Refusal of Additional Service Approval

In Early Learning Australia Pty Ltd and Chief Executive Officer of the Department of Communities, ELA applied to the West Australian State Administrative Tribunal for a review of a decision by the Department of Communities (Regulatory Authority under the National Law) to refuse it service approval. As an approved provider of education and care services, ELA applied in October 2021 to the Department of Communities for a service approval to operate an education and care service at proposed premises in Burswood (BEL). ELA already operated a service in Karratha (Karratha Early Learning) and had done so since 2013. The Department refused this application and on internal review confirmed this decision, having taken into account the applicant's history of compliance with the National Law, information provided by ELA, and how border closures may have impacted on ELA's ability to provide ongoing support to its services. Before the Tribunal, ELA contended that the alleged compliance history was over-stated, and, even if proved, did not establish breaches of such a nature as to justify refusal of the application. In addition, the alleged breaches occurred predominantly in 2021­2022, during the COVID-19 pandemic, which was a particularly challenging period for the service especially in a remote location like Karratha, and the conditions which the proposed Burswood service will face would be different to its current service. In its case before the Tribunal, the Department relied primarily on the compliance history of its current service, which, by their nature and repetition, it said, points to serious cultural and systemic deficiencies in ELA's operations that go beyond the challenges of the COVID-19 pandemic and the service's remoteness.

The Tribunal comprehensively assessed all the evidence and in detail considered the compliance history of the Karratha (KEL) service and affirmed the Department's decision, stating that (at paras 781-4(:

On balance, I find that ELA's compliance history weighs heavily against a grant of service approval to ELA for service approval of BEL.

ELA's history of non-compliance is concerning, not merely by virtue of its volume, but by its continued failure to meet specific fundamental obligations relating to child safety and its continued (and inexplicable) failure to meet basic obligations like the display and production of prescribed information even as at October 2022.

Its compliance history transcends KEL and the emergence of COVID­19, and whilst ELA has now engaged external consultants to assist in its compliance obligations, it is still experiencing compliance difficulties in October 2022.

Its consultants have also identified a more fundamental issue with its primary policy of engaging international staff who experience difficulty with completing required documentation for compliance.

With my reservations about the management capability of ELA to overcome its compliance deficiencies in respect of KEL, I am not satisfied, for reasons set out above, that ELA is capable of operating BEL in a way that meets the requirements of the Law, the Regulations and the quality framework, and will therefore dismiss this application.