The NSW Civil and Administrative Tribunal in Eminem Kids Academy Pty Ltd v Secretary, Department of Education (No 2) was asked to review the decision of the NSW Regulatory Authority (Department of Education) to cancel the provider approval of Eminem Kids Academy Pty Ltd (Applicant).
The Applicant operates two education and care services: Eminem Kids Academy located at 68 Northcote Street, Auburn NSW and Eminem Kids Academy located at 59 Mary Street, Auburn NSW. In March 2022, the Department cancelled the Applicant's provider approval, having found that:
it was not fit and proper to be involved in the provision of an education and care service;
its continued provision of education and care services would constitute an unacceptable risk to the safety, health or wellbeing of children being education and cared for by an education and care service operated by the Applicant; and/or
it had breached conditions of its provider approval. The Department alleged 62 breaches of conditions.
Originally the Tribunal stayed the decision to cancel the Applicant provider approval (see previous case).
The Tribunal examined in detail each of the alleged breaches and determined (paras. 327-339):
...we are satisfied that of the 62 breaches alleged by the Respondent, 17 did not occur while 1 occurred only in part. For the reasons set out above, we are satisfied that the remaining 44 breaches alleged are made out.
Of the 44 breaches made out, we are satisfied that, for the reasons set out above, the Applicant has addressed many of the Respondent’s concerns.
In particular, the Applicant has undertaken extensive renovations of the Mary Street service, it has employed an experienced service manager to address the Respondent’s administrative concerns, it has ensured staff members have received additional training as required and that they have become more familiar with the Xplor software program used by the services.
In light of our findings above, we are satisfied that the remediation undertaken by the Applicant is sufficient and effective to address the majority of the instances of non-compliance with the National Law and National Regulations raised in the proceedings.
As we have noted, the cancellation of a provider approval is a severe regulatory response and on the evidence before us, one that would only be appropriate in this case were we satisfied that the Applicant is, on an ongoing basis, unwilling or unable to comply with the National Law and National Regulations.
As set out above, the authorised visits relied on in these proceedings occurred between 2020 and 2022, a time in which the world was grappling with the COVID pandemic which placed enormous pressure on essential workers such as childcare operators and childcare workers.
From 23 March 2020, a series of COVID restrictions began in NSW, which included the temporary shutdown of non-essential activities and businesses. While schools remained open, parents were encouraged to keep their children at home. Face to face teaching for school students returned from 25 May 2020 with general restrictions easing from 1 July 2020.
On 19 August 2021, residents of greater Sydney were restricted to travelling within 5km of their homes and on 23 August 2021, a curfew from 9pm to 5am came into force in the twelve Local Government Areas of concern, which included Cumberland, where the Mary Street and Northcote Street services are located. On 11 October 2021, the lockdown was eased in greater Sydney.
It was an unprecedented time and the breaches of the National Law and the National Regulations must be considered in this context. Despite the difficulties of this period, which, apart from the severe lockdowns included vaccine hesitancy, widespread fear, a shortage of staff and a shortage of building materials and builders, the Applicant undertook an extensive and impressive program of remediation, including a comprehensive renovation of the Mary Street service to address the concerns of the Respondent.
In light of our earlier findings and having heard from Ms Delialioglu [sole director] in these proceedings, we are satisfied that she has the capacity, intelligence and experience to run Eminem Kids Academy.
On the evidence before us, and as considered above, we are satisfied that Ms Delialioglu has an understanding of child protection law and that the Applicant provides documents and education to its educators to ensure they also understand their child protection obligations and responsibilities.
We accept the evidence of Ms Delialioglu that the Mary Street service has been completely refurnished in order to meet many of the concerns of the Respondent. It is not disputed that the Applicant extended an invitation to the Respondent to inspect the renovations but that the Respondent did not take up this offer.
On the evidence before us and in light of the work undertaken by the Applicant to address the Respondent’s concerns, we cannot be satisfied that the Applicant is, on an ongoing basis, unwilling or unable to comply with the National Law and National Regulations.
The Tribunal then considered whether the Applicant was a fit and proper person. In considering this, the Tribunal considered the history of compliance and whether the person or body has the management capability to operate an education and care service. The Tribunal looked at the experience and qualifications of the Applicant, previous National Quality Standard Assessment and Rating Reports, references by employees and parents, impacts of COVID, personal circumstances of the owner, and the engagement of consultants. It concluded the Applicant was a fit and proper person (para. 363).
The Tribunal then considered the question of whether the continued provision of education and care services by the Applicant would constitute an unacceptable risk to the safety, health or wellbeing of children. The Tribunal concluded (paras. 364-374):
We are not satisfied that the continued provision of education and care services by the Applicant would constitute an unacceptable risk to the safety, health or wellbeing of children being educated and cared for by an education and care service operated by the Applicant.
As set out above, we have found that, despite its breaches, the Applicant is not unwilling or unable to comply with the National Law and National Regulations. Indeed, Ms Delialioglu has shown herself to be both willing and able to address the majority of the Respondent’s concerns through extensive renovation of the Mary Street service, repairs and updates to the Northcote Street service, the employment of an experienced service manager to manage the administration and software needs of the services and clarification of enrolment and attendance queries raised by the authorised officers.
As set out above, we are satisfied that Ms Delialioglu has undertaken an extensive program of remediation to address the Respondent’s concerns.
We are satisfied that Ms Delialioglu has the capacity, intelligence and experience to run Eminem Kids Academy and to ensure that it meets its duties and obligations under the National Law and regulations. We are satisfied that Ms Delialioglu has a strong commitment to the children and parents in the care of the Applicant and is committed to ensuring the safety and well-being of the children under the care of the Applicant.
We accept that the implementation of a checklist system is a way for a provider like the Applicant to keep track of its many obligations under the National Law and National Regulations, which is a complex system. On the evidence before us, we are satisfied that many of the contraventions can be avoided by the implementation of systems to ensure regular oversight of educators and supervisor. We are satisfied that these systems have been implemented by the Applicant.
We are satisfied that Ms Delialioglu has an understanding of child protection law and that the Applicant provides documents and education to its educators to ensure they also understand their child protection obligations and responsibilities.
We accept that Ms Delialioglu has worked hard to address the Respondent’s concerns of in order to ensure that the Applicant’s services are no longer in breach of its obligations under the National Law and National Regulations.
We accept that remediation is an ongoing process and that the Applicant is committed to continuing to take steps to ensure its compliance with the National Law and National Regulations.
On this basis and having taken into account its previous compliance history and the remedial steps it has taken, we are satisfied that the Applicant is willing and able to comply with the National Law and National Regulations.
On all the material before us and having regard to all relevant matters including the objectives and guiding principles of the National Law and National Regulations, we are not satisfied that cancellation is the correct and preferable decision.
However, the Tribunal did decide to impose conditions on the provider approval of the Applicant (para. 378-380):
We are satisfied that the problems for the Applicant relate, overwhelmingly, to the school-aged, rather than pre-school children. The issues of most concern involve transporting of school-aged children and attendance corrections.
These are serious concerns that would overwhelmingly be resolved were the Applicant to restrict its enrolments to under-school aged children.
It is for this reason that we have amended the provider approval for the Applicant by the addition of the following condition, to come into effect on 10 April 2023:
Eminem Kids Academy is licensed to accept enrolments only for children between the ages of 0-6 who do not attend school
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