervisor certificate Amendment may include but is not limited to varying a condition or imposing a new condition on the supervisor certificate

593 The regulatory authority must give the certified supervisor written notice of the amendment An amendment by the regulatory authority has effect 14 calendar days after the regulatory authority notifies the person or at the end of another period specified by the regulatory authority

Automatic suspension or cancellation of supervisor certificates


594 Some circumstances result in automatic suspension or cancellation of a supervisor certificate

595 If a personrsquos working with children card is suspended their supervisor certificate is immediately suspended If their working with children card is cancelled their supervisor certificate is immediately cancelled

596 If a personrsquos teacher registration is suspended their supervisor certificate is suspended effective from 14 calendar days after the suspension of their teacher registration unless the regulatory authority has assessed the person as being fit and proper to supervise a service Otherwise the supervisor certificate is suspended until the regulatory authority has assessed the person as fit and proper

597 If a personrsquos teacher registration is cancelled their supervisor certificate is also cancelled effective from 14 calendar days after their registration was cancelled unless the regulatory authority has assessed the person as fit and proper to supervise a service

C



598 A certified supervisor must notify the regulatory authority within seven calendar days if their teacher registration or working with children check or card is suspended or cancelled (See Leadership and service management) Section 173 of the National Law also makes it an offence for an approved provider to fail to notify the regulatory authority if they are notified of the suspension or cancellation of a working with children card or teacher registration or disciplinary proceedings under any state or territory education law in relation to a nominated supervisor or certified supervisor at their service The regulatory authority may also become aware of a suspension or cancellation by other means for example from an agency that administers working with children checks

599 The regulatory authority does not need to complete any form or process to give effect to the automatic suspension or cancellation but should ensure the NQA IT System is current and notify the approved provider

Voluntary suspension or surrender of a supervisor certificate

Voluntary suspension



5100 A certified supervisor may apply in writing to the regulatory authority for a suspension of their supervisor certificate for up to 12 months The application must include payment of the prescribed fee (see Fees) and the prescribed information (see Application checklists ndashTable XVI)

5101 The regulatory authority must decide whether to grant the application within 30 calendar days after application is made

5102 If the regulatory authority is satisfied the suspension is reasonable given the circumstances it may by written notice agree to the suspension The suspension takes effect on a date agreed by the regulatory authority and the certified supervisor


5103 There is currently no prescribed application fee however regulatory authority staff should check the National Regulations for changes


C

Last updated April 2017 Application checklists Applications and Approvals 123

6 Application checklists

Table I

Information that must be included in an application for provider approval made by an individual (regulation 14)

(Note The WA Regulatory Authority may not require all of the below information for an application for provider approval)

n The applicantrsquos full name and any former or other name the applicant may be known by

n The applicantrsquos residential address and contact details

n The applicantrsquos date and place of birth

n Proof of the applicantrsquos identity

n A previous service statement made by the applicant (see Glossary)

n Except for applications to the NSW or Queensland regulatory authorities if the participating jurisdiction has a working with children law

a if held by the applicant a copy of their current working with children card or check or

b if the applicant is a teacher registered under an education law of that jurisdiction proof of the current registration under that law

For applications to the NSW Regulatory Authority the applicantrsquos working with children clearance number or a copy of the applicantrsquos current working with children card or check

For applications to the Queensland Regulatory Authority a copy of the applicantrsquos current working with children card or check

For applications to the Tasmanian Regulatory Authority a copy of the applicantrsquos safety screening clearance or working with vulnerable people registration

n Except for applications to the Queensland Regulatory Authority

a a copy of the applicantrsquos current working with vulnerable people check or

b a criminal history record check issued not more than six months before the date of the application and a criminal history statement in relation to the period after the date on which the check was issued to the date of the application

n If the applicant lived and worked outside Australia at any time within the previous three years an overseas criminal history statement made by the applicant

n A disciplinary proceedings statement made by the applicant

n A bankruptcy declaration made by the applicant

C

124 Applications and Approvals Application checklists Last updated April 2017

Table II

Information that must be included in an application for provider approval made by a person other than an individual (for example an association or corporation) (regulation 15)


n The applicantrsquos name and any trading or other name used by the applicant

n The applicantrsquos street address and postal address or if there is more than one address the street address and postal address of the applicantrsquos principal office

n The name and contact details of the contact person for the purposes of the application

n Documentary evidence of the legal status of the applicant and its constitution (for example the partnership agreement for a partnership)

n A financial declaration regarding the applicant

n For each individual who will be a person with management or control of an education and care service to be operated by the applicant the information set out in Table I ndash Information that must be included in an application for provider approval made by an individual

C


Table III

Information that must be included in an application for provider approval by an executor who is an individual (regulation 20)





n

n

n

n

n

In relation to the current (deceased) approved provider

a their full name

b provider approval number

c the date of their death

d a copy of the death certificate or other evidence of their death

n The proposed duration of the provider approval (cannot exceed six months)














C


Table IV

Information which must be included in an application for provider approval by an executor who is not an individual (eg an association or corporation) (regulation 21)


n The applicantrsquos name and any other trading or other name they use

n The applicantrsquos street and postal address or if there is more than one address the street and postal address of their principal office

n The name and contact details for the purpose of the application

n

n

n

n

n

In relation to the deceased approved provider

a their full name




n The proposed duration of the provider approval (cannot exceed six months) documentary evidence of the legal status of the applicants and its constitution (for example the partnership agreement for a partnership)



C


Table V

Information which must be included in an application for provider approval by a legal personal representative or guardian who is an individual (regulation 22)





n The current approved providerrsquos full name and provider approval number








For applications to the Tasmanian Regulatory Authority a copy of the applicantrsquos safety screening clearance working with vulnerable people registration







C


Table VI

Information which must be included in an application for provider approval by a legal personal representative or guardian who is not an individual (for example a corporation or association) (regulation 23)









n The prescribed information set out at Table V above for each individual who will be a person with management or control

Table VII

Information which must be included in an application to suspend provider approval (regulation 19)

(Note The WA Regulatory Authority may not require all of the below information for an application to suspend a provider approval)

n The approved providerrsquos full name

n Their provider approval number

n The name and contact details of the contact person for the application

n The reasons for the suspension

n The date on which the suspension is proposed to take effect and the duration of the suspension

n What is intended to happen to each service operated by the approved provider during the proposed suspension

n A statement indicating that the approved provider has notified parents of children enrolled at their services of their intention to apply for a voluntary suspension

C


Table VIII

Information that must be included in an application for service approval ndash centre-based service (regulations 24 25)

(Note The WA Regulatory Authority may not require all of the below information for an application for service approval)

n The applicantrsquos full name and provider approval number (or the applicants contact details if the applicant has applied for a provider approval but the application has not yet been determined)

n The name of the proposed education and care service

n The proposed date on which the education and care service will start operating

n If known the contact details for the proposed service including an after-hours telephone number

n The proposed ages of children to be educated and cared for by the service

n The proposed maximum number of children

n The proposed hours and days of operations

n A description of the nature of the service

n The details of any associated children service for which approval is sought

n A statement that the applicant has prepared the required policies and procedures as required by regulation 168 see Operational Requirements

n In relation to the person who will be the nominated supervisor for the service

a their full name and contact details including an after-hours telephone number

b their supervisor certificate number (not required if the approved provider will be the nominated supervisor and their application for a supervisor certificate has not yet been determined)

c their written consent to being the nominated supervisor for the service

n The location and street address of the proposed service premises

C


Table VIII


n Plans prepared by a building practitioner of the proposed service premises that show

a the location of all buildings structures outdoor play areas and shaded areas

b the location of all entries and exits

c the location of all fences and gates and specifying the type of fence or gate used or to be used

d the location of toilet and washing facilities nappy changing areas and any food preparation areas

e the boundaries of the premises

f the landscape of (or landscaping plans for) outdoor spaces that will be used by the service specifying the natural environments that are (or will be) provided

g a floor plan indicating unencumbered indoor and outdoor spaces suitable for children

h the location of any associated childrenrsquos service

i calculations carried out by a building practitioner relating to unencumbered indoor and outdoor space (as set out in regulations 107ndash108)

j the elevation plans of the premises

n If a swimming pool or other water hazard is situated on the proposed service premises a copy of the servicersquos water safety policy

n One of the following

a a soil assessment for the site of the proposed service premises

b if relevant a statement specifying the date of a previous a soil assessment

c a statement from the applicant that to the best of their knowledge the site history does not indicate the site is likely to be contaminated in a way that poses an unacceptable risk to the health of children

n If a planning permit is required under the state or territory planning and development law a copy of the planning permit for the proposed service premises

n A statement that the applicant has the right to occupy and use the premises and any document evidencing this for example a lease of the premises

n Unless the service premises is a government or registered school one of the following

a a copy of an occupancy permit certificate of final inspection building certificate certificate of classification or building surveyorrsquos statement for the final construction and fit-out of the service premises

b a statement from a building practitioner that the service premises complies with the building requirements under state or territory building law or planning development law

Regulatory authorities may waive this requirement if the approved provider is seeking ndash to relocate the education and care service to alternative premises for not more than 12 months or ndash to locate the education and care service on a school site

C


Table IX

Information that must be included in an application for service approval ndash family day care service (regulation 26)

(Note The WA Regulatory Authority may not require all of the below information for an application for service approval ndash family day care service)


n The name of the proposed service

n The proposed date the service will start operating

n If known the contact details for the proposed principal office of the service including an after-hours telephone number

n The proposed hours and days of operation including whether the service proposed to engage or register family day care educators who will provide overnight or weekend care

n The proposed location and street address of the principal office of the service

n The proposed number of family day care educators to be engaged by or register with the service within six months of operating

n The states and territories and proposed local government areas where family day care educators expected to be engaged or registered with the service will provide education and care

n The proposed number of family day care coordinators expected to be engaged by the service within six months of operating

n A statement that the applicant has prepared the required policies and procedures (as required by regulation 168 see Operational Requirements)

n A copy of the proposed policies and procedures for (required by regulation 169)

a assessment and approval and reassessment of approved family day care venues and residences including the requirements in regulation 116

b engagement or registration of family day care educators

c keeping a register of family day care educators

d monitoring support and supervision of family day care educators including how the service will manage educators at remote locations

e assessment of family day care educators family day care educator assistants and persons residing at family day care residences including the requirements in regulation 163

f visitors to family day care residences and venues while education and care is provided to children

g provision of information assistance and training to family day care educators

h engagement or registration of family day care educator assistants

n If the service will permit a family day care residence or venue with a swimming pool or a water hazard a copy of a proposed water safety policy for the service (Note swimming pools are prohibited in Tasmania for all education and care services)

C


Table IX



their full name and contact details including an after-hours telephone number

their supervisor certificate number (not required if the approved provider will be the nominated supervisor and their application for a supervisor certificate has not yet been determined) and

their written consent to being the nominated supervisor for the service

Table X

Information that must be included in notification of transfer of service approval (regulations 36 37)

(Note The WA Regulatory Authority may not require all of the below information for an application to transfer a service approval)

n Name of the education and care service

n Service approval number

n Transferring approved providerrsquos name contact details and provider approval number

n Receiving approved providerrsquos name contact details and provider approval number

n Date the transfer is intended to take effect

n Any proposed changes in relation to the information required to be included in an application for service approval (see Table VIII for centre-based services and Table IX for family day care services)

Table XI

Information that must be included in an application for voluntary suspension of service approval (regulation 40)

(Note The WA Regulatory Authority may not require all of the below information for an application for voluntary suspension of service approval)

n Name of the service


n Name and contact details of the contact person for the application

n Reasons for the suspension

n Date on which the suspension is proposed to take effect and the duration and

n A statement indicating that the approved provider notified parents of children enrolled at the service (and any associated childrenrsquos service) of their intention to apply for a suspension at least 14 days before making the application

C


Table XII

Information that must be included in an application for a service waiver (regulation 42)

(Note The WA Regulatory Authority may not require all of the below information for an application for a service waiver)



n Name and contact details for the contact person for the application

n A statement that specifies

a the elements of the NQS andor the regulations for which the service waiver is sought and

b the way in which the service does not or will not comply with the specified elements andor regulations

n Reasons the service is unable to comply and details and evidence of any attempts made to comply with the specified elements andor regulations or any other reasons why the service seeks the waiver

n Measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service while the waiver is in force

Table XIII

Information that must in included in an application for a temporary waiver (regulation 45)

(Note The WA Regulatory Authority may not require all of the below information for an application for a temporary waiver)







n Reasons the service is unable to comply and details and evidence of any attempts made to comply with the specified elements andor regulations

n Period for which the temporary waiver is sought (up to 12 months)

n Details of steps being taken or that will be taken to comply with the elements andor regulations


C


Table XIV

Information that must be included in an application for a supervisor certificate by a person who is not an approved provider or person with management or control (regulation 46)

(Note The WA Regulatory Authority may not require all of the below information for an application for a supervisor certificate)

n The applicantrsquos full name and any former name or other name the applicant may be known by


n Proof of identity (proof of identity must demonstrate the applicant is at least 18 years old)

n Details of the applicantrsquos relevant skills experience training and qualifications including evidence of their training and qualifications and how they meet the prescribed minimum requirements set out in regulation 47

n Except for applications to the NSW Queensland or Tasmanian regulatory authorities

a if the applicant has a working with children check or card or a working with vulnerable people check a copy of the check or card or

b if the applicant is a registered teacher in any state or territory proof of their current registration or

c in any other case

ndash a criminal history record check issued not more than six months before the date of application

ndash a criminal history statement made by the applicant in relation to the period from when the criminal history record check was issued and the date of application

ndash an overseas criminal history statement about the applicant if they lived and worked outside Australia in the last three years and

ndash a disciplinary proceedings statement about the applicant




C


Table XV

Information that must be included in an application for a supervisor certificate by an approved provider or person with management or control (regulation 46)

(Note The WA Regulatory Authority may not require all of the below information for an application for a supervisor certificate for a person with management or control)

n The applicantrsquos full name

n The applicantrsquos provider approval number

n The applicantrsquos contact details

n Proof that the applicant is at least 18 years old


Table XVI

Information that must be included in an application for voluntary suspension of a supervisor certificate (regulation 53)

(Note The WA Regulatory Authority may not require all of the below information for an application for voluntary suspension of a supervisor certificate)

n The certified supervisorrsquos full name

n If the person belongs to a prescribed class of persons under regulation 49 the class and the details of the service where the person holds the position in that class

n The supervisor certificate number

n Contact details


n The date the proposed suspension is to take effect and the duration of the suspension

136 Applications and Approvals Last updated April 2017

C

Last updated April 2017 Operational Requirements 137

DOperational Requirements


Contents

1 Educational program and practice 140

Educational program 140

Documenting assessments of childrenrsquos learning 141

Information about educational program to be kept available 142

Educational program and practice responsibilities of the approved provider nominated supervisor and family day care educator 143

2 Childrenrsquos health and safety 144

Adequate supervision 144

Harm and hazards 145

Health hygiene and safe food practices 148

Food and beverages 149

Weekly menu 150

Sleep and rest 150

Tobacco drug and alcohol-free environment 151

Child protection 152

Incidents injury trauma and illness 152

Infectious diseases 154

First aid kits 155

Medical conditions policy 156

Administration of medication 157

Emergencies and communication 160

Telephone or other communication equipment 161

Collection of children from premises 162

Excursions 163

Childrenrsquos health and safety responsibilities of the approved provider nominated supervisor and family day care educator 166

Useful contacts 168

3 Physical environment 170


Outdoor space requirements 172

Swimming pools and other water hazards 173

Fencing 173

Natural environment 175

Shade 176

Premises designed to facilitate supervision 177

Indoor space requirements 178

Ventilation and natural light 179

Glass 180

Administrative space 180

Toilet and hygiene facilities 181

Nappy change facilities 183

Laundry and hygiene facilities 183

Premises furniture materials and equipment 183

Assessments of family day care residences and approved family day care venues 185

Physical environment responsibilities of the approved provider nominated supervisor and family day care educator 186

4 Staffing arrangements 187

Early childhood teacher requirements centre-based services 187

General educator qualification requirements 193

Diploma level education and care qualifications 196

Certificate III level education and care qualifications 199

Actively working towards an approved qualification 201

Educator-to-child ratios 202

138 Operational Requirements Last updated April 2017

D

Contents (continued)

Family day care educator assistant 208

Educational leader 209

Educator supervision requirements 209

First aid qualifications and training 210

Approval and determination of qualifications 212

Staff records centre-based services 213

Register of family day care educators 214

Records of family day care service staff 216

Staffing arrangements responsibilities of the approved provider nominated supervisor and family 217

5 Relationships with children 218

Inappropriate discipline 218

Interactions with children 218

Relationships in groups 219

Relationships with children responsibilities of the approved provider nominated supervisor and family day care educator 220

6 Collaborative partnerships with families and communities 221

Access for parents 221

Responsibilities of the approved provider nominated supervisor and family day care educator 222

7 Leadership and service management 223

Management of services 223

Other adults at the family day care service to be fit and proper 225

Supervising unauthorised persons 226

Record of servicersquos compliance 228

Policies and procedures 229

Information and record-keeping requirements 232

Requirement to keep enrolment and other documents 239

Confidentiality and storage of records 241

Law and Regulations to be accessible 244


8 Other regulatory frameworks 247

Interactions with other regulatory frameworks 247

Referencing other regulatory standards 248


D









Legend

DD

140 Operational Requirements Educational program and practice Last updated April 2017

1 Educational program and practice

Educational program


11 The approved provider and nominated supervisor of an approved service must ensure that a program is delivered to all children being educated and cared for by the service that

bull is based on an approved learning framework

bull is delivered in accordance with that approved learning framework

bull is based on the developmental needs interests and experiences of each child and

bull is designed to take into account the individual differences of each child


12 An educational program is to contribute to the following outcomes for each child

bull the child will have a strong sense of identity

bull the child will be connected with and contribute to his or her world

bull the child will have a strong sense of wellbeing

bull the child will be a confident and involved learner and

bull the child will be an effective communicator


13 There are two national declared approved learning frameworks

bull Belonging Being and Becoming ndash The Early Years Learning Framework for Australia and

bull My Time Our Place ndash Framework for School Age Care in Australia

14 There are also declared approved learning frameworks specific to certain jurisdictions

bull Australian Capital Territory Every Chance to Learn ndash Curriculum Framework for ACT Schools Preschool to Year 10 (approved until 31 December 2015)

bull Victoria Victorian Early Years Learning and Development Framework Department of Education and Victorian Curriculum and Assessment Authority

bull Western Australia Curriculum Framework for Kindergarten to Year 12 Education in Western Australia and

bull Tasmania Tasmanian Curriculum Department of Education of Tasmania 2008

DD

Last updated April 2017 Educational program and practice Operational Requirements 141


15 The national declared approved learning frameworks apply in all jurisdictions However jurisdiction-specific declared approved learning frameworks apply only in the relevant jurisdiction This means an approved provider of an approved service in the Northern Territory would not be complying with section 168 of the National Law by ensuring an educational program based on the Western Australian curriculum framework is delivered at the service However the approved provider of a service in Victoria that educates and cares for children of preschool age or under may base the program on either the Early Years Learning Framework or the Victorian Early Years Learning and Development Framework

16 The ages of children who attend an education and care service should determine which of the two national approved learning frameworks is used rather than the service type or setting

17 If children preschool age or under and children over preschool age regularly attend a service educators are expected to use both frameworks as the basis for the educational program This does not necessarily require that separate activities or programs be offered rather that consideration is given to the features of the frameworks in the implementation of the educational program

18 For example if one or more preschool age children regularly attend a service for school age children the approved provider and nominated supervisor must ensure the Early Years Learning Framework or relevant parts of a jurisdiction-specific approved learning framework form the foundation for the interactions and environments provided for those children and their families

19 Where a family day educator is registered with a service in one jurisdiction but operates in another the approved framework(s) of the jurisdiction in which the education and care is provided to children applies

Documenting assessments of childrenrsquos learning


110 Assessment or evaluation documentation must be kept for each child

111 For children who are preschool age or under this documentation must include

bull assessments of the childrsquos developmental needs interests experiences and participation in the educational program and

bull assessments of the childrsquos progress against the outcomes of the educational program

112 For children who are over preschool age this documentation must include

bull evaluations of the childrsquos wellbeing development and learning

DD


113 In preparing the documentation the approved provider must

bull consider the period of time that the child is being educated and cared for by the service and

bull consider how the documentation will be used by the educators at the service and

bull prepare the documentation in a way that is readily understandable by the educators at the service and the parents of the child


114 There is no prescribed method in the National Law or National Regulations for documenting assessment of childrenrsquos learning Assessment of childrenrsquos learning may be documented in portfolios learning journals or another format If concerned about the appropriateness of documentation authorised officers may discuss with the approved provider how they decided what form of documentation was appropriate and how they have made sure the documentation is readily understandable

Information for services

115 The national declared approved learning frameworks outline assessment as a process used by educators to gather information about what children know understand and can do Authorised officers may talk to the approved provider about how educators use this information to plan for each childrsquos learning Educators can also use assessment information to reflect on their own values beliefs and teaching practices and to communicate about childrenrsquos learning with children and their families Authorised officers may talk to the approved provider about the value of involving children in documenting their own development and learning

Information about educational program to be kept available


116 Information about the contents and operation of the educational program for the service must be displayed at the education and care service premises at a place that is accessible to parents

117 A copy of the educational program must be available at the following places for inspection on request

bull for a centre-based service at the education and care service premises and

bull for a family day care service at each family day care residence or venue

DD



118 The following information must be given to the parent of a child on request

bull information about the content and operation of the educational program as it relates to that child

bull information about that childrsquos participation in the program and

bull a copy of assessments or evaluations in relation to that child


119 The contents of the educational program are the learning areas covered by the program The operation of the educational program is the methods by which the program is delivered to children

Educational program and practice responsibilities of the approved provider nominated supervisor and family day care educator

Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Educational program to be delivered (section 168 regulation 73)

3 3 3

Record of child assessments or evaluations for delivery of educational program (regulation 74)

3 3 3

Information about educational program to be kept available (regulation 75)

3 3 3

Information about educational program to be given to parents (regulation 76)

3 3 3

Waivers do not apply to any of these requirements

D

144 Operational Requirements Childrenrsquos health and safety Last updated April 2017

D

2 Childrenrsquos health and safety

Adequate supervision


21 The approved provider nominated supervisor and family day care educator must ensure all children being educated and cared for by the service are adequately supervised at all times


NOTE The following paragraphs are intended to assist authorised officers develop an understanding of what constitutes lsquoadequate supervisionrsquo They are not intended to provide a definitive description of adequate supervision

22 Educator-to-child ratios alone do not constitute adequate supervision Adequate supervision means that an educator can respond immediately particularly when a child is distressed or in a hazardous situation It requires active involvement with children It is not the intention of this requirement that educators lsquostand back and watchrsquo Adequate supervision means knowing where children are at all times and monitoring their activities actively and diligently

23 Children of different ages and abilities need different levels of supervision In general the younger the children are the more they need an adult close by to support and help them

24 For example in a service with young children adequate supervision may mean that the children remain in close proximity to the adult who is supervising them For children over preschool age educators should know where each child is and be in a position to respond if necessary

D

Last updated April 2017 Childrenrsquos health and safety Operational Requirements 145

D

25 When considering the adequacy of supervision authorised officers may consider the factors set out below

Factors affecting adequate supervision

Number ages and abilities of children

Number and positioning of educators

Each childrsquos current activity

Areas where children are playing in particular their visibility and accessibility

Risks in the environment and experiences provided to children

The educatorsrsquo knowledge of each child and each group of children

The experience knowledge and skill of each educator


26 An authorised officer may discuss with the approved provider or nominated supervisor the importance of teamwork and good communication among staff for ensuring adequate supervision For example educators should let their colleagues know if they need to leave the area for any reason such as to get a resource from another area or to use the bathroom The approved provider could develop a handover routine for changing shifts which may include using a diary or communication book

Harm and hazards


27 Approved providers nominated supervisors and family day care educators must ensure that every reasonable precaution is taken to protect children from harm and from any hazard likely to cause injury


NOTE The following paragraphs are intended to assist authorised officers develop an understanding of what is required by section 167 They are not intended to provide a definitive description of how to check compliance with section 167

D


D

28 The guidance and information below is about the application of section 167 in relation to health and safety requirements Authorised officers should be aware the requirement to take reasonable precautions to protect children from harm and hazards is relevant to every aspect of the service not just health and safety requirements

29 Authorised officers should be aware the National Law does not require all risk and challenge to be eliminated from childrenrsquos play or environments

210 When considering compliance with section 167 authorised officers should look for evidence that approved providers nominated supervisors and family day care educators have weighed the obligation to protect children from harm against the benefit of providing children with a stimulating play environment Some risks are acceptable because the benefit to childrenrsquos learning and experience outweighs the risks Considerations such as the age of the children their developmental needs and the manner in which they are being supervised may impact what is considered a hazard

211 Approved providers nominated supervisors and family day care educators should show an ongoing awareness of safety and hazards and take reasonable steps to protect against these hazards as they arise Regular riskbenefit assessments should be conducted to identify and manage potential hazards while children are being educated and cared for

212 Many factors may contribute to a hazard such as a poor program inadequate supervision and worn equipment Approved providers nominated supervisors and family day care educators should develop implement and monitor procedures for identifying mitigating and where necessary preventing hazards For example authorised officers may see the types of precautions outlined below being taken at the education and care service as evidence of meeting this requirement

Preventing harm and hazards

Daily safety checks of the environment and equipment

Secure storage of hazardous products including chemicals

An equipment maintenance schedule

Risk assessments particularly for excursions

If staff consume hot drinks they are made and consumed away from children

Equipment that meets Australian Standards ndash for example cots and playground equipment and surfacing and safety plugs in unused electrical outlets

Staff have current working with children checks or equivalent

Staff are given information andor training about child protection law and any obligations they have under that law

Firearms and ammunition are stored securely and separately from each other

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D

213 If an authorised officer has concerns about the safety of the environment in which children are educated and cared for they should examine policies and procedures required by regulation 168 In particular regulations 168(2)(a) and 168(2)(h) require the provider of an education and care service to ensure they have policies and procedures in relation to health and safety and providing a child safe environment

Firearms in family day care services

214 Some family day care residences or venues may have firearms on the premises particularly in rural areas Firearms are regulated at the state and territory level under a uniform national approach which covers licensing permits and safe storage Each state and territory has their own firearms registry administered by their police force

215 Authorised officers visiting an FDC residence or venue should sight the following to ensure the health safety and wellbeing of children

bull the firearms licencebull that firearms and ammunition are securely stored separately from each otherbull that the firearm is inaccessible to children

216 Further information on the regulation of firearms is available from the state or territory police force and the National Firearms Safety Code produced by the Commonwealth Attorney-Generalrsquos Department

217 Authorised officers may refer approved providers to their state or territory police force for more information about responsibilities in relation to firearms


218 The National Law and Regulations do not prescribe the use of any particular guidelines or standards in relation to child safety Safety measures should align with advice from recognised authorities such as Standards Australia and with local government state and territory compliance agencies

219 Authorised officers may point providers to resources such as Kidsafe for information on how to help keep children safe (wwwkidsafecomau) For guidance about ensuring a child safe environment authorised officers may suggest providers contact the child protection authority in their state or territory for best practice information ndash see the list of contacts at the send of the Childrenrsquos health and safety section

D


D

Health hygiene and safe food practices


220 The approved provider of an education and care service must ensure that the nominated supervisor staff members and volunteers at the service implement adequate health and hygiene practices and safe practices for handling preparing and storing food

221 The nominated supervisor of an education and care service must implement and ensure that all staff members and volunteers implement adequate health and hygiene practices and safe practices for handling preparing and storing food

222 A family day care educator must implement adequate health and hygiene practices and safe practices for handling preparing and storing food

223 The approved provider must ensure policies and procedures are in place in relation to health and safety (regulation 168)


224 Authorised officers should observe whether staff and volunteers at the service implement adequate health hygiene and safe food practices This may include appropriate practices in relation to hand washing toileting nappy changing cleaning equipment and storing and reheating food

225 Where there are concerns about the adequacy of practices implemented by staff authorised officers may examine the policies and procedures in relation to health hygiene and food safety practices as required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement They may also discuss strategies that are in place at the service to ensure practices are adequate and consistently implemented

226 Authorised officers are not responsible for checking compliance with food safety legislation However authorised officers should be aware that other rules apply to approved providers in relation to food safety including the Food Safety Standards developed by Food Standards Australia and New Zealand (FSANZ) (available at wwwfoodstandardsgovau) Food safety legislation for all states and territories references the Food Safety Standards and details the responsibilities of food handlers Food authorities in each state or territory monitor compliance with the Food Safety Standards Food authorities in some jurisdictions also require providers that supply food and beverages to register as a food business Contact details for food authorities in each state and territory are provided at the end of the Childrenrsquos health and safety section


227 The National Law and Regulations do not prescribe the use of any particular guidelines or standards in relation to health hygiene and food safety practices Authorised officers may suggest resources about best practice in relation to health hygiene and food safety

D


D

228 For example the National Health and Medical Research Council (NHMRC) publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest edition available at wwwnhmrcgovau) provides advice about health hygiene and food safety practices and has been developed specifically for people working in education and care services

229 Authorised officers may alert approved providers to the requirements of the Building Code of Australia about kitchen facilities Authorised officers should be aware that facilities may have complied with a former building code depending on when they were constructed

Food and beverages


230 The approved provider nominated supervisor and family day care educator must ensure that children have access to safe drinking water at all times and are offered food and beverages on a regular basis throughout the day The approved provider must ensure that the food and beverages offered are appropriate to the needs of each child


231 If food or beverages are provided at the service the food or beverage must be nutritious and adequate in quantity and take into account dietary requirements appropriate to each childrsquos growth and development needs and any specific cultural religious or health requirements This does not apply to food and beverages provided by a family for their child

232 The approved provider must ensure policies and procedures are in place in relation to health and safety including nutrition food and beverages and dietary requirements (regulation 168)


233 Authorised officers should be aware that the National Law and Regulations do not prescribe the use of any particular guidelines or standards in relation to food and beverages

234 If an authorised officer has concerns about the appropriateness of food and beverages provided by a service they may examine the policies and procedures about nutrition food and beverages and dietary requirements required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement


235 If educators or approved providers are seeking advice about diet and nutrition for children authorised officers may refer them to the Dietary Guidelines for Children and Adolescents in Australia (available at wwwnhmrcgovau) the Get Up amp Grow Healthy eating and physical activity for early childhood resources (available at wwwhealthgovau) andor the Physical Activity and Nutrition Outside School Hours (available at wwwhealthqldgovau) if they are seeking advice about diet and nutrition for children

D


D

Weekly menu


236 The approved provider nominated supervisor and family day care educator must ensure that where the service provides food and beverages (other than water) a weekly menu that accurately describes the food and beverages to be provided by the service each day is displayed at a place that is accessible to parents


237 The menu should include sufficient detail to inform parents about what food and beverages will be offered

Sleep and rest


238 The approved provider nominated supervisor and family day care educator must take reasonable steps to ensure childrenrsquos needs for sleep and rest are met having regard to each childrsquos age development stages and needs


239 Planned lsquorest periodsrsquo for young children are often implemented at services however routines and the physical environment should also be flexible enough to support children who do not require a sleep and those who seek rest and relaxation throughout the day When looking at whether reasonable steps have been taken to ensure childrenrsquos needs for sleep and rest are met authorised officers may look for indications that sleepy children are offered an opportunity to rest whether by sleeping or just sitting quietly Similarly where a planned rest period is implemented and not all children are sleeping authorised officers may look to see if children who appear to be alert and restless are offered appropriate alternatives while others sleep

240 The requirement to take reasonable steps to ensure childrenrsquos needs for sleep and rest are met does not mean children should be required to sleep


241 Authorised officers may refer approved providers to the SIDS and Kids website (wwwsidsandkidsorg) to access resources on safe sleeping practices

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D

Tobacco drug and alcohol-free environment


242 The approved provider and family day care educator must ensure the environment is free from the use of tobacco illicit drugs and alcohol


243 The approved provider must ensure that the nominated supervisor staff members and volunteers at the service are not affected by alcohol or drugs (including prescription medication) that may impair their capacity to supervise or provide education and care to children at the service

244 The nominated supervisor and family day care educator must not consume alcohol or be affected by alcohol or drugs (including prescription medications) that may impair their capacity to provide education and care to children at the service


245 The requirements in this section relate to the environment while the service is operating It does not apply to the service premises or family day care residence or venue when the service is not providing education and care to children

246 The requirements about use of prescription medications do not mean that educators staff or volunteers who require prescription medication must be excluded but rather that consideration be given to whether that medication affects the personrsquos capacity to provide education and care to children

247 Any alcohol tobacco or drugs on the education and care service premises should be kept out of reach of children in accordance with the requirement to take reasonable precautions to protect children from harm and hazards (section 167)


248 Authorised officers may talk to family day care educators about developing strategies to ensure that the educatorrsquos home is a safe place for children while recognising the rights of the educatorrsquos family For example educators may identify space outside the premises where other household members and visitors may smoke If people smoke in the family day care residence or venue when the service is not operating consideration should be given to issues such as ventilation hygiene and safe storage of items including ashtrays and cigarette lighters

D


D

Child protection

National Regulations regulation 84 NSW

249 The approved provider must ensure the nominated supervisor and staff members at the service who work with children are advised of the existence and application of the current child protection law in the relevant jurisdiction and understand their obligations under that law

250 The approved provider must ensure policies and procedures are in place in relation to providing a child safe environment (regulation 168)


251 To check compliance with this requirement authorised officers may ask the approved provider how they ensure educators and staff are aware of the current child protection law and their responsibilities such as by attending regular refresher training or in-house workshops completing online training or by other ways Authorised officers should be aware that formal child protection training is not available in some jurisdictions so approved providers may use other methods to meet this requirement such as distributing information to staff and discussing obligations

252 Contact details for child protection services in each state and territory are provided at the end of the Childrenrsquos health and safety section

Incidents injury trauma and illness

Policies and procedures


253 The incident injury trauma and illness policies and procedures of a service required under regulation 168 (see Leadership and service management) must include procedures to be followed by nominated supervisors staff members and volunteers at the service in the event that a child is injured becomes ill or suffers a trauma

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D

Notifying parents


254 A parent must be notified as soon as practicable but not later than 24 hours after the occurrence if the child is involved in any incident injury trauma or illness while the child is being educated and cared for by the service

Records


255 Approved providers and family day care educators must keep an incident injury trauma and illness record The information must be included in the record as soon as practicable but not later than 24 hours after the incident injury trauma or onset of illness

256 The incident injury trauma and illness record must be kept confidential and stored until the child is 25 years old See Leadership and service management for more information about record keeping obligations

257 The incident injury trauma and illness record must include the information set out below

Information that must be included in an incident injury trauma or illness record

Details of any incident injury trauma or illness including

bull the name and age of the child and

bull the circumstances leading to the incident injury trauma or illness and any apparent symptoms and

bull the time and date the incident injury trauma or illness occurred

Details of any action taken by the service including

bull any medication administered or first aid provided and

bull any medical personnel contacted

Details of any witnesses

The name of any person the service notified or attempted to notify and the time and date of the notifications and

The name and signature of the person making an entry in the record and the time and date that the entry was made

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D


258 If authorised officers are concerned about how staff respond to a child who becomes ill is injured or suffers a trauma they should examine the policies and procedures required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement They should also check the service records related to incidents illness injury or trauma for details of notifications

259 Information about the requirement to notify the regulatory authority is included in the section on Leadership and service management


260 Incident injury trauma and illness records do not have to be written in any particular format If the approved provider or family day care educator needs guidance about how to keep these records authorised officers may refer them to the template on the ACECQA website at wwwacecqagovau They are not required to use the template

261 The authorised officer may inform the service about free health advice services such as Healthdirect Australia (wwwhealthdirectorgau) that may help staff to determine what action should be taken in the event of an incident

Infectious diseases


262 The approved provider must take reasonable steps to prevent the spread of infectious diseases at the service and ensure the parent or authorised emergency contact of each child enrolled at the service is notified of the occurrence of an infectious disease as soon as practicable

263 For family day care services the approved provider need only ensure the parents of children educated and cared for at the affected residence or venue are notified

264 The approved provider must ensure policies and procedures are in place in relation to dealing with infectious diseases (regulation 168)


265 Authorised officers with concerns about the steps taken to prevent the spread of infectious diseases should examine the policies and procedures in relation to dealing with infectious disease required under regulation 168 and discuss with educators This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement

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D


266 Authorised officers may refer approved providers to the NHMRC publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest edition available at wwwnhmrcgovau) for detailed information about infectious diseases which are required to be notified to the local public health department Staying Healthy Preventing infectious diseases in early childhood education and care services also provides information about exclusion periods for infectious diseases

267 Details for public health units in each jurisdiction are provided at the end of the Childrenrsquos health and safety section

First aid kits


268 The approved provider of a centre-based service must ensure an appropriate number of first aid kits are kept having regard to the number of children being educated and cared for at the service The first aid kits must be suitably equipped and easily recognisable and readily accessible to adults having regard to the design of the service premises

269 A family day care educator must keep a suitably equipped first aid kit at the family day care residence or venue that is easily recognisable and readily accessible to adults whenever the educator is educating and caring for children


270 When determining how many first aid kits are lsquoappropriatersquo authorised officers should consider the number of children in attendance as well as the proximity of rooms to each other The first aid kits should be sufficient in number to allow them to be readily accessed when required (for example on excursions) A first aid kit may be required in the outdoor play space if inside kit(s) are not readily accessible

271 A lsquosuitably equippedrsquo first aid kit should be fully stocked with products that have not expired


272 If the approved provider or family day care educator requires guidance about what to include in their first aid kit authorised officers may refer them to a reputable organisation such as St John Ambulance or the Red Cross

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Medical conditions policy


273 The approved provider must ensure policies are in place for managing medical conditions which set out practices in relation to matters listed in the table below

Medical conditions policy content

The management of medical conditions including asthma diabetes or a diagnosis that a child is at risk of anaphylaxis

Informing the nominated supervisor staff and volunteers at the service in relation to managing medical conditions

The requirements arising if a child enrolled at the service has a specific health care need allergy or relevant medical condition including

bull requiring a parent to provide a medical management plan for the child and

bull requiring the plan to be followed in the event of an incident relating to the childrsquos specific health care need allergy or relevant medical condition and

bull requiring the development of a risk minimisation plan in consultation with the parents of a child

ndash to ensure that the risks relating to the childrsquos specific health care need allergy or relevant medical condition are assessed and minimised and

ndash if relevant that practices and procedures in relation to the safe handling preparation consumption and service of food are developed and implemented and

ndash if relevant that practices and procedures to ensure that the parents are notified of any known allergens that pose a risk to a child and strategies for minimising the risk are developed and implemented and

ndash that practices and procedures ensuring that all staff members and volunteers can identify the child the childrsquos medical management plan and the location of the childrsquos medication are developed and implemented and

ndash if relevant that practices and procedures ensuring that the child does not attend the service without medication prescribed by the childrsquos medical practitioner in relation to the childrsquos specific health care need allergy or relevant medical condition are developed and implemented and

bull requiring the development of a communications plan to ensure that

ndash relevant staff members and volunteers are informed about the medical conditions policy and the medical management plan and risk minimisation plan for the child and

ndash a childrsquos parent can communicate any changes to the medical management plan and risk minimisation plan for the child setting out how that communication can occur

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D

274 The medical conditions policy of the education and care service must set out practices in relation to self-administration of medication by children over preschool age if the service permits that self-administration including recording when a child notifies that they have self-administered medication


275 If a child enrolled at the service has a specific health care need allergy or other relevant medical condition the parent of a child must be provided with a copy of the servicersquos medical conditions policy


276 A lsquomedical conditionrsquo should be interpreted as meaning a condition that has been diagnosed by a registered medical practitioner The National Regulations define lsquoregistered medical practitionerrsquo as a person registered under the Health Practitioner Regulation National Law to practise in the medical profession other than as a student The Australian Health Practitioner Regulation Agency keeps national registers of practitioners on its website at wwwahpragovau

Administration of medication


277 The approved provider nominated supervisor and family day care educator must ensure that medication is not administered to a child at a service unless it is authorised and administered in accordance with the requirements of regulations 95 or 96

278 Administration of medication to a child is authorised when it is recorded in the medication record for the child or when verbal authorisation is given in an emergency (see below)

Authorised administration recorded in medication record for the child


279 The approved provider and family day care educator must keep a medication record for each child who has received or will receive medication administered by the service including the information set out in the table below

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Medication record content

The name of the child

Authorisation to administer medication (including if applicable self-administration) signed by a parent or person named in the childrsquos enrolment record as authorised to consent to administration of medication

The name of the medication to be administered

The time and date the medication was last administered

The time and date or the circumstances under which the medication should next be administered

The dosage of the medication to be administered

The manner in which the medication is to be administered

If the medication is administered to the child

bull the dosage that was administered and

bull the manner in which the medication was administered and

bull the time and date the medication was administered and

bull the name and signature of the person who administered the medication and

bull the name and signature of the person who checked the dosage and administration (except in the case of a family day care service or service permitted to have only one educator)

Authorised administration with verbal consent


280 In case of an emergency administration of medication is authorised if verbal consent is obtained from a parent or person named in the childrsquos enrolment record as authorised to consent to administration of medication If the childrsquos parent or person named in the enrolment record cannot be contacted a registered medical practitioner or medical emergency services can provide verbal consent

281 If medication is administered to a child based on verbal consent from a registered medical practitioner or medical emergency services the approved provider must ensure written notice is given to a parent or other family member as soon as practicable

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Exception to the authorisation requirement ndash anaphylaxis or asthma emergency


282 Medication may be administered to a child without an authorisation in the case of an anaphylaxis or asthma emergency If this occurs the approved provider nominated supervisor or family day care educator must notify the parent of the child and emergency services as soon as practicable

Administered in accordance with regulations 95 or 96


283 Medication must be administered

bull if it has been prescribed by a registered medical practitioner from its original container with the original label including the name of the child for whom it is prescribed before the expiry or use-by date or

bull from its original container with the original label and instructions and before the expiry or use-by date and

bull in accordance with any instructions attached to the medication or provided by a registered medical practitioner either verbally or in writing

284 Except in the case of a family day care service or other service that is permitted to have only one educator a second person must check the dosage of the medication and the identity of the child receiving the medication


285 An approved provider may permit a child over preschool age to self-administer medication if

bull an authorisation for the child to self-administer medication is recorded in the medication record for the child and

bull the medical conditions policy of the service sets out practices in relation to self-administration of medication by children over preschool age


286 Medication includes prescription over-the-counter and complementary medicines A service may have in place policies that restrict the types of medication that will be administered at the service

287 If an authorised officer has concerns about how medication is administered at the service they may discuss the ways in which staff are informed of procedures for administering medication including what to do in the case of an emergency

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D


288 If approved providers nominated supervisors or family day care educators are unsure of how to keep the medication record authorised officers can refer them to the template medication record on the ACECQA website at wwwacecqagovau The template can be adapted to suit the circumstances at the service There is no requirement to use the template

Emergencies and communication


289 Approved providers must ensure policies and procedures are in place for dealing with emergencies and evacuations The procedures must set out instructions for what must be done in the event of an emergency and an emergency and evacuation floor plan

290 A risk assessment must be conducted to identify potential emergencies relevant to the service

291 For centre-based services the approved provider must ensure that emergency and evacuation procedures are rehearsed every three months the service is operating by the staff members volunteers and children present at the service on the day of the rehearsal The responsible person on that day must also participate in the rehearsal

292 For family day care services the approved provider must ensure each family day care educator rehearses every three months the service is operating with the children present on that day

293 A copy of the emergency and evacuation floor plan and instructions must be displayed in a prominent position near each exit at the premises including a family day care residence and approved family day care venue


294 lsquoEmergencyrsquo refers to all situations or events posing an imminent or severe risk to those present at an education and care service premises For example an emergency could include a fire flood or threat that requires a service to be locked down

295 Emergency and evacuation floor plans need only be displayed near exits which it would be practical to use in an emergency

296 Authorised officers may check compliance with the requirement to rehearse emergency and evacuation procedures every three months by checking the service records If the service has more than one emergency and evacuation procedure all procedures must be rehearsed every three months

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D


297 If the approved provider needs advice about evacuation plans and emergency exits authorised officers may suggest they seek advice from their local fire brigade or emergency services authority

298 Emergency and evacuation procedure rehearsals should take place at various times of the day and week to ensure that everyone at the service gets the opportunity to rehearse

299 Rehearsals may be documented on a proforma or noted in a diary or communications book Authorised officers may explain to the approved provider that documenting the rehearsal allows the service to reflect on its procedures and identify necessary adjustments Records can show who has been involved in emergency rehearsals to help ensure everyone participates regularly

Telephone or other communication equipment

National regulations regulation 98

2100 The nominated supervisor and staff members must have ready access to an operating telephone or other similar means of communication to enable immediate communication to and from parents and emergency services


2101 This requirement continues to apply when children leave the premises while being educated and cared for by the service such as on an excursion or regular outing

2102 Appropriate communication equipment may include a fixed-line telephone mobile phone satellite phone two-way radio or video conferencing equipment

2103 Whatever the means of available communication it should be capable of making and receiving calls It must not be locked for outgoing calls or out of credit

2104 When checking compliance with this requirement authorised officers should look at whether a telephone or other communication equipment is readily available whenever children are being educated and cared for as part of the service Communication methods can be adapted to fit with the servicersquos environment and daily circumstances (rural and remote services excursions) Where a fixed-line telephone or mobile phone is used a direct number to and from the service must be available to parents and emergency services for immediate contact at all times that children are attending the service

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D


2105 Authorised officers may suggest to the approved provider they make sure telephone numbers of emergency services are displayed near each means of communication Authorised officers may also encourage the approved provider to make sure the means of communication are located where educators can access them without having to leave children unsupervised

Collection of children from premises

National Regulations regulation 99 WA

2106 The approved provider nominated supervisor and family day care educator must make sure that a child being educated and cared for by the service does not leave the premises except where the child

bull is given into the care of a parent an authorised nominee named in the childrsquos enrolment record or a person authorised by a parent or authorised nominee or

bull leaves in accordance with the written authorisation of the childrsquos parent or authorised nominee or

bull is taken on an excursion or

bull is given into the care of a person or taken outside the premises because the child requires medical hospital or ambulance care or treatment or because of another emergency


2107 lsquoParentrsquo includes a guardian of the child and a person who has parental responsibility for a child under a decision or order of a court It does not include a parent prohibited by a court order from having contact with the child

2108 Authorised officers should be aware that if a child at the service appears to be missing or cannot be accounted for or appears to have been taken or removed from the service premises in a way that breaches the National Regulations it is a serious incident and the regulatory authority must be notified within 24 hours (refer to Leadership and service management)

2109 Where authorised officers are concerned that this requirement may not be being complied with they should consider the policies and procedures in place at the service in relation to the delivery and collection of children and the acceptance and refusal of authorisations required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement

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Excursions


2110 Excursions are outings organised by services or family day care educators An excursion does not include an outing organised by a service on a school site if the children leave the premises in the company of an educator and do not leave the school site

2111 Before taking children on excursions approved providers nominated supervisors and family day care educators must ensure a risk assessment is carried out and authorisation obtained from parents or authorised nominees

2112 A risk assessment is not required for an excursion if the excursion is a regular outing and a risk assessment has been conducted for the excursion in the past 12 months


Maximum number of children

2113 A centre-based service approval states the maximum number of children that may be educated and cared for at any one time and the approved provider must ensure this number is not exceeded (except for children being educated and cared for in an emergency under regulation 123) An approved provider must also ensure the maximum number of children is not exceeded during excursions Children are considered as being educated and cared for by a service if they are enrolled at the service and have been signed in

Risk assessment


2114 Risk assessments must identify and assess risks that the excursion may pose to the safety health or wellbeing of any child taken on the excursion and specify how the identified risks will be managed and minimised A risk assessment must include assessment of the matters set out below

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D

Matters that must be considered in a risk assessment

The proposed route and destination for the excursion

Any water hazards

Risks associated with water-based activities

Transport to and from the destination

The number of adults and children involved in the excursion

The number of educators or other responsible adults appropriate to provide supervision and whether any adults with specialised skills are required

Proposed activities

Proposed duration of the excursion and

The items that should be taken on the excursion

Authorisation


2115 Authorisation must be given by a parent or other person named in the childrsquos enrolment record as having authority to authorise taking the child outside the premises The authorisation must state the information listed below

Information that must be included in an authorisation for an excursion

The childrsquos name

The reason the child is to be taken outside the premises

The date the child is to be taken on the excursion (unless the excursion is a regular outing)

A description of the proposed destination for the excursion

The method of transport to be used for the excursion

The proposed activities to be undertaken by the child during the excursion

The period the child will be away from the premises

The anticipated number of children likely to be attending the excursion

The anticipated educator-to-child ratio for the excursion

The anticipated number of staff members and any other adults who will accompany and supervise the children on the excursion and

That a risk assessment has been prepared and is available at the service

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D

2116 If the excursion is a regular outing the authorisation is only required to be obtained once in a 12 month period


2117 Authorisations given under regulation 102 need to be kept on the childrsquos enrolment record (regulation 161) Refer to Leadership and service management for more information about enrolment records


2118 A template excursion risk management plan is available on the ACECQA website at wwwacecqagovau Approved providers nominated supervisors and family day care educators may choose to use the template but they do not have to

2119 Where the approved provider nominated supervisor or family day care educator is unsure how to go about gathering the necessary information for the risk assessment authorised officers may suggest they visit the proposed excursion destination That way information can be gathered about issues such as the availability of toilets hand washing drinking and shade facilities at the destination and details can be checked such as mobile phone coverage and access for emergency services

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D

Responsibilities of the approved provider nominated supervisor and family day care educator

Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Precautions to be taken to protect children from harm or hazards (section 167)

3 3 3 3

Health hygiene and safe food practices (regulation 77)

3 3 3 3 3

Food and beverages (regulation 78) 3 3 3 3 3

Service providing food and beverages (regulation 79)

3 3 3 3 3

Weekly menu (regulation 80) 3 3 3 3 3

Sleep and rest (regulation 81) 3 3 3 3 3

Tobacco drug and alcohol free environment (regulation 82)

3 3 3 3

Staff members and family day care educators not to be affected by alcohol or drugs (regulation 83)

3 3 3 3 3

Awareness of child protection law (regulation 84) 3 3 3

Incident injury trauma and illness policies and procedures (regulation 85)

3

Notification to parents of incident injury trauma and illness (regulation 86)

3 3

Incident injury trauma and illness record (regulation 87)

3 3

Infectious diseases (regulation 88) 3 3

First aid kits (regulation 89) 3 3 3 3

Medical conditions policy (regulation 90) 3

Medical conditions policy to be provided to parents (regulation 91)

3 3

Medication record (regulation 92) 3 3

D


D

Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Administration of medication (regulation 93) 3 3 3 3

Exception to authorisation requirement ndash anaphylaxis or asthma emergency (regulation 94)

3 3 3

Procedure for administration of medication (regulation 95)

3

Self-administration of medication (regulation 96) 3

Emergency and evacuation procedures (regulation 97)

3 3 3

Telephone or other communication equipment (regulation 98)

3 3 3

Children leaving the education and care service premises (regulation 99)

3 3 3 3

Risk assessment must be conducted before excursion (regulation 100)

3 3 3 3

Conduct of risk assessment for excursion (regulation 101)

3 3 3

Authorisation for excursions (regulation 102) 3 3 3 3


D


D

Useful contacts

Food authorities

State or territory Authority Website


ACT Health

Health Protection Service

healthactgovau

New South Wales NSW Food Authority foodauthoritynswgovau

Northern Territory

NT Department of Health

Environmental Health

healthntgovau

Queensland Qld Health

Food Safety Policy and Regulation Unit

healthqldgovau

South Australia

Department of Health

Food Policy and Programs Branch

sahealthsagovau

Tasmania Department of Health and Human Services

Food Unit

dhhstasgovau

Victoria Food Safety and Regulation healthvicgovau(Note providers in Victoria need to contact their local council for food business registration)

Western Australia

WA Department of Health

Environmental Health Food Unit

publichealthwagovau

D


D

Public health units



ACT Health Health Protection Service Communicable Disease Control

healthactgovau

New South Wales NSW Health ndash Public Health Division healthnswgovau

Northern Territory

NT Department of Health Centre for Disease Control

healthntgovau

Queensland Qld Health ndash Communicable Diseases Branch healthqldgovau

South Australia

SA Health ndash Communicable Disease Control Branch

sahealthsagovau

Tasmania Department of Health and Human Services Public and Environmental Health Service

dhhstasgovau

Victoria Vic Department of Health Communicable Disease and Prevention Unit

healthvicgovau

Western Australia

WA Department of Health Communicable Disease Control Directorate

publichealthwagovau





orsactgovau


checkkidsnswgovau

Northern Territory NT Government workingwithchildrenntgovau


ccypcgqldgovau

South Australia

Screening Unit of the Department for Communities and Social Inclusion (DCSI) South Australia

dcsisagovau



Western Australia

Working With Children Screening Unit (WWCSU) Department for Child Protection WA


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170 Operational Requirements Physical environment Last updated April 2017

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3 Physical environment

Harm and hazards


31 Every reasonable precaution must be taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury


NOTE The following paragraphs include some information about the types of things authorised officers may consider when examining whether every reasonable precaution has been taken to protect children from harm and hazards It is not an exhaustive list and should be treated as guidance only

32 The guidance and information below is about the application of section 167 in relation to physical environment requirements only Authorised officers should be aware the requirement to take reasonable precautions to protect children from harm and hazards is relevant to every aspect of the service not just the physical environment

Equipment and furniture

33 Equipment and furniture available for use by children in an early childhood education and care service should comply with any relevant AustralianNew Zealand Standards at the time of purchase

34 Authorised officers may ask to see confirmation that the equipment or furniture complies with AustralianNew Zealand Standards where they are concerned about its safety For example cots should come with a compliance certificate and information about safe assembly and use Kidsafe Australia is a useful resource for approved providers httpwwwkidsafecomau

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Last updated April 2017 Physical environment Operational Requirements 171

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Use of soft fall under equipment

35 Any impact-absorbing surface provided under or around equipment available for use in an early childhood education and care service should comply with relevant AustralianNew Zealand Standards relating to playground surfacing specifications

36 There is no one ideal impact absorbing surface Authorised officers with concerns about whether reasonable precautions have been taken in respect of surfaces under equipment may talk to the approved provider about how they chose the material in question The approved provider should be able to demonstrate that their choice took into account a variety of considerations including the type of equipment being used the fall height geographical and climatic conditions and maintenance

37 Approved providers should be able to obtain information from the supplier of the equipment or surfacing material about compliance with AustralianNew Zealand Standards

Storage of any harmful cleaning or similar products

38 Laundry or hygiene facilities on the service premises must be located and maintained in a way that does not pose a risk to children If laundry facilities are located in areas which children can access the authorised officer should consider what steps are being taken at the service to keep hazardous materials out of reach of children For example chemicals soiled clothing nappies and linen should be stored where children cannot access them This also applies to the laundry of a family day care residence which may be a thoroughfare to the backyard


39 Authorised officers may point providers to resources such as The Child Accident Prevention Foundation of Australia Guidelines developed by Kidsafe (available at wwwkidsafecomau) when deciding what reasonable precautions to take to protect children from harm and hazards at the service The Childrenrsquos Hospital at Westmead Kids Health webpage also includes fact sheets on childrenrsquos safety that may be helpful (httpkidshealthschnhealthnswgovau)

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Outdoor space requirements


Minimum outdoor space calculations

310 This regulation applies to family day care venues and centre based services but not to family day care residences

311 Education and care service premises must have at least seven square metres of unencumbered outdoor space for each child being educated and cared for at the service

312 Areas such as pathways thoroughfares car parks and storage sheds or any other space that is not suitable for children cannot be counted as outdoor space

313 The area of a verandah included in calculating the area of indoor space cannot be included in calculating the area of outdoor space

314 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 the regulatory authority has given written approval and the indoor space has not been included in calculating the indoor space ndash that is it cannot be counted twice

315 Outdoor space requirements do not apply to centre-based services with respect to a child or children who are being educated and cared for in an emergency For more information see Operational Requirements ndash Staffing arrangements


316 Authorised officers should check that outdoor space is usable by children and does not include areas that if used would pose an unacceptable risk of harm to children

317 Authorised officers can check that the minimum amount of outdoor space is available by looking at the building plans for a service When they visit the service authorised officers may check that the outdoor space reflects the plans

318 See Applications and Approvals for information about approval of indoor space to be included as outdoor space

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Swimming pools and other water hazards

National Regulations regulations 25 116 NSW TAS

319 If a swimming pool or other water hazard is on the proposed education and care service premises a copy of the servicersquos proposed water safety policy is required in the application for service approval for a centre-based service

320 If the provider of a family day care service permits a family day care residence or venue with a swimming pool or something that may constitute a water hazard a copy of the servicersquos proposed water safety policy is to be provided with the service application

321 The existence of any water hazards water features or swimming pool at or near the residence or venue needs to be considered as part of the assessment of each residence and approved family day care venue prior to education and care being provided and at least annually


322 Authorised officers may look at what reasonable precautions are taken to protect children from harm and hazard posed by a swimming pool on the service premises Authorised officers are not responsible for ensuring state and territory legislation in respect of swimming pools and pool fencing is complied with but may request such advice from the approved provider

Fencing


323 Any outdoor space used by children must be enclosed by a fence or barrier that is of a height and design that children of preschool age or under cannot go through over or under it Fencing requirements do not apply to centre-based services that primarily educate and care for children over preschool age Fencing requirements also do not apply to family day care residences or venues if all the children being educated and cared for at that residence or venue are over preschool age


324 Authorised officers should consider if the height and design of the fence is such that children of preschool age or under may be able to scale the fence burrow under it or squeeze through any gaps

325 Authorised officers should also look at the design and maintenance of the fence in relation to outdoor play equipment and other materials in the environment to ensure that children are unable to get a foothold and climb over the fence For example an overhanging tree or tree stump may be used as leverage to get over the fence

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326 When considering whether the service lsquoprimarilyrsquo educates and cares for children over preschool age authorised officers may consider the following factors

bull the percentage of children who are enrolled and if the information is available who attend the education and care service who are over preschool age ndash for example 60 per cent is a persuasive factor 70 per cent would be more persuasive whereas 51 per cent would be less so

bull the operating hours of the service ndash operating mostly or solely out of school hours may indicate the service lsquoprimarilyrsquo educates and cares for school age children and

bull service advertising ndash advertising education and care for school age children may indicate the service primarily provides education and care to school age children


327 Authorised officers may discuss with the approved provider the design of the fence Where possible fencing should allow children to view the outside world but ensure a childrsquos safety by reducing opportunities to escape Allowing children to see the outside world enables children to make connections with the activities of their local community It also supports the development of long-range vision

328 Authorised officers may refer approved providers to the Australian Standards about fencing They may also suggest the approved provider seek advice from their local fire services authority about emergency exits

329 In addition authorised officers may let the approved provider know that for new services and services planning to renovate the Building Code of Australia (BCA) sets requirements from May 2012 in relation to fences and barriers excluding school age care services For services established prior to this existing BCA and state building legislation may apply

General transitional provisions


330 Regulation 104 does not apply to a centre-based service delivering a preschool program in a school and in a class where a full-time education program is also being delivered to school children


331 Regulation 104 does not apply to a declared approved service if the service did not comply with regulation 104 on 1 January 2012 (1 August 2012 in WA) and was not required to comply with a similar requirement immediately before that day

332 Regulation 104 applies to the declared approved service when the service premises are renovated or the service approval is transferred under section 58 of the National Law

333 Renovation of the premises does not include a renovation of a building or structure on the premises that is not used for the education and care of children whether or not it is used to operate the service

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D


334 Regulation 104 does not apply to a family day care residence or declared approved family day care venue used by a family day care educator if the residence or venue did not comply with regulation 104 on 1 January 2012 (1 August 2012 in WA) and was not required to comply with a similar requirement immediately before that day

335 Regulation 104 applies to the family day care service in respect of the residence or venue when the residence or venue is renovated or the family day care educator is no longer registered or engaged by the service

Natural environment


336 Outdoor spaces must allow children to explore and experience the natural environment For example inclusion of natural features such as trees sand and natural vegetation


337 The natural environment needs to include a variety of natural materials This may include gardens sandpits and dirt patches pebblegravel pits edible plants shady trees worm farms compost areas and water play areas Approved providers may bring in logs rocks hay bales tree stumps and potted plants to achieve natural environment requirements This does not mean that all artificial grass and artificial features need to be replaced rather that there is appropriate access for children to interact with the natural environment


338 Authorised officers may talk to the approved provider about using natural elements that reflect the local natural environment Allergies and other health and safety issues should be considered by the approved provider when creating and maintaining the natural environment

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Shade


339 The approved provider must ensure the outdoor spaces at the service premises include adequate shaded areas to protect children from overexposure to the sun

340 The approved provider must ensure policies and procedures are in place in relation to sun protection (regulation 168)









345 In determining what level of shade is lsquoadequatersquo authorised officers should consider whether there is enough shade for the number of children at the service Authorised officers should be aware of Cancer Council Australia recommendations for shade environments (see wwwcancerorgau)

346 Approved providers are required to implement a sun protection policy at all services including family day care If authorised officers are concerned the shade provided at the service is inadequate they may also examine the sun protection policy and procedures for the service to see what measures are in place to ensure children are protected

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D


347 Sun exposure can pose significant health risks for children including sunburn dehydration eye damage and skin cancer However the need to provide adequate shade must also be balanced with the benefits of exposure to sunlight which assists the body to produce vitamin D which is important for healthy bone development and maintenance

348 Shaded areas may be provided by large trees heavy shade cloths or solid roofs There should be sufficient shade over areas for both active and passive outdoor play

349 Cancer Council Australia can provide advice about natural and constructed shade options specific to each jurisdiction and recommended sun protection policies and practices (see wwwcancerorgau)

Premises designed to facilitate supervision


350 The approved provider of a centre-based service must ensure that the premises (including toilets and nappy change facilities) are designed and maintained in a way that facilitates supervision of children at all times they are being educated and cared for having regard to the need to maintain the rights and dignity of the children


351 Authorised officers should look at all design elements including the use of windows and partitions For example low toilet partitions in bathrooms used by young children will maintain privacy while allowing supervision to be maintained

352 In services that educate and care for children over preschool age it is not intended that educators be able to view children while they are using the toilet

353 For sleep rooms supervision windows should be kept clear and not painted over or covered with curtains or posters

354 If the authorised officer has concerns about the design of the premises they may discuss with the approved provider what strategies are in place to combat design issues and to ensure adequate supervision is maintained at all times


355 Authorised officers may talk to the approved provider about how the design of the premises guides educators in deciding where to position themselves to ensure their ability to supervise children Authorised officers may suggest strategies such as a toilet pass system to monitor older childrenrsquos access to bathrooms

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Indoor space requirements

National Regulations regulation 107 NSW WA SA TAS

360 This regulation applies to family day care venues and centre based services but does not apply to family day care residences

361 Education and care service premises must have at least 325 square metres of unencumbered indoor space for each child being educated and cared for at the service

362 Areas such as passageways bathrooms and nappy change areas bottle preparation areas space set aside for the use or storage of cots staff or administrative rooms storage areas and any space not suitable for children are not counted as unencumbered play space The area of a kitchen is not counted as unencumbered space unless it is primarily used by children as part of an educational program

363 The area of a verandah may be included in calculating the area of indoor space with the written approval of the regulatory authority (see Applications and Approvals) A verandah that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space

364 Indoor space requirements do not apply to centre-based services with respect to a child or children who are being educated and cared for in an emergency For more information see Operational Requirements ndash Staffing arrangements

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365 Indoor space must be exclusively available to the education and care service at the time it is operating ndash not shared with other ad hoc care facilities or schools if it is included in the required indoor space

366 Where authorised officers are trying to determine whether the kitchen is primarily used by children as part of an educational program they may consider the following factors

bull is the kitchen established as an educational space ie is it set up with educational equipment suitable for children

bull is the kitchen safe for use by children ie are knives and electrical equipment out of reach of children

bull is the kitchen used to prepare food for children ie is a cook using the kitchen to prepare childrenrsquos meals

bull what proportion of the operating hours of the service is the kitchen used in delivering the educational program ie is the kitchen used every day or for one hour a week

367 Furniture in home corners mobile open shelving offering toys and equipment directly to children and chairs and tables are not considered to encumber the play space as they are an integral part of childrenrsquos play and are moveable

368 Indoor space is calculated on total unencumbered space available not room by room

Ventilation and natural light


369 Indoor spaces must be well ventilated have adequate natural light and be maintained at a temperature that ensures the safety and wellbeing of children


370 Natural ventilation can be provided by open windows and doors If natural ventilation is insufficient or not possible indoor space may be ventilated with an air conditioning system Natural light may be let in through windows doors and skylights

371 Indoor temperatures should be maintained at levels that keep children visibly comfortable Consideration should be given to ambient temperatures and children and educator response to the temperature Authorised officers should be aware that children are more likely to show signs of distress at high temperatures rather than low ones

372 Authorised officers may consider advice from reputable organisations such as SIDS and Kids (wwwsidsandkidsorg) in determining the appropriateness of temperatures for sleeping rooms

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373 Authorised officers may alert approved providers to the requirements of the Building Code of Australia particularly the new requirements from May 2012 for new or renovated services

Glass


374 If a glazed area of a family day care residence or approved venue is accessible to children and situated at or below the height specified by Australian Standard 1288-2006 the following is required

bull safety glazing if required by the Building Code of Australia or

bull treatment with a product that prevents glass from shattering if broken (such as safety film) or guarding with barries that prevent a child from hitting or falling against the glass

For residences or venues approved before 1 June 2014 the above requirements apply where the glazed area is situated 075 metres or less above floor level


375 For more information on safety in the family day care home authorised officers may refer approved providers to Kidsafersquos Family Day Care Safety Guidelines (available from the Kidsafe website at wwwkidsafecomau)

Administrative space


376 The approved provider of a centre-based service must ensure that there is adequate administrative space to conduct the administrative functions of the service consult with parents and conduct private conversations


377 A separate room is not required but space must be set aside for administrative purposes

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378 Authorised officers may talk to the approved provider about providing areas for the preparation of educational programs and the respite of educators other staff and volunteers This is not a legislative requirement under the National Law and Regulations but it is recommended Authorised officers should be aware that in some jurisdictions there are industrial conditions about respite areas Authorised officers are not responsible for checking compliance with industrial conditions

Toilet and hygiene facilities


379 Adequate developmentally and age-appropriate toilet washing and drying facilities must be provided for use by children being educated and cared for by the service The location and design of the toilet washing and drying facilities must enable safe use and convenient access by the children


380 When considering whether the facilities enable lsquoconvenient accessrsquo by children authorised officers may look at whether

bull fixtures and joinery (for example taps) can be comfortably reached and used by children

bull there are enough toilets for the number of children at the service (children should not be required to wait more than occasionally to use the toilet)

bull children can get to a toilet from both inside and outside the service reasonably quickly and

bull there are facilities for the disposal of sanitary items at services catering for children over preschool age

381 In some settings age appropriate toilets for young children may include a potty or over-toilet seat for example family day care services or centre-based services rarely catering for children preschool age or under Similarly if the toilets and hand washing facilities are not designed for use by young children there should be appropriate mechanisms in place to support childrenrsquos access to toilet and hand washing for example stable steps

382 Authorised officers should be aware that the approved provider must take reasonable steps to ensure that the service provides education and care to children in a way that maintains at all times the dignity and rights of each child (see regulation 155) This includes when children are using toilets

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D


383 Authorised officers may alert approved providers to the requirements of the Building Code of Australia in relation to toilet and hygiene facilities particularly the new requirements from May 2012 for new or renovated services

384 If potties are being used authorised officers may refer approved providers to the National Health and Medical Research Council (NHMRC) publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest addition available at wwwnhmrcgovau) for best practice information

Nappy change facilities


NOTE This regulation applies to centre-based services that educate and care for children who wear nappies

385 Adequate and appropriate hygienic facilities must be provided for nappy changing If any children are under three years of age there must be at least one properly constructed nappy changing bench

386 Hand cleansing facilities for adults must be available in the vicinity of the nappy change area

387 Nappy change facilities must be designed located and maintained in a way that prevents unsupervised access by children


388 In checking whether there are an adequate number of nappy change tables authorised officers should consider the number of children wearing nappies There should be a sufficient number to ensure childrenrsquos needs are being met in a respectful appropriate and timely manner

389 Children should not be allowed unsupervised access to the nappy change facilities A half door or child-proof gate may be used to prevent unsupervised access

390 Appropriate facilities must be available for safe and hygienic changing and disposal of nappies Children should be changed on sturdy change tables and there should be sufficient materials on hand (such as disposable paper barriers for change mats baby-wipes) for educators to complete nappy changing and clean their hands thoroughly

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D


391 Authorised officers may alert approved providers to the requirements of the Building Code of Australia about nappy change benches Authorised officers should be aware that facilities may have complied with a former building code depending on when they were constructed

392 Authorised officers may wish to refer approved providers to the National Health and Medical Research Council (NHMRC) publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest edition available at wwwnhmrcgovau) for information on hygienic nappy change and hand washing practices

Laundry and hygiene facilities


393 Services must have or have access to laundry facilities or other arrangements for dealing with soiled clothing nappies and linen including hygienic facilities for storage prior to their disposal or laundering that are adequate and appropriate for the needs of the service The laundry and hygiene facilities must be located and maintained in a way that does not pose a risk to children


394 If there is no laundry on the service premises authorised officers may look at whether arrangements are in place at the service for dealing with soiled clothing nappies and linen For example childrenrsquos linen may be hygienically stored in labelled individual drawstring bags and sent home at the end of the day with the child


395 Authorised officers may alert approved providers to the Building Code of Australia requirements about laundry facilities for centre-based services for children under school age

396 Authorised officers may also refer approved providers to the National Health and Medical Research Council (NHMRC) publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest edition available at wwwnhmrcgovau)

Premises furniture materials and equipment

Safe clean and in good repair


397 The premises and all equipment and furniture used in providing the education and care service must be safe clean and in good repair This requirement only applies to the part of a family day care service that is used to provide education and care

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D


398 When looking at family day care services authorised officers should only examine the part of a family day care residence or venue that is used for education and care including looking at how the approved provider ensures the children are prevented from accessing other areas of the premises


399 Authorised officers may talk to approved providers about using appropriate furniture to assist in minimising accidents and enhance the development of independence confidence and self-esteem in children They may suggest approved providers give consideration to the surface corners weight and stability of furniture and equipment used For example very young children should be provided with chairs that support the child to sit safely rather than a backless stool

Sufficient furniture materials and equipment


3100 Each child being educated and cared for by the service must have access to sufficient furniture materials and developmentally appropriate equipment suitable for the education and care of that child


3101 Sufficient furniture materials and appropriate equipment must be available to meet the range of interests ages and abilities of all children to avoid overcrowding and ensure children do not have to wait for long periods to participate There should be sufficient resources to support the implementation of the educational program and the participation of all children in the program

3102 Authorised officers may consider whether there are enough cots or other appropriate bedding to cater for young children attending the service suitable storage play mats soft toys and changing tables For example non-compliance may arise where all or most of the equipment provided is beyond the developmental age of the children enrolled at the service or if there is insufficient cutlery for all children to use at meal times

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Assessments of family day care residences and approved family day care venues


3103 The approved provider of a family day care service must conduct an assessment (including a risk assessment) of each residence and approved family day care venue of the service before education and care is provided to children and at least annually to ensure that the health safety and wellbeing of children is protected

3104 The matters listed below must also be considered as part of an assessment

Matters that must be considered in an assessment of a family day care residence or venue

The safety cleanliness and repair of premises furniture and equipment

Fencing

The sufficiency of furniture materials and equipment

Adequate laundry facilities or other arrangements for dealing with soiled clothing nappies and linen

Adequacy of toilet washing and drying facilities

Adequacy of ventilation natural light

Glass safety issues

The suitability of the residence or venue according to the number ages and abilities of the children who attend or are likely to attend the service

The suitability of nappy change arrangements for children who wear nappies

The existence of any water hazards water features or swimming pools and

Any risk posed by animals

3105 The approved provider must require each family day care educator to advise the approved provider of

bull any proposed renovations to the residence or venue and

bull any changes in their residence or venue that may affect the matters considered as part of the assessment of the premises and

bull any other changes to the residence or venue that will affect the education and care provided to children as part of the family day care service

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D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Premises furniture and equipment to be safe clean and in good repair (regulation 103)

3 3 3

Fencing (regulation 104) 3 3 3 3

Access to sufficient furniture materials and developmentally appropriate equipment (regulation 105)

3 3

Laundry and hygiene facilities (regulation 106) 3 3

Space requirements ndash indoor space (regulation 107) 3 3 3 3

Space requirements ndash outdoor space (regulation 108)

3 3 3 3

Toilet and hygiene facilities (regulation 109) 3

Ventilation and natural light (regulation 110) 3 3 3 3

Administrative space (regulation 111) 3 3 3

Nappy change facilities (regulation 112) 3 3 3 3

Outdoor space ndash natural environment (regulation 113)

3 3 3

Outdoor space ndash shade (regulation 114) 3 3 3 3

Premises designed to facilitate supervision (regulation 115)

3 3 3

Assessments of family day care residences and approved family day care venues (regulation 116)

3 3 3

Glass (regulation 117) 3 3 3

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Last updated April 2017 Staffing arrangements Operational Requirements 187

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4 Staffing arrangements

Early childhood teacher requirements centre-based services


41 The approved provider and nominated supervisor of an education and care service must ensure that each educator educating and caring for children at the service meets the qualification requirements relevant to the educatorrsquos role


NSW VIC QLD WA SA TAS ACT NT

42 Regulations 129 to 134 apply to centre-based services providing education and care to children who are preschool age or under

43 Centre-based services are required to have access to or attendance of an early childhood teacher The requirements are based on the size of the service (see the table below)

44 For services with fewer than 25 approved places or fewer than 25 children in attendance a service must have access to an early childhood teacher for at least 20 per cent of the time that the service provides education and care

45 An approved service may facilitate access to an early childhood teacher through information and communications technology such as videoconferencing and the access may be calculated on a quarterly basis

46 For centre-based services with 25 or more approved places the requirement is for an early childhood teacher to be in attendance

NOTE A reference to the number of children being educated and cared for at a centre-based service for the purpose of calculating early childhood teacher requirements does not include a child being educated and cared for in an emergency under reguation 123

D

188 Operational Requirements Staffing arrangements Last updated April 2017

D

Early childhood teacher requirements for centre-based services

Number of children Early childhood teacher requirement

Fewer than 25 approved places at the service or fewer than 25 children in attendance

From 1 January 2014 in all states and territories

At least 20 per cent of the time that the service provides education and care the service must have access to an early childhood teacher working with the service

25ndash59 children in attendance on any given day

From 1 January 2014 in all states and territories Saving provision applies in NSW

If a service operates for 50 or more hours a week an early childhood teacher must be in attendance at the service for at least six hours on the given day

If a service operates for less than 50 hours a week an early childhood teacher must be in attendance for 60 per cent of the operating hours of the service on the given day

These requirements do not apply if the service has 25ndash59 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service


From 1 January 2014 in VIC QLD SA TAS ACT NT WA Saving provision applies in NSW



These requirements do not apply if the service has 60 to 80 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service

From 1 January 2020 in VIC QLD SA WA TAS ACT NT Saving provision applies in NSW

If a service operates for 50 or more hours a week an early childhood teacher must be in attendance at the service for at least six hours on the given day and a second early childhood teacher or suitably qualified person must be in attendance at the service for at least three hours on the given day

If a service operates for less than 50 hours a week an early childhood teacher must be in attendance for 60 per cent of the operating hours of the service on the given day and a second early childhood teacher or suitably qualified person must be in attendance for at least 30 per cent of the operating hours on that day

These requirements do not apply if the service has 60 to 80 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service and employs or engages a second early childhood teacher or suitably qualified person for half the full-time hours or full-time equivalent hours at the service

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D



More than 80 children in attendance onany given day




These requirements do not apply if the service has more than 80 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service


If a service operates for 50 or more hours a week an early childhood teacher must be in attendance at the service for at least six hours on the given day and a second early childhood teacher or suitably qualified person must be in attendance at the service for at least six hours on the given day


These requirements do not apply if the service has more than 80 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service and employs or engages a second full-time or full-time equivalent early childhood teacher or suitably qualified person at the service


47 More than one early childhood teacher can meet the requirement for a full time equivalent early childhood teacher if their hours add up to those of a full time early childhood teacher under the relevant industrial award (for example job share arrangements) While early childhood teacher requirements can be satisfied flexibly arrangements must meet the educational and development needs of all children attending the service

D


D

Early childhood teaching qualifications


48 There are two lists of approved early childhood teaching qualifications available on the ACECQA website at wwwacecqagovau

49 A person who holds a qualification on the list of approved early childhood teaching qualifications is an early childhood teacher for the purposes of the Education and Care Services National Law and Regulations

410 A person who holds a qualification on the list of former approved early childhood teaching qualifications is an early childhood teacher for the purposes of the Education and Care Services National Law and Regulations if they obtained that qualification on or before 31 December 2011

General saving and transitional provisions

Persons taken to hold an approved early childhood teaching qualification


411 Under regulation 241 a person is taken to hold an approved early childhood teaching qualification if immediately before 1 January 2012 (1 August 2012 in WA) the person belonged to one of the below groups

Person taken to hold an approved early childhood teaching qualification

The person was recognised under the former education and care services law or for the purposes of a preschool funding program of any participating jurisdiction as an early childhood teacher and employed or engaged in a declared approved service as an early childhood teacher or

The person held a qualification on the list of former approved early childhood teaching qualifications or

The person was registered or accredited as an early childhood teacher in accordance with the requirements of any participating jurisdiction (this sub-regulation does not apply if immediately before 1 January 2012 (1 August 2012 in WA) the person was registered or accredited as an early childhood teacher or equivalent on the basis that the person was working towards an early childhood teaching qualification or equivalent) or

The person was employed to deliver a pre-preparatory learning program in Queensland under the Education (General Provisions) Act 2006 (ie teachers in Bound for Success services) or

The person was registered as a teacher under the Teachers Registration and Standards Act 2004 of South Australia and was employed to deliver a preschool program or

The person was registered as a teacher under the Teachers Registration Act 2000 of Tasmania and was employed to deliver a preschool program at a school established or registered under the Education Act 1994 of Tasmania or

D


D

The person was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland and held a qualification on the list of former approved diploma level education and care qualifications or on the list of approved certificate III and diploma level education and care qualifications for Queensland (international)

412 If immediately before 1 January 2012 (1 August 2012 in WA) the recognition registration accreditation or qualification as an early childhood teacher of a person referred to above was subject to restrictions imposed by or under an education law of a participating jurisdiction the person is taken to be an early childhood teacher subject to the same restrictions

413 If immediately before 1 January 2012 (1 August 2012 in WA) a person was enrolled in a course for a qualification on the list of former approved early childhood teaching qualifications the person is taken to hold an approved early childhood teaching qualification on the completion of the course

414 If immediately before 1 January 2012 (1 August 2012 in WA) a person who was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland was enrolled in a course for a qualification on the list of former approved diploma level education and care qualifications or on the list of approved certificate lll and diploma level education and care qualifications for Queensland (international) the person is taken to hold an approved early childhood teaching qualification

bull while the person is actively working towards the approved diploma level qualification and

bull if the person completes the approved diploma level qualification on completion of that qualification

415 If a person who immediately before 1 January 2012 (1 August 2012 in WA) was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland commences actively working towards an approved diploma level qualification on or before 31 December 2013 the person is taken to hold an approved early childhood teaching qualification



416 For the purposes of these provisions the person is actively working towards an approved diploma level qualification if the person

bull is enrolled in the course for the qualification and

bull provides the approved provider with documentary evidence from the provider of the course that

ndash the person has commenced the course and

ndash is making satisfactory progress towards completion of the course and

ndash is meeting the requirements for maintaining enrolment

D


D


417 ACECQA has determined that a person who holds the following is equivalent to an early childhood teacher

bull a primary teaching qualification that includes at least a focus on children aged 5 to 8 years old for example a qualification with a focus on children aged 3 to 8 or 5 to 12 and

bull teacher registration in Australia or accreditation in New South Wales and

bull an approved education and care diploma qualification or higher such as an approved graduate diploma

418 Under this provision a person is recognised as actively working towards an approved early childhood teacher qualification once they start studying an approved diploma level qualification or higher

419 This transitional measure was reviewed by the ACECQA Board in September 2016 The Board decided to extend the measure until the end of 2019 After the end of 2019 this transitional measure will cease however educators who obtained this combination of qualifications prior to the end of 2019 will continue to be recognised under this provision

Persons taken to be early childhood teachers


420 Under regulation 242 a person may be taken to be an early childhood teacher from 1 January 2014 to 31 December 2017 if the person

bull is actively working towards an approved early childhood teaching qualification and

bull provides documentary evidence that the person

ndash has completed at least 50 per cent of the course or

ndash holds an approved diploma level early childhood education and care qualification


421 Regulation 242 only applies in reference to specific regulations Those regulations are 130ndash134 266ndash267 279 293ndash294 303ndash304 330ndash333 348ndash349 362ndash363 379 This means that in some jurisdictions a person will not be able to take advantage of regulation 242 in all circumstances Authorised officers should check how regulation 242 applies in their state or territory

422 When authorised officers are checking for documentary evidence that the person has completed at least 50 per cent of the course the authorised officer may consider whether the person has received at least half the required credit points for the qualification or is able to substantiate the claim that at least half the course has been completed in another way

D


D

Early childhood teacher illness or absence


423 If an early childhood teacher is absent from the service because of short-term illness or leave (for a period of leave not exceeding 12 weeks) the teacher may be replaced by an educator who holds an approved diploma level education and care qualification or a qualification in primary teaching

424 This does not apply where the early childhood teacher requirements are met by employing an early childhood teacher or teachers on a full time or full time equivalent basis


425 Authorised officers may verify whether a person has a qualification in primary teaching by checking for example if the person is registered as a primary school teacher in Australia

General educator qualification requirements


426 The approved provider and nominated supervisor of an education and care service must ensure that each educator meets the qualification requirements relevant to the educatorrsquos role


427 The approved provider of a family day care service must ensure that at least one qualified person is employed or engaged as a family day care coordinator for the service The approved provider must ensure each family day care coordinator meets the qualification requirements relevant to the coordinatorrsquos role


428 The National Regulations set the minimum educator-to-child ratios If an approved provider chooses to staff their approved service in excess of prescribed ratios the additional educators are not required to meet qualification requirements

429 For example if a centre-based service requires ten educators to meet the minimum prescribed ratios at a particular time and 12 educators are educating at that time the eleventh and twelfth educators are not required to hold an approved qualification

D


D

Qualification requirements centre-based services

National Regulations regulation 126 NSW VIC QLD WA SA ACT NT

430 National educational qualifications are prescribed for educators working directly with children preschool age or under

431 At least 50 per cent of educators in a service must have (or be actively working towards) at least an approved diploma level education and care qualification

432 See the section on Actively working towards an approved qualification for information about educators who meet this requirement

433 The remaining educators necessary to meet minimum educator-to-child ratios are required to have (or be actively working towards) at least an approved certificate III level education and care qualification However in VIC QLD WA ACT NT and TAS a new educator without an approved qualification can be counted as a certificate III qualified educator for the purposes of educator-to-child ratios during a three month probationary period

434 There are no national qualification requirements for educators at centre-based services educating and caring for children who are over preschool age The following states and territories have qualification requirements which apply from 1 January 2012 (1 August 2012 in WA)bull Australian Capital Territorybull Queenslandbull South Australiabull Victoria andbull Western Australia

Further information on qualification requirements can be found via wwwacecqagovaueducators-and-providers1qualifications

435 Qualification requirements for educators in centre-based services working with children over preschool age will apply in the Northern Territory from 1 January 2014


436 Until 1 January 2018 centre-based services located in remote or very remote areas are meeting regulations 132 133 and 134 for attendance of an early childhood teacher if the service has access to an early childhood teacher who works with the service at least 20 of the time calculated quarterly The early childhood teacher may be working with the service by means of information communication technology

D


D

General saving provisions


437 Regulation 126 (and any regulation that applies in the place of that regulation) does not apply to a centre-based service that delivers a preschool program in a school and in a class or classes where a full-time education program is also being delivered to school children


438 An educator at a centre-based service can be included to meet an educator-to-child ratio without having or actively working towards a certificate III level education and care qualification if the educator

bull has been continuously employed as an educator in an education and care service or a childrenrsquos service for at least 15 years up to immediately before 1 January 2012 (1 August 2012 in WA) and

bull is employed by the same provider as employed the educator immediately before 1 January 2012 (1 August 2012 in WA)


439 A person with an approved early childhood teaching qualification can be counted towards the requirement to have at least 50 per cent of educators holding or actively working towards an approved diploma level education and care qualification However to be counted in an educator-to-child ratio the early childhood teacher must be working directly with children

440 A person who is actively working towards an approved early childhood teaching qualification may be counted towards the requirement for all other educators to hold or be actively working towards an approved certificate III level education and care qualification A person actively working towards an early childhood teaching qualification cannot be counted towards the diploma-level qualification requirement unless they already hold an approved certificate III or have completed the approved components of a certificate III (see the definition of lsquoactively working towardsrsquo in the Glossary)

441 To check whether general educator qualification requirements are being met authorised officers may ask to see the staff record (centre-based services) or the record of staff family day care coordinators and family day care educator assistants (for family day care services) required under regulation 177 These records should include evidence of any relevant qualification held by the staff members or that the staff member is actively working towards a qualification

442 Authorised officers should be aware that some staff may be taken to hold a qualification under a transitional or saving provision

D


D

Qualification requirements family day care services

National Regulations regulation 127 NSW VIC QLD WA TAS ACT NT

443 A family day care educator must have (or be actively working towards) at least an approved certificate III level education and care qualification


National Regulations regulation 128 NSW QLD WA TAS ACT

445 A family day care coordinator must have an approved diploma level education and care qualification


446 Regulation 128 can be satisfied by a family day care coordinator who holds an approved early childhood teaching qualification (see the definition of lsquoapproved diploma level education and care qualificationrsquo in the Glossary)

447 Authorised officers should be aware that it is a condition of the service approval that an approved provider appoints sufficient coordinators to adequately monitor and support the family day care educators (see section 51) Refer to Applications and Approvals

448 Qualification requirements for family day care educators do not apply until 1 January 2014 for all states and territories except South Australia

Diploma level education and care qualifications


449 There are two lists of approved diploma level education and care qualifications available on the ACECQA website at wwwacecqagovau

450 The list of approved diploma level education and care qualifications is relevant to educators and family day care coordinators and applicants for a supervisor certificate

451 The list of former approved diploma level education and care qualifications is relevant to educators and family day care coordinators and applicants for a supervisor certificate who obtained that qualification on or before 31 December 2011

D


D

General saving provision

Persons taken to hold approved diploma level education and care qualifications

National Regulations regulations 243 243A

452 A person is taken to hold an approved diploma level education and care qualification if immediately before 1 January 2012 (1 August 2012 in WA) the person

bull was recognised under the former education and care services law of any participating jurisdiction as a diploma level educator and employed and was engaged in a declared approved service or

bull held a qualification on the list of former approved diploma level education and care qualifications or

bull in Queensland held a diploma level qualification on the list of former approved certificate III and diploma level education and care qualifications for Queensland (international)

453 A person is taken to hold an approved diploma level education and care qualification for the purposes of regulation 128 (family day care coordinator qualifications) if immediately before 1 January 2012 the person held a qualification on the list of qualifications and former qualifications for family day care coordinators

Diploma level qualification requirements for centre-based services

Age of children Diploma level education and care qualification requirement

Birth to preschool age

From 1 January 2012 in NT

50 per cent of educators required to meet the relevant ratios in the service must have or be actively working towards at least an approved diploma level education and care qualification

From 1 January 2014 in all states and territories (1 August 2012 in WA)


D


D



Over preschool age

From 1 January 2012 in VIC QLD SA ACT (1 August 2012 in WA)

There are no national qualification requirements for educators at centre-based services educating and caring for children who are over preschool age State and territory qualification requirements (if applicable) continue to apply

See the lists of approved qualification requirements for children over preschool age on the ACECQA website




Diploma level qualification requirements for family day care services


All children From 1 January 2014 in NSW VIC QLD WA TAS ACT and NT Saving provision applies in SA

All family day care coordinators must hold an approved diploma level education and care qualification




454 Authorised officers should also be aware that there are lists of qualifications which apply only to educators working in Queensland Those lists are on the ACECQA website at wwwacecqagovau


455 Authorised officers should advise approved providers the lists are subject to change and should be checked regularly

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D

Certificate III level education and care qualifications

National Regulations regulations 137

456 There are two lists of approved certificate III level education and care qualifications available on the ACECQA website at wwwacecqagovau

457 The list of approved certificate III level education and care qualifications is relevant to educators in centre-based and family day care services

458 The list of former approved certificate III level education and care qualifications is relevant to educators in centre-based and family day care services who obtained that qualification on or before 31 December 2011


Persons taken to hold approved certificate III level education and care qualification


459 A person is taken to hold an approved certificate lll level education and care qualification if immediately before 1 January 2012 (1 August 2012 in WA) the person

bull was recognised under the former education and care services law of any participating jurisdiction as a certificate lll level educator and was employed or engaged in a declared approved service or

bull held a qualification on the list of former approved certificate lll level education and care qualifications or

bull in Queensland held a qualification on the list of approved certificate III and diploma level education and care qualifications for Queensland (international)

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D

Certificate III level qualification requirements for centre-based services

Age of children Certificate lll level education and care qualification requirement



All other educators required to meet the relevant ratios at the service must have or be actively working towards at least an approved certificate III level education and care qualification

Over preschool age


There are no national qualification requirements for educators at centre-based services educating and caring for children who are over preschool age State and territory qualification requirements (if applicable) continue to apply See the lists of approved qualification requirements for children over preschool age on the ACECQA website



Certificate III level qualification requirements for family day care service


All children From 1 January 2014 in NSW VIC QLD WA TAS ACT NT Saving provision applies in SA

All family day care educators must have or be actively working towards at least an approved certificate III level education and care qualification




461 Authorised officers should tell approved providers the lists are subject to change and should be checked regularly

D


D

Actively working towards an approved qualification


462 The National Regulations include provisions to recognise a person who is lsquoactively working towardsrsquo an approved qualification lsquoActively working towardsrsquo is defined at regulation 10 The requirements for different qualification levels are set out below


Qualification level Requirement for lsquoactively working towardsrsquo

Certificate III A person is lsquoactively working towardsrsquo at least an approved certificate III level qualification if they

bull are enrolled in a course for an approved certificate III diploma or early childhood teaching qualification and

bull give the approved provider documentary evidence from the course provider that they

ndash have started the course and

ndash are making satisfactory progress towards completing the course and

ndash are meeting the requirements for maintaining the enrolment

Diploma A person is lsquoactively working towardsrsquo at least an approved diploma level qualification if they

bull are enrolled in a course for an approved diploma level or early childhood teaching qualification and




ndash are meeting the requirements for maintaining the enrolment and

ndash have an approved certificate III level education and care qualification or

ndash have completed the prescribed units of study in an approved certificate III level education and care qualification as determined by ACECQA or

ndash have completed the percentage of total units of study required for completion of an approved early childhood teaching qualification as determined by ACECQA+

D


D


Early childhood teacher

A person is lsquoactively working towardsrsquo an approved early childhood teaching qualification if they

bull are enrolled in a course for an approved early childhood teaching qualification and





ndash have an approved certificate III level education and care qualification or have completed the prescribed units of study in an approved certificate III level education and care qualification

The prescribed units include a list of competencies from the approved certificate III qualifications+ The percentage determined by ACECQA is lsquo30 or more of the total units required to complete any approved early childhood teaching qualificationrsquo








Educator-to-child ratios


466 The approved provider nominated supervisor and family day care educator must ensure the required educator-to-child ratios are met at all times

D


D

Centre-based services


467 An educator cannot be included in calculating the educator-to-child ratio at a centre-based service unless the educator is working directly with children at the service

National Regulations regulation 123 NSW VIC QLD WA SA TAS ACT NT

468 The table below summarises the national educator-to-child ratios for centre-based services set out in regulation 123

National ratios for centre-based services

Age of children Educator-to-child ratio Date requirement applies from

Birth to 24 months 14 1 January 2012 ndash in all states and territories (1 August 2012 in WA)

Over 24 months and less than 36 months

15 1 January 2012 ndash in ACT NT TAS

1 August 2012 ndash in WA

1 January 2016 ndash in NSW QLD SA

Saving provision applies in VIC

Over 36 months up to and including preschool age

111 1 January 2012 ndash in NT

1 January 2016 ndash in ACT QLD VIC

Saving provision applies in NSW SA TAS WA

Over preschool age No national ratio has been set (state and territory ratios may apply)

469 A child or two or more children from the same family being educated and cared for at a centre-based service in an emergency for a maximum period of two consecutive days do not need to be included in calculating the educator to child ratio

470 An approved provider can only permit additional children to be educated and cared for in an emergency if satisfied that it will not affect the health safety and wellbeing of all the children attending the service


471 New national ratios are being implemented between 2012 and 2020 with some jurisdictions saving higher standards that apply in place of the national educator-to-child ratios Authorised officers should ensure they are aware of the jurisdiction-specific transitional or savings provisions that apply in their state or territory


D


D

472 A centre-based service approval states the maximum number of children that may be educated and cared for at any one time and the approved provider must ensure this number is not exceeded except for children being educated and cared for in an emergency under regulation 123

473 An approved provider must also ensure the maximum number of children is not exceeded during events held within the servicersquos usual operating hours and excursions Children are considered as being educated and cared for by a service if they are enrolled at the service and have been signed in

474 For events held outside the usual operating hours the approved provider should make sure that families are invited on the condition that children remain in their care and are not being educated and cared for as part of a service

Mixed age ratios in centre-based services

475 For a mixed age group the minimum educator-to-child ratios for each age range must be met at all times

476 For centre-based services compliance with prescribed minimum ratios is to be assessed across the service This approach provides flexibility to more effectively respond to the needs of children

477 Maintaining the ratio for each age range of children in the mixed age group does not mean the educator-to-child ratio for the youngest age range must be applied to all children in an older age range In a mixed age group of children an educator who is caring for one age range of children can also be counted against another age range of children as long as the ratio for each age range is maintained and adequate supervision is maintained at all times

478 Refer to the example in the table below

NOTE In this example no jurisdictional specific ratios apply Authorised officers need to be aware of jurisdictional specific provisions in relation to educator-to-child ratios


Age Ratio Number of children Minimum educators required

Birth to 24 months 14 3

325 to 35 months 15 5

36 months to preschool age 111 12

TOTAL ndash 20

479 The number of educators required for this group is three This is because the educator who is caring for the three children aged 0 to 24 months can also care for one child aged over 24 months and less than 36 months without exceeding the ratio of 14

480 This then requires a second educator for the remaining four children aged over 24 months

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D

and less than 36 months who can also care for one child aged 36 months to preschool age

481 A third educator is required for the remaining 11 children aged 36 months to preschool age (111)

482 The diagram below demonstrates this same principle

Educator

Birth to 24 months

25 to 35 months

36 months up to and including preschool age children

Children over preschool age

25 to 35 months (5)

36 months up to preschoolkinder (12)

Birth to 24 months (3)

483 The first step to calculate the number of educators necessary is to determine the number of educators needed for the youngest age range of children in the group Once that ratio is met an educator can also supervise children in another age range provided the youngest age range is still maintained

484 The above example also shows how an educator may be deployed across more than one age range while maintaining the required ratio for each age range

Family day care services

National Regulations regulation 124 NSW QLD SA WA TAS NT

485 A family day care educator must not educate and care for more than seven children at a family day care residence or approved family day care venue at any one time A maximum of four of these children can be preschool age or under

486 If the educatorrsquos own children or any other children are at the family day care residence while the service is operating they are to be counted in the overall total of children if they are under 13 years of age and there is no other adult present and caring for the children

487 No more than seven children can be educated and cared for at a family day care residence or an approved family day care venue at any one time This means that a family day care service cannot increase the number of educators at a residence in order to increase the number of

D


D

available places for children

NOTE This requirement does not apply if children are visiting another family day care residence with their educator as part of an excursion

488 In exceptional circumstances the approved provider of the family day care service may approve in writing a family day care educator to care for more than seven children or more than four children who are preschool age or under when

bull all the children being educated and cared for by the family day care educator are siblings in the same family or

bull a child is in need of protection under child protection law or

bull the family day care residence or approved family day care venue is in a rural or remote location and no alternative care is available

489 The table below summarises the national educator-to-child ratios for family day care services

Educator-to-child ratios for family day care services

Age Educator-to-child ratio Date requirement applies from

All children 17 with no more than four children preschool age or under

1 Jan 2012 ndash in ACT QLD SA VIC

1 Jan 2014 ndash in NSW NT TAS WA


490 When checking compliance with regulation 124 authorised officers should discuss with the approved provider what led them to decide to approve a family day care educator educating and caring for more than seven children

491 If an approved provider has approved a family day care educator to provide education and care for more than seven children the regulatory authority might suggest they apply for waiver if the exceptional circumstances are ongoing

Time limit on lsquoexceptional circumstancesrsquo

492 There is no limit on how long the approved provider can approve a family day care educator to care for more than seven children in exceptional circumstances However authorised officers should consider whether the exceptional circumstances that justified the providerrsquos decision to allow more than seven children still exist For example has an appropriate alternative source of education and care become available

493 Regulation 124 requires the approved provider to consider the individual circumstances each time the family day care educator seeks approval to educate and care for more than seven children This means that the approved provider must approve each individual additional child and cannot give lsquoblanket approvalrsquo to a family day care educator caring for more than seven children

Rural and remote

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D

494 The AccessibilityRemoteness Index of Australia (ARIA+) may be used to help determine whether the family day care educator is in a remote or rural area There are five categories of remoteness major cities inner regional outer regional remote and very remote To find out which lsquocategoryrsquo a family day care educatorrsquos residence or venue falls into authorised officers should refer to their respective regulatory authority

495 lsquoOuter regionalrsquo is defined as those areas where geographic distance imposes a moderate restriction on accessibility to the widest range of goods services and opportunities for social interaction lsquoRemotersquo is defined as those areas where geographic distance imposes a high restriction and lsquovery remotersquo is defined as those areas where geographic distance imposes the highest restriction Services in a lsquoremotersquo lsquovery remotersquo or lsquoouter regional arearsquo under ARIA may be considered rural or remote In some cases a postcode may be classified as both lsquoinner regionalrsquo and lsquoouter regionalrsquo Where this arises the regulatory authority may consider a family day care educator operating within this postcode as being in a rural or remote area for the purposes of regulation 124

496 To establish whether the approved provider checked if alternative education and care was available authorised officers may talk to the approved provider about what they took into consideration for example socio-economic and geographic factors as well as the transport links and capacity of nearby services to provide the education and care required

D


D

Family day care educator assistant


497 A family day care educator assistant may provide assistance to a family day care educator while the educator is educating and caring for children as part of the approved service A family day care educator assistant may educate and care for the children in the absence of the family day care educator in limited circumstances as set out below

Circumstances in which a family day care assistant may educate and care for children

Transporting a child between the family day care residence or approved family day care venue and

bull a school or

bull another education and care service or childrenrsquos service or

bull the childrsquos home and

Providing education and care to a child in emergency situations such as when the family day care educator requires urgent medical care or treatment and

Providing education and care to a child when the family day care educator is absent to attend an appointment (other than a regular appointment) if

bull the childrsquos home and the absence is less than for four hours and

bull the childrsquos home and the approved provider of the family day care service has approved the absence and

bull the childrsquos home and notice of the absence has been given to the parents of the child(ren)

498 The approved provider of the family day care service must not approve a person to work as a family day care educator assistant unless the parents of the children to be educated and cared for have provided written consent to the use of the assistant


499 The family day care educator assistant is not required to hold or be actively working towards a certificate III level education and care qualification However the family day care educator assistant is required to hold the first aid qualifications set out at First aid qualifications and training

D


D

Educational leader


4100 An educator coordinator or other individual who is suitably qualified and experienced must be designated to lead the development and implementation of the educational program (or curriculum) in the service

4101 The National Regulations require the approved provider to appoint the educational leader in writing and note this designation in the staff record of the service


4102 The educational leader may be a nominated supervisor (who has suitable experience and qualifications) an early childhood teacher a manager or a diploma or certificate III qualified educator within the service The regulations do not specify a minimum qualification or the number of hours the educational leader should work or whether this person must work directly with children

Educator supervision requirements


4103 A family day care educator and family day care educator assistant must be at least 18 years old

4104 An educator who is under the age of 18 years may work at a centre-based service provided that the person does not work alone and is adequately supervised at all times by an educator who is 18 years of age or over


4105 To check these requirements are being complied with authorised officers may ask to see

bull staff rosters demonstrating that educators under 18 years of age are rostered with an educator who is 18 years of age or over

bull the register of family day care educators andor the staff record which includes record of date of birth and

bull policies and procedures in relation to staff or the engagement or registration of family day care educators and family day care educator assistants

D


D

First aid qualifications and training



4106 At all times and at any place that children are being educated and cared for by the service the following person(s) must be in attendance and immediately available in an emergency

bull at least one educator who holds a current approved first aid qualification and

bull at least one educator who has undertaken current approved anaphylaxis management training and

bull at least one educator who has undertaken current approved emergency asthma management training

4107 The same person may hold one or more of these qualifications

4108 If the approved service is provided by a school on a school site (for example a government kindergarten or preschool) the requirements at regulation 136(2) can be met by one or more staff members of the school holding the relevant qualifications who are in attendance at the school site and immediately available in an emergency


4109 Each family day care educator and family day care educator assistant engaged by or registered with the service must

bull hold a current approved first aid qualification and

bull have undertaken current approved anaphylaxis management training and

bull have undertaken current approved emergency asthma management training

Renewal of first aid qualifications

4110 Authorised officers can refer to the Safe Work Australia First Aid in the Workplace Code of Practice It recommends that persons required to maintain first aid qualifications should attend training on a regular basis to refresh their first aid knowledge and skills and to confirm their competence to provide first aid The Code of Practice also recommends that refresher training in CPR should be undertaken annually and first aid qualifications should be renewed every three years

D


D

4111 The certificate should state the date on which the person completed the course as well as the expiry date which is typically three years from the date of completion The certificate may include additional requirements such as completing refresher training in CPR annually


Persons taken to hold approved first aid qualifications


4112 A person is taken to hold an approved first aid qualification if immediately before 1 January 2012 (1 August 2012 in WA) the person held or had completed a first aid qualification or training that met the requirements under a former education and care services law of a participating jurisdiction and that qualification or training is not included in the list of approved first aid qualifications and training published by ACECQA

4113 This provision applies until 31 December 2012 (31 July 2013 in WA) or the date on which the qualification or training is due to be renewed or updated (whichever is earlier)

Anaphylaxis management training


4114 If an educator trained in anaphylaxis management was not required to be in attendance immediately before 1 January 2012 (1 August 2012 in WA) the approved provider does not have to comply with regulation 136(1)(b) and 136(3)(b) until 1 January 2013 (1 August 2013 in WA)

Emergency asthma management training


4115 If an educator trained in asthma management was not required to be in attendance immediately before 1 January 2012 (1 August 2012 in WA) the approved provider does not have to comply with regulations 136(1)(c) and 136(3)(c) until 1 January 2013 (1 August 2013 in WA)

D


D


4116 Authorised officers should check whether anaphylaxis management or emergency asthma management training was required in their state or territory before 1 January 2012 (1 August 2012 in WA)

4117 If children are taken on an excursion the approved provider must ensure that a person(s) with first aid qualifications and training is in attendance on the excursion If some children remain on the service premises a person(s) with first aid qualifications and training must also remain on the premises

Approval and determination of qualifications


4118 One of the functions of ACECQA is to determine the qualifications required to be held by educators

4119 ACECQA may on application determine qualifications including foreign qualifications to be equivalent to the qualifications required by the National Regulations


4120 ACECQA is responsible for publishing lists of qualifications and first aid training it has approved for the purposes of the National Law The lists of approved qualifications and training are available on the ACECQA website at wwwacecqagovau

4121 An individual with an early childhood qualification(s) not included on the approved qualifications lists can apply to ACECQA to have their qualifications assessed for equivalence A person whose qualification is approved will receive a certificate from ACECQA stating that they have been approved to work as

bull an early childhood teacher or

bull a diploma-level educator or

bull a certificate III-level educator


4122 Authorised officers should refer people to the ACECQA website for information about approved qualifications and applications for assessment of equivalence Where an approved provider is unsure whether a person has been assessed as equivalent or whether the personrsquos certificate is authentic they should contact ACECQA for advice

D


D

Staff records centre-based services


4123 The staff record for a centre-based service must include the below information

Information that must be included in a staff record (centre-based services)

Full name address and date of birth of the nominated supervisor and each other staff member

Evidence of any relevant qualifications (or if applicable evidence that the nominated supervisor or staff member is actively working towards that qualification) and approved training (including first aid training) held by the nominated supervisor and each other staff member

Record of evidence of fitness and propriety of staff members

bull except in the case of NSW Queensland and Tasmania if the staff member has provided proof of their current teacher registration a record of the identifying number of the staff memberrsquos teacher registration and the expiry date of that registration

bull if the education and care service is located in a jurisdiction with a working with children law or a working with vulnerable people law a record of the identifying number of the current check conducted under that law and the checkrsquos expiry date if applicable

bull in Tasmania a record of the identifying number of the staff memberrsquos safety screening clearance or working with vulnerable people registration and the expiry date of that clearance or registration

The name of the person designated as the educational leader

Full name address and date of birth of each student or volunteer who participates and the date and hours of participation

The name of the responsible person for each time that children are being educated and cared for by the service

The name of each educator who works directly with children including the hours that each educator works directly with children and

Record of access to early childhood teachers including

bull for services providing education and care to less than 25 children preschool age or under the period that an early childhood teacher is working with the service including when the teacher did and did not work directly with children and

bull for services providing education and care to 25 or more children preschool age or under the period that an early childhood teacher is in attendance at the service

D


D


Record of evidence of fitness and propriety for a nominated supervisor

bull if the nominated supervisor used teacher registration as proof of fitness and propriety when applying for a supervisor certificate a record of the identifying number of their teacher registration and the expiry date

bull if the education and care service is located in a jurisdiction with a working with children law or working with vulnerable people law a record of the identifying number of the current check conducted under that law and the checkrsquos expiry date if applicable

bull in Tasmania a record of the identifying number of the nominated supervisorrsquos safety screening clearance and its expiry date


4124 The authorised officer may refer the approved provider to the template staff record on the ACECQA website at wwwacecqagovau Providers are not required to use the template

Register of family day care educators


4125 The approved provider of a family day care service must keep at its principal office a register of each family day care educator and any other person engaged by or registered with a family day care service to educate and care for a child

D


D


4126 The register of family day care educators must include the below information in relation to each family day care educator engaged by or registered with the service

Information that must be included in the register of family day care educators

The name address and date of birth of each educator

The contact details of the educator

The address of the residence or approved venue including a statement as to whether it is a residence or venue

The date the educator was engaged or registered and when applicable the date the educator ceased to be engaged or registered (for three years from that date)

The days and hours when the educator usually provides education and care

If the educator is an approved provider or certified supervisor the provider approvalsupervisor certificate number and date it was granted

Evidence of the educatorrsquos qualifications including first aid qualifications and training and if applicable that the educator is actively working towards the qualification

Evidence of any other training completed by the educator

A record of the working with children or working with vulnerable people check including an identifying number and expiry date (if applicable)

The name and date of birth of each child the educator cares for and the days and hours the educator usually provides care to that child and

The full name and date of birth of other people who normally reside at the family day care residence and a record of any working with children or working with vulnerable people check for those people including the identifying number and expiry date and date sighted by the approved provider or nominated supervisor of the service


4127 The authorised officer may refer the approved provider to the template register of family day care educators on the ACECQA website at wwwacecqagovau Providers are not required to use the template

D


D

Records of family day care service staff


4128 The approved provider must keep a record of staff family day care coordinators and family day care educator assistants which includes the below information

Information that must be included in the record of family day care service staff


The full name address and date of birth of the nominated supervisor and each staff member

Evidence of any relevant qualifications (or if applicable that the staff member is actively working towards that qualification) approved training (including first aid qualifications and training) and working with children checks (including identifying number and expiry date) held by the nominated supervisor and each other staff member

Full name address and date of birth of each student or volunteer who participates and the date and hours of participation and

In relation to each family day care educator assistant approved by the service the following information

bull full name address and date of birth of the educator assistant

bull the contact details of the educator assistant

bull the name of the family day care educator to be assisted by the educator assistant

bull the date that the educator assistant was approved by the service

bull when applicable the date that the educator assistant ceased to be approved by the service for the period of three years following that date

bull evidence that the educator assistant has completed approved first aid qualifications and training and

bull the identifying number of the current working with children check working with children card or working with vulnerable people check or record of criminal history or teacher registration of the educator assistant and expiry date (if applicable) and date sighted by the approved provider or nominated supervisor of the family day care service


4129 The authorised officer may refer the approved provider to the template records of family day care staff on the ACECQA website at wwwacecqagovau Providers are not required to use the template

D

Last updated April 2017 Relationships with children Operational Requirements 217

D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Educational leader (regulation 118) 3 3

Family day care educator and educator assistants to be at least 18 years old (regulation 119) 3 3

3

Educators who are under 18 to be supervised (regulation 120)

3 3 3 3

Educators must be working directly with children to be included in ratios (regulation 122)

3

Educator-to-child ratios ndash centre-based services (regulation 123 section 169) 3 3 3

3

Educator-to-child ratios ndash family day care services (regulation 124 section 169)

3 3 3 3 3

Centre-based services ndash general educator qualifications (regulation 126 section 169)

3 3 3 3

Family day care educator qualifications (regulation 127 section 169)

3 3 3 3 3

Family day care coordinator qualifications (regulation 128 section 163)

3 3 3

Requirements for educators who are early childhood teachers (regulation 130ndash134 section 169)

3 3 3 3

First aid qualifications (regulation 136 section 169) 3 3 3 3

Family day care educator assistant (regulation 144)

3

Staff and educator records ndash centre-based services (regulations 145ndash152)

3

Register of family day care educators and records of family day care service (section 269 regulations 153ndash154)

3

D

218 Operational Requirements Relationships with children Last updated April 2017

D

5 Relationships with children

Inappropriate discipline


51 Approved providers nominated supervisors staff members volunteers and family day care educators must ensure that no child being educated and cared for by the service is subject to any form of corporal punishment or any discipline that is unreasonable in the circumstances


52 Authorised officers may discuss with the approved provider and nominated supervisor what measures they have in place to ensure children at the service are not subject to any form of corporal punishment or unreasonable discipline Compliance may be demonstrated by regular staff awareness sessions and a clear reporting structure for concerns as well as a clear and comprehensive policy and procedure in place about staff interactions with children

53 If an authorised officer has concerns about how children are disciplined they may examine the policies and procedures about staff interactions with children as required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement

Interactions with children


54 An approved provider must take reasonable steps to ensure the service provides education and care in a way that

bull encourages the children to express themselves and their opinions

bull allows the children to undertake experiences that develop self-reliance and self-esteem

bull maintains at all times the dignity and rights of each child

bull gives each child positive guidance and encouragement toward acceptable behaviour and

bull has regard to family and cultural values age physical and intellectual development and abilities of each child

D


D

Relationships in groups


55 The approved provider must take reasonable steps to ensure that the service provides children with opportunities to interact and develop respectful and positive relationships with each other and with staff members and volunteers at the service

56 In doing so the approved provider must have regard to the size and composition of the groups in which children are being educated and cared for by the service


57 In considering whether the approved provider has taken reasonable steps to provide children at the service with opportunities to interact and develop respectful and positive relationships the authorised officer may consider

bull the servicersquos policy on interactions with children (required under regulation 168)

bull whether any attachment occurs between children and educators

bull whether the service has implemented inclusive practices which allow all children to participate in the program regardless of background or ability

bull whether the environment and routines at the service assist children to manage their own behaviour and promote positive relationships and

bull whether group sizes take into account childrenrsquos ages development and individual needs


58 Authorised officers should work with services to ensure that group sizes achieve positive outcomes for children Authorised officers may talk to the approved provider about giving consideration to the physical environment service philosophy development needs of the children educatorsrsquo qualifications and experience and the operational requirements of the service when determining group sizes

59 Group size affects factors such as noise level the amount of stimulation and level of confusion Smaller groups enable children to form caring relationships with one another engage in meaningful shared experiences and discovery through play Large groups may lead to a loss of intimacy and result in overly restrictive controlling or detached caregiving Small groups are particularly important for infants Smaller group sizes are also associated with a lower risk of infection and appear to improve the safety of children

D

220 Operational Requirements Collaborative partnerships with families and communities Last updated April 2017

D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Interactions with children (regulation 155)

3

Relationships in groups (regulation 156)

3 3

Inappropriate discipline (section 166)

3 3 3 3


This offence also applies to staff members and volunteers at the service

D

Last updated April 2017 Collaborative partnerships with families and communities Operational Requirements 221

D

6 Collaborative partnerships with families and communities

Access for parents


61 A parent of a child may enter a servicersquos premises at any time the child is being educated and cared for by the service

62 The approved provider nominated supervisor or family day care educator is not required to allow a parent to enter the service premises if

bull permitting the parentrsquos entry would pose a risk to the safety of the children and staff of the service

bull permitting the parentrsquos entry would conflict with any duty of the provider supervisor or educator under the National Law or

bull they reasonably believe that permitting the parentrsquos entry would contravene a court order

63 A parent includes a guardian of a child or a person who has parental responsibility for a child under a decision or order of a court


64 The regulatory authority may suspect an approved provider nominated supervisor or family day care educator has failed to comply with this requirement if for instance they are notified of a complaint from a parent who has been refused access In such cases the regulatory authority should seek to establish whether entry was refused based on one of the three exceptions outlined above by discussing the factors that informed the decision to refuse the parent entry

65 For example if the approved provider nominated supervisor or family day care educator says the parent was denied access because an aggravated violence order is in place against the parent the authorised officer may ask to see the childrsquos enrolment record which must include details of any court orders parenting orders or parenting plans in relation to the child or access to the child (regulation 160)

D

222 Operational Requirements Leadership and service management Last updated April 2017

D

66 Authorised officers should note that where a decision to refuse access arose as a result of circumstances which posed a risk to the health safety and wellbeing of children the incident should be reported to the regulatory authority (regulation 175) Where this incident relates to a parent complaint refer also to the section on Leadership and service management

67 Authorised officers should be aware that providers are required to have policies and procedures about the delivery and collection of children (regulation 168)


68 Approved providers are not required to have policies about access to children However authorised officers may suggest that an approved provider develop a policy about access to children to clarify for parents the circumstances in which they may be denied access Similarly authorised officers may suggest to approved providers that they keep a record of any decisions to refuse access to parents


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Access for parents (regulation 157)

3 3 3 3

Offence relating to direction to exclude inappropriate persons (section 171)

3 3 3 3


D

Last updated April 2017 Leadership and service management Operational Requirements 223

D

7 Leadership and service management

Management of services

Childrenrsquos attendance record National Regulations regulation 158

71 The approved provider must ensure that a record of attendance is kept for the service that

bull records the full name of each child attending the service

bull records the date and time each child arrives and departs and

bull is signed at the time the child arrives and departs by either the person who delivers the child or collects the child or the nominated supervisor or an educator

72 A preschool program provided by a school is not required to comply with this requirement if it keeps attendance records in accordance with the education law or government education department policy that applies in that jurisdiction


73 The family day care educator must keep a record of attendance for each child attending the educatorrsquos residence or venue that

bull records the full name of each child


bull is signed at the time the child arrives and departs by either the person who delivers the child or collects the child or if the signature of the person who delivers the child cannot reasonably be obtained the family day care educator


74 The family day care educatorrsquos own children (under 13 years of age) do not need to be signed in and out each day

75 The approved provider does not need to keep the record of attendance if it is kept by the family day care educator (see regulation 177(5))


76 Where approved providers are concerned about managing family day care educator-to-child ratios authorised officers may suggest the provider require family day care educators to keep a record of when they are caring for their own children while also educating and caring for children as part of the service so the provider can make sure ratio requirements are met

D


D

Childrenrsquos enrolment record National Regulations regulations 160ndash162

77 The approved provider must ensure that an enrolment record is kept for each child enrolled at the service The family day care educator must keep an enrolment record for each child educated and cared for by the educator The enrolment record must include the below information

Information that must be included in enrolment record

Full name date of birth and address of the child

The name address and contact details ofbull each known parent of the childbull any emergency contactbull any authorised nomineebull any person authorised to consent to medical treatment or administration of medication andbull any person authorised to give permission to the educator to take the child off the premises

Details of any court orders parenting orders or parenting plans

Gender of the child

Language used in the childrsquos home

Cultural background of the child and their parents

Any special considerations for the child such as cultural dietary or religious requirements or additional needs

Authorisations forbull the approved provider nominated supervisor or an educator to seek medical treatment andor

ambulance transportation for the child andbull the service to take the child on regular outings

Name address and telephone number of the childrsquos registered medical practitioner or medical service

Medicare number (if available)

Details of any specific healthcare needs of the child including any medical conditions allergies or diagnosis that the child is at risk of anaphylaxis

Any medical management plan anaphylaxis medical management plan or risk minimisation plan

Dietary restrictions

Immunisation status

If the approved provider or a staff member has sighted a child health record a notation to that effect and

In NSW certificates for immunisation or exemption for the child as required under the Public Health Act 2010 NSW

D


D

Other adults at the family day care service to be fit and proper

Residents and family day care educator assistants


78 The approved provider of a family day care service must take reasonable steps to ensure that family day care educator assistants and any persons age 18 years or over who live at the family day care residence are fit and proper people to be in the company of children To do this the approved provider must assess each person by taking into account one of the following

bull a criminal history check issued in the previous six months

bull a current working with children check or card or working with vulnerable people check based on a criminal history record check or

bull a current teacher registration

79 In NSW and Queensland the approved provider must consider the personrsquos current working with children check or card In Victoria the approved provider must consider the personrsquos current working with children check or current teacher registration In Tasmania the approved provider must consider the personrsquos safety screening clearance or working with vulnerable people registration


710 The approved provider of a family day care service must require each family day care educator to notify the provider of

bull any new persons aged 18 years or over who live or intend to live at the educatorrsquos family day care residence and

bull any circumstances which may affect the fitness and propriety of a resident at a family day care educatorrsquos residence or a family day care educator assistant who has previously been assessed as fit and proper

D


D

Visitors to family day care residences and approved family day care venues


711 An approved provider must take all reasonable steps to ensure a record of all visitors to a family day care residence or approved family day care venue is kept A family day care educator must keep a record of all visitors to the educatorrsquos residence or venue while children are being educated and cared for at the residence or venue The record must include the signature of the visitor and the time of arrival and departure


712 The approved provider must take all reasonable steps to make sure a child being educated and cared for is not left alone with a visitor The family day care educator must not leave a child being educated and cared for at the residence or venue alone with a visitor


713 See Supervising unauthorised persons below for information about who is considered to be a visitor under the National Law

Supervising unauthorised persons

National Law section 170 TAS

714 An approved provider and nominated supervisor (except for those in Tasmania) must ensure that an unauthorised person does not remain on the education and care service premises while children are being educated and cared for at the premises unless the person is under the direct supervision of an educator or other staff member

715 A family day care educator (except for those in Tasmania) must ensure that an unauthorised person does not remain on the education and care service premises while children are being educated and cared for at the premises unless the person is under the direct supervision of the educator

D


D

716 The National Law defines a person who is not an lsquounauthorised personrsquo as set out below

People who are not an unauthorised person

A person who holds a current working with children check or card

A parent or family member of a child at the service (not including a parent or family member whose access to the child is prohibited by a court or tribunal order of which the approved provider nominated supervisor or family day care educator is aware or who is an inappropriate person)

An authorised nominee of a child at the service

In the case of an emergency medical or emergency service personnel or

A person who is permitted under the relevant working with children law to remain at the service premises without holding a working with children check or card


717 Parents family members and authorised nominees are not unauthorised persons and therefore are not required to be directly supervised while on the education and care service premises Similarly educators who are part of the family day care service are registered with the service and considered to be an appropriate person to educate and care for children so are not considered to be an unauthorised person This also applies to the coordinator of the family day care service


718 The National Law and Regulations do not require an approved provider or nominated supervisor of a centre-based service to keep a record of visitors However they may decide to keep a visitorrsquos book to help ensure any unauthorised persons do not remain at the service unless under direct supervision

D


D

Record of servicersquos compliance


719 The approved provider must keep a record of the servicersquos compliance The record must include

bull details of any amendment to the service approval made by the regulatory authority under section 55 of the National Law

bull details of any suspension of the service approval other than a voluntary suspension and

bull details of any compliance direction or notice issued to the approved provider in respect of the service

720 The record must not include any information that identifies any person other than the approved provider The details of an amendment suspension compliance direction or notice do not need to be included if the period for seeking review has not yet expired or a review request has not yet been determined Details also do not need to be included if a review has been conducted and the amendment suspension compliance notice or compliance direction was not confirmed


721 See Information and record-keeping requirements below for more information

D


D



722 The approved provider must ensure the service has in place policies and procedures in relation to the matters set out in the table below


Health and safety including

bull nutrition food and beverages dietary requirements

bull sun protection

bull water safety

bull administration of first aid

Incident injury trauma and illness procedures (regulation 85)

Dealing with infectious diseases (regulation 88)

Dealing with medical conditions (regulation 90)

Emergency and evacuation (regulation 97)

Delivery to and collection of children from the education and care service (regulation 99)

Excursions (regulations 100ndash102)

Providing a child safe environment

Staffing including

bull code of conduct for staff members

bull determining the responsible person

bull participation of volunteers and students

Interactions with children (regulations 155ndash156)

Enrolment and orientation

Governance and management of the service including confidentiality of records

Acceptance and refusal of authorisations

Payment of fees and provision of a statement of fees and

Dealing with complaints

D


D


723 For a family day care service the approved provider must also ensure the service has in place the policies and procedures in relation to the below matters

Policies and procedures for a family day care service

Assessment and approval and reassessment of approved family day care venues and family day care residences (regulation 116)

Engagement or registration of family day care educators

Keeping a register of family day care educators (regulation 153)

Monitoring support and supervision of family day care educators

Assessment of family day care educators family day care educator assistants and people living at family day care residences (regulation 163)

Visitors to family day care residences and venues while children are being educated and cared for

Provision of information assistance and training to family day care educators and

Engagement or registration of family day care educator assistants


724 The approved provider must take reasonable steps to ensure that the nominated supervisor staff members and any volunteers at the service follow the policies and procedures


725 The policies and procedures must be readily accessible to the nominated supervisor staff members and volunteers Current copies must be available for inspection at all times the service is operating and on request


726 Parents of children at the service must be notified at least 14 days before making any change to a policy or procedure required under regulations 168 and 169 if

bull the change may have a significant impact on the servicersquos provision of education and care to any child enrolled at the service

bull the change may have a significant impact on the familyrsquos ability to utilise the service or

bull the change will affect the fees charged or the way in which fees are collected

D


D

727 The approved provider does not have to comply with the notice period if the provider considers it would pose a risk to the safety health or wellbeing of any child at the service to do so In that case the approved provider must notify parents as soon as practicable after making the change


728 Authorised officers should ensure there are policies and procedures in place at the service which cover the matters set out in regulation 168 and for family day care services regulation 169 The policies do not have to be in any particular style or format and do not need to be titled to reflect the exact wording of the National Regulations

729 The prescribed policies and procedures must be available for inspection at a centre-based servicersquos premises and for family day care services at each family day care residence and approved venue and any office of the family day care service This requirement may be met through a paper copy or electronic version


730 Authorisation must be obtained in respect of administering medication to children (regulation 92) for children leaving the premises in the care of someone other than a parent (regulation 99) and for children to be taken on excursions (regulation 102) The servicersquos lsquoacceptance and refusal of authorisationsrsquo policy should set out the circumstances the provider would accept (or refuse) an authorisation For example the policy may state that authorisations must be in writing signed and dated and clearly state the name of the child to whom the authorisation relates


731 Authorised officers may choose to talk to approved providers about developing and maintaining policies informed by current best practice from relevant recognised authorities For example a sun protection policy may reference the information from Cancer Council Australia

732 Authorised officers may find that some approved providers have decided to restrict who can be nominated to collect a child For example they may not allow children to be collected by a person under the age of 16 year Where the approved provider has decided to do this it should be documented in their policy about collection of children Authorised officers may choose to talk to approved providers about whether they have taken into consideration that some parents may be less than 18 years of age

D


D

Information and record-keeping requirements

Information to be displayed at the education and care service



733 The approved provider must ensure the information set out in the table below is positioned so that it is clearly visible to anyone from the main entrance to the education and care service premises

Information to be displayed

The approved providerrsquos name approval number and any conditions on the provider approval

The approved servicersquos name approval number and any conditions on the service approval

The nominated supervisorrsquos name or the prescribed class to which the nominated supervisor belongs

The servicersquos current ratings against each quality area and the overall rating

Whether a waiver is in force at the service and if so which elements andor regulations have been waived the duration of the waiver and whether the waiver is a temporary or service waiver

The hours and days of operation of the service

The name and telephone number of a person to whom complaints can be addressed

The name and position of the responsible person at a centre-based service at any given time

The name of the educational leader

The contact details of the regulatory authority

If applicable a notice stating that a child that has been diagnosed as at risk of anaphylaxis is enrolled at the service and

If applicable a notice of an occurrence of an infectious disease at the service

D


D


734 Prescribed information about anaphylaxis or infectious diseases should be displayed at a family day care residence or approved family day care venue if applicable to a child who attends that specific family day care residence or venue It should be displayed at the family day care office if children or parents regularly attend the office

735 The National Law and Regulations do not prescribe how this information should be displayed Some information could be permanently displayed as a laminated poster or framed certificate while other information (such as information which is updated regularly) could be displayed on a whiteboard

Reporting information to the regulatory authority ndash approved provider and approved service


National Regulations regulations 174 175

736 The approved provider must notify the regulatory authority that granted the provider approval if any of the below events occur in relation to the approved provider or each approved service operated by the provider

Events that must be notified to the regulatory authority

A change to the name of the approved provider (14 days)

Any appointment or removal of a person with management or control of a service operated by the approved provider (14 days)

A failure to commence operating a service within six months (or other time agreed with the regulatory authority) after being granted approval for the service (14 days)

Any change to the fitness and propriety of the approved provider (7 days)

Any change to the address or principal office of the approved provider or the approved providerrsquos contact details (7 days) and

The appointment of receivers or liquidators or administrators to the approved provider or other matters that affect the financial viability and ongoing operation of the service (7 days)

737 The notification must be made in writing within the time period specified above of the event occurring or of the approved provider becoming aware of the event

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D

Reporting information to the regulatory authority ndash approved service



738 The approved provider must notify the regulatory authority of the events set out in the table below in relation to an education and care service operated by the provider

Information that must be reported

The suspension or cancellation of a working with children card or teacher registration or disciplinary proceedings under an education law of a participating jurisdiction in respect of a certified supervisor engaged by the service

The end of a nominated supervisorrsquos employment or engagement with the service or withdrawal of their consent to the nomination

Any proposed change to the education and care service premises (other than a family day care residence)

Ceasing to operate the education and care service

A change of location of the family day care service principal office

Any change to the hours and days of operation of the service

Any change to the state or territory in which the family day care service operates

If a new approved family day care venue is added to the service and

Any circumstances arising at the service which pose a risk to the health safety and wellbeing of a child or children at the service

739 The notification must be in writing to the regulatory authority in which the service approval was granted or for a family day care service the regulatory authority in each jurisdiction the family day care service operates The notification must be made within seven days of the event or within seven days of the approved provider becoming aware of the event

740 If the approved provider intends to transfer the service approval the transferring and receiving approved providers must jointly notify the regulatory authority within 42 days before the transfer is intended to take effect or a lesser period agreed by the regulatory authority (section 59)

D


D



742 When regulatory authorities receive a notification of a change to the location of the principal office of a family day care service they should update the service approval accordingly using section 55 of the National Law See Applications and Approvals ndash Amendment of service approval without application

Reporting information to the regulatory authority ndash serious incidents change of circumstances and complaints



743 The approved provider must also notify the regulatory authority of the following events in relation to an education and care service operated by the provider

bull any serious incident at the service or any incident that requires the approved provider to close the service or to reduce the number of children attending the service for a period

bull complaints alleging the safety health or wellbeing of a child or children is or was being compromised while the child or children are or were being educated and cared for by the service and

bull complaints alleging the National Law has been contravened

bull the attendance of any additional children being educated and cared for in an emergency including a description of the emergency and a statement by the approved provider that they have taken into account the safety health and wellbeing of all children at the service when deciding to provide education and care for the additional children

744 One form of serious incident is lsquoan incident involving serious injury or trauma to or illness of a child while being educated and care for by an education and care service which a reasonable person would consider required urgent medical attention from a registered medical practitioner or for which the child attended or ought reasonably to have attended a hospitalrsquo (regulation 12(b))

D


D

745 The notification must be in writing to the regulatory authority in which the service approval was granted or for a family day care service the regulatory authority in each jurisdiction the family day care service operates The notification must be made within 24 hours of the event or the person becoming aware of the event

746 In the case of the death of a child the regulatory authority must be notified as soon as practicable but within 24 hours of the death or the time the person becomes aware of the death

747 In the case of the attendance of additional children being educated and cared for in an emergency the regulatory authority must be notified within 24 hours of the additional children commencing attendance at the service


748 The intent of the National Regulations is to ensure that regulatory authorities are notified of incidents that seriously compromise the health safety or wellbeing of children The notification of such incidents informs the regulatory authority that a serious incident has occurred so that it is able to take appropriate action

Serious incidents



750 The following information is available on the ACECQA website at wwwacecqagovau Authorised officers may discuss this information with approved providers to clarify requirements about what incidents must be reported to the regulatory authority

D


D

751 Below are some examples of the sorts of serious incidents about which regulatory authorities would expect to be notified (note this is not an exhaustive list)

Examples of a serious incident

Head injuries

Fractures

Burns

Removal of fingers

Meningococcal infection

Anaphylactic reaction requiring hospitalisation

Witnessing violence or a frightening event

Epileptic seizures

Bronchiolitis

Whooping cough

Measles

Diarrhoea requiring hospitalisation

Asthma requiring hospitalisation and

Sexual assault

752 If the approved provider is not aware that the incident was serious until sometime after the incident they must notify the regulatory authority within 24 hours of becoming aware that the incident was serious For example where a child hurts their arm at the service but is in no obvious pain and continues to play If the parent later advises that the childrsquos symptoms had worsened and a fractured arm had been confirmed then the approved provider should report the incident as a serious incident

753 If it is not practicable to notify the regulatory authority using the relevant form (because for example of the extreme urgency of the notification or difficulty getting the notification forms signed by the number of people indicated by the form) the notification can be made initially in whatever way is best in the circumstances The important thing is for the notification to be made within 24 hours

D


D

Matters which impact on day-to-day operation of the service or may pose a risk to children


754 The intent of the National Regulations is to ensure that regulatory authorities are notified of circumstances that pose a significant risk The concern is with situations that impact negatively on the operation of the service This is separate from the requirement to notify a lsquoserious incidentrsquo involving a particular child

755 An example of circumstances that need to be notified is where parents may be unable to get to a service to collect their children because the service is in a flood affected area with the flood water rising

756 Another example would be if there is a land subsidence at the property adjoining a service The service may be deemed structurally safe by experts and remain operational but a large hole in the neighbouring property could potentially pose a risk to the health safety and wellbeing of children

757 These circumstances are more about situations that have happened to or impacted on the operation of the service rather than an incident that has occurred directly to a child

D


D

Requirement to keep enrolment and other documents



758 The approved provider must keep the documents set out in the table below available for inspection by an authorised officer

Documents for inspection

Documentation of child assessments or evaluations for delivery of the educational program (regulation 74)


Medication record (regulation 92)

Record of assessments of family day care residences and approved family day care venues (regulation 116)

For centre-based services ndash a staff record (regulation 145)

Record of volunteers and students (regulation 149)

Record of the responsible person (regulation 150)

For centre-based services ndash record of educators working directly with children (regulation 151)

Record of access to early childhood teachers (regulation 152)

For family day care services ndash a record of staff family day care coordinators and family day care educator assistants (regulation 154)

Childrenrsquos attendance record (regulation 158)

Child enrolment records (regulation 160)

Record of the servicersquos compliance (regulation 167)

Record of certified supervisors placed in day-to-day charge (section 162) and

Evidence of current prescribed insurance (unless the prescribed insurance is a policy of insurance or an indemnity provided by the government of a state or territory) (regulation 180)

759 The approved provider must take reasonable steps to make sure the documents are accurate The approved provider does not need to keep a document if the equivalent is kept by the family day care educator (see below)

D


D


760 The requirement for approved providers to keep a record of educators working directly with children is intended to assist regulatory authorities to monitor compliance with educator-to-child ratio requirements and adequate supervision

761 Regulation 151 does not dictate how the required information must be recorded The provider may use a staff roster or timesheets to capture the required information or an alternative method

762 Authorised officers should use a common sense approach Authorised officers should not expect to see a record of breaks from working with the children if the breaks are short and are for matters such as going to the toilet answering a phone call talking to a parent or briefly checking paperwork However a record would need to be kept for rostered breaks or if an educator is going into another room to do work away from the children for a longer period of time for instance preparing the programing for the next day

763 Authorised officers should encourage providers to value a clear and accurate record of educators working directly with children as helping them demonstrates that educator-to-child ratios are being met and children are adequately supervised at all times


764 A family day care educator is required to keep the documents set out below for each child being educated and cared for by the educator as part of the service

Documents that must be kept by a family day care educator




Attendance record (regulation 159)

Enrolment records (regulation 160) and

Record of visitors to the family day care residence or approved family day care venue (regulation 165)

765 The family day care educator must take reasonable steps to ensure the documents are accurate

766 A family day care educator must provide all documents listed above to the approved provider upon ceasing to be engaged by or registered with the service

D


D


767 If a service approval is transferred the transferring approved provider must transfer the documents required under regulation 177 to the receiving provider if they relate to children currently enrolled at the service The transfer must not occur without the permission of a parent of the child

Insurance information


768 The approved provider must keep evidence of prescribed insurance at the education and care service premises or for a family day care service at the principal office A family day care educator must keep evidence of public liability insurance at the family day care residence or venue Evidence of insurance must be made available for inspection by a regulatory authority or authorised officer This does not apply if the insurance (or indemnity) for the service is provided by a state or territory government

Confidentiality and storage of records

Documents to be available for inspection by authorised officers


769 The documents that an approved provider must keep under the National Regulations must be available for inspection by an authorised officer

770 To the extent practicable an approved provider must keep the documents set out in regulation 177 at the education and care service premises if they relate to

bull the operation of the service

bull any staff member employed or engaged by the service or

bull any child cared for or educated at those premises

in the previous 12 months

771 In any other case the documents must be kept at a place and in a manner that is readily accessible by an authorised officer

772 The documents that a family day care educator must keep under the National Regulations must be available for inspection by an authorised officer at the educatorrsquos family day care residence or approved family day care venue

D


D

Access to documents


773 Any documents relating to a child must be made available to a parent of the child on request (unless limited by a court order) The record of the servicersquos compliance must be able to be accessed by any person on request

Confidentiality


774 The approved provider and the family day care educator must ensure that information kept in a record under the National Regulations is not divulged or communicated directly or indirectly to another person other than in the situations listed below

Circumstances in which confidential information may be disclosed

To the extent necessary for the education and care or medical treatment of the child to whom the information relates

A parent of the child to whom the information relates (except information in a staff record)

The regulatory authority or an authorised officer

As expressly authorised permitted or required to be given by or under any act or law

With the written consent of the person who provided the information and

For a family day care educator ndash the approved provider or nominated supervisor of the family day care service

D


D

Storage of records and other documents


775 The approved provider must ensure the documents kept under regulation 177 are stored in a safe and secure place and for the relevant period The relevant period for different types of records is set out below

Timeframes for keeping records

If the record relates to an incident illness injury or trauma suffered by a child while being educated and cared for by the service or may have been suffered following an incident that occurred while being educated and cared for at the service until the child is aged 25

If the record relates to the death of a child while being educated and cared for by the service or that may have occurred as a result of an incident while being educated and cared for by the service until seven years after the death

In the case of any other record relating to a child enrolled at the service until the end of three years after the last date on which the child was educated and cared for by the service

If the record relates to the approved provider until the end of three years after the last date on which the approved provider operated the service

If the record relates to the nominated supervisor or a staff member until the end of three years after the last date on which the nominated supervisor or staff member provided education and care on behalf of the service or

In the case of any other record until the end of three years after the date on which the record was made


776 The prescribed records and information must be stored in a safe and secure place This means the information should remain confidential and only be able to be accessed by persons who have the authority to do so (which includes authorised officers) For example through storage in a locked filing cabinet or locked room or stored electronically in a secure manner (such as password protected)

777 Authorised officers may discuss with the approved provider and family day care educator what steps they take to ensure documents are kept confidential

D


D

Law and Regulations to be accessible


778 The approved provider must ensure that a copy of the National Law and Regulations is accessible at the education and care service premises at all times for use by the nominated supervisor staff members volunteers parents of children enrolled at the service and any person seeking to make use of the service


779 For a family day care service a copy of the National Law and Regulations should be accessible at the principal office of the service and each educatorrsquos residence or venue It can be an electronic copy

D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Childrenrsquos attendance record to be kept (regulation 158 159)

3 3

Childrenrsquos enrolment record to be kept (regulation 160)

3 3

Authorisations to be kept in enrolment record (regulation 161)

3 3

Health information to be kept in enrolment record (regulation 162)

3 3

Residents at family day care residences and family day care educator assistants to be fit and proper persons (regulation 163)

3 3 3

Requirement for notice of new persons at residence (regulation 164)

3 3 3

Record of visitors (regulation 165) 3 3

Children not to be alone with visitors (regulation 166)

3 3 3

Record of servicersquos compliance (regulation 167) 3

Education and care service must have policies and procedures (regulation 168)

3 3 3

Additional policies and procedures ndash family day care service (regulation 169)

3 3 3

Policies and procedures to be followed (regulation 170)

3 3 3

Policies and procedures to be kept available (regulation 171)

3 3 3

Notification of change to policies or procedures (regulation 172)

3 3

D

246 Operational Requirements Other regulatory frameworks Last updated April 2017

D

Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver

Prescribed information to be displayed (regulation 173 section 172)

3 3 3

Time to notify certain circumstances to regulatory authority (regulation 174 section 173)

3 3 3

Prescribed information to be notified to the regulatory authority (regulation 175 section 174)

3 3

Time to notify certain information to regulatory authority (regulation 176 section 174)

3 3

Prescribed enrolment and other documents to be kept by approved provider (regulation 177 section 175)

3 3 3 3 3

Family day care educator to provide documents on leaving service (regulation 179)

3

Evidence of prescribed insurance (regulation 180)

3 3

Confidentiality of records kept by approved provider and family day care educator (regulations 181 182)

3 3 3

Storage of records and other documents (regulation 183)

3 3

Storage of records after service approval transferred (regulation 184)

3

Law and regulations to be available (regulation 185)

3 3 3


D

Last updated April 2017 Other regulatory frameworks Operational Requirements 247

D

8 Other regulatory frameworks

Interactions with other regulatory frameworks

81 Although the Education and Care Services National Law is the main statute under which education and care services are regulated approved providers and to a lesser degree their staff are subject to a variety of other legislative frameworks This means a providerrsquos experience of regulation may look something like this

Education and Care Services National Law and

Regulations

Buildingcodes

Food safety laws

Fire safetylaws

Family assistance

law

Childrenrsquos services laws

Occupational health and safety laws

Industrial relations

Working with children laws

Interaction between the Education and Care Services National Law and Regulations and other regulatory frameworks


D

82 Regulatory authorities are only responsible for monitoring and enforcing compliance with the National Law and Regulations Authorised officers should be aware of other regulators of the education and care sector and have a basic understanding of their role so they are clear about boundaries

83 There will be occasions when authorised officers identify

bull non-compliance under the National Law which may also constitute non-compliance under other legislation

bull non-compliance with other legislation

84 How authorised officers respond in these situations is going to depend on the seriousness of the issue and the relationship between the regulators in the specific state or territory In some cases the authorised officer may warn the approved provider that they appear to be in breach of other legislation in more serious situations the authorised officer may notify the relevant regulator However authorised officers should be careful in these situations not to be drawn into areas of regulation outside their responsibility and expertise

Referencing other regulatory standards

85 There are some situations where other regulatory standards can be a useful guide to aid interpretation of the National Law and Regulations For example the National Regulations require the approved provider to ensure that lsquoadequatersquo health and hygiene practices and safe practices for handling preparing and storing food are implemented at the service (regulation 77) The National Regulations do not specify what lsquoadequatersquo health and hygiene practices are so it is appropriate for authorised officers to be informed by the Australian food safety standards and by state and territory specific laws when interpreting this requirement However authorised officers should be careful to ensure that they remain focussed on the requirements of the National Law and Regulations and do not stray into checking compliance with matters outside the National Quality Framework


D


D

Last updated April 2017 Monitoring Compliance and Enforcement 251

EMonitoring Compliance and Enforcement


Contents

1 Monitoring 253

What is monitoring 253

Choosing a monitoring activity 255

2 Compliance tools 256

Infringement notices 259

Emergency action notices 262

Compliance directions 263

Compliance notices 267

Enforceable undertakings 269

Prohibition notices 273

Direction to exclude inappropriate persons from service premises 278

Prosecution 280

3 Conditions 282

4 Suspensions and cancellations 287

Notice to suspend education and care by a family day care educator 287

Suspension or cancellation of a supervisor certificate 290

Suspension of service approval 294

Cancellation of service approval 299

Suspension of provider approval 305

Cancellation of provider approval 310

5 Serving notices 316

6 Publishing information about enforcement actions 317

What information can be published 317

Timing of publication 320

7 Powers of regulatory authorities 321

General powers 321

Power to obtain information documents and evidence by notice 322

Power to obtain information documents and evidence at an education and care service 323

Emergency removal of children 325

8 Powers of authorised officers 326

Authorised officers 326

Authorised officerrsquos powers of entry 327

Authorised officerrsquos powers to obtain information and seize items 338

9 Conducting an investigation 343

Closing an investigation 347

Gathering evidence 347

Using photographs and film 349

10 Offences relating to enforcement 351

Offence to obstruct an authorised officer 351

Offence to fail to assist an authorised officer 351

Offence to destroy or damage notices or documents 352

Offence to impersonate authorised officer 352

Offence to fail to comply with notice or requirement 352

Offence to hinder or obstruct regulatory authority 353

False or misleading information or documents 353

11 Complaints 354

Receiving complaints 354

Once a complaint has been received 355

Responding to a complaint 358

Complaints outside the scope of the National Quality Framework 358

252 Monitoring Compliance and Enforcement Last updated April 2017

E









Legend

Last updated April 2017 Monitoring Monitoring Compliance and Enforcement 253

E

1 Monitoring

What is monitoring

11 Monitoring is a proactive compliance action A monitoring activity may assess compliance with the legislation generally or may target particular responsibilities or obligations Regulatory authorities can then make informed decisions about any further regulatory actions that may be necessary Monitoring can be directed at a single service or service type

12 Regulatory authorities should use monitoring activities as part of a range of regulatory tools to influence compliance with the National Law and Regulations and promote continuous quality improvement in education and care services

13 Information gained through monitoring should help regulatory authorities identify issues requiring a regulatory response and assess the effectiveness of previous regulatory interventions Monitoring also provides a strong incentive for providers to comply with their regulatory obligations and to improve the quality of education and care at their services

254 Monitoring Compliance and Enforcement Monitoring Last updated April 2017

E

14 There are several forms of monitoring activities set out in the table below

Monitoring activities

Type Description Benefits

Information and guidance

Providing guidance on how to comply with requirements and improve compliance and quality by conducting forums information sessions publishing newsletters factsheets FAQs web content etc

Referring providers to helpful resources that support professional development for example professional support coordinator inclusion support agency

Ensures that providers and others with obligations under the legislation are aware of their responsibilities and know how to comply

Targeted campaigns

Monitoring for a specific compliance issue location or service type

Encourages providers and others to ensure that they are complying with a specific issue of concern to the regulatory authority Focuses the regulatory authorityrsquos resources on addressing a specific problem

Assessment and rating

The process of assessing and rating a service against the NQS including by conducting a service visit

Encourages continuous improvement by engaging the approved provider and the service in a process of self-evaluation as well as providing a detailed report of their performance against the NQS

Unscheduled visits

Visiting services without prior notice or warning

Encourages providers and others to comply with their obligations at all times Unscheduled visits are particularly useful when there is reason to believe the provider may be non-compliant and misrepresenting its self-reported data or is likely to destroy evidence if an inspection is announced

Scheduled visits

Visiting services with prior notice or warning

Encourages providers and others to comply with their obligations and gives them time to prepare for compliance visits for example by making sure certain paperwork is readily available or particular staff members are present


E

Choosing a monitoring activity

15 Regulatory authorities should determine the frequency and focus of monitoring activities based on risk and with reference to the principle of earned autonomy The Good Regulatory Practice chapter discusses these concepts in detail

16 To help assess risk regulatory authorities may need to collect and analyse information about a service or a service type Some of the sources of information to assess risk are set out in the table below Many will come from existing regulatory actions

Sources of information to help assess risk

The servicersquos quality improvement plan

The provider and the servicersquos history of compliance

The servicersquos quality rating

Characteristics of the service (length of time in the industry service type etc)

Information obtained from other sources such as complaints or notifications

Information gathered from other monitoring activities or regulatory activities including investigations

Analysis of broader sector or regional compliance trends

Other regulatory systems with relevant or overlapping requirements andor compliance monitoring

17 Regulatory authorities should obtain the required information at the least possible cost or burden to the regulatory authority and the service provider

18 Regulatory authorities must comply with the National Law when undertaking any monitoring activities For more information refer to Powers of authorised officers and Powers of regulatory authorities below

19 Intelligence gathered through monitoring activities may lead to further compliance action This information can also be used to identify strengths weaknesses opportunities concerns map sector development and understand broader regulatory trends or issues

256 Monitoring Compliance and Enforcement Compliance tools Last updated April 2017

E

2 Compliance tools21 There are a wide range of methods and tools available to regulatory authorities to use when

addressing non-compliance This section sets out the tools that are available under the legislation and provides some guidance for regulatory authorities to help them determine which tool to use based on the specific circumstances

22 These tools should be used in context of the Good Regulatory Practice chapter which sets out the objectives of the National Law and the best practice principles of regulation listed below

Best practice principles of regulation

Outcomes focus




Independence


Mutual responsibility and

Consistency and predictability

23 Regulatory authorities should take a responsive regulatory approach when choosing the methods used to manage non-compliance considering all the associated risks Regulatory action should not be seen as an end in itself It should promote improved quality outcomes for children and families and further the objectives of the National Law

Last updated April 2017 Compliance tools Monitoring Compliance and Enforcement 257

E

Summary of compliance tools

PersonCompliance tools available Description

Approved provider

Infringement notice A fine for minor breaches of the National Law or the National Regulations (section 291)

Emergency action notice

Direction to remove an immediate risk to children (section 179)

Compliance direction

Instruction to comply with prescribed section or regulation (section 176)

Compliance notice

Instruction to comply with any section or regulation (section 177)

Enforceable undertaking

Agree to an undertaking from a person to take certain actions or refrain from certain actions to comply with the National Law and the National Regulations (section 180)

Direction to exclude inappropriate persons from service premises

Instruction to exclude a person from education and care service premises (section 171)

Impose a condition on service approval

A requirement in respect of a specific service that the approved provider must comply with to avoid committing an offence under the National Law (section 51)

Impose a condition on provider approval

A requirement that the approved provider must comply with to avoid committing an offence under the National Law (section 19)

Prosecution Bringing any offence against the National Law or the National Regulations for decision by a court or tribunal

Notice to suspend education and care by family day care educator

Prevent a family day care educator from providing education and care to children as part of a family day care service (section 178)

Suspension of service approval

Temporarily prevent a provider from operating a specific service (section 70)

Cancellation of service approval

Permanently prevent a provider from operating a specific service (section 77)

Suspension of provider approval

Temporarily prevent a provider from operating any services (section 25)

Cancellation of provider approval

Permanently prevent a provider from operating any service (section 31)


E



Nominated supervisor




Direction to exclude a person from education and care service premises

Direction to exclude inappropriate persons from service premises (section 171)


Suspension or cancellation of a supervisor certificate

Temporarily or permanently prevent a person from being placed in charge of a service (section 123)

Family day care educator

Infringement notice

A fine for minor breaches of the National Law or the National Regulations (section 291)

Enforceable undertaking Agree to an undertaking from a person to take certain actions or refrain from certain actions to comply with the National Law and the National Regulations (section 180)




Certified supervisor



Staff member educator or volunteer


Agree to an undertaking from a person to take certain actions or refrain from certain actions to comply with the requirement not to use inappropriate discipline (section 180)

Prosecution Bringing an offence to use inappropriate discipline under the National Law for decision by a court or tribunal

Any person in any way involved in an education and care service

Prohibition notice Prohibit a person from being involved in an education and care service in any way (sections 182ndash188)



E

24 When deciding whether or not to use these tools regulatory authorities should also be mindful of their administrative law obligations and refer to the guidance set out in Good Regulatory Practice Imposing conditions on a service or provider approval can also be used to address compliance issues For more information on conditions see Applications and Approvals

25 Regulatory authorities should also be mindful of the need to keep detailed records of compliance activities For information on keeping records of investigations and decisions see Good Regulatory Practice The NSW State Records Act 1998 applies to all jurisdictions for the purposes of the National Law and Regulations (section 265)

Infringement notices


What is an infringement notice

26 An infringement notice is a monetary penalty for non-compliance with specific requirements of the National Law and Regulations An infringement penalty is 10 per cent of the maximum penalty that could be imposed on the person for that offence Infringement offences are typically for minor offences that are clear and unambiguous They are used to give a person an immediate minor penalty in order to deter future non-compliance

Who does it apply to

27 An infringement notice can be served on a person who contravenes a specific requirement of the National Law and Regulations


E

When can it be used


28 An infringement notice can only be served on a person for a contravention of the requirements set out below

Requirements for which an infringement notice may be used

LawRegulation Requirement Person

Section 172 Display prescribed information Approved provider

Section 173 Notify certain circumstances to the regulatory authority

Approved provider

Section 176 Comply with a compliance direction Approved provider

Regulation 77(1) (2) and (3)

Health hygiene and safe food practices Approved provider



Regulation 80(1) Weekly menu Approved provider


Use of alcohol or drugs Approved provider



Regulation 86 Notification of incidents Approved provider

Regulation 88(1) Infectious diseases Approved provider

Regulation 89(1) and (2)

First aid kits Approved provider


Regulation 97(4) Display of emergency and evacuation plan Approved provider

Regulation 98 Telephone or communication equipment Approved provider

Regulation 104(1) Fencing regulation Approved provider

Regulation 112(3) Nappy change facilities Approved provider


Enrolment and other documents to be kept by approved provider

Approved provider


Enrolment and other documents to be kept by family day care educator



E


29 Once satisfied that this tool can be used a regulatory authority may consider the following in deciding whether an infringement notice is appropriate

bull is there no serious risk to the safety health and wellbeing of children being educated and cared for at the service

bull is the penalty proportionate to the seriousness of the offence

bull is the penalty likely to serve as a deterrent to committing the offence again

How can it be used

210 An infringement notice may be served in accordance with the requirements of the National Law about serving notices Refer to Serving notices

211 An infringement notice must be in the form prescribed or contain the information prescribed by the infringements law of the specific state or territory Regulatory authority staff should seek advice about what the law in their state or territory requires when using an infringement notice

Can it be appealed

212 The decision to serve an infringement notice is not a reviewable decision under the National Law However a person may seek to dispute the infringement notice in a court or tribunal For more information see Reviews

What happens after it has been issued

213 Once an infringement penalty has been paid

bull the infringement cannot be considered when assessing if a person is fit and proper to be involved in the provision of or to be supervisor of an education and care service and

bull the infringement notice cannot be considered when assessing and rating a service

Failure to pay infringement penalty

214 If it is not paid the rules of the relevant state or territory about enforcing infringement notices will apply


E

Emergency action notices


What is an emergency action notice

215 An emergency action notice is a written notice setting out steps the approved provider must take to remove or reduce an immediate risk to the safety health or wellbeing of a child or children being educated and cared for by the service


216 An emergency action notice can only be given to an approved provider

When can it be used

217 A regulatory authority can only issue an emergency action notice if it is satisfied that an education and care service is operating in a manner that poses or is likely to pose an immediate risk to the safety health or wellbeing of a child or children being educated and cared for by the service


218 Once satisfied that this tool can be used a regulatory authority may consider the following in deciding whether an emergency action notice is appropriate

bull is it possible for the regulatory authority to set out clear steps which if followed would reduce or remove the risk

bull will it be possible for the approved provider to remove or reduce the risk in less than 15 calendar days

bull is the action proportionate to the seriousness of the offence

bull is the action likely to serve as a deterrent

How can it be used

219 An emergency action notice may be given in accordance with the requirements of the National Law about serving notices Refer to Serving notices

220 The notice must set out how long the approved provider has to comply and this period cannot be more than 14 calendar days


E

Can it be appealed

221 The decision to give an emergency action notice is not a reviewable decision under the National Law


222 An approved provider must comply with an emergency action notice within the period set out in the notice The period cannot be more than 14 calendar days

Failure to comply with emergency action notice

223 If the approved provider does not comply with the emergency action notice the regulatory authority may consider taking further compliance action

224 The maximum penalty which may be imposed by a court for not complying with an emergency action notice is $6000 in the case of an individual $30000 in any other case

225 The regulatory authority cannot prosecute for non-compliance with the emergency action notice and the original offence

Compliance directions


What is a compliance direction

226 A compliance direction must be in writing and requires an approved provider to take steps set out in the direction to comply with a specific provision of the National Regulations

NOTE A compliance direction is different from a compliance notice because it can only be used for a breach of certain provisions of the National Law and Regulations It is also carries a lower maximum penalty for non-compliance


227 A compliance direction can only be given to an approved provider


E

When can it be used

National Regulations schedule 3

228 A compliance direction can be given to the approved provider if the regulatory authority is satisfied that an education and care service has not complied with one of the regulations set out in the table below

Requirements for which a compliance direction can be given to the approved provider


55(1) Quality improvement plan

72(1) (2) Offences in relation to giving false or misleading statements about ratings

74(1) Documenting child assessments or evaluations for delivery of educational program

75 Information about educational program to be kept available

76 Information about educational program to be given to parents

77(1) Health hygiene and safe food practices

78(1) Food and beverages

79(1) Service providing food and beverages

80(1) Weekly menu

81(1) Sleep and rest

82(1) Tobacco drug and alcohol-free environment

83(1) Nominated supervisors staff members and volunteers not to be affected by alcohol or drugs

84 Awareness of child protection law

89(1) First aid kits

91 Medical conditions policy to be provided to parents

97(2) (3) (4) Emergency and evacuation procedures

98 Telephone or other communication equipment

103(1) Premises furniture and equipment to be safe clean and in good repair

104(1) Fencing

105 Furniture materials and equipment

106(1) (2) Laundry and hygiene facilities


E



07(2) Indoor space

108(2) Outdoor space



112(3) Nappy change facilities




116(1) Assessments of family day care residences and approved family day care venues

117(1) Glass

118 Educational leader

119 Family day care educator and educator assistant to be at least 18 years old

120 Educators who are under 18 to be supervised

36(1) First aid qualifications

156(1) Relationships in groups

57(1) Access for parents

163(1) (2) Residents at family day care residence and family day care educator assistants to be fit and proper persons

164 Requirement for notice of new persons at residence

168(1) Education and care service must have policies and procedures

169(1) Additional policies and procedures ndash family day care service

170(1) (2) Policies and procedures to be followed

171(1) (2) Policies and procedures to be kept available

172(1)(b) Notification of change to policies or procedures affecting ability of family to utilise service

177(2) (3) Prescribed enrolment and other documents to be kept by approved provider

183 Storage of records and other documents

185 Law and Regulations to be available


E


229 Compliance directions are intended to compel approved providers to comply with straightforward legislative obligations This tool is particularly useful when it is appropriate to give the provider some time to take a specific action to comply with a requirement but the regulatory authority wants to use a strong lever to make sure the provider complies

230 Once satisfied that this tool can be used a regulatory authority may consider the following in deciding whether a compliance direction is appropriate

bull is it possible for the regulatory authority to set out clear steps which if followed would result in the approved provider complying with the regulation

bull does the breach cause an immediate serious risk to the safety health and wellbeing of children being educated and cared for at the service


bull is the action likely to serve as a deterrent to committing the offence again

How can it be used

231 A compliance direction may be issued in accordance with the requirements of the National Law about serving notices Refer to Serving notices

232 The notice must set out how long the approved provider has to comply The period cannot be less than 14 calendar days


233 The compliance direction should be accompanied by information about the approved providerrsquos right to an internal review of the decision under section 190 of the National Law See Reviews for more information

Can it be appealed


234 A decision to give a compliance direction is subject to review under the National Law See Reviews for more information


E


235 An approved provider must comply with the requirements in a compliance direction within the period set out in the direction The period cannot be less than 14 calendar days

Failure to comply with compliance direction

236 If the approved provider does not take the steps set out in the compliance direction or does not take those steps within the required timeframe the regulatory authority may consider taking further compliance action including by serving an infringement notice

237 The maximum penalty which may be imposed by a court for not complying with a compliance direction is $2000 in the case of an individual $10000 in any other case

238 The regulatory authority cannot prosecute for non-compliance with the compliance direction and the original offence

Compliance notices


What is a compliance notice

239 A compliance notice is a written notice requiring the approved provider to take the steps set out in the notice to comply with any provision of the National Law and Regulations

NOTE A compliance notice is different from a compliance direction because it can be used for a breach of any part of the National Law or National Regulations It also carries a higher maximum penalty for non-compliance


240 A compliance notice can only be given to an approved provider


E

When can it be used

241 A regulatory authority can give a compliance notice if satisfied a provision of the National Law or Regulations is not being complied with This means the regulatory authority will need to examine the requirements of the specific provision to determine whether it has grounds to give the notice


242 Compliance notices are intended to compel approved providers to comply with their legislative obligations This tool is particularly useful when it is appropriate to give the provider some time to take a specific action to comply with a requirement but the regulatory authority wants to use a strong lever to make sure the provider complies

243 Once satisfied that this tool can be used a regulatory authority may consider the following in deciding whether a compliance notice is appropriate





How can it be used

244 A compliance notice may be issued in accordance with the requirements of the National Law about serving notices Refer to Serving notices

245 The notice must set out how long the approved provider has to comply The period cannot be shorter than 14 calendar days


246 The compliance notice should be accompanied by information about the approved providerrsquos right to an internal review of the decision under section 190 of the National Law See Reviews for more information

Can it be appealed


247 A decision to give a compliance notice is subject to review under the National Law See Reviews for more information


E


Disclosure

248 The regulatory authority may publish specific information about compliance notices Refer to Publication of enforcement actions

Failure to comply with compliance notice

249 An approved provider must comply with a compliance notice within the period set out in the notice The period cannot be less than 14 calendar days

250 If the recipient of the compliance notice does not take the steps set out in the notice or does not take those steps within the required timeframe the regulatory authority may consider taking further compliance action

251 The maximum penalty that may be imposed by a court for not complying with a compliance notice is $6000 in the case of an individual $30000 in any other case

252 The regulatory authority cannot prosecute for non-compliance with the compliance notice and the original offence

Enforceable undertakings


What is an enforceable undertaking

253 An enforceable undertaking is a written undertaking from a person in which the person sets out what they will do or refrain from doing to comply with the National Law and Regulations


254 An enforceable undertaking can be given by any person who has contravened or the regulatory authority alleges has contravened the National Law or Regulations


E

When can it be used

255 If a person has contravened or the regulatory authority alleges that a person has contravened a provision of the National Law it can accept an enforceable undertaking from the person


256 An enforceable undertaking is a useful tool where there is evidence of a breach or potential breach of the National Law or Regulations which may justify enforcement action but voluntary action by the offender is most likely to encourage ongoing compliance

257 Enforceable undertakings are designed to address non-compliance through prevention and remediation Their purpose is to reduce risk by having the person in question voluntarily modify their practices behaviour or skills to ensure they comply with the National Law and Regulations Because an enforceable undertaking is voluntary it should only be accepted in circumstances where the person giving the undertaking is willing to abide by the undertaking

How can it be used

258 The National Law allows a regulatory authority to accept an enforceable undertaking from a person who has contravened or who the regulatory authority alleges has contravened a provision of the National Law A regulatory authority does not have to accept an enforceable undertaking

259 A regulatory authority cannot require a person to enter into an enforceable undertaking However the regulatory authority may suggest to a person that they give an enforceable undertaking

Content of an enforceable undertaking

260 An enforceable undertaking must be in writing It should set out each specific undertaking in plain language Each undertaking must be assessable so the regulatory authority can check it has been fulfilled

261 An enforceable undertaking needs to address the contravention or alleged contravention of the National Law and set a timeframe for the undertaking to be fulfilled

262 An enforceable undertaking needs to include the name and signature of the person giving the undertaking and the date it was accepted by the regulatory authority


E

263 When negotiating the content of an enforceable undertaking with the person the regulatory authority may seek to include the matters listed below

Examples of matters in an enforceable undertaking

A commitment to comply with a particular requirement or requirements of the National Law and to remain compliant in the future

An acceptance of responsibility for the non-compliance

Details of the non-compliance being addressed by the enforceable undertaking

Arrangements for the person to monitor compliance with the undertaking

Arrangements for the regulatory authority to monitor compliance with the undertaking and

Arrangements for publishing the details of the undertaking

264 An enforceable undertaking should not include the below matters

Matters an enforceable undertaking should not include

A denial that the person giving the undertaking breached the National Law (although they do not have to admit a breach)

Obligations on the regulatory authority which are not already obligations independent of the undertaking

Attempts to limit the regulatory authorityrsquos discretion or to require the authority to exercise its discretion in a particular way

Obligations on people other than the person giving the undertaking (although it is acceptable to include a requirement for the person to be mentored monitored audited etc by a third party and requirements which affect the personrsquos employees in their capacity as employees)

Confidentiality or non-disclosure requirements or

An undertaking to pay an infringement notice penalty

265 Enforceable undertakings must not be unduly burdensome or disproportionate to the breach or alleged breach of the National Law The obligations imposed by the undertaking should not be more intrusive expensive or damaging than obligations which may result from other enforcement action such as cancellation of an approval or prosecution

266 Regulatory authorities should not accept enforceable undertakings which will cause loss or damage to a third party unless that loss or damage is unavoidable to properly address the breach


E

Deciding whether to accept an enforceable undertaking

267 Factors which the regulatory authority may consider when deciding whether or not to accept an enforceable undertaking include

bull is it likely the enforceable undertaking will be fulfilled

bull does the undertaking address the non-compliance

bull is the regulatory authority able to monitor compliance with the enforceable undertaking

bull is the person willing to comply with the undertaking

268 It is at the discretion of the regulatory authority whether it will accept an enforceable undertaking from a person The acceptance of an enforceable undertaking does not establish a precedent that would bind the regulatory authority to accept an enforceable undertaking in similar circumstances or to accept an enforceable undertaking from a person who has previously entered into one

What happens after it has been accepted

Disclosure

269 The regulatory authority may publish on its website an enforceable undertaking it has accepted Refer to the section on Publishing information about enforcement actions

Changing or withdrawing acceptance of an enforceable undertaking

270 A person may withdraw or change the enforceable undertaking with the agreement of the regulatory authority

271 The regulatory authority may withdraw its acceptance of the undertaking at any time and the undertaking ceases to be in effect on that withdrawal

Combining an enforceable undertaking with other compliance action

272 An enforceable undertaking may be combined with other action such as

bull education about how to comply

bull action to amend or suspend the personrsquos provider approval (sections 23 25) or service approval (sections 55 70) if the person is an approved provider

bull action to amend or suspend the personrsquos supervisor certificate (sections 120 123) if the person is a certified supervisor or

bull an infringement notice (section 291)


E

Failure to comply with an enforceable undertaking


273 If the regulatory authority considers the person who gave the enforceable undertaking has failed to comply with any of its terms the regulatory authority may seek an order from the relevant tribunal or court to enforce the undertaking

274 The tribunal or court may order the person to comply with the undertaking to take a specific action to comply with the undertaking or any other order appropriate to the circumstances

275 If the tribunal or court determines that a term of the undertaking has been breached legal action can be taken for any offence related to the breach of the undertaking or the original non-compliance

276 The regulatory authority is not required to seek an order The regulatory authority may choose to withdraw the enforceable undertaking and address the non-compliance through other statutory action for example an infringement notice or prosecution The action would be based on the original breach of the National Law or Regulations not on failure to fulfil the enforceable undertaking

277 Seeking orders from the relevant tribunal or court may be an expensive process and there are no guarantees either an order can be sought in the timeframe required to address the breach or that the tribunal or court will grant the order sought by the regulatory authority

278 When deciding whether or not to seek an order the regulatory authority should take into account all options available to address the breach

Prohibition notices


What is a prohibition notice

279 A prohibition notice is a written notice given to a person which states that the person is prohibited from doing any of the following

bull providing education and care to children for an education and care service

bull being engaged as a supervisor educator family day care educator employee contractor or staff member or being a volunteer at an education and care service and

bull carrying out any other activity relating to education and care services


E


280 A prohibition notice may be given to any person who is in any way involved in the provision of an approved education and care service

281 A person may be involved in the provision of an approved education and care service as any of the below roles

People involved in the provision of an approved education and care service

An approved provider

A certified supervisor

An educator

A family day care educator

An employee

A contractor

A volunteer or

In any other capacity

When can it be used


282 A regulatory authority may give a prohibition notice if it considers there may be an unacceptable risk of harm to a child or children if the person were allowed

bull to remain on the education and care service premises or

bull to provide education and care to children


283 To issue a prohibition notice the regulatory authority must be able to identify the reason that there may be an unacceptable risk of harm to a child or children It will also need sufficient evidence to support the view that there may be unacceptable risk of harm (for more information about evidence gathering see the Investigations and evidence-gathering section of this manual)

284 The National Law does not define unacceptable risk of harm Regulatory authorities may wish to refer to the risk matrix and supporting text when assessing this risk (see Good Regulatory Practice) The risk of harm may be direct (for example causing harm to children) or indirect (for example wilful failure to act to prevent harm to children) but it must be unacceptable


E

How can it be used

Show cause notice


285 Before giving a person a prohibition notice the regulatory authority must give the person a show cause notice which

bull tells the person that the regulatory authority is going to give the person a prohibition notice and the reasons for the proposed prohibition and

bull invites the person to make a written submission within a set time (at least 14 calendar days) about the proposed prohibition

Prohibition without show cause notice

286 The regulatory authority does not have to give a show cause notice if it is satisfied that it is necessary in the interests of the safety health or wellbeing of a child or children to immediately give the notice


287 The purpose of a show cause notice is to give the proposed recipient an opportunity to explain why they should not receive the prohibition The show cause notice should set out very clearly the reasons for the proposed prohibition so the person fully understands the regulatory authorityrsquos rationale and can respond appropriately

288 Regulatory authorities should exercise caution if they are considering issuing a prohibition notice without first issuing a show cause notice because the show cause notice is a means of giving natural justice Refer to Good Regulatory Practice ndash Good decision-making for more information about natural justice

Considering the response to a show cause notice


289 If the regulatory authority has given a person a show cause notice and the person gives a written response in the specified timeframe the regulatory authority must have regard to the response before deciding whether to give the person a prohibition notice

290 If the regulatory authority decides not to give the person a prohibition notice it needs to notify the person in writing


E

Content of a prohibition notice


291 A prohibition notice must state that the person is prohibited from doing any of the following


bull being engaged as a supervisor educator family day care educator employee contractor or staff member of or being a volunteer at an education and care service and


292 A prohibition notice must also state that the person may apply for cancellation of the notice and how to apply for cancellation


293 The prohibition notice should be accompanied by information about the approved providerrsquos right to an external review of the decision under section 192 of the National Law See Reviews

Serving a prohibition notice

294 A prohibition notice may be given in accordance with the requirements of the National Law about serving notices Refer to Serving notices

Can it be appealed


295 The recipient of a prohibition notice can seek external review of the decision to give the prohibition notice or a decision to refuse to cancel a prohibition notice See Reviews


Disclosure


296 The National Law and Regulations do not give regulatory authorities the power to publish information which discloses who is the subject of a prohibition notice However if asked by an approved provider the regulatory authority can say whether the person named in the request is the subject of a prohibition notice


E

Cancelling the notice



297 The regulatory authority must cancel the prohibition notice if it is satisfied that there is not a sufficient reason for the prohibition notice to stay in force The regulatory authority must notify the person that the prohibition notice is cancelled

298 The recipient of a prohibition notice may apply to the regulatory authority to have it cancelled The application must be in writing and include

bull the applicantrsquos name

bull their contact details including an address for service of the decision

bull a statement setting out the grounds for the application to cancel the prohibition and

bull the signature of the person

Failure to comply with a prohibition notice


299 While a person is the subject of a prohibition notice they must not

bull provide education and care to children for an education and care service

bull be engaged as a supervisor educator family day care educator employee contractor or staff member of or perform volunteer services for an education and care service or

bull carry out any other activity relating to education and care services

2100 An approved provider must not engage a person or allow a person to volunteer if the approved provider knows or ought reasonably to known there is a prohibition notice in force in respect of the person

2101 If a person contravenes the prohibition notice or if an approved provider engages or allows a person who is subject to a prohibition notice to volunteer at the service the regulatory authority may consider taking further compliance action

2102 The maximum penalty which may be imposed by a court for non-compliance with a prohibition notice is $20000 The maximum penalty for approved providers who knowingly employ or engage a person who is subject to a prohibition notice is $20000 in the case of an individual $100000 in any other case


E


2103 When considering whether to prosecute for employing or engaging a person who is subject to a prohibition notice the regulatory authority may consider whether there is evidence that the approved provider

bull was aware of the prohibition notice and

bull intentionally or recklessly disregarded the responsibility to not employ or engage a person subject to a prohibition notice



What is a direction to exclude inappropriate persons

2104 A direction to exclude an inappropriate person is an instruction to an approved provider nominated supervisor andor family day care educator requiring the recipient to exclude a specific person from an education and care service The inappropriate person can be excluded for as long as the regulatory authority considers appropriate


2105 A direction to exclude an inappropriate person may be given to an approved provider nominated supervisor or family day care educator

When can it be used

2106 A direction to exclude an inappropriate person can be given in relation to a person

bull who may pose a risk to the safety health or wellbeing of any child or children being educated and cared for by the service or

bull whose behaviour or state of mind or whose pattern of behaviour or common state of mind is such that it would be inappropriate for him or her to be on the premises For example a person who is under the influence of drugs or alcohol


E


2107 The regulatory authority should be able to identify the behaviour or a state of mind or pattern of behaviour or common state of mind that would make the person lsquoinappropriatersquo to be at the education and care service premises

How can it be used

Deciding whether to issue a direction to exclude inappropriate persons

2108 Before issuing a direction to exclude an inappropriate person the regulatory authority should consider all available information about the person to be excluded and judge whether this information is credible The regulatory authority may investigate further if there is not enough information to make a decision

2109 The regulatory authority may choose to give the person the opportunity to make submissions about the available information and the proposed direction to exclude the person This may be particularly appropriate in situations where a long period of exclusion is being considered For more information about a regulatory authorityrsquos obligations to give procedural fairness see Good Regulatory Practice ndash Good decision-making

Content of a direction to exclude inappropriate persons

2110 A direction to exclude an inappropriate person should be in writing except where the direction is given in the case of an emergency In an emergency a verbal direction may be appropriate

2111 The direction should identify

bull the approved provider nominated supervisor or family day care educator to whom the direction is made

bull the inappropriate person who is the subject of the direction

bull the education and care service premises that the inappropriate person is to be excluded from while children are being educated and cared for at the premises

bull the length of time it applies for and

bull any other terms of the direction

Can it be appealed

2112 A decision to give a direction to exclude inappropriate persons is not a reviewable decision under the National Law


E


2113 If the recipient of the direction is unable to persuade the inappropriate person to stay away from the premises the person may need to obtain assistance from an authority such as the police

2114 If the recipient of the direction to exclude an inappropriate person does not comply with the direction the regulatory authority may consider taking further compliance action

2115 The maximum penalty which may be imposed by a court for not complying with a direction to exclude inappropriate persons from service premises is $10000 in the case of an individual $50000 in any other case

Prosecution

What is prosecution

2116 Prosecution involves instituting legal proceedings in a court or tribunal against a person who has allegedly committed an offence If the offence is proven then a fine or other form of penalty such as a suspension or prison sentence can be imposed Prosecution aims to punish the offender encourage future compliance and deter others from committing an offence


2117 Any person who has allegedly committed an offence against the National Law can be prosecuted Where an offence is committed by an approved provider that is a separate legal entity such as a corporation the entity may be prosecuted If a body corporate commits an offence against the National Law any person with management or control of the body corporate who failed to exercise due diligence to prevent the contravention also commits the offence They may be subject to the penalty for an individual who commits that offence

When can it be used

2118 A person may be prosecuted for any offence under the National Law however there is no obligation to prosecute


E

2119 When deciding to prosecute for an offence against the National Law regulatory authorities should consider the matters listed below

Considerations when deciding whether to prosecute

Whether there is enough admissible evidence to make it likely the offence will be proved including whether there are available credible and reliable witnesses

The seriousness of the offence and any mitigating circumstances

Actual or potential harm caused by the non-compliance

Whether there are any alternative sanctions that might achieve a similar or better outcome

The cost of prosecution

Whether prosecution will act as a deterrent

The effect on public confidence in the regulatory system

Whether it is in the public interest

The personrsquos history of non-compliance and

The likelihood the person will re-offend

How can it be used

2120 The process for deciding when and how to prosecute varies in each state and territory Regulatory authority staff should consult closely with their legal team or equivalent for advice on prosecution

282 Monitoring Compliance and Enforcement Conditions Last updated April 2017

E

3 Conditions

What is a condition


31 While the National Law and National Regulations do not specifically define lsquoconditionrsquo a useful definition is lsquoa legally enforceable constraint or limitation on an approval additional to those already found in the legislationrsquo The requirement to publish conditions on the copy of the service approval ensures transparency for families using the service

32 A condition cannot waive a requirement of the National Law or National Regulations A waiver gives an approved provider greater flexibility to operate a service For example the regulatory authority might grant a waiver allowing a service to meet a requirement in ways other than those set out in the National Regulations or to operate without meeting certain requirements In contrast a condition usually involves setting an extra requirement that must be met in a certain way (For information on temporary or service waivers see the Applications and Approvals chapter)

33 A service approval may include additional information such as the details of any associated childrenrsquos services This information is not a condition and does not bind or limit the approved provider

Who does a condition apply to

National Law sections 19 51 115

34 The regulatory authority can put a condition on a provider approval service approval or supervisor certificate See the Applications and Approvals chapter for more information

35 An approved provider must comply with the conditions on their provider or service approval The maximum penalty that may apply for failing to comply with this requirement is $10000 in the case of an individual $50000 in any other case

36 A certified supervisor must comply with the conditions on their supervisor certificate The maximum penalty that may apply for failing to comply with this requirement is $4000

Last updated April 2017 Conditions Monitoring Compliance and Enforcement 283

E


37 While a condition on provider or service approval might refer to people other than the approved provider such as the nominated supervisor at the service the condition applies only to the approved provider The regulatory authority cannot take action against a person other than the approved provider for failure to comply with a condition on provider approval or service approval

38 See the Glossary for definitions of key terms including lsquoapproved providerrsquo and lsquoperson with management or controlrsquo

When can a condition be used


39 The regulatory authority can impose a condition when it grants an approval or supervisor certificate or at a later time by amending the approval or supervisor certificate See the Applications and Approvals chapter for information on amending an approval or supervisor certificate

Unenforceable conditions

310 The National Law does not place any specific limits on the regulatory authorityrsquos power to impose a condition on a provider approval service approval or supervisor certificate Reasons a condition might be unenforceable are listed below

Reasons a condition might be enforceable

Goes beyond the regulatory authorityrsquos power in administering the Education and Care Services National Law and National Regulations

Contradicts the intent of the National Law

Seeks to waive completely or partially a requirement of the National Law or National Regulations

Imposes an unreasonable requirement for example a requirement that unnecessarily constrains supply or affects the providerrsquos financial viability

Replicates a requirement of the National Law or National Regulations or

Replicates a requirement of other legislation such as health or building legislation

311 The regulatory authority should therefore avoid using these types of conditions whenever possible

312 When deciding whether to impose a condition the regulatory authority should only take relevant considerations into account Taking irrelevant considerations into account may lead to an unlawful decision Refer to Good Regulatory Practice ndash Good decision-making


E

Condition on provider approval

313 The regulatory authority can use a condition on a provider approval to address issues that affect or potentially affect all the providerrsquos services For example if the regulatory authority has concerns about an applicantrsquos management capacity it might impose a condition limiting the number or size of services the provider can operate

314 For issues that do not affect all the providerrsquos services the regulatory authority may decide to use a condition on service approval

Condition on service approval

315 A condition on service approval must be relevant to the particular service

316 In some instances the regulatory authority might decide to grant an approval subject to a time-limited condition to allow a provider to start operating the service For example a regulatory authority might grant a service approval with a condition limiting the age of children that may attend pending further information to satisfy the regulatory authority that the service premises are suitable for very young children Using a condition in this way enables the provider to start operating the service although in a limited way while ensuring the provider satisfies the regulatory authority all relevant requirements are met

Condition on supervisor certificate

317 Examples of conditions the regulatory authority might consider appropriate to put on a supervisor certificate include that the holder

bull is the nominated supervisor or placed in day-to-day charge of one particular service or

bull is the nominated supervisor or placed in day-to-day charge of a particular type of service For example if the applicantrsquos qualification or experience is specifically related to school age children the regulatory authority might deem it appropriate to impose a condition limiting the personrsquos supervisor certificate to services that primarily educate and care for children over preschool age

318 See Applications and Approvals ndash Supervisor certificate for more information on conditions that may apply to a supervisor certificate


E

How is a condition used


319 To help the approved provider or certified supervisor easily understand the conditions that apply to them the regulatory authority should use language consistent with the National Law and National Regulations

320 Conditions should always be expressly stated as conditions Information included on the service approval is not necessarily a condition

321 Because the regulatory authority may publish information about a condition as part of a compliance action it should avoid using peoplersquos names in the condition Instead if required the condition should refer to the position at the service

322 The National Law does not require the regulatory authority to give a show cause notice before amending an approval or supervisor certificate However regulatory authorities should exercise caution if they are considering imposing a condition without first issuing a show cause notice because a show cause notice is a means of giving natural justice Refer to Good Regulatory Practice ndash Good decision-making for more information about natural justice

323 The purpose of a show cause notice is to give the proposed recipient an opportunity to explain why they should not be subject to the condition The show cause notice should set out very clearly the reasons for the proposed condition so the person fully understands the regulatory authorityrsquos rationale and can respond appropriately

324 Advising the approved provider or certified supervisor before the condition is imposed is also a useful way to encourage compliance

325 When giving a notice of the decision to impose a condition the regulatory authority should make sure to include information about the right to internal or external review of the decision (see Reviews)

After a condition is imposed


326 Unless the duration is expressly indicated in the condition it remains in place until removed by the regulatory authority The regulatory authority can remove or vary a condition at any time by amending the provider approval An approved provider or certified supervisor can also apply for amendment or removal of a condition See the Applications and Approvals chapter for more information


E

327 The regulatory authorityrsquos decision to impose a condition is reviewable See the Reviews chapter for more information

328 The regulatory authority should monitor those people and services that are subject to a condition The level of monitoring will depend on the nature of the condition See Monitoring Compliance and Enforcement ndash Monitoring for more information about monitoring activities

329 The regulatory authority should regularly review conditions to ensure only relevant conditions remain active in the NQA IT System

Breaching a condition on approval or certificate


330 If an approved provider or certified supervisor breaches a condition on approval or certificate the regulatory authority might decide to take further action Refer to Monitoring Compliance and Enforcement ndash Compliance tools for information on tools available to regulatory authorities to compel compliance with the National Law and National Regulations

Last updated April 2017 Suspensions and cancellations Monitoring Compliance and Enforcement 287

E

4 Suspensions and cancellations

Notice to suspend education and care by a family day care educator


What is a notice to suspend education and care by a family day care educator

41 A notice to suspend education and care by a family day care educator is an instruction to an approved provider to cease engaging or allowing a family day care educator to be registered with an approved education and care service operated by the provider


42 A notice to suspend education and care by a family day care educator can only be given to an approved provider However regulatory authorities should be aware that a show cause notice (given before the notice to suspend) may be given to the approved provider nominated supervisor and family day care educator Information about show cause notices is under How can it be used below

When can it be used

43 A notice to suspend education and care by a family day care educator can be given if the regulatory authority is satisfied that due to the conduct of or inadequacy of the service provided by a family day care educator

bull the approved provider or nominated supervisor is not complying with any provision of the National Law or National Regulations or

bull there is a risk to the safety health or wellbeing of children being educated and cared for by the family day care educator

288 Monitoring Compliance and Enforcement Suspensions and cancellations Last updated April 2017

E


44 Unlike a prohibition notice a notice to suspend education and care by a family day care educator is issued to the approved provider does not prevent the educator from any involvement with an education and care service and only applies to a specific education and care service

45 The grounds for issuing a notice to suspend education and care by a family day care educator are broader than the grounds for issuing a prohibition notice or a direction to exclude an inappropriate person The grounds for suspension focus on the conduct of or inadequacy of the service provided by the family day care educator This means that a notice to suspend a family day care educator can be used to address a wider range of non-compliance In addition a prohibition notice can be issued immediately if necessary without a show cause notice process

How can it be used

Show cause notice

46 The regulatory authority may give a show cause notice to the approved provider nominated supervisor (if applicable) and educator of a family day care service stating that it intends to direct the approved provider to suspend the provision of education and care by the educator

47 The show cause notice must also give the reasons for the proposed direction and inform the approved provider nominated supervisor and educator that they have 14 calendar days to make submissions to the regulatory authority about the proposed direction

48 The show cause notice must be served by delivering it personally to the family day care educator

49 The regulatory authority must consider any submissions from these parties during the timeframe and may consider any other submissions and matters it considers relevant

410 The regulatory authority may give the approved provider a notice directing the provider to suspend the provision of education and care to children by the family day care educator or decide not to give the direction The regulatory authority must give the family day care educator notice of its decision

411 If the regulatory authority decides not to give the direction it must notify the approved provider


E


412 The purpose of a show cause notice is to give the proposed recipient an opportunity to explain why they should not receive the notice to suspend The show cause notice should set out very clearly the reasons for the proposed notice so the person fully understands the regulatory authorityrsquos rationale and can respond appropriately

413 Regulatory authorities should exercise caution if they are considering issuing a notice without first issuing a show cause notice because the show cause notice is a means of giving natural justice Refer to Good Regulatory Practice ndash Good decision-making for more information about natural justice

Content of a notice to suspend

414 The National Law does not specify what needs to be included in a notice to suspend education and care by a family day care educator

415 Regulatory authorities should make sure the notice includes as a minimum the following information set out below

Information that must be included in a notice to suspend

The date the notice is given and the date it takes effect (if they are different)

The name of the approved provider to whom the notice is being given

The name of the family day care educator who is the subject of the notice

The name of the regulatory authority giving the notice

The signature of the person issuing the notice and

Information about the right to external review of the decision under section 192 of the National Law (see Reviews)

Serving a notice to suspend

416 A notice to suspend education and care by a family day care educator may be given in accordance with the requirements of the National Law about serving notices Refer to Serving notices

Can it be appealed


417 The decision to give a notice to suspend education and care by a family day care educator is a reviewable decision under the National Law


E


Disclosure


418 An approved provider may ask the regulatory authority whether a specific family day care educator has been suspended The regulatory authority may disclose this information about whether a family day care educator has been suspended subject to the Commonwealth Privacy Act 1988 as applied by the National Law and any protocol approved by ACECQA

Failure to comply with the notice

419 If the approved provider does not suspend the educator the regulatory authority may consider taking further compliance action

420 The maximum penalty which may be imposed by a court for failure to comply with a notice to suspend a family day care educator is $6000 in the case of an individual $30000 in any other case


What is suspension or cancellation of a supervisor certificate

421 A supervisor certificate is required for a person to be the nominated supervisor of or a person placed in day-to-day charge of an approved education and care service

422 Suspension or cancellation of a supervisor certificate is a way of preventing a person from performing those roles either temporarily (suspension) or permanently (cancellation)

When can it be used


423 The regulatory authority may suspend or cancel a supervisor certificate if

bull it believes the certified supervisor is no longer fit and proper to supervise a service

bull the certified supervisor fails to comply with a condition of the supervisor certificate or

bull the certified supervisor fails to comply with the National Law or Regulations as they apply in any state or territory in relation to a matter that is within their control


E

How can it be used


424 The regulatory authority must consult the regulatory authority of each jurisdiction in which the certified supervisor is currently working as a nominated supervisor before suspending or cancelling the supervisor certificate See Applications and Approvals ndash Exercise of powers by another regulatory authority

425 A supervisor certificate is automatically suspended or cancelled under certain circumstances See Applications and Approvals ndash Automatic suspension or cancellation of supervisor certificate

Show cause notice


426 The regulatory authority must give a certified supervisor a show cause notice if it is considering suspending or cancelling their supervisor certificate

427 The show cause notice must advise that the regulatory authority intends to suspend or cancel the supervisor certificate and set out the reasons for the proposed suspension or cancellation

428 The show cause notice must also inform the certified supervisor that they have 30 calendar days to give a written response to the regulatory authorityrsquos notice



429 After considering any written response that is submitted within 30 calendar days the regulatory authority may decide to suspend the supervisor certificate for up to 12 months or cancel the supervisor certificate or decide not to suspend or cancel the supervisor certificate

Suspension without show cause notice


430 The regulatory authority may suspend a supervisor certificate without a show cause notice if it is satisfied that there is an immediate risk to the safety health or wellbeing of a child or children


E


431 The purpose of a show cause notice is to give the proposed recipient an opportunity to explain why they should not receive the suspension The show cause notice should set out very clearly the reasons for the proposed suspension so the person fully understands the regulatory authorityrsquos rationale and can respond appropriately

432 Regulatory authorities should exercise caution if they are considering suspending a supervisor certificate without first issuing a show cause notice because the show cause notice is a means of giving natural justice Refer to Good Regulatory Practice ndash Good decision-making for more information about natural justice

Content of suspension or cancellation notice


433 The regulatory authority must give the certified supervisor written notice of its decision to suspend or cancel the supervisor certificate

434 The notice to suspend must set out the date on which it takes effect and the period of suspension which cannot exceed 12 months


435 The National Law and Regulations do not say what else needs to be included in a notice of suspension or cancellation of a supervisor certificate However the regulatory authority should make sure the notice includes the following additional information

bull the name of the certified supervisor to whom the notice is being given

bull the name of the regulatory authority giving the notice

bull the signature of the person issuing the notice and

bull information about the right to internal or external review of the decision (see Reviews)

When the suspension or cancellation takes effect


436 If a supervisor certificate is suspended without a show cause notice the decision to suspend takes effect when the notice is given to the certified supervisor

437 If a supervisor certificate is suspended or cancelled after a show cause notice process the decision takes effect 14 calendar days after the date of the decision or at the end of another period specified by the regulatory authority


E


438 The regulatory authority may specify that a suspension or cancellation takes effect less than 14 calendar days after the date of the decision However the regulatory authority should ensure it has strong evidence that this is necessary before deciding on a shorter period

Can it be appealed


439 A person can seek internal and external review of a decision to suspend a supervisor certificate A person can seek external review of a decision to cancel a supervisor certificate Refer to Reviews

What happens after it has occurred


440 If a regulatory authority suspends or cancels a supervisor certificate it is suspended or cancelled in all jurisdictions

Disclosure

441 The regulatory authority may publish specific information about suspension or cancellation of a supervisor certificate Refer to Publication of enforcement actions

Acting as nominated supervisor or person in day-to-day charge without a supervisor certificate


442 A person who acts as a supervisor without a supervisor certificate is committing an offence under the National Law and the regulatory authority may consider taking compliance action The maximum penalty which may be imposed on an individual by a court for this offence is $10000


E


What is suspension of service approval

443 A person cannot operate an education and care service for which the service approval has been suspended

444 Suspension of service approval is a way of preventing an identified education and care service from operating for a specific period of time

When can it be used


445 The regulatory authority may suspend a service approval for any of the reasons set out below

Reasons a regulatory authority may suspend a service approval

The regulatory authority believes it is not in the best interests of children at the service for the service to continue operating

A condition of the service approval has not been complied with

The service is not managed in accordance with the National Law or Regulations

The service has operated at a rating level that does not meet the National Quality Standard a service waiver or temporary waiver does not apply in relation to the non-compliance and there has been no improvement in the rating level

The approved provider has contravened the National Law or Regulations as they apply in any state or territory where the approved provider operates a service

The approved provider failed to comply with a direction compliance notice or emergency order under the National Law or National Regulations as they apply in any relevant state or territory

The approved provider ceased to operate the service at the premises for which the service approval was granted and did not transfer the service to another approved provider within six months

The approved provider did not commence ongoing operation of the service within six months from when service approval was granted or

The approved provider has not paid the prescribed annual fee for service approval


E


446 Section 70 of the National Law suggests that a regulatory authority may suspend service approval if the approved provider has contravened the National Law and Regulations as they apply in any state or territory where the approved provider operates a service This should be taken to mean the National Law and Regulations as they apply in the jurisdiction where the service that is the subject of the proposed suspension operates

447 Where the regulatory authority is concerned that an approved provider no longer has the right to occupy the service premises it may ask the approved provider for evidence such as a current lease agreement

How can it be used


448 If the service is a family day care service the regulatory authority must consult the regulatory authority of each jurisdiction in which the approved family day care service operates before suspending the service approval See Applications and Approvals ndash Exercise of powers by another regulatory authority

Suspension of service approval for associated childrenrsquos service only


449 If the regulatory authority considers that a service approval should be suspended only in relation to an associated childrenrsquos service it must refer the matter to the relevant childrenrsquos services regulator to determine appropriate action under childrenrsquos services law

450 The childrenrsquos services regulator must notify the regulatory authority if it proposes to conduct any investigation or inquiry into an associated childrenrsquos service

451 A childrenrsquos services regulator must advise the regulatory authority if it determines that under the relevant childrenrsquos services law a service approval in relation to the associated childrenrsquos service should be suspended If this occurs the service approval in relation to the associated childrenrsquos service is suspended in accordance with the determination of the childrenrsquos service regulator


E

Show cause notice


452 If the regulatory authority is considering suspending a service approval it must first give the approved provider a show cause notice The notice must advise the approved provider of the intention to suspend the service approval the reasons and the proposed period of suspension

453 The notice must also inform the approved provider that they may within 30 calendar days of the notice being given provide a written response to the regulatory authority



454 After considering any written response from the approved provider (that is received within 30 calendar days) the regulatory authority may suspend the service approval for up to 12 months or decide not to suspend the service approval



455 The regulatory authority may suspend a service approval without giving the approved provider a show cause notice if it is satisfied there is an immediate risk to the safety health or wellbeing of a child or children at the service



457 Regulatory authorities should exercise caution if they are considering suspending approval without first issuing a show cause notice because the show cause notice is a means of giving natural justice Refer to Good Regulatory Practice ndash Good decision-making for more information about natural justice


E

Content of suspension notice



458 The regulatory authority must give the approved provider written notice of its decision to suspend service approval The notice must set out the period of suspension and when the suspension takes effect The period of suspension cannot exceed 12 months


459 The National Law and Regulations do not say what else needs to be included in a notice of suspension of service approval However the regulatory authority should make sure the notice includes the following additional information

bull the name of the approved provider to whom the notice is being given

bull the name of the approved service to which the notice relates



bull information about the right to internal review (if no show cause notice was given) or external review (if a show cause notice was given) See Reviews

When the suspension takes effect


460 If a service approval is suspended without a show cause notice the decision to suspend takes effect when the notice is given to the approved provider

461 If a service approval is suspended after a show cause notice process the decision to suspend takes effect 14 calendar days after the date of the decision or at the end of another period specified by the regulatory authority


462 A regulatory authority may specify that a suspension takes effect less than 14 calendar days after the date of the decision However the regulatory authority should ensure it has strong evidence that this is necessary before deciding on a shorter period


E

Can it be appealed


463 A person can seek internal and external review of a decision to suspend a service approval Refer to Reviews


Notice to parents


464 The regulatory authority may require the approved provider whether or not a show cause notice was given to give parents of children enrolled at the service (and any associated childrenrsquos service) written notice of the suspension and its effect

465 If the approved provider does not comply with the notice the regulatory authority may consider taking further compliance action

466 The maximum penalty which may be imposed by a court for not giving the required notice to parents of enrolled children is $3000 in the case of an individual $15000 in any other case


467 If a show cause notice is given the regulatory authority may require the approved provider to supply contact details for parents of all children enrolled at the service within seven calendar days The regulatory authority may notify parents of the suspension and cannot use this information for any other purpose


468 The powers of the regulatory authority on giving notice to parents are intended to make sure parents will always be notified if service approval is suspended because this automatically results in the closure of the service

469 Generally the regulatory authority should only need to require the approved provider to give written notice to parents if they are concerned that this may not occur otherwise If the regulatory authority is concerned that even with a direction to the approved provider parents may not be notified the regulatory authority should exercise its power to request the approved provider to give the regulatory authority the details so it can contact the parents


E

Disclosure

470 The regulatory authority may publish specific information about suspension of service approval Refer to Publication of enforcement actions

Operating a service with a suspended service approval


471 A person who operates an education and care service which is the subject of a suspended service approval is committing an offence under the National Law and the regulatory authority may consider taking compliance action The maximum penalty that may be imposed by a court for this offence is $20000 in the case of an individual or $100000 in any other case


What is cancellation of service approval

472 An approved provider must not operate an education and care service without service approval Cancellation of a service approval includes any associated childrenrsquos services

473 Cancellation of service approval is a significant compliance action which permanently prevents a person from operating a specific education and care service

When can it be used


474 The regulatory authority may cancel a service approval if

bull it reasonably believes that the continued operation of the service would constitute an unacceptable risk to the safety health or wellbeing of children at the service

bull the service approval has been suspended and the reason for the suspension is not rectified by the end of the suspension

bull the service approval was obtained improperly or

bull a condition of the service approval has not been complied with


E


475 When determining whether to cancel a service approval the regulatory authority should consider if this form of regulatory action will best achieve the objectives of the legislation

476 The regulatory authority should also consider the principles of best practice regulation (see the Good Regulatory Practice chapter) including the Ayres and Braithwaite enforcement pyramid Cancellations are at the top of the pyramid

477 Generally the regulatory authority should take a graduated response to non-compliance moving up the regulatory pyramid depending on the willingness and ability the provider to comply and the seriousness of the offence In these circumstances cancellation would be the final course of action There may be situations however where a graduated response is inappropriate and the approved provider should be immediately required to show cause that the service approval not be cancelled

478 Along with prosecution cancelling a service approval is a severe way to address non-compliance at the service level When considering cancelling service approval under the National Law the regulatory authority should consider the matters below

Considerations when deciding whether to cancel service approval

Whether there are any alternative sanctions that might achieve a similar or better outcome such as a condition on service approval

Seriousness of the non-compliance and any mitigating circumstances

Cost of regulatory action

Effect on public confidence in the regulatory system


The impact on the community and families using the service


History of non-compliance

Cooperation of the person and the likeliness they will continue to be non-compliant and

Whether it will act as a deterrent to other providers


E

How can it be used


479 If the service is a family day care the regulatory authority must consult the regulatory authority of each jurisdiction in which the family day care service operates before cancelling the service approval See Applications and Approvals ndash Exercise of powers by another regulatory authority

Cancellation of service approval for associated childrenrsquos service only

480 If the regulatory authority considers that a service approval should be cancelled only in relation to an associated childrenrsquos service it must refer the matter to the relevant childrenrsquos services regulator to determine appropriate action under childrenrsquos services law

481 The childrenrsquos services regulator must notify the regulatory authority if it intends to conduct any investigation or inquiry into an associated childrenrsquos service

482 The childrenrsquos service regulator must notify the regulatory authority if it determines that under the relevant childrenrsquos services law the service approval in relation to the associated childrenrsquos service should be cancelled If this occurs the service approval in relation to the associated childrenrsquos service is cancelled in accordance with the determination of the childrenrsquos service regulator

Show cause notice


483 If the regulatory authority is considering cancelling a service approval it must first give the approved provider a show cause notice stating its intent to cancel the service approval and the reasons

484 The notice must also inform the approved provider that they may within 30 calendar days after the notice is given provide a written response to the proposed cancellation



485 After considering any written response from the approved provider (that is received within 30 calendar days) the regulatory authority may decide to

bull cancel the service approval

bull suspend the service approval for up to 12 months or

bull take no further action


E


486 The purpose of a show cause notice is to give the proposed recipient an opportunity to explain why they should not receive the cancellation The show cause notice should set out very clearly the reasons for the proposed cancellation so the person fully understands the regulatory authorityrsquos rationale and can respond appropriately

Content of cancellation notice


487 The regulatory authority must give the approved provider written notice of its decision The notice must set out the date on which the cancellation takes effect


488 The National Law and Regulations do not say what else needs to be included in a notice of cancellation of service approval However the regulatory authority should make sure the notice includes the following additional information





bull information about the right to external review See Reviews

When the cancellation takes effect

489 If the decision made is to cancel the service approval cancellation takes effect at the end of 14 calendar days after the date of the decision or at the end of another period specified by the regulatory authority


490 The regulatory authority may specify that a cancellation takes effect less than 14 calendar days after the date of the decision However the regulatory authority should ensure it has strong evidence that this is necessary before deciding on a shorter period


E

Can it be appealed


491 A person can seek external review of a decision to cancel a service approval Refer to Reviews


Notice to parents


492 The regulatory authority may require the approved provider whether or not a show cause notice was given to give parents of children enrolled at the service (and any associated childrenrsquos service) written notice of the cancellation and its effect

493 If an approved provider fails to comply with the notice the regulatory authority may consider taking further compliance action



495 If a show cause notice is given the regulatory authority may require the approved provider to supply contact details for parents of all children enrolled at the service within seven calendar days The regulatory authority may notify parents of the cancellation and cannot use this information for any other purpose


496 The power of the regulatory authority to give notice to parents is intended to make sure parents will always be notified if service approval is cancelled because this automatically results in the closure of the service

497 Generally the regulatory authority should only need to require the approved provider to give written notice to parents if they are concerned that this may not occur otherwise If the regulatory authority is concerned that even with a direction to the approved provider parents may not be notified the regulatory authority should exercise its power to request the approved provider give the contact details to the regulatory authority so it can contact the parents


E

Disclosure

498 The regulatory authority may publish specific information about cancellation of provider approval Refer to Publication of enforcement actions

Operating a service with cancelled service approval


499 A person who operates an education and care service without service approval is committing an offence under the National Law and the regulatory authority may consider taking compliance action The maximum penalty that may be imposed by a court for this offence is $20000 in the case of an individual $100000 in any other case


What is suspension of provider approval


4100 Provider approval is required to operate an approved education and care service under the National Law A person whose provider approval is suspended is not considered an approved provider for the period of the suspension and all service approvals held by the person are suspended for the same period This includes any associated childrenrsquos services

4101 Suspension of provider approval is a way of preventing a person from operating any education and care service for a specific period of time


E

When can it be used


4102 A regulatory authority may suspend a provider approval if one of the below matters applies to the approved provider

Grounds to suspend a provider approval

Being charged with an indictable offence (or an offence that if committed in the regulatory authorityrsquos jurisdiction would be an indictable offence) or any other circumstance that indicates the approved provider may not be a fit and proper person to be involved in the provision of an education and care service

Failure to comply with a condition of the provider approval

Failure to comply with the National Law

Not having operated any education and care service for more than 12 months (including any period of suspension)

Purporting to transfer or receive a transfer of an approved education and care service without the regulatory authorityrsquos consent or

Failure to pay any outstanding prescribed fees

4103 The regulatory authority may also suspend a provider approval if they are taking compliance action (other than a compliance direction) in relation to more than one service operated by the approved provider


4104 The approved provider must notify the regulatory authority of any changes affecting their fitness and propriety See Operational Requirements ndash Leadership and service management

How can it be used

4105 The regulatory authority must consult the regulatory authority of each jurisdiction in which the approved provider operates an approved education and care service before suspending the provider approval See Applications and Approvals ndash Exercise of powers by another regulatory authority


E



4106 The regulatory authority may reassess an approved providerrsquos fitness and propriety to provide an education and care service at any time This includes assessment of a person with management or control If a person is no longer a fit and proper person to be involved in the provision of an education and care service the regulatory authority may then consider suspending the provider approval This information is also included in Applications and Approvals ndash Provider approval for information on assessing fitness and propriety

Show cause notice


4107 The regulatory authority must give the approved provider a show cause notice before suspending provider approval The notice must advise that the regulatory authority intends to suspend the provider approval for a specified length of time and include the reasons for the proposed suspension

4108 The show cause notice must also inform the approved provider that they have 30 calendar days to give a written response to the regulatory authority



4109 After considering any written response to the show cause notice submitted within the 30 calendar days the regulatory authority may suspend the provider approval for up to12 months or decide not to suspend the approval



4110 The regulatory authority may suspend a provider approval without giving a show cause notice if it is satisfied there is an immediate risk to the safety health or wellbeing of a child or children at a service operated by the approved provider

4111 The suspension cannot exceed six months


E




Content of a suspension notice


4114 The regulatory authority must give the approved provider written notice of a decision to suspend provider approval

4115 The written notice must set out the period of suspension and when it takes effect The suspension cannot exceed 12 months


4116 The National Law and Regulations do not say what else needs to be included in a notice of suspension of provider approval However regulatory authorities should make sure the notice includes the following additional information






4117 If a provider approval is suspended without a show cause notice the decision to suspend takes effect when the notice is given to the approved provider

4118 If a provider approval is suspended after a show cause notice process the decision to suspend takes effect at the end of 14 days after the date of the decision or at the end of another period specified by the regulatory authority


E


4119 The regulatory authority may specify that a suspension takes effect less than 14 calendar days after the date of the decision However the regulatory authority should ensure it has strong evidence that this is necessary before deciding on a shorter period

Death of approved provider


4120 A service approval is not suspended during any period that a person is approved to manage or control the education and care service in the event that the approved provider dies or becomes incapacitated See Applications and Approvals ndash Approval of executor representative or guardian as approved provider

Can it be appealed


4121 A person can seek internal and external review of a decision to suspend a provider approval Refer to Reviews


Notice to parents


4122 The regulatory authority may require the approved provider to give written notice of the suspension of their provider approval and its effect to parents of children enrolled at any or all services operated by the approved provider The regulatory authority may require this whether or not a show cause notice was given prior to the suspension

4123 If the approved provider does not give the required notice to parents the regulatory authority may decide to escalate the matter The maximum penalty a court may impose for not giving the required notice to parents of enrolled children is $3000 in the case of an individual $15000 in any other case


E


4124 If a show cause notice is given the regulatory authority may also request that the approved provider supply the contact details of parents of all children enrolled at a service operated by the approved provider within seven calendar days The regulatory authority may notify parents of the suspension The regulatory authority cannot use the contact details for any other purpose


4125 The powers of the regulatory authority on giving notice to parents are intended to make sure parents will always be notified if provider approval is suspended because this automatically results in suspension of service approval and consequently their closure

4126 Generally the regulatory authority should only need to require the approved provider to given written notice to parents if they are concerned that this may not occur otherwise If the regulatory authority is concerned that even with a direction to the approved provider parents may not be notified the regulatory authority should exercise its power to request the approved provider give the contact details to the regulatory authority so it can contact the parents



4127 The regulatory authority may give permission for transfer of a service approval that is suspended The suspension of the service approval ceases when the approval is transferred unless the regulatory authority imposes a condition on its consent for transfer specifying a later date See Applications and Approvals ndash Transfer of service approval

Disclosure

4128 The regulatory authority may publish specific information about suspension of provider approval Refer to Publication of enforcement actions

At the end of the suspension

4129 Once the period of suspension has concluded the provider approval will be effectively reinstated

Operating a service with suspended provider approval


4130 A person who operates an education and care service without provider approval is committing an offence under the National Law and the regulatory authority may consider taking further compliance action The maximum penalty that may be imposed by a court for this offence is $20000 for an individual or $100000 in any other case


E


What is cancellation of provider approval

4131 Provider approval is required to operate an approved education and care service under the National Law If a provider approval is cancelled all service approvals held by the person who was the approved provider are also cancelled This includes associated childrenrsquos services

4132 Cancellation of provider approval is a significant compliance action which permanently prevents a person from operating any approved education and care service

When can it be used


4133 The regulatory authority may cancel a provider approval for the reasons set out below

Grounds to cancel a provider approval

The regulatory authority is satisfied that the approved provider or a person with management or control of a service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service

The regulatory authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider

The approved provider has been found guilty of an indictable offence (or an offence that if committed in this jurisdiction would be an indictable offence)

The approved provider has been found guilty of an offence under the National Law as it applies in any participating jurisdiction

The approved provider has breached a condition of their provider approval or

The approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension)


4134 If a person is found guilty of an indictable offence the regulatory authority should consider the extent this affects their suitability to provide an education and care service


E

4135 The regulatory authority may reassess an approved providerrsquos fitness and propriety to provide an education and care service at any time (National Law section 21) This includes assessment of a person with management or control of the service If a person is no longer a fit and proper person to be involved in the provision of an education and care service the regulatory authority may then consider cancelling the provider approval The approved provider is required to notify the regulatory authority of any changes affecting their fitness and propriety See Operational Requirements ndash Leadership and service management

4136 Regulatory authorities should also consider the principles of best practice regulation (see the Good Regulatory Practice chapter) including the Ayres and Braithwaite enforcement pyramid Cancellations are at the top of the pyramid Usually cancellation would be the final course of action after a graduated response moving up the regulatory pyramid depending on the willingness and ability the provider comply and the seriousness of the offence

4137 Along with prosecution cancelling a provider approval is a severe way to address non-compliance at the service level In some circumstances it may be appropriate to use cancellation in conjunction with prosecution

4138 Cancelling a provider approval means that all approvals for services operated by that approved provider will also be cancelled unless the regulatory authority consents to a transfer of service approvals This would have a significant impact on the families using these services

4139 Where a provider operates one service only the regulatory authority may consider whether there are grounds to also cancel the provider approval Note that section 31 of the National Law allows a provider approval to be cancelled if the provider has not operated a service for a period of more than 12 months

4140 When considering cancelling provider approval under the National Law the regulatory authority should consider the below matters

Considerations when deciding whether to cancel provider approval

Whether there are any alternative sanctions that might achieve a similar or better outcome such as a condition on provider approval

Seriousness of the non-compliance










E

How can it be used

4141 The regulatory authority must consult the regulatory authority of each jurisdiction in which the approved provider operates an approved education and care service before cancelling the provider approval See Applications and Approvals ndash Exercise of powers by another regulatory authority

Show cause notice


4142 If the regulatory authority is considering cancelling a provider approval it must first give the approved provider a show cause notice advising of its intention to cancel the provider approval and the reasons for the proposed cancellation

4143 The notice must advise the approved provider that they have 30 calendar days to respond in writing



4144 The regulatory authority must consider any written response from the approved provider within 30 calendar days before making its decision

4145 The regulatory authority may decide to cancel the provider approval suspend the provider approval for up to 12 months or to take no further action





4147 The regulatory authority must give the approved provider written notice of its decision The notice of the decision must specify the date the cancellation takes effect


E


4148 The National Law and Regulations do not say what else needs to be included in a notice of cancellation of provider approval However the regulatory authority should make sure the notice includes the following additional information





Taking effect of cancellation


4149 If the regulatory authority decides to cancel the provider approval cancellation takes effect at the end of 14 calendar days after the date of the decision or at the end of a period specified by the regulatory authority


4150 A regulatory authority could specify that a cancellation takes effect less than 14 calendar days after the date of the decision However the regulatory authority should ensure it has strong evidence that this is necessary before deciding on a shorter period

Application to transfer service approval if provider approval is going to be cancelled


4151 An approved provider whose approval is to be cancelled may apply to the regulatory authority for consent to transfer a service approval to another approved provider





E

Can it be appealed


4155 A person can seek external review of a decision to cancel a provider approval Refer to Reviews



Notice to parents


4156 The regulatory authority may require the approved provider to give written notice of the cancellation of their provider approval and its effect to parents of children enrolled at any or all services operated by the approved provider

4157 If the approved provider fails to comply with the notice the regulatory authority may decide to escalate the matter The maximum penalty a court may impose for not giving the required notice to parents of enrolled children is $3000 in the case of an individual $15000 in any other case


4158 If a show cause notice is given the regulatory authority may also request that the approved provider supply within seven calendar days the contact details of parents of all children enrolled at a service operated by the approved provider The regulatory authority may notify parents of the suspension The regulatory authority cannot use the contact details for any other purpose


4159 The powers of the regulatory authority on giving notice to parents are intended to make sure parents will always be notified if provider approval is cancelled because this automatically results in the cancellation of the related service approvals and consequently the closure of those services



E

Disclosure


Operating a service with cancelled provider approval


4162 A person who operates an education and care service without provider approval is committing an offence under the National Law and the regulatory authority may consider taking further compliance action The maximum penalty that may be imposed by a court for this offence is $20000 for an individual $100000 in any other case

4163 If prior to the cancellation of the provider approval a person is approved to manage or control an education and care service due to death or incapacity of the approved provider under section 41 of the National Law the service approval is not cancelled However the service approval is cancelled if the person ceases to manage or control the service

316 Monitoring Compliance and Enforcement Serving notices Last updated April 2017

E

5 Serving notices


51 The table below sets out notices that are required or permitted to be served on an individual or an entity under the National Law

Individuals Person other than an individual

Delivering it personally to the individual

Posting or delivering it to the address provided by the individual for the purpose of accepting notices or the last known address of the residence or business of the individual

Posting or leaving it at the address provided by the person for the purpose of accepting notices or the address of the head office a registered office or the principle place of business of the person

Faxing it to a number provided by the individual for the purpose of accepting notices or

Faxing it to a number provided by the person for the purpose of accepting notices or

Emailing it to an address provided by the individual for the purpose of accepting notices

Emailing it to an address provided by the person for the purpose of receiving the notice

52 A tribunal or court may authorise a different way of serving a notice


53 Where a notice is authorised or required to be served by post service of the notice

bull may be effected by properly addressing prepaying and posting a letter containing the document

bull in Australia or an external Territory is taken to have been effected on the fourth day after the letter was posted (unless there is sufficient evidence to create doubt) and

bull in another place is taken to have been effected at the time when the letter would have been delivered in the ordinary course of the post (unless there is sufficient evidence to create doubt)


54 If a notice is served by post the regulatory authority must allow enough time for delivery The regulatory authority should keep evidence of postage such as a receipt or tracking number Using registered post which requires the recipient to sign upon receipt is recommended

Last updated April 2017 Publishing information about enforcement actions Monitoring Compliance and Enforcement 317

E

6 Publishing information about enforcement actions

What information can be published



61 Regulatory authorities may publish prescribed information about the following enforcement actions taken under the National Law

bull compliance notices

bull prosecutions

bull enforceable undertakings

bull suspension or cancellation of approvals or certificates (other than voluntary suspension or surrender) and

bull amendments to approvals or certificates for enforcement purposes

62 Additional enforcement actions may be prescribed under the National Regulations in future





64 The published information must not identify or lead to the identification of a child

318 Monitoring Compliance and Enforcement Publishing information about enforcement actions Last updated April 2017

E

65 The general information which may be published about these actions is set out below

Information that may be published

Type of enforcement action

Name and provider approval of the approved provider subject to the enforcement action

For a centre-based service

bull address of the service

bull name of the service

For a family day care service

bull the address of the service unless this is the home address of a family day care educator


For an individual subject to the enforcement action their name and supervisor certificate number if relevant

The reason for the enforcement action including details of the breach or alleged breach and the provision that was breached or alleged to be breached

66 The details of each enforcement action that may be published are set out below

Enforcement action What can be published

Prosecution for an offence under the National Law or National Regulations leading to a conviction or finding of guilt or plea of guilt

The provision of the National Law or National Regulations that the person was convicted or found guilty of or pleaded guilty to breaching

The date of the conviction the finding or the plea of guilt for the offence

Any penalty imposed for the offence

Information about any steps taken to remedy the subject of the prosecution and the date the steps were taken

Enforceable undertaking The terms of the enforceable undertaking

The date of the enforceable undertaking

Information about any steps taken to remedy the subject of the enforceable undertaking and when the steps were taken

Compliance notice The steps specified in the compliance notice that the person must take to comply with the National Law or Regulations

The date by which the steps must be taken

Information about any steps taken to remedy the subject of the compliance notice and the date on which the steps were taken


E


Amendment to approval or certificate Details of the amendment

The date on which the amendment took effect

Suspension of approval or certificate (non-voluntary)

The date of the start of the suspension

The date of the end of the suspension

Cancellation of approval or certificate The date on which the cancellation took effect


67 Regulatory authorities do not have powers under the National Law to publish information about the below matters

Enforcement actions the regulatory authority cannot publish





Notice to suspend education and care by family day care educator or

Prohibition notices

68 Courts and tribunals typically publish details of their decisions

69 The approved provider must keep a record of the servicersquos compliance See the Operational Requirements ndash Leadership and service management for further information


E

Timing of publication


610 Where a person is eligible to apply for an internal or external review of an enforcement action the regulatory authority may publish information after the end of the period for requesting the review if no request for a review is made

611 If an application for internal or external review is made and withdrawn before a decision is made on the review the regulatory authority may publish the information on or after the dayon which the application is withdrawn

612 If an application is made for an external review the regulatory authority may publish the information on or after the day on which the review is decided if the enforcement action is confirmed or amended or another enforcement action is substituted

Last updated April 2017 Powers of regulatory authorities Monitoring Compliance and Enforcement 321

E

7 Powers of regulatory authorities

General powers


71 A regulatory authority has the power to do anything necessary or convenient to carry out its functions under the National Law and Regulations This includes powers in the relevant jurisdiction to take the actions listed below

Powers of regulatory authorities

Collect hold and use information obtained under the National Law by the regulatory authority or ACECQA about the provision of education and care to children including information about outcomes for children and information about providers of education and care services

Collect hold and use information about providers of education and care services family day care educators and certified supervisors subject to the Commonwealth Privacy Act 1988

Maintain and publish registers of approved providers approved education and care services and certified supervisors

Publish information about the National Quality Framework including ratings and prescribed information about compliance

Collect waive reduce defer and refund fees (including late payment fees) and enter into agreements in relation to fees

Enter into agreements relating to fees and funding with ACECQA and

Exercise any other powers conferred on it under the National Law

322 Monitoring Compliance and Enforcement Powers of regulatory authorities Last updated April 2017

E

Power to obtain information documents and evidence by notice


What is the power

72 This power enables the regulatory authority to require a person to provide information produce documents or appear before the regulatory authority and give evidence

What can be done using the power

73 If a regulatory authority reasonably believes that an offence has been committed it may write to a specified person and require the person to

bull provide the regulatory authority with any relevant information within the time and in the matter specified in the notice signed by the person or a competent officer of that person (if the person is not an individual)

bull produce to the regulatory authority (or any person identified in the notice as acting on its behalf) any relevant document set out in the notice or

bull appear before the regulatory authority (or a person identified in the notice as acting on its behalf) at a specified time and place to give evidence or produce any relevant document set out in the notice

74 A specified person means a person who is or was an approved provider certified supervisor staff member of or volunteer at an approved education and care service or a family day care educator

75 The regulatory authority may require the evidence to be given on oath or affirmation The person may give evidence by telephone or electronic means unless the regulatory authority requires on reasonable grounds that the evidence be given in person

76 The notice must warn the person that it is an offence to fail or refuse to comply with the notice specifically that

bull it is an offence to fail or refuse to comply with a notice under section 217

bull it is an offence to hinder or obstruct a regulatory authority under section 218 and

bull self-incrimination is not an excuse under section 219


E

Self-incrimination not an excuse


77 Regulatory authorities should be aware that a person is not excused from complying with the notice on the grounds that this may result in information being provided that may tend to incriminate the person

78 Disclosed information is not admissible in evidence against the individual in any criminal proceedings (other than as an offence to hinder or obstruct a regulatory authority or provide false or misleading information or documents) or in any civil proceedings Disclosed information means the answer or information given by an individual to any requests under a power of regulatory authorities to obtain information documents and evidence by notice or at a service or any information obtained directly or indirectly because of that answer or information

79 Despite this any information obtained from documents required to be kept under the National Law and Regulations that is produced by a person is admissible in evidence against the person in criminal proceedings under the National Law


710 Disclosed information which is not admissible under section 219 may be used to support an alternative action such as a compliance direction or emergency action notice It may also be used to support a decision to impose a condition on an approval

711 A regulatory authority may also choose to exercise its power to obtain information documents and evidence by notice as part of an investigation

Power to obtain information documents and evidence at an education and care service


What is the power

712 This power enables the regulatory authority to require a specified person at an education and care service to supply information if it reasonably suspects an offence against the National Law has been committed


E


713 The regulatory authority may require a specified person at an education and care service to

bull provide the regulatory authority (or a person acting on its behalf) with any specified information relevant to the suspected offence or

bull to produce to the regulatory authority (or a person acting on its behalf) any specified document relevant to the suspected offence


715 The regulatory authority must warn the person that it is an offence to fail or refuse to comply with the requirement specifically that

bull it is an offence to fail to comply with a notice or requirement

bull it is an offence to hinder or obstruct the regulatory authority and

bull self-incrimination is not an excuse



716 Regulatory authority staff should be aware that a person is not excused from complying with a requirement on the grounds that this may result in information being provided that may tend to incriminate the person






E

When can the power be used

720 The regulatory authority must not require a person to remain at the education and care service for more than a reasonable time for the purpose of providing information or producing documents

Emergency removal of children


What is the emergency removal of children

721 The power to remove or cause the emergency removal of children enables the regulatory authority to protect children from an immediate danger at an education and care service premises


722 If the regulatory authority considers on reasonable grounds that there is an immediate danger to the safety or health of a child or children being educated and cared for by a service it may remove or cause the removal of the child or children from the premises

723 Another party (for example police officers) may assist the regulatory authority to remove a child or children in an emergency if required The regulatory authority or person assisting in the emergency removal may enter the service premises without warrant and use reasonable force as necessary

724 If a child is removed from a service the regulatory authority must ensure that the childrsquos parents are immediately notified of the situation and the childrsquos current location


725 lsquoReasonable force as necessaryrsquo is not defined in the National Law but should be taken to mean using no more force than is needed in the circumstances lsquoReasonable forcersquo refers to the broad range of actions that involve a degree of physical contact with another person

726 Force is usually used either to control or restrain It ranges from passively blocking a person (including a child) or guiding them by the arm to safety through to more extreme circumstances such as restraining a person to prevent violence or injury In all cases an authorised officer should endeavour to make sure the use of reasonable force does not result in injury


727 The power can be exercised at any time children are being educated and cared for by the service

326 Monitoring Compliance and Enforcement Powers of authorised officers Last updated April 2017

E

8 Powers of authorised officers

Authorised officers

Who is an authorised officer


81 An authorised officer is a person who has been authorised by the regulatory authority to carry out specific functions under the National Law Regulatory authorities may authorise anyone who they consider appropriate but must take into account the qualifications required by ACECQA when determining if a person is appropriate

82 A defect in the authorisation of an authorised officer does not affect the validity of any action taken or decision made by the officer under the National Law


83 ACECQA has published qualifications for authorised officers on its website at wwwacecqagovau

Identity cards



84 The regulatory authority must issue each authorised officer an identify card which states

bull the full name of the authorised officer

bull that the officer is authorised under section 195 of the National Law and

bull the date of the officerrsquos authorisation

85 The card must be issued by the regulatory authority that authorised the person

86 An authorised officer must carry the card whenever he or she is exercising functions under the National Law

Last updated April 2017 Powers of authorised officers Monitoring Compliance and Enforcement 327

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87 If the identity card does not have a photograph of the authorised officer the officer must carry another form of photographic identification and a letter authorising the use of the photographic identification from the regulatory authority The photographic identification and letter must be presented along with the identity card

88 The card must be presented before exercising a power of entry and if requested during the exercise of any other power under the National Law The officer is not authorised to exercise the power unless the card is produced when required

89 When an officerrsquos authorisation ceases they must return their identity card to the regulatory authority

810 An authorised officer may be prosecuted for failing to carry show or return the identity card as required The maximum penalty that may be imposed by a court is $1000

Authorised officerrsquos powers of entry

811 An authorised officer has certain powers to enter premises to enable them to carry out their functions under the National Law The table below summarises the authorised officerrsquos powers of entry by place and purpose

Summary of authorised officerrsquos powers of entry

Place Purpose Power

Education and care service premises

Inspect and gather information Powers of entry for assessing and monitoring approved education and care service (section 197)

Gather information about the rating assessment process to help promote national consistency

ACECQA representative may enter service premises with an authorised officer (section 198)

Search inspect seize and require information

Powers of entry for investigating approved education and care service (section 199)

Approved providerrsquos business premises

Investigate a possible non-compliance

Powers of entry to business premises (section 200)

Any premises Investigate a suspected non-compliance

Entry to premises with a search warrant (section 201)


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Powers of entry for assessing and monitoring an approved education and care service


What is the power

812 The power of entry for assessing and monitoring approved education and care services enables an authorised officer to

bull monitor compliance with the National Law and Regulations

bull conduct a rating assessment of a service

bull collect contact details of the parents of all enrolled children due to the suspension or cancellation of a service or provider approval (see Suspension and Cancellations)


813 An authorised officer can use this power to enter an education and care service premises to

bull inspect the premises and any plant equipment vehicle or other thing

bull photograph or film or make audio recordings or sketches of any part of the premises or thing at the premises

bull take any document or thing from the premises and

bull ask a person at the premises to answer a question to the best of the personrsquos knowledge information and belief or to take reasonable steps to provide information or produce a document

814 A document or thing in this context means something that is used or likely to be used in the provision of the education and care service

815 An authorised officer must tell the person apparently in charge of the document or thing or an occupier of the premises when taking a document or thing It must then be returned to that person or to the service within seven calendar days

Consent to entry and inspection


816 If an occupier consents in writing to the entry and inspection of their premises under the powers of authorised officers the occupier must be given a copy of the signed consent immediately

817 If a written consent is not produced in court it is presumed that the occupier did not consent to the entry and search until the contrary is proved


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Protection against self-incrimination


818 An individual may refuse or fail to give information or do anything that is required under the National Law that may incriminate the individual except for

bull producing a document or part of a document that is required to be kept under the National Law

bull giving their name or address when required or

bull doing anything required under sections 215 and 216 (information documents and evidence required under the powers of regulatory authorities)

819 Documents or parts of documents produced by an individual that are required to be kept under the National Law are not admissible in evidence against the individual in any criminal proceedings (other than under the National Law) or in any civil proceedings





821 An authorised officer may exercise this power at any reasonable time and with any assistants reasonably required

822 An authorised officer may not use a power of entry for assessing and monitoring an approved education and care service at a residence unless the service is operating at that time or the occupier of the residence has given written permission


823 A reasonable time would usually mean while the service is operating

824 When exercising this power authorised officers may bring assistants if they are lsquoreasonably requiredrsquo When considering how many assistants are lsquoreasonably requiredrsquo authorised officers should examine whether there is a genuine need Authorised officers should not bring more assistants than are necessary to perform the functions listed under section 197 Assistants might include a translator to ensure clear communication with educators or police if there is a risk to the safety of the people involved


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Powers of entry for investigating approved education and care service


What is the power

825 An authorised officer may use the power under this section to investigate an approved education and care service if the authorised officer reasonably suspects an offence has been or is being committed against the National Law


826 An authorised officer may enter the service premises and do the things listed below

Actions the authorised officer may take

Search any part of the premises

Inspect measure test or record the premises and anything at the premises

Take anything or a sample of anything for analysis measurement or testing

Copy or take an extract from a document at the premises

Bring any person equipment and materials the authorised officer reasonably requires for exercising this power and

Require information from the occupier of the premises or any person present to help with the investigation

827 A document or thing in this context means something that is used or likely to be used in the provision of hte education and care service

Giving warning


828 Before requiring a person to answer a question provide information or a document an authorised officer must

bull produce their authorised officer identity card

bull warn the person that a failure to comply with the requirement or question without reasonable excuse is an offence and

bull in the case of an individual warn the person about protection against self-incrimination

829 This requirement does not prevent an authorised officer from obtaining and using evidence given to the officer voluntarily


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835 An authorised officer may exercise this power at any reasonable time with or without the consent of the occupier of the premises and with any assistants required However an authorised officer may not use a power of entry for investigating a service at a residence unless the service is operating at that time or the occupier of the residence has given written permission


E


836 A regulatory authority may also choose to exercise its power to obtain information documents and evidence by notice as part of an investigation See Powers of regulatory authorities for more information


Powers of entry to business premises


What is the power

838 Using this power an authorised officer may enter an approved providerrsquos business premises if they reasonably suspect that it contains documents or other evidence that are relevant to a possible non-compliance with the National Law or National Regulations


Before entering the premises

839 Before entering the business premises the authorised officer must

bull present their identity card

bull inform the occupier of the purpose of the search and the powers that may be exercised and

bull inform the occupier that they may refuse to give consent to

ndash the entry and search or the taking of anything and

ndash the taking of any copy or extract of any documents

840 The authorised officer cannot enter the premises without consent from the occupier


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Once consent has been obtained

843 If the occupier consents the authorised officer may enter the premises and do any of the things listed below


Search the premises



Copy or take an extract from a document


Require information to help the investigation from the occupier of the premises or any person present

Giving warning


844 Before requiring a person to answer a question provide information or a document under this power an authorised officer must






E










Entry to premises with a search warrant


What is the power

849 This power enables an authorised officer to enter premises if they reasonably believe that

bull a person is operating an education and care service from the premises without service approval

bull an approved education and care service is operating from the premises in contravention of the National Law or

bull (in the case of business premises or a principal office) documents or other evidence relevant to the commission of an offence against the National Law are at the premises

850 If required an authorised officer can obtain a warrant from a magistrate An authorised officer should refer to their regulatory authorityrsquos internal guidelines or protocols for information about when the regulatory authority will consent to the authorised officer seeking a warrant


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Applying for a warrant

National Law clause 1 schedule 2

851 An authorised officer may apply to a magistrate for a search warrant in relation to premises if the officer reasonably believes that

bull a person is or has been operating a service at the premises in breach of the National Law or

bull documents or other evidence relevant to a possible offence against the National Law are on the premises

852 The authorised officer must prepare a sworn written application for the warrant which sets out the grounds on which the warrant is sought The magistrate may refuse to consider the application until the authorised officer gives the magistrate any additional information requested in any way the magistrate requires


853 In urgent or special circumstances (for example remote location) where necessary an authorised officer may apply for a warrant electronically by phone fax email radio video conferencing or another form of communication This must be done after the authorised officer has prepared a written application but can be done before the written application is sworn

Receiving the warrant

National Law clause 2 of schedule 2

854 An authorised officer should be aware the magistrate may issue the warrant only if they reasonably believe that the grounds for applying for a warrant (set out above) are met

855 The warrant must state that

bull the named authorised officer may with necessary and reasonable help and force enter the premises and any other premises necessary for entry and exercise the powers of entry by search warrant

bull the matter for which the warrant is granted

bull the evidence that may be seized

bull the hours when the premises may be entered and

bull the end date of the warrant (within 14 days of issue)


E


856 Where the application was made electronically the magistrate may issue the warrant if they are satisfied that it was necessary to apply electronically and the application was appropriate

857 If the warrant is issued the magistrate must immediately give a copy of the warrant to the authorised officer where reasonably possible If this is not possible the magistrate must tell the authorised officer the date and time the warrant is issued and the other terms of the warrant The authorised officer must complete a form of warrant containing the magistratersquos name the date and time of issue and other terms of the warrant In either case this warrant is referred to as a duplicate warrant and can be used the same way as an original warrant

858 The authorised officer must send the magistrate the written application for the warrant and the duplicate warrant The magistrate must then file these documents along with the original warrant

859 If there is doubt about a warrant or the original warrant is not produced in evidence the onus of truth is on the person relying on the authorisation of the warrant




860 Unless the authorised officer reasonably believes that immediate entry is necessary they must endeavour to do the following before entering premises under a warrant

bull show their identification card to an occupier of the premises

bull give the person a copy of the warrant

bull tell the person the authorised officer is permitted by the warrant to enter the premises and

bull allow the person to consent to immediate entry without the officer using force






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Once the premises have been entered


863 If an authorised officer enters premises under a warrant they may take any of the actions listed below


Search the premises




Bring any person equipment and materials reasonably required for exercising this power

Require that the occupier of the premises or any person present helps with the investigation and

Require that the occupier of the premises or any person present gives information to help the investigation

Giving warning












bull information documents and evidence required under the powers of regulatory authorities (sections 215ndash216)


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Authorised officerrsquos powers to obtain information and seize items

Power to require name and address


869 An authorised officer may require a person to state their name and residential address if the authorised officer

bull finds a person committing an offence against the National Law

bull finds a person in circumstances that lead the officer to reasonably suspect the person is committing or has committed an offence against the National Law or

bull has information that leads the officer to reasonably suspect the person is committing or has committed an offence against the National Law

870 If the authorised officer reasonably believes that the person gave a false name or residential address the officer may require evidence of the name or address

Giving warning








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873 Evidence of a personrsquos name could include a driverrsquos licence birth certificate change of name certificate bank card or passport

874 Evidence of a personrsquos residential address could include a driverrsquos licence utility bill or a lease agreement or contract of sale for a residential property

Power to require evidence of age name and address of person


875 If an authorised officer reasonably believes that a staff member family day care educator or a volunteer employed or engaged at a service is not of the minimum age required by the National Regulations the authorised officer may require the person to

ndash state their correct date of birth

ndash provide evidence of their date of birth either immediately (if in the circumstances it would be reasonable to expect the person to have evidence of their date of birth) or within 14 calendar days and

ndash state their name and residential address if the person refuses to or is unable to provide evidence of their date of birth or if the person is not of the required minimum age

Giving warning








878 The National Regulations require a family day care educator and assistant to be at least 18 years of age (regulation 119) and for any educator under the age of 18 at a centre-based service to be supervised (regulation 120)

879 Evidence of a personrsquos date of birth could include a birth certificate driverrsquos licence or passport


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Power of authorised officers to obtain information documents and evidence


883 For the purposes of

bull monitoring compliance with the National Law and Regulations

bull a rating assessment of a service

bull collecting contact details of the parents of all enrolled children due to a suspension or cancellation of a service or provider approval (see Suspensions and Cancellations) an authorised officer may write to a specified person to request that they provide relevant written information in the manner requested signed by the person or a competent officer of that person (if the person is not an individual) The person must be given at least 14 calendar days to respond to the request



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Giving warning

















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Seized items


890 The authorised officer must take reasonable steps to return anything taken under the powers of entry for investigating approved education and care services powers of entry to business premises or a search warrant if there is no reason to retain it While an authorised officer holds a seized item they must provide the owner of the item with reasonable access while it is being held

891 If the seized item has not been returned within 60 calendar days the authorised officer must take reasonable steps to return it unless

bull proceedings (including appeal) have been commenced within the 60 day period and not completed or

bull a court order states that the item can be retained


892 An authorised officer may apply to a court within 60 calendar days of seizing an item to request permission to hold the item for an extended period The court may extend the period if it considers it necessary

bull for the purposes of an investigation into whether an offence has been committed or

bull to allow evidence of an offence to be obtained for a prosecution

893 The court may adjourn an application for extension to enable notice of the application to be given to any person

894 An authorised officer may apply to a court within a period of extension to request permission to hold the item for a further extended period


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9 Conducting an investigation

What is an investigation

91 An investigation is a formal and systematic inquiry to establish facts about an incident complaint or alleged non-compliance by collecting documenting examining and evaluating evidence An investigation is not an end in itself Throughout an investigation the investigator should keep an open mind about the possible outcomes of the investigation such as education compliance action or a decision not to pursue the matter The regulatory authority must ensure the safety health and well-being of all children at the service This may mean addressing immediate risks before the investigation has been completed

92 The investigator must remain impartial throughout the investigation

93 The investigator should also be mindful of the best practice regulation principles outlined in the section on good decision making when conducting the investigation

When to investigate

94 An investigation may be initiated where there is reason to believe that an offence against the National Law has been or is being committed

95 A regulatory authority may decide to investigate an issue after receiving a notification of a serious incident a complaint or becoming aware of potential or apparent contravention An investigation might also be initiated if a pattern of non-compliance across a particular group of services or roles in a service leads a regulatory authority to suspect an offence may have been or is being committed The potential or apparent contravention may be identified during an assessment and rating or monitoring visit to a service or through other intelligence

96 For information on conducting monitoring activities see Monitoring Compliance and Enforcement ndash Monitoring For information about receiving and responding to complaints see Monitoring Compliance and Enforcement ndash Complaints

344 Monitoring Compliance and Enforcement Conducting an investigation Last updated April 2017

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Power to investigate

97 Regulatory authorities can investigate incidents and alleged contraventions of the National Law and National Regulations using the powers of regulatory authorities and authorised officers detailed in the National Law The term lsquoinvestigatorrsquo is used in this manual to refer to a person with the appropriate powers given to them in the National Law or through delegation See Monitoring Compliance and Enforcement ndash Powers of regulatory authorities and Monitoring Compliance and Enforcement ndash Powers of authorised officers

98 Where a regulatory authority becomes aware of potential or apparent contravention of a different law the relevant authority should be contacted The disclosure of information to other authorities is permitted in particular circumstances by section 271 of the National Law

99 For more information see Operational Requirements ndash Other regulatory frameworks

The role of the investigator

910 The role of the investigator is to

bull define the focus and scope of the investigation

bull collect evidence

bull establish and document the facts and

bull prepare a report on the findings

911 An investigator should always ensure they have the necessary delegation to use the powers given to them under the National Law to conduct an investigation Authorised officers may exercise their specific powers under the National Law while other powers are given to the regulatory authority See Monitoring Compliance and Enforcement ndash Powers of regulatory authorities and Monitoring Compliance and Enforcement ndash Powers of authorised officers for more information

Collaboration with other agencies

912 At times more than one regulatory agency will be involved in investigating an issue This could include the police child protection environmental protection or a regulatory authority from another jurisdiction If another agency is involved the regulatory authority should identify the appropriate channels of communication with the agency as soon as possible This is likely to be through senior management and must be in accordance with any protocols in place Agencies should exchange information about their investigative and compliance powers and the direction and scope of their investigations to get the best outcome by avoiding overlap and identifying any gaps An investigation conducted by the approved provider in question does not relieve the regulatory authority of its power to investigate a potential non-compliance


E

913 Regulatory authorities should be mindful that while they can share information about their powers with other agencies the extent to which they can share information about the investigation itself is restricted by the National Law (see Part 13 of the National Law)

914 The regulatory authority should liaise closely with the other agency to avoid taking any action that jeopardises the other agencyrsquos investigation This is particularly important when a police investigation is being carried out In some circumstances a regulatory authority might consider deferring its investigation while another agency is investigating

Communicating with children families and educators

915 Children families and educators cannot always be made aware of an investigation however if possible the regulatory authority should help those affected to understand why an investigation is occurring and how this might impact on the education and care of children attending the service The regulatory authority may detail the potential outcomes of the investigation including the possibility that the investigation may find no evidence to support a contravention The investigator must remain impartial about the outcomes of the investigation

916 The regulatory authority must consider confidentiality requirements in meeting the needs of children families and educators for information about the investigation It can be helpful to nominate a specific contact person who can address any questions or concerns

917 Where the subject of an investigation has caused distress or anger the regulatory authority might consider additional resources to help people who are affected For example taking along assistants as permitted by section 199 of the National Law (see Powers of entry for investigating approved education and care service) or providing details for counselling services This ensures the investigator can focus on their role while people affected by the incident are supported For example the investigator might bring along a translator to assist with interviewing Alternatively in some scenarios it might help to bring a qualified social worker to support educators families or children affected by an incident

Record keeping

918 The investigator must thoroughly and objectively document the investigation mindful that it may need to be used to support a future compliance action including prosecution Investigators should take thorough notes of phone calls discussions and observations related to the investigation Records should indicate the date time and author Calls and discussions held at the office should also be noted on a running sheet


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919 The running sheet is a chronological list that records the actions and tasks completed as part of the investigation along with details such as date time responsible person and comments Running sheets give a clear overview of the investigation and may be helpful for reviews or as a reference when giving evidence in court

920 For information on keeping records of investigations and decisions see the Good Regulatory Practice chapter The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)

Planning an investigation

921 Planning an investigation is essential to ensure that

bull the focus or reason for the investigation is clearly identified

bull the investigation addresses any immediate and ongoing risks to children being educated and cared for at the service

bull the investigation is carried out methodically and professionally

bull resources are used effectively and

bull appropriate sources of evidence are identified and opportunities for people to remove destroy or alter evidence are minimised

922 When planning an investigation the investigator should remember the aim of the investigation is to establish facts and consider the below matters

Considerations when planning an investigation

Any perceived or real conflicts of interest

Allegations that have been made

Possible sources of information and evidence

The investigation timeframe

Any cultural sensitivities or special needs and what resources are needed to address these

Any other regulatory bodies involved

Resources required including staff (both on the visit and in the office for immediate inquiries) cameras travel laptops printers scanners specialist consultants and

Communication protocols between teams particularly if multiple visits are conducted simultaneously


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Closing an investigation

923 Once an investigation has concluded the investigator should compile a report that details the findings of the investigation Regulatory authorities should be mindful of the good decision making principles set out in the Good Regulatory Practice chapter when making a decision on what action if any to take as a result of the investigation Investigators should close the investigation in the NQA IT System

924 The investigator might recommend a particular course of action in the report however in most cases it is good practice for a person other than the investigator to decide what if any action should be taken as a result of the investigation Appropriate action may be compliance- focused or it may be educative In some cases the regulatory authority might notify the parties to the investigation including families of the outcome where appropriate and within the confidentiality requirements of the National Law Compliance actions and prosecutions must be initiated by the relevant delegate

Gathering evidence

What is evidence

925 Evidence is gathered to establish facts which prove or disprove whether an offence has been committed The manner in which the evidence is gathered is important and evidence to be relied upon for an enforcement action must be sufficient to prove each and every element of the alleged offence or breach In an investigation the main sources of evidence are

bull oral evidence (recollections) including witness statements

bull documentary evidence (records)

bull real evidence (physical evidence or objects)

bull expert evidence (technical advice) and

bull site inspection and the resulting investigator statements video or photographs

926 In some circumstances one piece of evidence might be enough to prove a fact However it is best to collect supporting evidence where possible Evidence may be either direct or circumstantial Direct evidence establishes a fact directly for example a confession statement or security footage of a person contravening the law Circumstantial evidence may lead an investigator to deduce a particular fact for instance forensic evidence that indicates a person was present in a particular location


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Characteristics of evidence

Authentic The evidence is factual and real

Valid The evidence is relevant to the facts it is used to prove

Reliable The evidence is trustworthy and may be supported by other evidence

Current The evidence is relevant to the time period in question

927 When collecting evidence for legal proceedings it is particularly important to ensure that it is gathered correctly so it can be used in court Investigators should seek advice from the relevant area of the regulatory authority about satisfying the rules of evidence in their jurisdiction It is also important that any evidence seized or copied is kept in a secure location with a clear process that will ensure continuity and eliminate any claims of misconduct Records of the recovery storage and movement of evidence should be kept

Standard of proof

928 The standard of proof is the amount and type of evidence that is required to prove something In some jurisdictions it is best practice to always operate at a standard of proof of beyond reasonable doubt If unsure of the applicable standard of proof seek advice from the regulatory authorityrsquos legal team or equivalent

929 Depending on the purpose of the investigation then there may be different standards of proof For civil prosecutions the evidence will need to show that on lsquothe balance of probabilitiesrsquo something occurred However for criminal prosecutions the proof must be lsquobeyond reasonable doubtrsquo

Conducting interviews

930 In some circumstance people involved in an incident including witnesses to an incident may need to be interviewed as part of the investigation People being interviewed should be informed of the investigation any confidentiality requirements and that they may be asked to give evidence in person at a later point Different requirements apply when interviewing persons of interest including the giving of a warning under section 212 of the National Law If unsure seek advice from the regulatory authorityrsquos legal team or equivalent The investigator may take a written witness statement to record facts established in an interview

931 A statement should set out the relevant facts in chronological order Statements should be specific detailed and accurate The statement should set out

bull where the incident occurred

bull when the incident occurred

bull who was present and

bull what the person observed


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932 If possible the statement should specify the exact words that were used If the person does not remember the exact wording the statement should make this clear for example lsquoshe said words to the effect ofrsquo Where a person provides an opinion the statement should include the reason that the person formed that opinion The statement should reflect the personrsquos account of the incident rather than conclusions drawn by the investigator

Using photographs or film


933 An authorised officer may photograph or film at an education and care service or business premises when exercising their powers under sections 197 (powers of entry for assessing and monitoring approved education and care service) 199 (powers of entry for investigating approved education and care service) and 200 (powers of entry to business premises) When entering business premises that are not an education and care service premises an authorised officer must have consent from the occupier of the premises to take photographs or film

Using photographs or film as evidence

934 The regulatory authority may sometimes need to take photographs or film when investigating a service including possible contravention of the National Law or National Regulations or circumstances surrounding a serious incident For instance if a provider has failed to maintain fixtures at the service premises and there is a risk to childrenrsquos safety the authorised officer might photograph the fixture The images may be used as evidence to support a compliance action or to support a prosecution if the contravention is serious

935 State or territory based legislation may include requirements for the collection and storage of photos or film to be used as evidence for a prosecution Other jurisdictional or national legislation may also apply to the use and storage of photographs and film of children such as privacy child protection and copyright legislation and criminal codes Regulatory authority staff should consult their legal team as required about relevant legislation and the proper collection and maintenance of photos and film to be used as evidence For information on privacy lsquoInformation Sheet 1 (Public Sector) on Information Privacy Principlesrsquo is available on the Office of the Australian Information Commissioner website wwwoaicgovau

936 The regulatory authority may also be required to show continuity of custody for photographs or film used as evidence for court proceedings For instance if photos are taken on a digital camera and stored electronically the regulatory authority may be required to provide a record of who has accessed the file It might also need to demonstrate it has measures in place to ensure a reliable framework for storing digital records including

bull policies and procedures to guide digitisation processes

bull training programs and support for staff about collecting and storing photos and film

bull documented security controls for digital images and

bull documented monitoring and review mechanisms


E

937 In general where a photograph or film is taken it is recommended that a minimum of three photographs are taken or lsquoaspectsrsquo covered

bull a close up of any identifying features

bull a close up to show the whole subject and

bull a wide shot to show the context

938 An authorised officer should record in their notebook any photos taken as part of monitoring and compliance activities This should include details of the direction the camera is facing a brief description of the image the time and the photographerrsquos name

939 As soon as practicable after taking the photograph or recording the film an authorised officer should upload the photographs or film from the device onto a computer belonging to the regulatory authority and follow relevant labelling conventions For video recordings an authorised officer should record the date time and location verbally as part of the audio recording and log the video in their notebook

940 Photographs or film should only be recorded on a camera (or other device) belonging to the regulatory authority rather than a privately-owned camera mobile phone or other device

Photographing or filming children

941 An authorised officer should avoid taking photographs or film of children unnecessarily in the exercise of their powers When deciding whether to take photographs or film of children in the exercise of their powers an authorised officer should consider if evidence could be gathered effectively without taking photographs or filming children for example by moving children out of the frame or by using another means of recording the information

942 An authorised officer should explain to any person who is or appears to be concerned about the photographing or filming of children that they are only taken and used for purposes directly related to the regulatory authorityrsquos function which is to monitor education and care services

943 They should also advise the person that the regulatory authority is bound by the Information Privacy Principles set out in the Commonwealth Privacy Act 1988

944 Disruption to the service program should be minimised

945 Wherever possible an authorised officer should avoid taking photographs of children

bull in toileting areas

bull in nappy changing areas and

bull when they are in any state of undress or exposure

Last updated April 2017 Offences relating to enforcement Monitoring Compliance and Enforcement 351

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10 Offences relating to enforcement

Offence to obstruct an authorised officer


101 A person must not obstruct an authorised officer in exercising powers under the National Law and Regulations

102 The regulatory authority may seek to prosecute a person for obstructing an authorised officer The maximum penalty which may be imposed by a court for obstructing an authorised officer exercising powers under the National Law is $8000 in the case of an individual $40000 in any other case

Offence to fail to assist an authorised officer


103 A person must not without reasonable excuse

bull refuse to answer a question asked lawfully by an authorised officer (except for a question asked during an assessment or monitoring visit under section 197)

bull refuse to provide information or produce a document lawfully required by an authorised officer or

bull fail to comply with a request made by an authorised officer entering premises under a warrant to

ndash require the occupier of the premises or any person present to help with the investigation

ndash require the occupier of the premises or any person present to give information to help the investigation

104 The regulatory authority may seek to prosecute a person for failing to assist an authorised officer The maximum penalty which may be imposed by a court for failing to assist an authorised officer when required is $8000 in the case of an individual $40000 in any other case

352 Monitoring Compliance and Enforcement Offences relating to enforcement Last updated April 2017

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Offence to destroy or damage notices or documents


105 A person must not without lawful authority destroy or damage any notice or document given prepared or kept under the National Law

106 The regulatory authority may seek to prosecute for destroying or damaging notices or documents under the National Law The maximum penalty which may be imposed by a court for destroying or damaging notices or documents is $8000 in the case of an individual $40000 in any other case

Offence to impersonate authorised officer


107 A person must not impersonate an authorised officer

108 The regulatory authority may seek to prosecute a person for impersonating an authorised officer The maximum penalty which may be imposed by a court for impersonating an authorised officer is $8000

Offence to fail to comply with notice or requirement


109 A person must not refuse or fail to comply with a requirement under the power of regulatory authorities to obtain information documents and evidence by notice or at a service to the extent that the person is capable of complying with the requirement

1010 The regulatory authority may seek to prosecute a person for refusing or failing to comply with a notice or requirement The maximum penalty which may be imposed by a court for failing to comply with a notice or requirement is $8000 in the case of an individual $40000 in any other case


E

Offence to hinder or obstruct regulatory authority


1011 A person must not hinder or obstruct the regulatory authority in exercising a power to obtain information documents and evidence by notice or at a service

1012 The regulatory authority may seek to prosecute a person for hindering or obstructing a regulatory authority The maximum penalty which may be imposed by a court for hindering or obstructing a regulatory authority is $8000 in the case of an individual $40000 in any other case

False or misleading information or documents


1013 A person must not give the regulatory authority or authorised officer any information or document that the person knows is false or misleading unless when giving the document the person

bull informs the regulatory authority or authorised officer how the document is false or misleading to the best of their ability and

bull gives the correct information to the regulatory authority or authorised officer if the person has or can reasonably get the correct information

1014 The regulatory authority may seek to prosecute for providing false or misleading information or documents The maximum penalty which may be imposed by a court for providing false or misleading information or documents is $6000 in the case of an individual $30000 in any other case

354 Monitoring Compliance and Enforcement Complaints Last updated April 2017

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11 Complaints

Receiving complaints


111 The functions of regulatory authorities include receiving and investigating complaints arising under the National Law


112 Regulatory authorities may from time to time receive complaints about approved providers and services A complaint is a communication with the regulatory authority stating that something about a provider or service is unacceptable or unsatisfactory

113 A complaint may be received in a range of ways including verbally (in person or by telephone) or in writing (for example a letter or email) Regulatory authorities should be aware that a person may not expressly state that they are making a complaint

114 This chapter provides guidance for regulatory authorities to assist in responding to complaints about approved providers and services Authorised officers should be aware of any internal departmental policy or protocol which may also apply when responding to complaints

115 Regulatory authorities should also be aware they will receive notifications about certain complaints received by approved providers as required by section 174 of the National Law For more information about notifications refer to Operational Requirements ndash Leadership and service management

116 For more detailed guidance regulatory authorities may also refer to the Australian Standards on complaints handling or the Commonwealth Ombudsmanrsquos Better Practice Guide to Complaint Handling available at wwwombudsmangovau

117 Regulatory authorities may receive complaints from

bull a parent authorised nominee or child

bull a staff member or volunteer at an education and care service

bull the nominated supervisor or

bull another person

118 Complaints may be made in a variety of ways such as email mail fax and phone or in person either at the regulatory authorityrsquos office or during a service visit

Last updated April 2017 Complaints Monitoring Compliance and Enforcement 355

E

119 Regulatory authorities should only accept complaints about centre-based services if the service is operating in the regulatory authorityrsquos jurisdiction When a regulatory authority receives a complaint about a family day care educator it should liaise with the regulatory authority in the jurisdiction where the educatorrsquos service is located if necessary

1110 If the regulatory authority receives a complaint which should have been directed to another jurisdiction it should immediately notify the approved provider or redirect the complaint or both

Once a complaint has been received

1111 Once a complaint has been received the regulatory authority should log the complaint in the NQA IT System and acknowledge its receipt

1112 The regulatory authority should then conduct a risk assessment to determine what response is required See Good Regulatory Practice for information about how to conduct a risk assessment

Risk assessment

1113 When conducting a risk assessment in response to a complaint about an education and care service or approved provider foremost consideration should be given to the nature of the complaint itself For example whether the subject of the complaint suggests a real and serious or immediate risk to the health safety and wellbeing of a child or children In addition the regulatory authority should consider

bull the compliance history of the approved provider and

bull the nature of any previous complaints against the service or provider

High

1114 Where the risk assessment indicates that there is a high risk to children and a high likelihood of harm eventuating investigation into the complaint is a priority Regulatory authorities should also consider whether other regulatory bodies need to be notified such as the police or a child protection agency


E

Medium

1115 Where the risk assessment indicates a moderate risk to children and a moderate likelihood of harm eventuating the complaint should be investigated as soon as reasonably practicable

Low

1116 Where the risk assessment indicates a low risk or no risk to children and a low likelihood of the harm eventuating the complaint should be investigated in the normal course of the regulatory authorityrsquos work

Complaints about privacy


1117 The National Law provides individuals with a right to complain to the National Education and Care Services Privacy Commissioner (NECS Privacy Commissioner) if they feel that a regulatory authority or ACECQA has mishandled their personal information Contact details for the NECS Privacy Commissioner are available at wwwnecsombudsmanprivacyeduau

Complaints about freedom of information


1118 The National Law also provides individuals with a right to complain to the National Education and Care Services Freedom of Information Commissioner (NECS FOI Commissioner) if they are not satisfied with how their freedom of information request has been handled by a regulatory authority or ACECQA Contact details for the NECS FOI Commissioner are available at wwwnecsombudsmanprivacyeduau


E

Complaints about administrative actions


1119 People with complaints about the administrative actions of ACECQA and regulatory authorities may complain to the Education and Care Services Ombudsman (about ACECQA) or the state or territory ombudsman of that jurisdiction (about regulatory authorities) It is important to remember that an ombudsman will not look at the decision itself but rather the process by which the decision was reached

1120 Contact details for each ombudsman are set out below

Jurisdiction Ombudsman Website

ACECQA ECS Ombudsman necsombudsmanprivacyeduau

Australian Capital Territory ACT Ombudsman ombudsmanactgovau

New South Wales NSW Ombudsman ombonswgovau

Northern Territory Ombudsman NT ombudsmanntgovau

Queensland Queensland Ombudsman ombudsmanqldgovau

South Australia Ombudsman SA ombudsmansagovau

Tasmania Ombudsman Tasmania ombudsmantasgovau

Victoria Victorian Ombudsman ombudsmanvicgovau

Western Australia Ombudsman Western Australia ombudsmanwagovau

Referring a complaint to the approved provider

1121 Where a complaint (and any relevant background information) does not indicate a real and serious or immediate risk to the safety health or wellbeing of a child or children the regulatory authority may decide to refer the complaint to the approved provider to resolve in the first instance This is most likely to be appropriate for low risk complaints that have been directed to the regulatory authority in the first instance and the approved provider has not yet had an opportunity to try and resolve the issue

1122 Where this occurs the regulatory authority should advise the complainant of the intended process and advise that they may contact the regulatory authority again if they are not satisfied with the providerrsquos response

1123 An approved providerrsquos response to a complaint can be examined during a monitoring visit and at an assessment and rating visit when looking at Quality Area 7 of the National Quality Standard ndash element 734 lsquoprocesses are in place to ensure that all grievances and complaints are addressed investigated fairly and documented in a timely mannerrsquo


E

1124 An approved provider must have policies and procedures about dealing with complaints and must ensure they are followed (regulations 168 170) This applies to complaints received directly from parents or other people and those referred to the approved provider by the regulatory authority (see Operational Requirements ndash Leadership and service management)

Responding to a complaint

1125 Once the regulatory authority has investigated a complaint it should determine and implement an appropriate response For information on keeping records of investigations and decisions see Good Regulatory Practice ndash Good decision-making

1126 Regulatory authorities should refer to Good Regulatory Practice for more information about how to determine a response

1127 Regulatory authorities should endeavour to communicate actions and outcomes to the complainant and the person who is the subject of the complaint taking into account the requirements of the Commonwealth Privacy Act 1988 as modified by the National Regulations Outcomes should also be recorded on the NQA IT System

Complaints outside the scope of the National Quality Framework

1128 In some instances complaints to the regulatory authority will be about matters outside the scope of the National Law and Regulations For example complaints about racial discrimination fees and charges or lack of available parking near an education and care service Where the regulatory authority finds that a complaint is out of scope of the National Law and Regulations it should notify the complainant immediately and explain to the person that

bull the complaint is out of scope of the National Quality Framework and

bull who the complaint should be directed to (if known)

1129 Regulatory authorities should refer to Operational Requirements ndash Other regulatory frameworks for more information


E


E

Last updated April 2017 Fees 361

FFees


Contents

Fees 363

Application fees 363

Annual fee 363

Waiving or varying a fee 364

Indexation 365

GST 365

362 Fees Last updated April 2017

F









Legend


F

1 Fees


11 Regulatory authorities have the power to collect waive reduce defer and refund fees (including late payment fees) and enter into agreements in relation to fees This chapter sets out guidance to assist regulatory authorities in exercising their powers in relation to fees Please note that fees associated with applications to ACECQA are not covered in this chapter

Application fees

National Regulations regulation 232 schedule 2

12 The National Regulations prescribe fees for certain applications to the regulatory authority which are set out on the ACECQA website at wwwacecqagovau

13 There is no fee to amend or voluntarily suspend a provider approval service approval or supervisor certificate

Annual fee



14 An approved provider must pay the prescribed annual fee for each service approval they hold

15 Fees must be paid to the relevant regulatory authority on or before 1 July each year


16 The National Regulations prescribe the annual fee for each service approval held by the approved provider these are available on the ACECQA website at wwwacecqagovau


F

Late payment fee


16 The regulatory authority may charge a late payment fee if an annual fee is not paid by 1 July The late fee is 15 per cent of the relevant annual fee per 30 days (or part thereof) that the payment is overdue


17 Regulatory authorities can exercise discretion as to whether to charge a late payment fee

18 If the annual fee is not paid the regulatory authority may consider taking compliance action Refer to Monitoring Compliance and Enforcement Failure to pay the annual fee is grounds for suspension of provider approval and service approval (sections 25 and 70)

19 Repeated instances of non-payment may indicate poor financial management and the regulatory authority may decide to reassess the providerrsquos fitness and propriety to provide an education and care service (see Applications and Approvals)

Waiving or varying a fee



110 The regulatory authority may waive reduce defer or refund a fee payable or that has been paid if there are exceptional circumstances

111 The regulatory authority may make an agreement in relation to fees


112 Decisions to waive or vary a fee should be made on a case-by-case basis depending on the circumstances For example the regulatory authority may waive reduce or defer a fee for a provider whose service has been affected by a natural disaster that has significantly impacted the providerrsquos financial position The regulatory authority may seek documentary evidence to support the providerrsquos claims of exceptional circumstances

113 The regulatory authority may also offer flexible payment options to providers who are unable to pay their fees due to exceptional circumstances


F

Indexation


114 Fees are indexed each year according to published indexation figures and are published on the ACECQA website at wwwacecqagovau before the beginning of each financial year Regulatory authorities may also publish the fee schedule

GST

115 Regulatory authorities should be aware of recent changes in GST legislation from July 2012 which mean that government regulatory fees are now exempt


F

G

Last updated April 2017 Reviews Freedom of Information and Privacy 367

Reviews Freedom of Information and Privacy

Contents

Reviews 368

Internal merits review 368

External review 374

Judicial review 376

Review of the administrative process by an Ombudsman 377

Privacy 379

Freedom of Information 381


G

368 Reviews Freedom of Information and Privacy Reviews Last updated April 2017

1 Reviews11 This chapter gives an overview of a personrsquos right to challenge a decision made by a

regulatory authority which has negatively impacted an individualrsquos rights interests or legitimate expectations The Good Regulatory Practice chapter provides regulatory authorities with guidance about ensuring the decisions they make are lsquolawfulrsquo and therefore better able to withstand challenges

12 Following most administrative decisions in the public sector persons affected by a decision can challenge the decision or the administrative process used to reach the decision using one or more mechanisms for review These mechanisms are generally referred to as lsquoreview rightsrsquo and include

bull a statutory right to have a decision reviewed on its merits (also known as lsquomerits reviewrsquo)

bull judicial review and

bull a review of the administrative process by an Ombudsman

13 The National Law provides for both internal review conducted by the regulatory authority responsible for the initial decision and external review conducted by the relevant court or tribunal

14 A person may also be able to seek judicial review of a decision under state or territory law

Internal merits review

Internally reviewable decisions

15 An internal review gives a person the opportunity to have a decision reconsidered by the regulatory authority This may involve a review of the entire decision including evidence

G

Last updated April 2017 Reviews Reviews Freedom of Information and Privacy 369


16 The National Law sets out which decisions made by regulatory authorities are internally reviewable Refer to the table below

Internally reviewable decisions (section 190)

Provider approvals bull Refusal to grant provider approval

bull Amendment of provider approval

bull Refusal to amend provider approval

bull Impose a condition on provider approval

bull Suspend provider approval without a show cause notice

Service approval bull Refusal to grant service approval

bull Amendment of service approval

bull Refusal to amend service approval

bull Impose a condition on service approval

bull Suspend service approval without a show cause notice

bull Refuse to consent to transfer of service approval

bull Revoke a service waiver

Supervisor certificate bull Refusal to grant supervisor certificate

bull Amendment of supervisor certificate

bull Refusal to amend supervisor certificate

bull Impose a condition on supervisor certificate

bull Suspend supervisor certificate without a show cause notice

Other bull Issue a compliance direction

bull Issue a compliance notice


17 If the application is not for an internally reviewable decision regulatory authorities should contact the applicant to inform them that the application is invalid and must be refused

18 Regulatory authorities should notify the applicant of any other avenues which are available to have the decision reviewed In some instances this may mean an external review External review includes review of the administrative decision-making process by an ombudsman

NOTE Quality rating decisions are also subject to internal review This process is informally referred to as first tier review and is set out in sections 141 and 144 of the National Law For more information see the Guidelines for First Tier Review on the ACECQA website at wwwacecqagovau

G


Application for internal review



19 A person who is the subject of an internally reviewable decision may apply to the regulatory authority for review

110 The person must apply in writing to the regulatory authority that made the decision within 14 days after being notified of the decision (or within 14 days of becoming aware of the decision if they are not notified)

111 Information that must be included in an application for internal review is set out in the table below

Information that must be included in an application for internal review

The name of the applicant

Contact details for the applicant including an address for notification of the decision

Provider approval number service approval number or supervisor certificate number to which the decision relates

The full name of the person to whom the provider approval service approval or supervisor certificate was granted

A statement setting out

the details of the decision or part of the decision for which review is sought

how the decision affects the applicant and

the grounds for seeking a review of the decision

Any information that the applicant considers relevant to the review





G








Timeframe for conducting internal review


117 An internal review must be conducted within 30 days after the application is made This period may be extended by up to 30 calendar days if the regulatory authority requests more information or with the agreement of the applicant



Conducting internal review


119 An internal review must be conducted by a person who was not involved in the assesment or investigation of the person or service

120 The person conducting the review may ask the applicant for further information

121 Having conducted an internal review the reviewer may confirm the original decision or make any decision it considers appropriate

G



How is a review conducted

122 An internal review is a merits review which means it allows a new decision-maker to take a fresh look at the matter with full consideration of all relevant facts policies and law The outcome is either a new decision or the upholding of the original decision See Good Regulatory Practice for more information about what type of information must be included in a decision record

123 In a merits review the new decision-maker is expected to make the lsquocorrect and preferablersquo decision and may sometimes consider new evidence New evidence should be considered where it is relevant and will help the decision maker come to the correct and preferable decision In some cases this may mean that a decision made during merits review is based on factors that were not present at the time of the original decision For this reason a different decision on a merits review does not necessarily indicate that the original decision was lsquoincorrectrsquo

124 Even if there was no error of fact or law when the first decision was made the decision-maker for the review might exercise their discretion or judgement in a different way making a different decision

125 An internal review is a review of the original decision only so cannot consider a different application For example a review on a decision to reject an increase to the maximum number of children at a centre-based service cannot consider a request for a smaller increase to the maximum number of children The review can only reconsider the original request If an applicant wishes to change the nature of an application that has been rejected the applicant should submit a new application rather than request an internal review

Who should conduct a review

126 Any person conducting the review must not have been involved in the assessment or investigation of the person or service that was the subject of the decision This means that the original decision-maker as well as staff who were involved in collecting evidence making an assessment or preparing a recommendation for the original decision cannot conduct the review While the conducting officer will most likely be from the same department where possible it is advisable that the conducting officer be from a different team

127 The person(s) making the review decision should have

bull access to all relevant information including information submitted by the applicant in the review application and all information used by the regulatory authority in making the original decision

bull relevant knowledge of administrative processes and requirements

bull a solid understanding of the relevant provisions of the National Law and Regulations in particular the requirements relating to reviews

bull effective communication skills

bull conflict resolution skills to aid working with the applicant and staff within the regulatory authority

G


What is the process for conducting a review

128 The process for conducting a review is set out below

Review process

Step 1 Receive request for review and decide whether it has been provided within 14 days of the applicant having been notified of the original decision (or within 14 days of the applicant becoming aware of the decision if they were not notified)

If the request has not been received in the required timeframe the application is not valid and must be refused

Step 2 Register request for review on the NQA IT System noting regulatory authority has 30 days to conduct the review

Step 3 Acknowledge receipt of the application

Step 4 Assign request for review to an individual officer or a panel making sure the officer or panel members were not involved in the original decision

Step 5 Validate the application by

bull checking the regulatory authority has the power to conduct an internal review of the decision in question

bull checking the application form is complete

bull ensuring all supporting documentation referenced in the application has been included

bull determining whether the grounds for the review have been satisfied (if the legislation specifies the grounds for requesting a review) and decide if further information is needed

If the request is not for review of a reviewable decision it is invalid

Step 6 If required seek further information from the applicant and staff of the regulatory authority such as

bull evidence of the grounds for requesting review

bull notes evidence or any other information considered in original decision

bull comment on the grounds of the request for review from those involved in the original decision

bull any other relevant information required as determined by examining the information provided by the applicant andor regulatory authority staff involved in the original decision

The timeframe for conducting the review is extended by 30 days if more information is requested from the applicant The timeframe may also be extended by 30 days with the agreement of the applicant

Step 7 Assess the application In some situations the regulatory authority may decide to seek legal advice on a request for review

G


Review process

Step 8 Consistent with the principles of good decision-making (set out in Good Regulatory Practice) determine whether to affirm the original decision or make a new decision

The person making the decision must confirm that they have the appropriate delegation to do so under the National Law

Step 9 Prepare a statement of reasons clearly setting out the basis for the decision

Step 10 Notify applicant of the decision and provide the statement of reasons Notification should also include information about the applicantrsquos right to external review by a tribunal or court (if applicable) or by an ombudsman (Refer to the table of contacts in Review of the administrative process by an ombudsman below)

External review

Externally reviewable decisions


129 The National Law sets out which decisions made by regulatory authorities are externally reviewable Refer to the table below


Made by the regulatory authority as a result of an internal review (other than in relation to the issue of a compliance direction or compliance notice)

To suspend a provider approval service approval or supervisor certificate after the show cause process

To cancel a provider approval service approval or supervisor certificate after the show cause process

To direct an approved provider of a family day care service to suspend the education and care of children by a family day care educator

To give a prohibition notice or to refuse to cancel a prohibition notice

G



130 A person is not entitled to external review of a decision to suspend or cancel a service approval if that suspension or cancellation relates only to an associated childrenrsquos service Any right of review would be under the relevant childrenrsquos services law

Application for external review


131 A person who is the subject of an externally reviewable decision may apply to the relevant court or tribunal for a review of the decision See the Glossary for details of the relevant court or tribunal in each jurisdiction

132 A person must apply in writing within 30 calendar days after being notified of the decision


133 The National Law does not stipulate or limit the grounds on which a person can apply for external review

134 An external review conducted by a tribunal is typically a merits review whereas a review conducted by a court is usually a judicial review

Determining an application for external review


135 After hearing the matter the relevant court or tribunal may

bull confirm the regulatory authorityrsquos decision

bull amend the regulatory authorityrsquos decision or

bull make a new decision

136 When determining an application for external review the tribunal or court may consider any decision of a tribunal or court in another state or territory made under the National Law

G


Judicial review


137 Judicial review involves the review of a decision by a court In this process the court addresses the lawfulness of the decision It is important to understand that in the judicial review process the court does not review the case based on its merits Rather the court seeks to answer the question lsquoWas the decision lawfulrsquo

138 Generally speaking judicial review does not allow the admission of new evidence and does not attempt to determine the lsquocorrect and preferablersquo decision

139 Where regulatory authorities and tribunals may substitute decisions during the merits review process courts will generally

bull set aside a decision

bull direct decision-makers to address the matter again following any recommendations made by the court

bull make a declaration or

bull make an order preventing or specifically directing any action

140 Generally an application for external judicial review is sought on the following grounds

bull the decision-making process involved an error of law

bull a breach of the rules of natural justice occurred in the decision-making process

bull irrelevant matters were taken into consideration (or relevant matters were not taken into consideration)

bull the exercise of the decision-making power was unreasonable or

bull a decision-making power was exercised improperly either by a person unauthorised to make the decision or for an unauthorised purpose

141 See Good Regulatory Practice for more information about natural justice

G


Review of the administrative process by an Ombudsman


National Regulations regulations 218 - 225

142 Relevant state and territory ombudsman legislation applies to decisions made by regulatory authorities The Ombudsman Act 1976 (Commonwealth) as modified by the National Law applies to decisions made by ACECQA


143 The decision-making processes and conduct of regulatory authorities are subject to scrutiny by the relevant state or territory ombudsman ACECQA is overseen by the Education and Care Services Ombudsman

144 An ombudsman acts independently of governments and their agencies An ombudsman has wide ranging powers to require agencies to furnish documents to enter premises and to seek injunctions and may make recommendations to government agencies following investigation of a complaint While governments are not necessarily required to adopt the findings of an ombudsman it is in the best interests of governments their agencies and the broader public to implement an ombudsmanrsquos recommendations where possible

145 Each ombudsman generally seeks to resolve complaints about conduct and decision-making processes through a process of conciliation An ombudsman also has the power to conduct investigations and may investigate matters of their own volition

146 An ombudsman does not advocate for complainants or governments but rather may be considered to advocate for best practice decision-making and conduct in government agencies Generally an ombudsman will not accept a complaint before the agency concerned has had a reasonable opportunity to address the complaint and may also refer complaints on to another relevant body for consideration

147 It is important to remember that an ombudsman will not look at the decision itself but rather the process by which the decision was reached

G













G

Last updated April 2017 Privacy Reviews Freedom of Information and Privacy 379

2 Privacy


National Regulations regulations 195-203

21 ACECQA and each of the regulatory authorities are required to comply with the Commonwealth Privacy Act 1988 as modified by the National Law (the Privacy Act) when handling personal information for the purposes of the National Quality Framework (NQF)


22 The Privacy Act contains 11 Information Privacy Principles (IPPs) which regulate the collection use disclosure storage and accuracy of personal information handled by ACECQA and each of the regulatory authorities A breach of one or more of the IPPs is considered an interference with an individualrsquos privacy

23 The Office of the Australian Information Commissioner (OAIC) has published guidelines to the IPPs on its website at wwwoaicgovau ACECQA and regulatory authorities may refer to these guidelines to assist in complying with the Privacy Act

24 The National Education and Care Services Privacy Commissioner website at wwwnecsombudsmanprivacyeduau also has information about privacy under the Education and Care Services National Law


25 An individual can complain to the relevant agency (ACECQA or a regulatory authority)about the mishandling of their personal information ACECQA or the regulatory authority should attempt in the first instance to resolve an individualrsquos privacy complaint If ACECQA or the regulatory authority is not able to resolve the complaint then the National Law provides individuals with a right to complain to the National Education and Care Services Privacy Commissioner (NECS Privacy Commissioner)

26 Contact details for the NECS Privacy Commissioner are available at wwwnecsombudsmanprivacyeduau

G

380 Reviews Freedom of Information and Privacy Privacy Last updated April 2017

Addressing privacy breaches

27 In some circumstances ACECQA or a regulatory authority may become aware of an interference with an individualrsquos privacy without a complaint In those circumstances the best practice response is to address the breach in a manner consistent with the OAICrsquos data breach response process available on the OAIC website A brief summary of the process is outlined below


Step 1 Contain the breach and make a preliminary assessment

bull Take immediate steps to contain breach

bull Designate personteam to coordinate response

Step 2 Evaluate the risks for individuals associated with the breach

bull Consider what personal information is involved

bull Determine whether the context of the information is important

bull Establish the cause and extent of the breach

bull Identify what is the risk of harm

Step 3 Consider breach notification bull Risk analysis on a case-by-case basis

bull Not all breaches necessarily warrant notification

Step 4 Review the incident and take action to prevent future breaches

bull Fully investigate the cause of the breach

bull Consider developing a prevention plan

bull Option of audit to ensure plan implemented

bull Update security response plan

bull Make appropriate changes to policies and procedures

bull Revise staff training practices

G

Last updated April 2017 Freedom of information Reviews Freedom of Information and Privacy 381

3 Freedom of information



31 The Freedom of Information Act 1982 (Cth) as modified by the National Law (the FOI Act) applies to documents held by ACECQA and the regulatory authorities for the purposes of the NQF It provides individuals with a legally enforceable right to access such documents and to seek to correct or annotate any information about them held in such documents if the information is incomplete incorrect out-of-date or misleading


32 Under the National Law and Regulations ACECQA and the regulatory authorities must give an individual access to a document on request except to the extent that the document is exempt under the FOI Act ACECQA and the regulatory authorities must also give an individual access to a conditionally exempt document on request unless access to the document would on balance be contrary to the public interest

33 The FOI Act only applies to information contained in a document (including electronic records) and only to documents in existence The FOI Act does not require ACECQA or the regulatory authorities to create documents to supply information falling within the scope of a request and it does not regulate information that is already available for a fee

Applications under the FOI Act

34 An application under the FOI Act must

a) be made in writing

b) state that the application is made for the purposes of the FOI Act

c) provide enough information to reasonably identify the document

d) include a postal or email address to which notices may be sent

35 The FOI Act imposes strict timeframes on ACECQA and the regulatory authorities in processing FOI requests Further information on timeframes and other matters relating to the processing of FOI requests is available in the OAICrsquos Guide to the Freedom of Information Act 1982 The National Education and Care Services FOI Commissioner website at wwwnecsombudsmanprivacyeduau also has information about FOI requirements under the National Law

G

382 Reviews Freedom of Information and Privacy Freedom of information Last updated April 2017

Review of FOI decisions and complaints about FOI

36 If an individual disagrees with an FOI access decision they can seek an internal review of the decision or apply to the National Education and Care Services FOI Commissioner for review of the decision If a person is not satisfied with the outcome of an internal review they can also seek review by the National Education and Care Services FOI Commissioner

37 The National Law also provides individuals with a right to complain to the NECS FOI Commissioner if they feel that a regulatory authority or ACECQA has mishandled a request for access to a document Contact details for the NECS FOI Commissioner are available at wwwnecsombudsmanprivacyeduau

38 If an individual is unhappy with a review by the NECS FOI Commissioner they may seek a further review through the appropriate administrative tribunal

G


G

384 Reviews Freedom of Information and Privacy Last updated April 2017

H

Last updated April 2017 Assessment and Rating 385

Assessment and Rating

Contents

1 What is assessment and rating 386

Authorised officersrsquo powers of assessing and rating 386

National Quality Standard 386

The rating system 387

2 Frequency of the assessment and rating cycle 389

3 Conducting assessment and rating visits 390

4 Before the assessment and rating visit 392

What is a desktop review 392

What is a quality improvement plan 392

How long is a visit 394

5 How is an assessment and rating visit completed 395

How is evidence collected to determine ratings 395

Communication during the assessment and rating visit 395

How are ratings determined 396

6 Assessing inconsistent quality 402

7 Reassessment and re-rating at request of the approved provider 403

Application for reassessment and re-rating 403

Timeframe for conducting the reassessment and re-rating 404

Factors that influence reassessment and re-rating 405

8 Review of service rating against the National Quality Standard (lsquofirst tier reviewrsquo) 406

Application for first tier review 406

9 Further review by ratings review panel (lsquosecond tier reviewrsquo) 411

Application for second tier review 411

Timeframe for conducting a second tier review 412


H

386 Assessment and Rating What is assessment and rating Last updated April 2017

1 What is assessment and rating


11 The assessment and rating process determines whether and at what rating level a service meets the National Quality Standard (NQS) and the requirements of the National Law and Regulations

12 Until an approved education and care service is first assessed it holds the prescribed provisional rating (lsquoProvisional ndash Not Yet Assessedrsquo)

Authorised officersrsquo powers of assessing and rating


13 Authorised officers exercise specific powers for assessment and rating purposes namely

bull to enter and inspect education and care service premises

bull obtain information documents and evidence

bull inspect and copy documents

14 Further information about the legislative powers of regulatory authorities and authorised officers can be found in Section E ndash Monitoring Compliance and Enforcement

National Quality Standard

What is the National Quality Standard

15 The NQS comprises quality areas standards and elements There are seven quality areas in the NQS

QA1 Educational program and practice

QA2 Childrenrsquos health and safety

QA3 Physical environment

QA4 Staffing arrangements

QA5 Relationships with children

QA6 Collaborative partnerships with families and communities

QA7 Leadership and service management

H

Last updated April 2017 What is assessment and rating Assessment and Rating 387

The rating system

What are the rating levels

National Regulations regulations 57 59 60 61 62


16 The National Law and Regulations prescribe the five rating levels

bull Significant Improvement Required

bull Working Towards National Quality Standard

bull Meeting National Quality Standard

bull Exceeding National Quality Standard

bull Excellent

How are services rated


17 When assessing a service the regulatory authority must consider

bull the current quality improvement plan (QIP) for the service

bull any rating assessment history of the service including any records of previous rating assessments made under the National Law

bull the servicersquos history of compliance

18 The regulatory authority must arrange for an assessment and rating visit by an authorised officer

bull of the service premises in the case of a centre-based service

bull of one or more approved family day care venues or residences in the case of a family day care service

19 The regulatory authority may consider a range of information when determining a rating including

bull any relevant information disclosed to the regulatory authority by a government department public or local authority state or territory regulatory authority or the relevant Commonwealth department

bull any information available to the regulatory authority about any steps taken by the service to address any matters identified during the rating assessment

bull information about any other quality assurance or registration process under an education law applicable to the service

H


bull in the case of a service that provides education and care to children in the year that is two years before grade 1 of school whether the service facilitates access to a preschool program as set out in regulation 62(2)

H

Last updated April 2017 Frequency of the assessment and rating cycle Assessment and Rating 389

2 Frequency of the assessment and rating cycle


21 When regulatory authorities schedule quality rating assessments the goal is to improve the quality of services and keep information for families and communities accurate and up to date

22 To focus resources on services most in need of service improvement the actions of regulatory authorities are responsive and risk-based A result is more frequent re-rating of services that have a lower quality rating Services with higher quality ratings will generally have a longer period of time between assessment and rating visits in recognition of their ability to operate above the National Quality Standard

23 The factors that regulatory authorities consider when managing assessment and rating schedules include

bull the quality rating of a service when previously assessed including results below the overall rating level ndash for example services with three to five quality areas rated at Working Towards National Quality Standard may be reassessed more frequently than services with one or two quality areas rated at Working Towards National Quality Standard Similarly services rated Working Towards on certain Standards or for a higher number of Standards may also be reassessed more frequently

bull a change in service attributes that may affect the servicersquos quality ndash for example changes in provider or service management A service that was rated Exceeding National Quality Standard might change provider andor service leadership and the new providerrsquos quality profile may be lower than the previous provider

bull events that occur at the service ndash for example serious incidents or non-compliance with the National Law can indicate a change in quality and a higher scheduling priority

bull the length of time since the last assessment ndash for example over time a quality rating can lose its currency and value for families

24 Because of this range of factors each regulatory authority manages its assessment schedule in a responsive manner making adjustments to the schedule as new information emerges and making best use of available resources

H

390 Assessment and Rating Conducting assessment and rating visits Last updated April 2017

bull services with three to five quality areas rated at Working Towards National Quality Standard would more likely be reassessed more frequently than services with one or two quality areas rated at Working Towards National Quality Standard

3 Conducting assessment and rating visits


31 The following table outlines the general NQS assessment and rating process highlighting the activities a regulatory authority typically undertakes and the interactions it has with services The table is provided as a guide only

Step Process

1 Notice of start of process

The regulatory authority sends a letter to the approved provider notifying the four week period in which the assessment and rating visit will occur The letter may also include

bull the purpose of the assessment and rating process

bull a request to the approved provider to submit the QIP for their service within three weeks

bull that the authorised officer will advise of the actual assessment and rating visit date at least five working days in advance

bull guidance on how to source information on the assessment and rating process and developingupdating the QIP

bull the need for the approved provider or their key contact person (usually the nominated supervisor) to be available at the beginning and end and for part of the visit

The authorised officer undertakes an analysis of the available information about the service including reviewing the compliance and rating history

2 Quality Improvement Plan

On receipt of the QIP the regulatory authority sends a second letter to the approved provider acknowledging the date the QIP was received The letter may also include

bull a reminder that the approved provider or their key contact person (usually the nominated supervisor) is to be available at the beginning and end and for part of the visit

bull details of the visit including the approximate time and minimum length for the visit

For centre-based services the letter may advise that the assessment covers each room and all common areas (including outdoors)

For family day care services the letter may advise that there will be an initial visit to the servicersquos principal office a request for the servicersquos family day care register an assessment of a sample of educators and a final visit to the servicersquos principal office

The authorised officer reviews the servicersquos QIP and prepares for the assessment and rating visit

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Last updated April 2017 Conducting assessment and rating visits Assessment and Rating 391

3 Notice of visit

For all service types the authorised officer will confirm the date of the visit and approximate time of arrival at least five working days before the assessment and rating visitFor family day care services the authorised officer will give between 0 and 5 daysrsquo notice of the educator sample to be visited

4 Visit occurs The authorised officer conducts the assessment visit and records observations and evidence The authorised officerbull focuses on observations of practicebull visits a sample of family day care educatorsrsquo residences or venues for family

day care servicesbull engages in discussion with the approved provider or their key contact person

educators and staff members and coordinators for family day care services bull sights and considers documentationThe authorised officer also gives the approved provider at the time of assessment or as soon as practicable afterwards an indication of any minor adjustments that may be made at the service before the draft assessment and rating report is issued to the approved providerAny minor adjustments made by the service are included on the authorised officerrsquos notes and in the reportAfter the visit the authorised officer analyses the information gathered through the assessment and rating process including whether there was any evidence of inconsistent practice at the serviceThe authorised officer prepares the draft report with the proposed ratingsThe authorised officer alsobull addresses any issues that need to be attended to immediately as a result of a

risk to the safety health or wellbeing of a child or childrenbull clarifies any identified non-compliancebull informs the service that a draft report with ratings for all quality areas and an

overall rating will be provided approximately three to five weeks after the visit and that the provider will have 10 working days to provide feedback

5 Draft report The draft report and covering letter is issued to the approved provider The covering letter includes the contact details of the regulatory authority for providing feedback and states that the draft report will become the final report if no feedback is received within 10 working days

6 Consider feedback

The regulatory authority considers feedback received from the approved provider

7 Final report The report is finalised the final ratings are determined and the notice of final ratings is issued to the approved provider The regulatory authority informs the approved provider and provides information about the review process includingbull requests for a review must be lodged within 14 days of the approved providerrsquos

receipt of the reportbull details of the person to whom a review application is made (name and address)bull what cancannot be reviewedbull the review timeline

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392 Assessment and Rating Before the assessment and rating visit Last updated April 2017

4 Before the assessment and rating visit


41 The authorised officer will gain an understanding of the service by reviewing available information and the servicersquos current QIP which includes the statement of philosophy of the service

What is a desktop review

42 Authorised officers assess the information available to them before the assessment and rating visit and develop a plan for the visit

What is reviewed


43 A servicersquos QIP assessment history and compliance history must be considered when assessing and rating a service


44 Reviewing a servicersquos history helps to familiarise authorised officers with the service

45 As a guide authorised officers will consider information from the past three years

What is a quality improvement plan

46 The QIP documents the outcome of a servicersquos self-assessment and quality improvement planning process Services evaluate their current practice against the NQS identifying strengths and areas for improvement

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Last updated April 2017 Before the assessment and rating visit Assessment and Rating 393

What information needs to be included


47 The approved provider of a service must prepare a QIP for the service that

bull includes an assessment by the provider of the quality of the practices of the service against the NQS and the National Law and Regulations

bull identifies any area that the provider considers may require improvement

bull contains a statement of philosophy for the service

Timeframe for the quality improvement plan


48 In the case of new services the approved provider must prepare the QIP within three months of the grant of service approval For all services the approved provider must submit the current QIP to the regulatory authority on request

49 The approved provider must review and revise the QIP for the service having regard to the NQS

bull at least annually

bull at any time when directed by the regulatory authority


410 It is a condition of service approval that the QIP is kept at the service and is made available on request to parents of a child who is enrolled at the service or who is seeking to enrol a child at the service as well as for inspection by the regulatory authority


411 When writing the QIP services should reflect on practice policies and procedures against the seven quality areas of the NQS and related regulatory requirements There is no requirement that all 18 standards and 58 elements are addressed in the QIP Services may prioritise areas for improvement against the seven quality areas of the NQS and the related regulatory requirements

412 The QIP may include strategies to address those quality areas noted during the self-assessment or assessment process as not meeting the NQS or any regulatory requirement

413 A service meeting or exceeding the NQS in all quality areas may demonstrate its commitment to continuous improvement by documenting how the service will maintain its current practices and progress them to the next level

H


414 A template is available for the development of the QIP If the approved provider has chosen to use an alternative format the authorised officer should ensure that the information required under regulation 55 is included

How long is a visit


415 As a guide it is expected that assessment and rating visits for centre based services will be for at least six hours There may be circumstances where this is not adhered to

416 For services providing multiple types of outside school hours care (eg beforeafter and vacation) it is likely that not all types of care will be visited in the assessment and rating process

417 For family day care services assessment and rating visits generally involve visits to

bull the service (schemecoordination unit) at the beginning andor end of the assessment and rating visit

bull a sample of one or more approved family day care venues or family day care residences The regulatory authority will determine the sample from the register of family day care educators

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Last updated April 2017 How is an assessment and rating visit completed Assessment and Rating 395

5 How is an assessment and rating visit completed

How is evidence collected to determine ratings


51 Authorised officers are trained to use lsquoobserversquo lsquodiscussrsquo and lsquosightrsquo techniques to assess the service against the NQS and the National Law and Regulations

Observe The authorised officer may observe children families educators directors coordinators and staff members as part of the servicersquos practices

Discuss The authorised officer may engage with the key contact person educators directors coordinators family day care educator assistants or staff members about the practices within the service

Sight The authorised officer may sight documentation required by the National Law and Regulations and other documentation as evidence of the servicersquos practices

52 The Guide to the National Quality Standard provides authorised officers with guidance for each element of the NQS Authorised officers are also able to access the ACECQA eLearning portal which hosts materials and resources to support and inform the assessment and rating process

Communication during the assessment and rating visit


53 When visiting a service the authorised officer(s) should introduce themselves to the key contact person and give them an overview of what to expect in an assessment and rating visit including how they will gather evidence

54 During the visit authorised officers may consider the following

bull minimising disruption to practice unless there is an unacceptable risk to children

bull informing the key contact person when taking breaks

bull providing the key contact person with broad verbal feedback but explaining that no indication of the rating can be given at that time

bull if there are any matters which fall under the Minor Adjustment Policy the authorised officer should identify these and give the service the opportunity including a timeframe to address them

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396 Assessment and Rating How is an assessment and rating visit completed Last updated April 2017

55 The authorised officer should inform the service that a draft report with ratings for all quality areas and an overall rating will be provided approximately three to five weeks after the visit and that the approved provider will have 10 working days to provide feedback on any inaccuracies in the report

How are ratings determined

What ratings can a service receive

National Regulations regulation 57 58 59 60 61 62

56 There are four rating levels which can be awarded within the national assessment and rating process The ldquoExcellentrdquo rating is awarded by ACECQA through a separate application process

57 Authorised officers determine ratings by assessing each element of the NQS to determine if it is met or not met They then rate each standard and calculate the quality area and overall ratings

58 Before a service is rated for the first time the prescribed provisional rating is lsquoProvisional ndash Not Yet Assessedrsquo

Assessing elements and standards

59 Authorised officers assess each element as met or not met If any elements under a standard are not met that standard cannot be rated higher than Working Towards National Quality Standard If all elements are met the standard is rated at either Meeting National Quality Standard or Exceeding National Quality Standard

Assessing quality areas

510 After the authorised officer has assessed each standard the quality area ratings can be calculated If all standards are at least Meeting National Quality Standard the rating given for the relevant quality area will be at least Meeting National Quality Standard If two or more standards in a quality area are rated as Exceeding National Quality Standard a rating of Exceeding National Quality Standard will be given for that quality area If any standards have been rated as Working Towards National Quality Standard the rating for the quality area cannot be higher than Working Towards National Quality Standard

Assessing overall service ratings

511 If any quality area has been rated as Working Towards National Quality Standard the overall service rating cannot be higher than Working Towards National Quality Standard If all quality areas are at least Meeting National Quality Standard and four or more quality areas are rated as Exceeding National Quality Standard with at least two of these being quality areas 1 5 6 or 7 the overall rating will be Exceeding National Quality Standard

H


512 If the requirements for an overall rating of Exceeding National Quality Standard are not met but all quality areas are rated as at least Meeting National Quality Standard the overall service rating will be Meeting National Quality Standard

Assessing Significant Improvement Required

513 A rating of Significant Improvement Required can be applied at standard and quality area level If a rating of Significant Improvement Required is given for any standard or quality area the overall service rating is Significant Improvement Required

The impact of waivers on the assessment and rating process

514 A service granted a waiver can still achieve ratings of Meeting National Quality Standard and Exceeding National Quality Standard For the purposes of an assessment the service is either taken to comply or not required to comply with the requirements of the National Regulations and elements of the National Quality Standard that are covered by the waiver See Section C Applications and Approvals for information about waivers

Compliance issues identified through the assessment and rating process

515 In some cases where an element is not met this may relate to non-compliance with the National Law andor National Regulations

516 The identified compliance issues may be reflected in the assessment and rating report and compliance action may be taken in parallel to the assessment and rating process

517 For further information about compliance see Section E Monitoring Compliance and Enforcement


518 The assessment and rating report provided by the regulatory authority should clearly indicate whether the service has met each element and any non-compliance identified

Significant Improvement Required

Using the Significant Improvement Required rating


519 The Significant Improvement Required rating may be given when the regulatory authority is

H


satisfied that there is an unacceptable risk to the safety health or wellbeing of any child or children being educated and cared for by the service


520 lsquoUnacceptable risk to the safety health or wellbeing of any child or children being educated and cared for by the servicersquo is not defined in the National Law and Regulations although it is used as grounds for a range of compliance actions including cancelling a service approval Section B Good Regulatory Practice includes guidance about assessing risk This can be used by authorised officers to help determine whether an issue identified at a service constitutes an lsquounacceptable riskrsquo

521 An unacceptable risk is more likely to arise when there is non-compliance with the physical environment childrenrsquos health and safety or staffing requirements but it could arise in other parts of the NQS Authorised officers must always make a case-by-case assessment of whether there is an lsquounacceptable riskrsquo to a child or children

522 Authorised officers should seek to complete assessment and rating visits to ensure that sufficient evidence is gathered to allow the service to be rated against every standard This also ensures that all major compliance issues at the service are identified Regulatory authorities are required to give a rating for every quality area even if one quality area is rated as Significant Improvement Required

523 Where an authorised officer identifies an issue that constitutes an unacceptable risk the authorised officer will need to decide whether it is appropriate to continue the visit Referring to Section B Good Regulatory Practice ndash Risk matrix may assist the authorised officer to determine the level of risk and whether it is lsquounacceptablersquo

524 If a risk is identified as lsquocriticalrsquo (a significant or major risk which is likely or almost certain to eventuate) it is likely that the authorised officer will have to stop the quality assessment visit for immediate and appropriate action to be taken If the risk can be satisfactorily addressed the visit may be continued Where the visit is stopped the authorised officer should ensure the decision to stop the visit is documented

525 If the authorised officer is satisfied that there is an unacceptable risk in the way that a service does not meet a standard quality area or relevant regulation they may give the Significant Improvement Required rating for that standard or quality area

526 This will result in the service receiving an overall rating of Significant Improvement Required

Suspending a rating assessment


527 The assessment and rating process can only be suspended if the regulatory authority decides to take one of the following actions

bull suspend or cancel the service approval or provider approval

bull issue a compliance notice to the approved provider in respect of the service

H


bull issue an emergency action notice to the approved provider in respect of the service

bull remove or cause the removal of a child or children from the service (emergency removal)

528 Information about compliance actions is set out in Section E Monitoring Compliance and Enforcement

National Law section 136 137

529 Unless one of the actions listed in section 137 is taken the rating must be determined within 60 days of the completion of the assessment and rating visit to the education and care service premises

530 If one of the actions is taken the regulatory authority must give the approved provider a written notice which states that the provider will be given the outcome of the rating assessment within 60 days after the end of the final period of review for the compliance action or if a review is sought the determination of the review


531 If the service or provider approval is cancelled the regulatory authority cannot give a rating for the service If the service or provider approval is suspended the rating assessment recommences once the suspension expires

Other compliance actions


532 While there are other compliance actions which regulatory authorities might take in response to identifying an issue during an assessment and rating visit only the actions listed under section 137 have the effect of suspending the assessment and rating timeframe In all other cases the regulatory authority must still determine the rating within 60 days of the assessment and rating visit

When a rating of Significant Improvement Required is given


533 Regulatory authorities should reassess services which have been rated as Significant Improvement Required as soon as practicable The reassessment is an opportunity to check the service is meeting minimum requirements to ensure the health safety and wellbeing of children in attendance

Actions that can cause the suspension of the assessment and rating processThe provider approval or the service approval for the service is suspended or cancelled

A compliance notice has been given to the approved provider in respect of the service

A notice has been given under section 179 in respect of the service (emergency action notices)

An action has been taken under section 189 in respect of a child or children being educated and cared for by the service (emergency removal of children)

H


534 If the rating is suspended the regulatory authority must give written notice to the approved provider The notice must state that the service rating will be given under section 136 within 60 days after

bull the end of the final period for review of the decision or action that has resulted in suspension of the rating assessment or

bull if a review has been sought the determination of the review of the decision or action that has resulted in suspension of the rating assessment


535 If a compliance notice is issued the approved provider has 14 days to request a review of the notice If the approved provider does not request a review the 60 days to issue a service rating begins at the end of the 14 day period If the approved provider does request a review of the notice the 60 day period does not begin until the date of the review decision

536 For example the rating visit is day one A compliance notice is issued on the sixth day The provider has 14 days to request a review of the notice If the provider does not request a review the regulatory authority has 60 days from the end of the 14 days to issue the rating The total time taken is 80 days

537 If the compliance notice is issued on day six and the provider requests a review of the notice on day 15 and the regulatory authority makes a decision on review request on day 28 the regulatory authority has 60 days from the date of review decision to issue the rating The total time is 88 days

538 The regulatory authority may need to determine the rating for the service before the period for complying with the compliance notice has expired for example if the regulatory authority gives the provider 90 days to comply with the compliance notice

Making minor adjustments


539 The regulatory authority may consider any information available to them about any steps taken by the education and care service to rectify any matters identified during the rating assessment


540 A service rating should accurately reflect service quality Minor matters that do not seriously impact on a servicersquos quality may not affect the rating if they are able to be rectified quickly and easily There may be some circumstances in which the regulatory authority gives an approved provider the opportunity to make minor adjustments prior to finalising a servicersquos assessment report and overall rating

H


541 The regulatory authority may give an approved provider a short time to make adjustments for certain issues

Circumstances in which minor adjustments may be madeThe safety health or wellbeing of children is not at unacceptable risk

The quality of service provided is minimally impacted

Rectification can take place quickly and easily

There are few minor matters

The service may receive a higher rating against a standard if the issue is rectified Elements that have been assessed as not met are elements where a minor adjustment could result in the element being met

The changes required involve simple concrete solutions that can be implemented within the specified timeframe (eg within days of the assessment and rating visit preferably immediately unless otherwise specified by the regulatory authority)

542 At the time of the assessment or soon after the regulatory authority informs the approved provider of the opportunity to make minor adjustments and provide evidence of those adjustments before the draft assessment and rating report is provided The regulatory authority assesses whether the evidence provided demonstrates that an element assessed as lsquonot metrsquo during the assessment and rating visit is now considered to be lsquometrsquo

543 The approved provider must give the regulatory authority evidence that satisfies the regulatory authority that appropriate corrective action has been taken without the need to make a subsequent assessment and rating visit to the service Examples of evidence could include

bull photographs (eg to demonstrate that a physical hazard has been removed or fixed or to demonstrate that an item of documentation is now being displayed at the service)

bull copies of revised written policies or procedures

bull a record indicating that information has been provided to families attending the service (such as an email)

544 The evidence provided must satisfy the regulatory authority that the issue has been fully rectified Evidence provided after the regulatory authority has finalised the draft report will not be considered

545 An approved provider may choose not to make minor adjustments or not to provide evidence of minor adjustments in which case the regulatory authority will draft the servicersquos assessment report and rating based on the circumstances of the service at the time of the assessment and rating visit

546 The provision of evidence to demonstrate that an issue has been rectified does not guarantee that the service will be assessed as having met the relevant element or standard

The right to review

547 An approved provider cannot request a review of a decision made by the regulatory authority to enact the minor adjustments policy

H

402 Assessment and Rating Assessing inconsistent quality Last updated April 2017

6 Assessing inconsistent quality


61 The term lsquoinconsistent qualityrsquo refers to situations where different levels of service delivery are identified at an assessment and rating visit including in different rooms sessions residences or venues The final rating should take into consideration the impact this inconsistent quality has on the experiences of each child in the service

62 The experiences of children within particular age groups or specific rooms within a service may be significantly different from what has been identified across the service If it is determined that experiences of some children across the service are consistently below the NQS the final rating should reflect this The practices of one educator or team within the service may affect the final rating however it is the overall service that receives the final rating

63 The following table provides guidance about assessing inconsistent quality The table is provided as a guide only

Assessing inconsistent qualityStep Process

1 Conducting the assessment and rating visit

Assessment and rating visits are conducted to determine whether and at what rating level the service meets the NQS and the requirements of the National Law and Regulations To determine the rating level of each standard all relevant evidence must be considered Authorised officers will make observations have discussions with staff and educators and sight documentation

2 Identify inconsistent practice

Where the evidence from an assessment and rating visit indicates that the service does not consistently meet an element or a standard the authorised officer must determine how the inconsistency will affect the servicersquos rating

3 Collect additional information

The authorised officer may need to undertake further observations have discussions with educators or sight documentation to determine whether this inconsistency in the quality of the service could have a significant impact on any child within the service or if there are individual circumstances that have impacted on the quality

4 Consider the influence on the child or children

The experiences of children in a particular age group room family day care residence or venue of a service may be significantly different from those of children in other parts of the service When determining whether findings of inconsistent quality should affect the final rating authorised officers should consider every childrsquos experience in the service

5 Decide the impact on the final rating

Where the experiences of a child or group of children indicate that a part of the service is not meeting the NQS for one or more standards then authorised officers should consider whether the service is operating at the NQS

H

Last updated April 2017 Reassessment and re-rating at request of the approved provider Assessment and Rating 403

7 Reassessment and re-rating at request of the approved provider


71 An approved provider may apply to the regulatory authority to have a service (including any aspect or element of the service) reassessed and re-rated against the NQS

72 While an approved provider may apply to have only an aspect or element of their service reassessed regulatory authorities will generally reassess the entire relevant quality area

Application for reassessment and re-rating

Who can apply for reassessment and re-rating


73 An approved provider may apply to have their service (including any aspect or element of their service) reassessed and re-rated The application can only be made once every two years unless the regulatory authority agrees otherwise

74 A regulatory authority may reassess a service or any aspect or element of a service at any time



75 An application for reassessment and re-rating must be in writing include the prescribed information and include payment of the prescribed fee


Information that must be included in an application for reassessment and re-ratingThe name of the education and care service


The name and contact details of the contact person for the purposes of the application

The nature of the reassessment sought including application for reassessment of the service or application for reassessment of one or more aspects or elements of the service

H

404 Assessment and Rating Reassessment and re-rating at request of the approved provider Last updated April 2017

If the application is for reassessment of an aspect or element of the service the particular aspects or elements and quality areas in the NQS for which reassessment is sought

A statement setting out the reasons why reassessment is sought


76 An approved provider may indicate what part of the assessment and rating report is to be reassessed and re-rated This may be the service or any aspect or element of the service

77 While a provider indicates the element(s) standard(s) and quality area(s) they are requesting reassessment on the regulatory authority may want to emphasise that the scope of the reassessment may go beyond the aspects the provider requests For example regulatory authorities may reassess and re-rate the entire quality area when a provider requests a reassessment of part of that quality area

Timeframe for conducting the reassessment and re-rating


78 Regulatory authorities do not have a specific timeframe in which to reassess and re-rate services

79 Given the reassessment is at the request of the approved provider the regulatory authority may consider how much notice to give the approved provider prior to the visit

710 In a standard assessment process the approved provider has three weeks to supply an updated QIP Given the approved provider has requested the reassessment it is unlikely that they require time to update the QIP

Notifying of date of reassessment


711 Regulatory authorities should inform the applicant as soon as possible of the likely date for the reassessment Regulatory authorities may be able to reassess sooner if circumstances permit Where the application for reassessment is for one quality area it may be possible to reassess earlier within the existing workload

Identifying issues during reassessment

712 During the visit the authorised officer may note an issue which was not the subject of the reassessment request This will require case-by-case consideration but may require the authorised officer to apply the principles of risk assessment to determine the appropriate course of action (see Section B Good Regulatory Practice)

H


713 Where an issue is minor and unlikely to change the servicersquos current rating for that quality area the regulatory authority may decide not to reassess the area but to take some low-level compliance action to address the issue

714 Where an issue is more significant and more likely to affect the rating of the service the regulatory authority may wish to reassess an additional quality area or the entire service As this will be a significant change to the scope of the reassessment regulatory authorities may want to brief the service to ensure they are aware that the scope of reassessment may be changed

715 Regulatory authorities need to decide how they will report on the reassessment For example the initial report may be amended with respect to the new ratings or a new report may be issued with only the reassessed ratings

Factors that influence reassessment and re-rating


716 The assessment and rating system is designed to provide clear and accurate advice for families about the quality of services

717 A service may apply for a reassessment outside the assessment and rating cycle for elements standards or quality areas where they believe the rating does not reflect their practice For example the service may apply for a reassessment and re-rating if it has taken steps to improve the quality of the service

718 In most cases as part of the continuous quality improvement process that is integral to the NQF the quality of services would be expected to improve However the regulatory authority may decide to reassess a service if it is concerned the quality of a service may have declined over time or if other risk factors are present Changes at the service for example may result in the decline of a servicersquos quality and in this case it may be desirable for the regulatory authority to reassess and re-rate the service to ensure the rating level of the service accurately reflects the service quality A regulatory authority may also decide to reassess and re-rate a service if an investigation or other compliance action has taken place

719 To amend a rating level the regulatory authority must undertake an assessment and rating of the service

720 For further information about investigations and compliance see Section E Monitoring Compliance and Enforcement

H

406 Assessment and Rating Review of service rating against the National Quality Standard Last updated April 2017

8 Review of service rating against the National Quality Standard (lsquofirst tier reviewrsquo)

Application for first tier review

What is a first tier review


81 If an approved provider disagrees with the final ratings given to a service operated by the provider the provider may seek a review from the regulatory authority which gave the rating

82 This review of ratings by the regulatory authority is referred to as a first tier review

Who can apply for a first tier review

83 An approved provider may request a review of a rating for a service operated by the provider


84 An approved provider must request a first tier review within 14 calendar days of receiving notice of the servicersquos rating levels from the regulatory authority The request must be made in writing to the regulatory authority which gave the rating The request must set out the grounds on which a review is sought and be accompanied by the required information set out in the National Regulations


Information that must be included in an application for first tier reviewThe name of the education and care service


The name and contact details of the contact person for the purposes of the request

The quality areas to which the grounds for review relate

H

Last updated April 2017 Review of service rating against the National Quality Standard Assessment and Rating 407


85 Regulatory authorities may receive applications for first tier review through the NQA ITS or by hard copy forms downloaded from the ACECQA website at wwwacecqagovau and mailed faxed or emailed to the regulatory authority It is important to note that some jurisdictions only accept online forms via the NQA ITS

86 The National Law and Regulations do not specify particular grounds for first tier review

87 However sometimes approved providers will have concerns that are better handled through for example the regulatory authorityrsquos complaints process or through seeking a reassessment of a servicersquos ratings rather than a review

88 Appropriate grounds for first tier review would include (but are not limited to) a situation where a provider

bull disagrees with a rating based on the evidence described in the final report

bull has additional contextual information about the evidence described in the final report

bull believes the authorised officer(s) did not take into account all of the relevant evidence available at the time

bull believes the service was not given adequate opportunity to demonstrate how it meets an element or standard

89 Less appropriate grounds for first tier review would be matters that did not materially affect the servicersquos rating

810 A first tier review is a review of the initial lsquopoint-in-timersquo assessment of the service against the NQS it is not a reassessment of the service The regulatory authority can take into account new information during a first tier review but any information must relate to the facts at the point in time when the assessment was conducted Any changes made at the service since the ratings assessment which might improve the servicersquos rating levels cannot be taken into account at first tier review

811 If changes have been made at the service since the ratings assessment that might improve the servicersquos rating levels the provider should not apply for a first tier review Instead the provider should consider whether to apply for a reassessment and re-rating under section 139 of the National Law During a reassessment and re-rating the regulatory authority can take into account changes made after the initial ratings assessment These changes cannot be taken into account during a first tier review

Timeframe for conducting first tier review


812 A regulatory authority must conduct a first tier review within 30 days of receiving the request The timeframe may be extended by up to 30 days by agreement between the approved provider and the regulatory authority or if the regulatory authority requests further information

H


Conducting the first tier review


813 The legislation does not prescribe how the first tier review must be conducted The regulatory authority may determine whether an individual officer or a panel will conduct the review and make the decision Alternatively it may determine that an individual officer or a panel conducts the review and makes a recommendation to a delegated officer to make the final decision

814 Any person(s) conducting the review must not have been involved in the assessment or rating of the service for which the review relates Those involved in the assessment and rating of the service include the authorised officer(s) who conducted the assessment and the delegate who determined or approved the final rating

815 The table below sets out the key requirements and skills for person(s) determining first tier review applications

Person(s) determining first tier reviewsShould have access to all of the relevant information (including information submitted by the approved provider in its request for a first tier review and all information used by the regulatory authority to determine the original rating)

Should have relevant knowledge of the NQF NQS and assessment and rating process including administrative processes and requirements

Should have knowledge of the relevant legislation

Should have effective communication and conflict resolution skills

816 The table below sets out the process which regulatory authorities may choose to follow when conducting a first tier review The table is provided as a guide only

First tier review processReceive request for review

Register request for review on National Quality Agenda Information Technology System (NQA ITS)

Acknowledge receipt of application

Identify person(s) within regulatory authority involved in the original assessment andor rating of the education and care service to which the application relates to ensure they are not involved in the first tier review

Assign request for review to an individual officer or a panel

Validate and review application this process involves ensuring that the application form is complete and all supporting documentation referenced in the application has been included

H


Seek further information if required for example

bull further information from the approved provider to support grounds for requesting review excluding information that was not available to the original decision maker at the time of the ratings assessment

bull notes evidence or any other information (eg assessment and rating instrument) considered in original determination of rating

bull comment from those involved in the assessment and rating of the service on the grounds of the request for review of rating

bull any other relevant information from individual persons as required

bull if the review is sought on grounds relating to the process of assessment or the conduct of the authorised officer the person conducting the review may determine the need for and request an additional assessment visit by another authorised officer (section 138)

Assess application

bull the review entails determining what the correct rating levels should be for the service based on the evidence before the person conducting the review In some situations regulatory authorities may decide to seek legal advice about a first tier review

Individual officer or panel recommends the rating levels andor the overall rating be confirmed or amended

Individual officer or panel prepares a statement of reason(s)

bull the individual or panel will record their recommendation for each relevant element standard or quality area including the information taken into account when making the recommendation

Regulatory authority staff member delegated first tier review decision making powers confirms or amends the rating levels for the service

Notify relevant regulatory authority staff including original decision maker of the grounds for review and outcome of the review

Notify approved provider of the outcome of the review for each rating level including reasons for the decision The decision notification should also include information about further review rights

Update the NQA ITS with the outcome of the first tier review application

Determine if the first tier review has improvement opportunities for the regulatory authority in relation to the assessment and rating process

A first tier review must be conducted within 30 days after the application for review was received unless extended under section 142(4) of the National Law

Determining a first tier review


817 Following the review the regulatory authority may confirm or amend the rating levels under review and must give the approved provider notice in writing of the outcome of the review (including any revised rating levels) and the reasons for the decision made within 30 days This template may assist regulatory authorities during the first tier review process

H



818 A first tier review decision notice should contain a sufficient level of detail for the approved provider to ascertain the regulatory authorityrsquos reason(s) to amend or confirm the relevant element(s) standard(s) or quality area(s) This supports procedural fairness may reduce the likelihood of an application for second tier review and where an application for second tier review is subsequently made allows the ratings review panel to effectively consider the regulatory authorityrsquos first tier review process

819 The decision notice should specify the evidence the regulatory authority considered in relation to the relevant element standard or quality area its analysis of this evidence and its conclusion based on this analysis

820 Any information used in determining a first tier review will need to be provided to the ratings review panel if an application for second tier review is made Any information provided to the ratings review panel by the regulatory authority will also be made available to the approved provider

Appeals


821 A decision to confirm or amend the rating levels of an approved education and care service may be reviewed by a ratings review panel in a second tier review

After the first tier review has been determined


822 ACECQA will publish the rating levels determined by the regulatory authority at first tier review 14 days after the first tier review decision unless an application for second tier review is made If an application for second tier review is made ACECQA will publish the rating levels determined by the ratings review panel at second tier review

H

Last updated April 2017 Further review by ratings review panel Assessment and Rating 411

9 Further review by ratings review panel (lsquosecond tier reviewrsquo)

Application for second tier review

What is a second tier review



91 State and territory regulatory authorities carry out the initial assessment and rating If the approved provider disagrees with the ratings they may apply to the regulatory authority for a review (lsquofirst tier reviewrsquo)

92 If the approved provider is still not satisfied after the first tier review they may apply to ACECQA for a further review (a lsquosecond tier reviewrsquo) by a ratings review panel

Who can apply for a second tier review


93 An approved provider may apply to ACECQA for a further review of a rating determined for a service

94 An approved provider may only apply for a second tier review if the regulatory authority has conducted a first tier review

95 An approved provider can only apply for a second tier review on the grounds that the regulatory authority

bull failed to take into account or give sufficient weight to special circumstances existing or facts existing at the time of the rating assessment or

bull did not appropriately apply the prescribed processes for determining a rating level




H

412 Assessment and Rating Further review by ratings review panel Last updated April 2017

96 The approved provider may apply to ACECQA within 14 days after the approved provider receives the notice of the outcome of the first tier review The request must set out the grounds on which a review is sought and be accompanied by the required information set out in the National Regulations

Information that must be included in an application for second tier reviewThe name of the education and care service



A statement setting out the grounds on which the provider seeks review of the decision of the regulatory authority and the quality areas to which the grounds for review relate


97 An application must not include information or evidence that was not given to the regulatory authority as part of an initial assessment and rating reassessment and re-rating or first tier review


98 If a service has made changes since its ratings assessment that it believes will improve the servicersquos ratings levels it should not apply for a review of ratings Instead it should consider whether to apply for a reassessment and re-rating Changes to a service cannot be taken into account during first and second tier reviews

99 The Application Form for Second Tier Review (available on the ACECQA website) sets out the information applicants must provide to ACECQA

Timeframe for conducting a second tier review

910 An application for second tier review must be made within 14 days after the decision of the regulatory authorityrsquos first tier review is received by the approved provider

911 ACECQA must give written notice to the regulatory authority of an application for review within seven days after receipt of an application

912 The ratings review panel must make a decision within 60 days to confirm or amend the rating levels under review The panel must give the approved provider notice in writing of its decision and the reason for the decision within 14 days


913 The chairperson of the panel may extend the period for decision making if the chairperson considers there are special circumstances that warrant that extension or by agreement between the chairperson and the approved provider

H


Conducting the second tier review



914 ACECQA must invite the regulatory authority to make submissions to the review

915 ACECQA must establish a ratings review panel to conduct the review

916 Ratings review panels are responsible for confirming or amending the rating levels given to education and care services by regulatory authorities ACECQA will establish a ratings review panel for each review Members for the ratings review panel are drawn from the ratings review panel pool

917 Persons approved as members of the panel must have expertise or expert knowledge in

bull early learning and development research or practice

bull law

bull a prescribed area such as the assessment of quality in education and care services or other relevant services

bull best practice regulation


918 The National Law sets out what the ratings review panel may consider when conducting the review

What a ratings review panel may consider when conducting a second tier reviewDocuments information plans photographs video or other evidence available to the regulatory authority in carrying out the rating assessment

The approved providerrsquos and servicersquos history of compliance with the National Law

Any submissions made by the approved provider as part of the first tier review

The outcome of the first tier review

Any submissions made by the approved provider as part of the second tier review

Any submissions made by the regulatory authority as part of the second tier review

919 The ratings review panel is not required to hold an oral hearing for a review The ratings review panel may request written information from the regulatory authority or approved provider

920 If the regulatory authority provides any documents information or evidence to the ratings review panel ACECQA will provide the approved provider with a copy and give the provider an opportunity to respond in writing as required under the National Law

H


Determining the second tier review

921 In most cases ratings review panels will conduct reviews via teleconference or other electronic means

922 Panel members must act in all proceedings with fairness equity and impartiality They are required to adhere to the National Law and processes determined by ACECQA Panels will be supported by a secretariat provided by ACECQA

923 The ratings review panel will review all available evidence before confirming or amending the servicersquos ratings levels Minutes of the deliberations of the review will be kept and the panel will set out its decisions on the review

924 The ratings review panel must make a decision within 60 days after the application for review was made This period may be extended if the chairperson of the panel considers special circumstances warrant the extension or if the approved provider agrees

Appeals


925 Rating levels determined by a ratings review panel will be the rating levels for the service The National Law does not provide a right of appeal against a decision of a panel If an approved provider is dissatisfied with the rating levels determined by a panel it may wish to seek legal advice

926 If an approved provider believes they have been unfairly treated by ACECQA they may complain to the Education and Care Services Ombudsman

After the second tier review has been determined

927 The ratings review panel may decide to confirm the rating levels determined by the regulatory authority at first tier review or amend the rating levels

928 The rating level confirmed or amended by the panel will be the rating level for the service

929 The panel must provide written notice of its decision setting out the panelrsquos findings on each review ground ACECQA will send the decision notice to the approved provider and regulatory authority on behalf of the panel within 14 days of the decision being made

930 ACECQA will publish the rating levels determined by a ratings review panel ACECQA also publishes de-identified summaries of second tier review decisions on its website

H


H

416 Assessment and Rating Last updated April 2017

Last updated April 2017 Glossary 417

IGlossary


418 Glossary Last updated April 2017

I

Actively working towards ndash defined in the National Regulations An educator is actively working towards a qualification if the educator meets the requirements set out in the table below

Actively working towardsIs enrolled in the course for the qualification and

Provides the approved provider with documentary evidence from the provider of the course that

bull the educator has commenced the course

bull is making satisfactory progress towards completion of the course

bull is meeting the requirements for maintaining the enrolment and

bull in the case of an approved diploma level education and care qualification the educator

mdash holds an approved certificate III level education and care qualification or

mdash has completed the units of study in an approved certificate lll level education and care qualification determined by ACECQA


In examining whether an educator is making satisfactory progress towards completing the course regulatory authorities should look at whether the educator is enrolled in a unit or competency for the course and may consider whether the educator is progressing their studies at a pace that will enable them to complete the course in the timeframe permitted by the educational institution delivering the course

See Operational requirements ndash actively working towards an approved qualification for more information on meeting this requirement

Agency ndash defined in the Early Years Learning Framework Being able to make choices and decisions to influence events and to have an impact on onersquos world

Approved anaphylaxis management training ndash defined in the National Regulations Anaphylaxis management training approved by ACECQA and published on the list of approved first aid qualifications and training available on the ACECQA website at wwwacecqagovau

Approved education and care service ndash defined in the National Law An education and care service for which a service approval exists

Approved emergency asthma management training ndash defined in the National Regulations Emergency asthma management training approved by ACECQA and published on the list of approved first aid qualifications and training available on the ACECQA website at wwwacecqagovau

Approved family day care service ndash defined in the National Law An approved education and care service that is a family day care service

Approved family day care venue ndash defined in the National Law A place other than a residence where an approved family day care service is provided


I

Approved first aid qualification ndash defined in the National Regulations A qualification that includes training in the matters set out in the table below and is appropriate to children

First aid qualification ndash subject matterEmergency life support and cardio-pulmonary resuscitation

Convulsions

Poisoning

Respiratory difficulties

Management of severe bleeding

Injury and basic wound care

Administration of an auto-immune adrenalin device

Has been approved by ACECQA and published on the list of approved first aid qualifications and training on the ACECQA website at wwwacecqagovau

Approved number of places ndash defined in the National Regulations In relation to a centre-based service this means the maximum number of children that can be educated and cared for by the service at any one time stated on the service approval under section 52(g) of the National Law

Approved provider ndash defined in the National Law A person who holds a provider approval

Associated childrenrsquos service ndash defined in the National Law A childrenrsquos service that is operated or intended to be operated by an approved provider at the same place as an approved education and care service

Authorised nominee ndash defined in the National Law A person who has been given permission by a parent or family member of the child to collect the child from the education and care service or family day care educator

Authorised officer ndash defined in the National Law A person authorised to be an authorised officer under part 9


Authorised officers are appointed by the regulatory authority under the provisions of the National Law to carry out the functions of monitoring assessing and rating licensed approved education and care services in their jurisdiction

Bankruptcy declaration ndash defined in the National Regulations A declaration made by an individual about any proceeding in bankruptcy brought against the individual including

bull whether any actions have been taken against the individual under Part IV of the Bankruptcy Act 1966 of the Commonwealth

bull whether the individual has made any debt agreement under Part IX of the Bankruptcy Act 1966 of the Commonwealth and

bull whether the individual has made any personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth


I

Building permit ndash defined in the National Regulations A permit or consent to carry out building work issued under a building law or planning and development law in the participating jurisdiction

Building practitioner ndash defined in the National Regulations A person who is

bull registered as a building surveyor building inspector or draftsperson under a law of a participating jurisdiction

bull registered as an architect under a law of a participating jurisdiction

bull licensed as a surveyor under a law of a participating jurisdiction

bull licensed or registered as a building certifier under a law of a participating jurisdiction or

bull accredited under a law of a participating jurisdiction to design buildings that will be used to provide education and care services

Centre-based service ndash defined in the National Regulations A centre-based education and care service other than a family day care service

Certified supervisor ndash defined in the National Law A person who holds a supervisor certificate

Child health record ndash not defined in the National Law or Regulations It may be taken to mean a childrsquos lsquoblue bookrsquo or equivalent (such as a personal health record issued to newborns in NSW) and may consider dental information and any other health records which may be relevant to the childrsquos health needs at the service

Child over preschool age ndash defined in the National Regulations A child who

bull is enrolled or registered at a school and

bull attends or in a current calendar year will attend school in the year before grade one or grade one or a higher grade

Child preschool age or under ndash defined in the National Regulations A child under the age of seven years who is not a child over preschool age

Childrenrsquos services law ndash defined in the National Law

Jurisdiction Childrenrsquos services law

Australian Capital Territory Children and Young People Act 2008

New South Wales Children and Young Persons (Care and Protection) Act 1998

Northern Territory Care and Protection of Children Act

Queensland Child Care Act 2002

South Australia Education and Care Services National Law (South Australia) and Childrenrsquos Protection Act 1993

Tasmania Child Care Act 2001

Victoria Childrenrsquos Services Act 1996

Western Australia Education and Care Services National Law (Western Australia) Child Care Services Act 2007


I

Condition ndash not defined in the National Law or Regulations A legally enforceable constraint or limitation on an approval over and above those already found in the legislation

Criminal history record check ndash defined in the National Regulations A full disclosure Australia-wide criminal history record check issued by a police force or other authority of a state or territory or the Commonwealth

Criminal history statement ndash defined in the National Regulations A statement made by an individual that

bull states whether the individual has been convicted in Australia of any offences relevant to a person seeking to work with children and

bull includes details of those convictions

Declared approved family day care service ndash defined in the National Law (transitional provisions) Paraphrased it means a family day care service that automatically transitioned to regulation under the National Law on 1 January 2012 (1 August 2012 in WA)


Regulatory authorities should refer to the definition of lsquodeclared approved family day care servicersquo in the commencement provisions at the front of their state or territoryrsquos version of the National Law

Declared approved family day care venue ndash defined in the National Law (transitional provisions) Paraphrased it means a family day care venue that automatically transitioned to regulation under the National Law on 1 January 2012 (1 August 2012 in WA)


Regulatory authorities should refer to the definition of lsquodeclared approved family day care venuersquo in the commencement provisions at the front of their state or territoryrsquos version of the National Law

Declared approved provider ndash defined in the National Law (transitional provisions) Paraphrased it means an approved provider who automatically transitioned to regulation under the National Law on 1 January 2012 (1 August 2012 in WA)


Regulatory authorities should refer to the definition of lsquodeclared approved providerrsquo in the commencement provisions at the front of their state or territoryrsquos version of the National Law

Declared approved service ndash defined in the National Law (transitional provisions) Paraphrased it means an education and care service that automatically transitioned to regulation under the National Law on 1 January 2012 (1 August 2012 in WA)


Regulatory authorities should refer to the definition of lsquodeclared approved servicersquo in the commencement provisions at the front of their state or territoryrsquos copy of the National Law

Declared certified supervisor ndash defined in the National Law (transitional provisions) Paraphrased it means a person who is automatically recognised as a certified supervisor under the National Law from 1 January 2012 (1 August 2012 in WA)


I


Regulatory authorities should refer to the definition of lsquodeclared certified supervisorrsquo in the commencement provisions at the front of their state or territoryrsquos version of the National Law

Declared compliance notice ndash defined in the National Law (transitional provisions) Paraphrased it means a compliance notice that automatically transitioned to apply under the National Law from 1 January 2012 (1 August 2012 in WA)


Regulatory authorities should refer to the definition of lsquodeclared compliance noticersquo in the commencement provisions at the front of their state or territoryrsquos version of the National Law

Declared enforceable undertaking ndash defined in the National Law (transitional provisions) Paraphrased it means an undertaking that automatically transitioned to apply under the National Law from 1 January 2012 (1 August 2012 in WA)


Regulatory authorities should refer to the definition of lsquodeclared enforceable undertakingrsquo in the commencement provisions at the front of their state or territoryrsquos version of the National Law

Declared nominated supervisor ndash defined in the National Law (transitional provisions) Paraphrased it means a person who is automatically recognised as a nominated supervisor under the National Law from 1 January 2012 (1 August 2012 in WA)


Regulatory authorities should refer to the definition of lsquodeclared nominated supervisorrsquo in the commencement provisions at the front of their state or territoryrsquos version of the National Law

Declared out of scope service ndash defined in the National Law (transitional provisions) An education and care service

bull for which a former approval was not required under a former education and care services law and

bull that is declared by a law of that jurisdiction to be a declared out of scope service for the purposes of the National Law


Declared out of scope services are those services that were not regulated before 1 January 2012 (1 August 2012 in WA) but are within scope of the National Quality Framework Regulatory authorities should refer to the definition of lsquodeclared out of scope servicersquo in the commencement provisions at the front of their state or territoryrsquos version of the National Law


I

Disciplinary proceedings statement ndash defined in the National Regulations A statement made by an individual that states

bull whether the individual is or has been subject to a formal disciplinary proceeding or action under an education law of a participating jurisdiction (other than a proceeding that was unsuccessful or was withdrawn) and

bull the outcome of the proceeding or action (if known)

Early childhood teacher ndash defined in the National Regulations A person with an approved early childhood teaching qualification


The National Law also refers to lsquoqualified early childhood teacherrsquo which should be taken to refer to an early childhood teacher as defined above

Educational leader ndash set out in the National Regulations The educational leader is a suitably qualified and experienced educator coordinator or other individual designated by the approved provider under regulation 118 to lead the development and implementation of educational programs in the service

Educational program ndash defined in the National Law and Regulations A program that


bull is delivered in a manner that accords with the approved learning framework



Education and care service ndash defined in the National Law Any service providing or intended to provide education and care on a regular basis to children under 13 years of age See section 5 of the National Law for services that are excluded from this definition


Under the National Law a reference in to lsquoeducation and carersquo includes a reference to education or care (section 5(3))

Education and care service premises ndash defined in the National Law In relation to a centre-based service means each place at which an education and care service operates or is to operate

In relation to a family day care service means

bull an office of the family day care service

bull an approved family day care venue or

bull each part of a residence used to provide education and care to children as part of a family day care service or used to provide access to the part of the residence used to provide that education and care


I


The definition of lsquoeducation and care service premisesrsquo of a family day care service is broad so as to encompass a range of scenarios The definition can apply to the office of the service the venue or the educatorrsquos residence In cases where the Regulations or Law does not specify which part of the definition applies regulatory authorities should consider the objectives of the National Law in deciding how to apply the definition

Education law ndash defined in the National Law

Jurisdiction Education law

Australian Capital Territory Education Act 2004

New South Wales Education Act 1990

Institute of Teachers Act 2004

Teaching Service Act 1980

Northern Territory Education Act

Teacher Registration (Northern Territory) Act

Queensland Education (Accreditation of Non-State Schools) Act 2001

Education (General Provisions) Act 2006

Education (Overseas Students) Act 1996

Education (Queensland College of Teachers) Act 2005

Higher Education (General Provisions) Act 2008

South Australia Education Act 1972

Tasmania Education Act 1994

Teacherrsquos Registration Act 2000

Victoria Education and Training Reform Act 2006

Western Australia School Education Act 1999

Western Australian College of Teaching Act 2004

Educator ndash defined in the National Law An individual who provides education and care for children as part of an education and care service

Eligible association ndash defined in the National Law A parents and citizens association formed under Chapter 7 of the Education (General Provisions) Act 2006 of Queensland A lsquoprescribed entityrsquo means the Catholic Education Commission of Western Australia

Emergency ndash defined in the National Regulations In relation to an education and care service includes any situation or event that poses an imminent or severe risk to the persons at the education and care service premises

Excellent rating ndash set out in the National Regulations The highest overall rating level under the National Quality Standard assessment and rating process


I

Excursion ndash defined in the National Regulations An outing organised by an education and care service or family day care educator but does not include an outing organised by a service on a school site if the children leave the premises in the company of an educator and do not leave the school site

Executor ndash not defined in the National Law or Regulations An executor is the person selected by a deceased person to manage the deceased estate within the terms of the will and to protect the assets of the estate They are usually named in the will ndash if no will exists they are usually the deceased personrsquos next of kin

Family day care educator assistant ndash defined in the National Regulations A person engaged by or registered with a family day care service to assist family day care educators

Family day care residence ndash defined in the National Law A residence at which a family day care educator educates and cares for children as part of a family day care service

Family member ndash defined in the National Law Family member in relation to a child means

bull a parent grandparent brother sister uncle aunt or cousin of the child whether of the whole blood or half-blood and whether that relationship arises by marriage (including a de facto relationship) or by adoption or otherwise

bull a relative of the child according to Aboriginal or Torres Strait Islander tradition

bull a person with whom the child reside in a family-like relationship or

bull a person who is recognised in the childrsquos community as having a familial role in respect of the child

Financial declaration ndash defined in the National Regulations A declaration made by a person who is not an individual indicating whether the person is or has been declared insolvent or is or has been placed under external administration

First tier review ndash refers to the first level of review of a service by the regulatory authority as set out in the National Law

Former approval ndash defined in the National Law (transitional provisions) Paraphrased it means an approval licence or other authorisation issued under a former education and care services law


Regulatory authorities should refer to the definition of lsquoformer approvalrsquo in the commencement provisions at the front of their state or territoryrsquos copy of the National Law

Former education and care services law ndash defined in the National Law Paraphrased it means the state or territory law that applied to education and care services (now covered by the National Law) before 1 January 2012 (1 August 2012 in WA)


Regulatory authorities should refer to the definition of lsquoformer education and care services lawrsquo in the commencement provisions at the front of their state or territoryrsquos copy of the National Law

Guardian ndash defined in the National Law Guardian in relation to a child means the legal guardian of the child


I

In attendance at a centre-based service ndash defined in the National Regulations An early childhood teacher is in attendance at a centre-based service if the teacher satisfies the requirements set out below

lsquoIn attendancersquo at a centre-based service

The ECT is physically present at the service and

Carries out education and care activities at the service including one or more of the following

bull working directly with children

bull planning programs

bull mentoring coaching or supporting educators

bull facilitating education and care research or

bull performing the role of educational leader of the service

Infectious disease ndash defined in the National Regulations Any disease designated under a law of the relevant jurisdiction or by a health authority as a disease that would require a person with the disease to be excluded from an education and care service

Infringements law ndash defined in the National Law

Jurisdiction Infringements law

Australian Capital Territory Magistrates Court Act 1930 part 38

New South Wales Fines Act 1996

Northern Territory Education (Infringement Notice) Regulations

Queensland State Penalties Enforcement Act 1999

South Australia Expiation of Offences Act 1996

Tasmania Monetary Penalties Enforcement Act 2005

Victoria Infringements Act 2006

Western Australia Criminal Procedure Act 2004 Part 2

Intentional teaching ndash defined in the Early Years Learning Framework Involves educators being deliberate purposeful and thoughtful in their decisions and actions Intentional teaching is the opposite of teaching by rote or continuing with traditions simply because things have lsquoalways been done that wayrsquo

Long day care service ndash not defined in the National Law or Regulations Described in the National Partnership Agreement on the National Quality Agenda for Early Childhood Education and Care as a centre-based form of service which provides all-day or part-time care for children aged birth to six on a regular basis

Medical condition ndash not defined in the National Law or Regulations May be described as a condition that has been diagnosed by a registered medical practitioner


I

Medication ndash defined in the National Regulations Means medicine within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth

bull therapeutic goods that are represented to achieve or are likely to achieve their principal intended action by pharmacological chemical immunological or metabolic means in or on the body of a human or animal and

bull any other therapeutic goods declared by the Secretary of the Therapeutic Goods Administration for the purpose of the definition of therapeutic device not to be therapeutic devices


Medicine includes prescription over-the-counter and complementary medicines All therapeutic goods in Australia are listed on the Australian Register of Therapeutic Goods available on the Therapeutic Goods Administration website (wwwtgagovau)

National Quality Agenda IT System ndash a web-based information system to assist state and territory regulatory authorities and ACECQA to manage the approval monitoring and quality assessment of childrenrsquos education and care services The system also enables services providers and educators to submit application and notification forms online to regulatory authorities and ACECQA

Nominated supervisor ndash defined in the National Law In relation to an education and care service means a person

bull who is a certified supervisor

bull who is nominated by the approved provider of the service under Part 3 [of the National Law] to be the nominated supervisor of that service and

bull who has consented to that nomination


A person may be both the nominated supervisor of a family day care service and the family day care coordinator for that service if they meet the criteria for each role

Occupancy permit ndash defined in the National Regulations A certificate or permit issued under a building law or planning and development law of a participating jurisdiction that permits a building to be occupied

Outside school hours care service ndash not defined in the National Law or Regulations Described in the National Partnership Agreement on the National Quality Agenda for Early Childhood Education and Care as a service that provides care for primary school aged children (typically 5 to 12 years) before and after school and can also operate during school holidays (vacation care) and on pupil free days Outside school hours care services are usually provided from primary school premises Services may also be located in child care centres or community facilities Outside school hours care services are often provided by parent associations or non-for-profit organisations

Overseas criminal history statement ndash defined in the National Regulations A statement made by an individual that

bull states whether the individual has been convicted outside Australia of any offences relevant to a person seeking to work with children and

bull Includes details of those convictions


I

[Prescribed] insurance ndash see sections 29ndash30 of the National Law

Parent ndash defined in the National Law Parent in relation to a child includes

bull a guardian of a child and

bull a person who has parental responsibility for the child under a decision or order of a court

Parenting order ndash defined in the National Regulations A parenting order within the meaning of section 64B(1) of the Family Law Act 1975 (Commonwealth)

Parenting plan ndash defined in the National Regulations A parenting plan within the meaning of section 63C(1) of the Family Law Act 1975 (Commonwealth) and includes a registered parenting plan within the meaning of section 63C(6) of that Act

Person ndash defined in the National Law Refers to an individual or entity as set out below

lsquoPersonrsquo

An individual A partnership

A body corporate Body politic

An eligible association A prescribed entity

Person with management and control ndash defined in the National Law In relation to an education and care service means

bull if the provider or intended provider of the service is a body corporate an officer of the body corporate within the meaning of the Corporations Act 2001 of the Commonwealth who is responsible for managing the delivery of the education and care service

bull if the provider of the service is an eligible association each member of the executive committee of the association who has the responsibility alone or with others for managing the delivery of the education and care service

bull if the provider of the service is a partnership each partner who has the responsibility alone or with others for managing the delivery of the education and care service or

bull in any other case a person who has responsibility alone or with others for managing the delivery of the education and care service

Planning permit ndash defined in the National Regulations A legal document that gives permission in principal for a certain use or development on a specific parcel of land

Play-based learning ndash defined in the Early Years Learning Framework A context for learning through which children organise and make sense of their social worlds as they engage actively with people objects and representations

Preschool ndash not defined in the National Law or Regulations Described in the National Partnership Agreement on the National Quality Agenda for Early Childhood Education and Care as a service that provides an early childhood education program delivered by a qualified teacher often but not necessarily on a sessional basis in a dedicated service Alternative terms used for preschool in some jurisdictions include kindergarten pre-preparatory and reception


I

Preschool program ndash defined in the National Law An early childhood educational program that is delivered by a qualified early childhood teacher to children in the year that is two years before grade one of school


The National Law does not define what it means to lsquodeliverrsquo an educational program to preschool aged children However an early childhood teacher can be considered to be delivering a preschool program if they provide an educational program (as defined above) to preschool aged children at the service either by

bull being physically present at the service and directly engaged in providing the program to children or

bull providing the program to children through information communication technology such as video conferencing

This interpretation is consistent with the meaning of lsquoworking directly with childrenrsquo and recognises that in some cases an early childhood teacher may work with preschool aged children at a service using information communication technology

NOTE The meaning of lsquodelivering a preschool programrsquo is different from lsquoin attendance atrsquo (defined above) which does not require the early childhood teacher to provide an educational program be directly engaged with children or to carry out activities in relation to preschool aged children at the service

Previous service statement ndash defined in the National Regulations A statement made by an individual that states

bull whether or not the individual has held any role within an education and care service or a childrenrsquos service in the previous three years and

bull includes the following details for each role

ndash the name of the service

ndash the state or territory in which the service was located and

ndash the nature of the role

Protected disclosure ndash defined in the National Law A disclosure of information or provision of documents to the regulatory authority

bull pursuant to a request under this Law or

bull where the person making the disclosure has a reasonable belief that

ndash an offence against this Law has been or is being committed or

ndash the safety health or wellbeing of a child or children being educated and cared for by an education and care service is at risk


I

Provider approval ndash defined in the National Law A provider approval

bull granted under Part 2 of this Law or this Law as applying in another participating jurisdiction and

bull as amended under this Law or this Law as applying in another participating jurisdiction

Public sector law ndash defined in the National Law

Jurisdiction Public sector law

Australian Capital Territory Public Sector Management Act 1994

New South Wales Public Sector Employment and Management Act 2002

Northern Territory Public Sector Employment and Management Act

Queensland Public Service Act 2008

South Australia Public Sector Act 2009

Public Sector (Honesty and Accountability) Act 1995

Tasmania State Service Act 2000

Victoria Public Administration Act 2004

Western Australia Public Sector Management Act 1994

Quality Improvement Plan (QIP) ndash not defined in the National Law or Regulations A document created by approved providers to help services self-assess their performance in delivering quality education and care and to plan future improvements Regulatory authorities consider the servicersquos QIP as part of the quality assessment and rating process

Registered medical practitioner ndash defined in the National Regulations A person registered under the Health Practitioner National Law to practise in the medical profession (other than as a student)

Regular outing ndash defined in the National Regulations In relation to an education and care service means a walk drive or trip to and from a destination

bull that the service visits regularly as part of its educational program and

bull where the circumstances relevant to the risk assessment are the same on each outing


I

Relevant tribunal or court ndash defined in the National Law

Jurisdiction Tribunal or court for enforcement

Tribunal or court for reviews


Magistrates Court ACT Civil and Administrative Tribunal (ACAT)

New South Wales District Court Administrative Decisions Tribunal

Northern Territory Local Court Local Court

Queensland Magistrates Court Queensland Civil and Administrative Tribunal (QCAT)

South Australia Magistrates Court District Court

Tasmania Magistrates Court Magistrate Court (Administrative Appeals Division)

Victoria Magistrates Court Victorian Civil and Administrative Tribunal (VCAT)

Western Australia State Administrative Tribunal

State Administrative Tribunal

Renovate ndash defined in the National Regulations In relation to premises means

bull construction demolition removal or relocation of a building or other fixed structure (or part of a building or other fixed structure) or

bull carrying out structural alterations on a building or other fixed structure

Residence ndash defined in the National Law The habitable areas of a dwelling

Responsible person ndash defined in the National Regulations The responsible person is an individual who is physically present and is responsible for the operation of the centre based service for an agreed period of time A responsible person must be present at all times that an approved service operates and can be

bull the approved provider (or person in management or control)


bull a certified supervisor who has consented to being placed in day-to-day charge

Scaffold ndash defined in the Early Years Learning Framework The educatorsrsquo decisions and actions that build on childrenrsquos existing knowledge and skills to enhance their learning

Second tier review ndash not defined in National Law or the regulations but refers to ratings review by a panel set up by ACECQA following a first tier review


I

Serious incident ndash defined in the National Regulations for the purposes of section 174(5) of the National Law as set out below

Serious incidents

The death of a child

bull while being educated and cared for by an education and care service or

bull following an incident while being educated and cared for by an education and care service

Any incident involving serious injury or trauma to or illness of a child while being educated and cared for by an education and care service

bull which a reasonable person would consider required urgent medical attention from a registered medical practitioner or

bull for which the child attended or ought reasonably to have attended a hospital

Any incident where the attendance of emergency services at the education and care service premises was sought or ought reasonably to have been sought

Any circumstance where a child being educated and cared for by an education and care service

bull appears to be missing or cannot be accounted for

bull appears to have been taken or removed from the education and care service premises in a manner that contravenes these Regulations or

bull is mistakenly locked in or locked out of the education and care service premises or any part of the premises

Service approval ndash defined in the National Law A service approval

bull granted under Part 3 of the National Law or the National Law as applying in another participating jurisdiction and

bull as amended under the National Law or the National Law as applying in another participating jurisdiction but

bull does not include a service approval that has been cancelled

Service waiver ndash not defined in the National Law or Regulations An exemption from a requirement that an approved education and care service comply with a prescribed element(s) of the National Quality Standard or regulation(s) of the National Regulations While a service waiver is in force the approved service is taken to comply with the element(s) or regulation(s) specified in the waiver

Soil assessment ndash defined in the National Regulations An analysis of soil conducted by an environmental consultant environmental consulting firm or environmental auditor for the purposes of determining

bull the nature extent and levels of contamination and

bull the actual or potential risk to human health resulting from that contamination


I

Suitably qualified person ndash defined in the National Regulations A person who has

bull a qualification for the education and care of children generally or children of a specified age that is approved by ACECQA and included in the list of approved qualifications for suitably qualified persons published under regulation 137 or

bull a qualification approved by ACECQA as a higher qualification for suitably qualified persons and included in the list of approved qualifications for suitably qualified persons published under regulation 137

Supervisor certificate ndash defined in the National Law A supervisor certificate

bull issued under Part 4 of the National Law or the National Law as applying in another participating jurisdiction and

bull as amended under the National Law or the National Law as applying in another participating jurisdiction but not including a supervisor certificate that has been cancelled

Temporary waiver ndash not defined in the National Law or Regulations An exemption from a requirement that an approved education and care service comply with a prescribed element(s) of the National Quality Standard or regulation of the National Regulations While a temporary waiver is in force the approved service is not required to comply with the element(s) or regulation(s) specified in the waiver

Unauthorised person ndash defined in the National Law for the purposes of section 170 An unauthorised person means a person who does not belong to one of the below groups

People who are not lsquounauthorised personsrsquo

A person who holds a current working with children check or working with children card

A parent or family member of a child who is being educated and cared for by the education and care service or the family day care educator

An authorised nominee of a parent or family member of a child who is being educated and cared for by the education and care service or the family day care educator

In the case of an emergency medical personnel or emergency service personnel

A person who is permitted under the working with children law of a jurisdiction to remain at the education and care service premises without holding a working with children check

A working with children card

Working directly with children ndash defined in the National Regulations A person is working directly with children at a given time if at that time the person

bull is physically present with the children and

bull is directly engaged in providing education and care to the children

Working with children check ndash defined in the National Law A notice certificate or other document granted to or with respect to a person under a working with children law to the effect that

bull the person has been assessed as suitable to work with children

bull there has been no information that if the person worked with children the person would pose a risk to the children or

bull the person is not prohibited from attempting to obtain undertake or remain in child-related employment


I

Working with children law ndash defined in the National Law

Jurisdiction Working with children law

Australian Capital Territory Working with Vulnerable People (Background Checking) Act 2011

New South Wales Commission for Children and Young People Act 1998

Northern Territory Care and Protection of Children Act Part 31

Queensland Commission for Children and Young People and Child Guardian Act 2000

South Australia Childrenrsquos Protection Act 1993

Tasmania NA

Victoria Working with Children Act 2005

Western Australia Working with Children (Criminal Record Checking) Act 2004

Working with vulnerable people check ndash defined in the National Regulations A check of a person under a working with vulnerable people law of a participating jurisdiction

Working with vulnerable people law ndash defined in the National Law

Jurisdiction Working with vulnerable people law


New South Wales NA

Northern Territory NA

Queensland NA

South Australia NA

Tasmania NA

Victoria NA

Western Australia NA


I


I

J

Last updated April 2017 Family Day Care Protocol 437

Appendix One Family Day Care Protocol


Contents

1 Family Day Care Protocol 438

Purpose 438

Scope 438

Definitions 439

Agreed principles 440

Estabishment of a lead authority 441

Estabishment of host authority 441

Responsibilities of the lead and host authority 442

Knowledge sharing 445

Dispute resolution 446

Review and amendments to the protocol 447

Appendix A Complaint about educator 448

J

438 Family Day Care Protocol Last updated April 2017

1 Protocol for regulation of Family Day Care services operating across jurisdictions

This Protocol is made in accordance with s227(2)(b) of the Education and Care Services National Law (National Law) and developed by participating jurisdictions and the Australian Childrenrsquos Education and Care Quality Authority (ACECQA)

a) The primary purpose of this Protocol is to facilitate communication and sharing of information about family day care (FDC) services and approved providers that operate across multiple jurisdictions

b) The Protocol is to promote

i joint timely and co-ordinated action by regulatory authorities

ii the objectives of the National Quality Framework and national consistency

FDC services that operate across multiple jurisdictions are covered by this Protocol

From June 2015 FDC services were required to hold a separate service approval in each jurisdiction of operation for the purpose of receiving funding under the Commonwealth Family Assistance Law Exemptions for funding purposes may be granted by the Commonwealth for services that straddle jurisdictional boundaries As these changes are for funding purposes only there are still circumstances where FDC services may continue to operate across jurisdictional boundaries under the National Law

Regulatory authorities use the Protocol as required to ensure consistent and effective regulation of FDC services under the National Law

Purpose

Scope

J


Definitions

In this Protocol the following definitions apply unless the context requires otherwise

ACECQA means the Australian Childrenrsquos Education and Care Quality Authority

Agreed Principles means the principles under clause 4 of this document

Authorised Officer means person employed by the regulatory authority

FDC means family day care

FDC Working Group means the regulatory authority ACECQA and Australian government representatives

Host Authority means the regulatory authority in any jurisdiction in which the FDC service operates Although this protocol uses the term Host Authority (singular) there may be multiple Host Authorities

Lead Authority means the regulatory authority that grants the FDC service approval and the FDC provider approval In the case that the service approval and provider approval are granted by two different jurisdictions there will be two Lead Authorities

NQA ITS National Quality Agenda Information Technology System

National Law means the Education and Care Services National Law

Operational Policy Manual means the Operational Policy Manual for Regulatory Authorities available at httpwwwacecqagovauOperational-Policy-Manual-for-Regulatory-Authorities

Protocol means the Protocol for regulation of Family Day Care services operating across jurisdictions

J


Agreed principles

The regulatory authorities agree

a) the safety health and well-being of children is paramount

b) parties to this Protocol must act immediately to mitigate any known and suspected risks to a childrsquos safety health or wellbeing and to bring concerns to the attention of the relevant regulatory authority

c) the objectives of the National Law will be furthered by an effective efficient and collaborative approach to the regulation of FDC services operating across jurisdictions

d) to provide assistance on matters including managing complaints incidents significant or systemic compliance issues assessment and rating processes coordinating education and monitoring activities and approvals for providers of cross-jurisdiction FDC services

e) to notify each relevant Host Authority prior to taking regulatory action within their jurisdiction as described bys101(3) and s42(3) of the National Law

f) to respond to requests for assistance in a timely manner and in a way that provides the most efficient use and availability of resources and expertise

g) to share information regarding FDC services operating across jurisdictions as permitted by the National Law and other relevant legislation

h) where a Host Authority has information concerning a family day care service and the service approval is held in a different jurisdiction the Host Authority must notify the Lead AuthorityAuthorities

J


Establishment of a lead authority

a) The Lead Authority is the regulatory authority that grants the FDC service approval and the FDC provider approval In the case that the service approval and provider approval are granted by two different jurisdictions there are two Lead Authorities

b) The Lead Authority is responsible for updatingmaintaining records in the NQA ITS including

i Notifications (Service and Provider Approvals) and complaints

ii Assessment and Rating

iii Compliance Action

iv Education or monitoring campaigns

c) In the case that there are two Lead Authorities the Lead Authority that grants the service approval will update the sections of the NQA ITS that relate to the service approval while the Lead Authority that grants the provider approval will update sections that relate to the provider approval

a) The Host Authority is the regulatory authority in any jurisdiction in which the FDC service operates There may be multiple Host Authorities

b) Under the National Law all Host Authorities are able to take action in respect of an FDC service approval or provider approval however they must consult with all other host jurisdictions and the relevant Lead Authority

As of June 2015 FDC services are required to hold a separate service approval in each jurisdiction to receive funding under Commonwealth Family Assistance Law Exemptions for funding purposes may be granted by the Commonwealth where a service straddles jurisdictional boundaries

The effect is that the number of FDC services operating across jurisdictions is likely to decrease significantly

Regulatory authorities continue to apply the Protocol to ensure consistent regulation of any FDC services operating across jurisdictions under the National Law

Establishment of host authority

J


Responsibilities of the lead and host authority

a) Complaints and notifications of unacceptable risk to the safety health or wellbeing of children

i If a regulatory authority receives a complaint or notification of an unacceptable risk to the safety health or wellbeing of any child or children being educated and cared for by a service it should act immediately to mitigate the risk

ii If a complaint or notification relates to an educator or incident occurring in a Host Authorityrsquos jurisdiction the Host Authority

bull determines the appropriate course of action

bull notifies the relevant Lead Authority and provides detail as permitted by the National Law and other relevant legislation This may include the complaint number in the NQA ITS

bull if necessary advises the complainant at the time of the complaint or at any other point to contact the Lead Authority regarding the complaint

iii In the case of a serious incident or a complaint alleging that the safety health or wellbeing of a child or children was or is being compromised while that child or children is or are being educated and cared for by the service the approved provider must notify both the Lead Authority and Host Authority (s 174(4))

iv If a visit to a principal office venue or residence in another jurisdiction(s) is required the Host Authority should coordinate with the relevant FDC Liaison Officers to find a logical and cost effective way to arrange the visit

v The Host Authority and Lead Authority may coordinate to progress an investigation that requires action across multiple jurisdictions

vi Complaints and investigations should be managed in accordance with the agreed processes set out by the Operational Policy Manual

vii Each Host Authority may exercise monitoring and enforcement powers under Part 9 of the National Law in respect of FDC educators residences venues and offices that are located in their jurisdiction

viii If the Host Authority determines that they will proceed to amend cancel or the service approval (s101(3)) andor provider approval (s42(3)) they must consult with any other Host Authorities and the relevant Lead Authority prior to taking action

J


ix The Host Authority will provide a record of action taken to the Lead Authority

x The Lead Authority will update the NQA ITS to reflect regulatory action taken by the Host Authority

xi In situations where the Host Authority decides to take regulatory action in respect of a FDC service or provider they will be accountable for reviews of any decisions made

b) Change in location of the principal office of an FDC service

i The regulatory authority that granted the FDC service approval is the Lead Authority for the purposes of this section of the protocol

ii If the Lead Authority receives a notification in relation to a change in location of the principal office of a FDC service they will

bull notify the regulatory authority that granted the provider approval

bull notify each Host Authority of the new location of the principal office

bull update the NQA ITS to reflect the new location of the principal office

iii If a Host Authority receives a notification in relation to a change in the location of the principal office of a FDC service and has not been contacted in relation to this change by the Lead Authority they will

bull notify the Lead Authority of the change in the location of the principal office of the FDC service

iv The Lead will then

bull notify all other Host Authorities


v The approved provider must notify both the Lead Authority and any Host Authorities of a change in the location of the principal office of the service (s 173(4))

c) New service approval applications

i The regulatory authority that receives an application for FDC service approval is the Lead Authority for the purposes of this section of the protocol

ii The Lead Authority will


bull notify any other regulatory authority with an approved FDC service operated by the same approved provider

J


d) Assessment and rating

i The Lead Authority that grants the FDC service approval is responsible for the coordination of any assessment and rating process that may need to occur across jurisdictional boundaries

ii If the Lead Authority intends to enter another jurisdiction for the purpose of an assessment and rating visit it will notify the relevant Host Authority or may coordinate with the relevant Host Authority to undertake the assessment and rating visit on its behalf if practicable for both parties

iii The Lead Authority may not disclose information to a Host Authority that could identify or lead to the identification of an individual (other than the information listed in s271(7) (a) ndash (d))

iv The Lead Authority must instead contact the Host Authority and provide the details of the relevant approved provider The Host Authority may then contact the approved provider and ask for a copy of the register (s269)

e) Investigating potential non-compliance

i The Host Authority has responsibility for determining whether a site visit or other assistance is required to carry out a compliance action

ii Where it is necessary in the interests of maintaining the safety health and wellbeing of children the Host Authority may take compliance action against a family day care educator or approved provider even if the service approval or provider approval are held in another jurisdiction

iii The Host Authority will notify the relevant Lead Authority prior to carrying out a compliance action if possible

f) Education or monitoring campaigns

i Regulatory authorities that plan education andor monitoring campaigns involving a FDC service known to operate across jurisdictions agree to notify the other jurisdiction(s)

J


Knowledge sharing

a) The regulatory authorities agree to share as appropriate information relating to FDC approved providers and services operating across jurisdictions

b) The purpose of sharing this information is to realise the Agreed Principles by

i ensuring regulatory authorities have all relevant information available when making investigations and decisions

ii avoiding duplication of investigations into the same matter without the prior knowledge of the relevant regulatory authorities

c) There are several sources of information for regulatory authorities

i Applications and mandatory notifications from approved providers

a upon application for a service approval where the approved provider must provide the jurisdiction and local government area of proposed educators (Regulation 26(h))

b upon notification of operation of the service in a jurisdiction different to the jurisdiction of the regulatory authority that issued the service approval (Regulation 175(2)(d)) The approved provider must notify the regulatory authority that granted the service approval and the regulatory authority in each jurisdiction where the FDC service operates (s 174(4))

[The form (SA12) also asks for the new local government area(s) in which the service will operate]

c upon notification of a serious incident (Section 174(2)(a)) complaint alleging the safety health or wellbeing of a child was or is being compromised (s174(2) (b)(i)) or that the National Law is being contravened(s174(2)(b)(ii) The approved provider must notify the regulatory authority that granted the service approval and the regulatory authority in each jurisdiction where the FDC service operates (s 174(4))

d upon notification of change of location of the principal office of the services (s173(2)(e)) the approved provider must notify the regulatory authority that granted the service approval and the regulatory authority in each jurisdiction where the FDC service operates (s 173(4))

ii Compliance history of FDC approved providersservices

a regulatory authorities carry out regular compliance and monitoring activities from which they gather relevant information about FDC services

J


iii Registers maintained by approved providers

a approved providers of FDC services must keep a register of all educators that they engage in accordance with s269 of the National Law which is further prescribed under Regulation 153

b regulatory authorities may request a copy of this register at any time

d) Regulatory authorities can not disclose any information that could identify or lead to the identification of an individual other than the information listed in s271(7) (a) ndash (d)) to another authority This includes information that may identify FDC educators who have not been suspended

e) The regulatory authorities acknowledge that in certain circumstances jurisdiction-specific legislation may prevent any discussions or information sharing taking place (an example being where the matter relates to a child protection issue) Non-compliance of clause 9 of this Protocol if due to adherence to legislation will not be considered an infringement of this Protocol

f) To facilitate information sharing a regulatory authority may choose to contact another regulatory authority and provide the details of an approved provider The other regulatory authority may then contact the approved provider and ask for a copy of the register of educators (s269)

Dispute resolution

a) This Protocol and sub protocols covered are not legally binding contractually or otherwise upon any of the regulatory authorities to a particular course of action

b) Each regulatory authority has the power to undertake compliance action in another jurisdiction

c) If there is a dispute arising out of this Protocol each party must use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions

d) ACECQA upon request agrees to act as a mediator for any disputes arising under this Protocol

J


Review and amendments to the protocol

a) This Protocol will be reviewed every year to evaluate its contribution to effective regulatory practice and may be amended at any other time as required if agreed by the Quality and Consistency Committee

b) The Quality and Consistency Committee will monitor the progress of this Protocol with the support of ACECQA

J


Appendix A Complaint about educator

This is an example of the steps taken when a regulatory authority receives a complaint about an educator

1) The Host Authority receives a complaint about an educator in their jurisdiction

2) The Host Authority mitigates risk to ensure there is no immediate risk of harm to children

3) The Host Authority informs the Lead Authority that they have received a complaint about an educator linked to a service approvalprovider approval granted by the lead authority authorities

4) The Host Authority determines the appropriate course of action

5) If the Host Authority determines that they will proceed to amend cancel or the service approval (s101(3)) andor provider approval (s42(3)) they must consult with all other Host Authorities and the relevant Lead Authority prior to taking action

6) The Host Authority will provide a record of action taken to the Lead Authority

7) The Lead Authority will update the NQA ITS to reflect regulatory action taken by the Host Authority

J


J


Contents

Introduction


Contents Chapter B

Good Reg Practice





1 Good regulatory practice8

Why are regulatory authorities regulating8

Regulatory practice diagrams12

Assessing risk to children14

Good decision-making18

Contents Chapter C

1 Provider approval








Determining an application for provider approval in case of death or incapacity of approved provide






2 Service approval
















4 Waivers













5 Supervisor certificate

Application for supervisor certificate




After application has been determined


Automatic suspension or cancellation of supervisor certificate

Voluntary suspension or surrender of supervisor certificate

Offence related to supervisor certificate




Contents Chapter D


Educational program






Harm and hazards


Food and beverages

Weekly menu

Sleep and rest


Child protection


Infectious diseases

First aid kits






Excursions


Useful contacts


Harm and hazards



Fencing

Natural environment

Shade




Glass















Educational leader













Access for parents
















Chapter E Contents

1 Monitoring

What is monitoring


2 Compliance tools




Compliance notices


Prohibition notices


Prosecution








4 Serving notices





General powers





Authorised officers




Gathering evidence











10 Complaints





Contents Chapter F

1 Fees

Annual fee

Application fees


GST

Indexation

Fees362

Application fees362

Annual fee 362

Waiving or varying a fee363

Indexation364

GST364

Contents Chapter G

1 Reviews


External review

Judicial review

Contents Chapter G

1 Reviews


External review

Judicial review

_How_are_ratings

_Ref383428127

Contents Chapter G

1 Reviews


External review

Judicial review


copy 2015 Australian Childrenrsquos Education and Care Quality Authority

Copyright in this resource (including without limitation text images logos icons information data documents pages and images) (ldquothe materialrdquo) is owned or licensed by us

Copyright in material provided by the Commonwealth State or Territory agencies private individuals or organisations may belong to those agencies individuals or organisations and may be licensed by us

Subject to any contrary statement on relevant material you may use any of the material in this resource for your personal non-commercial use or use within your organisation for non-commercial purposes provided that an appropriate acknowledgment is made (retaining this notice) and the material is not altered or subjected to derogatory treatment Apart from any other use as permitted under the Copyright Act 1968 (Cth) all other rights are reserved

Requests and enquiries concerning further authorisation should be addressed to The Copyright Officer ACECQA PO Box A292 Sydney NSW 1235

Or emailed to enquiriesacecqagovau


A

Contents

A Introduction 2





F Fees 361

G Reviews 367


I Glossary 417




A


LAW


REGULATIONS

NATIONALQUALITY



APPROVEDLEARNING

FRAMEWORKS

SOURCEDOCUMENTS






1

September 2013


April 2012


January 2013



A

















A


A




Contents







B


















B




Outcomes focussed


















B








Independence








bull peak bodies







B



















bull planning and

bull food safety


B














B





Suspend or cancel













Unwilling

amp

Unableable

Willing

amp

Unable

Willing

amp

Able

EA

RN

ED

AU

TO

NO

MY

PR

OS

EC

UT

E


B





What is risk



Risk Matrix

Cons

eque

nces

Likelihood








B

Likelihood








Consequence





B

Risk prioritisation




Unacceptable risk







B





















B





Checking delegation





Power under the law




B



Timeframes










B

Natural justice







bull the bias rule






The hearing rule



B

The bias rule




Making the decision







B



bull the date














B


B




Contents































4 Waivers 85























C










Legend

C


1 Provider approval












C
















C















C


Calculating time














C












C





Criminal history





Option 1 Option 2







C





Financial matters










C



bull liquidity

bull cash flow






Medical conditions





C











C



















C


Appeals




















C


















C












Calculating time





C










Appeals







C
















C


Appeals













C
















C












Appeals



C



















C
















C


Calculating time















C















C













C












C






orsactgovau


checkkidsnswgovau

Northern Territory



ccypcgqldgovau


dcsisagovau





C


2 Service approval



















C






Mobile services















C
















C












C
















C








Calculating time










C






















C














C






Condition




3 3


3 3




3 3


3


3


3


3 3


3 3


3 3


3

C













C

















C



















C













Appeals



C




















C















C

















C









Calculating time








C





Appeals











C







Appeals










C




















C














C

















C
















C

















C
















C














C




Calculating time












C

















C












C















C















C















C












Supervision


C











C






Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space


117 Glass

Staffing






C



Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space







Staffing












C

















C












Calculating time





C





















C












C
















C
















C











C






Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space


117 Glass

Staffing







C



Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space







Staffing












C















C













Calculating time





C





















C
















C













C














C















C












C



















C



















C

















C

















C







Calculating time











C














C












C


















C









Management ability






C














C

















C
















C


























C









Appeals







C


















C


















C















C















C



Table I




















C


Table II









C


Table III






n

n

n

n

n


a their full name


















C


Table IV






n

n

n

n

n


a their full name







C


Table V





















C


Table VI











Table VII










C


Table VIII


















C


Table VIII
























C


Table IX























C


Table IX






Table X









Table XI









C


Table XII











Table XIII













C


Table XIV










c in any other case








C


Table XV








Table XVI






n Contact details




C




Contents











Weekly menu 150

Sleep and rest 150





First aid kits 155






Excursions 163


Useful contacts 168





Fencing 173


Shade 176




Glass 180
















D


































D









Legend

DD



Educational program























DD
















DD
















DD










Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3


3 3 3


3 3 3


3 3 3


D


D










D


D












Harm and hazards





D


D
















D


D











D


D













D


D



Food and beverages











D


D

Weekly menu





Sleep and rest








D


D













D


D

Child protection











D


D

Notifying parents



Records
















D


D







Infectious diseases







D


D




First aid kits









D


D



















D


D













D


D



















D


D


















D


D














D


D













D


D














D


D

Excursions








Risk assessment



D


D



Any water hazards





Proposed activities



Authorisation















D


D







D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3 3


3 3 3 3 3



3 3 3 3 3




3 3 3 3


3 3 3 3 3



3


3 3


3 3





3 3


D


D

Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver



3 3 3


3



3 3 3


3 3 3


3 3 3 3


3 3 3 3


3 3 3



D


D

Useful contacts

Food authorities



ACT Health


healthactgovau


Northern Territory



healthntgovau



healthqldgovau

South Australia



sahealthsagovau


Food Unit

dhhstasgovau


Western Australia



publichealthwagovau

D


D

Public health units




healthactgovau


Northern Territory


healthntgovau


South Australia


sahealthsagovau


dhhstasgovau


healthvicgovau

Western Australia


publichealthwagovau





orsactgovau


checkkidsnswgovau



ccypcgqldgovau

South Australia


dcsisagovau



Western Australia



D


D


Harm and hazards









D


D









D


D














D


D








Fencing






D


D
















D


D




Natural environment







D


D

Shade














D


D















D


D















D


D

















D


D



Glass













D


D














D


D














D


D
















D


D











D


D







Fencing





Glass safety issues









D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3



3 3




3 3 3 3






3 3 3



3 3 3


3 3 3


D


D













D


D




















D


D














D


D

















D


D
















D


D


















D


D















D


D












D


D













D


D
















D


D
















D


D



Over preschool age

















D


D













D


D






Over preschool age













D


D





















D


D





















D


D
























D


D













325 to 35 months 15 5


TOTAL ndash 20



D


D




Educator

Birth to 24 months

25 to 35 months



25 to 35 months (5)










D


D



















Rural and remote

D


D




D


D






bull a school or











D


D

Educational leader















D


D

















D


D













D


D
















D


D


















D


D











D


D

















D


D



















D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver



3


3 3 3 3


3


3


3 3 3 3 3


3 3 3 3


3 3 3 3 3


3 3 3


3 3 3 3



3


3


3

D


D
















D


D















D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3


3 3


3 3 3 3



D


D


Access for parents











D


D






Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3 3


3 3 3 3


D


D



















D


D







Gender of the child











Immunisation status



D


D













D


D












D


D












D


D










D


D







bull sun protection

bull water safety









Staffing including










D


D





















D


D










D


D



















D


D
















D


D

















D


D













D


D






Serious incidents




D


D



Head injuries

Fractures

Burns

Removal of fingers




Epileptic seizures

Bronchiolitis

Whooping cough

Measles



Sexual assault



D


D







D


D






















D


D

















D


D

















D


D

Access to documents



Confidentiality










D


D














D


D






D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3


3 3


3 3


3 3


3 3 3


3 3 3



3 3 3



3 3 3


3 3 3


3 3 3


3 3 3


3 3

D


D

Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3


3 3 3


3 3


3 3


3 3 3 3 3


3


3 3


3 3 3


3 3


3


3 3 3


D


D





Regulations

Buildingcodes

Food safety laws

Fire safetylaws

Family assistance

law







D









D


D




Contents

1 Monitoring 253











Prosecution 280

3 Conditions 282













General powers 321




















11 Complaints 354






E









Legend


E

1 Monitoring

What is monitoring





E








Targeted campaigns






Unscheduled visits



Scheduled visits




E

















E





Outcomes focus




Independence






E



Approved provider






Compliance notice






















E













Infringement notice

















E










E

When can it be used







Approved provider






















Approved provider





E






How can it be used



Can it be appealed









E







When can it be used








How can it be used




E

Can it be appealed
















E

When can it be used













80(1) Weekly menu










104(1) Fencing




E



07(2) Indoor space









117(1) Glass


















E








How can it be used





Can it be appealed




E







Compliance notices








E

When can it be used









How can it be used





Can it be appealed




E


Disclosure














E

When can it be used





How can it be used








E




















E









Disclosure












E









Prohibition notices








E







An educator


An employee

A contractor

A volunteer or


When can it be used









E

How can it be used

Show cause notice















E












Can it be appealed




Disclosure




E




















E











When can it be used





E



How can it be used












Can it be appealed



E





Prosecution

What is prosecution




When can it be used



E













How can it be used



E

3 Conditions

What is a condition











E



















E













E














E








E








When can it be used





E




How can it be used

Show cause notice








E
















Can it be appealed




E


Disclosure










When can it be used







E

How can it be used




Show cause notice












E



















E



Can it be appealed






Disclosure






E





When can it be used














E




How can it be used









E

Show cause notice














E



















E

Can it be appealed




Notice to parents











E

Disclosure









When can it be used








E


















E

How can it be used







Show cause notice











E


















E

Can it be appealed




Notice to parents











E

Disclosure











E

When can it be used













How can it be used



E




Show cause notice












E


















E






Can it be appealed




Notice to parents





E









Disclosure








E





When can it be used













E



















E

How can it be used


Show cause notice














E



















E

Can it be appealed





Notice to parents










E

Disclosure







E

5 Serving notices




















E







bull prosecutions











E



























E
















Prohibition notices




E







E


General powers












E



What is the power














E











What is the power



E


















E

















E


Authorised officers







Identity cards










E








Place Purpose Power













E



What is the power


















E


















E



What is the power












Giving warning








E


















E






What is the power












E








Search the premises






Giving warning








E












What is the power







E



















E



















E





Search the premises







Giving warning














E












Giving warning








E










Giving warning











E

















E

Giving warning

















E

Seized items













E






When to investigate





E















E







Record keeping



E





















E




Gathering evidence

What is evidence









E







Standard of proof











E














E


















E
















E














E












E

11 Complaints














bull another person



E






Risk assessment




High



E

Medium


Low









E




















E












E


E


FFees


Contents

Fees 363


Annual fee 363


Indexation 365

GST 365


F









Legend


F

1 Fees



Application fees




Annual fee








F

Late payment fee
















F

Indexation



GST



F

G



Contents

Reviews 368


External review 374

Judicial review 376


Privacy 379



G













G




























G






















G


















G
















G




Review process



















G


Review process





External review










G


















G


Judicial review
















G












G













G


2 Privacy











G






















G
















G






G


G


H



Contents


























H























H


The rating system









bull Excellent














H



H












H






Step Process
















H


3 Notice of visit








6 Consider feedback




H







What is reviewed








H




















H



How long is a visit







H


















H















H

















H
















H




















H















H

















The right to review


H


















H



















H

















H












H

















H

















H


















H








Assess application














H






Appeals






H



















H


















H










bull law













H







Appeals









H


H



IGlossary



I




















I



Convulsions

Poisoning


















I


























I




















I


















I






















I



























I




















I

























I



















I








lsquoPersonrsquo













I




















I





















I

























I


Serious incidents





















I
























I








Tasmania NA







New South Wales NA


Queensland NA

South Australia NA

Tasmania NA

Victoria NA



I


I

J




Contents


Purpose 438

Scope 438

Definitions 439









J











Purpose

Scope

J


Definitions













J


Agreed principles










J
















J















J






















J













J


Knowledge sharing














J








Dispute resolution





J





J











J


J


Contents

Introduction


Contents Chapter B

Good Reg Practice










Contents Chapter C

1 Provider approval














2 Service approval
















4 Waivers


























Contents Chapter D


Educational program






Harm and hazards


Food and beverages

Weekly menu

Sleep and rest


Child protection


Infectious diseases

First aid kits






Excursions


Useful contacts


Harm and hazards



Fencing

Natural environment

Shade




Glass















Educational leader













Access for parents
















Chapter E Contents

1 Monitoring

What is monitoring


2 Compliance tools




Compliance notices


Prohibition notices


Prosecution








4 Serving notices





General powers





Authorised officers




Gathering evidence











10 Complaints





Contents Chapter F

1 Fees

Annual fee

Application fees


GST

Indexation

Fees362

Application fees362

Annual fee 362


Indexation364

GST364

Contents Chapter G

1 Reviews


External review

Judicial review

Contents Chapter G

1 Reviews


External review

Judicial review

_How_are_ratings

_Ref383428127

Contents Chapter G

1 Reviews


External review

Judicial review


A

Contents

A Introduction 2





F Fees 361

G Reviews 367


I Glossary 417




A


LAW


REGULATIONS

NATIONALQUALITY



APPROVEDLEARNING

FRAMEWORKS

SOURCEDOCUMENTS






1

September 2013


April 2012


January 2013



A

















A


A




Contents







B


















B




Outcomes focussed


















B








Independence








bull peak bodies







B



















bull planning and

bull food safety


B














B





Suspend or cancel













Unwilling

amp

Unableable

Willing

amp

Unable

Willing

amp

Able

EA

RN

ED

AU

TO

NO

MY

PR

OS

EC

UT

E


B





What is risk



Risk Matrix

Cons

eque

nces

Likelihood








B

Likelihood








Consequence





B

Risk prioritisation




Unacceptable risk







B





















B





Checking delegation





Power under the law




B



Timeframes










B

Natural justice







bull the bias rule






The hearing rule



B

The bias rule




Making the decision







B



bull the date














B


B




Contents































4 Waivers 85























C










Legend

C


1 Provider approval












C
















C















C


Calculating time














C












C





Criminal history





Option 1 Option 2







C





Financial matters










C



bull liquidity

bull cash flow






Medical conditions





C











C



















C


Appeals




















C


















C












Calculating time





C










Appeals







C
















C


Appeals













C
















C












Appeals



C



















C
















C


Calculating time















C















C













C












C






orsactgovau


checkkidsnswgovau

Northern Territory



ccypcgqldgovau


dcsisagovau





C


2 Service approval



















C






Mobile services















C
















C












C
















C








Calculating time










C






















C














C






Condition




3 3


3 3




3 3


3


3


3


3 3


3 3


3 3


3

C













C

















C



















C













Appeals



C




















C















C

















C









Calculating time








C





Appeals











C







Appeals










C




















C














C

















C
















C

















C
















C














C




Calculating time












C

















C












C















C















C















C












Supervision


C











C






Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space


117 Glass

Staffing






C



Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space







Staffing












C

















C












Calculating time





C





















C












C
















C
















C











C






Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space


117 Glass

Staffing







C



Reg Requirement


104 Fencing

107 Indoor space

108 Outdoor space







Staffing












C















C













Calculating time





C





















C
















C













C














C















C












C



















C



















C

















C

















C







Calculating time











C














C












C


















C









Management ability






C














C

















C
















C


























C









Appeals







C


















C


















C















C















C



Table I




















C


Table II









C


Table III






n

n

n

n

n


a their full name


















C


Table IV






n

n

n

n

n


a their full name







C


Table V





















C


Table VI











Table VII










C


Table VIII


















C


Table VIII
























C


Table IX























C


Table IX






Table X









Table XI









C


Table XII











Table XIII













C


Table XIV










c in any other case








C


Table XV








Table XVI






n Contact details




C




Contents











Weekly menu 150

Sleep and rest 150





First aid kits 155






Excursions 163


Useful contacts 168





Fencing 173


Shade 176




Glass 180
















D


































D









Legend

DD



Educational program























DD
















DD
















DD










Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3


3 3 3


3 3 3


3 3 3


D


D










D


D












Harm and hazards





D


D
















D


D











D


D













D


D



Food and beverages











D


D

Weekly menu





Sleep and rest








D


D













D


D

Child protection











D


D

Notifying parents



Records
















D


D







Infectious diseases







D


D




First aid kits









D


D



















D


D













D


D



















D


D


















D


D














D


D













D


D














D


D

Excursions








Risk assessment



D


D



Any water hazards





Proposed activities



Authorisation















D


D







D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3 3


3 3 3 3 3



3 3 3 3 3




3 3 3 3


3 3 3 3 3



3


3 3


3 3





3 3


D


D

Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver



3 3 3


3



3 3 3


3 3 3


3 3 3 3


3 3 3 3


3 3 3



D


D

Useful contacts

Food authorities



ACT Health


healthactgovau


Northern Territory



healthntgovau



healthqldgovau

South Australia



sahealthsagovau


Food Unit

dhhstasgovau


Western Australia



publichealthwagovau

D


D

Public health units




healthactgovau


Northern Territory


healthntgovau


South Australia


sahealthsagovau


dhhstasgovau


healthvicgovau

Western Australia


publichealthwagovau





orsactgovau


checkkidsnswgovau



ccypcgqldgovau

South Australia


dcsisagovau



Western Australia



D


D


Harm and hazards









D


D









D


D














D


D








Fencing






D


D
















D


D




Natural environment







D


D

Shade














D


D















D


D















D


D

















D


D



Glass













D


D














D


D














D


D
















D


D











D


D







Fencing





Glass safety issues









D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3



3 3




3 3 3 3






3 3 3



3 3 3


3 3 3


D


D













D


D




















D


D














D


D

















D


D
















D


D


















D


D















D


D












D


D













D


D
















D


D
















D


D



Over preschool age

















D


D













D


D






Over preschool age













D


D





















D


D





















D


D
























D


D













325 to 35 months 15 5


TOTAL ndash 20



D


D




Educator

Birth to 24 months

25 to 35 months



25 to 35 months (5)










D


D



















Rural and remote

D


D




D


D






bull a school or











D


D

Educational leader















D


D

















D


D













D


D
















D


D


















D


D











D


D

















D


D



















D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver



3


3 3 3 3


3


3


3 3 3 3 3


3 3 3 3


3 3 3 3 3


3 3 3


3 3 3 3



3


3


3

D


D
















D


D















D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3


3 3


3 3 3 3



D


D


Access for parents











D


D






Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3 3


3 3 3 3


D


D



















D


D







Gender of the child











Immunisation status



D


D













D


D












D


D












D


D










D


D







bull sun protection

bull water safety









Staffing including










D


D





















D


D










D


D



















D


D
















D


D

















D


D













D


D






Serious incidents




D


D



Head injuries

Fractures

Burns

Removal of fingers




Epileptic seizures

Bronchiolitis

Whooping cough

Measles



Sexual assault



D


D







D


D






















D


D

















D


D

















D


D

Access to documents



Confidentiality










D


D














D


D






D


D


Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3


3 3


3 3


3 3


3 3 3


3 3 3



3 3 3



3 3 3


3 3 3


3 3 3


3 3 3


3 3

D


D

Requirement App

rove

d pr

ovid

er

Nom

inat

ed

supe

rvis

or

Fam

ily d

ay

care

edu

cato

r

Off

ence

Infr

inge

men

t no

tice

Com

plia

nce

dire

ctio

n

Wai

ver


3 3 3


3 3 3


3 3


3 3


3 3 3 3 3


3


3 3


3 3 3


3 3


3


3 3 3


D


D





Regulations

Buildingcodes

Food safety laws

Fire safetylaws

Family assistance

law







D









D


D




Contents

1 Monitoring 253











Prosecution 280

3 Conditions 282













General powers 321




















11 Complaints 354






E









Legend


E

1 Monitoring

What is monitoring





E








Targeted campaigns






Unscheduled visits



Scheduled visits




E

















E





Outcomes focus




Independence






E



Approved provider






Compliance notice






















E













Infringement notice

















E










E

When can it be used







Approved provider






















Approved provider





E






How can it be used



Can it be appealed









E







When can it be used








How can it be used




E

Can it be appealed
















E

When can it be used













80(1) Weekly menu










104(1) Fencing




E



07(2) Indoor space









117(1) Glass


















E








How can it be used





Can it be appealed




E







Compliance notices








E

When can it be used









How can it be used





Can it be appealed




E


Disclosure














E

When can it be used





How can it be used








E




















E









Disclosure












E









Prohibition notices








E







An educator


An employee

A contractor

A volunteer or


When can it be used









E

How can it be used

Show cause notice















E












Can it be appealed




Disclosure




E




















E











When can it be used





E



How can it be used












Can it be appealed



E





Prosecution

What is prosecution




When can it be used



E













How can it be used



E

3 Conditions

What is a condition











E



















E













E














E








E








When can it be used





E




How can it be used

Show cause notice








E
















Can it be appealed




E


Disclosure










When can it be used







E

How can it be used




Show cause notice












E



















E



Can it be appealed






Disclosure






E





When can it be used














E




How can it be used









E

Show cause notice














E



















E

Can it be appealed




Notice to parents











E

Disclosure









When can it be used








E


















E

How can it be used







Show cause notice











E


















E

Can it be appealed




Notice to parents











E

Disclosure











E

When can it be used













How can it be used



E




Show cause notice












E


















E






Can it be appealed




Notice to parents





E









Disclosure








E





When can it be used













E



















E

How can it be used


Show cause notice














E



















E

Can it be appealed





Notice to parents










E

Disclosure







E

5 Serving notices




















E







bull prosecutions











E



























E
















Prohibition notices




E







E


General powers












E



What is the power














E











What is the power



E


















E

















E


Authorised officers







Identity cards










E








Place Purpose Power













E



What is the power


















E


















E



What is the power












Giving warning








E


















E






What is the power












E








Search the premises






Giving warning








E












What is the power







E



















E



















E





Search the premises







Giving warning














E












Giving warning








E










Giving warning











E

















E

Giving warning

















E

Seized items













E






When to investigate





E















E







Record keeping



E





















E




Gathering evidence

What is evidence









E







Standard of proof











E














E


















E
















E














E












E

11 Complaints














bull another person



E






Risk assessment




High



E

Medium


Low









E




















E












E


E


FFees


Contents

Fees 363


Annual fee 363


Indexation 365

GST 365


F









Legend


F

1 Fees



Application fees




Annual fee








F

Late payment fee
















F

Indexation



GST



F

G



Contents

Reviews 368


External review 374

Judicial review 376


Privacy 379



G













G




























G






















G


















G
















G




Review process



















G


Review process





External review










G


















G


Judicial review
















G












G













G


2 Privacy











G






















G
















G






G


G


H



Contents


























H























H


The rating system









bull Excellent














H



H












H






Step Process
















H


3 Notice of visit








6 Consider feedback




H







What is reviewed








H




















H



How long is a visit







H


















H















H

















H
















H




















H















H

















The right to review


H


















H



















H

















H












H

















H

















H


















H








Assess application














H






Appeals






H



















H


















H










bull law













H







Appeals









H


H



IGlossary



I




















I



Convulsions

Poisoning


















I


























I




















I


















I






















I



























I




















I

























I



















I








lsquoPersonrsquo













I




















I





















I

























I


Serious incidents





















I
























I








Tasmania NA







New South Wales NA


Queensland NA

South Australia NA

Tasmania NA

Victoria NA



I


I

J




Contents


Purpose 438

Scope 438

Definitions 439









J











Purpose

Scope

J


Definitions













J


Agreed principles










J
















J















J






















J













J


Knowledge sharing














J








Dispute resolution





J





J











J


J


Contents

Introduction


Contents Chapter B

Good Reg Practice










Contents Chapter C

1 Provider approval














2 Service approval
















4 Waivers


























Contents Chapter D


Educational program






Harm and hazards


Food and beverages

Weekly menu

Sleep and rest


Child protection


Infectious diseases

First aid kits






Excursions


Useful contacts


Harm and hazards



Fencing

Natural environment

Shade




Glass















Educational leader













Access for parents
















Chapter E Contents

1 Monitoring

What is monitoring


2 Compliance tools




Compliance notices


Prohibition notices


Prosecution








4 Serving notices





General powers





Authorised officers




Gathering evidence











10 Complaints





Contents Chapter F

1 Fees

Annual fee

Application fees


GST

Indexation

Fees362

Application fees362

Annual fee 362


Indexation364

GST364

Contents Chapter G

1 Reviews


External review

Judicial review

Contents Chapter G

1 Reviews


External review

Judicial review

_How_are_ratings

_Ref383428127

Contents Chapter G

1 Reviews


External review

Judicial review

Operational Policy Manual for Regulatory Authorities...D. Operational Requirements 137 E....

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Transcript of Operational Policy Manual for Regulatory Authorities...D. Operational Requirements 137 E....