2010
2010
2023-03-02
act
government
publicgeneral
act.reprint
act-2018-070
allinforce
2010-11-12
2010-11-12
0
act-2010-104
e403589b-6dd4-434f-913d-619b606fa019
71e156c9-90f5-43fa-82f4-aef73fd9b0c3
2010
none
Does not include amendments
by—
Government Sector Finance
Legislation (Repeal and Amendment) Act 2018 No 70, Sch
4.17[1] (not commenced — to commence on 1.7.2023)
Editorial note
The Parliamentary Counsel’s Office is
progressively updating certain formatting styles in versions of NSW in force
legislation published from 29 July 2019. For example, colons are being
replaced by em-rules (em-dashes). Text of the legislation is not
affected.
This version has been
updated.
An Act to apply as a law of this State a national
law relating to the regulation of education and care services for
children.
Part 1Preliminary
1Name of Act
This Act is the Children
(Education and Care Services National Law Application) Act
2010.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation.
(2)
Different days may be appointed under subsection
(1) for the commencement of different provisions of the Education and Care
Services National Law set out in the Schedule to the Education and Care Services
National Law Act 2010 of Victoria.
3Definitions
(1)
In this Act—
Children
(Education and Care Services) National Law (NSW) means the
provisions applying in this jurisdiction because of section
4.
(2)
Terms used in this Act and also in the Education
and Care Services National Law set out in the Schedule to the Education and
Care Services National Law Act 2010 of Victoria have the
same meanings in this Act as they have in that Law.
Part 2Adoption of National Law
4Adoption of Education and Care Services National
Law
The Education and Care Services National Law, as
in force from time to time, set out in the Schedule to the Education and
Care Services National Law Act 2010 of
Victoria—
(a)
applies as a law of this jurisdiction,
and
(b)
as so applying may be referred to as the Children (Education and Care Services) National Law
(NSW), and
(c)
so applies as if it were part of this
Act.
5Exclusion of legislation of this
jurisdiction
(1)
The following Acts of this jurisdiction do not
apply to the Children (Education and Care Services)
National Law (NSW) or to instruments made under that
Law—
(a)
the Government Information
(Public Access) Act 2009,
(b)
the Health Records and
Information Privacy Act 2002,
(c)
the Interpretation Act
1987,
(d)
the Privacy and Personal
Information Protection Act 1998,
(e)
the Subordinate Legislation Act
1989.
(2)
The following Acts of this jurisdiction do not
apply to the Children (Education and Care Services)
National Law (NSW) or to instruments made under that Law,
except to the extent that the Law and those instruments apply to the
Regulatory Authority and the employees, decisions, actions and records of the
Regulatory Authority—
(a)
the Annual Reports (Statutory
Bodies) Act 1984,
(b)
the Ombudsman Act
1974,
(c)
the Government Sector Audit Act
1983,
(d)
the Government Sector
Employment Act 2013.
(3)
However, Part 4 of the Children’s Guardian Act 2019 does
apply in respect of approved education and care services under the Children (Education and Care Services) National Law
(NSW).
s 5: Am 2011 No 70,
Sch 2.5 [1]; 2017 No 22, Sch 4.4 [1]; 2018 No 70, Sch 4.17[2]; 2019 No 25, Sch
5.9.
6Application of State Records Act
1998
To avoid any doubt, it is declared that the
State Records Act 1998 applies to the
Regulatory Authority for this jurisdiction and its
records.
7Meaning of generic terms in Education and Care Services
National Law for the purposes of this jurisdiction
In the Children (Education and
Care Services) National Law (NSW)—
child protection law
means—
(a)
Chapters 1–10 and 13–17 of the
Children and Young Persons (Care and Protection) Act
1998, and
(b)
the regulations made under that Act in so far as
they relate to those Chapters.
de facto relationship
means a relationship between 2 persons who are de facto partners of each other
within the meaning of section 21C of the Interpretation
Act 1987.
local authority means a
council within the meaning of the Local Government Act
1993.
magistrate means a Magistrate
appointed under the Local Court Act
2007.
public authority means a
public authority of the State, and includes a State owned corporation within
the meaning of the State Owned Corporations Act
1989 and a subsidiary of a public authority or State owned
corporation, but does not include a council, county council or joint
organisation within the meaning of the Local
Government Act 1993.
registered teacher means a
teacher who is accredited under the Institute of Teachers Act
2004.
superior court means the
Supreme Court of New South Wales.
this jurisdiction means New
South Wales.
s 7: Am 2017 No 65,
Sch 2.4.
8Relevant tribunal or court
For the purposes of the definition of relevant tribunal or
court in section 5 of the Children
(Education and Care Services) National Law
(NSW)—
(a)
the District Court is declared to be the relevant
tribunal or court for this jurisdiction for the purposes of section 181 of
that Law, and
(b)
the Civil and Administrative Tribunal is declared
to be the relevant tribunal or court for this jurisdiction for the purposes of
Part 8 of that Law.
s 8: Am 2013 No 95,
Sch 2.26.
9Regulatory Authority
For the purposes of the definition of Regulatory Authority in
section 5 of the Children (Education and Care Services)
National Law (NSW), the Secretary of the Department of
Education is declared to be the Regulatory Authority for this jurisdiction for
the purposes of that Law.
s 9: Subst 2011 No
70, Sch 2.5 [2]. Am 2017 No 22, Sch 4.4 [2].
10Children’s services law
(1)
For the purposes of the definition of children’s services
law in section 5 of the Children
(Education and Care Services) National Law (NSW), each of
the following is declared to be a children’s services law for this
jurisdiction for the purposes of the Children
(Education and Care Services) National Law
(NSW)—
(a)
the Children (Education and
Care Services) Supplementary Provisions Act
2011,
(b)
the regulations made under that
Act.
(2)
For the purposes of the definition of children’s services
regulator in section 5 of the Children
(Education and Care Services) National Law (NSW), the
Secretary of the Department of Education is declared to be a children’s
services regulator for this jurisdiction for the purposes of the Children (Education and Care Services) National Law
(NSW).
s 10: Subst 2011 No
70, Sch 2.5 [3]. Am 2017 No 22, Sch 4.4 [2].
11Education law
For the purposes of the definition of education law in section 5 of
the Children (Education and Care Services)
National Law (NSW), the following Acts and the regulations
made under those Acts are declared to be an education law for this
jurisdiction for the purposes of the Children
(Education and Care Services) National Law
(NSW)—
(a)
the Education Act
1990,
(b)
the Institute of Teachers Act
2004,
(c)
the Teaching Service Act
1980,
(d)
the Technical and Further
Education Commission Act 1990,
(e)
the Education (School
Administrative and Support Staff) Act
1987.
s 11: Am 2011 No 70,
Sch 2.5 [4].
12Former education and care services law
For the purposes of the definition of former education and care
services law in section 5 of the Children (Education and Care Services) National Law
(NSW), the following provisions of the Children and Young Persons (Care and Protection) Act
1998 are declared to be a former education and care
services law for this jurisdiction for the purposes of the Children (Education and Care Services) National Law
(NSW)—
(a)
Chapters 12 and 12A of the Children and Young Persons (Care and Protection) Act
1998,
(b)
Chapters 1, 2, 15, 16 and 17 and Schedule 3 of
the Children and Young Persons (Care and Protection) Act
1998 in so far as they relate to Chapters 12 and 12A of
that Act,
(c)
the regulations made under the Children and Young Persons (Care and Protection) Act
1998 in so far as they relate to a provision referred to
in paragraph (a) or (b).
s 12: Am 2011 No 70,
Sch 2.5 [5].
13Infringements law
For the purposes of the definition of infringements law in section
5 of the Children (Education and Care Services)
National Law (NSW), the Fines Act
1996 and the regulations made under that Act are declared
to be an infringements law for this jurisdiction for the purposes of the
Children (Education and Care Services) National Law
(NSW).
14Public sector law
For the purposes of the definition of public sector law in section
5 of the Children (Education and Care Services)
National Law (NSW), the Government
Sector Employment Act 2013 and the regulations and rules
made under that Act are declared to be a public sector law for this
jurisdiction for the purposes of the Children
(Education and Care Services) National Law
(NSW).
s 14: Am 2017 No 22,
Sch 4.4 [3].
15Working with children law
For the purposes of the definition of working with children
law in section 5 of the Children
(Education and Care Services) National Law (NSW), the
Child Protection (Working with Children) Act
2012 and the regulations made under that Act are declared
to be a working with children law for the purposes of the Children (Education and Care Services) National Law
(NSW).
s 15: Am 2013 No 31,
Sch 3.3.
16Penalty at end of provision
In the Children (Education and
Care Services) National Law (NSW), a penalty specified at
the end of a provision indicates that a contravention of the provision is
punishable on conviction by a penalty not more than the specified
penalty.
17Transitional
(1)
For the purposes of the definition of declared approved
family day care service in section 305 of the Children (Education and Care Services) National Law
(NSW), a family day care children’s service that was
an approved children’s service under Chapter 12 of the Children and Young Persons (Care and Protection) Act
1998 is declared to be a declared approved family day care
service for this jurisdiction for the purposes of the Children (Education and Care Services) National Law
(NSW).
(2)
For the purposes of the definition of declared approved
provider in section 305 of the Children
(Education and Care Services) National Law (NSW), a person
who was a licensed service provider under Chapter 12 of the Children and Young Persons (Care and Protection) Act
1998 is declared to be a declared approved provider for
this jurisdiction for the purposes of the Children
(Education and Care Services) National Law
(NSW).
(3)
For the purposes of the definition of declared approved
service in section 305 of the Children
(Education and Care Services) National Law (NSW), a
children’s service that held a children’s service approval under
Chapter 12 of the Children and Young Persons (Care and
Protection) Act 1998 is declared to be a declared approved
service for this jurisdiction for the purposes of the Children (Education and Care Services) National Law
(NSW).
(4)
For the purposes of the definition of declared certified
supervisor in section 305 of the Children (Education and Care Services) National Law
(NSW), a person who was an authorised supervisor under
Chapter 12 of the Children and Young Persons (Care and
Protection) Act 1998 is declared to be a declared
certified supervisor for this jurisdiction for the purposes of the Children (Education and Care Services) National Law
(NSW).
(5)
For the purposes of the definition of declared compliance
notice in section 305 of the Children
(Education and Care Services) National Law (NSW), a
compliance notice under Chapter 12 of the Children and
Young Persons (Care and Protection) Act 1998 is declared
to be a declared compliance notice for the purposes of the Children (Education and Care Services) National Law
(NSW).
(6)
For the purposes of the definition of declared enforceable
undertaking in section 305 of the Children (Education and Care Services) National Law
(NSW), a written undertaking in force under section 219X
of the Children and Young Persons (Care and
Protection) Act 1998 is declared to be a declared
enforceable undertaking for this jurisdiction for the purposes of the Children (Education and Care Services) National Law
(NSW).
(7)
For the purposes of the definition of declared nominated
supervisor in section 305 of the Children (Education and Care Services) National Law
(NSW), a person who was an authorised supervisor under
Chapter 12 of the Children and Young Persons (Care and
Protection) Act 1998 is declared to be a declared
nominated supervisor for this jurisdiction for the purposes of the Children (Education and Care Services) National Law
(NSW).
(8)
For the purposes of the definition of declared out of scope
service in section 305 of the Children
(Education and Care Services) National Law (NSW), an out
of school hours care service under the Children and
Young Persons (Care and Protection) Act 1998 is declared
to be a declared out of scope service for this jurisdiction for the purposes
of the Children (Education and Care Services)
National Law (NSW).
(9)
For the purposes of the definition of former approval in
section 305 of the Children (Education and Care Services)
National Law (NSW), a children’s services approval
under Chapter 12 of the Children and Young Persons (Care and
Protection) Act 1998 is declared to be a former approval
for this jurisdiction for the purposes of the Children
(Education and Care Services) National Law
(NSW).
17AModification of transitional
provisions
Section 316 of the Children
(Education and Care Services) National Law (NSW) is taken
to include the following provision, inserted as section 316(3)—
(3)
Subsection (1) also ceases to apply
if—
(a)
the approved provider for the service does not
nominate a declared nominated supervisor as the sole nominated supervisor for
the education and care service within a time specified by the Regulatory
Authority after being requested in writing to do so by the Regulatory
Authority, or
(b)
the approved provider for the service nominates
another declared nominated supervisor as the sole nominated supervisor for the
education and care service within a time specified by the Regulatory Authority
after being requested in writing to do so by the Regulatory
Authority.
s 17A: Ins 2011 No
70, Sch 2.5 [6].
Part 3Miscellaneous
18Application of Industrial Relations
(Commonwealth Powers) Act 2009
An employee of the National Authority is not a
State public sector employee for the purposes of the Industrial Relations (Commonwealth Powers) Act
2009.
19Regulations
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
20Savings and transitional regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts—
this Act
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as—
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
21Review of Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Historical notes
Table of amending instruments
Children (Education and
Care Services National Law Application) Act 2010 No 104.
Assented to 29.11.2010. Date of commencement of Part 1, sec 4 (except to the
extent that it applies Parts 2–9, sec 229, Part 12, Divs 1–5 of
Part 13, secs 271, 272, 279, 280, 282, 285–288, 289 (3) and (4) and
290–292, Divs 5–7 of Part 14, Divs 1 and 2 of Part 15, secs 322
and 323 and Sch 2 of the Education and Care Services National Law as a law of
this jurisdiction), secs 5 (except sec 5 (1) (a), (b) and (d) and (2) (b)), 6,
7, 9 and 16 and Part 3, 1.1.2011, sec 2 and 2010 (695) LW 16.12.2010; date of
commencement of the remainder (except sec 4 to the extent that it applies secs
70 (d), 152, 153 (2)–(4), 154–160, 172 (d), 266–268, 270 (1)
(d) and 270 (2)–(4) of the Education and Care Services National Law as a
law of this jurisdiction), 1.1.2012, sec 2 and 2011 (688) LW 23.12.2011; date
of commencement of sec 4 to the extent that it applies secs 70 (d), 152, 153
(2)–(4), 154–160, 172 (d), 266–268, 270 (1) (d) and 270
(2)–(4) of the Education and Care Services National Law as a law of this
jurisdiction, 1.5.2013, sec 2 and 2013 (149) LW 19.4.2013. This Act has been
amended as follows—
2011
No 70
Children (Education and
Care Services) Supplementary Provisions Act 2011. Assented
to 28.11.2011.
Date of commencement, 1.1.2012, sec 2 and 2011 (689) LW
23.12.2011.
2013
No 31
Child Protection
Legislation Amendment (Children’s Guardian) Act
2013. Assented to 3.6.2013.
Date of commencement, 15.6.2013, sec
2.
No 95
Civil and Administrative
Legislation (Repeal and Amendment) Act 2013. Assented to
20.11.2013.
Date of commencement, 1.1.2014, sec
2.
2017
No 22
Statute Law (Miscellaneous
Provisions) Act 2017. Assented to 1.6.2017.
Date of commencement of Sch 4, 7 days after assent, sec
2 (1).
No 65
Local Government Amendment
(Regional Joint Organisations) Act 2017. Assented to
30.11.2017.
Date of commencement, 15.12.2017, sec 2 and 2017 (730)
LW 15.12.2017.
2018
No 70
Government Sector Finance
Legislation (Repeal and Amendment) Act 2018. Assented to
22.11.2018.
Date of commencement of Sch 4.17[1]: not in force; date
of commencement of Sch 4.17[2], 1.7.2021, sec 2(1) and 2021 (305) LW
25.6.2021.
2019
No 25
Children’s Guardian
Act 2019. Assented to 4.12.2019.
Date of commencement of Sch 5.9, 1.3.2020, sec
2(1).
Table of amendments
Sec 5
Am 2011 No 70, Sch 2.5 [1];
2017 No 22, Sch 4.4 [1]; 2018 No 70, Sch 4.17[2]; 2019 No 25, Sch
5.9.
Sec 7
Am 2017 No 65, Sch
2.4.
Sec 8
Am 2013 No 95, Sch
2.26.
Sec 9
Subst 2011 No 70, Sch
2.5 [2]. Am 2017 No 22, Sch 4.4 [2].
Sec 10
Subst 2011 No 70, Sch
2.5 [3]. Am 2017 No 22, Sch 4.4 [2].
Sec 11
Am 2011 No 70, Sch 2.5
[4].
Sec 12
Am 2011 No 70, Sch 2.5
[5].
Sec 14
Am 2017 No 22, Sch 4.4
[3].
Sec 15
Am 2013 No 31, Sch
3.3.
Sec 17A
Ins 2011 No 70, Sch
2.5 [6].