The case of Trustees of the Roman Catholic Church v NSW Department of Education, before the NSW Supreme Court, is an interesting and unusual one. The approved provider (plaintiff) in this case sought a declaration that the decision by the defendant (Department of Education) to issue a compliance notice under section 177, National Law to the Plaintiff is a reviewable decision for internal review for the purposes of section 190, National Law. The circumstances here was that the decision of the first delegate to issue the compliance notice was amenable to internal review pursuant to section 190(h). Subsequently the plaintiff applied for internal review by the Department. That application was determined under section 191(7)(b) by a different Departmental delegate who purported to confirm the original compliance notice in substantially different terms. Essentially, the second delegate amended the compliance notice which related to medical and asthma management plans.. Therefore, the issue before the Court was (para.9):
Following an internal review under s 191 of a decision to issue a compliance notice pursuant to s 177, if the review culminates in a decision to confirm the compliance notice in substantially altered terms does the approved provider have a right of internal review of the latter decision?
The Court found in favour of the plaintiff (para.40):
In my view it follows that the second delegate was only empowered to make the decision of 19 August to issue a compliance notice materially different from that of 2 June by undertaking a fresh exercise of the power conferred by s 177(2). The decision of 19 August therefore falls within par (h) of s 190 as being of a type that is amenable to internal review under s 191.
Moreover, the Court was very critical of the utility of the proceedings by the Department (paras 58-64):
I do not consider that the proceedings have lacked utility from the plaintiff’s point of view. The plaintiff’s unsuccessful endeavours to implement the Secretary’s requirement that asthma medical management plans should be revised has demonstrated that the requirement is incapable of being carried out and that the attempt is counter-productive to relations between the approved provider and its clients and to the provision of high-quality child care to the families affected. The inequity of inflicting these impractical burdens on one approved provider rather than adopting a sector wide standard is self-evident. The Department’s approach of having “closed this compliance action” resolved nothing. It merely manifested incoherence and indecision. By denying that the plaintiff had any legal entitlement to an internal review of the 19 August decision the Secretary in effect sought to shut down further discussion through the only means by which the plaintiff could bring the issue to a head. In the circumstances described above, the plaintiff was effectively driven to file and prosecute its summons. A costs order in its favour is appropriate. It is reasonable to observe that for the Department’s outlay on enforcement activity and on these proceedings, it could probably have funded an appropriately qualified medical specialist to advise upon standardised directions to all approved operators, with due consideration for the autonomy of parents in choosing the extent to which they will authorise or require childcare staff to administer medication. The plaintiff has throughout its dealings with the Department urged that competent medical assistance should be recruited. Most recently that plea was reiterated in the highlighted passages of the email of 1 September 2022, extracted at above. Throughout its communications with the delgates the plaintiff has expressed willingness to co-operate in implementing the standards of the statutory regime. The plaintiff has frequently offered constructive suggestions, particularly with respect to the subject of medical management. While the plaintiff’s personnel do not profess medical expertise they have demonstrated a practical appreciation of issues concerning medication and parental consent. The Regulatory Authority appears to lag behind the provider in its corporate understanding of these matters. At the outset of the hearing of this case, in an endeavour to understand why the defendant’s compliance activity had festered into litigation, I enquired of the defendant’s counsel whether his client regarded the plaintiff as a recalcitrant, persistent offender. The answer was, “No”. The competence and bona fides of the plaintiff could not be in doubt on the material that has been tendered to the Court. Yet the Department’s relationship with this provider has been one of enforcement, penalisation and legal disputation rather than guidance or support. This has led to a perception within the plaintiff’s organisation that it is being scrutinised selectively and unfairly, as expressed repeatedly by the plaintiff’s Executive Director in correspondence over the past year. The sense of being harassed has been imparted to the plaintiff’s childcare staff at the centres. In the plaintiff’s application for review dated 16 June 2022 the Executive Director was prompted to write the following: TheTrustees also hold concern for the approach of some authorised officers at the time of inspection who may not be acting to be conducive to exploring compliance, but rather creating anxiety in workers, on some occasions resulting in staff reporting they felt unable to find the words to appropriately answer questions. Each child care worker or early childhood educator would be managing a number of young children, trying to organise activities for them and to manage their behaviour. Performance of these duties cannot have been made any easier by the attendance of Departmental inspectors demanding to see stocks of Redipred/Prednisolone that the inspectors erroneously thought should be present, requiring production of hard copy records, refusing to acknowledge a staff member’s qualification certificate on a mobile phone (contrary to almost universal modern commercial practice) and finding minor faults. The Department’s generation of anxiety by its approach to administering the Law has extended to a number of families. They are economically dependent upon the availability of the services offered by the plaintiff. The direction of 19 August for review of health management plans has caused concern amongst parents about their capacity to attend to this and about the eligibility of their children for care in the meantime. The direction has subsequently been abandoned by the Investigator’s email of 23 April 2023, but only after imposing additional medical consultations upon families who can ill afford the expense. If, on the other side of the account, the Secretary’s compliance campaign with respect to the plaintiff has delivered benefits to the public, to approved providers, to parents or to children, those benefits have not come to light in the evidence tendered in these proceedings. The plaintiff’s summons has been at least useful, perhaps necessary, as a means of requiring the Secretary to take responsibility for settling the disruption and uncertainty that have been caused by the 19 August decision.
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