South Australia: Education and Early Childhood Services (Registration and Standards) Act 2011 (SA)

South Australia Education and Early Childhood Services (Registration and Standards) Act 2011 An Act to provide for a national legislative scheme regulating the provision of education and care services; to make provision for local matters associated with the provision of education and care services; to ensure the provision of quality education services to children in the State by providing for the registration of providers of such services; to regulate the provision of education services and early childhood services for the purpose of maintaining high standards of competence and conduct by providers; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Early childhood services 5 Parts of Act not to apply in relation to certain services 6 Governing authority 7 Limitation of liability for volunteer members of governing authorities 8 Responsible authorities 9 Objects and principles Part 2—Adoption of Education and Care Services National Law 10 Application of Education and Care Services National Law 11 Amendments to Law to maintain national consistency 12 Exclusion of legislation of this jurisdiction 13 Meaning of certain terms in Education and Care Services National Law (South Australia) for the purposes of this jurisdiction 13A Working with children checks 14 Penalty at end of provision 15 Tabling of annual report Part 3—Application of Education and Care Services National Law (South Australia) to residual early childhood services providers 16 Application of Education and Care Services National Law (South Australia) to residual early childhood services providers 17 Exemption from certain provisions of Education and Care Services National Law (South Australia) Part 4—Administration Division 1—The Minister 18 Functions of Minister 19 Ministerial directions 20 Power of delegation Division 2—The Education and Early Childhood Services Registration and Standards Board of South Australia Subdivision 1—The Board 21 Establishment of Board 22 Composition of Board 23 Conditions of membership 24 Casual vacancies 25 Allowances and expenses 26 Validity of acts Subdivision 2—Registrars and staff 27 Registrars of Board 28 Staff of Board Subdivision 3—Functions of Board 29 Functions of Board 30 Complaint made directly to Board to be referred to school 31 Committees 32 Power of delegation Subdivision 4—Board's procedures 33 Board's procedures 34 Conflict of interest etc under Public Sector (Honesty and Accountability) Act 1995 35 Powers of Board in relation to witnesses etc 36 Principles governing proceedings 37 Representation at proceedings before Board 38 Costs Subdivision 5—Financial matters, audit and annual report 39 Accounts and audit 40 Annual report Part 5—Registration of schools Division 1—Registers 41 Registers Division 2—Registration on schools register 42 Schools to be registered 43 Registration on schools register 44 Board may impose conditions on registration 45 Certificates of registration 46 Removal from schools register 47 Board may cancel registration if education services not provided 48 Reinstatement on schools register 49 Endorsement of registration with approval to enrol full fee paying overseas students 50 Removal of endorsement Division 3—Offences 51 Procurement of registration by fraud 52 Improper directions to another member of governing authority 53 Illegal holding out Division 4—Review of registration 54 Review of registration Part 6—Record keeping and information gathering Division 1—Records to be kept by registered schools 55 Interpretation 56 Records to be kept by registered schools Division 2—Information gathering 57 Board may require information Part 7—Disciplinary proceedings Division 1—Preliminary 58 Application of Part 59 Interpretation 60 Cause for disciplinary action Division 2—Constitution of Board for purpose of proceedings 61 Constitution of Board for purpose of proceedings Division 3—Proceedings before Board 62 Inquiries by Board as to matters constituting grounds for disciplinary action 63 Contravention etc of condition 64 Contravention of prohibition order 65 Register of prohibition orders 66 Variation or revocation of conditions imposed by Board 67 Further provisions as to proceedings before Board under this Part Part 8—Enforcement 68 Authorised officers 69 Powers of authorised officers 70 Offence to hinder etc authorised officers Part 9—Review and appeal Division 1—Internal review 71 Internal review of certain decisions of Board Division 2—Appeal 72 Right of appeal to District Court 73 Operation of order may be suspended 74 Variation or revocation of conditions imposed by District Court Part 10—Miscellaneous 75 Use of certain terms or descriptions prohibited 76 Exemptions 77 Statutory declarations 78 False or misleading statement 79 Victimisation 80 Self‑incrimination 81 Punishment of conduct that constitutes offence 82 Continuing offence 83 Offences by bodies corporate 84 General defence 85 Immunity of persons engaged in administration of Act 86 Application of fines 87 Confidentiality 88 Service 89 Evidentiary provision 90 Regulations Schedule 1—Education and Care Services National Law Part 1—Preliminary 1 Short title 2 Commencement 3 Objectives and guiding principles 4 How functions to be exercised 5 Definitions 5A Meaning of person with management or control 6 Interpretation generally 7 Single national entity 8 Extraterritorial operation of Law 9 Law binds the State Part 2—Provider approval Division 1—Application for provider approval 10 Application for provider approval 11 Form of application 12 Applicant must be fit and proper person 13 Matters to be taken into account in assessing whether fit and proper person 14 Regulatory Authority may seek further information 15 Grant or refusal of provider approval 16 Notice of decision on application 17 Duration of provider approval 18 Effect of provider approval 19 Conditions on provider approval 20 Copy of provider approval Division 2—Reassessment 21 Reassessment of fitness and propriety Division 3—Amendment of provider approvals 22 Amendment of provider approval on application 23 Amendment of provider approval by Regulatory Authority 24 Copy of amended provider approval to be provided Division 4—Suspension or cancellation of provider approval 25 Grounds for suspension of provider approval 26 Show cause notice before suspension 27 Decision to suspend after show cause process 28 Suspension without show cause notice 29 Notice and taking effect of suspension 30 Effect of suspension 31 Grounds for cancellation of provider approval 32 Show cause notice before cancellation 33 Decision in relation to cancellation 34 Effect of cancellation 35 Approved provider to provide information to Regulatory Authority 36 Notice to parents of suspension or cancellation 37 Voluntary suspension of provider approval 38 Surrender of provider approval by approved provider Division 5—Approval of executor, representative or guardian as approved provider 39 Death of approved provider 40 Incapacity of approved provider 41 Decision on application Division 6—Exercise of powers by another Regulatory Authority 42 Exercise of powers by another Regulatory Authority Part 3—Service approval Division 1—Application for service approval 43 Application for service approval 44 Form of application 45 Regulatory Authority may seek further information 46 Investigation of application for service approval 47 Determination of application 48 Grant or refusal of service approval 49 Grounds for refusal 49A Additional ground for refusal in certain participating jurisdictions—mandatory approval in principle 50 Notice of decision on application 50A Approval of a place as a family day care venue 51 Conditions on service approval 52 Copy of service approval to be provided 53 Annual fee Division 2—Amendment of service approval 54 Amendment of service approval on application 55 Amendment of service approval by Regulatory Authority 55A Condition relating to family day care co‑ordinators 56 Notice of addition of nominated supervisor 56A Notice of change of a nominated supervisor's name or contact details 57 Copy of amended service approval to be provided Division 3—Transfer of service approval 58 Service approval may be transferred 59 Regulatory Authority to be notified of transfer 59A Further notification required in case of delay to transfer date 60 Consent of Regulatory Authority required for transfer 61 Consent taken to be given unless Regulatory Authority intervenes 62 Transfer may be subject to intervention by Regulatory Authority 63 Effect of intervention 64 Regulatory Authority may request further information 65 Decision after intervention 66 Regulatory Authority to notify outcome 10 days before transfer 67 Transfer of service approval without consent is void 67A Request for earlier transfer date after consent given to transfer 68 Confirmation of transfer 69 Notice to parents Division 4—Suspension or cancellation of service approval 70 Grounds for suspension of service approval 71 Show cause notice before suspension 72 Decision in relation to suspension 73 Suspension of service approval without show cause 74 Notice and effect of decision 75 Suspension of service approval to the extent that it relates to associated children's service 76 Transfer of suspended service 77 Grounds for cancellation of service approval 78 Show cause notice before cancellation 79 Decision in relation to cancellation 80 Cancellation of service approval to the extent that it relates to associated children's service 81 Application for transfer of cancelled service 82 Decision on application to transfer cancelled service 83 Approved provider to provide information to Regulatory Authority 84 Notice to parents of suspension or cancellation 85 Voluntary suspension of service approval 86 Surrender of service approval Division 5—Application for service waiver 87 Application for service waiver for service 88 Form of application 89 Powers of Regulatory Authority in considering application 90 Matters to be considered 91 Decision on application 92 Revocation of service waiver 93 Effect of service waiver Division 6—Temporary waiver 94 Application for temporary waiver 95 Form of application 96 Regulatory Authority may seek further information 97 Special circumstances 98 Decision on application 99 Revocation of temporary waiver 100 Effect of temporary waiver Division 7—Exercise of powers by another Regulatory Authority 101 Exercise of powers by another Regulatory Authority—family day care services Division 8—Associated children's services 102 Application of this Law to associated children's services Division 9—Offences 103 Offence to provide an education and care service without service approval 103A Offence relating to places where education and care is provided as part of a family day care service 104 Offence to advertise education and care service without service approval Part 4—Approval in principle for education and care service premises located in certain types of buildings Division 1—Application of this Part 105 Application of Part to certain participating jurisdictions only Division 2—Application for approval in principle 106 Application for approval in principle 107 Form and timing of application 108 Regulatory Authority may seek further information 109 Determination of application for an approval in principle 110 Grant or refusal of approval in principle 111 Regulatory Authority must refuse to grant approval in principle unless satisfied of certain matters 112 Notice of decision on application for approval in principle 113 Copy of approval in principle to be provided Division 3—Duties of approval in principle holder 114 Duty to notify Regulatory Authority of any material change Division 4—Amendment and transfer of approval in principle 115 Amendment of approval in principle on application 116 Amendment of approval in principle by Regulatory Authority 117 Copy of amended approval in principle to be provided 118 Transfer of approval in principle 119 Transfer of approval in principle by Regulatory Authority Division 5—Cancellation of approval in principle 120 Regulatory Authority may cancel approval in principle 121 Show cause notice before cancellation 122 Decision in relation to cancellation Division 6—Expiry of approval in principle 123 Expiry of approval in principle 124 Approval in principle may be extended 125 Expired approval in principle may be reinstated Part 5—Assessments and ratings Division 1—Assessment and rating 133 Assessment for rating purposes 134 Rating levels 135 Rating of approved education and care service 136 Notice to approved education and care service of rating 137 Suspension of rating assessment Division 2—Reassessment and re-rating 138 Regulatory Authority may reassess and re-rate approved education and care service 139 Application for reassessment and re-rating by approved provider 140 Application of Division 1 Division 3—Review by Regulatory Authority 141 Review by Regulatory Authority 142 Process for review 143 Outcome of review by Regulatory Authority Division 4—Review by Ratings Review Panel Subdivision 1—Application for review 144 Application for further review by Ratings Review Panel 145 Form and time of application Subdivision 2—Establishment of Ratings Review Panel 146 Establishment of Ratings Review Panel 147 Review Panel pool 148 Procedure of Panel 149 Transaction of business by alternative means Subdivision 3—Conduct of review 150 Conduct of review 151 Decision on review by Ratings Review Panel Division 5—Awarding of highest rating 152 Application for highest rating 153 Assessment of education and care service 154 Board may seek information and documents 155 Decision on application 156 Notice of decision 157 Reassessment of highest rating level 158 Revocation of highest rating level 159 Re-application for highest rating level Division 6—Publication of rating levels 160 Publication of ratings Part 6—Operating an education and care service 161 Offence to operate education and care service without nominated supervisor 161A Offence for nominated supervisor not to meet prescribed minimum requirements 162 Offence to operate education and care service unless responsible person is present 162A Child protection training 163 Offence relating to appointment or engagement of family day care co‑ordinators 164 Offence relating to assistance to family day care educators 164A Offence relating to the education and care of children by family day care service 165 Offence to inadequately supervise children 166 Offence to use inappropriate discipline 167 Offence relating to protection of children from harm and hazards 168 Offence relating to required programs 169 Offence relating to staffing arrangements 170 Offence relating to unauthorised persons on education and care service premises 171 Offence relating to direction to exclude inappropriate persons from education and care service premises 172 Offence to fail to display prescribed information 173 Offence to fail to notify certain circumstances to Regulatory Authority 174 Offence to fail to notify certain information to Regulatory Authority 174A Family day care educator to notify certain information to approved provider 175 Offence relating to requirement to keep enrolment and other documents Part 7—Compliance with this Law Division 1—Notices 176 Compliance directions 177 Compliance notices 178 Notice to suspend education and care by a family day care educator 179 Emergency action notices Division 2—Enforceable undertakings 179A Enforceable undertakings 179B Certain actions prohibited while undertaking is in force 180 Certain actions prohibited if undertaking is complied with 181 Failure to comply with enforceable undertakings Division 3—Prohibition notices 182 Grounds for giving prohibition notice 183 Show cause notice to be given before prohibition notice 184 Deciding whether to give prohibition notice 185 Content of prohibition notice 186 Cancellation of prohibition notice 187 Person must not contravene prohibition notice 188 Offence to engage person to whom prohibition notice applies 188A False or misleading information about prohibition notice Division 4—Emergency removal of children 189 Emergency removal of children Part 8—Review Division 1—Internal review 190 Reviewable decision—internal review 191 Internal review of reviewable decisions Division 2—External review 192 Reviewable decision—external review 193 Application for review of decision of the Regulatory Authority Division 3—General 194 Relationship with Act establishing administrative body Part 9—Monitoring and enforcement Division 1—Authorised officers 195 Authorisation of authorised officers 196 Identity card Division 2—Powers of entry 197 Powers of entry for assessing and monitoring approved education and care service 198 National Authority representative may enter service premises in company with Regulatory Authority 199 Powers of entry for investigating approved education and care service 200 Powers of entry to business premises 200A Entry to premises without search warrant 201 Entry to premises with search warrant 202 Seized items 203 Court may extend period Division 3—Other powers 204 Power to require name and address 205 Power to require evidence of age, name and address of person 206 Power of authorised officers to obtain information documents and evidence Division 4—Offences relating to enforcement 207 Offence to obstruct authorised officer 208 Offence to fail to assist authorised officer 209 Offence to destroy or damage notices or documents 210 Offence to impersonate authorised officer 211 Protection against self incrimination 212 Warning to be given 213 Occupier's consent to search Division 5—Powers of Regulatory Authority 214 Powers of Regulatory Authority to obtain information for rating purposes 215 Power of Regulatory Authority to obtain information, documents and evidence by notice 216 Power of Regulatory Authority to obtain information, documents and evidence at education and care service 217 Offence to fail to comply with notice or requirement 218 Offence to hinder or obstruct Regulatory Authority 219 Self incrimination not an excuse Part 10—Ministerial Council 220 Functions of Ministerial Council 221 Powers of Ministerial Council 222 Directions 223 How Ministerial Council exercises powers Part 11—Australian Children's Education and Care Quality Authority Division 1—The National Authority 224 National Authority 225 Functions of National Authority 226 National Authority may advise and seek guidance of Ministerial Council 227 Powers of National Authority 228 Co-operation with participating jurisdictions and Commonwealth 229 National audit functions Division 2—The Board of the National Authority Subdivision 1—Establishment and responsibilities 230 National Authority Board 231 Responsibilities of Board 232 Membership of Board Subdivision 2—Members 233 Terms of office of members 234 Remuneration 235 Vacancy in the office of member 236 Acting positions 237 Leave of absence 238 Disclosure of conflict of interest Subdivision 3—Procedure of Board 239 General procedure 240 Quorum 241 Chief executive officer may attend meetings of the Board 242 Presiding member 243 Voting 244 Defects in appointment of members 245 Transaction of business by alternative means 246 Delegation by Board 247 Committees Subdivision 4—Chief executive officer of the National Authority 248 Chief executive officer 249 Functions of chief executive officer 250 Terms and conditions of appointment 251 Remuneration 252 Vacancy in office 253 Resignation 254 Termination of appointment 255 Acting chief executive officer 256 Disclosure of interests Subdivision 5—Staff, consultants and contractors 257 Staff of National Authority 258 Staff seconded to National Authority 259 Consultants and contractors Part 12—Regulatory Authority 260 Functions of Regulatory Authority 261 Powers of Regulatory Authority 262 Delegations Part 13—Information, records and privacy Division 1—Privacy 263 Application of Commonwealth Privacy Act Division 2—Application of Commonwealth FOI Act 264 Application of Commonwealth FOI Act Division 3—Application of New South Wales State Records Act 265 Application of State Records Act Division 4—Registers 266 Register of approved providers 267 Register of education and care services 269 Register of family day care educators, co‑ordinators and assistants Division 5—Publication of information 270 Publication of information Division 6—Disclosure of information 271 Disclosure of information to other authorities 272 Disclosure of information to approved providers 273 Duty of confidentiality Part 14—Miscellaneous Division 1—Finance 274 Australian Children's Education and Care Quality Authority Fund 275 Payments into Authority Fund 276 Payments out of Authority Fund 277 Investment of money in Authority Fund 278 Financial management duties of National Authority Division 2—Reporting 279 Annual report 280 Tabling and publication of annual report 281 Other reporting Division 3—Application of Commonwealth Ombudsman Act 282 Application of Commonwealth Ombudsman Act Division 4—Legal proceedings 283 Who may bring proceedings for an offence? 284 When proceedings may be brought 285 Offences by bodies corporate 286 Application of Law to partnerships and eligible associations and other entities 287 Multiple holders of an approval 288 Double jeopardy 289 Immunity 290 Immunity—education law 291 Infringement offences 292 Evidentiary certificates Division 5—Service of notices 293 Service of notices 294 Service by post Division 6—False or misleading information 295 False or misleading information or documents Division 7—Protection from reprisal 296 Definitions 297 Protection from reprisal 298 Proceedings for damages for reprisal 299 Application for injunction or order 300 Injunction or order Division 8—National regulations 301 National regulations 302 Publication of national regulations 303 Parliamentary scrutiny of national regulations 304 Effect of disallowance of national regulation Part 15—Transitional provisions Division 1—Introductory 305 Definitions Division 2—Education and care services 306 Approved provider 307 Service approvals 308 Approved family day care venues 309 Approval of declared out of scope services 310 Application for service waiver or temporary waiver 311 Existing applicants 312 Existing multiple approvals to merge 313 Display of accreditation and rating 314 Effect of non-compliance in 3 years before scheme commencement day 315 Certified supervisors 316 Nominated supervisors 317 Notices and undertakings 318 Offences Division 3—National Authority 319 First meeting of National Authority 320 First chief executive officer of National Authority 321 First annual report of National Authority Division 4—General 322 Information retention and sharing 323 Approved learning framework 324 Savings and transitional regulations Division 5—Transitional provisions—Education and Care Services National Law Amendment Act 2017 325 Definitions 326 Approved family day care venues 327 Declared approved family day care venues continue to be approved 328 Service approval condition requiring sufficient family day care co-ordinators 329 Service approval condition requiring minimum number of family day care co ordinators Division 6—Further transitional provisions—Education and Care Services National Law Amendment Act 2017 332 Definitions 333 Partial assessment and re-rating 334 Application for highest rating level made before commencement day 335 Highest rating level awarded before, or on application made before, commencement day Division 7—Transitional provisions—Early Childhood Legislation Amendment Act 2022 336 Transitional provision—notification of persons with management or control of an education and care service 337 Transitional provision—assessment of provider approval applications 338 Transitional provision—service waivers 339 Transitional provision—temporary waivers Division 8—Transitional provisions—Early Childhood Legislation Amendment (Premises Approval in Principle) Act 2023 340 Transitional provision—approvals in principle—applications for service approval Schedule 1—Miscellaneous provision relating to interpretation Part 1—Preliminary 1 Displacement of Schedule by contrary intention Part 2—General 2 Law to be construed not to exceed legislative power of Legislature 3 Every section to be a substantive enactment 4 Material that is, and is not, part of this Law 5 References to particular Acts and to enactments 6 References taken to be included in Act or Law citation etc 7 Interpretation best achieving Law's purpose 8 Use of extrinsic material in interpretation 9 Effect of change of drafting practice and use of examples 10 Use of examples 11 Compliance with forms Part 3—Terms and references 12 Definitions 13 Provisions relating to defined terms and gender and number 14 Meaning of "may" and "must" etc 15 Words and expressions used in statutory instruments 16 Effect of express references to bodies corporate and individuals 17 Production of records kept in computers etc 18 References to this jurisdiction to be implied 19 References to officers and holders of offices 20 Reference to certain provisions of Law 21 Reference to provisions of this Law or an Act is inclusive Part 4—Functions and powers 22 Performance of statutory functions 23 Power to make instrument or decision includes power to amend or repeal 24 Matters for which statutory instruments may make provision 25 Presumption of validity and power to make 26 Appointments may be made by name or office 27 Acting appointments 28 Powers of appointment imply certain incidental powers 29 Delegation of functions 30 Exercise of powers between enactment and commencement Part 5—Distance, time and age 31 Matters relating to distance, time and age Part 6—Effect of repeal, amendment or expiration 32 Time of Law ceasing to have effect 33 Repealed Law provisions not revived 34 Saving of operation of repealed Law provisions 35 Continuance of repealed provisions 36 Law and amending Acts to be read as one Part 7—Instruments under Law 37 Schedule applies to statutory instruments Part 8—Application to coastal sea 38 Application Schedule 2—Powers of entry by search warrant 1 Application for warrant 2 Issue of warrant 3 Application by electronic communication 4 Procedure before entry under warrant 5 Powers after entering premises Schedule 2—Modifications to Education and Care Services National Law (South Australia) for purposes of Part 3 1 Interpretation 2 Exclusion of certain provisions 3 Certain provisions to apply as modified 4 National regulations not to apply Schedule 3—Transitional provisions Part 14—Transitional provisions Division 1—Transitional provisions related to Part 3 of Act (residual early childhood services) 28 Interpretation 29 Certain persons etc taken to be approved providers 30 Certain residual early childhood services taken to hold service approval 31 Certain persons taken to be certified supervisors 32 Certain persons taken to be nominated supervisors Division 2—Transitional provisions related to Part 5 of Act (registration of schools) 33 Government schools taken to be registered under Part 5 Division 2 of Act 34 Certain non‑Government schools taken to be registered under Part 5 Division 2 of Act 35 Exemptions Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Education and Early Childhood Services (Registration and Standards) Act 2011. 3—Interpretation (1) In this Act, unless the contrary intention appears— authorised officer means a person who is authorised by the Board to be an authorised officer under section 68; Board means the Education and Early Childhood Services Registration and Standards Board of South Australia established under this Act; Catholic school—see subsection (2); Chief Executive means the Chief Executive of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Education and Children's Services Act 2019; child means a person under the age of 18 years; District Court means the Administrative and Disciplinary Division of the District Court; early childhood services—see section 4; Early Childhood Services Registrar means the person holding or acting in the office of Registrar for the early childhood services sector—see section 27(1)(c); Education and Care Services National Law (South Australia)—see section 10; Education and Care Services National Law text means the Education and Care Services National Law set out in Schedule 1 (as in force from time to time); education services means— (a) courses of instruction in primary or secondary education; and (b) any other service declared by the regulations to be included in the ambit of this definition, but does not include any service declared by the regulations not to be included in the ambit of this definition; endorsement, of a school's registration, means an endorsement of the school's registration to enrol full fee paying overseas students under section 49; governing authority of a school—see section 6; Government school means a school established under the Education Act 1972 or the repealed Act (within the meaning of that Act); Government Schools Registrar means the person holding or acting in the office of Registrar for the Government sector—see section 27(1)(a); incorporated services provider—see subsection (7)(a); misconduct means— (a) improper conduct in relation to the provision of education services; or (b) incompetence or negligence in relation to the provision of education services; or (c) conduct that constitutes an offence punishable by imprisonment for 1 year or more under some other Act or law (whether or not a person has been charged with, or found guilty of, the offence); non‑Government school means a school that is not a Government school; non‑Government Schools Registrar means the person holding or acting in the office of Registrar for the non‑Government sector—see section 27(1)(b); proceedings before the Board—the following are proceedings before the Board: (a) an application for registration or reinstatement of registration; (b) a review under Part 5 Division 4; (c) proceedings under Part 7; prohibited person means a prohibited person under the Child Safety (Prohibited Persons) Act 2016; registered, in relation to a school, means registered on the schools register under Part 5; relevant Registrar means— (a) in relation to matters involving early childhood services only—the Early Childhood Services Registrar; (b) in relation to matters involving education services only— (i) in relation to matters involving Government schools only—the Government Schools Registrar; (ii) in relation to matters involving non‑Government schools only—the non‑Government Schools Registrar; (iii) in relation to matters involving both Government and non‑Government schools—the Registrar specified by the Board in relation to the matter; (c) in relation to matters involving both early childhood services and education services—the Registrar specified by the Board in relation to the matter; responsible authority for a school—see section 8; school means a provider of education services; schools register—see section 41(1)(a); teacher means a person registered as a teacher under the Teachers Registration and Standards Act 2004 and includes a person who holds a special authority to teach under that Act; trustee services provider—see subsection (7)(b); working with children check means a working with children check under the Child Safety (Prohibited Persons) Act 2016. (2) For the purposes of this Act, a reference to a Catholic school will be taken to be a reference to a non‑Government school specified as such by the South Australian Commission for Catholic Schools Incorporated by notice in writing given to the non‑Government Schools Registrar (and a reference to the Catholic sector will be taken to have a corresponding meaning). (3) For the purposes of this Act, a student (other than a student or class of students declared by the regulations not to be a full fee paying overseas student) is to be regarded as a full fee paying overseas student— (a) if— (i) the student holds a temporary visa in force under the Migration Act 1958 of the Commonwealth; and (ii) the Commonwealth and the State disregard the student (or a class of students to which that student belongs) when calculating the amount of any assistance to the school at which the student is enrolled; or (b) in any other circumstances prescribed by the regulations. (4) Without limiting the generality of the expression, a person will be taken to carry on the business of providing education services if the person, in the course of carrying on a business— (a) provides services to a school for which the person is entitled to receive a share in the profits or income of the school; or (b) engages in any other conduct declared by the regulations to be carrying on the business of providing education services. (5) A reference in this Act to misconduct extends to— (a) misconduct committed before the commencement of this Act; and (b) misconduct committed within or outside South Australia or the Commonwealth. (6) A reference in this Act to engaging in conduct includes a reference to failing or refusing to engage in conduct. (7) For the purposes of this Act— (a) an incorporated services provider is a school that is a body corporate and a person occupies a position of authority in such a provider if the person— (i) is a director of the body corporate; or (ii) exercises, or is in a position to exercise, control or substantial influence over the body corporate in the conduct of its affairs; or (iii) manages, or is to manage, the business of the body corporate that consists of the provision of education services; or (iv) if the body corporate is a proprietary company—is a shareholder in the body corporate; (b) a trustee services provider is a provider acting as a school in the capacity of trustee of a trust and a person occupies a position of authority in such a provider if the person is a trustee or beneficiary of the trust. (8) For the purposes of this Act, a person occupies a position of authority in a body corporate other than an incorporated services provider if the person— (a) is a director of the body corporate; or (b) exercises, or is in a position to exercise, control or substantial influence over the body corporate in the conduct of its affairs; or (c) if the body corporate is a proprietary company—is a shareholder in the body corporate. (9) However— (a) a minor who is a shareholder in a proprietary company, or a beneficiary under a trust, is not, for that reason, to be regarded as a person occupying a position of authority; and (b) a charitable organisation that is a beneficiary of a trust is not, for that reason, to be regarded as occupying a position of authority. (10) For the purposes of this Act, a person who holds more than 10% of the issued share capital of a public company will be regarded as a person occupying a position of authority in that company. 4—Early childhood services (1) In this Act, early childhood services means services of the following kinds: (a) in‑home care services; (b) occasional care services; (c) rural and mobile care services; (d) family day care services that are not education and care services within the meaning of the Education and Care Services National Law (South Australia); (e) any other service declared by the regulations to be included in the ambit of this definition, but does not include a service declared by the regulations not to be included in the ambit of this subsection. (2) In this section— in‑home care services means services of a kind specified by the regulations for the purposes of this definition; occasional care services means services of a kind specified by the regulations for the purposes of this definition; rural and mobile care services means services of a kind specified by the regulations for the purposes of this definition. 5—Parts of Act not to apply in relation to certain services The following provisions of this Act do not apply to, or in relation to, services (however described) of a kind to which the Education and Care Services National Law (South Australia) applies (other than where that Law applies to residual early childhood services under Part 3): (a) sections 4 and 9; (b) Part 5 to Part 10 (inclusive). 6—Governing authority For the purposes of this Act, the governing authority of a school means the person, board, committee or other authority by which the school is administered and, in the case of an incorporated or trustee services provider, includes each person who occupies a position of authority in the provider. 7—Limitation of liability for volunteer members of governing authorities (1) Despite any other provision of this Act, a volunteer member of the governing authority of a school can only be guilty of a prescribed offence against this Act if the prosecution proves that— (a) the volunteer member knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and (b) the volunteer member was in a position to influence the conduct of the governing authority in relation to the commission of such an offence; and (c) the volunteer member failed to exercise due diligence to prevent the commission of the offence. (2) In this section— prescribed offence means— (a) an offence against section 42, 63(1), 75(2) or 76; or (b) any other offence prescribed by the regulations for the purposes of this section; volunteer member of the governing authority of a school means a person who is acting as a member of the governing authority on a voluntary basis (whether or not the person receives out‑of‑pocket expenses). 8—Responsible authorities (1) The Chief Executive is the responsible authority for Government schools. (2) The Executive Officer of the South Australian Commission for Catholic Schools Incorporated (including a person for the time being holding or acting in that position) is the responsible authority for all Catholic schools. (3) The Director of Lutheran Schools, South Australia (including a person for the time being holding or acting in that position) is the responsible authority for all Lutheran schools. (4) The Director of Education, Seventh Day Adventist schools (including a person for the time being holding or acting in that position) is the responsible authority for all Seventh Day Adventist schools. (5) The Minister may, on the application of a school or class of schools (not being a school or class of schools contemplated by a preceding subsection), by notice in writing, appoint a person— (a) who has been nominated by the school or class of schools; and (b) who has agreed in writing to the appointment, to be the responsible authority for the school or class of schools. (6) The Minister may, by subsequent notice in writing, vary or revoke a notice under subsection (5). (7) In the case of a school in relation to which a responsible authority cannot be determined according to a preceding subsection, each member of the governing authority of the school will be taken to be a responsible authority for the school. (8) In this section— Lutheran school means a school that is a member of the Lutheran Schools Association; Seventh Day Adventist school means a school operated by the Seventh Day Adventist Schools SA Trust. 9—Objects and principles (1) The objects of this Act include providing for the regulation of the provision of education and early childhood services in a manner that maintains high standards of competence and conduct by providers and— (a) recognises that all children should have access to high quality education and early childhood facilities and services that— (i) address their developmental needs; and (ii) maximise their learning and development potential through an appropriate curriculum; and (iii) support their educational achievement; and (iv) promote enthusiasm for learning; and (v) support, promote and contribute to their health, safety and well‑being; and (b) provides for a diverse range of services; and (c) recognises the rights of parents to access a diverse range of education and early childhood services providers; and (d) enhances public confidence in the operation of education and early childhood services providers. (2) The following principles should be taken into account in the administration of this Act: (a) parents and guardians should have the right to choose the best services for their family; (b) parents and guardians, and members of school communities, should have access to relevant information concerning the regulation of their child's school; (c) the welfare and best interests of children is the primary consideration in the performance of the Board's functions; (d) any person who works with children is obliged to protect them, respect their dignity and privacy and safeguard and promote their well‑being; (e) cooperation between the Minister, the Board and the school education sectors contributes to achieving the effective provision of education and early childhood services; (f) successful learning is built on a foundation of rich, engaging environments and meaningful interactions in which children's voices are listened to and acted on. (3) In exercising a power or performing a function under this Act, the Board should have regard to, and seek to give effect to, the following principles: (a) providers of education services and early childhood services should not be burdened by regulation more than is reasonably necessary; (b) the actions of the Board in relation to minimising or responding to a particular risk should be proportionate to the potential harm posed by the risk; (c) the Board should have regard to all of the circumstances of a particular provider of education services or early childhood services (including, without limiting this paragraph, the provider's history of compliance with this or any other relevant Act and any risk that the provider may not comply with this Act in the future). Note— The Education and Care Services National Law (South Australia) may contain further objects and principles in respect of services to which that Law applies. Part 2—Adoption of Education and Care Services National Law 10—Application of Education and Care Services National Law (1) The Education and Care Services National Law text— (a) applies as a law of this jurisdiction; and (b) as so applying may be referred to as the Education and Care Services National Law (South Australia). (2) Subsection (1) applies subject to any modifications made to the Education and Care Services National Law by or under this Act. 11—Amendments to Law to maintain national consistency (1) If— (a) the Parliament of Victoria enacts an amendment to the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria; and (b) the Governor is satisfied that an amendment that corresponds, or substantially corresponds, to the amendment made by the Parliament of Victoria should be made to the Education and Care Services National Law (South Australia), the Governor may, by regulation, amend the Education and Care Services National Law text. (2) The Governor may, as part of a regulation made under subsection (1), make any additional provision (including so as to modify the terms of an amendment that has been made to the Education and Care Services National Law by the Parliament of Victoria or to provide for related or transitional matters) considered by the Governor to be necessary to ensure that the amendment to the Education and Care Services National Law has proper effect in South Australia. (3) A regulation made under this section may, if the regulation so provides, take effect from the day of the commencement of an amendment to the Education and Care Services National Law made by the Parliament of Victoria (including a day that is earlier than the day of the regulation's publication in the Gazette). 12—Exclusion of legislation of this jurisdiction (1) Subject to subsections (2) and (3), the following Acts do not apply to the Education and Care Services National Law (South Australia) or the national regulations: (a) the Acts Interpretation Act 1915; (b) the Legislative Instruments Act 1978. (2) To avoid doubt, the Legislative Instruments Act 1978 applies to a regulation made under section 11. (3) In connection with the operation of section 303 of the Education and Care Services National Law (South Australia)— (a) the Minister must, after a regulation made under that Law is tabled in each House of Parliament, forward a copy of the regulation to the Legislative Review Committee of the Parliament for inquiry and report; and (b) if a regulation is disallowed under that section, the disallowance will have effect in this State despite any provision in the Education and Care Services National Law. (4) The following Acts do not apply to the Education and Care Services National Law (South Australia) or the national regulations except to the extent that that Law or those instruments apply to the Regulatory Authority, or to the employees, decisions, actions and records of the Regulatory Authority: (a) the Ombudsman Act 1972; (b) the Public Finance and Audit Act 1987; (c) the Public Sector Act 2009; (d) the Public Sector (Honesty and Accountability) Act 1995; (e) the State Records Act 1997. (5) The Freedom of Information Act 1991 does not apply in relation to the National Quality Framework. (6) In this section— National Quality Framework, national regulations and Regulatory Authority have the same meanings as in the Education and Care Services National Law (South Australia). 13—Meaning of certain terms in Education and Care Services National Law (South Australia) for the purposes of this jurisdiction (1) In the Education and Care Services National Law (South Australia)— child protection law means— (a) the Children's Protection Act 1993; and (b) the Family and Community Services Act 1972; and (c) the Guardianship and Administration Act 1993; and (ca) the Children and Young People (Safety) Act 2017; and (d) any other Act declared by the regulations to be a child protection law; court means the Magistrates Court; local authority means a local council within the meaning of the Local Government Act 1999; magistrate means a person holding office as a Magistrate under the Magistrates Act 1983; public authority means a body established for a public purpose by or under an Act; superior court means the Supreme Court; this jurisdiction means South Australia. (2) For the purposes of the definition of children's services law in the Education and Care Services National Law (South Australia), this Act, the Education and Children's Services Act 2019 and any other Act prescribed by the regulations are declared to be children's services laws for this jurisdiction. (3) For the purposes of the definition of children's services regulator in the Education and Care Services National Law (South Australia), the Board is declared to be the children's services regulator for this jurisdiction. (4) For the purposes of the definition of education law in the Education and Care Services National Law (South Australia), this Act, the Education and Children's Services Act 2019 and any other Act prescribed by the regulations are declared to be education laws for this jurisdiction. (5) For the purposes of the definition of former education and care services law in the Education and Care Services National Law (South Australia), the Education Act 1972 and the Children's Services Act 1985 are declared to be former education and care services laws for this jurisdiction. (6) For the purposes of the definition of infringements law in the Education and Care Services National Law (South Australia), the Expiation of Offences Act 1996 is declared to be an infringements law for this jurisdiction. (7) For the purposes of the definition of public sector law in the Education and Care Services National Law (South Australia), the Public Sector Act 2009 and the Public Sector (Honesty and Accountability) Act 1995 are declared to be public sector laws for this jurisdiction. (8) For the purposes of the definition of relevant tribunal or court in the Education and Care Services National Law (South Australia)— (a) the Magistrates Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 181 of the Education and Care Services National Law (South Australia); and (b) the District Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Part 8 of the Education and Care Services National Law (South Australia). (9) For the purposes of the definition of Regulatory Authority in the Education and Care Services National Law (South Australia), the Board is declared to be the Regulatory Authority for this jurisdiction. (10) For the purposes of the definition of working with children law in the Education and Care Services National Law (South Australia), the Child Safety (Prohibited Persons) Act 2016, and any other Act prescribed by the regulations, are declared to be working with children laws for this jurisdiction. (11) For the purposes of the definition of declared approved family day care service in section 305 of the Education and Care Services National Law (South Australia), a family day care scheme that was, immediately before the scheme commencement day, being operated by the administrative unit of the Public Service responsible under the Minister for the administration of the Children's Services Act 1985 is declared to be a declared approved family day care service for this jurisdiction. (12) For the purposes of the definition of declared approved family day care venue in section 305 of the Education and Care Services National Law (South Australia), premises that, immediately before the scheme commencement day, were the subject of an approval as family day care premises under section 33 of the Children's Services Act 1985 are declared to be a declared approved family day care venue for this jurisdiction. (13) For the purposes of the definition of declared approved provider in section 305 of the Education and Care Services National Law (South Australia), the following are declared to be declared approved providers for this jurisdiction: (a) the administrative unit of the Public Service that was, immediately before the scheme commencement day, responsible under the Minister for the administration of the Children's Services Act 1985; (b) a person or body who, immediately before the scheme commencement day, held a licence to conduct or control a child care centre under the Children's Services Act 1985; (c) a person or body who, immediately before the scheme commencement day, operated an out of school hours care service that was registered with the National Childcare Accreditation Council of Australia; (d) a person or body who, immediately before the scheme commencement day, operated a pre‑school education service on the premises of, or in relation to, a non‑Government school registered under the Education Act 1972; (e) a person or body who, immediately before the scheme commencement day, operated an out of school hours care service on the premises of, or in relation to, a non‑Government school registered under the Education Act 1972; (f) any other person or body declared by the regulations to be included in the ambit of this subsection. (14) For the purposes of the definition of declared approved service in section 305 of the Education and Care Services National Law (South Australia), the following education and care services are declared to be declared approved services for this jurisdiction: (a) a family day care service; (b) a child care centre service; (c) an out of school hours care service; (d) a pre‑school education service; (e) any other service declared by the regulations to be included in the ambit of this subsection. (15) For the purposes of the definition of declared certified supervisor in section 305 of the Education and Care Services National Law (South Australia), the following persons are declared to be declared certified supervisors for this jurisdiction: (a) a natural person who was, immediately before the scheme commencement day and in accordance with regulation 18(1) of the Children's Services (Child Care Centre) Regulations 1998, a manager of a child care centre; (b) a person who was, immediately before the scheme commencement day, a qualified contact staff member (within the meaning of the Children's Services (Child Care Centre) Regulations 1998) in relation to a child care centre; (c) a person who was, at any time in the 2 years immediately preceding the scheme commencement day, employed in a position of the following kinds in the administrative unit of the Public Service that was, at the relevant time, responsible under the Minister for the administration of the Children's Services Act 1985: (i) a field worker in relation to the provision of family day care; (ii) a coordinator in relation to the provision of family day care; (iii) a team leader in relation to the provision of family day care; (iv) a manager in relation to the provision of family day care; (d) a teacher who was, at any time in the 2 years immediately preceding the scheme commencement day, employed in relation to the provision of an education and care service of a kind contemplated by subsection (14); (e) any other person, or class of person, declared by the regulations to be included within the ambit of this subsection. (16) For the purposes of the definition of declared nominated supervisor in section 305 of the Education and Care Services National Law (South Australia), a person authorised in writing by the Minister for the purposes of this subsection is declared to be a declared nominated supervisor for this jurisdiction. (17) For the purposes of the definition of former approval in section 305 of the Education and Care Services National Law (South Australia), an authorisation (however described) under the Education Act 1972 or the Children's Services Act 1985 in force immediately before the scheme commencement day to provide a service of a kind contemplated by subsection (14) is declared to be a former approval for this jurisdiction. (18) For the purposes of subsection (17), and without limiting any other way in which a person may be authorised under the Education Act 1972 or the Children's Services Act 1985 to provide a particular service— (a) a person or body will be taken to have been authorised under the Education Act 1972 or the Children's Services Act 1985 (as the case requires) to provide a service of a kind contemplated by subsection (14) if the person or body was, immediately before the scheme commencement day, providing a service of the relevant kind; and (b) that authorisation will be taken to have been in force immediately before the scheme commencement day. (19) For the purposes of this section, a reference to an Act of this jurisdiction includes a reference to regulations made under that Act. (20) In this section— scheme commencement day has the same meaning as in the Education and Care Services National Law (South Australia). 13A—Working with children checks A reference to an authorised person in section 170 of the Education and Care Services National Law (South Australia) will be taken to include a reference to a person— (a) in respect of whom a working with children check has been conducted under the Child Safety (Prohibited Persons) Act 2016 within the preceding 5 years; and (b) who is not a prohibited person (within the meaning of that Act). 14—Penalty at end of provision In the Education and Care Services National Law (South Australia), a penalty specified at the end of a provision indicates that a contravention of the provision is punishable on conviction by a penalty not more than the specified penalty. 15—Tabling of annual report (1) Without limiting section 280 of the Education and Care Services National Law (South Australia), the Minister must cause copies of the annual report of the National Authority, and the report of the public sector auditor with respect to the financial statement in the report, to be laid before both Houses of Parliament. (2) In this section— National Authority has the same meaning as in the Education and Care Services National Law (South Australia). Part 3—Application of Education and Care Services National Law (South Australia) to residual early childhood services providers 16—Application of Education and Care Services National Law (South Australia) to residual early childhood services providers (1) The Education and Care Services National Law (South Australia), as modified by Schedule 2 and as in force from time to time, applies in relation to all residual early childhood services as if they were education and care services within the meaning of that Law. (2) In this section— residual early childhood services means early childhood services of a kind to which the Education and Care Services National Law (South Australia) would not, but for this section, apply. Note— See section 4 for the definition of early childhood services. 17—Exemption from certain provisions of Education and Care Services National Law (South Australia) (1) Subject to this section, the Minister may, by notice in writing— (a) exempt a person, or class of persons, subject to such conditions as the Minister thinks fit and specifies in the notice, from specified provisions of the Education and Care Services National Law (South Australia) as they apply to, or in relation to, residual early childhood services; or (b) vary or revoke an exemption, or a condition of an exemption, under this section or impose a further condition. (2) The Minister must consult with the Board before making a notice under subsection (1). (3) A person who contravenes a condition of an exemption is guilty of an offence. Maximum penalty: $10 000. Part 4—Administration Division 1—The Minister 18—Functions of Minister (1) The functions of the Minister under this Act are— (a) to support the delivery of the highest possible standard of education services and early childhood services; (b) to work with the Board to ensure effective monitoring and evaluation of the delivery of education and early childhood services; (c) to support the promotion of, and public awareness on the availability and quality of, education and early childhood services; (d) such other functions assigned to the Minister by or under this or any other Act. (2) For the purposes of this section, a reference to early childhood services includes a reference to an education and care service (within the meaning of the Education and Care Services National Law (South Australia)). Note— The Education and Care Services National Law (South Australia) may contain further functions in respect of services to which that Law applies. 19—Ministerial directions (1) Subject to this section, the Minister may give the Board a direction about any matter relevant to the performance or exercise of a function or power of the Board. (2) No Ministerial direction may be given— (a) in relation to the registration of a particular school, or the imposition of conditions on the registration of a particular school, or the suspension or cancellation of the registration of a particular school; or (b) in relation to the determination of criteria for registration under this Act; or (c) in relation to any particular proceedings before the Board; or (d) in relation to a particular complaint of a kind contemplated by section 30. (3) A direction given by the Minister under this section must be in writing. (4) If the Minister gives a direction under this section— (a) the Minister must prepare a report on the matter and cause a copy of the report to be laid before each House of Parliament; and (b) the Board must cause details of the direction to be published in its next annual report. 20—Power of delegation (1) The Minister may delegate a function or power under this Act (other than a prescribed function or power) to a specified body or person (including a person for the time being holding or acting in a specified office or position). (2) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the ability of the Minister to act in any matter; and (d) is revocable at will. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. (4) A person to whom a function has been delegated under subsection (1) who has a direct or indirect personal or pecuniary interest in any matter in relation to which the person proposes to perform the functions must disclose the nature of the interest in writing to the Minister. Maximum penalty: $20 000. (5) It is a defence to a charge of an offence against subsection (4) for the defendant to prove that he or she was not, at the time of the alleged offence, aware of his or her interest in the matter. Division 2—The Education and Early Childhood Services Registration and Standards Board of South Australia Subdivision 1—The Board 21—Establishment of Board (1) The Education and Early Childhood Services Registration and Standards Board of South Australia is established. (2) The Board— (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) can sue and be sued in its corporate name; and (d) has the functions and powers assigned or conferred by or under this or any other Act. (3) If a document appears to bear the common seal of the Board, it will be presumed, in the absence of proof to the contrary, that the common seal of the Board was duly fixed to the document. 22—Composition of Board (1) The Board consists of 13 members appointed by the Governor on the nomination of the Minister, being persons who collectively have, in the opinion of the Minister, the knowledge, skills and experience necessary to enable the Board to carry out its functions effectively. (2) Of those members— (a) 1 (who will be the presiding member) must be a person who has, in the opinion of the Minister, extensive knowledge and expertise in the education and care of children; and (b) 2 must be nominated from a panel of 4 persons submitted by the Chief Executive; and (c) 2 must be nominated from a panel of 4 persons submitted by the Association of Independent Schools of South Australia; and (d) 2 must be nominated from a panel of 4 persons submitted by the South Australian Commission for Catholic Schools Incorporated; and (e) 2 must be nominated from a panel of 4 persons submitted by the prescribed child care bodies; and (f) 1 must be a legal practitioner. (2a) A person is not eligible to be appointed to the Board unless a working with children check has been conducted in relation to the member within the preceding 5 years. (3) If the Minister does not receive a submission from a body under subsection (2)(c), (d) or (e) within 2 months after requesting the submission of 4 names by that body, the Minister may, by notice in writing, request the relevant body to make a nomination within a time (being not less than 1 month) allowed in the notice and if a nomination is not made within that time, then the Minister may proceed to nominate a person or persons determined by the Minister in lieu of a person submitted by that body. (4) Subject to this section, the Minister should, before nominating a person for appointment to the Board (other than for the purposes of subsection (2)(c), (d) or (e)), under a scheme determined by the Minister for the purposes of this section— (a) call for expressions of interest; and (b) take into account any representations made by a prescribed designated entity. (5) In nominating the remaining members of the Board, the Minister should, as far as is reasonably practicable, endeavour to achieve a gender balance on the Board. (6) The requirements of qualification and nomination (if applicable) made by this section in relation to the appointment of a member extend to the appointment of a deputy of that member. (7) The Governor may, on the recommendation of the Minister, appoint a suitable person to be the deputy presiding member of the Board. (8) The Governor may, on the nomination of the Minister, appoint a suitable person to be the deputy of a member of the Board. (9) A deputy may act as a member of the Board during any period of absence of the member in relation to whom the deputy has been appointed. (10)