Before the NSW Civil and Administrative Tribunal in Angel's Paradise Wagga Pty Ltd ATF The APW Business Trust v Secretary, Department of Education, the Approved Provider (applicant) sought a stay on suspension of its service approval imposed by the Department of Education. By way of background, in this case the applicant sought a stay of a decision made by the respondent (Department) of 5 September 2024, suspending the applicant’s approval to operate a childcare centre with immediate effect for a period of 6 months. The applicant sought an internal review of the decision made on 5 September 2024 and the respondent’s decision was confirmed on 21 October 2024. By the time of this case, the childcare centre had been closed for some three and a half months. The decision made on 5 September 2024 was made immediately following a compliance and monitoring visit on the same day. The compliance and monitoring visit was conducted because the respondent was concerned about child safety at the centre on 13 and or 14 August 2024. The concerns were raised based on a complaint made by a parent whose child suffered an injury that required medical attention. The respondent’s decision to immediately suspend the applicant’s approval to operate a child care centre was made pursuant to section 73, National Law. The applicant complied with the decision. The Tribunal refused the stay, stating (paras.45-41):
I have taken into consideration the fact that the centre has been closed for some three and a half months and the stay will have no immediate impact on a significant number of families and many children who are receiving care elsewhere.
There was no evidence as to whether the educators have been employed elsewhere, or are seeking to return to work for the applicant.
On the information before me, I am not satisfied that the operation of the service could be addressed on an interim basis by the imposition of conditions such as the engagement of a consultant. Such a step was open to the applicant for the last three and half months and has not been taken up. The submission that the applicant would accept all recommendations made by the consultant is entirely hypothetical as it is unknown when the recommendations would be made or what the recommendations may encompass.
I am not satisfied that in these circumstances consistent with s 3(a) of the National Law that the balance of convenience favours the granting of the stay. There are far too many serious alleged breaches. 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 which complies with the National Law. Safety, health and wellbeing of the children are paramount considerations.
I accept that the respondent’s concerns are very serious, ongoing and well documented. I do not accept the applicants’ contention that the respondent is a “hyper vigilant” regulator that has over overreacted.
Nor do I accept the applicant’s submission that there is no ongoing risk to the health and safety of children at the centre.
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