The case of Bisrat Family Day Care Pty Ltd v Secretary of Department of Education and Training (Review and Regulation) is an unusual case as it involves the cancellation of provider approval due to a service failing to commence operation. In this case the applicant (Bisrat Family Day Care) sought to establish a business as a family day care service provider. The process of gaining the necessary approvals was drawn out. The applicant was granted provider approval on 11 September 2015. But the business had still not commenced operating by 2022. In the light of these delays, on 18 May 2022, the Department (respondent) cancelled its provider approval. This case, before the Victorian Civil and Administrative Tribunal, was a review of that decision. The Department cancelled the approval under section 31(f), Education and Care Services National Law, which provides that the regulator may cancel a provider approval if the approved provider has not operated any education care service for a period of more than 12 months. In this case, the period of delay was six years and eight months. The applicant argued that it was the victim of delays by the Commonwealth Department of Education in considering its applications for Child Care Subsidy approval. The main reason the applicant sought review of the cancellation decision was because it envisaged further cost and delay as a result of having to make another application for provider approval.
The Tribunal upheld the cancellation, stating that (paras 32-42, 44):
In my view, the key factor in determining this review is the one referred to by the Secretary in the show cause and decision letters: the indication given in the legislation that if a business has not commenced to operate within 12 months after provider approval is given, that approval is liable to be re-considered on the basis that it is out of date. While there is scope for the exercise of discretion, the longer the time which has elapsed after the grant of provider approval, the more likely it is to be cancelled under s 31(f).
Here, it is not a case of the period being exceeded to a small extent – the 12 month period was exceeded by 5 years and 8 months. That is a completely different order of magnitude to the statutory time of 12 months.
Additionally, I accept the submission of the Secretary that circumstances have materially changed during this period, both in relation to the situation of the applicant, and the regulatory environment. The management of the applicant has changed. Ms Woldeyohannes is no longer a director, and the business is now proposed to operate in Victoria, rather than New South Wales. Concerning the regulatory environment, an example of change is the introduction of new Child Safe Standards in 2022/23.
I accept the submission by the Secretary that for the applicant to achieve provider approval, it is appropriate for it to provide a formal written statement as to relevant matters, as opposed to assertions made orally in the hearing. This needs to cover things such as who is now in control of the business, and in relation to that person, information such as an up-to-date confirmation of qualifications, their status as regards their working with children check, bankruptcy, any applicable personal health matters, and matters relevant to probity, including an up to date criminal record check. And concerning the company, an up to date ASIC search, and any appropriate information as to the business’s awareness of, and ability to comply with, new legal obligations which have arisen since the provider approval was granted in 2015.
The information provided in the hearing was not sufficient to enable me to conclude that the cancellation should be overturned.
Additionally, in my view, the outcome sought by the applicant is sub-optimal in terms of the decision making process under the Act. It is preferable for the applicant to provide up to date information, which can then be considered by the Secretary. That will provide an orderly basis for a review by VCAT if the applicant is dissatisfied with the decision.
The fact that the applicant has requested that the approval be suspended as soon as it is reinstated underlines the inappropriateness of setting aside the Secretary’s decision. In its statutory context, the approval here is clearly now out of date. A suspension would result in it being even further out of date before the business commences to operate.
While there may be some additional costs and inconvenience for the applicant, this is overridden by the key relevant purpose of the National Law, which is to ensure the safety, health and wellbeing of the children who will be cared for by the services comprising the applicant’s proposed business.....
Obviously, the applicant’s real problem is with obtaining CCS approval from the Commonwealth. Clearly VCAT has nothing to do with that. In practical terms, as I understand it, the applicant will likely have in the vicinity of 6 months (which is extendable) after the grant of any service approval to obtain CCS approval.
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