14. Complaints

14.1 Complaints to the regulatory authority

[  National Law, Section 260 ]

Regulatory authorities are responsible for investigating complaints that have come directly to them about approved providers and services. A complaint is a communication stating something about a provider or service is unacceptable or unsatisfactory.

Regulatory authorities may receive complaints from:

• a parent, authorised nominee or child
• a staff member or volunteer at an education and care service
• a nominated supervisor
• another person.

A person may not expressly state that they are making a complaint.

Complaints may be made in a variety of ways, such as email, mail, fax and phone or in person.

Regulatory authorities should only accept complaints about centre-based services if the service is operating in their jurisdiction. When a complaint is about a family day care educator, the regulatory authority should liaise with the relevant regulatory authority where the educator's service is located.

If a complaint should have been directed to another jurisdiction, the regulatory authority should immediately notify the approved provider or redirect the complaint, or both.

Referring a complaint to the approved provider

Where a complaint (and any relevant background information) does not indicate a real and serious or immediate risk to the safety, health or wellbeing of a child or children, the regulatory authority may refer the complaint to the approved provider. This is most likely to be appropriate for low risk complaints that have been directed to the regulatory authority in the first instance and the approved provider has not yet had an opportunity to try and resolve the issue.

Where this occurs, the regulatory authority should advise the complainant of the intended process and advise that they may contact the regulatory authority again if they are not satisfied with the provider’s response.

An approved provider’s response to a complaint can be examined during a monitoring visit, and at an assessment and rating visit when looking at Quality Area 7 of the National Quality Standard. An approved provider must have policies and procedures about dealing with complaints which include matters relating to the provision of a complaint handling system at the service that is child focused and the management of a complaint that alleges a child is exhibiting sexual behaviours that may be harmful to the child or another child. An approved provider must ensure policies and procedures are followed (regulations 168, 170). This applies to complaints received directly from parents or other people, and those referred to the approved provider by the regulatory authority (see Operational Requirements – Governance and leadership).

14.2 Once a complaint has been received

Once a complaint has been received, the regulatory authority will generally conduct a risk assessment to determine the appropriate response.

Regulatory authorities may have their own guidance or framework for managing complaints.

Risk assessment

When conducting a risk assessment in response to a complaint about an education and care service or approved provider, a key thing to consider is the nature of the complaint itself. For example, whether the subject of the complaint suggests a real and serious or immediate risk to the health, safety and wellbeing of a child or children and whether it alleges that the safety, health or wellbeing of a child or children may have been compromised or there may have been a contravention of the National Law. In addition, the regulatory authority should consider:

• the compliance history of the approved provider
• the nature of any previous complaints against the service or provider.

High

Where the risk assessment indicates that there is a high risk to children and a high likelihood of harm eventuating, investigation into the complaint is a priority. Regulatory authorities should also consider whether other regulatory bodies need to be notified, such as the police or a child protection agency.

Medium

Where the risk assessment indicates a moderate risk to children and a moderate likelihood of harm eventuating, the complaint should be investigated as soon as reasonably practicable.

Low

Where the risk assessment indicates a low risk or no risk to children and a low likelihood of the harm eventuating, the complaint should be investigated in the normal course of the regulatory authority’s work.

Complaints about privacy

[  National Law, Section 263 ]

The National Law provides individuals with a right to complain to the National Education and Care Services Privacy Commissioner (NECS Privacy Commissioner) if they feel that a regulatory authority or ACECQA has mishandled their personal information. Contact details for the NECS Privacy Commissioner are available at www.necsopic.edu.au.

Complaints about freedom of information

[  National Law, Section 264 ]

The National Law also provides individuals with a right to complain to the National Education and Care Services Freedom of Information Commissioner (NECS FOI Commissioner) if they are not satisfied with how their freedom of information request has been handled by a regulatory authority or ACECQA. Contact details for the NECS FOI Commissioner are available at www.necsopic.edu.au.

Complaints about administrative actions

[  National Law, Section 282 ]

People with complaints about the administrative actions of ACECQA and regulatory authorities may complain to the Education and Care Services Ombudsman (about ACECQA) or the state or territory ombudsman of that jurisdiction (about regulatory authorities). It is important to remember that an ombudsman will not look at the decision itself but rather the process by which the decision was reached.

Contact details for each ombudsman are set out below.

Responding to a complaint

Once the regulatory authority has investigated a complaint, it should determine and implement an appropriate response. See Good Regulatory Practice for more information on how to determine a response and on keeping records of investigations and decisions.

Regulatory authorities should endeavour to communicate actions and outcomes to the complainant and the person who is the subject of the complaint taking into account the requirements of the Commonwealth Privacy Act 1988 as modified by the National Regulations. Outcomes should also be recorded on the National Quality Agenda IT System.

Complaints outside the scope of the National Quality Framework

In some instances, complaints to the regulatory authority will be about matters outside the scope of the National Law and Regulations. For example, complaints about racial discrimination, fees and charges, or lack of available parking near an education and care service. Where the regulatory authority finds a complaint is out of scope of the National Law and Regulations, it should notify the complainant immediately and explain to the person that:

• the complaint is out of scope of the National Quality Framework
• who the complaint should be directed to (if known).

See Operational Requirements – Other regulatory frameworks for more information.