BKE Pty Ltd v Department of Education and Training [2017] QCAT 343

CITATION: BKE Pty Ltd v Department of Education and Training [2017] QCAT 343 PARTIES: BKE Pty Ltd (Applicant) v Department of Education and Training (Respondent) APPLICATION NUMBER: GAR073-17 MATTER TYPE: General administrative review matters HEARING DATE: 21 July 2017 HEARD AT: Brisbane DECISION OF: Member Olding DELIVERED ON: 6 October 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Department of Education and Training to suspend BKE Pty Ltd’s Service Approval for Busy Kids Cranbrook Kindergarten and Child Care Centre for a period of three (3) months is confirmed. 2. The suspension is to commence at midnight on the 14th day after the date on which this decision is delivered. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES OR CALLINGS – where staff member smacked small child – whether to suspend child care service approval – whether permissible to take into account earlier unrelated, remedied breaches – whether regulator functus officio in respect of earlier breaches taken into account in decisions not to cancel or suspend service approval Education and Care Services National Law (Queensland), s 3, s 51, s 70, s 77, s 78, s 79, s 192 -- 1 of 20 -- 2 Education and Care Services National Regulations, r 86, 87, 155, 169, 170 Education and Care Services National Law (Queensland) Act 2011 (Qld), s 15 Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2011] QSC 306 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Oz Family Day Care Pty Ltd v Department of Education and Training [2017] QCAT 220 Pharmacy Board of Australia v Tavakol [2014] QCAT 112 APPEARANCES: APPLICANT: BKE Pty Ltd RESPONDENT: Department of Education and Training REPRESENTATIVES: APPLICANT: represented by Mr S.J. Given of Counsel, instructed by Frews Lawyers RESPONDENT: represented by Mr S.A. McLeod of Counsel, instructed by Clayton Utz Solicitors REASONS FOR DECISION [1] BKE Pty Ltd (BKE) seeks review of the decision of the Department of Education and Training to suspend its service approval for Busy Kids Cranbrook Kindergarten and Child Care Centre for a period of 3 months. [2] The decision, made under the Education and Care Services National Law (Queensland) (the National Law), has been stayed pending the outcome of this review. [3] The Tribunal’s role is to hear and decide the review by way of a fresh hearing on the merits to produce the correct and preferable decision.1 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. The Tribunal is vested with jurisdiction by the National Law, s 192 and the Education and Care Services National Law (Queensland) Act 2011 (Qld), s 15. -- 2 of 20 -- 3 Statutory framework [4] Although concerned with family day care, rather than, as in this case, centre-based education and care, Oz Family Day Care Pty Ltd v Department of Education and Training,2 sets out the following useful summary of the regulatory framework for education and care service providers:3 [6] The regulatory system operates by adoption of the National Law in each jurisdiction. The National Regulation is also adopted as Queensland law. These two bodies of law, including a national quality standard and the prescribed rating system are the national education and care services quality framework (the National Framework). [7] A regulatory authority administers the laws in each jurisdiction, which, in Queensland, is the Director-General, Department of Education and Training as chief executive of the department administering the National Law. [8] The regulatory authority acts through authorised officers with powers, among other things, to monitor compliance with the regulatory system and to rate and assess services against the national quality standard that governs a range of matters, including: educational programs and practice; children’s health and safety; the physical environment; staffing arrangements; and leadership and management of services. [9] By s 4, entities with functions under the National Law (including the regulatory authority, and by extension this Tribunal in an external review) must having regard to the objectives and guiding principles of the national education and care services quality framework set out in s 3. [10] One objective in s 3(2) is: “(a) to ensure the safety, health and wellbeing of children attending education and care services”. [11] The guiding principles in s 3(3) include: “(a) that the rights and best interests of the child are paramount”; and “(c) that the principles of equity, inclusion and diversity underlie this Law”. [5] Section 70 of the National Law relevantly provides: 70. Grounds for suspension of service approval 2 [2017] QCAT 220. 3 Footnotes omitted. -- 3 of 20 -- 4 A Regulatory authority may suspend a service approval if— (a) the Regulatory authority reasonably believes that it would not be in the best interests of children being educated and cared for by the service for the service to continue; or (b) a condition of the service approval has not been complied with; or (c) the service is not being managed in accordance with this Law; or . . . (e) the approved provider has contravened this Law as applying in any participating jurisdiction; or (f) the approved provider has failed to comply with a direction, compliance notice or emergency order under this Law as applying in any participating jurisdiction in relation to the service. . . . [6] If the Department is considering suspension under s 70, it must give the service provider a show cause notice under s 71. [7] Section 77 of the National Law relevantly provides: 77. Grounds for cancellation of service approval A Regulatory authority may cancel a service approval if— (a) the Regulatory authority reasonably believes that the continued operation of the education and care services would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children children being educated and cared for by the service for the service; or . . . (d) a condition of the service approval has not been complied with. [8] Under section 51(1), a service approval is “granted subject to the condition that the education and care service is operated in a way that- (a) ensures the safety, health and wellbeing of children being educated and cared for by the service; and (b) meets the educational and developmental needs of the children being educated and cared for by the service.” [9] Although the challenged decision is a suspension, rather than a cancellation, s 77 is relevant in this case. This is because the suspension decision was made in the context of the Department considering BKE’s response to a show cause notice under s 78 in relation to the proposed cancellation of its service approval. After considering such a response, one -- 4 of 20 -- 5 of the decisions the Department may make under s 79 is to “suspend the service approval for a period not more than the prescribed period”. [10] Because the threshold conditions for the exercise of the cancellation and suspension powers differ – not surprisingly, the circumstances in which the cancellation power is enlivened under s 77 are more stringent than those for the suspension power under s 70 – a question arises regarding which conditions apply where suspension is considered in response to a Show Cause Notice proposing cancellation. [11] This issue was not addressed in detail at the hearing or in written submissions. However, it seems logical that the power to suspend would be enlivened in the circumstances set out in s 70 for suspensions, even though the prospect of suspension arises in the context of a notice to show cause why cancellation should not occur. [12] It is common ground that the power to suspend is discretionary and, there being no express criteria for its exercise, the subject matter, scope and purpose of the power must be considered to determine what matters must be taken into account in deciding whether to exercise the power.4 [13] In that regard, it is also accepted that the safety, health and wellbeing of children attending the service are key considerations and the rights and best interests of children are paramount.5 Background [14] An incident involving a staff member smacking a child is one factor the Department took into account in deciding to suspend BKE’s service approval. BKE accepts that the incident occurred but submitted that it is a one-off occurrence at the low end of the spectrum of culpability and, in the circumstances, does not warrant suspend of the service approval. [15] However, in reaching the decision to suspend, the Department also took into account a number of other alleged breaches of the National Law. In most of these cases, BKE did not contest that the breaches had occurred. Rather, BKE submitted that, where historical breaches notified by the Department had been remedied, or taken into account in the course of the Department previously reaching a decision not to cancel or suspend BKE’s service approval, they could not later be taken into account when again considering cancellation or suspension. Alternatively, BKE submitted that the breaches, if they could be taken into account, did not individually or collectively warrant suspension. [16] There was also a series of events, following the decision to suspend the service approval, involving the Commonwealth authority, which impacted on BKE. The conduct of that authority is not the subject of the decision for 4 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 per Brennan J, 40. 5 See paragraph 4 above. -- 5 of 20 -- 6 the Tribunal. However, there is an alleged connection between those events and a period in which BKE chose to cease operation of the facility. It will be necessary to consider whether that period of closure may be relevant to whether and, if so, what period of, suspension is warranted. [17] In regard to these matters, I understand that the following facts are not in contention and find accordingly: a) BKE has held a provider approval and the service approval for Busy Kids Cranbrook Kindergarten and Child Care Centre since it took over the facility in 2012. b) On 19 October 2015, the Department issued a show cause notice proposing a two-month period of suspension of the service approval on the basis of a large number of alleged compliance breaches. c) On consideration of BKE’s response to the show cause notice, the Department found a number of the alleged breaches were not made out but that a number of breaches were made out. d) The smacking incident occurred at around 4-00 pm on 15 June 2016. e) The child was picked up on the day of the incident by his uncle. The Department accepts that it would not have been appropriate to notify the uncle of the incident. f) Despite various attempts, the mother was unable to be contacted by telephone until the evening of 17 June 2017. g) On 21 June 2016, the Department decided not to proceed with the suspension, which was the subject of the 19 October 2015 show cause notice, primarily “because of improvements in your service that were observed by the authorised officers and your submissions about the steps taken to improve the service”. h) In the period after issuing the suspension show cause notice on 19 October 2015, the Department undertook a number of compliance activities in respect of the service, which are discussed further below: i) 26 February 2016 – a Department officer attended the facility and identified areas requiring attention. ii) 3 June 2016 – the Department issued a Compliance Direction, BKE provided a response on 24 June 2016 and on 24 August 2016 the Department sent a Remedied Compliance Direction, which identified additional non-compliance. iii) 18 October 2016 – the Department issued a Compliance Direction relating to a number of issues. The Department issued “Remedied and Non-Remedied Non-Compliance correspondence” relating to the Compliance Direction on 16 -- 6 of 20 -- 7 November 2016, accepting that one issue, but not others, had been remedied. i) During November and early December 2016, BKE made a number of attempts to engage the Department regarding its proposals to remedy the remaining breaches. The Department did not respond to these attempts. j) On 20 December 2016, the Department issued a show cause notice proposing cancellation of the service approval. k) On 20 March 2017, the Department decided not to cancel the service approval, but rather to suspend it for a period of three months from 3 April 2017. l) In giving notice of the decision to BKE, the Department advised that if it decided to publish information about the suspension it would do so after the expiry of the time for BKE to file an application for review with the Tribunal. m) After initially refusing a request for a one-week extension of the commencement of the suspension, the Department consented to Tribunal stay orders – an interim stay order made on 31 March 2017 and an order made on 7 April 2017 staying the decision pending the outcome of this review. n) Notwithstanding that the suspension had not commenced, and at least a pending stay application, on or about 31 March 2017, the Commonwealth authority posted letters to families advising that the service had been suspended and they would therefore no longer have access to the child care rebate. o) While this error was later corrected, in the meantime families withdrew their children from the service. p) BKE decided to close the centre with effect from 14 April 2017, later reopening on 26 June 2017. q) Departmental staff visited the centre on 4 July 2017 at the invitation of BKE for a “meet and greet” and took the opportunity to undertake monitoring of the service, which resulted in further alleged non- compliance being identified. The legal issue – remedied breaches [18] Mr Given, who appeared for BKE, submitted that breaches that had been remedied by BKE could not be taken into account in a subsequent decision to cancel or suspend a service approval. [19] If Mr Given’s submission is correct, a decision-maker would be precluded from taking into account breaches pointing to a servicer provider’s systemic or repeated failures to comply with the National Law, including in respect of -- 7 of 20 -- 8 serious safety issues going directly to the child safety objects of the Law, where those breaches, once identified, had been remedied. The notion behind the argument is that, once a breach has been remedied, the former breaches are no longer relevant to the objects of the Law, which condition the exercise of the discretion. [20] I do not accept this argument. The propensity of a service provider to not fulfil its obligations to maintain a safe environment for children would, in my view, be a relevant factor for the exercise of the discretion. It is also relevant in determining whether the threshold conditions for the exercise of the power are satisfied. That propensity may be revealed by a continuing failure to proactively comply, notwithstanding that a provider may have remedied breaches in a reactive way as they were brought to attention. [21] I see nothing in the subject matter, scope and purpose of the suspension power that would preclude such matters being taken into account. Indeed, the compliance history of the service provider is a relevant factor that must be taken into account, since it is directly relevant to the express objects of the National Law and the implicit object of the suspension power, relating to the safety and wellbeing of children. [22] The Oz Family Day Care decision cited earlier was said to be authority for Mr Given’s proposition. Oz Family Day Care concerned a cancellation decision that had been preceded by a show cause notice raising issues about deficiencies at the residences at which services had been provided by three of the relevant service’s educators. At the time of the hearing, services were no longer provided at those residences. [23] Mr Given pointed to paragraph 24 of the Tribunal’s reasons: [24] While those particulars informed the show cause notice, it was uncontested that the three educators in question no longer provide services to Oz FDC. Accordingly, the details of these incidents are not directly relevant to the assessment here of whether the continued operation of the service constitutes an unacceptable risk to the safety, health and wellbeing of children (the threshold in s 77(a)). However, Oz FDC’s responses to those incidents and the changes made to its practices and systems are relevant to that question . . . [24] At paragraph 45 of its reasons, the Tribunal reiterated that the findings regarding those residences were no longer relevant. However, in the next paragraph the Tribunal went on to note: [46] However, the regulatory authority’s evidence, unchallenged as it is by Oz FDC, is relevant to this Tribunal informing itself about historical matters and Oz FDC’s current and continuing capacity to respond effectively to such matters. It is also relevant to systemic issues. There the evidence is relevant to whether the continued operations constitute, first, an unacceptable risk for s 77(d), and second, for issues about compliance with conditions of service approval for s 77(d). -- 8 of 20 -- 9 [25] Similarly, I consider that past breaches, though remedied or, as in Oz Family Day Care, for other reasons no longer directly relevant to the wellbeing of children, must be taken into account in considering whethr there are systemic issues relevant to the enlivening and exercise of the suspension power. Indeed, the Tribunal in Oz Family Day Care noted as much, observing that: “The evidence is similarly relevant to the suspension criteria in s 70”.6 [26] Additionally, in respect of the breaches that were the subject of the 21 June 2015 decision – the decision not to suspend the service approval following the 19 October 2015 show cause notice - Mr Given submitted that the Department was functus officio. [27] In support of that proposition, Mr Given cited the following paragraphs from the Tribunal’s decision in Pharmacy Board of Australia v Tavakol:7 [46] As can be seen, the Disciplinary Proceedings Act not only made express provision for the suspension of decisions, including suspension of registration, but also provided a detailed mechanism for further dealing with the matter in the event that there was further conduct by the registrant during the period of suspension which gave rise to grounds for disciplinary action. There is no such mechanism under the National Law. Whilst the orders proposed by the Board propose an “operational period ... during which the registrant must not be the subject of any disciplinary action by the Board or Tribunal”, it does not identify what is to occur in the event that the registrant is subject to the further action during the period. [47] In the absence of any statutory provision conferring authority upon it to do so, it is difficult to see how the Tribunal could further deal with the matter. It would appear that it would be functus oficio in relation to the earlier matter. [28] This passage was in the context of a submission calling for a sanction in the form of the suspension of a pharmacist’s registration, with the suspension itself to be suspended subject to no further disciplinary action arising in the period of the sanction. The difficulty was that the statute did not provide for sanctions to be suspended or for conditions of the kind contemplated. The Tribunal observed that the authority would appear to be functus officio in respect the original breach. [29] This case is not of that kind. Taking into account earlier breaches, as part of the overall factual matrix in deciding whether to suspend a service approval, would not involve any further action in respect of the earlier decision relating to those breaches. The Department may well be functus 6 [2017] QCAT 220 at footnote 40. 7 [2014] QCAT 112. -- 9 of 20 -- 10 officio in relation to the earlier decision, but it is the later decision, involving an expanded factual matrix, that is the subject of the Tribunal’s review.8 [30] The second case cited in support of the proposition that the Department was functus officio in relation to earlier breaches – Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd9 - is similarly unhelpful. It concerned whether an arbitrator had power to vary an earlier award in respect of which he was found to be functus officio, not whether circumstances considered in an earlier exercise of power are relevant to a later, different decision. [31] None of this means that BKE’s efforts to remedy the breaches are irrelevant. They are clearly factors to be taken into account. But the remedial action does not preclude the history from being considered. The breaches [32] It is necessary to examine the various alleged breaches that the Department submits collectively warrant suspension of the service approval and BKE’s responses, and then make an overall assessment of whether suspension of BKE’s service approval is the correct and preferable decision. [33] The Department refers to: a) the smacking incident, and related to that incident: b) notification of the child’s parent; c) the incident report; and also to requirements to: d) ensure staff are aware of the requirement to follow procedures; e) take reasonable steps to maintain the dignity and rights of each child; and to: f) alleged persistent/systemic issues having regard to: the Compliance Direction issued on 3 June 2016 and related Remedied Compliance Direction issued on 24 August 2016, which included additional alleged breaches; the Compliance Direction issued on 18 October 2016 and the related notice issued on 16 November 2016, which identified compliance and non-compliance with the 18 October 2016 Compliance Direction; and findings following the show cause notice dated 19 October 2015. Additionally, since the Tribunal must consider 8 The position may be different if the Department, having considered a breach or breaches, decided not to suspend a provider’s approval, but later purported to decide to suspend the approval even though no further relevant facts had arisen. I express no view on that scenario, which is not this case where there were subsequent breaches. 9 [2011] QSC 306. -- 10 of 20 -- 11 the position at the time of the hearing, the monitoring visit on 4 July 2017 is also relevant. [34] As will appear, for a number of these alleged breaches, the appropriateness and extent of BKE’s procedures and training are relevant. I will address this overarching issue separately, after outlining each of the alleged breaches. a) The smacking incident [35] BKE accepts the Department’s summary of this incident, and I find accordingly: . . . While playing outside, [the child] became agitated by another child in care and was described by [BKE staff member Ms Stanbrook] to have ‘lashed out hitting the other child’. Stanbrook requested that the other child move away from the vicinity of [the child]. Stanbrook then attempted to re- direct the child’s attention to another activity. At this time, [the child] ran from the outside play area to inside the service. . . . Both Standbrook and [BKE staff member Ms Goode] followed [the child] inside where he was witnessed to be running around near the ‘home corner’, pulling items off shelves and throwing things around the room in a very agitated state. . . . Goode grabbed [the child] by the arm and tried to pull him down to the floor to have him sit and calm down. [The child] was still in a very agitated state and was lashing out with his arms and legs, Goode then used her hand to smack [the child] twice in quick succession making contact with the backside of his nappy on both occasions. [36] BKE accepts that this incident is a breach of s 166(1) of the National Law, which stipulates that a provider must ensure that no child is subjected to corporal punishment. [37] However, BKE submitted that the incident is “at the very bottom of the scale of culpability” and referenced cases in other contexts where a shorter suspension or no suspension was imposed on doctors, and in one case a nurse, who had slapped young patients with greater force. The Department also accepts that the incident “lies at the lower end of seriousness”. [38] The staff member who struck the child, Ms Goode, was formally disciplined by BKE by letter dated 16 June 2016 and her employment was terminated with effect from 15 July 2016. [39] The child no longer attends the service. b) Notifying the child’s parent [40] National Regulation 86 provides as follows: 86 Notification to parents of incident, injury, trauma and illness -- 11 of 20 -- 12 The approved provider of an education and care service must ensure that a parent of a child being educated and cared for by the service is notified as soon as practicable, but not later than 24 hours after the occurrence, if the child is involved in any incident, injury, trauma or illness while the child is being educated and cared for by the education and care service. [41] BKE accepts that r 86 required notification of the smacking incident and that the child’s parent was not notified within 24 hours after the incident, but says that the child’s mother was notified as soon as practicable after the incident. The Department accepts that reasonable and repeated attempts were made to contact the parent but she was not able to be contacted until after the 24 hour period had expired. [42] The wording of r 86 is unfortunate. Taken literally, it requires that the notification must occur not later than 24 hours after the occurrence of the incident even if it is not practicable to do so. If that is correct, little weight should be given to a breach that occurs in those circumstances. [43] The hearing of the review proceeded on the basis that BKE generally accepted that the breaches had occurred. Accordingly, cross-examination was not directed to whether breach of the notification obligation had occurred. It was not until closing submissions that a factual controversy regarding the content of the notification emerged and only then upon counsel being pressed by the Tribunal. [44] Ms King, BKE’s director reported that, when contact was made by telephone with the mother of the child, the smacking incident was disclosed. The mother said in a recorded formal interview conducted by the Department she was told that an incident involving yelling at or speaking abruptly with the child had occurred, but did not mention being told about her child being smacked. The Department rejected Ms King’s account and accepted the mother’s version of events. [45] It seemed to me that there is a material difference between accurately reporting the incident, albeit later than 24 hours after it occurred, and not accurately reporting the incident. However, Mr Given did not press the matter, even after being prompted. Having expressed this view at the hearing, and noting the absence of an opportunity to test each account in cross-examination, counsel agreed that I should resolve the controversy based on the material before the Tribunal. [46] BKE disclosed the incident to the Department. It may seem improbable that someone with Ms King’s long history in the industry would disclose the true nature the incident to the Department, with the inevitable consequence of an investigation, but not disclose it to the mother of the child. However, after listening to the audio recording of the telephone interview with the mother, I am satisfied that the mother was not told of the smacking. It was clear that the mother was angry about not being told the name of the staff member involved in the incident, a topic to which she returned several times. She also pressed the departmental officer for details of the incident. Further, the mother’s obvious lack of knowledge of smacking having -- 12 of 20 -- 13 occurred is consistent with the statement in an audio recording of a formal interview with Ms Stanbrook (the former staff member who witnessed the incident), who said that the mother subsequently pressed her for information about what had happened, which she was not able to provide. [47] Given the potentially grave consequences, I should not make an adverse finding unless comfortably satisfied on the basis of material that is rationally probative of the mother’s account.10 I am so satisfied and accordingly find that the fact that an incident occurred was notified to the mother of the child, as soon as reasonably practicable, albeit more than 24 hours after it occurred, but the specific detail of the smacking was not disclosed. c) The incident report [48] Regulation 87 requires an approved provider to ensure that an incident, injury, trauma and illness record is kept. The report must include details of any incident or trauma that occurs. [49] Relevantly, r 87(e) requires the name of any person notified or attempted to be notified of the incident and the time and date of the notification or attempted notification; and r 87(f) requires the name and signature of the person making an entry in the record and the time and date of the entry to be included. The details are required to be entered as soon as practicable, but not later than 24 hours after the incident. [50] An entry relating to the smacking incident was made by the nominated supervisor, Ms Thackeray, at 10-50 am on 16 June 2016, the morning after the incident. It was signed by Ms Stanbrook, but not, as required, by Ms Thackeray as the person making the entry. d) Ensuring staff are aware of the requirement to follow procedures [51] Regulation 168 provides that an approved provider must ensure that the service has in place policies and procedures in relation to various matters, including incident and trauma procedures and interactions with children. [52] Regulation 170(1) provides that the approved provider of a centre-based service “must take reasonable steps to ensure that the nominated supervisor and staff members of, and volunteers at, the service follow the policies and procedures required under regulation 168.” Whether BKE took reasonable steps to ensure that procedures were followed is significant in this matter and is discussed separately below. e) Reasonable steps to maintain the dignity and rights of each child [53] Regulation 155 provides that: 10 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 13 of 20 -- 14 An approved provider must take reasonable steps to ensure that the education and care service provides education and care to children in a way that- (a) encourages children to express themselves and their opinions; and (b) allows children to undertake experiences that develop self-reliance and self-esteem; and (c) maintains at all times the dignity and rights of each child; and (d) gives each child positive guidance and encouragement toward acceptable behaviour; and (e) has regard to the family and cultural values, age, physical and intellectual development and abilities of each child being educated and cared for by the service. [54] There is no question that smacking a child is inconsistent with maintaining the dignity and rights of the child and giving positive guidance and encouragement. BKE did not submit otherwise. [55] However, the focus of r 155 is not upon whether these things have occurred but rather upon whether the approved provider has taken “reasonable steps to ensure” that education and care is provided in the way set out in the regulation. This mainly comes down to whether BKE’s procedures and training were such that it could be said that “reasonable steps to ensure” compliance were taken, which is discussed further below. f) Alleged persistent/systemic issues Show Cause Notice dated 19 October 2015 [56] On 19 October 2015, the Department issued a show cause notice giving notice of its intention to suspend BKE’s service approval as a consequence of alleged compliance issues dating back to January 2012. [57] Breaches that the Department found to have been made out included the service operating with volunteers who did not hold blue cards and, in a period from May to August 2015, operating without the required access to an early childhood teacher; safety issues including unprotected power points; and breaches of attendance monitoring and record-keeping requirements. [58] By letter dated 26 February 2016, the Department advised BKE that, after considering BKE’s submissions in response to the show cause notice, it had decided not to the suspend BKE’s service approval. The letter advised that the primary reason the service approval was not suspended was the improvements observed by Departmental officers and BKE’s submissions in relation to improvements undertaken by BKE. -- 14 of 20 -- 15 [59] The letter also included advice that “if there are children with behavioural issues attending your service you will need to provide training and assistance to your staff to deal with those issues”. The 26 February 2016 Departmental visit [60] This visit identified a number of breaches, including that a nappy change area and air cooling vent were in disrepair, with other vents being unclean, and required these matters to be rectified by 29 March 2016. Compliance Direction dated 3 June 2016 [61] The Department undertook a compliance inspection on 20 April 2016 and issued a Compliance Direction on 3 June 2016 identifying a number of alleged aspects of non-compliance with requirements of the National Law/Regulation. [62] The items of non-compliance included various issues involving lack of cleanliness (including in relation to a cubby house and doll house); issues with first aid supplies (including the kit being incomplete and containing an item almost a year out of date, and the absence of any record of regular checking); emergency evacuation plans not be displayed as required; a fridge temperature checklist, implemented in response to a 12 February 2016 compliance notice, that had not been completed for several weeks, and that the fridge was not at the temperature required by the implemented policy; inaccurate or incomplete rosters; and incomplete child attendance records and, related to this, absence of procedures and induction on attendance recording requirements. [63] On 24 August 2016, the Department accepted that BKE had remedied the various non-compliance identified in the Compliance Direction, but also identified a number of additional alleged aspects of non-compliance. [64] The additional non-compliance included matters related to prescribed information not being contained in excursion permission forms; and a maintenance person having worked at the facility while children were present without supervision and without a Blue Card. Compliance Direction dated 18 October 2016 [65] On 18 October 2016, the Department issued a Compliance Direction identifying a number of further alleged breaches. [66] The compliance breaches included an enrolment record without full emergency contact details, special needs and health details for the child who was later smacked and who clearly had special needs; and, contrary to the service’s policy, failure to prepare a risk minimisation/medical management and communication plan for two children with medical issues. [67] BKE detailed its responses to these breaches, but the Department was not satisfied that they fully complied with the requirements. -- 15 of 20 -- 16 Monitoring Visit on 4 July 2017 [68] Departmental staff visited the service at the invitation of BKE after it re- commenced operations on 26 June 2017. [69] The Department identified a number of alleged breaches. These included a first aid kit required to be moved to a point where it would not be accessible to children; built up grime on tables and floors; fridge thermometer not functioning; a fence paling missing and others rotting along the bottom; dirty mattresses with mould visible; play equipment without adequate soft fall positioned around it; a climbing frame placed close to concrete and pavers; sand around the fort worn so that black lining was coming through; the service not currently having access to an early childhood teacher; and a number of incomplete enrolment forms. [70] Given the unchallenged evidence, I accept these findings. BKE’s procedures and training [71] An issue for consideration is whether Ms Goode was properly trained to be assisting the lead educator at the relevant time in the care of a child who it is acknowledged was “extremely difficult” and suffered from “severe difficulties” including, but not limited to, aggression and problematic behaviour and social interaction problems. Also, whether other staff were appropriately trained and monitored in relation to BKE’s procedures. [72] When she commenced employment with BKE on 5 April 2016, Ms Goode’s highest qualification comprised schooling to Year 10. Although she had been enrolled in courses, it transpired that Ms Goode did not continue with her study. However, the Department accepts that BKE reasonably believed at the relevant time that Ms Goode was undertaking an appropriate training program and as such complied with the basic requirements under the National Framework. The Department also accepts that Ms Goode completed an induction checklist indicating that she had been introduced to the service’s policies and procedures folder. [73] The Department says, though, that Ms Goode did not have sufficient qualifications and had not been provided with adequate induction or training to be providing care for a child with severe difficulties. [74] There is some conflict in the materials regarding the training BKE says was carried out and recordings of interviews with staff. There is evidence, which the Department appears to accept, that some introduction to policies and procedures was undertaken and that reprimands and reinforcement of procedures occurred after various breaches. [75] The content of training for Ms Goode or other staff was not recorded in detail, nor that any assessment of the effectiveness of the training occurred. It is no doubt tedious and time-consuming for operators to maintain records of their compliance with obligations under the National Law and Regulations. However, it should have been clear to BKE from previous -- 16 of 20 -- 17 interactions with the Department and in any event it is necessary for approved providers to be able to demonstrate compliance with legal obligations that the legislature has seen fit to impose. [76] Particularly having regard to the short time in which she had been employed, I am satisfied that Ms Goode had insufficient training and skill to be providing care to a child with severe difficulties. Although evidence of a terminated employee is obviously to be approached with caution, the absence of appropriate training is consistent with Ms Goode’s own statement in the audio recording of a formal interview conducted by departmental officers. [77] It must also be concluded that Ms Goode did not hold and was not pursuing appropriate qualifications but, as noted, the Department accepts that BKE reasonably believed she was undertaking an appropriate diploma level course. [78] Although staff were made aware of procedures, the continuing non- compliance issues discussed further below indicated that there was insufficient monitoring to ensure that the procedures were followed. Is the power to suspend the service approval enlivened? [79] A decision to suspend a service approval involves: (1) determining whether the power is enlivened; and, if so, (2) deciding whether as a matter of discretion it should be exercised. [80] It is clear that if, as I have decided, it is appropriate to consider earlier breaches, the suspension power is enlivened by the acknowledged breaches of the National Law: s 70(e). [81] Taking into account matters outlined in the discussion below in relation to the exercise of the discretion, I would in any case also conclude that it would not be in the interests of children being educated and cared for by the service for the service to continue (s 70(a)). I would also conclude that the s 51(1) implied condition of the approval – the service being operated in a way that “ensures the safety, health and wellbeing of children being educated and cared for by the service” - has not been complied with (s 70(b)).11 11 In case I am wrong in looking to the s 70 criteria, I have considered whether the s 77 criteria for enlivening the power would be satisfied. For the same reasons, I am satisfied that the continued operation of the service would constitute an unacceptable risk to the safety, health and wellbeing of children being educated and cared for by the service (s 77(a)) and that a condition of the service approval has not been complied with (s 77(d)). -- 17 of 20 -- 18 Should the service approval be suspended? [82] The task of the Tribunal is to weigh up whether, having regard to all relevant circumstances, suspending the approval (or another available response) is the correct or preferable decision. [83] The health, safety and wellbeing of children are clearly key considerations and the best interests of a child are paramount. Accepting this does not mean that the potential for any risk to children must result in suspension or cancellation. No procedures will be able to entirely eliminate potential risk. The strict requirements of the National Law and Regulations must be applied reasonably in a real world context. [84] That context includes that operators should be entitled to employ and rely upon appropriately qualified and experienced staff. Of course, that does not mean that the service provider may, so to speak, wipe their hands of responsibility for the proper operation of their service; importantly, effective monitoring and oversight must be undertaken and training and instruction provided, particularly for new or inexperienced staff. [85] The context also includes that the education and care of young children is a stressful role undertaken in a dynamic environment. With the best of intentions and execution, occasional non-compliance will inevitably occur. [86] I accept that smacking incident does not in itself warrant suspension of the service approval. Serious as it was, the incident is an isolated one that, as the Department accepts, is at the low end of seriousness. [87] Similar considerations apply in relation to the failure to notify the parent of the incident within the 24-hour period, especially having regard to the accepted difficulties in contacting the parent; the issue regarding the incident report and the breach of r 155. [88] The failure to disclose the true nature of the incident is more concerning, although mitigated slightly by the impression I formed from the audio recording that the mother was frequently agitated and that communications were no doubt challenging. [89] These various breaches should, in my view, be viewed as part and parcel of a continuum of events arising out of a single incident. [90] I also take into account, by way of context for the smacking incident and associated issues, that uncontradicted evidence establishes that it is difficult to attract and retain qualified staff in North Queensland and that the child’s behaviour was frequently very difficult to manage. Nevertheless, it is a fact that an inexperienced and unqualified staff member was rostered to care for a troubled and challenging child without significant, relevant training. While the circumstances surrounding this incident alone may not in themselves warrant suspension, they are not irrelevant and form part of the broader factual context against which the decision must be made. -- 18 of 20 -- 19 [91] The issues with training and monitoring of staff are a concern. So, too, is the history of breaches, some of which are serious in nature; for example, lack of appropriately qualified teaching staff, Blue Card issues and other safety issues.12 [92] The persistent occurrence of issues of this kind raises a concern whether a period of suspension is necessary to ensure that BKE takes seriously its legal obligations, especially considering the previous show cause notices and other interventions by the Department, and has an opportunity to put the service clearly on a proper footing if it wishes to re-open the service. [93] While an inevitable consequence of a suspension of a service approval is that the care and education of children by the service will be disrupted, I do not consider that to be an irrelevant consideration. Nor is the inevitable financial impact on the provider and its employees. These factors must be taken into account as part of the factual matrix and underline that suspension is a serious matter not to be imposed lightly. [94] In that regard, I have considered the period of closure following the actions of the Commonwealth authorities. Had BKE taken the opportunity provided by that period to ensure that the service would operate compliantly, I may have been inclined to set aside the suspension of its service approval. That might have been appropriate on the basis that, if further compliance issues were to emerge in the future, the Department would have available the full statutory regime for consideration, including suspension or cancellation of the service approval, for consideration against BKE’s compliance history to that time. [95] One would have thought that, before re-opening the service, the operator would have ensured that there would be no recurring issues of the kind previously raised by the Department. Yet there were. [96] These issues, when combined with the history of issues at this service, cannot be dismissed as trivial. It is true that there can be an element of subjectivity in relation to cleanliness and safety concerns. But the concerns raised in the most recent monitoring visit should have been obvious to an experienced operator. The combination of past and more recent issues reinforces the impression that this operator responds reactively to issues raised by the regulator, but is not committed to proactively ensuring compliance with its legal obligations. [97] Having regard to the further issues identified at the monitoring visit after the service recommenced operations and the recurring nature of the non- 12 I give less weight to the 3 outstanding issues from the 18 October 2016 Compliance Direction in relation to which BKE took steps to comply and made various unsuccessful attempts to clarify the Department’s view of what was required. While it is the case that operators must comply with their legal obligations and not merely respond to Departmental advice of non-compliance, it is surprising that the Department proceeded to issue a Show Cause Notice without responding to the attempts by BKE to engage with the Department. -- 19 of 20 -- 20 compliance, and notwithstanding Ms King’s long history in the industry, I cannot be satisfied that BKE is committed to ensuring compliance with the requirements of the National Law and Regulations. Bearing in mind the two show cause notices and various compliance directions and advice already issued to BKE, one might reasonably ask what else, short of suspension, the Department as the regulatory authority, and the Tribunal in its place on review, could reasonably do to ensure BKE’s compliance with its legal obligations? [98] For these reasons, I have decided to confirm the Department’s decision to suspend the service approval. A period of 3 months suspension is appropriate. This will allow BKE to review its affairs and, if it wishes to re- commence operation of the service, ensure that the facility and its procedures are in order. [99] Counsel agreed that, if I were to come to this view, it would be appropriate for the suspension to commence fourteen days after delivery of the Tribunal’s decision. -- 20 of 20 --