Education and Care Services National Law Amendment Bill 2017 (Vic) - Update

Further to my earlier blog, the Victorian Parliament's Legislative Council passed the bill on 23 March and then it received royal assent by the Governor on 27 March 2017. That means it has become Victorian law. You can find the legislation (which is now called the Education and Care Services National Law Amendment Act 2017) at http://www.legislation.vic.gov.au/ under "Victorian Statute Book", then click on 2017 and the name of the Act. Note that this legislation is an amending Act, that is, it amends the Education and Care Services National Law Act 2010 (Vic) (see s.1 of the Act).

However, the provisions in the Act do not come into effect until it is proclaimed by the Governor in Council and the date(s) of effect published in the Government Gazette (see s.2 of the Act). Presumably this will be 1 October 2017, for most provisions, as previously advised by ACECQA. And of course, as I mentioned in my previous blog, in order for the legislation to come into effect in other jurisdictions they will have to go through their own processes to give effect to the amendments.

New Publications

A few publications have recently been published which may be of some interest...

Childcare Regulation 
An interesting article published on The Mandarin website recently by Sarah Pilcher and Dr Stacey Fox (policy fellows at the Mitchell Institute at Victoria University) concerned the importance of appropriate regulation of the childcare sector, particularly in light of the experience of VET regulation.

New fact sheets have been published by ACECQA on its website in relation to family day care. They are entitled: 

• Family day care educator compliance responsibilities under the National Law and National Regulations
• Approved provider compliance responsibilities under the National Law and National Regulations
• Nominated supervisor compliance responsibilities under the National Law and National Regulations
• Assessments of family day care residences and venues
• Record keeping in family day care services 

Children and the Law 

A new book is by Lisa Young, Marry Anne Kenny & Geoffrey Monahan (eds.), Children and the Law, 2nd edition, LexisNexis Butterworths, Chatswood 2017. This is a comprehensive book covering a wide range of topics, including children's rights, child maltreatment, criminal responsibility of children, child protection, family law, adoption, civil liability, and child witnesses. Of particular interest is the chapter entitled "Education of Children - Preschool to Secondary Education" which gives an overview of the law that applies to childcare and schools.  Check the book comparison site Booko for availability and price.

Regulation

Another new book is Peter Drahos (ed.), Regulatory Theory, Foundations and Applications, ANU Press, Canberra 2017. If you have a general interest in regulatory theory then this is an excellent book because it includes contributions from Australia's and the world's leading regulatory academics and it's free (or at least the electronic download is). Some of the topics covered include: foundations of regulation, theories of regulation, compliance, rule of law, risk, accountability, globalisation and regulatory capitalism. It also covers some specific areas of regulation including the environment, crime, health, human rights, investment, migration and tax - but unfortunately not childcare!. Further information is available from ANU Press.

A recent interesting paper is by Neil Gunningham called Compliance, Enforcement and Regulatory Excellence. This is a research paper put out by the School of Regulation and Global Governance at the Australian National University (who published the above book too). It discusses the most effective and efficient intervention strategies used for compliance and enforcement. The paper was also published in C. Coglianese (ed.), Achieving Regulatory Excellence, Brookings Institution Press, 2016.


Note: I have changed the name of the blog to make it easier to remember, the link is still the same!

Changes to Education and Care Services National Law from October 2017

You are probably aware that changes to the National Law and Regulations are proposed to come into effect on 1 October 2017 (in Western Australia it will be 1 October 2018) as ACECQA has previously issued some information regarding the changes on its website.

However, the actual amending legislation (bill) has been introduced to the Victorian Parliament and when it is passed the National Law changes will be adopted or implemented by the other States or Territories. This will be by tabling the amendments in the jurisdiction's parliament (ACT, Queensland, Tasmania) amending by regulation (Northern Territory, South Australia), amending the legislation (WA), or automatically (NSW).

The Education and Care Services National Law Amendment Bill 2017 was passed by the Legislative Assembly (lower house) on 9 March. The bill is currently in the Legislative Council (upper house). You can see the bill plus explanatory memorandum and the Minister's 2nd reading speech on the Victorian Legislation and Parliamentary Documents website under "Parliamentary Documents" then look under "Bills" for the title to the bill.

CEO of the Department of Local Government and Communities, Christian Youth Camps WA: Inadequate Supervision (breach of s.165)

In another case of inadequate supervision in Western Australia, on 15 March 2017, the State Administrative Tribunal (SAT) made an order which gave effect to the terms of settlement holding that on 12 October 2016 CYC contravened s.165(1), National Law by failing to ensure that all children being educated and cared for by the service were adequately supervised at all times the children were in the care of that service and imposed a total penalty of $13,000 for this and for breaches of s.174(2) (failure to notify of complaint) and r.136(1) (first aid qualifications) plus $1000 for the Department's legal costs.

The full decision and statement of the agreed facts can be found on the SAT website. However, in brief, the case concerned CYC as the operator (approved provider) of CYC Camp Cooloongup. In October 2016 the service's bus collected a number of children from a primary school and took them to the service premises. However, one of the children fell asleep and remained on the bus. The child, who was 4 years old, made their own way off the bus some 25 minutes later and went into the service's auditorium in a distressed state. The service failed to do a headcount or check the bus. However, a headcount was taken later at the service, about 20 minutes after the bus arrived, after which the service initiated a search for the child. As mentioned other serious breaches were also identified, see the SAT order and attached agreed facts for full details.

By way of explanation, in WA rather than prosecute in a court (as is the case with other States and Territories) certain breaches of the National Law may be heard by the State Administrative Tribunal as a disciplinary action under s.188B of the Schedule to the Education and Care Services National Law (WA) Act 2012.

CEO of the Department of Local Government and Communities and the Young Men's Christian Association of Perth Inc.: Inadequate Supervision (breach of s.165)

On 23 February 2017 the West Australian State Administrative Tribunal (SAT) made an order which gave effect to the terms of settlement holding that on 30 September 2016 the YMCA contravened s.165(1), National Law by failing to ensure that all children being educated and cared for by the service were adequately supervised at all times the children were in the care of that service and imposed a penalty of $15,000.

The full decision and statement of the agreed facts can be found on the SAT website. However, in brief, the case concerned YMCA as the operator (approved provider) of YMCA St John of God Vacation Care. In September 2016 the service conducted an excursion to a wildlife park. A bus was chartered for the excursion. At the end of the excursion the bus returned to the service and dropped the children off and then left to pick up some other children, from another service, from the zoo. At that time a child from the (previous) service was found asleep on the bus (about 15 minutes after the bus had departed the service). The service failed to do a headcount, as per YMCA policy, or check the bus.

By way of explanation, in WA rather than prosecute in a court (as is the case with other States and Territories) certain breaches of the National Law may be heard by the State Administrative Tribunal as a disciplinary action under s.188B of the Schedule to the Education and Care Services National Law (WA) Act 2012.

What is the Purpose of this Blog?

The main purpose of this blog is to provide information on developments in childcare regulation in Australia. Its main focus will be the National Scheme (i.e. Education and Care Services National Law and regulations). The blog is only an information source, it is not a forum for providing advice or answering queries in relation to childcare regulation. However, feedback is welcomed.

The blog is aimed at those involved in the provision of education and care services (i.e. approved providers, educators and other staff) as well as regulators (i.e. government authorities administering and enforcing the National Scheme.

The blog will not be published to any set schedule but as information and time allow. 

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