Before the NSW Civil and Administrative Tribunal in 3 Bears Childcare Centre Pty Ltd v Secretary, Department of Education; Apple Bear Pty Ltd v Secretary, Department of Education; Hi5 Childcare Pty Ltd v Secretary, Department of Education the Tribunal considered an application to stay the decision of the NSW Department of Education cancel the applicants' service approvals. Each of the three related applicants (approved providers) are corporate entities. Each applicant has the same director Mr Tuan Trang who is the person responsible for the management and control of each company. The Department cancelled the three approvals due to an extensive number of non compliances with the National Law, including the over enrolment of children, in relation to three services: 3 Bears Cabramatta, 3 Bears Fairfield, and 3 Bears Canley Vale) (see paras. 19ff of the judgment). The Tribunal decided not to stay the cancellations, stating that (paras. 43-53):
Is a stay reasonably necessary to secure the effectiveness of the appeal
Mr Trang made very broad and unsupported submissions on this point. Despite me advising Mr Trang on 20 June 2024, that he should consider adducing evidence to substantiate the possible financial demise of the centres if a stay was not granted, he has not filed any evidence in this regard. The applicants have not demonstrated, apart from a general statement, that the services may not be able to continue even if the applicants succeeds in having the decision to cancel the service approval set aside.
The applicants have not demonstrated that a stay is necessary to secure the effectiveness of the appeal.
What is the strength of the applicant’s case
Mr Trang made many statements about the alleged breaches and conduct of the staff and management of the companies. However, he filed no statement from neither himself, nor any other person, answering the alleged breaches or explaining his conduct. To the contrary, the submissions he made concerning some of the most serious conduct was contradicted in the respondents documentation. Mr Trang then attempted to withdraw, or justify his previous denial with a flimsy explanation, or, an attempt to shift blame. I do not have sufficient information to assess the strength of the case in relation to the history of the facility, though it seems from Mr Trang’s submissions and the engagement of Ms Ribarovski, that measures have been taken to address some, but not all, of the issues.
Mr Trang in his submissions made reference to the fact that he was in the process of selling the companies and that he hopes the sale would be concluded in 60 days. While not fully explored at this interim stage, his submissions seemed to be relating the substantive applications being filed to extend the cancellation decision (and this stay) to allow for the companies to be sold and ownership transferred. In considering the object of the Act, this does not weigh in favour of the granting of a stay. The statement casts doubt upon the purpose and strength of the substantive administrative review applications.
I also have a concern that the applicants have filed little, if any, evidence to challenge any of the breaches of the National Law and National Regulations the respondent has found to be established. Likewise, there is little foundation established, at least on a preliminary basis, that the applicants, or any one of them, remain fit and proper for approval. This goes to the very heart of the respondents’ concerns.
Balance of convenience
I have taken into consideration that by not granting a stay a significant number of families and many children will be affected. It is without question that the sudden inability of the applicants to offer a service would be a significant inconvenience for many of those families. The respondent submits that the serious concerns it holds for child safety if the stay is granted should be the prevailing consideration.
On the information before me, I am not satisfied that the operation of the service(s) could be addressed on an interim basis by the imposition of conditions. This is because I am not satisfied that the balance of convenience can be consistent with s 3(a) of the National Law. There are far too many serious alleged breaches. Mr Trang agreed to the some conduct occurring which related to a breach, such as over enrolling of children, despite his previous denials. The unacceptable risk to the health wellbeing and safety of the child can best be protected by refusing a stay.
Public Interest
The public has an interest in the availability of childcare, but it must be childcare which is focussed upon the safety, health and wellbeing of the children. The educational and development needs of the children need to be met. I accept that the respondent’s concerns are serious, ongoing, well researched and documented. I do not accept the applicants’ contention that the respondents concerns are all historical in nature. Nor do I accept the applicants’ contention that there is no ongoing risk to the health and safety of children at the centres. Given my findings, I am not satisfied that the applicants have the capacity to provide childcare in accordance with the National Law, even if conditions were included in the stay order.
It is not in the public interest to grant a stay of the cancellation decisions after 6pm on 5 July 2024.
Conclusion
I am not satisfied that a stay of the cancellation decision(s) is consistent with the National Law to ensure the safety, health and wellbeing of children attending education and care services at the relevant centres paramount, after 6pm on 5 July 2024. Nor is such an order consistent with the guiding principles of the National Law, namely that the rights and best interests of the child are paramount. I consider the ongoing risk of serious harm to the children enrolled at the centre is unacceptable which, outweighs the other interests, including the convenience of families and staff at the centre(s).
At the hearing of the stay application, I concluded that it was not appropriate to grant a stay of the decision to cancel the service approval, after 6pm on 5 July 2024. The only reason I granted a very short stay was to allow families to make alternate arrangements for their children after the conclusion of the week ending 5 July 2024.
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