Early Childhood Education and Care
Regulatory Authority Enforcement Policy
Contents
1
Purpose of policy ................................................................................................. 3
2
Regulatory Response .......................................................................................... 4
3
2.1
Available regulatory responses ..................................................................... 4
2.2
The appropriate regulatory response ............................................................ 4
Deciding what action to take – the two stage test ................................................ 5
3.1
Evaluating the evidence ................................................................................ 5
3.2
Determining the appropriate regulatory response ......................................... 6
4
Impartiality ........................................................................................................... 8
5
Reconsidering and repeating the two stage test .................................................. 8
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Enforcement Policy
1 Purpose of policy
The Education and Care Services National Law (National Law) and the Education and Care Services
National Regulations (National Regulations) impose legislative requirements on the providers of
education and care services and educators working in the sector.
The Department of Education and Training exercises the functions of the Regulatory Authority and is
therefore responsible for the enforcement of the National Law and National Regulations.
Section 4 of the National Law requires that an entity that has functions under this Law is to exercise
its functions having regard to the objectives and guiding principles of the national education and care
services quality framework set out in section 3.
The purpose of this Enforcement Policy is to provide guidance in relation to making decisions about
appropriate regulatory responses.
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Enforcement Policy
2 Regulatory Response
2.1 Available regulatory responses
There are a range of regulatory responses available in circumstances where there has been a breach
of the National Quality Framework or an education and care service is operating in manner that
poses a risk to the health, safety or wellbeing of children receiving education and care.
Those responses include:

additional monitoring of an education and care service

guidance provided to an Approved Provider or other responsible person

a Compliance Caution Letter sent to an Approved Provider

amendment to approvals/certificates for the purposes of enforcement

suspension of approvals/certificates for the purposes of enforcement

cancellation of approvals/certificates

section 92 Revocation of a service waiver

section 99 Revocation of a temporary waiver

section 176 Compliance Directions

section 177 Compliance Notices

section 178 Notices to suspend education and care by a family day care educator

section 179 Emergency Action Notices

section 180 Enforceable Undertakings

section 182 Prohibition Notices

section 189 Emergency Removal of Children

section 171 Directions requiring an Approved Provider, Nominated Supervisor or Family Day
Care Educator to exclude an inappropriate person from an education and care service
premises

section 283 Prosecution of offences

section 291 Infringement notice
2.2 The appropriate regulatory response
The appropriate regulatory response in any given circumstance is one that meets the objectives of
the National Quality Framework and the public interest. The objectives of the National Quality
Framework are:
(a) to ensure the safety, health and wellbeing of children attending education and care services;
(b) to improve the educational and developmental outcomes for children attending education and
care services;
(c) to promote continuous improvement in the provision of quality education and care services;
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Enforcement Policy
(d) to 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;
(e) to improve public knowledge, and access to information, about the quality of education and
care services;
(f) to reduce the regulatory and administrative burden for education and care services by
enabling information to be shared between participating jurisdictions and the Commonwealth.
3 Deciding what action to take – the two stage test
Once an investigation has been completed, officers will need to decide:
Step 1
Does the evidence support a finding that:

the service is operating in a manner that poses a risk to children?

there has been a failure to comply with the National Law or the National
Regulations or to meet the National Quality Standards?
If no to both these questions, then no action is required.
Step 2 -
If yes, what regulatory response is appropriate? See part 3.2.
3.1 Evaluating the evidence
When deciding whether there has been a breach of the National Law or the National Regulations, a
failure to meet the National Quality Standards, or if the service is operating in a manner that poses a
risk to children, officers should consider if the evidence before them is reliable and compelling.
In particular, an assessment of evidence is conducted by considering:

the availability, competence, credibility and compellability of any witness/s;

any conflicting witness statements;

the relevant law, including:
o
the elements of the offence or provision; and
o
the availability and strength of any defence/s.
NOTE:
It may be appropriate or necessary to seek legal advice at any time throughout an
investigation/the complaints management process, particularly in relation to the interpretation
of the provisions of the National Quality Framework.
Examples of where it may be appropriate to seek legal advice include:
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Enforcement Policy
(a) Where the elements of the provision are based on a standard of conduct (for
example, where the provision requires an assessment of the reasonableness of
actions)
(b) Where an element of the provision requires the assessment of the legal standing of
some entity or document (for example, whether an entity is an individual or a body
corporate, or whether a certificate of insurance meets the prescribed requirement as
a matter of law)
3.2 Determining the appropriate regulatory response
The appropriate regulatory response is one that meets the objectives of the National Law and takes
into account considerations of public interest.
Below is a list of factors that may be relevant when determining the appropriate regulatory response.
Note that not all factors are relevant in every circumstance.
(a) whether the proposed response meets or advances the objectives of the National Law;
(b) whether the proposed response is necessary to protect the public;
(c) the level of seriousness, or conversely, the triviality of the alleged offence.
(d) Any risk associated with the conduct. Have regard to the Operational Policy Manual prepared
by ACECQA, specifically the chapter entitled ‘Assessing Risk to Children’.
(e) the degree of culpability or responsibility of the person;
(f) whether the proposed response will have the effect of deterring the person from engaging in
the conduct again;
(g) whether the proposed response will have the effect of deterring others in the industry from
engaging in the alleged conduct;
(h) whether the alleged offence is of considerable public concern;
(i) the history of compliance with the National Law and the National Regulations by the person
(whether an individual or organisation) both prior to and since the commission of the alleged
offence;
(j) the availability and efficacy of any alternatives to the proposed response;
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Enforcement Policy
(k) whether or not the proposed response would be perceived as counter-productive to the
interests of justice;
(l) the attitude of a complainant to the proposed response;
(m) the likely expense and length of time the proposed response will take;
(n) the likely outcome of the proposed response, including, if the proposed response is
prosecution, the penalties available to the court;
(o) the necessity to maintain public confidence in the Regulatory Authority and to uphold the law;
(p) the youth, age, physical or mental health or special infirmity of the person or a necessary
witness;
(q) the antecedents of the person; and
(r) whether there are any mitigating or aggravating circumstances. Such circumstances may
include:
i.
When the Department was notified that the incident under investigation had
occurred?
ii.
Was that notification made by the person or corporation under investigation?
iii.
Was that notification made voluntarily?
iv.
Was it made as soon as practicable?
v.
Were the circumstances of the incident as reported to the Department accurate?
vi.
Has the reason the incident occurred been clearly identified?
vii.
Has the problem been rectified and if so, how quickly?
viii.
Was the problem rectified at the instigation of the person or corporation under
investigation or at the direction of the Department?
ix.
Is the problem likely to occur again in the future?
x.
Is there anything else that could be done to address the problem?
xi.
Has the person or corporation refused to take action the Department believes should
be taken? Is the alleged offender willing and able to address or rectify the noncompliance?
The applicability of, and weight to be given to, these factors will depend on the particular
circumstances of each case.
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Enforcement Policy
4 Impartiality
A decision whether or not to take a particular action or step must not be influenced by:
(a) the race, religion, sex, national origin or political views of the alleged offender or any other
person involved;
(b) personal feelings concerning the offender or the victim;
(c) possible political advantage or disadvantage to the Government or any political group or
party; or
(d) the possible effect of the decision on the personal or professional circumstances of those
responsible for the enforcement decision.
5 Reconsidering and repeating the two stage test
The two stage test referred to in this policy should be reapplied and reconsidered in light of any new
information.
For example, if new or changed information comes to light during the investigation process, it may be
necessary to consider whether:

the evidentiary basis for the finding continues to exist; or

to continue pursuing a particular regulatory response.
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Enforcement Policy