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  3. Section 2: Applications and Approvals
  4. 3. Waivers and other applications
  5. 3.3 Combining a waiver with conditions on service approval

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3.3 Combining a waiver with conditions on service approval

[  National Law, Section 51 ]

The regulatory authority can impose any conditions it considers appropriate on a service approval and on a waiver.

The regulatory authority may grant a temporary waiver and place conditions on the service approval at the same time.

Conditions may also be placed on the service approval at a later time.

This approach may be suitable where there:

  • is a greater risk to children in granting the waiver, such as where the service would not be allowed to operate without meeting certain conditions or taking certain steps
  • are concerns about whether the provider will maintain their efforts to meet the requirement and follow through on any agreed actions.

This approach may be preferred if it is important families using the service are aware of the grounds on which the waiver has been issued, as the details of any conditions on a service approval must be displayed at the entrance to the service premises.

See Monitoring, Compliance and Enforcement – Conditions for more information about using conditions on a service approval.

After a temporary waiver has been granted

[  National Law, Section 98 ]

The regulatory authority must give the approved provider a copy of their service approval that lists the regulation to which the waiver applies, the period of the waiver and any conditions placed on the waiver.

Regulatory authorities should take a risk-based approach to monitoring compliance of services with a temporary waiver (see Monitoring, Compliance and Enforcement for more information about monitoring activities).

If a service is transferred to a new provider, any waivers that apply will remain in place. However, the regulatory authority might decide to monitor the service after it is transferred, to ensure the grounds on which the waiver was issued still exist.

The National Law does not explicitly give regulatory authorities the power to publish information about waivers. Regulatory authorities may, however, publish information about conditions on service approvals.

Expiry of a temporary waiver

[  National Law, Sections 98, 100 ]

Once the period for which a temporary waiver is granted has passed, the waiver no longer applies and the service must comply with the National Law and Regulations, unless an extension has been granted.

To help ensure families can access current information about the service, the regulatory authority should reissue the service approval once a temporary waiver expires.

Once a temporary waiver expires, the regulatory authority might decide to monitor the service to ensure the requirement is being met (see Monitoring, Compliance and Enforcement for more information).

Application to extend a temporary waiver

[  National Law, Section 98 ]

The approved provider may apply for an extension of a temporary waiver. The regulatory authority cannot extend a temporary waiver without an application from the approved provider. The application must be in writing and include payment of the prescribed fee (see Fees).

The regulatory authority may extend a temporary waiver for up to 12 months. Approved providers may apply for further extensions to a temporary waiver however this will be assessed on a case-by-case basis.

An application for an extension of a temporary waiver must relate to the same regulations and circumstances for which the initial waiver was granted. For instance, a provider might apply for an extension to a temporary waiver if building works take longer than expected, or if an educator needs some more time to complete their approved qualification. If the provider is seeking a waiver of different requirements, they must submit a new application.

When considering an application for extension of a temporary waiver, the regulatory authority will consider the same matters as for an initial application, paying particular attention to the attempts made and/or steps taken by the service to comply with the regulation(s). If the regulatory authority extends the service waiver the service approval will be amended.

Table I

Information that must be included in an application for provider approval made by an individual (regulation 14)
(Note: The WA regulatory authority may not require all of the below information for an application for provider approval)
The applicant’s full name, and any former or other name the applicant may be known by
The applicant’s residential address and contact details
The applicant’s date and place of birth
Proof of the applicant’s identity
A previous service statement made by the applicant (see Glossary)

In states excluding NSW or QLD, if the participating jurisdiction has a working with children law:

  1. if held by the applicant, a copy of their current working with children card or check, or
  2. if the applicant is a teacher registered under an education law of that jurisdiction, proof of the current registration under that law.

For applications to the NSW regulatory authority, the applicant’s working with children clearance number or a copy of the applicant’s current working with children card or check.

For applications to the Queensland regulatory authority, a copy of the applicant’s current working with children card or check.

Except for applications to the Queensland regulatory authority:

  1. a copy of the applicant’s current working with vulnerable people check, or
  2. a criminal history record check issued not more than six months before the date of the application, and a criminal history statement in relation to the period after the date on which the check was issued, to the date of the application.
If the applicant lived and worked outside Australia at any time within the previous three years, an overseas criminal history statement made by the applicant
A disciplinary proceedings statement made by the applicant
A bankruptcy declaration made by the applicant.

Table II

Information that must be included in an application for provider approval made by a person other than an individual (for example, an association or corporation) (regulation 15)
(Note: The WA regulatory authority may not require all of the below information for an application for provider approval)
The applicant’s name and any trading or other name used by the applicant
The applicant’s street address and postal address or, if there is more than one address, the street address and postal address of the applicant’s principal office
The name and contact details of the contact person for the purposes of the application
Documentary evidence of the legal status of the applicant and its constitution (for example, the partnership agreement for a partnership)
A financial declaration regarding the applicant
For each individual who will be a person with management or control of an education and care service to be operated by the applicant, the information set out in Table 1 must be included in an application for provider approval made by an individual.

Table III

Information that must be included in an application for provider approval by an executor who is an individual (regulation 20)
(Note: The WA regulatory authority may not require all of the below information for an application for provider approval)
The applicant’s full name, and any former or other name the applicant may be known by
The applicant’s residential address and contact details
The applicant’s date and place of birth

In relation to the current (deceased) approved provider:

  1. their full name
  2. provider approval number
  3. the date of their death
  4. a copy of the death certificate or other evidence of their death
The proposed duration of the provider approval (cannot exceed six months)
Proof of the applicant’s identity

In states excluding NSW or QLD, if the participating jurisdiction has a working with children law:

  1. if held by the applicant, a copy of their current working with children card or check, or
  2. if the applicant is a teacher registered under an education law of that jurisdiction, proof of the current registration under that law.

For applications to the NSW regulatory authority, the applicant’s working with children clearance number or a copy of the applicant’s current working with children card or check.

For applications to the Queensland regulatory authority, a copy of the applicant’s current working with children card or check.

Except for applications to the Queensland regulatory authority:

  1. a copy of the applicant’s current working with vulnerable people check, or
  2. a criminal history record check issued not more than six months before the date of the application, and a criminal history statement in relation to the period after the date on which the check was issued, to the date of the application.
If the applicant lived and worked outside Australia at any time within the previous three years, an overseas criminal history statement made by the applicant
A disciplinary proceedings statement made by the applicant
A bankruptcy declaration made by the applicant.

Table IV

Information which must be included in an application for provider approval by an executor who is not an individual (e.g. an association or corporation) (regulation 21)
(Note: The WA regulatory authority may not require all of the below information for an application for provider approval)
The applicant’s name and any other trading or other name they use
The applicant’s street and postal address, or if there is more than one address, the street and postal address of their principal office
The name and contact details for the purpose of the application

In relation to the deceased approved provider:

  1. their full name
  2. provider approval number
  3. the date of their death
  4. a copy of the death certificate or other evidence of their death
The proposed duration of the provider approval (cannot exceed six months) documentary evidence of the legal status of the applicants and its constitution (for example, the partnership agreement for a partnership)
A financial declaration regarding the applicant
For each individual who will be a person with management or control of an education and care service to be operated by the applicant, the information set out in Table 1 must be included in an application for provider approval made by an individual.

Table V

Information which must be included in an application for provider approval by a legal personal representative or guardian who is an individual (regulation 22)
(Note: The WA regulatory authority may not require all of the below information for an application for provider approval)
The applicant’s full name, and any former or other name the applicant may be known by
The applicant’s residential address and contact details
The applicant’s date and place of birth
The current approved provider’s full name and provider approval number
The proposed duration of the provider approval (cannot exceed six months)

In states excluding NSW or QLD, if the participating jurisdiction has a working with children law:

  1. if held by the applicant, a copy of their current working with children card or check, or
  2. if the applicant is a teacher registered under an education law of that jurisdiction, proof of the current registration under that law.

For applications to the NSW regulatory authority, the applicant’s working with children clearance number or a copy of the applicant’s current working with children card or check.

For applications to the Queensland regulatory authority, a copy of the applicant’s current working with children card or check.

Except for applications to the Queensland regulatory authority:

  1. a copy of the applicant’s current working with vulnerable people check, or
  2. a criminal history record check issued not more than six months before the date of the application, and a criminal history statement in relation to the period after the date on which the check was issued, to the date of the application.
If the applicant lived and worked outside Australia at any time within the previous three years, an overseas criminal history statement made by the applicant
A disciplinary proceedings statement made by the applicant
A bankruptcy declaration made by the applicant.

Table VI

Information which must be included in an application for provider approval by a legal personal representative or guardian who is not an individual (for example, a corporation or association) (regulation 23)
(Note: The WA regulatory authority may not require all of the below information for an application for provider approval)
The applicant’s name and any other trading or other name they use
The applicant’s street and postal address, or if there is more than one address, the street and postal address of their principal office
The name and contact details for the purpose of the application
The current approved provider’s full name and provider approval number
Documentary evidence of the legal status of the applicant and its constitution (for example, the partnership agreement for a partnership)
A financial declaration regarding the applicant
The prescribed information set out at Table V above for each individual who will be a person with management or control.

Table VII

Information which must be included in an application to suspend provider approval (regulation 19)
(Note: The WA regulatory authority may not require all of the below information for an application for provider approval)
The approved provider’s full name
Their provider approval number
The name and contact details of the contact person for the application
The reasons for the suspension
The date on which the suspension is proposed to take effect, and the duration of the suspension
What is intended to happen to each service operated by the approved provider during the proposed suspension
A statement indicating that the approved provider has notified parents of children enrolled at their services of their intention to apply for a voluntary suspension.

Table VIII

Information that must be included in an application for service approval – centre-based service (regulations 24, 25)
The applicant’s full name and provider approval number (or the applicants contact details if the applicant has applied for a provider approval but the application has not yet been determined)
The name of the proposed education and care service
The proposed date on which the education and care service will start operating
If known, the contact details for the proposed service, including an after-hours telephone number
The proposed ages of children to be educated and cared for by the service
The proposed maximum number of children
The proposed hours and days of operations
A description of the nature of the service
The details of any associated children’s service for which approval is sought
A statement that the applicant has prepared the required policies and procedures as required by regulation 168, see Governance and Leadership

In relation to the person who will be the nominated supervisor for the service:

  1. their full name and contact details, including an after-hours telephone number
  2. their written consent to being the nominated supervisor for the service
The location and street address of the proposed service premises.

Table IX

Information that must be included in an application for service approval – centre-based service (regulations 24, 25, 25A)

Plans prepared by a building practitioner of the proposed service premises that show:*

  1. the location of all buildings, structures, outdoor play areas and shaded areas
  2. the location of all entries and exits
  3. the location of all fences and gates, specifying the type of fence or gate used or to be used
  4. the location of toilet and washing facilities, nappy changing areas and any food preparation areas
  5. the boundaries of the premises
  6. landscape of (or landscaping plans for) outdoor spaces that will be used by the service, specifying the natural environments that are (or will be) provided
  7. a floor plan indicating unencumbered indoor and outdoor spaces suitable for children
  8. the location of any associated children’s service
  9. calculations, carried out by a building practitioner, relating to unencumbered indoor and outdoor space (as set out in regulations 107–108 and 259A (ACT only))
  10. the elevation plans of the premises
If a swimming pool or other water hazard is situated on the proposed service premises, a copy of the service’s water safety policy

One of the following:

  1. a soil assessment for the site of the proposed service premises
  2. if relevant, a statement specifying the date of a previous soil assessment
  3. a statement from the applicant that, to the best of their knowledge, the site history does not indicate the site is likely to be contaminated in a way that poses an unacceptable risk to the health of children
For OSHC, if the approved provider is seeking to locate the early childhood education and care service on a school site, the regulatory authority may determine that a soil assessment is not required
If a planning permit is required under the state or territory planning and development law, a copy of the planning permit for the proposed service premises
A statement that the applicant has the right to occupy and use the premises, and any document evidencing this, for example, a lease of the premises

Unless the service premises is a government or registered school, one of the following:*

  1. a copy of an occupancy permit; certificate of final inspection; building certificate; certificate of classification; or building surveyor’s statement for the final construction and fit-out of the service premises
  2. a statement from a building practitioner that the service premises complies with the building requirements under state or territory building law or planning development law.
If the proposed service is to be located in a multi-storey building shared with other occupants, the storey(s) on which the service is proposed to be located and the total number of storeys in the building. If the service premises is to be located on more than one storey, the ages of the children on each storey.

* Regulatory authorities may waive this requirement if the approved provider is seeking: – to relocate the education and care service to alternative premises for not more than 12 months, or – to locate the education and care service on a school site.

Table X

Information that must be included in an application for service approval – family day care service (regulation 26)
The applicant’s full name and provider approval number (or the applicants contact details if the applicant has applied for a provider approval but the application has not yet been determined)
The name of the proposed service
The proposed date the service will start operating
If known, the contact details for the proposed principal office of the service, including an after-hours telephone number
The proposed hours and days of operation, including whether the service proposed to engage or register family day care educators who will provide overnight or weekend care
The proposed location and street address of the principal office of the service
The proposed number of family day care educators to be engaged by or register with the service within six months of operating
The states and territories and proposed local government areas where family day care educators expected to be engaged or registered with the service will provide education and care
The proposed number of family day care co-ordinators expected to be engaged by the service within six months of operating
A statement that the applicant has prepared the required policies and procedures (as required by regulation 168, see Operational Requirements)

A copy of the proposed policies and procedures for (required by regulation 169):

  1. assessment and approval, and reassessment of approved family day care venues and residences, including the requirements in regulation 116
  2. engagement or registration of family day care educators
  3. keeping a register of family day care educators
  4. monitoring, support and supervision of family day care educators, including how the service will manage educators at remote locations
  5. assessment of family day care educators, family day care educator assistants and persons residing at family day care residences, including the requirements in regulation 163
  6. visitors to family day care residences and venues while education and care is provided to children
  7. provision of information, assistance and training to family day care educators
  8. engagement or registration of family day care educator assistants
If the service will permit a family day care residence or venue with a swimming pool or a water hazard, a copy of a proposed water safety policy for the service (Note: swimming pools are prohibited in Tasmania for all education and care services)
In relation to the person who will be a nominated supervisor for the service: their full name and contact details, including an after-hours telephone number, and their written consent to being a nominated supervisor for the service
If the proposed family day care venue is to be located in a multi-storey building shared with other occupants, the storey(s) on which the venue is proposed to be located, and the total number of storey(s) in the building. If the venue will be located on more than one storey, the ages of the children on each storey
A statement that the applicant has the right to occupy and use the proposed premises as a principal office and any document evidencing this (e.g. a lease of the premises)
A statement that each family day care residence and venue will be located in this jurisdiction

If the application includes a request for a venue approval, include:

  1. the location and street address
  2. a statement that the applicant has the right to occupy and use the place as a family day care venue and any document evidencing this and
  3. an assessment (including any risk assessment) of the place conducted by the approved provider to ensure that the health, safety and wellbeing of children being educated and cared for by the service are protected.

Table XI

Information that must be included in notification of transfer of service approval (regulations 36, 37)
Name of the education and care service
Service approval number
Transferring approved provider’s name, contact details and provider approval number
Receiving approved provider’s name, contact details and provider approval number
Date the transfer is intended to take effect
Any proposed changes in relation to the information required to be included in an application for service approval (see Table VIII for centre-based services, and Table IX for family day care services).

Table XII

Information that must be included in an application for voluntary suspension of service approval (regulation 40)
Name of the service
Service approval number
Name and contact details of the contact person for the application
Reasons for the suspension
Date on which the suspension is proposed to take effect and the duration
A statement indicating that the approved provider notified parents of children enrolled at the service (and any associated children’s service) of their intention to apply for a suspension at least 14 days before making the application.

Table XIII

Information that must be included in an application for a service waiver (regulation 42)
Name of the education and care service
Service approval number
Name and contact details for the contact person for the application

A statement that specifies:

  1. the regulations for which the service waiver is sought, and
  2. the way in which the service does not, or will not, comply with the specified regulations
Reasons the service is unable to comply, and details and evidence of any attempts made to comply with the specified regulations, or any other reasons why the service seeks the waiver
Measures being taken, or to be taken, to protect the wellbeing of children being educated and cared for by the service while the waiver is in force.

Table XIV

Information that must in included in an application for a temporary waiver (regulation 45)
Name of the education and care service
Service approval number
Name and contact details for the contact person for the application

A statement that specifies:

  1. the regulations for which the service waiver is sought, and
  2. the way in which the service does not, or will not, comply with the specified regulations
Reasons the service is unable to comply, and details and evidence of any attempts made to comply with the specified regulations
Period for which the temporary waiver is sought (up to 12 months)
Details of steps being taken, or that will be taken, to comply with the specified regulations
Measures being taken, or to be taken, to protect the wellbeing of children being educated and cared for by the service while the waiver is in force.