Alex Kohn
2 April 2011

Children’s Corner

Alex Kohn

Partner And Chairman

Tel: 02 9233 9036

Mob : 0421 315 168


Dispute Resolution


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Employment, Professional Conduct and Safety

Three significant bills have passed through the New South Wales Parliament recently which will affect regulation of early childhood education in New South Wales.  Some of the changes that the legislation brings will affect early education providers and others will affect teachers of children over the age of six and after school care.

 New National Law

The Children (Education and Care Services National Law Application) Act 2010 will adopt the Education and Care Services National Law which is set out in the Schedule to the Education and Care Services National Law Act 2010 of Victoria.  The National Law gives effect to the agreement endorsed by the Council of Australian Governments in December 2009 to establish a jointly governed, uniform national quality framework and facilitate the introduction of a national quality standard.

The new law will provide a national approach to regulation, assessment and quality improvement for early childhood education and care and outside school hour’s care.  It will replace existing separate licensing and quality assurance processes for pre-school, family day care and outside school hours care.  It will also establish a public rating system for education and care services.  As the law is part of a uniform law strategy across Australia, the other states and territories participating in the national licensing scheme need to enact their legislation before this Act will entirely commence in New South Wales.  Affected schools should therefore contact their lawyers to ascertain whether the provisions about which they may be concerned have yet commenced.

The National Law will be known as the Children (Education and Care Services) National Law (referred to in this Article as the National Law).

The Victorian Act states that the principal objective of the legislation is to establish the National Quality Framework and the Australian Children’s Education and Care Quality Authority to oversee its administration.  It provides a role for regulatory authorities in approving persons and services that provide education and care, monitoring compliance with the National Law and assessing and publically rating services against a new national quality standard.  Some new offences are created by the legislation which are intended to ensure the health, safety and well-being of children and the operation of the National Approval System.  The legislation provides for the tools that the regulatory authority may use to ensure compliance with the National Law and is intended to ensure the safety, health and wellbeing of children attending education and care services.  The legislation also establishes the Australian Children’s Education and Care Quality Authority Fund, reporting requirements, legal proceedings and providing for the development and commencement of national regulations.

Voluntary Out-of-Home Care

The Children and Young Persons (Care and Protection) Act 2010, which has fully commenced, makes provision in respect of voluntary out-of-home care.  Out-of-home care does not include private arrangements between parents for the care of their children after school.  This new Act clarifies that financial assistance is available to certain carers and provides for probity checks on persons involved in the provision of children services, clarifies the power to take photographs and other recordings during the removal of a child or young person from any premises or place, provides that certain decisions about permanency plans for children and young persons are not reviewable by the Administrative Decisions Tribunal and other minor amendments.

Report to the Department of Community Services

The Act also provides that the report that a teacher makes in relation to a child’s health or wellbeing, which may result in a report to the Department of Community Services, can be admissible only in the following proceedings:

  • care proceedings in the Children’s Court;
  • proceedings in relation to the child or young person under the Family Law Act 1975 (such as those related to divorce proceedings);
  • proceedings in relation to the child or young person before the Supreme Court of the Administrative Decisions Tribunal;
  • proceedings before the Victims Compensation Tribunal or the Guardianship Tribunal; and
  • proceedings under the Coroners Act 2009.

The disclosure of the identity of a person who makes a report (such as a teacher) will not be prevented if it is disclosed in connection with the investigation of a serious indictable offence or reportable conduct alleged to have been committed or done against a child or young person.  Unfortunately, this may have the effect of causing teachers not to report serious incidents reported by children.

Licensing Regime Change

The Children and Young Person (Care and Protection) Amendment (Children’s Services) Act 2010, which is also fully enforced, replaces the previous licensing system for children’s services, provides for a more extensive range of investigation and enforcement powers in connection with the regulation of children’s services and improves access to information about children’s services.

Children’s services are services that provide education or care (or both) for one or more children under the age of six years who do not ordinarily attend school.

Under the new provisions, the Director General of the Department of Human Services will be able to issue service provider licenses, children service approvals and supervisor approval.  A service provider licence will authorise licensees to provide children services, no longer being tied to the premises at which services are to be provided or the authorised supervisor.  Children service approvals will authorise the operation of a particular children service.  Supervisor approvals will authorise a person to supervise the operation of any specified children service.  No doubt this will have impacts on documents that schools require their licensed providers of care for children under the age of six years to provide before leasing premises to them.

Investigation and Enforcement Powers

The Director General will be able to require persons who are providing children’s services to provide records kept in connection with those children’s services to the Director General and to answer questions.  New offices are also created by this act.

Children’s Services Register

The Director General will be required to keep a children’s services register to record the following information about children’s services:

  • particulars of the children’s service approval;
  • the name and address of the licensed service provider;
  • particulars of the service provider licence;
  • the name of any person who is an authorised supervisor;
  • particulars of the supervisor approval; and
  • particulars of any enforcement action taken against the licensee or an authorised supervisor.

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