This case was heard by the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel as an appeal against the decision of NCAT to substitute the Department decision to cancel provider approval with an order that conditions on provider approval be imposed. The previous cases were Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 161 and Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 28.
In this case the Department appealed against the previous Tribunal decision on a number (including technical grounds). The appeal Tribunal accepted one of the grounds of appeal (paras. 80-82):
We agree that the Tribunal failed to engage with the Appellant’s case of repeated breaches of the same kind in multiple different educators’ venues on multiple dates, including after May 2020. While the Tribunal accepted that there were systemic failures in compliance by the Respondent [26-27, 61, 98] and referred to the number of breaches after May 2020 [33], it did not grapple with their occurrence and re-occurrence in different venues over many dates. We accept the Appellant’s characterisation of those findings as ‘merely recording the Appellant’s submissions’.
In our view, the Tribunal fell into error in failing to give adequate consideration with this aspect of the Appellant’s case. That failure was material to the decision made because the essence or foundation of the Appellant’s case was systemic. While the Tribunal accepted that there were systemic breaches, the reasons do not disclose that the Tribunal properly considered they occurred in different educator’s venues and continued to occur after being drawn to the attention of the Respondent.
This was a material failure going to the essence of the Appellant’s case.
Accordingly, the Tribunal made the following orders:
The appeal is allowed.
The order made by the Tribunal on 4 May 2021 is set aside.
The proceedings are remitted to a differently constituted Tribunal for determinations based upon the evidence already adduced to the Tribunal and such further evidence, if any, as the Tribunal may allow.
The decision made by the delegate of the appellant on 26 March 2020 to cancel the respondent’s provider approval is stayed until the redetermination of the proceedings by the Tribunal but on the basis that until further order of the tribunal the Respondent complies with the orders made in the Conditions Decision.
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