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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Education and Care Services National Law
(WA) Bill 2011
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used 2
Part 2 -- Application of Education
and Care Services National Law
4. Application of the Education and Care Services
National Law 3
5. Exclusion of legislation of this jurisdiction 3
6. Meaning of generic terms in Education and Care
Services National Law for the purposes of this
jurisdiction 4
7. Relevant tribunal or court 4
8. Regulatory Authority 4
9. Children's services law 5
10. Education law 5
11. Former education and care services law 5
12. Infringements law 6
13. Public sector law 6
14. Working with children law 6
15. Transitional 6
Part 3 -- Other local provisions
16. Tabling of annual report 9
17. National regulations under the WA national law 9
18. Review of Act 9
19. Transitional regulations 10
247--1 page i
Education and Care Services National Law (WA) Bill 2011
Contents
Part 4 -- Amendments to other Acts
Division 1 -- Child Care Services Act 2007
amended
20. Act amended 11
21. Section 3 amended 11
22. Section 4 replaced 11
4. Term used: child care service 11
23. Section 5B inserted 12
5B. Application of this Act to associated
children's services 12
24. Section 38 amended 13
25. Sections 53B, 53C and 53D inserted 13
53B. Regulations may prescribe codes of
practice 13
53C. Preparation of draft code of practice by
CEO 14
53D. Interim code of practice 14
Division 2 -- Children and Community Services
Act 2004 amended
26. Act amended 14
27. Section 3 amended 15
Division 3 -- Civil Liability Act 2002 amended
28. Act amended 15
29. Section 5AAA amended 15
Division 4 -- The Criminal Code amended
30. Act amended 16
31. Section 557K amended 16
Division 5 -- Evidence Act 1906 amended
32. Act amended 16
33. Section 19L amended 16
Division 6 -- Health Act 1911 amended
34. Act amended 17
35. Section 337 amended 17
Division 7 -- School Education Act 1999
amended
36. Act amended 17
37. Section 4 amended 18
38. Section 74A amended 18
74A. Educational programme for children in
their early education period 18
page ii
Education and Care Services National Law (WA) Bill 2011
Contents
39. Section 77 amended 19
40. Section 82 amended 19
41. Section 83 amended 19
42. Section 154 amended 20
43. Section 156 amended 20
44. Section 192 amended 21
45. Section 197 amended 21
46. Section 199 amended 21
47. Schedule 1 Division 1 heading inserted 22
Division 1 -- Transitional provisions for the
commencement of this Act
48. Schedule 1 Division 2 inserted 22
Division 2 -- Transitional provisions for the
Education and Care Services National Law
(WA) Act 2011
24. Term used: commencement 22
25. Registration extended for a period of time 22
Division 8 -- Spent Convictions Act 1988
amended
49. Act amended 22
50. Schedule 3 amended 23
Division 9 -- Working with Children (Criminal
Record Checking) Act 2004 amended
51. Act amended 23
52. Section 4 amended 23
53. Section 5 amended 24
54. Section 38 amended 24
Schedule -- Education and Care
Services National Law
Part 1 -- Preliminary
1. Short title 26
2. Commencement 26
3. Objectives and guiding principles 26
4. How functions to be exercised 27
5. Definitions 27
6. Interpretation generally 36
7. Single national entity 36
8. Extraterritorial operation of Law 36
9. Law binds the State 37
page iii
Education and Care Services National Law (WA) Bill 2011
Contents
Part 2 -- Provider approval
Division 1 -- Application for provider approval
10. Application for provider approval 37
11. Form of application 38
12. Applicant must be fit and proper person 38
13. Matters to be taken into account in assessing
whether fit and proper person 39
14. Regulatory Authority may seek further information 40
15. Grant or refusal of provider approval 40
16. Notice of decision on application 41
17. Duration of provider approval 41
18. Effect of provider approval 41
19. Conditions on provider approval 41
20. Copy of provider approval 42
Division 2 -- Reassessment
21. Reassessment of fitness and propriety 42
Division 3 -- Amendment of provider approvals
22. Amendment of provider approval on application 43
23. Amendment of provider approval by Regulatory
Authority 43
24. Copy of amended provider approval to be provided 44
Division 4 -- Suspension or cancellation of provider
approval
25. Grounds for suspension of provider approval 44
26. Show cause notice before suspension 45
27. Decision to suspend after show cause process 46
28. Suspension without show cause notice 46
29. Notice and taking effect of suspension 46
30. Effect of suspension 46
31. Grounds for cancellation of provider approval 47
32. Show cause notice before cancellation 48
33. Decision in relation to cancellation 48
34. Effect of cancellation 48
35. Approved provider to provide information to
Regulatory Authority 49
36. Notice to parents of suspension or cancellation 50
37. Voluntary suspension of provider approval 50
38. Surrender of provider approval by approved
provider 51
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Education and Care Services National Law (WA) Bill 2011
Contents
Division 5 -- Approval of executor, representative or
guardian as approved provider
39. Death of approved provider 52
40. Incapacity of approved provider 53
41. Decision on application 53
Division 6 -- Exercise of powers by another
Regulatory Authority
42. Exercise of powers by another Regulatory
Authority 54
Part 3 -- Service approval
Division 1 -- Application for service approval
43. Application for service approval 55
44. Form of application 55
45. Regulatory Authority may seek further information 56
46. Investigation of application for service approval 56
47. Determination of application 56
48. Grant or refusal of service approval 57
49. Grounds for refusal 58
50. Notice of decision on application 59
51. Conditions on service approval 59
52. Copy of service approval to be provided 60
53. Annual fee 60
Division 2 -- Amendment of service approval
54. Amendment of service approval on application 61
55. Amendment of service approval by Regulatory
Authority 62
56. Notice of change to nominated supervisor 62
57. Copy of amended service approval to be provided 63
Division 3 -- Transfer of service approval
58. Service approval may be transferred 63
59. Regulatory Authority to be notified of transfer 63
60. Consent of Regulatory Authority required for
transfer 64
61. Consent taken to be given unless Regulatory
Authority intervenes 64
62. Transfer may be subject to intervention by
Regulatory Authority 64
63. Effect of intervention 65
64. Regulatory Authority may request further
information 65
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Education and Care Services National Law (WA) Bill 2011
Contents
65. Decision after intervention 65
66. Regulatory Authority to notify outcome 7 days
before transfer 66
67. Transfer of service approval without consent is
void 66
68. Confirmation of transfer 67
69. Notice to parents 67
Division 4 -- Suspension or cancellation of service
approval
70. Grounds for suspension of service approval 68
71. Show cause notice before suspension 69
72. Decision in relation to suspension 69
73. Suspension of service approval without show cause 69
74. Notice and effect of decision 70
75. Suspension of service approval to the extent that it
relates to associated children's service 70
76. Transfer of suspended service 71
77. Grounds for cancellation of service approval 71
78. Show cause notice before cancellation 71
79. Decision in relation to cancellation 72
80. Cancellation of service approval to the extent that
it relates to associated children's service 72
81. Application for transfer of cancelled service 73
82. Decision on application to transfer cancelled
service 73
83. Approved provider to provide information to
Regulatory Authority 74
84. Notice to parents of suspension or cancellation 74
85. Voluntary suspension of service approval 74
86. Surrender of service approval 75
Division 5 -- Application for service waiver
87. Application for service waiver for service 76
88. Form of application 76
89. Powers of Regulatory Authority in considering
application 76
90. Matters to be considered 77
91. Decision on application 77
92. Revocation of service waiver 77
93. Effect of service waiver 78
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Education and Care Services National Law (WA) Bill 2011
Contents
Division 6 -- Temporary waiver
94. Application for temporary waiver 78
95. Form of application 78
96. Regulatory Authority may seek further information 78
97. Special circumstances 78
98. Decision on application 79
99. Revocation of temporary waiver 79
100. Effect of temporary waiver 79
Division 7 -- Exercise of powers by another
Regulatory Authority
101. Exercise of powers by another Regulatory
Authority -- family day care services 80
Division 8 -- Associated children's services
102. Application of this Law to associated children's
services 80
Division 9 -- Offences
103. Offence to provide an education and care service
without service approval 80
104. Offence to advertise education and care service
without service approval 81
Part 4 -- Supervisor certificates
Division 1 -- Application for supervisor certificate
105. Purpose of supervisor certificate 81
106. Application for supervisor certificate 81
107. Form of application 82
108. Applicant must satisfy Regulatory Authority of
specified matters 82
109. Matters to be taken into account in assessing
whether fit and proper person 82
110. Regulatory Authority may seek further information 83
111. Grant or refusal of supervisor certificate 84
112. Grounds for refusal 84
113. Notice of decision on application 85
114. Grant of supervisor certificate to specified classes
of persons 85
115. Conditions on certificate 85
116. Issue of certificate 86
117. Effect of supervisor certificate 86
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Education and Care Services National Law (WA) Bill 2011
Contents
Division 2 -- Reassessment
118. Reassessment of suitability 86
Division 3 -- Amendment of supervisor certificate
119. Amendment of supervisor certificate on
application 86
120. Amendment of supervisor certificate by
Regulatory Authority 87
121. Notice of change of circumstances 88
122. Notice of change of information 88
Division 4 -- Suspension or cancellation of
supervisor certificate
123. Grounds for suspension or cancellation of
supervisor certificate 88
124. Show cause notice before suspension or
cancellation 89
125. Decision in relation to suspension or cancellation 89
126. Suspension of supervisor certificate without show
cause notice 89
127. Notice and taking effect of suspension or
cancellation 90
128. Suspension or cancellation of certain supervisor
certificates 90
129. Voluntary suspension of supervisor certificate 90
130. Surrender of a supervisor certificate by certified
supervisor 91
Division 5 -- Exercise of powers by another
Regulatory Authority
131. Exercise of powers by another Regulatory
Authority 91
Division 6 -- Offence
132. Offence to act as supervisor without supervisor
certificate 92
Part 5 -- Assessments and ratings
Division 1 -- Assessment and rating
133. Assessment for rating purposes 92
134. Rating levels 92
135. Rating of approved education and care service 92
136. Notice to approved education and care service of
rating 93
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Education and Care Services National Law (WA) Bill 2011
Contents
137. Suspension of rating assessment 93
Division 2 -- Reassessment and re-rating
138. Regulatory Authority may reassess and re-rate
approved education and care service 94
139. Application for reassessment and re-rating by
approved provider 94
140. Application of Division 1 95
Division 3 -- Review by Regulatory Authority
141. Review by Regulatory Authority 95
142. Process for review 95
143. Outcome of review by Regulatory Authority 96
Division 4 -- Review by Ratings Review Panel
Subdivision 1 -- Application for review
144. Application for further review by Ratings Review
Panel 97
145. Form and time of application 97
Subdivision 2 -- Establishment of Ratings Review
Panel
146. Establishment of Ratings Review Panel 98
147. Review Panel pool 98
148. Procedure of Panel 98
149. Transaction of business by alternative means 99
Subdivision 3 -- Conduct of review
150. Conduct of review 99
151. Decision on review by Ratings Review Panel 100
Division 5 -- Awarding of highest rating
152. Application for highest rating 101
153. Assessment of education and care service 102
154. Board may seek information and documents 102
155. Decision on application 102
156. Notice of decision 103
157. Reassessment of highest rating level 103
158. Revocation of highest rating level 103
159. Re-application for highest rating level 104
Division 6 -- Publication of rating levels
160. Publication of ratings 104
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Education and Care Services National Law (WA) Bill 2011
Contents
Part 6 -- Operating an education and care
service
161. Offence to operate education and care service
without nominated supervisor 105
162. Offence to operate education and care service
unless responsible person is present 105
163. Offence relating to appointment or engagement of
family day care co-ordinators 105
164. Offence relating to assistance to family day care
educators 106
165. Offence to inadequately supervise children 106
165A. Offence relating to children leaving the education
and care service premises unauthorised 107
166. Offence to use inappropriate discipline 108
167. Offence relating to protection of children from
harm and hazards 109
168. Offence relating to required programs 110
169. Offence relating to staffing arrangements 110
170. Offence relating to unauthorised persons on
education and care service premises 112
171. Offence relating to direction to exclude
inappropriate persons from education and care
service premises 113
172. Offence to fail to display prescribed information 114
173. Offence to fail to notify certain circumstances to
Regulatory Authority 114
174. Offence to fail to notify certain information to
Regulatory Authority 116
175. Offence relating to requirement to keep enrolment
and other documents 117
Part 7 -- Compliance with this Law
Division 1 -- Notices
176. Compliance directions 118
177. Compliance notices 118
178. Notice to suspend education and care by a family
day care educator 118
179. Emergency action notices 120
Division 2 -- Enforceable undertakings
180. Enforceable undertakings 120
181. Failure to comply with enforceable undertakings 121
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Education and Care Services National Law (WA) Bill 2011
Contents
Division 3 -- Prohibition notices
182. Grounds for issuing prohibition notice 122
183. Show cause notice to be given before prohibition
notice 122
184. Deciding whether to issue prohibition notice 123
185. Content of prohibition notice 123
186. Cancellation of prohibition notice 123
187. Person must not contravene prohibition notice 124
188. Offence to engage person to whom prohibition
notice applies 124
Division 3A -- Disciplinary action
188A. Persons against whom disciplinary action may be
taken 125
188B. Disciplinary action 125
188C. Limitation on section 188B(3)(b) 126
Division 4 -- Emergency removal of children
189. Emergency removal of children 127
Part 8 -- Review
Division 1 -- Internal review
190. Reviewable decision -- internal review 127
191. Internal review of reviewable decisions 128
Division 2 -- External review
192. Reviewable decision -- external review 129
193. Application for review of decision of the
Regulatory Authority 130
Division 3 -- General
194. Relationship with Act establishing administrative
body 130
Part 9 -- Monitoring and enforcement
Division 1 -- Authorised officers
195. Authorisation of authorised officers 130
196. Identity card 131
Division 2 -- Powers of entry
197. Powers of entry for assessing and monitoring
approved education and care service 132
198. National Authority representative may enter
service premises in company with Regulatory
Authority 133
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Education and Care Services National Law (WA) Bill 2011
Contents
199. Powers of entry for investigating approved
education and care service 133
200. Powers of entry to business premises 134
201. Entry to premises with search warrant 135
202. Seized items 136
203. Court may extend period 136
Division 3 -- Other powers
204. Power to require name and address 137
205. Power to require evidence of age, name and
address of person 137
206. Power of authorised officers to obtain information
documents and evidence 138
Division 4 -- Offences relating to enforcement
207. Offence to obstruct authorised officer 139
208. Offence to fail to assist authorised officer 139
209. Offence to destroy or damage notices or
documents 140
210. Offence to impersonate authorised officer 140
211. Protection against self incrimination 140
212. Warning to be given 141
213. Occupier's consent to search 141
Division 5 -- Powers of Regulatory Authority
214. Powers of Regulatory Authority to obtain
information for rating purposes 141
215. Power of Regulatory Authority to obtain
information, documents and evidence by notice 142
216. Power of Regulatory Authority to obtain
information, documents and evidence at education
and care service 143
217. Offence to fail to comply with notice or
requirement 143
218. Offence to hinder or obstruct Regulatory Authority 143
219. Self incrimination not an excuse 144
Part 10 -- Ministerial Council
220. Functions of Ministerial Council 144
221. Powers of Ministerial Council 145
222. Directions 146
223. How Ministerial Council exercises powers 147
page xii
Education and Care Services National Law (WA) Bill 2011
Contents
Part 11 -- Australian Children's Education and
Care Quality Authority
Division 1 -- The National Authority
224. National Authority 147
225. Functions of National Authority 147
226. National Authority may advise and seek guidance
of Ministerial Council 149
227. Powers of National Authority 149
228. Co-operation with participating jurisdictions and
Commonwealth 150
229. National audit functions 151
Division 2 -- The Board of the National Authority
Subdivision 1 -- Establishment and responsibilities
230. National Authority Board 151
231. Responsibilities of Board 151
232. Membership of Board 152
Subdivision 2 -- Members
233. Terms of office of members 153
234. Remuneration 153
235. Vacancy in the office of member 153
236. Acting positions 155
237. Leave of absence 156
238. Disclosure of conflict of interest 156
Subdivision 3 -- Procedure of Board
239. General procedure 157
240. Quorum 157
241. Chief executive officer may attend meetings of the
Board 158
242. Presiding member 158
243. Voting 158
244. Defects in appointment of members 158
245. Transaction of business by alternative means 159
246. Delegation by Board 159
247. Committees 160
Subdivision 4 -- Chief executive officer of the
National Authority
248. Chief executive officer 160
249. Functions of chief executive officer 161
250. Terms and conditions of appointment 161
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Education and Care Services National Law (WA) Bill 2011
Contents
251. Remuneration 162
252. Vacancy in office 162
253. Resignation 162
254. Termination of appointment 162
255. Acting chief executive officer 163
256. Disclosure of interests 163
Subdivision 5 -- Staff, consultants and contractors
257. Staff of National Authority 164
258. Staff seconded to National Authority 164
259. Consultants and contractors 164
Part 12 -- Regulatory Authority
260. Functions of Regulatory Authority 164
261. Powers of Regulatory Authority 165
262. Delegations 166
Part 13 -- Information, records and privacy
Division 1 -- Privacy
263. Application of Commonwealth Privacy Act 166
Division 2 -- Application of Commonwealth FOI Act
264. Application of Commonwealth FOI Act 167
Division 3 -- Application of New South Wales State
Records Act
265. Application of State Records Act 168
Division 4 -- Registers
266. Register of approved providers 169
267. Register of education and care services 169
268. Register of certified supervisors 170
269. Register of family day care educators 170
Division 5 -- Publication of information
270. Publication of information 170
Division 6 -- Disclosure of information
271. Disclosure of information to other authorities 172
272. Disclosure of information to education and care
services 173
273. Duty of confidentiality 174
Part 14 -- Miscellaneous
Division 1 -- Finance
274. Australian Children's Education and Care Quality
Authority Fund 175
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Education and Care Services National Law (WA) Bill 2011
Contents
275. Payments into Authority Fund 175
276. Payments out of Authority Fund 176
277. Investment of money in Authority Fund 176
278. Financial management duties of National
Authority 176
Division 2 -- Reporting
279. Annual report 177
280. Tabling and publication of annual report 178
281. Other reporting 178
Division 3 -- Application of Commonwealth
Ombudsman Act
282. Application of Commonwealth Ombudsman Act 179
Division 4 -- Legal proceedings
283. Who may bring proceedings for an offence? 179
284. When proceedings may be brought 180
285. Offences by bodies corporate 180
286. Application of Law to partnerships and eligible
associations and other entities 180
287. Multiple holders of an approval 181
288. Double jeopardy 181
289. Immunity 181
290. Immunity -- education law 182
291. Infringement offences 182
292. Evidentiary certificates 183
Division 5 -- Service of notices
293. Service of notices 184
294. Service by post 185
Division 6 -- False or misleading information
295. False or misleading information or documents 186
Division 7 -- Protection from reprisal
296. Definitions 186
297. Protection from reprisal 187
298. Proceedings for damages for reprisal 187
299. Application for injunction or order 188
300. Injunction or order 188
Division 8 -- National regulations
301. National regulations 188
302. Publication of national regulations 191
303. Parliamentary scrutiny of national regulations 191
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Education and Care Services National Law (WA) Bill 2011
Contents
304. Effect of disallowance of national regulation 191
Part 15 -- Transitional provisions
Division 1 -- Introductory
305. Definitions 191
Division 2 -- Education and care services
306. Approved provider 193
307. Service approvals 194
308. Approved family day care venues 195
309. Approval of declared out of scope services 195
310. Application for service waiver or temporary waiver 195
311. Existing applicants 196
312. Existing multiple approvals to merge 196
313. Display of accreditation and rating 197
314. Effect of non-compliance in 3 years before scheme
commencement day 197
315. Certified supervisors 198
316. Nominated supervisors 198
317. Notices and undertakings 199
318. Offences 199
Division 3 -- National Authority
319. First meeting of National Authority 199
320. First chief executive officer of National Authority 199
321. First annual report of National Authority 199
Division 4 -- General
322. Information retention and sharing 200
323. Approved learning framework 200
324. Savings and transitional regulations 201
Schedule 1 -- Miscellaneous provision relating
to interpretation
Part 1 -- Preliminary
1. Displacement of Schedule by contrary intention 202
Part 2 -- General
2. Law to be construed not to exceed legislative
power of Legislature 202
3. Every section to be a substantive enactment 202
4. Material that is, and is not, part of this Law 202
5. References to particular Acts and to enactments 203
6. References taken to be included in Act or Law
citation etc 203
page xvi
Education and Care Services National Law (WA) Bill 2011
Contents
7. Interpretation best achieving Law's purpose 204
8. Use of extrinsic material in interpretation 204
9. Effect of change of drafting practice and use of
examples 206
10. Use of examples 206
11. Compliance with forms 206
11A. Penalty at end of provision 207
Part 3 -- Terms and references
12. Definitions 207
13. Provisions relating to defined terms and gender
and number 211
14. Meaning of "may" and "must" etc. 212
15. Words and expressions used in statutory
instruments 212
16. Effect of express references to bodies corporate
and individuals 212
17. Production of records kept in computers etc. 212
18. References to this jurisdiction to be implied 213
19. References to officers and holders of offices 213
20. Reference to certain provisions of Law 213
21. Reference to provisions of this Law or an Act is
inclusive 214
Part 4 -- Functions and powers
22. Performance of statutory functions 215
23. Power to make instrument or decision includes
power to amend or repeal 215
24. Matters for which statutory instruments may make
provision 215
25. Presumption of validity and power to make 217
26. Appointments may be made by name or office 217
27. Acting appointments 217
28. Powers of appointment imply certain incidental
powers 219
29. Delegation of functions 219
30. Exercise of powers between enactment and
commencement 221
Part 5 -- Distance, time and age
31. Matters relating to distance, time and age 224
Part 6 -- Effect of repeal, amendment or expiration
32. Time of Law ceasing to have effect 225
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Education and Care Services National Law (WA) Bill 2011
Contents
33. Repealed Law provisions not revived 225
34. Saving of operation of repealed Law provisions 225
35. Continuance of repealed provisions 226
36. Law and amending Acts to be read as one 226
Part 7 -- Instruments under Law
37. Schedule applies to statutory instruments 226
Part 8 -- Application to coastal sea
38. Application 227
Schedule 2 -- Powers of entry by search
warrant
1. Application for warrant 227
2. Issue of warrant 227
3. Application by electronic communication 228
4. Procedure before entry under warrant 230
5. Powers after entering premises 230
Defined Terms
page xviii
Western Australia
LEGISLATIVE ASSEMBLY
Education and Care Services National Law
(WA) Bill 2011
A Bill for
An Act to --
• provide for a national scheme regarding the regulation of
education and care services for children; and
• make consequential and other amendments to various other
Acts,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Education and Care Services National Law (WA) Bill 2011
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Education and Care Services National Law (WA)
4 Act 2011.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) sections 1 and 2 -- on the day on which this Act
8 receives the Royal Assent (assent day);
9 (b) Part 4 Division 3 --
10 (i) on a day fixed by proclamation; or
11 (ii) if the day fixed under subparagraph (i) is before
12 the day on which the Health, Safety and Civil
13 Liability (Children in Schools and Child Care
14 Services) Act 2011 Part 2 (Part 2) comes into
15 operation -- immediately after Part 2 comes into
16 operation;
17 (c) the rest of the Act -- on a day fixed by proclamation,
18 and different days may be fixed for different provisions.
19 3. Terms used
20 (1) For the purposes of this Act, the local application provisions of
21 this Act are the provisions of this Act other than the Education
22 and Care Services National Law set out in the Schedule.
23 (2) In the local application provisions of this Act --
24 Education and Care Services National Law (Western
25 Australia) means the provisions applying in this jurisdiction
26 because of section 4.
27 (3) If a term is given a meaning in the Education and Care Services
28 National Law set out in the Schedule, it has the same meaning
29 in the local application provisions of this Act.
page 2
Education and Care Services National Law (WA) Bill 2011
Application of Education and Care Services National Law Part 2
s. 4
1 Part 2 -- Application of Education and Care Services
2 National Law
3 4. Application of the Education and Care Services
4 National Law
5 The Education and Care Services National Law set out in the
6 Schedule --
7 (a) applies as a law of this jurisdiction; and
8 (b) as so applying, may be referred to as the Education and
9 Care Services National Law (Western Australia); and
10 (c) as so applying, is part of this Act.
11 5. Exclusion of legislation of this jurisdiction
12 (1) Except as provided in section 17, the following Acts of this
13 jurisdiction do not apply to the Education and Care Services
14 National Law (Western Australia) or to the instruments made
15 under that Law --
16 (a) the Freedom of Information Act 1992;
17 (b) the Interpretation Act 1984.
18 (2) The following Acts of this jurisdiction do not apply to the
19 Education and Care Services National Law (Western Australia)
20 or to the instruments made under that Law, except to the extent
21 that that Law and those instruments apply to the Regulatory
22 Authority and the employees, decisions, actions and records of
23 the Regulatory Authority --
24 (a) the Auditor General Act 2006;
25 (b) the Financial Management Act 2006;
26 (c) the Parliamentary Commissioner Act 1971;
27 (d) the Public Sector Management Act 1994;
28 (e) the State Records Act 2000.
page 3
Education and Care Services National Law (WA) Bill 2011
Part 2 Application of Education and Care Services National Law
s. 6
1 6. Meaning of generic terms in Education and Care Services
2 National Law for the purposes of this jurisdiction
3 In the Education and Care Services National Law (Western
4 Australia) --
5 child protection law means the Children and Community
6 Services Act 2004;
7 court means the Magistrates Court of Western Australia
8 established under the Magistrates Court Act 2004;
9 de facto relationship has the meaning given in the
10 Interpretation Act 1984 section 13A;
11 local authority means a local government established under the
12 Local Government Act 1995;
13 magistrate means a magistrate within the meaning of the
14 Magistrates Court Act 2004;
15 public authority has the meaning given in the Child Care
16 Services Act 2007 section 3;
17 registered teacher has the meaning given in the Western
18 Australian College of Teaching Act 2004 section 3(1);
19 superior court means the Supreme Court of Western Australia;
20 this jurisdiction means Western Australia.
21 7. Relevant tribunal or court
22 For the purposes of the definition of relevant tribunal or court
23 in the Education and Care Services National Law (Western
24 Australia) section 5, the State Administrative Tribunal is
25 declared to be the relevant tribunal or court for this jurisdiction
26 for the purposes of that Law.
27 8. Regulatory Authority
28 For the purposes of the definition of Regulatory Authority in
29 the Education and Care Services National Law (Western
30 Australia) section 5, the chief executive officer of the
31 department principally assisting in the administration of the
page 4
Education and Care Services National Law (WA) Bill 2011
Application of Education and Care Services National Law Part 2
s. 9
1 Child Care Services Act 2007 is declared to be the regulatory
2 authority for this jurisdiction for the purposes of that Law.
3 9. Children's services law
4 (1) For the purposes of the definition of children's services law in
5 the Education and Care Services National Law (Western
6 Australia) section 5, the Child Care Services Act 2007 and the
7 regulations made under that Act are declared to be a children's
8 services law for this jurisdiction for the purposes of that Law.
9 (2) For the purposes of the definition of children's services
10 regulator in the Education and Care Services National Law
11 (Western Australia) section 5, the chief executive officer of the
12 department principally assisting in the administration of the
13 Child Care Services Act 2007 is declared to be a children's
14 services regulator for this jurisdiction for the purposes of that
15 Law.
16 10. Education law
17 For the purposes of the definition of education law in the
18 Education and Care Services National Law (Western Australia)
19 section 5, the School Education Act 1999 and the regulations
20 made under that Act and the Western Australian College of
21 Teaching Act 2004 and the regulations made under that Act are
22 declared to be an education law for this jurisdiction for the
23 purposes of that Law.
24 11. Former education and care services law
25 For the purposes of the definition of former education and care
26 services law in the Education and Care Services National Law
27 (Western Australia) section 5, the Child Care Services Act 2007
28 and the regulations made under that Act (both as in force
29 immediately before the commencement of the Education and
30 Care Services National Law (Western Australia) Part 3) are
31 declared to be a former education and care services law for this
32 jurisdiction for the purposes of that Law.
page 5
Education and Care Services National Law (WA) Bill 2011
Part 2 Application of Education and Care Services National Law
s. 12
1 12. Infringements law
2 For the purposes of the definition of infringements law in the
3 Education and Care Services National Law (Western Australia)
4 section 5, the Criminal Procedure Act 2004 Part 2 and the
5 regulations made for the purposes of that Part of that Act are
6 declared to be an infringements law for this jurisdiction for the
7 purposes of that Law.
8 13. Public sector law
9 For the purposes of the definition of public sector law in the
10 Education and Care Services National Law (Western Australia)
11 section 5, the Public Sector Management Act 1994 and the
12 regulations made under that Act are declared to be a public
13 sector law for this jurisdiction for the purposes of that Law.
14 14. Working with children law
15 For the purposes of the definition of working with children law
16 in the Education and Care Services National Law (Western
17 Australia) section 5, the Working with Children (Criminal
18 Record Checking) Act 2004 and the regulations made under that
19 Act are declared to be a working with children law for this
20 jurisdiction for the purposes of that Law.
21 15. Transitional
22 (1) For the purposes of the definition of declared approved
23 provider in the Education and Care Services National Law
24 (Western Australia) section 305, a person who held a licence,
25 other than a licence to provide a family day care service, under
26 the Child Care Services Act 2007 is declared to be a declared
27 approved provider for this jurisdiction for the purposes of that
28 Law.
29 (2) For the purposes of the definition of declared approved service
30 in the Education and Care Services National Law (Western
31 Australia) section 305, a service to which a licence to provide a
32 child care service, other than a licence to provide a family day
page 6
Education and Care Services National Law (WA) Bill 2011
Application of Education and Care Services National Law Part 2
s. 15
1 care service, applied under the Child Care Services Act 2007 is
2 declared to be a declared approved service for this jurisdiction
3 for the purposes of that Law.
4 (3) For the purposes of the definition of declared certified
5 supervisor in the Education and Care Services National Law
6 (Western Australia) section 305, the following persons are
7 declared to be declared certified supervisors for this jurisdiction
8 for the purposes of that Law --
9 (a) for a declared approved service, a person who was a
10 supervising officer under the Child Care Services
11 Act 2007 for that service;
12 (b) for a declared out of scope service, a person recognised
13 as the coordinator of the service by the National
14 Childcare Accreditation Council Inc.
15 (4) For the purposes of the definition of declared nominated
16 supervisor in the Education and Care Services National Law
17 (Western Australia) section 305, the following persons are
18 declared to be declared nominated supervisors for this
19 jurisdiction for the purposes of that Law --
20 (a) for a declared approved service, a person who was a
21 supervising officer under the Child Care Services
22 Act 2007 for that service;
23 (b) for a declared out of scope service, a person recognised
24 as the coordinator of the service by the National
25 Childcare Accreditation Council Inc.
26 (5) For the purposes of the definition of declared out of scope
27 service in the Education and Care Services National Law
28 (Western Australia) section 305, a service that --
29 (a) was delivered through the use of 2 or more individuals
30 who each held a licence to provide a family day care
31 service under the Child Care Services Act 2007; and
page 7
Education and Care Services National Law (WA) Bill 2011
Part 2 Application of Education and Care Services National Law
s. 15
1 (b) provided education and care for children in residences
2 whether or not the service also provided education and
3 care to children at a place other than a residence,
4 is declared to be a declared out of scope service for this
5 jurisdiction for the purposes of that Law.
6 (6) For the purposes of the definition of former approval in the
7 Education and Care Services National Law (Western Australia)
8 section 305, a licence to provide a child care service, other than
9 a licence to provide a family day care service, under the Child
10 Care Services Act 2007 is declared to be a former approval for
11 this jurisdiction for the purposes of that Law.
page 8
Education and Care Services National Law (WA) Bill 2011
Other local provisions Part 3
s. 16
1 Part 3 -- Other local provisions
2 16. Tabling of annual report
3 In addition to the requirements of the Education and Care
4 Services National Law (Western Australia) section 280, the
5 Minister must cause the annual report of the National Authority,
6 and the report of the public sector auditor with respect to the
7 financial statement in the report, to be laid before each House of
8 the Western Australian Parliament as soon as is practicable after
9 those reports have been tabled under that section.
10 17. National regulations under the WA national law
11 Where regulations may be made under the Education and Care
12 Services National Law (Western Australia) section 301 by the
13 Governor --
14 (a) the Governor means the Governor of Western Australia
15 and includes the officer for the time being administering
16 the Government of Western Australia; and
17 (b) the Interpretation Act 1984 sections 41, 42 and 60 apply
18 to, and in respect of the making of, regulations by the
19 Governor under that section.
20 18. Review of Act
21 (1) The Minister is to carry out a review of the operation and
22 effectiveness of this Act as soon as is practicable after the
23 expiration of 5 years from the commencement of this section.
24 (2) The Minister is to prepare a report based on the review carried
25 out under subsection (1) and is to cause the report to be laid
26 before each House of the Western Australian Parliament as soon
27 as is practicable after the report is prepared, and in any event,
28 not later than 12 months after the requirement to carry out the
29 review arose.
page 9
Education and Care Services National Law (WA) Bill 2011
Part 3 Other local provisions
s. 19
1 19. Transitional regulations
2 (1) If there is no sufficient provision in this Act for dealing with a
3 transitional matter the Governor may make regulations
4 prescribing all matters that are required, necessary or convenient
5 to be prescribed in relation to that matter.
6 (2) Regulations made under subsection (1) may provide that
7 specific provisions of the Education and Care Services National
8 Law (Western Australia) --
9 (a) do not apply; or
10 (b) apply with specific modifications,
11 to or in relation to any matter.
12 (3) If regulations made under subsection (1) provide that a specified
13 state of affairs is to be taken to have existed, or not to have
14 existed, on and from a day that is earlier than the day on which
15 the regulations are published in the Gazette but not earlier than
16 the day on which section 2 commenced, the regulations have
17 effect according to their terms.
18 (4) In subsection (3) --
19 specified means specified or described in the regulations.
20 (5) If regulations contain a provision referred to in subsection (3),
21 the provision does not operate so as --
22 (a) to affect in a manner prejudicial to any person (other
23 than the State or an authority of the State), the right of
24 that person existing before the day of publication of
25 those regulations; or
26 (b) to impose liabilities on any person (other than the State
27 or an authority of the State) in respect of anything done
28 or omitted to be done before the day of publication of
29 those regulations.
30 (6) Regulations made under this section must be made within
31 12 months after the day on which this section commenced.
page 10
Education and Care Services National Law (WA) Bill 2011
Amendments to other Acts Part 4
Child Care Services Act 2007 amended Division 1
s. 20
1 Part 4 -- Amendments to other Acts
2 Division 1 -- Child Care Services Act 2007 amended
3 20. Act amended
4 This Division amends the Child Care Services Act 2007.
5 21. Section 3 amended
6 (1) In section 3 delete the definition of family day care service.
7 (2) In section 3 insert in alphabetical order:
8
9 family day care service means a type of child care
10 service prescribed as a family day care service for the
11 purposes of this Act;
12 national child care law means the Education and Care
13 Services National Law (Western Australia);
14
15 22. Section 4 replaced
16 Delete section 4 and insert:
17
18 4. Term used: child care service
19 For the purposes of this Act, a child care service is a
20 service providing or intended to provide education and
21 care on a regular basis to children under 13 years of
22 age (or such other age as may be prescribed for the
23 purposes of this section) that --
24 (a) is not an education and care service under the
25 national child care law; and
26 (b) is prescribed for the purposes of this Act as a
27 type of service to which this Act applies.
28
page 11
Education and Care Services National Law (WA) Bill 2011
Part 4 Amendments to other Acts
Division 1 Child Care Services Act 2007 amended
s. 23
1 23. Section 5B inserted
2 Before section 5 insert:
3
4 5B. Application of this Act to associated children's
5 services
6 (1) This Act does not apply to a child care service that is
7 an associated children's service to the extent to which
8 the national child care law applies to that service.
9 (2) Subject to subsection (1), this Act applies in relation to
10 an associated children's service provided at a place as
11 if --
12 (a) a service approval in relation to the associated
13 children's service, were a licence under this Act
14 authorising the provision of the child care
15 service at that place; and
16 (b) an approved provider who is the holder of a
17 service approval in relation to the associated
18 children's service, were a holder of a licence
19 under this Act authorising the provision of the
20 child care service at that place; and
21 (c) a person with management or control in relation
22 to the associated children's service, the
23 approved provider for which is a body
24 corporate, were a managerial officer of the
25 body corporate; and
26 (d) a nominated supervisor in relation to the
27 associated children's service, were a
28 supervising officer for the child care service.
29 (3) Instead of amending a service approval, under
30 section 32 as read with subsection (2), in relation to an
31 associated children's service, the CEO is to direct the
page 12
Education and Care Services National Law (WA) Bill 2011
Amendments to other Acts Part 4
Child Care Services Act 2007 amended Division 1
s. 24
1 Regulatory Authority to amend the service approval
2 under section 55(5) of the national child care law.
3 (4) If a term is given a meaning in the national child care
4 law, it has the same meaning in this section.
5
6 24. Section 38 amended
7 (1) In section 38(1) in the definition of corresponding authority
8 delete "Act;" and insert:
9
10 Act or the national child care law;
11
12 (2) In section 38(1) in the definition of relevant information in
13 paragraph (b) delete "Act." and insert:
14
15 Act or the national child care law.
16
17 25. Sections 53B, 53C and 53D inserted
18 Before section 53 insert:
19
20 53B. Regulations may prescribe codes of practice
21 (1) Regulations made under section 52 may prescribe a
22 code of practice to apply in relation to the provision of
23 child care services or a particular type, or types, of
24 child care service.
25 (2) A code of practice prescribed by the regulations must
26 have been --
27 (a) submitted to the Minister in accordance with
28 section 53C; and
page 13
Education and Care Services National Law (WA) Bill 2011
Part 4 Amendments to other Acts
Division 2 Children and Community Services Act 2004 amended
s. 26
1 (b) approved by the Minister with or without
2 amendments.
3 53C. Preparation of draft code of practice by CEO
4 (1) The CEO may, with the approval of the Minister,
5 prepare a draft code of practice for submission to the
6 Minister for consideration.
7 (2) The CEO must, if the Minister directs, prepare a draft
8 code of practice for submission to the Minister for
9 consideration.
10 (3) For the purpose of preparing a draft code of practice,
11 the CEO must arrange for consultation with, and invite
12 submissions from, persons and organisations that the
13 CEO considers would have an interest in the terms of
14 the proposed draft code.
15 53D. Interim code of practice
16 (1) The regulations may prescribe a code of practice even
17 though the procedures set out in section 53C(3) have
18 not been followed or completed.
19 (2) A code of practice prescribed under this section is an
20 interim code of practice, and has effect only for the
21 period (not exceeding 6 months) specified in the
22 regulations.
23
24 Division 2 -- Children and Community Services
25 Act 2004 amended
26 26. Act amended
27 This Division amends the Children and Community Services
28 Act 2004.
page 14
Education and Care Services National Law (WA) Bill 2011
Amendments to other Acts Part 4
Civil Liability Act 2002 amended Division 3
s. 27
1 27. Section 3 amended
2 In section 3 insert in alphabetical order:
3
4 child care services means --
5 (a) any education and care service as defined in the
6 Education and Care Services National Law
7 (Western Australia) section 5(1); or
8 (b) any child care service as defined in the Child
9 Care Services Act 2007 section 4;
10
11 Division 3 -- Civil Liability Act 2002 amended
12 28. Act amended
13 This Division amends the Civil Liability Act 2002.
14 29. Section 5AAA amended
15 (1) In section 5AAA delete the definition of child care service and
16 insert:
17
18 child care service means --
19 (a) an education and care service as defined in the
20 Education and Care Services National Law
21 (Western Australia) section 5(1); or
22 (b) a child care service as defined in the Child Care
23 Services Act 2007 section 4;
24
25 (2) In section 5AAA in the definition of staff member after
26 paragraph (c) insert:
27
28 (da) a nominated supervisor as defined in the
29 Education and Care Services National Law
30 (Western Australia) section 5(1); or
31
page 15
Education and Care Services National Law (WA) Bill 2011
Part 4 Amendments to other Acts
Division 4 The Criminal Code amended
s. 30
1 Division 4 -- The Criminal Code amended
2 30. Act amended
3 This Division amends The Criminal Code.
4 31. Section 557K amended
5 In section 557K(1) insert in alphabetical order:
6
7 child care centre means a place where --
8 (a) an education and care service as defined in the
9 Education and Care Services National Law
10 (Western Australia) section 5(1) operates; or
11 (b) a child care service as defined in the Child Care
12 Services Act 2007 section 4 is provided;
13
14 Division 5 -- Evidence Act 1906 amended
15 32. Act amended
16 This Division amends the Evidence Act 1906.
17 33. Section 19L amended
18 Delete section 19L(4a) and insert:
19
20 (5A) If in criminal proceedings leave is given under the
21 protection provisions to require disclosure of --
22 (a) a child care record as defined in the Child Care
23 Services Act 2007 section 46(1), then
24 section 46(5) to (8) of that Act applies as if the
25 child care record had been produced in
26 response to a requirement referred to in
27 section 46(2) of that Act; or
28 (b) protected information as defined in the
29 Education and Care Services National Law
page 16
Education and Care Services National Law (WA) Bill 2011
Amendments to other Acts Part 4
Health Act 1911 amended Division 6
s. 34
1 (Western Australia) section 273(3), then
2 section 46(5) to (8) of the Child Care Services
3 Act 2007 applies as if the protected
4 information --
5 (i) was a child care record; and
6 (ii) had been produced in response to a
7 requirement referred to section 46(2) of
8 that Act.
9
10 Division 6 -- Health Act 1911 amended
11 34. Act amended
12 This Division amends the Health Act 1911.
13 35. Section 337 amended
14 After section 337(1) insert:
15
16 (2A) In subsection (1) --
17 child care centre means a place where --
18 (a) an education and care service as defined in the
19 Education and Care Services National Law
20 (Western Australia) section 5(1) operates; or
21 (b) a child care service as defined in the Child Care
22 Services Act 2007 section 4 is provided.
23
24 Division 7 -- School Education Act 1999 amended
25 36. Act amended
26 This Division amends the School Education Act 1999.
page 17
Education and Care Services National Law (WA) Bill 2011
Part 4 Amendments to other Acts
Division 7 School Education Act 1999 amended
s. 37
1 37. Section 4 amended
2 (1) In section 4 insert in alphabetical order:
3
4 early education period for a child means the period
5 before the child's pre-compulsory education period;
6
7 (2) In the definition of educational programme:
8 (a) delete "student" and insert:
9
10 student, or a child enrolled at a community kindergarten,
11
12 (b) after "student's" insert:
13
14 or child's
15
16 38. Section 74A amended
17 At the end of Part 3 Division 3 insert:
18
19 74A. Educational programme for children in their early
20 education period
21 (1) An educational programme must not be provided at a
22 government school for a child in the early education
23 period for that child unless the Minister has approved
24 the provision of the programme at the school.
25 (2) The content and implementation of an educational
26 programme referred to in subsection (1) is to be
27 decided by the principal subject to the direction and
28 control of the chief executive officer.
29 (3) An organised set of learning activities provided at a
30 government school for a child in the early education
31 period for that child before the commencement of the
page 18
Education and Care Services National Law (WA) Bill 2011
Amendments to other Acts Part 4
School Education Act 1999 amended Division 7
s. 39
1 Education and Care Services National Law (WA)
2 Act 2011 Part 4 Division 7 is, and is to be taken to
3 always have been, an educational programme lawfully
4 and validly provided to a student under this Act.
5
6 39. Section 77 amended
7 In section 77 delete "in which the child's pre-compulsory" and
8 insert:
9
10 before the child's compulsory
11
12 40. Section 82 amended
13 Delete section 82(1) and insert:
14
15 (1) This section applies to a child --
16 (a) in the child's --
17 (i) pre-compulsory education period; or
18 (ii) compulsory education period;
19 and
20 (b) in respect of whom an application for
21 enrolment has been made under section 74 but
22 who has not been enrolled in accordance with
23 the application.
24
25 41. Section 83 amended
26 Delete section 83(1) and insert:
27
28 (1) This section applies to a child --
29 (a) in the child's --
30 (i) pre-compulsory education period; or
page 19
Education and Care Services National Law (WA) Bill 2011
Part 4 Amendments to other Acts
Division 7 School Education Act 1999 amended
s. 42
1 (ii) compulsory education period;
2 and
3 (b) who is enrolled in a government school.
4
5 42. Section 154 amended
6 In section 154(1):
7 (a) in paragraph (b) delete "period," and insert:
8
9 period; or
10
11 (b) after paragraph (b) insert:
12
13 (c) early education period,
14
15 43. Section 156 amended
16 In section 156(3):
17 (a) delete "both" and insert:
18
19 more
20
21 (b) in paragraph (b) delete "period." and insert:
22
23 period;
24
25 (c) after paragraph (b) insert:
26
27 (c) education for children in their early education
28 period or for any specified part of that period.
29
page 20
Education and Care Services National Law (WA) Bill 2011
Amendments to other Acts Part 4
School Education Act 1999 amended Division 7
s. 44
1 44. Section 192 amended
2 In section 192 delete "children in the first year of their
3 pre-compulsory education period." and insert:
4
5 one or both of the following --
6 (a) education for children in the first year of their
7 pre-compulsory education period;
8 (b) education for children in their early education
9 period or for any specified part of that period.
10
11 45. Section 197 amended
12 In section 197(1) delete "kindergarten that is" and insert:
13
14 kindergarten, specifying the kind or kinds of education,
15 in terms of section 192, for which it is
16
17 46. Section 199 amended
18 In section 199(1)(b) delete "attendance is approved by the chief
19 executive officer." and insert:
20
21 attendance --
22 (i) is approved by the chief executive
23 officer; or
24 (ii) if the kindergarten is registered to
25 provide the kind of education referred to
26 in section 192(b), is in accordance with
27 the regulations.
28
page 21
Education and Care Services National Law (WA) Bill 2011
Part 4 Amendments to other Acts
Division 8 Spent Convictions Act 1988 amended
s. 47
1 47. Schedule 1 Division 1 heading inserted
2 At the beginning of Schedule 1 insert:
3
4 Division 1 -- Transitional provisions for the
5 commencement of this Act
6
7 48. Schedule 1 Division 2 inserted
8 At the end of Schedule 1 insert:
9
10 Division 2 -- Transitional provisions for the Education
11 and Care Services National Law (WA) Act 2011
12 24. Term used: commencement
13 In this Division --
14 commencement means the commencement of the Education
15 and Care Services National Law (WA) Act 2011 section 48.
16 25. Registration extended for a period of time
17 (1) If, immediately before commencement, a non-government
18 school was providing a kind of education referred to in
19 section 156(3)(c), then after commencement, the registration
20 of the school under section 160 is to be taken to extend to
21 the provision of that kind of education.
22 (2) Subject to Part 4, the registration provided for by
23 subclause (1) continues in force for 3 years from the
24 commencement.
25
26 Division 8 -- Spent Convictions Act 1988 amended
27 49. Act amended
28 This Division amends the Spent Convictions Act 1988.
page 22
Education and Care Services National Law (WA) Bill 2011
Amendments to other Acts Part 4
Working with Children (Criminal Record Checking) Act 2004 Division 9
amended
s. 50
1 50. Schedule 3 amended
2 In Schedule 3 clause 1(5) in the Table delete item 5 and insert:
3
5. A person who holds, or is applying for, a Sections 18,
licence to provide a child care service 20 and 22 and
under the Child Care Services Act 2007. Division 4
6A. A person who holds, or is applying for -- Sections 18,
20 and 22 and
(a) a provider approval or, if that person
Division 4
is not an individual, each person
who is, or will be, a person with
management or control of an
education and care service operated
by the person, or to be operated by
the applicant; or
(b) a supervisor certificate,
under the Education and Care Services
National Law (Western Australia).
4
5 Division 9 -- Working with Children (Criminal Record
6 Checking) Act 2004 amended
7 51. Act amended
8 This Division amends the Working with Children (Criminal
9 Record Checking) Act 2004.
10 52. Section 4 amended
11 In section 4 delete the definition of child care service and insert:
12
13 child care service means --
14 (a) an education and care service as defined in the
15 Education and Care Services National Law
16 (Western Australia) section 5(1); or
17 (b) a child care service as defined in the Child Care
18 Services Act 2007 section 4;
page 23
Education and Care Services National Law (WA) Bill 2011
Part 4 Amendments to other Acts
Division 9 Working with Children (Criminal Record Checking) Act 2004
amended
s. 53
1
2 53. Section 5 amended
3 (1) In section 5(1) delete the definition of managerial officer and
4 insert:
5
6 managerial officer, means --
7 (a) a managerial officer, as defined in the Child
8 Care Services Act 2007 section 3, in relation to
9 a body corporate that holds a licence under that
10 Act; or
11 (b) a person with management or control, as
12 defined in the Education and Care Services
13 National Law (Western Australia) section 5(1),
14 in relation to an education and care service
15 under that Law.
16
17 (2) In section 5(2) delete "managerial officer in relation to a body
18 corporate that holds a licence under the Child Care Services
19 Act 2007 --" and insert:
20
21 managerial officer --
22
23 54. Section 38 amended
24 (1) In section 38(3)(a) delete "2007; or" and insert:
25
26 2007, or is an approved provider as defined in
27 the Education and Care Services National Law
28 (Western Australia) section 5(1); or
29
page 24
Education and Care Services National Law (WA) Bill 2011
Amendments to other Acts Part 4
Working with Children (Criminal Record Checking) Act 2004 Division 9
amended
s. 54
1 (2) Delete section 38(3)(b) and insert:
2
3 (b) is --
4 (i) a supervising officer or a managerial
5 officer, as defined in the Child Care
6 Services Act 2007 section 3; or
7 (ii) a certified supervisor, a nominated
8 supervisor or a person with management
9 or control, in relation to an education
10 and care service under the Education
11 and Care Services National Law
12 (Western Australia),
13
page 25
Education and Care Services National Law (WA) Bill 2011
Schedule Education and Care Services National Law
Part 1 Preliminary
s. 1
1 Schedule -- Education and Care Services National Law
2 [s. 4]
3 Part 1 -- Preliminary
4 1. Short title
5 This Law may be cited as the Education and Care Services National
6 Law.
7 2. Commencement
8 This Law commences in a participating jurisdiction as provided under
9 the Act of that jurisdiction that applies this Law as a law of that
10 jurisdiction.
11 3. Objectives and guiding principles
12 (1) The objective of this Law is to establish a national education and care
13 services quality framework for the delivery of education and care
14 services to children.
15 (2) The objectives of the national education and care services quality
16 framework are --
17 (a) to ensure the safety, health and wellbeing of children
18 attending education and care services;
19 (b) to improve the educational and developmental outcomes for
20 children attending education and care services;
21 (c) to promote continuous improvement in the provision of
22 quality education and care services;
23 (d) to establish a system of national integration and shared
24 responsibility between participating jurisdictions and the
25 Commonwealth in the administration of the national
26 education and care services quality framework;
27 (e) to improve public knowledge, and access to information,
28 about the quality of education and care services;
29 (f) to reduce the regulatory and administrative burden for
30 education and care services by enabling information to be
31 shared between participating jurisdictions and the
32 Commonwealth.
page 26
Education and Care Services National Law (WA) Bill 2011
Education and Care Services National Law Schedule
Preliminary Part 1
s. 4
1 (3) The guiding principles of the national education and care services
2 quality framework are as follows --
3 (a) that the best interests of the child are paramount;
4 (b) that children are successful, competent and capable learners;
5 (c) that the principles of equity, inclusion and diversity underlie
6 this Law;
7 (d) that Australia's Aboriginal and Torres Strait Islander cultures
8 are valued;
9 (e) that the role of parents and families is respected and
10 supported;
11 (f) that best practice is expected in the provision of education
12 and care services.
13 Note: This section differs from section 3 of the national law as set out in the
14 Schedule to the Education and Care Services National Law Act 2010
15 (Victoria).
16 4. How functions to be exercised
17 An entity that has functions under this Law is to exercise its functions
18 having regard to the objectives and guiding principles of the national
19 education and care services quality framework set out in section 3.
20 5. Definitions
21 (1) In this Law --
22 approved education and care service means an education and care
23 service for which a service approval exists;
24 approved family day care service means an approved education and
25 care service that is a family day care service;
26 approved family day care venue means a place other than a residence
27 where an approved family day care service is provided;
28 approved learning framework means a learning framework approved
29 by the Ministerial Council;
30 approved provider means a person who holds a provider approval;
31 associated children's service means a children's service that is
32 operated or intended to be operated by an approved provider at the
33 same place as an approved education and care service;
page 27
Education and Care Services National Law (WA) Bill 2011
Schedule Education and Care Services National Law
Part 1 Preliminary
s. 5
1 Australian Accounting Standards means the standards issued or
2 pronounced by the Australian Accounting Standards Board;
3 authorised officer means a person authorised to be an authorised
4 officer under Part 9;
5 Authority Fund means the Australian Children's Education and Care
6 Quality Authority Fund established under section 274;
7 Board means the Australian Children's Education and Care Quality
8 Authority Board established under this Law;
9 certified supervisor means a person who holds a supervisor
10 certificate;
11 chief executive officer means the chief executive officer of the
12 National Authority appointed under this Law;
13 children's service means a service providing or intended to provide
14 education and care on a regular basis to children under 13 years of age
15 that is primarily regulated under a children's services law of a
16 participating jurisdiction and is not an education and care service;
17 children's services law, in relation to a participating jurisdiction,
18 means a law declared by a law of that jurisdiction to be a children's
19 services law for the purposes of this Law;
20 children's services regulator, in relation to a participating
21 jurisdiction, means a person declared by a law of that jurisdiction to
22 be the children's services regulator for the purposes of this Law;
23 Commonwealth Minister means the Minister of the Commonwealth
24 who is responsible for policies and programs relating to education and
25 care services;
26 community kindergarten means a kindergarten registered under the
27 School Education Act 1999 Part 5:
28 compliance direction means a compliance direction under
29 section 176;
30 compliance notice means a compliance notice under section 177;
31 disciplinary action means disciplinary action under Part 7
32 Division 3A;
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1 education and care service means any service providing or intended
2 to provide education and care on a regular basis to children under
3 13 years of age other than --
4 (a) a school providing an educational program to school children
5 in accordance with the School Education Act 1999; or
6 (b) a community kindergarten providing an educational program
7 to children in accordance with the School Education
8 Act 1999; or
9 (c) a personal arrangement; or
10 (d) a service principally conducted to provide instruction in a
11 particular activity; or
12 Example: Instruction in a particular activity could be instruction in sport,
13 dance, music, culture or language or religious instruction.
14 (e) a service providing education and care to patients in a
15 hospital or patients of a medical or therapeutic care service;
16 or
17 (f) care provided under a child protection law of a participating
18 jurisdiction; or
19 (g) a prescribed class of disability service; or
20 (h) a service of a prescribed class;
21 Example: Education and care services to which this Law applies include
22 long day care services, family day care services and outside
23 school hours services, unless expressly excluded.
24 education and care service premises means --
25 (a) in relation to an education and care service other than a
26 family day care service, each place at which an education and
27 care service operates or is to operate; or
28 (b) in relation to a family day care service --
29 (i) an office of the family day care service; or
30 (ii) an approved family day care venue; or
31 (iii) each part of a residence used to provide education
32 and care to children as part of a family day care
33 service or used to provide access to the part of the
34 residence used to provide that education and care;
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1 education law, in relation to a participating jurisdiction, means a law
2 declared by a law of that jurisdiction to be an education law for the
3 purposes of this Law;
4 educational program means an educational programme as defined in
5 the School Education Act 1999;
6 educator means an individual who provides education and care for
7 children as part of an education and care service;
8 eligible association means an association of a prescribed class;
9 family day care co-ordinator means a person employed or engaged
10 by an approved provider of a family day care service to monitor and
11 support the family day care educators who are part of the service;
12 family day care educator means an educator engaged by or registered
13 with a family day care service to provide education and care for
14 children in a residence or at an approved family day care venue;
15 family day care residence means a residence at which a family day
16 care educator educates and cares for children as part of a family day
17 care service;
18 family day care service means an education and care service that is
19 delivered through the use of 2 or more educators to provide education
20 and care for children in residences whether or not the service also
21 provides education and care to children at a place other than a
22 residence;
23 family member, in relation to a child, means --
24 (a) a parent, grandparent, brother, sister, uncle, aunt, or cousin of
25 the child, whether of the whole blood or half-blood and
26 whether that relationship arises by marriage (including a de
27 facto relationship) or by adoption or otherwise; or
28 (b) a relative of the child according to Aboriginal or Torres Strait
29 Islander tradition; or
30 (c) a person with whom the child resides in a family-like
31 relationship; or
32 (d) a person who is recognised in the child's community as
33 having a familial role in respect of the child;
34 former education and care services law, in relation to a participating
35 jurisdiction, means a law declared by a law of that jurisdiction to be a
36 former education and care services law for the purposes of this Law;
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1 grade 1, in relation to a school, means the first year of compulsory
2 full-time schooling;
3 guardian, in relation to a child, means the legal guardian of the child;
4 infringements law, in relation to a participating jurisdiction, means a
5 law declared by a law of that jurisdiction to be an infringements law
6 for the purposes of this Law;
7 Ministerial Council means the Ministerial Council consisting of the
8 persons who from time to time hold office as Ministers of the Crown
9 responsible for early childhood education or care in the governments
10 of the States and Territories and the Commonwealth;
11 National Authority means the Australian Children's Education and
12 Care Quality Authority established under this Law;
13 national education and care services quality framework means --
14 (a) this Law; and
15 (b) the national regulations; and
16 (c) the National Quality Standard; and
17 (d) the prescribed rating system;
18 National Partnership Agreement means the National Partnership
19 Agreement on the National Quality Agenda for Early Childhood and
20 Care entered into by the States and Territories and the Commonwealth
21 on 7 December 2009, as amended from time to time;
22 National Quality Framework means the national education and care
23 services quality framework;
24 National Quality Standard means the National Quality Standard
25 prescribed by the national regulations;
26 national regulations means the regulations made under this Law;
27 nominated supervisor, in relation to an education and care service,
28 means a person --
29 (a) who is a certified supervisor; and
30 (b) who is nominated by the approved provider of the service
31 under Part 3 to be the nominated supervisor of that service;
32 and
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1 (c) who has consented to that nomination;
2 Note: A person may be both the nominated supervisor of a family day care
3 service and the family day care co-ordinator for that service if the
4 person meets the criteria for each role.
5 office, in relation to a family day care service, means --
6 (a) the principal office or any other business office of the
7 approved provider of the service; or
8 (b) any premises of the service from which its family day care
9 educators are co-ordinated;
10 parent, in relation to a child, means a person who at law has
11 responsibility for --
12 (a) the long term care, welfare and development of the child; or
13 (b) the day-to-day care, welfare and development of the child;
14 participating jurisdiction means a State or Territory in which --
15 (a) this Law applies as a Law of the State or Territory; or
16 (b) a law that substantially corresponds to the provisions of this
17 Law has been enacted;
18 payment, in relation to a prescribed fee, includes payment by
19 electronic or other means;
20 person means --
21 (a) an individual; or
22 (b) a body corporate; or
23 (c) an eligible association; or
24 (d) a partnership; or
25 (e) a prescribed entity;
26 person with management or control, in relation to an education and
27 care service, means --
28 (a) if the provider or intended provider of the service is a body
29 corporate, an officer of the body corporate within the
30 meaning of the Corporations Act 2001 of the Commonwealth
31 who is responsible for managing the delivery of the education
32 and care service; or
33 (b) if the provider of the service is an eligible association, each
34 member of the executive committee of the association who
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1 has the responsibility, alone or with others, for managing the
2 delivery of the education and care service; or
3 (c) if the provider of the service is a partnership, each partner
4 who has the responsibility, alone or with others, for managing
5 the delivery of the education and care service; or
6 (d) in any other case, a person who has the responsibility, alone
7 or with others, for managing the delivery of the education and
8 care service;
9 personal arrangement means education and care provided to a
10 child --
11 (a) by a family member or guardian of a child personally,
12 otherwise than as a staff member of, or under an engagement
13 with, a service providing education and care on a regular
14 basis to children under 13 years of age; or
15 (b) by a friend of the family of the child personally under an
16 informal arrangement where no offer to provide that
17 education and care was advertised;
18 prescribed ineligible person means a person in a class of persons
19 prescribed by the national regulations to be prescribed ineligible
20 persons;
21 protected disclosure -- see section 296;
22 provider approval means a provider approval --
23 (a) granted under Part 2 of this Law or this Law as applying in
24 another participating jurisdiction; and
25 (b) as amended under this Law or this Law as applying in another
26 participating jurisdiction --
27 but does not include a provider approval that has been cancelled;
28 public sector law, in relation to a participating jurisdiction, means a
29 law declared by a law of that jurisdiction to be a public sector law for
30 the purposes of this Law;
31 rating assessment means an assessment or reassessment of an
32 approved education and care service under Part 5;
33 Ratings Review Panel means a Ratings Review Panel established
34 under section 146;
35 receiving approved provider has the meaning set out in section 58;
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1 Regulatory Authority means a person declared by a law of a
2 participating jurisdiction to be the Regulatory Authority for that
3 jurisdiction or for a class of education and care services for that
4 jurisdiction;
5 relevant Commonwealth Department means the government
6 department administered by the Commonwealth Minister;
7 relevant tribunal or court, in relation to a participating jurisdiction,
8 means the tribunal or court declared by a law of that jurisdiction to be
9 the relevant tribunal or court for the purposes of this Law or a
10 provision of this Law;
11 residence means the habitable areas of a dwelling;
12 school children, includes students, as defined in the School Education
13 Act 1999, attending school before grade 1;
14 school means --
15 (a) a government school; or
16 (b) a non-government school that is registered or accredited
17 under an education law of a participating jurisdiction;
18 serious detrimental action -- see section 296;
19 service approval means a service approval --
20 (a) granted under Part 3 of this Law or this Law as applying in
21 another participating jurisdiction; and
22 (b) as amended under this Law or this Law as applying in another
23 participating jurisdiction --
24 but does not include a service approval that has been cancelled;
25 staff member, in relation to an education and care service, means any
26 individual (other than the nominated supervisor or a volunteer)
27 employed, appointed or engaged to work in or as part of an education
28 and care service, whether as family day care co-ordinator, educator or
29 otherwise;
30 supervisor certificate means a supervisor certificate --
31 (a) issued under Part 4 of this Law or this Law as applying in
32 another participating jurisdiction; and
33 (b) as amended under this Law or this Law as applying in another
34 participating jurisdiction --
35 but does not include a supervisor certificate that has been cancelled;
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1 transferring approved provider has the meaning set out in section 58;
2 working with children card means a card issued to a person under a
3 working with children law of a participating jurisdiction that permits
4 that person to work with children;
5 working with children check means a notice, certificate or other
6 document granted to, or with respect to, a person under a working
7 with children law to the effect that --
8 (a) the person has been assessed as suitable to work with
9 children; or
10 (b) there has been no information that if the person worked with
11 children the person would pose a risk to the children; or
12 (c) the person is not prohibited from attempting to obtain,
13 undertake or remain in child-related employment;
14 working with children law, in relation to a participating jurisdiction,
15 means a law declared by a law of that jurisdiction to be a working
16 with children law for the purposes of this Law;
17 working with vulnerable people law, in relation to a participating
18 jurisdiction, means a law declared by a law of that jurisdiction to be a
19 working with vulnerable people law for the purposes of this Law.
20 (2) In this Law, a reference (either generally or specifically) to a law or a
21 provision of a law (including this Law) includes a reference to the
22 statutory instruments made or in force under the law or provision.
23 (3) In this Law a reference to education and care includes a reference to
24 education or care.
25 (4) In this Law, an education and care service as defined in subsection (1)
26 is an education and care service even if the service also provides
27 education and care to children of or over the age of 13 years.
28 (5) In this Law, a children's service as defined in subsection (1) is a
29 children's service even if the service also provides education and care
30 to children of or over the age of 13 years.
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1 (6) In this Law, a reference to this Law as applying in a jurisdiction,
2 includes a reference to a law that substantially corresponds to this
3 Law enacted, or applying, in a jurisdiction.
4 Note: This section differs from section 5 of the national law as set out in the
5 Schedule to the Education and Care Services National Law Act 2010
6 (Victoria).
7 6. Interpretation generally
8 (1) Schedule 1 applies in relation to this Law.
9 (2) The National Partnership Agreement is declared to be a relevant
10 document for the purposes of paragraph (h) of the definition of
11 extrinsic material in clause 8(1) of Schedule 1.
12 7. Single national entity
13 (1) It is the intention of the Parliament of this jurisdiction that this Law as
14 applied by an Act of this jurisdiction, together with this Law as
15 applied by Acts of other participating jurisdictions, has the effect that
16 an entity established by this Law is one single national entity, with
17 functions conferred by this Law as so applied.
18 (2) An entity established by this Law has power to do acts in or in
19 relation to this jurisdiction in the exercise of a function expressed to
20 be conferred on it by this Law as applied by Acts of each participating
21 jurisdiction.
22 (3) An entity established by this Law may exercise its functions in
23 relation to --
24 (a) one participating jurisdiction; or
25 (b) 2 or more or all participating jurisdictions collectively.
26 8. Extraterritorial operation of Law
27 It is the intention of the Parliament of this jurisdiction that the
28 operation of this Law is to, as far as possible, include operation in
29 relation to the following --
30 (a) things situated in or outside the territorial limits of this
31 jurisdiction;
32 (b) acts, transactions and matters done, entered into or occurring
33 in or outside the territorial limits of this jurisdiction;
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1 (c) things, acts, transactions and matters (wherever situated,
2 done, entered into or occurring) that would, apart from this
3 Law, be governed or otherwise affected by the law of another
4 jurisdiction.
5 9. Law binds the State
6 (1) This Law binds the State.
7 (2) In this section --
8 State means the Crown in right of this jurisdiction, and includes --
9 (a) the Government of this jurisdiction; and
10 (b) a Minister of the Crown in right of this jurisdiction; and
11 (c) a statutory corporation, or other entity, representing the
12 Crown in right of this jurisdiction.
13 Part 2 -- Provider approval
14 Division 1 -- Application for provider approval
15 10. Application for provider approval
16 (1) A person, other than a prescribed ineligible person, may apply to the
17 Regulatory Authority for a provider approval.
18 (2) An application may be made by more than one person.
19 (3) If an application is made by more than one person --
20 (a) the prescribed information requested under section 11(c) must
21 be provided in respect of each person; and
22 (b) the requirements of this Division must be complied with by
23 and in respect of each person.
24 Note: This section differs from section 10 of the national law as set out in the
25 Schedule to the Education and Care Services National Law Act 2010
26 (Victoria).
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1 11. Form of application
2 An application under section 10 must --
3 (a) be made to the Regulatory Authority of the participating
4 jurisdiction --
5 (i) in which the applicant, or any of the applicants, is
6 ordinarily resident; or
7 (ii) if the applicant or applicants are not individuals, in
8 which the principal office of the applicant or any of
9 the applicants is located; and
10 (b) be in writing; and
11 (c) include any prescribed information that is requested by the
12 Regulatory Authority; and
13 (d) include payment of the prescribed fee.
14 Note: This section differs from section 11 of the national law as set out in the
15 Schedule to the Education and Care Services National Law Act 2010
16 (Victoria).
17 12. Applicant must be fit and proper person
18 (1) An applicant who is an individual must satisfy the Regulatory
19 Authority that the applicant is a fit and proper person to be involved
20 in the provision of an education and care service.
21 (2) If the applicant is not an individual, the applicant must satisfy the
22 Regulatory Authority that --
23 (a) each person who will be a person with management or
24 control of an education and care service to be operated by the
25 applicant is a fit and proper person to be involved in the
26 provision of an education and care service; and
27 (b) the applicant is a fit and proper person to be involved in the
28 provision of an education and care service.
29 (3) The head of a government department administering an education law
30 of a participating jurisdiction is taken to be a fit and proper person for
31 the purposes of this Part.
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1 13. Matters to be taken into account in assessing whether fit and
2 proper person
3 (1) In determining whether a person is a fit and proper person under this
4 Division, the Regulatory Authority must have regard to --
5 (a) the person's history of compliance with --
6 (i) this Law as applying in any participating jurisdiction;
7 and
8 (ii) a former education and care services law of a
9 participating jurisdiction; and
10 (iii) a children's services law of a participating
11 jurisdiction; and
12 (iv) an education law of a participating jurisdiction; and
13 Note: If a person has been served with an infringement notice for an offence
14 under this Law, and the person has paid the penalty, the Regulatory
15 Authority cannot consider that conduct when determining whether the
16 person is fit and proper. See section 291(5).
17 (b) any decision under a former education and care services law,
18 a children's services law or an education law of a
19 participating jurisdiction to refuse, refuse to renew, suspend
20 or cancel a licence, approval, registration or certification or
21 other authorisation granted to the person under that law; and
22 (c) either --
23 (i) any prescribed matters relating to the criminal history
24 of the person to the extent that history may affect the
25 person's suitability for the role of provider of an
26 education and care service; or
27 (ii) any check of the person under a working with
28 vulnerable people law of a participating jurisdiction;
29 and
30 (d) whether the person is bankrupt, or has applied to take the
31 benefit of any law for the relief of bankrupt or insolvent
32 debtors or, in the case of a body corporate, is insolvent under
33 administration or an externally-administered body corporate.
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1 (2) Without limiting subsection (1), the Regulatory Authority may have
2 regard to --
3 (a) whether the person has a medical condition that may cause
4 the person to be incapable of being responsible for providing
5 an education and care service in accordance with this Law;
6 and
7 (b) whether the financial circumstances of the person may
8 significantly limit the person's capacity to meet the person's
9 obligations in providing an education and care service in
10 accordance with this Law.
11 (3) Nothing in subsection (1) or (2) limits the circumstances in which a
12 person may be considered not to be a fit and proper person to be
13 involved in the provision of an education and care service.
14 14. Regulatory Authority may seek further information
15 (1) For the purpose of carrying out an assessment as to whether a person
16 is a fit and proper person, the Regulatory Authority may --
17 (a) ask the person to provide further information; and
18 (b) undertake inquiries in relation to the person.
19 (2) If the Regulatory Authority asks the applicant for further information
20 under this section, the period from the making of the request and the
21 provision of the further information is not included in the period
22 referred to in section 15 for the Regulatory Authority to make a
23 decision on the application.
24 15. Grant or refusal of provider approval
25 (1) On an application under section 10, the Regulatory Authority may --
26 (a) grant the provider approval; or
27 (b) refuse to grant the provider approval.
28 Note: A provider approval is granted subject to conditions in accordance with
29 section 19.
30 (2) The Regulatory Authority must not grant a provider approval unless
31 the Authority is satisfied as to the matters in section 12.
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1 (3) Subject to subsection (4), the Regulatory Authority must make a
2 decision on the application within 60 days after the Regulatory
3 Authority receives the application.
4 Note: If further information is requested under section 14(2), the period
5 between the making of the request and the provision of the information
6 is not included in the 60 day period.
7 (4) The period referred to in subsection (3) may be extended by up to
8 30 days with the agreement of the applicant.
9 (5) The Regulatory Authority is taken to have refused to grant a provider
10 approval if the Regulatory Authority has not made a decision under
11 subsection (1) --
12 (a) within the relevant period required under subsection (3); or
13 (b) within the period extended under subsection (4),
14 as the case requires.
15 16. Notice of decision on application
16 The Regulatory Authority must give written notice to the applicant of
17 a decision under section 15 and the reasons for that decision within
18 7 days after the decision is made.
19 17. Duration of provider approval
20 A provider approval granted under section 15 continues in force until
21 it is cancelled or surrendered under this Law, or this Law as applying
22 in a participating jurisdiction.
23 18. Effect of provider approval
24 A provider approval authorises the approved provider to operate an
25 approved education and care service and an associated children's
26 service if the approved provider is the holder of the service approval
27 for those services.
28 19. Conditions on provider approval
29 (1) A provider approval may be granted subject to any conditions that are
30 prescribed in the national regulations or that are determined by the
31 Regulatory Authority.
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1 (2) Without limiting subsection (1), a provider approval is subject to the
2 condition that the approved provider must comply with this Law.
3 (3) A condition of a provider approval applies to the provider as the
4 operator of any education and care service or associated children's
5 service, unless the condition expressly provides otherwise.
6 (4) An approved provider must comply with the conditions of the
7 provider approval.
8 Penalty: $10 000, in the case of an individual.
9 $50 000, in any other case.
10 20. Copy of provider approval
11 If the Regulatory Authority grants a provider approval under this Part,
12 the Regulatory Authority must provide a copy of the provider
13 approval to the approved provider stating --
14 (a) the name of the approved provider; and
15 (b) if the approved provider is not an individual, the address of
16 the principal office of the provider; and
17 (c) any conditions to which the approval is subject; and
18 (d) the date that the provider approval was granted; and
19 (e) the provider approval number; and
20 (f) any other prescribed matters.
21 Division 2 -- Reassessment
22 21. Reassessment of fitness and propriety
23 (1) The Regulatory Authority may at any time assess --
24 (a) whether an approved provider continues to be a fit and proper
25 person to be involved in the provision of an education and
26 care service; or
27 (b) whether a person with management or control of an education
28 and care service operated by an approved provider continues
29 to be a fit and proper person to be involved in the provision of
30 an education and care service; or
31 (c) whether a person who becomes a person with management or
32 control of an education and care service operated by the
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s. 22
1 approved provider after the grant of the provider approval is a
2 fit and proper person to be involved in the provision of an
3 education and care service.
4 (2) Sections 13 and 14 apply to the reassessment.
5 Division 3 -- Amendment of provider approvals
6 22. Amendment of provider approval on application
7 (1) An approved provider may apply to the Regulatory Authority for an
8 amendment of the provider approval.
9 (2) The application must --
10 (a) be in writing; and
11 (b) include any prescribed information that is requested by the
12 Regulatory Authority; and
13 (c) include payment of the prescribed fee.
14 (3) The Regulatory Authority must decide the application by --
15 (a) amending the provider approval in the way applied for; or
16 (b) with the applicant's written agreement, amending the
17 provider approval in another way; or
18 (c) refusing to amend the provider approval.
19 (4) The Regulatory Authority must make a decision on the application
20 within 30 days after the Regulatory Authority receives the application.
21 (5) Without limiting subsection (3), an amendment may vary a condition
22 of the provider approval or impose a new condition on the provider
23 approval.
24 Note: This section differs from section 22 of the national law as set out in the
25 Schedule to the Education and Care Services National Law Act 2010
26 (Victoria).
27 23. Amendment of provider approval by Regulatory Authority
28 (1) The Regulatory Authority may amend a provider approval at any time
29 without an application from the approved provider.
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1 (2) Without limiting subsection (1), an amendment may vary a condition
2 of the provider approval or impose a new condition on the provider
3 approval.
4 (3) The Regulatory Authority must give written notice to the approved
5 provider of the amendment.
6 (4) An amendment under this section has effect --
7 (a) 14 days after the Regulatory Authority gives notice of the
8 amendment under subsection (3); or
9 (b) if another period is specified by the Regulatory Authority, at
10 the end of that period.
11 24. Copy of amended provider approval to be provided
12 If the Regulatory Authority amends a provider approval under this
13 Division, the Regulatory Authority must --
14 (a) provide an amended copy of the provider approval to the
15 approved provider; and
16 (b) make any necessary amendments to any service approval held
17 by the provider and provide an amended copy of the service
18 approval to the approved provider.
19 Division 4 -- Suspension or cancellation of provider approval
20 25. Grounds for suspension of provider approval
21 (1) The Regulatory Authority may suspend a provider approval if --
22 (a) the approved provider, or a person with management or
23 control of an education and care service operated by the
24 approved provider, has been charged with an indictable
25 offence, or with an offence that if committed in this
26 jurisdiction would be an indictable offence, or any other
27 circumstance indicates that the approved provider, or a person
28 with management or control of an education and care service
29 operated by the approved provider, may not be a fit and
30 proper person to be involved in the provision of an education
31 and care service; or
32 (b) the approved provider has failed to comply with a condition
33 of the provider approval; or
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s. 26
1 (c) the approved provider has failed to comply with this Law as
2 applying in any participating jurisdiction; or
3 (d) action is being taken under Part 7 (other than a compliance
4 direction) in respect of more than one education and care
5 service operated by the approved provider; or
6 (e) the approved provider has not operated any education and
7 care service for a period of more than 12 months (including
8 any period of suspension); or
9 (f) the approved provider purported to transfer or receive a
10 transfer of an approved education and care service without
11 the consent of the Regulatory Authority; or
12 (g) the approved provider has not paid --
13 (i) an amount due under a monetary order made under,
14 or in relation to proceedings commenced by an
15 allegation made under, section 188B; or
16 (ii) any outstanding prescribed fees.
17 (2) In subsection (1) --
18 monetary order has the meaning given in the State Administrative
19 Tribunal Act 2004 section 3(1).
20 Note: This section differs from section 25 of the national law as set out in the
21 Schedule to the Education and Care Services National Law Act 2010
22 (Victoria).
23 26. Show cause notice before suspension
24 (1) This section applies if the Regulatory Authority is considering the
25 suspension of a provider approval under section 25.
26 (2) The Regulatory Authority must first give the approved provider a
27 notice (show cause notice) stating --
28 (a) that the Regulatory Authority intends to suspend the provider
29 approval; and
30 (b) the proposed period of suspension; and
31 (c) the reasons for the proposed suspension; and
32 (d) that the approved provider may, within 30 days after the
33 notice is given, give the Regulatory Authority a written
34 response to the proposed suspension.
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1 27. Decision to suspend after show cause process
2 After considering any written response from the approved provider
3 received within the time allowed by section 26(2)(d), the Regulatory
4 Authority may --
5 (a) suspend the provider approval for a period not more than the
6 prescribed period; or
7 (b) decide not to suspend the provider approval.
8 28. Suspension without show cause notice
9 (1) The Regulatory Authority may suspend the provider approval on a
10 ground referred to in section 25 without giving the approved provider
11 a show cause notice under section 26 if the Regulatory Authority is
12 satisfied that there is an immediate risk to the safety, health or
13 wellbeing of a child or children being educated and cared for by an
14 education and care service operated by the provider.
15 (2) The suspension may not be for a period of more than 6 months.
16 29. Notice and taking effect of suspension
17 (1) The Regulatory Authority must give the approved provider written
18 notice of the decision to suspend the provider approval.
19 (2) The notice of a decision to suspend must set out the period of
20 suspension and the date on which it takes effect.
21 (3) The decision under section 27 to suspend takes effect at the end of
22 14 days after the date of the decision, or, if another period is specified
23 by the Regulatory Authority, at the end of that period.
24 (4) The decision under section 28 to suspend takes effect on the giving of
25 the notice.
26 30. Effect of suspension
27 (1) Subject to this section, if a provider approval is suspended under
28 section 27 or 28 of this Law as applying in any participating
29 jurisdiction, all service approvals held by the provider are also
30 suspended for the same period.
31 (2) A suspension under subsection (1) applies to both education and care
32 services and any associated children's services.
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1 (3) A person whose provider approval is suspended is taken not to be an
2 approved provider for the period of the suspension.
3 (4) A service approval is not suspended under subsection (1) during any
4 period that a person is approved under section 41 to manage or control
5 the education and care service.
6 (5) The Regulatory Authority may consent under Part 3 to the transfer of
7 a service approval that is suspended under section 27 or 28.
8 (6) The suspension of the service approval ceases on the transfer taking
9 effect, unless the conditions imposed by the Regulatory Authority on
10 the consent to the transfer specify a later date.
11 31. Grounds for cancellation of provider approval
12 The Regulatory Authority may cancel a provider approval if --
13 (a) the Regulatory Authority is satisfied that the approved
14 provider or a person with management or control of an
15 education and care service operated by the approved provider
16 is not a fit and proper person to be involved in the provision
17 of an education and care service; or
18 (b) the Regulatory Authority is satisfied that the continued
19 provision of education and care services by the approved
20 provider would constitute an unacceptable risk to the safety,
21 health or wellbeing of any child or class of children being
22 educated and cared for by an education and care service
23 operated by the approved provider; or
24 (c) the approved provider has been found guilty of an indictable
25 offence or an offence that if committed in this jurisdiction
26 would be an indictable offence; or
27 (d) the approved provider has been found guilty of an offence
28 under this Law as applying in any participating jurisdiction;
29 or
30 (e) the approved provider has breached a condition of the
31 provider approval; or
32 (f) the approved provider has not operated any education and
33 care service for a period of more than 12 months (including
34 any period of suspension).
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1 32. Show cause notice before cancellation
2 (1) This section applies if the Regulatory Authority is considering the
3 cancellation of a provider approval under section 31.
4 (2) The Regulatory Authority must first give the approved provider a
5 notice (show cause notice) stating --
6 (a) that the Regulatory Authority intends to cancel the provider
7 approval; and
8 (b) the reasons for the proposed cancellation; and
9 (c) that the approved provider may, within 30 days after the
10 notice is given, give the Regulatory Authority a written
11 response to the proposed cancellation.
12 33. Decision in relation to cancellation
13 (1) After considering any written response from the approved provider
14 received within the time allowed under section 32(2)(c), the
15 Regulatory Authority --
16 (a) may --
17 (i) cancel the provider approval; or
18 (ii) suspend the provider approval for a period not more
19 than the prescribed period; or
20 (iii) decide not to cancel the provider approval; and
21 (b) must give the approved provider written notice of the
22 decision.
23 (2) The decision to cancel the provider approval takes effect at the end of
24 14 days after the date of the decision or, if another period is specified
25 by the Regulatory Authority, at the end of that period.
26 (3) The notice of a decision to cancel the provider approval must set out
27 the date on which it takes effect.
28 (4) This Law applies to a suspension of a provider approval under this
29 section as if it were a suspension under section 27.
30 34. Effect of cancellation
31 (1) Subject to this section, if a provider approval is cancelled under
32 section 33 of this Law as applying in any participating jurisdiction, all
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1 service approvals held by the person who was the approved provider
2 are also cancelled.
3 (2) A cancellation under subsection (1) applies to both education and care
4 services and any associated children's services.
5 (3) A service approval is not cancelled under subsection (1) if before that
6 cancellation a person is approved under section 41 to manage or
7 control the education and care service.
8 (4) A service approval is cancelled if a person referred to in
9 subsection (3) ceases to manage or control the service.
10 (5) A provider whose provider approval is to be cancelled under
11 section 33 may apply to the Regulatory Authority under Part 3 for
12 consent to transfer a service approval held by the provider.
13 (6) The application for consent to transfer must be made within 14 days
14 after the date of the decision to cancel the provider approval is made.
15 (7) If an application for consent to transfer is made, the service approval
16 is suspended until the Regulatory Authority determines the
17 application.
18 (8) The suspension of the service approval ceases on the transfer taking
19 effect, unless the conditions of the transfer specify a later date.
20 (9) If the Regulatory Authority refuses to consent to the transfer, the
21 service approval is cancelled on the making of the decision to refuse
22 consent.
23 35. Approved provider to provide information to Regulatory
24 Authority
25 (1) This section applies if a show cause notice has been given to an
26 approved provider under section 26 or 32.
27 (2) The approved provider, at the request of the Regulatory Authority,
28 must, within 7 days of the request, provide the Regulatory Authority
29 with the contact details of the parents of all children enrolled at each
30 education and care service operated by the approved provider.
31 (3) The Regulatory Authority may use the information provided under
32 subsection (2) solely to notify the parents of children enrolled at an
33 education and care service about the suspension or cancellation.
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1 36. Notice to parents of suspension or cancellation
2 (1) This section applies if a provider approval has been suspended or
3 cancelled under section 27, 28, 33 or 34.
4 (2) The Regulatory Authority may require the person who is or was the
5 approved provider to give written notice of the suspension or
6 cancellation and its effect to the parents of children enrolled at all or
7 any of the education and care services operated by that person.
8 (3) A person must comply with a requirement made of that person under
9 subsection (2).
10 Penalty: $3 000, in the case of an individual.
11 $15 000, in any other case.
12 37. Voluntary suspension of provider approval
13 (1) An approved provider may apply to the Regulatory Authority for a
14 suspension of the provider approval for a period of not more than
15 12 months.
16 (2) The application must --
17 (a) be in writing; and
18 (b) include any prescribed information that is requested by the
19 Regulatory Authority; and
20 (c) include payment of the prescribed fee.
21 (3) The approved provider must, at least 14 days before making an
22 application under this section, notify the parents of children enrolled
23 at the education and care services operated by the approved provider
24 of the intention to make the application.
25 (4) The Regulatory Authority must within 30 days after the application is
26 made decide whether or not to grant the application.
27 (5) The Regulatory Authority must give written notice of its decision
28 (including the period of suspension) to the approved provider.
29 (6) If the Regulatory Authority decides to grant the application, the
30 suspension takes effect on a date agreed between the Regulatory
31 Authority and the approved provider.
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1 (7) A suspension under this section remains in force for the period of time
2 specified in the notice.
3 (8) The approved provider may apply to the Regulatory Authority to
4 revoke the suspension before the end of the suspension period.
5 (9) If the Regulatory Authority grants the application to revoke the
6 suspension, the suspension ceases on the date determined by
7 agreement with the approved provider.
8 (10) If a provider approval is suspended under this section, each service
9 approval held by the provider is also suspended for the same period
10 unless --
11 (a) a person is approved under section 41 to manage or control
12 the education and care service to which the approval relates;
13 or
14 (b) the service approval is transferred under Division 3 of Part 3.
15 Note: This section differs from section 37 of the national law as set out in the
16 Schedule to the Education and Care Services National Law Act 2010
17 (Victoria).
18 38. Surrender of provider approval by approved provider
19 (1) An approved provider may surrender the provider approval by written
20 notice to the Regulatory Authority.
21 (2) The notice must specify a date on which the surrender is intended to
22 take effect which must be --
23 (a) after the notice is given; and
24 (b) after the end of the period of notice required under
25 subsection (3).
26 (3) The approved provider must notify the parents of children enrolled at
27 the education and care services operated by the approved provider of
28 the intention to surrender the provider approval, at least 14 days
29 before the surrender is intended to take effect.
30 (4) If a provider approval is surrendered, the approval is cancelled on the
31 date specified in the notice.
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1 (5) If a provider approval is surrendered, any service approval held by the
2 provider is also taken to be surrendered.
3 Note: If a service approval is surrendered, it is cancelled -- see section 86.
4 A cancelled service approval cannot be transferred -- see definition of
5 service approval and also Division 3 of Part 3.
6 Division 5 -- Approval of executor, representative or guardian as
7 approved provider
8 39. Death of approved provider
9 (1) This section applies if an approved provider dies.
10 (2) The nominated supervisor or any other person having day to day
11 control of an education and care service of the approved provider
12 must notify the Regulatory Authority of the approved provider's death
13 within 7 days after that death.
14 (3) The executor of the estate of the approved provider may continue to
15 operate any approved education and care service of the approved
16 provider for the relevant period provided the nominated supervisor or
17 any certified supervisor continues to manage the day to day operation
18 of the service.
19 (4) The executor of the estate of the approved provider may transfer,
20 surrender or apply for suspension of a service approval of the
21 approved provider under this Law during the relevant period as if the
22 executor were the approved provider.
23 (5) The executor of the estate of the approved provider may apply to the
24 Regulatory Authority for a provider approval.
25 (6) The application must be made within 30 days of the death of the
26 approved provider and must --
27 (a) be in writing; and
28 (b) include any prescribed information that is requested by the
29 Regulatory Authority; and
30 (c) include payment of the prescribed fee.
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1 (7) In this section --
2 relevant period means --
3 (a) the period of 30 days after the death of the approved provider;
4 or
5 (b) if the executor of the estate of the approved provider makes
6 an application under subsection (5) within that period, until
7 the application is finally determined under this Law.
8 Note: This section differs from section 39 of the national law as set out in the
9 Schedule to the Education and Care Services National Law Act 2010
10 (Victoria).
11 40. Incapacity of approved provider
12 (1) This section applies if an approved provider has become
13 incapacitated.
14 (2) The legal personal representative or guardian of an approved provider
15 may apply to the Regulatory Authority for a provider approval.
16 (3) The application must --
17 (a) be in writing; and
18 (b) include any prescribed information that is requested by the
19 Regulatory Authority; and
20 (c) include payment of the prescribed fee.
21 Note: This section differs from section 40 of the national law as set out in the
22 Schedule to the Education and Care Services National Law Act 2010
23 (Victoria).
24 41. Decision on application
25 (1) The Regulatory Authority must not grant a provider approval to a
26 person who has made an application under section 39 or 40 unless the
27 Regulatory Authority is satisfied that the person is a fit and proper
28 person to be involved in the provision of an education and care
29 service.
30 (2) Sections 12, 13 and 14 apply to the assessment of a person under
31 subsection (1).
32 (3) Subject to this section, the Regulatory Authority may --
33 (a) grant the provider approval; or
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1 (b) grant the provider approval subject to conditions; or
2 (c) refuse to grant the provider approval.
3 (4) An approval under this section --
4 (a) may be granted for a period of not more than 6 months; and
5 (b) may be extended for a further period of not more than
6 6 months --
7 at the discretion of the Regulatory Authority.
8 (5) The provider approval is granted only in relation to the operation of
9 the approved education and care services of the approved provider for
10 whom the applicant is the executor, legal personal representative or
11 guardian, as the case requires.
12 Division 6 -- Exercise of powers by another Regulatory Authority
13 42. Exercise of powers by another Regulatory Authority
14 (1) This section applies if the Regulatory Authority has granted a
15 provider approval under this Part.
16 (2) A Regulatory Authority of another participating jurisdiction may
17 exercise all of the powers and perform all of the functions of the
18 Regulatory Authority under this Part (except Division 5) in respect of
19 the provider approval if the approved provider operates an approved
20 education and care service in that participating jurisdiction.
21 (3) A Regulatory Authority (including the Regulatory Authority of this
22 jurisdiction) may only exercise a power to amend, suspend or cancel a
23 provider approval after consulting with the Regulatory Authority of
24 each participating jurisdiction in which the approved provider
25 operates an approved education and care service.
26 (4) A failure by a Regulatory Authority to comply with subsection (3)
27 does not affect the validity of the exercise of the power.
28 (5) A cancellation or suspension of a provider approval in another
29 participating jurisdiction has effect in this jurisdiction.
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1 Part 3 -- Service approval
2 Division 1 -- Application for service approval
3 43. Application for service approval
4 (1) An approved provider may apply to the Regulatory Authority for a
5 service approval for an education and care service.
6 (2) An approved provider may only apply for a service approval for an
7 education and care service if the approved provider is or will be the
8 operator of the education and care service and is or will be responsible
9 for the management of the staff members and nominated supervisor of
10 that service.
11 (3) A person who has applied for a provider approval may apply to the
12 Regulatory Authority for a service approval, however the Regulatory
13 Authority must not grant the service approval unless the provider
14 approval is granted.
15 44. Form of application
16 (1) An application for a service approval must --
17 (a) be made to the Regulatory Authority of the participating
18 jurisdiction in which the service is to be located; and
19 (b) be in writing; and
20 (c) include any prescribed information that is requested by the
21 Regulatory Authority; and
22 (d) nominate a certified supervisor to be the nominated
23 supervisor for the service and include that person's written
24 consent to the nomination; and
25 (e) include payment of the prescribed fee.
26 (2) An application for service approval may include an associated
27 children's service.
28 (3) The approved provider can be the nominated supervisor if he or
29 she --
30 (a) is a certified supervisor; or
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1 (b) has applied for a supervisor certificate --
2 however the Regulatory Authority must not grant the service approval
3 unless the supervisor certificate has been granted.
4 Note: This section differs from section 44 of the national law as set out in the
5 Schedule to the Education and Care Services National Law Act 2010
6 (Victoria).
7 45. Regulatory Authority may seek further information
8 (1) The Regulatory Authority may ask an applicant for a service approval
9 to provide any further information that is reasonably required for the
10 purpose of assessing the application.
11 (2) If the Regulatory Authority asks the applicant for further information
12 under this section, the period from the making of the request until the
13 provision of the further information is not included in the period
14 referred to in section 48 for the Regulatory Authority to make a
15 decision on the application.
16 46. Investigation of application for service approval
17 (1) For the purposes of determining an application for a service approval,
18 the Regulatory Authority may --
19 (a) undertake inquiries and investigations, including inquiries
20 relating to the previous licensing, accreditation or registration
21 of the education and care service under a former education
22 and care services law, a children's services law or an
23 education law of any participating jurisdiction; and
24 (b) inspect the education and care service premises; and
25 (c) inspect the policies and procedures of the service.
26 (2) For the purposes of an inspection under subsection (1)(b) or (c), the
27 Regulatory Authority may enter the education and care service
28 premises at any reasonable time.
29 47. Determination of application
30 (1) Subject to subsection (3), in determining an application under
31 section 43, the Regulatory Authority must have regard to --
32 (a) the National Quality Framework; and
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1 (b) except in the case of a family day care residence, the
2 suitability of the education and care service premises and the
3 site and location of those premises for the operation of an
4 education and care service; and
5 (c) the adequacy of the policies and procedures of the service;
6 and
7 (d) whether the applicant has a provider approval; and
8 (e) whether the nominated supervisor for the service is a certified
9 supervisor and whether that person has consented in writing
10 to the nomination; and
11 (f) any other matter the Regulatory Authority thinks fit; and
12 (g) any other prescribed matter.
13 (2) In addition, the Regulatory Authority may have regard to either of the
14 following --
15 (a) whether the applicant is capable of operating the education
16 and care service having regard to its financial capacity and
17 management capability and any other matter the Regulatory
18 Authority considers relevant;
19 (b) the applicant's history of compliance with this Law or this
20 Law as applying in any participating jurisdiction, including in
21 relation to any other education and care service it operates.
22 (3) Subject to subsection (4), in assessing an associated children's service
23 for the purposes of determining whether to grant a service approval,
24 the Regulatory Authority must have regard to the criteria under the
25 children's services law of this jurisdiction for the grant of a children's
26 services licence.
27 (4) The criteria referred to in subsection (3) do not include criteria
28 relating to whether the applicant is a fit and proper person.
29 48. Grant or refusal of service approval
30 (1) On an application under section 43, the Regulatory Authority may --
31 (a) grant the service approval; or
32 (b) refuse to grant the service approval.
33 Note: A service approval is granted subject to conditions in accordance with
34 section 51.
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1 (2) Subject to subsection (3), the Regulatory Authority must make a
2 decision on the application within 90 days after the Regulatory
3 Authority received the application.
4 Note: If further information is requested under section 45(2), the period
5 between the making of the request and the provision of the information
6 is not included in the 90 day period.
7 (3) The period referred to in subsection (2) may be extended with the
8 agreement of the applicant.
9 (4) The Regulatory Authority may grant a service approval solely for an
10 education and care service if --
11 (a) the application includes an application for an associated
12 children's service; and
13 (b) that associated children's service does not comply with the
14 criteria referred to in section 47(3).
15 (5) The Regulatory Authority is taken to have refused to grant a service
16 approval if the Regulatory Authority has not made a decision under
17 subsection (1) --
18 (a) within the relevant time required under subsection (2); or
19 (b) within the period extended under subsection (3) --
20 as the case requires.
21 (6) A service approval cannot be granted solely for an associated
22 children's service.
23 49. Grounds for refusal
24 (1) The Regulatory Authority must refuse to grant a service approval
25 if --
26 (a) the Regulatory Authority is satisfied that the service, if
27 permitted to operate, would constitute an unacceptable risk to
28 the safety, health or wellbeing of children who would be
29 educated or cared for by the education and care service; or
30 (b) the applicant does not have a provider approval.
31 (2) The Regulatory Authority may refuse to grant a service approval on
32 any other grounds prescribed in the national regulations.
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1 50. Notice of decision on application
2 The Regulatory Authority must give written notice to the applicant of
3 a decision under section 48 and the reasons for the decision within
4 7 days after the decision is made.
5 51. Conditions on service approval
6 (1) A service approval is granted subject to the condition that the
7 education and care service is operated in a way that --
8 (a) ensures the safety, health and wellbeing of the children being
9 educated and cared for by the service; and
10 (b) meets the educational and developmental needs of the
11 children being educated and cared for by the service.
12 (2) A service approval for a family day care service is granted subject to
13 the additional condition that the approved provider must ensure
14 that --
15 (a) sufficient persons are appointed as family day care
16 co-ordinators to monitor and support the family day care
17 educators engaged by or registered with the service; and
18 (b) each family day care educator is adequately monitored and
19 supported by a family day care co-ordinator.
20 (3) A service approval is granted subject to a condition that the service
21 must commence ongoing operation of the service within 6 months
22 after the approval is granted unless the Regulatory Authority agrees to
23 an extension of time.
24 (4) A service approval is granted subject to a condition that the approved
25 provider must hold the prescribed insurance in respect of the
26 education and care service.
27 (5) A service approval is granted subject to any other conditions
28 prescribed in the national regulations or imposed by --
29 (a) this Law; or
30 (b) the Regulatory Authority.
31 (6) A condition of a service approval does not apply to an associated
32 children's service unless the condition is expressed to apply to that
33 associated children's service.
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1 (7) A condition of a service approval may be expressed to apply solely to
2 an associated children's service only if the Regulatory Authority has
3 first consulted with the children's services regulator.
4 (8) An approved provider must comply with the conditions of a service
5 approval held by the approved provider.
6 Penalty: $10 000, in the case of an individual.
7 $50 000, in any other case.
8 52. Copy of service approval to be provided
9 If the Regulatory Authority grants a service approval under this Part,
10 the Regulatory Authority must provide a copy of the service approval
11 to the approved provider stating --
12 (a) the name of the education and care service; and
13 (b) the location of the education and care service or, if the
14 education and care service is a family day care service, the
15 location of the principal office and any approved family day
16 care venue for the service; and
17 (c) any conditions to which the service approval is subject; and
18 (d) the date the service approval was granted; and
19 (e) the service approval number; and
20 (f) the name of the approved provider; and
21 (g) for a service other than a family day care service, the
22 maximum number of children who can be educated and cared
23 for by the service at any one time; and
24 (h) the details of any service waiver under Division 5 or
25 temporary waiver under Division 6 applying to the service;
26 and
27 (i) any other prescribed matters.
28 53. Annual fee
29 An approved provider must, in accordance with the national
30 regulations, pay the prescribed annual fee in respect of each service
31 approval held by the approved provider.
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1 Division 2 -- Amendment of service approval
2 54. Amendment of service approval on application
3 (1) An approved provider may apply to the Regulatory Authority for an
4 amendment of a service approval.
5 (2) An application must --
6 (a) be in writing; and
7 (b) include any prescribed information that is requested by the
8 Regulatory Authority; and
9 (c) include payment of the prescribed fee.
10 (3) The Regulatory Authority may ask the approved provider to provide
11 any further information that is reasonably required for the purpose of
12 assessing the application.
13 (4) If the Regulatory Authority asks the applicant for further information
14 under this section, the period from the making of the request and the
15 provision of the further information is not included in the period
16 referred to in subsection (5).
17 (5) The Regulatory Authority must make a decision on the application
18 within 60 days after the Regulatory Authority receives the application.
19 (6) The Regulatory Authority must decide the application by --
20 (a) amending the service approval in the way applied for; or
21 (b) with the applicant's written agreement, amending the service
22 approval in another way; or
23 (c) refusing to amend the service approval.
24 (7) Without limiting subsection (6), an amendment may vary a condition
25 of the service approval or impose a new condition on the service
26 approval.
27 (8) An amendment cannot change a location of an education and care
28 service.
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1 (9) The Regulatory Authority must give written notice of its decision to
2 the approved provider.
3 Note: This section differs from section 54 of the national law as set out in the
4 Schedule to the Education and Care Services National Law Act 2010
5 (Victoria).
6 55. Amendment of service approval by Regulatory Authority
7 (1) The Regulatory Authority may amend a service approval at any time
8 without an application from the approved provider.
9 (2) Without limiting subsection (1), an amendment may vary a condition
10 of the service approval or impose a new condition on the service
11 approval.
12 (3) The Regulatory Authority must give written notice of the amendment
13 to the approved provider.
14 (4) An amendment under this section has effect --
15 (a) 14 days after the Regulatory Authority gives notice of the
16 amendment under subsection (3); or
17 (b) if another period is specified by the Regulatory Authority, at
18 the end of that period.
19 (5) The Regulatory Authority must amend a service approval to the extent
20 that it relates to an associated children's service in accordance with
21 any direction by the children's services regulator if that direction is
22 given in accordance with the children's services law of this
23 jurisdiction.
24 56. Notice of change to nominated supervisor
25 (1) The approved provider of an education and care service must give
26 written notice to the Regulatory Authority in accordance with this
27 section if the approved provider wishes to change the person
28 nominated as the nominated supervisor of the education and care
29 service.
30 (2) The notice must --
31 (a) nominate a certified supervisor to be the nominated
32 supervisor for the service and include that person's written
33 consent to the nomination; and
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1 (b) include any prescribed information that is requested by the
2 Regulatory Authority; and
3 (c) be given --
4 (i) at least 7 days before the new certified supervisor is
5 to commence work as the nominated supervisor; or
6 (ii) if that period of notice is not possible in the
7 circumstances, as soon as practicable and not more
8 than 14 days after the certified supervisor commences
9 work as the nominated supervisor.
10 Note: This section differs from section 56 of the national law as set out in the
11 Schedule to the Education and Care Services National Law Act 2010
12 (Victoria).
13 57. Copy of amended service approval to be provided
14 If the Regulatory Authority amends a service approval under this
15 Division, the Authority must provide an amended copy of the service
16 approval to the approved provider.
17 Division 3 -- Transfer of service approval
18 58. Service approval may be transferred
19 (1) Subject to this Division, an approved provider who holds a service
20 approval (transferring approved provider) may transfer the service
21 approval to another approved provider (receiving approved provider).
22 (2) If a service approval is transferred to a receiving approved provider
23 the transfer includes the transfer of the service approval for any
24 associated children's service.
25 (3) A person who holds a provider approval may transfer a service
26 approval held by the provider even if the provider approval or service
27 approval is suspended.
28 59. Regulatory Authority to be notified of transfer
29 (1) The transferring approved provider and the receiving approved
30 provider must jointly notify the Regulatory Authority of the
31 transfer --
32 (a) at least 42 days before the transfer is intended to take effect;
33 or
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1 (b) if the Regulatory Authority considers that the circumstances
2 are exceptional, a lesser period agreed to by the Regulatory
3 Authority.
4 (2) The notice must --
5 (a) be in writing; and
6 (b) include any prescribed information that is requested by the
7 Regulatory Authority; and
8 (c) include payment of the prescribed fee.
9 Note: This section differs from section 59 of the national law as set out in the
10 Schedule to the Education and Care Services National Law Act 2010
11 (Victoria).
12 60. Consent of Regulatory Authority required for transfer
13 A service approval cannot be transferred without the consent of the
14 Regulatory Authority.
15 61. Consent taken to be given unless Regulatory Authority intervenes
16 The Regulatory Authority is taken to have consented to the transfer of
17 a service approval if --
18 (a) the parties have given a notification under section 59; and
19 (b) 28 days before the transfer is intended to take effect, the
20 Regulatory Authority has not notified the parties that it
21 intends to intervene under section 62.
22 62. Transfer may be subject to intervention by Regulatory Authority
23 (1) The Regulatory Authority may intervene in a transfer of a service
24 approval if the Regulatory Authority is concerned as to any of the
25 following matters --
26 (a) whether the receiving approved provider is capable of
27 operating the education and care service having regard to its
28 financial capacity and management capability and any other
29 matter the Regulatory Authority considers relevant;
30 (b) the receiving approved provider's history of compliance with
31 this Law as applying in a participating jurisdiction, including
32 in relation to any other education and care service it operates;
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1 (c) any other matter relevant to the transfer of the service
2 approval.
3 (2) The Regulatory Authority must notify the transferring approved
4 provider and the receiving approved provider of the decision to
5 intervene.
6 (3) The notice must be given at least 28 days before the date on which the
7 transfer is intended to take effect.
8 (4) A notification under subsection (2) must --
9 (a) be in writing; and
10 [(b) this national law provision does not apply as a law of WA.]
11 Note: This section differs from section 62 of the national law as set out in the
12 Schedule to the Education and Care Services National Law Act 2010
13 (Victoria).
14 63. Effect of intervention
15 If the Regulatory Authority intervenes under section 62, the transfer
16 must not proceed unless and until the Regulatory Authority gives
17 written consent to the transfer.
18 64. Regulatory Authority may request further information
19 If the Regulatory Authority has intervened under section 62, the
20 Regulatory Authority may --
21 (a) request further information from the transferring approved
22 provider or receiving approved provider for the purposes of
23 deciding whether to consent to the transfer; and
24 (b) undertake inquiries in relation to the receiving approved
25 provider for that purpose.
26 65. Decision after intervention
27 (1) If the Regulatory Authority has intervened under section 62, it may
28 decide --
29 (a) to consent to the proposed transfer; or
30 (b) to refuse to consent to the proposed transfer.
31 (2) If the Regulatory Authority consents to the proposed transfer the
32 Regulatory Authority may impose conditions on the consent,
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1 including specifying the date on which the proposed transfer is to take
2 effect.
3 (3) The service approval must be transferred in accordance with the
4 conditions imposed on the consent.
5 66. Regulatory Authority to notify outcome 7 days before transfer
6 (1) If the Regulatory Authority has intervened in the transfer of a service
7 approval, the Authority must, at least 7 days before the date on which
8 the transfer is intended to take effect, give a notice to each party
9 specifying that the Authority --
10 (a) consents to the transfer; or
11 (b) refuses to consent to the transfer; or
12 (c) has suspended further consideration of the transfer until
13 further information is received and that the transfer may not
14 proceed until a further notice is given under this section
15 consenting to the transfer; or
16 (d) has not yet made a decision on the transfer and that the
17 Regulatory Authority will make a decision on the transfer
18 within 28 days and that the transfer may not proceed until a
19 further notice is given under this section consenting to the
20 transfer.
21 (2) If the Regulatory Authority consents to the transfer, the notice --
22 (a) must specify --
23 (i) the date on which the transfer is to take effect; and
24 (ii) any conditions on the consent to the transfer; and
25 (b) may include notice of any condition that the Regulatory
26 Authority has imposed on the provider approval or a service
27 approval of the receiving approved provider because of the
28 transfer.
29 (3) If the Regulatory Authority refuses to consent to the transfer, the
30 notice must include the reasons for the refusal.
31 67. Transfer of service approval without consent is void
32 A transfer of a service approval is void if --
33 (a) it is made without the consent of the Regulatory Authority; or
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1 (b) it is made in contravention of the conditions imposed by the
2 Regulatory Authority on the consent to the transfer; or
3 (c) it is made to a person who is not the approved provider who
4 gave the notification under section 59 as the receiving
5 approved provider.
6 68. Confirmation of transfer
7 (1) The transferring approved provider and the receiving approved
8 provider must give written notice to the Regulatory Authority within
9 2 days after the transfer takes effect specifying the date of the transfer.
10 Penalty: $4 000, in the case of an individual.
11 $20 000, in any other case.
12 (2) On receipt of a notice under this section, the Regulatory Authority
13 must amend the service approval and provide an amended copy of the
14 service approval to the receiving approved provider.
15 (3) The amendment to the service approval is taken to take effect on the
16 date of the transfer.
17 (4) An approved provider who gives notice under this section is not guilty
18 of an offence for a failure of any other person to give that notice.
19 69. Notice to parents
20 (1) The receiving approved provider must give written notice to the
21 parents of children enrolled at an education and care service of the
22 transfer of the service approval for that service to that provider.
23 Penalty: $3 000, in the case of an individual.
24 $15 000, in any other case.
25 (2) The notice must be given at least 2 days before the date on which the
26 transfer of the service approval takes effect.
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1 Division 4 -- Suspension or cancellation of service approval
2 70. Grounds for suspension of service approval
3 (1) A Regulatory Authority may suspend a service approval if --
4 (a) the Regulatory Authority reasonably believes that it would
5 not be in the best interests of children being educated and
6 cared for by the service for the service to continue; or
7 (b) a condition of the service approval has not been complied
8 with; or
9 (c) the service is not being managed in accordance with this
10 Law; or
11 (d) the service has operated at a rating level as not meeting the
12 National Quality Standard and --
13 (i) a service waiver or temporary waiver does not apply
14 to the service in respect of that non-compliance; and
15 (ii) there has been no improvement in the rating level; or
16 (e) the approved provider has contravened this Law as applying
17 in any participating jurisdiction; or
18 (f) the approved provider has failed to comply with a direction,
19 compliance notice or emergency order under this Law as
20 applying in any participating jurisdiction in relation to the
21 service; or
22 (g) the approved provider has --
23 (i) ceased to operate the education and care service at the
24 education and care service premises for which the
25 service approval was granted; and
26 (ii) within 6 months of ceasing to operate the service, has
27 not transferred the service to another approved
28 provider; or
29 (h) the approved provider has not, within 6 months after being
30 granted a service approval, commenced ongoing operation of
31 the service; or
32 (i) the approved provider has not paid --
33 (i) an amount due under a monetary order made under,
34 or in relation to proceedings commenced by an
35 allegation made under, section 188B; or
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1 (ii) any outstanding prescribed fees.
2 (2) In subsection (1) --
3 monetary order has the meaning given in the State Administrative
4 Tribunal Act 2004 section 3(1).
5 Note: This section differs from section 70 of the national law as set out in the
6 Schedule to the Education and Care Services National Law Act 2010
7 (Victoria).
8 71. Show cause notice before suspension
9 (1) This section applies if the Regulatory Authority is considering the
10 suspension of a service approval under section 70.
11 (2) The Regulatory Authority must first give the approved provider a
12 notice (show cause notice) stating --
13 (a) that the Regulatory Authority intends to suspend the service
14 approval; and
15 (b) the proposed period of suspension; and
16 (c) the reasons for the proposed suspension; and
17 (d) that the approved provider may, within 30 days after the
18 notice is given, give the Regulatory Authority a written
19 response to the proposed suspension.
20 72. Decision in relation to suspension
21 After considering any written response from the approved provider
22 received within the time allowed by section 71(2)(d), the Regulatory
23 Authority may --
24 (a) suspend the service approval for a period not more than the
25 prescribed period; or
26 (b) decide not to suspend the service approval.
27 73. Suspension of service approval without show cause
28 The Regulatory Authority may suspend the service approval without
29 giving the approved provider a show cause notice under section 71 if
30 the Regulatory Authority is satisfied that there is an immediate risk to
31 the safety, health or wellbeing of a child or children being educated
32 and cared for by the education and care service.
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1 74. Notice and effect of decision
2 (1) The Regulatory Authority must give the approved provider written
3 notice of the decision to suspend.
4 (2) Subject to section 76, the decision under section 72 to suspend takes
5 effect at the end of 14 days after the date of the decision, or, if another
6 period is specified by the Regulatory Authority, at the end of that
7 period.
8 (3) Subject to section 76, the decision under section 73 to suspend takes
9 effect on the giving of the notice.
10 (4) The notice of a decision to suspend must set out --
11 (a) the period of suspension; and
12 (b) the date on which it takes effect.
13 (5) A suspension of a service approval also suspends the service approval
14 to the extent that it relates to an associated children's service.
15 75. Suspension of service approval to the extent that it relates to
16 associated children's service
17 (1) If the Regulatory Authority considers that a service approval should
18 be suspended to the extent only that it applies to an associated
19 children's service, the Regulatory Authority must refer the matter to
20 the children's services regulator of this jurisdiction for determination
21 under the children's services law.
22 (2) The children's services regulator must notify the Regulatory
23 Authority if it proposes to conduct any investigation or inquiry into an
24 associated children's service under the children's services law.
25 (3) If a final determination is made under the children's services law of
26 this jurisdiction that a service approval should be suspended to the
27 extent that it relates to an associated children's service --
28 (a) the children's services regulator must advise the Regulatory
29 Authority of that determination; and
30 (b) the service approval is suspended to the extent that it relates
31 to the associated children's service in accordance with that
32 determination.
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1 76. Transfer of suspended service
2 (1) The Regulatory Authority may consent under this Part to the transfer
3 of a service approval that is suspended under section 72 or 73.
4 (2) The suspension of the service approval ceases on the transfer taking
5 effect, unless the conditions of the Regulatory Authority's consent to
6 the transfer otherwise provide.
7 77. Grounds for cancellation of service approval
8 A Regulatory Authority may cancel a service approval if --
9 (a) the Regulatory Authority reasonably believes that the
10 continued operation of the education and care service would
11 constitute an unacceptable risk to the safety, health or
12 wellbeing of any child or class of children being educated and
13 cared for by the education and care service; or
14 (b) the service has been suspended under section 72 or 73 and the
15 reason for the suspension has not been rectified at or before
16 the end of the period of suspension; or
17 (c) the service approval was obtained improperly; or
18 (d) a condition of the service approval has not been complied
19 with.
20 78. Show cause notice before cancellation
21 (1) This section applies if the Regulatory Authority is considering the
22 cancellation of a service approval under section 77.
23 (2) The Regulatory Authority must first give the approved provider a
24 notice (show cause notice) stating --
25 (a) that the Regulatory Authority intends to cancel the service
26 approval; and
27 (b) the reasons for the proposed cancellation; and
28 (c) that the approved provider may, within 30 days after the
29 notice is given, give the Regulatory Authority a written
30 response to the proposed cancellation.
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1 79. Decision in relation to cancellation
2 (1) After considering any written response from the approved provider
3 received within the time allowed by section 78(2)(c), the Regulatory
4 Authority --
5 (a) may --
6 (i) cancel the service approval; or
7 (ii) suspend the service approval for a period not more
8 than the prescribed period; or
9 (iii) decide not to cancel the service approval; and
10 (b) must give the approved provider written notice of the
11 decision.
12 (2) Subject to section 81, the decision to cancel the service approval takes
13 effect --
14 (a) at the end of 14 days after the date of the decision; or
15 (b) if another period is specified by the Regulatory Authority, at
16 the end of that period.
17 (3) The notice of a decision to cancel must set out the date on which it
18 takes effect.
19 (4) A cancellation of a service approval includes the cancellation of the
20 service approval to the extent that it relates to an associated children's
21 service.
22 (5) This Law applies to a suspension of a service approval under this
23 section as if it were a suspension under section 72.
24 80. Cancellation of service approval to the extent that it relates to
25 associated children's service
26 (1) If the Regulatory Authority considers that a service approval should
27 be cancelled to the extent only that it applies to an associated
28 children's service, the Regulatory Authority must refer the matter to
29 the children's services regulator of this jurisdiction for determination
30 under the children's services law.
31 (2) The children's services regulator must notify the Regulatory
32 Authority if it proposes to conduct any investigation or inquiry into an
33 associated children's service under the children's services law.
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1 (3) If a final determination is made under the children's services law of
2 this jurisdiction that a service approval should be cancelled to the
3 extent that it relates to an associated children's service --
4 (a) the children's services regulator must advise the Regulatory
5 Authority of that determination; and
6 (b) the service approval is cancelled to the extent that it relates to
7 the associated children's service in accordance with that
8 determination.
9 81. Application for transfer of cancelled service
10 (1) An approved provider may apply to the Regulatory Authority under
11 this Part for consent to transfer a service approval that is to be
12 cancelled under this Part.
13 (2) The application for consent to transfer must be made within 14 days
14 after the decision to cancel the service approval is made.
15 (3) If an application for consent to transfer is made, the cancellation of
16 the service approval does not take effect, and the service approval is
17 suspended, until the Regulatory Authority determines the application.
18 (4) An application cannot be made under this section for consent to
19 transfer a cancelled service approval if the cancellation relates only to
20 an associated children's service.
21 82. Decision on application to transfer cancelled service
22 (1) If the Regulatory Authority consents to the transfer --
23 (a) the decision to cancel the service approval is revoked; and
24 (b) the suspension of the service approval ceases on the transfer
25 taking effect, unless the conditions imposed by the
26 Regulatory Authority on the consent to the transfer specify a
27 later date for the suspension to cease.
28 (2) If the Regulatory Authority refuses to consent to the transfer, the
29 service approval is cancelled on the making of the decision to refuse
30 to consent.
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1 83. Approved provider to provide information to Regulatory
2 Authority
3 (1) This section applies if a show cause notice has been given to an
4 approved provider under section 71 or 78.
5 (2) The approved provider, at the request of the Regulatory Authority,
6 must provide the Authority with the contact details of the parents of
7 all children enrolled at the education and care service.
8 (3) The Regulatory Authority may use the information provided under
9 subsection (2) solely to notify the parents of children enrolled at an
10 approved education and care service of a suspension or cancellation of
11 the service approval for the service.
12 84. Notice to parents of suspension or cancellation
13 (1) This section applies if a service approval has been suspended or
14 cancelled under section 72, 73, 79 or 81.
15 (2) The Regulatory Authority may require the approved provider to give
16 written notice of the suspension or cancellation and its effect to the
17 parents of children enrolled at the education and care service to which
18 the approval relates and any associated children's service.
19 (3) The approved provider must comply with a requirement made under
20 subsection (2).
21 Penalty: $3 000, in the case of an individual.
22 $15 000, in any other case.
23 85. Voluntary suspension of service approval
24 (1) An approved provider may apply to the Regulatory Authority for the
25 suspension of a service approval for a period of not more than
26 12 months.
27 (2) The application must --
28 (a) be in writing; and
29 (b) include any prescribed information that is requested by the
30 Regulatory Authority; and
31 (c) include payment of the prescribed fee.
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1 (3) The Regulatory Authority may agree to the suspension, having regard
2 to whether the suspension is reasonable in the circumstances.
3 (4) The approved provider must, at least 14 days before making an
4 application under this section, notify the parents of children enrolled
5 at the education and care service and any associated children's service
6 of the intention to make the application.
7 (5) The Regulatory Authority must, within 30 days after the application is
8 made, decide whether or not to grant the application.
9 (6) If the Regulatory Authority decides to grant the application, the
10 suspension takes effect on a date agreed between the Regulatory
11 Authority and the approved provider.
12 Note: This section differs from section 85 of the national law as set out in the
13 Schedule to the Education and Care Services National Law Act 2010
14 (Victoria).
15 86. Surrender of service approval
16 (1) An approved provider may surrender a service approval by written
17 notice to the Regulatory Authority.
18 (2) The notice must specify a date on which the surrender is intended to
19 take effect which must be --
20 (a) after the notice is given; and
21 (b) after the end of the period of notice required under
22 subsection (3).
23 (3) The approved provider must notify the parents of children enrolled at
24 the education and care service to which the approval relates and any
25 associated children's service of the intention to surrender the service
26 approval, at least 14 days before the surrender is intended to take
27 effect.
28 (4) If a service approval is surrendered, the approval is cancelled on the
29 date specified in the notice.
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1 Division 5 -- Application for service waiver
2 87. Application for service waiver for service
3 (1) An approved provider may apply to the Regulatory Authority for a
4 waiver from a requirement that an approved education and care
5 service comply with a prescribed element or elements of the National
6 Quality Standard and the national regulations as provided for in the
7 national regulations.
8 (2) A person who applies for a service approval may apply for a service
9 waiver under this section together with the application for the service
10 approval.
11 (3) The Regulatory Authority must not grant a service waiver to a person
12 who applies under subsection (2) unless the service approval is
13 granted to that person.
14 88. Form of application
15 An application under section 87 must --
16 (a) be in writing; and
17 (b) include any prescribed information that is requested by the
18 Regulatory Authority; and
19 (c) include payment of the prescribed fee.
20 Note: This section differs from section 88 of the national law as set out in the
21 Schedule to the Education and Care Services National Law Act 2010
22 (Victoria).
23 89. Powers of Regulatory Authority in considering application
24 For the purpose of determining an application under this Division, the
25 Regulatory Authority may --
26 (a) ask the applicant to provide further information; and
27 (b) inspect the education and care service premises and the office
28 of the applicant.
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1 90. Matters to be considered
2 In considering whether the grant of a service waiver is appropriate,
3 the Regulatory Authority may have regard to either or both of the
4 following --
5 (a) whether the education and care service is able to meet the
6 prescribed element or elements of the National Quality
7 Standard and the national regulations by alternative means
8 that satisfy the objectives of those elements;
9 (b) any matters disclosed in the application that are relevant to
10 the application for the service waiver.
11 91. Decision on application
12 (1) On an application under this Division, the Regulatory Authority may
13 decide to grant the service waiver or refuse the application.
14 (2) Subject to subsection (3), the Regulatory Authority must notify the
15 applicant within 60 days after the application is made of the
16 Authority's decision on the application.
17 (3) If an application for a service waiver has been made together with an
18 application for service approval, the Regulatory Authority may notify
19 the applicant of the Authority's decision on the application at the
20 same time as the notice of the decision on the application for the
21 service approval.
22 (4) If a service waiver is granted, the Regulatory Authority must issue or
23 reissue the service approval specifying the element or elements of the
24 National Quality Standard and the national regulations to which the
25 service waiver applies.
26 92. Revocation of service waiver
27 (1) The Regulatory Authority may, at its discretion, revoke a service
28 waiver.
29 (2) An approved provider may apply to the Regulatory Authority for the
30 revocation of a service waiver applying to any education and care
31 service that it operates.
32 (3) A revocation under this section takes effect at the end of the period
33 prescribed in the national regulations.
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1 93. Effect of service waiver
2 While a service waiver is in force, the approved education and care
3 service is taken to comply with the element or elements of the
4 National Quality Standard and the national regulations that are
5 specified in the service waiver.
6 Division 6 -- Temporary waiver
7 94. Application for temporary waiver
8 An approved provider may apply to the Regulatory Authority for a
9 temporary waiver from a requirement that an approved education and
10 care service comply with any prescribed element or elements of the
11 National Quality Standard and the national regulations as provided for
12 in the national regulations.
13 95. Form of application
14 An application under section 94 must --
15 (a) be in writing; and
16 (b) include any prescribed information that is requested by the
17 Regulatory Authority; and
18 (c) include payment of the prescribed fee.
19 Note: This section differs from section 95 of the national law as set out in the
20 Schedule to the Education and Care Services National Law Act 2010
21 (Victoria).
22 96. Regulatory Authority may seek further information
23 For the purpose of determining an application under this Division, the
24 Regulatory Authority may --
25 (a) ask the applicant to provide further information; and
26 (b) inspect the education and care service premises and the office
27 of the applicant.
28 97. Special circumstances
29 In considering whether the grant of a temporary waiver is appropriate,
30 the Regulatory Authority must have regard to whether special
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1 circumstances disclosed in the application reasonably justify the grant
2 of the temporary waiver.
3 98. Decision on application
4 (1) The Regulatory Authority must notify the applicant within 60 days
5 after the application is made of the Authority's decision on the
6 application.
7 (2) A temporary waiver must specify the period of the waiver which
8 cannot be for a period of more than 12 months.
9 (3) The Regulatory Authority, on the application of the approved
10 provider, may --
11 (a) extend and further extend the period of a temporary waiver
12 by periods of not more than 12 months; and
13 (b) grant a further temporary waiver for an education and care
14 service under this Division.
15 (4) If the Regulatory Authority grants a temporary waiver, the Regulatory
16 Authority must issue or reissue the service approval specifying the
17 element or elements of the National Quality Standard and the national
18 regulations which have been temporarily waived and the period of the
19 waiver.
20 99. Revocation of temporary waiver
21 The Regulatory Authority may, at its discretion, revoke a temporary
22 waiver.
23 100. Effect of temporary waiver
24 While a temporary waiver is in force, the approved education and care
25 service is not required to comply with the element or elements of the
26 National Quality Standard and the national regulations that have been
27 temporarily waived.
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1 Division 7 -- Exercise of powers by another Regulatory Authority
2 101. Exercise of powers by another Regulatory Authority -- family
3 day care services
4 (1) This section applies if the Regulatory Authority has granted a service
5 approval under this Part to an approved provider for a family day care
6 service.
7 (2) A Regulatory Authority of another participating jurisdiction may
8 exercise all the powers and perform all the functions of a Regulatory
9 Authority under this Part (except Division 3 or section 76, 81 or 82) in
10 respect of the service approval if the family day care service operates
11 in that participating jurisdiction.
12 (3) A Regulatory Authority (including the Regulatory Authority of this
13 jurisdiction) may only exercise a power to amend, suspend or cancel a
14 service approval after consulting with the Regulatory Authority of
15 each participating jurisdiction in which the family day care service
16 operates.
17 (4) A failure by a Regulatory Authority to comply with subsection (3)
18 does not affect the validity of the exercise of the power.
19 (5) A cancellation or suspension of a service approval for a family day
20 care service in another participating jurisdiction has effect in this
21 jurisdiction.
22 Division 8 -- Associated children's services
23 102. Application of this Law to associated children's services
24 This Law does not apply to an associated children's service except as
25 expressly provided in this Law.
26 Division 9 -- Offences
27 103. Offence to provide an education and care service without service
28 approval
29 (1) A person must not provide an education and care service unless --
30 (a) the person is an approved provider in respect of that service;
31 and
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1 (b) the education and care service is an approved education and
2 care service.
3 Penalty: $20 000, in the case of an individual.
4 $100 000, in any other case.
5 (2) Subsection (1) does not apply to a family day care educator providing
6 education and care to children as part of an approved family day care
7 service.
8 104. Offence to advertise education and care service without service
9 approval
10 (1) A person must not knowingly publish or cause to be published an
11 advertisement for an education and care service unless it is an
12 approved education and care service.
13 Penalty: $6 000, in the case of an individual.
14 $30 000, in any other case.
15 (2) Subsection (1) does not apply if an application for a service approval
16 in respect of the education and care service has been made under this
17 Law but has not been decided.
18 Part 4 -- Supervisor certificates
19 Division 1 -- Application for supervisor certificate
20 105. Purpose of supervisor certificate
21 A supervisor certificate makes the person to whom it is issued eligible
22 to be placed in day to day charge of an approved education and care
23 service.
24 106. Application for supervisor certificate
25 (1) A person may apply to the Regulatory Authority for a supervisor
26 certificate.
27 (2) An applicant must be an individual of or above the age of 18 years.
28 (3) An application must be made to the Regulatory Authority of the
29 participating jurisdiction in which the applicant is ordinarily resident
30 or intending to reside.
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1 107. Form of application
2 An application under section 106 must --
3 (a) be in writing signed by the applicant; and
4 (b) include any prescribed information that is requested by the
5 Regulatory Authority; and
6 (c) include payment of the prescribed fee.
7 Note: This section differs from section 107 of the national law as set out in
8 the Schedule to the Education and Care Services National Law
9 Act 2010 (Victoria).
10 108. Applicant must satisfy Regulatory Authority of specified matters
11 (1) An applicant must satisfy the Regulatory Authority that the
12 applicant --
13 (a) is a fit and proper person to be a supervisor of an education
14 and care service; and
15 (b) meets the prescribed minimum requirements for
16 qualifications, experience and management capability.
17 (2) The following persons are taken, in the absence of evidence to the
18 contrary, to satisfy the requirements of subsection (1)(a) --
19 (a) a person who is a registered teacher under an education law
20 of a participating jurisdiction;
21 (b) a person who holds a current working with children card
22 under the working with children law of a participating
23 jurisdiction.
24 109. Matters to be taken into account in assessing whether fit and
25 proper person
26 (1) The Regulatory Authority, in determining whether it is satisfied that a
27 person is a fit and proper person under this Division, must have regard
28 to --
29 (a) the history of the person's compliance with --
30 (i) this Law as applying in any participating jurisdiction;
31 and
32 (ii) a former education and care services law of a
33 participating jurisdiction; and
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1 (iii) a children's services law of a participating
2 jurisdiction; and
3 (iv) an education law of a participating jurisdiction; and
4 Note: If a person has been served with an infringement notice for an offence
5 under this Law, and the person has paid the penalty, the Regulatory
6 Authority cannot consider that conduct when determining whether the
7 person is fit and proper. See section 291(5).
8 (ab) any disciplinary action taken against the person; and
9 (b) any decision under a former education and care services law,
10 a children's services law or an education law of a
11 participating jurisdiction to refuse, refuse to renew, suspend
12 or cancel a licence, approval, registration or certification or
13 other authorisation granted to the person under that law; and
14 (c) the working with children check for that person, or if there is
15 no working with children check for that person, any
16 prescribed matters relating to the criminal history of the
17 person to the extent that that history may affect the person's
18 suitability for the role of supervisor of an education and care
19 service.
20 (2) Without limiting subsection (1), the Regulatory Authority may have
21 regard to whether the person has a medical condition that may affect
22 the person's capacity to be the supervisor of an education and care
23 service.
24 (3) Nothing in subsection (1) or (2) limits the circumstances in which a
25 person may be considered not to satisfy the Regulatory Authority that
26 he or she is a fit and proper person to be a supervisor of an education
27 and care service.
28 Note: This section differs from section 109 of the national law as set out in
29 the Schedule to the Education and Care Services National Law
30 Act 2010 (Victoria).
31 110. Regulatory Authority may seek further information
32 (1) For the purpose of carrying out an assessment as to whether a person
33 is a fit and proper person to hold a supervisor certificate, the
34 Regulatory Authority may --
35 (a) ask the person in respect of whom the assessment is being
36 carried out to provide further information; and
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1 (b) undertake inquiries or investigations in relation to the person
2 in respect of whom the assessment is being carried out.
3 (2) If the Regulatory Authority asks the applicant for further information
4 under this section, the period from the making of the request until the
5 provision of the further information is not included in the period
6 referred to in section 111 for the Regulatory Authority to make a
7 decision on the application.
8 111. Grant or refusal of supervisor certificate
9 (1) The Regulatory Authority may grant or refuse to grant a supervisor
10 certificate on an application under section 106.
11 Note: A supervisor certificate is granted subject to conditions in accordance
12 with section 115.
13 (2) Subject to subsection (3), the Regulatory Authority must make a
14 decision on the application within 60 days after the Regulatory
15 Authority received the application.
16 Note: If further information is requested under section 110, the period
17 between the making of the request and the provision of the information
18 is not included in the 60 day period.
19 (3) The period referred to in subsection (2) may be extended by up to
20 30 days with the agreement of the applicant.
21 (4) The Regulatory Authority is taken to have refused to grant a
22 supervisor certificate if the Regulatory Authority has not made a
23 decision under subsection (1) --
24 (a) within the relevant time required under subsection (2); or
25 (b) within the period extended under subsection (3),
26 as the case requires.
27 112. Grounds for refusal
28 The Regulatory Authority must refuse to grant a supervisor certificate
29 if --
30 (a) the Regulatory Authority is not satisfied that the applicant is a
31 fit and proper person to be the supervisor of an education and
32 care service; or
33 (b) the applicant is under the age of 18 years; or
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1 (c) the Regulatory Authority is not satisfied that the applicant
2 meets the prescribed minimum requirements for
3 qualifications, experience and management capability.
4 113. Notice of decision on application
5 The Regulatory Authority must give written notice to the applicant of
6 a decision under section 111 and the reasons for the decision within
7 7 days after the decision is made.
8 114. Grant of supervisor certificate to specified classes of persons
9 (1) The Regulatory Authority may grant a supervisor certificate to a
10 person in a prescribed class of persons.
11 Note: A supervisor certificate is granted subject to conditions in accordance
12 with section 115.
13 (2) Sections 106 to 113 do not apply to the grant of a supervisor
14 certificate under this section.
15 115. Conditions on certificate
16 (1) A supervisor certificate is subject to any conditions imposed by --
17 (a) this Law; or
18 (b) the Regulatory Authority.
19 (2) Without limiting subsection (1), a supervisor certificate is subject to
20 the condition that the certified supervisor must, to the extent that a
21 matter is within the supervisor's control, comply with this Law in
22 relation to that matter.
23 (3) Without limiting subsection (1), a supervisor certificate is subject to
24 the condition that the certified supervisor must notify the Regulatory
25 Authority of a change in his or her name or mailing address.
26 (4) A certified supervisor must comply with the conditions of the
27 supervisor certificate held by that person.
28 Penalty: $4 000.
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1 116. Issue of certificate
2 If the Regulatory Authority grants a supervisor certificate under
3 section 111 or 114, the Authority must issue a certificate containing
4 the following information to the applicant --
5 (a) the name of the certified supervisor or the prescribed class of
6 person to which the certified supervisor belongs;
7 (b) any conditions imposed on the supervisor certificate;
8 (c) the date the supervisor certificate was granted;
9 (d) the certified supervisor number;
10 (e) any other prescribed information.
11 117. Effect of supervisor certificate
12 A person who is the holder of a supervisor certificate may --
13 (a) be nominated as the nominated supervisor of an education
14 and care service; and
15 (b) be the responsible person present at the education and care
16 service premises in the absence of the approved provider or
17 the nominated supervisor.
18 Division 2 -- Reassessment
19 118. Reassessment of suitability
20 (1) The Regulatory Authority may at any time reassess whether a
21 certified supervisor is a fit and proper person to be a supervisor of an
22 education and care service.
23 (2) Sections 108, 109 and 110 apply to the reassessment.
24 Division 3 -- Amendment of supervisor certificate
25 119. Amendment of supervisor certificate on application
26 (1) A certified supervisor may apply to the Regulatory Authority for an
27 amendment of the supervisor certificate.
28 (2) The application must --
29 (a) be in writing; and
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1 (b) include any prescribed information that is requested by the
2 Regulatory Authority; and
3 (c) include payment of the prescribed fee.
4 (3) The Regulatory Authority must decide the application by --
5 (a) amending the supervisor certificate in the way applied for; or
6 (b) with the applicant's written agreement, amending the
7 supervisor certificate in another way; or
8 (c) refusing to amend the supervisor certificate.
9 (4) The Regulatory Authority must make a decision on the application
10 within 30 days after the Regulatory Authority receives the application.
11 (5) Without limiting subsection (3), an amendment may vary a condition
12 of the supervisor certificate or impose a new condition on the
13 supervisor certificate.
14 Note: This section differs from section 119 of the national law as set out in
15 the Schedule to the Education and Care Services National Law
16 Act 2010 (Victoria).
17 120. Amendment of supervisor certificate by Regulatory Authority
18 (1) The Regulatory Authority may amend a supervisor certificate at any
19 time.
20 (2) Without limiting subsection (1), an amendment may vary a condition
21 of the supervisor certificate or impose a new condition on the
22 supervisor certificate.
23 (3) The Regulatory Authority must give written notice to the certified
24 supervisor of the amendment.
25 (4) An amendment under this section has effect --
26 (a) 14 days after the Regulatory Authority gives notice of the
27 amendment under subsection (3); or
28 (b) if another period is specified by the Regulatory Authority, at
29 the end of that period.
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1 121. Notice of change of circumstances
2 (1) A certified supervisor must notify the Regulatory Authority of --
3 (a) any change in the circumstances of the supervisor that
4 affects --
5 (i) a requirement under section 108 or 109; or
6 (ii) the information specified in the supervisor certificate
7 under section 116; or
8 (b) the suspension or cancellation of a working with children
9 check, working with children card or teacher registration held
10 by the certified supervisor; or
11 (c) any disciplinary proceedings in relation to the certified
12 supervisor under an education law of a participating
13 jurisdiction.
14 Penalty: $4 000.
15 (2) The notice must be given within 7 days after the change occurs.
16 122. Notice of change of information
17 If the certified supervisor notifies the Regulatory Authority of a
18 change in any of the information stated on the supervisor certificate,
19 the Regulatory Authority may amend the supervisor certificate to
20 show the correct information.
21 Division 4 -- Suspension or cancellation of supervisor certificate
22 123. Grounds for suspension or cancellation of supervisor certificate
23 The Regulatory Authority may suspend or cancel a supervisor
24 certificate --
25 (a) if the Regulatory Authority is of the opinion that the certified
26 supervisor is no longer a fit and proper person to be a
27 supervisor of an education and care service; or
28 (b) if the certified supervisor fails to comply with a condition of
29 the supervisor certificate; or
30 (c) if the certified supervisor fails to comply with a requirement
31 of this Law as applying in any participating jurisdiction in
32 relation to a matter within the certified supervisor's control.
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1 124. Show cause notice before suspension or cancellation
2 (1) This section applies if the Regulatory Authority is considering the
3 suspension or cancellation of a supervisor certificate under
4 section 123.
5 (2) The Regulatory Authority must first give the certified supervisor a
6 notice (show cause notice) stating --
7 (a) that the Regulatory Authority intends to suspend or cancel the
8 supervisor certificate; and
9 (b) the reasons for the proposed suspension or cancellation; and
10 (c) that the certified supervisor may, within 30 days after the
11 notice is given, give the Regulatory Authority a written
12 response to the proposed suspension or cancellation.
13 125. Decision in relation to suspension or cancellation
14 After considering any written response from the certified supervisor
15 received within the time allowed by section 124(2)(c) (if applicable),
16 the Regulatory Authority --
17 (a) may --
18 (i) suspend the supervisor certificate for a period not
19 exceeding the prescribed period; or
20 (ii) cancel the supervisor certificate; or
21 (iii) decide not to suspend or cancel the supervisor
22 certificate; and
23 (b) must give the certified supervisor notice of the decision.
24 126. Suspension of supervisor certificate without show cause notice
25 The Regulatory Authority may suspend the supervisor certificate on a
26 ground referred to in section 123 without giving the supervisor a show
27 cause notice under section 124 if the Regulatory Authority is satisfied
28 that there is an immediate risk to the safety, health or wellbeing of a
29 child or children.
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1 127. Notice and taking effect of suspension or cancellation
2 (1) The Regulatory Authority must give the certified supervisor written
3 notice of the decision to suspend or cancel the supervisor certificate
4 under section 125 or 126.
5 (2) The notice of a decision to suspend must set out --
6 (a) the period of suspension; and
7 (b) the date on which it takes effect.
8 (3) The decision under section 125 to suspend or cancel takes effect at the
9 end of 14 days after the date of the decision, or, if another period is
10 specified by the Regulatory Authority, at the end of that period.
11 (4) The decision to suspend under section 126 takes effect on the giving
12 of the notice.
13 128. Suspension or cancellation of certain supervisor certificates
14 (1) If the teacher registration of a person is suspended, the supervisor
15 certificate of that person is suspended at the end of 14 days after that
16 suspension unless and until the Regulatory Authority has assessed the
17 person under section 109 as being a fit and proper person.
18 (2) If the teacher registration of a person is cancelled, the supervisor
19 certificate of that person is cancelled at the end of 14 days after that
20 cancellation unless the Regulatory Authority has assessed the person
21 under section 109 as being a fit and proper person.
22 (3) The supervisor certificate of a person is suspended immediately if the
23 working with children card of that person is suspended.
24 (4) The supervisor certificate of a person is cancelled immediately if the
25 working with children card of that person is cancelled.
26 129. Voluntary suspension of supervisor certificate
27 (1) A certified supervisor may apply to the Regulatory Authority for a
28 suspension of the supervisor certificate for a period of not more than
29 12 months.
30 (2) An application must --
31 (a) be in writing; and
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1 (b) include any prescribed information that is requested by the
2 Regulatory Authority; and
3 (c) include payment of the prescribed fee.
4 (3) The Regulatory Authority may, by written notice, agree to the
5 suspension if the Authority is satisfied that it is reasonable in the
6 circumstances.
7 (4) The Regulatory Authority must, within 30 days after the application is
8 made, decide whether or not to grant the application.
9 (5) If the Regulatory Authority decides to grant the application, the
10 suspension takes effect on a date agreed between the Regulatory
11 Authority and the certified supervisor.
12 Note: This section differs from section 129 of the national law as set out in
13 the Schedule to the Education and Care Services National Law
14 Act 2010 (Victoria).
15 130. Surrender of a supervisor certificate by certified supervisor
16 (1) A certified supervisor may surrender the supervisor certificate by
17 written notice to the Regulatory Authority.
18 (2) On the surrender of the supervisor certificate, the certificate is
19 cancelled.
20 Division 5 -- Exercise of powers by another Regulatory Authority
21 131. Exercise of powers by another Regulatory Authority
22 (1) This section applies if the Regulatory Authority has granted a
23 supervisor certificate under this Part.
24 (2) A Regulatory Authority of a participating jurisdiction may exercise all
25 of the powers and perform all the functions of the Regulatory
26 Authority under this Part in respect of the supervisor certificate if the
27 certified supervisor works as a certified supervisor in that jurisdiction.
28 (3) A Regulatory Authority (including the Regulatory Authority of this
29 jurisdiction) may only exercise a power referred to in subsection (2)
30 after consulting with the Regulatory Authority of each participating
31 jurisdiction in which the certified supervisor is currently working as a
32 nominated supervisor.
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1 (4) A failure by a Regulatory Authority to comply with subsection (3)
2 does not affect the validity of the exercise of the power.
3 (5) A cancellation or suspension of a supervisor certificate in another
4 participating jurisdiction has effect in this jurisdiction.
5 Division 6 -- Offence
6 132. Offence to act as supervisor without supervisor certificate
7 A person must not hold himself or herself out as being a certified
8 supervisor unless the person holds a supervisor certificate.
9 Penalty: $10 000.
10 Part 5 -- Assessments and ratings
11 Division 1 -- Assessment and rating
12 133. Assessment for rating purposes
13 (1) The Regulatory Authority that granted the service approval for an
14 education and care service may at any time assess the service in
15 accordance with the national regulations to determine whether and at
16 what rating level the service meets the National Quality Standard and
17 the requirements of the national regulations.
18 (2) Until an approved education and care service is first assessed under
19 this Part, it is taken to have the prescribed provisional rating.
20 134. Rating levels
21 (1) The rating levels for the purposes of this Law are the levels prescribed
22 by the national regulations.
23 (2) The highest rating level prescribed by the national regulations can
24 only be given by the National Authority under this Part.
25 135. Rating of approved education and care service
26 (1) After carrying out a rating assessment of an approved education and
27 care service, the Regulatory Authority must determine the rating level
28 (other than the highest rating level) --
29 (a) for each quality area stated in the National Quality Standard;
30 and
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1 (b) for the overall rating of the service.
2 (2) In determining a rating level, the Regulatory Authority may have
3 regard to --
4 (a) any information obtained in the rating assessment; and
5 (b) any information obtained in any monitoring or investigation
6 of the service under this Law; and
7 (c) the service's history of compliance with this Law as applying
8 in any participating jurisdiction; and
9 (d) any other prescribed information.
10 136. Notice to approved education and care service of rating
11 (1) The Regulatory Authority must give written notice to the approved
12 provider of an approved education and care service of the outcome of
13 the rating assessment and the rating levels for that service determined
14 under section 135.
15 (2) The notice under subsection (1) must be given within 60 days --
16 (a) after the completion of the assessment by an authorised
17 officer under Part 9 of the premises of the approved education
18 and care service for the purpose of the rating assessment; or
19 (b) if section 137 applies, after the end of the final period for
20 review of the applicable decision or action referred to in
21 section 137(1).
22 (3) A rating level set out in the notice is to be a rating level for the
23 education and care service for the purposes of this Law unless a
24 review of the rating level is sought under Division 3 or 4.
25 137. Suspension of rating assessment
26 (1) This section applies in respect of a rating assessment of an approved
27 education and care service if the assessment has not been completed
28 and --
29 (a) the provider approval or the service approval for the service
30 is suspended or cancelled; or
31 (b) a compliance notice has been given to the approved provider
32 in respect of the service; or
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1 (c) a notice has been given under section 179 in respect of the
2 service; or
3 (d) an action has been taken under section 189 in respect of a
4 child or children being educated and cared for by the service.
5 (2) The Regulatory Authority must give the approved provider a written
6 notice stating that notice of the outcome of the rating assessment will
7 be given under section 136 within 60 days after --
8 (a) the end of the final period for review of the decision or action
9 referred to in subsection (1); or
10 (b) if that review is sought, the determination of the review.
11 Division 2 -- Reassessment and re-rating
12 138. Regulatory Authority may reassess and re-rate approved
13 education and care service
14 The Regulatory Authority may at any time reassess an approved
15 education and care service or any aspect or element of an approved
16 education and care service in accordance with the national regulations
17 to determine whether and at what rating level it meets the National
18 Quality Standard and the requirements of the national regulations for
19 the purpose of rating that service.
20 139. Application for reassessment and re-rating by approved provider
21 (1) An approved provider may apply to the Regulatory Authority for a
22 reassessment and re-rating of an approved education and care service
23 or any aspect or element of an approved education and care service
24 which is rateable against the National Quality Standard or the national
25 regulations.
26 (2) An application must --
27 (a) be in writing; and
28 (b) include any prescribed information that is requested by the
29 Regulatory Authority; and
30 (c) include payment of the prescribed fee.
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1 (3) An application under this section can only be made once in every
2 2 year period, unless the Regulatory Authority agrees otherwise.
3 Note: This section differs from section 139 of the national law as set out in
4 the Schedule to the Education and Care Services National Law
5 Act 2010 (Victoria).
6 140. Application of Division 1
7 Division 1 applies (with any necessary changes) to a reassessment and
8 re-rating of an approved education and care service or any aspect or
9 element of an approved education and care service under this
10 Division.
11 Division 3 -- Review by Regulatory Authority
12 141. Review by Regulatory Authority
13 (1) This section applies to an approved provider that is given a notice
14 under section 136.
15 (2) The approved provider may ask the Regulatory Authority that
16 determined the rating levels to review the rating levels.
17 (3) A request must be made within 14 days after the approved provider
18 receives the notice.
19 (4) A request must --
20 (a) be in writing; and
21 (b) set out the grounds on which review is sought; and
22 (c) be accompanied by any prescribed information that is
23 requested by the Regulatory Authority; and
24 (d) include payment of the prescribed fee.
25 Note: This section differs from section 141 of the national law as set out in
26 the Schedule to the Education and Care Services National Law
27 Act 2010 (Victoria).
28 142. Process for review
29 (1) The person who conducts a review of rating levels for an approved
30 education and care service for the Regulatory Authority must not be a
31 person who was involved in the assessment or rating of the service.
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1 (2) The person conducting the review may ask the approved provider and
2 any person who was involved in the assessment or rating of the
3 service for further information.
4 (3) A review under this section must be conducted within 30 days after
5 the application for review is received.
6 (4) The period specified in subsection (3) may be extended by up to
7 30 days --
8 (a) if a request for further information is made under
9 subsection (2); or
10 (b) by agreement between the approved provider and the
11 Regulatory Authority.
12 143. Outcome of review by Regulatory Authority
13 (1) Following a review under section 142, the Regulatory Authority
14 may --
15 (a) confirm the specific rating levels or the overall rating or both;
16 or
17 (b) amend the specific rating levels or the overall rating or both.
18 (2) The Regulatory Authority must give the approved provider written
19 notice of the decision on the review within 30 days after the decision
20 is made.
21 (3) The notice must set out --
22 (a) the rating levels and overall rating for the approved education
23 and care service; and
24 (b) the reasons for the decision.
25 (4) Unless an application is made under Division 4 for a review of the
26 rating levels, the rating levels set out in the notice are the rating levels
27 for the approved education and care service for the purposes of this
28 Law.
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1 Division 4 -- Review by Ratings Review Panel
2 Subdivision 1 -- Application for review
3 144. Application for further review by Ratings Review Panel
4 (1) This section applies if the Regulatory Authority has conducted a
5 review of any rating levels of an approved education and care service
6 under Division 3.
7 (2) The approved provider may apply to the National Authority for a
8 further review by a Ratings Review Panel of the rating levels
9 confirmed or amended by the Regulatory Authority under Division 3.
10 (3) An application may only be made on the ground that the Regulatory
11 Authority --
12 (a) did not appropriately apply the prescribed processes for
13 determining a rating level; or
14 (b) failed to take into account or give sufficient weight to special
15 circumstances existing or facts existing at the time of the
16 rating assessment.
17 145. Form and time of application
18 (1) An application must be made under section 144 within 14 days after
19 the decision of the Regulatory Authority is received under Division 3.
20 (2) An application must --
21 (a) be in writing; and
22 (b) include the prescribed information; and
23 (c) include payment of the prescribed fee.
24 (3) An application must not include information or evidence that was not
25 given to the Regulatory Authority for the purpose of a determination
26 under Division 1, 2 or 3.
27 (4) The National Authority must --
28 (a) within 7 days after receipt of the application, give written
29 notice to the Regulatory Authority of an application under
30 this Division to review a determination of the Regulatory
31 Authority; and
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1 (b) invite the Regulatory Authority to make submissions to the
2 review.
3 Subdivision 2 -- Establishment of Ratings Review Panel
4 146. Establishment of Ratings Review Panel
5 (1) The Board must establish a Ratings Review Panel for the purposes of
6 conducting a review under this Division.
7 (2) The Panel is to consist of up to 3 members appointed by the Board.
8 (3) One of the members is to be appointed as chairperson.
9 (4) The members are to be appointed from the Review Panel pool
10 established under section 147.
11 147. Review Panel pool
12 (1) The Board must establish a pool of persons to act as members of a
13 Ratings Review Panel.
14 (2) The pool may consist of persons nominated by the Regulatory
15 Authorities of each participating jurisdiction and the Commonwealth
16 Minister.
17 (3) Subject to subsection (4), the persons approved as members of the
18 pool must have expertise or expert knowledge in one or more of the
19 following areas --
20 (a) early learning and development research or practice;
21 (b) law;
22 (c) a prescribed area.
23 (4) A member of staff of the National Authority may be approved as a
24 member of the pool.
25 148. Procedure of Panel
26 (1) Subject to this Law, the procedure of a Ratings Review Panel is in its
27 discretion.
28 (2) The chairperson of a Panel must convene meetings of the Panel.
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1 (3) A Panel must keep minutes of its deliberations setting out --
2 (a) the dates and duration of its deliberations; and
3 (b) its decisions on the review.
4 (4) The Panel must seek to make decisions by consensus.
5 (5) In the absence of a consensus, a decision of the Panel is a decision of
6 the majority of the members of the Panel.
7 (6) If a majority decision is not reached, the Panel is taken to have
8 confirmed the rating levels determined by the Regulatory Authority.
9 149. Transaction of business by alternative means
10 (1) A Ratings Review Panel may, if it thinks fit, transact any of its
11 business by the circulation of papers among all the members of the
12 Panel for the time being, and a resolution in writing approved in
13 writing by a majority of those members is taken to be a decision of the
14 Panel.
15 (2) The Panel may, if it thinks fit, transact any of its business at a meeting
16 at which members (or some members) participate by telephone,
17 closed-circuit television or other means, but only if any member who
18 speaks on a matter before the meeting can be heard by the other
19 members.
20 (3) Papers may be circulated among the members for the purposes of
21 subsection (1) by facsimile, email or other transmission of the
22 information in the papers concerned.
23 Subdivision 3 -- Conduct of review
24 150. Conduct of review
25 (1) In conducting a review, the Ratings Review Panel may consider --
26 (a) any documents or other information or plans, photographs or
27 video or other evidence available to the Regulatory Authority
28 in carrying out the rating assessment; and
29 (b) the approved provider's history of compliance with this Law
30 as applying in any participating jurisdiction; and
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1 (c) the approved education and care service's history of
2 compliance with this Law as applying in any participating
3 jurisdiction; and
4 (d) the application for review to the Regulatory Authority; and
5 (e) any submissions made by the approved provider to the review
6 by the Regulatory Authority; and
7 (f) the written findings on the review by the Regulatory
8 Authority; and
9 (g) the application for review to the Ratings Review Panel; and
10 (h) any written submissions or responses made to the Ratings
11 Review Panel by the approved provider; and
12 (i) any written submissions or responses made to the Ratings
13 Review Panel by the Regulatory Authority relating to the
14 stated grounds for review; and
15 (j) any advice received from the National Authority, at the
16 request of the Ratings Review Panel, about how the
17 prescribed processes for rating assessments are intended to be
18 applied that is relevant to the review.
19 (2) The Ratings Review Panel is not required to hold an oral hearing for a
20 review.
21 (3) The Ratings Review Panel may ask the Regulatory Authority to
22 provide in writing any information in relation to the assessment.
23 (4) The Ratings Review Panel may ask the approved provider for further
24 written information in relation to its application.
25 (5) The Ratings Review Panel must ensure that the approved provider is
26 provided with a copy of, and an opportunity to respond in writing to,
27 any documents, information or evidence provided to the Panel by the
28 Regulatory Authority.
29 151. Decision on review by Ratings Review Panel
30 (1) Following a review, the Ratings Review Panel may --
31 (a) confirm the rating levels determined by the Regulatory
32 Authority; or
33 (b) amend the rating levels.
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1 (2) The Ratings Review Panel must make a decision on the review within
2 60 days after the application for review was made.
3 (3) The chairperson of the Panel may extend the period for the making of
4 a decision by a Ratings Review Panel if the chairperson considers
5 there are special circumstances that warrant that extension.
6 (4) The period for the making of a decision by a Ratings Review Panel
7 may be extended by agreement between the chairperson of the Panel
8 and the approved provider.
9 (5) The Ratings Review Panel must give the approved provider, the
10 Regulatory Authority and the National Authority written notice of the
11 decision on the review within 14 days after the decision is made
12 setting out its findings on each review ground.
13 (6) A rating level confirmed or amended on a review under this Division
14 by the Ratings Review Panel is the rating level for the approved
15 education and care service for the purposes of this Law.
16 Division 5 -- Awarding of highest rating
17 152. Application for highest rating
18 (1) An approved provider may apply to the National Authority for an
19 approved education and care service operated by that provider to be
20 assessed for the highest rating level for the education and care service
21 if the criteria determined by the National Authority are met.
22 (2) The highest rating level is an overall rating of the education and care
23 service.
24 (3) An application must --
25 (a) be in writing; and
26 (b) include the prescribed information; and
27 (c) include payment of the prescribed fee.
28 (4) An application may be made only once every 3 years, unless the
29 National Authority determines otherwise in a particular case.
30 (5) An application may be made for the highest rating level only if the
31 current overall rating of the service is the second highest rating level.
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1 153. Assessment of education and care service
2 (1) The National Authority may determine and publish criteria that must
3 be met by approved education and care services in respect of the
4 award of the highest rating level.
5 (2) The Board must assess the approved education and care service in
6 accordance with the criteria published under subsection (1) to
7 determine whether the service meets the highest rating level in
8 meeting the National Quality Standard and the requirements of the
9 national regulations.
10 (3) The Board must ask for, and take into account, the advice of the
11 Regulatory Authority in carrying out the assessment.
12 (4) The advice of the Regulatory Authority may include --
13 (a) previous rating assessments and ratings for the education and
14 care service; and
15 (b) information about the service's compliance history; and
16 (c) any other relevant information.
17 154. Board may seek information and documents
18 (1) The Board for the purposes of the rating assessment may --
19 (a) ask the approved provider of the approved education and care
20 service for any information and documents; and
21 (b) make any inquiries it considers appropriate.
22 (2) If the Board asks the approved provider for further information and
23 documents under subsection (1), the period from the making of the
24 request until the provision of the further information and documents is
25 not included in the period referred to in section 155(2) for the Board
26 to make a decision on the application.
27 155. Decision on application
28 (1) After assessing the approved education and care service, the Board
29 must --
30 (a) if it is satisfied that it is appropriate to do so, give the
31 approved education and care service the highest rating level;
32 or
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1 (b) otherwise refuse to give that rating.
2 (2) The Board must make its decision within 60 days after the application
3 is received.
4 (3) The period specified in subsection (2) may be extended by up to
5 30 days --
6 (a) if a request for information and documents is made under
7 section 154; or
8 (b) by agreement between the approved provider and the Board.
9 (4) If the Board gives the highest rating level to an approved education
10 and care service, that rating becomes the rating level for that service.
11 (5) The highest rating level awarded to an approved education and care
12 service applies to that service for 3 years, unless sooner revoked.
13 156. Notice of decision
14 (1) The Board must give written notice of its decision under section 155
15 in relation to an approved education and care service to --
16 (a) the approved provider; and
17 (b) the Regulatory Authority.
18 (2) The notice must be given within 14 days of making the decision.
19 157. Reassessment of highest rating level
20 The Board may at any time reassess an approved education and care
21 service in accordance with section 153.
22 158. Revocation of highest rating level
23 The Board must revoke the highest rating level of an approved
24 education and care service if --
25 (a) it determines that the service no longer meets the criteria for
26 the highest rating level; or
27 (b) the Regulatory Authority advises the Board that the overall
28 rating level of the education and care service has been
29 determined to be at a level that is lower than the second
30 highest rating level.
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1 159. Re-application for highest rating level
2 (1) An approved provider of an approved education and care service that
3 has been awarded the highest rating level may reapply for the award
4 of the highest rating level for the service.
5 (2) The application must be made within 90 days before the expiry of the
6 existing highest rating level for the approved education and care
7 service.
8 (3) The application must --
9 (a) be in writing; and
10 (b) include the prescribed information; and
11 (c) include payment of the prescribed fee.
12 Division 6 -- Publication of rating levels
13 160. Publication of ratings
14 (1) The National Authority must publish the rating levels for an approved
15 education and care service in accordance with this section.
16 (2) The National Authority must publish any rating levels determined
17 under Division 1 or 2 at the end of the period for requesting a review
18 of the rating levels under Division 3 if no request for review is
19 received in that period.
20 (3) If a review by the Regulatory Authority is requested under Division 3,
21 the rating levels must be published at the end of the period for
22 requesting a further review of the rating under Division 4 if no request
23 for further review is received in that period.
24 (4) If a further review is requested under Division 4, the rating levels
25 must be published after the notification to the approved provider of
26 the decision on the review.
27 (5) The National Authority must publish notice of the giving of the
28 highest rating level to an approved education and care service under
29 Division 5, as soon as possible after the Regulatory Authority and the
30 approved provider are notified of the decision of the Board under that
31 Division.
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1 Part 6 -- Operating an education and care service
2 161. Offence to operate education and care service without nominated
3 supervisor
4 The approved provider of an education and care service must not
5 operate the service unless there is a nominated supervisor for that
6 service.
7 Penalty: $5 000, in the case of an individual.
8 $25 000, in any other case.
9 162. Offence to operate education and care service unless responsible
10 person is present
11 (1) The approved provider of an education and care service must ensure
12 that one of the following persons is present at all times that the service
13 is educating and caring for children --
14 (a) the approved provider, if the approved provider is an
15 individual or, in any other case, a person with management or
16 control of an education and care service operated by the
17 approved provider;
18 (b) the nominated supervisor of the service;
19 (c) a certified supervisor who has been placed in day to day
20 charge of the service in accordance with the national
21 regulations.
22 Penalty: $5 000, in the case of an individual.
23 $25 000, in any other case.
24 (2) This section does not apply to an approved family day care service.
25 163. Offence relating to appointment or engagement of family day care
26 co-ordinators
27 (1) The approved provider of a family day care service must ensure that
28 at all times one or more qualified persons are employed or engaged as
29 family day care co-ordinators of the family day care service --
30 (a) to assist with the operation of the family day care service; and
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1 (b) to support, monitor and train the family day care educators of
2 that service.
3 Penalty: $5 000, in the case of an individual.
4 $25 000, in any other case.
5 (2) A person is a qualified person under this section if the person has the
6 qualifications prescribed by the national regulations.
7 164. Offence relating to assistance to family day care educators
8 (1) The approved provider of a family day care service must ensure that,
9 at all times that a family day care educator is educating and caring for
10 a child as part of the service, one of the following persons is available
11 to provide support to the family day care educator --
12 (a) the approved provider, if the approved provider is an
13 individual, or a person with management or control of the
14 family day care service, in any other case;
15 (b) the nominated supervisor of the service;
16 (c) a certified supervisor who has been placed in day to day
17 charge of the family day care service in accordance with the
18 national regulations.
19 Penalty: $5 000, in the case of an individual.
20 $25 000, in any other case.
21 (2) For the purposes of this section, the requirement to be available to
22 provide support to a family day care educator includes being available
23 to be contacted by telephone to provide advice and assistance to the
24 family day care educator.
25 165. Offence to inadequately supervise children
26 (1) The approved provider of an education and care service must ensure
27 that all children being educated and cared for by the service are
28 adequately supervised at all times that the children are in the care of
29 that service.
30 Penalty: $10 000, in the case of an individual.
31 $50 000, in any other case.
32 (2) The nominated supervisor of an education and care service must
33 ensure that all children being educated and cared for by the service are
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1 adequately supervised at all times that the children are in the care of
2 that service.
3 Penalty: $10 000.
4 (3) A family day care educator must ensure that any child being educated
5 and cared for by the educator as a part of a family day care service is
6 adequately supervised.
7 Penalty: $10 000.
8 165A. Offence relating to children leaving the education and care
9 service premises unauthorised
10 (1) The approved provider of an education and care service must ensure
11 that a child who is being educated and cared for by the education and
12 care service does not leave the education and care service premises
13 except in accordance with subsection (4).
14 Penalty: $10 000, in the case of an individual.
15 $50 000, in any other case.
16 (2) The nominated supervisor of an education and care service must
17 ensure that a child who is being educated and cared for by the
18 education and care service does not leave the education and care
19 service premises except in accordance with subsection (4).
20 Penalty: $10 000, in the case of an individual.
21 $50 000, in any other case.
22 (3) A family day care educator must ensure that a child who is being
23 educated and cared for by the educator as part of a family day care
24 service does not leave the residence or approved family day care
25 venue except in accordance with subsection (4).
26 Penalty: $10 000, in the case of an individual.
27 $50 000, in any other case.
28 (4) The child may only leave the relevant premises if the child --
29 (a) is given into the care of --
30 (i) a parent of the child; or
31 (ii) an authorised nominee named in the child's
32 enrolment record; or
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1 (iii) a person authorised by a parent or authorised
2 nominee named in the child's enrolment record to
3 collect the child from the premises; or
4 (b) leaves the premises in accordance with the written
5 authorisation of the child's parent or authorised nominee
6 named in the child's enrolment record; or
7 (c) is taken on an excursion in accordance with the national
8 regulations; or
9 (d) is given into the care of a person or taken outside the
10 premises --
11 (i) because the child requires medical, hospital or
12 ambulance care or treatment; or
13 (ii) because of another emergency.
14 (5) In this section --
15 authorised nominee has the meaning given in section 170(5);
16 parent does not include a parent who is prohibited by a court order
17 from having contact with the child.
18 Note: Section 165A does not form part of the national law as set out in the
19 Schedule to the Education and Care Services National Law Act 2010
20 (Victoria).
21 166. Offence to use inappropriate discipline
22 (1) The approved provider of an education and care service must ensure
23 that no child being educated and cared for by the service is subjected
24 to --
25 (a) any form of corporal punishment; or
26 (b) any discipline that is unreasonable in the circumstances.
27 Penalty: $10 000, in the case of an individual.
28 $50 000, in any other case.
29 (2) The nominated supervisor of an education and care service must
30 ensure that no child being educated and cared for by the service is
31 subjected to --
32 (a) any form of corporal punishment; or
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1 (b) any discipline that is unreasonable in the circumstances.
2 Penalty: $10 000.
3 (3) A staff member of, or a volunteer at, an education and care service
4 must not subject any child being educated and cared for by the service
5 to --
6 (a) any form of corporal punishment; or
7 (b) any discipline that is unreasonable in the circumstances.
8 Penalty: $10 000.
9 (4) A family day care educator must not subject any child being educated
10 and cared for by the educator as part of a family day care service to --
11 (a) any form of corporal punishment; or
12 (b) any discipline that is unreasonable in the circumstances.
13 Penalty: $10 000.
14 167. Offence relating to protection of children from harm and hazards
15 (1) The approved provider of an education and care service must ensure
16 that every reasonable precaution is taken to protect children being
17 educated and cared for by the service from harm and from any hazard
18 likely to cause injury.
19 Penalty: $10 000, in the case of an individual.
20 $50 000, in any other case.
21 (2) A nominated supervisor of an education and care service must ensure
22 that every reasonable precaution is taken to protect children being
23 educated and cared for by the service from harm and from any hazard
24 likely to cause injury.
25 Penalty: $10 000.
26 (3) A family day care educator must ensure that every reasonable
27 precaution is taken to protect a child being educated and cared for as
28 part of a family day care service from harm and from any hazard
29 likely to cause injury.
30 Penalty: $10 000.
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1 168. Offence relating to required programs
2 (1) The approved provider of an education and care service must ensure
3 that a program is delivered to all children being educated and cared
4 for by the service that --
5 (a) is based on an approved learning framework; and
6 (b) is delivered in a manner that accords with the approved
7 learning framework; and
8 (c) is based on the developmental needs, interests and
9 experiences of each child; and
10 (d) is designed to take into account the individual differences of
11 each child.
12 Penalty: $4 000, in the case of an individual.
13 $20 000, in any other case.
14 (2) A nominated supervisor of an education and care service must ensure
15 that a program is delivered to all children being educated and cared
16 for by the service that --
17 (a) is based on an approved learning framework; and
18 (b) is delivered in a manner that accords with the approved
19 learning framework; and
20 (c) is based on the developmental needs, interests and
21 experiences of each child; and
22 (d) is designed to take into account the individual differences of
23 each child.
24 Penalty: $4 000.
25 169. Offence relating to staffing arrangements
26 (1) An approved provider of an education and care service must ensure
27 that, whenever children are being educated and cared for by the
28 service, the relevant number of educators educating and caring for the
29 children is no less than the number prescribed for this purpose.
30 Penalty: $10 000, in the case of an individual.
31 $50 000, in any other case.
32 (2) An approved provider of an education and care service must ensure
33 that each educator educating and caring for children for the service
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1 meets the qualification requirements relevant to the educator's role as
2 prescribed by the national regulations.
3 Penalty: $10 000, in the case of an individual.
4 $50 000, in any other case.
5 (3) A nominated supervisor of an education and care service must ensure
6 that, whenever children are being educated and cared for by the
7 service, the relevant number of educators educating and caring for the
8 children is no less than the number prescribed for this purpose.
9 Penalty: $10 000.
10 (4) A nominated supervisor of an education and care service must ensure
11 that each educator educating and caring for children for the service
12 meets the qualification requirements relevant to the educator's role as
13 prescribed by the national regulations.
14 Penalty: $10 000.
15 (5) A family day care educator must ensure that the number of children
16 being educated and cared for by the family day care educator at any
17 one time is no more than the number prescribed for this purpose.
18 Penalty: $10 000.
19 (6) Subsections (1), (2), (3), (4) and (5) do not apply in respect of an
20 education and care service --
21 (a) to the extent that it holds a temporary waiver under
22 Division 6 of Part 3 in respect of this requirement; or
23 (b) to the extent that it holds a service waiver under Division 5 of
24 Part 3 in respect of this requirement.
25 (7) The National Authority may, on application, determine qualifications,
26 including foreign qualifications, to be equivalent to the qualifications
27 required by the national regulations.
28 (8) If a determination is made under subsection (7), any person holding
29 the qualification is to be taken to be qualified in accordance with the
30 national regulations.
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1 170. Offence relating to unauthorised persons on education and care
2 service premises
3 (1) This section applies to an education and care service operating in a
4 participating jurisdiction that has a working with children law.
5 (2) The approved provider of the education and care service must ensure
6 that an unauthorised person does not remain at the education and care
7 service premises while children are being educated and cared for at
8 the premises unless the person is under the direct supervision of an
9 educator or other staff member of the service.
10 Penalty: $1 000, in the case of an individual.
11 $5 000, in any other case.
12 (3) The nominated supervisor of the education and care service must
13 ensure that an unauthorised person does not remain at the education
14 and care service premises while children are being educated and cared
15 for at the premises unless the person is under the direct supervision of
16 an educator or other staff member of the service.
17 Penalty: $1 000.
18 (4) A family day care educator must ensure that an unauthorised person
19 does not remain at the residence or approved family day care venue at
20 which the educator is educating and caring for a child as part of a
21 family day care service unless the unauthorised person is under the
22 direct supervision of the educator.
23 Penalty: $1 000.
24 (5) In this section --
25 authorised nominee, in relation to a child, means a person who has
26 been given permission by a parent or family member of the child to
27 collect the child from the education and care service or the family day
28 care educator;
29 unauthorised person means a person who is not --
30 (a) a person who holds a current working with children check or
31 working with children card; or
32 (b) a parent or family member of a child who is being educated
33 and cared for by the education and care service or the family
34 day care educator; or
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1 (c) an authorised nominee of a parent or family member of a
2 child who is being educated and cared for by the education
3 and care service or the family day care educator; or
4 (d) in the case of an emergency, medical personnel or emergency
5 service personnel; or
6 (e) a person who is permitted under the working with children
7 law of this jurisdiction to remain at the education and care
8 service premises without holding a working with children
9 check or a working with children card.
10 (6) A reference in subsection (5) to a parent or family member of a child
11 does not include a person --
12 (a) whose access to the child is prohibited or restricted by an
13 order of a court or tribunal of which the approved provider,
14 nominated supervisor or family day care educator (as the case
15 requires) is aware; or
16 (b) who is an inappropriate person within the meaning of
17 section 171.
18 171. Offence relating to direction to exclude inappropriate persons
19 from education and care service premises
20 (1) The Regulatory Authority may direct an approved provider, a
21 nominated supervisor or a family day care educator to exclude a
22 person whom the Authority is satisfied is an inappropriate person
23 from the education and care service premises while children are being
24 educated and cared for at the premises for such time as the Authority
25 considers appropriate.
26 (2) A person to whom a direction is given under subsection (1) must
27 comply with the direction.
28 Penalty: $10 000, in the case of an individual.
29 $50 000, in any other case.
30 (3) In this section --
31 inappropriate person means a person --
32 (a) who may pose a risk to the safety, health or wellbeing of any
33 child or children being educated and cared for by the
34 education and care service; or
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1 (b) whose behaviour or state of mind or whose pattern of
2 behaviour or common state of mind is such that it would be
3 inappropriate for him or her to be on the education and care
4 service premises while children are being educated and cared
5 for by the education and care service.
6 Example: A person who is under the influence of drugs or alcohol.
7 172. Offence to fail to display prescribed information
8 An approved provider of an education and care service must ensure
9 that the prescribed information about the following is positioned so
10 that it is clearly visible to anyone from the main entrance to the
11 education and care service premises --
12 (a) the provider approval;
13 (b) the service approval;
14 (c) the nominated supervisor or the prescribed class of persons to
15 which the nominated supervisor belongs;
16 (d) the rating of the service;
17 (e) any service waivers or temporary waivers held by the service;
18 (f) any other prescribed matters.
19 Penalty: $3 000, in the case of an individual.
20 $15 000, in any other case.
21 173. Offence to fail to notify certain circumstances to Regulatory
22 Authority
23 (1) An approved provider must notify the Regulatory Authority of the
24 following in relation to the approved provider or each approved
25 education and care service operated by the approved provider --
26 (a) a change in the name of the approved provider;
27 (b) any appointment or removal of a person with management or
28 control of an education and care service operated by the
29 approved provider;
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1 (c) a failure to commence operating an education and care
2 service within 6 months (or within the time agreed with the
3 Regulatory Authority) after being granted a service approval
4 for the service.
5 Penalty: $4 000, in the case of an individual.
6 $20 000, in any other case.
7 (2) An approved provider must notify the Regulatory Authority of the
8 following in relation to an approved education and care service
9 operated by the approved provider --
10 (a) if the approved provider is notified of the suspension or
11 cancellation of a working with children card or teacher
12 registration of, or disciplinary proceedings under an
13 education law of a participating jurisdiction in respect of, a
14 nominated supervisor or certified supervisor engaged by the
15 service;
16 (b) if a nominated supervisor of an approved education and care
17 service ceases to be employed or engaged by the service or
18 withdraws consent to the nomination;
19 (c) any proposed change to the education and care service
20 premises of an approved education and care service (other
21 than a family day care residence);
22 (d) ceasing to operate the education and care service;
23 (e) in the case of an approved family day care service, a change
24 in the location of the principal office of the service;
25 (f) an intention to transfer a service approval, as required under
26 section 59.
27 Penalty: $4 000, in the case of an individual.
28 $20 000, in any other case.
29 (3) A notice under subsection (1) must be in writing and be provided
30 within the relevant prescribed time to the Regulatory Authority that
31 granted the provider approval.
32 (4) A notice under subsection (2) must be in writing and be provided
33 within the relevant prescribed time to --
34 (a) the Regulatory Authority that granted the service approval for
35 the education and care service to which the notice relates; and
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1 (b) in the case of a family day care service, the Regulatory
2 Authority in each participating jurisdiction in which the
3 family day care service operates.
4 174. Offence to fail to notify certain information to Regulatory
5 Authority
6 (1) An approved provider must notify the Regulatory Authority of the
7 following information in relation to the approved provider or each
8 approved education and care service operated by the approved
9 provider --
10 (a) any change relevant to whether the approved provider is a fit
11 and proper person to be involved in the provision of an
12 education and care service;
13 (b) information in respect of any other prescribed matters.
14 Penalty: $4 000, in the case of an individual.
15 $20 000, in any other case.
16 (2) An approved provider must notify the Regulatory Authority of the
17 following information in relation to an approved education and care
18 service operated by the approved provider --
19 (a) any serious incident at the approved education and care
20 service;
21 (b) complaints alleging --
22 (i) that the safety, health or wellbeing of a child or
23 children was or is being compromised while that
24 child or children is or are being educated and cared
25 for by the approved education and care service; or
26 (ii) that this Law has been contravened;
27 (c) information in respect of any other prescribed matters.
28 Penalty: $4 000, in the case of an individual.
29 $20 000, in any other case.
30 (3) A notice under subsection (1) must be in writing and be provided
31 within the relevant prescribed time to the Regulatory Authority that
32 granted the provider approval.
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1 (4) A notice under subsection (2) must be in writing and be provided
2 within the relevant prescribed time to --
3 (a) the Regulatory Authority that granted the service approval for
4 the education and care service to which the notice relates; and
5 (b) in the case of a family day care service, the Regulatory
6 Authority in each participating jurisdiction in which the
7 family day care service operates.
8 (5) In this section --
9 serious incident means an incident or class of incidents prescribed by
10 the national regulations as a serious incident.
11 175. Offence relating to requirement to keep enrolment and other
12 documents
13 (1) An approved provider of an education and care service must keep the
14 prescribed documents available for inspection by an authorised officer
15 in accordance with this section.
16 Penalty: $4 000, in the case of an individual.
17 $20 000, in any other case.
18 (2) Documents referred to in subsection (1) --
19 (a) must, to the extent practicable, be kept at the education and
20 care service premises if they relate to --
21 (i) the operation of the service; or
22 (ii) any staff member employed or engaged by the
23 service; or
24 (iii) any child cared for, or educated at, those premises --
25 in the previous 12 months; and
26 (b) in any other case, must be kept at a place, and in a manner,
27 that they are readily accessible by an authorised officer.
28 (3) A family day care educator who educates and cares for a child at a
29 residence or approved family day care venue, as part of a family day
30 care service, must keep the prescribed documents available for
31 inspection by an authorised officer at that residence or venue.
32 Penalty: $4 000.
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1 Part 7 -- Compliance with this Law
2 Division 1 -- Notices
3 176. Compliance directions
4 (1) This section applies if the Regulatory Authority is satisfied that an
5 education and care service has not complied with a provision of this
6 Law that is prescribed by the national regulations.
7 (2) The Regulatory Authority may give the approved provider a written
8 direction (a compliance direction) requiring the approved provider to
9 take the steps specified in the direction to comply with that provision.
10 (3) An approved provider must comply with a direction under
11 subsection (2) within the period (being not less than 14 days)
12 specified in the direction.
13 Penalty: $2 000, in the case of an individual.
14 $10 000, in any other case.
15 177. Compliance notices
16 (1) This section applies if the Regulatory Authority is satisfied that an
17 education and care service is not complying with any provision of this
18 Law.
19 (2) The Regulatory Authority may give the approved provider a notice (a
20 compliance notice) requiring the approved provider to take the steps
21 specified in the notice to comply with that provision.
22 (3) An approved provider must comply with a compliance notice under
23 subsection (2) within the period (being not less than 14 days)
24 specified in the notice.
25 Penalty: $6 000, in the case of an individual.
26 $30 000, in any other case.
27 178. Notice to suspend education and care by a family day care
28 educator
29 (1) This section applies if the Regulatory Authority is satisfied that
30 because of the conduct of, or the inadequacy of the service provided
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1 by, a family day care educator engaged by or registered with a family
2 day care service --
3 (a) the approved provider or the nominated supervisor of an
4 approved family day care service is not complying with any
5 provision of this Law; or
6 (b) there is a risk to the safety, health or wellbeing of children
7 being educated and cared for by the family day care educator.
8 (2) The Regulatory Authority may give the approved provider, the
9 nominated supervisor (if applicable) and the educator a notice (show
10 cause notice) stating --
11 (a) that the Regulatory Authority intends to give the approved
12 provider a notice directing the provider to suspend the
13 provision of education and care by the educator; and
14 (b) the reasons for the proposed direction; and
15 (c) that the approved provider, nominated supervisor or educator,
16 (as the case requires) may, within 14 days after the show
17 cause notice is given, make submissions to the Regulatory
18 Authority in respect of the proposed direction.
19 (3) The show cause notice must be served by delivering it personally to
20 the family day care educator.
21 (4) The Regulatory Authority --
22 (a) must consider any submissions from the approved provider,
23 the nominated supervisor and the family day care educator
24 received within the time allowed by subsection (2)(c); and
25 (b) may consider any other submissions and any matters the
26 Regulatory Authority considers relevant; and
27 (c) may --
28 (i) give the approved provider a notice directing the
29 provider to suspend the provision of education and
30 care of children by the family day care educator; or
31 (ii) decide not to give that direction.
32 (5) The Regulatory Authority must give the family day care educator a
33 notice of the decision under subsection (4).
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1 (6) If the Regulatory Authority decides not to give the direction to
2 suspend, the Regulatory Authority must give the approved provider
3 notice of the decision.
4 (7) A person must comply with a direction under subsection (4).
5 Penalty: $6 000, in the case of an individual.
6 $30 000, in any other case.
7 179. Emergency action notices
8 (1) This section applies if the Regulatory Authority is satisfied that an
9 education and care service is operating in a manner that poses, or is
10 likely to pose, an immediate risk to the safety, health or wellbeing of a
11 child or children being educated and cared for by the service.
12 (2) The Regulatory Authority may, by written notice, direct the approved
13 provider of the education and care service to take the steps specified
14 in the notice to remove or reduce the risk within the time (not more
15 than 14 days) specified in the notice.
16 (3) An approved provider must comply with a direction given under
17 subsection (2).
18 Penalty: $6 000, in the case of an individual.
19 $30 000, in any other case.
20 Division 2 -- Enforceable undertakings
21 180. Enforceable undertakings
22 (1) This section applies if a person has, or believes he or she may have,
23 contravened, or if the Regulatory Authority alleges a person has
24 contravened, a provision of this Law.
25 (2) The Regulatory Authority may accept a written undertaking from the
26 person under which the person undertakes to take certain actions, or
27 refrain from taking certain actions, to comply with this Law.
28 (3) A person may with the consent of the Regulatory Authority withdraw
29 or amend an undertaking.
30 (4) The Regulatory Authority may withdraw its acceptance of the
31 undertaking at any time and the undertaking ceases to be in force on
32 that withdrawal.
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1 (5) While an undertaking is in force, proceedings may not be brought for
2 any offence constituted by the contravention or alleged contravention
3 in respect of which the undertaking is given.
4 (6) If a person complies with the requirements of an undertaking, no
5 further proceedings may be brought for any offence constituted by the
6 contravention or alleged contravention in respect of which the
7 undertaking was given.
8 (7) The Regulatory Authority may publish on the Regulatory Authority's
9 website an undertaking accepted under this section.
10 Note: This section differs from section 180 of the national law as set out in
11 the Schedule to the Education and Care Services National Law
12 Act 2010 (Victoria).
13 181. Failure to comply with enforceable undertakings
14 (1) If the Regulatory Authority considers that the person who gave an
15 undertaking under section 180 has failed to comply with any of its
16 terms, the Regulatory Authority may apply to the relevant tribunal or
17 court for an order under subsection (2) to enforce the undertaking.
18 (2) If the relevant tribunal or court is satisfied that the person has failed to
19 comply with a term of the undertaking, the relevant tribunal or court
20 may make any of the following orders --
21 (a) an order directing the person to comply with that term of the
22 undertaking;
23 (b) an order that the person take any specified action for the
24 purpose of complying with the undertaking;
25 (c) any other order that the relevant tribunal or court considers
26 appropriate in the circumstances.
27 (3) If the relevant tribunal or court determines that the person has failed
28 to comply with a term of the undertaking, proceedings may be
29 brought for any offence constituted by the contravention or alleged
30 contravention in respect of which the undertaking was given.
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1 Division 3 -- Prohibition notices
2 182. Grounds for issuing prohibition notice
3 (1) The Regulatory Authority may give a prohibition notice to a person
4 who is in any way involved in the provision of an approved education
5 and care service if it considers that there may be an unacceptable risk
6 of harm to a child or children if the person were allowed --
7 (a) to remain on the education and care service premises; or
8 (b) to provide education and care to children.
9 (2) For the purposes of subsection (1), a person may be involved in the
10 provision of an approved education and care service as any of the
11 following --
12 (a) an approved provider;
13 (b) a certified supervisor;
14 (c) an educator;
15 (d) a family day care educator;
16 (e) an employee;
17 (f) a contractor;
18 (g) a volunteer --
19 or in any other capacity.
20 183. Show cause notice to be given before prohibition notice
21 (1) Before giving a person a prohibition notice, the Regulatory Authority
22 must give the person a notice (a show cause notice) --
23 (a) stating that the Regulatory Authority proposes to give the
24 person a prohibition notice; and
25 (b) stating the reasons for the proposed prohibition; and
26 (c) inviting the person to make a written submission to the
27 Regulatory Authority, within a stated time of at least 14 days,
28 about the proposed prohibition.
29 (2) Subsection (1) does not apply if the Regulatory Authority is satisfied
30 it is necessary, in the interests of the safety, health or wellbeing of a
31 child or children, to immediately issue a prohibition notice to the
32 person.
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1 184. Deciding whether to issue prohibition notice
2 (1) If the Regulatory Authority gives a show cause notice under
3 section 183 to a person, the Regulatory Authority must have regard to
4 any written submission received from the person within the time
5 stated in the show cause notice before deciding whether to give the
6 person a prohibition notice.
7 (2) If the Regulatory Authority decides not to issue a prohibition notice to
8 the person, the Regulatory Authority must give the person notice of
9 the decision.
10 185. Content of prohibition notice
11 A prohibition notice given to a person must state --
12 (a) that the person is prohibited from doing any of the
13 following --
14 (i) providing education and care to children for an
15 education and care service;
16 (ii) being engaged as a supervisor, educator, family day
17 care educator, employee, contractor or staff member
18 of, or being a volunteer at, an education and care
19 service;
20 (iii) carrying out any other activity relating to education
21 and care services; and
22 (b) that the person may apply for cancellation of the notice; and
23 (c) how an application for cancellation must be made.
24 186. Cancellation of prohibition notice
25 (1) If the Regulatory Authority is satisfied there is not a sufficient reason
26 for a prohibition notice to remain in force for a person, the Regulatory
27 Authority must cancel the prohibition notice and give the person
28 notice of the cancellation.
29 (2) A person for whom a prohibition notice is in force may apply to the
30 Regulatory Authority to cancel the notice.
31 (3) The application must --
32 (a) be in writing; and
33 (b) include the prescribed information; and
34 (c) be signed by the person.
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1 (4) The person may state in the application anything the person considers
2 relevant to the Regulatory Authority's decision about whether there
3 would be an unacceptable risk of harm to children if the person
4 were --
5 (a) to remain at the education and care service premises; or
6 (b) to provide education and care to children.
7 (5) The application may include a statement setting out any change in the
8 person's circumstances since the prohibition notice was given or since
9 any previous application under this section that would warrant the
10 cancellation of the notice.
11 (6) The Regulatory Authority must decide the application as soon as
12 practicable after its receipt.
13 187. Person must not contravene prohibition notice
14 While a prohibition notice is in force under this Law as applying in
15 any participating jurisdiction for a person, the person must not --
16 (a) provide education and care to children for an education and
17 care service; or
18 (b) be engaged as a supervisor, educator, family day care
19 educator, employee, contractor or staff member of, or
20 perform volunteer services for, an education and care service;
21 or
22 (c) carry out any other activity relating to education and care
23 services.
24 Penalty: $20 000.
25 188. Offence to engage person to whom prohibition notice applies
26 An approved provider must not engage a person as a supervisor,
27 educator, family day care educator, employee, contractor or staff
28 member of, or allow a person to perform volunteer services for, an
29 education and care service if the provider knows, or ought reasonably
30 to know, a prohibition notice is in force under this Law as applying in
31 any participating jurisdiction in respect of the person.
32 Penalty: $20 000, in the case of an individual.
33 $100 000, in any other case.
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s. 188A
1 Division 3A -- Disciplinary action
2 Note: Division 3A of Part 7 does not form part of the national law as set out in
3 the Schedule to the Education and Care Services National Law
4 Act 2010 (Victoria).
5 188A. Persons against whom disciplinary action may be taken
6 In this Division --
7 person linked to a WA service means any of the following --
8 (a) an approved provider operating a WA service;
9 (b) a nominated supervisor of a WA service;
10 (c) a certified supervisor engaged at a WA service;
11 (d) a person with management or control of a WA service;
12 (e) a family day care educator engaged by or registered with a
13 WA service;
14 WA service means an education and care service located in this
15 jurisdiction.
16 Note: Section 188A does not form part of the national law as set out in the
17 Schedule to the Education and Care Services National Law Act 2010
18 (Victoria).
19 188B. Disciplinary action
20 (1) Grounds for disciplinary action exist against a person linked to a
21 WA service if --
22 (a) the person has failed to comply with this Law as applying in
23 this jurisdiction; or
24 (b) the person is a person with management or control of a body
25 corporate that is itself a person linked to a WA service and --
26 (i) the body corporate has failed to comply with this law
27 as applying in this jurisdiction; and
28 (ii) the person with management or control of the body
29 corporate has failed to exercise due diligence to
30 prevent that failure.
31 (2) If the Regulatory Authority of this jurisdiction considers that grounds
32 for disciplinary action exist in respect of a person linked to a
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1 WA service, the Regulatory Authority may make an allegation to the
2 relevant tribunal or court of this jurisdiction in respect of that person.
3 (3) In proceedings commenced by an allegation under subsection (2) in
4 respect of a person, the relevant tribunal or court of this jurisdiction, if
5 satisfied that grounds for disciplinary action exist, may make one or
6 more of the following orders --
7 (a) an order reprimanding the person;
8 (b) subject to section 188C, an order requiring the person to pay
9 a fine not exceeding $50 000;
10 (c) an order to take certain actions, or refrain from taking certain
11 actions, to comply with this Law.
12 (4) The relevant tribunal or court may make an order under
13 subsection (3)(a) or (b) in respect of a person whether or not at the
14 time when the order is made the person is a person linked to a
15 WA service.
16 Note: Section 188B does not form part of the national law as set out in the
17 Schedule to the Education and Care Services National Law Act 2010
18 (Victoria).
19 188C. Limitation on section 188B(3)(b)
20 (1) The power described in section 188B(3)(b) to impose a fine, and the
21 power of a court to impose a penalty for an offence under this Law as
22 it applies in this, or another participating jurisdiction, cannot both be
23 exercised in respect of an act or omission of a person that is
24 substantially the same.
25 (2) A fine that exceeds the relevant maximum fine cannot be imposed
26 under section 188B(3)(b).
27 (3) In subsection (2) --
28 relevant maximum fine means, if the fine is to be imposed in respect
29 of an act or omission that constitutes an offence under this Law, the
30 maximum fine that could be imposed by a court for that offence.
31 Note: Section 188C does not form part of the national law as set out in the
32 Schedule to the Education and Care Services National Law Act 2010
33 (Victoria).
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1 Division 4 -- Emergency removal of children
2 189. Emergency removal of children
3 (1) This section applies if the Regulatory Authority considers, on
4 reasonable grounds, that there is an immediate danger to the safety or
5 health of a child or children being educated and cared for by an
6 education and care service.
7 (2) The Regulatory Authority may remove, or cause the removal of, the
8 child or children from the education and care service premises.
9 (3) In exercising a power under subsection (2) --
10 (a) the Regulatory Authority may be given such assistance by
11 other persons (including police officers) as is reasonably
12 required; and
13 (b) the Regulatory Authority and any person assisting the
14 Regulatory Authority may --
15 (i) enter the education and care service premises,
16 without warrant; and
17 (ii) use reasonable force as necessary.
18 (4) If a child is removed from the education and care service premises
19 under subsection (2), the Regulatory Authority must ensure that the
20 child's parents are immediately notified of the situation and the
21 child's current location.
22 Part 8 -- Review
23 Division 1 -- Internal review
24 190. Reviewable decision -- internal review
25 A reviewable decision for internal review is a decision of the
26 Regulatory Authority under this Law as applying in any participating
27 jurisdiction --
28 (a) to refuse to grant a provider approval, a service approval or a
29 supervisor certificate; or
30 (b) to amend or refuse to amend a provider approval, a service
31 approval or a supervisor certificate; or
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1 (c) to impose a condition on a provider approval, a service
2 approval or a supervisor certificate; or
3 (d) to suspend --
4 (i) a provider approval under section 28; or
5 (ii) a service approval under section 73; or
6 (iii) a supervisor certificate under section 126; or
7 (e) to refuse to consent to the transfer of a service approval; or
8 (f) to revoke a service waiver; or
9 (g) to issue a compliance direction; or
10 (h) to issue a compliance notice.
11 191. Internal review of reviewable decisions
12 (1) A person who is the subject of a reviewable decision for internal
13 review may apply to the Regulatory Authority in writing for review of
14 the decision.
15 (2) An application under subsection (1) must be made --
16 (a) within 14 days after the day on which the person is notified of
17 the decision; or
18 (b) if the person is not notified of the decision, within 14 days
19 after the person becomes aware of the decision.
20 (3) The person who conducts the review for the Regulatory Authority
21 must not be a person who was involved in the assessment or
22 investigation of the person or service to whom or which the decision
23 relates.
24 (4) The person conducting the review may ask the person who applied for
25 the review for further information.
26 (5) A review under this section must be conducted within 30 days after
27 the application is made.
28 (6) The period specified in subsection (5) may be extended by up to
29 30 days --
30 (a) if a request for further information is made under
31 subsection (4); or
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1 (b) by agreement between the person who applied for the review
2 and the Regulatory Authority.
3 (7) The Regulatory Authority may, in relation to an application under
4 subsection (1) --
5 (a) confirm the decision; or
6 (b) make any other decision that the Regulatory Authority thinks
7 appropriate.
8 Division 2 -- External review
9 192. Reviewable decision -- external review
10 A reviewable decision for external review is --
11 (a) a decision of the Regulatory Authority made under
12 section 191 (other than a decision in relation to the issue of a
13 compliance direction or a compliance notice); or
14 (b) a decision of the Regulatory Authority under this Law as
15 applying in any participating jurisdiction --
16 (i) to suspend a provider approval under section 27; or
17 (ii) to cancel a provider approval under section 33; or
18 (iii) to suspend a service approval under section 72; or
19 (iv) to cancel a service approval under section 79 or 307;
20 or
21 (v) to suspend or cancel a supervisor certificate under
22 section 125; or
23 (vi) to direct the approved provider of a family day care
24 service to suspend the care and education of children
25 by a family day care educator; or
26 (vii) to give a prohibition notice or to refuse to cancel a
27 prohibition notice.
28 Note: A person is not entitled to a review under this section in respect of a
29 suspension or cancellation of a service approval if that suspension or
30 cancellation relates only to an associated children's service. Any right
31 of review would be under the children's services law.
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1 193. Application for review of decision of the Regulatory Authority
2 (1) A person who is the subject of a reviewable decision for external
3 review may apply to the relevant tribunal or court for a review of the
4 decision.
5 (2) An application must be made within 30 days after the day on which
6 the applicant is notified of the decision that is to be reviewed.
7 (3) After hearing the matter, the relevant tribunal or court may --
8 (a) confirm the decision of the Regulatory Authority; or
9 (b) amend the decision of the Regulatory Authority; or
10 (c) substitute another decision for the decision of the Regulatory
11 Authority.
12 (4) In determining any application under this section, the relevant tribunal
13 or court may have regard to any decision under this Law as applying
14 in another participating jurisdiction of a relevant tribunal or court of
15 that jurisdiction.
16 Division 3 -- General
17 194. Relationship with Act establishing administrative body
18 This Part applies despite any provision to the contrary in the Act that
19 establishes the relevant tribunal or court but does not otherwise limit
20 that Act.
21 Part 9 -- Monitoring and enforcement
22 Division 1 -- Authorised officers
23 195. Authorisation of authorised officers
24 (1) The Regulatory Authority may authorise any person who the
25 Regulatory Authority is satisfied is an appropriate person to be an
26 authorised officer for the purposes of this Law.
27 (2) In considering whether a person is an appropriate person to be an
28 authorised officer, the Regulatory Authority must take into account
29 the requirements for the authorisation of authorised officers
30 determined by the National Authority under subsection (5).
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1 (3) An authorised officer holds office on any terms and conditions stated
2 in the authorisation.
3 (4) A defect in the authorisation of an authorised officer does not affect
4 the validity of any action taken or decision made by the authorised
5 officer under this Law.
6 (5) The National Authority may determine the requirements for the
7 authorisation of authorised officers under this section.
8 (6) A determination under subsection (5) must be published on the
9 website of the National Authority.
10 196. Identity card
11 (1) The Regulatory Authority must issue to each authorised officer an
12 identity card in the form prescribed by the national regulations.
13 (2) The identity card must identify the authorised officer as an authorised
14 officer authorised by the Regulatory Authority under this Law.
15 (3) An authorised officer must --
16 (a) carry the identity card whenever the officer is exercising his
17 or her functions under this Law; and
18 (b) show the identity card --
19 (i) before exercising a power of entry under this Law;
20 and
21 (ii) at any time during the exercise of a power under this
22 Law when asked to do so.
23 Penalty: $1 000.
24 (4) An authorised officer who fails to comply with subsection (3)(b) in
25 relation to the exercise of a power ceases to be authorised to exercise
26 the power in relation to the matter.
27 (5) An authorised officer must return his or her identity card to the
28 Regulatory Authority on ceasing to be authorised as an authorised
29 officer for the purposes of this Law.
30 Penalty: $1 000.
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1 Division 2 -- Powers of entry
2 197. Powers of entry for assessing and monitoring approved education
3 and care service
4 (1) An authorised officer may exercise a power under this section for any
5 of the following purposes --
6 (a) monitoring compliance with this Law;
7 (ab) monitoring compliance with a working with children law by
8 specified persons in relation to the provision of an education
9 and care service;
10 (b) a rating assessment of an approved education and care service
11 under Part 5;
12 (c) obtaining information requested under section 35 or 83.
13 (2) An authorised officer may, at any reasonable time and with such
14 assistants as may reasonably be required, enter any education and care
15 service premises and do any of the following --
16 (a) inspect the premises and any plant, equipment, vehicle or
17 other thing;
18 (b) photograph or film, or make audio recordings or make
19 sketches of, any part of the premises or anything at the
20 premises;
21 (c) inspect and make copies of, or take extracts from, any
22 document kept at the premises;
23 (d) take any document or any other thing at the premises;
24 (e) ask a person at the premises --
25 (i) to answer a question to the best of that person's
26 knowledge, information and belief; or
27 (ii) to take reasonable steps to provide information or
28 produce a document.
29 (3) A power under subsection (2)(a) to (d) is limited to a document or
30 thing that is used or likely to being used in, or in relation to, the
31 provision of the education and care service.
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1 (4) If the authorised officer takes any document or thing under
2 subsection (2), he or she must --
3 (a) give notice of the taking of the document or thing to the
4 person apparently in charge of it or to an occupier of the
5 premises; and
6 (b) return the document or thing to that person or the premises
7 within 7 days after taking it.
8 (5) An authorised officer may not, under this section, enter a residence
9 unless --
10 (a) an approved education and care service is operating at the
11 residence at the time of entry; or
12 (b) the occupier of the residence has consented in writing to the
13 entry and the inspection.
14 (6) In this section --
15 specified person has the meaning given in section 206(4).
16 Note: This section differs from section 197 of the national law as set out in
17 the Schedule to the Education and Care Services National Law
18 Act 2010 (Victoria).
19 198. National Authority representative may enter service premises in
20 company with Regulatory Authority
21 (1) A person authorised by the National Authority, in company with an
22 authorised officer, may enter premises used by an approved education
23 and care service within the usual hours of operation of the service at
24 those premises.
25 (2) The entry by the person authorised by the National Authority is solely
26 for the purpose of informing the National Authority of the rating
27 assessment processes of the Regulatory Authority under Part 5 to
28 assist the National Authority in promoting consistency across
29 participating jurisdictions.
30 199. Powers of entry for investigating approved education and care
31 service
32 (1) An authorised officer may exercise the powers under this section to
33 investigate an approved education and care service if the authorised
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1 officer reasonably suspects that an offence may have been or may be
2 being committed against this Law.
3 (2) The authorised officer, with any necessary assistants, may with or
4 without the consent of the occupier of the premises, enter the
5 education and care service premises at any reasonable time and do
6 any of the following --
7 (a) search any part of the premises;
8 (b) inspect, measure, test, photograph or film, or make audio
9 recordings of, any part of the premises or anything at the
10 premises;
11 (c) take a thing, or a sample of or from a thing, at the premises
12 for analysis, measurement or testing;
13 (d) copy, or take an extract from, a document, at the premises;
14 (e) take into or onto the premises any person, equipment and
15 materials the authorised officer reasonably requires for
16 exercising a power under this subsection;
17 (f) require the occupier of the premises, or a person at the
18 premises, to give the authorised officer information to help
19 the authorised officer in conducting the investigation.
20 (3) A power under subsection (2)(b) to (d) is limited to a document or
21 thing that is used or likely to be used in the provision of the education
22 and care service.
23 (4) An authorised officer may not, under this section, enter a residence
24 unless --
25 (a) an approved education and care service is operating at the
26 residence at the time of entry; or
27 (b) the occupier of the residence has consented in writing to the
28 entry and the inspection.
29 200. Powers of entry to business premises
30 (1) An authorised officer may exercise powers under this section if the
31 authorised officer reasonably suspects that documents or other
32 evidence relevant to the possible commission of an offence against
33 this Law are present at the principal office or any other business
34 premises of an approved provider.
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1 (2) The authorised officer, with the consent of the occupier of the
2 premises, may enter the premises and do any of the following --
3 (a) search any part of the premises;
4 (b) inspect, measure, test, photograph or film, or make audio
5 recordings of, any part of the premises or anything at the
6 premises;
7 (c) take a thing, or a sample of or from a thing, at the premises
8 for analysis, measurement or testing;
9 (d) copy, or take an extract from, a document, at the premises;
10 (e) take into or onto the premises any person, equipment and
11 materials the authorised officer reasonably requires for
12 exercising a power under this subsection;
13 (f) require the occupier of the premises, or a person at the
14 premises, to give the authorised officer information to help
15 the authorised officer in conducting the investigation.
16 (3) An authorised officer must not enter and search the premises with the
17 consent of the occupier unless, before the occupier consents to that
18 entry, the authorised officer has --
19 (a) produced his or her identity card for inspection; and
20 (b) informed the occupier --
21 (i) of the purpose of the search and the powers that may
22 be exercised; and
23 (ii) that the occupier may refuse to give consent to the
24 entry and search or to the taking of anything found
25 during the search; and
26 (iii) that the occupier may refuse to consent to the taking
27 of any copy or extract from a document found on the
28 premises during the search.
29 201. Entry to premises with search warrant
30 (1) An authorised officer under the authority of a search warrant may
31 enter premises if the authorised officer reasonably believes that a
32 person is operating an education and care service in contravention of
33 section 103 at or from the premises.
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1 (2) An authorised officer under the authority of a search warrant may
2 enter any education and care service premises or any premises where
3 the authorised officer reasonably believes that an approved education
4 and care service is operating if the authorised officer reasonably
5 believes that the education and care service is operating in
6 contravention of this Law.
7 (3) An authorised officer under the authority of a search warrant may
8 enter the principal office or any other business premises of an
9 approved provider if the authorised officer reasonably believes that
10 documents or other evidence relevant to the possible commission of
11 an offence against this Law are present at those premises.
12 (4) Schedule 2 applies in relation to the issue of the search warrant and
13 the powers of the authorised officer on entry.
14 202. Seized items
15 (1) If an authorised officer has taken a thing under section 199 or 200 or
16 under a search warrant under section 201, the authorised officer must
17 take reasonable steps to return the thing to the person from whom it
18 was taken if the reason for the taking no longer exists.
19 (2) If the thing has not been returned within 60 days after it was taken,
20 the authorised officer must take reasonable steps to return it unless --
21 (a) proceedings have been commenced within the period of
22 60 days and those proceedings (including any appeal) have
23 not been completed; or
24 (b) a court makes an order under section 203 extending the
25 period the thing can be retained.
26 (3) If an authorised officer has taken a thing under section 199 or 200 or
27 under a search warrant under section 201, the authorised officer must
28 provide the owner of the thing with reasonable access to the thing.
29 203. Court may extend period
30 (1) An authorised officer may apply to a court within the period of
31 60 days referred to in section 202 or within a period extended by the
32 court under this section for an extension of the period for which the
33 thing can be held.
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1 (2) The court may order the extension if satisfied that retention of the
2 thing is necessary --
3 (a) for the purposes of an investigation into whether an offence
4 has been committed; or
5 (b) to enable evidence of an offence to be obtained for the
6 purposes of a prosecution.
7 (3) The court may adjourn an application to enable notice of the
8 application to be given to any person.
9 Division 3 -- Other powers
10 204. Power to require name and address
11 (1) This section applies if --
12 (a) an authorised officer finds a person committing an offence
13 against this Law or a working with children law; or
14 (b) an authorised officer finds a person in circumstances that
15 lead, or the authorised officer has information that leads, the
16 officer to reasonably suspect the person is committing, or has
17 committed, an offence against this Law or a working with
18 children law.
19 (2) The authorised officer may require the person to state the person's
20 name and residential address.
21 (3) The authorised officer may require the person to give evidence of the
22 correctness of the stated name or residential address if the officer
23 reasonably suspects the stated name or address to be false.
24 Note: This section differs from section 204 of the national law as set out in
25 the Schedule to the Education and Care Services National Law
26 Act 2010 (Victoria).
27 205. Power to require evidence of age, name and address of person
28 (1) This section applies if --
29 (a) the national regulations require a staff member, a family day
30 care educator or a volunteer to have attained a prescribed
31 minimum age; and
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1 (b) an authorised officer reasonably suspects that a person --
2 (i) is employed or engaged as a staff member or a family
3 day care educator by, or is a volunteer at, an
4 education and care service; and
5 (ii) has not attained that prescribed minimum age.
6 (2) The authorised officer may require the person to state the person's
7 correct date of birth, whether or not when requiring the person to state
8 the person's correct name and address.
9 (3) Also, the authorised officer may require the person to provide
10 evidence of the correctness of the stated date of birth --
11 (a) at the time of making the requirement under subsection (2) if,
12 in the circumstances, it would be reasonable to expect the
13 person to be in possession of evidence of the correctness of
14 the stated date of birth; or
15 (b) otherwise, within 14 days of making the requirement under
16 subsection (2).
17 (4) The authorised officer may require the person to state the person's
18 name and residential address if --
19 (a) the person refuses or is unable to comply with a requirement
20 under subsection (2) or (3); or
21 (b) according to the date of birth the person states, or the
22 evidence of the person's age the person gives, the person has
23 not attained the prescribed minimum age.
24 206. Power of authorised officers to obtain information documents and
25 evidence
26 (1) An authorised officer may exercise a power under this section for any
27 of the following purposes --
28 (a) monitoring compliance with this Law;
29 (ab) monitoring compliance with a working with children law by
30 specified persons in relation to the provision of an education
31 and care service;
32 (b) a rating assessment of an approved education and care service
33 under Part 5;
34 (c) obtaining information requested under section 35 or 83.
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1 (2) An authorised officer may, by written notice, require a specified
2 person to provide to the authorised officer, by writing signed by that
3 person or, if the person is not an individual, by a competent officer of
4 that person, within the time and in the manner specified in the notice,
5 any relevant information that is specified in the notice.
6 (3) The time specified in the notice must not be less than 14 days from
7 the date the notice is issued.
8 (4) In this section --
9 specified person means a person who is or has been --
10 (a) an approved provider, a certified supervisor or a staff member
11 of, or a volunteer at, an approved education and care service;
12 or
13 (b) a family day care educator.
14 Note: This section differs from section 206 of the national law as set out in
15 the Schedule to the Education and Care Services National Law
16 Act 2010 (Victoria).
17 Division 4 -- Offences relating to enforcement
18 207. Offence to obstruct authorised officer
19 A person must not obstruct an authorised officer in exercising his or
20 her powers under this Law.
21 Penalty: $8 000, in the case of an individual.
22 $40 000, in any other case.
23 208. Offence to fail to assist authorised officer
24 A person must not --
25 (a) refuse to answer a question lawfully asked by an authorised
26 officer (other than a question asked under section 197(2)(e));
27 or
28 (b) refuse to provide information or produce a document lawfully
29 required by an authorised officer; or
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1 (c) fail to comply with a requirement made by an authorised
2 officer under clause 5(2)(f) or (g) of Schedule 2.
3 Penalty: $8 000, in the case of an individual.
4 $40 000, in any other case.
5 Note: This section differs from section 208 of the national law as set out in
6 the Schedule to the Education and Care Services National Law
7 Act 2010 (Victoria).
8 209. Offence to destroy or damage notices or documents
9 A person must not, without lawful authority, destroy or damage any
10 notice or document given or prepared or kept under this Law.
11 Penalty: $8 000, in the case of an individual.
12 $40 000, in any other case.
13 210. Offence to impersonate authorised officer
14 A person must not impersonate an authorised officer.
15 Penalty: $8 000.
16 211. Protection against self incrimination
17 (1) An individual may refuse or fail to give information or do any other
18 thing that the individual is required to do by or under this Law if
19 giving the information or doing the thing might incriminate the
20 individual.
21 (2) However, subsection (1) does not apply to --
22 (a) the production of a document or part of a document that is
23 required to be kept under this Law; or
24 (b) the giving of the individual's name or address in accordance
25 with this Law; or
26 (c) anything required to be done under section 215 or 216.
27 (3) Any document referred to in subsection (2)(a) that is produced by an
28 individual or any information obtained directly or indirectly from that
29 document produced by an individual is not admissible in evidence
30 against the individual in any criminal proceedings (except for criminal
31 proceedings under this Law) or in any civil proceedings.
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1 212. Warning to be given
2 (1) Before requiring a person to answer a question or provide information
3 or a document under this Part or Schedule 2, an authorised officer
4 must --
5 (a) identify himself or herself to the person as an authorised
6 officer by producing the officer's identity card; and
7 (b) warn the person that a failure to comply with the requirement
8 or to answer the question, without reasonable excuse, would
9 constitute an offence; and
10 (c) in the case of an individual, warn the person about the effect
11 of section 211.
12 (2) Nothing in this section prevents an authorised officer from obtaining
13 and using evidence given to the authorised officer voluntarily by any
14 person.
15 (3) This section does not apply to a request made under section 197.
16 213. Occupier's consent to search
17 (1) An occupier who consents in writing to the entry and inspection of his
18 or her premises under Division 2 must be given a copy of the signed
19 consent immediately.
20 (2) If, in any proceeding, a written consent is not produced to the court, it
21 must be presumed until the contrary is proved that the occupier did
22 not consent to the entry and search.
23 Division 5 -- Powers of Regulatory Authority
24 214. Powers of Regulatory Authority to obtain information for rating
25 purposes
26 The Regulatory Authority may, for the purpose of a rating
27 assessment --
28 (a) ask the approved provider of the approved education and care
29 service for any information and documents; and
30 (b) make any inquiries it considers appropriate.
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1 215. Power of Regulatory Authority to obtain information, documents
2 and evidence by notice
3 (1) This section applies if the Regulatory Authority reasonably suspects
4 that an offence has or may have been committed against this Law.
5 (2) The Regulatory Authority may, by written notice, require a person --
6 (a) to provide to the Regulatory Authority, in writing signed by
7 that person or, if the person is not an individual, by a
8 competent officer of that person, within the time and in the
9 manner specified in the notice, any relevant information that
10 is specified in the notice; or
11 (b) to produce to the Regulatory Authority, or to a person
12 specified in the notice acting on the Regulatory Authority's
13 behalf, in accordance with the notice, any relevant document
14 referred to in the notice; or
15 (c) to appear before the Regulatory Authority, or a person
16 specified in the notice acting on the Regulatory Authority's
17 behalf, at a time and place specified in the notice to give any
18 evidence or to produce any relevant document specified in the
19 notice.
20 (3) The notice must --
21 (a) warn the person that failure or refusal to comply with the
22 notice would constitute an offence; and
23 (b) warn the person about the effect of sections 217, 218 and 219.
24 (4) The Regulatory Authority or the person specified in the notice acting
25 on the Regulatory Authority's behalf may require the evidence
26 referred to in subsection (2)(c) to be given on oath or affirmation and
27 for that purpose may administer an oath or affirmation.
28 (5) The person may give evidence under subsection (2)(c) by telephone or
29 video conference or other electronic means unless the Regulatory
30 Authority, on reasonable grounds, requires the person to give that
31 evidence in person.
32 Note: This section differs from section 215 of the national law as set out in
33 the Schedule to the Education and Care Services National Law
34 Act 2010 (Victoria).
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1 216. Power of Regulatory Authority to obtain information, documents
2 and evidence at education and care service
3 (1) This section applies if the Regulatory Authority reasonably suspects
4 that an offence has or may have been committed against this Law.
5 (2) The Regulatory Authority may require a person at an education and
6 care service --
7 (a) to provide the Regulatory Authority, or a person acting on the
8 Regulatory Authority's behalf, with any specified information
9 that is relevant to the suspected offence; or
10 (b) to produce to the Regulatory Authority, or to a person acting
11 on the Regulatory Authority's behalf, any specified document
12 that is relevant to the suspected offence.
13 (3) The Regulatory Authority must --
14 (a) warn the person that failure or refusal to comply with the
15 requirement would constitute an offence; and
16 (b) warn the person about the effect of sections 217, 218 and 219.
17 (4) The Regulatory Authority must not require a person to remain at the
18 education and care service more than a reasonable time for the
19 purposes of providing information or producing documents under
20 subsection (2).
21 Note: This section differs from section 216 of the national law as set out in
22 the Schedule to the Education and Care Services National Law
23 Act 2010 (Victoria).
24 217. Offence to fail to comply with notice or requirement
25 A person must not refuse or fail to comply with a requirement under
26 section 215 or 216 to the extent that the person is capable of
27 complying with that requirement.
28 Penalty: $8 000, in the case of an individual.
29 $40 000, in any other case.
30 218. Offence to hinder or obstruct Regulatory Authority
31 A person must not obstruct or hinder the Regulatory Authority in
32 exercising a power under section 215 or 216.
33 Penalty: $8 000, in the case of an individual.
34 $40 000, in any other case.
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1 219. Self incrimination not an excuse
2 (1) A person is not excused from complying with a notice or requirement
3 under section 215 or 216 on the ground that complying with the notice
4 or requirement may result in information being provided that might
5 tend to incriminate the person.
6 (2) Subject to subsection (3), disclosed information is not admissible in
7 evidence against the individual in any disciplinary proceedings or in
8 any criminal proceedings (other than proceedings under section 218
9 or 295) or in any civil proceedings.
10 (3) Despite subsection (2), any information obtained from a document or
11 documents required to be kept under this Law, or required under
12 section 215(2)(b) or 216(2)(b), that is produced by a person is
13 admissible in evidence against the person in disciplinary proceedings
14 or in criminal proceedings under this Law.
15 (4) In this section --
16 disclosed information means --
17 (a) the answer by an individual to any question asked under
18 section 215 or 216; or
19 (b) the provision by an individual of any information in
20 compliance with section 215 or 216; or
21 [(c) this national law provision does not apply as a law of WA.]
22 Note: This section differs from section 219 of the national law as set out in
23 the Schedule to the Education and Care Services National Law
24 Act 2010 (Victoria).
25 Part 10 -- Ministerial Council
26 220. Functions of Ministerial Council
27 (1) The Ministerial Council has the following functions under this
28 Law --
29 (a) to oversee the implementation and administration of the
30 National Quality Framework;
31 (b) to promote uniformity in the application and enforcement of
32 the National Quality Framework;
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1 (c) to review and approve the National Quality Standard and set
2 specific standards for education and care services and classes
3 of education and care services;
4 (d) to review and approve the rating level system to be used in
5 rating education and care services;
6 (e) to review and approve the fee structure under this Law;
7 (f) to review and approve new learning frameworks for the
8 purposes of this Law;
9 (g) to monitor the implementation and operation of, and
10 recommend or approve amendments to, this Law;
11 (h) to monitor the implementation and operation of the national
12 regulations;
13 (i) to review the education and care services to which this Law
14 applies and recommend, or amend the national regulations to
15 provide for, the inclusion of new classes of education and
16 care services under this Law;
17 (j) to appoint the members of the Board;
18 (k) to monitor and review the performance of the National
19 Authority;
20 (l) any other functions given to the Ministerial Council by or
21 under this Law.
22 (2) The Ministerial Council must have regard to the objectives and
23 guiding principles of the National Quality Framework in carrying out
24 its functions.
25 221. Powers of Ministerial Council
26 The Ministerial Council may --
27 (a) make recommendations to the Board in relation to the
28 exercise of the National Authority's functions under this
29 Law; and
30 (b) refer any matter to the Board for consideration and advice;
31 and
32 [(c) this national law provision does not apply as a law of WA.]
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1 (d) do anything necessary or convenient to be done in carrying
2 out its functions.
3 Note: This section differs from section 221 of the national law as set out in
4 the Schedule to the Education and Care Services National Law
5 Act 2010 (Victoria).
6 222. Directions
7 (1) The Ministerial Council may give directions to the Board in relation
8 to the carrying out of the National Authority's functions under this
9 Law, including the following --
10 (a) reporting and accountability to the Ministerial Council and
11 Regulatory Authorities;
12 (b) the application of the National Quality Framework;
13 (c) the rating level system to be used in rating education and care
14 services;
15 (d) the collection and use of information.
16 (2) The Ministerial Council may give directions to a Regulatory
17 Authority with respect to the administration of the National Quality
18 Framework.
19 (3) A direction under this section cannot be about --
20 (a) a particular person or education and care service; or
21 (b) a particular application, approval, notification, assessment or
22 proceeding; or
23 (c) the determination of a rating for a particular education and
24 care service.
25 (4) A direction must be in writing.
26 (5) A direction must not be inconsistent with this Law.
27 (6) A direction is not a legislative instrument or an instrument of a
28 legislative character.
29 (7) A direction to the Board under this section must be given to the
30 Chairperson of the Board.
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1 (8) The Board or a Regulatory Authority must comply with a direction
2 given to the Board or the Authority by the Ministerial Council under
3 this section.
4 223. How Ministerial Council exercises powers
5 (1) The Ministerial Council is to give a direction for the purposes of this
6 Law by resolution of the Council passed in accordance with
7 procedures determined by the Council.
8 (2) An act or thing done by the Ministerial Council (whether by
9 resolution, instrument or otherwise) does not cease to have effect
10 merely because of a change in the Council's membership.
11 Part 11 -- Australian Children's Education and Care
12 Quality Authority
13 Division 1 -- The National Authority
14 224. National Authority
15 (1) The Australian Children's Education and Care Quality Authority is
16 established.
17 (2) The National Authority --
18 (a) is a body corporate with perpetual succession; and
19 (b) has a common seal; and
20 (c) may sue and be sued in its corporate name.
21 (3) The National Authority represents the State.
22 225. Functions of National Authority
23 (1) The functions of the National Authority are as follows --
24 (a) to guide the implementation and administration of the
25 National Quality Framework and to monitor and promote
26 consistency in its implementation and administration;
27 (b) to report to and advise the Ministerial Council on the
28 National Quality Framework;
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1 (c) to report to the Regulatory Authorities and the relevant
2 Commonwealth Department in relation to the following --
3 (i) the collection of information under this Law;
4 (ii) the evaluation of the National Quality Framework;
5 (d) to establish consistent, effective and efficient procedures for
6 the operation of the National Quality Framework;
7 (e) to determine the arrangements for national auditing for the
8 purposes of this Law;
9 (f) to keep national information on the assessment, rating and
10 regulation of education and care services;
11 (g) to establish and maintain national registers of approved
12 providers, approved education and care services and certified
13 supervisors and to publish those registers;
14 (h) to promote and foster continuous quality improvement by
15 approved education and care services;
16 (i) to publish, monitor and review ratings of approved education
17 and care services;
18 (j) to make determinations with respect to the highest level of
19 rating for approved education and care services;
20 (k) in conjunction with the Regulatory Authorities, to educate
21 and inform education and care services and the community
22 about the National Quality Framework;
23 (l) to publish guides and resources --
24 (i) to support parents and the community in
25 understanding quality in relation to education and
26 care services; and
27 (ii) to support the education and care services sector in
28 understanding the National Quality Framework;
29 (m) to publish information about the implementation and
30 administration of the National Quality Framework and its
31 effect on developmental and educational outcomes for
32 children;
33 (n) to publish practice notes and guidelines for the application of
34 this Law;
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1 (o) to determine the qualifications for authorised officers and to
2 provide support and training for staff of Regulatory
3 Authorities;
4 (p) to determine the qualifications required to be held by
5 educators, including the assessment of equivalent
6 qualifications;
7 (q) any other function given to the National Authority by or
8 under this Law.
9 (2) In carrying out its functions, the National Authority must ensure that
10 the regulatory burden on education and care services is minimised as
11 far as possible.
12 (3) In carrying out its functions, the National Authority must have regard
13 to the objectives and guiding principles of the National Quality
14 Framework.
15 226. National Authority may advise and seek guidance of Ministerial
16 Council
17 The National Authority may provide advice to and seek the guidance
18 of the Ministerial Council if the National Authority considers it
19 necessary in carrying out its functions under this Law.
20 227. Powers of National Authority
21 (1) The National Authority has all the powers of an individual and, in
22 particular, may --
23 (a) enter into contracts; and
24 (b) acquire, hold, dispose of, and deal with, real and personal
25 property; and
26 (c) borrow and invest money; and
27 (d) develop and supply resources and consultancy services to the
28 education and care sector on a commercial basis; and
29 (e) do anything necessary or convenient to be done in carrying
30 out its functions.
31 (2) Without limiting subsection (1), the National Authority may --
32 (a) collect, hold and use information obtained under this Law by
33 the National Authority or a Regulatory Authority about the
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1 provision of education and care to children including
2 information about outcomes for children and about providers
3 of education and care services in each participating
4 jurisdiction; and
5 Note: See section 270, which provides for the National Authority to publish
6 information about approved providers.
7 (b) develop protocols for communication and dispute resolution
8 among the National Authority, the Regulatory Authorities
9 and the relevant Commonwealth Department to provide for
10 consistency in the implementation and administration of the
11 National Quality Framework; and
12 (c) collect, waive, reduce, defer and refund fees and enter into
13 agreements in relation to fees in accordance with the national
14 regulations; and
15 (d) enter into agreements in relation to fees and funding with the
16 Regulatory Authorities; and
17 (e) undertake research and evaluation activities for the purpose
18 of its functions under this Law.
19 228. Co-operation with participating jurisdictions and Commonwealth
20 (1) The National Authority may exercise any of its functions in
21 co-operation with or with the assistance of a participating jurisdiction
22 or the Commonwealth, including in co-operation with or with the
23 assistance of any of the following --
24 (a) a government agency of a participating jurisdiction or of the
25 Commonwealth; or
26 (b) an educational body or other body established by or under a
27 law of a participating jurisdiction or the Commonwealth; or
28 (c) a prescribed body or body in a prescribed class of bodies.
29 (2) In particular, the National Authority may --
30 (a) ask a person or body referred to in subsection (1) for
31 information that the Authority requires to carry out its
32 functions under this Law; and
33 (b) use the information to carry out its functions under this Law.
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1 (3) A person or body referred to in subsection (1) that receives a request
2 for information from the National Authority is authorised to give the
3 information to the National Authority.
4 229. National audit functions
5 (1) The National Authority is to undertake national audits of the
6 administration of the National Quality Framework and --
7 (a) review the findings of the national audit processes; and
8 (b) evaluate trends in the administration of the National Quality
9 Framework across participating jurisdictions; and
10 (c) advise the Regulatory Authorities about the outcomes of the
11 national audit processes and its evaluations; and
12 (d) report to the Ministerial Council on the outcomes of the
13 national audit and evaluation processes.
14 (2) The audits are to be undertaken at the intervals, and by the means,
15 determined by the National Authority.
16 Division 2 -- The Board of the National Authority
17 Subdivision 1 -- Establishment and responsibilities
18 230. National Authority Board
19 The National Authority has a governing body known as the Australian
20 Children's Education and Care Quality Authority Board.
21 231. Responsibilities of Board
22 (1) The affairs of the National Authority are to be controlled by the
23 Board.
24 (2) The Board has all the powers and duties and all the functions of the
25 National Authority.
26 (3) All acts and things done in the name of, or on behalf of, the National
27 Authority by or with the authority of the Board are taken to have been
28 done by the National Authority.
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1 (4) The Board must ensure that the National Authority carries out its
2 functions and duties and exercises its powers in a proper, effective
3 and efficient way.
4 (5) The Board has any other functions given to it under this Law.
5 (6) Any report to the Ministerial Council under this Law is to be made by
6 or through the Board.
7 (7) The Board must act in accordance with any directions given to the
8 National Authority by the Ministerial Council under section 222.
9 (8) The Board must work collaboratively with the Regulatory Authorities
10 and the relevant Commonwealth Department to support and promote
11 the National Quality Framework.
12 232. Membership of Board
13 (1) The Board consists of up to 13 members appointed by consensus of
14 the Ministerial Council.
15 (2) The Ministerial Council must appoint by consensus one person to be
16 the Chairperson of the Board.
17 (3) One member is to be appointed for each State and Territory from 2
18 persons nominated by each State or Territory Minister on the
19 Ministerial Council.
20 (4) The Commonwealth Minister may nominate up to 8 persons for
21 appointment to the Board.
22 (5) Four of the persons nominated under subsection (4) must be appointed
23 to the Board.
24 (6) The Ministerial Council must appoint by consensus one of the
25 members referred to in subsection (3) or (5) to be the Deputy
26 Chairperson of the Board.
27 (7) The members appointed to the Board must have professional skills
28 and expertise in one or more of the following areas --
29 (a) assessment of quality in education and care services or other
30 relevant services;
31 (b) early childhood development;
32 (c) labour market and workforce participation and development;
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1 (d) best practice regulation;
2 (e) financial management and corporate governance;
3 (f) research, evaluation and performance;
4 (g) any other areas of skill determined by the Ministerial
5 Council.
6 (8) In appointing members of the Board, the Ministerial Council must
7 have regard to the need for the Board to have an appropriate balance
8 of skills and expertise among its members.
9 Subdivision 2 -- Members
10 233. Terms of office of members
11 (1) Subject to this Subdivision, members of the Board hold office on the
12 terms and conditions determined by the Ministerial Council.
13 (2) Subject to this Subdivision, a member of the Board holds office for a
14 period, being not more than 3 years, specified in the member's
15 appointment.
16 (3) A member may be reappointed for a further period of not more than
17 3 years.
18 (4) The maximum consecutive period of appointment of a member is 2
19 terms.
20 234. Remuneration
21 The remuneration and allowances (if any) to be paid to members of
22 the Board are to be determined from time to time by the Ministerial
23 Council.
24 235. Vacancy in the office of member
25 (1) The office of a member of the Board becomes vacant if the
26 member --
27 (a) completes a term of office; or
28 (b) resigns the office by instrument addressed to the Chairperson
29 of the Board; or
30 (c) is removed from office by the Ministerial Council under this
31 section; or
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1 (d) in the case of the Chairperson of the Board, is absent, without
2 leave first being granted by the Chairperson of the Ministerial
3 Council, from 3 or more consecutive meetings of the Board;
4 or
5 (e) in the case of any other member, is absent, without leave first
6 being granted by the Chairperson of the Board, from 3 or
7 more consecutive meetings of the Board of which reasonable
8 notice has been given to the member personally or by post; or
9 (f) dies.
10 (2) The Chairperson of the Ministerial Council may remove a member of
11 the Board from office if --
12 (a) the member has been found guilty of an offence (whether in a
13 participating jurisdiction or elsewhere) that, in the opinion of
14 the Chairperson of the Ministerial Council, renders the
15 member unfit to continue to hold the office of member; or
16 (b) the member becomes bankrupt, applies to take the benefit of
17 any law for the relief of bankrupt or insolvent debtors,
18 compounds with the member's creditors or makes an
19 assignment of the member's remuneration for their benefit; or
20 (c) the Board recommends the removal of the member, on the
21 basis that the member has engaged in misconduct or has
22 failed, or is unable, to properly carry out the member's
23 functions as a member.
24 (3) The Chairperson of the Board may resign by written notice addressed
25 to the Chairperson of the Ministerial Council.
26 (4) A resignation takes effect on the day that it is received by the
27 Chairperson of the Board or the Chairperson of the Ministerial
28 Council (as the case requires) or a later day specified in the notice of
29 resignation.
30 (5) If the office of a member of the Board becomes vacant, the
31 Chairperson of the Board must notify the Chairperson of the
32 Ministerial Council of the vacancy.
33 (6) If the office of the Chairperson of the Board becomes vacant, the
34 Deputy Chairperson of the Board must notify the Chairperson of the
35 Ministerial Council of the vacancy.
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1 236. Acting positions
2 (1) The Deputy Chairperson of the Board is to act as the Chairperson of
3 the Board --
4 (a) during a vacancy in the office of Chairperson; or
5 (b) during any period that the Chairperson --
6 (i) is absent from duty; or
7 (ii) is, for any reason, unable to carry out the duties of
8 that office.
9 (2) While the Deputy Chairperson of the Board is acting in the office of
10 Chairperson --
11 (a) he or she has all the powers and functions of the Chairperson;
12 and
13 (b) this Law and other laws apply to the Deputy Chairperson as if
14 he or she were Chairperson.
15 (3) Anything done by or in relation to the Deputy Chairperson when
16 purporting to act in the office of Chairperson is not invalid merely
17 because the occasion for the Deputy Chairperson to act had not arisen
18 or had ceased.
19 (4) The Ministerial Council may, by consensus, appoint a member of the
20 Board to be the Deputy Chairperson of the Board --
21 (a) during a vacancy in the office of Deputy Chairperson; or
22 (b) during any period that the Deputy Chairperson --
23 (i) is acting as the Chairperson; or
24 (ii) is absent from duty; or
25 (iii) is, for any reason, unable to carry out the duties of
26 that office.
27 (5) A person nominated by a Minister on the Ministerial Council may,
28 with the approval of the Chairperson of the Board, act as a member of
29 the Board in the place of the member appointed on the nomination of
30 that Minister if that member is unable to attend a meeting of the
31 Board.
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1 237. Leave of absence
2 (1) The Chairperson of the Ministerial Council may grant the Chairperson
3 of the Board a leave of absence on the terms and conditions
4 determined by the Chairperson of the Ministerial Council.
5 (2) The Chairperson of the Board may grant leave of absence to any other
6 member of the Board on the terms and conditions determined by the
7 Chairperson of the Board.
8 (3) The Chairperson of the Board must notify the Chairperson of the
9 Ministerial Council if the Chairperson of the Board grants to a
10 member a leave of absence of more than 6 months.
11 (4) If a member of the Board has been granted a leave of absence of
12 3 months or more, the Ministerial Council may appoint a person
13 nominated by the Minister who nominated the member to act as a
14 member of the Board in the place of the member during that leave of
15 absence.
16 238. Disclosure of conflict of interest
17 (1) If --
18 (a) a member of the Board has a direct or indirect pecuniary or
19 other interest in a matter being considered or about to be
20 considered at a meeting of the Board; and
21 (b) the interest appears to raise a conflict with the proper
22 performance of the member's duties in relation to the
23 consideration of the matter --
24 the member must, as soon as possible after the relevant facts have
25 come to the member's knowledge, disclose the nature of the interest at
26 a meeting of the Board.
27 (2) Particulars of any disclosure made under subsection (1) must be
28 recorded by the Board.
29 (3) After a member has disclosed the nature of an interest in any matter,
30 the member must not, unless the Ministerial Council or the Board
31 otherwise determines --
32 (a) be present during any deliberation of the Board with respect
33 to the matter; or
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1 (b) take part in any decision of the Board with respect to the
2 matter; or
3 (c) be provided with any written material in relation to the
4 matter.
5 (4) For the purposes of the making of a determination by the Board under
6 subsection (3), a member who has a direct or indirect pecuniary or
7 other interest in a matter to which the disclosure relates must not --
8 (a) be present during any deliberation of the Board for the
9 purpose of making the determination; or
10 (b) take part in the making of the determination by the Board.
11 (5) A contravention of this section does not invalidate any decision of the
12 Board.
13 Subdivision 3 -- Procedure of Board
14 239. General procedure
15 (1) The Board must hold such meetings as are necessary for it to perform
16 its functions.
17 (2) Subject to this Law, the procedure for the calling of meetings of the
18 Board and for the conduct of business at those meetings is to be as
19 determined by the Board.
20 (3) The Chairperson of the Board may convene any meetings of the
21 Board that are, in his or her opinion, necessary for the efficient
22 performance of the functions of the Board.
23 (4) The Chairperson of the Board must convene a meeting of the Board at
24 the written request of the Ministerial Council.
25 (5) The Board must keep minutes of its meetings.
26 240. Quorum
27 The quorum for a meeting of the Board is 9 members of whom --
28 (a) one must be the Chairperson or Deputy Chairperson; and
29 (b) five must be members appointed on the nomination of State
30 and Territory Ministers; and
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1 (c) one may be a member appointed on the nomination of the
2 Commonwealth Minister.
3 241. Chief executive officer may attend meetings of the Board
4 (1) The chief executive officer of the National Authority, subject to the
5 policies and procedures of the Board, may attend meetings of the
6 Board and participate in its deliberations but --
7 (a) is not a member of the Board; and
8 (b) is not entitled to vote at a meeting of the Board.
9 (2) Section 238 applies to the chief executive officer in relation to
10 attendance at meetings of the Board as if the chief executive officer
11 were a member of the Board.
12 242. Presiding member
13 The Chairperson (or, in the absence of the Chairperson, the Deputy
14 Chairperson) is to preside at a meeting of the Board.
15 243. Voting
16 (1) At a meeting of the Board each member will have a deliberative vote.
17 (2) A decision supported by a majority of the votes cast at the meeting of
18 the Board at which a quorum is present is the decision of the Board.
19 (3) In the event of an equality of votes the Chairperson (or the Deputy
20 Chairperson if the Chairperson is not present), will have a second or
21 casting vote.
22 (4) The Board must keep a record of all decisions made at a meeting.
23 (5) If a decision of the Board to recommend a matter to the Ministerial
24 Council is not arrived at unanimously, the Chairperson of the Board
25 must advise the Ministerial Council of the reasons for and extent of
26 the minority opinions.
27 244. Defects in appointment of members
28 A decision of the Board is not invalidated by any defect or irregularity
29 in the appointment of any member (or acting member) of the Board.
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1 245. Transaction of business by alternative means
2 (1) The Board may, if it thinks fit, transact any of its business by the
3 provision of papers to all the members of the Board for the time
4 being, and a resolution in writing approved in writing by a majority of
5 the members constituting a quorum of the Board is taken to be a
6 decision of the Board.
7 (2) The Board may, if it thinks fit, transact any of its business at a
8 meeting at which members (or some members) participate by
9 telephone, closed-circuit television or other means, but only if any
10 member who speaks on a matter before the meeting can be heard by
11 the other members.
12 (3) For the purposes of --
13 (a) the approval of a resolution under subsection (1); or
14 (b) a meeting held in accordance with subsection (2),
15 the Chairperson and each member have the same voting rights as they
16 have at an ordinary meeting of the Board.
17 (4) Papers may be circulated among the members for the purposes of
18 subsection (1) by facsimile, email or other transmission of the
19 information in the papers concerned.
20 246. Delegation by Board
21 (1) The Board may, in writing, delegate any of its functions, powers or
22 duties to --
23 (a) a Regulatory Authority; or
24 (b) the chief executive of an entity or the head of a government
25 department of a participating jurisdiction nominated by the
26 member of the Ministerial Council who represents that
27 jurisdiction; or
28 (c) the chief executive officer of the National Authority; or
29 (d) a committee established by the Board; or
30 (e) any other entity with the approval of the Ministerial Council.
31 (2) Subject to the delegation under subsection (1), a chief executive of an
32 entity or head of a government department may subdelegate a
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1 delegated function, power or duty to a member of staff of the entity or
2 department.
3 (3) The chief executive officer of the National Authority may subdelegate
4 a delegated power, function or duty to a member of the staff of the
5 National Authority.
6 247. Committees
7 (1) The Board may establish committees to assist it in carrying out its
8 functions.
9 (2) The Board must determine --
10 (a) the membership and functions of a committee; and
11 (b) the procedure at or in relation to meetings of the committee
12 including --
13 (i) the convening of meetings; and
14 (ii) the quorum for meetings; and
15 (iii) the selection of a committee member to be the
16 chairperson of the committee; and
17 (iv) the manner in which questions arising at meetings of
18 the committee are to be decided; and
19 (c) the procedures for reporting to the Board.
20 (3) A committee must give the Board any reports, documents and
21 information relating to the committee's functions and activities that
22 the Board requests.
23 (4) The Board must report to the Ministerial Council on any committees
24 it establishes.
25 Subdivision 4 -- Chief executive officer of the National Authority
26 248. Chief executive officer
27 (1) Subject to this section, the Chairperson of the Board is to appoint a
28 person as chief executive officer of the National Authority.
29 (2) The appointment may only be made after the Ministerial Council has
30 first endorsed the appointment on the recommendation of the Board.
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1 249. Functions of chief executive officer
2 (1) The chief executive officer is responsible for the day to day
3 management of the affairs of the National Authority.
4 (2) The chief executive officer has any other functions given to him or
5 her or delegated to him or her under this Law.
6 (3) Subject to this Law, the chief executive officer must comply with the
7 directions and policies of the Board in carrying out his or her
8 functions.
9 (4) The chief executive officer is to report to the Board.
10 (5) The chief executive officer must manage the affairs of the National
11 Authority in a way that --
12 (a) promotes the effective use of the resources of the National
13 Authority; and
14 (b) is consistent with this Law.
15 (6) The chief executive officer must work collaboratively with the
16 Regulatory Authorities and the relevant Commonwealth Department
17 to support and promote the National Quality Framework.
18 250. Terms and conditions of appointment
19 (1) The chief executive officer of the National Authority is to be
20 appointed for a period, not more than 3 years, specified in the
21 officer's appointment, but is eligible for reappointment.
22 (2) A member of the Board cannot be appointed as chief executive
23 officer.
24 (3) Subject to this Law, the chief executive officer holds office subject to
25 any terms and conditions that are decided by the Board.
26 (4) The chief executive officer must not engage in paid employment
27 outside the duties of his or her office without the approval of the
28 Chairperson of the Board.
29 (5) The Chairperson of the Board must notify the Chairperson of the
30 Ministerial Council of any approval given under subsection (4).
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1 (6) The chief executive officer of the National Authority is taken, while
2 holding that office, to be a member of the staff of the National
3 Authority.
4 251. Remuneration
5 The chief executive officer is to be paid the remuneration and
6 allowances decided by the Board.
7 252. Vacancy in office
8 The office of the chief executive officer of the National Authority
9 becomes vacant if --
10 (a) the chief executive officer resigns from office by written
11 notice addressed to the Chairperson of the Board; or
12 (b) the appointment of the chief executive officer is terminated
13 by the Board under this Law; or
14 (c) the chief executive officer dies.
15 253. Resignation
16 (1) The chief executive officer may resign the office by written notice
17 addressed to the Chairperson of the Board.
18 (2) The resignation takes effect on the day that it is received by the
19 Chairperson of the Board or a later day specified in the notice of
20 resignation.
21 (3) The Chairperson of the Board must notify the Ministerial Council of
22 that resignation.
23 254. Termination of appointment
24 (1) The Board may terminate the appointment of the chief executive
25 officer --
26 (a) for misconduct or for physical or mental incapacity that
27 significantly impacts on the ability of the chief executive
28 officer to perform the role; or
29 (b) if the Board is satisfied that the performance of the chief
30 executive officer has been unsatisfactory; or
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1 (c) if the chief executive officer engages in paid employment
2 outside the duties of his or her office without the approval of
3 the Chairperson of the Board; or
4 (d) if the chief executive officer has been found guilty of an
5 offence (whether in a participating jurisdiction or elsewhere)
6 that, in the opinion of the Board, makes the chief executive
7 officer unfit to continue to be appointed.
8 (2) The Board must terminate the appointment of the chief executive
9 officer if the chief executive officer --
10 (a) becomes bankrupt, applies to take the benefit of any law for
11 the relief of bankrupt or insolvent debtors, compounds with
12 the chief executive officer's creditors or makes an assignment
13 of the chief executive officer's remuneration for their benefit;
14 or
15 (b) is absent, except on a leave of absence approved by the
16 Chairperson of the Board, for 14 consecutive days or for
17 28 days in any period of 12 months; or
18 (c) fails, without reasonable excuse, to comply with section 256.
19 (3) The Chairperson of the Board must notify the Chairperson of the
20 Ministerial Council of the termination of the appointment of the chief
21 executive officer.
22 255. Acting chief executive officer
23 (1) The Board may appoint a person to act as the chief executive
24 officer --
25 (a) during any vacancy in the office of chief executive officer; or
26 (b) during any period that the chief executive officer --
27 (i) is absent from duty; or
28 (ii) is, for any reason, unable to perform the duties of that
29 office.
30 (2) The period of the acting appointment must not exceed 6 months.
31 256. Disclosure of interests
32 The chief executive officer must give written notice to the
33 Chairperson of the Board as soon as possible of any direct or indirect
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1 personal or pecuniary interest that the chief executive officer has, or
2 acquires, or may acquire, that conflicts or could conflict with the
3 proper carrying out of the chief executive officer's functions.
4 Subdivision 5 -- Staff, consultants and contractors
5 257. Staff of National Authority
6 (1) The National Authority may, for the purpose of carrying out its
7 functions, employ staff.
8 (2) The staff of the National Authority are to be employed on the terms
9 and conditions determined by the National Authority from time to
10 time.
11 (3) Subsection (2) is subject to any relevant industrial award or agreement
12 that applies to the staff.
13 258. Staff seconded to National Authority
14 The National Authority may, in consultation with the relevant
15 Regulatory Authority or the relevant Commonwealth Department,
16 make arrangements for the secondment of staff.
17 259. Consultants and contractors
18 (1) The National Authority may engage persons with suitable
19 qualifications and experience as consultants or contractors.
20 (2) The terms and conditions of engagement of consultants or contractors
21 are as decided by the National Authority from time to time.
22 Part 12 -- Regulatory Authority
23 260. Functions of Regulatory Authority
24 The Regulatory Authority has the following functions under this Law
25 in relation to this jurisdiction --
26 (a) to administer the National Quality Framework;
27 (b) to assess approved education and care services against the
28 National Quality Standard and the national regulations and
29 determine the ratings of those services;
30 (c) to monitor and enforce compliance with this Law;
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1 (d) to receive and investigate complaints arising under this Law;
2 (e) in conjunction with the National Authority and the relevant
3 Commonwealth Department, to educate and inform education
4 and care services and the community in relation to the
5 National Quality Framework;
6 (f) to work in collaboration with the National Authority to
7 support and promote continuous quality improvements in
8 education and care services;
9 (g) to undertake information collection, review and reporting for
10 the purposes of --
11 (i) the regulation of education and care services; and
12 (ii) reporting on the administration of the National
13 Quality Framework; and
14 (iii) the sharing of information under this Law;
15 (h) any other functions conferred on the Regulatory Authority
16 under this Law.
17 261. Powers of Regulatory Authority
18 (1) The Regulatory Authority has the power to do all things that are
19 necessary or convenient to be done for, or in connection with, or that
20 are incidental to the carrying out of its functions under this Law.
21 (2) Without limiting subsection (1), the Regulatory Authority has the
22 following powers under this Law in relation to this jurisdiction --
23 (a) to collect, hold and use information obtained under this Law
24 by the Regulatory Authority or the National Authority about
25 the provision of education and care to children including
26 information about outcomes for children and information
27 about providers of education and care services in each
28 participating jurisdiction;
29 (b) subject to the Privacy Act 1988 of the Commonwealth, to
30 collect, hold and use information about providers of
31 education and care services, family day care educators and
32 certified supervisors;
33 (c) to maintain and publish registers of approved providers,
34 approved education and care services and certified
35 supervisors;
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1 (d) to publish information about the National Quality
2 Framework, including ratings and prescribed information
3 about compliance with this Law;
4 (e) to collect, waive, reduce, defer and refund fees (including late
5 payment fees) and enter into agreements in relation to fees;
6 (f) to enter into agreements relating to fees and funding with the
7 National Authority;
8 (g) to exercise any other powers conferred on it by this Law.
9 262. Delegations
10 (1) The Regulatory Authority may in writing delegate any of its functions
11 and powers under this Law (other than this power of delegation) to --
12 (a) any person employed under a public sector law of this
13 jurisdiction; or
14 (b) a prescribed person or a person in a prescribed class of
15 persons.
16 (2) A delegate of the Regulatory Authority must disclose to the
17 Regulatory Authority, at the request of the Authority, any direct or
18 indirect personal or pecuniary interest the delegate may have in
19 relation to the delegated functions and powers.
20 Part 13 -- Information, records and privacy
21 Division 1 -- Privacy
22 263. Application of Commonwealth Privacy Act
23 (1) The Privacy Act applies as a law of a participating jurisdiction for the
24 purposes of the National Quality Framework.
25 (2) For the purposes of subsection (1), the Privacy Act applies --
26 (a) as if a reference to the Office of the Privacy Commissioner
27 were a reference to the Office of the National Education and
28 Care Services Privacy Commissioner; and
29 (b) as if a reference to the Privacy Commissioner were a
30 reference to the National Education and Care Services
31 Privacy Commissioner; and
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1 (c) with any other modifications made by the national
2 regulations.
3 (3) Without limiting subsection (2)(c), the national regulations may --
4 (a) provide that the Privacy Act applies under subsection (1) as if
5 a provision of the Privacy Act specified in the national
6 regulations were omitted; or
7 (b) provide that the Privacy Act applies under subsection (1) as if
8 an amendment to the Privacy Act made by a law of the
9 Commonwealth, and specified in the national regulations, had
10 not taken effect; or
11 (c) confer jurisdiction on a tribunal or court of a participating
12 jurisdiction.
13 (4) In this section --
14 Privacy Act means the Privacy Act 1988 of the Commonwealth, as in
15 force from time to time.
16 Division 2 -- Application of Commonwealth FOI Act
17 264. Application of Commonwealth FOI Act
18 (1) The FOI Act applies as a law of a participating jurisdiction for the
19 purposes of the National Quality Framework.
20 (2) For the purposes of subsection (1), the FOI Act applies --
21 (a) as if a reference to the Office of the Freedom of Information
22 Commissioner were a reference to the Office of the National
23 Education and Care Services Freedom of Information
24 Commissioner; and
25 (b) as if a reference to the Freedom of Information Commissioner
26 were a reference to the National Education and Care Services
27 Freedom of Information Commissioner; and
28 (c) with any other modifications made by the national
29 regulations.
30 (3) Without limiting subsection (2), the national regulations may --
31 (a) provide that the FOI Act applies under subsection (1) as if a
32 provision of the FOI Act specified in the national regulations
33 were omitted; or
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1 (b) provide that the FOI Act applies under subsection (1) as if an
2 amendment to the FOI Act made by a law of the
3 Commonwealth, and specified in the national regulations, had
4 not taken effect; or
5 (c) confer jurisdiction on a tribunal or court of a participating
6 jurisdiction.
7 (4) In this section --
8 FOI Act means the Freedom of Information Act 1982 of the
9 Commonwealth, as in force from time to time.
10 Division 3 -- Application of New South Wales State Records Act
11 265. Application of State Records Act
12 (1) The State Records Act applies as a law of a participating jurisdiction
13 for the purposes of the National Quality Framework except to the
14 extent that this Law applies to a Regulatory Authority and the records
15 of a Regulatory Authority.
16 (2) The national regulations may modify the State Records Act for the
17 purposes of this Law.
18 (3) Without limiting subsection (2), the national regulations may --
19 (a) provide that the State Records Act applies under
20 subsection (1) as if a provision of the State Records Act
21 specified in the national regulations were omitted; or
22 (b) provide that the State Records Act applies under
23 subsection (1) as if an amendment to the State Records Act
24 made by a law of New South Wales, and specified in the
25 national regulations, had not taken effect; or
26 (c) confer jurisdiction on a tribunal or court of a participating
27 jurisdiction.
28 (4) In this section --
29 State Records Act means the State Records Act 1998 of New South
30 Wales, as in force from time to time.
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1 Division 4 -- Registers
2 266. Register of approved providers
3 (1) The National Authority must keep a register of approved providers.
4 (2) The register must contain --
5 (a) the name of each approved provider; and
6 (b) any other prescribed information.
7 (3) The register of approved providers may be inspected at the office of
8 the National Authority during normal office hours without charge.
9 (4) A person may obtain a copy of, or extract from, the register of
10 approved providers on payment of the prescribed fee.
11 267. Register of education and care services
12 (1) The Regulatory Authority must keep a register of approved education
13 and care services operating in the participating jurisdiction.
14 (2) The register of approved education and care services must contain the
15 following information --
16 (a) the name of each service;
17 (b) the name of the approved provider of each service;
18 (c) except in the case of a family day care service, the address of
19 each education and care service premises;
20 (d) in the case of an approved family day care service, the
21 address of the principal office of the service;
22 (e) the rating levels for each service;
23 (f) any other prescribed information.
24 (3) The register of approved education and care services may be
25 inspected at the office of the Regulatory Authority during normal
26 office hours without charge.
27 (4) A person may obtain a copy of, or extract from, the register of
28 approved education and care services on payment of the prescribed
29 fee.
30 (5) The Regulatory Authority must provide a copy of the register of
31 approved education and care services (as updated from time to time)
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1 to the National Authority and the relevant Commonwealth
2 Department.
3 268. Register of certified supervisors
4 (1) The National Authority must keep a register of certified supervisors.
5 (2) The register of certified supervisors must contain the following
6 information --
7 (a) the name of each certified supervisor or the prescribed class
8 of person to which the certified supervisor belongs;
9 (b) any other prescribed information.
10 (3) The register of certified supervisors may be inspected at the office of
11 the National Authority during normal office hours without charge.
12 (4) A person may obtain a copy of, or extract from, the register of
13 certified supervisors on payment of the prescribed fee.
14 269. Register of family day care educators
15 (1) The approved provider of a family day care service must keep at its
16 principal office a register of each family day care educator and any
17 other person engaged by or registered with a family day care service
18 to educate and care for a child.
19 (2) The register must contain the prescribed information in respect of
20 each family day care educator engaged by or registered with a family
21 day care service to educate and care for children.
22 (3) The approved provider must provide any information on the register
23 of family day care educators and any changes to that information to
24 the Regulatory Authority on request.
25 Division 5 -- Publication of information
26 270. Publication of information
27 (1) The National Authority and the Regulatory Authority may publish the
28 following information about approved providers, approved education
29 and care services and certified supervisors --
30 (a) the name of each provider, service or supervisor;
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1 (b) except in the case of approved family day care services, the
2 address of each education and care service premises;
3 (c) in the case of approved family day care services, the address
4 of the principal office of each service;
5 (d) the rating levels of each approved education and care service;
6 (e) other prescribed information in respect of approved education
7 and care services.
8 (2) The National Authority --
9 (a) must publish on its website --
10 (i) the register of approved providers; and
11 (ii) the register of certified supervisors; and
12 (b) may publish on its website the register of approved education
13 and care services as kept by a Regulatory Authority.
14 (3) The Regulatory Authority must publish on its website the register of
15 approved education and care services kept by the Regulatory
16 Authority.
17 (4) The relevant Commonwealth Department is authorised to publish the
18 register of approved education and care services on a website kept by
19 that department.
20 (5) The Regulatory Authority may publish the prescribed information
21 about --
22 (a) enforcement actions taken under this Law, including
23 information about compliance notices, prosecutions,
24 enforceable undertakings, suspension or cancellation of
25 approvals or certificates; and
26 (b) any prescribed matters.
27 (6) Information published under this section must not include information
28 that could identify or lead to the identification of an individual other
29 than --
30 (a) an approved provider or certified supervisor; or
31 (b) a person who is being prosecuted for an offence against this
32 Law; or
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1 (c) a person against whom disciplinary action has been taken.
2 Note: This section differs from section 270 of the national law as set out in
3 the Schedule to the Education and Care Services National Law
4 Act 2010 (Victoria).
5 Division 6 -- Disclosure of information
6 271. Disclosure of information to other authorities
7 (1) The Regulatory Authority and any government department, public
8 authority and local authority may disclose information in respect of
9 education and care services to each other for the purposes of this Law.
10 (2) The Regulatory Authority may disclose information in respect of
11 education and care services to the National Authority or a Regulatory
12 Authority of a participating jurisdiction or a person acting for that
13 Authority --
14 (a) for the purposes of this Law; or
15 (b) for the purposes of research and the development of national
16 policy with respect to education and care services.
17 (3) The Regulatory Authority may disclose information in respect of
18 education and care services to the relevant Commonwealth
19 Department or a person acting for the relevant Commonwealth
20 Department --
21 (a) for the purposes of this Law; or
22 (b) for the purposes of research and the development of national
23 policy with respect to education and care services; or
24 (c) for a purpose relating to the funding of education and care
25 services; or
26 (d) for a purpose relating to the payment of benefits or
27 allowances to persons using education and care services.
28 (4) The Regulatory Authority must disclose to the Regulatory Authorities
29 of other participating jurisdictions the suspension or cancellation of a
30 working with children check, working with children card or teacher
31 registration of a nominated supervisor or certified supervisor of which
32 it is notified under this Law.
33 (5) The Regulatory Authority may disclose to the head of the government
34 department responsible for the administration of a working with
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1 children law any prohibition notice issued under this Law as applying
2 in any participating jurisdiction in respect of the person.
3 (6) A disclosure of information under this section is subject to --
4 (a) Division 1; and
5 (b) any protocol approved by the National Authority for the
6 purposes of this section.
7 (7) Information provided under this section must not include information
8 that could identify or lead to the identification of an individual other
9 than --
10 (a) an approved provider or a certified supervisor; or
11 (b) a family day care educator who has been suspended from
12 providing education and care to children as part of a family
13 day care service; or
14 (c) a person to whom a prohibition notice applies; or
15 (d) a person who is being prosecuted for an offence against this
16 Law.
17 272. Disclosure of information to education and care services
18 (1) If requested by an approved provider, the Regulatory Authority may
19 disclose the following information --
20 (a) whether a person named in the request is subject to a
21 prohibition notice issued under this Law as applying in any
22 participating jurisdiction;
23 (b) whether a family day care educator named in the request has
24 been suspended from providing education and care to
25 children as part of a family day care service.
26 (2) A disclosure of information under this section is subject to --
27 (a) Division 1; and
28 (b) any protocol approved by the National Authority for the
29 purposes of this section.
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1 273. Duty of confidentiality
2 (1) An individual who is, or who has been, a person exercising functions
3 under this Law must not disclose to another person protected
4 information.
5 Penalty: $5 000.
6 (2) However, subsection (1) does not apply if --
7 (a) the information is disclosed in the exercise of a function
8 under, or for the purposes of, or in accordance with, this Law;
9 or
10 (b) the disclosure is authorised or required by any law of a
11 participating jurisdiction, or is otherwise required or
12 permitted by law; or
13 (c) the disclosure is with the agreement of the person to whom
14 the information relates; or
15 (d) the information relates to proceedings before a court or
16 tribunal and the proceedings are or were open to the public;
17 or
18 (e) the information is, or has been accessible to the public,
19 including because it was published for the purposes of, or in
20 accordance with, this Law; or
21 (f) the disclosure is otherwise authorised by the Ministerial
22 Council.
23 (3) In this section --
24 protected information means information --
25 (a) that is personal to a particular individual and that identifies or
26 could lead to the identification of the individual; and
27 (b) that comes to a person's knowledge in the course of, or
28 because of, the person exercising functions under this Law.
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1 Part 14 -- Miscellaneous
2 Division 1 -- Finance
3 274. Australian Children's Education and Care Quality Authority
4 Fund
5 (1) The Australian Children's Education and Care Quality Authority
6 Fund is established.
7 (2) The Authority Fund is a fund to be administered by the National
8 Authority.
9 (3) The National Authority may establish accounts with any financial
10 institution for money in the Authority Fund.
11 (4) The Authority Fund does not form part of the consolidated fund or
12 consolidated account of a participating jurisdiction or the
13 Commonwealth.
14 275. Payments into Authority Fund
15 There is payable into the Authority Fund --
16 (a) all money provided by a participating jurisdiction or the
17 Commonwealth for the purposes of the Fund; and
18 (b) the proceeds of the investment of money in the Fund; and
19 (c) all grants, gifts and donations made to the National Authority,
20 but subject to any trusts declared in relation to the grants,
21 gifts or donations; and
22 (d) all money directed or authorised to be paid into the Fund by
23 or under this Law, any law of a participating jurisdiction or
24 any law of the Commonwealth; and
25 (e) any other money and property prescribed by the national
26 regulations; and
27 (f) any other money or property received by the National
28 Authority in connection with the exercise of its functions.
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1 276. Payments out of Authority Fund
2 Payments may be made from the Authority Fund for the purpose of --
3 (a) paying any costs or expenses, or discharging any liabilities,
4 incurred by the National Authority in the administration or
5 enforcement of this Law or in the performance of its
6 functions or duties or the exercise of its powers; and
7 (b) paying any remuneration or allowances payable under this
8 Law by the National Authority; and
9 (c) allocating, transferring or reimbursing money to a
10 participating jurisdiction in accordance with the national
11 regulations; and
12 (d) any other payments recommended by the National Authority
13 and approved by the Ministerial Council.
14 277. Investment of money in Authority Fund
15 The National Authority may invest money in the Authority Fund in
16 accordance with the national regulations.
17 278. Financial management duties of National Authority
18 The National Authority must --
19 (a) ensure that its operations are carried out efficiently,
20 effectively and economically; and
21 (b) keep proper books and records in relation to the Authority
22 Fund; and
23 (c) ensure that expenditure is made from the Authority Fund for
24 lawful purposes only and, as far as possible, reasonable value
25 is obtained for money expended from the Fund; and
26 (d) ensure that its procedures, including internal control
27 procedures, afford adequate safeguards with respect to --
28 (i) the correctness, regularity and propriety of payments
29 made from the Authority Fund; and
30 (ii) receiving and accounting for payments made to the
31 Authority Fund; and
32 (iii) prevention of fraud or mistake; and
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1 (e) take any action necessary to ensure the preparation of
2 accurate financial statements in accordance with Australian
3 Accounting Standards for inclusion in its annual report; and
4 (f) take any action necessary to facilitate the audit of those
5 financial statements in accordance with this Law; and
6 (g) arrange for any further audit by a qualified person of the
7 books and records kept by the National Authority in relation
8 to the Authority Fund, if directed to do so by the Ministerial
9 Council.
10 Division 2 -- Reporting
11 279. Annual report
12 (1) The Board must, within 4 months after the end of each financial year,
13 submit an annual report of the National Authority for the financial
14 year to the Ministerial Council.
15 (2) The annual report must include --
16 (a) an audited financial statement for the period to which the
17 report relates; and
18 (b) a report about the National Authority's performance of its
19 functions under this Law during the period to which the
20 annual report relates; and
21 (c) an assessment of the implementation and administration of
22 the National Quality Framework; and
23 (d) all directions given to the National Authority by the
24 Ministerial Council and the Authority's response; and
25 (e) all directions given to the Regulatory Authorities by the
26 Ministerial Council and the Regulatory Authorities'
27 responses; and
28 (f) a report on any committees established by the Board; and
29 (g) any other matter determined by the Ministerial Council.
30 (3) The financial statement is to be prepared in accordance with
31 Australian Accounting Standards.
32 (4) The financial statement is to be audited by a public sector auditor and
33 a report is to be provided by the auditor.
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1 (5) The Ministerial Council may extend, or further extend, the period for
2 submission of an annual report to the Council by a total period of up
3 to 3 months.
4 (6) In this section --
5 public sector auditor means --
6 (a) the Auditor-General (however described) of a participating
7 jurisdiction or the Commonwealth; or
8 (b) an auditor employed, appointed or otherwise engaged by an
9 Auditor-General of a participating jurisdiction or the
10 Commonwealth.
11 280. Tabling and publication of annual report
12 (1) The Ministerial Council must make arrangements for the tabling of
13 the annual report of the National Authority, and the report of the
14 public sector auditor with respect to the financial statement in the
15 report, in the Parliament of a participating jurisdiction determined by
16 the Ministerial Council.
17 (2) As soon as practicable after the annual report has been tabled in the
18 Parliament determined under subsection (1), the National Authority
19 must publish a copy of the report on its website.
20 281. Other reporting
21 (1) The National Authority may make any reports to the Ministerial
22 Council that it considers necessary in the performance of its functions.
23 (2) The Chairperson of the Board must provide to the Ministerial Council
24 any other reports and documents and information relating to the
25 operations of the National Authority that the Ministerial Council
26 requires.
27 (3) The Chairperson of the Board may provide to the responsible Minister
28 of a participating jurisdiction and the Commonwealth Minister any
29 reports and documents and information relating to the operations of
30 the National Authority that the responsible Minister requires.
31 (4) The reports, documents and information referred to in subsection (2)
32 must be provided within the time set by the Ministerial Council.
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1 Division 3 -- Application of Commonwealth Ombudsman Act
2 282. Application of Commonwealth Ombudsman Act
3 (1) The Ombudsman Act applies as a law of a participating jurisdiction
4 for the purposes of this Law except to the extent that this Law applies
5 to a Regulatory Authority and the employees, decisions, actions and
6 records of a Regulatory Authority.
7 (2) For the purposes of subsection (1), the Ombudsman Act applies --
8 (a) as if a reference to the Commonwealth Ombudsman were a
9 reference to the Education and Care Services Ombudsman;
10 and
11 (b) with any other modifications made by the national
12 regulations.
13 (3) Without limiting subsection (2), the national regulations may --
14 (a) provide that the Ombudsman Act applies under subsection (1)
15 as if a provision of the Ombudsman Act specified in the
16 regulations were omitted; or
17 (b) provide that the Ombudsman Act applies under subsection (1)
18 as if an amendment to the Ombudsman Act made by a law of
19 the Commonwealth, and specified in the regulations, had not
20 taken effect; or
21 (c) confer jurisdiction on a tribunal or court of a participating
22 jurisdiction.
23 (4) In this section --
24 Ombudsman Act means the Ombudsman Act 1976 of the
25 Commonwealth, as in force from time to time.
26 Division 4 -- Legal proceedings
27 283. Who may bring proceedings for an offence?
28 (1) The following persons may bring proceedings for an offence under
29 this Law --
30 (a) the Regulatory Authority;
31 (b) a person authorised by the Regulatory Authority;
32 (c) a police officer.
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1 (2) In a proceeding for an offence against this Law or the regulations it
2 must be presumed, in the absence of evidence to the contrary, that the
3 person bringing the proceeding was authorised to bring it.
4 284. When proceedings may be brought
5 Proceedings for an offence under this Law must be commenced
6 within 2 years of the date of the alleged offence.
7 285. Offences by bodies corporate
8 (1) If a body corporate commits an offence against this Law, any person
9 with management or control of the body corporate who failed to
10 exercise due diligence to prevent the contravention that is the subject
11 of the offence also commits that offence and is liable to the penalty
12 for that offence.
13 (2) The penalty for an offence referred to in this section is the penalty
14 applicable to an individual.
15 286. Application of Law to partnerships and eligible associations and
16 other entities
17 (1) If this Law would otherwise require or permit something to be done
18 by a partnership, the thing may be done by one or more of the partners
19 on behalf of the partnership.
20 (2) If this Law would otherwise require or permit something to be done
21 by an eligible association, the thing may be done by one or more of
22 the members of the executive committee on behalf of the association.
23 (3) If this Law would otherwise require or permit something to be done
24 by a prescribed entity, the thing may be done by one or more of the
25 persons with management or control of the entity on behalf of the
26 entity.
27 (4) An offence against this Law that would otherwise be committed by
28 the partnership is taken to have been committed by each partner who
29 is a person with management or control of the partnership.
30 (5) An offence against this Law that would otherwise be committed by an
31 eligible association is taken to have been committed by each person
32 who is a person with management or control of the association.
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1 (6) An offence against this Law that would otherwise be committed by a
2 prescribed entity is taken to have been committed by each person who
3 is a person with management or control of that entity.
4 (7) The penalty for an offence that is taken to be committed under this
5 section is the penalty applicable to an individual.
6 287. Multiple holders of an approval
7 If more than one person holds a provider approval or service approval
8 under this Law each holder of the approval is jointly and severally
9 responsible for compliance with this Law.
10 288. Double jeopardy
11 If a person has been convicted or found guilty in another participating
12 jurisdiction for an offence against this Law as it applies in that
13 jurisdiction, proceedings cannot be brought in this jurisdiction against
14 the same person in respect of an offence concerning the same
15 subject-matter.
16 289. Immunity
17 (1) A member of the Board of the National Authority, a committee of the
18 Board or a Ratings Review Panel is not personally liable for anything
19 done or omitted to be done in good faith --
20 (a) in the exercise of a power or the performance of a function
21 under this Law; or
22 (b) in the reasonable belief that the action or omission was in the
23 exercise of the power or the performance of the function
24 under this Law.
25 (2) Any liability resulting from an act or omission that would, but for
26 subsection (1), attach to an individual referred to in that subsection
27 attaches instead to the National Authority.
28 (3) The Regulatory Authority (if an individual) or a member of the
29 governing body of the Regulatory Authority is not personally liable
30 for anything done or omitted to be done in good faith --
31 (a) in the exercise of a power or the performance of a function
32 under this Law; or
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1 (b) in the reasonable belief that the action or omission was in the
2 exercise of the power or the performance of the function
3 under this Law.
4 (4) Any liability resulting from an act or omission that would, but for
5 subsection (3), attach to an individual referred to in that subsection
6 attaches instead to the State.
7 290. Immunity -- education law
8 (1) This section applies if the Regulatory Authority becomes aware of
9 misconduct by a registered teacher or other person who could be
10 subject to disciplinary action under an education law of a participating
11 jurisdiction.
12 (2) The Regulatory Authority may refer the matter to the relevant
13 disciplinary body under the education law.
14 (3) If the Regulatory Authority refers a matter under subsection (2), a
15 prosecution cannot be brought under this Law for an offence in
16 relation to that matter.
17 291. Infringement offences
18 (1) An authorised officer or other person authorised by the Regulatory
19 Authority may serve an infringement notice on a person for a
20 contravention of --
21 (a) section 172, 173 or 176; or
22 (b) offences against the national regulations that are prescribed
23 for the purposes of this section.
24 (2) The infringement penalty for an offence for which an infringement
25 notice may be served on a person is the amount which is 10 per cent
26 of the maximum penalty that could be imposed on the person in
27 respect of that offence.
28 (3) An infringement notice must be in the form prescribed or contain the
29 information prescribed by the infringements law of this jurisdiction.
30 (4) Subject to this section, the infringements law of this jurisdiction
31 applies to infringement notices served under this section in this
32 jurisdiction and for that purpose --
33 (a) this law is taken to be a prescribed Act under Part 2 of the
34 infringements law; and
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1 (b) an offence against a provision referred to in subsection (1)(a)
2 or prescribed under subsection (1)(b) is taken to be an offence
3 prescribed under section 5(1) of the infringements law; and
4 (c) the infringement penalty referred to in subsection (2) for an
5 offence is taken to be the modified penalty prescribed under
6 the infringements law for that offence; and
7 (d) the matters to be prescribed under section 6 of the
8 infringements law are to be prescribed in the national
9 regulations.
10 (5) The payment of an infringement penalty expiates the offence and is
11 not to be considered in --
12 (a) assessing whether a person is a fit and proper person to be
13 involved in the provision of, or to be a supervisor of, an
14 education and care service; or
15 (b) assessing an approved education and care service under
16 Part 5.
17 Note: This section differs from section 291 of the national law as set out in
18 the Schedule to the Education and Care Services National Law
19 Act 2010 (Victoria).
20 292. Evidentiary certificates
21 A certificate purporting to be signed by the chief executive officer of
22 the National Authority or by a Regulatory Authority and stating any
23 of the following matters is prima facie evidence of the matter --
24 (a) a stated document is one of the following things made, given,
25 issued or kept under this Law --
26 (i) an appointment, approval or decision;
27 (ii) a notice, direction or requirement;
28 (iii) a supervisor certificate;
29 (iv) a register, or an extract from a register;
30 (v) a record, or an extract from a record;
31 (b) a stated document is another document kept under this Law;
32 (c) a stated document is a copy of a document mentioned in
33 paragraph (a) or (b);
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1 (d) on a stated day, or during a stated period, a stated person was
2 or was not an approved provider or a certified supervisor;
3 (e) on a stated day, or during a stated period, an education and
4 care service was or was not an approved education and care
5 service;
6 (f) on a stated day, or during a stated period, an approval was or
7 was not subject to a stated condition;
8 (g) on a stated day, an approval or supervisor certificate was
9 suspended or cancelled;
10 (h) on a stated day, or during a stated period, an appointment as
11 authorised officer was, or was not, in force for a stated
12 person;
13 (i) on a stated day, a stated person was given a stated notice or
14 direction under this Law;
15 (j) on a stated day, a stated requirement was made of a stated
16 person.
17 Division 5 -- Service of notices
18 293. Service of notices
19 (1) If this Law requires or permits a notice to be served on a person, the
20 notice may be served --
21 (a) on an individual by --
22 (i) delivering it to the individual personally; or
23 (ii) leaving it at, or by sending it by post to, the address
24 notified to the sender by the individual as an address
25 at which service of notices under this Law will be
26 accepted or otherwise the address of the place of
27 residence or business of the individual last known to
28 the person serving the document; or
29 (iii) sending it by facsimile transmission to a facsimile
30 number notified to the sender by the individual as an
31 address at which service of notices under this Law
32 will be accepted; or
33 (iv) sending it by email to an internet address notified to
34 the sender by the individual as an address at which
35 service of notices under this Law will be accepted; or
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1 (b) on a person other than an individual by --
2 (i) leaving it at, or by sending it by post to, the address
3 notified to the sender by the person as an address at
4 which service of notices under this Law will be
5 accepted or otherwise the address of the head office,
6 a registered office or the principal place of business
7 of the person; or
8 (ii) sending it by facsimile transmission to a facsimile
9 number notified to the sender by the person as an
10 address at which service of notices under this Law
11 will be accepted; or
12 (iii) sending it by email to an internet address notified to
13 the sender by the person as an address at which
14 service of notices under this Law will be accepted.
15 (2) Subsection (1) applies whether the word "deliver", "give", "notify",
16 "send" or "serve" or another expression is used.
17 (3) Subsection (1) does not affect the power of a court or tribunal to
18 authorise service of a notice otherwise than as provided in that
19 subsection.
20 294. Service by post
21 If a notice authorised or required to be served (whether the word
22 "deliver", "give", "notify", "send" or "serve" or another expression is
23 used) on a person is served by post, service of the notice --
24 (a) may be effected by properly addressing, prepaying and
25 posting a letter containing the document; and
26 (b) in Australia or in an external Territory -- is, unless evidence
27 sufficient to raise doubt is adduced to the contrary, taken to
28 have been effected on the fourth day after the letter was
29 posted; and
30 (c) in another place -- is, unless evidence sufficient to raise
31 doubt is adduced to the contrary, taken to have been effected
32 at the time when the letter would have been delivered in the
33 ordinary course of the post.
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1 Division 6 -- False or misleading information
2 295. False or misleading information or documents
3 (1) A person must not give the Regulatory Authority or an authorised
4 officer under this Law any information or document that the person
5 knows is false or misleading in a material particular.
6 Penalty: $6 000, in the case of an individual.
7 $30 000, in any other case.
8 (2) Subsection (1) does not apply in respect of the giving of a document,
9 if the person when giving the document --
10 (a) informs the Regulatory Authority or authorised officer, to the
11 best of the person's ability, how it is false or misleading; and
12 (b) gives the correct information to the Regulatory Authority or
13 authorised officer if the person has, or can reasonably obtain,
14 the correct information.
15 Division 7 -- Protection from reprisal
16 296. Definitions
17 In this Division --
18 protected disclosure means a disclosure of information or provision
19 of documents to the Regulatory Authority --
20 (a) pursuant to a request under this Law; or
21 (b) where the person making the disclosure has a reasonable
22 belief that --
23 (i) an offence against this Law has been or is being
24 committed; or
25 (ii) the safety, health or wellbeing of a child or children
26 being educated and cared for by an education and
27 care service is at risk;
28 serious detrimental action includes dismissal, involuntary transfer,
29 loss of promotion and demotion.
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1 297. Protection from reprisal
2 (1) A person must not take serious detrimental action against a person in
3 reprisal for a protected disclosure.
4 Penalty: $10 000, in the case of an individual.
5 $50 000, in any other case.
6 (2) A person takes serious detrimental action in reprisal for a protected
7 disclosure if --
8 (a) the person takes or threatens to take the action because --
9 (i) a person has made, or intends to make, a protected
10 disclosure; or
11 (ii) the person believes that a person has made or intends
12 to make the protected disclosure; or
13 (b) the person incites or permits another person to take or
14 threaten to take the action for either of those reasons.
15 (3) In determining whether a person takes serious detrimental action in
16 reprisal, it is irrelevant whether or not a reason referred to in
17 subsection (2) is the only or dominant reason as long as it is a
18 substantial reason.
19 298. Proceedings for damages for reprisal
20 (1) A person who takes serious detrimental action against a person in
21 reprisal for a protected disclosure is liable in damages to that person.
22 (2) The damages may be recovered in proceedings as for a tort in any
23 court of competent jurisdiction.
24 (3) Any remedy that may be granted by a court with respect to a tort,
25 including exemplary damages, may be granted by a court in
26 proceedings under this section.
27 (4) The right of a person to bring proceedings for damages does not affect
28 any other right or remedy available to the person arising from the
29 serious detrimental action.
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1 299. Application for injunction or order
2 A person who believes that serious detrimental action has been taken
3 or may be taken against him or her in reprisal for a protected
4 disclosure may apply to the superior court for --
5 (a) an order requiring the person who has taken the serious
6 detrimental action to remedy that action; or
7 (b) an injunction.
8 300. Injunction or order
9 (1) If, on receipt of an application under section 299, the superior court is
10 satisfied that a person has taken or intends to take serious detrimental
11 action against a person in reprisal for a protected disclosure, the court
12 may --
13 (a) order the person who took the serious detrimental action to
14 remedy that action; or
15 (b) grant an injunction in any terms the court considers
16 appropriate.
17 (2) The superior court, pending the final determination of an application
18 under section 299, may --
19 (a) make an interim order in the terms of subsection (1)(a); or
20 (b) grant an interim injunction.
21 Division 8 -- National regulations
22 301. National regulations
23 (1) The Governor may make regulations for the purposes of this Law.
24 (2) The national regulations may provide for any matter that is required
25 or permitted to be prescribed or necessary or convenient to be
26 prescribed for carrying out or giving effect to this Law.
27 (3) Without limiting subsection (1), the national regulations may provide
28 for the following --
29 (a) fees (including application fees and annual fees) for
30 approvals and certificates and other things done under this
31 Law;
32 (b) the indexation of fees;
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1 (c) standards for education and care services;
2 (d) requirements for educational programs, including the quality
3 of those programs and their development, documentation and
4 delivery;
5 (e) requirements and standards to be complied with for the
6 safety, health and wellbeing of children being educated and
7 cared for by an education and care service;
8 (f) requirements and standards to be complied with for safety,
9 security, cleanliness, comfort, hygiene and repair of premises,
10 outdoor spaces, fencing, gates, resources and equipment used
11 for providing education and care services;
12 (g) requirements and standards about the premises to be used to
13 provide an education and care service including siting,
14 design, layout, space, security and entitlement to occupy;
15 (h) requirements and standards for the staffing of education and
16 care services including the recruitment (and conduct of
17 criminal history or other security checks) and the
18 appointment of staff, performance improvement, professional
19 standards, professional development, numbers and
20 qualifications of educators (including minimum age and
21 requirements concerning groups of children of different ages
22 and composition) and staffing rosters and arrangements;
23 (i) requirements and standards about educators' relationships
24 with children, interactions and behaviour guidance and
25 inclusion policies and practice for education and care
26 services;
27 (j) requirements and standards for partnerships between
28 education and care services and the community in which they
29 are located and the families of children being educated and
30 cared for by education and care services, including
31 requirements for services to link to other support services for
32 children and families;
33 (k) requirements and standards as to the leadership and
34 management of education and care services including
35 governance and fitness and propriety of all staff members and
36 volunteers, management of grievances and complaints and
37 the provision of information to families;
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1 (l) the records, policies and procedures to be kept by approved
2 providers and family day care educators including enrolment
3 and attendance information;
4 (m) requirements and standards about first aid and management
5 of children's medical conditions including --
6 (i) the training of educators and staff members; and
7 (ii) plans, policies and procedures used to manage
8 medical conditions and first aid; and
9 (iii) the keeping and storage of first aid kits and
10 medications;
11 (n) information required to be submitted for applications made
12 under this Law;
13 (o) requirements and standards for the provision and display of
14 information by approved providers;
15 (p) the publication of information about enforcement actions
16 taken under this Law, including notice and review of
17 proposals to publish information;
18 (q) matters relating to the application of this Law to partnerships,
19 eligible associations or prescribed entities;
20 (r) requirements relating to the receipt and payment and
21 distribution of fees and monetary penalties payable under this
22 Law.
23 (4) The national regulations --
24 (a) may be of a general or limited application; and
25 (b) may differ according to differences in time, place (including
26 jurisdiction) or circumstances; and
27 (c) may differ according to the type or class of education and
28 care service and the ages of children being educated and
29 cared for by a service; and
30 (d) may exempt any education and care service or any type or
31 class of education and care service from complying with all
32 or any of the regulations; and
33 (e) may leave any matter or thing to be from time to time
34 determined, applied, dispensed with or regulated by a
35 Regulatory Authority; and
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1 (f) may apply, adopt or incorporate by reference any document
2 either --
3 (i) as in force at the date the national regulations come
4 into operation or at any date before then; or
5 (ii) wholly or in part or as amended by the national
6 regulations; and
7 (g) may impose penalties not exceeding $2000 for offences
8 against the national regulations.
9 Note: This section differs from section 301 of the national law as set out in
10 the Schedule to the Education and Care Services National Law
11 Act 2010 (Victoria).
12 302. Publication of national regulations
13 Note: Section 302 of the national law as set out in the Schedule to the
14 Education and Care Services National Law Act 2010 (Victoria) does
15 not apply as a law of WA.
16 303. Parliamentary scrutiny of national regulations
17 Note: Section 303 of the national law as set out in the Schedule to the
18 Education and Care Services National Law Act 2010 (Victoria) does
19 not apply as a law of WA.
20 304. Effect of disallowance of national regulation
21 Note: Section 304 of the national law as set out in the Schedule to the
22 Education and Care Services National Law Act 2010 (Victoria) does
23 not apply as a law of WA.
24 Part 15 -- Transitional provisions
25 Division 1 -- Introductory
26 305. Definitions
27 In this Part --
28 declared approved family day care service, in relation to a
29 participating jurisdiction, means an education and care service that is
30 declared by a law of that jurisdiction to be a declared approved family
31 day care service for the purposes of this Law;
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1 declared approved family day care venue, in relation to a
2 participating jurisdiction, means a place other than a residence that is
3 declared by a law of that jurisdiction to be a declared approved family
4 day care venue for the purposes of this Law;
5 declared approved provider, in relation to a participating jurisdiction,
6 means a person or a person in a class of persons declared by a law of
7 that jurisdiction to be a declared approved provider for the purposes
8 of this Law;
9 declared approved service, in relation to a participating jurisdiction,
10 means an education and care service that is declared by a law of that
11 jurisdiction to be a declared approved service for the purposes of this
12 Law;
13 declared certified supervisor, in relation to a participating
14 jurisdiction, means a person or a person in a class of persons declared
15 by a law of that jurisdiction to be a declared certified supervisor for
16 the purposes of this Law;
17 declared compliance notice, in relation to a participating jurisdiction,
18 means an order or notice under a former education and care services
19 law that is declared by a law of that jurisdiction to be a declared
20 compliance notice for the purposes of this Law;
21 declared enforceable undertaking, in relation to a participating
22 jurisdiction, means an undertaking entered into under a former
23 education and care services law that is declared by a law of that
24 jurisdiction to be a declared enforceable undertaking under this Law;
25 declared nominated supervisor, in relation to a participating
26 jurisdiction, means a person or a person in a class of persons declared
27 by a law of that jurisdiction to be a declared nominated supervisor for
28 the purposes of this Law;
29 declared out of scope service, in relation to a participating
30 jurisdiction, means an education and care service --
31 (a) for which a former approval was not required under a former
32 education and care services law; and
33 (b) that is declared by a law of that jurisdiction to be a declared
34 out of scope service for the purposes of this Law;
35 former approval, in relation to a participating jurisdiction, means an
36 approval, licence or other authorisation under a former education and
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1 care services law that is declared by a law of that jurisdiction to be a
2 former approval for the purposes of this Law;
3 scheme commencement day means the day on which Parts 2, 3 and 4
4 of this Law commence.
5 Division 2 -- Education and care services
6 306. Approved provider
7 (1) Any person who immediately before the scheme commencement day
8 was a declared approved provider is taken to be an approved provider
9 under this Law.
10 (2) Subsection (1) does not apply if the declared approved provider is a
11 prescribed ineligible person.
12 (3) Subsection (1) does not apply to a declared approved provider whose
13 former approval was suspended under the former education and care
14 services law immediately before the scheme commencement day
15 because the provider was not a fit and proper person (however
16 described) to operate the declared approved service.
17 (4) If a declared approved provider is a trust, the trustee or trustees of the
18 trust are taken to be an approved provider under this Law.
19 (5) The trust must, within 30 days after the scheme commencement day,
20 notify the Regulatory Authority of the identity of the trustees of the
21 trust.
22 (6) If a notice is not given under subsection (5) within the required
23 period, each trustee of the trust ceases to be an approved provider
24 under this Law at the end of that period.
25 (7) If a person is taken under this section to be an approved provider, the
26 person is taken to be the holder of a provider approval for the
27 purposes of this Law.
28 (8) If a person is taken under this section to hold a provider approval, any
29 conditions of the former approval relating to that person are taken to
30 be conditions of the provider approval unless they are inconsistent
31 with this Law.
32 (9) The Regulatory Authority must, on or before 30 June 2012, provide
33 each person who is taken under this section to be the holder of a
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1 provider approval with a copy of the provider approval setting out the
2 relevant matters in section 20.
3 307. Service approvals
4 (1) Any person who immediately before the scheme commencement day
5 held a former approval in respect of a declared approved service
6 (other than a declared approved family day care service) is taken to
7 hold a service approval in respect of that service under this Law.
8 (2) Any person who immediately before the scheme commencement day
9 held a former approval with respect to a declared approved family day
10 care service is taken to hold a service approval for that family day
11 care service under this Law.
12 (3) Subsections (1) and (2) do not apply if the person is a prescribed
13 ineligible person.
14 (4) If subsection (1) or (2) applies, the declared approved service is taken
15 from the scheme commencement day to be an approved education and
16 care service.
17 (5) This section does not apply to a former approval that was under
18 suspension under the former education and care services law
19 immediately before the scheme commencement day because the
20 person who held that approval was not a fit and proper person
21 (however described) to operate the declared approved service.
22 (6) If a former approval was under suspension under the former education
23 and care services law immediately before the scheme commencement
24 day for a reason other than the reason in subsection (5), the service
25 approval for the education and care service under this Law is taken to
26 be suspended under this Law for the period of the suspension.
27 (7) The Regulatory Authority must determine before the expiry of the
28 period of suspension referred to in subsection (6) (other than for a
29 voluntary suspension) whether --
30 (a) the suspension should be cancelled or a further period of
31 suspension should be imposed; or
32 (b) the service approval should be cancelled.
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1 (8) Any conditions imposed on the former approval under the former
2 education and care services law are taken to be conditions on the
3 service approval unless the conditions are inconsistent with this Law.
4 (9) The Regulatory Authority must, on or before 30 June 2012, provide
5 each person who is taken under this section to hold a former approval
6 in respect of a declared approved service with a copy of the service
7 approval for the service setting out the relevant matters in section 52.
8 308. Approved family day care venues
9 A declared approved family day care venue existing under a former
10 education and care services law immediately before the scheme
11 commencement day is taken on and after the scheme commencement
12 day to be an approved family day care venue under this Law.
13 309. Approval of declared out of scope services
14 A person who operated a declared out of scope service immediately
15 before the scheme commencement day is taken under this Law to hold
16 a provider approval and a service approval for the declared out of
17 scope service for the period from and including 1 January 2012 --
18 (a) to 30 June 2012, unless paragraph (b) applies; or
19 (b) if the person applies under this Law to the Regulatory
20 Authority for a provider approval and for a service approval
21 and the applications are received by the Regulatory Authority
22 on or before 30 June 2012, to the date on which those
23 applications are finally determined under this Law.
24 310. Application for service waiver or temporary waiver
25 (1) This section applies to an education and care service that was exempt
26 under a former education and care services law from a requirement of
27 that law.
28 (2) The education and care service is taken to comply with an equivalent
29 requirement under this Law for the period from and including
30 1 January 2012 --
31 (a) to 31 March 2012, unless paragraph (b) applies; or
32 (b) if the provider of the education and care service applies to the
33 Regulatory Authority under this Law for a temporary waiver
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1 or service waiver under this Law in respect of that
2 requirement and the application is received by the Regulatory
3 Authority on or before 31 March 2012, to the date on which
4 the application is finally determined under this Law.
5 311. Existing applicants
6 (1) This section applies if a person has made an application for a former
7 approval under a former education and care services law in respect of
8 an education and care service before the scheme commencement day.
9 (2) The applicant is taken to be an applicant for a provider approval and a
10 service approval under this Law.
11 (3) The Regulatory Authority may --
12 (a) ask the applicant for more information; and
13 (b) inspect --
14 (i) the premises of the service and the offices of the
15 applicant; and
16 (ii) any documents relating to the applicant; and
17 (c) exercise any power under section 14 or section 46 in relation
18 to the application.
19 (4) This section does not apply if the applicant is a prescribed ineligible
20 person.
21 312. Existing multiple approvals to merge
22 (1) If the holder of a former approval held more than one former approval
23 in respect of the same premises, the former approvals are taken to be
24 one service approval in respect of those premises for the purposes of
25 this Law.
26 (2) This section does not apply to a former approval for a family day care
27 service.
28 (3) This section does not apply to a former approval to which section 311
29 applies.
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1 313. Display of accreditation and rating
2 (1) This section applies to a declared approved service that is taken under
3 this Part to be an approved education and care service.
4 (2) The approved provider must display the provisional rating of that
5 approved education and care service in accordance with section 172
6 until a first rating assessment is completed and a rating level given to
7 the service after that assessment is published under Part 5.
8 (3) If the education and care service was accredited by the National Child
9 Care Accreditation Council before the scheme commencement day,
10 the approved provider of the education and care service must continue
11 to display that accreditation at the service together with the
12 provisional rating until a first rating assessment is completed and a
13 rating (other than a provisional rating) given to the service after that
14 assessment is published under Part 5.
15 314. Effect of non-compliance in 3 years before scheme
16 commencement day
17 (1) In determining whether to suspend or cancel under Part 2 a provider
18 approval referred to in section 306, the Regulatory Authority --
19 (a) may take into account any non-compliance by the approved
20 provider with a former education and care services law that
21 occurred in the period of 3 years immediately preceding the
22 scheme commencement day; but
23 (b) must not suspend or cancel the provider approval solely on
24 the basis of that non-compliance.
25 (2) In determining whether to suspend or cancel under Part 3 a service
26 approval referred to in section 307(1), the Regulatory Authority --
27 (a) may take into account any non-compliance by the approved
28 provider with a former education and care services law that
29 occurred in the period of 3 years immediately preceding the
30 scheme commencement day; but
31 (b) must not suspend or cancel the service approval solely on the
32 basis of that non-compliance.
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1 315. Certified supervisors
2 (1) A person who was a declared certified supervisor immediately before
3 the scheme commencement day is taken to be a certified supervisor
4 under this Law.
5 (2) The Regulatory Authority must, on or before 30 June 2012, provide
6 each person who is taken under this section to be a certified
7 supervisor with a copy of the supervisor certificate setting out the
8 relevant matters in section 116.
9 (3) Subsection (1) applies even if the declared certified supervisor was
10 suspended immediately before the scheme commencement day but the
11 person's supervisor certificate under this Law is taken to be
12 suspended for the remaining period that the person was suspended as
13 a declared certified supervisor.
14 316. Nominated supervisors
15 (1) A person who immediately before the scheme commencement day
16 was a declared nominated supervisor --
17 (a) for a declared approved service that is taken under
18 section 307 to be an approved education and care service; or
19 (b) for a declared out of scope service, the operator of which is
20 taken under section 309 to hold a service approval for the
21 service,
22 is taken to be the nominated supervisor for that approved education
23 and care service.
24 (2) Subsection (1) ceases to apply if --
25 (a) the approved provider does not confirm the nomination
26 within a time specified by the Regulatory Authority after
27 being requested in writing to do so by the Regulatory
28 Authority; or
29 (b) the person advises the Regulatory Authority in writing that
30 the person does not consent to being the nominated
31 supervisor of the education and care service.
32 Note: This section differs from section 316 of the national law as set out in
33 the Schedule to the Education and Care Services National Law
34 Act 2010 (Victoria).
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1 317. Notices and undertakings
2 (1) A declared compliance notice in force under a former education and
3 care services law immediately before the scheme commencement day
4 is taken on and after the scheme commencement day to be a
5 compliance notice under this Law.
6 (2) A declared enforceable undertaking in force under a former education
7 and care services law immediately before the scheme commencement
8 day is taken on and after the scheme commencement day to be an
9 enforceable undertaking under this Law.
10 318. Offences
11 The Regulatory Authority may bring or continue a prosecution for any
12 offence under a former education and care services law in relation to a
13 service that is taken to be an education and care service.
14 Division 3 -- National Authority
15 319. First meeting of National Authority
16 Despite section 239, the Ministerial Council is to convene the first
17 meeting of the Board of the National Authority.
18 320. First chief executive officer of National Authority
19 (1) Despite section 248, the first chief executive officer of the National
20 Authority is to be appointed by the Chairperson of the Ministerial
21 Council on the basis of a consensus recommendation of the
22 Ministerial Council.
23 (2) The appointment is to be on the remuneration and other terms and
24 conditions set out in the appointment.
25 (3) Any amount payable to the first chief executive officer under the
26 appointment is payable from the Authority Fund.
27 321. First annual report of National Authority
28 Despite section 279, the first annual report of the National
29 Authority --
30 (a) is to be made within 4 months after the end of the financial
31 year ending 30 June 2012; and
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1 (b) is to cover the period from the first meeting of the National
2 Authority until 30 June 2012.
3 Division 4 -- General
4 322. Information retention and sharing
5 (1) The Regulatory Authority must, in accordance with the national
6 regulations, keep all prescribed information held by the Regulatory
7 Authority (or any regulatory body under the former education and
8 care services law) in relation to --
9 (a) the licensing or approval of education and care services under
10 the former education and care services law; and
11 (b) the monitoring and enforcement of the former education and
12 care services law in relation to education and care services.
13 (2) Information referred to in subsection (1) may be --
14 (a) used for information purposes under this Law; and
15 (b) held by the Regulatory Authority in any form; and
16 (c) made available to the Regulatory Authorities of other
17 participating jurisdictions and the National Authority.
18 (3) A provider of an education and care service existing immediately
19 before the scheme commencement day must, in accordance with the
20 national regulations --
21 (a) continue to keep all documents required under the former
22 education and care services law to be kept in respect of the
23 service; and
24 (b) make those documents available to the Regulatory Authority
25 on request.
26 Penalty: $4 000, in the case of an individual.
27 $20 000, in any other case.
28 323. Approved learning framework
29 A declared approved learning framework is taken to be an approved
30 learning framework under this Law.
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1 324. Savings and transitional regulations
2 (1) The national regulations may contain provisions (savings and
3 transitional provisions) of a savings or transitional nature --
4 (a) consequential on the enactment of this Law in a participating
5 jurisdiction; or
6 (b) to otherwise allow or facilitate the change from the operation
7 of a former education and care services law of a participating
8 jurisdiction to the operation of this Law.
9 (2) Savings and transitional regulations may have retrospective operation
10 to a day not earlier than the day on which section 1 of this Law
11 commences.
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1 Schedule 1 -- Miscellaneous provision relating to interpretation
2 [s. 6]
3 Part 1 -- Preliminary
4 1. Displacement of Schedule by contrary intention
5 The application of this Schedule may be displaced, wholly or partly,
6 by a contrary intention appearing in this Law.
7 Part 2 -- General
8 2. Law to be construed not to exceed legislative power of Legislature
9 (1) This Law is to be construed as operating to the full extent of, but so as
10 not to exceed, the legislative power of the Legislature of this
11 jurisdiction.
12 (2) If a provision of this Law, or the application of a provision of this
13 Law to a person, subject matter or circumstance, would, but for this
14 clause, be construed as being in excess of the legislative power of the
15 Legislature of this jurisdiction --
16 (a) it is a valid provision to the extent to which it is not in excess
17 of the power; and
18 (b) the remainder of this Law, and the application of the
19 provision to other persons, subject matters or circumstances,
20 is not affected.
21 (3) This clause applies to this Law in addition to, and without limiting the
22 effect of, any provision of this Law.
23 3. Every section to be a substantive enactment
24 Every section of this Law has effect as a substantive enactment
25 without introductory words.
26 4. Material that is, and is not, part of this Law
27 (1) The heading to a Part, Division or Subdivision into which this Law is
28 divided is part of this Law.
29 (2) A Schedule to this Law is part of this Law.
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1 (3) Punctuation in this Law is part of this Law.
2 (4) A heading to a section or subsection of this Law does not form part of
3 this Law.
4 (5) Notes included in this Law (including footnotes and endnotes) do not
5 form part of this Law.
6 5. References to particular Acts and to enactments
7 In this Law --
8 (a) an Act of this jurisdiction may be cited --
9 (i) by its short title; or
10 (ii) by reference to the year in which it was passed and its
11 number; and
12 (b) a Commonwealth Act may be cited --
13 (i) by its short title; or
14 (ii) in another way sufficient in a Commonwealth Act for
15 the citation of such an Act;
16 together with a reference to the Commonwealth; and
17 (c) an Act of another jurisdiction may be cited --
18 (i) by its short title; or
19 (ii) in another way sufficient in an Act of the jurisdiction
20 for the citation of such an Act;
21 together with a reference to the jurisdiction.
22 6. References taken to be included in Act or Law citation etc
23 (1) A reference in this Law to an Act includes a reference to --
24 (a) the Act as originally enacted, and as amended from time to
25 time since its original enactment; and
26 (b) if the Act has been repealed and re-enacted (with or without
27 modification) since the enactment of the reference -- the Act
28 as re-enacted, and as amended from time to time since its re
29 enactment.
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1 (2) A reference in this Law to a provision of this Law or of an Act
2 includes a reference to --
3 (a) the provision as originally enacted, and as amended from
4 time to time since its original enactment; and
5 (b) if the provision has been omitted and re-enacted (with or
6 without modification) since the enactment of the reference --
7 the provision as re-enacted, and as amended from time to
8 time since its re-enactment.
9 (3) Subclauses (1) and (2) apply to a reference in this Law to a law of the
10 Commonwealth or another jurisdiction as they apply to a reference in
11 this Law to an Act and to a provision of an Act.
12 7. Interpretation best achieving Law's purpose
13 (1) In the interpretation of a provision of this Law, the interpretation that
14 will best achieve the purpose or object of this Law is to be preferred
15 to any other interpretation.
16 (2) Subclause (1) applies whether or not the purpose is expressly stated in
17 this Law.
18 8. Use of extrinsic material in interpretation
19 (1) In this clause --
20 extrinsic material means relevant material not forming part of this
21 Law, including, for example --
22 (a) material that is set out in the document containing the text of
23 this Law as printed by the Government Printer; and
24 (b) a relevant report of a Royal Commission, Law Reform
25 Commission, commission or committee of inquiry, or a
26 similar body, that was laid before the Parliament of this
27 jurisdiction before the provision concerned was enacted; and
28 (c) a relevant report of a committee of the Parliament of this
29 jurisdiction that was made to the Parliament before the
30 provision was enacted; and
31 (d) a treaty or other international agreement that is mentioned in
32 this Law; and
33 (e) an explanatory note or memorandum relating to the Bill that
34 contained the provision, or any relevant document, that was
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cl. 8
1 laid before, or given to the members of, the Parliament of this
2 jurisdiction by the member bringing in the Bill before the
3 provision was enacted; and
4 (f) the speech made to the Parliament of this jurisdiction by the
5 member in moving a motion that the Bill be read a second
6 time; and
7 (g) material in the Votes and Proceedings of the Parliament of
8 this jurisdiction or in any official record of debates in the
9 Parliament of this jurisdiction; and
10 (h) a document that is declared by this Law to be a relevant
11 document for the purposes of this clause;
12 ordinary meaning means the ordinary meaning conveyed by a
13 provision having regard to its context in this Law and to the purpose
14 of this Law.
15 (2) Subject to subclause (3), in the interpretation of a provision of this
16 Law, consideration may be given to extrinsic material capable of
17 assisting in the interpretation --
18 (a) if the provision is ambiguous or obscure -- to provide an
19 interpretation of it; or
20 (b) if the ordinary meaning of the provision leads to a result that
21 is manifestly absurd or is unreasonable -- to provide an
22 interpretation that avoids such a result; or
23 (c) in any other case -- to confirm the interpretation conveyed
24 by the ordinary meaning of the provision.
25 (3) In determining whether consideration should be given to extrinsic
26 material, and in determining the weight to be given to extrinsic
27 material, regard is to be had to --
28 (a) the desirability of a provision being interpreted as having its
29 ordinary meaning; and
30 (b) the undesirability of prolonging proceedings without
31 compensating advantage; and
32 (c) other relevant matters.
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1 9. Effect of change of drafting practice and use of examples
2 If --
3 (a) a provision of this Law expresses an idea in particular words;
4 and
5 (b) a provision enacted later appears to express the same idea in
6 different words for the purpose of implementing a different
7 legislative drafting practice, including, for example --
8 (i) the use of a clearer or simpler style; or
9 (ii) the use of gender-neutral language;
10 the ideas must not be taken to be different merely because different
11 words are used.
12 10. Use of examples
13 If this Law includes an example of the operation of a provision --
14 (a) the example is not exhaustive; and
15 (b) the example does not limit, but may extend, the meaning of
16 the provision; and
17 (c) the example and the provision are to be read in the context of
18 each other and the other provisions of this Law, but, if the
19 example and the provision so read are inconsistent, the
20 provision prevails.
21 11. Compliance with forms
22 (1) If a form is prescribed or approved by or for the purpose of this Law,
23 strict compliance with the form is not necessary and substantial
24 compliance is sufficient.
25 (2) If a form prescribed or approved by or for the purpose of this Law
26 requires --
27 (a) the form to be completed in a specified way; or
28 (b) specified information or documents to be included in,
29 attached to or given with the form; or
30 (c) the form, or information or documents included in, attached
31 to or given with the form, to be verified in a specified way,
32 the form is not properly completed unless the requirement is complied
33 with.
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1 11A. Penalty at end of provision
2 In this Law, a penalty specified at the end of a provision indicates that
3 a contravention of the provision is an offence the penalty on
4 conviction for which is the penalty specified.
5 Note: Clause 11A does not form part of the national law as set out in the
6 Schedule to the Education and Care Services National Law Act 2010
7 (Victoria).
8 Part 3 -- Terms and references
9 12. Definitions
10 (1) In this Law --
11 Act means an Act of the Legislature of this jurisdiction;
12 adult means an individual who is 18 or more;
13 affidavit, in relation to a person allowed by law to affirm, declare or
14 promise, includes affirmation, declaration and promise;
15 amend includes --
16 (a) omit or omit and substitute; or
17 (b) alter or vary; or
18 (c) amend by implication;
19 appoint includes reappoint;
20 Australia means the Commonwealth of Australia but, when used in a
21 geographical sense, does not include an external Territory;
22 business day means a day that is not --
23 (a) a Saturday or Sunday; or
24 (b) a public holiday, special holiday or bank holiday in the place
25 in which any relevant act is to be or may be done;
26 calendar month means a period starting at the beginning of any day
27 of one of the 12 named months and ending --
28 (a) immediately before the beginning of the corresponding day of
29 the next named month; or
30 (b) if there is no such corresponding day -- at the end of the next
31 named month;
32 calendar year means a period of 12 months beginning on 1 January;
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1 commencement, in relation to this Law or an Act or a provision of
2 this Law or an Act, means the time at which this Law, the Act or
3 provision comes into operation;
4 Commonwealth means the Commonwealth of Australia but, when
5 used in a geographical sense, does not include an external Territory;
6 confer, in relation to a function, includes impose;
7 contravene includes fail to comply with;
8 country includes --
9 (a) a federation; or
10 (b) a state, province or other part of a federation;
11 date of assent, in relation to an Act, means the day on which the Act
12 receives the Royal Assent;
13 definition means a provision of this Law (however expressed) that --
14 (a) gives a meaning to a word or expression; or
15 (b) limits or extends the meaning of a word or expression;
16 document includes --
17 (a) any paper or other material on which there is writing; or
18 (b) any paper or other material on which there are marks, figures,
19 symbols or perforations having a meaning for a person
20 qualified to interpret them; or
21 (c) any disc, tape or other article or any material from which
22 sounds, images, writings or messages are capable of being
23 reproduced (with or without the aid of another article or
24 device);
25 electronic communication means --
26 (a) a communication of information in the form of data, text or
27 images by means of guided or unguided electromagnetic
28 energy, or both; or
29 (b) a communication of information in the form of sound by
30 means of guided or unguided electromagnetic energy, or
31 both, where the sound is processed at its destination by an
32 automated voice recognition system;
33 estate includes easement, charge, right, title, claim, demand, lien or
34 encumbrance, whether at law or in equity;
35 expire includes lapse or otherwise cease to have effect;
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1 external Territory means a Territory, other than an internal Territory,
2 for the government of which as a Territory provision is made by a
3 Commonwealth Act;
4 fail includes refuse;
5 financial year means a period of 12 months beginning on 1 July;
6 foreign country means a country (whether or not an independent
7 sovereign State) outside Australia and the external Territories;
8 function includes a power, authority or duty;
9 Gazette means the Government Gazette of this jurisdiction;
10 gazetted means published in the Gazette;
11 Gazette notice means notice published in the Gazette;
12 Government Printer means the Government Printer of this
13 jurisdiction, and includes any other person authorised by the
14 Government of this jurisdiction to print an Act or instrument;
15 individual means a natural person;
16 information system means a system for generating, sending,
17 receiving, storing or otherwise processing electronic communications;
18 insert, in relation to a provision of this Law, includes substitute;
19 instrument includes a statutory instrument;
20 interest, in relation to land or other property, means --
21 (a) a legal or equitable estate in the land or other property; or
22 (b) a right, power or privilege over, or in relation to, the land or
23 other property;
24 internal Territory means the Australian Capital Territory, the Jervis
25 Bay Territory or the Northern Territory;
26 Jervis Bay Territory means the Territory mentioned in the Jervis Bay
27 Territory Acceptance Act 1915 (Cwlth);
28 make includes issue or grant;
29 minor means an individual who is under 18;
30 modification includes addition, omission or substitution;
31 month means a calendar month;
32 named month means 1 of the 12 months of the year;
33 Northern Territory means the Northern Territory of Australia;
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1 number means --
2 (a) a number expressed in figures or words; or
3 (b) a letter; or
4 (c) a combination of a number so expressed and a letter;
5 oath, in relation to a person allowed by law to affirm, declare or
6 promise, includes affirmation, declaration or promise;
7 office includes position;
8 omit, in relation to a provision of this Law or an Act, includes repeal;
9 party includes an individual or a body politic or corporate;
10 penalty includes forfeiture or punishment;
11 power includes authority;
12 prescribed means prescribed by, or by regulations made or in force
13 for the purposes of or under, this Law;
14 printed includes typewritten, lithographed or reproduced by any
15 mechanical means;
16 proceeding means a legal or other action or proceeding;
17 property means any legal or equitable estate or interest (whether
18 present or future, vested or contingent, or tangible or intangible) in
19 real or personal property of any description (including money), and
20 includes things in action;
21 provision, in relation to this Law or an Act, means words or other
22 matter that form or forms part of this Law or the Act, and includes --
23 (a) a Chapter, Part, Division, Subdivision, section, subsection,
24 paragraph, subparagraph, sub-subparagraph or Schedule of or
25 to this Law or the Act; or
26 (b) a section, clause, subclause, item, column, table or form of or
27 in a Schedule to this Law or the Act; or
28 (c) the long title and any preamble to the Act;
29 record includes information stored or recorded by means of a
30 computer;
31 repeal includes --
32 (a) revoke or rescind; or
33 (b) repeal by implication; or
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1 (c) abrogate or limit the effect of this Law or instrument
2 concerned; or
3 (d) exclude from, or include in, the application of this Law or
4 instrument concerned any person, subject matter or
5 circumstance;
6 sign includes the affixing of a seal or the making of a mark;
7 statutory declaration means a declaration made under an Act, or
8 under a Commonwealth Act or an Act of another jurisdiction, that
9 authorises a declaration to be made otherwise than in the course of a
10 judicial proceeding;
11 statutory instrument means an instrument (including a regulation)
12 made or in force under or for the purposes of this Law, and includes
13 an instrument made or in force under any such instrument;
14 swear, in relation to a person allowed by law to affirm, declare or
15 promise, includes affirm, declare or promise;
16 word includes any symbol, figure or drawing;
17 writing includes any mode of representing or reproducing words in a
18 visible form.
19 (2) In a statutory instrument --
20 the Law means this Law.
21 13. Provisions relating to defined terms and gender and number
22 (1) If this Law defines a word or expression, other parts of speech and
23 grammatical forms of the word or expression have corresponding
24 meanings.
25 (2) Definitions in or applicable to this Law apply except so far as the
26 context or subject matter otherwise indicates or requires.
27 (3) In this Law, words indicating a gender include each other gender.
28 (4) In this Law --
29 (a) words in the singular include the plural; and
30 (b) words in the plural include the singular.
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1 14. Meaning of "may" and "must" etc.
2 (1) In this Law, the word may, or a similar word or expression, used in
3 relation to a power indicates that the power may be exercised or not
4 exercised, at discretion.
5 (2) In this Law, the word must, or a similar word or expression, used in
6 relation to a power indicates that the power is required to be
7 exercised.
8 (3) This clause has effect despite any rule of construction to the contrary.
9 15. Words and expressions used in statutory instruments
10 (1) Words and expressions used in a statutory instrument have the same
11 meanings as they have, from time to time, in this Law, or relevant
12 provisions of this Law, under or for the purposes of which the
13 instrument is made or in force.
14 (2) This clause has effect in relation to an instrument except so far as the
15 contrary intention appears in the instrument.
16 16. Effect of express references to bodies corporate and individuals
17 In this Law, a reference to a person generally (whether the expression
18 "person", "party", "someone", "anyone", "no-one", "one", "another"
19 or "whoever" or another expression is used) --
20 (a) does not exclude a reference to a body corporate or an
21 individual merely because elsewhere in this Law there is
22 particular reference to a body corporate (however expressed);
23 and
24 (b) does not exclude a reference to a body corporate or an
25 individual merely because elsewhere in this Law there is
26 particular reference to an individual (however expressed).
27 17. Production of records kept in computers etc.
28 If a person who keeps a record of information by means of a
29 mechanical, electronic or other device is required by or under this
30 Law --
31 (a) to produce the information or a document containing the
32 information to a court, tribunal or person; or
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1 (b) to make a document containing the information available for
2 inspection by a court, tribunal or person;
3 then, unless the court, tribunal or person otherwise directs --
4 (c) the requirement obliges the person to produce or make
5 available for inspection, as the case may be, a document that
6 reproduces the information in a form capable of being
7 understood by the court, tribunal or person; and
8 (d) the production to the court, tribunal or person of the
9 document in that form complies with the requirement.
10 18. References to this jurisdiction to be implied
11 In this Law --
12 (a) a reference to an officer, office or statutory body is a
13 reference to such an officer, office or statutory body in and
14 for this jurisdiction; and
15 (b) a reference to a locality or other matter or thing is a reference
16 to such a locality or other matter or thing in and of this
17 jurisdiction.
18 19. References to officers and holders of offices
19 In this Law, a reference to a particular officer, or to the holder of a
20 particular office, includes a reference to the person for the time being
21 occupying or acting in the office concerned.
22 20. Reference to certain provisions of Law
23 If a provision of this Law refers --
24 (a) to a Part, section or Schedule by a number and without
25 reference to this Law -- the reference is a reference to the
26 Part, section or Schedule, designated by the number, of or to
27 this Law; or
28 (b) to a Schedule without reference to it by a number and without
29 reference to this Law -- the reference, if there is only one
30 Schedule to this Law, is a reference to the Schedule; or
31 (c) to a Division, Subdivision, subsection, paragraph,
32 subparagraph, sub-subparagraph, clause, subclause, item,
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1 column, table or form by a number and without reference to
2 this Law -- the reference is a reference to --
3 (i) the Division, designated by the number, of the Part in
4 which the reference occurs; and
5 (ii) the Subdivision, designated by the number, of the
6 Division in which the reference occurs; and
7 (iii) the subsection, designated by the number, of the
8 section in which the reference occurs; and
9 (iv) the paragraph, designated by the number, of the
10 section, subsection, Schedule or other provision in
11 which the reference occurs; and
12 (v) the paragraph, designated by the number, of the
13 clause, subclause, item, column, table or form of or in
14 the Schedule in which the reference occurs; and
15 (vi) the subparagraph, designated by the number, of the
16 paragraph in which the reference occurs; and
17 (vii) the sub-subparagraph, designated by the number, of
18 the subparagraph in which the reference occurs; and
19 (viii) the section, clause, subclause, item, column, table or
20 form, designated by the number, of or in the Schedule
21 in which the reference occurs;
22 as the case requires.
23 21. Reference to provisions of this Law or an Act is inclusive
24 In this Law, a reference to a portion of this Law or an Act includes --
25 (a) a reference to the Chapter, Part, Division, Subdivision,
26 section, subsection or other provision of this Law or the Act
27 referred to that forms the beginning of the portion; and
28 (b) a reference to the Chapter, Part, Division, Subdivision,
29 section, subsection or other provision of this Law or the Act
30 referred to that forms the end of the portion.
31 Example: A reference to "sections 5 to 9" includes both section 5 and section 9.
32 It is not necessary to refer to "sections 5 to 9 (both inclusive)" to ensure
33 that the reference is given an inclusive interpretation.
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1 Part 4 -- Functions and powers
2 22. Performance of statutory functions
3 (1) If this Law confers a function or power on a person or body, the
4 function may be performed, or the power may be exercised, from time
5 to time as occasion requires.
6 (2) If this Law confers a function or power on a particular officer or the
7 holder of a particular office, the function may be performed, or the
8 power may be exercised, by the person for the time being occupying
9 or acting in the office concerned.
10 (3) If this Law confers a function or power on a body (whether or not
11 incorporated), the performance of the function, or the exercise of the
12 power, is not affected merely because of vacancies in the membership
13 of the body.
14 23. Power to make instrument or decision includes power to amend
15 or repeal
16 If this Law authorises or requires the making of an instrument or
17 decision --
18 (a) the power includes power to amend or repeal the instrument
19 or decision; and
20 (b) the power to amend or repeal the instrument or decision is
21 exercisable in the same way, and subject to the same
22 conditions, as the power to make the instrument or decision.
23 24. Matters for which statutory instruments may make provision
24 (1) If this Law authorises or requires the making of a statutory instrument
25 in relation to a matter, a statutory instrument made under this Law
26 may make provision for the matter by applying, adopting or
27 incorporating (with or without modification) the provisions of --
28 (a) an Act or statutory instrument; or
29 (b) another document (whether of the same or a different kind);
30 as in force at a particular time or as in force from time to time.
31 (2) If a statutory instrument applies, adopts or incorporates the provisions
32 of a document, the statutory instrument applies, adopts or incorporates
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1 the provisions as in force from time to time, unless the statutory
2 instrument otherwise expressly provides.
3 (3) A statutory instrument may --
4 (a) apply generally throughout this jurisdiction or be limited in
5 its application to a particular part of this jurisdiction; or
6 (b) apply generally to all persons, matters or things or be limited
7 in its application to --
8 (i) particular persons, matters or things; or
9 (ii) particular classes of persons, matters or things; or
10 (c) otherwise apply generally or be limited in its application by
11 reference to specified exceptions or factors.
12 (4) A statutory instrument may --
13 (a) apply differently according to different specified factors; or
14 (b) otherwise make different provision in relation to --
15 (i) different persons, matters or things; or
16 (ii) different classes of persons, matters or things.
17 (5) A statutory instrument may authorise a matter or thing to be from time
18 to time determined, applied or regulated by a specified person or
19 body.
20 (6) If this Law authorises or requires a matter to be regulated by statutory
21 instrument, the power may be exercised by prohibiting by statutory
22 instrument the matter or any aspect of the matter.
23 (7) If this Law authorises or requires provision to be made with respect to
24 a matter by statutory instrument, a statutory instrument made under
25 this Law may make provision with respect to a particular aspect of the
26 matter despite the fact that provision is made by this Law in relation
27 to another aspect of the matter or in relation to another matter.
28 (8) A statutory instrument may provide for the review of, or a right of
29 appeal against, a decision made under the statutory instrument, or this
30 Law, and may, for that purpose, confer jurisdiction on any court,
31 tribunal, person or body.
32 (9) A statutory instrument may require a form prescribed by or under the
33 statutory instrument, or information or documents included in,
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1 attached to or given with the form, to be verified by statutory
2 declaration.
3 25. Presumption of validity and power to make
4 (1) All conditions and preliminary steps required for the making of a
5 statutory instrument are presumed to have been satisfied and
6 performed in the absence of evidence to the contrary.
7 (2) A statutory instrument is taken to be made under all powers under
8 which it may be made, even though it purports to be made under this
9 Law or a particular provision of this Law.
10 26. Appointments may be made by name or office
11 (1) If this Law authorises or requires a person or body --
12 (a) to appoint a person to an office; or
13 (b) to appoint a person or body to exercise a power; or
14 (c) to appoint a person or body to do another thing;
15 the person or body may make the appointment by --
16 (d) appointing a person or body by name; or
17 (e) appointing a particular officer, or the holder of a particular
18 office, by reference to the title of the office concerned.
19 (2) An appointment of a particular officer, or the holder of a particular
20 office, is taken to be the appointment of the person for the time being
21 occupying or acting in the office concerned.
22 27. Acting appointments
23 (1) If this Law authorises a person or body to appoint a person to act in an
24 office, the person or body may, in accordance with this Law,
25 appoint --
26 (a) a person by name; or
27 (b) a particular officer, or the holder of a particular office, by
28 reference to the title of the office concerned;
29 to act in the office.
30 (2) The appointment may be expressed to have effect only in the
31 circumstances specified in the instrument of appointment.
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1 (3) The appointer may --
2 (a) determine the terms and conditions of the appointment,
3 including remuneration and allowances; and
4 (b) terminate the appointment at any time.
5 (4) The appointment, or the termination of the appointment, must be in,
6 or evidenced by, writing signed by the appointer.
7 (5) The appointee must not act for more than 1 year during a vacancy in
8 the office.
9 (6) If the appointee is acting in the office otherwise than because of a
10 vacancy in the office and the office becomes vacant, then, subject to
11 subclause (2), the appointee may continue to act until --
12 (a) the appointer otherwise directs; or
13 (b) the vacancy is filled; or
14 (c) the end of a year from the day of the vacancy;
15 whichever happens first.
16 (7) The appointment ceases to have effect if the appointee resigns by
17 writing signed and delivered to the appointer.
18 (8) While the appointee is acting in the office --
19 (a) the appointee has all the powers and functions of the holder
20 of the office; and
21 (b) this Law and other laws apply to the appointee as if the
22 appointee were the holder of the office.
23 (9) Anything done by or in relation to a person purporting to act in the
24 office is not invalid merely because --
25 (a) the occasion for the appointment had not arisen; or
26 (b) the appointment had ceased to have effect; or
27 (c) the occasion for the person to act had not arisen or had
28 ceased.
29 (10) If this Law authorises the appointer to appoint a person to act during a
30 vacancy in the office, an appointment to act in the office may be made
31 by the appointer whether or not an appointment has previously been
32 made to the office.
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1 28. Powers of appointment imply certain incidental powers
2 (1) If this Law authorises or requires a person or body to appoint a person
3 to an office --
4 (a) the power may be exercised from time to time as occasion
5 requires; and
6 (b) the power includes --
7 (i) power to remove or suspend, at any time, a person
8 appointed to the office; and
9 (ii) power to appoint another person to act in the office if
10 a person appointed to the office is removed or
11 suspended; and
12 (iii) power to reinstate or reappoint a person removed or
13 suspended; and
14 (iv) power to appoint a person to act in the office if it is
15 vacant (whether or not the office has ever been
16 filled); and
17 (v) power to appoint a person to act in the office if the
18 person appointed to the office is absent or is unable to
19 discharge the functions of the office (whether because
20 of illness or otherwise).
21 (2) The power to remove or suspend a person under subclause (1)(b) may
22 be exercised even if this Law provides that the holder of the office to
23 which the person was appointed is to hold office for a specified
24 period.
25 (3) The power to make an appointment under subclause (1)(b) may be
26 exercised from time to time as occasion requires.
27 (4) An appointment under subclause (1)(b) may be expressed to have
28 effect only in the circumstances specified in the instrument of
29 appointment.
30 29. Delegation of functions
31 (1) If this Law authorises a person or body to delegate a function, the
32 person or body may, in accordance with this Law and any other
33 applicable law, delegate the function to --
34 (a) a person or body by name; or
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1 (b) a specified officer, or the holder of a specified office, by
2 reference to the title of the office concerned.
3 (2) The delegation may be --
4 (a) general or limited; and
5 (b) made from time to time; and
6 (c) revoked, wholly or partly, by the delegator.
7 (3) The delegation, or a revocation of the delegation, must be in, or
8 evidenced by, writing signed by the delegator or, if the delegator is a
9 body, by a person authorised by the body for the purpose.
10 (4) A delegated function may be exercised only in accordance with any
11 conditions to which the delegation is subject.
12 (5) The delegate may, in the performance of a delegated function, do
13 anything that is incidental to the delegated function.
14 (6) A delegated function that purports to have been exercised by the
15 delegate is taken to have been properly exercised by the delegate
16 unless the contrary is proved.
17 (7) A delegated function that is properly exercised by the delegate is
18 taken to have been exercised by the delegator.
19 (8) If, when exercised by the delegator, a function is dependent on the
20 delegator's opinion, belief or state of mind, then, when exercised by
21 the delegate, the function is dependent on the delegate's opinion,
22 belief or state of mind.
23 (9) If --
24 (a) the delegator is a specified officer or the holder of a specified
25 office; and
26 (b) the person who was the specified officer or holder of the
27 specified office when the delegation was made ceases to be
28 the holder of the office;
29 then --
30 (c) the delegation continues in force; and
31 (d) the person for the time being occupying or acting in the office
32 concerned is taken to be the delegator for the purposes of this
33 clause.
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1 (10) If --
2 (a) the delegator is a body; and
3 (b) there is a change in the membership of the body;
4 then --
5 (c) the delegation continues in force; and
6 (d) the body as constituted for the time being is taken to be the
7 delegator for the purposes of this clause.
8 (11) If a function is delegated to a specified officer or the holder of a
9 specified office --
10 (a) the delegation does not cease to have effect merely because
11 the person who was the specified officer or the holder of the
12 specified office when the function was delegated ceases to be
13 the officer or the holder of the office; and
14 (b) the function may be exercised by the person for the time
15 being occupying or acting in the office concerned.
16 (12) A function that has been delegated may, despite the delegation, be
17 exercised by the delegator.
18 (13) The delegation of a function does not relieve the delegator of the
19 delegator's obligation to ensure that the function is properly
20 exercised.
21 (14) Subject to subclause (15), this clause applies to a subdelegation of a
22 function in the same way as it applies to a delegation of a function.
23 (15) If this Law authorises the delegation of a function, the function may
24 be subdelegated only if the Law expressly authorises the function to
25 be subdelegated.
26 30. Exercise of powers between enactment and commencement
27 (1) If a provision of this Law (the empowering provision) that does not
28 commence on its enactment would, had it commenced, confer a
29 power --
30 (a) to make an appointment; or
31 (b) to make a statutory instrument of a legislative or
32 administrative character; or
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1 (c) to do another thing;
2 then --
3 (d) the power may be exercised; and
4 (e) anything may be done for the purpose of enabling the
5 exercise of the power or of bringing the appointment,
6 instrument or other thing into effect;
7 before the empowering provision commences.
8 (2) If a provision of a Western Australian Act (the empowering
9 provision) that does not commence on its enactment would, had it
10 commenced, amend a provision of this Law so that it would confer a
11 power --
12 (a) to make an appointment; or
13 (b) to make a statutory instrument of a legislative or
14 administrative character; or
15 (c) to do another thing;
16 then --
17 (d) the power may be exercised; and
18 (e) anything may be done for the purpose of enabling the
19 exercise of the power or of bringing the appointment,
20 instrument or other thing into effect;
21 before the empowering provision commences.
22 (3) If --
23 (a) this Law has commenced and confers a power to make a
24 statutory instrument (the basic instrument-making power);
25 and
26 (b) a provision of a Western Australian Act that does not
27 commence on its enactment would, had it commenced,
28 amend this Law so as to confer additional power to make a
29 statutory instrument (the additional instrument-making
30 power);
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cl. 30
1 then --
2 (c) the basic instrument-making power and the additional
3 instrument-making power may be exercised by making a
4 single instrument; and
5 (d) any provision of the instrument that required an exercise of
6 the additional instrument-making power is to be treated as
7 made under subclause (2).
8 (4) If an instrument, or a provision of an instrument, is made under
9 subclause (1) or (2) that is necessary for the purpose of --
10 (a) enabling the exercise of a power mentioned in the subclause;
11 or
12 (b) bringing an appointment, instrument or other thing made or
13 done under such a power into effect;
14 the instrument or provision takes effect --
15 (c) on the making of the instrument; or
16 (d) on such later day (if any) on which, or at such later time (if
17 any) at which, the instrument or provision is expressed to take
18 effect.
19 (5) If --
20 (a) an appointment is made under subclause (1) or (2); or
21 (b) an instrument, or a provision of an instrument, made under
22 subclause (1) or (2) is not necessary for a purpose mentioned
23 in subclause (4);
24 the appointment, instrument or provision takes effect --
25 (c) on the commencement of the relevant empowering provision;
26 or
27 (d) on such later day (if any) on which, or at such later time (if
28 any) at which, the appointment, instrument or provision is
29 expressed to take effect.
30 (6) Anything done under subclause (1) or (2) does not confer a right, or
31 impose a liability, on a person before the relevant empowering
32 provision commences.
33 (7) After the enactment of a provision mentioned in subclause (2) but
34 before the provision's commencement, this clause applies as if the
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1 references in subclauses (2) and (5) to the commencement of the
2 empowering provision were references to the commencement of the
3 provision mentioned in subclause (2) as amended by the empowering
4 provision.
5 (8) In the application of this clause to a statutory instrument, a reference
6 to the enactment of the instrument is a reference to the making of the
7 instrument.
8 Note: This clause differs from clause 30 to Schedule 1 of the national law as
9 set out in the Schedule to the Education and Care Services National
10 Law Act 2010 (Victoria).
11 Part 5 -- Distance, time and age
12 31. Matters relating to distance, time and age
13 (1) In the measurement of distance for the purposes of this Law, the
14 distance is to be measured along the shortest road ordinarily used for
15 travelling.
16 (2) If a period beginning on a given day, act or event is provided or
17 allowed for a purpose by this Law, the period is to be calculated by
18 excluding the day, or the day of the act or event, and --
19 (a) if the period is expressed to be a specified number of clear
20 days or at least a specified number of days -- by excluding
21 the day on which the purpose is to be fulfilled; and
22 (b) in any other case -- by including the day on which the
23 purpose is to be fulfilled.
24 (3) If the last day of a period provided or allowed by this Law for doing
25 anything is not a business day in the place in which the thing is to be
26 or may be done, the thing may be done on the next business day in the
27 place.
28 (4) If the last day of a period provided or allowed by this Law for the
29 filing or registration of a document is a day on which the office is
30 closed where the filing or registration is to be or may be done, the
31 document may be filed or registered at the office on the next day that
32 the office is open.
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1 (5) If no time is provided or allowed for doing anything, the thing is to be
2 done as soon as possible, and as often as the prescribed occasion
3 happens.
4 (6) If, in this Law, there is a reference to time, the reference is, in relation
5 to the doing of anything in a jurisdiction, a reference to the legal time
6 in the jurisdiction.
7 (7) For the purposes of this Law, a person attains an age in years at the
8 beginning of the person's birthday for the age.
9 Part 6 -- Effect of repeal, amendment or expiration
10 32. Time of Law ceasing to have effect
11 If a provision of this Law is expressed --
12 (a) to expire on a specified day; or
13 (b) to remain or continue in force, or otherwise have effect, until
14 a specified day;
15 this provision has effect until the last moment of the specified day.
16 33. Repealed Law provisions not revived
17 If a provision of this Law is repealed or amended by a Western
18 Australian Act, or a provision of a Western Australian Act, the
19 provision is not revived merely because the Western Australian Act or
20 the provision of the Western Australian Act --
21 (a) is later repealed or amended; or
22 (b) later expires.
23 Note: This clause differs from clause 33 to Schedule 1 of the national law as
24 set out in the Schedule to the Education and Care Services National
25 Law Act 2010 (Victoria).
26 34. Saving of operation of repealed Law provisions
27 (1) The repeal, amendment or expiry of a provision of this Law does
28 not --
29 (a) revive anything not in force or existing at the time the repeal,
30 amendment or expiry takes effect; or
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cl. 35
1 (b) affect the previous operation of the provision or anything
2 suffered, done or begun under the provision; or
3 (c) affect a right, privilege or liability acquired, accrued or
4 incurred under the provision; or
5 (d) affect a penalty incurred in relation to an offence arising
6 under the provision; or
7 (e) affect an investigation, proceeding or remedy in relation to
8 such a right, privilege, liability or penalty.
9 (2) Any such penalty may be imposed and enforced, and any such
10 investigation, proceeding or remedy may be begun, continued or
11 enforced, as if the provision had not been repealed or amended or had
12 not expired.
13 35. Continuance of repealed provisions
14 If a Western Australian Act repeals some provisions of this Law and
15 enacts new provisions in substitution for the repealed provisions, the
16 repealed provisions continue in force until the new provisions
17 commence.
18 Note: This clause differs from clause 35 to Schedule 1 of the national law as
19 set out in the Schedule to the Education and Care Services National
20 Law Act 2010 (Victoria).
21 36. Law and amending Acts to be read as one
22 This Law and all Western Australian Acts amending this Law are to
23 be read as one.
24 Note: This clause differs from clause 36 to Schedule 1 of the national law as
25 set out in the Schedule to the Education and Care Services National
26 Law Act 2010 (Victoria).
27 Part 7 -- Instruments under Law
28 37. Schedule applies to statutory instruments
29 (1) This Schedule applies to a statutory instrument, and to things that may
30 be done or are required to be done under a statutory instrument, in the
31 same way as it applies to this Law, and things that may be done or are
32 required to be done under this Law, except so far as the context or
33 subject matter otherwise indicates or requires.
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Education and Care Services National Law Schedule
Powers of entry by search warrant Schedule 2
cl. 38
1 (2) The fact that a provision of this Schedule refers to this Law and not
2 also to a statutory instrument does not, by itself, indicate that the
3 provision is intended to apply only to this Law.
4 Part 8 -- Application to coastal sea
5 38. Application
6 This Law has effect in and relation to the coastal sea of this
7 jurisdiction as if that coastal sea were part of this jurisdiction.
8 Schedule 2 -- Powers of entry by search warrant
9 1. Application for warrant
10 (1) An authorised officer may apply to a magistrate of a participating
11 jurisdiction for a search warrant in relation to premises if the officer
12 believes on reasonable grounds that --
13 (a) a person is or has been operating an education and care
14 service at the premises in contravention of this Law; or
15 (b) documents or other evidence relevant to the possible
16 commission of an offence against this Law are present at the
17 premises.
18 (2) The authorised officer must prepare a written application that states
19 the grounds on which the warrant is sought.
20 (3) The written application must be sworn.
21 (4) The magistrate may refuse to consider the application until the
22 authorised officer gives the magistrate all the information the
23 magistrate requires about the application in the way the magistrate
24 requires.
25 2. Issue of warrant
26 (1) The magistrate may issue the warrant in respect of premises only if
27 the magistrate is satisfied there are reasonable grounds to believe
28 that --
29 (a) a person is operating an education and care service at the
30 premises in contravention of this Law; or
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cl. 3
1 (b) documents or other evidence relevant to the possible
2 commission of an offence against this Law are present at the
3 premises.
4 (2) The warrant must state --
5 (a) that a stated authorised officer may, with necessary and
6 reasonable help and force --
7 (i) enter the premises and any other premises necessary
8 for entry; and
9 (ii) exercise the authorised officer's powers under this
10 Schedule; and
11 (b) the matter for which the warrant is sought; and
12 (c) the evidence that may be seized under the warrant; and
13 (d) the hours of the day or night when the premises may be
14 entered; and
15 (e) the date, within 14 days after the warrant's issue, the warrant
16 ends.
17 3. Application by electronic communication
18 (1) An authorised officer may apply for a warrant by phone, facsimile,
19 email, radio, video conferencing or another form of communication if
20 the authorised officer considers it necessary because of --
21 (a) urgent circumstances; or
22 (b) other special circumstances, including the authorised officer's
23 remote location.
24 (2) The application --
25 (a) may not be made before the authorised officer prepares the
26 written application under clause 1(2); but
27 (b) may be made before the written application is sworn.
28 (3) The magistrate may issue the warrant (the original warrant) only if the
29 magistrate is satisfied --
30 (a) it was necessary to make the application under subclause (1);
31 and
32 (b) the way the application was made under subclause (1) was
33 appropriate.
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cl. 3
1 (4) After the magistrate issues the original warrant --
2 (a) if there is a reasonably practicable way of immediately giving
3 a copy of the warrant to the authorised officer, for example,
4 by sending a copy by fax or email, the magistrate must
5 immediately give a copy of the warrant to the authorised
6 officer; or
7 (b) otherwise --
8 (i) the magistrate must tell the authorised officer the date
9 and time the warrant is issued and the other terms of
10 the warrant; and
11 (ii) the authorised officer must complete a form of
12 warrant including by writing on it --
13 (A) the magistrate's name; and
14 (B) the date and time the magistrate issued the
15 warrant; and
16 (C) the other terms of the warrant.
17 (5) The copy of the warrant referred to in subclause (4)(a), or the form of
18 warrant completed under subclause (4)(b) (in either case the duplicate
19 warrant), is a duplicate of, and as effectual as, the original warrant.
20 (6) The authorised officer must, at the first reasonable opportunity, send
21 to the magistrate --
22 (a) the written application complying with clause 1(2) and (3);
23 and
24 (b) if the authorised officer completed a form of warrant under
25 subclause (4)(b), the completed form of warrant.
26 (7) The magistrate must keep the original warrant and, on receiving the
27 documents under subclause (6), file the original warrant and
28 documents in the court.
29 (8) Despite subclause (5), if --
30 (a) an issue arises in a proceeding about whether an exercise of a
31 power was authorised by a warrant issued under this clause;
32 and
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cl. 4
1 (b) the original warrant is not produced in evidence --
2 the onus of proof is on the person relying on the lawfulness of the
3 exercise of the power to prove a warrant authorised the exercise of the
4 power.
5 (9) This clause does not limit clause 1.
6 4. Procedure before entry under warrant
7 (1) Before entering premises under a warrant, an authorised officer must
8 do or make a reasonable attempt to do the following --
9 (a) identify himself or herself to a person present at the premises
10 who is an occupier of the premises by producing the
11 authorised officer's identity card;
12 (b) give the person a copy of the warrant;
13 (c) tell the person the authorised officer is permitted by the
14 warrant to enter the premises;
15 (d) give the person an opportunity to allow the authorised officer
16 immediate entry to the premises without using force.
17 (2) However, the authorised officer need not comply with subclause (1) if
18 the authorised officer reasonably believes that immediate entry to the
19 premises is required to ensure the effective execution of the warrant is
20 not frustrated.
21 5. Powers after entering premises
22 (1) This clause applies if an authorised officer enters premises under
23 clause 4.
24 (2) The authorised officer may for the purposes of the investigation do
25 the following --
26 (a) search any part of the premises;
27 (b) inspect, measure, test, photograph or film, or make audio
28 recordings of, any part of the premises or anything at the
29 premises;
30 (c) take a thing, or a sample of or from a thing, at the premises
31 for analysis, measurement or testing;
32 (d) copy, or take an extract from, a document, at the premises;
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cl. 5
1 (e) take into or onto the premises any person, equipment and
2 materials the authorised officer reasonably requires for
3 exercising a power under this Schedule;
4 (f) require the occupier of the premises, or a person at the
5 premises, to give the authorised officer reasonable help to
6 exercise the authorised officer's powers under paragraphs (a)
7 to (e);
8 (g) require the occupier of the premises, or a person at the
9 premises, to give the authorised officer information to help
10 the authorised officer in conducting the investigation.
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Education and Care Services National Law (WA) Bill 2011
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
Unless otherwise indicated references are to provisions in the National Law set out in the
Schedule to this Act.
The list is not part of the law.]
Defined Term Provision(s)
Act ................................................................................................ Sch. 1, cl. 12(1)
adult .............................................................................................. Sch. 1, cl. 12(1)
affidavit......................................................................................... Sch. 1, cl. 12(1)
amend ........................................................................................... Sch. 1, cl. 12(1)
appoint .......................................................................................... Sch. 1, cl. 12(1)
approved education and care service ............................................................... 5(1)
approved family day care service .................................................................... 5(1)
approved family day care venue ...................................................................... 5(1)
approved learning framework.......................................................................... 5(1)
approved provider............................................................................................ 5(1)
assent day....................................................................................................Act s. 2
associated children's service............................................................................ 5(1)
Australia ....................................................................................... Sch. 1, cl. 12(1)
Australian Accounting Standards .................................................................... 5(1)
authorised nominee.......................................................................165A(5), 170(5)
authorised officer ............................................................................................. 5(1)
Authority Fund ................................................................................................ 5(1)
Board ............................................................................................................... 5(1)
business day.................................................................................. Sch. 1, cl. 12(1)
calendar month ............................................................................. Sch. 1, cl. 12(1)
calendar year................................................................................. Sch. 1, cl. 12(1)
certified supervisor .......................................................................................... 5(1)
chief executive officer ..................................................................................... 5(1)
child protection law ....................................................................................Act s. 6
children's service ............................................................................................. 5(1)
children's services law..................................................................................... 5(1)
children's services regulator ............................................................................ 5(1)
commencement............................................................................. Sch. 1, cl. 12(1)
Commonwealth............................................................................. Sch. 1, cl. 12(1)
Commonwealth Minister ................................................................................. 5(1)
community kindergarten ................................................................................. 5(1)
compliance direction........................................................................................ 5(1)
compliance notice ............................................................................................ 5(1)
confer ............................................................................................ Sch. 1, cl. 12(1)
contravene..................................................................................... Sch. 1, cl. 12(1)
country.......................................................................................... Sch. 1, cl. 12(1)
court............................................................................................................Act s. 6
date of assent ................................................................................ Sch. 1, cl. 12(1)
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Defined Terms
de facto relationship....................................................................................Act s. 6
declared approved family day care service.......................................................305
declared approved family day care venue.........................................................305
declared approved provider ..............................................................................305
declared approved service.................................................................................305
declared certified supervisor.............................................................................305
declared compliance notice...............................................................................305
declared enforceable undertaking .....................................................................305
declared nominated supervisor .........................................................................305
declared out of scope service ............................................................................305
definition....................................................................................... Sch. 1, cl. 12(1)
disciplinary action............................................................................................ 5(1)
disclosed information................................................................................... 219(4)
document ...................................................................................... Sch. 1, cl. 12(1)
education and care service ............................................................................... 5(1)
education and care service premises ................................................................ 5(1)
Education and Care Services National Law (Western Australia) .......... Act s. 3(2)
education law................................................................................................... 5(1)
educational program ........................................................................................ 5(1)
educator ........................................................................................................... 5(1)
electronic communication............................................................. Sch. 1, cl. 12(1)
eligible association .......................................................................................... 5(1)
estate ............................................................................................. Sch. 1, cl. 12(1)
expire ............................................................................................ Sch. 1, cl. 12(1)
external Territory.......................................................................... Sch. 1, cl. 12(1)
extrinsic material ............................................................................ Sch. 1, cl. 8(1)
fail................................................................................................. Sch. 1, cl. 12(1)
family day care co-ordinator............................................................................ 5(1)
family day care educator.................................................................................. 5(1)
family day care residence ................................................................................ 5(1)
family day care service .................................................................................... 5(1)
family member................................................................................................. 5(1)
financial year ................................................................................ Sch. 1, cl. 12(1)
FOI Act ........................................................................................................ 264(4)
foreign country ............................................................................. Sch. 1, cl. 12(1)
former approval ................................................................................................305
former education and care services law ........................................................... 5(1)
function......................................................................................... Sch. 1, cl. 12(1)
Gazette.......................................................................................... Sch. 1, cl. 12(1)
Gazette notice ............................................................................... Sch. 1, cl. 12(1)
gazetted......................................................................................... Sch. 1, cl. 12(1)
Government Printer ...................................................................... Sch. 1, cl. 12(1)
grade 1 ............................................................................................................. 5(1)
guardian ........................................................................................................... 5(1)
inappropriate person .................................................................................... 171(3)
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Education and Care Services National Law (WA) Bill 2011
Defined Terms
individual ...................................................................................... Sch. 1, cl. 12(1)
information system ....................................................................... Sch. 1, cl. 12(1)
infringements law ............................................................................................ 5(1)
insert ............................................................................................. Sch. 1, cl. 12(1)
instrument ..................................................................................... Sch. 1, cl. 12(1)
interest .......................................................................................... Sch. 1, cl. 12(1)
internal Territory........................................................................... Sch. 1, cl. 12(1)
Jervis Bay Territory ...................................................................... Sch. 1, cl. 12(1)
local application provisions of this Act ................................................. Act s. 3(1)
local authority .............................................................................................Act s. 6
magistrate ...................................................................................................Act s. 6
make ............................................................................................. Sch. 1, cl. 12(1)
Ministerial Council .......................................................................................... 5(1)
minor............................................................................................. Sch. 1, cl. 12(1)
modification.................................................................................. Sch. 1, cl. 12(1)
monetary order................................................................................25(2), cl. 70(2)
month............................................................................................ Sch. 1, cl. 12(1)
named month ................................................................................ Sch. 1, cl. 12(1)
National Authority ........................................................................................... 5(1)
national education and care services quality framework ................................. 5(1)
National Partnership Agreement...................................................................... 5(1)
National Quality Framework ........................................................................... 5(1)
National Quality Standard ............................................................................... 5(1)
national regulations.......................................................................................... 5(1)
nominated supervisor....................................................................................... 5(1)
Northern Territory ........................................................................ Sch. 1, cl. 12(1)
number .......................................................................................... Sch. 1, cl. 12(1)
oath ............................................................................................... Sch. 1, cl. 12(1)
office....................................................................................5(1), Sch. 1, cl. 12(1)
Ombudsman Act .......................................................................................... 282(4)
omit............................................................................................... Sch. 1, cl. 12(1)
ordinary meaning ............................................................................ Sch. 1, cl. 8(1)
parent ................................................................................................5(1), 165A(5)
Part 2...........................................................................................................Act s. 2
participating jurisdiction.................................................................................. 5(1)
party.............................................................................................. Sch. 1, cl. 12(1)
payment ........................................................................................................... 5(1)
penalty .......................................................................................... Sch. 1, cl. 12(1)
person .............................................................................................................. 5(1)
person linked to a WA service....................................................................... 188A
person with management or control................................................................. 5(1)
personal arrangement....................................................................................... 5(1)
power ............................................................................................ Sch. 1, cl. 12(1)
prescribed ..................................................................................... Sch. 1, cl. 12(1)
prescribed ineligible person ............................................................................. 5(1)
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Education and Care Services National Law (WA) Bill 2011
Defined Terms
printed........................................................................................... Sch. 1, cl. 12(1)
Privacy Act .................................................................................................. 263(4)
proceeding .................................................................................... Sch. 1, cl. 12(1)
property......................................................................................... Sch. 1, cl. 12(1)
protected disclosure ................................................................................. 5(1), 296
protected information................................................................................... 273(3)
provider approval............................................................................................. 5(1)
provision ....................................................................................... Sch. 1, cl. 12(1)
public authority...........................................................................................Act s. 6
public sector auditor .................................................................................... 279(6)
public sector law.............................................................................................. 5(1)
rating assessment ............................................................................................. 5(1)
Ratings Review Panel ...................................................................................... 5(1)
receiving approved provider ............................................................................ 5(1)
record............................................................................................ Sch. 1, cl. 12(1)
registered teacher ........................................................................................Act s. 6
Regulatory Authority ....................................................................................... 5(1)
relevant Commonwealth Department .............................................................. 5(1)
relevant maximum fine ..............................................................................188C(3)
relevant period ............................................................................................... 39(7)
relevant tribunal or court ................................................................................. 5(1)
repeal ............................................................................................ Sch. 1, cl. 12(1)
residence .......................................................................................................... 5(1)
scheme commencement day .............................................................................305
school............................................................................................................... 5(1)
school children................................................................................................. 5(1)
serious detrimental action ........................................................................ 5(1), 296
serious incident ............................................................................................ 174(5)
service approval............................................................................................... 5(1)
sign ............................................................................................... Sch. 1, cl. 12(1)
specified .............................................................................................. Act s. 19(4)
specified person ...............................................................................197(6), 206(4)
staff member .................................................................................................... 5(1)
State ................................................................................................................. 9(2)
State Records Act ........................................................................................ 265(4)
statutory declaration ..................................................................... Sch. 1, cl. 12(1)
statutory instrument ...................................................................... Sch. 1, cl. 12(1)
superior court..............................................................................................Act s. 6
supervisor certificate........................................................................................ 5(1)
swear............................................................................................. Sch. 1, cl. 12(1)
the Law ......................................................................................... Sch. 1, cl. 12(2)
this jurisdiction ...........................................................................................Act s. 6
transferring approved provider ........................................................................ 5(1)
unauthorised person ..................................................................................... 170(5)
WA service .................................................................................................... 188A
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Education and Care Services National Law (WA) Bill 2011
Defined Terms
word.............................................................................................. Sch. 1, cl. 12(1)
working with children card .............................................................................. 5(1)
working with children check ........................................................................... 5(1)
working with children law ............................................................................... 5(1)
working with vulnerable people law................................................................ 5(1)
writing........................................................................................... Sch. 1, cl. 12(1)
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