4. Amendment of approval – Conditions

What is a condition?

While the National Law and Regulations do not specifically define ‘condition’, a useful definition is ‘a legally enforceable constraint or limitation on an approval in addition to those already found in the legislation’. The requirement to publish conditions on the copy of the service approval ensures transparency for families using the service.

A condition cannot waive a requirement of the National Law or Regulations. A waiver gives an approved provider greater flexibility to operate a service. For example, the regulatory authority might grant a waiver allowing a service to meet a requirement in ways other than those set out in the National Regulations, or to operate without meeting certain requirements.

In contrast, a condition usually involves setting an extra requirement that must be met in a certain way. For information on temporary or service waivers, see Applications and Approvals.

A service approval may include additional information, such as the details of any associated children’s services. This information is not a condition, and does not bind or limit the approved provider.

Who does a condition apply to?

[  National Law, Sections 19, 51, 182 ]

The regulatory authority can put a condition on a provider approval or service approval certificate (see Applications and Approvals).

An approved provider must comply with the conditions on their provider or service approval. The maximum penalty that may apply for failing to comply is $11,400, in the case of an individual; $57,400, in any other case.

The regulatory authority may also give a person a prohibition notice to impose one or more conditions on the nomination of the person as a nominated supervisor, if the regulatory authority considers the person is a fit and proper person to be a nominated supervisor of a service, subject to compliance with the relevant conditions. For more information on conditions on prohibition notices, see Prohibition Notices.

See the Glossary for definitions of key terms, including ‘approved provider’ and ‘person with management or control’.

When can a condition be used?

The regulatory authority can impose a condition when it grants an approval, or at a later time, by amending the approval. See Applications and Approvals for information on amending an approval.

A regulatory authority has the power to use prohibition notices to restrict a person from being the nominated supervisor either entirely, if it considers the person is not suitable to be appointed as a nominated supervisor of a service, or subject to such conditions as it considers appropriate where the person is considered suitable to be appointed as a nominated supervisor of a service subject to one or more conditions (see Prohibitions).

Unenforceable conditions

The National Law does not place any specific limits on the regulatory authority’s power to impose a condition on a provider approval or service approval.

Reasons a condition might be unenforceable are listed below. The regulatory authority should therefore avoid using these types of conditions.

When deciding whether to impose a condition, the regulatory authority should only take relevant considerations into account. Taking irrelevant considerations into account may lead to an unlawful decision (see Good Regulatory Practice – Good decision-making).

Condition on provider approval

The regulatory authority can use a condition on a provider approval to address issues that affect, or potentially affect, all the provider’s services. For example, if the regulatory authority has concerns about an applicant’s management capacity, it might impose a condition limiting the number, or size, of services the provider can operate.

For issues that do not affect all the provider’s services, the regulatory authority may decide to use a condition on service approval.

Condition on service approval

A condition on service approval must be relevant to the particular service.

In some instances, the regulatory authority might decide to grant an approval subject to a time-limited condition to allow a provider to start operating the service. For example, a regulatory authority might grant a service approval with a condition limiting the age of children that may attend, pending further information to satisfy the regulatory authority that the service premises are suitable for very young children. Using a condition in this way enables the provider to start operating the service, although in a limited way, while ensuring the provider satisfies the regulatory authority all relevant requirements are met.

Condition on a nominated supervisor

A regulatory authority may give a prohibition notice to a person to impose conditions on the nomination of the person as a nominated supervisor. Examples of conditions the regulatory authority might consider appropriate to impose include that the person:

• may only be the nominated supervisor of one particular service, or
• may only be the nominated supervisor of a particular type of service. For example, if the applicant’s qualification or experience is specifically related to school age children, the regulatory authority may impose a condition limiting the person’s nomination as nominated supervisor to services that primarily educate and care for children over preschool age.

See Approvals – Monitoring, Compliance and Enforcement – Prohibition notices for more information on conditions that may apply to a nominated supervisor.

How is a condition used?

To help the approved provider or individual easily understand the conditions that apply to them, the regulatory authority should use language consistent with the National Law and Regulations.

Conditions should always be expressly stated as conditions. Information included on the service approval is not necessarily a condition.

Because the regulatory authority may publish information about a condition as part of a compliance action, it should avoid using people’s names in the condition. Instead, if required, the condition should refer to the position at the service.

The purpose of a show cause notice is to give the proposed recipient an opportunity to explain why they should not be subject to the condition. The show cause notice should set out very clearly the reasons for the proposed condition, so the person fully understands the regulatory authority’s rationale and can respond appropriately.

Advising the approved provider before the condition is imposed is also a useful way to encourage compliance.

When giving a notice of the decision to impose a condition, the regulatory authority should make sure to include information about the right to internal or external review of the decision (see Reviews).

After a condition is imposed

Unless the duration is expressly indicated in the condition, it remains in place until removed by the regulatory authority. The regulatory authority can remove or vary a condition at any time by amending the provider approval. An approved provider can also apply for amendment or removal of a condition. See Applications and Approvals for more information.

The regulatory authority’s decision to impose a condition is reviewable. The regulatory authority’s decision to impose conditions on a nominated supervisor’s nomination is also reviewable. See Reviews in Applications and Approvals for more information.

The regulatory authority should monitor those people and services that are subject to a condition. The level of monitoring will depend on the nature of the condition. See Monitoring for more information about monitoring activities.

The regulatory authority should regularly review conditions to ensure only relevant conditions remain active in the National Quality Agenda IT System.

Breaching a condition on approval

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• [  National Law, Sections 19, 51 ]

If an approved provider breaches a condition on approval, the regulatory authority may take further action. See Compliance tools for information on tools available to regulatory authorities to compel compliance with the National Law and Regulations.