Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW)

Children (Education and Care Services) Supplementary Provisions Act 2011 No 70 An Act to regulate the provision of certain children's education and care services; to align the regulation of those services with the Children (Education and Care Services) National Law (NSW); and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Children (Education and Care Services) Supplementary Provisions Act 2011. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act: approved education and care service means a State regulated education and care service for which a service approval exists. approved provider means: (a) a person who holds a provider approval granted under the National Law Alignment Provisions, or (b) a person who is taken to be an approved provider under Division 3 of Part 4. education and care service—see section 4. exempt premises—see section 5. mobile education and care service—see section 4. National Law means the Children (Education and Care Services) National Law (NSW). National Law Alignment Provisions—see section 17. occasional education and care service—see section 4. provider approval means a provider approval under the National Law Alignment Provisions. Regulatory Authority means the Regulatory Authority for this jurisdiction within the meaning of the National Law. service approval means a service approval under the National Law Alignment Provisions. State regulated education and care service—see section 4. (2) Notes included in this Act do not form part of this Act. 4 Meaning of "State regulated education and care service" (1) For the purposes of this Act, each of the following is a State regulated education and care service: (a) a mobile education and care service, being an education and care service that visits specific premises, areas or places at specified times for the purpose of providing the care, (b) an occasional education and care service, being an education and care service that is provided at fixed premises (other than the home of the approved provider of the service) primarily on an ad hoc or casual basis and that does not usually offer full-time or all day education and care to children on an ongoing basis. (2) An education and care service is a service that provides education or care (other than residential care), or both education and care, whether directly or indirectly, for one or more children under the age of 6 years and who do not ordinarily attend school (disregarding any children who are related to the person providing the care). (3) However, a State regulated education and care service does not include any of the following: (a) a service that is an education and care service within the meaning of the National Law (disregarding this Act), (b) a service provided by a designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998, (c) a babysitting, playgroup or child-minding service that is organised informally by the parents of the children concerned, (d) a service provided for fewer than 5 children (disregarding any children who are related to the person providing the service) at the premises at which at least one of the children resides, being a service that is not advertised, (e) a service involving medical or clinical care provided by a hospital, (f) a regular child-minding service: (i) that is provided in connection with a hospital, health service or a recreational or commercial facility, and (ii) that is provided by or on behalf of the person conducting the hospital, health service or recreational or commercial facility, and (iii) that is provided to care for children only: (A) while a sibling of the child being cared for is being treated at the hospital or health service, or (B) while the children's parents or authorised carers are visiting or being treated at the hospital or health service or are using the recreational or commercial facility, (g) a service principally conducted to provide instruction in a particular activity, Note— Instruction in sport, dance, music, culture, language or religion are examples. (h) a service under which formal education in accordance with the school curriculum set out in Part 3 of the Education Act 1990 is provided by a government school or a registered non-government school within the meaning of that Act, (i) a service provided at exempt premises, but only if the service is established, registered or licensed as part of the institution operating on those premises, (j) a service excluded from the operation of this Act by the regulations. (4) In this section: hospital means: (a) a private health facility licensed under the Private Health Facilities Act 2007, or (b) a declared mental health facility or a private mental health facility within the meaning of the Mental Health Act 2007, or (c) a public hospital within the meaning of the Health Services Act 1997. 5 Exempt premises (1) The regulations may prescribe any class of premises as exempt premises for the purposes of this Act. (2) The Minister may, by order published in the Gazette, declare any premises to be exempt premises for the purposes of specified provisions of this Act. (3) A reference in this Act to exempt premises is a reference to: (a) any premises belonging to a class of premises prescribed by the regulations as exempt premises, and (b) in relation to any provision of this Act, any premises declared to be exempt premises for the purposes of that provision by an order of the Minister under this section, being an order that is in force. 6 Objectives and principles underlying the provision of State regulated education and care services (1) The National Law Alignment Provisions provide for the objectives and guiding principles that apply to the provision of State regulated education and care services. (2) A reference in sections 3 and 4 of the National Law to the national education and care services quality framework is to be read, for the purposes of the National Law Alignment Provisions, as a reference to the framework for the provision of State regulated education and care services established by this Act. Part 2 7 (Repealed) Part 3 State regulated education and care services Division 1 Operation of State regulated education and care services 8 Unauthorised provision of education and care service (1) A person must not provide a State regulated education and care service unless: (a) the person is an approved provider in respect of that service, and (b) the service is an approved education and care service. Maximum penalty: $22,000. (2) A nominated supervisor of a State regulated education and care service who is not the approved provider of the service does not commit an offence against this section in respect of anything done in the course of supervising that service in accordance with this Act. (3) An employee or other person who provides or assists in providing a State regulated education and care service does not commit an offence against this section if the employee or other person is acting in accordance with directions given by the approved provider of the service. 9 Advertising of unauthorised education and care service (1) A person must not advertise or hold out that the person is willing to provide a State regulated education and care service unless: (a) the person is an approved provider in respect of the service concerned, and (b) the particular service being advertised is an approved education and care service. Maximum penalty: $550. (2) A person must not knowingly publish any advertisement inviting the attendance of children at a State regulated education and care service that is not an approved education and care service. Maximum penalty: $550. (3) A person is not guilty of an offence under subsection (1) or (2) if: (a) the State regulated education and care service is a service that is proposed to be provided in the future, and (b) the person has duly applied for any provider approval or service approval required to authorise the person to provide the proposed State regulated education and care service, and (c) the application has not been finally determined. (4) A person must not advertise or hold out that the person is willing to provide a State regulated education and care service for which an application for any provider approval or service approval required to authorise the person to provide the proposed service is pending unless it is made clear that the service will be provided only after any such approval has been granted. Maximum penalty: $550. 10 (Repealed) Division 2 Provider approvals 11 Provider approvals The National Law Alignment Provisions provide for the grant of provider approvals for State regulated education and care services and other matters relating to provider approvals. Note— See also Division 3 of Part 4, which provides for the recognition, for the purposes of this Act, of provider approvals granted under the National Law. 12 Contravention of provider approval An approved provider must not contravene a condition of a provider approval granted under the National Law Alignment Provisions. Maximum penalty: $10,000 in the case of an individual or $50,000 in any other case. Division 3 Service approvals 13 Service approvals The National Law Alignment Provisions provide for the grant of service approvals for State regulated education and care services and other matters relating to service approvals. 14 Contravention of service approval An approved provider must not contravene a condition of a service approval for a State regulated education and care service. Maximum penalty: $10,000 in the case of an individual or $50,000 in any other case. 14A Service waivers and temporary waivers The National Law Alignment Provisions provide for the grant of service waivers and temporary waivers for State regulated education and care services and other matters relating to waivers. Note— Under Divisions 5 and 6 of Part 3 of the National Law, an approved provider of an education and care service may apply for a service (ie permanent) or temporary waiver from a requirement that the service comply with certain elements of the National Quality Standard (set out in the national regulations) or certain specified provisions of the national regulations. Division 4 Assessment and rating 15 Assessment and rating of State regulated education and care services (1) The National Law Alignment Provisions provide for the assessment by the Regulatory Authority of State regulated education and care services and the determination of rating levels (other than the highest rating level) for the services. (2) The regulations may make provision for the award of the highest rating level to State regulated education and care services. (3) Subsection (2) does not prevent the Regulatory Authority from entering into arrangements with the National Authority for the assessment of State regulated education and care services and the award of the highest rating level to those services by the National Authority. 16 (Repealed) Part 4 National Law alignment Division 1 Alignment with National Law 17 Alignment with National Law The National Law, as in force from time to time: (a) applies to State regulated education and care services as if those services were education and care services within the meaning of the National Law, and (b) so applies with the modifications provided for by or under this Act, and (c) as so applying may be referred to as the National Law Alignment Provisions, and (d) so applies as if it were part of this Act. 18 Application of Children (Education and Care Services National Law Application) Act 2010 (1) Sections 7 to 16 of the Children (Education and Care Services National Law Application) Act 2010 apply to the National Law Alignment Provisions in the same way as they apply to the National Law, subject to any modifications provided for by this Act or the regulations under this Act. (2) Section 5 of the Children (Education and Care Services National Law Application) Act 2010 does not apply in respect of the National Law Alignment Provisions. 19 Application of Interpretation Act 1987 The Interpretation Act 1987 does not apply in respect of the National Law Alignment Provisions. Note— Schedule 1 to the National Law provides for interpretation of the provisions of the National Law. Those provisions also apply to the National Law Alignment Provisions. 20 Extension does not affect operation of National Law in respect of nationally regulated education and care services To avoid doubt, a provider approval or service approval granted under the National Law Alignment Provisions in respect of a State regulated education and care service is not a provider approval or service approval (as the case requires) for the purposes of the National Law. Division 2 Modification of National Law 21 Excluded provisions (1) For the purposes of the National Law Alignment Provisions, the following provisions of the National Law are to be disregarded: (a) sections 1, 2 and 3 (1) and (2) (d) (preliminary matters), (b) section 7 (Single national entity), (c) section 11 (a) (which dictates the jurisdiction in which an application for a provider approval must be made), (d) section 19 (4) (offence of contravening conditions of provider approval), (e) section 42 (Exercise of powers by another Regulatory Authority), (f) section 44 (1) (a) (which dictates the jurisdiction in which an application for a service approval must be made), (g) section 51 (8) (offence of contravening conditions of service approval), (h), (i) (Repealed) (j) section 101 (Exercise of powers by another Regulatory Authority—family day care services), (k) section 102 (Application of Law to associated children's services), (l) section 103 (Offence to provide an education and care service without service approval), (m) section 104 (Offence to advertise education and care service without service approval), (n)–(s) (Repealed) (t) section 134 (2) and Divisions 4–6 of Part 5 (which relate to certain assessment and rating functions of the National Authority), (u) section 169 (7) and (8) (which relate to determinations of equivalent qualifications by the National Authority), (v) (Repealed) (w) section 198 (National Authority representative may enter service premises in company with Regulatory Authority), (x) (Repealed) (y) Part 10 (Ministerial Council), (z) Part 11 (Australian Children's Education and Care Quality Authority), (aa) Part 13 (Information, records and privacy), except sections 267 (1)–(4), 270, 271, 272 (1) and 273, (ab), (ac) (Repealed) (ad) Divisions 1 to 3 and 8 of Part 14 (Miscellaneous), (ae) Part 15 (Transitional provisions). (2) This section is subject to any modifications provided for by the regulations. 22 References to education and care services For the purposes of the National Law Alignment Provisions: (a) a reference in the National Law to an education and care service is to be read as a reference to a State regulated education and care service, and (b) a reference in the National Law to an approved education and care service is to be read as a reference to a State regulated education and care service that is an approved education and care service within the meaning of this Act. 23 References to National Law (1) For the purposes of the National Law Alignment Provisions, a reference in the National Law to the National Law itself (such as a reference to "this Law") is to be read as a reference to this Act (including the National Law Alignment Provisions) and the regulations under this Act. (2) A reference in the National Law to a specific provision of the National Law is to be read as a reference to the corresponding provision of the National Law Alignment Provisions. 24 References to Regulatory Authority (1) For the purposes of the National Law Alignment Provisions, a reference in the National Law to the Regulatory Authority is a reference to the Regulatory Authority for this jurisdiction. Note— Under section 9 of the Children (Education and Care Services National Law Application) Act 2010, the Regulatory Authority for this jurisdiction is the Secretary of the Department of Education. (2) The National Law Alignment Provisions do not confer a power to grant provider approvals and service approvals in respect of State regulated education and care services, or confer any other functions with respect to those services, on the Regulatory Authority for another jurisdiction under the National Law. (3) For the purpose of the National Law Alignment Provisions, references in the National Law to provider approvals or service approvals granted under the law of another jurisdiction are to be disregarded. (4) This section does not affect the operation of Division 3. Note— Division 3 provides for the recognition, for the purposes of this Act, of provider approvals granted under the National Law (including provider approvals granted by the Regulatory Authority for another jurisdiction). 25 References to regulations For the purposes of the National Law Alignment Provisions, a reference in the National Law to the regulations made under that Law or to a matter prescribed under that Law is to be read as a reference to the regulations made under this Act or to a matter prescribed by the regulations under this Act, as the case requires. 26 References to matters that relate to national scheme only For the purposes of the National Law Alignment Provisions, any of the following references in the National Law are to be disregarded: (a) references to the National Authority, (b) references to the Ministerial Council (except in relation to the National Quality Standard), (c) references to the highest rating level for an education and care service, (d) (Repealed) (e) references to associated children's services, (f) (Repealed) (g) references to family day care services. 27 References to National Quality Framework and National Quality Standard (1) A reference in the National Law to the National Quality Framework is to be read, for the purpose of the National Law Alignment Provisions, as a reference to the following: (a) this Act (including the National Law Alignment Provisions), (b) the regulations under this Act, (c) the National Quality Standard, (d) the rating system provided for by the regulations under this Act. (2) A reference in the National Law to the National Quality Standard is to be read, for the purpose of the National Law Alignment Provisions, as a reference to the National Quality Standard approved by the Ministerial Council under the National Law as in force from time to time. (3) The regulations may make further provision for the application of the National Quality Standard to State regulated education and care services, including by modifying the National Quality Standard as it applies to those services. 27A Specific variations (1) A reference in section 168 of the National Law to an approved learning framework is to be read, for the purpose of the National Law Alignment Provisions, as a reference to the learning framework approved by the Ministerial Council under the National Law as in force from time to time. (2) A reference in the National Law to qualifications required or approved under that Law includes, for the purpose of the National Law Alignment Provisions, a reference to any qualifications that have been determined by the National Authority to be equivalent to the qualifications required by the regulations under the National Law. (3) A reference in section 201 of the National Law to section 103 of the National Law is to be read, for the purpose of the National Law Alignment Provisions, as a reference to section 8 of this Act. Note— Accordingly the power to enter premises under section 201 of the National Law where a contravention of section 103 of the National Law is suspected is, for the purposes of the National Law Alignment Provisions, a power to enter premises where a contravention of section 8 of this Act is suspected. 27B Fees (1) The amount of a fee payable under the National Law Alignment Provisions in respect of a State regulated education and care service is the fee payable under the National Law in respect of an education and care service other than a family day care service. (2) The Regulatory Authority may waive, reduce, defer or refund any fee payable or paid to it under the National Law Alignment Provisions if there are exceptional circumstances. 28 Reviewable decisions (1) For the purposes of the National Law Alignment Provisions, a reference in section 192 of the National Law to a reviewable decision for external review includes, in addition to the decisions listed in that section, any decision of the Regulatory Authority of a kind specified by the regulations to be a reviewable decision for external review. (2) The Minister is not to recommend the making of a regulation containing provisions for the purposes of this section unless the Minister certifies that the Minister administering the Civil and Administrative Tribunal Act 2013 has agreed to the provisions. (3) For the purposes of the National Law Alignment Provisions, the note at the end of section 192 of the National Law is to be disregarded. 29 Further modifications The regulations may make further provision for the application of the National Law to and in respect of State regulated education and care services, including by making further modifications to the National Law for the purposes of the National Law Alignment Provisions. Division 3 Recognition of matters provided for by National Law 30 Approved providers A person who holds a provider approval in relation to an education and care service within the meaning of the National Law is taken to be an approved provider in relation to State regulated education and care services under this Act. 31 Authorised officers (1) A person who is authorised to be an authorised officer by the Regulatory Authority of this jurisdiction under Part 9 of the National Law is taken to be an authorised officer for the purposes of Part 9 of the National Law Alignment Provisions. (2) An identity card issued to the authorised officer under the National Law is taken to be an identity card identifying the authorised officer as an authorised officer authorised by the Regulatory Authority under this Act. (3) This section does not prevent the issue of a separate identity card by the Regulatory Authority for the purposes of this Act. Part 5 32–35 (Repealed) Part 6 Miscellaneous 36 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Without limiting subsection (1), the regulations may make provision for or with respect to the following matters: (a) any matter for which national regulations can be made by the Ministerial Council under the National Law, Note— See, in particular, section 301 of the National Law. (b) (Repealed) (c) exempting specified occasional or mobile education and care services, or occasional or mobile education and care services of a specified class, from the requirement that they be provided by an approved provider or the subject of a service approval (or both) and regulating the services so exempted (including, without limitation, establishing standards to be met by those services). (3) A regulation may create an offence punishable by a penalty not exceeding $2,000. 37 Adoption of other publications (1) The regulations may apply, adopt or incorporate, wholly or in part and with or without modifications, any standard, rule, code, specification or other document prescribed or published by any person or body (whether of New South Wales or elsewhere) and as in force at a particular time or from time to time. (2) In particular, the regulations may apply, adopt or incorporate, wholly or in part and with or without modification, any of the national regulations made by the Ministerial Council under the National Law, as in force at a particular time or as in force from time to time. 38 Application of State Records Act 1998 to certain services (1) The State Records Act 1998 does not apply to a private children's service and such a service is not a public office for the purposes of that Act. (2) In this section: private children's service means a State regulated education and care service provided to the community by any person or body other than: (a) a department, office, commission, board, corporation, agency, service or instrumentality exercising any function of any branch of the Government of the State, or (b) a council or county council under the Local Government Act 1993. 39 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. Schedule 1 Savings, transitional and other provisions Part 1 General 1 Regulations (1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date and has effect despite anything to the contrary in this Schedule. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. (4) Without limiting subclauses (1) and (2), regulations made for the purposes of this clause may amend this Schedule to provide for additional or different savings and transitional provisions instead of including the provisions in the regulations. Part 2 Provisions consequent on enactment of this Act 2 Continuation of Children's Services Regulation 2004 (1) The Children's Services Regulation 2004 (the Regulation) has effect, on the repeal of Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998, as if it were a regulation made under this Act. (2) To avoid doubt, the Subordinate Legislation Act 1989 applies in respect of the Regulation as a statutory rule published on 30 September 2004. Part 3 Provision consequent on enactment of Children (Education and Care Services) Supplementary Provisions Amendment Act 2018 3 Transitional provision for home based education and care services and retail shopping centre child-minding services On and from the date of assent to the Children (Education and Care Services) Supplementary Provisions Amendment Act 2018, a person may not apply to the Regulatory Authority: (a) for a provider approval or service approval for a home based education and care service under the National Law Alignment Provisions, or (b) for an approval to provide a centre based education and care service that is a child-minding service at a retail shopping centre under Part 8 of the Children (Education and Care Services) Supplementary Provisions Regulation 2012. Schedule 2 (Repealed) Editorial note National Law Alignment Provisions Editorial note. The Children (Education and Care Services) National Law (NSW) applies, with modifications, to State regulated education and care services under this Act. This Editorial note includes the provisions of that Law that apply to those services (the National Law Alignment Provisions), but further modifications to the interpretation of those provisions are made by Part 4 of this Act and the regulations under this Act. Part 1 Preliminary 5 Definitions (1) In this Law— approved education and care service means an education and care service for which a service approval exists; approved family day care service means an approved education and care service that is a family day care service; approved family day care venue means a place other than a residence where an approved family day care service is provided; approved learning framework means a learning framework approved by the Ministerial Council; approved provider means a person who holds a provider approval; associated children's service means a children's service that is operated or intended to be operated by an approved provider at the same place as an approved education and care service; Australian Accounting Standards means the standards issued or pronounced by the Australian Accounting Standards Board; authorised officer means a person authorised to be an authorised officer under Part 9; Authority Fund means the Australian Children's Education and Care Quality Authority Fund established under section 274; Board means the Australian Children's Education and Care Quality Authority Board established under this Law; certified supervisor means a person who holds a supervisor certificate; chief executive officer means the chief executive officer of the National Authority appointed under this Law; children's service means a service providing or intended to provide education and care on a regular basis to children under 13 years of age that is primarily regulated under a children's services law of a participating jurisdiction and is not an education and care service; children's services law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a children's services law for the purposes of this Law; children's services regulator, in relation to a participating jurisdiction, means a person declared by a law of that jurisdiction to be the children's services regulator for the purposes of this Law; Commonwealth Minister means the Minister of the Commonwealth who is responsible for policies and programs relating to education and care services; compliance direction means a compliance direction under section 176; compliance notice means a compliance notice under section 177; education and care service means any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than— (a) a school providing full-time education to children, includ