Before the NSW Civil and Administrative Tribunal in South Asian Australian Association v Secretary, Department of Education the applicant (South Asian Australian Association) sought review by the Tribunal of a decision made by the respondent (NSW Department of Education) to refuse an application for service approval of a proposed education service. The South Asian Australian Association (SAAA) made an application for service approval of a mobile preschool education and care service that was proposed to be operated two days per week from 9am to 4.30pm based at a community hall. In August 2023, a delegate of the respondent notified the applicant that the application for service approval had been refused. This was because the delegate was “not satisfied that the proposed service fits the criteria for the mobile service model” (referring to the definition in s 4(1)(a), Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW). The delegate stated that mobile services tend “to operate in regional or remote areas where centre based services are not available”. The applicant then submitted an internal review of the decision which found that the service did meet the criteria for a mobile education and care service, but the delegate refused the application on two bases:
in accordance with section 49(1)(a), Children (Education and Care Services) National Law (NSW), the Regulatory Authority was required to refuse the application as it found that the proposed service would constitute an unacceptable risk to the safety, health and wellbeing of the children who would be educated there;
they were not satisfied (referring to s 49(2), National Law) that the applicant was capable of operating the service in a way that would meet the statutory requirements of the regulatory framework.
It should be noted that the NSW Supplementary Provisions Act regulates State regulated education and care services that are not subject to the National Law. By section 4(1)(a), Supplementary Provisions Act, a mobile education and care service is a “State regulated education and care service” for the purposes of that Act (and is not an education and care service under the National Law: s 4(3)(a)). However, section 17 of the Supplementary Provisions Act applies the National Law to State regulated education and care services as if they were education and care services within the meaning of the National Law, subject to any modifications provided for, by or under the Supplementary Provisions Act
The Tribunal upheld the decision of the Department stating that (at paras.59-72):
The regulatory scheme governing this application has been the subject of a number of decisions of this Tribunal. In Global Family Day Care Pty Ltd v Secretary Department of Education [2020] NSWCATAD 248, the Tribunal stated at [147]-[149]:
[147] … [T]his is a protective jurisdiction where the interests and welfare and well-being of children are paramount.
[148] In CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 [CTG] at paragraph 58 the Tribunal observed the following about how the National law should be applied when competing interests arose.
…. The system therefore is not designed to operate in order to facilitate the business variables of operators but clearly is designed with some flexibility to take these matters into account. It is therefore not a blunt bureaucratic instrument, but rather a regulatory scheme that have objects that go towards the provision of quality service in a somewhat protective environment. It is evident that the legislation should be applied and directed beneficially towards achieving the objects and guiding principles as set out in section 3.
[149] … The regulatory and compliance regime operates in the context of the protective jurisdiction as set out by the objectives and guiding principles of the National Law in s 3.
In a number of decisions, the Tribunal has described the National Law as a law calling for “strict compliance”: see Faaea v Secretary, Department of Education [2018] NSWCATAD 85 at [25] where the Tribunal referred to CTG at [45], citing Long Life Family Daycare v Director General Education Directorate [2016] ACAT 69). Similarly, in Montessori Stars Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 295 (Montessori Stars), the Tribunal stated at [40]:
It should be observed that the National Law and the National Regulations require strict compliance by providers and educators: see 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22]; DPW v Secretary, Department of Education [2018] NSWCATAD 257 at [29]; Faaea v Secretary, Department of Education [2018] NSWCATAD 85 at [25].
And in Mother’s Choice Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 194 the Tribunal, at [6], referring to the authorities cited in Montessori Stars, stated “The National Law imposes a large number of regulatory requirements and requires strict compliance”.
The Tribunal agrees that it is apparent from the nature of the language used in the National Law, and the other aspects of the regulatory framework outlined by the Tribunal above, that strict compliance with all elements of the regulatory framework is required.
Ground One
Clause 15(1) of the Supplementary Provisions Regulation 2024 (cl 17 of the Supplementary Provisions Regulation 2019) provides that if a mobile education and care service is to be provided on premises that do not comply with any of regs 80, 104-110 or 112-115 of the National Regulations, a "venue management plan" must be submitted to, and approved by, the Regulatory Authority. A "venue management plan" is defined in cl 15(4) the text of which is set out above at [22]
By reg 15(2), the Regulatory Authority “must not grant a service approval for a mobile education and care service in relation to which a venue management plan is required unless it has approved a venue management plan”.
As the respondent submitted, in this case, the applicant has acknowledged in the revised venue management plan submitted on 15 January 2024 that the premises do not comply with the identified parts of the National Regulations. Thus in order for the service to be approved, it would require there to be a venue management plan that has been approved by the Regulatory Authority. The applicant has made no challenge to the fact that there has not been a venue management plan approved.
On this basis, the respondent, and the Tribunal standing in the shoes of the respondent “must not grant a service approval”: cl 15(2) of the Supplementary Provisions Regulation 2024. Thus, as the respondent submitted, that would be a sufficient basis upon which to confirm the decision. However, for abundant caution, the Tribunal considered it appropriate to determine Ground Two, notwithstanding the respondent’s contention that Ground Two fell for consideration only if Ground One was determined in the applicant’s favour.
Ground Two
Like Ground One, this ground fell to be determined on the applicant’s own concession that the service could not be found to meet the various statutory exhortations that require an education and care service “to ensure the safety, health and wellbeing of children attending education and care services”: see for example, National Law, s 3(2)(a); s 49(1)(a); s 51(1)(a); s 189. In its submissions dated 10 May 2024, the Applicant stated that “SAAA strongly believes that excessive and narrow emphasis on safety is detrimental to the well-being of children”. And in the summary of argument provided to the Tribunal on 13 August 2024, the applicant submitted: that it was “very unfortunate that the respondent has placed sole emphasis on safety and not acknowledged the significance of wellbeing and unique way of meeting the educational and developmental needs of the children in a cultural context.” (original emphasis).
A similar submission was made orally at the hearing. It is apparent that the applicant did not seek to challenge the respondent’s submission that it (and the Tribunal exercising its merits review jurisdiction) were required to refuse to grant a service approval if “satisfied that the service, if permitted to operate, would constitute an unacceptable risk to the safety, health or wellbeing of children who would be educated or cared for by the education and care service”: National Law s 49(1)(a)). In the absence of any real challenge to that proposition, and in light of the underlying requirement of strict compliance with the statutory scheme, the Tribunal must refuse to grant a service approval in view of the evidence before it which demonstrates ways in which the proposed service would constitute an unacceptable risk to children’s safety.
The acknowledged existence of that risk, in combination with the inadequacies and gaps in the required policies and procedures (including those directed at risk management), also leads the Tribunal to find (see s 47(2)(a); s 49(2) of the National Law and reg 28(1)(a) of the National Regulations) that it is not satisfied that the applicant is capable of operating the proposed service in a way that meets the requirements of the National Law, the National Regulations or the National Quality Standard.
In light of the approach taken by the applicant, and the concessions made about the inability to meet the safety requirement, the Tribunal does not consider it necessary to consider each of the regulatory lacunae in the policies and procedures identified by Ms Greenfield in her evidence outlined above, and in the internal review decision.
Comments