Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 161

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 161 Hearing dates: 24-27 August 2020 Date of orders: 7 June 2021 Decision date: 07 June 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: M Easton, Senior Member M Bolt, General Member Decision: 1. In matter 2020/00102585 the decision by the Secretary of the Department of Education to cancel the provider approval of Early Childhood Education Australia Pty Ltd on 26 March 2020 is set aside. 2. The stay order made on 16 April 2020 will be rescinded on 1 July 2021; 3. Between 1 July 2021 until 31 December 2021 ECE's provider approval granted under s 15 of the Children (Education and Care Services) National Law (NSW) ("the National Law") is amended pursuant to s 23(2) of the National Law to include the following conditions: a. between 1 July 2021 and 31 August 2021 the approved provider must not employ or engage any more than 12 Educators at any one time; b. between 1 September 2021 and 31 October 2021 the approved provider must not employ or engage any more than 15 Educators at any one time; c. between 1 November 2021 and 31 December 2021 the approved provider must not employ or engage any more than 20 Educators at any one time; d. the approved provider is to continue to conduct a monthly audit of each educator employed or engaged by the service. The audit is to include a thorough inspection of each educator residence to ensure that each educator is providing education and care in accordance with the National Law and the Education and Care Services National Regulations ("the National Regulations'). e. Without limiting condition (d), the approved provider, in its monthly audits, is to ensure: i. that there are no risks of harm or any hazard likely to cause injury to children being educated and cared for at the service premises; ii. that each educator has the prescribed information displayed at their residence in accordance with section 172 of the National Law and regulation 173 of the National Regulations; iii. that each educator has a copy of the documents required to be kept under regulation 178 of the National Regulations, and that those documents are up to date and accurate; iv. that each educator has obtained authorisations for, and has conducted risk assessments. for excursions and that those documents are up to date: v. that each educator has conducted rehearsals of the emergency and evacuation procedures, and has documented those rehearsals in accordance with regulation 97(3)(ab) and (b) of the National Regulations. f. The approved provider must produce a record of all monthly audits conducted under conditions (d) and (e), showing any identified breaches of the National Law and the National Regulations and confirming that the matters identified in condition (e) have been checked. The approved provider must submit to the Regulatory Authority a copy of any audit report upon the request of the Regulatory Authority, and within two business days of the making of any such request; g. Upon the request of the Regulatory Authority, the approved provider must submit to the Regulatory Authority any further information arising from the audits referred to in conditions (d) and (e), within two business days of the making of any such request. h. The approved provider must submit to the Regulatory Authority by 1 July 2021 a plan of how it intends to ensure that each educator employed or engaged by the service maintains an adequate knowledge and understanding of the provision of education and care to children. i. Ms Krystal Bak must, by 24 August 2021, undertake relevant training on the governance and management of an education and care service, and must provide proof of having undertaken the training to the Regulatory Authority within 7 days of completion. The training must: ii. be delivered by a recognised Registered Training Organisation or peak body, such as Early Childhood Education Services and Training, Community Early Learning Australia or Early Childhood Australia; and iii. be approved by the Regulatory Authority. Catchwords: ADMINISTRATIVE LAW - Education and Care Services National Law – review of decision to cancel provider approval - fit and proper person - breach of approval condition - alternative measures available to the decision maker - new approval conditions imposed Legislation Cited: Children (Education and Care Services) National Law (NSW) Cases Cited: Early Childhood Education Australia Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 28 Texts Cited: Nil Category: Consequential orders Parties: Early Childhood Education Australia Pty Ltd (Applicant) Secretary, Department of Education (Respondent) Representation: Counsel: GP Diggins (Applicant) R Mansted (Respondent)