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‘How do we rebound from this?’ Life in the regulatory naughty corner

Belittlement isn't what we teach children
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Recently we shared information about how the publication of enforcement actions – based on the public’s right to know about major compliance breaches and prosecutions – can differ from state to state.

While Section 270 of the National Regulation says each regulatory authority may publish information, not all choose to do so.

Currently the ACT and NT are the only jurisdictions that do not publish any enforcement actions on their websites. The ACT has done so in the past (2014 and 2015), but chose to halt publication actions while it consults on a number of new policies with the sector.

Haunted by the past

The other six jurisdictions (see table below) publish some enforcement actions as a way to inform the public of successful prosecutions against individual educators or providers. This is primarily so that families have access to important information about the early learning services they send or consider sending their children to – but at this stage its effectiveness as an awareness tool appears to be measured only by anecdote. The same might be said for the published lists’ value as a deterrent against committing serious breaches.

An interesting question arose after we had published our first article about these enforcement actions. What happens when a service changes ownership and/or management and has completed all remedial actions. Should their name still be tarnished? Additionally, are centres that close down removed from publication? We realised we needed to find out more.

Name and shame

After the earlier article we heard from a representative of a service which appears on one of the state regulatory authority lists to ‘name and shame’ (as she put it – and we’ll call her ‘B’).

By naming and shaming we close down the openness required to share experiences and learn.

While B agreed there was a level of public interest in offences related to children that led to a successful prosecution, she was deeply concerned about the fact that in her state jurisdiction there was nothing online to indicate the amount of work that her new management had since undertaken to ensure nothing like that offence could ever happen again.

“It’s just heart-breaking to see our name still up there for something done years ago by entirely different people,” B said.

So does it help?

The Naughty Corner
An old-fashioned naughty corner?

Regulation is an evolving area.  In the past, and in some places still, government regulation was very much about fear and carrying a big stick to enforce desired behaviour.  Modern regulators, like our state and territory regulatory authorities, generally work to a policy of regulation by education and information – waving a carrot rather than a stick when possible.

A compliance visit can still strike terror into some educators’ hearts but the very small number of prosecutions compared to the very large number of services under the past five years of the NQF shows things generally only reach a court or tribunal hearing when regulators have exhausted all other options to steer the service back to compliance or when legally they have no choice but to prosecute.

And yet for some like B, whose services appear on the public lists, who are not personally responsible for the prosecuted offence, it can feel like a permanent trip to the regulatory equivalent of the Naughty Corner.

‘How do we rebound from this?’

Later, B sent us some additional thoughts.

I think my other point, is how we learn from and recover from human error in organisations whose pure role is the humanities.

We are compliance and regulatory driven, with hundreds of thousands of unique care experiences occurring per day in the early learning and care sector, some human error will occur.

How do we rebound from this?  How do we repair?  How do we invite learnings from the past to stop errors in the future?  These and more are the questions I have about our processes.

We want our children to be in regulatory environments which invite reflection about change, difference and error.  We are all human, we all make mistakes, some mistakes are catastrophic, most are not – what matters is what we do or say to learn from and about these environments to create safety and reduce the likelihood of human error.

By naming and shaming we close down the openness required to share experiences and learn.

By not removing names from age-old lists, we continue to reinforce blame and belittlement even when repair and dramatic change has occurred.  It is at odds with what we teach our children.

A snapshot across the country

The National Law does not provide a way for services or individuals to appeal the public listing or ask to be removed from the published list on the regulatory authority’s website. Individual Regulatory Authorities are responsible for dealing with these matters.

We asked the six jurisdictions that choose to publish enforcement information if they offer an appeals process or will consider removing a listing if, for example, the ownership changes, the management is replaced or some other major shift in circumstances occurs.  We also asked whether the publication was limited to a set period of time, or whether it was discretionary or, indeed, a permanent listing.

NSW holds the line

In New South Wales there is no appeals process related to publication (as opposed to the actual enforcement action) and no capacity to request removal from the published list.

A NSW Department of Education spokesman said:

‘The actions published are focused on an approved provider, nominated supervisor, or a person being prosecuted for an offence, as opposed to a service.

‘As such, if the ownership of a service changes, the published enforcement action will reflect the name of the approved provider who was responsible for the offence.

‘Similarly, if a service closes down, the publication will still reflect that the approved provider (who may still be currently operating other services), was responsible for a particular offence.”

It can’t hurt to ask…

The other Regulatory Authorities with publication processes all offer some ability to appeal publication and/or request to have the public listing removed, summarised in this table.

 

State or Territory

Right to appeal process

Queensland

When publication of enforcement action is considered to be in the public interest, the person or entity is advised this may occur. As publication occurs at the discretion of the Regulatory Authority it will consider a request, with supporting grounds, as to why the enforcement action should not be published.

There is no legislated time period associated with the publication of enforcement actions and a request to remove can be made at any time after publication.

DET’s enforcement register is regularly reviewed to ensure it remains relevant, current and appropriate in the circumstance. In determining whether to remove items from the register, DET gives consideration to the duration of publication, the initiating offences and whether there has been a change in ownership or the service has closed.

Victoria

A Department spokeswoman advised that

“Those subject to an enforcement action may apply to the Department to request the information is removed from its website if it can demonstrate that its circumstances have changed, including if it has completed all remedial action or a service changes ownership or management.”

“Decisions to remove information from the Department’s website will be determined on a case-by-case basis and on the merit of each application.”

Tasmania

An approved provider may submit a request in writing to the Regulatory Authority to ask that published information about an enforcement action is removed.  Requests are considered based on the requirements of the NQF including the objectives and guiding principles of the Education and Care Services National Law.

There is no legislated timeframe to remove published information about enforcement actions.  Tasmanian policy regarding removal of published enforcement actions is subject to development.

Western Australia

If a service changes ownership and/or management and has undertaken all the remedial actions required to comply with legislation, the department will update the published details to note that the service has taken these actions. However the details are not removed from the website.

A service provider can appeal the department’s decision to list a non-compliance but unless the department has made an error, it is very unlikely the listing would be removed.

If a service has closed, the published list still includes details of enforcement actions about that service.

South Australia

The Education Standards Board publishes enforcement actions for a period of 3 years, however an affected person may apply to the Board to remove the information.  The Board will decide to amend, remove or retain the information published based on the reasons for taking the action and the nature of the request to remove it from publication.

The register is reviewed and updated on a quarterly basis to include new actions and where applicable remove those where the 3 years has lapsed.

 

What’s your view?

Last time we published on this topic we received a contact that revealed an even more complicated – and potentially inconsistent – aspect to the publication of enforcement actions.

What do you think? Should there be a time limit on publication? Should the prosecution list also show what remedial actions have been taken?Does the ‘name and shame’ model work for early childhood and middle years education or not? What other choices could regulators make to meet the public’s need to know about offences in a children’s service?

You may use the comment box at the end of this post, or social media, for a public discussion or use this contact form to email us directly.

 

CELA WRITERS

Bec Lloyd is the founder and managing director of Bec & Call Communication, providing professional writing, editing and strategy services to the school and early childhood education sector since 2014. In 2018 she launched UnYucky mindset and menus for happier family mealtimes. Formerly the communications lead at ACECQA and BOS (now NESA), Bec is a journo and mother of three who produces Amplify for us at Community Early Learning Australia.

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