The NSW Civil and Administrative Tribunal heard an appeal in National Education Childcare Services P/L v Secretary Department of Education against a refusal to grant provider approval under the National Law. In this case, the applicant was a Company seeking to operate a Family Day Care service in suburban Sydney. As such the applicant (by it’s Director) sought approval by the respondent (the Department of Education) under the Children (Education and Care Services) National Law (NSW) .
The applicant’s Director applied for provider approval for the Company ‘National Education Childcare Services Pty Ltd’. The Department refused to grant provider approval because it found that the applicant’s director (Ms R Zraika), as the person who would have management control of the proposed service on behalf of the applicant Company, was not a fit and proper person as defined under the National Law. The Department was not satisfied that Ms Zraika possessed the requisite knowledge of the necessary measures to ensure the safety, health and care well being of the children enrolled in the service, and ensure the improvement of those children’s educational and developmental outcomes. The applicant applied to the Tribunal seeking an external review of the decision that they were not a fit and proper person within the meaning of the National Law, and the subsequent refusal to grant provider approval.
The applicant's case was that (para. 97):
Ms Zraika had previously been given service provider approval and as a result she meets the standard and criteria for a further approval.
Ms Zraika is not responsible for a failure to respond to the earlier Notice to Show Cause for that prior provider approval, and as result the respondent should have allowed her to show cause again with the situation being that her approval would not have lapse /been withdrawn.
Whilst Ms Zraika submitted to the testing, assessment and interview processes in the most recent application for provider approval, the respondent Department at the relevant time had no legislative authority to apply such process to her (relying on CYU v Secretary Department of Education [2017] NSWCATAD 290, see previous blog post).
The exam process was unfair as there was not enough time to complete the exam fairly, as the exam concluded before time (there was some dispute as to what period between four and eight minutes).
The respondent has taken the wrong approach to s 13. The fitness and propriety test in s 13 of the National Law is not designed to delve too deeply into the state of a person’s knowledge.
The Tribunal ultimately upheld the decision of the Department, observing (paras 100-107, 113-121):
In CYU the Tribunal found that (Mr ‘M’) had a deficient knowledge of the National Law and National Regulations and was therefore not a fit and proper person for the purposes of having provider approval. In our view the same question ultimately arises here, irrespective of whether the respondent had a basis to conduct the testing. In our view the line of cases referred to by both parties shows that a testing and assessment regime has been in place for some time, possibly since the commencement of the NSW provisions of the National Law, at least from practical perspective. From a consideration of Ms Greenfield’s evidence (both oral and her affidavit) it is difficult to ascertain how the National Quality Framework (NQF) could operate without such processes in place. Â
We have noted the applicant’s evidence and submissions about the process and the outcome. We have also noted that she participated in the process and it was only in challenging the overall decision on review that she sought to rely on the preliminary finding from CYU about the process at the time she underwent it.
In respect of the exam time we find that the evidence is insufficient to make any finding that applicant was materially disadvantaged by the amount of time she was provided. We note that there were contradictions and variances on the evidence as to the actual time allowed for the assessable aspect and whether other time (for set up) was separate. We are not certain that in such a scenario an examinee has time to set up bookmarks and shortcuts in their browser for an exam. The method that they choose to utilise would be a matter for the examinee and as a result we doubt that this preparation time would be provided across the board. The more likely explanation being that once the exam time commenced the computer allowed the answers to be recorded and the system was active. We also note that the evidence on page 148 of ‘R-1’ says 9:30am Registration Start Time, 9:45am Assessment Start Time.
As a further point we note the evidence referred to at the conclusion of [47] above, noting the other evidence that the exam duration was 75 minutes.
Further, on our assessment of the applicant’s own contemporaneous evidence on this matter we are not satisfied that there was any real prejudice to her. Page 220 of ‘R-1’ is the applicant’s post exam email of compliant / notification of the issue. From reading the email the evidence appears that the time on the computer was being followed by the applicant, and it may have been out of sync or not accurate (or otherwise). Nowhere in that email does the applicant state that she was given less than 75 minutes to do the exam, merely that she was following the computer timer and time was called when the computer timer still had some minutes to go. Whilst we appreciate that this may have unsettled he applicant’s planning and efficiency we do not see that there is contemporaneous evidence of less than 75 minutes being provided to Ms Zraika to complete the exam.
In respect of Ms Zraika’s CV and claimed management experience, whilst we refrain from making any adverse finding about her credibility as a witness (as the respondent submitted we could and should), in our view having examined the written and oral evidence, she did embellish her management experience in respect of the supervision and management of staff and overall management responsibility for a work process. Her CBA and Legal Practice evidence was in our view at the very least an overreach and at worst disingenuous. We note however that in her oral evidence in cross examination the applicant conceded flaws in that evidence and as a result we make no adverse findings.
However, in reaching that position we reject the applicant’s submission as to the meaning of the term management experience and that in the context of the National Law it equates to administrative experience. Whilst administrative experience is relevant, the ability to manage others and processes is clearly relevant to the skills required under the National Law to deliver the necessary outcomes by being a fit and proper person to have operator approval.
In essence we are unable to find any unfairness to the assessment and consideration process and note that the side issue of the failure to receive emails was never resolved by the evidence to the extent that we are able to make any finding of fact. The applicant’s evidence being that she could not access her specific business email account at that time. At the conclusion of the evidence we remained uncertain as to why that was the case. We do not believe that there was anything inappropriate or unorthodox about the respondent communicating with the applicant Business at it’s registered address for service of notices. We note for completeness that the result of the current Internal Review which led to this external review before us was communicated to the applicant and received by her at the contentious email address that she had set up with the Company from 2017....
Concerning the institution, initiation, and the manner of running of the proceedings in the Tribunal, this observation is our view somewhat central to the impediment that the Tribunal faced. As noted above we put the applicant on notice that notwithstanding the fact that the Tribunal as constituted in these proceedings was ‘multi-disciplinary’ we had neither the expertise or the ability or resources within the confines of the hearing to undertake a forensic assessment of the appropriateness of the respondent’s testing regime and requirements.
We did attempt some exploration of these matters in the respondent’s evidence and the confidential session whereby the applicant’s Counsel had access to the confidential material and was able to question the respondent’s witness and put propositions about that evidence to the Tribunal.
At the conclusion of this lengthy process the only comment we would observe about the testing content or ‘curriculum’ is that the first question in the interview assessment process (after underscoring in the written exam assessment) was too broad to ever result in a meaningful and comprehensive answer form a skilled candidate.
However we find that that matter, and the context of the questions / assessment criteria / material cannot be a basis to make any adverse finding that would assist the applicant. The Parliament has entrusted the respondent with approving applications. As such, unless an individual was to seek a declaration from a Court that a process was misconceived and contrary to law in some way, and that matter was before us, we might be able to consider such a matter. However, we do not have jurisdiction to make declarations nor would we even if we had the power having regard to the evidence currently before us.
To the extent permissible in a merits review, having regard to the evidence in ‘R-2’ and ‘RC-1’ to which we permitted Ms Zraika’s Counsel access, we see nothing inappropriate or improper in the testing material having regard to the duties and functions that an approved provider is required to discharge.
During the period under consideration in these proceedings the same process is used for all applicants for provider approval in the first instance with the only variation being that there are five or so versions of the curriculum or examination syllabus (types of questions / scenarios) available to be used and rotated or selected for candidates / applicants, or groups of candidates.
In addition for the above reasons we do not agree with the applicant that the approach taken by the respondent to the fitness and propriety test in s 13 of the National Law delves too deeply into the state of a person’s knowledge. As has been stated in the cases referred to by the both the applicant and the respondent, where an applicant or candidate fails to demonstrate sufficient knowledge of the National Law and Regulations they will not be a fit and proper person for the purpose of having provider approval.
Again we observe that the purpose and role of provider approval is to ensure that an approved provider possesses the requisite knowledge of the necessary measures to ensure the safety, health and care well-being of the children enrolled in the service, and ensure the improvement of those children’s educational and developmental outcomes.
These matters are consistent with the tests in Australian Broadcasting Tribunal v Bond (1980) HCA 33 170 CLR 380Â and Hughes and Vale.
In addition, in relation to the basis of the appeal, the Tribunal observed (paras 122-3):
Having regard to all of the matters outlined above, there is no basis to make any findings of unfairness in the application process. If we did make such a finding, then if the matter was an administrative review application – which we observe it is not, - we could consider remitting the matter for the respondent to reapply the process to the applicant addressing any identified unfairness in the new process.
However as the matter is not an administrative review we are not empowered to remit the matter under s 65 of the Administrative Decisions Review Act 1997 (the ADR Act).