New South Wales: Children (Education and Care Services) National Law (NSW)

Children (Education and Care Services) National Law (NSW) No 104a of 2010 Editorial note— The Education and Care Services National Law is applied and modified as a law of NSW by the NSW Children (Education and Care Services National Law Application) Act 2010. This version is the Law as it currently applies in NSW. Part 1 Preliminary 1 Short title This Law may be cited as the Children (Education and Care Services) National Law (NSW). 2 Commencement This Law commences in a participating jurisdiction as provided under the Act of that jurisdiction that applies this Law as a law of that jurisdiction. 3 Objectives and guiding principles (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children. (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; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows— (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. 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3. 5 Definitions (1) In this Law— approval in principle means an approval in principle granted under section 110 for a proposed education and care service premises; approval in principle criteria means, of the national regulations that regulate the education and care service premises, those which are prescribed to be the approval in principle criteria; approval in principle holder means— (a) a person granted an approval in principle under section 110; or (b) if the approval in principle is transferred to another person under section 118 or 119, that person; 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) approved under section 50A or 54(8A) as a family day care venue for an approved family day care service; 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; 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, including children attending in the year before grade 1 but not including a preschool program delivered in a school or a preschool that is registered as a school; or (b) a preschool program delivered in a school if— (i) the program is delivered in a class or classes where a full-time education program is also being delivered to school children; and (ii) the program is being delivered to fewer than 6 children in the school; or (c) a personal arrangement; or (d) a service principally conducted to provide instruction in a particular activity; or Example— Instruction in a particular activity could be instruction in sport, dance, music, culture or language or religious instruction. (e) a service providing education and care to patients in a hospital or patients of a medical or therapeutic care service; or (f) care provided under a child protection law of a participating jurisdiction; or (g) a prescribed class of disability service; or (h) a service of a prescribed class; Example— Education and care services to which this Law applies include long day care services, family day care services, outside school hours services and preschool programs including those delivered in schools, unless expressly excluded. education and care service premises means— (a) in relation to an education and care service other than a family day care service, each place at which an education and care service operates or is to operate; or (b) in relation to a family day care service— (i) an office of the family day care service; or (ii) an approved family day care venue; or (iii) each part of a residence used to provide education and care to children as part of a family day care service or used to provide access to the part of the residence used to provide that education and care; education law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be an education law for the purposes of this Law; educator means an individual who provides education and care for children as part of an education and care service; eligible association means an association of a prescribed class; family day care co-ordinator means a person employed or engaged by an approved provider of a family day care service to monitor and support the family day care educators who are part of the service; family day care educator means an educator engaged by or registered with a family day care service to provide education and care for children in a residence or at an approved family day care venue; family day care educator assistant means a person engaged by or registered with a family day care service to assist family day care educators; family day care residence means a residence at which a family day care educator educates and cares for children as part of a family day care service; family day care service means an education and care service that— (a) is delivered through the use of 2 or more educators to provide education and care to children; and (b) operates from 2 or more residences; Note— A family day care service that is an approved family day care service may provide education and care to children from a family day care residence or an approved family day care venue. family member, in relation to a child, means— (a) a parent, grandparent, brother, sister, uncle, aunt, or cousin of the child, whether of the whole blood or half-blood and whether that relationship arises by marriage (including a de facto relationship) or by adoption or otherwise; or (b) a relative of the child according to Aboriginal or Torres Strait Islander tradition; or (c) a person with whom the child resides in a family-like relationship; or (d) a person who is recognised in the child's community as having a familial role in respect of the child; former education and care services law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a former education and care services law for the purposes of this Law; grade 1, in relation to a school, means the first year of compulsory full-time schooling; guardian, in relation to a child, means the legal guardian of the child; infringements law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be an infringements law for the purposes of this Law; mandatory approval in principle jurisdiction means a Part 4 jurisdiction in which section 49A of this Law applies; Note See section 49A. Ministerial Council means the Ministerial Council which— (a) is constituted from time to time by Ministers of the Crown of the Commonwealth, State and Territory Governments; and (b) is responsible for early childhood education and care matters; National Authority means the Australian Children's Education and Care Quality Authority established under this Law; national education and care services quality framework means— (a) this Law; and (b) the national regulations; and (c) the National Quality Standard; and (d) the prescribed rating system; National Partnership Agreement means the National Partnership Agreement on the National Quality Agenda for Early Childhood and Care entered into by the States and Territories and the Commonwealth on 7 December 2009, as amended from time to time; National Quality Framework means the national education and care services quality framework; National Quality Standard means the National Quality Standard prescribed by the national regulations; national regulations means the regulations made under this Law; nominated supervisor, in relation to an education and care service, means an individual who— (a) is nominated by the approved provider of the service under Part 3 to be a nominated supervisor of that service; and (b) unless the individual is the approved provider, has provided written consent to that nomination; office, in relation to a family day care service, means— (a) the principal office of the service; or (b) the principal office of the approved provider of the service; or (c) any other business office of the approved provider of the service; or (d) any premises of the service from which the service's family day care educators are co-ordinated; parent, in relation to a child, includes— (a) a guardian of the child; and (b) a person who has parental responsibility for the child under a decision or order of a court; Part 4 building means— (a) a building that has 3 or more storeys (including the ground level and each level of a split level); or (b) a building of a prescribed class; Part 4 building law, in relation to a participating jurisdiction, means a law declared by or under a law of that jurisdiction to be a Part 4 building law; Part 4 jurisdiction means a participating jurisdiction in which Part 4 of this Law applies; Note See section 105. Part 4 planning law, in relation to a participating jurisdiction, means a law declared by or under a law of that jurisdiction to be a Part 4 planning law; participating jurisdiction means a State or Territory in which— (a) this Law applies as a Law of the State or Territory; or (b) a law that substantially corresponds to the provisions of this Law has been enacted; payment, in relation to a prescribed fee, includes payment by electronic or other means; person means— (a) an individual; or (b) a body corporate; or (c) an eligible association; or (d) a partnership; or (e) a prescribed entity; person in day-to-day charge, in relation to an education and care service, means a person who is placed in day-to-day charge of the service in accordance with the national regulations; person with management or control means a person referred to in section 5A; personal arrangement means education and care provided to a child— (a) by a family member or guardian of a child personally, otherwise than as a staff member of, or under an engagement with, a service providing education and care on a regular basis to children under 13 years of age; or (b) by a friend of the family of the child personally under an informal arrangement where no offer to provide that education and care was advertised; preschool program means an early childhood educational program delivered by a qualified early childhood teacher to children in the year that is 2 years before grade 1 of school; prescribed ineligible person means a person in a class of persons prescribed by the national regulations to be prescribed ineligible persons; prohibition notice means a prohibition notice given under section 182(1) or 182(3); protected disclosure—see section 296; provider approval means a provider approval— (a) granted under Part 2 of this Law or this Law as applying in another participating jurisdiction; and (b) as amended under this Law or this Law as applying in another participating jurisdiction— but does not include a provider approval that has been cancelled; public sector law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a public sector law for the purposes of this Law; rating assessment means an assessment or reassessment of an approved education and care service under Part 5; Ratings Review Panel means a Ratings Review Panel established under section 146; receiving approved provider has the meaning set out in section 58; Regulatory Authority means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction; relevant Commonwealth Department means the government department administered by the Commonwealth Minister; relevant tribunal or court, in relation to a participating jurisdiction, means the tribunal or court declared by a law of that jurisdiction to be the relevant tribunal or court for the purposes of this Law or a provision of this Law; residence means the habitable areas of a dwelling; school children includes children attending school in the year before grade 1; school means— (a) a government school; or (b) a non-government school that is registered or accredited under an education law of a participating jurisdiction; serious detrimental action—see section 296; serious incident means an incident or class of incidents prescribed by the national regulations as a serious incident; service approval means a service approval— (a) granted under Part 3 of this Law or this Law as applying in another participating jurisdiction; and (b) as amended under this Law or this Law as applying in another participating jurisdiction— but does not include a service approval that has been cancelled; staff member, in relation to an education and care service, means any individual (other than a nominated supervisor or a volunteer) employed, appointed or engaged to work in or as part of an education and care service, whether as family day care co-ordinator, educator or otherwise; transferring approved provider has the meaning set out in section 58; working with children card means a card issued to a person under a working with children law of a participating jurisdiction that permits that person to work with children; working with children check means a notice, certificate or other document granted to, or with respect to, a person under a working with children law to the effect that— (a) the person has been assessed as suitable to work with children; or (b) there has been no information that if the person worked with children the person would pose a risk to the children; or (c) the person is not prohibited from attempting to obtain, undertake or remain in child-related employment; working with children law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a working with children law for the purposes of this Law; working with vulnerable people law, in relation to a participating jurisdiction, means a law declared by a law of that jurisdiction to be a working with vulnerable people law for the purposes of this Law. (2) In this Law, a reference (either generally or specifically) to a law or a provision of a law (including this Law) includes a reference to the statutory instruments made or in force under the law or provision. (3) In this Law a reference to education and care includes a reference to education or care. (4) In this Law, an education and care service as defined in subsection (1) is an education and care service even if the service also provides education and care to children of or over the age of 13 years. (5) In this Law, a children's service as defined in subsection (1) is a children's service even if the service also provides education and care to children of or over the age of 13 years. (6) In this Law, a reference to this Law as applying in a jurisdiction includes a reference to a law that substantially corresponds to this Law enacted in a jurisdiction. 5A Meaning of person with management or control For the purposes of this Law, each of the following persons is a person with management or control of an education and care service— (a) if the provider or intended provider of the service is a body corporate— (i) an officer (within the meaning of the Corporations Act 2001 of the Commonwealth) of the body corporate who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and (ii) any other person who— (A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or (B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; (b) if the provider or intended provider of the service is an eligible association— (i) each member of the executive committee of the association who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and (ii) any other person who— (A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or (B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; (c) if the provider or intended provider of the service is a partnership— (i) each partner who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; and (ii) any other person who— (A) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or (B) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service; (d) in any other case, any person who— (i) is a member of the group of persons responsible for the executive decisions made in relation to the education and care service; or (ii) has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service. 6 Interpretation generally (1) Schedule 1 applies in relation to this Law. (2) The National Partnership Agreement is declared to be a relevant document for the purposes of paragraph (h) of the definition of extrinsic material in clause 8(1) of Schedule 1. 7 Single national entity (1) It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of other participating jurisdictions, has the effect that an entity established by this Law is one single national entity, with functions conferred by this Law as so applied. (2) An entity established by this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction. (3) An entity established by this Law may exercise its functions in relation to— (a) one participating jurisdiction; or (b) 2 or more or all participating jurisdictions collectively. (4) (Repealed) 8 Extraterritorial operation of Law It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following— (a) things situated in or outside the territorial limits of this jurisdiction; (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction. 9 Law binds the State (1) This Law binds the State. (2) In this section— State means the Crown in right of this jurisdiction, and includes— (a) the Government of this jurisdiction; and (b) a Minister of the Crown in right of this jurisdiction; and (c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction. Part 2 Provider approval Division 1 Application for provider approval 10 Application for provider approval (1) A person, other than a prescribed ineligible person, may apply to the Regulatory Authority for a provider approval. (2) An application may be made by more than one person. (3) If an application is made by more than one person— (a) the prescribed information must be provided in respect of each person; and (b) the requirements of this Division must be complied with by and in respect of each person. 11 Form of application An application under section 10 must— (a) be made to the Regulatory Authority of the participating jurisdiction— (i) in which the applicant, or any of the applicants, is ordinarily resident; or (ii) if the applicant or applicants are not individuals, in which the principal office of the applicant or any of the applicants is located; and (b) be in writing; and (c) include the prescribed information; and (d) include payment of the prescribed fee. 12 Applicant must be fit and proper person (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— (a) 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 (b) the applicant is a fit and proper person to be involved in the provision of an education and care service. (3) The head of a government department administering an education law of a participating jurisdiction is taken to be a fit and proper person for the purposes of this Part. 13 Matters to be taken into account in assessing whether fit and proper person (1) In determining whether a person is a fit and proper person under this Division, the Regulatory Authority must have regard to— (a) the person's history of compliance with— (i) this Law as applying in any participating jurisdiction; and (ii) a former education and care services law of a participating jurisdiction; and (iii) a children's services law of a participating jurisdiction; and (iv) an education law of a participating jurisdiction; and Note— If a person has been served with an infringement notice for an offence under this Law, and the person has paid the penalty, the Regulatory Authority cannot consider that conduct when determining whether the person is fit and proper. See section 291(5). (b) any decision under a former education and care services law, a children's services law or an education law of a participating jurisdiction to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification or other authorisation granted to the person under that law; and (c) either— (i) any prescribed matters relating to the criminal history of the person to the extent that history may affect the person's suitability for the role of provider of an education and care service; or (ii) any check of the person under a working with vulnerable people law of a participating jurisdiction; and (d) whether the person is bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors or, in the case of a body corporate, is insolvent under administration or an externally-administered body corporate. (2) Without limiting subsection (1), the Regulatory Authority may have regard to— (a) whether the person has a medical condition that may cause the person to be incapable of being responsible for providing an education and care service in accordance with this Law; and (b) whether the financial circumstances of the person may significantly limit the person's capacity to meet the person's obligations in providing an education and care service in accordance with this Law; and. (c) whether the person has the management capability to operate an education and care service in accordance with this Law; and (d) any of the following actions taken under the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth in relation to a child care service approved under that Act, operated by the person or in relation to which the person was a person with management or control— (i) any sanction imposed under section 200 of that Act; (ii) any suspension imposed under section 201A of that Act; (iii) any infringement notice given under section 219TSI of that Act. (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. 14 Regulatory Authority may seek further information (1) For the purpose of carrying out an assessment as to whether a person is a fit and proper person, the Regulatory Authority may— (a) ask the person to provide further information, including for the purposes of assessing the person's knowledge of the National Quality Framework; and (b) undertake inquiries in relation to the person; and (c) by written notification, require the person to undergo an oral or written assessment of the person's knowledge of the National Quality Framework. (2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application. (3) If the Regulatory Authority requires the applicant to undergo an assessment under this section, the period from the giving of the notification until the conduct of the assessment is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application. 15 Grant or refusal of provider approval (1) On an application under section 10, the Regulatory Authority may— (a) grant the provider approval; or (b) refuse to grant the provider approval. Note— A provider approval is granted subject to conditions in accordance with section 19. (2) The Regulatory Authority must not grant a provider approval unless the Authority is satisfied as to the matters in section 12. (3) Subject to subsection (4), the Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application. Notes 1. If further information is requested under section 14(1)(a), the period between the making of the request and the provision of the information is not included in the 60 day period. 2. If an assessment is required under section 14(1)(c), the period between the giving of the notification and the conduct of the assessment is not included in the 60 day period. (4) The period referred to in subsection (3) may be extended by up to 30 days with the agreement of the applicant. (5) The Regulatory Authority is taken to have refused to grant a provider approval if the Regulatory Authority has not made a decision under subsection (1)— (a) within the relevant period required under subsection (3); or (b) within the period extended under subsection (4)— as the case requires. 16 Notice of decision on application The Regulatory Authority must give written notice to the applicant of a decision under section 15 and the reasons for that decision within 7 days after the decision is made. 17 Duration of provider approval A provider approval granted under section 15 continues in force until it is cancelled or surrendered under this Law, or this Law as applying in a participating jurisdiction. 18 Effect of provider approval A provider approval authorises the approved provider to operate an approved education and care service and an associated children's service if the approved provider is the holder of the service approval for those services. 19 Conditions on provider approval (1) A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority. (2) Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law. (3) A condition of a provider approval applies to the provider as the operator of any education and care service or associated children's service, unless the condition expressly provides otherwise. (4) An approved provider must comply with the conditions of the provider approval. Penalty— $11 400, in the case of an individual. $57 400, in any other case. 20 Copy of provider approval If the Regulatory Authority grants a provider approval under this Part, the Regulatory Authority must provide a copy of the provider approval to the approved provider stating— (a) the name of the approved provider; and (b) if the approved provider is not an individual, the address of the principal office of the provider; and (c) any conditions to which the approval is subject; and (d) the date that the provider approval was granted; and (e) the provider approval number; and (f) any other prescribed matters. Division 2 Reassessment 21 Reassessment of fitness and propriety (1) The Regulatory Authority may at any time assess— (a) whether an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or (b) whether a person with management or control of an education and care service operated by an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or (c) whether a person who becomes a person with management or control of an education and care service operated by the approved provider after the grant of the provider approval is a fit and proper person to be involved in the provision of an education and care service. (2) Sections 13 and 14 apply to the reassessment. Division 3 Amendment of provider approvals 22 Amendment of provider approval on application (1) An approved provider may apply to the Regulatory Authority for an amendment of the provider approval. (2) The application must— (a) be in writing; and (b) include the prescribed information; and (c) include payment of the prescribed fee. (3) The Regulatory Authority must decide the application by— (a) amending the provider approval in the way applied for; or (b) with the applicant's written agreement, amending the provider approval in another way; or (c) refusing to amend the provider approval. (4) The Regulatory Authority must make a decision on the application within 30 days after the Regulatory Authority receives the application. (5) Without limiting subsection (3), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval. 23 Amendment of provider approval by Regulatory Authority (1) The Regulatory Authority may amend a provider approval at any time without an application from the approved provider. (2) Without limiting subsection (1), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval. (3) The Regulatory Authority must give written notice to the approved provider of the amendment. (4) An amendment under this section has effect— (a) 14 days after the Regulatory Authority gives notice of the amendment under subsection (3); or (b) if another period is specified by the Regulatory Authority, at the end of that period. 24 Copy of amended provider approval to be provided If the Regulatory Authority amends a provider approval under this Division, the Regulatory Authority must— (a) provide an amended copy of the provider approval to the approved provider; and (b) make any necessary amendments to any service approval held by the provider and provide an amended copy of the service approval to the approved provider. Division 4 Suspension or cancellation of provider approval 25 Grounds for suspension of provider approval The Regulatory Authority may suspend a provider approval if— (a) the approved provider has been charged with an indictable offence, or with an offence that if committed in this jurisdiction would be an indictable offence, or any other circumstance indicates that the approved provider may not be a fit and proper person to be involved in the provision of an education and care service; or (b) the approved provider has failed to comply with a condition of the provider approval; or (c) the approved provider has failed to comply with this Law as applying in any participating jurisdiction; or (d) action is being taken under Part 7 (other than a compliance direction) in respect of more than one education and care service operated by the approved provider; or (e) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension); or (f) the approved provider purported to transfer or receive a transfer of an approved education and care service without the consent of the Regulatory Authority; or (g) the approved provider has not paid any outstanding prescribed fees; or (h) under section 195H(1)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth, the approved provider's approval as a provider has been cancelled for the reason that the approved provider has not satisfied, or is not satisfying, the provider eligibility rules in section 194C(b), (c) or (d) of that Act; or Note It is a condition for continued approval of an approved provider that the approved provider continues to satisfy the provider eligibility rules—see section 195A(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth. (i) the approved provider has been refused approval as a provider under section 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth for the reason that the provider does not satisfy the provider eligibility rules in section 194C(b), (c) or (d) of that Act. Note The Secretary must refuse to approve a provider if the Secretary is not satisfied that the provider satisfies the provider eligibility rules—see section 194B(1)(a) and (6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth. 26 Show cause notice before suspension (1) This section applies if the Regulatory Authority is considering the suspension of a provider approval under section 25. (2) The Regulatory Authority must first give the approved provider a notice (show cause notice) stating— (a) that the Regulatory Authority intends to suspend the provider approval; and (b) the proposed period of suspension; and (c) the reasons for the proposed suspension; and (d) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed suspension. 27 Decision to suspend after show cause process After considering any written response from the approved provider received within the time allowed by section 26(2)(d), the Regulatory Authority may— (a) if the suspension was proposed on a ground referred to in section 25(a), accept an undertaking from the approved provider under section 179A; or (b) in any case— (i) suspend the provider approval for a period not more than the prescribed period; or (ii) decide not to suspend the provider approval. 28 Suspension without show cause notice (1) The Regulatory Authority may suspend the provider approval on a ground referred to in section 25 without giving the approved provider a show cause notice under section 26 if the Regulatory Authority is satisfied that there is an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by an education and care service operated by the provider. (2) The suspension may not be for a period of more than 6 months. 29 Notice and taking effect of suspension (1) The Regulatory Authority must give the approved provider written notice of the decision to suspend the provider approval. (2) The notice of a decision to suspend must set out the period of suspension and the date on which it takes effect. (3) The decision under section 27 to suspend takes effect at the end of 14 days after the date of the decision, or, if another period is specified by the Regulatory Authority, at the end of that period. (4) The decision under section 28 to suspend takes effect on the giving of the notice. 30 Effect of suspension (1) Subject to this section, if a provider approval is suspended under section 27 or 28 of this Law as applying in any participating jurisdiction, all service approvals held by the provider are also suspended for the same period. (2) A suspension under subsection (1) applies to both education and care services and any associated children's services. (3) A person whose provider approval is suspended is taken not to be an approved provider for the period of the suspension. (4) A service approval is not suspended under subsection (1) during any period that a person is approved under section 41 to manage or control the education and care service. (5) The Regulatory Authority may consent under Part 3 to the transfer of a service approval that is suspended under section 27 or 28. (6) The suspension of the service approval ceases on the transfer taking effect, unless the conditions imposed by the Regulatory Authority on the consent to the transfer specify a later date. 31 Grounds for cancellation of provider approval The Regulatory Authority may cancel a provider approval if— (a) the Regulatory Authority is satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or (b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or (c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or (d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or (e) the approved provider has breached a condition of the provider approval; or (f) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension); or (g) under section 195H(1)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth, the approved provider's approval as a provider has been cancelled for the reason that the approved provider has not satisfied, or is not satisfying, the provider eligibility rules in section 194C(b), (c) or (d) of that Act; or Note It is a condition for continued approval of an approved provider that the approved provider continues to satisfy the provider eligibility rules—see section 195A(1)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth. (h) the approved provider has been refused approval as a provider under section 194B(6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth for the reason that the provider does not satisfy the provider eligibility rules in section 194C(b), (c) or (d) of that Act. Note The Secretary must refuse to approve a provider if the Secretary is not satisfied that the provider satisfies the provider eligibility rules—see section 194B(1)(a) and (6) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth. 32 Show cause notice before cancellation (1) This section applies if the Regulatory Authority is considering the cancellation of a provider approval under section 31. (2) The Regulatory Authority must first give the approved provider a notice (show cause notice) stating— (a) that the Regulatory Authority intends to cancel the provider approval; and (b) the reasons for the proposed cancellation; and (c) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed cancellation. 33 Decision in relation to cancellation (1) After considering any written response from the approved provider received within the time allowed under section 32(2)(c), the Regulatory Authority— (a) may— (i) cancel the provider approval; or (ii) suspend the provider approval for a period not more than the prescribed period; or (iii) decide not to cancel the provider approval; and (b) must give the approved provider written notice of the decision. (2) The decision to cancel the provider approval takes effect at the end of 14 days after the date of the decision or, if another period is specified by the Regulatory Authority, at the end of that period. (3) The notice of a decision to cancel the provider approval must set out the date on which it takes effect. (4) This Law applies to a suspension of a provider approval under this section as if it were a suspension under section 27. 34 Effect of cancellation (1) Subject to this section, if a provider approval is cancelled under section 33 of this Law as applying in any participating jurisdiction, all service approvals held by the person who was the approved provider are also cancelled. (2) A cancellation under subsection (1) applies to both education and care services and any associated children's services. (3) A service approval is not cancelled under subsection (1) if before that cancellation a person is approved under section 41 to manage or control the education and care service. (4) A service approval is cancelled if a person referred to in subsection (3) ceases to manage or control the service. (5) A provider whose provider approval is to be cancelled under section 33 may apply to the Regulatory Authority under Part 3 for consent to transfer a service approval held by the provider. (6) The application for consent to transfer must be made within 14 days after the date of the decision to cancel the provider approval is made. (7) If an application for consent to transfer is made, the service approval is suspended until the Regulatory Authority determines the application. (8) The suspension of the service approval ceases on the transfer taking effect, unless the conditions of the transfer specify a later date. (9) If the Regulatory Authority refuses to consent to the transfer, the service approval is cancelled on the making of the decision to refuse consent. 35 Approved provider to provide information to Regulatory Authority (1) This section applies if a show cause notice has been given to an approved provider under section 26 or 32. (2) The approved provider, at the request of the Regulatory Authority, must, within 7 days of the request, provide the Regulatory Authority with the contact details of the parents of all children enrolled at each education and care service operated by the approved provider. (3) The Regulatory Authority may use the information provided under subsection (2) solely to notify the parents of children enrolled at an education and care service about the suspension or cancellation. 36 Notice to parents of suspension or cancellation (1) This section applies if a provider approval has been suspended or cancelled under section 27, 28, 33 or 34. (2) The Regulatory Authority may require the person who is or was the approved provider to give written notice of the suspension or cancellation and its effect to the parents of children enrolled at all or any of the education and care services operated by that person. (3) A person must comply with a requirement made of that person under subsection (2). Penalty— $3400, in the case of an individual. $17 200, in any other case. 37 Voluntary suspension of provider approval (1) An approved provider may apply to the Regulatory Authority for a suspension of the provider approval for a period of not more than 12 months. (2) The application must— (a) be in writing; and (b) include the prescribed information; and (c) include payment of the prescribed fee. (3) The approved provider must, at least 14 days before making an application under this section, notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to make the application. (4) The Regulatory Authority must within 30 days after the application is made decide whether or not to grant the application. (5) The Regulatory Authority must give written notice of its decision (including the period of suspension) to the approved provider. (6) If the Regulatory Authority decides to grant the application, the suspension takes effect on a date agreed between the Regulatory Authority and the approved provider. (7) A suspension under this section remains in force for the period of time specified in the notice. (8) The approved provider may apply to the Regulatory Authority to revoke the suspension before the end of the suspension period. (9) If the Regulatory Authority grants the application to revoke the suspension, the suspension ceases on the date determined by agreement with the approved provider. (10) If a provider approval is suspended under this section, each service approval held by the provider is also suspended for the same period unless— (a) a person is approved under section 41 to manage or control the education and care service to which the approval relates; or (b) the service approval is transferred under Division 3 of Part 3. 38 Surrender of provider approval by approved provider (1) An approved provider may surrender the provider approval by written notice to the Regulatory Authority. (2) The notice must specify a date on which the surrender is intended to take effect which must be— (a) after the notice is given; and (b) after the end of the period of notice required under subsection (3). (3) The approved provider must notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to surrender the provider approval, at least 14 days before the surrender is intended to take effect. (4) If a provider approval is surrendered, the approval is cancelled on the date specified in the notice. (5) If a provider approval is surrendered, any service approval held by the provider is also taken to be surrendered. Note— If a service approval is surrendered, it is cancelled—see section 86. A cancelled service approval cannot be transferred—see definition of service approval and also Division 3 of Part 3. Division 5 Approval of executor, representative or guardian as approved provider 39 Death of approved provider (1) This section applies if an approved provider dies. (2) A nominated supervisor or a person in day to-day charge of an education and care service of the approved provider must notify the Regulatory Authority of the approved provider's death within 7 days after that death. (3) The executor of the estate of the approved provider may continue to operate any approved education and care service of the approved provider for the relevant period provided that at least one nominated supervisor continues to manage the day-to-day operation of the service. (4) The executor of the estate of the approved provider may transfer, surrender or apply for suspension of a service approval of the approved provider under this Law during the relevant period as if the executor were the approved provider. (5) The executor of the estate of the approved provider may apply to the Regulatory Authority for a provider approval. (6) The application must be made within 30 days of the death of the approved provider and must— (a) be in writing; and (b) include the prescribed information; and (c) include payment of the prescribed fee. (7) In this section relevant period means— (a) the period of 30 days after the death of the approved provider; or (b) if the executor of the estate of the approved provider makes an application under subsection (5) within that period, until the application is finally determined under this Law. 40 Incapacity of approved provider (1) This section applies if an approved provider has become incapacitated. (2) The legal personal representative or guardian of an approved provider may apply to the Regulatory Authority for a provider approval. (3) The application must— (a) be in writing; and (b) include the prescribed information; and (c) include payment of the prescribed fee. 41 Decision on application (1) The Regulatory Authority must not grant a provider approval to a person who has made an application under section 39 or 40 unless the Regulatory Authority is satisfied that the person is a fit and proper person to be involved in the provision of an education and care service. (2) Sections 12, 13 and 14 apply to the assessment of a person under subsection (1). (3) Subject to this section, the Regulatory Authority may— (a) grant the provider approval; or (b) grant the provider approval subject to conditions; or (c) refuse to grant the provider approval. (4) An approval under this section— (a) may be granted for a period of not more than 6 months; and (b) may be extended or further extended for periods of not more than 6 months— at the discretion of the Regulatory Authority. (5) The provider approval is granted only in relation to the operation of the approved education and care services of the approved provider for whom the applicant is the executor, legal personal representative or guardian, as the case requires. Division 6 Exercise of powers by another Regulatory Authority 42 Exercise of powers by another Regulatory Authority (1) This section applies if the Regulatory Authority has granted a provider approval under this Part. (2) A Regulatory Authority of another participating jurisdiction may exercise all of the powers and perform all of the functions of the Regulatory Authority under this Part (except Division 5) in respect of the provider approval if the approved provider operates an approved education and care service in that participating jurisdiction. (3) A Regulatory Authority (including the Regulatory Authority of this jurisdiction) may only exercise a power to amend, suspend or cancel a provider approval after consulting with the Regulatory Authority of each participating jurisdiction in which the approved provider operates an approved education and care service. (4) A failure by a Regulatory Authority to comply with subsection (3) does not affect the validity of the exercise of the power. (5) A cancellation or suspension of a provider approval in another participating jurisdiction has effect in this jurisdiction. Part 3 Service approval Division 1 Application for service approval 43 Application for service approval (1) An approved provider may apply to the Regulatory Authority for a service approval for an education and care service. (2) An approved provider may only apply for a service approval for an education and care service if the approved provider is or will be the operator of the education and care service and is or will be responsible for the management of the staff members and nominated supervisors of that service. (3) A person who has applied for a provider approval may apply to the Regulatory Authority for a service approval, however the Regulatory Authority must not grant the service approval unless the provider approval is granted. Note Mandatory approval in principle jurisdictions require an approved provider to hold an approval in principle under Part 4 for the education and care service premises as a precondition of service approval. See section 49A. 44 Form of application (1) An application for a service approval must— (a) be made to the Regulatory Authority of the participating jurisdiction in which the service is to be located; and (b) be in writing; and (c) include the prescribed information; and (d) nominate one or more individuals to be nominated supervisors of the service; and (da) include from each nominated individual (other than the approved provider) the written consent to the nomination; and (e) include payment of the prescribed fee. (2) An application for service approval may include an associated children's service. (3) An application for a service approval for a family day care service may include a request for approval of a place (other than a residence) as a family day care venue for that service. Note— This approval is granted under section 50A only if exceptional circumstances exist. 45 Regulatory Authority may seek further information (1) The Regulatory Authority may ask an applicant for a service approval to provide any further information that is reasonably required for the purpose of assessing the application. (2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 48 for the Regulatory Authority to make a decision on the application. 46 Investigation of application for service approval (1) For the purposes of determining an application for a service approval, the Regulatory Authority may— (a) undertake inquiries and investigations, including inquiries relating to the previous licensing, accreditation or registration of the education and care service under a former education and care services law, a children's services law or an education law of any participating jurisdiction; and (b) inspect the education and care service premises; and (c) inspect the policies and procedures of the service. (2) For the purposes of an inspection under subsection (1)(b) or (c), the Regulatory Authority may enter the education and care service premises at any reasonable time. 47 Determination of application (1) Subject to subsection (3), in determining an application under section 43, the Regulatory Authority must have regard to— (a) the National Quality Framework; and (b) except in the case of a family day care residence, the suitability of the education and care service premises and the site and location of those premises for the operation of an education and care service; and (ba) any approval in principle held by the approved provider for the education and care service premises, and whether the premises were constructed, altered or repaired in accordance with the plans, drawings or specifications attached to, or described in, the approval in principle; and Note The approval in principle process in Part 4 only applies to certain premises in certain participating jurisdictions. See section 105. (c) the adequacy of the policies and procedures of the service; and (d) whether the applicant has a provider approval; and (e) except in the case of a nominated supervisor who is the approved provider, whether each nominated supervisor has consented in writing to the nomination; and (f) any other matter the Regulatory Authority thinks fit; and (g) any other prescribed matter. (2) In addition, the Regulatory Authority may have regard to either of the following— (a) whether the applicant is capable of operating the education and care service having regard to its financial capacity and management capability and any other matter the Regulatory Authority considers relevant; (b) the applicant's history of compliance with this Law or this Law as applying in any participating jurisdiction, including in relation to any other education and care service it operates. (3) Subject to subsection (4), in assessing an associated children's service for the purposes of determining whether to grant a service approval, the Regulatory Authority must have regard to the criteria under the children's services law of this jurisdiction for the grant of a children's services licence. (4) The criteria referred to in subsection (3) do not include criteria relating to whether the applicant is a fit and proper person. 48 Grant or refusal of service approval (1) On an application under section 43, the Regulatory Authority may— (a) grant the service approval; or (b) refuse to grant the service approval. Note— A service approval is granted subject to conditions in accordance with section 51. (2) Subject to subsection (3), the Regulatory Authority must make a decision on the application within 90 days after the Regulatory Authority received the application. Note— If further information is requested under section 45(2), the period between the making of the request and the provision of the information is not included in the 90 day period. (3) The period referred to in subsection (2) may be extended with the agreement of the applicant. (4) The Regulatory Authority may grant a service approval solely for an education and care service if— (a) the application includes an application for an associated children's service; and (b) that associated children's service does not