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Children's Services Amendment Bill
2011
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the main purposes of the Bill, which are to make
amendments to the Children's Services Act 1996 and to the
Education and Care Services National Law Act 2010, and
to make consequential amendments to other Acts.
Clause 2 provides for the commencement of the Bill.
Parts 1 and 3 come into operation on the day after the Bill
receives Royal Assent. Part 2 comes into operation on a day
or days to be proclaimed. There is no default day for the
commencement of the Bill to enable the timing of
commencement to coincide with the commencement of the
Education and Care Services National Law (Victoria) (the
National Law) and the corresponding laws of other participating
jurisdictions.
Clause 3 states that in the Bill the Children's Services Act 1996 is called
the Principal Act.
Clause 4 inserts definitions of approved associated children's service,
approved education and care service, approved provider,
associated children's service, certified supervisor, education
and care service, National Law, national regulations,
nominated supervisor, provider approval, Regulatory Authority,
responsible person, service approval and supervisor certificate
in section 3 of the Principal Act. These amendments ensure
consistency between the operation of the Principal Act and the
National Law.
571092 1 BILL LC INTRODUCTION 12/10/2011
Clauses 4(1)(b) and 4(1)(c) substitute the definitions of nominee
and primary nominee respectively in section 3 of the Principal
Act to include approved associated children's services, which
receive a service approval under the National Law but are
otherwise regulated under the Principal Act.
Clause 4(1)(d) substitutes the definition of proprietor to ensure it
includes approved associated children's services.
The definitions family day care service, family day care venue,
family day carer and sibling have been repealed from section 3 of
the Principal Act as all matters relating to family day care are
now regulated by the National Law.
Clause 4(2) substitutes the term "licensee" with "licensee,
approved provider" in section 3(3) of the Principal Act.
Clause 4(3) inserts section 3(4) into the Principal Act to interpret
"person with management and control" in relation to an approved
associated children's service.
Clause 5 Subclause (1) inserts a new section 5(1)(b) into the Principal Act,
which provides that patients of a medical or therapeutic care
service are excluded from the application of the Principal Act.
This aligns with section 5(e) of the definition of education and
care service in the National Law which excludes services
providing education and care to patients in a hospital or patients
of a medical or therapeutic service.
Subclause (1) also substitutes section 5(1)(d) as clients of a
disability service are now governed by the Disability Services
Act 2006 rather than the Intellectually Disabled Person's
Services Act 1986.
Subclause (2) amends section 5(1B) by inserting clarification that
the Principal Act does not regulate--
an early childhood intervention service provided for the
principal purpose of providing therapeutic intervention
for children with a disability, additional needs or
development delay; or
a short term program provided by and at a school to
children who will attend the school in the following
year, for the purpose of orienting children to the school;
or
2
a service operating at a hotel or resort providing holiday
care or education to children who are temporary guests
of the hotel or resort; or
a service provided on an ad hoc basis at the place of a
meeting, convention, seminar or other short-term event
attended by a parent of or other person responsible for
the child.
The majority of these services are also excluded from the scope
of education and care service in the National Law.
Subclause (3) inserts a new section 5(1D) to clarify that a service
may be a children's service even though it is conducted by an
entity that also operates an education and care service under the
National Law or at premises at which an education and care
service is operated under the National Law.
Clause 6 amends section 7 of the Principal Act to the effect that if a
children's service has either a licence to operate under the
Principal Act or a service approval under the National Law, it
is not to be considered an unlicensed or unapproved children's
service and will not have committed an offence under section 7.
Clause 7 amends section 8 of the Principal Act. This amendment provides
that there will be no offence under section 8 where the children's
service has, or has applied for, a licence to operate under the
Principal Act, or has, or has applied for, a service approval under
the National Law.
Clause 8 inserts a new Division 1AA comprising new section 8A.
New section 8A provides that the Part 3 provisions for licensing
of children's services do not apply to associated children's
services that are approved under the National Law; or to services
that include an associated children's service, which have made an
application for approval under the National Law.
Clause 9 repeals section 13 of the Principal Act, which provides for an
approval of premises to automatically expire after 5 years.
Section 13 is unnecessary as there is already provision for
cancellation of an approval of premises in the event that premises
are no longer satisfactory for the operation of a children's service
(section 14).
3
Clause 10 Subclause (1) amends section 15(1) of the Principal Act to
substitute "a current approval" with "an approval". This is
because approvals of premises no longer automatically expire at
the end of 5 years and are, instead, ongoing in nature. The issue
of currency is no longer relevant.
Subclause (2) repeals section 15(2) of the Principal Act because
it refers to licences to operate family day care services which are
no longer regulated by the Principal Act.
Clause 11 repeals section 16 of the Principal Act, which provides that a
person may apply to the Secretary to obtain a licence to operate a
family day care service. This section is being removed as family
day care services are no longer regulated by the Principal Act.
Clause 12 Subclause (1) amends section 18(1) of the Principal Act by
removing the cross reference to section 16, which has been
repealed because it relates to provision of family day care service
licences which are no longer regulated by the Principal Act.
Subclause (2) substitutes section 18(1)(b)(iii) of the Principal Act
to provide that an application to obtain a licence to operate a
children's service requires either, a declaration by the applicant
that the person is fit and proper to manage or control a children's
service; or evidence that the person nominated is an approved
provider or a certified supervisor. The use of evidence that a
person is an approved provider or a certified supervisor is new
and offers a further level of scrutiny to the licence approval
process.
Subclause (3) inserts new section 18(2) into the Principal Act
which provides that an application to obtain a licence to operate
a children's service must also be accompanied by the written
consent of each person nominated to manage or control the
service, or to have primary responsibility for the management
and control of the service, in the absence of the licensee.
This change will align the Principal Act with a similar
requirement in the National Law.
Clause 13 omits the word "current" before the words "certificate of
approval of premises" from section 19(a) of the Principal Act.
These certificates will be ongoing and will therefore not lose
their currency.
4
Clause 14 repeals section 20 of the Principal Act as it relates to the
provision of information for an application to obtain a licence to
operate a family day care service which is now regulated by the
National Law.
Clause 15 amends section 21(1) of the Principal Act by substituting
"a current approval" with "an approval". Approvals of premises
are now ongoing and no longer expire at the end of 5 years.
Accordingly, the currency of the certificate is no longer an issue.
Subclause (2) repeals section 21(2) as it relates to the inspection
of a family day care premises which is no longer within the scope
of the Principal Act.
Clause 16 amends section 22 of the Principal Act by omitting "or 16" which
is a cross reference to an application for a licence to operate a
family day care service which is now regulated by the National
Law.
Clause 17 inserts new section 22A into the Principal Act which allows the
Secretary to exempt an approved provider, a certified supervisor,
or a person with management or control of an education and care
service operated by an approved provider from carrying out a fit
and proper person check. A person exempted under new
section 22A is accepted as a fit and proper person for the
purposes of Part 3 of the Principal Act.
New section 22A(3) provides the Secretary with the power to
revoke a person's status as a fit and proper person if he or she is
satisfied that the person has ceased to be a fit and proper person.
Clause 18 substitutes a cross reference to "section 18(1)(b)(iii)" with
"section 18(1)(b)(iii)(A)" in section 23 of the Principal Act.
This provision refers to a declaration by the applicant that the
person is fit and proper to manage or control a children's service.
Clause 19 amends section 25 of the Principal Act by providing the
Secretary with the power to take into account whether the person
has been found guilty of an offence against the National Law as
applying in any jurisdiction or the national regulations applying
in any jurisdiction in carrying out a fit and proper person check.
This promotes the recognition and integration between the
National Law and the Principal Act.
5
Subclause (2) inserts the cross referencing changes required as
a result of the inclusion of new section 25(1)(ba) within the
Principal Act to ensure that this provision is included as a matter
that the Secretary can take into account in carrying out a fit and
proper person check.
Clause 20 amends the Note at the foot of section 25A of the Principal Act
by substituting "section 23" with "sections 22A and 23".
This change refers the reader to the additional circumstances in
which the Secretary is not required to carry out a fit and proper
person check (if the Secretary is satisfied that the person's fitness
and propriety has been properly assessed under the National
Law).
Clause 21 amends section 25C of the Principal Act. This provision sets out
the circumstances in which the Secretary can refuse to grant a
licence. Section 25C(b) has been amended to remove the words
"except in the case of a family day care service" and to remove
the term "current" before "approval of premises", as all family
day care services are now regulated by the National Law and
licenses are ongoing rather than being subject to periodic expiry.
Clause 22 amends the section 25D of the Principal Act by removing the
references to family day care services in the heading and body of
section 25D. This section prevents the Secretary from granting a
licence to operate a children's service (other than a family day
care service) in more than one premises. The exemption for
family day care services has been omitted as this type of service
is now regulated by the National Law.
Clause 23 amends section 25E of the Principal Act by repealing sections
25E(3) and 25E(5)(e).
This section sets out the conditions on which all children's
services licences are granted and provides that a licence may be
granted subject to any other conditions or restrictions set out in
the licence that are prescribed or the Secretary imposes.
Subsections (3) and (5)(e) have been repealed because they both
relate to conditions or restrictions on family day care services or
venues which are now regulated by the National Law.
6
Clause 24 amends section 25G of the Principal Act which requires the
Secretary (if a licence is granted) to send a copy of the licence to
the licensee setting out certain information. All references to the
grant of licenses to family day care services have been deleted
from this section as these are regulated under the National Law.
Clause 25 omits "and venues" in the heading to Division 5 of Part 3 of the
Principal Act as this relates to family day care venues which are
now regulated by the National Law.
Clause 26 repeals section 25J of the Principal Act which allows the
Secretary to approve a venue as a family day care venue in which
a family day care service can operate. This provision has been
repealed as family day care services are no longer regulated by
the Principal Act.
Clause 27 repeals section 25L of the Principal Act. This provision allows
the Secretary to approve new family day care venues during the
term of a licence, on the application of the licensee of a family
day care service. It has been repealed because family day care
services are no longer within the scope of the Principal Act and
are regulated instead by the National Law.
Clause 28 amends section 25M of the Principal Act which provides that an
application under section 25K (for the approval of new
nominees) or 25L (approval of new family day care venues) must
be in writing, contain the relevant prescribed information and be
accompanied by the relevant prescribed fee. The words "or 25L"
have been omitted as a consequence of the repeal of section 25L
(see clause 27 above).
Clause 29 inserts new Part 3A after Part 3 of the Principal Act. Part 3A
deals with matters relating to service approvals under the
National Law that include, or will include, approved associated
children's services.
New section 25V sets out the criteria the Regulatory Authority
must have regard to in assessing an associated children's service
for the purpose of determining whether to grant a service
approval. The criteria are that the children's service must be
operated from a single premises, the design and location of the
premises must be satisfactory for the operation of the service; and
each nominee must be an approved nominee in accordance with
the requirements of the Principal Act.
7
New section 25W specifies the classes of persons who are
regarded as approved nominees for the purposes of approved
associated children's services. These are a certified supervisor
employed at the approved associated children's service or an
"associated education and care service" (defined in section
25X(3) as the approved education and care service the service
approval for which includes the associated children's service) or
a person approved by the Secretary as an approved nominee
(approved to manage or control the service in the absence of the
provider) pursuant to new section 25X.
Section 25W(2) provides that the primary nominee for an
approved associated children's service may be a nominated
supervisor of the associated education and care service; or a
certified supervisor designated in writing as the primary nominee
for the approved associated children's service; or a person
approved by the Secretary under section 25X as being the
primary nominee of the service (approved to have primary
responsibility to manage or control the service in the absence of
the provider).
New section 25X allows an approved provider of an associated
children's service to apply to the Secretary for approval of a new
nominee who has management and control of the service in the
absence of the approved provider and a primary nominee who
has primary responsibility for the management or control of the
service in the absence of the provider.
Section 25X(2) provides that the fit and proper person
determination process set out in Division 3 of Part 3 of the
Principal Act applies to an applicant for approval (including an
applicant who is an approved provider of an approved associated
children's service), with the exception of section 23. Section 23
excludes accepted nominees who have been nominated by the
licensee of the service and therefore not subject to a fit and
proper person check by the Secretary. Accordingly, all persons
seeking approval as approved nominees of an associated
children's service must be subject to a fit and proper person
determination, unless the exemption in new section 22A applies.
Section 25X(3) states that the Secretary must notify the approved
provider of any nominees he or she has approved as a result of an
application under section 25X.
8
New section 25Y specifies that an application by an approved
provider for approved nominees under new section 25X must be
in writing and contain prescribed information and prescribed fee.
New section 25Z empowers the Secretary to decide to amend a
service approval to the extent that it relates to an approved
associated children's service by varying or revoking conditions,
imposing new conditions or restrictions, or amending the service
approval. Notice of the Secretary's decision to amend the service
approval (including a copy of the amended service approval)
must be sent to the service within 7 days of making the decision.
Section 25Z(3) provides that the Secretary may direct the
Regulatory Authority to amend the service approval under
section 55(5) of the National Law 30 days after the Secretary
sends a notice of his or her decision to amend the service
approval under new section 25Z(2), except where a shorter
period has been agreed between the parties, or the approved
provider applies to VCAT for review of the decision within that
30 day period. If VCAT confirms the decision under section
25Z(1), the Secretary may then direct the Regulatory Authority
to amend the service approval.
A Note at the foot of section 25Z states that a decision by the
Secretary to amend a service approval under section 25Z(1) does
not have effect unless the amendment is made to the service
approval by the Regulatory Authority in accordance with section
55(5) of the National Law. This provision requires that the
Regulatory Authority must amend a service approval to the
extent that it relates to an associated children's service in
accordance with any direction by the children's services regulator
if the direction is given in accordance with the children's law in
which the service approval has been granted.
New section 25ZA allows an approved provider to make a
voluntary application to the Secretary to suspend a service
approval to the extent that it relates to an associated children's
service. The application must be in writing and must contain
prescribed information and prescribed fees.
Section 25ZA(3) provides the Secretary with the discretion to
decide, by notice in writing, whether to suspend the service
approval to the extent that it relates to an associated children's
service. To do so, the Secretary must be satisfied that the
applicant proposes to resume the operation of the service at the
9
end of the period of suspension, and that any other prescribed
conditions have been met. The notice to suspend must contain
details of the period of suspension and the date on which the
suspension takes effect, as required by section 25ZA(4).
The Secretary must advise the Regulatory Authority of his or her
decision to suspend the service approval before the date on which
the suspension commences, and not later than 30 days after
Secretary sends the notice to suspend.
The Note at the foot of new section 25ZA specifies that the
decision to suspend service approval will not have effect unless
the Secretary notifies the Regulatory Authority of the decision
pursuant to section 75 of the National Law. Section 75(3)
provides that if a final determination is made under the children's
law of the jurisdiction in which the service approval has been
granted, a service approval should be suspended to the extent that
it relates to an associated children's service, the children's service
regulator must advise the Regulatory Authority of that
determination and that the service approval is suspended to the
extent that the determination relates to an associated children's
service.
Section 25ZB(1) allows the Secretary to decide to cancel a
service approval to the extent that the determination relates to an
associated children's service if the Secretary is satisfied that the
approved provider of the service has requested that the service
approval be cancelled to the extent that it relates to an associated
children's service; or, the approved provider has ceased operating
the approved associated children's service.
If the Secretary makes a decision to cancel a service approval he
or she must give written notice of the decision to the approved
provider at least 7 days before the effective date of cancellation
set out in the notice.
The Secretary must advise the Regulatory Authority of his or her
decision before the effective date of cancellation and not later
than 7 days after the Secretary has given notice to the approved
provider.
The Note at the foot of section 25ZB clarifies that the decision to
cancel the service approval, to the extent that the decision relates
to an associated children's service under section 25ZB(1), does
not have effect unless the Secretary notifies the Regulatory
Authority of the decision pursuant to section 80 of the Principal
10
Act. Section 80(3) provides that if a final determination is made
that a service approval should be cancelled, to the extent that it
relates to an associated children's service, the children's service
regulator under the children's law of the jurisdiction in which the
service approval has been granted must advise the Regulatory
Authority of that determination and the service approval
cancellation, to the extent that it relates to an associated children's
service.
Clause 30 repeals section 26(3) of the Principal Act which requires that
family day carers must take every reasonable precaution to
ensure children are protected from any hazard or harm likely to
cause injury. This amendment will ensure that family day care
services are not regulated by the Principal Act.
Clause 31 repeals section 26B(2) of the Principal Act. This removes the
requirement that family day carers must ensure that there is an
educational or recreational program made available to all
children cared for or educated by that carer. This section is not
required as family day care services are no longer regulated
under the Principal Act.
Clause 32 repeals section 27(3) of the Principal Act which requires that
family day carers ensure that children in their care are adequately
supervised. This section is not required as family day care
services are no longer regulated by the Principal Act.
Clause 33 repeals section 28(3) of the Principal Act which requires that a
family day carer must ensure that children in their care are not
subjected to any form of corporal punishment or any discipline
which is unreasonable in the circumstances. This provision
relates to family day carers and is therefore no longer within the
scope of the Principal Act.
Clause 34 repeals section 29(2) of the Principal Act which requires that a
family day carer must take reasonable steps to ensure that all
buildings, grounds, equipment and furnishings used by the family
day carer, for the care or education of a child are maintained and
kept in good repair. The section is repealed because it relates to
family day carers which are now governed solely by the National
Law.
11
Clause 35 repeals section 29B(2) of the Principal Act which requires family
day carers to ensure that medication is not administered to a child
in his or her care unless the prescribed authorisation has first
been obtained, and the medication is administered in the
prescribed manner. This provision is repealed because it relates
to family day carers who will be regulated under the National
Law rather than the Principal Act.
Clause 36 amends section 29C(c) of the Principal Act by inserting "being
cared for or educated by the service" after "child" to ensure that
the obligation to notify the Secretary in the prescribed manner if
a child appears to be missing or is unaccounted for, or appears to
have been taken or removed from the service, does not apply
more broadly than to children being cared for or educated by the
particular children's services.
Clause 37 amends the heading in section 30 of the Principal Act by
substituting "Licensee" with "Licensee, responsible person".
Current section 30(2), which states that section 30(1) does not
apply to the licensee of a family day care service, is substituted
with new section 30(2) which requires that an approved
associated children's service must ensure that the a responsible
person or nominee is present at the premises where the children's
service is operating at all times when any child is being cared for
or educated by the service on the premises. The maximum
penalty for an offence under this section is 120 penalty units.
This provision supports the appropriate regulation of associated
children's services under the Principal Act and ensures that
family day carers are no longer regulated by the Act.
Clause 38 repeals section 32A of the Principal Act which requires that
proprietors of family day care services must provide the
Secretary with written information about each family day carer
who is engaged or ceases to be engaged by the service.
All matters relating to family day care services are included in
the National Law.
Clause 39 repeals section 32B(3) of the Principal Act, which provides that
a family day carer must keep the relevant prescribed documents
available for inspection by authorised officers at the carer's
residence or venue. Provisions relating to family day care are no
longer within the scope of the Principal Act and are included in
the National Law instead.
12
Clause 40 substitutes a new section 33 into the Principal Act which requires
that a licensee of a children's service and an approved provider of
an associated children's service must ensure that a copy of the
licence (in the case of a children's service) and a copy of the
service approval (in the case of an associated children's service)
is displayed conspicuously at the entrance of the service.
The maximum penalty for offences under this section is to be
60 penalty units in relation to children's services and associated
children's service respectively. The reference to the display of
the licence at the principal office of a family day care service has
been deleted as family day care is no longer within the scope of
the Principal Act.
Clause 41 inserts new section 34A into the Principal Act. Section 34A
requires that an approved provider of an associated children's
service who has been notified of a decision by the Secretary to
amend a service approval or has applied to have service approval
cancelled to the extent that it applies to an associated children's
service must notify parents or guardians of children who are
cared for or educated by the service of the decision to amend or
application for cancellation by posting a notice conspicuously at
the entrance of the service within 7 days after being notified.
The maximum penalty for an offence under this section is to be
60 penalty units. This provision ensures that associated
children's services are incorporated into the operational
requirements of the Principal Act.
Clause 42 amends section 36 of the Principal Act to make it clear that the
powers of entry of authorised officers can be used in relation to a
licensed children's service and an approved associated children's
service. References to powers of entry relating to the family day
carers' service premises or residences have been removed as these
matters are now regulated in the National Law.
Clause 43 substitutes a new section 36A into the Act, giving authorised
officers the power to obtain relevant information, documents and
evidence by notice in writing from a person who is or has been a
licensee, an approved provider of an approved associated
children's service, a nominee or a staff member of a children's
service. The new changes to the persons from whom authorised
officers can obtain information ensure that approved providers of
an approved associated children's service fall within the scope of
the section.
13
Clause 44 inserts "or unapproved" after "unlicensed" in the heading to
section 37 of the Principal Act. This ensures consistency with
section 7 of the Act which makes it an offence to carry on an
unapproved associated children's service.
Clause 45 amends section 38 of the Principal Act to ensure that an
authorised officer's search and seizure powers and right of entry
relate to approved associated children's services and no longer
apply to family day carer's residences or services as family day
care services are now regulated by the National Law.
Clause 46 inserts new subsection 42A (1AA) into the Act. This provision
includes an approved provider of an approved associated
children's service and removes the reference to a family day carer
as a required person from whom the Secretary may obtain
information, documents and evidence by notice in writing in the
manner specified in the notice.
Clause 46(4) inserts the words "or any information obtained
directly or indirectly because of that answer or the provision of
that information" after the words "in compliance with a notice
under this section". This ensures that the answers obtained by
compulsory questioning by the Secretary cannot be used against
the person directly ("direct use immunity") or indirectly
("derivative use immunity") in criminal proceedings. The section
currently only offers direct use immunity for those parties
referred to in section 42A.
Clause 47 amends section 43 of the Principal Act so that it applies only to
licensed children's services other than an approved associated
children's services and removes references to family day care
services.
Clause 47(3) repeals section 43(2A) of the Principal Act and
substitutes section 43(3) and new section 43(3A).
These provisions set out the notice requirements and internal
review and decision making mechanism required to be used by
the Secretary, with the exclusion of all references to family day
carers as these are no longer administered by the Principal Act.
14
Clause 48 inserts new sections 43AA and 43AB into the Principal Act.
New section 43AA sets out the notice requirements and internal
review and decision making mechanism carried out by the
Secretary in relation to approved associated children's services.
Section 43AA (2) allows the Secretary to vary, revoke or impose
conditions on the service approval or to suspend the service
approval to the extent that it relates to an associated children's
service. This provision mirrors, to a large extent, section 43 in
the Principal Act which also makes provision for enforcement
requirements for services.
New section 43AB(1) requires that 30 days after the Secretary
gives notice to the proprietor of his or her decision to vary,
revoke or impose conditions on a service approval under section
43AA; or if the approved provider has made an application to
VCAT for review of the decision, after the decision of the
Secretary is confirmed by VCAT on review; the Secretary must
direct the Regulatory Authority of his or her decision amend the
service approval under section 55(5) of the National Law which
provides that the Regulatory Authority must amend a service
approval to the extent that it relates to an associated children's
service in accordance with any direction by the children's service
regulator.
New section 43AB(2) requires that 30 days after the Secretary
gives notice to the proprietor of his or her decision to suspend a
service approval under section 43AA; or if the approved provider
has made an application to VCAT for review of the decision,
after the decision of the Secretary is confirmed by VCAT on
review; the Secretary must advise the Regulatory Authority of his
or her decision to suspend the approval. The approval will then
be suspended by the Regulatory authority under section 75(5) of
the National Law.
Clause 49 inserts "or an approved associated children's service" after
"children's service" in section 44 of the Principal Act to clarify
that, if the Secretary removes children from a children's service,
they may also be placed at an associated children's service.
Clause 50 inserts new section 45A into the Principal Act which provides the
Secretary with the power to cancel a service approval to the
extent that it relates to an associated service if he or she is
satisfied that the approved provider has been found guilty of an
offence under this Act, or has failed to ensure that the service is
15
being operated satisfactorily or in a way which is safe for
children being cared for at the service.
Section 45A(2) sets out the notice requirements and decision
making mechanisms for the cancellation of the service approval.
This includes a Note at the foot of new section 45A which
provides that any decisions made by the Secretary to cancel a
service approval under new section 45A(1) does not have effect
unless the Secretary notifies the Regulatory Authority of that
decision pursuant to section 80(3) of the National Law which
provides that the relevant children's service regulator must advise
the Regulatory Authority of a determination made under a
children's services law to cancel a service approval to the extent
that it relates to an associated children's service and must advise
that the service approval is cancelled to the to the extent that it
relates to an associated children's service.
Clause 51 amends sections 53 of the Principal Act by substituting sections
53(1) and (2). The new provisions add associated children's
services to the record keeping requirements in this section.
Section 53 provides that the Secretary must keep a register of
licensed children's services and approved associated children's
services and that the register must contain prescribed information
about both licensed children's services and approved children's
services. The new subsections are required because the
information obtained during the licence application process for
other children's services will not have been provided by approved
associated children's services as part of the service approval
process under the National Law.
Clause 52 repeals section 53A of the Principal Act which relates to keeping
of a register of family day carers. This change ensures that
family day care services are no longer regulated under the
Principal Act.
Clause 53 amends section 53B of the Principal Act.
Section 53B allows the Secretary to publish information about
children's services on the Department's Internet site.
The information may include compliance information,
enforcement actions taken under the Act or the regulations;
however the Secretary must first notify the licensee of the
Secretary's proposal to publish that information and that the
licensee may seek review of the proposal under section 54A.
16
Section 53B(1) has been amended to remove references to family
day care services and incorporate provisions relating to
associated children's services.
Clause 54 inserts new section 53C(1)(ab) into the Principal Act.
Section 53C allows the Secretary to provide statistical,
compliance and enforcement information to a Government
Department, public authority or municipal council for a purpose
relating to the health, safety and wellbeing of children or the
operation of children's services. New section 53C(1)(ab) extends
the Secretary's power to include the provision of statistical
information in relation to service approvals for approved
associated children's services.
The amendment to section 53C(3) ensures that approved
providers of associated services are also protected against the
inclusion of information provided or published under section 53B
or 53C which might identify an approved provider of an
approved associated children's service.
Clause 55 amends section 54A(1) of the Principal Act by including
references to "an approved provider of an associated children's
service" and "approved provider" respectively, to ensure that
the internal review mechanism in respect of a proposal by the
Secretary to publish information relating to a licensed children's
services on the internet also applies to approved associated
children's services.
Clause 56 amends section 55 of the Principal Act to ensure that decisions
made by the Secretary under the Principal Act affecting service
approval, change of conditions on service approval, suspension,
or cancellation of service approval for an associated children's
services, will be reviewable by the Victorian Civil and
Administrative Tribunal under this Act and not the National Law.
Clause 57 omits the words "and family day carers" in section 56(f) of the
Principal Act to ensure that regulations cannot be made in respect
of records to be kept by children's services and not family day
carers as family day care services are now regulated by the
National Law.
17
Clause 58 substitutes Part 7 of the Principal Act.
New section 57 defines terms for Part 7. Commencement day is
defined as the day on which Part 2 of the Bill comes into
operation. This definition is referred to in new sections 58, 59,
60 and 61.
The definition of declared approved service is adopted from the
definition in section 16(4) of the Education and Care Services
National Law Act 2010 (which is amended by clause 60 of the
Bill). This provides that an outside of school hours care (Type 1
or Type 2) service, an integrated service, a family day care
service or a standard service previously licensed under the
Principal Act is declared to be an approved service under the
National Law.
Residual Service is defined as a standard service excluded by
regulations made under the Education and Care Services
National Law Act 2010, Limited Hours (Types 1 and 2); Short
Term (Types 1 and 2); and Holiday care programs that provide an
education and care service for no more than 4 weeks per calendar
year during school holidays.
New section 58 clarifies that the Principal Act will cease to apply
to declared approved services on the day Part 2 of the Bill
commences.
New section 59 provides that those residual services that do not
fall within the scope of the National Law will continue to operate
as licensed children's services under the Principal Act.
New section 60 addresses the situation where the National Law
has come into operation and an application is made under the
National Law for a service approval for a service that includes an
associated children's service. This section provides that the
associated children's service will cease to be a licensed children's
service upon grant of the service approval by the Regulatory
Authority.
New section 61 provides that persons who had been licensees,
nominees, staff members of a children's service or family day
carers within the meaning of the Principal Act immediately
before commencement day will continue to be subject to
sections 36A and 42A after the commencement.
18
Section 36A empowers authorised officers to obtain information,
documents and evidence and section 42A gives the Secretary the
power to obtain information, documents and evidence relating to
a contravention of a serious offence.
New section 62 creates a power to make regulations to deal with
transitional matters relating to the commencement of the Bill.
It enables the transitional regulations to have a limited
retrospective effect to ensure that they will be effective.
Clause 59 repeals the Schedule to the Principal Act. The Schedule contains
transitional provisions relating to the Children's Legislation
Amendment Act 2008. These provisions are spent and can be
safely repealed.
Clause 60 amends section 16 of the Education and Care Services
National Law Act 2010 by substituting section 16(3) and (4) and
inserting new subsection 16(4A). These clarify the definitions of
"declared approved provider" and "declared approved service".
New section 16(4A) specifically sets out those services that are
not declared approved services. These mirror the residual
services defined in new section 57 of the Principal Act (inserted
by clause 58). Section 16(8) is substituted with a provision
which cross references a service declared under subsection 16(4)
thereby reducing the scope of licensed services referred to in
section 16(8).
Clause 61 inserts new section 19 into the Education and Care Services
National Law Act 2010, which is a transitional provision
applying to integrated licences that include a limited hours
service.
Section 19(2) provides that the licensee may, by notifying the
Secretary in writing, choose to include the limited hours service
as an associated children's service in a service approval granted
under section 307 of the National Law. Section 19(3) provides
that any service approval issued under section 307(9) of the
National Law for the rest of the integrated service must include
the associated children's service.
Clause 62 inserts new section 5(6) in the National Law which provides
that a reference in the National Law to the Law as applying in
a participating jurisdiction includes a reference to a law enacted
in a jurisdiction that substantially corresponds to the Law.
This ensures that references in the National Law will include the
19
Law of another jurisdiction, whether it has been applied or
enacted in that jurisdiction.
Clause 63 repeals section 7(4) of the National Law as the issue of
substantial correspondence is addressed by new section 5(6) of
the National Law.
Clause 64 amends section 23(4)(a) of the National Law by substituting
"subsection (2)" with "subsection (3)" to correct a cross
referencing error.
Clause 65 amends section 33(1)(a)(ii) of the National Law by inserting a
missing "or" at the end of that subparagraph. The amendment
clarifies that subparagraphs (i) to (iii) are intended to be
alternatives.
Clause 66 amends section 39(7)(b) of the National Law by inserting
"executor of the estate of the" before "approved provider" to
ensure consistency between sections 39(5) and 39(7)(b) and to
clarify that it is the executor of the estate of the approved
provider who may apply to the Regulatory Authority for a
provider approval and not the approved provider.
Clause 67 inserts "either of the following" after "have regard to" in section
47(2) of the National Law. This amendment limits the scope of
additional requirements to which the Regulatory Authority may
have regard in determining an application for service approval.
The Authority now has the discretion to have regard to either
financial capacity and management capability or the applicant's
history of compliance with the National Law or corresponding
education and care services law in the relevant jurisdiction.
Clause 68 amends section 48(4)(b) of the National Law to correct a cross
referencing error by substituting "section 47(2)" with
"section 47(3)".
Clause 69 amends sections 111(3) and 111(4) of the National Law to
correct cross referencing errors.
Clause 70 amends section 190 of the National Law by inserting an "or" at
the end of 190(d)(i) and (ii) to clarify that a decision to suspend
provider approval, service approval or supervisor approval by the
Regulatory Authority should be read disjunctively and each type
of suspension should be treated as a separate reviewable decision.
20
Clause 71 amends section 197 of the National Law by inserting "or" after
"belief" in section 197(2)(e)(i) to ensure that a person at a
premises may be asked by an authorised officer to either answer a
question, or take reasonable steps to provide information or
produce a document.
Clause 69(2) amends a cross referencing error in section 197(3)
by substituting "subsection (1)(a) to (d)" with "subsection (2)(a)
to (d)".
Clause 72 substitutes "subsection (1)(b) to (d)" with "subsections (2)(b)
to (d)" in section 199(3) of the National Law to correct a cross
referencing error in relation to the limitation of powers entry of
authorised officers to investigate a specific document or thing.
Clause 73 amends subsection 247(2) of the National Law by inserting the
word "and" at the end of subsections 247(2)(a) and (2)(b)(iv)
to clarify that the functions and procedures of the Australian
Children's Education and Care Quality Authority Board set out in
subsection 247(2) are conjunctive and therefore must be read as a
whole.
Clause 74 amends section 254(1)(c) of the National Law to insert missing
words.
Clause 75 amends section 268(2) (a) of the National Law by inserting "or
the prescribed class of persons to which the supervisor belongs"
after "certified supervisors" to ensure that the register for
certified supervisors also includes details of a broader prescribed
class of persons who can become supervisors. This amendment
is also consistent with the requirements for issue of a supervisor
certificate the information that the Authority must issue a
includes the name of the certified supervisor or the prescribed
class of person to which the certified supervisor belongs.
Clause 76 amends section 301(4) of the to the National Law by inserting
"and" at the end of subsection 301(4)(a) to (f)(ii) ensure that all
of the subsections in this provision characterising the regulations
are read inclusively.
Clause 77 amends an error in section 307 of the National Law by
substituting "section 307(1) and (2)" with "sections 307(1)
and (2)".
21
Clause 78 amends clause 29, Schedule 1 of National Law by replacing
"section" with "clause in 9(d) and 10(d) and "subsection" for
"subclause". This is consistent with the requirement that all
schedules in Acts be referred to as clauses and not sections.
Clause 79 is an empowering provision and provides that the items referred
to in the Schedule will amend each of the specified Acts as set
out in the item.
Clause 80 provides that the Bill is repealed on the first anniversary of the
commencement of Part 2. The repeal of this Bill does not affect
the continuing operation of the amendments made by this Bill
(see section 15(1) of the Interpretation of Legislation Act
1984).
SCHEDULE
Item 1 amends section 3 of the Child Wellbeing and Safety Act 2005
by inserting new paragraph (ab) which expands the definition of
human service to include "an education and care service within
the meaning of the Education and Care Services National Law
(Victoria) or". This empowers the Child Safety Commissioner to
access any information, documents or files held by the service
relating to a child death that is the subject of an inquiry under the
Child Wellbeing and Safety Act 2005.
Item 2 amends the definition of information holder in section 3 of the
Children, Youth and Families Act 2005 by inserting new
paragraph (ka) which adds that a person in charge of an education
and care service within the meaning of the Education and Care
Services National Law is an information holder for the purposes
of the Children, Youth and Families Act 2005 who may
required to consult with the Secretary to the Department of
Human Services or other community based organisation or may
be requested or required to disclose information to the Secretary
to the Department of Human Services.
Item 2.2 is a statute law revision amendment that corrects an
incorrect cross-reference in section 182(1)(f) of the Children,
Youth and Families Act 2005. Section 182(1)(f) currently
refers to a person nominated under section 16(2)(b)(iii) of the
Principal Act, which has been repealed. The correct reference is
to a person who is a nominee within the meaning of the Principal
Act for a children's service.
22
Item 2.3 expands the persons who are required to make
mandatory reports under section 182(1) of the Children, Youth
and Families Act 2005 by inserting paragraph (fa) into section
182(1) which includes approved providers or nominated
supervisors, persons with a post secondary qualification in the
care, education or minding of children who are employed in an
education service within the meaning of the National Law.
Item 3 section 60B(2)(b)(i) of the Crimes Act 1958 is amended by
replacing the terms "kindergarten or childcare centre" with
"a children's services centre or an education and care service
premises".
Item 3.2 amends new subsection 60B (4) inserts definitions for
"children's services centre" and "education and care service
premises". Both of these definitions are intended to exclude
family day care services.
Item 4 inserts new subsection 38G of the Interpretation of Legislation
Act 1984 which provides a definition of "Education and Care
Services National Law (Victoria) as the recognised term for the
National Law whenever it is referenced in an Act or subordinate
instrument.
Item 5 amends section 3(1) of the Public Health and Wellbeing Act
2008 by inserting a definition of "education and care service
premises" so that it has the same meaning as in the National Law.
Item 5.2 provide that section 238(1)(y) includes "education and
care premises", in conjunction with matters relating to the closing
of primary schools and children's services centres because of an
infectious diseases.
Item 5.3 incorporates education and care service premises into
section 238(1)(z) which deals with matters relating to the
regulation or restriction of attendance at a primary school or
children's services centre because of an infectious disease.
Both subsections 238(1) (y) and (z) specify matters that may be
prescribed in regulations relating to the management and control
of infectious disease, micro-organisms and medical conditions.
Item 6 amends the Sex Offenders Registration Act 2004 by inserting
the definition of an "education and care service" within the
meaning of the National Law as new subsection 67(1)(ca).
This amendment expands the definition of child-related
23
employment to include employment involving contact with a
child in connection with an "education and care service".
Item 7 inserts into the Sex Work Act 1994 a definition of an "education
and care services premises" which means a place (other than a
family day care residence) where an education and care service
within the meaning of the National Law educates or cares for
children.
Items 7.2 to 7.5 also substitute the term "kindergarten" with
"education and care premises" to ensure that sex workers and
their clients loitering in or near an education and care premises
are caught by the offence provision in sections 12(1)(c) and
13(1)(c). The reference to "education and care service premises"
are also incorporated into sections 73(c) and 74(1)(c) so that a
responsible authority must, before deciding on an application,
take into account the distance of an education and care service
premises from land where a permit is being applied for to operate
a brothel. The definition is not intended to include family day
care services.
Item 8 inserts item 6 in Schedule 1 of the Summary Offences Act 1966
which specifies "scheduled public places" for the purposes of the
definition of Scheduled public place in section 3 of the Act.
Item 9 expands the definition of "child-related work" in the Working
with Children Act 2005 by inserting "(ca) education and care
services within the meaning of the Education and Care Services
National Law (Victoria)" into section 9(3).
24