In Azaria Family Day Care Pty Ltd and Secretary, Department of Education, the Australian Administrative Appeals Tribunal, reviewed the decision of the Department to cancel the applicant's approval as a provider of childcare services under A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). The approval was cancelled due to non-compliance with Child Care Subsidy requirements. The Tribunal assessed these matters and concluded (at paras.51-3):
In the Tribunal’s view, when considered in context, the applicant’s record of non-compliance is not at a level that would demonstrate a serious disregard for its compliance obligations, rather the applicant’s compliance breaches are more reflective of a service provider with a genuine commitment to compliance but who, due to a combination of factors including the complexity of the legislative framework, inadequate record-keeping and some failures in the implementation of its policies and procedures, has fallen short. Again, the Tribunal is satisfied that the applicant recognises these inadequacies and has already taken steps and continues to take steps to effectively address them.
The Tribunal is also not aware of any criminal allegation or fraud that has been raised against the applicant and Ms Miller accepted in her evidence that the respondent was not alleging fraud or dishonesty against the applicant.
For these reasons, the Tribunal is satisfied that the evidence does not support a conclusion that the applicant is, or has at any time during the period of its registration, failed to be a suitable person under the Eligibility Rules or a fit and proper person under either the Pre-Amendment Act or the Act.
The Tribunal, held (para 62):
The decision under review is set aside. In substitution the Tribunal decides that pursuant to section 195F(2)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999, the following condition be imposed on the applicant as a condition for continued approval:
(i) the applicant can engage at any time no more than 60 educators.