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National Child Safety Review – Our Submission

Child Safe StandardsChild SafetyEducation and care servicesRegulation

The Commonwealth Government is currently considering various options to improve child safety in education and care services.

It recently published a Consultation Regulation Impact Statement to explain what is being considered, and to invite feedback on the proposed policy options.

Below is a summary of each of the child safety issues that are currently being considered, and our submission in relation to each of these issues.

MANAGEMENT OF DIGITAL DEVICES

Current issue

Digital devices such as mobile phones, tablets and cameras are currently being used by educators to document a child’s experiences at the education and care service, and to share these with parents and carers. Sometimes the devices used to capture and store these images and videos are owned and managed by the education and care service. However, it is also common for educators to use their own personal devices for this purpose.

The Education and Care Services National Law and National Regulations do not provide any guidance on the use of digital devices in education and care services.[1]

Our response

It is recommended that the Commonwealth government adopt Option 2 and Option 3.

Option 2 – Regulatory

Option 2 is to amend the National Law and National Regulations to enact standalone provisions to mandate that only service-issued digital devices can be used when taking images or videos of children while providing education and care. This would include an offence provision with a penalty attached.

Option 3 – Regulatory

Option 3 is to amend the National Law and Regulations to enact standalone provisions for all education and care services to mandate that other than in the case of defined exempt circumstances, personal devices that can take images or videos (e.g. tablets, phones, digital cameras, and smart watches) and personal storage and file transfer media (e.g. SD cards, USB drives, hard drives and cloud storage) cannot be in the possession of any person while providing education and care and working directly with children. This would include an offence provision with a penalty attached.

The National Model Code and Guidelines define exempt circumstances as including:

  • communication in an emergency situation involving a lost child, injury to a child or staff member, other serious incident, or in the case of a lockdown or evacuation of the service premises
  • personal health requirements e.g. heart or blood sugar monitoring
  • disability e.g. where a personal digital device is a means of communication
  • family necessity e.g. worker with an ill or dying family members
  • technology failure e.g. temporary outage of service issued digital devices
  • local emergency event and the need to receive emergency notifications through government warning systems.[2]

The benefits of implementing both of these options include the following:

  • They implement recommendations made by the Australian Children’s Education and Care Quality Authority (ACECQA) in its Review of Child Safety Arrangements under the National Quality Framework (ACECQA Child Safety Review).[3]
  • The amendments will complement the guide developed by ACECQA about online safety in education and care services, that is designed to increase the knowledge and skills of education and care service staff about how to use devices safely.[4]
  • The amendments will complement the proposed amendments to Regulation 168 of the National Regulations that will require services to have policies and procedures relating to the safe use of digital devices including:
    • the taking, use, storage and destruction of images and videos of children
    • the use of any digital devices issued by the service
    • the use of any digital devices by children being educated and cared for by the service
    • obtaining authorisation from parents to take, use and store images and videos of children.[5]
  • The amendments to the National Law and National Regulations, accompanied with associated penalties for non-compliance, will help ensure that educators providing education and care only take images and videos of children using service -issued devices.
  • These amendments will empower approved providers to have oversight about the digital content that is being generated, and how this is being stored, accessed and disposed of by services. [6]
  • These amendments will still enable approved providers to use digital photos and videos to document and share children’s learning with their parents and carers.
  • These amendments will help minimise the risk that educators may use personal devices to take, store, retain and/or distribute images and videos of children for illicit purposes.
  • These amendments will help minimise the risk that educators may take inappropriate images of children e.g. physical or sexual abuse, sexualised images, and store and/or distribute these images with others.
  • These amendments will also help minimise the risk that images and videos of children on personal devices may be accessed, distributed or used in inappropriate ways by other individuals.[7]
  • These amendments will help services comply with the National Principles for Child Safe Organisations, namely the obligation to provide physical and online environments that promote safety and wellbeing, and that minimise the opportunity for children and young people to be harmed (Principle 7).

If Option 2 and Option 3 are implemented, it will be important to consider the following:

  • The amendments and any accompanying guidance will need to permit educators to have access to a mobile or telephone service to enable them to contact emergency services and others in the event of any emergency. It will also help ensure that approved providers, parents and carers, and others can contact educators as required.
  • The amendments and any accompanying guidance will also need to carefully consider how these amendments can be reasonably implemented in family day care services and out of school hours care services.

CHILD SAFETY TRAINING

Current issue

The National Law and the National Regulations do require some staff in education and care services to undertake child protection training. However, the staff that are required to complete this training vary between states and territories. For example, staff who do not work directly with children, volunteers and students are not required to complete child protection training in some states and territories.

In addition, the specific requirements and the content of the training varies. Child protection training is usually focused on mandatory reporting and responding to harm, abuse or neglect. Child safety training is broader in scope and also addresses proactive measures such as identifying and mitigating risks to the safety and wellbeing of children and creating safe environments for children.

There are also no requirements for staff to regularly complete training.

Together, these issues mean that there may be some staff, volunteers and students working in education and care services that have limited knowledge and understanding of how to keep children safe, and how to respond to child harm, abuse and neglect.[8]

Our response

It is recommended that the Commonwealth government adopt Option 6.

Option 6 – Regulatory

Option 6 is to amend the National Law and National Regulations to require mandatory child safety training for all people involved in the provision of education and care services (including people who do not directly work with children) with the requirement to complete refresher training every two years.[9]

The benefits of implementing this option include the following:

  • It will address a significant gap in the existing National Quality Framework which currently only requires:
    • nominated supervisors, persons in day to day charge of the service, and family day care coordinators employed or engaged by the service to undertake child protection training if it is required in their jurisdiction (section 162A of the National Law); and
    • approved providers to ensure that nominated supervisors, staff members, volunteers and students are advised of the existence and application of child protection law and any obligations that they may have under that law (Regulation 84 of the National Regulations).[10]
  • It will help create a stronger child safety culture where all staff have the capability and confidence to provide for the health, safety and wellbeing of children receiving education and care at the service. [11]
  • It will help ensure that all staff and volunteers working in education and care services have received appropriate information and education about child safety.
  • It will help approved providers address the different qualifications, education and training that staff may have received, including those that have moved from overseas, those that have entered the profession from another sector, and those who have received recognition for prior learning.
  • It will help approved providers address the different levels of understanding among staff about creating child safe environments, child protection, recognising harm, reporting requirements and behaviour management.
  • It will help ensure that all staff receive regular, contemporary, accurate and high quality information, education and training that keeps pace with legislative amendments, and emerging risks to children.[12]
  • It will complement other initiatives including:
    • the comprehensive review of requirements for early childhood teaching programs under the National Quality Framework, pursuant to Action FA5-2 in Shaping Our Future 2022-2031
    • the inter-jurisdictional working groups established by the Commonwealth government to progress measures under the National Strategy to Prevent and Respond to Child Sexual Abuse 2021-2030
    • the work of the Children with Harmful Sexual Behaviours – Prevention and Response Working Group
    • the national principles and key terms for understanding and responding to behaviours displayed by children and young people being developed by the National Office for Child Safety. [13]
  • It will help education and care services comply with the National Principles for Child Safe Organisations, namely the obligations to ensure that staff and volunteers are supported to reflect child safety and wellbeing values in practice, and are equipped with the knowledge, skills and awareness to keep children and young people safe through ongoing education and training (Principles 5 & 7).

If Option 6 is implemented, it will be important to consider the following:

  • It will be important to provide explicit guidance about what should be included in the child safety training. This should include, but not necessarily be limited to the following:
    • the National Quality Framework
    • the Child Safe Standards
    • the Reportable Conduct Scheme (if it exists in the relevant jurisdiction)
    • children’s rights
    • trauma informed practices
    • privacy and information sharing
    • identifying and managing risks of harm to children and young people
    • effective supervision
    • preventing and responding to child sexual abuse
    • identifying grooming behaviour
    • understanding the difference between developmentally expected sexual behaviour and concerning or harmful behaviour by children or between children
    • responding to harmful sexual behaviour between children
    • mandatory reporting and other reporting obligations
    • behaviour management strategies.[14]
  • It will also be important to ensure that the child safety training is made available through:
    • pre-service qualifications; and
    • in-service professional development (micro-credentials).[15]
  • Some elements of the child safety training will need to address the specific legislative and policy requirements in each state and territory e.g. mandatory reporting, reportable conduct scheme, and privacy and information sharing.
  • In order to supplement and reinforce this mandatory child safety training, the Commonwealth government should also explore with the states and territories the possibility of introducing some form of child safety training as part of the application process for a working with children clearance.[16]

MAKING INAPPROPRIATE CONDUCT AN OFFENCE

Current issue

There are very limited options available to Regulatory Authorities under the National Law to address serious and inappropriate conduct by staff members, volunteers or educators. That is, the Regulatory Authority can:

  • charge an individual with the offence of using inappropriate discipline; and/or
  • issue a prohibition notice if the person poses an unacceptable risk of harm to children.

Currently, there are no other options if a staff member, volunteer or educator has behaved in a way that is serious and inappropriate but does not meet these thresholds.

This means that the Regulatory Authority does not have any powers to address this conduct, and the person may be able to continue to work and volunteer in education and care services without any regulatory intervention, response or consequence.[17]

Our response

It is recommended that the Commonwealth government adopt Option 2 & 3.

Option 2 – Non regulatory

Option 2 is to develop more communications and resources on encouraging approved providers to address appropriate and inappropriate conduct within their contracts of employment. A Code of Conduct and policies and procedures are required under Regulation 168(2) of the National Regulations.

Option 3 – Regulatory

Option 3 is to amend the National Law to introduce ‘inappropriate conduct’ as an offence applicable to approved providers, nominated supervisors, educators, other staff members, volunteers and family day care educators. Specifically:

  • the approved provider and a nominated supervisor must ensure that no child being educated and cared for by the service is subjected to any form of inappropriate conduct; and
  • a staff member of, or a volunteer at an education and care service, or family day care educator must not subject any child being educated and cared for by the service to any form of inappropriate conduct.

In this context, inappropriate conduct may include:

  • child sexual offence
  • sexual misconduct
  • grooming
  • inappropriate verbal interactions
  • ill-treatment of a child
  • neglect of a child
  • physical or verbal violence (including threats) committed in relation to, or in the presence of a child
  • behaviour that is likely to cause emotional or psychological harm to a child
  • any form of inappropriate online contact
  • correspondence or communication of a personal nature
  • capturing images of children via any medium without appropriate authorisation
  • manipulating or coercing a child emotionally to meet the educator’s personal needs or to create inappropriate dependencies.[18]

This offence would apply regardless of intention, knowledge, negligence, carelessness or attempts to comply.[19]

The benefits of implementing these options include the following:

  • They will implement recommendations made by the ACECQA Child Safety Review.[20]
  • They will empower the Regulatory Authority to intervene and address inappropriate conduct by any staff member at an education and care service.
  • They will help manage the risk that approved providers may employ or engage staff who have engaged in inappropriate behaviour within the education and care sector and/or with a different approved provider.[21]

If Option 3 is implemented, it would be important to consider the following:

  • The Regulatory Authorities in each state and territory will need to be appropriately resourced and competent to manage the large increase in regulatory activity and appropriately respond in a proportionate and timely manner.
  • It would also be important to consider and manage any potential overlap with other state and territory legislation and the powers of other regulators e.g. reportable conduct scheme, teacher registration, working with children clearances etc.
  • This recommendation would need to be implemented in conjunction with improvements to the information sharing arrangements that are currently in place (see below).

IMPROVED INFORMATION SHARING WITH APPROVED PROVIDERS

Current issue

The Regulatory Authority and ACECQA can only disclose information about a prohibited person or a suspended family day care educator if an approved provider makes a specific request for this information. This means that an approved provider can make a request for this information during the recruitment process, and in the absence of a prohibition or suspension, employ the person to work in the education and care service. It is possible for that person to be subsequently issued a prohibition notice or become a suspended family day educator without their current employer knowing or being notified that this has occurred.

Similarly, there is currently no legislative mechanism to enable a Regulatory Authority to disclose details of a person’s current enforceable undertaking with the person’s current approved provider, without the express consent of that person or it being a condition of that person’s enforceable undertaking. An approved provider would typically be unaware of such conduct where it has occurred at a previous service.

  • This means that the approved provider cannot support the employee to comply with enforceable undertaking.
  • This also means that the approved provider cannot identify non-compliant conduct as a pattern of behaviour rather than a standalone incident.[22]

Together, these issues mean that approved providers may continue to employ or engage people who may be unsuitable to provide education and care to children.[23]

Our response

It is recommended that the Commonwealth government adopt Option 3 & 4.

Option 3 – Regulatory

Option 3 is to amend section 272 of the National Law to allow the Regulatory Authority to share information about a prohibited person or suspended family day care educator with that person’s current approved provider, without a request from the approved provider.

Option 4 – Regulatory

Option 4 is to amend the National Law to allow a Regulatory Authority to share information about a person’s current enforceable undertaking with that person’s current approved provider, without a request from the approved provider.[24]

The benefits of implementing these options include the following:

  • These amendments will implement a recommendation made by the ACECQA Child Safety Review. [25]
  • These legislative amendments would help ensure that approved providers do not engage a person as an educator, family day care educator, employee, contractor or staff member or allow a person to perform volunteer services if they have been issued with a prohibition notice under the National Law in any jurisdiction (s. 188(1) of the National Law).
  • These amendments will also help ensure that approved providers do not continue to employ or engage a person after they have been issued a prohibition notice under the National Law for conduct that they may have committed at a different education and care service that is unknown to the current employer. [26]

If Options 3 & 4 are implemented, it would be important to consider the following:

  • The Commonwealth government would also need to create a mechanism that would enable Regulatory Authorities to accurately identify where an individual is employed or engaged in the education and care sector at any point in time. It is our understanding that Regulatory Authorities do not currently collect or store this information.
  • There are other significant information sharing gaps that also need to be addressed. These include the following:
    • There are no information sharing arrangements in place to share information amongst all of the Regulatory Authorities. This is increasingly important given the mobility of the modern workforce and the increasing number of larger providers working across jurisdictions. [27]
    • There are inadequate information sharing arrangements in place among teacher regulatory authorities. For example:
      • There is a lack of agreement between teacher registration authorities about what information can be shared and in what format.
      • There is no integrated ICT solution to aid the sharing of information in real time.[28]
    • There is no nationally consistent scheme for exchanging information that is relevant to child safety and wellbeing even though this would:
      • help prevent, identify, manage and respond to risks to the safety and wellbeing of children, and specific incidents of child abuse
      • prevent perpetrators from moving from one organisation to another, from one sector to another, or from one jurisdiction to another
      • limit the ability of a perpetrator to work with children, and/or pose an ongoing risk to children
      • support better child safety and wellbeing outcomes
      • reduce complexity, confusion and fragmentation of information sharing arrangements that are in place
      • promote certainty and confidence
      • reduce compliance burden on approved providers and other organisations providing services to children and young people.[29]

RESPONDING TO EDUCATOR AND STAFF MEMBER CONDUCT

Current issue

There are very limited options available to Regulatory Authorities under the National Law to address serious and inappropriate conduct by staff members, volunteers or educators. That is, the Regulatory Authority can:

  • charge an individual with the offence of using inappropriate discipline; and/or
  • issue a prohibition notice if the person poses an unacceptable risk of harm to children.

Currently, there are no other options if a staff member, volunteer or educator has behaved in a way that is serious and inappropriate but does not meet these thresholds.

This means that the Regulatory Authority does not have any powers to address this conduct, and the person may be able to continue to work and volunteer in education and care services without any regulatory intervention, response or consequence.[30]

Our response

It is recommended that the Commonwealth government adopt Options 3, 4 & 5.

Option 3 – Regulatory

Option 3 is to amend the National Law to enable the Regulatory Authority to impose a suspension notice / order that prevents an educator, staff member or volunteer from providing education and care to children for a specified period of time. These notices may be issued when a certain threshold of risk has been met and/or to address an alleged contravention of the National Law.

A show cause notice would be issued prior to any suspension notice, and the action would be internally / eternally reviewable.

Option 4 – Regulatory

Option 4 is to amend the National Law to enable the Regulatory Authority to impose a supervision order on an approved provider. This would be applicable where a staff member of volunteer has contravened the National Law and where that contravention also sits with the approved provider.

A show cause notice would be issued prior to any supervision order, and the action would be internally / eternally reviewable.

Option 5 – Regulatory

Option 5 is to amend the National Law to enable the Regulatory Authority to impose mandatory training / re-training for staff members.

The staff member would be responsible for paying for the cost of any training / re-training to address any of their conduct that contravenes the National Law.

A show cause notice would be issued prior to requiring the mandatory training / re-training, and the action would be internally and externally reviewable [31]

The benefits of implementing these options include the following:

  • They would enable the Regulatory Authority to provide a swift and targeted response that addresses specific contraventions of the National Law or National Regulations.
  • They would help mitigate risks of harm to children.
  • The power to issue a suspension notice will address the current issue with section 178 of the National Law which enables the Regulatory Authority to issue a notice to an approved provider to cease engaging or allowing a family day care educator to be registered with their service but does not prevent the family day care educator from being involved with another service.[32]

If these options are implemented, it would be important to consider the following:

  • In relation to Option 3:
    • the thresholds for imposing a suspension.
    • the minimum and maximum periods of time that a person can be suspended for different types of contraventions of the National Law and/or the National Regulations; and
    • any conditions that may be attached to a suspension.
  • In relation to all of the options, it would be important to consider the ability of a Regulatory Authority to share this information with a current employer who is an approved provider, recruitment agencies, other state and territory Regulatory Authorities, teacher registration authorities, working with children authorities, and other regulatory authorities.

WORKING WITH CHILDREN CLEARANCE PRIOR TO PAID OR VOLUNTEER WORK

Current issue

People who work or volunteer with children are screened for suitability via a Working with Children Clearance. However, the way in which this scheme operates varies in each state and territory.

One fundamental difference is that although most jurisdictions require a person to have a valid and current Working with Children Clearance before they work or volunteer with children, there are some states and territories that have exceptions to this requirement. This means that some people can start working and volunteering with children without being formally assessed and cleared as suitable to work with children. It also means that some unsuitable adults may work or volunteer with children between the time they make an application for a Working with Children clearance and when the outcome of the application is received.[33]

Our response

It is recommended that the Commonwealth government adopt Option 3.

Option 3 – Regulatory

Option 3 is to create jurisdiction specific National Regulations for Western Australia, the Australian Capital Territory and the Northern Territory to require an approved provider of an education and care service to ensure that staff, students and volunteers of that service hold a valid working with children clearance before they can be engaged / commence in their roles.

This option will also include a jurisdiction specific National Regulation for New South Wales to clarify this same requirement so that it is beyond doubt.[34]

The benefits of implementing this option include the following:

  • It promotes national consistency and clarity regarding the need for working with children clearances in the education and care sector.
  • It reduces the risk of unsuitable individuals applying to work or volunteer in education and care services.[35]
  • It helps organisations comply with the National Principles for Child Safe Organisations, namely the obligation to ensure that people working with children are suitable (Principle 5).

NOTIFICATION OF CHANGES TO WORKING WITH CHILDREN CLEARANCE STATUS

Current issue

The Working with Children legislation varies in each state and territory. This includes different requirements about how and when to communicate changes to a person’s Working with Children clearance. For example, there are differences about whether:

  • an individual is required to notify their approved provider of a change in their working with children status.
  • a Working with Children agency is required to notify an approved provider about a change to a person’s working with children status.
  • approved providers and Working with Children agencies are required to notify the Regulatory Authority of a change in any employee, volunteer or family day care educator or resident’s working with children status.

This increases the risk that unsuitable adults remain in education and care services.[36]

Our response

It is recommended that the Commonwealth government adopt Option 3.

Option 3 – Regulatory

Option 3 is to amend the National Law and the National Regulations to include a new requirement for all centre-based staff and family day care educators to notify their approved provider of a change in working with children clearance status or teacher registration status. This requirement would need to be implemented in New South Wales, Tasmania, the Australian Capital Territory and the Northern Territory only because it already exists in the other states and territories.

This option would also include a new requirement for approved providers to notify the Regulatory Authority of a change in working with children clearance status or teacher registration status for all staff. There would be penalties / offences for non-compliance with this obligation. This requirement would need to be implemented in all jurisdictions except Queensland and Western Australia where this is already in place. There would also be an exemption in South Australia in circumstances where changes to working with children clearance status is directly communicated to the Regulatory Authority.[37]

The benefits of implementing this option is that it promotes national consistency and clarity in the education and care sector regarding the need to notify of changes to working with children clearance status or teacher registration status.

If the Commonwealth government implements this option, it is important to ensure that the Regulatory Authority that receives this information can also disclose it to other relevant agencies if it would assist in protecting the health, safety and wellbeing of children and young people.

It is also important to note that implementing this option has the following limitation:

  • The notification requirements are reliant on an individual notifying their employer of a change in their working with children clearance and / or teacher registration or accreditation status. There may be some circumstances where individuals will not comply with this requirement, either because they are unaware of the obligation or because they are deliberately concealing the information from their employer.
  • This means that the risk of unsuitable individuals continuing to be employed or engaged in education and care settings remains. [38]

The converse is also true. That is, all jurisdictions except Western Australia permit working with children screening agencies to notify approved providers of a change in an employee or volunteer’s working with children clearance status. However, this system is also reliant on individuals notifying the working with children screening agency of the details of their current employer.[39]

This option also does not address the need for a nationally consistent working with children scheme.[40]

SERVICE WAIVERS AND TEMPORARY WAIVERS

Current issue

Regulation 115 of the National Regulations require the premises of centre-based education and care services (including toilets and nappy change facilities) to be designed and maintained in a way that facilitates supervision of children at all times.

The National Regulations currently permit centre-based education and care services to make an application for a service waiver or temporary waiver of this requirement.

This means that there are some premises in which education and care services are being provided that do not enable educators to provide adequate supervision of children at all times. This increases the risk that children may be harmed while receiving education and care at these services.[41]

Our response

It is recommended that the Commonwealth government adopt Option 4.

Option 4 – Regulatory

Option 4 is to amend the National Regulations to remove the ability to apply for service waivers and temporary waivers under Regulation 115 of the National Regulations.[42]

The benefits of implementing this option are that, after the expiration of existing service waivers and temporary waivers:

  • The risks of preventable harm to children caused by the physical environment may be reduced.
  • There would no education and care services that have areas in which children cannot be adequately supervised.
  • All services will comply with the National Principles for Child Safe Organisations, namely the obligation to provide physical environments that promote safety and wellbeing, and that minimise the opportunity for children and young people to be harmed (Principle 7).
  • It will support approved providers (and others) to comply the following obligations under the National Law and the National Regulations:
    • Approved providers, nominated supervisors and family day care educators must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service (section 165 of the National Law).
    • Approved providers, nominated supervisors and family day care educators must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury (section 167 of the National Law).
    • Approved providers of centre-based services must ensure that service premises (including toilet and nappy change facilities) are designed and maintained in a way that facilitates supervision of children at all times that they are being educated and cared for by the service (Regulation 115).

ASSESSMENT OF FAMILY DAY CARE RESIDENCES

Current issue

Regulation 116 of the National Regulations requires an approved provider of family day care services to assess each proposed family day care residence initially and annually, to ensure that the health, safety and wellbeing of children who are being educated and cared for at the premises are protected.

These assessments are usually limited to areas in which education and care is to be provided. That is, the approved provider does not usually assess the rest of the residence, and they do not assess other spaces where education and care is not provided e.g. garages, sheds and some of the outdoor spaces.

This creates a risk that children who are receiving education and care at the family day care service may access areas that have not been assessed by the approved provider, and which may be unsuitable and unsafe for children. For example, there may be animals, machinery, chemicals, insect nests and other items that are hazards, may pose significant safety concerns for children, and that may lead to physical injuries or accidents to children.[43]

Our response

It is recommended that the Commonwealth government adopt Option 3.

Option 3 – Regulatory

Option 3 is to amend Regulation 116 of the National Regulations to explicitly require approved providers to assess not just the family day care residence but areas near the residence that may be accessible to children.

These changes will apply to new assessments and each annual assessment, both of which are undertaken by approved providers.[44]

The benefits of implementing this option include the following:

  • It implements a recommendation made by the ACECQA Child Safety Review.[45]
  • It recognises that children may inadvertently access unsuitable areas in family day care residences e.g. sheds, garages, outdoor areas, and other dwellings on the same property.[46]
  • It supports approved providers and family day care educators to identify, assess and manage risks and hazards on family day residences. [47]
  • It helps ensure that approved providers comply with the National Principles for Child Safe Organisations, namely the obligation to provide physical environments that promote safety and wellbeing, and minimise the opportunity for children to be harmed (Principle 8).
  • This option supplements changes made on 1 October 2023 that:
    • require monthly inspections of family day care residences and venues that have swimming pools, water features and other potential water hazards
    • mandate nationally consistent requirements for safety glass used in family day residences and venues
    • require approved providers to display a diagram of the area of residences and venues that have been assessed by the approved provider to be suitable for education and care so that families can clearly identify the spaces in which their children will be cared for.[48]

AUTHORISED OFFICERS TO ACCESS FAMILY DAY CARE RESIDENCES

Current issue

Authorised Officers appointed by the Regulatory Authority currently have the power to assess the premises of family day care services, but this power is limited to the areas in which education and care services are provided.

This means that they are not able to assess the rest of the residence, and they are not able to assess other spaces where education and care is not provided e.g. garages, sheds and some of the outdoor spaces.

This impedes the ability of Authorised Officers to proactively identify and manage any risks to the health, safety and wellbeing of children being educated and cared for at the premises. For example, there may be animals, machinery, chemicals, insect nests and other items that are hazards and that may lead to physical injuries or accidents to children.

This also means that if a serious incident has occurred at the family day care service, Authorised Officers may not be able to effectively identify and manage the risks that led to the serious incident. It also means that Authorised Officers have limited powers to investigate the serious incident that has occurred.[49]

Our response

It is recommended that the Commonwealth government adopt Option 3.

Option 3 – Regulatory

Option 3 is to amend the National Law to enable Authorised Officers access to areas of a family day care residence or property beyond the service premises in specific instances or for specific purposes. These may include:

  • a serious incident has occurred, or the Authorised Officer reasonably suspects that a serious incident has occurred.
  • an Authorised Officer needs to assess or monitor compliance with Regulation 116 of the National Regulations.
  • an Authorised Officer needs to assess or monitor compliance with Regulation 97 of the National Regulations.[50]

The benefits of implementing this option include the following:

  • It implements recommendations made by the ACECQA Child Safety Review.[51]
  • It enables the Regulatory Authority to take remedial action when incidents have occurred, or hazards have been identified.
  • It fairly balances the privacy of people living at the residence with managing risks to safety and wellbeing of children being educated and cared for at the residence.[52]
  • It avoids the need to rely on consent from approved providers. This current practice is problematic because:
    • Approved providers can refuse consent.
    • If an approved provider refuses consent, the Regulatory Authority cannot search the residence to identify, assess and manage risks and hazards to the health, safety and wellbeing of children being cared for at the service.
    • If an approved provider does provide consent, there may be subsequent arguments about whether voluntary and informed consent was provided, and this may impact on the admissibility of evidence gathered during the visit.

RELATED PROVIDERS

Current issue

Approved providers may be separate legal entities that are authorised to operate education and care services. In some cases, several approved providers may form part of the same corporate structure. For example:

  • Various approved providers may share some or all of the persons with management and control of the services.
  • Various approved providers may be owned by the same company.

These are referred to as related providers. The National Law is not currently set up to deal with groups of related providers. This means that Regulatory Authorities have difficulty undertaking regulatory action against them.[53]

Our response

It is recommended that the Australian government adopt Option 3A & 3B.

Option 3A – Regulatory

Option 3A is to introduce legislative amendments to:

  • add a definition for related providers
  • empower Regulatory Authorities to take action at the related provider level; and
  • require approved providers to disclose that they are related.
Option 3B – Regulatory 

Option 3B is to introduce legislative amendments to require a Notice of Acquisition to be provided to a Regulatory Authority when ownership of an approved provider is transferred to another entity.[54]

The benefits of implementing these options include the following:

  • They would assist Regulatory Authorities to identify systemic risks to the health, safety and wellbeing of children at the related provider level.
  • They would enable Regulatory Authorities to take appropriate action against groups of related providers to address the systemic risks that have been identified.
  • They would enable regulatory decisions to be made on better intelligence i.e. the Regulatory Authority is better able to identify and consider the compliance history and quality of services provided by related providers.[55]

EXTENSION OF THE LIMITATION PERIOD FOR COMMENCING PROCEEDINGS

Current issue

Regulatory Authorities must commence legal proceedings for an offence under the National Law within 2 years of the date of the alleged offence.

This current limitation period does not consider circumstances where there is a significant delay between the day of the alleged offence and the day that the alleged offence is reported. An example of this is the significant delay in which some instances of child abuse are disclosed by victims and subsequently reported to authorities.[56]

Our response

It is recommended that the Commonwealth government adopt Option 2.

Option 2 – Regulatory

Option 2 is to amend section 284 of the National Law so that the limitation period commences two years from the date that the alleged offence comes to the notice of the Regulatory Authority.[57]

This revised timeframe will cater for:

  • the delay between when the alleged offence may have been committed, and the date that the Regulatory Authority becomes aware of the alleged conduct
  • the complexity in investigating and preparing for the prosecution of offences under the National Law and National Regulations
  • the demands and limited resourcing of Regulatory Authorities.

INFORMATION SHARING WITH RECRUITMENT AGENCIES

Current issue

Approved providers often source educators through recruitment agencies. These are referred to as ‘agency educators.’  This practice is necessary to manage significant workforce shortages but has the potential to create the following issues:

  • Some approved providers may not keep complete staff records about agency educators.
  • Regulatory Authorities cannot easily obtain information about these staff from recruitment agencies, even if it is in the context of a regulatory investigation or where serious allegations of physical or sexual abuse have been raised.
  • Important information about these staff, including non-compliance with the National Law and/or the National Regulations, may be unknown to recruitment agencies or approved providers.[58]
Our response

It is recommended that the Commonwealth government adopt Options 3, 4 & 5.

Option 3 – Regulatory

Option 3 is to amend section 206(4) of the National Law i.e. the power of Authorised Officers to obtain information, documents and evidence, to include recruitment agencies supplying educators to education and care services.

Option 4 – Regulatory

Option 4 is to amend section 272 of the National Law to allow a Regulatory Authority to share information about an agency educator with that person’s recruitment agency. This consists of information about whether:

  • the educator is subject to a prohibition notice
  • the educator is suspended from providing education and care to children as part of a family day care service.

It will also include mirroring any other legislative amendments made regarding the proactive sharing of information with approved providers.

This option also includes considering whether recruitment agencies should have access to the prohibited persons register.

Option 5 – Regulatory

Option 5 is to amend section 188A of the National Law to also prohibit a person who is subject to a prohibition notice from giving a recruitment agency any information about the content or existence of a prohibition notice that is false or misleading in any material particular.[59]

The benefits of implementing these options include the following:

  • Recruitment agencies will be able to adopt more rigorous and effective recruitment strategies and vetting processes to help ensure that unsuitable people do not work in education and care services.
  • The legislative amendments will reduce the risk that children in education and care services are being educated and cared for by individuals that have been issued a prohibition notice, suspended from providing education and care in a family day care residence, or may otherwise be unsuitable to provide education and care.
  • The legislative amendments will enable Regulatory Authorities to request and receive information, documentation and evidence to assist in monitoring compliance with the National Law and the National Regulations.[60]
  • The legislative amendments will promote compliance with the National Principles for Child Safe Organisations, namely the obligation to ensure that people working with children and young people are suitable (Principle 5).

 

 

Elena Totino

Founder, Director & Principal Lawyer

Safety Quality & Care Legal Services

 

June 2025

 

 

 

[1] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 4

[2] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p.  35

[3] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendations 2.3 & 2.4

[4] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 21, 30

[5] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 21, 30

[6] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, p. 32; and Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 33- 34

[7] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 22

[8] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 8

[9] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 43

[10] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, p. 43

[11] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 49

[12] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 41

[13] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, p. 46

[14] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendation 12; and Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 43-44; and Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 39

[15] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendation 12

[16] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendation 14

[17] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 14

[18] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 54, 57-58

[19] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 59

[20] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendation 10, p. 52

[21] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 55

[22] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 53

[23] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 18

[24] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 64

[25] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendation 11

[26] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 61-62

[27] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, p. 67

[28] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, p. 64

[29] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, pp. 61, 67

[30] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, pp. 14, 22

[31] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 71-72

[32] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 52-53

[33] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 26

[34] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 82

[35] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 83

[36] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 30

[37] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 88-89

[38] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 23

[39] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 85-87

[40] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendation 15.1, pp. 63-64

[41] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 34

[42] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 98-99

[43] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 38

[44] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 105

[45] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendation 4.2

[46] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, p. 34

[47] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 107

[48] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, p. 34

[49] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 42

[50] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 111

[51] Australian Children’s Education and Care Quality Authority, Review of Child Safety Arrangements under the National Quality Framework – Final Report – Findings and recommendations for the NQF and inter-related child safety mechanisms, December 2023, Recommendation 5, p. 35

[52] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 112-113

[53] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 46

[54] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 118-121

[55] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, pp. 115-117

[56] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 50

[57] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p. 123

[58] Commonwealth of Australia, National Child Safety Review – Consultation Regulation Impact Statement Summary, April 2025, p. 54

[59] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p.127

[60] Commonwealth of Australia, National Child Safety Review, – Consultation Regulation Impact Statement, April 2025, p.129

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