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Children's Services Amendment
Bill 2019
Introduction Print
Note: Replacement Explanatory Memorandum lodged with a correction to Clause Note 8
on page 31. The correction removes from the explanation of proposed new section 108 the
EXPLANATORY
words "(such as the Early MEMORANDUM
Years Learning Framework or any proposed framework for school
age care)" and adds the following words at the end of that explanation "(see explanation
of new definition of approved learning framework inserted by clause 5(1))".
General
The key objective of the Bill is to amend the Children's Services Act 1996
(Principal Act) to align, where appropriate, the Victorian regulatory regime
for children's services provided for in the Principal Act with the regulatory
regime for education and care services in the Education and Care Services
National Law (Victoria) (National Law) as enacted in the Schedule to the
Education and Care Services National Law Act 2010 (National Law
Application Act).
Background
Currently in Victoria, the early childhood education and care services sector
is regulated by 2 separate regimes.
The Victorian regime, as provided for in the Principal Act and the Children
Services Regulations 2009, licenses the provision of certain types of
"children's services", including occasional care, limited hours, mobile
services and 3 year old activity groups.
The National Law regime, also known as the National Quality Framework
(NQF), comprises the National Law and the Education and Care Services
National Regulations (National Regulations).
The National Law was enacted by Victoria, as host jurisdiction. Victoria
adopted the National Law as its own law by section 4 of the National Law
Application Act. Other states and territories have applied the National Law
as their own law, by similar enacting legislation or by legislation uniform
with Victoria's (i.e. corresponding laws).
591103 1 BILL LA INTRODUCTION 30/8/2019
The introduction of the NQF followed a Council of Australian Governments
(COAG) agreement in December 2009 to establish a jointly governed,
unified and nationally consistent regulatory scheme to replace existing
separate jurisdictional licensing and quality assurance processes in all
Australian states and territories and the former National Childcare
Accreditation Council.
The NQF came into effect on 1 January 2012, at which time most Victorian
early childhood services, formerly regulated under the Principal Act, became
"education and care services" regulated under the NQF. A number of service
types continued to be regulated under the Principal Act.
Policy Objectives of the Bill
The policy objectives of aligning the Principal Act with the National Law is
to provide a consistent licensing framework for all Victorian early childhood
education and care services, regardless of which regulatory regime applies to
that service.
Aligning the regulatory regimes may realise benefits including--
• reducing administrative burden and risk of confusion for
service providers, especially those operating under both
regimes;
• increasing confidence for service providers that there is equity
across the sector, including as to operating requirements and
offences and penalties for non-compliance;
• achieving greater consistency for consumers of early childhood
services;
• enhancing the safety of children by providing the power to
prohibit persons who pose an unacceptable risk of harm to
children from working in the sector;
• creating potential efficiencies for the Regulatory Authority in
Victoria (currently the Secretary to the Department of
Education and Training); and
• increasing opportunities to drive quality across the system, and
improve educational and developmental outcomes for children
in early childhood education and care services in Victoria.
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Clause Notes
Part 1--Preliminary
Clause 1 sets out the purpose of the Bill, which is to amend the Principal
Act to further provide for the regulation of children's services, in
a manner that is consistent, where appropriate, with the
regulation of education and care services under the National Law.
Clause 2 is the commencement provision, which provides for the Bill
(as enacted) to come into operation on a day or days to be
proclaimed, or on 18 May 2020, if not proclaimed before that
date.
The forced commencement date of 18 May 2020 will ensure the
amendments to the Principal Act commence before the expiry of
the current Children's Services Regulations 2009 on 18 May
2020. The intention is that, following the passage of this Bill
(expected in late 2019), the Department of Education and
Training will develop, in consultation with the sector, new
regulations to support the new National Law aligned Victorian
regulatory framework contained in the Principal Act as amended
by the Bill. The new regulations will also replace the current
regulations.
Clause 3 provides that Children's Services Act 1996 is referred to as the
Principal Act in the Bill.
Part 2--Amendment of the Children's Services Act 1996
Clause 4 substitutes section 1 of the Principal Act to revise the purposes of
the Principal Act to add the National Law alignment purpose of
the Bill, as stated in clause 1.
Clause 5 amends section 3 of the Principal Act to amend definitions and
interpretative provisions of the Principal Act to support the
alignment of the substantive provisions of the Principal Act with
the National Law.
Definitions
Clauses 5(1) and 5(2) insert new and substituted definitions in
section 3(1) of the Principal Act to mirror definitions in
section 5(1) of the National Law and in section 6 of the National
Law Application Act. The latter provision defines Victoria-
specific terms required for the application of the National Law to
3
Victoria. The purpose is to align, as appropriate, terminology in
the Principal Act with terminology in the National Law to
support the alignment of substantive provisions.
The meaning of the new and revised definitions is self-
explanatory. However, technical aspects of a number of
definitions are explained below.
Clause 5(1) inserts a new definition of approved learning
framework that has the same meaning as in the National Law.
The current approved learning frameworks that apply in Victoria
are Belonging, Being and Becoming: The Early Years Learning
Framework for Australia, the Victorian Early Years Learning
and Development Framework, and My Time, Our Place:
Framework for School Age Care in Australia.
Clause 5(1) inserts a new definition of de facto relationship that
mirrors the National Law definition. However, it is noted that
since the commencement of the Relationships Act 2008
(referred to as the "Relationships Act" in this explanatory
memorandum), the term "domestic relationship" as defined in
that Act, is the preferred term in Victorian legislation.
Clause 5(1) inserts a new definition of National Law approved
provider to mean the holder of a provider approval under the
National Law that is not suspended. This definition is required
for the new deeming provisions in sections 16 and 17 inserted by
clause 8. The operation of the deeming provisions is explained in
the notes for clause 8.
Clause 5(2)(a) revises the definition of approved provider to
mean a person with a provider approval (granted under new
Part 2 inserted by clause 8), and a National Law approved
provider who is deemed to hold a provider approval under the
Principal Act. Further explanation of how the deeming
provisions (new sections 16 and 17) will work is set out in the
notes for clause 8.
Subclause 5(2)(c) makes a number of technical amendments to
the definition of children's service as a result of aligning some
defined terms with terms in the National Law. The scope of
services regulated by the Principal Act has not changed.
First, the reference to "care or education" is replaced with
"education and care" for alignment with the National Law.
Clause 5(5) inserts a new subsection (1B) to clarify that a
4
reference to education and care includes a reference to
education or care, mirroring section 5(3) of the National Law.
This also reflects the interpretation, in practice, of the current
definition.
Second, the definition expressly excludes, by paragraph (b), a
service that is an "education and care service" within the meaning
of the National Law. This is to exclude from the scope of the
Principal Act, those services that are "education and care
services" within the meaning of section 5(1) of the National Law
(for example, long day care, family day care, and out of school
hours care) to ensure the Acts continue to operate in a mutually
exclusive way, and to give service providers clarity as to which
law applies to their particular service/s. This "carve out" is
currently achieved by section 5(1B)(c) of the Principal Act,
which clause 6(1)(b) of the Bill will repeal because it is no longer
required. The transfer of the "carve out" from section 5(1B) to
the definition of "children's service" is to improve clarity about
the inter-relationship between the Principal Act and the National
Law.
Subclause 5(2)(d) revises the definition of guardian in relation to
a child, or other person, to mean the legal guardian of the child or
person. This mirrors the National Law definition and is required
for alignment purposes. For example, in new sections 40(2) and
41(5), inserted by clause 8 of the Bill, which refer to the legal
guardian of an approved provider (that is an adult) who has
become incapacitated.
The current definition of guardian is in relation to a child only,
and is broader than the National Law definition because it
includes not only the legal guardian of the child, but also person
who has custody or control of the child, excluding a person
providing children's services to the child.
To address this issue, a new definition of custodian is inserted by
clause 5(1) of the Bill. The definition is used in the revised
definition of children's services. The effect is that child-care
arrangements described in those provisions include arrangements
made by the child's legal guardian or a person who has custody or
control of the child (for example, an aunt, a grandfather or a
family friend).
5
Subclauses 5(3)(a) and (c) amend the definitions of Department
and Secretary (to the Department) to reflect a Machinery of
Government name change of the Department of Education and
Early Childhood Development to the Department of Education
and Training.
Subclause 5(3)(b) corrects a minor typographical error in the
definition of school.
Clause 5(4) removes definitions from section 3(1) of the
Principal Act that are redundant due to the alignment of the
terminology in the Principal Act with the National Law.
Interpretive provisions
Clause 5(5) inserts new section (1A) into section 3 of the
Principal Act to clarify the meaning of de facto relationship and
its connection to the Relationships Act.
The clause also inserts a new subsection (1B) to clarify that a
reference to education and care includes a reference to
education or care, mirroring section 5(3) of the National Law.
Clause 5(6) repeals section 3(2) of the Principal Act. The
provision is redundant, because it deals with changes to the name
of a Department under the Public Administration Act 2004, and
to the title of the Secretary to the Department. These matters are
now covered by section 38AAA of the Interpretation of
Legislation Act 1984.
Clause 5(7) substitutes sections 3(3) and 3(4) of the Principal
Act.
New section 3(3) clarifies that a children's service is still a
children's service even if the service also provides education and
care to children who are over the age of 13 years. The provision
recognises that there are service providers who provide care to
children of a range of ages.
New section 3(4) provides that any reference to a law, or a
provision of a law, is to include a reference to any statutory
instrument made under that law or provision. It is intended that
reference to "this Act" (which section 3(1) of the Principal Act
currently defines to mean the Principal Act) is to include a
reference to regulations made under it, including the Children's
Services Regulations. It is further intended that a reference to the
National Law includes a reference to the National Regulations,
6
and a reference to "education law" (a new definition inserted by
clause 5(1) into section 3(1) of the Principal Act) is to include a
reference to regulations made under that law. By way of
example, the reference to "legal proceedings against an offence
against this Act" in section 173(2) would also include legal
proceedings against an offence against the Children's Services
Regulations).
Clause 6 amends section 5(1B) to clarify the circumstances to which the
Principal Act will not apply.
Subclause 6(1)(a) repeals subsection 5(1B)(b)--which currently
excludes a playgroup registered with Playgroup Victoria Inc--
because the registration of playgroups is no longer occurring,
making this provision redundant. The majority of playgroups
will remain out of scope of the Act, however, some rostered
playgroups may require approvals if they meet the definition of
children's service in the Principal Act.
As explained in the notes for clause 5 above, subclause 6(1)(b)
repeals subsection 5(1B)(b)--the current "carve out" of an
education and care service under the National Law--because that
"carve out" has been transferred to the new definition of
children's service in section 3(1) for drafting clarity.
Subclause 6(1)(d) inserts new paragraph (h) into 5(1B) to exclude
from the application of the Principal Act a service providing
education and care to children on camp, because it is not
appropriate for these types of services to be regulated by the
Principal Act.
Subclause 6(1)(d) also inserts new paragraph (i) to allow
regulations to prescribe other circumstances that might arise in
the future which should, as a matter of policy, be excluded from
regulation by the Principal Act. This provides sufficient
legislative flexibility to respond to the fast-evolving nature of the
early childhood sector.
Clause 7 inserts new sections 7, 8 and 9 into the Principal Act to mirror
provisions in the National Law.
New section 7 provides for the Principal Act to apply outside
Victoria, as far as possible and mirrors section 8 of the National
Law. For example, interstate activities of a Victorian-based
children's service provider may be relevant to the compliance
provisions in new Part 5.
7
Section 8 provides that the objectives of the aligned regulatory
regime in the Principal Act are to--
• ensure the safety, health and wellbeing of children
attending children's services;
• improve educational and developmental outcomes of
children attending children's services; and
• promote continuous improvement in the provision of
children's services.
To support these objectives, the guiding principles are that--
• the rights and best interests of the child are paramount
(this principle is compatible with the right of children to
protection in section 17 of the Charter of Human
Rights and Responsibilities Act 2006);
• children are successful, competent and capable learners;
• the principles of equity, inclusion and diversity underlie
the Principal Act;
• Australia's Aboriginal and Torres Strait Islander cultures
are valued;
• the role of parents and families is respected and
supported;
• best practice is expected in the provision of children's
services.
These objectives and guiding principles, mirror those set out in
section 3 of the National Law and are consistent with the COAG
National Partnership Agreement on the National Quality Agenda
for Early Childhood Education and Care.
Section 9 requires any entity with functions under the Principal
Act to have regard to the objectives and guiding principles in
section 8 when exercising its functions.
Clause 8 substitutes Parts 2 to 5 in the Principal Act with new Parts 2 to
5D to align, as appropriate, the Principal Act regulatory regime
with its National Law counterpart. As this is the key part of the
alignment "work" of the Bill, an overview of new Parts 2 to 5D is
provided below, followed by notes on each new section inserted
into the Principal Act by clause 8.
8
Overview of Parts 2 to 5D
Parts 2 and 3 establish a new system of provider and service
approvals to provide and operate a children's service, that replace
the current licensing system for children's services, and that is
aligned with the provider and service approval system set out in
Parts 2 and 3 of the National Law.
Under the new National Law aligned regime in the Principal Act
as amended by the Bill, a person who holds a provider approval
under Part 2, and the applicable service approval under Part 3,
may operate a children's service from a premises in Victoria.
Part 4 creates a range of offences regarding the operation of the
new National Law aligned approvals regime and mirrors Part 6 of
the National Law. These offences are primarily intended to
ensure the safety, health and wellbeing of children attending
children's services.
Part 5 provides for the tools that the Regulatory Authority may
use to ensure compliance with the new National Law-aligned
approvals regime and mirrors Part 7 of the National Law.
Part 5A ensures the right of review of decisions made by the
Regulatory Authority in the new National Law-aligned approvals
regime. Two types of review are provided for--internal review
conducted by the Regulatory Authority; and external review
conducted by the Victorian Civil and Administrative Tribunal
(VCAT). Part 5A substantially mirrors Part 8 of the National
Law.
Part 5B provides powers to authorised officers engaged by the
Regulatory Authority to monitor and enforce the new National
Law aligned regulatory regime.
Part 5C sets out the functions of the Regulatory Authority in the
new National Law aligned approvals regime. These include
approving providers and services, and monitoring compliance
with the Principal Act and the regulations made under the
Principal Act. Part 5C substantially mirrors Part 12 of the
National Law.
Part 5D addresses information and privacy issues, including
providing for the application of Victorian privacy and freedom of
information laws. Part 5D substantially mirrors Part 13 of the
National Law.
9
Part 2--Provider approval
Division 1--Application for provider approval
Section 10 provides that one or more persons, other than a
prescribed ineligible person, may apply to the Regulatory
Authority for a provider approval. All persons applying for a
provider approval must submit relevant information, and each
person granted provider approval must comply with any
obligations attached to the approval.
Section 11 specifies the form of the application. It must be made
in writing to the Regulatory Authority and include the
information and application fee as prescribed in the regulations.
Section 12 requires an applicant (if an individual) or each person
with management or control (if applicant is an entity) to satisfy
the Regulatory Authority of their fitness and propriety to be
involved in the provision of a children's service.
Section 13 specifies the matters that the Regulatory Authority
must have regard to in assessing whether a person is fit and
proper, including, but not limited to, the person's history of
compliance with the Act (and state and territory legislation) and
the National law and criminal records. The Regulatory Authority
may also have regard to, if applicable, the person's working with
vulnerable people check status, medical conditions and financial
circumstances.
Section 14 enables the Regulatory Authority to seek further
information and undertake further enquiries for the purpose of
assessing a person's fitness and propriety.
Section 15 provides that the Regulatory Authority may grant or
refuse to grant a provider approval. The Regulatory Authority
must not grant a provider approval if the applicant has not met
the fitness and propriety requirements in section 12.
If the Regulatory Authority does not make a decision within
60 days, nor extend this period by agreement with the applicant,
the Regulatory Authority is deemed to have refused the
application.
The Regulatory Authority must give written notice to an
applicant of the decision and the reasons for that decision on an
application for a provider approval within 7 days of making a
decision. This reflects the usual rules of natural justice in
administrative decision-making.
10
An applicant may seek a review of the Regulatory Authority's
decision under the review process set out in Part 5A.
Sections 16 and 17 are key provisions that allow for National
Law approved providers to participate in the regime in the
Principal Act with minimal regulatory burden. The provisions
deem, at specific points in time, a person who holds a provider
approval under the National Law, to hold a provider approval
under Part 2 of the Principal Act so the provider can obtain a
service approval to operate a children's service under the
Principal Act.
The intention is to avoid the National Law approved provider
from having to make a new application for provider approval
under Part 2, to save the provider application fee, and other costs
associated with making an application and to also save the
Regulatory Authority from unnecessary administrative and
compliance costs.
Section 16 deems a National Law approved provider to hold a
provider approval under the Principal Act when the provider
applies for a service approval under section 42.
Similarly, section 17 deems a National Law approved provider to
hold a provider approval under the Principal Act when the
provider gives notice to the Regulatory Authority of a proposed
transfer of a service approval to it, under section 59(2) of the
Principal Act.
The Regulatory Authority must, on the granting of the
application for the service approval, give a copy of the provider
approval to the provider, together with the service approval
(see new section 51(2)).
Similarly, the Regulatory Authority must, where a service
approval is transferred, give a copy of the provider approval to
the provider, together with the amended service approval
(see section 68(3)).
Sections 16(2) and 17(2) provide that a person taken to be an
approved provider under sections 16(1) and 17(1) respectively is
taken to be subject to the same conditions to which the approved
provider is subject under the National Law.
11
Sections 16(3) provides that a provider approval taken to be
granted under subsection (1) is cancelled if the application for the
service approval is refused or if the service approval is not
granted within 6 months of the application (whichever occurs
earlier).
Section 17(3) provides that a provider approval taken to be
granted under subsection (1) is cancelled if the Regulatory
Authority refuses consent on the proposed transfer or if the
Regulatory Authority fails to provide consent within 6 months of
the notice of proposed transfer (whichever occurs earlier).
Section 18(1) provides that a provider approval continues in force
until it is cancelled or surrendered under the Act (see sections 31
to 34 regarding cancellation and section 38 regarding surrender).
A provider approval that is suspended remains in force, but the
approved provider cannot operate a service during the period of
suspension (see sections 25 to 30 regarding suspension).
Section 18(2) provides a provider approval authorises the
approved provider to operate a children's service if the approved
provider is the holder of the service approval for the service.
This means that a provider must obtain 2 things to lawfully
operate a children's service--first, a provider approval under
Part 2, and second, a service approval under Part 3.
Section 19 allows the Regulatory Authority to grant a provider
approval subject to any conditions prescribed in the regulations
or as determined by the Regulatory Authority. All provider
approvals are subject to the condition that the approved provider
must comply with the Principal Act. An approved provider must
comply with these conditions, and penalties apply for
non-compliance.
An approved provider may, in accordance with Part 5B, seek a
review of a decision to impose a condition on a provider
approval.
Section 20 provides that the Regulatory Authority, on granting a
provider approval, must give a copy of the provider approval to
the approved provider. The copy must contain details including
the name of the approved provider, their principal office address
(if an entity), the provider approval number and the date the
Regulatory Authority granted the provider approval.
12
Division 2--Reassessment
Section 21 provides for the Regulatory Authority to, at any time,
reassess whether a person continues to be fit and proper to be
involved in the provision of a children's service. The
considerations and powers of the Regulatory Authority that apply
to the assessments of fitness and propriety described in the notes
for sections 13 and 14 also apply to reassessments of fitness and
propriety.
Division 3--Amendment of provider approvals
Section 22 outlines the process by which an approved provider
may seek an amendment of a provider approval from the
Regulatory Authority. For example, an approved provider may
ask the Regulatory Authority to vary a condition on the provider
approval. The Regulatory Authority may accept or refuse the
amendment sought, or amend the approval in another way with
the written agreement of the applicant.
An approved provider may, in accordance with Part 5B, seek a
review of a decision to refuse to amend a provider approval.
Section 23 provides that the Regulatory Authority may amend a
provider approval at any time, including to vary an existing
condition or add a new condition on the provider approval. Any
proposed amendment takes effect 14 days after the Regulatory
Authority gives written notice to the approved provider of the
amendment or, if another period is specified, at the end of that
period.
An approved provider may, under section 5B of the Act, seek a
review of a decision to amend a provider approval.
Section 24 provides that the Regulatory Authority must provide a
copy of an amended provider approval to the approved provider.
It must also make any necessary amendments to a service
approval and provide a copy of the amended service approval to
the approved provider.
Division 4--Suspension or cancellation of provider approval
Section 25 allows the Regulatory Authority to suspend a provider
approval in certain circumstances. These are the approved
provider being charged with an indictable offence or no longer
being considered a fit and proper person, failure to comply with a
condition of provider approval or the Principal Act or the
13
National Law as applying in any participating jurisdiction, any
action being taken under Part 5, the approved provider has not
operated a service for more than 12 months, a transfer of a
service approval has purportedly taken place without the consent
of the Regulatory Authority, or failure to pay any outstanding
prescribed fees.
An approved provider may, in accordance with Part 5B, seek a
review of a decision by the Regulatory Authority to suspend its
provider approval.
Section 26 provides that in considering the suspension of a
provider approval, the Regulatory Authority must first give the
approved provider a show cause notice stating the intention to
suspend the provider approval, the proposed period of suspension
and the reasons for the decision. The notice must also state that
the approved provider is given 30 days to respond in writing to
the Regulatory Authority.
The show cause notice process is to ensure the approved provider
has an opportunity to be heard before the Regulatory Authority
makes a final determination. This accords with the principles of
procedural fairness and natural justice in administrative decision-
making.
Section 27 provides that, after considering any response from an
approved provider received in response to the show cause notice
issued under section 26, the Regulatory Authority may suspend
the provider approval for a period not more than the prescribed
period, or decide not to suspend the provider approval.
Section 28 provides that, if the Regulatory Authority is satisfied
that there is an immediate risk to the safety, health or wellbeing
of children, a provider approval may be suspended for up to
6 months without giving a show cause notice.
Section 29 provides that the Regulatory Authority must give
written notice to the approved provider of the decision to suspend
a provider approval.
A notice of a decision to suspend must set out the period of
suspension and the date on which it takes effect, which, if a show
cause notice has been issued, is to be 14 days after the date of the
decision unless otherwise stated. If a show cause notice has not
been given, the suspension takes effect on the giving of the notice
of the decision to suspend.
14
Section 30 provides that the effect of suspension of a provider
approval is that the person is taken not to be an approved
provider during the period of suspension. All service approvals
held by the person are also suspended, with 2 exceptions--first,
where the Regulatory Authority has approved an executor or
guardian to hold the service approval on the person's behalf under
section 41, and second, where the Regulatory Authority has
approved the transfer of the service approval to another approved
provider under Part 3 (see section 60).
Section 31 outlines the circumstances under which the
Regulatory Authority may cancel a provider approval, including
the Regulatory Authority's assessment that the person is not a fit
and proper person or that there is an unacceptable risk to
children's safety, health or wellbeing should the approved
provider continue to operate the service.
Other reasons are the approved provider being found guilty of an
indictable offence or an offence under the Principal Act or the
National Law as applying in any participating jurisdiction, being
in breach of a condition of provider approval, or if the approved
provider has not operated a service for more than 12 months.
An approved provider may, in accordance with Part 5B, seek a
review of a decision by the Regulatory Authority to cancel a
provider approval.
Section 32 provides that in considering the cancellation of a
provider approval, the Regulatory Authority must first give the
approved provider a show cause notice stating the intention to
cancel the provider approval and the reasons for the decision.
The notice must also state that the approved provider is given
30 days to respond in writing to the Regulatory Authority.
As with show cause notice process for the suspension of a
provider approval under section 26, the show cause notice for the
cancellation of a provider approval is to ensure the approved
provider has an opportunity to be heard before the Regulatory
Authority makes a final determination. This accords with the
principles of procedural fairness and natural justice in
administrative decision-making.
Section 33 provides that, after considering any response from an
approved provider provided for under section 32, the Regulatory
Authority may cancel the provider approval, suspend the provider
approval for a period, or decide not to cancel the provider
15
approval. The Regulatory Authority must give written notice of
its decision to the provider. If the decision is to cancel the
provider approval, the notice must set out the date on which the
cancellation takes effect, which is 14 days after the date of the
decision, unless otherwise stated.
Section 34 provides that the effect of cancellation of a provider
approval is the cancellation of all service approvals held by the
provider except where the Regulatory Authority has approved
that an executor or guardian to hold the service approval on the
person's behalf under section 41.
Section 34(4) allows an approved provider to apply to the
Regulatory Authority to transfer a service approval to another
provider within 14 days of the decision to cancel the approval.
The effect of this application is that the service approval is
suspended pending the Regulatory Authority's decision as to
whether to consent to the transfer. If the Regulatory Authority
refuses to consent to the transfer, the original decision to cancel
the service approval stands.
Section 35 provides that where a show cause notice is issued in
relation to a proposed suspension or cancellation of a provider
approval, the Regulatory Authority may require the approved
provider to provide the contact information of parents of all
children enrolled at each service operated by the approved
provider for the purposes of informing parents of the proposed
action.
Section 36 provides that the Regulatory Authority may require an
approved provider, upon being advised by the Regulatory
Authority of the suspension or cancellation of their provider
approval, to notify parents of children enrolled at all or any
services operated by the approved provider of the decision and its
effect. Persons who fail to comply with this request are subject
to a penalty.
Section 37 enables an approved provider to apply in writing to
the Regulatory Authority to suspend a provider approval for no
more than 12 months.
The approved provider must notify parents of children attending
the children's service operated by the approved provider of an
intention to seek a voluntary suspension of provider approval
before making the application.
16
This section also sets out the processes for applying to the
Regulatory Authority for a suspension of provider approval, and
to have a suspension lifted before the prescribed end of the stated
period of suspension. If an application to suspend a provider
approval is granted, any service approval held by the provider
(including those related to associated children's services) is also
suspended.
Section 38 enables an approved provider to surrender its provider
approval (which is subsequently cancelled) by giving written
notice to the Regulatory Authority.
The approved provider must notify parents of children enrolled at
the children's service of its intention to surrender its provider
approval before giving notice to the Regulatory Authority. If a
provider approval is surrendered, all service approvals are
surrendered, with the effect that the service approvals are
cancelled on the date specified in the notice. This means the
service approvals cannot be transferred to another approved
provider.
As described, sections 35, 36, 37 and 38 provide for parents to be
notified of the suspension, cancellation and surrender of a
provider approval, so that the parents can make an informed
decision about their child's future care arrangements. These
notification requirements are consistent with the objective of the
Principal Act stated in section 8(1)(a), that is to ensure the safety,
health and wellbeing of children attending children's services. It
is also consistent with the guiding principles of the Principal Act
that the rights and best interests of the child are paramount.
Section 39 provides that the nominated supervisor, or any other
person with day to day control of a children's service, must notify
the Regulatory Authority within 7 days of an approved provider's
death.
This clause also provides for the executor of the approved
provider's estate to continue to operate the approved children's
service provided at least one nominated supervisor continue to
manage the day to day operation of the service.
The executor of the estate of the approved provider may transfer,
surrender or apply for a suspension of the service approval. The
executor of the estate of the approved provider may apply to the
Regulatory Authority for a provider approval within 30 days of
the death of the approved provider.
17
Section 40 provides for the legal personal representative or
guardian of an approved provider to apply to the Regulatory
Authority for a provider approval where the approved provider
has become incapacitated.
Section 41 provides that the Regulatory Authority must not grant
a provider approval to a person under clause 39 or 40 unless
satisfied that the person is a fit and proper person under the
assessment provisions set out in clauses 12, 13 and 14. The
Regulatory Authority may grant the provider approval including
granting it subject to conditions, or refuse to grant the approval.
An approval may be granted for up to 6 months with provision
for a further 6 month extension at the Regulatory Authority's
discretion.
Part 3--Service approval
Division 1--Application for service approval
A service approval obtained by an approved provider under
Part 3 authorises the provider to operate a children's service at a
particular premises.
Section 42 provides that an approved provider may apply to the
Regulatory Authority for a service approval. An approved
provider may only apply for a service approval if the approved
provider is or will operate the children's service. A person who
has, or is in the process of applying for, a provider approval may
apply for service approval. The Regulatory Authority must not
grant the service approval unless the provider approval is
granted.
Section 43 sets out the mandatory form the application for a
service approval. The approved provider must nominate in the
application form one or more individuals to be a nominated
supervisor of the service and include evidence of each
individual's consent to the nomination. The approved provider
may nominate themselves as a nominated supervisor, and in this
case, they do not have to provide evidence of the consent as
consent is self-evident.
Section 44 enables the Regulatory Authority to seek further
information that is reasonably required for the purpose of
assessing an application for a service approval. The time
between making a request for further information and the
provision of the information is not included in the 90-day period
18
set out in section 47(3) for the Regulatory Authority to make a
decision on an application.
Section 45 provides that the Regulatory Authority may require
information from applicants and undertake inquiries and
investigations in considering an application for a service
approval. The Regulatory Authority may also inspect the
children's service premises and inspect policies and procedures of
the service for the purpose of assessing the application for a
service approval.
Section 46 sets out the matters that the Regulatory Authority
must have regard to in considering an application for a service
approval. These are the suitability of a premises, the adequacy of
the policies and procedures of the service, whether the applicant
has a provider approval, whether each nominated supervisor has
consented to being a nominated supervisor for the service
(except where the approved provider is also the nominated
supervisor), any other matter the Regulatory Authority thinks fit,
and any other prescribed matters.
In addition, the Regulatory Authority may also have regard to
whether the applicant is capable of operating the children's
having regard to its financial and management capability, history
of compliance with the Principal Act and the National Law as
applying in any participating jurisdiction.
Section 47 provides for the Regulatory Authority to grant or
refuse to grant a service approval to an approved provider.
Any grant of a service approval is subject to any conditions the
Regulatory Authority thinks fit. If the Regulatory Authority has
not made a decision on the application within 90 days, and has
not agreed with the applicant to extend this period, the
application is deemed to be refused.
An approved provider may, in accordance with Part 5B, seek a
review of a decision to refuse to grant a service approval.
Section 48 provides that the Regulatory Authority must not grant
a service approval if doing so would constitute an unacceptable
risk to the safety, health or wellbeing of children or if the
applicant does not have a provider approval. The Regulatory
Authority may also refuse to grant a service approval on any
grounds prescribed in the regulations.
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Section 49 provides that the Regulatory Authority must give the
applicant written notice of its decision on the application for a
service approval, including its reasons for the decision, within
7 days of making a decision.
Section 50 provides that a service approval is granted subject to a
number of conditions, including ensuring the safety, health and
wellbeing of children and meeting children's educational and
developmental needs. It is also a condition that the service must
commence within 6 months of the relevant service approval
being granted, unless otherwise agreed by the Regulatory
Authority.
A further condition is that the approved provider must hold the
prescribed insurance. The Regulatory Authority may also impose
any other conditions it sees fit, for example, in regard to quality
improvement or alteration of premises.
A provider must comply with all conditions on the service
approval. Non-compliance is subject to penalties.
An approved provider may, in accordance with Part 5B, seek a
review of a decision to impose a condition on a service approval.
Section 51(1) provides that the Regulatory Authority must
provide a copy of a service approval to the approved provider and
prescribes the information required in the approval. The copy
must contain details including the name and location of the
children's service, any condition/s attached to the service
approval, the date the service approval was granted, the service
approval number, the name of the approved provider, the
maximum number of children permitted to be cared for by the
children's service at any one time, the details of any service or
temporary waiver granted by the Regulatory Authority under
Division 5 or 6 (respectively).
Section 51(2) requires the Regulatory Authority to provide a
person taken to be an approved provider under section 16(1) with
a copy of the provider approval at the same time as the
Regulatory Authority provides a copy of the service approval
under subsection (1).
Section 52 obliges an approved provider to (in accordance with
the regulations) pay an annual fee in respect of each service
approval held. This annual fee will be prescribed in regulations
made under the Principal Act.
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Division 2--Amendment of service approval
Section 53 sets out the process by which an approved provider
may seek an amendment of a service approval, and the powers
and obligations of the Regulatory Authority in determining an
application.
An example of when an application for an amendment may be
made is where an approved provider seeks the removal of a
condition on a service approval. The Regulatory Authority may
accept or refuse the amendment sought by the approved provider,
or amend the approval in another way with the written agreement
of the applicant. The Regulatory Authority must make a decision
within 60 days and must provide the approved provider with
written notice of its decision. An amendment cannot change a
location of a service.
An approved provider may, in accordance with Part 5B, seek a
review of a decision made by the Regulatory Authority to refuse
to amend a service approval.
Section 54 provides that the Regulatory Authority may amend a
service approval at any time by notice to the approved provider.
For example, the Regulatory Authority may amend a service
approval to add or remove a condition, or when the service
approval is transferred to another approved provider.
An approved provider may, in accordance with Part 5B, seek a
review of a decision made by the Regulatory Authority to amend
a provider approval.
Section 55 provides that, if an approved provider wishes to
change the nominated supervisor of a service, then the approved
provider must give the Regulatory Authority at least 7 days
written notice of the change before the new nominated supervisor
is due to commence in the role. The notice must include
information (as prescribed in the regulations) about the new
nominated supervisor and include that individual's written
consent to the nomination.
Section 56 provides that an approved provider must give the
Regulatory Authority written notice of any change to the name
and contact details of any nominated supervisor of the children's
service.
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Section 57 provides that the Regulatory Authority must provide a
copy of an amended service approval to the approved provider.
Division 3--Transfer of service approval
Section 58 provides for the transfer of a service approval from
one approved provider to another approved provider.
Section 59 provides that the Regulatory Authority must be
notified in writing at least 42 days prior to the proposed date of
the transfer of a service approval and a prescribed fee must be
paid.
Section 60 provides that a service approval cannot be transferred
without the consent of the Regulatory Authority.
Section 61 provides that consent is taken to have been given if
the Regulatory Authority, having been notified of a proposed
transfer of a service approval, has not notified the parties that it
intends to intervene at least 28 days before the intended date of
transfer.
Section 62 sets out the circumstances under which the Regulatory
Authority may intervene in a transfer of a service approval,
including, but not limited to, concerns as to the receiving
approved provider's compliance history with the Principal Act
and the National Law as applying in a participating jurisdiction,
financial capacity and management capability to operate the
service. Any decision by the Regulatory Authority to intervene
must be provided by written notice to the intended transferring
and receiving approved providers at least 28 days prior to the
proposed date of transfer.
Section 63 provides that if the Regulatory Authority intervenes a
transfer cannot proceed without the Regulatory Authority's
written consent.
Section 64 provides that if the Regulatory Authority has
intervened in the transfer of a service approval it may seek
further information from either party to the proposed transfer and
undertake inquiries in relation to the receiving approved provider
in deciding whether to consent to the transfer.
Section 65 provides that if the Regulatory Authority has
intervened in the transfer of a service approval, it may decide to
consent or refuse to consent to the proposed transfer, and may
impose conditions on the transfer, which must be observed.
22
An approved provider may seek a review, in accordance with
Part 5B, of a decision made by the Regulatory Authority to refuse
to consent to transfer a service approval.
Section 66 provides that if the Regulatory Authority has
intervened in the transfer of a service approval, it must notify the
parties to the proposed transfer of its decision to consent or refuse
to consent, or its intention to suspend the transfer to allow more
time for a decision at least 7 days prior to the intended date of
transfer. It also sets out the information required in the notice
conveying a decision.
Section 67 provides that the transfer of a service approval is void
if it is made without the consent of the Regulatory Authority,
contravenes the conditions of the transfer, or is purported to be
made to a person other than the person listed as the receiving
approved provider in the notice to the Regulatory Authority.
Section 68 provides that both parties to a transfer must give
written notice to the Regulatory Authority within 2 days of the
transfer taking effect. On receipt of notice of a transfer of a
service approval, the Regulatory Authority must amend the
service approval and provide a copy to the receiving approved
provider. The amendment to the service approval takes effect on
the date of the transfer. Penalties apply for failing to notify the
Regulatory Authority of the transfer of a service approval within
the prescribed time. The Regulatory Authority is required to
provide a person taken to be an approved provider under
section 17(1) with a copy of the provider approval at the same
time as the Regulatory Authority provides a copy of the service
approval under subsection (2).
Section 69 provides that the approved provider to whom a service
is transferred must notify the parents of children enrolled at the
service of the transfer at least 2 days before the transfer takes
effect. Penalties apply for failing to comply with this provision.
Division 4--Suspension or cancellation of service approval
Section 70 provides that, to encourage continuous improvement
and compliance with the Principal Act and the regulations,
powers are granted to the Regulatory Authority to suspend a
service approval.
23
Circumstances under which a service approval may be suspended
include the Regulatory Authority's assessment that it would not
be in the best interests of children for the service to continue, a
condition of the service approval has not been complied with, or
the service is not being managed in accordance with the Principal
Act.
Other reasons are the failure by the approved provider to comply
with a direction, compliance notice or emergency order; the
operation of a service at the premises has ceased and the service
has not been transferred to another approved provider within
6 months; within 6 months of being granted a service approval an
ongoing service has not commenced; or the approved provider
has not paid the prescribed annual fee for the service approval.
In accordance with Part 5B, an approved provider may seek a
review of a decision made by the Regulatory Authority to
suspend a service approval.
Section 71 provides that in considering the suspension of a
service approval, the Regulatory Authority must first give the
approved provider a notice stating the intention to suspend the
service approval, the proposed period of suspension and the
reasons for the decision. The notice must also state that the
approved provider is given 30 days to respond in writing to the
Regulatory Authority.
The show cause notice process is to ensure the approved provider
has an opportunity to be heard before the Regulatory Authority
makes a final determination. This accords with the principles of
procedural fairness and natural justice in administrative decision-
making.
Section 72 provides that, after considering any response from an
approved provider provided for under section 70, the Regulatory
Authority may suspend the service approval or decide not to
suspend the service approval.
Section 73 provides that, if the Regulatory Authority is satisfied
that there is an immediate risk to the safety, health or wellbeing
of a child or children a service approval may be suspended
without giving a show cause notice.
Section 74 provides that the Regulatory Authority must give
written notice to the approved provider of the decision to suspend
a service approval. A notice of a decision to suspend must set
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out the period of suspension and the date on which it takes effect,
which, if a show cause notice has been issued, is to be 14 days
after the date of the decision unless otherwise stated. If a show
cause notice has not been given, the suspension takes effect on
the giving of the notice of the decision to suspend.
Section 75 provides that the Regulatory Authority may consent to
the transfer of a service approval that has been suspended, and
that the suspension ceases on the transfer taking effect unless the
Regulatory Authority provides otherwise.
Section 76 sets out the circumstances under which the Regulatory
Authority may cancel a service approval, including the
Regulatory Authority's assessment that there is an unacceptable
risk to children's safety, health or wellbeing. Other reasons are
that, the service has not rectified the reason for a suspension of
the approval; the service approval was obtained improperly
(for example a service approval was transferred without the
consent of the Regulatory Authority); or a condition of the
service approval has not been complied with.
In accordance with Part 5B, an approved provider may seek a
review of a decision made by the Regulatory Authority to cancel
a service approval.
Section 77 provides that in considering the cancellation of a
service approval, the Regulatory Authority must first give the
approved provider a notice stating the intention to cancel the
service approval and the reasons for the decision. The notice
must also state that the approved provider is given 30 days to
respond in writing to the Regulatory Authority.
The show cause notice process is to ensure the approved provider
has an opportunity to be heard before the Regulatory Authority
makes a final determination. This accords with the principles of
procedural fairness and natural justice in administrative
decision-making.
Section 78 provides that, after considering any response from an
approved provider provided under section 77, the Regulatory
Authority may cancel the service approval, suspend the service
approval or decide not to cancel the service approval, and must
give written notice of the decision to the approved provider.
A notice of a decision to cancel a service approval must set out
the date on which it takes effect, which, unless otherwise stated,
is to be 14 days after the date of the decision, unless an
25
application to transfer the service approval is made as set out in
section 79.
Section 79 provides that an approved provider may apply to the
Regulatory Authority for consent to transfer the service approval
within 14 days of a decision to cancel a service approval. If an
application is made, the cancellation does not take effect and the
service approval is suspended pending the Regulatory Authority's
decision.
Section 80 provides for a decision on an application under
section 79. If the Regulatory Authority consents to the transfer,
the decision to cancel the service approval is revoked and the
suspension of the service approval ceases upon transfer unless
otherwise provided. If the Regulatory Authority refuses the
application, the service approval is cancelled.
Section 81 provides that where a show cause notice is issued in
relation to a proposed suspension or cancellation of a service
approval, the Regulatory Authority may require the approved
provider to provide the contact information of parents of all
children enrolled at the service for the purposes of notifying
parents of the proposed action.
Section 82 provides that the Regulatory Authority may require
the approved provider, upon being advised by the Regulatory
Authority of the suspension or cancellation of a service approval,
to notify parents of children enrolled at the service operated by
the approved provider of the decision and its effect. Failure to
comply with this request is subject to a penalty.
Section 83 enables an approved provider to apply in writing to
the Regulatory Authority and pay a prescribed fee to suspend a
service approval for no more than 12 months. The Regulatory
Authority will consider the reasonableness of a suspension in
determining whether to approve the request. The approved
provider must notify the parents of children enrolled at the
service of the intention to apply for a suspension of a service
approval at least 14 days prior to making the application to the
Regulatory Authority.
Section 84 provides for the surrender and subsequent cancellation
of service approval upon written notification to the Regulatory
Authority.
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Division 5--Application for service waiver
Section 85 provides that an approved provider may apply for a
waiver from a requirement that an approved children's service
comply with any prescribed requirement of the regulations. It is
intended that the prescribed requirements in the regulations relate
to the physical environment and staffing requirements, as
prescribed in the National Regulations. A service waiver allows
a service to be taken to comply with the specified prescribed
requirement.
This may, for example, relate to the operational requirements
about the physical environment in a children's service, such as
outdoor space requirements, where there is a reasonable basis for
the Regulatory Authority to waive the provider's compliance with
a particular operational requirement in the regulations. The
waiver power enables flexibility and recognises the variable
circumstances of services throughout Victoria.
Section 86 sets out the requirements for making an application to
the Regulatory Authority for a waiver.
Section 87 provides that the Regulatory Authority may seek
further information and inspect the premises and offices of the
applicant in considering an application for a waiver.
Section 88 provides that, in considering whether the grant of a
service waiver is appropriate, the Regulatory Authority may have
regard to whether the service is able to meet the prescribed
requirement by alternative means and any matters disclosed in
the application.
Section 89 provides that the Regulatory Authority may decide to
grant the service waiver or refuse the application. An applicant
for a service waiver must be notified of a decision within 60 days
of the application and a service approval must be issued
specifying the requirement in relation to which the waiver
applies.
Section 90 provides that the Regulatory Authority may revoke a
service waiver. For example, this action may be taken where the
Regulatory Authority considers the circumstances of the service
to have changed since the original decision, or if the service has
since fully complied with the requirements set out in the waiver.
A revocation takes effect at the end of the period prescribed in
27
regulations. An approved provider may also apply in writing to
have a service waiver revoked.
In accordance with Part 5B, an approved provider may seek a
review of a decision made by the Regulatory Authority to cancel
a service waiver.
Section 91 provides that, while the service waiver is in force, the
service will be considered to comply with the requirements
specified in the service waiver.
Division 6--Temporary waiver
Section 92 provides that an approved provider may apply for a
temporary waiver from the requirement to comply with a
prescribed requirement of the regulations. It is intended that a
temporary waiver can only be sought for requirements relating to
physical environment and staffing arrangements of a service, as
is the case in the National Law.
For example, a temporary waiver may relate to the qualifications
required to be held, where for practical reasons, such as staff
shortages in a regional area, there is a reasonable basis for the
Regulatory Authority to waive the provider's compliance for a
short period of time.
Section 93 sets out the requirements for making an application to
the Regulatory Authority for a temporary waiver.
Section 94 provides that the Regulatory Authority may seek
further information or inspect a children's service premises in
considering an application for a temporary waiver.
Section 95 provides that in considering whether the grant of a
temporary waiver is appropriate, the Regulatory Authority may
have regard to whether special circumstances disclosed in the
application reasonably justify the grant of the temporary waiver.
Section 96 provides that the applicant must be notified of a
decision within 60 days of an application for a temporary waiver
and, if granted, a service approval must be issued specifying the
requirements of the regulations on which compliance is waived.
A temporary waiver must specify the period of the waiver, which
can be no more than 12 months; however, an approved provider
may apply for a further temporary waiver or to extend a
temporary waiver.
28
Section 97 provides that the Regulatory Authority may revoke a
temporary waiver.
For example, this action may be taken where the Regulatory
Authority considers the circumstances of the service to have
changed since the original decision, or if the service has since
fully complied with the requirements set out in the temporary
waiver.
Section 98 provides that a service is not required to comply with
the requirements in the regulations specified in the waiver.
Division 7--Offences
Section 99 provides that it is an offence for a person to provide a
children's service unless the person is an approved provider in
respect to that service, and the service is an approved children's
service.
Section 100 makes it an offence to knowingly publish or cause to
be published an advertisement to provide a children's service
without holding a provider or service approval. However, the
provision allows an approved provider to lawfully advertise
without a service approval, if the provider has made an
application for the relevant service approval which is under
consideration by the Regulatory Authority.
Part 4--Operating a children's service
Part 4 sets out obligations for approved providers, nominated
supervisors and staff members of children's services, to ensure
that children's services are operated in a manner that promotes
the objectives and guiding principles of the Principal Act, as set
out in section 8. Part 4 prescribes penalties for infringement or
non-compliance. The penalty amounts reflect the seriousness of
the offence and the degree of the offender's responsibility in the
provision of the children's service.
Section 101 provides that an approved provider must not operate
a service unless there is at least one nominated supervisor for the
service. Nominated supervisors are responsible for the day-to-
day management of an approved service and provide overall
supervision and management.
29
Section 102 provides that an approved provider of a children's
service must not nominate a person to be a nominated supervisor
of that service unless the individual meets the requirements
prescribed in the regulations for being a nominated supervisor.
These requirements are to be similar to those currently in
regulation 117C of the National Regulations. For example, the
person must be aged at least 18 years, have adequate knowledge
and understanding of the provision of children's services and
have the ability to effectively supervise and manage a children's
service.
Section 103 provides that an approved provider must ensure that,
at all times, the approved provider, a nominated supervisor or a
person in day-to-day charge is present at that the service that is
educating and caring for children.
Section 104 provides that an approved provider must ensure that
each nominated supervisor and each person in day-to-day charge
of the service has successfully completed the child protection
training (if any) required by any law of Victoria or Government
protocol.
This provision recognises that, at the time of introduction of the
Bill, the Victorian government is implementing its response to
recent Parliamentary inquiries and a Royal Commission into
institution child abuse and family violence, including legislative
change. As part of this wide-reaching reform program,
requirements for child protection training are evolving
(for example, the Child Safe Standards and the Reportable
Conduct Scheme now apply to children's services under the
Child Wellbeing and Safety Act 2005).
Section 105 provides that the approved provider, and a
nominated supervisor, of a children's service must ensure that all
children being educated and cared for at that service are
adequately supervised at all times that children are in the care of
that service.
Section 106 provides that the approved provider, and a
nominated supervisor, of a children's service must ensure that no
child is subject to any form of corporal punishment or
unreasonable discipline.
30
Section 107 provides that the approved provider and a nominated
supervisor of a children's service must ensure that reasonable
steps are taken to protect children from harm and from hazards
likely to cause injury.
Section 108 provides that the approved provider and a nominated
supervisor of a children's service must ensure that a program
based on an approved learning framework is delivered to all
children and takes into account each child's needs, interests,
experiences and individual differences (see explanation of
new definition of approved learning framework inserted by
clause 5(1)).
Section 109 provides that the approved provider and a nominated
supervisor must ensure compliance with the staff to children
ratio, staff attendance hours and staff qualification requirements
prescribed in the regulations, unless the Regulatory Authority has
granted a service or temporary waiver in relation to a particular
prescribed requirement under Division 5 or Division 6 of Part 3
(in which case the service is excused from complying with the
waived requirement).
Section 110 provides that the approved provider and a nominated
supervisor of a children's service must ensure that unauthorised
persons do not remain on the children's service premises unless
they are under the direct supervision of an educator or staff
member of the service. An authorised person means the holder
of a current working with children assessment notice (or a
non-holder who otherwise holds a relevant permission to be on
the premises under the Working with Children Act 2005), a
parent or family member, a person who has been permitted by a
child's parent or family member to collect the child from the
service and medical or emergency personnel.
Section 111 allows the Regulatory Authority to direct the
approved provider or a nominated supervisor of a children's
service to exclude an inappropriate persons from the premises for
such time as the Regulatory Authority considers necessary.
An inappropriate person means a person who may pose a risk to
the safety, health or wellbeing of children, or whose behaviour,
state of mind or pattern of behaviour is such that it would be
inappropriate for the person to be on the premises while children
are attending, for example a person who is under the influence of
drugs or alcohol.
31
Section 112 provides that the approved provider of a children's
service must ensure that information prescribed in the
regulations, including details about service and provider
approvals, nominated supervisors and service waivers and
temporary waivers is displayed at the main entrance of the
children's service premises.
Section 113 provides that the approved provider must notify the
Regulatory Authority in relation to changes to the name of the
approved provider, management and control of the approved
provider and failure to commence operating a children's service
within 6 months. The approved provider must notify the
Regulatory Authority of matters in relation to operation of a
children's service including suspension, cancellation or
disciplinary proceedings or other action taken against a
nominated supervisor, changes relating to the engagement of a
nominated supervisor and changes relating to the children's
service premises, cessation of operation of a service and
proposed transfer of a service.
Section 114 provides that the approved provider of a children's
service must notify the Regulatory Authority of any serious
incidents at the service as prescribed in the regulations,
complaints regarding the safety, health or wellbeing of a child or
children, any contravention of the Principal Act, any change
relevant to an assessment of fitness and propriety, or any other
prescribed information.
Section 115 provides that the approved provider of a children's
service must keep enrolment and other documents relating to the
service, as prescribed in the regulations, in a manner that makes
the documents readily accessible by an authorised officer of the
Regulatory Authority.
Part 5--Compliance with this Act
Division 1--Notices
Section 116 provides that, if the Regulatory Authority is satisfied
that a children's service is not complying with a provision of the
Principal Act that is prescribed in the regulations, it may issue a
written direction requiring the approved provider to take action to
comply with the provision within a specified period of not less
than 14 days. An approved provider must comply with a
compliance direction.
32
Section 117 empowers the Regulatory Authority to issue a
compliance notice if a service is not complying with any
provision of the Principal Act. The notice requires the approved
provider to take specified steps to comply with that provision.
An approved provider must comply with a compliance notice
Section 118 empowers the Regulatory Authority to issue an
emergency action notice if there is an immediate risk to the
safety, health or wellbeing of children.
The Regulatory Authority may direct, by written notice, an
approved provider of a service to take action to remove or reduce
the risk within a specified timeframe, which must not be more
than 14 days. An approved provider must comply with this
notice.
Division 2--Enforceable undertakings
Section 119 provides for enforceable undertakings, which are an
alternative compliance tool through which a person in
contravention or alleged contravention of the Principal Act
undertakes to take, or refrain from taking, certain actions to
comply with Principal Act. By agreeing to, and complying with,
an enforceable undertaking, proceedings cannot be brought
against the person for the prescribed offence under Principal Act.
However, the Regulatory Authority may publish the undertaking.
Section 120 provides that, while an undertaking is in force,
proceedings may not be brought for any offence or alleged
offence related to the undertaking. While the undertaking is in
force, the Regulatory Authority must not suspend the provider
approval or service approval, or give a prohibition notice, in
relation to a matter the subject of the undertaking.
Section 121 provides that, if a person complies with an
enforceable undertaking, no further proceedings may be brought
for an offence or alleged offence related to the undertaking.
Section 122 provides that, in the event of failure to comply with
an enforceable undertaking, the Regulatory Authority may seek
recourse to the Magistrates' Court to enforce the undertaking, and
the Court may make orders regarding the undertaking, including
an order to direct the person to comply with the undertaking. If
the Court determines that the person has failed to comply with a
term of the undertaking, proceedings may be brought for any
33
offence or contravention in respect of which the undertaking was
given.
Division 3--Prohibition notices
Section 123 provides for the Regulatory Authority to issue a
prohibition notice to a person involved in providing a children's
service if it considers that there may be an unacceptable risk of
harm to a child if the person were allowed to remain on the
premises or to provide education and care to children.
Section 124 provides that the Regulatory Authority must issue a
show cause notice outlining the intention to give a prohibition
notice and the reasons for the intended prohibition. The show
cause notice must also provide the person at least 14 days to
respond to the notice. The requirement for a show cause notice
does not apply if the Regulatory Authority is satisfied that it is
necessary in the interests of a child's safety, health or wellbeing
to issue an immediate prohibition notice.
Section 125 provides that the Regulatory Authority must consider
any submission received within the stated time limit from a
person issued with a show cause notice, and must give notice to a
person if it is decided not to issue a prohibition notice.
The show cause notice process is to ensure the person subject to
the notice has an opportunity to be heard before the Regulatory
Authority makes a final determination. This accords with the
principles of procedural fairness and natural justice in
administrative decision-making.
Furthermore, a person may seek a review, in accordance with
Part 5B, of a decision made by the Regulatory Authority to issue
a prohibition notice.
Section 126 provides that a prohibition notice must state the
activities the person is prohibited from doing, inform the person
that the person may apply for cancellation of the notice, and
provide details on how an application to cancel the notice must
be made.
Section 127 provides for the process by which a prohibition
notice is cancelled, including the ability of a person subject to a
prohibition notice to apply for its cancellation. The Regulatory
Authority must decide on an application to cancel a prohibition
notice as soon as practicable.
34
In accordance with Part 5B, a person may seek a review of a
decision made by the Regulatory Authority to refuse to cancel a
prohibition notice.
Section 128 provides that a person who is the subject of a
prohibition notice must not be engaged or involved in any
capacity in a children's service, and must not fail to comply with
any restrictions on any other activity relating to a children's
service. Penalties apply for non-compliance.
Section 129 provides that an approved provider must not engage
a person who is the subject of a prohibition notice if the approved
provider knows or ought to have known that a prohibition notice
was in force. Penalties apply for non-compliance.
Section 130 provides that it is an offence if a person subject to a
prohibition notice gives an approved provider any information
about the content or existence of the prohibition notice that is
false or misleading. Penalties apply for non-compliance.
Division 4--Emergency removal of children
Section 131 provides for the emergency removal of children if
the Regulatory Authority considers there to be an immediate
danger to the safety or health of any child educated or cared for
by the service. In undertaking this action, the Regulatory
Authority is empowered to use the assistance of other persons
reasonably required (including police officers), enter a premises
without a warrant and use reasonable force as necessary.
An example of when this action may be taken is where there is
reasonable belief that the environment is unsafe, children are not
being adequately cared for and supervised, or reasonable
precautions to protect children from hazards or harm have not
been taken.
Part 5A--Review
In addition to the provisions relating to show cause notices in the
Principal Act, to ensure adequate application of the principles of
natural justice, Part 5A provides for internal and external review
of decisions made by the Regulatory Authority.
35
Division 1--Internal review
Section 132 provides that a reviewable decision for internal
review is a decision of the Regulatory Authority to impose
conditions on, or otherwise amend or refuse to amend, a provider
approval or a service approval, to refuse to grant a provider
approval or a service approval, to suspend a provider approval or
a service approval without prior issuance of a show cause notice,
to refuse to consent to the transfer of a service approval, to
revoke a service waiver, or issue a compliance direction or
compliance notice.
Section 133 sets out the procedure for internal reviews of
decisions by the Regulatory Authority. A person who is the
subject of a reviewable decision may make a written application
to the Regulatory Authority for review of the decision within
14 days of being notified of the decision. The person who
conducts the review must not have been involved in the original
assessment and may ask the applicant for further information.
The review must be conducted within 30 days of receipt of the
application, which may be extended by up to 30 additional days
if a request for further information is made, or by agreement with
the applicant. At the end of the review, the Regulatory Authority
may confirm the original decision or make any other decision it
deems appropriate.
Division 2--External review
Section 134 provides that a reviewable decision for external
review is a decision of the Regulatory Authority under
section 133, other than in relation to a compliance direction or
compliance notice, a decision to suspend or cancel a provider
approval or a service approval or a decision to issue or refuse to
cancel a prohibition notice.
Section 135 provides that a person who is the subject of a
reviewable decision may apply to VCAT for review of the
decision within 30 days of notification of the decision to be
reviewed. The VCAT may confirm or amend the decision of the
Regulatory Authority or substitute another decision for the
decision of the Regulatory Authority, and in doing so may have
regard to any decision of the VCAT under the Principal Act. The
VCAT may also have regard to relevant legal decisions from
participating jurisdictions.
36
Part 5B--Monitoring and enforcement
Division 1--Authorised officers
Section 136 provides for the Regulatory Authority to authorise
officers who meet requirements determined by the Regulatory
Authority.
Section 137 provides that the Regulatory Authority must issue an
authorised officer with an identity card. The authorised officer
must carry the card when exercising their functions and powers,
and must show the card before exercising a power of entry and at
any time during the exercise of a power, upon request. Penalties
apply for non-compliance.
Division 2--Powers of entry
Section 138 empowers an authorised officer to, at any reasonable
time, enter the premises of an approved children's service
premises where an authorised officer believes on reasonable
grounds that an approved service is operating, for the purposes of
monitoring compliance with the Principal Act or obtaining
contact information of parents of children educated or cared for
by a service under sections 35 and 81.
The authorised officer may not enter a residence unless an
approved children's service is operating at the residence at the
time of entry, or the occupier has given written consent.
This section also sets out powers and procedures in relation to
inspecting premises, taking photographs, recordings or sketches,
taking documents and records and asking for information from
any person on the premises.
Section 139 provides that an authorised officer may, with or
without consent, enter and inspect the premises of a children's
service at any reasonable time if there are reasonable grounds for
suspecting that an offence against the Principal Act may have
been or may be being committed. The premises may be searched
and the premises and anything at the premises may be inspected,
recorded, photographed or copied and the authorised officer may
ask for information from any person at the premises. Evidence
may also be seized.
37
Section 140 provides that an authorised officer may, with the
consent of the occupier, enter the principal offices or any other
business premises of an approved provider if the authorised
officer reasonably believes that documents or other evidence of
the commission of an offence against the Principal Act are
present. The authorised officer may search the premises and do
other things as part of that search. The authorised officer must
first inform the occupier of their rights in relation to the entry and
search of the premises.
Section 141 provides that an authorised officer may, with the
consent of the occupier, enter any premises (including a business
or residential premises) to determine whether a children's service
is operating from the premises without a service approval and the
authorised officer reasonably believes that a person is
contravening section 99. The authorised officer may on entry do
the things set out in clause 5(2)(a) to (e) of the Schedule. The
authorised officer must first inform the occupier of their rights in
relation to the entry and search of the premises.
Section 142 provides for an authorised officer to enter premises
with a search warrant, and provides that Schedule 2 to the
National Law applies to its issue and the powers to be exercised
on entry.
Section 143 provides for procedures in circumstances where
things are taken by an authorised officer, including a requirement
to return the item within 60 days, unless proceedings have
commenced or a court has extended this timeframe. The
authorised officer must provide the owner of the thing with
reasonable access to the item.
Section 144 sets out the process for an authorised officer to apply
to the Magistrates' Court for an extension of the period for which
a thing may be held.
Division 3--Other powers
Section 145 empowers an authorised officer to require a person
who has committed an offence or is reasonably suspected of
committing an offence against the Principal Act to provide
evidence of their correct name and address.
Section 146 empowers an authorised officer to require a person
to state and provide evidence of their correct date of birth, and to
require the person to state their name and residential address if
38
they are unable to comply with the request for proof of age, or
the proof of age shows that the person has not attained the
required minimum age (if a minimum age is specified in
regulations made under the Principal Act).
Section 147 provides for an authorised officer to, by written
notice, require a specified person to provide information
specified in the notice for the purposes of monitoring compliance
with the Principal Act or obtaining contact information of parents
of children attending a service under sections 35 and 81.
Specified person is defined in section 147(4) to mean a person
who is (or was) an approved provider, a nominated supervisor or
a staff member of, or volunteer at, an approved children's service.
This definition is also used in sections 155 and 156.
Division 4--Offences relating to enforcement
Section 148 provides that a person must not obstruct an
authorised officer in exercising powers under the Principal Act.
Section 149 provides that a person must not refuse to answer a
question, refuse to provide information or fail to comply with a
requirement made by an authorised officer under clause 5(2)(f) or
(g) of the Schedule without a reasonable excuse.
Section 150 provides that a person must not, without lawful
authority, destroy or damage any notice or document given,
prepared or kept under the Principal Act.
Section 151 provides that a person must not impersonate an
authorised officer.
Section 152 provides that an individual may refuse to give or
produce information to an authorised officer that might tend to
incriminate the person. However, an individual may not refuse to
produce a document that is required to be kept under the
Principal Act or to give their name or address as required under
the Principal Act. Any such document provided, and any
information obtained from that document, is not admissible in
any criminal or civil proceedings, except for criminal
proceedings under the Principal Act.
Section 153 provides that before requiring information or
documents, an authorised officer must produce identification,
warn that failure to comply constitutes an offence, and advise
39
individuals about the effect of section 152 relating to the
protection against self-incrimination.
Section 154 provides that an occupier of a children's service
premises must be given a copy of their written consent to entry
and inspection, and the lack of written consent is presumed to
mean that the occupier did not consent to the search.
Division 5--Powers of Regulatory Authority
Section 155 provides that if the Regulatory Authority reasonably
suspects that an offence against the Principal Act has been, or
may have been, committed, it may by written notice require a
specified person to provide relevant information or documents
specified in the notice or appear to give evidence or any relevant
document specified in the notice. A person required to appear to
give evidence may give such evidence via telephone, video
conference or other electronic means unless the Regulatory
Authority has reasonable grounds to require the evidence to be
given in person. The Regulatory Authority must warn the person
that failure to comply with the requirement is an offence and
inform the person of the effects of sections 157, 158 and 159.
Specified person has the same meaning as in section 147(4).
Section 156 provides that if the Regulatory Authority reasonably
suspects that an offence against the Principal Act has been, or
may have been, committed, it may require a specified person at a
children's service to provide information or documents relevant
to the suspected offence. The Regulatory Authority must warn
the person that failure to comply with the requirement is an
offence and inform the person of the effects of sections 157, 158
and 159. A person must not be required remain at a service for
more than a reasonable time in providing such information or
documents.
Specified person has the same meaning as in section 147(4).
Section 157 provides that a person must not refuse or fail to
comply with a requirement of the Regulatory Authority to
produce information or documents or otherwise appear to give
evidence under section 155 or 156.
Section 158 provides that a person must not obstruct or hinder the
Regulatory Authority in its exercise of powers under section 155
and 156.
40
Section 159 provides that a person is not excused from
complying with a requirement of the Regulatory Authority under
Section 155 or 156 on the ground that complying may
incriminate the person. However, the answers or information
provided by an individual, and any information obtained because
of that answer or information, are not admissible in evidence
against the person in any criminal proceedings (other than
proceedings under section 159) or in any civil proceedings.
Information obtained from a document or documents that are
required to be kept under the Principal Act are, however,
admissible against the person in criminal proceedings under the
Principal Act.
Part 5C--Regulatory Authority
The Regulatory Authority is the regulator of the children's
service regulatory framework established in the Principal Act and
is the main point of day-to-day contact for children's services
operating under the Principal Act.
Section 160 sets out the functions of the Regulatory Authority,
including administering the Principal Act, approving providers
and services, receiving and investigating complaints, monitoring
and enforcing compliance with the Principal Act and managing
information exchange and reporting.
Section 161 sets out the powers of the Regulatory Authority.
These powers relate to collecting, maintaining, sharing and
publishing information.
Section 162 provides for the Regulatory Authority to delegate in
writing any of its powers and functions.
Part 5D--Information, records and privacy
Division 1--Registers
Section 163 provides that the Regulatory Authority must keep a
register of approved providers, containing the name of each
approved provider and other information prescribed in
regulations made under the Principal Act.
Section 164 provides that the Regulatory Authority must keep a
register of approved children's services, containing the name of
each children's service and its approved provider, the address of
the children's service premises and other information prescribed
in regulations made under the Principal Act.
41
Division 2--Publication of information
Section 165 enables the Regulatory Authority to publish certain
information about approved providers, approved children's
services and nominated supervisors. This information includes
the name of each provider, service or supervisor, the address of
each children's service premises, and other information
prescribed in regulations made under the Principal Act.
The Regulatory Authority must also publish on its website the
register of approved providers and the register of approved
children's services.
The main purpose of publication is to allow consumers of
children's services to access this information so that they can
make informed choices.
Division 3--Disclosure of information
Section 166 allows the Regulatory Authority to disclose
information about children's services to a regulator of the
National Law in a participating jurisdiction (including the
Regulatory Authority in its capacity as the regulator of the
National Law as it applies in Victoria), a Commonwealth, State,
or Territory government entity or local council for the purposes
specified in section 166(2).
These purposes include promoting the objectives of the Principal
Act (as set out in section 8), assisting a regulator in a
participating jurisdiction to enforce compliance with the National
Law as it applies in that jurisdiction, research and development of
national, State or Territory policy, funding children's services and
the payment of benefits to consumers of children's services.
The Regulatory Authority must not disclose information that
could lead to the identification of a person, except if the person is
an approved provider or a nominated supervisor, a prohibited
person or a person who is being prosecuted for an offence under
the Principal Act.
Section 167 provides that, upon the written request of an
approved provider in relation to a specific individual, the
Regulatory Authority may disclose to the approved provider
whether that individual person is subject to a prohibition notice if
it is reasonable for the provider to have that information to
comply with the provider's obligations under the Act
42
(for example, the obligation in section 129 to not engage a person
subject to a prohibition notice).
Section 168 provides that, unless under certain circumstances set
out in the section, a person must not disclose protected
information. Penalties apply for contravening this provision.
Clause 9 changes the heading to Part 6 of the Act to "Part 6--
Miscellaneous".
Clause 10 inserts after the heading to Part 6 the title of new Division 1
(Administration).
Clause 11 renumbers current sections 50, 51 and 52 of the Principal Act as
sections 169, 170 and 171 respectively.
The renumbered sections deal with the funding of children's
services by the Secretary to the Department of Education and
Training (section 169), guidelines published by the Secretary
(section 170) and the Minister's power to delegate powers to the
Secretary or employees of the Department (section 171) and are
relocated in Division 1 of Part 6.
Clause 12 repeals sections 52A to 53C because these sections are
redundant.
Clause 13 renumbers section 54 to section 172.
Clause 14 repeals sections 54A, 55 and 56 because these sections are
redundant.
Clause 15 inserts a number of new provisions in Part 6 to address legal
proceedings and the service of notices. The new provisions
mirror provisions in the National Law and are further explained
below.
Division 2--Legal proceedings
Section 173 allows the Regulatory Authority, a person authorised
by the Regulatory Authority or a police officer to bring
proceedings for an offence under the Principal Act.
Section 174 provides that proceedings for an offence under the
Principal Act must be commenced within 2 years of the date of
the alleged offence.
43
Section 175 provides that a director or other person concerned
with the management of a body corporate that has committed an
offence commits the offence and is liable to the penalty if they
failed to exercise due diligence to prevent the contravention.
Section 176 provides that if the Principal Act requires or permits
something to be done by a partnership or eligible association, the
thing may be done by, as relevant, one or more of the partners on
behalf of the partnership or one or more of the members of the
executive committee on behalf of the eligible association. An
offence is taken to be committed by, for partnerships, each
partner who is a person with management and control of the
service; for eligible associations, each person with management
or control of the association; and for prescribed entities, each
person with management or control of that entity.
Section 177 provides that, in the case of multiple holders of a
provider or service approval, each holder of the approval is
jointly and severally responsible for compliance with the
Principal Act.
Section 178 provides that if the Regulatory Authority becomes
aware of misconduct by a registered teacher or other person who
could be subject to disciplinary action under a jurisdiction's
education law, the Regulatory Authority may refer the matter to
the relevant disciplinary body. If the Regulatory Authority refers
a matter to a disciplinary body, a prosecution cannot be brought
under the Principal Act for an offence in relation to that matter.
Section 179 provides for a certificate signed by the Regulatory
Authority to be taken as prima facie evidence of the matters
specified in section 179(2), including a decision made under or a
notice given under the Principal Act, or a register kept under the
Principal Act.
Division 3--Service of notices
Section 180 sets out the circumstances under which a notice,
order or document can be served or taken to be served on a
person.
Section 181 provides for effecting service of documents by post.
44
Division 4--False or misleading information
Section 182 provides that it is an offence for a person to give the
Regulatory Authority or an authorised officer, information or
documents that he or she knows to be false or misleading.
Division 5--Protection from reprisal
This Division seeks to enable the reporting of concerns about
possible breaches of the Principal Act (or regulations made under
it) by providing protections to persons who provide information
to the Regulatory Authority.
Section 183 defines protected disclosure as disclosure of
information or provision of documents to the Regulatory
Authority pursuant to a request made under the Principal Act or
where there is reasonable belief that an offence has been, or is
being committed under the Principal Act or the safety, health and
wellbeing of a child is at risk. Serious detrimental action is
defined to include dismissal, involuntary transfer, loss of
promotion or demotion.
Section 184 prohibits a person from taking or threatening to take
serious detrimental action against a person in reprisal for a
protected disclosure.
Section 185 provides for proceedings seeking damages to be
taken against a person who takes serious detrimental action in
reprisal for a protected disclosure.
Section 186 sets out procedures available to a person who
believes that serious detrimental action has been or may be taken
against them for a protected disclosure.
Section 187 sets out possible actions to be taken by the Supreme
Court if it is satisfied that a person has taken or intends to take
serious detrimental action against a person in reprisal for a
protected disclosure.
Division 6--Miscellaneous matters
Section 188 mirrors an interpretive provision in Schedule 1 to the
National Law and provides that if a person who keeps a record of
information by means of mechanical, electronic or other device
(for example, on a computer or hard drive) is required to produce
to, or make available for inspection by, a court, tribunal or person
the information or a document containing the information, unless
the court, tribunal or person otherwise directs, the person must
45
also produce or make available for inspection a document that
reproduces the information in a form capable of being understood
and this is taken to satisfy the requirement.
Section 189 mirrors an interpretive provision in Schedule 1 to the
National Law and provides that, under the Principal Act, a person
reaches a certain age at the beginning of the person's birthday for
the relevant age.
Division 7--Approved associated children's services National
Law provisions not to apply
Section 190 provides that the National Law provisions that
provide for the approvals and authorisation of the operation of
associated children's services and related provisions are no longer
effective in Victoria. Approved associated children's services
will be transitioned to be regulated either under the National Law
or under the Principal Act. A 2-year transition period will give
affected services sufficient time to make the transition. For more
information, please refer to the clause notes to sections 200 and
201 below.
Division 8--Regulations
Section 191 provides for the making, publishing and
commencement of regulations under the Principal Act. The
regulations will contain many of the operational requirements to
support the new aligned regime.
Section 192 mirrors an interpretive provision in Schedule 1 to the
National Law that provides for technical matters regarding the
making of statutory instruments under the Principal Act.
Statutory instruments contain any instrument made pursuant to
the Principal Act that is of an administrative or legislative
character. For the avoidance of doubt, the provision applies to
both statutory instruments and to regulations made under
section 191.
Clause 16 substitutes Parts 7 and 8 of the Principal Act with new Part 7
which provides for the arrangements, to apply from the
commencement date, for transitioning from the current regime
under the Principal Act to the new National Law aligned regime
under the Principal Act as amended by the Bill.
46
The provisions in Part 7 are explained below.
Part 7--Transitional provisions--Children's Services
Amendment Act 2019
Division 1--Preliminary
Section 193 contains definitions for the transitional arrangements
which are self-explanatory. Most of the definitions (for example,
commencement day, old licence, old Act, old person in charge,
old primary nominee, old associated children's service,
transitioned children's service and transition period define key
elements of the current licensing regime under the Principal Act
that will be transferred to the new aligned regime by the
operation of the substantive provisions in Part 7.
Division 2--Old licences
Section 194 provides that on and from the commencement day
(as defined in section 193), a person who held a licence to
operate a children's service under the Principal Act immediately
before the commencement day, is taken to hold a provider
approval and a service approval under the Principal Act as
amended in respect of the same children's service.
From that point, the Principal Act will apply to the person's
provider and service approvals as if the provider and service
approvals were granted under new Parts 2 and 3 (respectively) of
the Principal Act on the commencement day.
The person taken to be the approved provider must notify the
Regulatory Authority of the identity and contact details of the
person with management and control of the children's service to
ensure that the Regulatory Authority has up-to-date information
as the transition to the new arrangements occurs.
This will mean that most current children's services licence
holders will automatically transition to the new scheme on the
commencement day. The provision recognises that a person's
licence held under the current Principal Act regulatory regime,
equates to the relevant required approvals to operate a children's
service under the new aligned regime. This will obviate the need
for the licence holder to apply for those approvals under new
Parts 2 and 3 of the Principal Act.
47
Section 195 deals with licences which were suspended
immediately before the commencement day. Although
suspended licences will be transitioned to the new aligned regime
in accordance with section 194, the new provider and service
approval will continue to be suspended under the amended
Principal Act for the duration of the suspension. The Principal
Act as amended will apply to the suspension of the provider
approval as if the suspension was made under new Division 4 of
Part 2 and to the suspension of the service approval as if the
suspension was made under new Division 4 of Part 3.
Section 196 deals with licences held by a trust immediately
before the commencement day. The trustee or trustees are taken
to be the approved provider of the children's service for the
purpose of section 194. The trust must, within 30 days of the
commencement day, notify the Regulatory Authority of the
identity of the trustee or trustees. This is to ensure that the
Regulatory Authority has up-to-date information as the transition
to the new arrangements occurs.
Section 197 provides that if a person is taken to hold a provider
approval by operation of section 194, then any conditions that
were attached to the licence immediately before the
commencement day are taken to be conditions attached to the
provider approval, unless inconsistent with the Principal Act.
Section 198 provides that the Regulatory Authority must, within
6 months of the commencement day give to each person who is
taken to hold a provider approval and a service approval by
operation of section 194, a copy of the provider and service
approval, containing the information set out in section 20
(for provider approvals) and section 51 (for service approvals).
Section 199 deals with persons who held more than one licence
in respect of the same premises under the Principal Act
immediately before the commencement day (for example, a
provider who held a licence to provide school holidays care, and
a licence to provide limited hours care, at the same premises).
The 2 licences will be merged into one service approval under the
amended Principal Act, which will cover all services provided at
the premises.
48
Division 3--Approved Associated Children's Services
This Division provides for the phasing out of approved associated
children's services in Victoria over a 2-year transitional period
from the commencement day. During this 2 year period, it is
intended that approved associated children's services transition to
be regulated under either the Principal Act regime or the National
Law regime, or to cease to operate their service.
As described in the clause note to section 190 above, the
provisions of the National Law that authorise the approval and
operation of approved associated children's services, and other
relevant provisions, will no longer apply in Victoria. This is
intended to prevent the approval of new approved associated
children's services from the commencement day in Victoria.
The provision also means the National Law will cease to apply to
approved associated children's services in existence immediately
before the commencement day. In addition, on and from the
commencement day, the transitional arrangements set out in
sections 200 and 201 of the Principal Act will apply to those
services. Section 190 provides clarity and certainty as to which
law will apply to approved associated children's service in the
2-year transition period.
Section 200 provides that an approved associated children's
service may continue to operate for 2 years after the
commencement day, despite the enactment of section 190.
During this period, the provisions of the amended Principal Act
will apply to the approved associated children's service as if the
service is an approved children's service under the amended
Principal Act, the provider is an approved provider under the
amended Principal Act and the nominated supervisor is
nominated under the amended Principal Act.
The application of the Principal Act to approved associated
children's services will mean that, during the 2-year period, the
services will have to comply with the operational, administrative,
compliance and enforcement and record-keeping requirements of
the Principal Act.
Section 201 ceases the application of section 200 on and from the
day that is 2 years after the commencement day. A provider of
an old approved associated children's service will need to apply
for, and be granted, a service approval under either the National
49
Law or the Principal Act if it wishes to continue operating the
service after that time.
Division 4--Exemptions from requirements of the old law
Section 202 provides for the continuation of an exemption under
section 6 or 29A of the old Act from a requirement of a Principal
Act that applied to a particular children's service (as opposed to
applying generally to all children's services or to a type of
children's service) and that was in force immediately before the
commencement day. The exemption continues to have force for
a period of 6 months from the commencement day or, if the
former licence holder (who becomes an approved provider by
operation of section 194) makes a fresh application for a service
or temporary waiver under new Part 3 of the Principal Act, until
the date on which the application is finally determined.
Section 203 provides for the continuation of an exemption under
section 6 or 29A of the old Act in respect of a type of children's
service that was in force immediately before the commencement
day. The exemption continues to have force for the period
specified in the exemption, unless earlier revoked.
Division 5--Applications
Section 204 provides that an application for a licence that was
pending immediately before the commencement day is taken to
be an application for a provider approval and a service approval
under new Division 1 of Part 2 of the Principal Act.
Division 6--Nominated supervisors and other persons
Section 205(1) provides that a person who is, immediately before
the commencement day, a primary nominee of a children's
service is taken to be the nominated supervisor of that service on
and from the commencement day.
Section 205(2) provides that subsection (1) ceases to apply if the
approved provider does not provide written confirmation of the
person's nomination, on request by the Regulatory Authority, or
if the person advises the Regulatory Authority in writing that
they do not consent to the nomination.
Section 206 provides that a person who is, immediately before
the commencement day, a person in charge of a children's service
is taken to be the person in day-to-day-charge of that service on
and from the commencement day. However, this will not be the
50
case if another person is placed in day-to-day charge under the
regulations.
Division 7--Miscellaneous matters
Section 207 provides that a compliance notice that was in force
immediately before the commencement day continues to be in
force, as if it were a compliance notice issued under new
section 117 of the Principal Act.
Section 208 authorises the Regulatory Authority to disclose
information obtained and kept by it under the Principal Act in
force immediately before the commencement day, under new
section 166.
Section 209(1) provides that a person who was a proprietor of a
children's service under the Principal Act in force immediately
before the commencement day must either keep the prescribed
records about the service for a prescribed period, or transfer the
prescribed records about the service to the new approved
provider of that service within the prescribed period after the
commencement day.
Section 209(2) provides that an old licence holder of a children's
service must keep the prescribed records for the prescribed
period.
Section 209(3) provides that a person to whom records are
transferred under section 209(1)(b) must keep the records for the
prescribed period.
Section 209(4) provides that a person required to keep records
under section 209 must also comply with any request by the
Regulatory Authority to make the records available to the
Regulatory Authority in a prescribed manner.
A failure to comply with section 209 constitutes an offence and
may attract penalties.
Section 210 provides a power for the Governor in Council to
make regulations providing for matters of a transitional or saving
nature, and as necessary and convenient, to support the transition
to the new regulatory framework in the Principal Act.
Clause 17 inserts a new Schedule to the Principal Act, which provides for
the issue of search warrants and powers of entry exercisable
under search warrant.
51
Part 3--Amendment of other Acts
Clause 18 amends section 2.6.60A(6) of the Education and Training
Reform Act 2006 to reflect the new service waiver and
temporary waiver provisions in the Principal Act.
Clause 19 amends section 182(1)(f) of the Children, Youth and Families
Act 2005 to reflect the transition of proprietors and nominees
under the Principal Act as in force immediately before the
commencement day to approved providers or nominated
supervisors under the Principal Act.
Clause 20 amends various provisions in the Child Wellbeing and Safety
Act 2005 to reflect the updated terminology in the Principal Act,
including replacing references to licensees with references to
approved providers.
Clause 21 amends paragraph (b) of the definition of early childhood service
in section 3(1) of the Public Health and Wellbeing Act 2008 to
reflect the updated terminology in the Principal Act.
Clause 22 replaces the definition of children's service premises in section 3
of the Tobacco Act 1987 to reflect the updated meaning in the
Principal Act.
Part 4--Repeal of Act
Clause 23 provides for the repeal of the amending Act on 18 May 2021,
which is one year after the forced commencement date provided
for in clause 2.
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