1.1 Application for provider approval

[ National Law, Sections 10, 11, 12 ]

WA An individual, body corporate, eligible association, partnership or prescribed entity may apply to be an approved provider. See the Glossary for the meaning of these terms.

The application must include all information listed in the National Regulations and payment of the set fee. See Application checklists – Tables I, II and Fees.

Applications by individuals

The application must be sent to the regulatory authority in the state or territory where the applicant/s live.

Applications by non-individuals

When an applicant is not an individual, section 12(2)(b) of the National Law requires the applicant to satisfy the regulatory authority that the applicant is a fit and proper person to be involved in the provision of an education and care service.

When assessing the fitness and propriety of a non-individual applicant for provider approval, regulatory authorities may assess all members of the applicant entity for fitness and propriety, regardless of whether the person is determined by the approved provider to be a person with management or control.

Persons with management or control of an education and care service

When an applicant is not an individual, section 12(2)(a) of the National Law requires the applicant to satisfy the regulatory authority that each person who will be a person with management or control at the service is a fit and proper person.

A non-individual applicant for provider approval can include:

a corporate body (this includes an incorporated association, statutory corporation, etc.)
unincorporated associations (for example, a cooperative)
partnerships, and
government bodies.

An application by a non-individual applicant must be sent to the regulatory authority in the state or territory where the applicant’s principal office is located (or where any of the applicants’ principal offices are located if there is more than one).

[ National Law, Section 5A ]

Who is a person with management or control?

The persons who meet the definition of person with management or control will differ, depending on the structure of the entity intending to become an approved provider.

If the intending provider is a body corporate – a person with management or control is each officer of the body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth) who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the service.

If the intending provider is an eligible association – a person with management or control is each member of the executive committee of the association who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the service.

If the intending provider is a partnership – a person with management or control is each partner who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the service.

A person with management or control may also be any other person who is a member of the group of persons responsible for the executive decisions made in relation to the service, or who has authority or responsibility for, or significant influence over, the planning, direction or control of the activities or delivery of the service, is also a person with management or control.

See the Glossary for the complete definition of Person with Management or Control under the National Law.

In this context, ‘management or control’ refers to the executive, management, financial and/or business decisions made by, or on behalf of, the approved provider – in relation to delivery of an education and care service. A person with management or control refers to a person who has the responsibility, alone or with others, to make, or participate in making, decisions that affect the business of the entity or who has the capacity to significantly influence the entity’s financial standing.

For companies, this will generally include directors, and for committees and associations, it will usually include executive members or office bearers. It may also include persons in senior management roles within the approved provider or entity, or a person or company engaged by the approved provider to operate the service on its behalf. Examples include a state manager, chief financial officer, quality manager, or another person who has the power to direct a centre manager or a nominated supervisor.

While a person such as a centre manager or a nominated supervisor may have ‘day-to-day charge’ of a service, they may not be a person with management or control if they do not make decisions, or participate in decision-making, of the kind described here.

To assess the fitness and propriety of a non-individual applicant for provider approval, regulatory authorities should assess all members of the applicant entity for fitness and propriety, regardless of whether the person is determined by the approved provider to be a person with management or control.

Members of the applicant entity include company directors, executive members of an association, and partners of a partnership.

In some circumstances, an officer of an approved provider entity may not be a person with management or control. For example, a company director or an executive committee member may not fit the definition of person with management or control if, in their role, they do not have authority, responsibility or significant influence for, or control over the delivery of, an education and care service.

In these circumstances, the officer or member of the approved provider entity can expressly indicate in writing to the regulatory authority that they will not have management or control of the service. The regulatory authority has the discretion to determine whether the officer meets the definition of persons with management or control.

If the application for provider approval is granted, it is an offence under section 173 of the National Law for the approved provider to fail to notify the regulatory authority of any appointment or removal of a person with management or control of any service operated by the provider. This offence may attract a $4,000 penalty if the approved provider is an individual, or $20,000 if the approved provider is not an individual.

Note: A trust is not a legal entity and therefore cannot hold property or enter into contractual arrangements. For example, a trust cannot hold a provider approval. A trustee can apply for and hold a provider approval, as an individual or body corporate.

Applications and notifications can be submitted to the regulatory authority online using the National Quality Agenda IT System on the ACECQA website at www.acecqa.gov.au. The National Regulations do not specify what type of documentation is required as proof of identity when applying, and do not require applicants to submit 100 points of identity or certified copies of their documentation. The regulatory authority may request certified copies if it is concerned about the authenticity of documents included in an application.

Incomplete applications

The timeframe for processing an application does not begin until an application is 'valid', meaning complete with all prescribed information.

If an application does not include all prescribed information the regulatory authority may treat the application as invalid and either request missing information be provided within a set timeframe, or close the invalid application.

The National Law does not specify how much time applicants have to provide this information once requested by a regulatory authority. Regulatory authorities will set timeframes taking into consideration:

the amount and complexity of the information requested
the applicant’s capacity to provide information in that timeframe
whether a timeframe applies to when the applicant must submit the application.

Regulatory authorities must keep records of incomplete applications. The State Records Act 1998 (NSW) applies to all states and territories for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265).

Generally, the regulatory authority will not complete applications on behalf of applicants using the information held on file as this information could be out of date. Procedural fairness issues could arise if information is taken into account without the knowledge of the applicant.

Timeframe for assessing an application

[ National Law, Sections 14, 15 ]

The regulatory authority must make a decision within 60 calendar days of receiving a complete application.

If more information is requested, the time taken to provide additional information is not included in the 60-day period. This includes if the regulatory authority requires the applicant to undergo an oral or written assessment. If this occurs, the time taken from the point of the invitation to undergo that assessment, through to the result of that assessment being made available to the regulatory authority, is not included in the 60 day period.

If the applicant agrees, the 60-day period (not including any time taken to provide additional information or to carry out a knowledge assessment) may be extended by up to 30 calendar days.

If a decision is not made within 60 calendar days, the application is taken to be refused.

The regulatory authority must give the applicant written notice of its decision and the supporting reasons, within seven (7) calendar days of making the decision.

Calculating time

[ National Law, Sections 15, 16 ]

The National Law sets out how timeframes are calculated at schedule 1, clause 31.

An application cannot begin to be processed unless the application is complete/valid and includes all the required information.

When calculating the timeframe, the day the application is received is excluded. If the timeframe is expressed in the legislation in terms of a number of days, the last day of that timeframe is also excluded. ‘Day’ means calendar day. For example, a regulatory authority must make a decision on a provider approval application within 60 days after the application is received (see section 15). If the regulatory authority receives the application on 1 March, the 60-day timeframe commences on 2 March and runs until the end of 1 May. 1 March is excluded from the calculation, and 30 April, the 60th day, is also excluded.

If the last day of the timeframe falls on a non-business day, the next business day will be the last day. Using the example above, if 1 May is a Saturday, Sunday or public holiday, the regulatory authority’s decision will be due the first working day after 1 May.

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