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  4. 5. Suspensions and cancellations

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5. Suspensions and cancellations

5.1 Notice to suspend education and care by a family day care educator

What is a notice to suspend education and care by a family day care educator?

 

 

[  National Law, Section 178 ]

A notice to suspend education and care by a family day care educator is an instruction to an approved provider to cease engaging or allowing a family day care educator to be registered with their service.

A notice to suspend can only be given to an approved provider. However, a show cause notice (given before the notice to suspend) may be given to the approved provider, nominated supervisor and family day care educator. Information about show cause notices is under How can it be used? below.

When can it be used?

A notice to suspend education and care by a family day care educator can be given if the regulatory authority is satisfied that due to the conduct of, or inadequacy of, the service provided by a family day care educator:

  • the approved provider or nominated supervisor is not complying with any provision of the National Law or Regulations, or
  • there is a risk to the safety, health or wellbeing of children being educated and cared for by the family day care educator.
Unlike a prohibition notice, a notice to suspend education and care by a family day care educator is issued to the approved provider, does not prevent the educator from any involvement with a service, and only applies to a specific education and care service.
The grounds for issuing a notice to suspend education and care by a family day care educator are broader than the grounds for issuing a prohibition notice or a direction to exclude an inappropriate person. The grounds for suspension focus on the conduct of, or inadequacy of, the service provided by the family day care educator. This means a notice to suspend a family day care educator can be used to address a wider range of non-compliance. In addition, a prohibition notice can be issued immediately if necessary, without a show cause notice process.

How can it be used?

Show cause notice

The regulatory authority may give a show cause notice to the approved provider, nominated supervisor (if applicable) and educator of a family day care service stating it intends to direct the approved provider to suspend the provision of education and care by the educator.

  • The show cause notice must also give the reasons for the proposed direction, and inform the approved provider, nominated supervisor and educator they have 14 calendar days to make submissions to the regulatory authority about the proposed direction.
  • The show cause notice must be served by delivering it personally to the family day care educator.

The regulatory authority must consider any submissions from these parties during the timeframe, and may consider any other submissions and matters it considers relevant.

The regulatory authority may give the approved provider a notice directing the provider to suspend the provision of education and care to children by the family day care educator.

The regulatory authority must notify the approved provider of its decision, either way.

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

Regulatory authorities should exercise caution if they are considering issuing a notice without first issuing a show cause notice because the show cause notice is a means of giving natural justice. See Good Regulatory Practice – Good decision-making for more information about natural justice.

Content of a notice to suspend

The National Law does not specify what needs to be included in a notice to suspend education and care by a family day care educator.

Regulatory authorities should make sure the notice includes, as a minimum, the following information set out below.

Information that must be included in a notice to suspend

The date the notice is given and the date it takes effect (if they are different)

The name of the approved provider to whom the notice is being given

The name of the family day care educator who is the subject of the notice

The name of the regulatory authority giving the notice

The signature of the person issuing the notice

Information about the right to external review of the decision under section 192 of the National Law (see Reviews).

Serving a notice to suspend

A notice to suspend education and care by a family day care educator may be given in accordance with the requirements of the National Law about serving notices (see Serving notices).

Can it be reviewed?

[  National Law, Section 192 ]

The decision to give a notice to suspend education and care by a family day care educator is a reviewable decision under the National Law.

What happens after it has been issued?

Disclosure

[  National Law, Section 272 ]

An approved provider may ask the regulatory authority whether a specific family day care educator has been suspended. The regulatory authority may disclose this information about whether a family day care educator has been suspended, subject to the Commonwealth Privacy Act 1988 as applied by the National Law and any protocol approved by ACECQA.

Failure to comply with the notice

If the approved provider does not suspend the educator, the regulatory authority may consider taking further compliance action.

The maximum penalty which may be imposed by a court for failure is $6,800, in the case of an individual; $34,400, in any other case.

5.2 Suspension of service approval

What is suspension of service approval?

Suspension of service approval is a way of preventing a service from operating for a specific period of time. A person cannot operate an education and care service if the service approval has been suspended.

When can it be used?

 

[  National Law, Section 70 ]

The regulatory authority may suspend a service approval for any of the reasons set out below.

Section 70 of the National Law suggests a regulatory authority may suspend service approval if the approved provider has contravened the National Law and Regulations as they apply in any state or territory where the approved provider operates a service. This should be taken to mean the National Law and Regulations as they apply in the jurisdiction where the service that is the subject of the proposed suspension operates.

Where the regulatory authority is concerned that an approved provider no longer has the right to occupy the service premises, it may ask the approved provider for evidence, such as a current lease agreement.

Reasons a regulatory authority may suspend a service approval

The regulatory authority believes it is not in the best interests of children at the service for the service to continue operating

A condition of the service approval has not been complied with

The service is not managed in accordance with the National Law or Regulations

The service has operated at a rating level that does not meet the National Quality Standard, a service waiver or temporary waiver does not apply in relation to the non-compliance and there has been no improvement in the rating level

The approved provider has contravened the National Law or Regulations, as they apply in any state or territory where the approved provider operates a service

The approved provider failed to comply with a direction, compliance notice or emergency order under the National Law or Regulations, as they apply in any relevant state or territory

The approved provider ceased to operate the service at the premises for which the service approval was granted, and did not transfer the service to another approved provider within six months

The approved provider did not commence ongoing operation of the service within six months from when service approval was granted

The approved provider has not paid the prescribed annual fee for service approval.

How can it be used?

[  National Law, Section 101 ]

If the service is a family day care service, the regulatory authority must consult the regulatory authority of each jurisdiction in which the approved family day care service operates before suspending the service approval (see Applications and Approvals – Exercise of powers by another regulatory authority).

Suspension of service approval for associated children’s service only

[  National Law, Section 75 ]

If the regulatory authority considers a service approval should be suspended only in relation to an associated children’s service, it must refer the matter to the relevant children’s services regulator to determine appropriate action under children’s services law.

The children’s services regulator must notify the regulatory authority if it proposes to conduct any investigation or inquiry into an associated children’s service.

A children’s services regulator must advise the regulatory authority if it determines a service approval in relation to the associated children’s service should be suspended. If this occurs, the service approval in relation to the associated children’s service is suspended in accordance with the determination of the children’s service regulator.

Show cause notice

[  National Law & Regulations, Sections 71–72, Regulation 39 ]

If the regulatory authority is considering suspending a service approval, it must first give the approved provider a show cause notice. The notice must advise the approved provider of the intention to suspend the service approval, the reasons, and the proposed period of suspension.

The notice must also inform the approved provider that they may, within 30 calendar days of the notice being given, provide a written response to the regulatory authority.

After considering any written response from the approved provider (that is received within 30 calendar days), the regulatory authority may:

  • accept a written undertaking (under section 179A) from the approved provider to take or refrain from taking certain actions, if:
    • the suspension was proposed because the regulatory authority reasonably believes that the continued operation of the service would not be in the best interests of children
    • the service is not being managed in accordance with the National Law
    • the service is rated Working Towards and has not improved its rating level (and a waiver does not apply to the service in respect of the non-compliance)
  • suspend the service approval for up to 12 months
  • decide not to suspend the approval.

Suspension without show cause notice

[  National Law, Section 73 ]

The regulatory authority may suspend a service approval without giving the approved provider a show cause notice if it is satisfied there is an immediate risk to the safety, health or wellbeing of a child or children at the service.

The purpose of a show cause notice is to give the proposed recipient an opportunity to explain why they should not receive the suspension. The show cause notice should set out very clearly the reasons for the proposed suspension, so the person fully understands the regulatory authority’s rationale and can respond appropriately.
Regulatory authorities should exercise caution if they are considering suspending approval without first issuing a show cause notice, because the show cause notice is a means of giving natural justice. See Good Regulatory Practice – Good decision-making for more information about natural justice.

Content of suspension notice

[  National Law & Regulations, Section 74, Regulation 39 ]

The regulatory authority must give the approved provider written notice of its decision to suspend service approval. The notice must set out the period of suspension and when the suspension takes effect. The period of suspension cannot exceed 12 months.

The National Law and Regulations do not say what else needs to be included in a notice of suspension of service approval. However, the regulatory authority should make sure the notice includes the following additional information:

  • the name of the approved provider to whom the notice is being given
  • the name of the approved service to which the notice relates
  • the name of the regulatory authority giving the notice
  • the signature of the person issuing the notice
  • information about the right to internal review (if no show cause notice was given) or external review (if a show cause notice was given). See Reviews.

When the suspension takes effect

[  National Law, Section 74 ]

If a service approval is suspended without a show cause notice, the decision to suspend takes effect when the notice is given to the approved provider.

If a service approval is suspended after a show cause notice process, the decision to suspend takes effect 14 calendar days after the date of the decision, or at the end of another period specified by the regulatory authority.

A regulatory authority may specify a suspension takes effect less than 14 calendar days after the date of the decision. However, the regulatory authority should ensure it has strong evidence this is necessary before deciding on a shorter period.

Can it be reviewed?

[  National Law, Sections 190, 192 ]

A person can seek internal and external review of a decision to suspend a service approval (see Reviews).

What happens after it has occurred?

Notice to parents

 

[  National Law, Sections 83–84 ]

The regulatory authority may require the approved provider, whether or not a show cause notice was given, to give parents of children enrolled at the service (and any associated children’s service) written notice of the suspension and its effect.

If a show cause notice is given, the regulatory authority may require the approved provider to supply contact details for parents of all children enrolled at the service within seven (7) calendar days. The regulatory authority may notify parents of the suspension, and cannot use this information for any other purpose.

The powers of the regulatory authority are intended to make sure parents will always be notified if service approval is suspended, because this automatically results in the closure of the service.

Generally, the regulatory authority should only need to require the approved provider to give written notice to parents if they are concerned that this may not occur otherwise. If the regulatory authority is concerned that, even with a direction to the approved provider, parents may not be notified, the regulatory authority should exercise its power to request the approved provider to give the regulatory authority the details, so it can contact the parents.

Failure to comply with the notice

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

The maximum penalty which may be imposed by a court for this offence is $3,400, in the case of an individual; $17,200, in any other case.

Disclosure

The regulatory authority may publish specific information about suspension of service approval (see Publication of enforcement actions).

Operating a service with a suspended service approval

 

[  National Law, Section 103 ]

A person who operates a service which is the subject of a suspended service approval is committing an offence under the National Law and the regulatory authority may consider taking compliance action. The maximum penalty that may be imposed by a court for this offence is $22,900, in the case of an individual; or $114,900 in any other case.