In Kids Community Pty Ltd and Secretary, Department of Education, Skills and Employment the Australian Administrative Tribunal heard an appeal against the decision of the Department to cancel approval to operate a child care service for the purpose of the family assistance law. The cancellation related to non compliances related to educators being overseas when care was claimed; children overseas when care was claimed; child swapping; claiming for children over 14 attending school; child care ratio contravention; late reporting; CRN contravention. The Tribunal concluded the Applicant (Kids Community Pty Ltd) had not complied with conditions for continued approval as an approved provider of an approved child-care service under the family assistance law (as outlined in para. 101). However, the Tribunal believed that suspension of approval rather than cancellation was a more appropriate sanction (paras.196-8):
Having considered the factors relevant to penalty, as specified under Rule 52(4) of the Minister’s Rules, the Tribunal’s conclusion is that the Applicant’s non-compliance: (a) did not exhibit a systematic pattern but consisted of several unrelated failings of the Applicant’s compliance processes; (b) was due largely to a failure to exercise proper care in some specific instances; (c) resulted in overpayments and debts to the Commonwealth totalling $17,520, of which the majority ($12,804) related to technical deficiencies in the documents upon which the Applicant relied in one specific incident; (d) did not justify a finding that the Applicant is not a fit and proper person to provide a child care service; and (e) did not demonstrate any actual unacceptable risk to children.
The Tribunal is satisfied that the Applicant had adequate oversight, governance and compliance systems in place, which the Applicant applied in a genuine effort to meet its obligations. It is also satisfied that Mr Hashmi, its executive director, was genuine in his endeavour to understand the Applicant’s obligations and is committed to complying with them.
In the circumstances the Tribunal is not satisfied that cancellation is an appropriate penalty. The seriousness of the Applicant’s non-compliance warrants a period of suspension.
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