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  3. Section 5: Regulatory Authority Powers
  4. 2. Compliance tools

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2. Compliance tools

There are a wide range of methods and tools regulatory authorities may use when addressing non-compliance. This section sets out the tools that are available under the National Law and provides guidance on which tool to use, based on the specific circumstances.

These tools should be used in context of the Good Regulatory Practice section, which sets out the objectives of the National Law and the best practice principles of regulation listed below.

Best practice principles of regulation

Outcomes focus

Proportionality and efficiency

Responsiveness and flexibility

Transparency and accountability

Independence

Communication and engagement

Mutual responsibility

Consistency and predictability.

Regulatory authorities:

  • take a responsive regulatory approach when choosing the methods used to manage non-compliance, considering all the risks
  • are mindful of their administrative law obligations and keep records of compliance activities (see Good Regulatory Practice). The NSW State Records Act 1998 applies to all jurisdictions for the purposes of the National Law and Regulations (section 265).

Summary of National Law compliance tools

Person

Compliance tools available

Description

Approved provider

Infringement notice

A fine for minor breaches of the National Law or the National Regulations (section 291)

Emergency action notice

Direction to remove an immediate risk to children (section 179)

Compliance direction

Instruction to comply with prescribed regulation (section 176)

Compliance notice

Instruction to comply with any section or regulation (section 177)

Enforceable undertaking

Agree to an undertaking from a person to take certain actions or refrain from certain actions to comply with the National Law and the National Regulations (section 179A–181)

Direction to exclude inappropriate persons from service premises

Instruction to exclude a person from education and care service premises (section 171)

Amendment of a service approval to include a condition

A requirement in respect of a specific service that the approved provider must comply with to avoid committing an offence under the National Law (section 51)

Amendment of a provider approval

A requirement that the approved provider must comply with to avoid committing an offence under the National Law (section 19)

Prosecution

Bringing any offence against the National Law or the National Regulations for decision by a court or tribunal

Notice to suspend education and care by family day care educator

Prevent a family day care educator from providing education and care to children as part of a family day care service (section 178)

Suspension of service approval

Temporarily prevent a provider from operating a specific service (section 70)

Cancellation of service approval

Permanently prevent a provider from operating a specific service (section 77)

Suspension of provider approval

Temporarily prevent a provider from operating any services (section 25)

Cancellation of provider approval

Permanently prevent a provider from operating any service (section 31)

Summary of compliance tools

Person

Compliance tools available

Description

Nominated supervisor

Infringement notice

A fine for minor breaches of the National Law or the National Regulations (section 291)

Enforceable undertaking

Agree to an undertaking from a person to take certain actions or refrain from certain actions

to comply with the National Law and the National Regulations (section 179A–181)

Direction to exclude a person from education and care service premises

Direction to exclude inappropriate persons from service premises (section 171)

Prosecution

Bringing any offence against the National Law or the National Regulations for decision by a court or tribunal

Family day care educator

Infringement notice

A fine for minor breaches of the National Law or the National Regulations (section 291)

Enforceable undertaking

Agree to an undertaking from a person to take certain actions or refrain from certain actions to comply with the National Law and the National Regulations (section 179A–181)

Direction to exclude a person from education and care service premises

Direction to exclude inappropriate persons from service premises (section 171)

Prosecution

Bringing any offence against the National Law or the National Regulations for decision by a court or tribunal

Staff member, educator or volunteer

Enforceable undertaking

Agree to an undertaking from a person to take certain actions or refrain from certain actions to comply with the requirement not to use inappropriate discipline (section 179A–181)

Prosecution

Bringing an offence to use inappropriate discipline under the National Law for decision by a court or tribunal

Any person in any way involved in an education and care service

Prohibition notice

Prohibit a person from being involved in an education and care service in any way (sections 182–188A)

Prosecution

Bringing any offence against the National Law or the National Regulations for decision by a court or tribunal

2.1 Infringement notices

What is an infringement notice?

 

[  National Law, Section 291 ]

An infringement notice is a monetary penalty for non-compliance with specific requirements of the National Law and Regulations. An infringement penalty is 10 per cent of the maximum penalty that could be imposed on the person for that offence. Infringement offences are typically for minor offences that are clear and unambiguous. They are used to give a person an immediate minor penalty to deter future non-compliance.

When can it be used?

[  National Law, Section 291 ]

An infringement notice can only be served on a person for a contravention of the requirements set out in the table below.

Once satisfied that this tool can be used, a regulatory authority may consider the following in deciding whether an infringement notice is appropriate:

  • Is there no serious risk to the safety, health and wellbeing of children being educated and cared for at the service?
  • Is the penalty proportionate to the seriousness of the offence?
  • Is the penalty likely to serve as a deterrent to committing the offence again?

Requirements for which an infringement notice may be used

Law/Regulation

Requirement

Person

Section 172

Display prescribed information

Approved provider

Section 173

Notify certain circumstances to the regulatory authority

Approved provider

Section 176

Comply with a compliance direction

Approved provider

Section 269

Keep a register of family day care educators, co-ordinators and assistants

Approved provider

Regulation 77(1), (2) and (3)

Health, hygiene and safe food practices

Approved provider, nominated supervisor, family day care educator

Regulation 80(1)

Weekly menu

Approved provider, nominated supervisor and family day care educator

Regulation 83(1), (2) and (3)

Use of alcohol or drugs

Approved provider, nominated supervisor, family day care educator

Regulation 86

Notification of incidents

Approved provider

Regulation 88(1)

Infectious diseases

Approved provider

Regulation 89(1)

and (2)

First aid kits

Approved provider, family day care educator

Regulation 97(4)

Display of emergency and evacuation plan

Approved provider

Regulation 98

Telephone or communication equipment

Approved provider

Regulation 104(1)

Fencing regulation

Approved provider

Regulation 112(3)

Nappy change facilities

Approved provider

Regulation 177(2) and (3)

Enrolment and other documents to be kept by approved provider

Approved provider

Regulation 178(2) and (3)

Enrolment and other documents to be kept by family day care educator

Family day care educator

How can it be used?

An infringement notice may be served in accordance with the requirements of the National Law (see Serving notices).

An infringement notice must be in the form prescribed and contain the information prescribed by the infringements law of the specific state or territory. Regulatory authority staff should seek advice about what the law in their state or territory requires when using an infringement notice.

Can it be appealed?

The decision to serve an infringement notice is not a reviewable decision under the National Law. However, a person may seek to dispute the infringement notice in a court or tribunal (see Reviews).

What happens after it has been issued?

Once an infringement penalty has been paid:

  • the infringement cannot be considered when assessing if a person is fit and proper to be involved in the provision of, or to be supervisor of, an education and care service
  • the infringement notice cannot be considered when assessing and rating a service.

Payment of a fine does not mean that an approved provider or approved service is not required to take necessary actions to become compliant with the National Law and Regulations. If the identified non-compliance continues, the regulatory action will escalate to more serious sanctions.

Failure to pay an infringement penalty

If it is not paid, the rules of the relevant state or territory about enforcing infringement notices will apply.

2.2 Emergency action notices

What is an emergency action notice?

 

[  National Law, Section 179 ]

An emergency action notice is a written notice setting out steps the approved provider must take to remove or reduce an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by the service. An emergency action notice can only be given to an approved provider.

When can it be used?

A regulatory authority can only issue an emergency action notice if it is satisfied a service is operating in a manner that poses, or is likely to pose, an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by the service.

A regulatory authority may consider the following in deciding whether an emergency action notice is appropriate:

  • Is it possible for the regulatory authority to set out clear steps which, if followed, would reduce or remove the risk?
  • Will it be possible for the approved provider to remove or reduce the risk in less than 14 calendar days?
  • Is the action proportionate to the seriousness of the offence?
  • Is the action likely to serve as a deterrent?

How can it be used?

An emergency action notice may be given in accordance with the requirements of the National Law about serving notices (see Serving notices).

The notice must set out how long the approved provider has to comply. This period cannot be more than 14 calendar days.

Can it be appealed?

The decision to give an emergency action notice is not a reviewable decision under the National Law.

What happens after it has been issued?

An approved provider must comply with an emergency action notice within the period set out in the notice. The period cannot be more than 14 calendar days.

Failure to comply with an emergency action notice

If the approved provider does not comply with the emergency action notice, the regulatory authority may consider taking further compliance action.

The maximum penalty which may be imposed by a court for not complying is $6,800, in the case of an individual; $34,400, in any other case.

The regulatory authority cannot prosecute for non-compliance with the emergency action notice and the original offence.

2.3 Compliance directions

What is a compliance direction?

[  National Law, Section 176 ]

A compliance direction must be in writing and requires an approved provider to take steps set out in the direction to comply with a specific provision of the National Regulations. A compliance direction can only be given to an approved provider.

A compliance direction is different from a compliance notice because it can only be used for a breach of certain provisions of the National Regulations. It also carries a lower maximum penalty for non-compliance.

When can it be used?

[  National Regulations, Schedule 3 ]

Compliance directions are intended to compel approved providers to comply with straightforward legislative obligations. They are particularly useful when it is appropriate to give the provider some time to take a specific action to comply with a requirement, but the regulatory authority wants to use a strong lever to make sure the provider complies.

A compliance direction can be given to the approved provider if the regulatory authority is satisfied that a service has not complied with one of the regulations set out in the table below.

A regulatory authority may consider the following in deciding whether a compliance direction is appropriate:

  • Is it possible for the regulatory authority to set out clear steps which, if followed, would result in the approved provider complying with the regulation?
  • What is the immediacy and seriousness of any risk to the safety, health and wellbeing of children being educated and cared for at the service, caused by the breach?
  • Is the action proportionate to the seriousness of the offence?
  • Is the action likely to serve as a deterrent to committing the offence again?

Requirements for which a compliance direction can be given to the approved provider

Regulation

Requirement

55(1)

Quality improvement plan

72(1), (2)

Offences in relation to giving false or misleading statements about ratings

74(1)

Documenting child assessments or evaluations for delivery of educational program

75

Information about educational program to be kept available

76

Information about educational program to be given to parents

77(1)

Health, hygiene and safe food practices

78(1)

Food and beverages

79(1)

Service providing food and beverages

80(1)

Weekly menu

82(1)

Tobacco, drug and alcohol-free environment

83(1)

Nominated supervisors, staff members and volunteers not to be affected by alcohol or drugs

84(1)

Awareness of child protection law
84A(1) Sleep and rest
84(C) Risk assessment for purposes of sleep and rest policies and procedures

89(1)

First aid kits

91

Medical conditions policy to be provided to parents

97(2), (2A), (3), (4)

Emergency and evacuation procedures

98

Telephone or other communication equipment
102AAC(1) Risk assessment for the purposes of safe arrival of children policies and procedures
102B(1) Transport risk assessment must be conducted before service transports child

103(1)

Premises, furniture and equipment to be safe, clean and in good repair

104(1)

Fencing

105

Furniture, materials and equipment

106(1), (2)

Laundry and hygiene facilities

107(2)

Indoor space

108(2)

Outdoor space

110

Ventilation and natural light

111

Administrative space

112(3)

Nappy change facilities

Requirements for which a compliance direction can be given to the approved provider

Regulation

Requirement

113

Outdoor space – natural environment

114

Outdoor space – shade

115

Premises designed to facilitate supervision

116(1)

Assessments of family day care residences and approved family day care venues
116A

Inspection of water hazards, water features and swimming pools at family day care residences and approved family day care venues
116C Compliance with fencing requirements for swimming pools at family day care residences and approved family day care venues

117(1)

Glass

118

Educational leader

119

Family day care educator and educator assistant to be at least 18 years old

120

Educators who are under 18 to be supervised

136(1)

First aid qualifications

156(1)

Relationships in groups

157(1)

Access for parents

163(1), (2)

Residents at family day care residence and family day care educator assistants to be fit and proper persons

164

Requirement for notice of new persons at residence

168(1)

Education and care service must have policies and procedures

169(1)

Additional policies and procedures – family day care service

170(1), (2)

Policies and procedures to be followed

171(1), (2)

Policies and procedures to be kept available

172(1)(b)

Notification of change to policies or procedures affecting ability of family to utilise service

177(2), (3)

Prescribed enrolment and other documents to be kept by approved provider

183

Storage of records and other documents

185

Law and Regulations to be available

How can it be used?

A compliance direction may be issued in accordance with the requirements of the National Law about serving notices (see Serving notices).

The notice must set out how long the approved provider has to comply. The period cannot be less than 14 calendar days.

The compliance direction should be accompanied by information about the approved provider’s right to an internal review of the decision, under section 190 of the National Law (see Reviews for more information).

Can it be appealed?

[  National Law, Section 190 ]

A decision to give a compliance direction is subject to review under the National Law (see Reviews).

What happens after it has been issued?

An approved provider must comply with the requirements in a compliance direction within the period set out in the direction.

Failure to comply with a compliance direction

If the approved provider does not take the steps set out in the compliance direction, or does not take those steps within the required timeframe, the regulatory authority may consider taking further compliance action, including serving an infringement notice.

The maximum penalty which may be imposed by a court for not complying is $2,200, in the case of an individual; $11,400 in any other case.

The regulatory authority cannot prosecute for non-compliance with the compliance direction and the original offence.

2.4 Compliance notices

What is a compliance notice?

 

[  National Law, Section 177 ]

A compliance notice is a written notice requiring the approved provider to take the steps set out in the notice to comply with any provision of the National Law and Regulations. A compliance notice can only be given to an approved provider.

A compliance notice is different from a compliance direction because it can be used for a breach of any part of the National Law or Regulations. It also carries a higher maximum penalty for non-compliance.

When can it be used?

A regulatory authority can give a compliance notice if satisfied a provision of the National Law or Regulations is not being complied with.

Compliance notices are intended to compel approved providers to comply with their legislative obligations. This tool is particularly useful when it is appropriate to give the provider some time to take a specific action to comply with a requirement, but the regulatory authority wants to use a strong lever to make sure the provider complies.

Once satisfied that this tool can be used, a regulatory authority may consider the following in deciding whether a compliance notice is appropriate:

  • Is it possible for the regulatory authority to set out clear steps which, if followed, would result in the approved provider complying with the regulation?
  • What is the immediacy and seriousness of any risk to the safety, health and wellbeing of children being educated and cared for at the service, caused by the breach?
  • Is the action proportionate to the seriousness of the offence?
  • Is the action likely to serve as a deterrent to committing the offence again?

How can it be used?

A compliance notice may be issued in accordance with the requirements of the National Law about serving notices (see Serving notices).

The notice must set out how long the approved provider has to comply. The period cannot be shorter than 14 calendar days.

The compliance notice should be accompanied by information about the approved provider’s right to an internal review of the decision, under section 190 of the National Law (see Reviews).

Can it be reviewed?

[  National Law, Section 190 ]

A decision to give a compliance notice is subject to review under the National Law (see Reviews).

What happens after it has been issued?

Disclosure

The regulatory authority may publish specific information about compliance notices (see Publication of enforcement actions).

Failure to comply with a compliance notice

An approved provider must comply with a compliance notice within the period set out in the notice.

If the recipient of the compliance notice does not take the steps set out in the notice, or does not take those steps within the required timeframe, the regulatory authority may consider taking further compliance action.

The maximum penalty that may be imposed by a court for not complying is $6,800, in the case of an individual; $34,400, in any other case.

The regulatory authority cannot prosecute for non-compliance with the compliance notice as well as the original offence.