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- Guide to the NQF
- Section 5: Regulatory Authority Powers
- 10. Powers of regulatory authorities
Table of contents
- Guide to the NQF
- Icons legend
- Section 1: Introduction
- Section 2: Applications and Approvals
- Section 3: National Quality Standard and Assessment and Rating
- Section 4: Operational Requirements
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Section 5: Regulatory Authority Powers
- 1. Monitoring
- 2. Compliance tools
- 3. Enforceable undertakings
- 4. Amendment of approval – Conditions
- 5. Suspensions and cancellations
- 6. Cancellation of service approval
- 7. Cancellation of provider approval
- 8. Serving notices
- 9. Publishing information about enforcement actions
- 10. Powers of regulatory authorities
- 11. Powers of authorised officers
- 12. Conducting an investigation
- 13. Offences relating to enforcement
- 14. Complaints
- 15. Good regulatory practice
- Section 6: Reviews
- Section 7: Glossary
- Guide to the NQS reference list
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10. Powers of regulatory authorities
10.1 General powers
[ National Law, Section 261 ]
A regulatory authority has the power to do anything necessary or convenient to carry out its functions under the National Law and Regulations including those set out in the table below.
Powers of regulatory authorities |
| Collect, hold and use information obtained under the National Law by the regulatory authority or ACECQA about the provision of education and care to children, including information about outcomes for children and information about providers of education and care services |
| Collect, hold and use information about providers of education and care services, family day care educators, subject to the Commonwealth Privacy Act 1988 |
| Maintain and publish registers of approved providers and approved education and care services |
| Publish information about the National Quality Framework, including ratings and prescribed information about compliance |
| Collect, waive, reduce, defer and refund fees (including late fee payments) and enter into agreements in relation to fees |
| Enter into agreements relating to fees and funding with ACECQA |
| Exercise any other powers conferred on it under the National Law. |
10.2 Power to obtain information, documents and evidence by notice
What is the power?
[ National Law, Section 215 ]
This power enables the regulatory authority to require a person to provide information, produce documents or appear before the regulatory authority and give evidence.
What can be done using the power?
If a regulatory authority reasonably believes an offence has been committed, it may write to a specified person and require the person to:
- provide any relevant information, within the time and in the matter specified in the notice, and signed by the person (or if the person is not an individual, by a competent officer)
- produce to the regulatory authority (or any person identified in the notice as acting on its behalf) any relevant document set out in the notice
- appear before the regulatory authority (or a person identified in the notice as acting on its behalf), at a specified time and place, to give evidence or produce any relevant document set out in the notice.
The regulatory authority may require the evidence to be given on oath or affirmation. Evidence may be given by telephone or electronic means, unless the regulatory authority requires, on reasonable grounds, the evidence be given in person.
The notice must warn the person:
- it is an offence to fail or refuse to comply with a notice under section 217
- it is an offence to hinder or obstruct a regulatory authority under section 218
- self-incrimination is not an excuse under section 219.
Self-incrimination not an excuse
[ National Law, Section 219 ]
Regulatory authorities should be aware that a person is not excused from complying with the notice on the grounds information being provided could incriminate the person.
Information disclosed is not admissible in evidence against the individual in any criminal proceedings (other than as an offence to hinder or obstruct a regulatory authority or provide false or misleading information or documents) or in any civil proceedings. Disclosed information means the answer or information given by an individual to any requests under a power of regulatory authorities to obtain information, documents and evidence by notice or at a service, or any information obtained directly or indirectly because of that answer or information.
Despite this, any information obtained from documents required to be kept under the National Law and Regulations that is produced by a person is admissible in evidence against the person in criminal proceedings under the National Law.
Disclosed information which is not admissible under section 219 may be used to support an alternative action, such as a compliance direction or emergency action notice. It may also be used to support a decision to impose a condition on an approval.
A regulatory authority may also obtain information, documents and evidence by notice as part of an investigation.
10.3 Power to obtain information, documents and evidence at an education and care service
What is the power?
[ National Law, Section 216 ]
This power enables the regulatory authority to require a specified person at an education and care service to supply information if it reasonably suspects an offence against the National Law has been committed.
What can be done using the power?
The regulatory authority may require a specified person to:
- provide the regulatory authority (or a person acting on its behalf) with any specified information relevant to the suspected offence
- produce to the regulatory authority (or a person acting on its behalf) any specified document relevant to the suspected offence.
The regulatory authority must warn the person it is an offence to fail or refuse to comply with the requirement, specifically that:
- it is an offence to fail to comply with a notice or requirement
- it is an offence to hinder or obstruct the regulatory authority
- self-incrimination is not an excuse.
The regulatory authority must not require the person to remain at the service more than a reasonable time when providing information or documents.
Self-incrimination not an excuse
[ National Law, Section 219 ]
Regulatory authority staff should be aware that a person is not excused from complying with a requirement on the grounds information being provided could incriminate the person.
Information disclosed is not admissible in evidence against the individual in any criminal proceedings (other than as an offence to hinder or obstruct a regulatory authority or provide false or misleading information or documents) or in any civil proceedings. Disclosed information means the answer or information given by an individual to any requests under a power of regulatory authorities to obtain information, documents and evidence by notice or at a service, or any information obtained directly or indirectly because of that answer or information.
Despite this, any information obtained from documents required to be kept under the National Law and Regulations that is produced by a person is admissible in evidence against the person in criminal proceedings under the National Law.
Disclosed information which is not admissible under section 219 may be used to support an alternative action, such as a compliance direction or emergency action notice. It may also be used to support a decision to impose a condition on an approval.
When can the power be used?
The regulatory authority must not require a person to remain at the education and care service for more than a reasonable time for the purpose of providing information or producing documents.
10.4 Emergency removal of children
What is the emergency removal of children?
[ National Law, Section 189 ]
The power to remove or cause the emergency removal of children enables the regulatory authority to protect children from an immediate danger at an education and care service premises.
What can be done using the power?
If the regulatory authority considers on reasonable grounds there is an immediate danger to the safety or health of a child or children being educated and cared for by a service, it may remove or cause the removal of the child or children from the premises.
Another party (for example, police officers) may assist the regulatory authority to remove a child or children in an emergency, if required. The regulatory authority or person assisting may enter the service premises without a warrant and use reasonable force as necessary.
If a child is removed from a service, the regulatory authority must ensure that the child’s parents are immediately notified of the situation and the child’s current location.
Force is usually used either to control or restrain. It ranges from passively blocking a person (including a child) or guiding them by the arm to safety, through to more extreme circumstances such as restraining a person to prevent violence or injury. In all cases, an authorised officer should endeavour to make sure the use of reasonable force does not result in injury.
When can the power be used?
The power can be exercised at any time children are being educated and cared for by the service.