In Zahra Family Day Care Pty Ltd v Secretary, Department of Education, before the NSW Civil and Administrative Tribunal, the Approved Provider sought for the decisions of the Regulatory Authority under the National Law, Department of Education, to be stayed. In April the NSW Department of Education decided to cancel the provider approval of Zahra with effect from 12 May 2022. On 4 May 2022, the Department affirmed a decision to suspend Zahra’s service approval. On 5 May 2022, Zahra applied to the Tribunal for a review of the cancellation decision. Zahra also sought a stay of the decision to suspend and cancel its authorisation to conduct the service. Extensive non compliance were identified in the cancellation and suspension notices (see paras.14-19 of the decision). The Tribunal decided to stay the decisions, pending a final of the decisions, stating paras. 38-41):
The ultimate determination of the correct and preferable decision must have regard to the best interests of the child who may receive the benefit of the service as paramount. The National Law facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children. The fact that the applicant received service approval to run a Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children.
The applicant says that the administrative review will be rendered nugatory if there is not a stay. The respondent says that there was an unacceptable risk of harm to the children because of the reasons set out above.
A successful review would be useless or futile unless the stay was granted. In all of the circumstances, including that factor, a stay of the operation of a decision pending the review is indicated. The overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances, and the interests of justice in this matter require that the decision not be acted upon until the review is determined.
An order under s 43 of the NCAT Act to stay the operation of the decision is desirable to do so after taking into account the principles in Bentran. In particular it is in the interests of the applicant for the service to continue to operate unimpeded until a final determination is made. It is in the interests of the parents and children for the service to continue to operate until a final decision is made. It is in the public interest for the service to continue to operate provided it operates properly and within the National Law. Since it is in dispute as to whether there is compliance by the applicant with the National Law, in relation to some of the breaches alleged, and there are concessions made in relation to some other breaches alleged the proposals made for remedying those alleged breaches, it is not in the public interest to reach a precipitous and potentially terminal conclusion before considering all of the evidence.
However, the Tribunal granted the sct to a number of conditions (para. 44):
the applicant is prohibited from providing care to any child under the age of three;
the number of family day care educators engaged by or registered with the applicant must not exceed 20;
within five business days of the date of these orders, the applicant is to provide to the respondent a copy of its educator register with no more than 20 educators;
the applicant is not to enrol more than 140 children;
the applicant is to employ at least one full-time qualified family day care co-ordinator for every 10 family day care educators providing education and care to children;
the applicant is not to reinstate any educators whose engagement or registration was previously suspended or terminated;
within 12 business days of the date of these orders, the applicant is to conduct an audit of each registered educator’s sleep and rest practices for compliance with the National Law, including by conducting visits during sleep and rest periods, and provide to the respondent a report setting out the findings of the audit, including any instances of non-compliance;
the applicant is to provide to the respondent a sleep and rest plan for all children to whom it provides education and care within five business days of commencing providing education and care;
within 12 business days the applicant is to provide to the respondent copies of transport authorisations for all children identified in Attachment A to the Cancellation Decision, and who remain in care with the applicant, as having been transported without written authorisation in accordance with the National Regulations;
within 12 business days, the applicant is to provide to the respondent copies of risk assessments for all children identified in Attachment A to the Cancellation Decision, and who remain in care with the applicant, as having been transported without a risk assessment carried out in accordance with the National Regulations; and
the applicant is not to transport any children until certain conditions have been complied with.
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