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April 2017
Operational Policy Manual for Regulatory Authorities
Last updated April 2017
copy 2015 Australian Childrenrsquos Education and Care Quality Authority
Copyright in this resource (including without limitation text images logos icons information data documents pages and images) (ldquothe materialrdquo) is owned or licensed by us
Copyright in material provided by the Commonwealth State or Territory agencies private individuals or organisations may belong to those agencies individuals or organisations and may be licensed by us
Subject to any contrary statement on relevant material you may use any of the material in this resource for your personal non-commercial use or use within your organisation for non-commercial purposes provided that an appropriate acknowledgment is made (retaining this notice) and the material is not altered or subjected to derogatory treatment Apart from any other use as permitted under the Copyright Act 1968 (Cth) all other rights are reserved
Requests and enquiries concerning further authorisation should be addressed to The Copyright Officer ACECQA PO Box A292 Sydney NSW 1235
Or emailed to enquiriesacecqagovau
Last updated April 2017 Introduction 1
A
Contents
A Introduction 2
B Good Regulatory Practice 7
C Applications and Approvals 25
D Operational Requirements 137
E Monitoring Compliance and Enforcement 251
F Fees 361
G Reviews 367
H Assessment and Rating 385
I Glossary 417
The purpose of this manual is to assist authorised officers and other staff of regulatory authorities to apply the Education and Care Services National Law (National Law) and the Education and Care Services National Regulations (National Regulations) The manual is not legal advice The manual should always be read with the National Law and Regulations The National Law and Regulations take precedence over any guidance in the manual
J Appendix One Family Day Care Protocol 437
2 Introduction Last updated April 2017
A
EDUCATIONAND CARE SERVICESNATIONAL
LAW
EDUCATIONAND CARE SERVICESNATIONAL
REGULATIONS
NATIONALQUALITY
STANDARD(SCHEDULE TO
NATIONALREGULATIONS)
APPROVEDLEARNING
FRAMEWORKS
SOURCEDOCUMENTS
Primary Audience Sector Providersservices Regulatory authorities
Introduction11 The Operational Policy Manual is intended to assist authorised officers and other regulatory
authority staff apply the Education and Care Services National Law (National Law) and the Education and Care Services National Regulations (National Regulations) In particular it is intended to support nationally consistent application of the National Quality Framework (NQF)
12 The manual should always be read with the National Law and Regulations It is not legal advice and the National Law and Regulations take precedence over any guidance in the manual
13 The diagram below shows how the manual aligns with the other supporting documents available on the ACECQA website at wwwacecqagovau
1
September 2013
Guide to the National Quality Framework
April 2012
National Quality Standard Assessment and Rating Instrument
January 2013
Guide to Assessment and Rating for Services
Last updated April 2017 Introduction 3
A
14 This manual is regularly reviewed and updated by ACECQA in consultation with the regulatory authorities and the Commonwealth Department of Education Employment and Workplace Relations Changes will be informed by the experience of authorised officers and other regulatory authority staff administering the National Law and Regulations Updates will be available on the ACECQA website at wwwacecqagovau
15 The manual includes the following chapters
Good Regulatory Practice
Sets out the objectives of the National Law It includes the best practice regulation principles and the principles of good administrative decision-making which the regulatory authorities have agreed will guide their work
Applications and Approvals
Provides information about processing applications for provider approval service approval waivers and supervisor certificates It also includes information about applying to use indoor space as outdoor space and including verandahs as indoor space
Operational Requirements
Sets out the requirements for operating an education and care service including the responsibilities of approved providers nominated supervisors and family day care educators It includes guidance for regulatory authorities to help determine whether operational requirements are being complied with
Monitoring Compliance and Enforcement
Provides information and guidance about monitoring for compliance with the National Law and Regulations It also includes guidance about using the compliance tools and powers available under the legislation
Fees Sets out fees payable to regulatory authorities
Reviews Provides information about decisions that are subject to internal review by the regulatory authority or external review by a court or tribunal It also provides broad guidance about administrative review by an Ombudsman and a personrsquos right to judicial review
Assessment and Rating Provides information about the assessment and rating process for an education and care service as required under the National Law and Regulations It also provides details about the assessment and rating visit and review of service rating against the National Quality Standard
Glossary Defines key terms used in this manual
16 This manual sometimes suggests other sources of information which regulatory authority staff and services may find helpful ACECQA and regulatory authorities do not endorse these resources or check their reliability
4 Introduction Last updated April 2017
A
Last updated April 2017 Introduction 5
A
Last updated April 2017 Good Regulatory Practice 7
BGood Regulatory Practice
The purpose of this manual is to assist authorised officers and other staff of regulatory authorities to apply the Education and Care Services National Law (National Law) and the Education and Care Services National Regulations (National Regulations) The manual is not legal advice The manual should always be read with the National Law and Regulations The National Law and Regulations take precedence over any guidance in the manual
Contents
1 Good regulatory practice 8
Why are regulatory authorities regulating 8
Regulatory practice diagrams 12
Assessing risk to children 14
Good decision-making 18
8 Good Regulatory Practice Last updated April 2017
B
1 Good regulatory practice11 This chapter sets out the objectives of the National Law It includes the best practice regulation
principles and the principles of good administrative decision-making which regulatory authorities have agreed will guide their work
Why are regulatory authorities regulating
12 Regulatory authorities and the Australian Childrenrsquos Education and Care Quality Authority (ACECQA) are regulating to
bull further the objectives of the National Law
bull influence the behaviour of providers nominated supervisors and educators in ways that are consistent with these objectives and improve outcomes for children and
bull fulfil their obligations under the National Law and Regulations
Objectives of the National Law
13 The National Lawrsquos objectives are shared by regulatory authorities and ACECQA and underpin regulatory actions and decisions
14 The objectives of the Education and Care Services National Law are set out below
bull ensure the safety health and wellbeing of children attending education and care services
bull improve the educational and developmental outcomes for children attending education and care services
bull promote continuous improvement in the provision of quality education and care services
bull establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework
bull improve public knowledge and access to information about the quality of education and care services and
bull reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth
Last updated April 2017 Good Regulatory Practice 9
B
Best practice regulation principles
15 Regulatory authorities and ACECQA have agreed to be guided by best practice regulation principles in the day-to-day implementation of the National Law
16 The nine principles below apply to all regulatory work from education and information giving to investigation and enforcement
Outcomes focussed
17 Regulatory actions should not be seen as ends in themselves They should promote improved quality outcomes for children and families and further the objectives of the National Law
18 All activities of regulatory authorities should
bull be clearly focussed on the underlying regulatory objectives
bull represent the course of action(s) that is likely to achieve these objectives in the most effective and efficient manner
bull be integrated and aligned that is they work towards common purposes and objectives and
bull be flexible and innovative achieving the best regulatory outcome in the particular circumstances of each case
19 Regulatory authorities should be guided by evidence and the objectives of the National Law to regularly review the effectiveness of regulatory actions
Proportionality and efficiency
110 The design and application of regulation should be proportionate to the problem or issue it is seeking to address Proportionality involves ensuring that regulatory measures do not lsquooverreachrsquo or extend beyond achieving an identified objective or addressing a specific problem The scope and nature of regulatory measures should match the benefits that may be achieved by improving outcomes for children or families or reducing risk of harm
111 Regulatory effort should also be focussed where it will generate the greatest benefits from the resources employed Actions should be targeted at areas where the largest gains can be made Regulatory authorities should prioritise effort and resources to areas where based on the available evidence the potential benefits and risks are more significant
Responsiveness and flexibility
112 Regulatory authorities should be responsive and flexible by
bull considering the full range of options available to them
bull tailoring their approach to account for the circumstances of each individual case
bull focusing on consistency of outcome and
bull regularly reviewing their practice and operational policy to ensure it is evidence based remains relevant and appropriate to changes in the sector
10 Good Regulatory Practice Last updated April 2017
B
113 Regulatory authorities should be responsive to the particular circumstances of each region location and provider Regulatory authorities may adopt different approaches to the same or similar issues owing to for example the prevalence of that issue compliance history the particular importance of the issue or other relevant differences across jurisdictions or within a jurisdiction
114 Regulatory authorities should encourage and not constrain appropriate and desirable innovation by education and care providers within the bounds of regulatory requirements
Transparency and accountability
115 Regulatory actions should be open and transparent to encourage public confidence and provide certainty and assurance for regulated entities
116 Legislation should be fairly and consistently administered and enforced and where relevant regulatory authorities should explain the reasons for their decisions
117 Regulatory authorities should also be accountable for the actions they take and welcome public and sector scrutiny including the regular reporting of performance information
118 In general the design and administration of regulation should provide for transparent and robust mechanisms to appeal against decisions made by regulators
Independence
119 Regulatory authorities should ensure the integrity and objectivity of regulatory actions
120 Where regulatory authorities exercise powers or make decisions this should be done in the absence of actual or perceived conflicts of interest or other relationships measures or influences that may impinge or be seen to impinge upon their objectivity
121 Abiding by this principle should not jeopardise having constructive working relationships between regulators and regulated entities
Communication and engagement
122 Regulatory authorities operate in a dynamic context made up of a broad range of stakeholders including
bull government agencies (for example policy agencies other regulators)
bull the regulated sector (including providers supervisors and educators)
bull peak bodies
bull service users (ie children and families) and
bull the broader community
123 Engaging appropriately with each stakeholder group makes regulatory activities more efficient and effective for example
bull exchanging operational information with other government agencies can inform better policy development and mutually improve regulatory decision-making
bull appropriate relationships with the regulated sector can facilitate more effective educative and advisory regulatory approaches as well as enabling the regulator to obtain valuable feedback and information that improves its own performance and
Last updated April 2017 Good Regulatory Practice 11
B
bull outward communication of performance and outcomes to service users and the broader community supports better information and decision-making as well as greater transparency and public accountability
Mutual responsibility
124 Regulatory authorities should acknowledge the primary responsibility of education and care providers their owners managers and staff for maintaining and improving the quality of their services
125 Providers supervisors and educators are responsible for meeting their obligations under the National Law and Regulations for ensuring the safety health and wellbeing and improving the educational and developmental outcomes of children in their care
126 The role of regulatory authorities is to administer the National Law and Regulations promoting quality improvement through exercising the powers and functions given to them by the legislation
Consistency and cooperation across jurisdictions
127 Cooperation and coordination between the jurisdictions is critical to ensure efficiency consistency and predictability of regulatory systems It can also ensure that scarce public resources are employed efficiently reducing duplication of regulatory effort and improving effectiveness
128 Central to achieving cooperation across regulatory authorities is agreement on the sharing of data and information to the greatest extent possible within the limits of the law
129 Regulatory authorities should also share evidence experimentation experience and policy initiatives to facilitate the adoption of best practice across jurisdictions
Awareness of the broader regulatory environment
130 Regulatory authorities should be aware of the existence of other relevant and overlapping regulatory schemes the role these schemes perform and the obligations they impose on businesses and other organisations
131 Regulatory authorities should
bull minimise the duplication of regulatory obligations impositions and effort and
bull cooperate and coordinate information sharing
132 For those jurisdictions where some or all preschool services are delivered through the government school system regulatory action should be cognisant of the policy and regulatory environment in that system
133 Other relevant regulatory systems could include those relating to
bull child protection
bull occupational health and safety
bull planning and
bull food safety
12 Good Regulatory Practice Last updated April 2017
B
Regulatory practice diagrams
Ayres and Braithwaite enforcement pyramid
134 In their book Responsive Regulation Transcending the deregulation debate Ian Ayres and John Braithwaite suggest a responsive compliance model This model can be depicted as a pyramid its shape indicating the
bull number of entities (ie service providers and others with liabilities under the legislation) likely to be found at each level of the model
bull hierarchical and escalating nature of regulatory engagement and
bull increasing focus towards the top of the pyramid on the small minority of entities that appear to deliberately not comply
135 The responsive compliance model is dynamic and allows versatility in managing non-compliance The modelrsquos strength is that it allows regulatory authorities to identify the best remedy for the particular situation This includes taking into account an entityrsquos efforts to comply Having a set of graduated responses enables the regulatory authority to
bull respond in a way that is proportionate to the risk
bull escalate regulatory action
bull de-escalate regulatory action and
bull minimise costs associated with a response
136 The diagram below is adapted from a version of the regulatory compliance pyramid published in the Australian National Audit Office Better Practice Guide The vertical arrow demonstrates the range of responses to regulation Providers and other people with obligations under the legislation who are willing and able to respond to regulation comply most of the time Those who are unwilling andor unable to respond require more persuasive deterrents and remedies The responsive compliance pyramid model is also consistent with the principle of earned autonomy where regulatory intervention is focussed towards those who are unwilling andor unable to comply
Last updated April 2017 Good Regulatory Practice 13
B
137 Prosecutions Bring an offence against the National Law or the National Regulations for decision by a court or tribunal
138 Statutory sanctions Cancellations suspensions conditions infringement notices compliance notices compliance directions enforceable undertakings emergency action notices prohibition notices direction to exclude an inappropriate person
139 Administrative actions Additional monitoring meetings warning letters or cautions
140 Information and guidance Factsheets newsletters FAQs helplines campaigns capacity-building practice notes and guidelines
Suspend or cancel
provider approvalservice approval
or supervisor certificate
Restrictusing proportionate statutory
sanctions such as acondition on an approval or
supervisor certifcate
Educateby providing information and guidance conducting targeted
information campaigns and giving feedback to supportcontinuous quality improvement such as through the
quality assessment and rating process
Direct and deterby giving specific directions using
administrative actions such as a warning letteror through statutory compliance tools such as a
compliance direction or an emergency action notice
Or by issuing a penalty to deter future non-compliancesuch as giving an infringement notice
Unwilling
amp
Unableable
Willing
amp
Unable
Willing
amp
Able
EA
RN
ED
AU
TO
NO
MY
PR
OS
EC
UT
E
14 Good Regulatory Practice Last updated April 2017
B
Assessing risk to children
National Law sections 3-4
141 When exercising functions under the National Law regulatory authorities must consider the Lawrsquos objectives and guiding principles These include ensuring the safety health and wellbeing of children attending education and care services and improving their educational and developmental outcomes They also include promoting continuous improvement in the provision of quality education and care services
142 To fulfil this responsibility regulatory authorities often need to assess the level of risk to children at education and care services The guidance below is to help regulatory authorities carry out a risk assessment and determine appropriate follow up action
What is risk
143 The National Law and Regulations do not define lsquoriskrsquo A common tool used to analyse the level of risk is a risk matrix (see below) This tool helps identify the level of risk by looking at how likely it is a negative event may occur and the severity of the consequence should it occur
144 Risk can arise through any part of the environment where education and care is provided to children This includes the physical environment staff members and other people at the service Risk can arise from an action or through a failure to act Risks can also emerge from systemic failure such as a provider not having adequate systems in place to control for risk
Risk Matrix
Cons
eque
nces
Likelihood
Rare Unlikely Possible Likely Almost Certain
Major Moderate High High Critical Critical
Significant Moderate Moderate High High Critical
Moderate Low Moderate Moderate High High
Minor Very low Low Moderate Moderate Moderate
Insignificant Very low Very low Low Moderate Moderate
Last updated April 2017 Good Regulatory Practice 15
B
Likelihood
145 The risk matrix includes five levels of likelihood which are described below When thinking about likelihood regulatory authorities should take into account factors such as history of compliance as well as readiness willingness and ability to comply It is also important to consider how soon an event might occur as this will help decide the most suitable action for responding to the risk
Likelihood Description
Rare Very unlikely ndash the event may occur only in exceptional circumstances
Unlikely Improbable ndash the event is not likely to occur in normal circumstances
Possible Potential ndash the event could occur at some time
Likely Probable ndash the event will probably occur in most circumstances
Almost certain Very likely ndash the event is expected to occur in most circumstances
Consequence
146 The risk matrix includes five levels of consequence insignificant minor moderate significant and major This takes into account the impact or potential impact of an event including its scale and duration A consequence might affect the safety and wellbeing of children at the service their family or the wider community
147 When analysing the consequences of a potential event regulatory authorities should consider the vulnerability of people who might be affected For instance very young children or children with a disability may be particularly vulnerable because they are less able to act to protect their wellbeing
148 Harm to children might arise as the result of a single incident or from several incidents that occur over time This is known as cumulative harm
16 Good Regulatory Practice Last updated April 2017
B
Risk prioritisation
149 A risk matrix helps work out the priority of a particular risk This can help regulatory authorities determine which risks to address first The priorities in the above risk matrix are very low low moderate high and critical
150 The Monitoring Compliance and Enforcement chapter has information about tools available to regulatory authorities which can be used to compel providers to reduce risks to children
151 Once the regulatory authority has taken action to compel the approved provider to reduce the risk it can reassess the level of risk to children using the risk matrix If it considers the risk to children is still moderate or greater the regulatory authority should consider further options for compelling the providerrsquos compliance The aim is to reduce the level of risk to very low or low However depending on the circumstances regulatory authorities may decide to act to address a low or very low level risk as there may be ways of further reducing the risk or removing it entirely
Unacceptable risk
152 The term lsquounacceptable riskrsquo appears in a number of provisions in the National Law and Regulations (see table below) The National Law and Regulations do not define lsquounacceptable riskrsquo This is because the nature and degree of risk to children will vary depending on the particular circumstances
153 The National Law allows regulatory authorities to prevent a provider or service from operating if the regulatory authority is satisfied there is an unacceptable risk to the health safety or wellbeing of children at the service In the case of a prohibition notice the regulatory authority can prevent a person from having any involvement with any service if they are satisfied there is an unacceptable risk
154 The regulatory authority may consider there is an unacceptable risk if the operation of the service has resulted in harm to children and the regulatory authority considers that there are no options for effectively reducing the risk to children For example the regulatory authority may have made previous attempts to ensure the provider reduces or eliminates risk to children without success
155 Because risk includes analysing potential consequences the regulatory authority might also be satisfied there is an unacceptable risk to children even where no child has been harmed
156 Regulatory authorities can use the risk matrix to help determine whether a risk is unacceptable It is likely that a risk that falls into the lsquocriticalrsquo category will be unacceptable but regulatory authorities should always use their judgement and take into account the specific circumstances when determining appropriate action
Last updated April 2017 Good Regulatory Practice 17
B
Provisions with reference to unacceptable risk to children
S 31 Grounds for cancellation of provider approval
The regulatory authority may cancel a provider approval if it is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider
Refer to the Applications and Approvals chapter for more information on cancelling a provider approval
S 49 Grounds for refusal to grant service approval
The regulatory authority must refuse to grant a service approval if it is satisfied that the service if permitted to operate would constitute an unacceptable risk to the safety health or wellbeing of children who would be educated or cared for by the education and care service
Refer to the Applications and Approvals chapter for more information on refusing to grant a service approval
S 77 Grounds for cancellation of service approval
A regulatory authority may cancel a service approval if it reasonably believes that the continued operation of the education and care service would constitute an unacceptable risk to the safety health or wellbeing of any child or class of children being educated and cared for by the education and care service
Refer to the Applications and Approvals chapter for more information on cancelling a service approval
S 182 Grounds for issuing prohibition notice
The regulatory authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed to remain on the education and care service premises or to provide education and care to children
Refer to the Monitoring Compliance and Enforcement chapter for more information on issuing a prohibition notice
R 25 Additional information about proposed education and care service premises
An application for a service approval for a centre-based service must include a statement made by the applicant that states that to the best of the applicantrsquos knowledge the site history does not indicate that the site is likely to be contaminated in a way that poses an unacceptable risk to the health of children
Refer to the Applications and Approvals chapter for more information on service approval applications
R 59 Significant improvement required
A significant improvement required rating may be given for a quality area stated in the National Quality Standard if the education and care service does not meet that quality area or a relevant regulation for that quality area in a way that the regulatory authority is satisfied constitutes an unacceptable risk to the safety health or wellbeing of any child or children being educated and cared for by the service
Refer to the Assessment and Rating chapter for more information on issuing a rating of significant improvement required
18 Good Regulatory Practice Last updated April 2017
B
Good decision-making
157 Good decision-making refers to the lawful and proper exercise of public power Public power is the power vested in government agencies to make decisions which impact on the rights interests and legitimate expectations of individuals Administrative law regulates the exercise of public power by defining the extent of the power and by giving individuals the right to challenge decisions made by government
Preparing to make the decision
158 Before making a decision decision-makers must ensure they have prepared appropriately This involves identifying and recording key issues creating and maintaining a document trail checking any legal requirements and identifying the limits of the available decision-making power
Checking delegation
159 Decision-makers must check they are authorised to make the decision If the law does not give the decision-maker the power to make the decision themselves they need to check if this power has been delegated to them When a person with the authority to make a decision passes the power to someone else it is called a delegation Delegations are often specific to a position and are generally outlined in an operational document
160 If the decision-maker does not have the power to make the decision the decision may not be lawful
161 Authorised officers should check which decisions they are authorised to make and be aware that sometimes the authority to make a decision will rest with someone else within the regulatory authority
162 The person with the authority to make the decision is responsible for ensuring the decision is made properly
Power under the law
163 The power to make a decision and the limits on that power are set by acts of parliament (for example the National Law) associated instruments (for example the National Regulations) and case law (law made by courts)
164 For example the National Law sets out the types of decisions regulatory authorities can make about applications for provider or service approval or for an amendment to or suspension of an approval
Last updated April 2017 Good Regulatory Practice 19
B
Guidelines and policies
165 Government agencies generally have guidelines and policies to help guide decision-makers However decision-makers must remember that policy cannot override the law Although relevant policy should be considered when making a decision policy must be applied reasonably and consistently with the law Decision-makers must not make a decision without considering the merits of the particular case
Timeframes
166 When a timeframe for making a decision is included in the legislation for example lsquo30 days after receiving an applicationrsquo these timeframes must be adhered to The National Law specifies that for applications for provider approval service approval and supervisor certificates failing to make a decision within the set timeframe including timeframes extended under the legislation will automatically result in a lsquodeemed refusalrsquo of the application
167 A deemed refusal gives the applicant the right to apply for a review as if the regulatory authority had made a decision to refuse the application Where a regulatory authority is aware that it will not meet (or is not likely to meet) the timeframe set out in the legislation it should notify the applicant and wherever possible give an indication of when the decision will be made
168 For applications without a lsquodeemed refusalrsquo provision if the regulatory authority does not make a decision within the legislated timeframe an applicant may follow up the decision in a range of ways including by involving the relevant ombudsman In any case best practice is to inform applicants of any delays or potential delays in deciding an application
Considering the decision
169 Decision-makers must consider all relevant documents and information to ensure a fair and informed decision They must not take any irrelevant documents or information into account
170 Decision-makers must ensure they have fully considered all available evidence particularly when the decision-maker did not personally collect the evidence
171 The National Law sets out what the regulatory authority must consider when deciding an application and generally does not limit the regulatory authority from considering any other relevant matter
172 To ensure accountability and transparency decision-makers should always maintain accurate and complete records of the information that informs their decision
20 Good Regulatory Practice Last updated April 2017
B
Natural justice
173 The terms lsquonatural justicersquo and lsquoprocedural fairnessrsquo are often used interchangeably
174 Natural justice means that any person who may be affected by the decision is given a chance to a fair hearing with full knowledge of their rights and responsibilities before a decision is made
175 Natural justice must be given when the rights interests or legitimate expectations of individuals may be affected by the exercise of power (ie when a decision may not be in favour of the person) However it is best practice to always give natural justice even when a decision may appear to be in favour of an affected person
176 Natural justice has three main elements
bull the notice requirement
bull the hearing rule and
bull the bias rule
The notice requirement
177 A person affected by the decision must be notified of any issues in enough detail to allow them to participate or respond in a meaningful way This may require the decision-maker to present the person with material that may be unfavourable to them
178 The National Law includes a number of lsquoshow causersquo provisions that underline the principles of natural justice lsquoShow causersquo provisions aim to ensure affected individuals are aware of the decision-makerrsquos intention the reasons why the decision-maker is considering making the decision and give an opportunity to respond
179 lsquoShow causersquo provisions apply to prohibition notices and the suspension or cancellation of provider approvals service approvals and supervisor certificates
180 A lsquoshow causersquo provision also applies to the suspension of education and care by a family day care educator However this lsquoshow causersquo provision is discretionary Regulatory authorities should still consider natural justice obligations despite the discretion
The hearing rule
181 Decision-makers must provide any affected person with a reasonable opportunity to respond to material provided by the decision-maker The hearing rule ensures the decision-maker has taken any responses into account in making the decision The hearing rule does not require a formal lsquohearingrsquo ndash the affected person could be provided with an opportunity to respond in writing
Last updated April 2017 Good Regulatory Practice 21
B
The bias rule
182 Decision-makers must act impartially and not in their own interests To maintain public confidence in the integrity of the system the rule also requires that the decision-maker is not perceived as being biased
183 Bias may arise from a conflict of interest or from the impression that the decision-maker has made a judgment on the issue without considering all relevant factors or by considering irrelevant factors
184 While a conflict of interest does not always demonstrate a decision-makerrsquos inability to make an impartial judgment it is generally considered best practice to employ a different decision-maker to avoid the perception of bias
Making the decision
185 Once the relevant information and documents have been collected and all affected people have been afforded natural justice decision-makers need to establish the facts In establishing the facts decision-makers must consider all available evidence before deciding which facts are relevant to the decision and which should be discarded due to irrelevance It is crucial that decision-makers establish facts based on clear evidence
186 Decision-makers can consult with other officers and refer to policies and guidelines to help them make a decision but they must act independently not at the direction of others when making a decision Refer to Reviews for more information about best practice decision making when conducting reviews
187 After determining the relevant facts the decision-maker must apply the relevant legislation to the facts Where there is uncertainty about the interpretation of the law the decision-maker should take into account the objectives and purpose of the legislation Decisions made under the National Law should consider the objectives and guiding principles set out at section 3
188 When a decision is made under a power granted by legislation it is important that the relevant legislation is correctly interpreted and applied If the decision-maker is in doubt about the interpretation they should seek legal advice
189 Once the decision is made the decision and all supporting evidence should be kept on record The decision-maker should also document all matters that were taken into account when making the decision Decision records must generally include the information outlined below and should be accompanied by a statement of reasons explaining the decision
22 Good Regulatory Practice Last updated April 2017
B
Explaining recording and communicating the decision
190 Decisions in the public sector are recorded in a variety of ways The record of a decision must be a standalone record that can be read without reference to a file and should include the following information
bull the date
bull who the decision is about
bull what the decision is
bull who the decision-maker is and
bull the signature of the decision-maker
191 A statement of reasons isnrsquot always required for a decision However an affected person may request reasons sometimes a long time after the decision has been made For this reason it is best practice to record a statement of reasons at the time the decision is made
192 Individuals may access information including decision-making documentation from government agencies under Privacy and Freedom of Information legislation
193 A statement of reasons should be clear unambiguous jargon-free and easily read and understood by the affected persons
194 Generally statements of reasons should include the following information
bull the decision-makerrsquos findings on the facts
bull reference to or copies of documents evidence and relevant information considered in making the decision
bull a meaningful statement of reasons addressing all the critical issues and any adopted recommendations clearly explaining the decision-makerrsquos understanding and application of the law and
bull the identified grounds for review
Last updated April 2017 Good Regulatory Practice 23
B
24 Good Regulatory Practice Last updated April 2017
B
Last updated April 2017 Applications and Approvals 25
CApplications and Approvals
The purpose of this manual is to assist authorised officers and other staff of regulatory authorities to apply the Education and Care Services National Law (National Law) and the Education and Care Services National Regulations (National Regulations) The manual is not legal advice The manual should always be read with the National Law and Regulations The National Law and Regulations take precedence over any guidance in the manual
Contents
1 Provider approval 27
Application for provider approval 27
Timeframe for assessing an application 29
Considering an application 30
Determining an application 36
After an application has been determined 37
Amending provider approval on application 38
Amending provider approval without application 41
Determining an application for provider approval in case of death or incapacity of approved provider 42
Voluntary suspension of provider approval 45
Surrender of provider approval 48
Exercise of powers by another regulatory authority 50
Offence related to provider approval 50
Additional information 51
2 Service approval 52
Application for service approval 54
Timeframe for assessing an application 56
Considering an application 57
Determining an application 62
After an application has been determined 65
Amending service approval on application 66
Amendment of service approval without application 69
Offences related to service approval 70
Transfer of service approval 71
Voluntary suspension of service approval 76
Surrender of service approval 79
Exercise of powers by another regulatory authority ndash family day care services 80
3 Other applications 81
Application to use indoor space as outdoor space 81
Application to use a verandah as indoor space 82
4 Waivers 85
Application for service waiver 85
Timeframe for assessing an application 89
Considering an application 90
Determining an application 91
After a service waiver has been granted 92
Revoking a service waiver 93
Application for temporary waiver 94
Timeframe for assessing an application 98
Considering an application 99
Determining an application 100
Combining a waiver with conditions on service approval 102
After a temporary waiver has been granted 103
5 Supervisor certificates 105
Prescribed class supervisor certificates 105
Supervisor certificates granted to an individual 107
Conditions on supervisor certificate 115
Providing a copy of a supervisor certificate 117
After a supervisor certificate has been granted 117
Amending a supervisor certificate 118
Automatic suspension or cancellation of supervisor certificates 121
Voluntary suspension or surrender of a supervisor certificate 122
6 Application checklists 123
C
26 Applications and Approvals Waivers Last updated April 2017
Requirement for which an approved provider may apply for a service or temporary waiver
A saving or transitional provision applies to the specified jurisdiction(s) or a different provision applies in WA
Requirement attaches to the approved provider
Requirement attaches to the nominated supervisor
Requirement attaches to the family day care educator
Requirement applies to centre-based services only
Requirement applies to family day care services only
A penalty attaches to the requirement
Legend
C
Last updated April 2017 Provider approval Applications and Approvals 27
1 Provider approval
National Law section 103
11 A person must have provider approval to operate an approved education and care service under the Education and Care Services National Law and Regulations Regulatory authorities are responsible for assessing and determining applications for provider approval This section sets out how applications are made and processed
Application for provider approval
What is an application for provider approval
12 This is the process to become an approved provider and gain approval to operate an education and care service under the National Law and Regulations
Who can apply for a provider approval
National Law section 10
13 One or more persons may apply to the regulatory authority for a provider approval A prescribed ineligible person cannot apply for provider approval There are currently no prescribed ineligible persons under the National Regulations but regulatory authorities should be mindful of this provision and ensure they refer to a current copy of the National Regulations in case this changes
Guidance for regulatory authorities
14 Under the National Law a lsquopersonrsquo means an individual body corporate an eligible association a partnership or a prescribed entity See the Glossary for more information on the meaning of these terms
15 More than one entity may hold a provider or service approval Regulatory authorities should assess the risk associated with joint approvals when determining applications for approvals Where more than one entity holds an approval each entity is jointly and severally responsible for complying with the National Law and Regulations (see section 287)
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28 Applications and Approvals Provider approval Last updated April 2017
How does a person apply
National Law section 11 WA
16 An application for provider approval must be made in writing to the regulatory authority where the applicant or any of the applicants lives If the applicant is an entity (not an individual) application must be made to the regulatory authority where the applicantrsquos principal office is located (or where any of the applicantsrsquo principal offices are located if there is more than one)
17 An application for provider approval must include payment of the prescribed fee (see Fees)
Guidance for regulatory authorities
18 Regulatory authorities may receive provider approval applications through the National Quality Agenda (NQA) IT System or by hard copy forms downloaded from the ACECQA website at wwwacecqagovau and mailed faxed or emailed to the regulatory authority
What information needs to be included in an application
19 The National Regulations specify information that must be included in an application for provider approval (see Application checklists ndash Tables I II)
Guidance for regulatory authorities
110 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
111 The National Regulations do not specify what type of documentation is required as proof of identity for a provider approval application and does not require applicants to submit 100 points of identity or certified copies of their documentation The regulatory authority may request certified copies if it has concerns about the authenticity of documents included in an application
112 If the applicantrsquos address is not in the regulatory authorityrsquos jurisdiction the regulatory authority should contact the applicant to confirm they have applied in the right jurisdiction and to redirect the applicant to the correct regulatory authority if necessary
Incomplete applications
113 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
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Last updated April 2017 Provider approval Applications and Approvals 29
114 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
115 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
116 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Timeframe for assessing an application
National Law sections 14ndash15
117 The regulatory authority must determine an application for provider approval within 60 calendar days of receiving the application If the regulatory authority requests more information from the applicant about their fitness and propriety the time taken to provide additional information is not included in the 60-day period
118 If the applicant agrees the 60-day period (not including any time taken to provide additional information) may be extended by up to 30 calendar days
119 If the regulatory authority does not determine an application within the specified timeframe it is taken to be refused
National Law section 16
120 The regulatory authority must give the applicant written notice of its decision and reasons for the decision within seven calendar days after the decision is made
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30 Applications and Approvals Provider approval Last updated April 2017
Calculating time
121 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
122 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
123 When calculating the timeframe the day the application is received is included lsquoDayrsquo means calendar day However if the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 60-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the sixtieth day
Considering an application
Is the applicant a fit and proper person
National Law section 12
124 The applicant must satisfy the regulatory authority that they are a fit and proper person to be involved in the provision of an education and care service If the applicant is not an individual each person who will have management or control of an education and care service to be operated by the applicant and the applicant must satisfy the regulatory authority that they are fit and proper to be involved in the provision of an education and care service
125 The head of a government department administering an education law is taken to be a fit and proper person for the purposes of provider approval
National Law section 13
126 The National Law specifies matters the regulatory authority must consider when determining whether a person is fit and proper which are outlined below (History of compliance and Criminal history) This does not limit the circumstances in which a person may be considered not to be fit and proper
National Law section 14
127 To assess whether a person is fit and proper to provide an education and care service the regulatory authority may ask the person to provide more information or undertake inquiries in relation to the person
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National Law section 15
128 The regulatory authority must not grant a provider approval unless satisfied the applicant or each person with management and control is fit and proper to provide an education and care service
Guidance for regulatory authorities
129 It is the applicantrsquos responsibility to determine each individual who will be in management or control of the education and care service with reference to the definition in section 5 of the National Law For companies this will generally include the directors and for committees and associations it will usually include the executive members People in other positions within an organisation may also have management or control if they are responsible for delivery of the education and care service The regulatory authority might wish to discuss with the applicant how they determined who is a person with management or control and may form a different view
130 Where the regulatory authority needs more information to determine whether an applicant is a fit and proper person they may exercise the power to ask the person for more information or make inquiries about the person This may be in relation to one of the matters outlined below (History of compliance and Criminal history) or about any other matter the regulatory authority considers may affect the personrsquos fitness and propriety
131 If the regulatory authority obtains information from a source other than from the applicant and is considering making a decision that will adversely affect the applicant it must ensure its decision-making process accords with the principle of natural justice Decisions that adversely affect a person include refusing to grant provider approval or granting provider approval subject to conditions For more information see Good Regulatory Practice ndash Good decision-making
History of compliance
National Law section 13
132 When determining whether a person is fit and proper the regulatory authority must consider the personrsquos history of compliance with any current or former education and care services law childrenrsquos services law or education law
133 The regulatory authority must also consider any decision made under a former education and care services law a childrenrsquos services law or an education law of any state or territory to refuse refuse to renew suspend or cancel a licence approval registration or certification issued to the person under that law
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32 Applications and Approvals Provider approval Last updated April 2017
Guidance for regulatory authorities
134 If a person has been served with an infringement notice for an offence under the National Law and has paid the penalty the offence cannot be taken into account when determining the personrsquos fitness and propriety (section 291)
135 The National Law does not specify a time period in relation to a personrsquos compliance history When considering a personrsquos history of compliance for the purposes of assessing their fitness and propriety factors to consider may include the severity of any issues and how recently they occurred Regulatory authorities may also consider the personrsquos willingness to comply for example whether escalation was required to resolve compliance issues See also Good Regulatory Practice ndash Good decision-making
Criminal history
National Law section 13
National Regulations regulation 16
136 Regulatory authorities must consider the personrsquos criminal history when determining whether they are fit and proper to be involved in the provision of an education and care service Because working with childrenvulnerable people legislation differs between jurisdictions the National Law includes two options for considering a personrsquos criminal history set out below
Matters the regulatory authority must consider about criminal history
Option 1 Option 2
The regulatory authority must consider the below matters to the extent that they may affect the personrsquos suitability to provide an education and care service
The regulatory authority must consider the personrsquos working with vulnerable people check
bull Any matters included in a criminal history check (except in Queensland) and
bull If there is a working with children law
ndash whether the person has a current working with children check or card or
ndash whether the person is a registered teacher under an education law in their state or territory
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Guidance for regulatory authorities
137 In some instances a check may return information about a personrsquos criminal history that is not relevant to whether they are fit and proper to be involved in the provision of education and care to children Regulatory authorities should be aware that taking into account irrelevant considerations may lead to an unlawful decision Refer to Good Regulatory Practice ndash Good decision-making
138 Working with children check legislation applies in all states and territories except for Tasmania Working with vulnerable people legislation was enacted in the ACT on 8 November 2012 and will be fully enacted from 8 November 2013 See the table at the end of this section for details of working with children screening units in each state and territory
Financial matters
National Law section 13
139 Regulatory authorities must consider whether the applicant is bankrupt or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors In the case of a body corporate the regulatory authority must consider whether the applicant is insolvent under administration or an externally-administered body corporate
140 Regulatory authorities may also consider whether the applicantrsquos financial circumstances may limit their capacity to meet their obligations for providing an education and care service in accordance with the National Law
Guidance for regulatory authorities
141 If the applicant is bankrupt or insolvent according to their declaration the regulatory authority may consider
bull the period when bankruptcy is discharged
bull past circumstances and changes of circumstances or
bull legal advice about whether the regulatory authority is bound by other law
142 The National Personal Insolvency Index maintained by the Australian Financial Security Authority (Australian Government) may have information about an applicantrsquos financial position and can be accessed at wwwafsagovau
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143 Where there are concerns about an applicantrsquos financial circumstances raised through the initial application notification or lsquoother intelligencersquo the regulatory authority may ask an applicant to provide further information about their financial capacity to determine the likelihood that they will be able to sustain ongoing operation of a service For example information about
bull liquidity
bull cash flow
bull asset sustainability
bull capital structure and debt protection or
bull operating efficiency
144 If required regulatory authorities may seek external advice for example about the financial viability of an applicant to help analyse the financial capacity of applicants for provider approval
145 While regulatory authorities should be mindful of the duty of confidentiality provisions (National Law section 273) these provisions do not prohibit a regulatory authority from disclosing information when exercising a function under or for the purposes of the National Law such as assessing a provider approval application In addition section 14 of the National Law allows regulatory authorities to seek further information when determining whether a person is a fit and proper person including by making inquiries in relation to a person This includes seeking advice about an application from an external expert
Medical conditions
National Law section 13
145 The regulatory authority may consider whether the person has a medical condition that may limit their capacity to be responsible for providing an education and care service in accordance with the National Law and Regulations
Guidance for regulatory authorities
147 Applicants are not required to provide medical information in their initial application However where the regulatory authority is concerned about an applicantrsquos capacity it can ask for information such as an assessment by a medical practitioner The regulatory authority should detail why the assessment is needed and give a description of the role to guide the person doing the assessment The regulatory authority may require a written report to be provided
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Conditions on provider approval
148 A condition is a requirement that the person holding the approval must comply with to avoid committing an offence under the National Law
National Law section 19
149 A provider approval is granted subject to the condition that the approved provider complies with the National Law In addition the regulatory authority may impose any condition it deems appropriate
150 A provider approval may also be granted subject to any conditions prescribed by the National Regulations
151 A condition on a provider approval applies to the provider as the operator of any education and care service or associated childrenrsquos service unless the condition expressly provides otherwise
Guidance for regulatory authorities
152 In some instances the regulatory authority may consider it appropriate to impose a condition on provider approval For example if the regulatory authority has concerns about an applicantrsquos management capacity it may limit the number of services or size of the service the applicant can operate to help ensure the applicant operates the service in compliance with the National Law See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a provider approval
153 Although the National Law states provider approval is granted subject to any conditions prescribed in the National Regulations none currently exist However regulatory authorities should be mindful of this provision and ensure they refer to a current copy of the National Regulations
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36 Applications and Approvals Provider approval Last updated April 2017
Determining an application
Granting provider approval
National Law section 20
154 If granted the regulatory authority must give the approved provider a copy of the provider approval stating
bull the name of the approved provider
bull if the approved provider is not an individual the address of the principal office of the provider
bull any conditions to which the approval is subject (see Conditions on provider approval above)
bull the date the provider approval was granted and
bull the provider approval number
National Law schedule 1 clause 31
155 The National Law does not specify how much time the regulatory authority has to give the approved provider a copy of the provider approval This means it must be done as soon as possible after deciding to grant the approval
Refusing to grant provider approval
National Law section 15
156 The regulatory authority may refuse to grant provider approval if the regulatory authority is not satisfied that the grounds for granting provider approval are met The regulatory authority cannot grant provider approval unless satisfied the applicant is fit and proper (see Considering an application above)
Giving notice of the determination
National Law section 16
157 The regulatory authority must give the applicant written notice of its decision to grant or refuse to grant approval and the supporting reasons within seven calendar days of making the decision (see Timeframe for assessing an application above)
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Appeals
National Law section 190
158 A decision to refuse to grant a provider approval or to grant provider approval subject to conditions is a reviewable decision under the National Law Refer to Reviews
After an application has been determined
Publication on the register of approved providers
National Law sections 266 270
National Regulations regulation 229
159 ACECQA must keep and publish a register of approved providers which includes the information set out below
Information on the register of approved providers
The name of the approved provider
The postal address of the approved provider
Any conditions on the approval
The date the provider approval was granted
The provider approval number and
The service approval numbers of all education and care services provided by the approved provider
160 The regulatory authority may publish the name of the approved provider
Duration and effect of provider approval
National Law sections 17ndash18
161 A provider approval authorises the holder to operate an approved education and care service and an associated childrenrsquos service It is valid nationally
162 A provider approval is ongoing unless cancelled or suspended by the regulatory authority or surrendered by the approved provider
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Reassessing fitness and propriety
National Law section 21
163 The regulatory authority may reassess an approved providerrsquos fitness and propriety to provide an education and care service at any time This includes assessment of a person with management or control If a person is no longer a fit and proper person to be involved in the provision of an education and care service the regulatory authority may then consider suspending or cancelling the provider approval (see Monitoring Compliance and Enforcement)
Amending provider approval on application
National Law section 22 WA
National Regulations regulation 17
164 An approved provider may apply to the regulatory authority for an amendment to their provider approval The application must be in writing
What information needs to be included in an application
165 An application for amendment of a provider approval must include
bull the approved providerrsquos full name and provider approval number
bull the name and contact details for the application
bull details of the amendment applied for and
bull sufficient information or documentation to support the application for amendment
Guidance for regulatory authorities
166 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
167 The National Law and Regulations do not prescribe the type or level of information needed to support an application for amendment of a provider approval other than requiring an application to include lsquosufficient informationrsquo lsquoSufficient informationrsquo means enough information for the regulatory authority to make a decision on the application
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Incomplete applications
168 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
169 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
170 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
171 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Timeframe for assessing an application
172 The regulatory authority must decide whether to amend the provider approval within 30 calendar days after having received the application
Calculating time
173 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
174 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
175 When calculating the timeframe the day the application is received is included lsquoDayrsquo means calendar day However if the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 30-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the thirtieth day
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Considering an application
National Law section 42
176 The regulatory authority may only exercise power to amend a provider approval after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the provider approval Failure to consult other regulatory authorities does not affect the validity of the regulatory authorityrsquos exercise of power
Guidance for regulatory authorities
177 Regulatory authorities should wherever possible consult one another about actions that affect providers operating across jurisdictions Failure to consult other regulatory authorities may have broader implications for example where a compliance issue is escalated to prosecution
Determining an application
178 The regulatory authority must decide to amend the provider approval in the requested way or with the applicantrsquos written agreement in another way The regulatory authority may also decide to refuse to amend the provider approval
179 Amendment may include but is not limited to varying a condition of the provider approval or imposing a new condition
Appeals
National Law section 190
180 A decision to refuse to amend a provider approval is a reviewable decision under the National Law Refer to Reviews
After approval has been amended
181 If the regulatory authority amends the approval it must give the approved provider a copy The regulatory authority must also make any necessary amendments to any service approval held by the approved provider and give the approved provider a copy
Guidance for regulatory authorities
182 ACECQA will update the register of providers to reflect any amendments to the provider approval as necessary
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Amending provider approval without application
National Law section 23
183 The regulatory authority may amend a provider approval at any time without application from the approved provider
184 Amendment may include but is not limited to varying a condition on the provider approval or imposing a new condition
National Law section 42
185 The regulatory authority may only exercise a power to amend a provider approval after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the provider approval Failure to consult other regulatory authorities does not affect the validity of the regulatory authorityrsquos exercise of power
Guidance for regulatory authorities
186 Regulatory authorities should wherever possible consult one another about actions that affect providers operating across jurisdictions Failure to consult other regulatory authorities may have broader implications for example where a compliance issue is escalated to prosecution
After approval has been amended
187 The regulatory authority must give the approved provider written notice of the amendment
188 Amendment without application takes effect 14 calendar days after the regulatory authority notifies the approved provider of the amendment or at the end of another period specified by the regulatory authority
189 The regulatory authority must give the approved provider a copy of the amended provider approval It must also make any necessary amendments to any service approval held by the approved provider and give the approved provider a copy
Guidance for regulatory authorities
190 ACECQA will update the register of providers to reflect any amendments to a provider approval as necessary
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Appeals
National Law section 190
191 A decision to amend a provider approval is a reviewable decision under the National Law Refer to Reviews
Determining an application for provider approval in case of death or incapacity of approved provider
192 Where an approved provider can no longer fulfil their role due to death or incapacity a nominated executor legal personal representative or guardian can be appointed subject to meeting the requirements as the approved provider
Who can apply for provider approval in case of death or incapacity of approved provider
National Law section 39
193 The regulatory authority may receive an application from the executor for a provider approval
National Law section 40
194 If an approved provider becomes incapacitated their legal personal representative or guardian may apply to the regulatory authority for a provider approval
Guidance for regulatory authorities
195 Under section 39 of the National Law the nominated supervisor or any other person having day-to-day control of an education and care service operated by the approved provider must notify the regulatory authority within seven calendar days if the approved provider dies
196 The executor of the approved providerrsquos estate may continue to operate any approved education and care service for the relevant period provided the nominated supervisor or a certified supervisor continues to manage the day-to-day operation of the service lsquoRelevant periodrsquo means 30 calendar days after the death of the approved provider or if the executor applies for a provider approval until the regulatory authority determines the application
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How does an executor legal representative or guardian apply
National Law sections 39 40 WA
197 An application must be made in writing and must include payment of the prescribed fee An application from an executor must be made within 30 calendar days of the providerrsquos death The National Regulations specify information that must be included in an application (see Application checklists ndash Tables III IV V VI)
Guidance for regulatory authorities
198 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
199 Because a provider approval granted to an executor legal personal representative or guardian relates only to the education and care service formerly operated by the deceased or incapacitated approved provider the person cannot apply for a service approval for any additional services or receive a service approval transferred from another approved provider
Incomplete applications
1100 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
1101 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
1102 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
103 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
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Timeframe for assessing an application
National Law schedule 1 clause 31
104 The National Law does not specify how much time the regulatory authority has to assess an application from an executor legal representative or guardian This means it must be done as soon as possible
Considering an application
National Law section 41
105 The regulatory authority must consider whether the applicant is a fit and proper person to be involved in the provision of an education and care service See the requirements set out above at Is the applicant a fit and proper person The regulatory authority must not grant a provider approval to an executor personal legal representative or guardian unless they are satisfied the applicant is fit and proper
Determining an application
National Law section 41
106 The regulatory authority may grant the provider approval grant the approval subject to conditions or refuse to grant the provider approval Approval may be granted for up to six months and this period may be extended by up to six months at the regulatory authorityrsquos discretion
107 If granted provider approval is granted only in relation to the operation of education and care services of the approved provider for whom the applicant is the executor personal legal representative or guardian
Appeals
National Law section 190
1108 A decision to refuse to grant a provider approval is a reviewable decision under the National Law Refer to Reviews
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Last updated April 2017 Provider approval Applications and Approvals 45
After approval has been granted
National Law section 20
1109 The regulatory authority must give the approved provider a copy of the provider approval
National Law section 30
1110 A service approval is not suspended during any period that a person is approved to manage or control the education and care service in the event that the approved provider dies or becomes incapacitated
Guidance for regulatory authorities
1111 ACECQA will update the register of providers to reflect any amendments to a provider approval as necessary
Voluntary suspension of provider approval
What is voluntary suspension of provider approval
National Law section 37
1112 The voluntary suspension of provider approval allows an approved provider to seek the regulatory authorityrsquos consent to put their provider approval lsquoon holdrsquo for up to 12 months During that time the person must not operate an education and care service
How does the approved provider apply
National Law section 37 WA
National Regulation regulation 19
1113 An application for voluntary suspension must be in writing
What information needs to be included in an application
1115 The National Regulations specify information that must be included in an application to suspend provider approval (see Application checklists ndash Table VII)
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46 Applications and Approvals Provider approval Last updated April 2017
Guidance for regulatory authorities
1116 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
Incomplete applications
1117 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
1118 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
1119 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
1120 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Notification to parents
1121 An approved provider must notify parents of children enrolled at their services of their intention to apply for voluntary suspension of a provider approval Notification must be given at least 14 calendar days before making the application
Timeframes for assessing an application
1122 The regulatory authority must decide whether to grant an application for voluntary suspension of provider approval within 30 calendar days after the application is made
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Last updated April 2017 Provider approval Applications and Approvals 47
Calculating time
1123 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
1124 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
1125 When calculating the timeframe the day the application is received is included lsquoDayrsquo means calendar day However if the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 30-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the thirtieth day
Considering an application
National Law section 42
1126 The regulatory authority can only exercise a power to suspend a provider approval after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the provider approval Failure to consult other regulatory authorities does not affect the validity of the regulatory authorityrsquos exercise of power
Guidance for regulatory authorities
1127 Regulatory authorities should wherever possible consult one another about actions that affect providers operating across jurisdictions Failure to consult other regulatory authorities may have broader implications for example where a compliance issue is escalated to prosecution
Determining an application
National Law section 37
1128 If the regulatory authority grants an application for voluntary suspension of a provider approval it may agree the date the suspension takes effect with the approved provider
Giving notice of the determination
1129 The regulatory authority must give written notice of its decision and if granted advise the period of suspension
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48 Applications and Approvals Provider approval Last updated April 2017
After approval has been suspended
National Law section 37
1130 The effect of suspension is that all service approvals held by the approved provider are suspended for the same period unless the service approval is transferred or a person is approved to manage or control an education and care service in the event the approved provider dies or becomes incapacitated
1131 The suspension of the provider approval remains in force for the period specified in the written notice of decision
1132 The approved provider may apply to have the suspension revoked before the end of the suspension period If the regulatory authority grants the application to revoke the suspension they may agree to a date for the suspension to cease with the approved provider
Surrender of provider approval
What is surrender of provider approval
1133 The surrender of provider approval means giving up a provider approval Once surrendered the person is not taken to be an approved provider and must not operate an education and care service
Guidance for regulatory authorities
1134 Generally if an approved provider changes its legal status for example where a sole trader becomes a body corporate they will need to apply for a new provider approval
How does the approved provider surrender approval
National Law section 38
1134 An approved provider can surrender their provider approval by giving written notice to the regulatory authority
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Last updated April 2017 Provider approval Applications and Approvals 49
What information needs to be included in the written notice
National Law section 38
1136 The notice to the regulatory authority must specify a date on which the surrender is intended to take effect The date of effect must be after the notice is given to the regulatory authority and at least 14 calendar days after parents of children enrolled at any services are notified
Guidance for regulatory authorities
1137 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
Notification to parents
National Law section 38
1138 An approved provider must notify parents of children enrolled at any of their services of their intention to surrender their provider approval Parents must be notified at least 14 calendar days before the date of surrender is to take effect
After surrender of provider approval
National Law section 38
1139 If a provider approval is surrendered the provider approval and any service approval held by the provider are cancelled on the date specified in the notice
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Exercise of powers by another regulatory authority
National Law section 42
1140 The regulatory authority of another jurisdiction may exercise all its powers and functions in relation to a provider approval if the approved provider operates an education and care service in its jurisdiction
1141 The regulatory authority may only exercise a power to amend suspend or cancel a provider approval after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the provider approval Failure to consult other regulatory authorities does not affect the validity of an exercise of power by a regulatory authority
1142 Cancellation or suspension of a provider approval in another participating jurisdiction has effect across all jurisdictions
Guidance for regulatory authorities
1143 Regulatory authorities should wherever possible consult one another about actions that affect providers operating across jurisdictions Failure to consult other regulatory authorities may have broader implications for example where a compliance issue is escalated to prosecution
Offence related to provider approval
National Law section 103
1144 It is an offence under the National Law to provide an education and care service without service approval
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Last updated April 2017 Provider approval Applications and Approvals 51
Additional information
State and territory working with children screening units
Australian Capital Territory
ACT Government ndash Office for Regulatory Services
orsactgovau
New South Wales NSW Office of Communities ndash Commission for Children and Young People
checkkidsnswgovau
Northern Territory
NT Government workingwithchildrenntgovau
Queensland Queensland Commission for Children and Young People and Child Guardian
ccypcgqldgovau
South Australia Screening Unit of the Department for Communities and Social Inclusion (DCSI) South Australia
dcsisagovau
Tasmania Tasmania Department of Education educationtasgovau
Victoria Department of Justice Victoria justicevicgovau
Western Australia Working With Children Screening Unit (WWCSU) Department for Child Protection WA
checkwwcwagovaucheckwwc
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52 Applications and Approvals Service approval Last updated April 2017
2 Service approval
National Law section 103
21 A person must have service approval to operate an education and care service under the Education and Care Services National Law and Regulations Regulatory authorities are responsible for assessing and determining applications for service approval This section sets out how applications are made and processed
National Law section 5
National Regulations regulation 5
22 An education and care service is any service providing or intended to provide education and care on a regular basis to children under 13 years of age
23 Services that are excluded by the National Law and National Regulations and are not in scope of the National Quality Framework are listed below
Services out of scope of the National Quality Framework
A school providing full-time education to children including children in the year before Grade 1 but not including a preschool program delivered in a school or a preschool that is registered as a school (as these are within scope)
A preschool program delivered in a school if the program is delivered in a class or classes where a full-time education program is also being delivered to school children and the program is delivered to fewer than six children in the school (a composite class)
A personal arrangement
A service principally conducted to provide instruction in a particular activity (for example a language class or ballet class)
A service providing education and care to patients in a hospital or patients of a medical or therapeutic care service
Care provided under a child protection law of a participating jurisdiction
Disability services defined under state or territory law and early childhood intervention services for children with additional needs
Education and care in a childrsquos home
Except in WA education and care in a residence other than as part of a family day care service
Primarily ad hoc or casual education and care (commonly referred to as occasional care)
Education and care provided by a hotel or resort to children of short-term guests at the hotel or resort
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Last updated April 2017 Service approval Applications and Approvals 53
Services out of scope of the National Quality Framework
Education and care that is provided on an ad hoc basis to children of a guest visitor or patron where the person who is responsible for the children is readily available at all times
Education and care where it is primarily provided or shared by parents or family members
Education and care provided at a secondary school to a child of a student attending the school where the parent retains responsibility for the child
Mobile services
Services that provide education and care for no more than four weeks per calendar year during school holidays
Transition to school programs provided by a school to orient children to that school
Budget based funded services other than where they receive Child Care Benefit
Playschools licensed in the Australian Capital Territory
Stand-alone services in Queensland
Playcentres in South Australia
Services licensed as Centre-based Class 4 or 5 services under the Child Care Act 2001 in Tasmania
Licensed limited hours or short-term services in Queensland or Victoria
Government-funded services under the Children and Community Services Act 2004 of Western Australia
Guidance for regulatory authorities
24 lsquoEducation and care servicesrsquo includes services which also care for children over 13 years of age
25 A transport service for children is not an education and care service for the purposes of the National Law
26 Where an education and care service offers transport between childrenrsquos homes and the service premises the approved provider should have regard to regulation 99 which requires that children leave the premises in accordance with the written authorisation of a childrsquos parents or their nominee
27 Approved providers should also consider other laws and rules that might apply to transport services in their jurisdiction such as road safety driver training and any working with children check requirements
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54 Applications and Approvals Service approval Last updated April 2017
Application for service approval
What is an application for service approval
28 This is the process to gain approval to operate an education and care service under the National Law and Regulations
Who can apply for service approval
National Law section 43
29 An approved provider may apply to the regulatory authority for a service approval provided they operate (or will operate) the service and are responsible for the management of staff members and the nominated supervisor for the service
210 A person who has applied for a provider approval may also apply for a service approval However the regulatory authority can only grant the service approval if the provider approval is granted
Guidance for regulatory authorities
211 More than one entity may hold a provider or service approval Regulatory authorities should assess the risk associated with joint approvals when determining applications for approvals Where more than one entity holds an approval each entity is jointly and severally responsible for complying with the National Law and Regulations (see section 287)
How does an approved provider apply
National Law section 44 WA
212 An application for service approval must be made in writing to the regulatory authority where the service is to be located and must include payment of the prescribed fee (see Fees)
Guidance for regulatory authorities
213 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
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Last updated April 2017 Service approval Applications and Approvals 55
Applications for service approval including an associated childrenrsquos service
National Law section 102
214 Where an approved provider proposes to operate a service covered by the National Law on the same premises where they propose to operate a service regulated under a state or territory law (an associated childrenrsquos service) they may seek service approval under the National Law for both services
Guidance for regulatory authorities
215 An associated childrenrsquos service means a childrenrsquos service that is operated or intended to be operated by the approved provider at the same place as the approved education and care service For example an approved provider may deliver a long day care service (approved education and care service) and an occasional care service (associated childrenrsquos service) from the same premises
216 An approved provider may not need separate approvals under different laws if they wish to operate an associated childrenrsquos service on the same premises as an education and care service but must operate the associated childrenrsquos service in compliance with the relevant state or territory childrenrsquos services law See the Glossary for relevant state and territory childrenrsquos services laws
What information needs to be included with an application
217 The National Regulations specify information that must be included in an application for service approval (see Application checklists ndash Tables VIII IX)
Guidance for regulatory authorities
218 If the address of the proposed service is not in the regulatory authorityrsquos jurisdiction the regulatory authority should contact the applicant to confirm they have applied in the right jurisdiction and to redirect the applicant to the correct regulatory authority if necessary
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56 Applications and Approvals Service approval Last updated April 2017
Incomplete applications
219 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
220 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
221 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
222 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Consent to be the nominated supervisor
National Law section 44
223 The application must include written consent from a person who has a supervisor certificate (either as an individual or as a person in a prescribed class) to be the nominated supervisor for the service The approved provider can be the nominated supervisor for the service if they hold a supervisor certificate If they have applied for a supervisor certificate but their application for service approval has not yet been determined they may designate themselves as the nominated supervisor for the service but the regulatory authority can only grant the service approval if the supervisor certificate is granted
Timeframe for assessing an application
National Law sections 45 48
224 The regulatory authority must determine an application for service approval within 90 calendar days after it receives the application This period may be extended with the applicantrsquos agreement
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Last updated April 2017 Service approval Applications and Approvals 57
225 If the regulatory authority asks the applicant for more information to assess their application the time taken for information to be provided is not included in the timeframe for determining the application
226 If the regulatory authority does not make a decision on the application within the required timeframe (including any extension) it is taken to be refused
National Law section 50
227 The regulatory authority must give the applicant written notice of its decision including the reasons within seven calendar days after it makes the decision
Guidance for regulatory authorities
228 There is no limit on how long the timeframe for determining an application for service approval can be extended provided the applicant agrees
Calculating time
229 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
230 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
231 When calculating the timeframe the day the application is received is included If the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 90-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the ninetieth day
Considering an application
Conducting enquiries and investigations
National Law section 46
232 When considering an application for service approval the regulatory authority may undertake inquiries and investigations including in relation to the previous licensing accreditation or registration of the service under a former education and care service childrenrsquos services or education law
233 The regulatory authority may inspect the policies and procedures for the service and may inspect the service premises It may enter the service premises at any reasonable time
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58 Applications and Approvals Service approval Last updated April 2017
Guidance for regulatory authorities
234 Inspection of a proposed service premises should be part of the decision-making process wherever possible for an application for a centre-based service approval
235 Where an inspection by an authorised officer is not possible the regulatory authority may use other strategies such as inspection of certified plans or topographical evidence video or photographic evidence The regulatory authority may also delegate a visit by a third party as permitted under section 262 (see Monitoring Compliance and Enforcement)
Matters that the regulatory authority must consider
National Law section 47
National Regulations regulation 27
236 The regulatory authority must consider the below matters when determining an application for service approval
Matters the regulatory authority must consider for a service approval
The National Quality Framework (NQF)
Except for a family day care residence the suitability of the service premises and its site and location for operating an education and care service
The adequacy of the policies and procedures for the service (see Conducting enquiries and investigations above)
Whether the applicant is an approved provider and
Whether the nominated supervisor for the service holds a supervisor certificate and has given their written consent
Any suspension of or conditions on the applicantrsquos provider approval
The NQF means the national education and care services quality framework
237 The regulatory authority must also consider any other matters that are relevant to the application
238 Other matters the regulatory authority may consider include
bull whether the applicantrsquos financial capacity management ability or any other relevant matters affect their capacity to operate the service and
bull the applicantrsquos history of compliance with the National Law including in relation to any other service they operate
239 For applications that include an associated childrenrsquos service the regulatory authority must consider the criteria for grant of a childrenrsquos service licence under the relevant childrenrsquos services law not including the criteria for assessing the applicantrsquos fitness and propriety
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Last updated April 2017 Service approval Applications and Approvals 59
Guidance for regulatory authorities
240 The regulatory authority may check the status (ie approved suspended cancelled) of services in other jurisdictions associated with the approved provider for information that may be relevant to their ability to operate a service in accordance with the National Law
241 The regulatory authority may also request proposed budgets for the service including wages resources utility costs insurances maintenance of service and professional development However it is not the regulatory authorityrsquos responsibility to provide advice to applicants about operational budgets for a service
242 To determine the adequacy of policies and procedures for the service the regulatory authority may request the approved provider submit a sample of their policies for review If there are concerns about the adequacy of the policies the regulatory authority may seek to review further policies and procedures for the service
243 Regulatory authorities are not responsible for advising approved providers about the content of their policies and procedures However where the regulatory authority is concerned that a service policy is inadequate it may direct the provider to some best practice resources such as Staying Healthy Preventing infectious diseases in early childhood education and care services published by the National Health and Medical Research Council (wwwnhmrcgovau) and publications by organisations such as the Cancer Council (wwwcancerorgau) KidSafe (wwwkidsafecomau) Sids and Kids (wwwsidsandkidsorg) or a child protection agency (see Additional information)
Requiring more information to make decision on application
National Law section 45
244 The regulatory authority may ask the applicant for any further information reasonably required to assess their application
Guidance for regulatory authorities
245 The regulatory authority may decide it needs more information to determine an application where for example it is not satisfied the proposed education and care service premises will be suitable because its design makes supervision difficult In this case regulatory authority may ask to for more information from the approved provider about how they intend to mitigate design issues and ensure adequate supervision at all times
Conditions on service approval
246 A condition is a requirement that the person holding the approval must comply with to avoid committing an offence under the National Law
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60 Applications and Approvals Service approval Last updated April 2017
National Law section 51
National Regulations regulations 29ndash32
247 A service approval is granted subject to conditions that the approved provider must comply with set out in the table below
Conditions on a service approval
Condition
Centre-based service
Family day care service
The service is operated in a way that ensures the safety health and wellbeing of children educated and cared for by the service and meets childrenrsquos educational and developmental needs
3 3
The service commences ongoing operation within six months after the approval is granted unless the regulatory authority agrees to an extension
3 3
The approved provider has
bull a current insurance policy providing adequate cover for the service against public liability with a minimum cover of $10 million or
bull an insurance policy or indemnity against public liability provided for the service by a state or territory government
3 3
Sufficient persons are appointed as family day care coordinators to monitor and support the family day care educators engaged or registered with the service
3
Each family day care educator is adequately monitored and supported by a family day care coordinator
3
Each family day care educator holds public liability insurance with a minimum cover of $10 million
3
The servicersquos quality improvement plan is kept at the service premises (the principal office for family day care services)
3 3
The servicersquos quality improvement plan is made available for inspection by the regulatory authority or an authorised officer
3 3
The servicersquos quality improvement plan is made available on request to parents of children enrolled or seeking enrolment at the service
3 3
The service continues to be entitled to occupy the education and care service premises
3
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Last updated April 2017 Service approval Applications and Approvals 61
248 The regulatory authority may impose any other conditions it deems appropriate on a service approval
249 A condition of service approval does not apply to an associated childrenrsquos service unless the regulatory authority specifies otherwise The regulatory authority may apply a condition of service approval solely to an associated childrenrsquos service only if it has first consulted with the relevant childrenrsquos services regulator
250 Conditions on service approval may be imposed at the time the service approval is granted or at a later time (see Amendment of service approval)
Guidance for regulatory authorities
251 Where the regulatory authority has concerns about an approved providerrsquos ability or willingness to operate a service in accordance with the National Law and Regulations it may decide to put one or more conditions on the service approval For example if the regulatory authority has concerns about a providerrsquos ability to provide a child safe environment for infants at the service the regulatory authority may impose a condition preventing the approved provider from providing education and care for children under 12 months of age The regulatory authority may also impose a condition limiting the number of family day care educators that may be engaged by a service if it has concerns about the providerrsquos ability to manage the service in accordance with the National Law and Regulations See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a service approval
252 Occasionally an approved provider will engage a management company to help them operate their service Management companies vary in the range of services they offer from payroll bookkeeping and short notice staffing solutions to a wide range of day to day management services
253 The approved provider retains legal responsibility under the National Law for the service even if it engages a management company Approved providers cannot delegate or outsource their legal responsibilities regardless of what contractual arrangement the approved provider has with the management company
254 The approved provider may only apply for service approval if it (and not the management company) is or will be the operator of the service and is or will be responsible for the management of the staff members and nominated supervisor (section 43)
Guidance for regulatory authorities
255 Regulatory authorities can seek further information from the approved provider to determine a service approval application (section 51) For example the regulatory authority may request details of the management companyrsquos name structure and experience in operating approved education and care services
Management companies
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62 Applications and Approvals Service approval Last updated April 2017
256 Where a management company is or will be involved in running the service it is good practice for the regulatory authority to make enquiries with the approved provider by interview or otherwise to satisfy itself of the following matters
bull that the approved provider will be responsible for management of staff members and the nominated supervisor
bull that the approved provider is fully aware of their responsibilities under the National Law and understands that they cannot lsquocontract outrsquo those obligations
bull that the approved provider has a contingency plan in place should the management company fail to meet expectations or the contract is terminated and
bull that services provided by the management company which directly impact the day to day operating of the education and care service are provided in a way that is compliant with the National Law and does not pose a risk to children or the ability of the provider to meet its obligations under the National Law
257 Where the regulatory authority considers it appropriate it may impose a condition on service approval (regulation 51(5)) For example a condition on a service approval could require the approved provider to notify the regulatory authority of a change in the management company a significant change in the scope of services supplied by the management company or that the approved provider is to ensure that officers engaged through the management company are fit and proper persons
258 Similarly where the regulatory authority becomes aware of a management company after granting a service approval and where appropriate the regulatory authority may amend the approval to impose a condition (section 55(2))
Determining an application
Granting service approval
National Law section 52
259 If the regulatory authority grants a service approval it must provide a copy to the approved provider including the information below
Information on a service approval
The name of the service
The location of the service for centre-based services or the location of the principal office and any approved family day care venues
Any conditions on the service approval
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Last updated April 2017 Service approval Applications and Approvals 63
The date service approval was granted
The name of the approved provider
Except for family day care services the maximum number of children who can be educated and cared by the service at any one time and
Details of any service waiver or temporary waiver that applies to the service
Guidance for regulatory authorities
260 The approved provider of a centre-based service is responsible for ensuring the maximum number of children who may be educated and cared for at any one time is not exceeded See Operational Requirements ndash Excursions and Educator-to-child ratios
National Law schedule 1 clause 31
261 The National Law does not specify how much time the regulatory authority has to give the approved provider a copy of the service approval This means it must be done as soon as possible after deciding to grant the approval
National Law section 48
262 If an application for service approval includes an associated childrenrsquos service that does not meet state or territory-based licensing requirements for childrenrsquos services the regulatory authority may grant a service approval only for the education and care service The regulatory authority cannot grant a service approval that is only for an associated childrenrsquos service
Refusing to grant service approval
National Law section 49
National Regulations regulation 28
263 The regulatory authority may refuse to grant a service approval if the regulatory authority is not satisfied that the grounds for granting service approval are met The regulatory authority cannot grant a service approval if the applicant does not have provider approval
264 If the regulatory authority is satisfied the operation of the service would constitute an unacceptable risk to the safety health or wellbeing of children who would be educated or cared for by the service it must refuse to grant the service approval
265 The regulatory authority may refuse to grant a service approval if it is not satisfied the applicant can operate the service in a way that meets the requirements of the National Law and Regulations including the National Quality Standard
266 For applications for centre-based service approval the regulatory authority may refuse to grant the service approval if it is not satisfied the applicant is entitled to occupy the proposed service premises
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64 Applications and Approvals Service approval Last updated April 2017
Guidance for regulatory authorities
267 The regulatory authority may refuse to grant a service approval if for example it is not satisfied the provider can maintain the premises or equipment or provide staff as required by the National Law This may be due to the providerrsquos financial capacity management ability or another reason
268 In relation to an application for a family day care service approval the regulatory authority may refuse to grant the service approval if it is not satisfied the applicant is capable of assessing family day care venues or residences or monitoring family day care educators
269 In determining capacity to operate the proposed family day care service in a way that meets the requirements of the Law the Regulations or National Quality Standard there is a range of approaches that regulatory authorities may use including
bull assessing the adequacy of an applicantrsquos policies and procedures
bull holding information sessions for providers who wish to operate family day care services
bull conducting interviews with prospective family day care service providers to determine their understanding of policies the National Quality Standard and other requirements of the National Law and Regulations The questions asked should be questions that a person operating a service should reasonably be able to understand and answer
270 If the regulatory authority is not satisfied of the applicantrsquos capacity to operate a family day care service it may refuse to grant the service approval or grant approval subject to conditions (see Conditions on service approval)
271 All decision making should be carried out in accordance with the principles of administrative decision-making (see Good Regulatory Practice)
Giving notice of the determination
272 The regulatory authority has 90 calendar days to make a decision on an application for service approval and must give the applicant written notice of its decision and the supporting reasons within seven calendar days of making the decision (see Timeframe for assessing an application above)
Appeals
National Law section 190
273 A decision to refuse to grant a service approval or to grant service approval subject to conditions is a reviewable decision under the National Law Refer to Reviews
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Last updated April 2017 Service approval Applications and Approvals 65
After an application has been determined
Publication on the register of approved services
National Law sections 267 270
National Regulations regulation 230
274 Regulatory authorities must keep a register of approved education and care services operating in their jurisdiction including the information set out below
Information on the register of approved services
The name of the service
The name of the approved provider for the service
Except in the case of a family day care service the address of each education and care service premises
In the case of an approved family day care service the address of the principal office of the service
The rating levels for each service
The contact details for the service
In relation to a centre-based service the hours of operation of the service
Any conditions to which the service approval is subject
In relation to a centre-based service the approved number of places
The date the approved provider was granted service approval
The service approval number and
The provider approval number
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66 Applications and Approvals Service approval Last updated April 2017
275 The regulatory authority and ACECQA may publish the name of the service the address of the education and care service (except for family day care services) and in the case of a family day care service the address of the principal office of the service the rating levels of the service
276 This published information must not identify or lead to the identification of an individual other than
bull an approved provider
bull a certified supervisor or
bull a person who is being prosecuted for an offence under the National Law
Guidance for regulatory authorities
277 The address of the principal office of a family day care service should not be published if it is at a private residence In such cases the register will not include an address for the service ACECQA has agreed it will publish the register of approved services and regulatory authorities have agreed they will meet their obligation to publish by linking to the ACECQA website at wwwacecqagovau
Duration and effect of service approval
278 A service approval authorises the approved provider to operate the education and care service
279 A service approval is ongoing unless cancelled or suspended by the regulatory authority or surrendered or voluntarily suspended by the approved provider
Amending service approval on application
National Law section 54
280 An approved provider may apply to the regulatory authority for an amendment of a service approval
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Last updated April 2017 Service approval Applications and Approvals 67
What information needs to be included in an application
National Law section 54 WA
National Regulations regulation 34
281 An application must be made in writing and must include payment of the prescribed fee (see Fees) An application for amendment of a service approval must include
bull the name of the service
bull the service approval number
bull the name and contact details for the contact person for the application and
bull the details of the amendment applied for and sufficient information or documentation to support the application
282 The regulatory authority may ask the approved provider for any further information reasonably required to assess the application
Guidance for regulatory authorities
283 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
284 Regulatory authorities do not require an application to amend service approval to change the location of a family day care principal office Regulatory authorities should update the service approval when they receive a notification (see Operational Requirements ndash Leadership and service management and Applications and Approvals ndash Amendment of service approval without application)
Incomplete applications
285 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
286 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
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68 Applications and Approvals Service approval Last updated April 2017
287 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
288 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies toall jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Timeframe for assessing an application
289 The regulatory authority must decide whether to amend the service approval within 60 calendar days after having received the application
Calculating time
290 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
291 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
292 When calculating the timeframe the day the application is received is included If the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 60-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the sixtieth day
Considering the application
Guidance for regulatory authorities
293 The National Law and Regulations do not prescribe the type or level of information needed to assess an application for amendment of service approval other than requiring an application to include lsquosufficient informationrsquo lsquoSufficient informationrsquo means enough information for the regulatory authority to make a decision on the application
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Last updated April 2017 Service approval Applications and Approvals 69
Determining the application
294 The regulatory authority must decide to amend the service approval in the requested way or with the applicantrsquos written agreement in another way The regulatory authority may also decide to refuse to amend the service approval
295 Amendment may include but is not limited to varying a condition of the service approval or imposing a new condition
Appeals
National Law section 190
296 A decision to refuse to amend a service approval is a reviewable decision under the National Law Refer to Reviews
After approval has been amended
National Law section 57
297 If the regulatory authority amends the service approval it must give a copy to the approved provider
Amendment of service approval without application
National Law section 55
298 The regulatory authority may amend a service approval at any time without an application from the approved provider Amendment of a service approval may include but is not limited to varying a condition or imposing a new condition on a service approval
Guidance for regulatory authorities
299 Regulatory authorities should amend a service approval to reflect a change to the location of the principal office of a family day care service See Operational Requirements ndash Leadership and service management for information about providersrsquo obligations to notify the regulatory authority
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70 Applications and Approvals Service approval Last updated April 2017
After approval has been amended
2100 The regulatory authority must give the approved provider written notice of the amendment Amendment takes effect 14 calendar days after the regulatory authority notifies the approved provider or at the end of another period specified by the regulatory authority
2101 At the request of a relevant childrenrsquos services regulator the regulatory authority must amend a service approval that relates to an associated childrenrsquos service provided the request accords with the relevant childrenrsquos services law
National Law section 57
2102 If the regulatory authority amends the service approval it must give a copy to the approved provider
Appeals
National Law section 190
2103 A decision to amend a service approval is a reviewable decision under the National Law Refer to Reviews
Offences related to service approval
Operating a service without service approval
National Law section 103
2104 It is an offence under the National Law for a person to provide an education and care service unless they are an approved provider of the service and the service is an approved education and care service A family day care educator providing education and care as part of an approved service is not committing an offence under this section
Advertising a service without service approval
National Law section 104
2105 It is an offence for a person to publish (or cause to be published) an advertisement for an education and care service unless the service is approved or an application for service approval has been submitted to the regulatory authority but not yet decided
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Last updated April 2017 Service approval Applications and Approvals 71
Guidance for regulatory authorities
2106 A family day care educator can advertise if they make clear they are part of an approved service Any advertisement should indicate which approved service they are promoting and include contact details for that service
2107 Activities that are part of a planning process such as gauging interest in the feasibility of a service do not constitute advertising a non-approved service
Transfer of service approval
National Law section 58
2108 An approved provider (the transferring approved provider) may transfer a service approval to another approved provider (the receiving approved provider)
National Law section 67
2109 A transfer of service approval is void if it is made
bull without the regulatory authorityrsquos consent
bull in a way that does not accord with any conditions imposed on the regulatory authorityrsquos consent or
bull to a person other than the receiving approved provider who notified the regulatory authority of the transfer
Guidance for regulatory authorities
2110 A cancelled service approval cannot be transferred A service approval that is going to be cancelled may be able to be transferred See Monitoring Compliance and Enforcement
Notification of decision to transfer
National Law section 59 WA
National Regulations regulations 36ndash37
2111 The transferring and receiving approved providers must jointly notify the regulatory authority of the transfer at least 42 calendar days before it is intended to take effect The regulatory authority may agree to a shorter notification period if it considers there are exceptional circumstances
2112 The notice must be in writing include payment of the prescribed fee (see Fees) and the prescribed information (see Application checklists ndash Table X)
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72 Applications and Approvals Service approval Last updated April 2017
Guidance for regulatory authorities
2113 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
2114 Regulatory authorities may agree lsquoexceptional circumstancesrsquo exist to justify a shorter notification period of less than 42 calendar days where for example the approved provider is ill and no longer able to operate the service and it is in the best interests of the children at the service to ensure continuity by transferring the service to a new approved provider
Regulatory authority consent
National Law sections 60ndash61
2115 A service approval can only be transferred with the regulatory authorityrsquos consent The regulatory authority is taken to have consented if it is notified of the transfer and 28 calendar days before the transfer is to take effect has not advised the approved providers that it intends to intervene
Decision to intervene in transfer of service approval
National Law section 62 WA
National Regulations regulation 38
2116 The regulatory authority may intervene in a transfer of a service approval if it is concerned about any matter it considers relevant This includes but is not limited to
bull whether the receiving approved provider is capable of operating the education and care service considering their financial capacity management ability and any other matter the regulatory authority thinks relevant and
bull the receiving approved providerrsquos history of compliance with the National Law and Regulations including in relation to any other education and care service they operate
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2117 If the regulatory authority decides to intervene in a transfer of service approval it must notify both the transferring and receiving approved providers in writing at least 28 calendar days before the transfer is intended to take effect The notice must include the information set out below
Information that must be included in notification to intervene in transfer of service approval
The name of the education and care service
The service approval number
The transferring approved providerrsquos name
The receiving approved providerrsquos name
The matters about which the regulatory authority is concerned
National Law sections 63ndash64
2118 If the regulatory authority intervenes a transfer cannot proceed unless the regulatory authority gives its written consent
2119 If the regulatory authority intervenes it may request further information from the transferring or receiving approved providers to inform its decision to consent or refuse to consent to the transfer The regulatory authority may also make inquiries about the receiving approved provider
Decision following intervention in transfer
National Law sections 65ndash66
2120 The regulatory authority may decide whether to consent or refuse to consent to the transfer It may impose conditions on its consent to transfer including specifying the date transfer will take effect The service approval must be transferred in accordance with any conditions the regulatory authority imposes on its consent
2121 If the regulatory authority intervenes in a transfer of service approval it must notify the transferring and receiving approved providers of its decision at least seven calendar days before the transfer is intended to take effect
2122 The notice must specify the regulatory authorityrsquos decision according to the options set out below
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Transfer of service approval ndash notice of outcome
Consent to the transfer including the date on which the transfer will take effect and any conditions on the consent to transfer (notice may also include any new conditions placed on the receiving providerrsquos provider approval or service approval) or
Refusal to consent to the transfer (service cannot be transferred) including the reasons for refusal or
Suspension of consideration of the transfer until more information is received and that the transfer may not proceed until the regulatory authority gives its written consent or
Decision not yet made on the transfer but will decide within 28 calendar days and that the transfer may not proceed until the regulatory authority gives its written consent
Notification following transfer of service approval
National Law section 68
2123 The transferring and receiving approved providers must notify the regulatory authority in writing within two calendar days after the transfer takes effect specifying the date of the transfer Transfer includes transferral of service approval for any associated childrenrsquos service
2124 On receiving notice that the service has been transferred the regulatory authority must amend the service approval and give the receiving approved provider an updated copy The amendment to the service approval is taken to have effect on the date of transfer
National Law section 69
2125 The receiving approved provider must notify parents of children enrolled at the service of the transfer at least two calendar days before transfer takes effect
Transfer of suspended service approval
National Law section 76
2126 The regulatory authority may consent to the transfer of a suspended service approval In this case the suspension ceases when the transfer takes effect unless the regulatory authority has imposed a condition on the transfer stating otherwise
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Application to transfer service approval when provider approval is cancelled
National Law section 34
2127 An approved provider whose provider approval is to be cancelled may apply to the regulatory authority for consent to transfer a service approval (see Monitoring Compliance and Enforcement)
2128 Application for consent to transfer must be made within 14 calendar days after the date of the decision to cancel the provider approval In this case the service approval is suspended until the regulatory authority has determined the application for consent to transfer
2129 If the regulatory authority consents to the transfer suspension of the service approval ceases on the date transfer takes effect unless conditions of transfer specify a later date
2130 If the regulatory authority decides not to consent to the transfer the service approval is cancelled from the date of its decision
Application to transfer cancelled service approval
National Law sections 81ndash82
2131 An approved provider may apply to the regulatory authority for consent to transfer a service approval that is to be cancelled unless the cancellation relates only to an associated childrenrsquos service
2132 The application must be made within 14 calendar days after the regulatory authority decides to cancel the service approval
2133 If the approved provider applies for consent to transfer the service approval is suspended rather than cancelled until the regulatory authority determines the application
2134 If the regulatory authority consents to the transfer its decision to cancel the service approval is revoked The suspension of the service approval ceases when the transfer takes effect unless the regulatory authority imposes a condition on their consent to transfer specifying a later date
2135 If the regulatory authority refuses to consent to the transfer the service approval is cancelled effective from the date of its decision
Guidance for regulatory authorities
2136 The National Law does not prescribe how an approved provider whose provider approval is to be cancelled must apply for consent to transfer service approval To ensure it has all the necessary information to decide whether to consent to the transfer the regulatory authority can request an application be made in the same form as an application to transfer service approval in ordinary circumstances (See Notification of decision to transfer above)
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Voluntary suspension of service approval
What is voluntary suspension of service approval
National Law section 85
2137 The voluntary suspension of service approval allows an approved provider to seek the regulatory authorityrsquos consent to put their service approval lsquoon holdrsquo for up to 12 months During that time the person must not operate the education and care service
Guidance for regulatory authorities
2138 An approved provider may apply for voluntary suspension of a service approval if for example they no longer wish to operate the service but have not negotiated transfer of the service to another approved provider or if they need to temporarily relocate a service to different premises during refurbishment
2139 See Monitoring Compliance and Enforcement for information on non-voluntary suspension of a service approval
How does the approved provider apply
National Law section 85
2140 An application for voluntary suspension must be in writing and include payment of the prescribed fee
What information needs to be included in an application
National Law section 85 WA
National Regulations regulation 40
2141 The National Regulations specify information that must be included in an application to suspend service approval (see Application checklists ndash Table XI)
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Guidance for regulatory authorities
2142 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
Incomplete applications
2143 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
2144 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
2145 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
2146 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Notification to parents
2147 An approved provider must notify parents of children enrolled at their services of their intention to apply for voluntary suspension of service approval Notification must be given at least 14 calendar days before making the application
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Timeframes for assessing an application
2148 The regulatory authority must decide whether to grant an application for voluntary suspension of provider approval within 30 calendar days after the application is made
Calculating time
2149 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
2150 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
2151 When calculating the timeframe the day the application is received is included lsquoDayrsquo means calendar day However if the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 90-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the ninetieth day
Considering the application
National Law section 85
2152 The regulatory authority should consider whether the suspension is reasonable in the circumstances
National Law section 101
2153 The regulatory authority can only exercise a power to suspend a service approval of a family day care service after consulting with the regulatory authority of each jurisdiction where the approved provider operates an education and care service This includes the regulatory authority which granted the service approval Failure to consult other regulatory authorities does not affect the validity of the regulatory authorityrsquos exercise of power
Guidance for regulatory authorities
2154 Regulatory authorities should wherever possible consult one another about actions that affect family day care services operating across jurisdictions Failure to consult other regulatory authorities may have broader implications for example where a compliance issue is escalated to prosecution
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Last updated April 2017 Service approval Applications and Approvals 79
Determining an application
National Law section 85
2155 If the regulatory authority grants an application for voluntary suspension of service approval it may agree to the date the suspension takes effect with the approved provider
After approval has been suspended
2156 The suspension of the service approval remains in force for the period specified in the written notice of decision The regulatory authority can lift a period of voluntary suspension of a service approval at the request of the approved provider
Surrender of service approval
What is surrender of service approval
2157 The surrender of service approval means giving up service approval Once surrendered the person is not taken to have service approval and cannot operate the education and care service
How does the approved provider surrender approval
National Law section 86
2158 An approved provider can surrender their service approval by giving written notice to the regulatory authority
Guidance for regulatory authorities
2159 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
What information needs to be included in the written notice
2160 The notice to the regulatory authority must specify a date on which the surrender is intended to take effect The date of effect must be after the notice is given to the regulatory authority and at least 14 calendar days after parents of children enrolled at any services are notified
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Notification to parents
2161 An approved provider must notify parents of children enrolled at the service of their intention to surrender the servicersquos approval Parents must be notified at least 14 calendar days before the date of surrender is to take effect
Exercise of powers by another regulatory authority ndash family day care services
National Law section 101
2162 A regulatory authority in another state or territory may exercise all its powers and functions in relation to a family day care service approval for a service that operates in its jurisdiction except in relation to the transfer of a service approval (including transfer of a suspended or cancelled service approval)
2163 A regulatory authority may only exercise its power to amend suspend or cancel a family day care service approval after consulting the regulatory authority of each participating jurisdiction where the service operates This requirement also applies to the regulatory authority that granted the service approval
2164 Failure to consult another regulatory authority does not affect the validity of the exercise of a regulatory authorityrsquos power
2165 A cancellation or suspension of a service approval for a family day care service in another jurisdiction has effect in the jurisdiction where the service approval was granted
Guidance for regulatory authorities
2166 Regulatory authorities should wherever possible consult one another about actions that affect providers operating across jurisdictions Failure to consult other regulatory authorities may have broader implications for example where a compliance issue is escalated to prosecution
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3 Other applications
Application to use indoor space as outdoor space
National Regulations regulation 108
31 The approved provider of a centre-based service or a family day care venue which educates and cares for children over preschool age may apply to the regulatory authority to include an area of unencumbered indoor space in calculating the outdoor space at the service Unencumbered indoor space cannot be counted towards outdoor space if it is being counted towards calculating the indoor space
32 Approval (if granted) must be in writing
Guidance for regulatory authorities
33 An application may be made with the initial application for service approval or at a later time Regulatory authorities will need to consider applications on a case-by-case basis
34 When making a decision on an application regulatory authorities need to balance the objectives of the legislation to ensure the safety health and wellbeing of children and provide educational and developmental outcomes for children attending education and care services with the interests of providers to offer services and for families to have access to those services
35 Regulatory authorities may refer to the following factors to assist them in determining whether to approve an application
NOTE These factors are not criteria that must be satisfied for an application to be approved Regulatory authorities must consider each application on its merits
Number and ages of children and the time spent at the service
36 Regulatory authorities should consider the ages of the children at the service and what proportion of the children are over preschool age A provider can only be approved to use indoor space in calculating outdoor space when children over preschool age are being educated and cared for at the service
37 Where a large proportion of the children at the service are over preschool age it is more likely to be appropriate to approve the use of more indoor space in calculating the amount of outdoor space at the service
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38 Regulatory authorities should also look at the amount of time children spend at the service It is more likely to be appropriate for indoor space to be used in calculating outdoor space at an outside school hours care service where children are only at the service for a couple of hours each morning andor afternoon than at a vacation care service where children attend from 8am to 5pm each day
Physical elements of the space
39 Regulatory authorities should consider how the indoor space can be used For example can the indoor space be safely used for activities which would ordinarily be undertaken outside such throwing a ball skipping or running To inform their view regulatory authorities may look at flooring whether any glass areas are or can be protected and whether the space is sufficiently lit and ventilated for physical activity
310 Where the space is intended to be used for these types of activities such as gymnasiums or halls or where they can be safely used for these types of activities they may be suitable to be included in calculating outdoor space
Proportion of indoor space to be included in calculating outdoor space
311 Consideration should be given to the proportion of indoor space which will be included in calculating outdoor space The greater the proportion of indoor space that will be included in calculating outdoor space the more important it will be for the regulatory authority to be satisfied that the space can be used for activities which would typically be undertaken outside
If an application is refused
312 If an application is refused the approved provider may apply for a service or temporary waiver See Waivers for more information
Application to use a verandah as indoor space
National Regulations regulation 107
313 An approved provider of a centre-based service or a family day care venue must ensure the service premises has at least 325 square meters of unencumbered indoor space for each child educated and cared for by the service
314 The area of a verandah may be included in calculating the area of indoor space only with the written approval of the regulatory authority
315 A verandah that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space
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Guidance for regulatory authorities
316 An approved provider of a centre-based service may apply to the regulatory authority for approval for a verandah to be included as indoor space The application may be made with the initial application for service approval or at a later time
317 Verandahs must be approved by the regulatory authority to be included as indoor space as not all verandahs will be appropriate for indoor play activities on an ongoing basis Regulatory authorities will need to determine applications on a case-by-case basis
318 In some climates and in some buildings verandah space may be a preferable space for children to carry out indoor play activities Regulatory authorities should balance the health safety and wellbeing of children with the intent of the legislation to allow suitable verandahs to be included in indoor space calculations
319 Approval in Queensland is subject to evidence from a building practitioner which demonstrates that the verandah meets the requirements under the relevant building code to be classed as indoor space A building practitioner may impose requirements on an approved provider to enable such evidence to be provided (such as requiring the installation of waterproof blinds) and to ensure the space can be considered lsquoindoorsrsquo
320 The Early Childhood Centre and School Age Care Facilities Code restricts the Tasmanian Regulatory Authority from approving verandahs as indoor space due to the climate
321 All other regulatory authorities may consider the following factors in approving a verandah as indoor space
bull the square metres of usable and unencumbered space taking into account the physical elements of the space such as adequate flooring roofing and the shape of the space and
bull whether there are significant periods of the year in which the space will be unsuitable taking into account year round weather conditions community expectations of suitability and measures available to manage weather conditions such as air conditioning heating and weatherproofing
NOTE These factors are not criteria that must be satisfied for an application to be approved Regulatory authorities must consider each application on its merits
Physical elements of the space
322 Regulatory authorities should consider whether the space is appropriate having overall regard to the wellbeing of the children To do this they may look at the physical elements of the space such as flooring and roofing and protection from the weather
323 Other considerations should include whether the space is unencumbered and whether the shape and position of the verandah affect usability
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Usability of the verandah
324 Whether a verandah is suitable for indoor play activity will depend on the climate For instance in colder climates it may be necessary for the verandah to have temporary protection from the elements such as heaters blinds or waterproofing In warmer climates blinds and waterproofing may be unnecessary However fans shading or air-conditioning may be appropriate
325 Services in areas of extreme weather conditions may have different expectations about appropriate weather conditions and use of verandah space Assessment of the usability of a verandah may include consideration of local community expectations
326 Regulatory authorities may refuse applications if children are at risk of overcrowding because the verandah is unsuitable for indoor play activities for a significant period of time A significant period of time may be an entire season A significant period of time would not include situations where the verandah is unsuitable for a short period of time for example during a storm or on an unusually hot day
Minimum space requirements
327 There are no minimum space requirements for verandahs to be approved as indoor space
Building requirements
328 Except in Queensland regulatory authorities do not need to consider building approvals when assessing applications for verandahs to be included in indoor space calculations
Light and ventilation
329 The requirements for natural light ventilation and temperature that apply to indoor spaces do not apply to verandahs
Supervision
330 The ability to adequately supervise children is a key requirement under the legislation However it does not generally form part of the considerations for assessing whether verandahs are considered indoor or outdoor space as adequate supervision is a consideration for any part of the service premises where children are educated and cared for regardless of whether it is counted as indoor or outdoor space In cases where the approved provider alters or intends to alter the service premises as part of making a verandah suitable for use as indoor space the regulatory authority may consider whether this impacts on supervision (see Operational Requirements ndash Physical Environment for more information)
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4 Waivers41 An approved provider may apply to a regulatory authority for a waiver of an element of
the National Quality Standard andor the National Regulations They may apply for a service waiver where an issue is likely to be ongoing or a temporary waiver where the issue can be addressed within 12 months Regulatory authorities are responsible for assessing and determining applications for waivers
Application for service waiver
What is a service waiver
National Law section 93
42 A service waiver allows a service to be taken to comply with a specified requirement or requirements of the National Regulations and element or elements of the National Quality Standard
Who can apply for a service waiver
National Law section 87
43 An approved provider may apply to the regulatory authority for a service waiver
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What requirements can be the subject of a service waiver
National Regulations regulation 41
44 Requirements that can be waived by the regulatory authority are set out in the National Regulations
Requirements that may be covered by a service waiver ndash family day care service
Reg Requirement
Physical environment
104 Fencing
107 Indoor space
108 Outdoor space
110 Ventilation and natural light
117 Glass
Staffing
124 Number of children who can be educated and cared for
127 Family day care educator qualifications
128 Family day care coordinator qualifications
Ch7 Any jurisdiction-specific transitional or saving provisions that apply in place of the regulations outlined above
See schedule 1 of the National Regulations for standards and elements in Quality Area 3 Physical Environment and Quality Area 4 Staffing Arrangements that may be waived
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Requirements that may be covered by a service waiver ndash centre-based service
Reg Requirement
Physical environment
104 Fencing
107 Indoor space
108 Outdoor space
110 Ventilation and natural light
111 Administrative space
112 Nappy change facilities
113 Outdoor space ndash natural environment
114 Outdoor space ndash shade
115 Premises designed to facilitate supervision
Staffing
120 Supervision for educators under 18 years
123 Educator-to-child ratios
126 General educator qualifications
130 Early childhood teacher (fewer than 25 approved places)
131 Early childhood teacher (25 or more approved places but fewer than 25 children)
132 Early childhood teacher (25 to 59 children)
133 Early childhood teacher (60 to 80 children)
134 Early childhood teacher (more than 80 children)
Ch7 Any jurisdiction-specific transitional or saving provisions that apply in place of the regulations outlined above
See schedule 1 of the National Regulations for standards and elements in Quality Area 3 Physical Environment and Quality Area 4 Staffing Arrangements which may be waived
45 An approved provider may apply for a service waiver and a service approval at the same time
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How does an approved provider apply
National Law section 88 WA
46 An application for a service waiver must be in writing and include payment of the prescribed fee (see Fees)
47 An approved provider can submit one application seeking a waiver from more than one regulation or element and a single fee is payable
Guidance for regulatory authorities
48 An approved provider can only apply for a waiver of the prescribed regulations and elements set out in the above table If the regulatory authority receives an application for a waiver of a regulation or element that is not prescribed the application should be refused and the application fee should be refunded
What information needs to be included in an application
National Regulations regulation 42
49 The National Regulations specify information that must be included in an application for a service waiver (see Application checklists ndash Table XII)
410 An application for a service waiver must include details of any attempts made to comply with the requirement and the measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service
Guidance for regulatory authorities
411 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
412 The National Law allows an approved provider to apply for a service waiver from staffing requirements However the regulatory authority should consider whether the issue is ongoing or whether it may be resolved within 12 months in which case a temporary waiver would be appropriate
Incomplete applications
413 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
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414 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
415 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
416 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Timeframe for assessing an application
National Law section 91
417 The regulatory authority must notify the applicant of its decision within 60 calendar days after the application is made There is no provision to extend the timeframe for determining an application for a service waiver
418 If the approved provider applied for a service waiver and a service approval simultaneously the regulatory authority may notify the applicant of the outcome of both applications at the same time
Calculating time
419 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
420 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
421 When calculating the timeframe the day the application is received is included If the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 90-day timeframe the first day is the day the regulatory authority receives the application and the last day is the ninetieth day
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Considering an application
National Law section 90
422 When considering an application for a service waiver the regulatory authority may consider whether the service is able to meet the objectives of the element andor regulation by alternative means and any relevant matters disclosed in the application
National Law section 89
423 The regulatory authority may ask the approved provider for more information or may inspect the service premises or office for the purpose of assessing the application
Guidance for regulatory authorities
424 The regulatory authority would usually only approve an application for a service waiver when satisfied of the factors set out below
Factors the regulatory authority should consider when assessing a service waiver application
There is no unacceptable risk to childrenrsquos safety health or wellbeing in granting the waiver and
The issue is ongoing (ie longer than 12 months) and requires a service waiver rather than a temporary waiver and
It is genuinely not practical for the service to resolve the issue and
The service can meet the objectives by alternative means or on balance the granting of a waiver is preferred taking into account
bull the benefits to families children and communities in having the service operate
bull cost of any adjustments needed for the service to comply
bull the providerrsquos history of and approach to compliance
bull in the case of waivers from staffing requirements the availability of qualified staff
bull unusual or unforeseen circumstances such as natural disasters
bull the servicersquos quality improvement plan and
bull any attempts made by the provider to comply with the requirement(s)
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Combining a waiver with conditions on service approval
425 The National Law allows the regulatory authority to impose any conditions it considers appropriate on a service approval but does not allow for conditions to be placed on a waiver In some instances the regulatory authority may grant a service waiver and decide to put the agreed grounds on which the waiver was approved as conditions on the service approval to help ensure the approved provider complies with the agreed grounds Failure to meet the specified conditions would constitute failure to comply with a condition of service approval In this situation the regulatory authority may consider whether it is appropriate to take compliance action
426 The regulatory authority might also decide to put a condition on the service approval at a later time if it has concerns about the providerrsquos efforts to comply with the grounds on which the waiver was granted
427 Regulatory authorities may use this approach where there is a greater risk to children in granting the waiver such as where the service would not be allowed to operate without meeting certain conditions or taking certain steps Regulatory authorities may also decide to use this approach where there are concerns about whether the approved provider will maintain their efforts to try and meet the waived requirement or follow through on any agreed actions
428 See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a service approval
Determining an application
Granting or refusing service waiver
National Law section 91
429 The regulatory authority may decide to grant or refuse an application for a service waiver
430 If the regulatory authority grants a service waiver it must issue or reissue the service approval specifying the element andor the regulation to which the service waiver applies
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Guidance for regulatory authorities
431 If the regulatory authority decides it is appropriate to issue a service waiver it should make clear it is issued on the understanding that the grounds on which it was granted will continue to apply While the National Law does not allow regulatory authorities to put conditions on a service waiver there are two approaches available to ensure an approved provider takes the steps agreed to when a waiver is issued They are
bull to include a condition on service approval
bull to warn the approved provider that the waiver will be revoked if the agreed steps are not taken
432 When issuing a waiver regulatory authorities should make sure only the specific requirements that the service is unable to meet or that are met in other ways are waived
433 If the regulatory authority receives an application for a service waiver and determines that it should have been an application for a temporary waiver it can be processed as if it was an application for a temporary waiver The approved provider is not required to resubmit an application See Application for temporary waiver below
434 If the regulatory authority receives an application seeking a waiver of multiple requirements it may decide to grant a waiver in relation to some regulationselements but refuse others
After a service waiver has been granted
National Law section 91
435 The regulatory authority must give the approved provider a copy of their service approval that lists the element andor regulation to which the waiver applies
Guidance for regulatory authorities
436 Regulatory authorities should take a risk-based approach to monitoring the compliance of services with a waiver See the Monitoring Compliance and Enforcement chapter for more information about monitoring activities
437 If a service is transferred to a new provider any waivers that apply will remain in place However the regulatory authority might decide to more closely monitor the service after it is transferred to confirm the grounds on which the waiver was issued still exist
438 The National Law does not explicitly give regulatory authorities the power to publish information about waivers Regulatory authorities may however publish information about conditions on service approvals
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Last updated April 2017 Waivers Applications and Approvals 93
Revoking a service waiver
National Law section 92
National Regulations regulation 43
439 A service waiver is ongoing and remains in force until revoked There is no maximum period for which a service waiver can apply
440 While a service waiver is ongoing it is not lsquopermanentrsquo as the regulatory authority may revoke a service waiver at its discretion If the regulatory authority revokes a service waiver the waiver ceases to apply
bull 60 calendar days after the regulatory authority notifies the approved provider of their decision or
bull at the end of a period determined by the regulatory authority and agreed by the approved provider
441 An approved provider may apply to the regulatory authority to have a service waiver revoked In this case the waiver ceases to apply
bull 14 calendar days after the regulatory authority notifies the approved provider that the application for revocation is approved or
bull at the end of a period determined by the regulatory authority and agreed by the approved provider
Guidance for regulatory authorities
442 If having decided it is to appropriate to grant a service waiver the regulatory authority later becomes aware that the grounds on which it was granted no longer apply or if a condition placed on the service approval has not been complied with it may consider revoking the waiver
443 If the regulatory authority revokes a waiver and the approved provider fails to comply with a requirement of the National Law and Regulations it may consider whether it is appropriate to take compliance action
444 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
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Application for temporary waiver
What is a temporary waiver
National Law section 100
445 A temporary waiver means a service is not required to comply with a specified requirement or requirements of the National Regulations and element or elements of the National Quality Standard
Guidance for regulatory authorities
446 If the regulatory authority becomes aware of a service not being able to meet staffing or physical environment requirements despite attempts to comply it may inform the approved provider that they may apply for a temporary waiver if it is satisfied the approved provider has reasonable justification for not being able to comply
Who can apply for a temporary waiver
National Law section 94
447 An approved provider may apply to the regulatory authority for a temporary waiver
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What requirements can be the subject of an application for a temporary waiver
National Regulations regulation 44
448 Requirements that can be temporarily waived by the regulatory authority are set out in the National Regulations
Requirements that may be covered by a temporary waiver ndash family day care service
Reg Requirement
Physical environment
104 Fencing
107 Indoor space
108 Outdoor space
110 Ventilation and natural light
117 Glass
Staffing
124 Number of children who can be educated and cared for
127 Family day care educator qualifications
128 Family day care coordinator qualifications
136 First aid qualifications
Ch7 Any jurisdiction-specific transitional or saving provisions that apply in place of the regulations outlined above
See schedule 1 of the National Regulations for standards and elements in Quality Area 3 Physical Environment and Quality Area 4 Staffing Arrangements which may be waived
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Requirements that may be covered by a temporary waiver ndash centre-based services
Reg Requirement
Physical environment
104 Fencing
107 Indoor space
108 Outdoor space
110 Ventilation and natural light
111 Administrative space
112 Nappy change facilities
113 Outdoor space ndash natural environment
114 Outdoor space ndash shade
115 Premises designed to facilitate supervision
Staffing
120 Supervision for educators under 18 years
123 Educator-to-child ratios
126 General educator qualifications
130 Early childhood teacher (fewer than 25 approved places)
131 Early childhood teacher (25 or more approved places but fewer than 25 children)
132 Early childhood teacher (25 to 59 children)
133 Early childhood teacher (60 to 80 children)
134 Early childhood teacher (more than 80 children)
136 First aid qualifications
Ch7 Any jurisdiction-specific transitional or saving provisions that apply in place of the regulations outlined above
See schedule 1 of the National Regulations for standards and elements in Quality Area 3 Physical Environment and Quality Area 4 Staffing Arrangements that may be waived
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How does an approved provider apply
National Law section 95
449 An application for a temporary waiver must be in writing and include payment of the prescribed fee (see Fees)
450 An approved provider can submit one application seeking a waiver from more than one regulation or element and a single fee is payable
Guidance for regulatory authorities
451 An approved provider can only apply for a waiver of the prescribed regulations and elements set out in the above table If the regulatory authority receives an application for a waiver of a regulation or element that is not prescribed the application should be refused and the application fee should be refunded
What information needs to be included in an application
National Law section 95 WA
National Regulations regulation 45
452 The National Regulations specify information that must be included in an application for a temporary waiver (see Application checklists ndash Table XIII)
Guidance for regulatory authorities
453 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
454 The National Regulations do not prescribe the type of evidence that must be included to support a waiver application Therefore the regulatory authority has discretion to accept a range of evidence
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Incomplete applications
455 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
456 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
457 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
458 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Timeframe for assessing an application
National Law section 98
459 The regulatory authority must notify the applicant of their decision within 60 calendar days after the application is made There is no provision to extend the timeframe for determining an application for a service waiver
Calculating time
460 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
461 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
462 When calculating the timeframe the day the application is received is included If the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 90-day timeframe the first day is the day the regulatory authority receives the application and the last day is the ninetieth day
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Considering an application
National Law section 97
463 When deciding whether to grant a temporary waiver the regulatory authority must consider whether any special circumstances disclosed in the application reasonably justify the grant of a temporary waiver
National Law section 96
464 The regulatory authority may ask the approved provider for more information or inspect the service premises or office for the purposes of determining the application
Guidance for regulatory authorities
465 The regulatory authority would usually only approve an application for a temporary waiver when it is satisfied of the factors set out below
Factors the regulatory authority should consider when assessing a temporary waiver application
There is no unacceptable risk to childrenrsquos safety health or wellbeing in granting the waiver and
It is practicable for the service to make adjustments to meet the requirements of the legislation and these adjustments canshould be made within a 12-month timeframe and
The service has made genuine attempts or is taking steps or will take steps to comply with the elements and regulations and
There are special circumstances that reasonably justify the grant of a waiver including that the service can meet the objectives by alternative means or with consideration to
bull the benefits to families children and communities in having the service operate
bull cost of adjustments needed for the service to comply
bull the providerrsquos history of and approach to compliance
bull in the case of waivers from staffing requirements the availability of qualified staff
bull unusual or unforeseen circumstances such as natural disasters
bull the servicersquos quality improvement plan
bull attempts made by the provider to comply
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466 An example of lsquospecial circumstancesrsquo may include where a servicersquos premises are damaged by a natural disaster
467 When assessing waiver applications for a qualification requirement examples of a providerrsquos attempts to comply might include evidence listed below
Examples of evidence in a waiver application
Advertising for qualified staff in mainstream publications including websites
Transcripts demonstrating an educator is studying towards the required qualification or evidence of any other relevant qualifications
An educatorrsquos application to ACECQA to have an overseas qualification assessed for equivalence with an approved qualification
Contacting agencies that offer qualified relief staff
Mentoring between qualified and unqualified educators
Establishing links with other services or local training organisations
468 When considering an application the regulatory authority might also consider whether there is a genuine need for a waiver or whether the provider has applied for a waiver in the event that they are unable to meet a regulationelement such as if a qualified educator takes personal leave In such cases it would be expected that the provider establish links with a relief staff agency
Determining an application
Granting or refusing a temporary waiver
National Law section 98
469 If granted the regulatory authority must specify the period for which the temporary waiver will apply which can be up to 12 months The regulatory authority must issue or reissue the service approval specifying the element andor regulation to which the temporary waiver applies and for what period
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Guidance for regulatory authorities
470 If the regulatory authority decides it is appropriate to issue a temporary waiver it should make clear it is issued on the understanding that the grounds on which it was granted will continue to apply While the National Law does not allow regulatory authorities to put conditions on a temporary waiver there are two approaches available to regulatory authorities to ensure an approved provider takes the steps agreed to when a waiver is issued They are
bull to include a condition on service approval or
bull to warn the approved provider that the waiver will be revoked if the agreed steps are not taken
471 When issuing a waiver regulatory authorities should make sure only the specific requirements that the service is unable to meet or that are met in other ways are waived For example if the regulatory authority decides it is appropriate to issue a waiver in relation to diploma qualified educators it should make clear that the relevant regulation is waived only in respect of the specified position that the approved provider has been unable to fill and not in its entirety
472 If the regulatory authority receives an application seeking a waiver of multiple requirements it may decide to grant a waiver in relation to some regulationselements but refuse others
473 Where the regulatory authority grants a temporary waiver for more than one regulation or element it may apply different timeframes as appropriate For example the regulatory authority may decide it is appropriate to waive outdoor space requirements for 12 months and a qualification requirement for six months
Revoking a temporary waiver
National Law section 99
474 The regulatory authority may revoke a temporary waiver at its discretion
475 An application for a temporary waiver must include details of any attempts made to comply with the requirement and the measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service If having decided it is appropriate to grant a temporary waiver the regulatory authority later becomes aware that the grounds on which it was granted no longer apply or if a condition placed on the service approval has not been complied with it may consider revoking the waiver
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Guidance for regulatory authorities
476 See Granting or refusing a temporary waiver above for information on when a regulatory authority may revoke a temporary waiver
477 There is no notice period for revoking a temporary waiver
478 If the regulatory authority revokes a waiver and the approved provider fails to comply with a requirement of the National Law and Regulations it may consider whether it is appropriate to take compliance action
479 An approved provider may contact the regulatory authority seeking to have a temporary waiver revoked if it is no longer required The National Law does not prescribe the process for revoking a temporary waiver at a providerrsquos request
Combining a waiver with conditions on service approval
480 The National Law allows the regulatory authority to impose any conditions it considers appropriate on a service approval (but does not allow for conditions to be placed on a waiver) In some instances the regulatory authority may grant a temporary waiver and decide to put conditions on the service approval to help ensure the approved provider maintains their efforts to comply with the requirement Failure to meet the specified conditions would constitute a failure to comply with a condition of service approval and the regulatory authority may consider whether it is appropriate to take compliance action
481 The regulatory authority might also decide to put a condition on the service approval at a later time if it has concerns about the providerrsquos efforts to comply with the grounds on which the waiver was granted
482 Regulatory authorities may use this approach where there is a greater risk to children in granting the waiver such as where the service would not be allowed to operate without meeting certain conditions or taking certain steps
483 Regulatory authorities may also decide to use this approach where there are concerns about whether the approved provider will maintain their efforts to meet the requirement and follow through on any agreed actions
484 Because the approved provider must ensure details of any conditions on a service approval are displayed at the entrance to the service premises the regulatory authority may prefer this approach where it is important to make sure families using the service are aware of the grounds on which the waiver has been issued
485 See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a service approval
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After a temporary waiver has been granted
National Law section 98
486 The regulatory authority must give the approved provider a copy of their service approval that lists the element andor regulation to which the waiver applies and the period of the waiver
Guidance for regulatory authorities
487 Regulatory authorities should take a risk-based approach to monitoring compliance of services with a temporary waiver See the Monitoring Compliance and Enforcement chapter for more information about monitoring activities
488 If a service is transferred to a new provider any waivers that apply will remain in place However the regulatory authority might decide to monitor the service after it is transferred to ensure the grounds on which the waiver was issued still exist
489 The National Law does not explicitly give regulatory authorities the power to publish information about waivers Regulatory authorities may however publish information about conditions on service approvals
Expiry of a temporary waiver
National Law sections 98 100
490 Once the period for which a temporary waiver is granted has passed the waiver no longer applies and the service must comply with the National Law and Regulations unless an extension has been granted
Guidance for regulatory authorities
491 To help ensure families can access current information about the service the regulatory authority should reissue the service approval once a temporary waiver expires
492 Once a temporary waiver expires the regulatory authority might decide to monitor the service to ensure the requirement is being met Refer to the Monitoring Enforcement and Compliance chapter for more information about monitoring
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Application to extend a temporary waiver
National Law section 98
493 The approved provider may apply for an extension of a temporary waiver
494 The regulatory authority may extend a temporary waiver for up to 12 months on one or more occasions
495 The regulatory authority must determine an application for extension of a temporary waiver as soon as possible
Guidance for regulatory authorities
496 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
497 The regulatory authority cannot extend a temporary waiver without an application from the approved provider
498 An application for extension of a temporary waiver should relate to the same regulations andor elements and circumstances for which the initial waiver was granted For instance a provider might apply for an extension to a temporary waiver if building works take longer than expected or if an educator needs some more time to complete their approved qualification If the provider is seeking a waiver of different requirements they should submit a new application
499 When considering an application for extension of a temporary waiver the regulatory authority should consider the same matters as for an initial application The regulatory authority should pay particular attention to the attempts made andor steps taken by the service to comply with the regulation andor elements See Considering an application above
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5 Supervisor certificates WA
51 A person who is in day-to-day charge of an education and care service must hold a supervisor certificate under the Education and Care Services National Law and Regulations
52 A supervisor certificate allows a person to consent to be
bull the nominated supervisor of an approved service or
bull a certified supervisor placed in day-to-day charge of an approved service in the absence of the nominated supervisor and approved provider
53 There are two different types of supervisor certificates
1) Prescribed class supervisor certificates may be granted by a regulatory authority to cover people working in particular roles set out at regulation 49 within a school or preschoolkindergarten in certain states and territories The most common type of prescribed class supervisor certificate is service supervisor certificates These may be granted by a regulatory authority until 31 December 2016 to cover people who meet the definition at regulation 238A Service supervisor certificates were introduced on 1 June 2014 and apply to all states territories other than WA and
2) Supervisor certificates granted to an individual on application to the regulatory authority
54 See below for further detail about each type of supervisor certificate
National Regulations regulation 238A
55 Until 31 December 2016 the regulatory authority may issue a service supervisor certificate to a person in one of the following prescribed classes
Classes of persons for grant of a service supervisor certificate
A person employed or engaged by an approved provider to be responsible for the day-to-day management of an approved education and care service
A family day care co-ordinator
A person employed or engaged by an approved provider to exercise supervisory and leadership responsibilities in relation to a section of an approved service
Prescribed class supervisor certificates
Service supervisor certificates
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Granting a supervisor certificate to a person in a prescribed class
National Law section 114
National Regulations regulation 49
56 The regulatory authority may grant a supervisor certificate to a person in a prescribed class
Prescribed class of persons for grant of supervisor certificate
A principal of a school that provides an education and care service at the school site
A person in charge of a campus of a school that provides an education and care service at that campus
A teacher at an off-site government preschool (within the meaning of the Education Act 2004 of the Australian Capital Territory)
A director of a preschool education program (within the meaning of the Education Act 1972 of South Australia) provided by either a government school or a registered non-government school (both within the meaning of the Act)
A director of a preschool education program provided in a childrenrsquos services centre registered under the Childrenrsquos Services Act 1985 of South Australia
A registered teacher delivering a pre-preparatory learning program under an education law of Queensland
A registered teacher (within the meaning of the Teachers Registration Act 2000 of Tasmania) providing a preschool program at a school established or registered under the Education Act 1994 of Tasmania
A teacher registered under the Teachers Registration Act 2012 (WA) providing education and care to children in their pre-compulsory education period (within the meaning of the School Education Act 1999 of Western Australia) in a school or community kindergarten established or registered under that 1999 Act
Guidance for regulatory authorities
57 The regulatory authority will issue a service supervisor certificate to each approved education and care service Generally all approved services existing prior to June 2014 will have been issued with a service supervisor certificate
58 Regulatory authorities are not required to assess the fitness and propriety or the qualifications and experience of a person in a prescribed class as these matters will already have been considered by the provider or other responsible authority under similar processes
59 A supervisor certificate is issued to the class of persons in a particular service and is therefore not portable The certificate enables anyone in the class of persons in that particular service to be nominated as the nominated supervisor or to be designated as the certified supervisor in day-to-day charge
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510 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
511 Regulatory authorities may issue supervisor certificates to a person in a prescribed class on receipt of a request form or may issue certificates proactively See above for information that must be included in a supervisor certificate issued to a person in a prescribed class
512 See below for conditions that apply to a supervisor certificate issued to a person in a prescribed class
Supervisor certificates granted to an individual WA
513 The introduction of the service supervisor certificates and prescribed class supervisor certificates means that most people are no longer required to hold supervisor certificates granted to individuals However existing individual supervisor certificates are still valid
514 While educators working in existing services may choose to apply for an individual supervisor certificate the majority of applications will be from individuals seeking to be the nominated supervisor of a new service This is because service approval cannot be applied for without suppling information about the nominated supervisor
515 A supervisor certificate granted to an individual is ongoing unless suspended cancelled or surrendered
Who can apply for a supervisor certificate
516 Applications for supervisor certificates granted to individuals are no longer necessary in most cases as most individuals are covered by either a service supervisor certificate or prescribed class supervisor certificate
517 The following sections sets out how applications for supervisor certificates granted to individuals are made and decided
National Law sections 106
518 A person who is 18 years or older may apply to the regulatory authority for a supervisor certificate granted to an individual
How does a person apply for a supervisor certificate
National Law sections 106 107
519 An application for a supervisor certificate granted to an individual must be in writing and include payment of the prescribed fee (see Fees) The application must be made to the regulatory authority in the jurisdiction where the applicant lives or intends to live
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Guidance for regulatory authorities
520 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
521 For most jurisdictions people employed at a service are required to undergo and maintain working with children checks Holding a supervisor certificate does not negate this responsibility
What information needs to be included in an application
National Law section 107 WA
National Regulations regulation 46
522 The National Regulations specify information that must be included in an application for a supervisor certificate (see Application checklists ndash Tables XIV XV)
Incomplete applications
523 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
524 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
525 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
526 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
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Timeframe for assessing an application
National Law sections 110ndash111
527 The regulatory authority must determine an application for a supervisor certificate granted to an individual within 60 calendar days after it receives the application or if the applicant agrees within 90 calendar days
528 If the regulatory authority requests further information to assess the applicantrsquos fitness and propriety the time taken for the information to be provided is not included in the 60-day period
529 If the regulatory authority does not determine an application within the required timeframe the application is taken to be refused
Calculating time
530 The National Law sets out how timeframes are calculated at schedule 1 clause 31
Guidance for regulatory authorities
531 The statutory timeframe for processing an application does not begin until an application is valid A lsquovalidrsquo application is one which includes all the prescribed information
532 When calculating the timeframe the day the application is received is included If the last day of the timeframe falls on a non-business day the next business day will be the last day For example for a 90-day timeframe this means the first day is the day the regulatory authority receives the application and the last day is the ninetieth day
Considering an application
National Law section 108
533 An applicant for a supervisor certificate granted to an individual must satisfy the regulatory authority that they are a fit and proper person to be supervisor of an education and care service and that they meet the prescribed minimum requirements for qualifications experience and management capability
Fitness and propriety
National Law section 108
534 A person who is a registered teacher or who holds a current working with children card is taken to be fit and proper to supervise a service in the absence of evidence to the contrary
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National Law sections 109 291 WA
535 The National Law sets out particular matters that the regulatory authority must consider when determining a personrsquos fitness and propriety but does not limit the circumstances in which it may consider a person is not fit and proper to supervise a service
536 In determining whether a person is fit and proper to supervise a service the regulatory authority must consider the personrsquos history of compliance with any current or former education and care services law childrenrsquos services law or education law If a person has been served with an infringement notice for an offence under the National Law and has paid the penalty the regulatory authority cannot take the offence into account when determining the personrsquos fitness and propriety
537 The regulatory authority must also consider any decision made under a former education and care services law a childrenrsquos services law or an education law of any state or territory to refuse refuse to renew suspend or cancel a licence approval registration or certification issued to the person under that law
538 The regulatory authority must consider the applicantrsquos criminal history Because working with childrenvulnerable people legislation differs between jurisdictions there are three options for assessing an applicantrsquos criminal history
If the applicant has a working with children check the regulatory authority must consider this when determining the applicantrsquos fi tness and propriety
If the applicant does not have a working with children check but lives in a jurisdiction where a working with vulnerable people law applies (ACT) the regulatory authority must consider
bull any working with vulnerable people check held by the applicant or
bull whether they are a registered teacher in their jurisdiction
If the applicant does not have a working with children check but lives in a jurisdiction where a working with vulnerable people law does not exist the regulatory authority must consider
bull any matters included in a criminal history record check or
bull whether they are a registered teacher in their jurisdiction
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Last updated April 2017 Supervisor certificate Applications and Approvals 111
539 The regulatory authority may also consider whether the person has a medical condition that may affect their capacity to supervise a service
National Law section 110
540 To assess whether a person is fit and proper to hold a supervisor certificate granted to an individual the regulatory authority may ask them for more information The regulatory authority may undertake inquiries or investigations in relation to the applicantrsquos fitness and propriety Refer above for information about timeframes for determining an application when more information is required
Guidance for regulatory authorities
541 Applicants are not required to include medical information in their initial application However where the regulatory authority is concerned about an applicantrsquos capacity it may ask for information such as an assessment by a medical practitioner The regulatory authority should outline what they are seeking assessed and include background a description of the role and responsibilities and why the assessment is sought The regulatory authority may require a written report to be provided
542 When considering an application if the application is decided within 90 days the criminal history check and statement submitted by the applicant is generally considered to be current If other information in the application raises concerns about fitness or propriety then the regulatory authority might consider requesting an updated criminal history check andor statement to assist in the decision
543 If the application is decided after 90 days then the regulatory authority should consider
bull whether there are other matters which may show that the applicant is fit and proper
bull the time that has elapsed since the criminal history check was completed and
bull the cost and inconvenience to the applicant of obtaining a fresh criminal history check
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Qualifications experience and management capability
National Law section 108
National Regulations regulation 47
544 The applicant must satisfy the regulatory authority that they meet the prescribed minimum requirements for qualifications experience and management capability set out below
Supervisor certificate ndash minimum requirements for qualifications experience and management capability
Regulation Requirement
47(1)(a)(i) Adequate knowledge and understanding of the provision of education and care to children and
47(1)(a)(ii) The ability to effectively supervise and manage an education and care service and
47(1)(b) One of the following
bull at least three yearsrsquo experience working as an educator in an education and care service childrenrsquos service a school or in a service regulated under a former education and care services law or
bull an approved diploma level education and care qualification or
bull an approved early childhood teaching qualification
545 All applicants must meet the requirement for adequate knowledge and understanding and management ability to be granted an individual supervisor certificate
546 The regulatory authority may grant a supervisor certificate to a person who does not have at least three yearsrsquo experience or an approved diploma or early childhood teaching qualification subject to the condition that the holder may only be a nominated supervisor or placed in day-to-day charge of a service that primarily educates and cares for children over preschool age
Guidance for regulatory authorities
547 In many cases a single piece of evidence may demonstrate an applicantrsquos claim against more than one of the requirements For example evidence of completing an approved diploma level education and care qualification may satisfy the regulatory authority that the applicant has adequate knowledge and understanding of the provision of education and care to children
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548 The regulatory authority should ensure it assesses an applicant against each of the requirements set out at regulation 47 Failure to meet one requirement does not necessarily mean failure to meet another For example a person with less than three yearsrsquo experience or who has completed a non-approved or lower level qualification such as a certificate III education and care qualification may have an adequate understanding of the provision of education and care to children Assessing each requirement separately will help ensure applicants who are unsuccessful understand the additional skills experience or qualifications that are needed to be granted a supervisor certificate
549 Lists of approved diploma and early childhood teaching qualifications are available on the ACECQA website at wwwacecqagovau
Adequate knowledge and understanding
550 Regulatory authorities should accept the following types of evidence against the requirement for adequate knowledge and understanding as well as any other type of evidence that satisfies it of the applicantrsquos management ability
bull a resumeacute detailing the applicantrsquos position duties duration of employment and their employerrsquos details
bull a written reference from an employer that addresses the applicantrsquos knowledge and understanding of the provision of education and care to children or
bull transcripts demonstrating completion of an education and care qualification
Management ability
551 Because the National Regulations require an applicant to satisfy the regulatory authority of their management ability rather than their management experience an applicant may meet the requirement even if they do not have experience managing a service For example an applicant may be able to demonstrate their ability to effectively supervise and manage an education and care service if they have management experience at other service types or in other industries
552 The regulatory authority should consider how an applicantrsquos skills and experience contribute to their ability to manage a service in accordance with the National Law and Regulations This may include consideration of an applicantrsquos
bull knowledge of and ability to apply practices that help ensure the education and care needs of children are met
bull knowledge of and ability to apply practices that help ensure a service complies with the National Law and Regulations and
bull skills in managing relationships with staff and families at the service
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553 Regulatory authorities should accept the following types of evidence against this requirement as well as any other type of evidence that satisfies it of the applicantrsquos management ability
bull a resumeacute detailing their position duties duration of employment and their employerrsquos details and which indicates their management ability
bull a written reference from an employer that addresses the applicantrsquos management ability or
bull transcripts or a certificate of attainment demonstrating completion of units of study or professional development that are relevant to supervising or managing an education and care service For example courses or units that relate to staff management or managing an education and care service in accordance with the Education and Care Services National Law and Regulations
NOTE The WA Regulatory Authority will only review a reference from an employer when requested to do so on a case-by-case basis The Queensland Regulatory Authority does not accept evidence of completing relevant units of study or professional development as evidence of management ability
Three yearsrsquo experience
554 The requirement for at least three yearsrsquo experience as an educator intends to ensure that a person who has not attained an approved diploma or early childhood teaching qualification may only be placed in a position of responsibility within a service if they have substantial practical experience This may include three yearsrsquo experience working in either a part-time or full-time position
555 The National Regulations do not specify that an applicantrsquos experience must be gained over a consecutive three-year period or how recently it must have been gained However the currency of the applicantrsquos experience may impact on their ability to meet other minimum requirements for a supervisor certificate
556 Regulatory authorities should accept the following types of evidence against this requirement as well as any other type of evidence that satisfies it of the applicantrsquos level of experience
bull a resumeacute that outlines the applicantrsquos experience including dates of employment duties full-time or part-time basis and employerrsquos details or
bull a written reference from an employer outlining dates of employment duties full-time or part-time basis and details of their employer(s)
557 If an applicant falls short of meeting the requirement for three yearsrsquo experience (where relevant) the regulatory authority must determine the application accordingly It cannot leave the application open while the applicant gains further experience
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Conditions on supervisor certificate
National Law section 115
558 All types of supervisor certificates are subject to any conditions imposed by the National Law or the regulatory authority
559 A certified supervisor must comply with the conditions imposed on their supervisor certificate
560 All types of supervisor certificates are subject to the following conditions
bull the certified supervisor must to the extent that a matter is within their control comply with the National Law and
bull the certified supervisor must notify the regulatory authority of a change to their name or mailing address
561 The regulatory authority may impose any other condition it considers appropriate on any supervisor certificate
National Regulations regulation 47
562 For applicants without three yearsrsquo experience as an educator or an approved diploma or early childhood teaching qualification the regulatory authority may grant a supervisor certificate to an individual that is subject to the condition the person is only appointed nominated supervisor or placed in day-to-day charge of a service that primarily educates and cares for children over preschool age
Guidance for regulatory authorities
563 The National Law does not limit the type of conditions a regulatory authority may place on a supervisor certificate For example a regulatory authority may consider it appropriate to grant a supervisor certificate subject to a condition that the holder is the nominated supervisor or placed in day-to-day charge of only one particular service or a service of a particular type or size
564 The regulatory authority may impose a condition for working in a service that primarily educates and cares for children over preschool age if the applicantrsquos qualification or experience is specifically related to school age children
565 The regulatory authority may impose or vary a condition on a supervisor certificate and a certified supervisor may apply for an amendment of their supervisor certificate at any time (see Amending a supervisor certificate below)
566 See Monitoring Compliance and Enforcement ndash Conditions for more information about using conditions on a supervisor certificate
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567 If the regulatory authority grants a supervisor certificate to an individual without the required experience and qualifications it may do so subject to the condition that the holder is only the nominated supervisor or placed in day-to-day charge of a service that primarily educates and cares for children over preschool age In such cases the regulatory authority may inform the holder of the factors taken into consideration when determining whether a service primarily educates and cares for children over preschool age For example
bull the operating hours of the service ndash operating mostly or solely out of school hours may indicate the lsquomain purposersquo of the services is to educate and care for school age children
bull the percentage of children receiving education and care over preschool age ndash for example the regulatory authority may consider 60 per cent is a persuasive factor 70 per cent would be more persuasive whereas 51 per cent would be less so and
bull any service advertising ndash advertising education and care for school age children may mean the servicersquos main purpose is to provide education and care to school age children
Granting or refusing a supervisor certificate
National Law section 111
568 The regulatory authority may grant or refuse to grant a supervisor certificate to an individual
National Law section 112
569 The regulatory authority must refuse to grant a supervisor certificate to an individual if
bull it is not satisfied the applicant is fit and proper to be the supervisor of an education and care service
bull it is not satisfied the applicant meets the prescribed minimum requirements for qualifications experience and management ability or
bull the applicant is under 18 years old
National Law section 113
570 The regulatory authority must give the applicant for a supervisor certificate granted to an individual written notice of its decision including the reasons within seven calendar days after making the decision
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Providing a copy of a supervisor certificate
National Law section 116National Regulations regulation 49
571 If granted the regulatory authority must issue a certificate that includes the information set out below
Information that must be included on a supervisor certificate
Supervisor certificate ndash standard Supervisor certificate for person in a prescribed class
The name of the certified supervisor The prescribed class of person to which the certified supervisor belongs
Any conditions imposed on the supervisor certificate
The name of the service
The date the certificate was granted If applicable the name of the school that provides the service (if different from the name of the service)
The certified supervisor number Any conditions imposed on the supervisor certificate
The date the certificate was granted
The certified supervisor number
After a supervisor certificate has been granted
Publication on register of certified supervisors
National Law sections 268 270
National Regulations regulation 49 231
572 ACECQA must publish on its website a register of certified supervisors with the following information for each certified supervisor
bull the certified supervisorrsquos name or the prescribed class of person
bull the date the supervisor certificate was granted
bull the supervisor certificate number and
bull if the supervisor is in a prescribed class of persons
ndash the prescribed class to which they belong and
ndash the name of the relevant approved education and care service and
ndash if applicable the name of the school that provides the relevant education and care service
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(if different from the name of the approved education and care service)
Duration and effect of a supervisor certificate
National Law sections 105 117
573 A person who is granted a supervisor certificate is eligible to be placed in day-to-day charge of a service They may be appointed the nominated supervisor for the service or be the responsible person present at the service premises in the absence of the approved provider or nominated supervisor
574 A supervisor certificate remains in place unless suspended or cancelled by the regulatory authority (see Monitoring Compliance and Enforcement for more information) or voluntarily suspended by the holder (see Voluntary suspension of supervisor certificate below)
Guidance for regulatory authorities
575 A certified supervisor placed in day-to-day charge of the service is not the nominated supervisor and does not have the responsibilities of a nominated supervisor under the National Law
Appeals
National Law sections 190 192
576 All decisions in relation to determining an application for a supervisor certificate are reviewable See Reviews
Amending a supervisor certificate
Reassessing fitness and propriety
National Law section 118
577 The regulatory authority may reassess a certified supervisorrsquos fitness and propriety at any time The requirements set out above under Fitness and propriety apply to the reassessment
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Amending a supervisor certificate on application
National Law section 119 WA
National Regulations regulation 51
578 A certified supervisor may apply in writing to the regulatory authority for an amendment of the supervisor certificate The application must include payment of the prescribed fee (see Fees)
579 The application for amendment must include details of the amendment applied for and the certified supervisorrsquos
bull full name and where relevant the class of prescribed persons
bull supervisor certificate number and
bull contact details
580 The regulatory authority must determine the application within 30 calendar days after it is received It must decide to
bull amend the supervisor certificate in the way applied for
bull amend the supervisor certificate in another way with the applicantrsquos written agreement or
bull refuse to amend the supervisor certificate
581 Amendment may include but is not limited to varying a condition or imposing a new condition on the supervisor certificate
Guidance for regulatory authorities
582 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
583 The regulatory authority should inform the person of its decision including the date any amendment takes effect If the supervisor certificate is amended the regulatory authority should give the holder a revised copy
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Incomplete applications
584 If an application does not include all the prescribed information the regulatory authority may treat the application as invalid The statutory timeframe for processing an application does not begin until an application is complete and therefore valid The regulatory authority should contact the applicant to request missing information
585 Generally regulatory authorities should not complete applications on behalf of applicants using information held on file as this information could be out of date In addition procedural fairness issues could arise if the regulatory authority takes information into account without the knowledge of the applicant
586 To fulfil their record keeping responsibilities regulatory authorities should retain records of incomplete applications The National Law does not specify how much time applicants have to provide missing or extra information requested by a regulatory authority Regulatory authorities should set reasonable timeframes for applicants to supply this information taking into consideration
bull the amount and complexity of the information requested
bull the applicantrsquos capacity to provide information in that timeframe and
bull whether a timeframe applies to when the applicant must submit the application
587 If an applicant does not supply the information requested by the regulatory authority a record of the incomplete application must be retained The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265)
Notice of change of circumstances or information
National Law sections 121ndash122
588 A certified supervisor must notify the regulatory authority within seven calendar days of
bull any changes in circumstances that affects their fitness and propriety to supervise a service
bull any change in circumstances relevant to the information specified on their supervisor certificate (nameprescribed class of persons conditions)
bull the suspension or cancellation of their working with children check or card or teacher registration or
bull any disciplinary proceedings in relation to them under any state or territory education law
589 If the certified supervisor notifies the regulatory authority of a change to information shown on their supervisor certificate the regulatory authority may amend the certificate to show the correct information
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Guidance for regulatory authorities
590 If notified of any matter that may affect the certified supervisorrsquos fitness and propriety the regulatory authority should consider whether it is appropriate to amend suspend or cancel the supervisor certificate (see Monitoring Compliance and Enforcement)
591 Suspension or cancellation of a working with children check or teacher registration results in automatic suspension or cancellation of the personrsquos supervisor certificate (See Monitoring Compliance and Enforcement)
Amending a supervisor certificate without application
National Law section 120
592 The regulatory authority may at any time amend a supervisor certificate Amendment may include but is not limited to varying a condition or imposing a new condition on the supervisor certificate
593 The regulatory authority must give the certified supervisor written notice of the amendment An amendment by the regulatory authority has effect 14 calendar days after the regulatory authority notifies the person or at the end of another period specified by the regulatory authority
Automatic suspension or cancellation of supervisor certificates
National Law section 128
594 Some circumstances result in automatic suspension or cancellation of a supervisor certificate
595 If a personrsquos working with children card is suspended their supervisor certificate is immediately suspended If their working with children card is cancelled their supervisor certificate is immediately cancelled
596 If a personrsquos teacher registration is suspended their supervisor certificate is suspended effective from 14 calendar days after the suspension of their teacher registration unless the regulatory authority has assessed the person as being fit and proper to supervise a service Otherwise the supervisor certificate is suspended until the regulatory authority has assessed the person as fit and proper
597 If a personrsquos teacher registration is cancelled their supervisor certificate is also cancelled effective from 14 calendar days after their registration was cancelled unless the regulatory authority has assessed the person as fit and proper to supervise a service
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Guidance for regulatory authorities
598 A certified supervisor must notify the regulatory authority within seven calendar days if their teacher registration or working with children check or card is suspended or cancelled (See Leadership and service management) Section 173 of the National Law also makes it an offence for an approved provider to fail to notify the regulatory authority if they are notified of the suspension or cancellation of a working with children card or teacher registration or disciplinary proceedings under any state or territory education law in relation to a nominated supervisor or certified supervisor at their service The regulatory authority may also become aware of a suspension or cancellation by other means for example from an agency that administers working with children checks
599 The regulatory authority does not need to complete any form or process to give effect to the automatic suspension or cancellation but should ensure the NQA IT System is current and notify the approved provider
Voluntary suspension or surrender of a supervisor certificate
Voluntary suspension
National Law section 129 WA
National Regulations regulation 53
5100 A certified supervisor may apply in writing to the regulatory authority for a suspension of their supervisor certificate for up to 12 months The application must include payment of the prescribed fee (see Fees) and the prescribed information (see Application checklists ndashTable XVI)
5101 The regulatory authority must decide whether to grant the application within 30 calendar days after application is made
5102 If the regulatory authority is satisfied the suspension is reasonable given the circumstances it may by written notice agree to the suspension The suspension takes effect on a date agreed by the regulatory authority and the certified supervisor
Guidance for regulatory authorities
5103 There is currently no prescribed application fee however regulatory authority staff should check the National Regulations for changes
5104 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
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6 Application checklists
Table I
Information that must be included in an application for provider approval made by an individual (regulation 14)
(Note The WA Regulatory Authority may not require all of the below information for an application for provider approval)
n The applicantrsquos full name and any former or other name the applicant may be known by
n The applicantrsquos residential address and contact details
n The applicantrsquos date and place of birth
n Proof of the applicantrsquos identity
n A previous service statement made by the applicant (see Glossary)
n Except for applications to the NSW or Queensland regulatory authorities if the participating jurisdiction has a working with children law
a if held by the applicant a copy of their current working with children card or check or
b if the applicant is a teacher registered under an education law of that jurisdiction proof of the current registration under that law
For applications to the NSW Regulatory Authority the applicantrsquos working with children clearance number or a copy of the applicantrsquos current working with children card or check
For applications to the Queensland Regulatory Authority a copy of the applicantrsquos current working with children card or check
For applications to the Tasmanian Regulatory Authority a copy of the applicantrsquos safety screening clearance or working with vulnerable people registration
n Except for applications to the Queensland Regulatory Authority
a a copy of the applicantrsquos current working with vulnerable people check or
b a criminal history record check issued not more than six months before the date of the application and a criminal history statement in relation to the period after the date on which the check was issued to the date of the application
n If the applicant lived and worked outside Australia at any time within the previous three years an overseas criminal history statement made by the applicant
n A disciplinary proceedings statement made by the applicant
n A bankruptcy declaration made by the applicant
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Table II
Information that must be included in an application for provider approval made by a person other than an individual (for example an association or corporation) (regulation 15)
(Note The WA Regulatory Authority may not require all of the below information for an application for provider approval)
n The applicantrsquos name and any trading or other name used by the applicant
n The applicantrsquos street address and postal address or if there is more than one address the street address and postal address of the applicantrsquos principal office
n The name and contact details of the contact person for the purposes of the application
n Documentary evidence of the legal status of the applicant and its constitution (for example the partnership agreement for a partnership)
n A financial declaration regarding the applicant
n For each individual who will be a person with management or control of an education and care service to be operated by the applicant the information set out in Table I ndash Information that must be included in an application for provider approval made by an individual
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Table III
Information that must be included in an application for provider approval by an executor who is an individual (regulation 20)
(Note The WA Regulatory Authority may not require all of the below information for an application for provider approval)
n The applicantrsquos full name and any former or other name the applicant may be known by
n The applicantrsquos residential address and contact details
n The applicantrsquos date and place of birth
n
n
n
n
n
In relation to the current (deceased) approved provider
a their full name
b provider approval number
c the date of their death
d a copy of the death certificate or other evidence of their death
n The proposed duration of the provider approval (cannot exceed six months)
n Proof of the applicantrsquos identity
n Except for applications to the NSW or Queensland regulatory authorities if the participating jurisdiction has a working with children law
a if held by the applicant a copy of their current working with children card or check or
b if the applicant is a teacher registered under an education law of that jurisdiction proof of the current registration under that law
For applications to the NSW Regulatory Authority the applicantrsquos working with children clearance number or a copy of the applicantrsquos current working with children card or check
For applications to the Queensland Regulatory Authority a copy of the applicantrsquos current working with children card or check
For applications to the Tasmanian Regulatory Authority a copy of the applicantrsquos safety screening clearance or working with vulnerable people registration
n Except for applications to the Queensland Regulatory Authority
a a copy of the applicantrsquos current working with vulnerable people check or
b a criminal history record check issued not more than six months before the date of the application and a criminal history statement in relation to the period after the date on which the check was issued to the date of the application
n If the applicant lived and worked outside Australia at any time within the previous three years an overseas criminal history statement made by the applicant
n A disciplinary proceedings statement made by the applicant
n A bankruptcy declaration made by the applicant
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Table IV
Information which must be included in an application for provider approval by an executor who is not an individual (eg an association or corporation) (regulation 21)
(Note The WA Regulatory Authority may not require all of the below information for an application for provider approval)
n The applicantrsquos name and any other trading or other name they use
n The applicantrsquos street and postal address or if there is more than one address the street and postal address of their principal office
n The name and contact details for the purpose of the application
n
n
n
n
n
In relation to the deceased approved provider
a their full name
b provider approval number
c the date of their death
d a copy of the death certificate or other evidence of their death
n The proposed duration of the provider approval (cannot exceed six months) documentary evidence of the legal status of the applicants and its constitution (for example the partnership agreement for a partnership)
n A financial declaration regarding the applicant
n For each individual who will be a person with management or control of an education and care service to be operated by the applicant the information set out in Table I ndash Information that must be included in an application for provider approval made by an individual
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Table V
Information which must be included in an application for provider approval by a legal personal representative or guardian who is an individual (regulation 22)
(Note The WA Regulatory Authority may not require all of the below information for an application for provider approval)
n The applicantrsquos full name and any former or other name the applicant may be known by
n The applicantrsquos residential address and contact details
n The applicantrsquos date and place of birth
n The current approved providerrsquos full name and provider approval number
n The proposed duration of the provider approval (cannot exceed six months)
n Proof of the applicantrsquos identity
n Except for applications to the NSW or Queensland regulatory authorities if the participating jurisdiction has a working with children law
a if held by the applicant a copy of their current working with children card or check or
b if the applicant is a teacher registered under an education law of that jurisdiction proof of the current registration under that law
For applications to the NSW Regulatory Authority the applicantrsquos working with children clearance number or a copy of the applicantrsquos current working with children card or check
For applications to the Queensland Regulatory Authority a copy of the applicantrsquos current working with children card or check
For applications to the Tasmanian Regulatory Authority a copy of the applicantrsquos safety screening clearance working with vulnerable people registration
n Except for applications to the Queensland Regulatory Authority
a a copy of the applicantrsquos current working with vulnerable people check or
b a criminal history record check issued not more than six months before the date of the application and a criminal history statement in relation to the period after the date on which the check was issued to the date of the application
n If the applicant lived and worked outside Australia at any time within the previous three years an overseas criminal history statement made by the applicant
n A disciplinary proceedings statement made by the applicant
n A bankruptcy declaration made by the applicant
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Table VI
Information which must be included in an application for provider approval by a legal personal representative or guardian who is not an individual (for example a corporation or association) (regulation 23)
(Note The WA Regulatory Authority may not require all of the below information for an application for provider approval)
n The applicantrsquos name and any other trading or other name they use
n The applicantrsquos street and postal address or if there is more than one address the street and postal address of their principal office
n The name and contact details for the purpose of the application
n The current approved providerrsquos full name and provider approval number
n The proposed duration of the provider approval (cannot exceed six months)
n Documentary evidence of the legal status of the applicant and its constitution (for example the partnership agreement for a partnership)
n A financial declaration regarding the applicant
n The prescribed information set out at Table V above for each individual who will be a person with management or control
Table VII
Information which must be included in an application to suspend provider approval (regulation 19)
(Note The WA Regulatory Authority may not require all of the below information for an application to suspend a provider approval)
n The approved providerrsquos full name
n Their provider approval number
n The name and contact details of the contact person for the application
n The reasons for the suspension
n The date on which the suspension is proposed to take effect and the duration of the suspension
n What is intended to happen to each service operated by the approved provider during the proposed suspension
n A statement indicating that the approved provider has notified parents of children enrolled at their services of their intention to apply for a voluntary suspension
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Table VIII
Information that must be included in an application for service approval ndash centre-based service (regulations 24 25)
(Note The WA Regulatory Authority may not require all of the below information for an application for service approval)
n The applicantrsquos full name and provider approval number (or the applicants contact details if the applicant has applied for a provider approval but the application has not yet been determined)
n The name of the proposed education and care service
n The proposed date on which the education and care service will start operating
n If known the contact details for the proposed service including an after-hours telephone number
n The proposed ages of children to be educated and cared for by the service
n The proposed maximum number of children
n The proposed hours and days of operations
n A description of the nature of the service
n The details of any associated children service for which approval is sought
n A statement that the applicant has prepared the required policies and procedures as required by regulation 168 see Operational Requirements
n In relation to the person who will be the nominated supervisor for the service
a their full name and contact details including an after-hours telephone number
b their supervisor certificate number (not required if the approved provider will be the nominated supervisor and their application for a supervisor certificate has not yet been determined)
c their written consent to being the nominated supervisor for the service
n The location and street address of the proposed service premises
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Table VIII
Information that must be included in an application for service approval ndash centre-based service (regulations 24 25)
n Plans prepared by a building practitioner of the proposed service premises that show
a the location of all buildings structures outdoor play areas and shaded areas
b the location of all entries and exits
c the location of all fences and gates and specifying the type of fence or gate used or to be used
d the location of toilet and washing facilities nappy changing areas and any food preparation areas
e the boundaries of the premises
f the landscape of (or landscaping plans for) outdoor spaces that will be used by the service specifying the natural environments that are (or will be) provided
g a floor plan indicating unencumbered indoor and outdoor spaces suitable for children
h the location of any associated childrenrsquos service
i calculations carried out by a building practitioner relating to unencumbered indoor and outdoor space (as set out in regulations 107ndash108)
j the elevation plans of the premises
n If a swimming pool or other water hazard is situated on the proposed service premises a copy of the servicersquos water safety policy
n One of the following
a a soil assessment for the site of the proposed service premises
b if relevant a statement specifying the date of a previous a soil assessment
c a statement from the applicant that to the best of their knowledge the site history does not indicate the site is likely to be contaminated in a way that poses an unacceptable risk to the health of children
n If a planning permit is required under the state or territory planning and development law a copy of the planning permit for the proposed service premises
n A statement that the applicant has the right to occupy and use the premises and any document evidencing this for example a lease of the premises
n Unless the service premises is a government or registered school one of the following
a a copy of an occupancy permit certificate of final inspection building certificate certificate of classification or building surveyorrsquos statement for the final construction and fit-out of the service premises
b a statement from a building practitioner that the service premises complies with the building requirements under state or territory building law or planning development law
Regulatory authorities may waive this requirement if the approved provider is seeking ndash to relocate the education and care service to alternative premises for not more than 12 months or ndash to locate the education and care service on a school site
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Table IX
Information that must be included in an application for service approval ndash family day care service (regulation 26)
(Note The WA Regulatory Authority may not require all of the below information for an application for service approval ndash family day care service)
n The applicantrsquos full name and provider approval number (or the applicants contact details if the applicant has applied for a provider approval but the application has not yet been determined)
n The name of the proposed service
n The proposed date the service will start operating
n If known the contact details for the proposed principal office of the service including an after-hours telephone number
n The proposed hours and days of operation including whether the service proposed to engage or register family day care educators who will provide overnight or weekend care
n The proposed location and street address of the principal office of the service
n The proposed number of family day care educators to be engaged by or register with the service within six months of operating
n The states and territories and proposed local government areas where family day care educators expected to be engaged or registered with the service will provide education and care
n The proposed number of family day care coordinators expected to be engaged by the service within six months of operating
n A statement that the applicant has prepared the required policies and procedures (as required by regulation 168 see Operational Requirements)
n A copy of the proposed policies and procedures for (required by regulation 169)
a assessment and approval and reassessment of approved family day care venues and residences including the requirements in regulation 116
b engagement or registration of family day care educators
c keeping a register of family day care educators
d monitoring support and supervision of family day care educators including how the service will manage educators at remote locations
e assessment of family day care educators family day care educator assistants and persons residing at family day care residences including the requirements in regulation 163
f visitors to family day care residences and venues while education and care is provided to children
g provision of information assistance and training to family day care educators
h engagement or registration of family day care educator assistants
n If the service will permit a family day care residence or venue with a swimming pool or a water hazard a copy of a proposed water safety policy for the service (Note swimming pools are prohibited in Tasmania for all education and care services)
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Table IX
Information that must be included in an application for service approval ndash family day care service (regulation 26)
n In relation to the person who will be the nominated supervisor for the service
their full name and contact details including an after-hours telephone number
their supervisor certificate number (not required if the approved provider will be the nominated supervisor and their application for a supervisor certificate has not yet been determined) and
their written consent to being the nominated supervisor for the service
Table X
Information that must be included in notification of transfer of service approval (regulations 36 37)
(Note The WA Regulatory Authority may not require all of the below information for an application to transfer a service approval)
n Name of the education and care service
n Service approval number
n Transferring approved providerrsquos name contact details and provider approval number
n Receiving approved providerrsquos name contact details and provider approval number
n Date the transfer is intended to take effect
n Any proposed changes in relation to the information required to be included in an application for service approval (see Table VIII for centre-based services and Table IX for family day care services)
Table XI
Information that must be included in an application for voluntary suspension of service approval (regulation 40)
(Note The WA Regulatory Authority may not require all of the below information for an application for voluntary suspension of service approval)
n Name of the service
n Service approval number
n Name and contact details of the contact person for the application
n Reasons for the suspension
n Date on which the suspension is proposed to take effect and the duration and
n A statement indicating that the approved provider notified parents of children enrolled at the service (and any associated childrenrsquos service) of their intention to apply for a suspension at least 14 days before making the application
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Table XII
Information that must be included in an application for a service waiver (regulation 42)
(Note The WA Regulatory Authority may not require all of the below information for an application for a service waiver)
n Name of the education and care service
n Service approval number
n Name and contact details for the contact person for the application
n A statement that specifies
a the elements of the NQS andor the regulations for which the service waiver is sought and
b the way in which the service does not or will not comply with the specified elements andor regulations
n Reasons the service is unable to comply and details and evidence of any attempts made to comply with the specified elements andor regulations or any other reasons why the service seeks the waiver
n Measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service while the waiver is in force
Table XIII
Information that must in included in an application for a temporary waiver (regulation 45)
(Note The WA Regulatory Authority may not require all of the below information for an application for a temporary waiver)
n Name of the education and care service
n Service approval number
n Name and contact details for the contact person for the application
n A statement that specifies
a the elements of the NQS andor the regulations for which the service waiver is sought and
b the way in which the service does not or will not comply with the specified elements andor regulations
n Reasons the service is unable to comply and details and evidence of any attempts made to comply with the specified elements andor regulations
n Period for which the temporary waiver is sought (up to 12 months)
n Details of steps being taken or that will be taken to comply with the elements andor regulations
n Measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service while the waiver is in force
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Table XIV
Information that must be included in an application for a supervisor certificate by a person who is not an approved provider or person with management or control (regulation 46)
(Note The WA Regulatory Authority may not require all of the below information for an application for a supervisor certificate)
n The applicantrsquos full name and any former name or other name the applicant may be known by
n The applicantrsquos residential address and contact details
n Proof of identity (proof of identity must demonstrate the applicant is at least 18 years old)
n Details of the applicantrsquos relevant skills experience training and qualifications including evidence of their training and qualifications and how they meet the prescribed minimum requirements set out in regulation 47
n Except for applications to the NSW Queensland or Tasmanian regulatory authorities
a if the applicant has a working with children check or card or a working with vulnerable people check a copy of the check or card or
b if the applicant is a registered teacher in any state or territory proof of their current registration or
c in any other case
ndash a criminal history record check issued not more than six months before the date of application
ndash a criminal history statement made by the applicant in relation to the period from when the criminal history record check was issued and the date of application
ndash an overseas criminal history statement about the applicant if they lived and worked outside Australia in the last three years and
ndash a disciplinary proceedings statement about the applicant
For applications to the NSW Regulatory Authority the applicantrsquos working with children clearance number or a copy of the applicantrsquos current working with children card or check
For applications to the Queensland Regulatory Authority a copy of the applicantrsquos current working with children card or check
For applications to the Tasmanian Regulatory Authority a copy of the applicantrsquos safety screening clearance or working with vulnerable people registration
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Last updated April 2017 Application checklists Applications and Approvals 135
Table XV
Information that must be included in an application for a supervisor certificate by an approved provider or person with management or control (regulation 46)
(Note The WA Regulatory Authority may not require all of the below information for an application for a supervisor certificate for a person with management or control)
n The applicantrsquos full name
n The applicantrsquos provider approval number
n The applicantrsquos contact details
n Proof that the applicant is at least 18 years old
n Details of the applicantrsquos relevant skills experience training and qualifications including evidence of their training and qualifications and how they meet the prescribed minimum requirements set out in regulation 47
Table XVI
Information that must be included in an application for voluntary suspension of a supervisor certificate (regulation 53)
(Note The WA Regulatory Authority may not require all of the below information for an application for voluntary suspension of a supervisor certificate)
n The certified supervisorrsquos full name
n If the person belongs to a prescribed class of persons under regulation 49 the class and the details of the service where the person holds the position in that class
n The supervisor certificate number
n Contact details
n Reasons for the suspension
n The date the proposed suspension is to take effect and the duration of the suspension
136 Applications and Approvals Last updated April 2017
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Last updated April 2017 Operational Requirements 137
DOperational Requirements
The purpose of this manual is to assist authorised officers and other staff of regulatory authorities to apply the Education and Care Services National Law (National Law) and the Education and Care Services National Regulations (National Regulations) The manual is not legal advice The manual should always be read with the National Law and Regulations The National Law and Regulations take precedence over any guidance in the manual
Contents
1 Educational program and practice 140
Educational program 140
Documenting assessments of childrenrsquos learning 141
Information about educational program to be kept available 142
Educational program and practice responsibilities of the approved provider nominated supervisor and family day care educator 143
2 Childrenrsquos health and safety 144
Adequate supervision 144
Harm and hazards 145
Health hygiene and safe food practices 148
Food and beverages 149
Weekly menu 150
Sleep and rest 150
Tobacco drug and alcohol-free environment 151
Child protection 152
Incidents injury trauma and illness 152
Infectious diseases 154
First aid kits 155
Medical conditions policy 156
Administration of medication 157
Emergencies and communication 160
Telephone or other communication equipment 161
Collection of children from premises 162
Excursions 163
Childrenrsquos health and safety responsibilities of the approved provider nominated supervisor and family day care educator 166
Useful contacts 168
3 Physical environment 170
Harm and hazards 170
Outdoor space requirements 172
Swimming pools and other water hazards 173
Fencing 173
Natural environment 175
Shade 176
Premises designed to facilitate supervision 177
Indoor space requirements 178
Ventilation and natural light 179
Glass 180
Administrative space 180
Toilet and hygiene facilities 181
Nappy change facilities 183
Laundry and hygiene facilities 183
Premises furniture materials and equipment 183
Assessments of family day care residences and approved family day care venues 185
Physical environment responsibilities of the approved provider nominated supervisor and family day care educator 186
4 Staffing arrangements 187
Early childhood teacher requirements centre-based services 187
General educator qualification requirements 193
Diploma level education and care qualifications 196
Certificate III level education and care qualifications 199
Actively working towards an approved qualification 201
Educator-to-child ratios 202
138 Operational Requirements Last updated April 2017
D
Contents (continued)
Family day care educator assistant 208
Educational leader 209
Educator supervision requirements 209
First aid qualifications and training 210
Approval and determination of qualifications 212
Staff records centre-based services 213
Register of family day care educators 214
Records of family day care service staff 216
Staffing arrangements responsibilities of the approved provider nominated supervisor and family 217
5 Relationships with children 218
Inappropriate discipline 218
Interactions with children 218
Relationships in groups 219
Relationships with children responsibilities of the approved provider nominated supervisor and family day care educator 220
6 Collaborative partnerships with families and communities 221
Access for parents 221
Responsibilities of the approved provider nominated supervisor and family day care educator 222
7 Leadership and service management 223
Management of services 223
Other adults at the family day care service to be fit and proper 225
Supervising unauthorised persons 226
Record of servicersquos compliance 228
Policies and procedures 229
Information and record-keeping requirements 232
Requirement to keep enrolment and other documents 239
Confidentiality and storage of records 241
Law and Regulations to be accessible 244
Responsibilities of the approved provider nominated supervisor and family day care educator 245
8 Other regulatory frameworks 247
Interactions with other regulatory frameworks 247
Referencing other regulatory standards 248
Last updated April 2017 Operational Requirements 139
D
Requirement for which an approved provider may apply for a service or temporary waiver
A saving or transitional provision applies to the specified jurisdiction(s) or a different provision applies in WA
Requirement attaches to the approved provider
Requirement attaches to the nominated supervisor
Requirement attaches to the family day care educator
Requirement applies to centre-based services only
Requirement applies to family day care services only
A penalty attaches to the requirement
Legend
DD
140 Operational Requirements Educational program and practice Last updated April 2017
1 Educational program and practice
Educational program
National Law section 168 WA
11 The approved provider and nominated supervisor of an approved service must ensure that a program is delivered to all children being educated and cared for by the service that
bull is based on an approved learning framework
bull is delivered in accordance with that approved learning framework
bull is based on the developmental needs interests and experiences of each child and
bull is designed to take into account the individual differences of each child
National Regulations regulation 73
12 An educational program is to contribute to the following outcomes for each child
bull the child will have a strong sense of identity
bull the child will be connected with and contribute to his or her world
bull the child will have a strong sense of wellbeing
bull the child will be a confident and involved learner and
bull the child will be an effective communicator
National Regulations regulation 254
13 There are two national declared approved learning frameworks
bull Belonging Being and Becoming ndash The Early Years Learning Framework for Australia and
bull My Time Our Place ndash Framework for School Age Care in Australia
14 There are also declared approved learning frameworks specific to certain jurisdictions
bull Australian Capital Territory Every Chance to Learn ndash Curriculum Framework for ACT Schools Preschool to Year 10 (approved until 31 December 2015)
bull Victoria Victorian Early Years Learning and Development Framework Department of Education and Victorian Curriculum and Assessment Authority
bull Western Australia Curriculum Framework for Kindergarten to Year 12 Education in Western Australia and
bull Tasmania Tasmanian Curriculum Department of Education of Tasmania 2008
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Last updated April 2017 Educational program and practice Operational Requirements 141
Guidance for regulatory authorities
15 The national declared approved learning frameworks apply in all jurisdictions However jurisdiction-specific declared approved learning frameworks apply only in the relevant jurisdiction This means an approved provider of an approved service in the Northern Territory would not be complying with section 168 of the National Law by ensuring an educational program based on the Western Australian curriculum framework is delivered at the service However the approved provider of a service in Victoria that educates and cares for children of preschool age or under may base the program on either the Early Years Learning Framework or the Victorian Early Years Learning and Development Framework
16 The ages of children who attend an education and care service should determine which of the two national approved learning frameworks is used rather than the service type or setting
17 If children preschool age or under and children over preschool age regularly attend a service educators are expected to use both frameworks as the basis for the educational program This does not necessarily require that separate activities or programs be offered rather that consideration is given to the features of the frameworks in the implementation of the educational program
18 For example if one or more preschool age children regularly attend a service for school age children the approved provider and nominated supervisor must ensure the Early Years Learning Framework or relevant parts of a jurisdiction-specific approved learning framework form the foundation for the interactions and environments provided for those children and their families
19 Where a family day educator is registered with a service in one jurisdiction but operates in another the approved framework(s) of the jurisdiction in which the education and care is provided to children applies
Documenting assessments of childrenrsquos learning
National Regulations regulation 74
110 Assessment or evaluation documentation must be kept for each child
111 For children who are preschool age or under this documentation must include
bull assessments of the childrsquos developmental needs interests experiences and participation in the educational program and
bull assessments of the childrsquos progress against the outcomes of the educational program
112 For children who are over preschool age this documentation must include
bull evaluations of the childrsquos wellbeing development and learning
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142 Operational Requirements Educational program and practice Last updated April 2017
113 In preparing the documentation the approved provider must
bull consider the period of time that the child is being educated and cared for by the service and
bull consider how the documentation will be used by the educators at the service and
bull prepare the documentation in a way that is readily understandable by the educators at the service and the parents of the child
Guidance for regulatory authorities
114 There is no prescribed method in the National Law or National Regulations for documenting assessment of childrenrsquos learning Assessment of childrenrsquos learning may be documented in portfolios learning journals or another format If concerned about the appropriateness of documentation authorised officers may discuss with the approved provider how they decided what form of documentation was appropriate and how they have made sure the documentation is readily understandable
Information for services
115 The national declared approved learning frameworks outline assessment as a process used by educators to gather information about what children know understand and can do Authorised officers may talk to the approved provider about how educators use this information to plan for each childrsquos learning Educators can also use assessment information to reflect on their own values beliefs and teaching practices and to communicate about childrenrsquos learning with children and their families Authorised officers may talk to the approved provider about the value of involving children in documenting their own development and learning
Information about educational program to be kept available
National Regulations regulation 75
116 Information about the contents and operation of the educational program for the service must be displayed at the education and care service premises at a place that is accessible to parents
117 A copy of the educational program must be available at the following places for inspection on request
bull for a centre-based service at the education and care service premises and
bull for a family day care service at each family day care residence or venue
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Last updated April 2017 Educational program and practice Operational Requirements 143
National Regulations regulation 76
118 The following information must be given to the parent of a child on request
bull information about the content and operation of the educational program as it relates to that child
bull information about that childrsquos participation in the program and
bull a copy of assessments or evaluations in relation to that child
Guidance for regulatory authorities
119 The contents of the educational program are the learning areas covered by the program The operation of the educational program is the methods by which the program is delivered to children
Educational program and practice responsibilities of the approved provider nominated supervisor and family day care educator
Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Educational program to be delivered (section 168 regulation 73)
3 3 3
Record of child assessments or evaluations for delivery of educational program (regulation 74)
3 3 3
Information about educational program to be kept available (regulation 75)
3 3 3
Information about educational program to be given to parents (regulation 76)
3 3 3
Waivers do not apply to any of these requirements
D
144 Operational Requirements Childrenrsquos health and safety Last updated April 2017
D
2 Childrenrsquos health and safety
Adequate supervision
National Law section 165
21 The approved provider nominated supervisor and family day care educator must ensure all children being educated and cared for by the service are adequately supervised at all times
Guidance for regulatory authorities
NOTE The following paragraphs are intended to assist authorised officers develop an understanding of what constitutes lsquoadequate supervisionrsquo They are not intended to provide a definitive description of adequate supervision
22 Educator-to-child ratios alone do not constitute adequate supervision Adequate supervision means that an educator can respond immediately particularly when a child is distressed or in a hazardous situation It requires active involvement with children It is not the intention of this requirement that educators lsquostand back and watchrsquo Adequate supervision means knowing where children are at all times and monitoring their activities actively and diligently
23 Children of different ages and abilities need different levels of supervision In general the younger the children are the more they need an adult close by to support and help them
24 For example in a service with young children adequate supervision may mean that the children remain in close proximity to the adult who is supervising them For children over preschool age educators should know where each child is and be in a position to respond if necessary
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 145
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25 When considering the adequacy of supervision authorised officers may consider the factors set out below
Factors affecting adequate supervision
Number ages and abilities of children
Number and positioning of educators
Each childrsquos current activity
Areas where children are playing in particular their visibility and accessibility
Risks in the environment and experiences provided to children
The educatorsrsquo knowledge of each child and each group of children
The experience knowledge and skill of each educator
Information for services
26 An authorised officer may discuss with the approved provider or nominated supervisor the importance of teamwork and good communication among staff for ensuring adequate supervision For example educators should let their colleagues know if they need to leave the area for any reason such as to get a resource from another area or to use the bathroom The approved provider could develop a handover routine for changing shifts which may include using a diary or communication book
Harm and hazards
National Law section 167
27 Approved providers nominated supervisors and family day care educators must ensure that every reasonable precaution is taken to protect children from harm and from any hazard likely to cause injury
Guidance for regulatory authorities
NOTE The following paragraphs are intended to assist authorised officers develop an understanding of what is required by section 167 They are not intended to provide a definitive description of how to check compliance with section 167
D
146 Operational Requirements Childrenrsquos health and safety Last updated April 2017
D
28 The guidance and information below is about the application of section 167 in relation to health and safety requirements Authorised officers should be aware the requirement to take reasonable precautions to protect children from harm and hazards is relevant to every aspect of the service not just health and safety requirements
29 Authorised officers should be aware the National Law does not require all risk and challenge to be eliminated from childrenrsquos play or environments
210 When considering compliance with section 167 authorised officers should look for evidence that approved providers nominated supervisors and family day care educators have weighed the obligation to protect children from harm against the benefit of providing children with a stimulating play environment Some risks are acceptable because the benefit to childrenrsquos learning and experience outweighs the risks Considerations such as the age of the children their developmental needs and the manner in which they are being supervised may impact what is considered a hazard
211 Approved providers nominated supervisors and family day care educators should show an ongoing awareness of safety and hazards and take reasonable steps to protect against these hazards as they arise Regular riskbenefit assessments should be conducted to identify and manage potential hazards while children are being educated and cared for
212 Many factors may contribute to a hazard such as a poor program inadequate supervision and worn equipment Approved providers nominated supervisors and family day care educators should develop implement and monitor procedures for identifying mitigating and where necessary preventing hazards For example authorised officers may see the types of precautions outlined below being taken at the education and care service as evidence of meeting this requirement
Preventing harm and hazards
Daily safety checks of the environment and equipment
Secure storage of hazardous products including chemicals
An equipment maintenance schedule
Risk assessments particularly for excursions
If staff consume hot drinks they are made and consumed away from children
Equipment that meets Australian Standards ndash for example cots and playground equipment and surfacing and safety plugs in unused electrical outlets
Staff have current working with children checks or equivalent
Staff are given information andor training about child protection law and any obligations they have under that law
Firearms and ammunition are stored securely and separately from each other
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 147
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213 If an authorised officer has concerns about the safety of the environment in which children are educated and cared for they should examine policies and procedures required by regulation 168 In particular regulations 168(2)(a) and 168(2)(h) require the provider of an education and care service to ensure they have policies and procedures in relation to health and safety and providing a child safe environment
Firearms in family day care services
214 Some family day care residences or venues may have firearms on the premises particularly in rural areas Firearms are regulated at the state and territory level under a uniform national approach which covers licensing permits and safe storage Each state and territory has their own firearms registry administered by their police force
215 Authorised officers visiting an FDC residence or venue should sight the following to ensure the health safety and wellbeing of children
bull the firearms licencebull that firearms and ammunition are securely stored separately from each otherbull that the firearm is inaccessible to children
216 Further information on the regulation of firearms is available from the state or territory police force and the National Firearms Safety Code produced by the Commonwealth Attorney-Generalrsquos Department
217 Authorised officers may refer approved providers to their state or territory police force for more information about responsibilities in relation to firearms
Information for services
218 The National Law and Regulations do not prescribe the use of any particular guidelines or standards in relation to child safety Safety measures should align with advice from recognised authorities such as Standards Australia and with local government state and territory compliance agencies
219 Authorised officers may point providers to resources such as Kidsafe for information on how to help keep children safe (wwwkidsafecomau) For guidance about ensuring a child safe environment authorised officers may suggest providers contact the child protection authority in their state or territory for best practice information ndash see the list of contacts at the send of the Childrenrsquos health and safety section
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148 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Health hygiene and safe food practices
National Regulations regulation 77
220 The approved provider of an education and care service must ensure that the nominated supervisor staff members and volunteers at the service implement adequate health and hygiene practices and safe practices for handling preparing and storing food
221 The nominated supervisor of an education and care service must implement and ensure that all staff members and volunteers implement adequate health and hygiene practices and safe practices for handling preparing and storing food
222 A family day care educator must implement adequate health and hygiene practices and safe practices for handling preparing and storing food
223 The approved provider must ensure policies and procedures are in place in relation to health and safety (regulation 168)
Guidance for regulatory authorities
224 Authorised officers should observe whether staff and volunteers at the service implement adequate health hygiene and safe food practices This may include appropriate practices in relation to hand washing toileting nappy changing cleaning equipment and storing and reheating food
225 Where there are concerns about the adequacy of practices implemented by staff authorised officers may examine the policies and procedures in relation to health hygiene and food safety practices as required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement They may also discuss strategies that are in place at the service to ensure practices are adequate and consistently implemented
226 Authorised officers are not responsible for checking compliance with food safety legislation However authorised officers should be aware that other rules apply to approved providers in relation to food safety including the Food Safety Standards developed by Food Standards Australia and New Zealand (FSANZ) (available at wwwfoodstandardsgovau) Food safety legislation for all states and territories references the Food Safety Standards and details the responsibilities of food handlers Food authorities in each state or territory monitor compliance with the Food Safety Standards Food authorities in some jurisdictions also require providers that supply food and beverages to register as a food business Contact details for food authorities in each state and territory are provided at the end of the Childrenrsquos health and safety section
Information for services
227 The National Law and Regulations do not prescribe the use of any particular guidelines or standards in relation to health hygiene and food safety practices Authorised officers may suggest resources about best practice in relation to health hygiene and food safety
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 149
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228 For example the National Health and Medical Research Council (NHMRC) publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest edition available at wwwnhmrcgovau) provides advice about health hygiene and food safety practices and has been developed specifically for people working in education and care services
229 Authorised officers may alert approved providers to the requirements of the Building Code of Australia about kitchen facilities Authorised officers should be aware that facilities may have complied with a former building code depending on when they were constructed
Food and beverages
National Regulations regulation 78
230 The approved provider nominated supervisor and family day care educator must ensure that children have access to safe drinking water at all times and are offered food and beverages on a regular basis throughout the day The approved provider must ensure that the food and beverages offered are appropriate to the needs of each child
National Regulations regulation 79
231 If food or beverages are provided at the service the food or beverage must be nutritious and adequate in quantity and take into account dietary requirements appropriate to each childrsquos growth and development needs and any specific cultural religious or health requirements This does not apply to food and beverages provided by a family for their child
232 The approved provider must ensure policies and procedures are in place in relation to health and safety including nutrition food and beverages and dietary requirements (regulation 168)
Guidance for regulatory authorities
233 Authorised officers should be aware that the National Law and Regulations do not prescribe the use of any particular guidelines or standards in relation to food and beverages
234 If an authorised officer has concerns about the appropriateness of food and beverages provided by a service they may examine the policies and procedures about nutrition food and beverages and dietary requirements required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement
Information for services
235 If educators or approved providers are seeking advice about diet and nutrition for children authorised officers may refer them to the Dietary Guidelines for Children and Adolescents in Australia (available at wwwnhmrcgovau) the Get Up amp Grow Healthy eating and physical activity for early childhood resources (available at wwwhealthgovau) andor the Physical Activity and Nutrition Outside School Hours (available at wwwhealthqldgovau) if they are seeking advice about diet and nutrition for children
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150 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Weekly menu
National Regulations regulation 80
236 The approved provider nominated supervisor and family day care educator must ensure that where the service provides food and beverages (other than water) a weekly menu that accurately describes the food and beverages to be provided by the service each day is displayed at a place that is accessible to parents
Information for services
237 The menu should include sufficient detail to inform parents about what food and beverages will be offered
Sleep and rest
National Regulations regulation 81
238 The approved provider nominated supervisor and family day care educator must take reasonable steps to ensure childrenrsquos needs for sleep and rest are met having regard to each childrsquos age development stages and needs
Guidance for regulatory authorities
239 Planned lsquorest periodsrsquo for young children are often implemented at services however routines and the physical environment should also be flexible enough to support children who do not require a sleep and those who seek rest and relaxation throughout the day When looking at whether reasonable steps have been taken to ensure childrenrsquos needs for sleep and rest are met authorised officers may look for indications that sleepy children are offered an opportunity to rest whether by sleeping or just sitting quietly Similarly where a planned rest period is implemented and not all children are sleeping authorised officers may look to see if children who appear to be alert and restless are offered appropriate alternatives while others sleep
240 The requirement to take reasonable steps to ensure childrenrsquos needs for sleep and rest are met does not mean children should be required to sleep
Information for services
241 Authorised officers may refer approved providers to the SIDS and Kids website (wwwsidsandkidsorg) to access resources on safe sleeping practices
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 151
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Tobacco drug and alcohol-free environment
National Regulations regulation 82
242 The approved provider and family day care educator must ensure the environment is free from the use of tobacco illicit drugs and alcohol
National Regulations regulation 83
243 The approved provider must ensure that the nominated supervisor staff members and volunteers at the service are not affected by alcohol or drugs (including prescription medication) that may impair their capacity to supervise or provide education and care to children at the service
244 The nominated supervisor and family day care educator must not consume alcohol or be affected by alcohol or drugs (including prescription medications) that may impair their capacity to provide education and care to children at the service
Guidance for regulatory authorities
245 The requirements in this section relate to the environment while the service is operating It does not apply to the service premises or family day care residence or venue when the service is not providing education and care to children
246 The requirements about use of prescription medications do not mean that educators staff or volunteers who require prescription medication must be excluded but rather that consideration be given to whether that medication affects the personrsquos capacity to provide education and care to children
247 Any alcohol tobacco or drugs on the education and care service premises should be kept out of reach of children in accordance with the requirement to take reasonable precautions to protect children from harm and hazards (section 167)
Information for services
248 Authorised officers may talk to family day care educators about developing strategies to ensure that the educatorrsquos home is a safe place for children while recognising the rights of the educatorrsquos family For example educators may identify space outside the premises where other household members and visitors may smoke If people smoke in the family day care residence or venue when the service is not operating consideration should be given to issues such as ventilation hygiene and safe storage of items including ashtrays and cigarette lighters
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152 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Child protection
National Regulations regulation 84 NSW
249 The approved provider must ensure the nominated supervisor and staff members at the service who work with children are advised of the existence and application of the current child protection law in the relevant jurisdiction and understand their obligations under that law
250 The approved provider must ensure policies and procedures are in place in relation to providing a child safe environment (regulation 168)
Guidance for regulatory authorities
251 To check compliance with this requirement authorised officers may ask the approved provider how they ensure educators and staff are aware of the current child protection law and their responsibilities such as by attending regular refresher training or in-house workshops completing online training or by other ways Authorised officers should be aware that formal child protection training is not available in some jurisdictions so approved providers may use other methods to meet this requirement such as distributing information to staff and discussing obligations
252 Contact details for child protection services in each state and territory are provided at the end of the Childrenrsquos health and safety section
Incidents injury trauma and illness
Policies and procedures
National Regulations regulation 85
253 The incident injury trauma and illness policies and procedures of a service required under regulation 168 (see Leadership and service management) must include procedures to be followed by nominated supervisors staff members and volunteers at the service in the event that a child is injured becomes ill or suffers a trauma
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 153
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Notifying parents
National Regulations regulation 86
254 A parent must be notified as soon as practicable but not later than 24 hours after the occurrence if the child is involved in any incident injury trauma or illness while the child is being educated and cared for by the service
Records
National Regulations regulation 87
255 Approved providers and family day care educators must keep an incident injury trauma and illness record The information must be included in the record as soon as practicable but not later than 24 hours after the incident injury trauma or onset of illness
256 The incident injury trauma and illness record must be kept confidential and stored until the child is 25 years old See Leadership and service management for more information about record keeping obligations
257 The incident injury trauma and illness record must include the information set out below
Information that must be included in an incident injury trauma or illness record
Details of any incident injury trauma or illness including
bull the name and age of the child and
bull the circumstances leading to the incident injury trauma or illness and any apparent symptoms and
bull the time and date the incident injury trauma or illness occurred
Details of any action taken by the service including
bull any medication administered or first aid provided and
bull any medical personnel contacted
Details of any witnesses
The name of any person the service notified or attempted to notify and the time and date of the notifications and
The name and signature of the person making an entry in the record and the time and date that the entry was made
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154 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Guidance for regulatory authorities
258 If authorised officers are concerned about how staff respond to a child who becomes ill is injured or suffers a trauma they should examine the policies and procedures required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement They should also check the service records related to incidents illness injury or trauma for details of notifications
259 Information about the requirement to notify the regulatory authority is included in the section on Leadership and service management
Information for services
260 Incident injury trauma and illness records do not have to be written in any particular format If the approved provider or family day care educator needs guidance about how to keep these records authorised officers may refer them to the template on the ACECQA website at wwwacecqagovau They are not required to use the template
261 The authorised officer may inform the service about free health advice services such as Healthdirect Australia (wwwhealthdirectorgau) that may help staff to determine what action should be taken in the event of an incident
Infectious diseases
National Regulations regulation 88
262 The approved provider must take reasonable steps to prevent the spread of infectious diseases at the service and ensure the parent or authorised emergency contact of each child enrolled at the service is notified of the occurrence of an infectious disease as soon as practicable
263 For family day care services the approved provider need only ensure the parents of children educated and cared for at the affected residence or venue are notified
264 The approved provider must ensure policies and procedures are in place in relation to dealing with infectious diseases (regulation 168)
Guidance for regulatory authorities
265 Authorised officers with concerns about the steps taken to prevent the spread of infectious diseases should examine the policies and procedures in relation to dealing with infectious disease required under regulation 168 and discuss with educators This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 155
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Information for services
266 Authorised officers may refer approved providers to the NHMRC publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest edition available at wwwnhmrcgovau) for detailed information about infectious diseases which are required to be notified to the local public health department Staying Healthy Preventing infectious diseases in early childhood education and care services also provides information about exclusion periods for infectious diseases
267 Details for public health units in each jurisdiction are provided at the end of the Childrenrsquos health and safety section
First aid kits
National Regulations regulation 89
268 The approved provider of a centre-based service must ensure an appropriate number of first aid kits are kept having regard to the number of children being educated and cared for at the service The first aid kits must be suitably equipped and easily recognisable and readily accessible to adults having regard to the design of the service premises
269 A family day care educator must keep a suitably equipped first aid kit at the family day care residence or venue that is easily recognisable and readily accessible to adults whenever the educator is educating and caring for children
Guidance for regulatory authorities
270 When determining how many first aid kits are lsquoappropriatersquo authorised officers should consider the number of children in attendance as well as the proximity of rooms to each other The first aid kits should be sufficient in number to allow them to be readily accessed when required (for example on excursions) A first aid kit may be required in the outdoor play space if inside kit(s) are not readily accessible
271 A lsquosuitably equippedrsquo first aid kit should be fully stocked with products that have not expired
Information for services
272 If the approved provider or family day care educator requires guidance about what to include in their first aid kit authorised officers may refer them to a reputable organisation such as St John Ambulance or the Red Cross
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156 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Medical conditions policy
National Regulations regulation 90
273 The approved provider must ensure policies are in place for managing medical conditions which set out practices in relation to matters listed in the table below
Medical conditions policy content
The management of medical conditions including asthma diabetes or a diagnosis that a child is at risk of anaphylaxis
Informing the nominated supervisor staff and volunteers at the service in relation to managing medical conditions
The requirements arising if a child enrolled at the service has a specific health care need allergy or relevant medical condition including
bull requiring a parent to provide a medical management plan for the child and
bull requiring the plan to be followed in the event of an incident relating to the childrsquos specific health care need allergy or relevant medical condition and
bull requiring the development of a risk minimisation plan in consultation with the parents of a child
ndash to ensure that the risks relating to the childrsquos specific health care need allergy or relevant medical condition are assessed and minimised and
ndash if relevant that practices and procedures in relation to the safe handling preparation consumption and service of food are developed and implemented and
ndash if relevant that practices and procedures to ensure that the parents are notified of any known allergens that pose a risk to a child and strategies for minimising the risk are developed and implemented and
ndash that practices and procedures ensuring that all staff members and volunteers can identify the child the childrsquos medical management plan and the location of the childrsquos medication are developed and implemented and
ndash if relevant that practices and procedures ensuring that the child does not attend the service without medication prescribed by the childrsquos medical practitioner in relation to the childrsquos specific health care need allergy or relevant medical condition are developed and implemented and
bull requiring the development of a communications plan to ensure that
ndash relevant staff members and volunteers are informed about the medical conditions policy and the medical management plan and risk minimisation plan for the child and
ndash a childrsquos parent can communicate any changes to the medical management plan and risk minimisation plan for the child setting out how that communication can occur
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 157
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274 The medical conditions policy of the education and care service must set out practices in relation to self-administration of medication by children over preschool age if the service permits that self-administration including recording when a child notifies that they have self-administered medication
National Regulations regulation 91
275 If a child enrolled at the service has a specific health care need allergy or other relevant medical condition the parent of a child must be provided with a copy of the servicersquos medical conditions policy
Guidance for regulatory authorities
276 A lsquomedical conditionrsquo should be interpreted as meaning a condition that has been diagnosed by a registered medical practitioner The National Regulations define lsquoregistered medical practitionerrsquo as a person registered under the Health Practitioner Regulation National Law to practise in the medical profession other than as a student The Australian Health Practitioner Regulation Agency keeps national registers of practitioners on its website at wwwahpragovau
Administration of medication
National Regulations regulation 93
277 The approved provider nominated supervisor and family day care educator must ensure that medication is not administered to a child at a service unless it is authorised and administered in accordance with the requirements of regulations 95 or 96
278 Administration of medication to a child is authorised when it is recorded in the medication record for the child or when verbal authorisation is given in an emergency (see below)
Authorised administration recorded in medication record for the child
National Regulations regulation 92
279 The approved provider and family day care educator must keep a medication record for each child who has received or will receive medication administered by the service including the information set out in the table below
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158 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Medication record content
The name of the child
Authorisation to administer medication (including if applicable self-administration) signed by a parent or person named in the childrsquos enrolment record as authorised to consent to administration of medication
The name of the medication to be administered
The time and date the medication was last administered
The time and date or the circumstances under which the medication should next be administered
The dosage of the medication to be administered
The manner in which the medication is to be administered
If the medication is administered to the child
bull the dosage that was administered and
bull the manner in which the medication was administered and
bull the time and date the medication was administered and
bull the name and signature of the person who administered the medication and
bull the name and signature of the person who checked the dosage and administration (except in the case of a family day care service or service permitted to have only one educator)
Authorised administration with verbal consent
National Regulations regulation 93
280 In case of an emergency administration of medication is authorised if verbal consent is obtained from a parent or person named in the childrsquos enrolment record as authorised to consent to administration of medication If the childrsquos parent or person named in the enrolment record cannot be contacted a registered medical practitioner or medical emergency services can provide verbal consent
281 If medication is administered to a child based on verbal consent from a registered medical practitioner or medical emergency services the approved provider must ensure written notice is given to a parent or other family member as soon as practicable
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 159
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Exception to the authorisation requirement ndash anaphylaxis or asthma emergency
National Regulations regulation 94
282 Medication may be administered to a child without an authorisation in the case of an anaphylaxis or asthma emergency If this occurs the approved provider nominated supervisor or family day care educator must notify the parent of the child and emergency services as soon as practicable
Administered in accordance with regulations 95 or 96
National Regulations regulation 95
283 Medication must be administered
bull if it has been prescribed by a registered medical practitioner from its original container with the original label including the name of the child for whom it is prescribed before the expiry or use-by date or
bull from its original container with the original label and instructions and before the expiry or use-by date and
bull in accordance with any instructions attached to the medication or provided by a registered medical practitioner either verbally or in writing
284 Except in the case of a family day care service or other service that is permitted to have only one educator a second person must check the dosage of the medication and the identity of the child receiving the medication
National Regulations regulation 96
285 An approved provider may permit a child over preschool age to self-administer medication if
bull an authorisation for the child to self-administer medication is recorded in the medication record for the child and
bull the medical conditions policy of the service sets out practices in relation to self-administration of medication by children over preschool age
Guidance for regulatory authorities
286 Medication includes prescription over-the-counter and complementary medicines A service may have in place policies that restrict the types of medication that will be administered at the service
287 If an authorised officer has concerns about how medication is administered at the service they may discuss the ways in which staff are informed of procedures for administering medication including what to do in the case of an emergency
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Information for services
288 If approved providers nominated supervisors or family day care educators are unsure of how to keep the medication record authorised officers can refer them to the template medication record on the ACECQA website at wwwacecqagovau The template can be adapted to suit the circumstances at the service There is no requirement to use the template
Emergencies and communication
National Regulations regulation 97
289 Approved providers must ensure policies and procedures are in place for dealing with emergencies and evacuations The procedures must set out instructions for what must be done in the event of an emergency and an emergency and evacuation floor plan
290 A risk assessment must be conducted to identify potential emergencies relevant to the service
291 For centre-based services the approved provider must ensure that emergency and evacuation procedures are rehearsed every three months the service is operating by the staff members volunteers and children present at the service on the day of the rehearsal The responsible person on that day must also participate in the rehearsal
292 For family day care services the approved provider must ensure each family day care educator rehearses every three months the service is operating with the children present on that day
293 A copy of the emergency and evacuation floor plan and instructions must be displayed in a prominent position near each exit at the premises including a family day care residence and approved family day care venue
Guidance for regulatory authorities
294 lsquoEmergencyrsquo refers to all situations or events posing an imminent or severe risk to those present at an education and care service premises For example an emergency could include a fire flood or threat that requires a service to be locked down
295 Emergency and evacuation floor plans need only be displayed near exits which it would be practical to use in an emergency
296 Authorised officers may check compliance with the requirement to rehearse emergency and evacuation procedures every three months by checking the service records If the service has more than one emergency and evacuation procedure all procedures must be rehearsed every three months
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Information for services
297 If the approved provider needs advice about evacuation plans and emergency exits authorised officers may suggest they seek advice from their local fire brigade or emergency services authority
298 Emergency and evacuation procedure rehearsals should take place at various times of the day and week to ensure that everyone at the service gets the opportunity to rehearse
299 Rehearsals may be documented on a proforma or noted in a diary or communications book Authorised officers may explain to the approved provider that documenting the rehearsal allows the service to reflect on its procedures and identify necessary adjustments Records can show who has been involved in emergency rehearsals to help ensure everyone participates regularly
Telephone or other communication equipment
National regulations regulation 98
2100 The nominated supervisor and staff members must have ready access to an operating telephone or other similar means of communication to enable immediate communication to and from parents and emergency services
Guidance for regulatory authorities
2101 This requirement continues to apply when children leave the premises while being educated and cared for by the service such as on an excursion or regular outing
2102 Appropriate communication equipment may include a fixed-line telephone mobile phone satellite phone two-way radio or video conferencing equipment
2103 Whatever the means of available communication it should be capable of making and receiving calls It must not be locked for outgoing calls or out of credit
2104 When checking compliance with this requirement authorised officers should look at whether a telephone or other communication equipment is readily available whenever children are being educated and cared for as part of the service Communication methods can be adapted to fit with the servicersquos environment and daily circumstances (rural and remote services excursions) Where a fixed-line telephone or mobile phone is used a direct number to and from the service must be available to parents and emergency services for immediate contact at all times that children are attending the service
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162 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Information for services
2105 Authorised officers may suggest to the approved provider they make sure telephone numbers of emergency services are displayed near each means of communication Authorised officers may also encourage the approved provider to make sure the means of communication are located where educators can access them without having to leave children unsupervised
Collection of children from premises
National Regulations regulation 99 WA
2106 The approved provider nominated supervisor and family day care educator must make sure that a child being educated and cared for by the service does not leave the premises except where the child
bull is given into the care of a parent an authorised nominee named in the childrsquos enrolment record or a person authorised by a parent or authorised nominee or
bull leaves in accordance with the written authorisation of the childrsquos parent or authorised nominee or
bull is taken on an excursion or
bull is given into the care of a person or taken outside the premises because the child requires medical hospital or ambulance care or treatment or because of another emergency
Guidance for regulatory authorities
2107 lsquoParentrsquo includes a guardian of the child and a person who has parental responsibility for a child under a decision or order of a court It does not include a parent prohibited by a court order from having contact with the child
2108 Authorised officers should be aware that if a child at the service appears to be missing or cannot be accounted for or appears to have been taken or removed from the service premises in a way that breaches the National Regulations it is a serious incident and the regulatory authority must be notified within 24 hours (refer to Leadership and service management)
2109 Where authorised officers are concerned that this requirement may not be being complied with they should consider the policies and procedures in place at the service in relation to the delivery and collection of children and the acceptance and refusal of authorisations required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 163
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Excursions
National Regulations regulation 100
2110 Excursions are outings organised by services or family day care educators An excursion does not include an outing organised by a service on a school site if the children leave the premises in the company of an educator and do not leave the school site
2111 Before taking children on excursions approved providers nominated supervisors and family day care educators must ensure a risk assessment is carried out and authorisation obtained from parents or authorised nominees
2112 A risk assessment is not required for an excursion if the excursion is a regular outing and a risk assessment has been conducted for the excursion in the past 12 months
Guidance for regulatory authorities
Maximum number of children
2113 A centre-based service approval states the maximum number of children that may be educated and cared for at any one time and the approved provider must ensure this number is not exceeded (except for children being educated and cared for in an emergency under regulation 123) An approved provider must also ensure the maximum number of children is not exceeded during excursions Children are considered as being educated and cared for by a service if they are enrolled at the service and have been signed in
Risk assessment
National Regulations regulation 101
2114 Risk assessments must identify and assess risks that the excursion may pose to the safety health or wellbeing of any child taken on the excursion and specify how the identified risks will be managed and minimised A risk assessment must include assessment of the matters set out below
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164 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Matters that must be considered in a risk assessment
The proposed route and destination for the excursion
Any water hazards
Risks associated with water-based activities
Transport to and from the destination
The number of adults and children involved in the excursion
The number of educators or other responsible adults appropriate to provide supervision and whether any adults with specialised skills are required
Proposed activities
Proposed duration of the excursion and
The items that should be taken on the excursion
Authorisation
National Regulations regulation 102
2115 Authorisation must be given by a parent or other person named in the childrsquos enrolment record as having authority to authorise taking the child outside the premises The authorisation must state the information listed below
Information that must be included in an authorisation for an excursion
The childrsquos name
The reason the child is to be taken outside the premises
The date the child is to be taken on the excursion (unless the excursion is a regular outing)
A description of the proposed destination for the excursion
The method of transport to be used for the excursion
The proposed activities to be undertaken by the child during the excursion
The period the child will be away from the premises
The anticipated number of children likely to be attending the excursion
The anticipated educator-to-child ratio for the excursion
The anticipated number of staff members and any other adults who will accompany and supervise the children on the excursion and
That a risk assessment has been prepared and is available at the service
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 165
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2116 If the excursion is a regular outing the authorisation is only required to be obtained once in a 12 month period
Guidance for regulatory authorities
2117 Authorisations given under regulation 102 need to be kept on the childrsquos enrolment record (regulation 161) Refer to Leadership and service management for more information about enrolment records
Information for services
2118 A template excursion risk management plan is available on the ACECQA website at wwwacecqagovau Approved providers nominated supervisors and family day care educators may choose to use the template but they do not have to
2119 Where the approved provider nominated supervisor or family day care educator is unsure how to go about gathering the necessary information for the risk assessment authorised officers may suggest they visit the proposed excursion destination That way information can be gathered about issues such as the availability of toilets hand washing drinking and shade facilities at the destination and details can be checked such as mobile phone coverage and access for emergency services
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166 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Responsibilities of the approved provider nominated supervisor and family day care educator
Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Precautions to be taken to protect children from harm or hazards (section 167)
3 3 3 3
Health hygiene and safe food practices (regulation 77)
3 3 3 3 3
Food and beverages (regulation 78) 3 3 3 3 3
Service providing food and beverages (regulation 79)
3 3 3 3 3
Weekly menu (regulation 80) 3 3 3 3 3
Sleep and rest (regulation 81) 3 3 3 3 3
Tobacco drug and alcohol free environment (regulation 82)
3 3 3 3
Staff members and family day care educators not to be affected by alcohol or drugs (regulation 83)
3 3 3 3 3
Awareness of child protection law (regulation 84) 3 3 3
Incident injury trauma and illness policies and procedures (regulation 85)
3
Notification to parents of incident injury trauma and illness (regulation 86)
3 3
Incident injury trauma and illness record (regulation 87)
3 3
Infectious diseases (regulation 88) 3 3
First aid kits (regulation 89) 3 3 3 3
Medical conditions policy (regulation 90) 3
Medical conditions policy to be provided to parents (regulation 91)
3 3
Medication record (regulation 92) 3 3
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 167
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Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Administration of medication (regulation 93) 3 3 3 3
Exception to authorisation requirement ndash anaphylaxis or asthma emergency (regulation 94)
3 3 3
Procedure for administration of medication (regulation 95)
3
Self-administration of medication (regulation 96) 3
Emergency and evacuation procedures (regulation 97)
3 3 3
Telephone or other communication equipment (regulation 98)
3 3 3
Children leaving the education and care service premises (regulation 99)
3 3 3 3
Risk assessment must be conducted before excursion (regulation 100)
3 3 3 3
Conduct of risk assessment for excursion (regulation 101)
3 3 3
Authorisation for excursions (regulation 102) 3 3 3 3
Waivers do not apply to any of these requirements
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168 Operational Requirements Childrenrsquos health and safety Last updated April 2017
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Useful contacts
Food authorities
State or territory Authority Website
Australian Capital Territory
ACT Health
Health Protection Service
healthactgovau
New South Wales NSW Food Authority foodauthoritynswgovau
Northern Territory
NT Department of Health
Environmental Health
healthntgovau
Queensland Qld Health
Food Safety Policy and Regulation Unit
healthqldgovau
South Australia
Department of Health
Food Policy and Programs Branch
sahealthsagovau
Tasmania Department of Health and Human Services
Food Unit
dhhstasgovau
Victoria Food Safety and Regulation healthvicgovau(Note providers in Victoria need to contact their local council for food business registration)
Western Australia
WA Department of Health
Environmental Health Food Unit
publichealthwagovau
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Last updated April 2017 Childrenrsquos health and safety Operational Requirements 169
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Public health units
State or territory Authority Website
Australian Capital Territory
ACT Health Health Protection Service Communicable Disease Control
healthactgovau
New South Wales NSW Health ndash Public Health Division healthnswgovau
Northern Territory
NT Department of Health Centre for Disease Control
healthntgovau
Queensland Qld Health ndash Communicable Diseases Branch healthqldgovau
South Australia
SA Health ndash Communicable Disease Control Branch
sahealthsagovau
Tasmania Department of Health and Human Services Public and Environmental Health Service
dhhstasgovau
Victoria Vic Department of Health Communicable Disease and Prevention Unit
healthvicgovau
Western Australia
WA Department of Health Communicable Disease Control Directorate
publichealthwagovau
State and territory working with children screening units
State or territory Authority Website
Australian Capital Territory
ACT Government ndash Office for Regulatory Services
orsactgovau
New South Wales NSW Office of Communities ndash Commission for Children and Young People
checkkidsnswgovau
Northern Territory NT Government workingwithchildrenntgovau
Queensland Queensland Commission for Children and Young People and Child Guardian
ccypcgqldgovau
South Australia
Screening Unit of the Department for Communities and Social Inclusion (DCSI) South Australia
dcsisagovau
Tasmania Tasmania Department of Education educationtasgovau
Victoria Department of Justice Victoria justicevicgovau
Western Australia
Working With Children Screening Unit (WWCSU) Department for Child Protection WA
checkwwcwagovaucheckwwc
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170 Operational Requirements Physical environment Last updated April 2017
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3 Physical environment
Harm and hazards
National Law section 167
31 Every reasonable precaution must be taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury
Guidance for regulatory authorities
NOTE The following paragraphs include some information about the types of things authorised officers may consider when examining whether every reasonable precaution has been taken to protect children from harm and hazards It is not an exhaustive list and should be treated as guidance only
32 The guidance and information below is about the application of section 167 in relation to physical environment requirements only Authorised officers should be aware the requirement to take reasonable precautions to protect children from harm and hazards is relevant to every aspect of the service not just the physical environment
Equipment and furniture
33 Equipment and furniture available for use by children in an early childhood education and care service should comply with any relevant AustralianNew Zealand Standards at the time of purchase
34 Authorised officers may ask to see confirmation that the equipment or furniture complies with AustralianNew Zealand Standards where they are concerned about its safety For example cots should come with a compliance certificate and information about safe assembly and use Kidsafe Australia is a useful resource for approved providers httpwwwkidsafecomau
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Use of soft fall under equipment
35 Any impact-absorbing surface provided under or around equipment available for use in an early childhood education and care service should comply with relevant AustralianNew Zealand Standards relating to playground surfacing specifications
36 There is no one ideal impact absorbing surface Authorised officers with concerns about whether reasonable precautions have been taken in respect of surfaces under equipment may talk to the approved provider about how they chose the material in question The approved provider should be able to demonstrate that their choice took into account a variety of considerations including the type of equipment being used the fall height geographical and climatic conditions and maintenance
37 Approved providers should be able to obtain information from the supplier of the equipment or surfacing material about compliance with AustralianNew Zealand Standards
Storage of any harmful cleaning or similar products
38 Laundry or hygiene facilities on the service premises must be located and maintained in a way that does not pose a risk to children If laundry facilities are located in areas which children can access the authorised officer should consider what steps are being taken at the service to keep hazardous materials out of reach of children For example chemicals soiled clothing nappies and linen should be stored where children cannot access them This also applies to the laundry of a family day care residence which may be a thoroughfare to the backyard
Information for services
39 Authorised officers may point providers to resources such as The Child Accident Prevention Foundation of Australia Guidelines developed by Kidsafe (available at wwwkidsafecomau) when deciding what reasonable precautions to take to protect children from harm and hazards at the service The Childrenrsquos Hospital at Westmead Kids Health webpage also includes fact sheets on childrenrsquos safety that may be helpful (httpkidshealthschnhealthnswgovau)
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172 Operational Requirements Physical environment Last updated April 2017
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Outdoor space requirements
National Regulations regulation 108
Minimum outdoor space calculations
310 This regulation applies to family day care venues and centre based services but not to family day care residences
311 Education and care service premises must have at least seven square metres of unencumbered outdoor space for each child being educated and cared for at the service
312 Areas such as pathways thoroughfares car parks and storage sheds or any other space that is not suitable for children cannot be counted as outdoor space
313 The area of a verandah included in calculating the area of indoor space cannot be included in calculating the area of outdoor space
314 An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if the regulatory authority has given written approval and the indoor space has not been included in calculating the indoor space ndash that is it cannot be counted twice
315 Outdoor space requirements do not apply to centre-based services with respect to a child or children who are being educated and cared for in an emergency For more information see Operational Requirements ndash Staffing arrangements
Guidance for regulatory authorities
316 Authorised officers should check that outdoor space is usable by children and does not include areas that if used would pose an unacceptable risk of harm to children
317 Authorised officers can check that the minimum amount of outdoor space is available by looking at the building plans for a service When they visit the service authorised officers may check that the outdoor space reflects the plans
318 See Applications and Approvals for information about approval of indoor space to be included as outdoor space
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Swimming pools and other water hazards
National Regulations regulations 25 116 NSW TAS
319 If a swimming pool or other water hazard is on the proposed education and care service premises a copy of the servicersquos proposed water safety policy is required in the application for service approval for a centre-based service
320 If the provider of a family day care service permits a family day care residence or venue with a swimming pool or something that may constitute a water hazard a copy of the servicersquos proposed water safety policy is to be provided with the service application
321 The existence of any water hazards water features or swimming pool at or near the residence or venue needs to be considered as part of the assessment of each residence and approved family day care venue prior to education and care being provided and at least annually
Guidance for regulatory authorities
322 Authorised officers may look at what reasonable precautions are taken to protect children from harm and hazard posed by a swimming pool on the service premises Authorised officers are not responsible for ensuring state and territory legislation in respect of swimming pools and pool fencing is complied with but may request such advice from the approved provider
Fencing
National Regulations regulation 104
323 Any outdoor space used by children must be enclosed by a fence or barrier that is of a height and design that children of preschool age or under cannot go through over or under it Fencing requirements do not apply to centre-based services that primarily educate and care for children over preschool age Fencing requirements also do not apply to family day care residences or venues if all the children being educated and cared for at that residence or venue are over preschool age
Guidance for regulatory authorities
324 Authorised officers should consider if the height and design of the fence is such that children of preschool age or under may be able to scale the fence burrow under it or squeeze through any gaps
325 Authorised officers should also look at the design and maintenance of the fence in relation to outdoor play equipment and other materials in the environment to ensure that children are unable to get a foothold and climb over the fence For example an overhanging tree or tree stump may be used as leverage to get over the fence
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174 Operational Requirements Physical environment Last updated April 2017
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326 When considering whether the service lsquoprimarilyrsquo educates and cares for children over preschool age authorised officers may consider the following factors
bull the percentage of children who are enrolled and if the information is available who attend the education and care service who are over preschool age ndash for example 60 per cent is a persuasive factor 70 per cent would be more persuasive whereas 51 per cent would be less so
bull the operating hours of the service ndash operating mostly or solely out of school hours may indicate the service lsquoprimarilyrsquo educates and cares for school age children and
bull service advertising ndash advertising education and care for school age children may indicate the service primarily provides education and care to school age children
Information for services
327 Authorised officers may discuss with the approved provider the design of the fence Where possible fencing should allow children to view the outside world but ensure a childrsquos safety by reducing opportunities to escape Allowing children to see the outside world enables children to make connections with the activities of their local community It also supports the development of long-range vision
328 Authorised officers may refer approved providers to the Australian Standards about fencing They may also suggest the approved provider seek advice from their local fire services authority about emergency exits
329 In addition authorised officers may let the approved provider know that for new services and services planning to renovate the Building Code of Australia (BCA) sets requirements from May 2012 in relation to fences and barriers excluding school age care services For services established prior to this existing BCA and state building legislation may apply
General transitional provisions
National Regulations regulation 248
330 Regulation 104 does not apply to a centre-based service delivering a preschool program in a school and in a class where a full-time education program is also being delivered to school children
National Regulations regulation 249
331 Regulation 104 does not apply to a declared approved service if the service did not comply with regulation 104 on 1 January 2012 (1 August 2012 in WA) and was not required to comply with a similar requirement immediately before that day
332 Regulation 104 applies to the declared approved service when the service premises are renovated or the service approval is transferred under section 58 of the National Law
333 Renovation of the premises does not include a renovation of a building or structure on the premises that is not used for the education and care of children whether or not it is used to operate the service
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Last updated April 2017 Physical environment Operational Requirements 175
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National Regulations regulation 250
334 Regulation 104 does not apply to a family day care residence or declared approved family day care venue used by a family day care educator if the residence or venue did not comply with regulation 104 on 1 January 2012 (1 August 2012 in WA) and was not required to comply with a similar requirement immediately before that day
335 Regulation 104 applies to the family day care service in respect of the residence or venue when the residence or venue is renovated or the family day care educator is no longer registered or engaged by the service
Natural environment
National Regulations regulation 113
336 Outdoor spaces must allow children to explore and experience the natural environment For example inclusion of natural features such as trees sand and natural vegetation
Guidance for regulatory authorities
337 The natural environment needs to include a variety of natural materials This may include gardens sandpits and dirt patches pebblegravel pits edible plants shady trees worm farms compost areas and water play areas Approved providers may bring in logs rocks hay bales tree stumps and potted plants to achieve natural environment requirements This does not mean that all artificial grass and artificial features need to be replaced rather that there is appropriate access for children to interact with the natural environment
Information for services
338 Authorised officers may talk to the approved provider about using natural elements that reflect the local natural environment Allergies and other health and safety issues should be considered by the approved provider when creating and maintaining the natural environment
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176 Operational Requirements Physical environment Last updated April 2017
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Shade
National Regulations regulation 114
339 The approved provider must ensure the outdoor spaces at the service premises include adequate shaded areas to protect children from overexposure to the sun
340 The approved provider must ensure policies and procedures are in place in relation to sun protection (regulation 168)
General transitional provisions
National Regulations regulation 248
341 Regulation 114 does not apply to a centre-based service delivering a preschool program in a school and in a class where a full-time education program is also being delivered to school children
National Regulations regulation 249
342 Regulation 114 does not apply to a declared approved service if the service did not comply with regulation 114 on 1 January 2012 (1 August 2012 in WA) and was not required to comply with a similar requirement immediately before that day
343 Regulation 114 applies to the declared approved service when the service premises are renovated or the service approval is transferred under section 58 of the National Law
344 Renovation of the premises does not include a renovation of a building or structure on the premises that is not used for the education and care of children whether or not it is used to operate the service
Guidance for regulatory authorities
345 In determining what level of shade is lsquoadequatersquo authorised officers should consider whether there is enough shade for the number of children at the service Authorised officers should be aware of Cancer Council Australia recommendations for shade environments (see wwwcancerorgau)
346 Approved providers are required to implement a sun protection policy at all services including family day care If authorised officers are concerned the shade provided at the service is inadequate they may also examine the sun protection policy and procedures for the service to see what measures are in place to ensure children are protected
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Last updated April 2017 Physical environment Operational Requirements 177
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Information for services
347 Sun exposure can pose significant health risks for children including sunburn dehydration eye damage and skin cancer However the need to provide adequate shade must also be balanced with the benefits of exposure to sunlight which assists the body to produce vitamin D which is important for healthy bone development and maintenance
348 Shaded areas may be provided by large trees heavy shade cloths or solid roofs There should be sufficient shade over areas for both active and passive outdoor play
349 Cancer Council Australia can provide advice about natural and constructed shade options specific to each jurisdiction and recommended sun protection policies and practices (see wwwcancerorgau)
Premises designed to facilitate supervision
National Regulations regulation 115
350 The approved provider of a centre-based service must ensure that the premises (including toilets and nappy change facilities) are designed and maintained in a way that facilitates supervision of children at all times they are being educated and cared for having regard to the need to maintain the rights and dignity of the children
Guidance for regulatory authorities
351 Authorised officers should look at all design elements including the use of windows and partitions For example low toilet partitions in bathrooms used by young children will maintain privacy while allowing supervision to be maintained
352 In services that educate and care for children over preschool age it is not intended that educators be able to view children while they are using the toilet
353 For sleep rooms supervision windows should be kept clear and not painted over or covered with curtains or posters
354 If the authorised officer has concerns about the design of the premises they may discuss with the approved provider what strategies are in place to combat design issues and to ensure adequate supervision is maintained at all times
Information for services
355 Authorised officers may talk to the approved provider about how the design of the premises guides educators in deciding where to position themselves to ensure their ability to supervise children Authorised officers may suggest strategies such as a toilet pass system to monitor older childrenrsquos access to bathrooms
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178 Operational Requirements Physical environment Last updated April 2017
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General transitional provisions
National Regulations regulation 248
356 Regulation 115 does not apply to a centre-based service delivering a preschool program in a school and in a class where a full-time education program is also being delivered to school children
National Regulations regulation 249
357 Regulation 115 does not apply to a declared approved service if the service did not comply with regulation 115 on 1 January 2012 (1 August 2012 in WA) and was not required to comply with a similar requirement immediately before that day
358 Regulation 115 applies to the declared approved service when the service premises are renovated or the service approval is transferred under section 58 of the National Law
359 Renovation of the premises does not include a renovation of a building or structure on the premises that is not used for the education and care of children whether or not it is used to operate the service
Indoor space requirements
National Regulations regulation 107 NSW WA SA TAS
360 This regulation applies to family day care venues and centre based services but does not apply to family day care residences
361 Education and care service premises must have at least 325 square metres of unencumbered indoor space for each child being educated and cared for at the service
362 Areas such as passageways bathrooms and nappy change areas bottle preparation areas space set aside for the use or storage of cots staff or administrative rooms storage areas and any space not suitable for children are not counted as unencumbered play space The area of a kitchen is not counted as unencumbered space unless it is primarily used by children as part of an educational program
363 The area of a verandah may be included in calculating the area of indoor space with the written approval of the regulatory authority (see Applications and Approvals) A verandah that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space
364 Indoor space requirements do not apply to centre-based services with respect to a child or children who are being educated and cared for in an emergency For more information see Operational Requirements ndash Staffing arrangements
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Last updated April 2017 Physical environment Operational Requirements 179
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Guidance for regulatory authorities
365 Indoor space must be exclusively available to the education and care service at the time it is operating ndash not shared with other ad hoc care facilities or schools if it is included in the required indoor space
366 Where authorised officers are trying to determine whether the kitchen is primarily used by children as part of an educational program they may consider the following factors
bull is the kitchen established as an educational space ie is it set up with educational equipment suitable for children
bull is the kitchen safe for use by children ie are knives and electrical equipment out of reach of children
bull is the kitchen used to prepare food for children ie is a cook using the kitchen to prepare childrenrsquos meals
bull what proportion of the operating hours of the service is the kitchen used in delivering the educational program ie is the kitchen used every day or for one hour a week
367 Furniture in home corners mobile open shelving offering toys and equipment directly to children and chairs and tables are not considered to encumber the play space as they are an integral part of childrenrsquos play and are moveable
368 Indoor space is calculated on total unencumbered space available not room by room
Ventilation and natural light
National Regulations regulation 110
369 Indoor spaces must be well ventilated have adequate natural light and be maintained at a temperature that ensures the safety and wellbeing of children
Guidance for regulatory authorities
370 Natural ventilation can be provided by open windows and doors If natural ventilation is insufficient or not possible indoor space may be ventilated with an air conditioning system Natural light may be let in through windows doors and skylights
371 Indoor temperatures should be maintained at levels that keep children visibly comfortable Consideration should be given to ambient temperatures and children and educator response to the temperature Authorised officers should be aware that children are more likely to show signs of distress at high temperatures rather than low ones
372 Authorised officers may consider advice from reputable organisations such as SIDS and Kids (wwwsidsandkidsorg) in determining the appropriateness of temperatures for sleeping rooms
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180 Operational Requirements Physical environment Last updated April 2017
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Information for services
373 Authorised officers may alert approved providers to the requirements of the Building Code of Australia particularly the new requirements from May 2012 for new or renovated services
Glass
National Regulations regulation 117 WA
374 If a glazed area of a family day care residence or approved venue is accessible to children and situated at or below the height specified by Australian Standard 1288-2006 the following is required
bull safety glazing if required by the Building Code of Australia or
bull treatment with a product that prevents glass from shattering if broken (such as safety film) or guarding with barries that prevent a child from hitting or falling against the glass
For residences or venues approved before 1 June 2014 the above requirements apply where the glazed area is situated 075 metres or less above floor level
Information for services
375 For more information on safety in the family day care home authorised officers may refer approved providers to Kidsafersquos Family Day Care Safety Guidelines (available from the Kidsafe website at wwwkidsafecomau)
Administrative space
National Regulations regulation 111
376 The approved provider of a centre-based service must ensure that there is adequate administrative space to conduct the administrative functions of the service consult with parents and conduct private conversations
Guidance for regulatory authorities
377 A separate room is not required but space must be set aside for administrative purposes
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Information for services
378 Authorised officers may talk to the approved provider about providing areas for the preparation of educational programs and the respite of educators other staff and volunteers This is not a legislative requirement under the National Law and Regulations but it is recommended Authorised officers should be aware that in some jurisdictions there are industrial conditions about respite areas Authorised officers are not responsible for checking compliance with industrial conditions
Toilet and hygiene facilities
National Regulations regulation 109
379 Adequate developmentally and age-appropriate toilet washing and drying facilities must be provided for use by children being educated and cared for by the service The location and design of the toilet washing and drying facilities must enable safe use and convenient access by the children
Guidance for regulatory authorities
380 When considering whether the facilities enable lsquoconvenient accessrsquo by children authorised officers may look at whether
bull fixtures and joinery (for example taps) can be comfortably reached and used by children
bull there are enough toilets for the number of children at the service (children should not be required to wait more than occasionally to use the toilet)
bull children can get to a toilet from both inside and outside the service reasonably quickly and
bull there are facilities for the disposal of sanitary items at services catering for children over preschool age
381 In some settings age appropriate toilets for young children may include a potty or over-toilet seat for example family day care services or centre-based services rarely catering for children preschool age or under Similarly if the toilets and hand washing facilities are not designed for use by young children there should be appropriate mechanisms in place to support childrenrsquos access to toilet and hand washing for example stable steps
382 Authorised officers should be aware that the approved provider must take reasonable steps to ensure that the service provides education and care to children in a way that maintains at all times the dignity and rights of each child (see regulation 155) This includes when children are using toilets
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182 Operational Requirements Physical environment Last updated April 2017
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Information for services
383 Authorised officers may alert approved providers to the requirements of the Building Code of Australia in relation to toilet and hygiene facilities particularly the new requirements from May 2012 for new or renovated services
384 If potties are being used authorised officers may refer approved providers to the National Health and Medical Research Council (NHMRC) publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest addition available at wwwnhmrcgovau) for best practice information
Nappy change facilities
National Regulations regulation 112
NOTE This regulation applies to centre-based services that educate and care for children who wear nappies
385 Adequate and appropriate hygienic facilities must be provided for nappy changing If any children are under three years of age there must be at least one properly constructed nappy changing bench
386 Hand cleansing facilities for adults must be available in the vicinity of the nappy change area
387 Nappy change facilities must be designed located and maintained in a way that prevents unsupervised access by children
Guidance for regulatory authorities
388 In checking whether there are an adequate number of nappy change tables authorised officers should consider the number of children wearing nappies There should be a sufficient number to ensure childrenrsquos needs are being met in a respectful appropriate and timely manner
389 Children should not be allowed unsupervised access to the nappy change facilities A half door or child-proof gate may be used to prevent unsupervised access
390 Appropriate facilities must be available for safe and hygienic changing and disposal of nappies Children should be changed on sturdy change tables and there should be sufficient materials on hand (such as disposable paper barriers for change mats baby-wipes) for educators to complete nappy changing and clean their hands thoroughly
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Last updated April 2017 Physical environment Operational Requirements 183
D
Information for services
391 Authorised officers may alert approved providers to the requirements of the Building Code of Australia about nappy change benches Authorised officers should be aware that facilities may have complied with a former building code depending on when they were constructed
392 Authorised officers may wish to refer approved providers to the National Health and Medical Research Council (NHMRC) publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest edition available at wwwnhmrcgovau) for information on hygienic nappy change and hand washing practices
Laundry and hygiene facilities
National Regulations regulation 106
393 Services must have or have access to laundry facilities or other arrangements for dealing with soiled clothing nappies and linen including hygienic facilities for storage prior to their disposal or laundering that are adequate and appropriate for the needs of the service The laundry and hygiene facilities must be located and maintained in a way that does not pose a risk to children
Guidance for regulatory authorities
394 If there is no laundry on the service premises authorised officers may look at whether arrangements are in place at the service for dealing with soiled clothing nappies and linen For example childrenrsquos linen may be hygienically stored in labelled individual drawstring bags and sent home at the end of the day with the child
Information for services
395 Authorised officers may alert approved providers to the Building Code of Australia requirements about laundry facilities for centre-based services for children under school age
396 Authorised officers may also refer approved providers to the National Health and Medical Research Council (NHMRC) publication Staying Healthy Preventing infectious diseases in early childhood education and care services (latest edition available at wwwnhmrcgovau)
Premises furniture materials and equipment
Safe clean and in good repair
National Regulations regulation 103
397 The premises and all equipment and furniture used in providing the education and care service must be safe clean and in good repair This requirement only applies to the part of a family day care service that is used to provide education and care
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184 Operational Requirements Physical environment Last updated April 2017
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Guidance for regulatory authorities
398 When looking at family day care services authorised officers should only examine the part of a family day care residence or venue that is used for education and care including looking at how the approved provider ensures the children are prevented from accessing other areas of the premises
Information for services
399 Authorised officers may talk to approved providers about using appropriate furniture to assist in minimising accidents and enhance the development of independence confidence and self-esteem in children They may suggest approved providers give consideration to the surface corners weight and stability of furniture and equipment used For example very young children should be provided with chairs that support the child to sit safely rather than a backless stool
Sufficient furniture materials and equipment
National Regulations regulation 105
3100 Each child being educated and cared for by the service must have access to sufficient furniture materials and developmentally appropriate equipment suitable for the education and care of that child
Guidance for regulatory authorities
3101 Sufficient furniture materials and appropriate equipment must be available to meet the range of interests ages and abilities of all children to avoid overcrowding and ensure children do not have to wait for long periods to participate There should be sufficient resources to support the implementation of the educational program and the participation of all children in the program
3102 Authorised officers may consider whether there are enough cots or other appropriate bedding to cater for young children attending the service suitable storage play mats soft toys and changing tables For example non-compliance may arise where all or most of the equipment provided is beyond the developmental age of the children enrolled at the service or if there is insufficient cutlery for all children to use at meal times
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Last updated April 2017 Physical environment Operational Requirements 185
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Assessments of family day care residences and approved family day care venues
National Regulations regulation 116
3103 The approved provider of a family day care service must conduct an assessment (including a risk assessment) of each residence and approved family day care venue of the service before education and care is provided to children and at least annually to ensure that the health safety and wellbeing of children is protected
3104 The matters listed below must also be considered as part of an assessment
Matters that must be considered in an assessment of a family day care residence or venue
The safety cleanliness and repair of premises furniture and equipment
Fencing
The sufficiency of furniture materials and equipment
Adequate laundry facilities or other arrangements for dealing with soiled clothing nappies and linen
Adequacy of toilet washing and drying facilities
Adequacy of ventilation natural light
Glass safety issues
The suitability of the residence or venue according to the number ages and abilities of the children who attend or are likely to attend the service
The suitability of nappy change arrangements for children who wear nappies
The existence of any water hazards water features or swimming pools and
Any risk posed by animals
3105 The approved provider must require each family day care educator to advise the approved provider of
bull any proposed renovations to the residence or venue and
bull any changes in their residence or venue that may affect the matters considered as part of the assessment of the premises and
bull any other changes to the residence or venue that will affect the education and care provided to children as part of the family day care service
D
186 Operational Requirements Physical environment Last updated April 2017
D
Responsibilities of the approved provider nominated supervisor and family day care educator
Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Premises furniture and equipment to be safe clean and in good repair (regulation 103)
3 3 3
Fencing (regulation 104) 3 3 3 3
Access to sufficient furniture materials and developmentally appropriate equipment (regulation 105)
3 3
Laundry and hygiene facilities (regulation 106) 3 3
Space requirements ndash indoor space (regulation 107) 3 3 3 3
Space requirements ndash outdoor space (regulation 108)
3 3 3 3
Toilet and hygiene facilities (regulation 109) 3
Ventilation and natural light (regulation 110) 3 3 3 3
Administrative space (regulation 111) 3 3 3
Nappy change facilities (regulation 112) 3 3 3 3
Outdoor space ndash natural environment (regulation 113)
3 3 3
Outdoor space ndash shade (regulation 114) 3 3 3 3
Premises designed to facilitate supervision (regulation 115)
3 3 3
Assessments of family day care residences and approved family day care venues (regulation 116)
3 3 3
Glass (regulation 117) 3 3 3
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Last updated April 2017 Staffing arrangements Operational Requirements 187
D
4 Staffing arrangements
Early childhood teacher requirements centre-based services
National Law section 169
41 The approved provider and nominated supervisor of an education and care service must ensure that each educator educating and caring for children at the service meets the qualification requirements relevant to the educatorrsquos role
National Regulations regulations 129ndash134
NSW VIC QLD WA SA TAS ACT NT
42 Regulations 129 to 134 apply to centre-based services providing education and care to children who are preschool age or under
43 Centre-based services are required to have access to or attendance of an early childhood teacher The requirements are based on the size of the service (see the table below)
44 For services with fewer than 25 approved places or fewer than 25 children in attendance a service must have access to an early childhood teacher for at least 20 per cent of the time that the service provides education and care
45 An approved service may facilitate access to an early childhood teacher through information and communications technology such as videoconferencing and the access may be calculated on a quarterly basis
46 For centre-based services with 25 or more approved places the requirement is for an early childhood teacher to be in attendance
NOTE A reference to the number of children being educated and cared for at a centre-based service for the purpose of calculating early childhood teacher requirements does not include a child being educated and cared for in an emergency under reguation 123
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188 Operational Requirements Staffing arrangements Last updated April 2017
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Early childhood teacher requirements for centre-based services
Number of children Early childhood teacher requirement
Fewer than 25 approved places at the service or fewer than 25 children in attendance
From 1 January 2014 in all states and territories
At least 20 per cent of the time that the service provides education and care the service must have access to an early childhood teacher working with the service
25ndash59 children in attendance on any given day
From 1 January 2014 in all states and territories Saving provision applies in NSW
If a service operates for 50 or more hours a week an early childhood teacher must be in attendance at the service for at least six hours on the given day
If a service operates for less than 50 hours a week an early childhood teacher must be in attendance for 60 per cent of the operating hours of the service on the given day
These requirements do not apply if the service has 25ndash59 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service
60ndash80 children in attendance on any given day
From 1 January 2014 in VIC QLD SA TAS ACT NT WA Saving provision applies in NSW
If a service operates for 50 or more hours a week an early childhood teacher must be in attendance at the service for at least six hours on the given day
If a service operates for less than 50 hours a week an early childhood teacher must be in attendance for 60 per cent of the operating hours of the service on the given day
These requirements do not apply if the service has 60 to 80 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service
From 1 January 2020 in VIC QLD SA WA TAS ACT NT Saving provision applies in NSW
If a service operates for 50 or more hours a week an early childhood teacher must be in attendance at the service for at least six hours on the given day and a second early childhood teacher or suitably qualified person must be in attendance at the service for at least three hours on the given day
If a service operates for less than 50 hours a week an early childhood teacher must be in attendance for 60 per cent of the operating hours of the service on the given day and a second early childhood teacher or suitably qualified person must be in attendance for at least 30 per cent of the operating hours on that day
These requirements do not apply if the service has 60 to 80 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service and employs or engages a second early childhood teacher or suitably qualified person for half the full-time hours or full-time equivalent hours at the service
D
Last updated April 2017 Staffing arrangements Operational Requirements 189
D
Early childhood teacher requirements for centre-based services
Number of children Early childhood teacher requirement
More than 80 children in attendance onany given day
From 1 January 2014 in VIC QLD SA WA TAS ACT NT Saving provision applies in NSW
If a service operates for 50 or more hours a week an early childhood teacher must be in attendance at the service for at least six hours on the given day
If a service operates for less than 50 hours a week an early childhood teacher must be in attendance for 60 per cent of the operating hours of the service on the given day
These requirements do not apply if the service has more than 80 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service
From 1 January 2020 in VIC QLD SA WA TAS ACT NT Saving provision applies in NSW
If a service operates for 50 or more hours a week an early childhood teacher must be in attendance at the service for at least six hours on the given day and a second early childhood teacher or suitably qualified person must be in attendance at the service for at least six hours on the given day
If a service operates for less than 50 hours a week an early childhood teacher must be in attendance for 60 per cent of the operating hours of the service on the given day and a second early childhood teacher or suitably qualified person must be in attendance for at least 60 per cent of the operating hours on that day
These requirements do not apply if the service has more than 80 approved places and employs or engages a full-time or full-time equivalent early childhood teacher at the service and employs or engages a second full-time or full-time equivalent early childhood teacher or suitably qualified person at the service
Guidance for regulatory authorities
47 More than one early childhood teacher can meet the requirement for a full time equivalent early childhood teacher if their hours add up to those of a full time early childhood teacher under the relevant industrial award (for example job share arrangements) While early childhood teacher requirements can be satisfied flexibly arrangements must meet the educational and development needs of all children attending the service
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190 Operational Requirements Staffing arrangements Last updated April 2017
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Early childhood teaching qualifications
National Regulations regulation 137
48 There are two lists of approved early childhood teaching qualifications available on the ACECQA website at wwwacecqagovau
49 A person who holds a qualification on the list of approved early childhood teaching qualifications is an early childhood teacher for the purposes of the Education and Care Services National Law and Regulations
410 A person who holds a qualification on the list of former approved early childhood teaching qualifications is an early childhood teacher for the purposes of the Education and Care Services National Law and Regulations if they obtained that qualification on or before 31 December 2011
General saving and transitional provisions
Persons taken to hold an approved early childhood teaching qualification
National Regulations regulation 241
411 Under regulation 241 a person is taken to hold an approved early childhood teaching qualification if immediately before 1 January 2012 (1 August 2012 in WA) the person belonged to one of the below groups
Person taken to hold an approved early childhood teaching qualification
The person was recognised under the former education and care services law or for the purposes of a preschool funding program of any participating jurisdiction as an early childhood teacher and employed or engaged in a declared approved service as an early childhood teacher or
The person held a qualification on the list of former approved early childhood teaching qualifications or
The person was registered or accredited as an early childhood teacher in accordance with the requirements of any participating jurisdiction (this sub-regulation does not apply if immediately before 1 January 2012 (1 August 2012 in WA) the person was registered or accredited as an early childhood teacher or equivalent on the basis that the person was working towards an early childhood teaching qualification or equivalent) or
The person was employed to deliver a pre-preparatory learning program in Queensland under the Education (General Provisions) Act 2006 (ie teachers in Bound for Success services) or
The person was registered as a teacher under the Teachers Registration and Standards Act 2004 of South Australia and was employed to deliver a preschool program or
The person was registered as a teacher under the Teachers Registration Act 2000 of Tasmania and was employed to deliver a preschool program at a school established or registered under the Education Act 1994 of Tasmania or
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Last updated April 2017 Staffing arrangements Operational Requirements 191
D
The person was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland and held a qualification on the list of former approved diploma level education and care qualifications or on the list of approved certificate III and diploma level education and care qualifications for Queensland (international)
412 If immediately before 1 January 2012 (1 August 2012 in WA) the recognition registration accreditation or qualification as an early childhood teacher of a person referred to above was subject to restrictions imposed by or under an education law of a participating jurisdiction the person is taken to be an early childhood teacher subject to the same restrictions
413 If immediately before 1 January 2012 (1 August 2012 in WA) a person was enrolled in a course for a qualification on the list of former approved early childhood teaching qualifications the person is taken to hold an approved early childhood teaching qualification on the completion of the course
414 If immediately before 1 January 2012 (1 August 2012 in WA) a person who was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland was enrolled in a course for a qualification on the list of former approved diploma level education and care qualifications or on the list of approved certificate lll and diploma level education and care qualifications for Queensland (international) the person is taken to hold an approved early childhood teaching qualification
bull while the person is actively working towards the approved diploma level qualification and
bull if the person completes the approved diploma level qualification on completion of that qualification
415 If a person who immediately before 1 January 2012 (1 August 2012 in WA) was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland commences actively working towards an approved diploma level qualification on or before 31 December 2013 the person is taken to hold an approved early childhood teaching qualification
bull while the person is actively working towards the approved diploma level qualification and
bull if the person completes the approved diploma level qualification on completion of that qualification
416 For the purposes of these provisions the person is actively working towards an approved diploma level qualification if the person
bull is enrolled in the course for the qualification and
bull provides the approved provider with documentary evidence from the provider of the course that
ndash the person has commenced the course and
ndash is making satisfactory progress towards completion of the course and
ndash is meeting the requirements for maintaining enrolment
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192 Operational Requirements Staffing arrangements Last updated April 2017
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Guidance for regulatory authorities
417 ACECQA has determined that a person who holds the following is equivalent to an early childhood teacher
bull a primary teaching qualification that includes at least a focus on children aged 5 to 8 years old for example a qualification with a focus on children aged 3 to 8 or 5 to 12 and
bull teacher registration in Australia or accreditation in New South Wales and
bull an approved education and care diploma qualification or higher such as an approved graduate diploma
418 Under this provision a person is recognised as actively working towards an approved early childhood teacher qualification once they start studying an approved diploma level qualification or higher
419 This transitional measure was reviewed by the ACECQA Board in September 2016 The Board decided to extend the measure until the end of 2019 After the end of 2019 this transitional measure will cease however educators who obtained this combination of qualifications prior to the end of 2019 will continue to be recognised under this provision
Persons taken to be early childhood teachers
National Regulations regulation 242 WA
420 Under regulation 242 a person may be taken to be an early childhood teacher from 1 January 2014 to 31 December 2017 if the person
bull is actively working towards an approved early childhood teaching qualification and
bull provides documentary evidence that the person
ndash has completed at least 50 per cent of the course or
ndash holds an approved diploma level early childhood education and care qualification
Guidance for regulatory authorities
421 Regulation 242 only applies in reference to specific regulations Those regulations are 130ndash134 266ndash267 279 293ndash294 303ndash304 330ndash333 348ndash349 362ndash363 379 This means that in some jurisdictions a person will not be able to take advantage of regulation 242 in all circumstances Authorised officers should check how regulation 242 applies in their state or territory
422 When authorised officers are checking for documentary evidence that the person has completed at least 50 per cent of the course the authorised officer may consider whether the person has received at least half the required credit points for the qualification or is able to substantiate the claim that at least half the course has been completed in another way
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Last updated April 2017 Staffing arrangements Operational Requirements 193
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Early childhood teacher illness or absence
National Regulations regulation 135 NSW
423 If an early childhood teacher is absent from the service because of short-term illness or leave (for a period of leave not exceeding 12 weeks) the teacher may be replaced by an educator who holds an approved diploma level education and care qualification or a qualification in primary teaching
424 This does not apply where the early childhood teacher requirements are met by employing an early childhood teacher or teachers on a full time or full time equivalent basis
Guidance for regulatory authorities
425 Authorised officers may verify whether a person has a qualification in primary teaching by checking for example if the person is registered as a primary school teacher in Australia
General educator qualification requirements
National Law section 169
426 The approved provider and nominated supervisor of an education and care service must ensure that each educator meets the qualification requirements relevant to the educatorrsquos role
National Law section 163
427 The approved provider of a family day care service must ensure that at least one qualified person is employed or engaged as a family day care coordinator for the service The approved provider must ensure each family day care coordinator meets the qualification requirements relevant to the coordinatorrsquos role
Guidance for regulatory authorities
428 The National Regulations set the minimum educator-to-child ratios If an approved provider chooses to staff their approved service in excess of prescribed ratios the additional educators are not required to meet qualification requirements
429 For example if a centre-based service requires ten educators to meet the minimum prescribed ratios at a particular time and 12 educators are educating at that time the eleventh and twelfth educators are not required to hold an approved qualification
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194 Operational Requirements Staffing arrangements Last updated April 2017
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Qualification requirements centre-based services
National Regulations regulation 126 NSW VIC QLD WA SA ACT NT
430 National educational qualifications are prescribed for educators working directly with children preschool age or under
431 At least 50 per cent of educators in a service must have (or be actively working towards) at least an approved diploma level education and care qualification
432 See the section on Actively working towards an approved qualification for information about educators who meet this requirement
433 The remaining educators necessary to meet minimum educator-to-child ratios are required to have (or be actively working towards) at least an approved certificate III level education and care qualification However in VIC QLD WA ACT NT and TAS a new educator without an approved qualification can be counted as a certificate III qualified educator for the purposes of educator-to-child ratios during a three month probationary period
434 There are no national qualification requirements for educators at centre-based services educating and caring for children who are over preschool age The following states and territories have qualification requirements which apply from 1 January 2012 (1 August 2012 in WA)bull Australian Capital Territorybull Queenslandbull South Australiabull Victoria andbull Western Australia
Further information on qualification requirements can be found via wwwacecqagovaueducators-and-providers1qualifications
435 Qualification requirements for educators in centre-based services working with children over preschool age will apply in the Northern Territory from 1 January 2014
National Regulations regulation 239A
436 Until 1 January 2018 centre-based services located in remote or very remote areas are meeting regulations 132 133 and 134 for attendance of an early childhood teacher if the service has access to an early childhood teacher who works with the service at least 20 of the time calculated quarterly The early childhood teacher may be working with the service by means of information communication technology
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Last updated April 2017 Staffing arrangements Operational Requirements 195
D
General saving provisions
National Regulations regulation 239
437 Regulation 126 (and any regulation that applies in the place of that regulation) does not apply to a centre-based service that delivers a preschool program in a school and in a class or classes where a full-time education program is also being delivered to school children
National Regulations regulation 240
438 An educator at a centre-based service can be included to meet an educator-to-child ratio without having or actively working towards a certificate III level education and care qualification if the educator
bull has been continuously employed as an educator in an education and care service or a childrenrsquos service for at least 15 years up to immediately before 1 January 2012 (1 August 2012 in WA) and
bull is employed by the same provider as employed the educator immediately before 1 January 2012 (1 August 2012 in WA)
Guidance for regulatory authorities
439 A person with an approved early childhood teaching qualification can be counted towards the requirement to have at least 50 per cent of educators holding or actively working towards an approved diploma level education and care qualification However to be counted in an educator-to-child ratio the early childhood teacher must be working directly with children
440 A person who is actively working towards an approved early childhood teaching qualification may be counted towards the requirement for all other educators to hold or be actively working towards an approved certificate III level education and care qualification A person actively working towards an early childhood teaching qualification cannot be counted towards the diploma-level qualification requirement unless they already hold an approved certificate III or have completed the approved components of a certificate III (see the definition of lsquoactively working towardsrsquo in the Glossary)
441 To check whether general educator qualification requirements are being met authorised officers may ask to see the staff record (centre-based services) or the record of staff family day care coordinators and family day care educator assistants (for family day care services) required under regulation 177 These records should include evidence of any relevant qualification held by the staff members or that the staff member is actively working towards a qualification
442 Authorised officers should be aware that some staff may be taken to hold a qualification under a transitional or saving provision
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196 Operational Requirements Staffing arrangements Last updated April 2017
D
Qualification requirements family day care services
National Regulations regulation 127 NSW VIC QLD WA TAS ACT NT
443 A family day care educator must have (or be actively working towards) at least an approved certificate III level education and care qualification
444 See the section on Actively working towards an approved qualification for information about educators who meet this requirement
National Regulations regulation 128 NSW QLD WA TAS ACT
445 A family day care coordinator must have an approved diploma level education and care qualification
Guidance for regulatory authorities
446 Regulation 128 can be satisfied by a family day care coordinator who holds an approved early childhood teaching qualification (see the definition of lsquoapproved diploma level education and care qualificationrsquo in the Glossary)
447 Authorised officers should be aware that it is a condition of the service approval that an approved provider appoints sufficient coordinators to adequately monitor and support the family day care educators (see section 51) Refer to Applications and Approvals
448 Qualification requirements for family day care educators do not apply until 1 January 2014 for all states and territories except South Australia
Diploma level education and care qualifications
National Regulations regulation 137
449 There are two lists of approved diploma level education and care qualifications available on the ACECQA website at wwwacecqagovau
450 The list of approved diploma level education and care qualifications is relevant to educators and family day care coordinators and applicants for a supervisor certificate
451 The list of former approved diploma level education and care qualifications is relevant to educators and family day care coordinators and applicants for a supervisor certificate who obtained that qualification on or before 31 December 2011
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Last updated April 2017 Staffing arrangements Operational Requirements 197
D
General saving provision
Persons taken to hold approved diploma level education and care qualifications
National Regulations regulations 243 243A
452 A person is taken to hold an approved diploma level education and care qualification if immediately before 1 January 2012 (1 August 2012 in WA) the person
bull was recognised under the former education and care services law of any participating jurisdiction as a diploma level educator and employed and was engaged in a declared approved service or
bull held a qualification on the list of former approved diploma level education and care qualifications or
bull in Queensland held a diploma level qualification on the list of former approved certificate III and diploma level education and care qualifications for Queensland (international)
453 A person is taken to hold an approved diploma level education and care qualification for the purposes of regulation 128 (family day care coordinator qualifications) if immediately before 1 January 2012 the person held a qualification on the list of qualifications and former qualifications for family day care coordinators
Diploma level qualification requirements for centre-based services
Age of children Diploma level education and care qualification requirement
Birth to preschool age
From 1 January 2012 in NT
50 per cent of educators required to meet the relevant ratios in the service must have or be actively working towards at least an approved diploma level education and care qualification
From 1 January 2014 in all states and territories (1 August 2012 in WA)
50 per cent of educators required to meet the relevant ratios in the service must have or be actively working towards at least an approved diploma level education and care qualification
D
198 Operational Requirements Staffing arrangements Last updated April 2017
D
Diploma level qualification requirements for centre-based services
Age of children Diploma level education and care qualification requirement
Over preschool age
From 1 January 2012 in VIC QLD SA ACT (1 August 2012 in WA)
There are no national qualification requirements for educators at centre-based services educating and caring for children who are over preschool age State and territory qualification requirements (if applicable) continue to apply
See the lists of approved qualification requirements for children over preschool age on the ACECQA website
From 1 January 2014 in NT
There are no national qualification requirements for educators at centre-based services educating and caring for children who are over preschool age State and territory qualification requirements (if applicable) continue to apply
See the lists of approved qualification requirements for children over preschool age on the ACECQA website
Diploma level qualification requirements for family day care services
Age of children Diploma level education and care qualification requirement
All children From 1 January 2014 in NSW VIC QLD WA TAS ACT and NT Saving provision applies in SA
All family day care coordinators must hold an approved diploma level education and care qualification
From 1 January 2014 in all states and territories
All family day care coordinators must hold an approved diploma level education and care qualification
Guidance for regulatory authorities
454 Authorised officers should also be aware that there are lists of qualifications which apply only to educators working in Queensland Those lists are on the ACECQA website at wwwacecqagovau
Information for services
455 Authorised officers should advise approved providers the lists are subject to change and should be checked regularly
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Last updated April 2017 Staffing arrangements Operational Requirements 199
D
Certificate III level education and care qualifications
National Regulations regulations 137
456 There are two lists of approved certificate III level education and care qualifications available on the ACECQA website at wwwacecqagovau
457 The list of approved certificate III level education and care qualifications is relevant to educators in centre-based and family day care services
458 The list of former approved certificate III level education and care qualifications is relevant to educators in centre-based and family day care services who obtained that qualification on or before 31 December 2011
General saving provision
Persons taken to hold approved certificate III level education and care qualification
National Regulations regulation 244
459 A person is taken to hold an approved certificate lll level education and care qualification if immediately before 1 January 2012 (1 August 2012 in WA) the person
bull was recognised under the former education and care services law of any participating jurisdiction as a certificate lll level educator and was employed or engaged in a declared approved service or
bull held a qualification on the list of former approved certificate lll level education and care qualifications or
bull in Queensland held a qualification on the list of approved certificate III and diploma level education and care qualifications for Queensland (international)
D
200 Operational Requirements Staffing arrangements Last updated April 2017
D
Certificate III level qualification requirements for centre-based services
Age of children Certificate lll level education and care qualification requirement
Birth to preschool age
From 1 January 2014 in all states and territories
All other educators required to meet the relevant ratios at the service must have or be actively working towards at least an approved certificate III level education and care qualification
Over preschool age
From 1 January 2012 in VIC QLD SA ACT (1 August 2012 in WA)
There are no national qualification requirements for educators at centre-based services educating and caring for children who are over preschool age State and territory qualification requirements (if applicable) continue to apply See the lists of approved qualification requirements for children over preschool age on the ACECQA website
From 1 January 2014 in NT
There are no national qualification requirements for educators at centre-based services educating and caring for children who are over preschool age State and territory qualification requirements (if applicable) continue to apply See the lists of approved qualification requirements for children over preschool age on the ACECQA website
Certificate III level qualification requirements for family day care service
Age of children Certificate lll level education and care qualification requirement
All children From 1 January 2014 in NSW VIC QLD WA TAS ACT NT Saving provision applies in SA
All family day care educators must have or be actively working towards at least an approved certificate III level education and care qualification
Guidance for regulatory authorities
460 Authorised officers should also be aware that there are lists of qualifications which apply only to educators working in Queensland Those lists are on the ACECQA website at wwwacecqagovau
Information for services
461 Authorised officers should tell approved providers the lists are subject to change and should be checked regularly
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Last updated April 2017 Staffing arrangements Operational Requirements 201
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Actively working towards an approved qualification
National Regulations regulation 10
462 The National Regulations include provisions to recognise a person who is lsquoactively working towardsrsquo an approved qualification lsquoActively working towardsrsquo is defined at regulation 10 The requirements for different qualification levels are set out below
Actively working towards an approved qualification
Qualification level Requirement for lsquoactively working towardsrsquo
Certificate III A person is lsquoactively working towardsrsquo at least an approved certificate III level qualification if they
bull are enrolled in a course for an approved certificate III diploma or early childhood teaching qualification and
bull give the approved provider documentary evidence from the course provider that they
ndash have started the course and
ndash are making satisfactory progress towards completing the course and
ndash are meeting the requirements for maintaining the enrolment
Diploma A person is lsquoactively working towardsrsquo at least an approved diploma level qualification if they
bull are enrolled in a course for an approved diploma level or early childhood teaching qualification and
bull give the approved provider documentary evidence from the course provider that they
ndash have started the course and
ndash are making satisfactory progress towards completing the course and
ndash are meeting the requirements for maintaining the enrolment and
ndash have an approved certificate III level education and care qualification or
ndash have completed the prescribed units of study in an approved certificate III level education and care qualification as determined by ACECQA or
ndash have completed the percentage of total units of study required for completion of an approved early childhood teaching qualification as determined by ACECQA+
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202 Operational Requirements Staffing arrangements Last updated April 2017
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Actively working towards an approved qualification
Early childhood teacher
A person is lsquoactively working towardsrsquo an approved early childhood teaching qualification if they
bull are enrolled in a course for an approved early childhood teaching qualification and
bull give the approved provider documentary evidence from the course provider that they
ndash have started the course and
ndash are making satisfactory progress towards completing the course and
ndash are meeting the requirements for maintaining the enrolment and
ndash have an approved certificate III level education and care qualification or have completed the prescribed units of study in an approved certificate III level education and care qualification
The prescribed units include a list of competencies from the approved certificate III qualifications+ The percentage determined by ACECQA is lsquo30 or more of the total units required to complete any approved early childhood teaching qualificationrsquo
Guidance for regulatory authorities
463 ACECQA has determined that a person who holds the following is equivalent to an early childhood teacher
bull a primary teaching qualification that includes at least a focus on children aged 5 to 8 years old for example a qualification with a focus on children aged 3 to 8 or 5 to 12 and
bull teacher registration in Australia or accreditation in New South Wales and
bull an approved education and care diploma qualification or higher such as an approved graduate diploma
464 Under this provision a person is recognised as actively working towards an approved early childhood teacher qualification once they start studying an approved diploma level qualification or higher
465 This transitional measure was reviewed by the ACECQA Board in September 2016 The Board decided to extend the measure until the end of 2019 After the end of 2019 this transitional measure will cease however educators who obtained this combination of qualifications prior to the end of 2019 will continue to be recognised under this provision
Educator-to-child ratios
National Law section 169
466 The approved provider nominated supervisor and family day care educator must ensure the required educator-to-child ratios are met at all times
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Centre-based services
National Regulations regulation 122
467 An educator cannot be included in calculating the educator-to-child ratio at a centre-based service unless the educator is working directly with children at the service
National Regulations regulation 123 NSW VIC QLD WA SA TAS ACT NT
468 The table below summarises the national educator-to-child ratios for centre-based services set out in regulation 123
National ratios for centre-based services
Age of children Educator-to-child ratio Date requirement applies from
Birth to 24 months 14 1 January 2012 ndash in all states and territories (1 August 2012 in WA)
Over 24 months and less than 36 months
15 1 January 2012 ndash in ACT NT TAS
1 August 2012 ndash in WA
1 January 2016 ndash in NSW QLD SA
Saving provision applies in VIC
Over 36 months up to and including preschool age
111 1 January 2012 ndash in NT
1 January 2016 ndash in ACT QLD VIC
Saving provision applies in NSW SA TAS WA
Over preschool age No national ratio has been set (state and territory ratios may apply)
469 A child or two or more children from the same family being educated and cared for at a centre-based service in an emergency for a maximum period of two consecutive days do not need to be included in calculating the educator to child ratio
470 An approved provider can only permit additional children to be educated and cared for in an emergency if satisfied that it will not affect the health safety and wellbeing of all the children attending the service
Guidance for regulatory authorities
471 New national ratios are being implemented between 2012 and 2020 with some jurisdictions saving higher standards that apply in place of the national educator-to-child ratios Authorised officers should ensure they are aware of the jurisdiction-specific transitional or savings provisions that apply in their state or territory
Maximum number of children
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204 Operational Requirements Staffing arrangements Last updated April 2017
D
472 A centre-based service approval states the maximum number of children that may be educated and cared for at any one time and the approved provider must ensure this number is not exceeded except for children being educated and cared for in an emergency under regulation 123
473 An approved provider must also ensure the maximum number of children is not exceeded during events held within the servicersquos usual operating hours and excursions Children are considered as being educated and cared for by a service if they are enrolled at the service and have been signed in
474 For events held outside the usual operating hours the approved provider should make sure that families are invited on the condition that children remain in their care and are not being educated and cared for as part of a service
Mixed age ratios in centre-based services
475 For a mixed age group the minimum educator-to-child ratios for each age range must be met at all times
476 For centre-based services compliance with prescribed minimum ratios is to be assessed across the service This approach provides flexibility to more effectively respond to the needs of children
477 Maintaining the ratio for each age range of children in the mixed age group does not mean the educator-to-child ratio for the youngest age range must be applied to all children in an older age range In a mixed age group of children an educator who is caring for one age range of children can also be counted against another age range of children as long as the ratio for each age range is maintained and adequate supervision is maintained at all times
478 Refer to the example in the table below
NOTE In this example no jurisdictional specific ratios apply Authorised officers need to be aware of jurisdictional specific provisions in relation to educator-to-child ratios
Mixed age ratios in centre-based services
Age Ratio Number of children Minimum educators required
Birth to 24 months 14 3
325 to 35 months 15 5
36 months to preschool age 111 12
TOTAL ndash 20
479 The number of educators required for this group is three This is because the educator who is caring for the three children aged 0 to 24 months can also care for one child aged over 24 months and less than 36 months without exceeding the ratio of 14
480 This then requires a second educator for the remaining four children aged over 24 months
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Last updated April 2017 Staffing arrangements Operational Requirements 205
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and less than 36 months who can also care for one child aged 36 months to preschool age
481 A third educator is required for the remaining 11 children aged 36 months to preschool age (111)
482 The diagram below demonstrates this same principle
Educator
Birth to 24 months
25 to 35 months
36 months up to and including preschool age children
Children over preschool age
25 to 35 months (5)
36 months up to preschoolkinder (12)
Birth to 24 months (3)
483 The first step to calculate the number of educators necessary is to determine the number of educators needed for the youngest age range of children in the group Once that ratio is met an educator can also supervise children in another age range provided the youngest age range is still maintained
484 The above example also shows how an educator may be deployed across more than one age range while maintaining the required ratio for each age range
Family day care services
National Regulations regulation 124 NSW QLD SA WA TAS NT
485 A family day care educator must not educate and care for more than seven children at a family day care residence or approved family day care venue at any one time A maximum of four of these children can be preschool age or under
486 If the educatorrsquos own children or any other children are at the family day care residence while the service is operating they are to be counted in the overall total of children if they are under 13 years of age and there is no other adult present and caring for the children
487 No more than seven children can be educated and cared for at a family day care residence or an approved family day care venue at any one time This means that a family day care service cannot increase the number of educators at a residence in order to increase the number of
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206 Operational Requirements Staffing arrangements Last updated April 2017
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available places for children
NOTE This requirement does not apply if children are visiting another family day care residence with their educator as part of an excursion
488 In exceptional circumstances the approved provider of the family day care service may approve in writing a family day care educator to care for more than seven children or more than four children who are preschool age or under when
bull all the children being educated and cared for by the family day care educator are siblings in the same family or
bull a child is in need of protection under child protection law or
bull the family day care residence or approved family day care venue is in a rural or remote location and no alternative care is available
489 The table below summarises the national educator-to-child ratios for family day care services
Educator-to-child ratios for family day care services
Age Educator-to-child ratio Date requirement applies from
All children 17 with no more than four children preschool age or under
1 Jan 2012 ndash in ACT QLD SA VIC
1 Jan 2014 ndash in NSW NT TAS WA
Guidance for regulatory authorities
490 When checking compliance with regulation 124 authorised officers should discuss with the approved provider what led them to decide to approve a family day care educator educating and caring for more than seven children
491 If an approved provider has approved a family day care educator to provide education and care for more than seven children the regulatory authority might suggest they apply for waiver if the exceptional circumstances are ongoing
Time limit on lsquoexceptional circumstancesrsquo
492 There is no limit on how long the approved provider can approve a family day care educator to care for more than seven children in exceptional circumstances However authorised officers should consider whether the exceptional circumstances that justified the providerrsquos decision to allow more than seven children still exist For example has an appropriate alternative source of education and care become available
493 Regulation 124 requires the approved provider to consider the individual circumstances each time the family day care educator seeks approval to educate and care for more than seven children This means that the approved provider must approve each individual additional child and cannot give lsquoblanket approvalrsquo to a family day care educator caring for more than seven children
Rural and remote
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Last updated April 2017 Staffing arrangements Operational Requirements 207
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494 The AccessibilityRemoteness Index of Australia (ARIA+) may be used to help determine whether the family day care educator is in a remote or rural area There are five categories of remoteness major cities inner regional outer regional remote and very remote To find out which lsquocategoryrsquo a family day care educatorrsquos residence or venue falls into authorised officers should refer to their respective regulatory authority
495 lsquoOuter regionalrsquo is defined as those areas where geographic distance imposes a moderate restriction on accessibility to the widest range of goods services and opportunities for social interaction lsquoRemotersquo is defined as those areas where geographic distance imposes a high restriction and lsquovery remotersquo is defined as those areas where geographic distance imposes the highest restriction Services in a lsquoremotersquo lsquovery remotersquo or lsquoouter regional arearsquo under ARIA may be considered rural or remote In some cases a postcode may be classified as both lsquoinner regionalrsquo and lsquoouter regionalrsquo Where this arises the regulatory authority may consider a family day care educator operating within this postcode as being in a rural or remote area for the purposes of regulation 124
496 To establish whether the approved provider checked if alternative education and care was available authorised officers may talk to the approved provider about what they took into consideration for example socio-economic and geographic factors as well as the transport links and capacity of nearby services to provide the education and care required
D
208 Operational Requirements Staffing arrangements Last updated April 2017
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Family day care educator assistant
National Regulations regulation 144
497 A family day care educator assistant may provide assistance to a family day care educator while the educator is educating and caring for children as part of the approved service A family day care educator assistant may educate and care for the children in the absence of the family day care educator in limited circumstances as set out below
Circumstances in which a family day care assistant may educate and care for children
Transporting a child between the family day care residence or approved family day care venue and
bull a school or
bull another education and care service or childrenrsquos service or
bull the childrsquos home and
Providing education and care to a child in emergency situations such as when the family day care educator requires urgent medical care or treatment and
Providing education and care to a child when the family day care educator is absent to attend an appointment (other than a regular appointment) if
bull the childrsquos home and the absence is less than for four hours and
bull the childrsquos home and the approved provider of the family day care service has approved the absence and
bull the childrsquos home and notice of the absence has been given to the parents of the child(ren)
498 The approved provider of the family day care service must not approve a person to work as a family day care educator assistant unless the parents of the children to be educated and cared for have provided written consent to the use of the assistant
Guidance for regulatory authorities
499 The family day care educator assistant is not required to hold or be actively working towards a certificate III level education and care qualification However the family day care educator assistant is required to hold the first aid qualifications set out at First aid qualifications and training
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Educational leader
National Regulations regulations 118
4100 An educator coordinator or other individual who is suitably qualified and experienced must be designated to lead the development and implementation of the educational program (or curriculum) in the service
4101 The National Regulations require the approved provider to appoint the educational leader in writing and note this designation in the staff record of the service
Guidance for regulatory authorities
4102 The educational leader may be a nominated supervisor (who has suitable experience and qualifications) an early childhood teacher a manager or a diploma or certificate III qualified educator within the service The regulations do not specify a minimum qualification or the number of hours the educational leader should work or whether this person must work directly with children
Educator supervision requirements
National Regulations regulations 119ndash120
4103 A family day care educator and family day care educator assistant must be at least 18 years old
4104 An educator who is under the age of 18 years may work at a centre-based service provided that the person does not work alone and is adequately supervised at all times by an educator who is 18 years of age or over
Guidance for regulatory authorities
4105 To check these requirements are being complied with authorised officers may ask to see
bull staff rosters demonstrating that educators under 18 years of age are rostered with an educator who is 18 years of age or over
bull the register of family day care educators andor the staff record which includes record of date of birth and
bull policies and procedures in relation to staff or the engagement or registration of family day care educators and family day care educator assistants
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210 Operational Requirements Staffing arrangements Last updated April 2017
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First aid qualifications and training
National Regulations regulation 136
Centre-based services
4106 At all times and at any place that children are being educated and cared for by the service the following person(s) must be in attendance and immediately available in an emergency
bull at least one educator who holds a current approved first aid qualification and
bull at least one educator who has undertaken current approved anaphylaxis management training and
bull at least one educator who has undertaken current approved emergency asthma management training
4107 The same person may hold one or more of these qualifications
4108 If the approved service is provided by a school on a school site (for example a government kindergarten or preschool) the requirements at regulation 136(2) can be met by one or more staff members of the school holding the relevant qualifications who are in attendance at the school site and immediately available in an emergency
Family day care services
4109 Each family day care educator and family day care educator assistant engaged by or registered with the service must
bull hold a current approved first aid qualification and
bull have undertaken current approved anaphylaxis management training and
bull have undertaken current approved emergency asthma management training
Renewal of first aid qualifications
4110 Authorised officers can refer to the Safe Work Australia First Aid in the Workplace Code of Practice It recommends that persons required to maintain first aid qualifications should attend training on a regular basis to refresh their first aid knowledge and skills and to confirm their competence to provide first aid The Code of Practice also recommends that refresher training in CPR should be undertaken annually and first aid qualifications should be renewed every three years
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Last updated April 2017 Staffing arrangements Operational Requirements 211
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4111 The certificate should state the date on which the person completed the course as well as the expiry date which is typically three years from the date of completion The certificate may include additional requirements such as completing refresher training in CPR annually
General transitional provisions
Persons taken to hold approved first aid qualifications
National Regulations regulation 245 WA
4112 A person is taken to hold an approved first aid qualification if immediately before 1 January 2012 (1 August 2012 in WA) the person held or had completed a first aid qualification or training that met the requirements under a former education and care services law of a participating jurisdiction and that qualification or training is not included in the list of approved first aid qualifications and training published by ACECQA
4113 This provision applies until 31 December 2012 (31 July 2013 in WA) or the date on which the qualification or training is due to be renewed or updated (whichever is earlier)
Anaphylaxis management training
National Regulations regulation 246 WA
4114 If an educator trained in anaphylaxis management was not required to be in attendance immediately before 1 January 2012 (1 August 2012 in WA) the approved provider does not have to comply with regulation 136(1)(b) and 136(3)(b) until 1 January 2013 (1 August 2013 in WA)
Emergency asthma management training
National Regulations regulation 247 WA
4115 If an educator trained in asthma management was not required to be in attendance immediately before 1 January 2012 (1 August 2012 in WA) the approved provider does not have to comply with regulations 136(1)(c) and 136(3)(c) until 1 January 2013 (1 August 2013 in WA)
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212 Operational Requirements Staffing arrangements Last updated April 2017
D
Guidance for regulatory authorities
4116 Authorised officers should check whether anaphylaxis management or emergency asthma management training was required in their state or territory before 1 January 2012 (1 August 2012 in WA)
4117 If children are taken on an excursion the approved provider must ensure that a person(s) with first aid qualifications and training is in attendance on the excursion If some children remain on the service premises a person(s) with first aid qualifications and training must also remain on the premises
Approval and determination of qualifications
National Law sections 169 225
4118 One of the functions of ACECQA is to determine the qualifications required to be held by educators
4119 ACECQA may on application determine qualifications including foreign qualifications to be equivalent to the qualifications required by the National Regulations
National Regulations regulation 137
4120 ACECQA is responsible for publishing lists of qualifications and first aid training it has approved for the purposes of the National Law The lists of approved qualifications and training are available on the ACECQA website at wwwacecqagovau
4121 An individual with an early childhood qualification(s) not included on the approved qualifications lists can apply to ACECQA to have their qualifications assessed for equivalence A person whose qualification is approved will receive a certificate from ACECQA stating that they have been approved to work as
bull an early childhood teacher or
bull a diploma-level educator or
bull a certificate III-level educator
Guidance for regulatory authorities
4122 Authorised officers should refer people to the ACECQA website for information about approved qualifications and applications for assessment of equivalence Where an approved provider is unsure whether a person has been assessed as equivalent or whether the personrsquos certificate is authentic they should contact ACECQA for advice
D
Last updated April 2017 Staffing arrangements Operational Requirements 213
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Staff records centre-based services
National Regulations regulations 145ndash152
4123 The staff record for a centre-based service must include the below information
Information that must be included in a staff record (centre-based services)
Full name address and date of birth of the nominated supervisor and each other staff member
Evidence of any relevant qualifications (or if applicable evidence that the nominated supervisor or staff member is actively working towards that qualification) and approved training (including first aid training) held by the nominated supervisor and each other staff member
Record of evidence of fitness and propriety of staff members
bull except in the case of NSW Queensland and Tasmania if the staff member has provided proof of their current teacher registration a record of the identifying number of the staff memberrsquos teacher registration and the expiry date of that registration
bull if the education and care service is located in a jurisdiction with a working with children law or a working with vulnerable people law a record of the identifying number of the current check conducted under that law and the checkrsquos expiry date if applicable
bull in Tasmania a record of the identifying number of the staff memberrsquos safety screening clearance or working with vulnerable people registration and the expiry date of that clearance or registration
The name of the person designated as the educational leader
Full name address and date of birth of each student or volunteer who participates and the date and hours of participation
The name of the responsible person for each time that children are being educated and cared for by the service
The name of each educator who works directly with children including the hours that each educator works directly with children and
Record of access to early childhood teachers including
bull for services providing education and care to less than 25 children preschool age or under the period that an early childhood teacher is working with the service including when the teacher did and did not work directly with children and
bull for services providing education and care to 25 or more children preschool age or under the period that an early childhood teacher is in attendance at the service
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214 Operational Requirements Staffing arrangements Last updated April 2017
D
Information that must be included in a staff record (centre-based services)
Record of evidence of fitness and propriety for a nominated supervisor
bull if the nominated supervisor used teacher registration as proof of fitness and propriety when applying for a supervisor certificate a record of the identifying number of their teacher registration and the expiry date
bull if the education and care service is located in a jurisdiction with a working with children law or working with vulnerable people law a record of the identifying number of the current check conducted under that law and the checkrsquos expiry date if applicable
bull in Tasmania a record of the identifying number of the nominated supervisorrsquos safety screening clearance and its expiry date
Information for services
4124 The authorised officer may refer the approved provider to the template staff record on the ACECQA website at wwwacecqagovau Providers are not required to use the template
Register of family day care educators
National Law section 269
4125 The approved provider of a family day care service must keep at its principal office a register of each family day care educator and any other person engaged by or registered with a family day care service to educate and care for a child
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Last updated April 2017 Staffing arrangements Operational Requirements 215
D
National Regulations regulation 153
4126 The register of family day care educators must include the below information in relation to each family day care educator engaged by or registered with the service
Information that must be included in the register of family day care educators
The name address and date of birth of each educator
The contact details of the educator
The address of the residence or approved venue including a statement as to whether it is a residence or venue
The date the educator was engaged or registered and when applicable the date the educator ceased to be engaged or registered (for three years from that date)
The days and hours when the educator usually provides education and care
If the educator is an approved provider or certified supervisor the provider approvalsupervisor certificate number and date it was granted
Evidence of the educatorrsquos qualifications including first aid qualifications and training and if applicable that the educator is actively working towards the qualification
Evidence of any other training completed by the educator
A record of the working with children or working with vulnerable people check including an identifying number and expiry date (if applicable)
The name and date of birth of each child the educator cares for and the days and hours the educator usually provides care to that child and
The full name and date of birth of other people who normally reside at the family day care residence and a record of any working with children or working with vulnerable people check for those people including the identifying number and expiry date and date sighted by the approved provider or nominated supervisor of the service
Guidance for regulatory authorities
4127 The authorised officer may refer the approved provider to the template register of family day care educators on the ACECQA website at wwwacecqagovau Providers are not required to use the template
D
216 Operational Requirements Staffing arrangements Last updated April 2017
D
Records of family day care service staff
National Regulations regulation 154
4128 The approved provider must keep a record of staff family day care coordinators and family day care educator assistants which includes the below information
Information that must be included in the record of family day care service staff
The name of the person designated as the educational leader
The full name address and date of birth of the nominated supervisor and each staff member
Evidence of any relevant qualifications (or if applicable that the staff member is actively working towards that qualification) approved training (including first aid qualifications and training) and working with children checks (including identifying number and expiry date) held by the nominated supervisor and each other staff member
Full name address and date of birth of each student or volunteer who participates and the date and hours of participation and
In relation to each family day care educator assistant approved by the service the following information
bull full name address and date of birth of the educator assistant
bull the contact details of the educator assistant
bull the name of the family day care educator to be assisted by the educator assistant
bull the date that the educator assistant was approved by the service
bull when applicable the date that the educator assistant ceased to be approved by the service for the period of three years following that date
bull evidence that the educator assistant has completed approved first aid qualifications and training and
bull the identifying number of the current working with children check working with children card or working with vulnerable people check or record of criminal history or teacher registration of the educator assistant and expiry date (if applicable) and date sighted by the approved provider or nominated supervisor of the family day care service
Information for services
4129 The authorised officer may refer the approved provider to the template records of family day care staff on the ACECQA website at wwwacecqagovau Providers are not required to use the template
D
Last updated April 2017 Relationships with children Operational Requirements 217
D
Responsibilities of the approved provider nominated supervisor and family day care educator
Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Educational leader (regulation 118) 3 3
Family day care educator and educator assistants to be at least 18 years old (regulation 119) 3 3
3
Educators who are under 18 to be supervised (regulation 120)
3 3 3 3
Educators must be working directly with children to be included in ratios (regulation 122)
3
Educator-to-child ratios ndash centre-based services (regulation 123 section 169) 3 3 3
3
Educator-to-child ratios ndash family day care services (regulation 124 section 169)
3 3 3 3 3
Centre-based services ndash general educator qualifications (regulation 126 section 169)
3 3 3 3
Family day care educator qualifications (regulation 127 section 169)
3 3 3 3 3
Family day care coordinator qualifications (regulation 128 section 163)
3 3 3
Requirements for educators who are early childhood teachers (regulation 130ndash134 section 169)
3 3 3 3
First aid qualifications (regulation 136 section 169) 3 3 3 3
Family day care educator assistant (regulation 144)
3
Staff and educator records ndash centre-based services (regulations 145ndash152)
3
Register of family day care educators and records of family day care service (section 269 regulations 153ndash154)
3
D
218 Operational Requirements Relationships with children Last updated April 2017
D
5 Relationships with children
Inappropriate discipline
National Law section 166
51 Approved providers nominated supervisors staff members volunteers and family day care educators must ensure that no child being educated and cared for by the service is subject to any form of corporal punishment or any discipline that is unreasonable in the circumstances
Guidance for regulatory authorities
52 Authorised officers may discuss with the approved provider and nominated supervisor what measures they have in place to ensure children at the service are not subject to any form of corporal punishment or unreasonable discipline Compliance may be demonstrated by regular staff awareness sessions and a clear reporting structure for concerns as well as a clear and comprehensive policy and procedure in place about staff interactions with children
53 If an authorised officer has concerns about how children are disciplined they may examine the policies and procedures about staff interactions with children as required under regulation 168 This can help the authorised officer determine whether the problem relates to implementing good practice or whether there are broader issues with awareness and understanding of the requirement
Interactions with children
National Regulations regulation 155
54 An approved provider must take reasonable steps to ensure the service provides education and care in a way that
bull encourages the children to express themselves and their opinions
bull allows the children to undertake experiences that develop self-reliance and self-esteem
bull maintains at all times the dignity and rights of each child
bull gives each child positive guidance and encouragement toward acceptable behaviour and
bull has regard to family and cultural values age physical and intellectual development and abilities of each child
D
Last updated April 2017 Relationships with children Operational Requirements 219
D
Relationships in groups
National Regulations regulation 156
55 The approved provider must take reasonable steps to ensure that the service provides children with opportunities to interact and develop respectful and positive relationships with each other and with staff members and volunteers at the service
56 In doing so the approved provider must have regard to the size and composition of the groups in which children are being educated and cared for by the service
Guidance for regulatory authorities
57 In considering whether the approved provider has taken reasonable steps to provide children at the service with opportunities to interact and develop respectful and positive relationships the authorised officer may consider
bull the servicersquos policy on interactions with children (required under regulation 168)
bull whether any attachment occurs between children and educators
bull whether the service has implemented inclusive practices which allow all children to participate in the program regardless of background or ability
bull whether the environment and routines at the service assist children to manage their own behaviour and promote positive relationships and
bull whether group sizes take into account childrenrsquos ages development and individual needs
Information for services
58 Authorised officers should work with services to ensure that group sizes achieve positive outcomes for children Authorised officers may talk to the approved provider about giving consideration to the physical environment service philosophy development needs of the children educatorsrsquo qualifications and experience and the operational requirements of the service when determining group sizes
59 Group size affects factors such as noise level the amount of stimulation and level of confusion Smaller groups enable children to form caring relationships with one another engage in meaningful shared experiences and discovery through play Large groups may lead to a loss of intimacy and result in overly restrictive controlling or detached caregiving Small groups are particularly important for infants Smaller group sizes are also associated with a lower risk of infection and appear to improve the safety of children
D
220 Operational Requirements Collaborative partnerships with families and communities Last updated April 2017
D
Responsibilities of the approved provider nominated supervisor and family day care educator
Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Interactions with children (regulation 155)
3
Relationships in groups (regulation 156)
3 3
Inappropriate discipline (section 166)
3 3 3 3
Waivers do not apply to any of these requirements
This offence also applies to staff members and volunteers at the service
D
Last updated April 2017 Collaborative partnerships with families and communities Operational Requirements 221
D
6 Collaborative partnerships with families and communities
Access for parents
National Regulations regulation 157
61 A parent of a child may enter a servicersquos premises at any time the child is being educated and cared for by the service
62 The approved provider nominated supervisor or family day care educator is not required to allow a parent to enter the service premises if
bull permitting the parentrsquos entry would pose a risk to the safety of the children and staff of the service
bull permitting the parentrsquos entry would conflict with any duty of the provider supervisor or educator under the National Law or
bull they reasonably believe that permitting the parentrsquos entry would contravene a court order
63 A parent includes a guardian of a child or a person who has parental responsibility for a child under a decision or order of a court
Guidance for regulatory authorities
64 The regulatory authority may suspect an approved provider nominated supervisor or family day care educator has failed to comply with this requirement if for instance they are notified of a complaint from a parent who has been refused access In such cases the regulatory authority should seek to establish whether entry was refused based on one of the three exceptions outlined above by discussing the factors that informed the decision to refuse the parent entry
65 For example if the approved provider nominated supervisor or family day care educator says the parent was denied access because an aggravated violence order is in place against the parent the authorised officer may ask to see the childrsquos enrolment record which must include details of any court orders parenting orders or parenting plans in relation to the child or access to the child (regulation 160)
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222 Operational Requirements Leadership and service management Last updated April 2017
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66 Authorised officers should note that where a decision to refuse access arose as a result of circumstances which posed a risk to the health safety and wellbeing of children the incident should be reported to the regulatory authority (regulation 175) Where this incident relates to a parent complaint refer also to the section on Leadership and service management
67 Authorised officers should be aware that providers are required to have policies and procedures about the delivery and collection of children (regulation 168)
Information for services
68 Approved providers are not required to have policies about access to children However authorised officers may suggest that an approved provider develop a policy about access to children to clarify for parents the circumstances in which they may be denied access Similarly authorised officers may suggest to approved providers that they keep a record of any decisions to refuse access to parents
Responsibilities of the approved provider nominated supervisor and family day care educator
Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Access for parents (regulation 157)
3 3 3 3
Offence relating to direction to exclude inappropriate persons (section 171)
3 3 3 3
Waivers do not apply to any of these requirements
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Last updated April 2017 Leadership and service management Operational Requirements 223
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7 Leadership and service management
Management of services
Childrenrsquos attendance record National Regulations regulation 158
71 The approved provider must ensure that a record of attendance is kept for the service that
bull records the full name of each child attending the service
bull records the date and time each child arrives and departs and
bull is signed at the time the child arrives and departs by either the person who delivers the child or collects the child or the nominated supervisor or an educator
72 A preschool program provided by a school is not required to comply with this requirement if it keeps attendance records in accordance with the education law or government education department policy that applies in that jurisdiction
National Regulations regulation 159
73 The family day care educator must keep a record of attendance for each child attending the educatorrsquos residence or venue that
bull records the full name of each child
bull records the date and time each child arrives and departs and
bull is signed at the time the child arrives and departs by either the person who delivers the child or collects the child or if the signature of the person who delivers the child cannot reasonably be obtained the family day care educator
Guidance for regulatory authorities
74 The family day care educatorrsquos own children (under 13 years of age) do not need to be signed in and out each day
75 The approved provider does not need to keep the record of attendance if it is kept by the family day care educator (see regulation 177(5))
Information for services
76 Where approved providers are concerned about managing family day care educator-to-child ratios authorised officers may suggest the provider require family day care educators to keep a record of when they are caring for their own children while also educating and caring for children as part of the service so the provider can make sure ratio requirements are met
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224 Operational Requirements Leadership and service management Last updated April 2017
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Childrenrsquos enrolment record National Regulations regulations 160ndash162
77 The approved provider must ensure that an enrolment record is kept for each child enrolled at the service The family day care educator must keep an enrolment record for each child educated and cared for by the educator The enrolment record must include the below information
Information that must be included in enrolment record
Full name date of birth and address of the child
The name address and contact details ofbull each known parent of the childbull any emergency contactbull any authorised nomineebull any person authorised to consent to medical treatment or administration of medication andbull any person authorised to give permission to the educator to take the child off the premises
Details of any court orders parenting orders or parenting plans
Gender of the child
Language used in the childrsquos home
Cultural background of the child and their parents
Any special considerations for the child such as cultural dietary or religious requirements or additional needs
Authorisations forbull the approved provider nominated supervisor or an educator to seek medical treatment andor
ambulance transportation for the child andbull the service to take the child on regular outings
Name address and telephone number of the childrsquos registered medical practitioner or medical service
Medicare number (if available)
Details of any specific healthcare needs of the child including any medical conditions allergies or diagnosis that the child is at risk of anaphylaxis
Any medical management plan anaphylaxis medical management plan or risk minimisation plan
Dietary restrictions
Immunisation status
If the approved provider or a staff member has sighted a child health record a notation to that effect and
In NSW certificates for immunisation or exemption for the child as required under the Public Health Act 2010 NSW
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Last updated April 2017 Leadership and service management Operational Requirements 225
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Other adults at the family day care service to be fit and proper
Residents and family day care educator assistants
National Regulations regulation 163
78 The approved provider of a family day care service must take reasonable steps to ensure that family day care educator assistants and any persons age 18 years or over who live at the family day care residence are fit and proper people to be in the company of children To do this the approved provider must assess each person by taking into account one of the following
bull a criminal history check issued in the previous six months
bull a current working with children check or card or working with vulnerable people check based on a criminal history record check or
bull a current teacher registration
79 In NSW and Queensland the approved provider must consider the personrsquos current working with children check or card In Victoria the approved provider must consider the personrsquos current working with children check or current teacher registration In Tasmania the approved provider must consider the personrsquos safety screening clearance or working with vulnerable people registration
National Regulations regulation 164
710 The approved provider of a family day care service must require each family day care educator to notify the provider of
bull any new persons aged 18 years or over who live or intend to live at the educatorrsquos family day care residence and
bull any circumstances which may affect the fitness and propriety of a resident at a family day care educatorrsquos residence or a family day care educator assistant who has previously been assessed as fit and proper
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226 Operational Requirements Leadership and service management Last updated April 2017
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Visitors to family day care residences and approved family day care venues
National Regulations regulation 165 WA
711 An approved provider must take all reasonable steps to ensure a record of all visitors to a family day care residence or approved family day care venue is kept A family day care educator must keep a record of all visitors to the educatorrsquos residence or venue while children are being educated and cared for at the residence or venue The record must include the signature of the visitor and the time of arrival and departure
National Regulations regulation 166
712 The approved provider must take all reasonable steps to make sure a child being educated and cared for is not left alone with a visitor The family day care educator must not leave a child being educated and cared for at the residence or venue alone with a visitor
Guidance for regulatory authorities
713 See Supervising unauthorised persons below for information about who is considered to be a visitor under the National Law
Supervising unauthorised persons
National Law section 170 TAS
714 An approved provider and nominated supervisor (except for those in Tasmania) must ensure that an unauthorised person does not remain on the education and care service premises while children are being educated and cared for at the premises unless the person is under the direct supervision of an educator or other staff member
715 A family day care educator (except for those in Tasmania) must ensure that an unauthorised person does not remain on the education and care service premises while children are being educated and cared for at the premises unless the person is under the direct supervision of the educator
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Last updated April 2017 Leadership and service management Operational Requirements 227
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716 The National Law defines a person who is not an lsquounauthorised personrsquo as set out below
People who are not an unauthorised person
A person who holds a current working with children check or card
A parent or family member of a child at the service (not including a parent or family member whose access to the child is prohibited by a court or tribunal order of which the approved provider nominated supervisor or family day care educator is aware or who is an inappropriate person)
An authorised nominee of a child at the service
In the case of an emergency medical or emergency service personnel or
A person who is permitted under the relevant working with children law to remain at the service premises without holding a working with children check or card
Guidance for regulatory authorities
717 Parents family members and authorised nominees are not unauthorised persons and therefore are not required to be directly supervised while on the education and care service premises Similarly educators who are part of the family day care service are registered with the service and considered to be an appropriate person to educate and care for children so are not considered to be an unauthorised person This also applies to the coordinator of the family day care service
Information for services
718 The National Law and Regulations do not require an approved provider or nominated supervisor of a centre-based service to keep a record of visitors However they may decide to keep a visitorrsquos book to help ensure any unauthorised persons do not remain at the service unless under direct supervision
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228 Operational Requirements Leadership and service management Last updated April 2017
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Record of servicersquos compliance
National Regulations regulation 167
719 The approved provider must keep a record of the servicersquos compliance The record must include
bull details of any amendment to the service approval made by the regulatory authority under section 55 of the National Law
bull details of any suspension of the service approval other than a voluntary suspension and
bull details of any compliance direction or notice issued to the approved provider in respect of the service
720 The record must not include any information that identifies any person other than the approved provider The details of an amendment suspension compliance direction or notice do not need to be included if the period for seeking review has not yet expired or a review request has not yet been determined Details also do not need to be included if a review has been conducted and the amendment suspension compliance notice or compliance direction was not confirmed
Guidance for regulatory authorities
721 See Information and record-keeping requirements below for more information
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Policies and procedures
National Regulations regulation 168 WA
722 The approved provider must ensure the service has in place policies and procedures in relation to the matters set out in the table below
Policies and procedures
Health and safety including
bull nutrition food and beverages dietary requirements
bull sun protection
bull water safety
bull administration of first aid
Incident injury trauma and illness procedures (regulation 85)
Dealing with infectious diseases (regulation 88)
Dealing with medical conditions (regulation 90)
Emergency and evacuation (regulation 97)
Delivery to and collection of children from the education and care service (regulation 99)
Excursions (regulations 100ndash102)
Providing a child safe environment
Staffing including
bull code of conduct for staff members
bull determining the responsible person
bull participation of volunteers and students
Interactions with children (regulations 155ndash156)
Enrolment and orientation
Governance and management of the service including confidentiality of records
Acceptance and refusal of authorisations
Payment of fees and provision of a statement of fees and
Dealing with complaints
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230 Operational Requirements Leadership and service management Last updated April 2017
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National Regulations regulation 169
723 For a family day care service the approved provider must also ensure the service has in place the policies and procedures in relation to the below matters
Policies and procedures for a family day care service
Assessment and approval and reassessment of approved family day care venues and family day care residences (regulation 116)
Engagement or registration of family day care educators
Keeping a register of family day care educators (regulation 153)
Monitoring support and supervision of family day care educators
Assessment of family day care educators family day care educator assistants and people living at family day care residences (regulation 163)
Visitors to family day care residences and venues while children are being educated and cared for
Provision of information assistance and training to family day care educators and
Engagement or registration of family day care educator assistants
National Regulations regulation 170
724 The approved provider must take reasonable steps to ensure that the nominated supervisor staff members and any volunteers at the service follow the policies and procedures
National Regulations regulation 171
725 The policies and procedures must be readily accessible to the nominated supervisor staff members and volunteers Current copies must be available for inspection at all times the service is operating and on request
National Regulations regulation 172
726 Parents of children at the service must be notified at least 14 days before making any change to a policy or procedure required under regulations 168 and 169 if
bull the change may have a significant impact on the servicersquos provision of education and care to any child enrolled at the service
bull the change may have a significant impact on the familyrsquos ability to utilise the service or
bull the change will affect the fees charged or the way in which fees are collected
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727 The approved provider does not have to comply with the notice period if the provider considers it would pose a risk to the safety health or wellbeing of any child at the service to do so In that case the approved provider must notify parents as soon as practicable after making the change
Guidance for regulatory authorities
728 Authorised officers should ensure there are policies and procedures in place at the service which cover the matters set out in regulation 168 and for family day care services regulation 169 The policies do not have to be in any particular style or format and do not need to be titled to reflect the exact wording of the National Regulations
729 The prescribed policies and procedures must be available for inspection at a centre-based servicersquos premises and for family day care services at each family day care residence and approved venue and any office of the family day care service This requirement may be met through a paper copy or electronic version
Acceptance and refusal of authorisations
730 Authorisation must be obtained in respect of administering medication to children (regulation 92) for children leaving the premises in the care of someone other than a parent (regulation 99) and for children to be taken on excursions (regulation 102) The servicersquos lsquoacceptance and refusal of authorisationsrsquo policy should set out the circumstances the provider would accept (or refuse) an authorisation For example the policy may state that authorisations must be in writing signed and dated and clearly state the name of the child to whom the authorisation relates
Information for services
731 Authorised officers may choose to talk to approved providers about developing and maintaining policies informed by current best practice from relevant recognised authorities For example a sun protection policy may reference the information from Cancer Council Australia
732 Authorised officers may find that some approved providers have decided to restrict who can be nominated to collect a child For example they may not allow children to be collected by a person under the age of 16 year Where the approved provider has decided to do this it should be documented in their policy about collection of children Authorised officers may choose to talk to approved providers about whether they have taken into consideration that some parents may be less than 18 years of age
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232 Operational Requirements Leadership and service management Last updated April 2017
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Information and record-keeping requirements
Information to be displayed at the education and care service
National Law section 172
National Regulations regulation 173
733 The approved provider must ensure the information set out in the table below is positioned so that it is clearly visible to anyone from the main entrance to the education and care service premises
Information to be displayed
The approved providerrsquos name approval number and any conditions on the provider approval
The approved servicersquos name approval number and any conditions on the service approval
The nominated supervisorrsquos name or the prescribed class to which the nominated supervisor belongs
The servicersquos current ratings against each quality area and the overall rating
Whether a waiver is in force at the service and if so which elements andor regulations have been waived the duration of the waiver and whether the waiver is a temporary or service waiver
The hours and days of operation of the service
The name and telephone number of a person to whom complaints can be addressed
The name and position of the responsible person at a centre-based service at any given time
The name of the educational leader
The contact details of the regulatory authority
If applicable a notice stating that a child that has been diagnosed as at risk of anaphylaxis is enrolled at the service and
If applicable a notice of an occurrence of an infectious disease at the service
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Guidance for regulatory authorities
734 Prescribed information about anaphylaxis or infectious diseases should be displayed at a family day care residence or approved family day care venue if applicable to a child who attends that specific family day care residence or venue It should be displayed at the family day care office if children or parents regularly attend the office
735 The National Law and Regulations do not prescribe how this information should be displayed Some information could be permanently displayed as a laminated poster or framed certificate while other information (such as information which is updated regularly) could be displayed on a whiteboard
Reporting information to the regulatory authority ndash approved provider and approved service
National Law sections 173 174
National Regulations regulations 174 175
736 The approved provider must notify the regulatory authority that granted the provider approval if any of the below events occur in relation to the approved provider or each approved service operated by the provider
Events that must be notified to the regulatory authority
A change to the name of the approved provider (14 days)
Any appointment or removal of a person with management or control of a service operated by the approved provider (14 days)
A failure to commence operating a service within six months (or other time agreed with the regulatory authority) after being granted approval for the service (14 days)
Any change to the fitness and propriety of the approved provider (7 days)
Any change to the address or principal office of the approved provider or the approved providerrsquos contact details (7 days) and
The appointment of receivers or liquidators or administrators to the approved provider or other matters that affect the financial viability and ongoing operation of the service (7 days)
737 The notification must be made in writing within the time period specified above of the event occurring or of the approved provider becoming aware of the event
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234 Operational Requirements Leadership and service management Last updated April 2017
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Reporting information to the regulatory authority ndash approved service
National Law section 173
National Regulations regulations 174 175
738 The approved provider must notify the regulatory authority of the events set out in the table below in relation to an education and care service operated by the provider
Information that must be reported
The suspension or cancellation of a working with children card or teacher registration or disciplinary proceedings under an education law of a participating jurisdiction in respect of a certified supervisor engaged by the service
The end of a nominated supervisorrsquos employment or engagement with the service or withdrawal of their consent to the nomination
Any proposed change to the education and care service premises (other than a family day care residence)
Ceasing to operate the education and care service
A change of location of the family day care service principal office
Any change to the hours and days of operation of the service
Any change to the state or territory in which the family day care service operates
If a new approved family day care venue is added to the service and
Any circumstances arising at the service which pose a risk to the health safety and wellbeing of a child or children at the service
739 The notification must be in writing to the regulatory authority in which the service approval was granted or for a family day care service the regulatory authority in each jurisdiction the family day care service operates The notification must be made within seven days of the event or within seven days of the approved provider becoming aware of the event
740 If the approved provider intends to transfer the service approval the transferring and receiving approved providers must jointly notify the regulatory authority within 42 days before the transfer is intended to take effect or a lesser period agreed by the regulatory authority (section 59)
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Guidance for regulatory authorities
741 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
742 When regulatory authorities receive a notification of a change to the location of the principal office of a family day care service they should update the service approval accordingly using section 55 of the National Law See Applications and Approvals ndash Amendment of service approval without application
Reporting information to the regulatory authority ndash serious incidents change of circumstances and complaints
National Law section 174
National Regulations regulations 12 175
743 The approved provider must also notify the regulatory authority of the following events in relation to an education and care service operated by the provider
bull any serious incident at the service or any incident that requires the approved provider to close the service or to reduce the number of children attending the service for a period
bull complaints alleging the safety health or wellbeing of a child or children is or was being compromised while the child or children are or were being educated and cared for by the service and
bull complaints alleging the National Law has been contravened
bull the attendance of any additional children being educated and cared for in an emergency including a description of the emergency and a statement by the approved provider that they have taken into account the safety health and wellbeing of all children at the service when deciding to provide education and care for the additional children
744 One form of serious incident is lsquoan incident involving serious injury or trauma to or illness of a child while being educated and care for by an education and care service which a reasonable person would consider required urgent medical attention from a registered medical practitioner or for which the child attended or ought reasonably to have attended a hospitalrsquo (regulation 12(b))
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236 Operational Requirements Leadership and service management Last updated April 2017
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745 The notification must be in writing to the regulatory authority in which the service approval was granted or for a family day care service the regulatory authority in each jurisdiction the family day care service operates The notification must be made within 24 hours of the event or the person becoming aware of the event
746 In the case of the death of a child the regulatory authority must be notified as soon as practicable but within 24 hours of the death or the time the person becomes aware of the death
747 In the case of the attendance of additional children being educated and cared for in an emergency the regulatory authority must be notified within 24 hours of the additional children commencing attendance at the service
Guidance for regulatory authorities
748 The intent of the National Regulations is to ensure that regulatory authorities are notified of incidents that seriously compromise the health safety or wellbeing of children The notification of such incidents informs the regulatory authority that a serious incident has occurred so that it is able to take appropriate action
Serious incidents
749 Applications and notifications can be submitted online using the National Quality Agenda (NQA) IT System or by mailing faxing or emailing an application to the relevant regulatory authority The NQA IT System and application and notification forms can be accessed on the ACECQA website at wwwacecqagovau
Information for services
750 The following information is available on the ACECQA website at wwwacecqagovau Authorised officers may discuss this information with approved providers to clarify requirements about what incidents must be reported to the regulatory authority
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Last updated April 2017 Leadership and service management Operational Requirements 237
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751 Below are some examples of the sorts of serious incidents about which regulatory authorities would expect to be notified (note this is not an exhaustive list)
Examples of a serious incident
Head injuries
Fractures
Burns
Removal of fingers
Meningococcal infection
Anaphylactic reaction requiring hospitalisation
Witnessing violence or a frightening event
Epileptic seizures
Bronchiolitis
Whooping cough
Measles
Diarrhoea requiring hospitalisation
Asthma requiring hospitalisation and
Sexual assault
752 If the approved provider is not aware that the incident was serious until sometime after the incident they must notify the regulatory authority within 24 hours of becoming aware that the incident was serious For example where a child hurts their arm at the service but is in no obvious pain and continues to play If the parent later advises that the childrsquos symptoms had worsened and a fractured arm had been confirmed then the approved provider should report the incident as a serious incident
753 If it is not practicable to notify the regulatory authority using the relevant form (because for example of the extreme urgency of the notification or difficulty getting the notification forms signed by the number of people indicated by the form) the notification can be made initially in whatever way is best in the circumstances The important thing is for the notification to be made within 24 hours
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238 Operational Requirements Leadership and service management Last updated April 2017
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Matters which impact on day-to-day operation of the service or may pose a risk to children
Information for services
754 The intent of the National Regulations is to ensure that regulatory authorities are notified of circumstances that pose a significant risk The concern is with situations that impact negatively on the operation of the service This is separate from the requirement to notify a lsquoserious incidentrsquo involving a particular child
755 An example of circumstances that need to be notified is where parents may be unable to get to a service to collect their children because the service is in a flood affected area with the flood water rising
756 Another example would be if there is a land subsidence at the property adjoining a service The service may be deemed structurally safe by experts and remain operational but a large hole in the neighbouring property could potentially pose a risk to the health safety and wellbeing of children
757 These circumstances are more about situations that have happened to or impacted on the operation of the service rather than an incident that has occurred directly to a child
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Requirement to keep enrolment and other documents
National Law section 175 WA
National Regulations regulation 177
758 The approved provider must keep the documents set out in the table below available for inspection by an authorised officer
Documents for inspection
Documentation of child assessments or evaluations for delivery of the educational program (regulation 74)
Incident injury trauma and illness record (regulation 87)
Medication record (regulation 92)
Record of assessments of family day care residences and approved family day care venues (regulation 116)
For centre-based services ndash a staff record (regulation 145)
Record of volunteers and students (regulation 149)
Record of the responsible person (regulation 150)
For centre-based services ndash record of educators working directly with children (regulation 151)
Record of access to early childhood teachers (regulation 152)
For family day care services ndash a record of staff family day care coordinators and family day care educator assistants (regulation 154)
Childrenrsquos attendance record (regulation 158)
Child enrolment records (regulation 160)
Record of the servicersquos compliance (regulation 167)
Record of certified supervisors placed in day-to-day charge (section 162) and
Evidence of current prescribed insurance (unless the prescribed insurance is a policy of insurance or an indemnity provided by the government of a state or territory) (regulation 180)
759 The approved provider must take reasonable steps to make sure the documents are accurate The approved provider does not need to keep a document if the equivalent is kept by the family day care educator (see below)
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240 Operational Requirements Leadership and service management Last updated April 2017
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Guidance for regulatory authorities
760 The requirement for approved providers to keep a record of educators working directly with children is intended to assist regulatory authorities to monitor compliance with educator-to-child ratio requirements and adequate supervision
761 Regulation 151 does not dictate how the required information must be recorded The provider may use a staff roster or timesheets to capture the required information or an alternative method
762 Authorised officers should use a common sense approach Authorised officers should not expect to see a record of breaks from working with the children if the breaks are short and are for matters such as going to the toilet answering a phone call talking to a parent or briefly checking paperwork However a record would need to be kept for rostered breaks or if an educator is going into another room to do work away from the children for a longer period of time for instance preparing the programing for the next day
763 Authorised officers should encourage providers to value a clear and accurate record of educators working directly with children as helping them demonstrates that educator-to-child ratios are being met and children are adequately supervised at all times
National Regulations regulations 178 179
764 A family day care educator is required to keep the documents set out below for each child being educated and cared for by the educator as part of the service
Documents that must be kept by a family day care educator
Documentation of child assessments or evaluations for delivery of the educational program (regulation 74)
Incident injury trauma and illness record (regulation 87)
Medication record (regulation 92)
Attendance record (regulation 159)
Enrolment records (regulation 160) and
Record of visitors to the family day care residence or approved family day care venue (regulation 165)
765 The family day care educator must take reasonable steps to ensure the documents are accurate
766 A family day care educator must provide all documents listed above to the approved provider upon ceasing to be engaged by or registered with the service
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National Regulations regulation 184
767 If a service approval is transferred the transferring approved provider must transfer the documents required under regulation 177 to the receiving provider if they relate to children currently enrolled at the service The transfer must not occur without the permission of a parent of the child
Insurance information
National Regulations regulation 180
768 The approved provider must keep evidence of prescribed insurance at the education and care service premises or for a family day care service at the principal office A family day care educator must keep evidence of public liability insurance at the family day care residence or venue Evidence of insurance must be made available for inspection by a regulatory authority or authorised officer This does not apply if the insurance (or indemnity) for the service is provided by a state or territory government
Confidentiality and storage of records
Documents to be available for inspection by authorised officers
National Law section 175
769 The documents that an approved provider must keep under the National Regulations must be available for inspection by an authorised officer
770 To the extent practicable an approved provider must keep the documents set out in regulation 177 at the education and care service premises if they relate to
bull the operation of the service
bull any staff member employed or engaged by the service or
bull any child cared for or educated at those premises
in the previous 12 months
771 In any other case the documents must be kept at a place and in a manner that is readily accessible by an authorised officer
772 The documents that a family day care educator must keep under the National Regulations must be available for inspection by an authorised officer at the educatorrsquos family day care residence or approved family day care venue
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242 Operational Requirements Leadership and service management Last updated April 2017
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Access to documents
National Regulations regulation 177
773 Any documents relating to a child must be made available to a parent of the child on request (unless limited by a court order) The record of the servicersquos compliance must be able to be accessed by any person on request
Confidentiality
National Regulations regulations 181 182
774 The approved provider and the family day care educator must ensure that information kept in a record under the National Regulations is not divulged or communicated directly or indirectly to another person other than in the situations listed below
Circumstances in which confidential information may be disclosed
To the extent necessary for the education and care or medical treatment of the child to whom the information relates
A parent of the child to whom the information relates (except information in a staff record)
The regulatory authority or an authorised officer
As expressly authorised permitted or required to be given by or under any act or law
With the written consent of the person who provided the information and
For a family day care educator ndash the approved provider or nominated supervisor of the family day care service
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Storage of records and other documents
National Regulations regulation 183
775 The approved provider must ensure the documents kept under regulation 177 are stored in a safe and secure place and for the relevant period The relevant period for different types of records is set out below
Timeframes for keeping records
If the record relates to an incident illness injury or trauma suffered by a child while being educated and cared for by the service or may have been suffered following an incident that occurred while being educated and cared for at the service until the child is aged 25
If the record relates to the death of a child while being educated and cared for by the service or that may have occurred as a result of an incident while being educated and cared for by the service until seven years after the death
In the case of any other record relating to a child enrolled at the service until the end of three years after the last date on which the child was educated and cared for by the service
If the record relates to the approved provider until the end of three years after the last date on which the approved provider operated the service
If the record relates to the nominated supervisor or a staff member until the end of three years after the last date on which the nominated supervisor or staff member provided education and care on behalf of the service or
In the case of any other record until the end of three years after the date on which the record was made
Guidance for regulatory authorities
776 The prescribed records and information must be stored in a safe and secure place This means the information should remain confidential and only be able to be accessed by persons who have the authority to do so (which includes authorised officers) For example through storage in a locked filing cabinet or locked room or stored electronically in a secure manner (such as password protected)
777 Authorised officers may discuss with the approved provider and family day care educator what steps they take to ensure documents are kept confidential
D
244 Operational Requirements Leadership and service management Last updated April 2017
D
Law and Regulations to be accessible
National Regulations regulation 185
778 The approved provider must ensure that a copy of the National Law and Regulations is accessible at the education and care service premises at all times for use by the nominated supervisor staff members volunteers parents of children enrolled at the service and any person seeking to make use of the service
Guidance for regulatory authorities
779 For a family day care service a copy of the National Law and Regulations should be accessible at the principal office of the service and each educatorrsquos residence or venue It can be an electronic copy
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Last updated April 2017 Leadership and service management Operational Requirements 245
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Responsibilities of the approved provider nominated supervisor and family day care educator
Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Childrenrsquos attendance record to be kept (regulation 158 159)
3 3
Childrenrsquos enrolment record to be kept (regulation 160)
3 3
Authorisations to be kept in enrolment record (regulation 161)
3 3
Health information to be kept in enrolment record (regulation 162)
3 3
Residents at family day care residences and family day care educator assistants to be fit and proper persons (regulation 163)
3 3 3
Requirement for notice of new persons at residence (regulation 164)
3 3 3
Record of visitors (regulation 165) 3 3
Children not to be alone with visitors (regulation 166)
3 3 3
Record of servicersquos compliance (regulation 167) 3
Education and care service must have policies and procedures (regulation 168)
3 3 3
Additional policies and procedures ndash family day care service (regulation 169)
3 3 3
Policies and procedures to be followed (regulation 170)
3 3 3
Policies and procedures to be kept available (regulation 171)
3 3 3
Notification of change to policies or procedures (regulation 172)
3 3
D
246 Operational Requirements Other regulatory frameworks Last updated April 2017
D
Requirement App
rove
d pr
ovid
er
Nom
inat
ed
supe
rvis
or
Fam
ily d
ay
care
edu
cato
r
Off
ence
Infr
inge
men
t no
tice
Com
plia
nce
dire
ctio
n
Wai
ver
Prescribed information to be displayed (regulation 173 section 172)
3 3 3
Time to notify certain circumstances to regulatory authority (regulation 174 section 173)
3 3 3
Prescribed information to be notified to the regulatory authority (regulation 175 section 174)
3 3
Time to notify certain information to regulatory authority (regulation 176 section 174)
3 3
Prescribed enrolment and other documents to be kept by approved provider (regulation 177 section 175)
3 3 3 3 3
Family day care educator to provide documents on leaving service (regulation 179)
3
Evidence of prescribed insurance (regulation 180)
3 3
Confidentiality of records kept by approved provider and family day care educator (regulations 181 182)
3 3 3
Storage of records and other documents (regulation 183)
3 3
Storage of records after service approval transferred (regulation 184)
3
Law and regulations to be available (regulation 185)
3 3 3
Waivers do not apply to any of these requirements
D
Last updated April 2017 Other regulatory frameworks Operational Requirements 247
D
8 Other regulatory frameworks
Interactions with other regulatory frameworks
81 Although the Education and Care Services National Law is the main statute under which education and care services are regulated approved providers and to a lesser degree their staff are subject to a variety of other legislative frameworks This means a providerrsquos experience of regulation may look something like this
Education and Care Services National Law and
Regulations
Buildingcodes
Food safety laws
Fire safetylaws
Family assistance
law
Childrenrsquos services laws
Occupational health and safety laws
Industrial relations
Working with children laws
Interaction between the Education and Care Services National Law and Regulations and other regulatory frameworks