4.2 Application for temporary waiver

[  National Law, Sections 94, 100 ]

An approved provider may apply to the regulatory authority for a temporary waiver. A temporary waiver means a service is not required to comply with a specified requirement or requirements of the National Regulations for a period of time. 

If the regulatory authority becomes aware of an approved education and care service not being able to meet staffing or physical environment requirements, despite attempts to comply, it may inform the approved provider that they may apply for a temporary waiver, if it is satisfied the approved provider has reasonable justification for not being able to comply.

What requirements can be the subject of an application for a temporary waiver?

[  National Regulations, Regulation 44 ]

Requirements that can be temporarily waived by the regulatory authority under the National Regulations are set out in the table below.

How does an approved provider apply?

[  National Law, Section 95 ]

An application for a temporary waiver must be in writing and include payment of the prescribed fee (see Fees).

An approved provider can only apply for a waiver of the prescribed regulations set out in the above table. If the regulatory authority receives an application for a waiver of a regulation that is not prescribed, the application may be refused and the application fee may be refunded.

[  National Law & Regulations, Section 95, Regulation 45 ]

The National Regulations prescribe information that must be included in an application for a temporary waiver (see Application checklists – Table XIII).

The National Regulations do not specify the type of evidence that must be included to support a waiver application. Therefore, the regulatory authority has discretion to accept a range of evidence.

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.

Incomplete applications

If an application does not include all the prescribed information, the regulatory authority may treat the application as invalid. The timeframe for processing an application does not begin until an application is deemed complete and therefore valid.

Timeframe for assessing an application

[  National Law, Section 98 ]

The regulatory authority must notify the applicant of their decision within 60 calendar days of receiving a complete application. There is no provision to extend the timeframe for determining an application for a temporary waiver.

Calculating time

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 an application for a temporary waiver 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, being 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.

If more information is needed, the time period for responding to the regulatory authority request is excluded from the 60-day limit within which the regulatory authority must decide the application.

Considering an application

[  National Law, Sections 96–97 ]

The regulatory authority must consider whether any special circumstances disclosed in the application reasonably justify the grant of a temporary waiver. When considering an application for a temporary waiver, the regulatory authority may consider the measures being taken or to be taken to protect the wellbeing of children while the proposed waiver is in force, and any other information included in the application.

The regulatory authority may ask for more information or may inspect the service premises or office for the purpose of assessing the application. If more information is requested, the time taken to provide it is not included in the period for determining the application.

Assessment of waiver applications

All applications for service or temporary waivers are assessed on a case-by-case basis with reference to the requirements of the National Law and Regulations. If the regulatory authority grants a waiver, it must issue or reissue the service approval specifying the regulation to which the waiver applies.

In assessing a waiver application a regulatory authority should consider the following non-exhaustive list:

General

• the measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service while the proposed waiver would be in place
• the benefits to families, children and communities in having the service operate
• the service’s Quality Improvement Plan
• the number and age range of children enrolled at the service
• attempts made by the approved provider to comply with the regulation(s)
• the cost of any adjustments needed for the service to comply with the regulations for which a waiver is being sought
• the compliance history of the approved provider and/or the service
• unusual or unforeseen circumstances, such as natural disasters
• whether the issue is ongoing (i.e. longer than 12 months) and requires a service waiver, rather than a temporary waiver, or circumstances have changed and a temporary waiver is required instead of a service waiver.

Staffing waivers

• staff details, including rosters and qualifications
• evidence of recruitment e.g. advertising and the outcomes of a recruitment attempt
• evidence of progress towards relevant qualifications
• strategies in place to attract, upskill and retain staff
• what the service is doing to meet the immediate shortfall.

Physical environment waivers (including indoor and outdoor spaces)

• access to indoor and outdoor space, or facilities e.g. toilets
• building and floor plans by a certified building practitioner
• photos of relevant spaces e.g. simulated outdoor space
• details of renovations
• impact on programming, educational outcomes and experience of children

At the discretion of the regulatory authority, an authorised officer may visit the service premises to view the relevant spaces and gather additional information.

Determining an application

Granting or refusing a temporary waiver

[  National Law, Section 98 ]

If granted, the regulatory authority must specify the period for which the temporary waiver will apply, which can be up to 12 months. The regulatory authority must issue or reissue the service approval, specifying the regulation to which the temporary waiver applies, the period of the waiver, and any conditions placed on the waiver.

Conditions on temporary waivers

If a temporary waiver is granted, the regulatory authority may place conditions on the waiver including limiting the use of the waiver. The regulatory authority may also remove, add to or vary any conditions placed on the temporary waiver at any time.

Applications to waive multiple regulations

At the discretion of the regulatory authority, an approved provider may include multiple regulations in a single waiver application. If the regulatory authority receives an application seeking to waive multiple regulations, it may decide to grant a waiver in relation to some regulations but refuse others.

If a waiver applies to multiple regulations, conditions may be imposed on some or all aspects of the waiver.

Revoking a temporary waiver

[  National Law, Section 99 ]

The regulatory authority may revoke a temporary waiver at its discretion.

An application for a temporary waiver must include details of any attempts made to comply with the regulation and the measures being taken, or to be taken, to protect the wellbeing of children being educated and cared for by the service. The regulatory authority may consider revoking a temporary waiver after it has been granted, if made aware that the grounds on which it was granted no longer apply or that the service approval has not been complied with.

There is no notice period for revoking a temporary waiver.

If the regulatory authority revokes a waiver and the approved provider fails to comply with a requirement of the National Law and Regulations, it may consider whether it is appropriate to take compliance action.

An approved provider may contact the regulatory authority seeking to have a temporary waiver revoked if it is no longer required. The National Law does not prescribe the process for revoking a temporary waiver at a provider’s request.