Kuol t/as Care Family Day Care v Queensland Department of Education
[2018] QCAT 337
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Kuol t/as Care Family Day Care v Queensland Department of Education[2018] QCAT 337
- Add to List
Kuol t/as Care Family Day Care v Queensland Department of Education[2018] QCAT 337
Kuol t/as Care Family Day Care v Queensland Department of Education[2018] QCAT 337
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Kuol t/as Care Family Day Care v Queensland Department of Education [2018] QCAT 337 |
PARTIES: | KUOL ATEM KUOL KUOL t/as CARE FAMILY DAY CARE (applicant) |
| v |
| QUEENSLAND DEPARTMENT OF EDUCATION (respondent) |
APPLICATION NO/S: | GAR204-18 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 9 August 2018 11 October 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | EDUCATION – family day care – provider and service approval under Education and Care Services National Law (Queensland) – where applicant’s provider and service approval cancelled – where the applicant filed an application to review – where the applicant also applied for a stay of the decision – where the applicant argues that his interests will be seriously and adversely affected if decision not stayed – where decision based on numerous grounds arising under the National Law and National Regulations – where the rights and best interests of the child are paramount under the National Law – whether a stay ought to be granted Education and Care Services National Law Act 2010, s 4, s 42, s 43, s 44 Education and Care Services National Law (Queensland), s 192, s 193 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(3), s 22(4) Bui v Queensland Law Society Incorporated [2017] QCAT 441 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 King v Queensland Law Society Incorporated [2012] QCAT 489 Oz Family Day Care Pty Ltd v Department of Education and Training [2017] QCAT 220 Techno Protective Security Services Pty Ltd v Brisbane City Council [2012] QCAT 699 |
REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Queensland Department of Education |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
- [1]This is an application for an order to stay the decision of the Respondent made on 19 June 2018 pursuant to s 33(1) of the Education and Care Services National Law (Queensland) (‘the National Law’) to cancel the ‘provider approval’ of the Applicant issued under that Law. The Applicant held a ‘provider approval’ issued on 5 September 2015 under s 15 of the National Law and a ‘service approval’ issued on 17 August 2015 under s 48(1) of the National Law.[1]
- [2]On 9 March 2018, the Applicant was given a show cause notice under s 32(2) of the National Law inviting a response to the proposed cancellation of his provider approval. Responses were provided on 11 and 12 April 2018, following which a decision was made by the Respondent pursuant to s 33(1) of the National Law to cancel the provider approval effective from 6 July 2018. The findings on which that decision was based are outlined below.
- [3]A consequence of the decision of the Respondent was that the service approval held by the Applicant was also cancelled, as provided for by s 34(1) of the National Law.
- [4]On 21 June 2018, the Applicant filed an application to review the decision of the Respondent to cancel the Applicant’s provider approval.[2] At the same time, application was made to stay the decision pending the outcome of the application for review, as allowed by s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
- [5]In accordance with directions made on 27 June and 19 July 2018, the stay application was determined on the papers and on 9 August 2018 the application was refused. Pursuant to s 122(2) of the QCAT Act, the Applicant subsequently requested written reasons for that decision.
The statutory framework
- [6]Section 3(1) of the National Law states that the objective of the law is ‘to establish a national education and care services quality framework for the delivery of education and care services to children’. Section 3(2) provides six objectives of the quality framework, including:
- (a)to ensure the safety, health a wellbeing of children attending education and care services;
- (a)
Section 3(3) then sets out six guiding principles of the quality framework, including:
- (a)that the rights and best interests of the child are paramount;
- (f)that best practice is expected in the provision of education and care services.
- [7]Section 4 of the National Law requires an entity that has functions under this Law ‘to exercise its functions having regard to the objectives and guiding principles’ set out in s 3. In conducting a review, that obligation extends to the Tribunal.
- [8]The grounds for cancellation of provider approval are set out in s 31 of the National Law. In the present case, provider approval was cancelled on grounds (b) and (e) of
s 31:
(b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or
- (e)the approved provider has breached a condition of the provider approval
- [9]By s 22(4) of the QCAT Act, the tribunal may make an order staying the operation of a reviewable decision only if it considers the order is desirable after having regard to:
- (a)the interests of any person whose interests may be affected by the making of the order or the order not being made;
- (b)any submission made to the tribunal by the decision-maker for the reviewable decision;
- (c)the public interest.
The Tribunal must form the positive view that the making of a stay order is desirable.[3]
- [10]In Bui v Queensland Law Society Incorporated,[4] after noting that regard must be had to the factors in s 22(4) of the QCAT Act, Daubney J stated that it is also appropriate to consider the conventional curial principles relating to stay applications and adopted the following observations by Wilson J in King v Queensland Law Society Incorporated:[5]
… s 22(4) of the QCAT Act spells out three particular factors the Tribunal must consider before granting a stay but, in doing so, does not exclude the application of standard principles, procedures and tests to be applied in applications for stays. The matters to be considered under those tests will include the applicant’s prospects of success in the review proceedings, the effect of any stay on them, and whether irremediable harm might be suffered by the applicant if a stay is not granted.”
- [11]In Deputy Commissioner Stewart v Kennedy,[6] which involved an application to stay an order of dismissal of a police officer, after noting that the Tribunal at first instance had granted a stay on the basis of the balance of convenience, the Tribunal on appeal stated:
But of far greater significance is the public aspect of staying a dismissal in police disciplinary proceedings. This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold a successful party out from the benefit of a judgment. In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public "are in a class different from cases involving no more than the suspension of the operation of orders affecting to private litigants only”. The example given by His Honour was of the de-registration of a professional lawyer, but his observation was general in relation to the disciplinary process under laws designed to protect the public.
- [12]While that case involved disciplinary proceedings, it remains that the laws in the present case are designed to protect the public. In particular, as noted above, s 3(2)(a) of the National Law provides that an objective is to ensure the safety, health and wellbeing of children attending education and care services, while a guiding principle at s 3(3)(a) is that the rights and best interests of the child are paramount.
Findings by the respondent
- [13]In making the decision to cancel the Applicant’s provider approval, it was found that there were numerous breaches of the National Law and the Education and Care Services National Regulations (the National Regulations). The relevant provisions and findings may be summarised as follows:
- (a)Section 269 of the National Law and regulation 153 of the National Regulations: failure to provide evidence in the required register of specified training, or a record of the identifying number of the current working with children check conducted, or specified details of the children educated and cared for and the days and hours that education and care is usually provided.
- (b)Regulation 99(1) of the National Regulations: failure to ensure that children did not leave the family day care service other than as allowed under regulation 99(4).
- (c)Regulation 100 of the National Regulations: risk assessments as required by regulation 101 were not carried out prior to an excursion.
- (d)Regulation 102 of the National Regulations: children were taken on excursions without the required written authorisation.
- (e)Regulation 159 of the National Regulations: the required records of attendance of children at the family day care service were not kept.
- (f)Regulation 160 of the National Regulations: enrolment records did not contain all of the prescribed information.
- (g)Regulations 175 and 177 of the National Regulations: failure to keep prescribed documents for inspection by an Authorised Officer.
- (h)Section 167(1) of the National Law: every reasonable precaution was not taken to protect children being educated and cared for by the family day care service from harm and from hazards likely to cause injury. This finding involved one recorded incident of a bathroom cupboard containing chemicals being unlocked and accessible to children and a second incident of a garden shed which contained ‘products’ being unlocked and accessible to children.
- (i)Regulation 103(1) of the National Regulations: failure to ensure that equipment and furniture used by the children at the education and care service premises were clean, safe and in good repair. This finding related to numerous items in the backyard of premises: a swing, boxes, rubbish bins, an old microwave unit, an air-conditioning unit, loose fence panels, bed and table frames, a barbecue and gas bottles, and car tyres. There was also an issue in relation to the absence of power point protectors.
- (j)Regulation 104(1) of the National Regulations: failure to ensure that the outdoor space used by children at the premises was enclosed by a fence or barrier that is of a height and design that children of preschool age or under cannot go through, over or under.
- (k)Regulation 105 of the National Regulations: failure to ensure that each child being educated and cared for had access to sufficient materials and developmentally appropriate equipment suitable for the education and care of that child. Authorised Officers had observed that there were little to no school age appropriate resources available during the monitoring visits.
- (l)Regulation 110 of the National Regulations: failure to ensure that the indoor spaces used by children at the premises were maintained at a temperature that ensures the safety and wellbeing of children.
- (m)Regulation 124(1) and 124(3) of the National Regulations: permitting a family day care educator to provide education and care for more than the prescribed number of children.
- (n)Regulation 163(1) and 163(2): failure to take reasonable steps to ensure that a person aged 18 and over who resides at a family day care residence and a person who is a family day care educator assistant is a fit and proper person to be in the company of children. This issue related to the absence of a blue card.
- (o)Section 168(1) of the National Law: failure to ensure that a program was delivered to all children being educated and cared for by the family day care service in accordance with s 168(1) of the National Law.
- (a)
Submissions and discussion
- [14]The Applicant denies that the continuation of the family day care service by him would constitute an unacceptable risk to the safety, health or wellbeing of any child and “does not agree that all of the alleged non-compliance took place”. Though he does acknowledge that many of the breaches did arise, the Applicant has endeavoured to excuse or downplay the breaches or categorise them as aberrations or as having little or no impact on the safety, health or wellbeing of any child.
- [15]The show cause notice was issued to the Applicant on 9 March 2018 and responses were provided on 11 and 12 April 2018. The cancellation decision was made on 19 June 2018. Annexed to that decision were 55 pages of findings. Those findings included a detailed reply to each issue raised in the responses to the show cause notice and listed a number of instances where, in the view of the Respondent, claimed compliance by the Applicant did not meet regulatory requirements, or unsatisfactory responses had been provided, or no evidence had been produced to show that indicated changes had been implemented, or the responses were not consistent with photographic evidence. It was also noted that the indicated updated policies and procedures had not been provided. Further, there was no indication of the processes or procedures that had been set in place to ensure ongoing regulatory compliance.
- [16]Other than providing a list of professional development training sessions conducted, the Applicant has not questioned or responded to any of the concerns listed in the Respondent’s findings, save for noting that the family day care service has continued to operate and asserting that there is no current risk to children. That bald assertion, in the context of a failure to answer the many outstanding issues raised by the Respondent, in itself reflects a misunderstanding of the importance of regulatory compliance and a lack of appreciation of the legislative objective of ensuring the safety, health and wellbeing of children and of the guiding principle that best practice is expected in the provision of education and care services.
- [17]Certainly, there is no indication as to why it is perceived that there is no risk to children in circumstances where there is neither an itemised challenge to the concerns raised by the Respondent in its findings, nor an explanation as to how regulatory compliance is now satisfied. In the main, changes outlined by the Applicant are expressed in terms of proposals, with little or no indication or evidence that they have been implemented.
- [18]In relation to interests affected, the Applicant states that the income from the Care Family Day Care is a ‘substantial’ part of his family’s income and that if the cancellation takes effect he will lose educators and families and that it is unlikely that he will be able to repair the damage to the goodwill of the business. However, no details are provided as to how substantial the loss will be. Nor is there elaboration on the stated damage to the good will of the business said to be a consequence of the cancellation of the provider approval, or any indication of the contribution of the Applicant’s acknowledged breaches of the National Law and National Regulations to any loss of good will.
- [19]The Respondent opposes the stay application on the basis that a stay would present a risk to, or would not ensure the safety of, the health and wellbeing of children attending the Applicant’s family day care service as contemplated by the National Law and, further, because the Applicant has given no indication as to why a stay would be in the public interest. The Respondent submitted, among other things, that the Applicant does not identify in a meaningful way the impact of a stay on those other than himself, that it has not been demonstrated that the means of addressing the relevant risks put forward by the Applicant are sufficient and/or have been implemented, that the findings and reasons of the cancellation decision are detailed and well considered and were in accordance with principles of procedural fairness, and that the Applicant has not provided any supporting evidence with respect to any alleged prejudice to interests. The Respondent also refers to the primacy of the best interests of children in education and care services under the National Law.
- [20]In the circumstances of this case, the Applicant has failed to demonstrate that it is appropriate to exercise the discretion to stay the decision of the Respondent. Accordingly, the application for a stay is refused.
Footnotes
[1] Section 4 of the Education and Care Services National Law (Queensland) Act 2011 (Qld) (‘the National Law Act’) adopts the National Law as in force from time to time. For a useful summary of the regulatory framework for education and care service providers, see Oz Family Day Care Pty Ltd v Department of Education and Training [2017] QCAT 220 [5]-[12].
[2] The jurisdiction of the Tribunal is provided for by ss 192-193 of the National Law and ss 42-44 of the National Law Act.
[3] Techno Protective Security Services Pty Ltd v Brisbane City Council [2012] QCAT 699 [8].
[4] [2017] QCAT 441 [8].
[5] [2012] QCAT 489.
[6] [2011] QCATA 254 [29].