Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CZR v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 282 Hearing dates: 7 June 2017 Date of orders: 18 September 2017 Decision date: 18 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C Grant, Senior Member Decision: The respondent's decision pursuant to s.193(3) of the National Law is confirmed. Catchwords: ADMINISTRATIVE LAW – National Law - Education and care services – objects and principles of National Law – provider approval –-assessment process - fit and proper person to be involved in provision of education and care service Legislation Cited: Administrative Decisions Review Act 1997 Children (Education and Care Services) National Law (NSW) Children (Education and Care Services National Law Application) Act 2010 Children (Education and Care Services) Supplementary Provisions Regulation 2012 Civil and Administrative Tribunal Act 2013 Cases Cited: CTG v NSW Department of Education, Early Childhood and Care Directorate (2017) NSWCATAD 60 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Category: Principal judgment Parties: CZR (Applicant) Department of Education, Early Childhood Education and Care Directorate (Respondent) Representation: CZR (Applicant self- represented) Crown Solicitor's Office (Respondent) File Number(s): 2017/ 00087737 Publication restriction: Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal. reasons for decision 1. The applicant seeks a review of the respondent's decision to refuse to grant a provider approval to operate family day care services under the Children (Education and Care Services) National Law (NSW) ("the National Law"). 2. Under the National Law the applicant must satisfy the respondent, being the Regulatory Authority that they are a 'fit and proper person' to be involved in the provision of an education and care service. The applicant participated in a compulsory assessment process and did not, in the view of the respondent, demonstrate an adequate knowledge and understanding of the legislative requirements of the National Law. On this basis, the respondent was not satisfied the applicant was a fit and proper person and refused the application. 3. The Tribunal has considered all the evidence and information. This included the compulsory assessment process and the answers provided by the applicant during the assessment and confirms the respondent's decision to refuse the application. Background 1. The Applicant, who will be referred to as 'CZR' in these reasons, applied for provider approval to operate a family day care service, by application dated 10 July 2016. 2. The Department of Education, Early Childhood Education and Care Directorate and the 'respondent' in these proceedings is the Regulatory Authority in NSW under the National Law. It established an assessment process to determine if applicants for provider approval have sufficient knowledge of the provisions of the National Law and of the Education and Care Services National Regulation ("the Regulation") to be fit and proper persons to be approved providers. 3. The assessment process involved giving applicants two scenario problems that a provider may face when typically operating a family day care service. Applicants are required to identify six relevant provisions of the National Law or the Regulation and answer several questions. The questions require the applicants to consider the requirements of National Law and the Regulations, identify what actions they would take in response to the scenario and their obligations as a provider in dealing with the scenario. The assessment gave applicants a one hour period to complete the two scenario questions under supervised examination conditions. 4. The assessment took place in the afternoon from 2pm to 3pm and was preceded by a morning seminar. This seminar is an information session about the service approval process and the post-approval process. There is also other information provided about the Commonwealth Child Care Benefit scheme and applicants may also ask questions during the session. 5. On the 26 September 2016, CZR attended the morning seminar and then participated in the assessment process. Her responses to the scenario questions were assessed as inadequate by two markers. On the 4 November 2016, the respondent decided to refuse CZR's application for provider approval on the grounds she did not demonstrate a sufficient knowledge of the National Law and Regulations and therefore, the respondent could not be satisfied she was a fit and proper person to operate a family day care service. On the 16 November 2016, CZR applied for an internal review of that decision. The internal review also refused the application, advising CZR by letter of 17 February 2017. CZR filed this application for review to the Tribunal on the 22 March 2017. Relevant Legislation 1. The National Law implements a uniform national scheme for the regulation of education and care services of children. This includes family day care services, which operate education and care services delivered by educators in private residences. The National Law replicates corresponding legislation enacted in other Australian jurisdictions. 2. The objects and guiding principles of the National Law are set out in section 3, which provide, relevantly: (2) The objectives of the national education and care services quality framework are— (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; … (3) The guiding principles of the national education and care services quality framework are — (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services. 1. To operate an education and care service, including a family day care service, a person or company must have a provider approval and a service approval. Pt 2 of the National Law sets out the provider approval process. A provider approval is granted subject to conditions, including that the approved provider must comply with the National Law (and the Regulations). 2. Under the National Law, an approved provider has personal responsibility for and overall management and control of, an education and care service. Part 6 of the National Law contains several provisions by which approved providers may be subject to personal liability for matters such as failure to ensure adequate supervision or a failure to notify certain circumstances to the Regulatory Authority being the Secretary, Department of Education. The Regulations also impose specific obligations on approved providers, including obligations relating to child health and safety, physical environment and staffing. Part 3 of the National Law sets out the service approval process. 3. The Regulatory Authority has the power to grant and cancel provider and service approval under the National Law. 4. Section 15(1) of the National Law provides the Regulatory Authority with a discretion to grant or refuse the provider approval. Section 15(2) provides that the Authority "must not" grant a provider approval unless it is satisfied as to matters in Section 12. 5. Section 12 of National Law provides, relevantly: 1. An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service. 2. If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that – 1. each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and 2. the applicant is a fit and proper person to be involved in the provision of an education and care service… 1. Section 13 outlines the matters to be considered in determining whether a person is a fit and proper person for the purposes of section 12 of the National Law. They include both mandatory matters; s.13(1), and other matters which may be considered; s.13(2). 2. The mandatory matters include, in summary: * The person's history of compliance with the National Law and similar or related laws, and any adverse decision made against the person under those laws; s. 13(1) (a)-(b) of the National Law; * certain matters relating to the person's criminal history or a check under a working with vulnerable people laws; s.13(1)(c) of the National Law and cl.16 of the Regulations; and * whether the person is bankrupt or similar; s.13(1)(d) of the National Law. 1. The other matters which the Authority may, but is not required to, take into account included any medical condition which may cause the person to be incapable of being responsible for providing a service in accordance with the National Law, and any financial circumstances which may significantly limit the person's capacity to meet their obligations under the National Law. 2. Section 13(3) makes it clear that the matters set out in s.13(1) and (2) are not exhaustive. It states: (3) Nothing in subsection (1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service. Position of CZR 1. CZR does not take issue with the use of the scenario questions to assess whether a person is a fit and proper person. She takes issue with the fairness of the process and its implementation. She sets out in her application and documents, and in her evidence before the Tribunal the following reasons: 1. The morning information session organised by the respondent was inadequate preparation for the assessment. It did not provide sufficient information or guidelines or examples of the possible scenario questions that were assessed; 2. The one hour time frame was insufficient to read, consider and answer the two sets of scenario questions; 3. The scenario questions were too difficult and designed to prevent applicants from being granted provider approval; and 4. The scenarios given to CZR were more difficult than the scenarios given to other applicants. The process was therefore not random or not fair. Position of the respondent 1. The respondent established the compulsory assessment process under s.14 of the National Law. That is, the Regulatory Authority or respondent, in determining whether a person is a fit and proper person, "may ask the person to provide further information; and undertake inquiries in relation to the person". 2. The Director of Statewide Operations for the respondent, Ms Hanson filed a statement about the assessment process. Her statement included the following points about the process: "(2) In the current version of the assessment process, applicants are given two scenario problems, each requiring that the applicant identify six relevant provisions of the National Law or the Regulation and answer several written questions. The written questions are similar for each scenario and broadly require the applicants to identify what actions they would take in response to the scenario, what their obligations would be as an approved provider dealing with the scenario, and what requirements of the National Law and the Regulation they would consider. (3) The scenarios used by the Department are adapted from exam scenarios originally developed by the Victorian Regulatory Authority for use in implementing the National Law as it applies in Victoria. There are approximately 20 different scenarios, and each applicant is randomly assigned two scenarios, with two qualifications. Firstly, if two people connected to a single provider application is being tested, the Department ensures that the two people do not receive the same question; and secondly, if an applicant for any reason sits the assessment more than once, the Department ensures that he or she does not receive the same questions again. For that purpose, the allocation of questions to particular applicants is made prior to the assessment, and the assessments are provided with the applicant's names already marked. (4) Applicants are given one hour to complete the two scenario questions under supervised examination conditions. They may use printed copies of the National Law and the Regulation, which they are requested to bring to the assessment, but not refer to any other material or use electronic devices. This replicates real-world situations in which the National Law and the Regulations are always available, but some knowledge of them is required to be able to find provisions relating to a particular issue in a reasonable time. (5) The assessments are independently and separately marked by two Field Officers employed by the Department. The Senior Field Officers are tertiary educated in early childhood teaching, and have training in the National Law and the Regulation. The role of a Senior Field Officer is primarily a regulatory role which involves the investigation of complaints and incidents, the conducting of compliance visits/inspections and the assessment and rating of education and care services. The scenarios are based on situations that they may encounter in their day to day duties. (6) … The applicant is expected to display knowledge of what the scenario is about and to describe, in a reasonable level of detail, how they would go about addressing the situation. 1. Ms. Hansen gave evidence for the respondent and was cross-examined by the applicant. She stated: * The scenarios are based on those used in Victoria and Queensland. The scenarios and assessment conditions were also trialled by staff members with limited knowledge of the National Law and determined to be workable and fair. They replicate real-life situations that providers of family day care services could encounter. They focus particularly on the hazards and potential harm for children and how a provider manages such scenarios and does so in a timely manner. * It is an open book assessment. Applicants are expected to prepare for the assessment by highlighting or marking up relevant sections in their copies of the National Law and Regulations and use this as a resource to complete their answers. * The morning seminar is not intended to be sufficient, on its own, for applicants to gain adequate understanding of the requirements of National Law or the Regulations. It is the responsibility of the applicant to prepare for the assessment and ensure they have an adequate knowledge of the National Law and Regulations. She referred to numerous resources being available to applicants. These included detailed guides created by the Australian Children's Education and Care Quality Authority, which is a national body established under, and with responsibility for, the National Law. * If the applicant's answers were close to being correct or 'on the borderline' the respondent arranges a face to face interview with an experienced assessor to assess whether their knowledge of the Naitonal Law is sufficient to operate a family day care service. This was not the case for CZR. * The cost of an application is $219.00 and there is no limit on the number of applications a person may make. Ms. Hansen acknowledged many applicants do not meet the requisite standards on their first attempt and often return and try again. Those applicants who do return are given different scenarios to the scenarios given to them in their previous assessments. CRZ's answers in the assessment 1. CRZ agreed many of her responses in the assessment were either incorrect or incomplete. As stated, her position is that the assessment process was not fair. 2. CZR was tested on two scenarios. The first scenario related to a complaint made by a parent about the care being provided to her child at a family day care service. CRZ identified six relevant sections of the National Law or the Regulations. However, she did not refer in her answer to the next course of action she was required to take, namely to inform the Regulatory Authority that a complaint had been made and that it is an offence to fail to do so under the National Law. In addition, she did not refer to the requirement to ensure children had access to sufficient furniture, materials and developmentally appropriate equipment suitable for the child's education and care. The scenario gave rise to this requirement. 3. The second scenario related to a family day care service caring for up to 7 children in an area, that had potential physical hazards for children. CZR stated that she did not have enough time to complete her answers. However, she did provide answers to some of the questions. For example, she was asked to identify six relevant areas from National Law. She identified only one area that was correct and the remaining 5 areas she identified were not raised by the scenario or were too general in scope to be useful or were already provided in the question. She also attempted other questions but the answers provided were incorrect. Importantly, she did not refer in her responses to the need for emergency and evacuation procedures, need to conduct a risk assessment and the need to keep and retain records. 4. The respondent assessed many of the answers to both scenarios as either incorrect or inadequate and did not demonstrate a sufficient understanding of the National Law and its Regulations. Consideration Findings 1. The Tribunal has considered the answers provided by CRZ in response to the two scenarios. It agrees with the respondent's assessment that CRZ did not demonstrate a sufficient knowledge of the National Law and Regulations. 2. Many of CRZ's answers were incorrect and incomplete. She did not refer to the numerous critical protective provisions in the National Law as it applied to an everyday scenario in a family daycare service. She did not identify important actions she would be required to take in the everyday scenario. Her lack of knowledge did not concern minor or technical aspects of the legislation but were about critical provisions essential to the administration of the National Law and for the welfare of children attending a family day care service. 3. CRZ submitted in evidence that she did not have sufficient time to complete the assessment and that it was too difficult. She indicated the information session held on the morning of the assessment did not properly prepare her for the assessment. She submitted that she was intentionally given a more difficult version of assessment questions than other applicants. No evidence was provided by CZR to support these allegations. 4. The Tribunal prefers the evidence of Ms. Hansen. She stated the assessment had been designed and trialled to prevent applicants from being approved providers, if they did not have the knowledge or the ability to determine what appropriate action should be taken in a realistic scenario. The assessment also tested the applicant's general knowledge of the regulatory framework in which the determination was made. Some applicants failed the assessment on the first occasion, like CZR but returned to make a further application(s). There was no limit on the number of applications a person may make. 5. Ms. Hanson stated that applicants were all informed well in advance of the nature of the assessment. The notification to applicants read, "There will be a compulsory assessment session which you will need to complete to assess your understanding of the responsibilities of a provider of a family day care service under the National Law. You will not be granted an approval unless all persons with management or control are assessed as satisfactory on these tasks." She stated it was the responsibility of each applicant to prepare for the assessment. The morning session was an information session only and not intended to be sufficient, on its own, to prepare applicants for the assessment. All applicants had access to on-line resources including, detailed guides and information sheets created by Australian Children's Education and Care Quality Authority. All applicants were assisted by having their own hard copy of the National Law and Regulation during the assessment. 6. There is no basis to CZR's allegation that she was given a more difficult assessment than other applicants. Ms. Hansen explained the process of allocating scenarios to each applicant that applied consistently to all applicants. CZR did not challenge this evidence. Fit and Proper Person 1. The issue for the Tribunal is whether it is satisfied that CZR is a fit and proper person for the purposes of section 12 of the National Law. 2. "The expression "fit and proper person" "takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities". Australian Broadcasting Tribunal v Bond (1980) HCA 33 170 CLR 380. 3. In Hughes v Vale Pty Ltd v NSW (No.2) (1955) 93 CLR 127 the High Court considered that "fitness" had three components; honesty, ability and most relevantly, 'knowledge' in the sense of knowing what ought to be done. Conclusion 1. The Tribunal agrees with the respondent's submission and finds that a 'fit and proper person' for the purposes of s.12 of the National Law must demonstrate detailed and accurate knowledge and understanding of the National law and the Regulation. While a knowledge of National Law is not expressly contemplated in s.13(1) and (2) of the National Law in determining 'a fit and proper person", s.13(3) of the National Law makes it clear that factors not expressly listed may be taken into account in determining whether a person is a fit and proper person. 2. This construction is based on a detailed knowledge and ability being directly correlated to the well-being and safety of children and the other objects and guiding principles of the National Law. That is, the National Law and Regulations is the regulatory framework for family day care services. It sets out requirements for children's health and safety issues, the physical environment, supervision of children, staff qualifications and training, staffing arrangements, record keeping, emergency and evacuation procedures, reporting, offences and compliance. This is not an exhaustive list. Any failure by an operator to acquire and possess this requisite knowledge and ability places children at risk. 3. To the extent that the CZR did not demonstrate a sufficient knowledge of the National Law and Regulations, she is not a fit and proper person under section 12 of the National Law. This of course, does not prevent her from making a further application to the respondent for a provider approval in the future. Decision 1. For the reasons, above: 1. The respondent's decision pursuant to s.193(3) of the National Law is confirmed. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2018