Published by CELA on 1 Nov, 2017

As the fifth year of the National Quality Framework draws to a close, it’s reasonable to expect most of the big differences between states and territories are gone or on their way out soon, right?

Getting closer

There’s no doubt we are getting closer to national consistency with the most recent tranche of reforms, but the small freedoms that jurisdictions have to apply the National Law and Regulations differences can still create contrasts that surprise us.

One of those differences emerged this week, when Fairfax media reported that 10 Canberra child care centres and one family day care provider were found in breach of national standards.

The report stated the ACT’s Education Directorate would not name the providers or give any details about what the breaches involved or how serious they may have been.

“We cannot name the providers until we have settled a new publication policy in consultation with the sector,” the spokesperson said.

But across the border…

Yet the same breaches almost anywhere else in Australia (see table below) might see the provider publicly listed on the regulatory authority’s website on the grounds that:

  1. families have a right to know if their current or prospective service is fully compliant and, if not, what action is underway to fix things
  2. naming and shaming is seen as a deterrent in regulatory practices.

Take this recent story from Queensland for example, where the case went right through to an appeal which was covered by the media. There is no doubt that a public interest exists in knowing what had occurred and knowing it had been addressed by the Education Department.

Townsville kindergarten closure
Townsville kindergarten closure

Applications may vary

A major component of the NQF is the National Law and Regulations.

The law and regulations may be called national but regulatory authorities have, in some cases, flexibility in the way in which they apply the rules on the ground.  This makes sense when you consider a regulatory authority might be an entire department in one state, a branch of a bigger agency in another, and in an independent statutory authority in another.  There may be pre-existing state legislation affecting children, education, buildings or policing that could not be un-picked for the sake of the NQF back in 2012.  Having some flexibility around the way the National Law and Regulations are applied is considered an acceptable compromise to consistency by governments.

A look at the law

In relation to the publication of enforcement action under the National Law Section 270 of the National Regulations states a regulatory authority ‘may‘ publish information including:

  • a prosecution for an offence against the National Law or National Regulations leading to a conviction or finding of guilt or a plea of guilt
  • the acceptance by the regulatory authority of an enforceable undertaking
  • the issue of a compliance notice
  • the suspension or cancellation (other than a voluntary suspension or surrender) of a provider approval, service approval or supervisor certificate
  • an amendment made to a provider approval, service approval or supervisor certificate for the purposes of enforcement.

Section 270 also details what information can be published and what information must not be included. The full details are available online.

A snapshot of publishing policies

A Regulatory Authority may choose whether to publish eligible NQF enforcement actions, but it may also have a policy of choosing from case to case whether each type of breach and enforcement will be made public.  This allows a level of judgment about the severity of the offence and the speed at which it will (or won’t) be remedied.

As of November 2017 Australia’s different regulatory authority policy positions on Section 270 of the Regulations are shown in this table. In short, every state has some form of publication policy for enforcement actions, but neither the ACT nor Northern Territory currently do.

NSW
Services are monitored regularly by Early Childhood Education Directorate, NSW Department of Education.

The department’s preference is to work with education and care service providers to get problems fixed quickly.

Where stronger action has to be taken, the department is committed to making information about this available to parents, the community and industry via the Enforcements Action List.

QLD

The Regulation, Assessment and Service Quality, Early Childhood and Community Engagement, Dept of Education and Training publishes information about the ‘more serious’ enforcement actions of the Regulatory Authority.

If a service fails to provide quality education and care, endangering children’s health, safety and wellbeing, the regulatory authority may take enforcement action.

Some compliance actions are publishable.  You can view the list of published compliance actions here  Published enforcement and compliance actions.

VIC

Under the Victorian children’s services legislation compliance information about licensed children’s services may be published on the Department’s website.

Enforcement actions under the Education and Care Services National Law Act 2010 and Education and Care Services National Regulations are published in relation to those enforcement actions and ratings permitted to be published under the provisions on section 270 and regulation 227.

TAS

Department of Education, Education and Care Unit in Tasmania publishes this information on its website. It includes enforcement actions under the Education and Care Services National Law Act 2010 and the Education and Care Services National Regulations. Information published on this page only relates to those enforcement actions permitted to be published under Section 270(5) and regulation 227.

SA

Education Standards Board publishes compliance and enforcement information on its website for three years. However, an affected person may apply to the Board to remove the compliance and enforcement action information.  The Board will then decide to amend, remove or retain that information on its website.

WA

The Department of Local Government and Communities (DLGC) publishes details about the following enforcement actions for serious non-compliance:

  • Suspension or cancellation of provider approvals, service approvals and of supervisor certificates.
  • Issue of compliance notices.
  • Imposition of conditions on approvals or certificates for purposes of enforcement. Acceptance by DLGC of enforceable undertakings.
  • Details of prosecutions or applications to the State Administrative Tribunal.

ACT

The ACT published breaches from 2014 to 2015, then ceased the practice to allow development of a broader compliance framework.

Scroll down to the statement later in this article from ACT Education Directorate Spokesperson

NT

Quality Education and Care NT, Department of Education, does not include any information on its website about enforcement action, and confirmed to us that the NT does not publicise compliance breaches.

So what’s going on in the ACT?

We asked the ACT Education Directorate for its response and received the following explanation:

The Education and Care Services National Law provides State and Territory Regulatory Authorities with a discretionary power to publish specific compliance actions.  However, the National Law requires Regulatory Authorities not to publish material that would identify people other than providers, nominated supervisors, a person being criminally prosecuted or a person with management or control over a service.

In late 2015 and over 2016 the Education Directorate engaged in re-organising the ACT Regulatory Authority and developed a new compliance framework in consultation with the community and the sector.  Attached is a copy of the new compliance framework.  We made a decision to stop publishing decisions because we wanted that aspect of compliance to be considered in context of an overarching compliance policy framework.  From that overarching framework, we have worked on specific procedures and policies that inform how we go about Assessment and Rating, compliance auditing, undertaking investigations and triaging complaints and investigations.

Since the re-organisation we’ve seen improved reporting required of providers and improved response from services where non-compliance is identified.  We are developing a new policy towards publication in consultation with the community and the sector and also addressing technological issues that would enable updates to flow automatically.   Depending upon the technological issues, it is likely we would settle a new approach in 2018.

What do you think?

Does the public have a right to know about breaches?

Does publication of enforcement actions work as a deterrent?

Have you ever been caught up in an enforcement action that led to publication of the details in your state?

Is it fair that a serious breach in Goulburn leads to publication on the NSW regulatory authority’s website, but the same offence a short drive up the road in Canberra stays out of the public eye?

Meet the author

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.

About CELA

Community Early Learning Australia is a not for profit organisation with a focus on amplifying the value of early learning for every child across Australia - representing our members and uniting our sector as a force for quality education and care.

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