In Trad v Department of Education (NSW) before the District Court an interesting matter was canvassed. On 14 April 2021, Ms Faten Trad was convicted in the Local Court of two offences against the Children (Education and Care Services) National Law (NSW) (National Law), and one offence against a regulation to the National Law. On 9 November 2022, following a hearing among a number of other appeal, the District Court upheld Ms Trad's appeal and quashed the Local Court's orders (this case was not reported). On 2 May 2023, the District Court received a request from the Department of Education (NSW) that the District Court judge submit a stated case to the Court of Criminal Appeal in respect of a question of law said to arise out of the District Court judgment. By way of background, Kidstart Family Day Care was the approved provider of a family day care service. Ms Trad was the nominated supervisor. On 4 March 2019, a family day care educator, Ms Rateau, placed a baby into a bassinet while the baby was wearing a bib; a sheet and pillow were in the bassinet; and the baby was then unsupervised for between 35 and 45 minutes. This conduct was said to be contrary to all safe sleep practices and known by Ms Rateau to be so. The baby unfortunately died (this was the death of Jack Loh, the subject of previous blog posts). Before the events of 4 March 2019, Ms Trad had made sure Ms Rateau was suitably qualified and received training in relation to safe sleeping practices. Ms Trad visited the premises on a regular basis, conducted inspections and spoke to Ms Rateau in relation to any issues. The District Court, at first instance, found that, given Ms Rateau had full knowledge of the safe sleep practices, her conduct and omissions on the day were the result of momentary inadvertence. The Court found that given her lawful absence from the family day care centre, that is, she was not required to be there, the Court concluded that Ms Trad had no knowledge of the events that occurred on 4 March 2019; and noted that she had not been on notice of any propensity for Ms Rateua to breach safe sleep practices. The Court also found that before then, Ms Trad had personally taken all reasonable precautions she was able to take to protect children at Kidstart. On this basis the Court set aside the conviction imposed by the lower Court.
Subsequent to this judgment the same District Court judge, on 2 May 2023, received a request from the Department of Education (NSW) dated 14 April 2023 that the judge submit a stated case to the Court of Criminal Appeal in respect of a question of law said to arise out of the initial District Court judgment. In a subsequent District Court case the judge heard both parties in relation to this issue. At issue was the scope of section 165(2). The core of the issue issue was whether the liability for breach under section 165(2) is absolute and there is no due diligence defence available and nor is it a defence to show that the breach was "due to the act or default of another person" (as held in ABC Developmental Learning Centres Pty Ltd v Wallace (2007) VR 409; [2007] VSCA 138 at 14, in relation to the previous but similar Victorian legislation which was in effect before the National Law). The District Court decided to refer this question of law to the Court of Criminal Appeal for clarification, as requested by the Department, the judge concluding (para. 54):
In my view, given similar, if not identical legislation, was arguably found by an intermediate court of appeal to impose an absolute liability (albeit on a company rather than, as here, an individual), the proper construction and scope of s165(2), or at least my approach to it, may be characterised as being in doubt.
The NSW Department of Education should be commended for pursuing this matter and that, consequently, a superior court will be given the opportunity to clarify the scope of such offence provisions in the National Law.
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