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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

PersonCompliance tools availableDescription
Approved providerInfringement noticeA fine for minor breaches of the National Law or the National Regulations (section 291)
Emergency action noticeDirection to remove an immediate risk to children (section 179)
Compliance directionInstruction to comply with prescribed regulation (section 176)
Compliance noticeInstruction to comply with any section or regulation (section 177)
Enforceable undertakingAgree 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 premisesInstruction to exclude a person from education and care service premises (section 171)
Amendment of a service approval to include a conditionA 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 approvalA requirement that the approved provider must comply with to avoid committing an offence under the National Law (section 19)
ProsecutionBringing 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 educatorPrevent 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 approvalTemporarily prevent a provider from operating a specific service (section 70)
Cancellation of service approvalPermanently prevent a provider from operating a specific service (section 77)
Suspension of provider approvalTemporarily prevent a provider from operating any services (section 25)
Cancellation of provider approvalPermanently prevent a provider from operating any service (section 31)

Summary of compliance tools

PersonCompliance tools availableDescription
Nominated supervisorInfringement noticeA fine for minor breaches of the National Law or the National Regulations (section 291)
Enforceable undertakingAgree 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 premisesDirection to exclude inappropriate persons from service premises (section 171)
ProsecutionBringing any offence against the National Law or the National Regulations for decision by a court or tribunal
Family day care educatorInfringement noticeA fine for minor breaches of the National Law or the National Regulations (section 291)
Enforceable undertakingAgree 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 premisesDirection to exclude inappropriate persons from service premises (section 171)
ProsecutionBringing any offence against the National Law or the National Regulations for decision by a court or tribunal
Staff member, educator or volunteerEnforceable undertakingAgree 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)
ProsecutionBringing 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 serviceProhibition noticeProhibit a person from being involved in an education and care service in any way (sections 182–188A)
ProsecutionBringing 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/RegulationRequirementPerson
Section 172Display prescribed informationApproved provider
Section 173Notify certain circumstances to the regulatory authorityApproved provider
Section 176Comply with a compliance directionApproved provider
Section 269Keep a register of family day care educators, co-ordinators and assistantsApproved provider
Regulation 77(1), (2) and (3)Health, hygiene and safe food practicesApproved provider, nominated supervisor, family day care educator
Regulation 80(1)Weekly menuApproved provider, nominated supervisor and family day care educator
Regulation 83(1), (2) and (3)Use of alcohol or drugsApproved provider, nominated supervisor, family day care educator
Regulation 86Notification of incidentsApproved provider
Regulation 88(1)Infectious diseasesApproved provider
Regulation 89(1) and (2)First aid kitsApproved provider, family day care educator
Regulation 97(4)Display of emergency and evacuation planApproved provider
Regulation 98Telephone or communication equipmentApproved provider
Regulation 104(1)Fencing regulationApproved provider
Regulation 112(3)Nappy change facilitiesApproved provider
Regulation 177(2) and (3)Enrolment and other documents to be kept by approved providerApproved provider
Regulation 178(2) and (3)Enrolment and other documents to be kept by family day care educatorFamily 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

RegulationRequirement
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
75Information about educational program to be kept available
76Information 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
91Medical conditions policy to be provided to parents
97(2), (2A), (3), (4)Emergency and evacuation procedures
98Telephone 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
105Furniture, materials and equipment
106(1), (2)Laundry and hygiene facilities
107(2)Indoor space
108(2)Outdoor space
110Ventilation and natural light
111Administrative space
112(3)Nappy change facilities

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

RegulationRequirement
113Outdoor space – natural environment
114Outdoor space – shade
115Premises designed to facilitate supervision
116(1)Assessments of family day care residences and approved family day care venues
116AInspection of water hazards, water features and swimming pools at family day care residences and approved family day care venues
116CCompliance with fencing requirements for swimming pools at family day care residences and approved family day care venues
117(1)Glass
118Educational leader
119Family day care educator and educator assistant to be at least 18 years old
120Educators 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
164Requirement 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
183Storage of records and other documents
185Law 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.