New South Wales: 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, 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 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 is delivered through the use of 2 or more educators to provide education and care for children in residences whether or not the service also provides education and care to children at a place other than a residence; 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; Ministerial Council means the Ministerial Council consisting of the persons who from time to time hold office as Ministers of the Crown responsible for early childhood education or care in the governments of the States and Territories and the Commonwealth; 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 a person— (a) who is a certified supervisor; and (b) who is nominated by the approved provider of the service under Part 3 to be the nominated supervisor of that service; and (c) who has consented to that nomination; Note— A person may be both the nominated supervisor of a family day care service and the family day care co-ordinator for that service if the person meets the criteria for each role. office, in relation to a family day care service, means— (a) the principal office or any other business office of the approved provider of the service; or (b) any premises of the service from which its 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; 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 with management or control, in relation to an education and care service, means— (a) if the provider or intended provider of the service is a body corporate, an officer of the body corporate within the meaning of the Corporations Act 2001 of the Commonwealth who is responsible for managing the delivery of the education and care service; or (b) if the provider of the service is an eligible association, each member of the executive committee of the association who has the responsibility, alone or with others, for managing the delivery of the education and care service; or (c) if the provider of the service is a partnership, each partner who has the responsibility, alone or with others, for managing the delivery of the education and care service; or (d) in any other case, a person who has the responsibility, alone or with others, for managing the delivery of the education and care service; 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; 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; 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 the 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; supervisor certificate means a supervisor certificate— (a) issued under Part 4 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 supervisor certificate that has been cancelled; 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 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. 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— (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. (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; and (b) undertake inquiries in relation to the person. (2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request and 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. 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. Note— If further information is requested under section 14(3), the period between the making of the request and the provision of the information 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. 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 (2); 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. 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) suspend the provider approval for a period not more than the prescribed period; or (b) 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). 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)