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Chapter 1 Preliminary

Guide to Chapter 1—

This Chapter sets out the title to these Regulations, the provisions of the Education and Care Services National Law that authorise these Regulations and the commencement date for these Regulations.

This Chapter also sets out the definitions of key terms used in these Regulations.

1 Title

These Regulations may be cited as the Education and Care Services National Regulations.

2 Authorising provisions

These Regulations are made under sections 301 and 324 of the Education and Care Services National Law.

3 Commencement

These Regulations commence on 1 January 2012.
“Note
The commencement dates for the Education and Care Services National Regulations 2012 of Western Australia were—
(a) regulations 1 and 3, 25 July 2012;
(b) the rest of the regulations, 1 August 2012.”.

4 Definitions

(1) In these Regulations—
actively working towards a qualification—see regulation 10;
approved certificate III level education and care qualification means—
(a)  a qualification for the education and care of children generally or children of a specified age that is approved by the National Authority and included in the list of approved certificate III level education and care qualifications published under regulation 137; or
(b)  a qualification included in the list of approved diploma level education and care qualifications or approved early childhood teaching qualifications published under regulation 137;
approved diploma level education and care qualification means—
(a)  a qualification for the education and care of children generally or children of a specified age that is approved by the National Authority and included in the list of approved diploma level education and care qualifications published under regulation 137; or
(b)  a qualification included in the list of approved early childhood teaching qualifications published under regulation 137;
approved early childhood teaching qualification means a qualification for the education and care of children generally or children of a specified age that is approved by the National Authority and included in the list of approved early childhood teaching qualifications published under regulation 137;
approved number of places, in relation to a centre-based service, means the maximum number of children who can be educated and cared for by the service at any one time, stated on the service approval under section 52(g) of the Law;
bankruptcy declaration means a declaration made by an individual about any proceeding in bankruptcy brought against the individual including—
(a)  whether any actions have been taken against the individual under Part IV of the Bankruptcy Act 1966 of the Commonwealth; and
(b)  whether the individual has made any debt agreement under Part IX of the Bankruptcy Act 1966 of the Commonwealth; and
(c)  whether the individual has made any personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth;
building law means a law generally regulating building construction and demolition;
building permit means a permit or consent to carry out building work issued under a building law or planning and development law of a participating jurisdiction;
building practitioner means—
(a)  a person who is registered as a building surveyor, building inspector or draftsperson under a law of a participating jurisdiction; or
(b)  a person who is registered as an architect under a law of a participating jurisdiction; or
(c)  a person who is licensed as a surveyor under a law of a participating jurisdiction; or
(d)  a person who is licensed or registered as a building certifier under a law of a participating jurisdiction; or
(e)  a person who is accredited under a law of a participating jurisdiction to design buildings that will be used to provide education and care services;
centre-based service means an education and care service other than a family day care service;
certificate of final inspection means a certificate issued on completion of building work by a building practitioner under a building law or planning and development law of a participating jurisdiction;
child over preschool age means a child who—
(a)  is enrolled or registered at a school; and
(b)  attends, or in the current calendar year will attend, school in the year before grade 1 or in grade 1 or a higher grade;
child preschool age or under means a child under the age of 7 years who is not a child over preschool age;
criminal history record check means a full disclosure Australia-wide criminal history record check, issued by a police force or other authority of a State or Territory or the Commonwealth;
criminal history statement means a statement made by an individual that—
(a)  states whether the individual has been convicted in Australia of any offences relevant to a person seeking to work with children; and
(b)  includes details of those convictions;
diagnosed as at risk of anaphylaxis, in relation to a child, means a child who has been diagnosed by a registered medical practitioner as at risk of anaphylaxis;
disciplinary proceedings statement means a statement made by an individual that states—
(a)  whether the individual is or has been subject to a formal disciplinary proceeding or action under an education law of a participating jurisdiction (other than a proceeding or action that was unsuccessful or was withdrawn); and
(b)  the outcome of the proceeding or action (if known);
early childhood teacher means a person with an approved early childhood teaching qualification;
educational program means a program referred to in section 168 of the Law;
emergency, in relation to an education and care service, includes any situation or event that poses an imminent or severe risk to the persons at the education and care service premises;
Examples—
1
Flood.
2
Fire.
3
A situation that requires the education and care service premises to be locked-down.
excursion means an outing organised by an education and care service or family day care educator, but does not include an outing organised by an education and care service provided on a school site if—
(a)  the child or children leave the education and care service premises in the company of an educator; and
(b)  the child or children do not leave the school site;
family day care educator assistant means a person engaged by or registered with a family day care service to assist family day care educators;
financial declaration means a declaration made by a person who is not an individual indicating whether the person is or has been declared insolvent or is or has been placed under external administration;
in attendance, at a centre-based service, in relation to an early childhood teacher—see regulation 11;
infectious disease, in relation to a participating jurisdiction, means an infectious disease that is designated under a law of that jurisdiction or by a health authority (however described) as a disease that would require a person with the disease to be excluded from an education and care service;
medication means medicine within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth;
occupancy permit means a certificate or permit issued under a building law or planning and development law of a participating jurisdiction that permits a building to be occupied;
overseas criminal history statement means a statement made by an individual that—
(a)  states whether the individual has been convicted outside Australia of any offences relevant to a person seeking to work with children; and
(b)  includes details of those convictions;
planning and development law means a law generally regulating the planning of the use and development of land;
planning permit means a permit, approval or consent in respect of the use or development of any land granted under a building law or a planning and development law of a participating jurisdiction;
previous service statement means a statement made by an individual that states—
(a)  whether or not the individual has held any role with an education and care service or a children’s service in the previous 3 years; and
(b)  includes the following details for each role—
(i)  the name of the service; and
(ii)  the State or Territory in which the service was located; and
(iii)  the nature of the role;
registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);
regular outing, in relation to an education and care service, means a walk, drive or trip to and from a destination—
(a)  that the service visits regularly as part of its educational program; and
(b)  where the circumstances relevant to the risk assessment are the same on each outing;
renovate, in relation to premises, means—
(a)  construction, demolition, removal or relocation of a building or other fixed structure (or part of a building or other fixed structure); or
(b)  carrying out structural alterations on a building or other fixed structure;
responsible person, in relation to an education and care service, means a person referred to in section 162(1)(a) to (c) of the Law;
safety screening clearance means a safety screening clearance issued by the Department of Education of Tasmania;
scheme commencement day means 1 January 2012;
Note
The scheme commencement day for Western Australia was 1 August 2012—see the definition of scheme commencement day in regulation 4 of the Education and Care Services National Regulations 2012 of Western Australia.
serious incident—see regulation 12;
soil assessment means an analysis of soil conducted by an environmental consultant, environmental consulting firm, or environmental auditor for the purposes of determining—
(a)  the nature, extent and levels of contamination; and
(b)  the actual or potential risk to human health resulting from that contamination;
suitably qualified person means a person who has—
(a)  a qualification for the education and care of children generally or children of a specified age that is approved by the National Authority and included in the list of approved qualifications for suitably qualified persons published under regulation 137; or
(b)  a qualification approved by the National Authority as a higher qualification for suitably qualified persons and included in the list of approved qualifications for suitably qualified persons published under regulation 137;
the Law means the Education and Care Services National Law;
working directly with children—see regulation 13;
working with children check number has the same meaning as it has in the Child Protection (Working with Children) Act 2012 of New South Wales;
working with vulnerable people check means a check of a person under a working with vulnerable people law of a participating jurisdiction;
working with vulnerable people registration means a registration issued to a person under the Registration to Work With Vulnerable People Act 2013 of Tasmania allowing the person to be engaged in childcare services.
(1A) A requirement under these Regulations applying in relation to a stated number of children applies each time there is the stated number of children or a part of the stated number.
Example
There are 30 children aged 36 months or over (not including children over preschool age) at a centre-based service. Regulation 123(1)(c) requires 1 educator for each 11 children. In this case 3 educators would be required.
(2) Unless the context otherwise requires, a reference in these Regulations to a Part by a number is a reference to the Part, designated by that number, of these Regulations.
(3) Guides to Chapters do not form part of these Regulations.

5 Services that are not education and care services

(1) For the purposes of paragraph (g) of the definition of education and care service in section 5(1) of the Law, the following classes of disability service are excluded from the definition of education and care service—
(a)  a service that is a designated service within the meaning of the Disability Services Act 1993 of New South Wales;
(b)  services that are disability services under the Disability Services Act 2006 of Queensland;
(c)  a disability service provided by a disability service provider within the meaning of the Disability Act 2006 of Victoria;
(d)  a service providing education and care to a child with a disability that is funded by a grant of financial assistance approved under the Disability Services Act 1993 of Western Australia;
(e)  an early childhood intervention service provided for the principal purpose of providing intervention or support for children with a disability, additional needs or developmental delay.
(2) For the purposes of paragraph (h) of the definition of education and care service in section 5(1) of the Law, the following classes of service are excluded from the definition of education and care service—
(a)  a service providing education and care to children in premises where the majority of the children usually reside and the educator does not reside;
(b)  a service providing education and care to children in the service provider’s residence other than as part of a service that is delivered through the use of 2 or more educators to provide education and care to children in residences;
Note
Paragraph (b) does not apply in Western Australia—see regulation 5(2)(b) of the Education and Care Services National Regulations 2012 of Western Australia.
(c)  a service providing education and care to children primarily on an ad hoc or casual basis where—
(i)  the service does not usually offer full-time or all day education and care to children on an ongoing basis; and
(ii)  most of the children provided with education and care are preschool age or under;
Note—
This form of care is commonly referred to as occasional care.
(d)  a service provided by a hotel or resort to provide education and care to children who are temporary guests of the hotel or resort;
Example—
A ski resort that offers child-minding services for children staying at the resort.
(e)  a service providing education and care to a child on an ad hoc basis at premises where the parent of, or other person responsible for, the child is—
(i)  a guest, visitor or patron; and
(ii)  readily available at all times that the child is being educated and cared for;
Examples—
1
A service that provides education and care to a child at a conference attended by the parent.
2
A service that provides education and care to a child at a sports and leisure centre or shopping centre where the parent is a patron.
(f)  a service that provides education and care to children where the education and care is primarily provided or shared by parents or family members of the children and a parent or family member is readily available for the period that the child is educated and cared for and retains responsibility for the child;
(g)  a secondary school or college providing education and care to the children of students attending the school or college where a parent of each child retains responsibility for the child while the child is being educated and cared for;
(h)  a service providing education and care primarily to children preschool age or under that transports its equipment and materials or staff to one or more locations on each occasion that the service is provided;
Note—
This form of care is commonly called a mobile service.
(i)  a service that provides education and care for no more than 4 weeks per calendar year during school holidays;
(j)  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;
(k)  a service providing education and care that receives financial assistance under the Budget Based Funding Program element of the Child Care Services Support Program and is not a service that receives the Child Care Benefit in relation to the provision of education and care;
(l)  a licensed playschool under the Children and Young People Act 2008 of the Australian Capital Territory;
(m)  a stand alone service under a children’s services law of Queensland;
(n)  a service funded by the Queensland Government to provide limited hours care;
(o)  a South Australian Government operated Playcentre;
(p)  a service licensed as a Centre Based Care Class 4 or Centre Based Care Class 5 service under the Child Care Act 2001 of Tasmania;
(q)  a licensed limited hours service or short term service under the Children’s Services Act 1996 of Victoria;
(r)  a service funded by the government department principally administering the Children and Community Services Act 2004 of Western Australia for the purposes of preventive, support and recreation services for at risk children.

6 Eligible association

For the purposes of the definition of eligible association in section 5(1) of the Law, a parents and citizens association formed under Chapter 7 of the Education (General Provisions) Act 2006 of Queensland is a prescribed association.

7 Prescribed rating system

For the purposes of paragraph (d) of the definition of national education and care services quality framework in section 5(1) of the Law, the prescribed rating system is set out in Parts 3.2 to 3.5.

8 National Quality Standard

For the purposes of the definition of National Quality Standard in section 5(1) of the Law, the prescribed National Quality Standard is set out in Schedule 1.

9 Prescribed entities

For the purposes of paragraph (e) of the definition of person in section 5(1) of the Law, the following are prescribed entities—
(a) the Catholic Education Commission of Western Australia;
(b) a body politic.

10 Meaning of actively working towards a qualification

For the purposes of these Regulations, an educator is actively working towards a qualification if the educator—
(a)  is enrolled in the course for the qualification; and
(b)  provides the approved provider with documentary evidence from the provider of the course that—
(i)  the educator has commenced the course; and
(ii)  is making satisfactory progress towards completion of the course; and
(iii)  is meeting the requirements for maintaining the enrolment; and
(iv)  in the case of an approved diploma level education and care qualification, the educator—
(A)  holds an approved certificate III level education and care qualification; or
(B)  has completed the units of study in an approved certificate III level education and care qualification determined by the National Authority; or
(C)  has completed the percentage of total units of study required for completion of an approved early childhood teaching qualification determined by the National Authority.

11 Meaning of in attendance at a centre-based service

For the purposes of these Regulations, an early childhood teacher is in attendance at a centre-based service if the teacher—
(a)  is physically present at the service; and
(b)  carries out education and care activities at the service including one or more of the following—
(i)  working directly with children;
(ii)  planning programs;
(iii)  mentoring, coaching or supporting educators;
(iv)  facilitating education and care research;
(v)  performing the role of educational leader of the service referred to in regulation 118.

12 Meaning of serious incident

For the purposes of section 174(5) of the Law, the following are prescribed as serious incidents—
(a)  the death of a child—
(i)  while being educated and cared for by an education and care service; or
(ii)  following an incident while being educated and cared for by an education and care service;
(b)  any incident involving serious injury or trauma to, or illness of, a child while being educated and cared for by an education and care service—
(i)  which a reasonable person would consider required urgent medical attention from a registered medical practitioner; or
Examples
Whooping cough, broken limb, anaphylaxis reaction.
(ii)  for which the child attended, or ought reasonably to have attended, a hospital;
(c)  any incident where the attendance of emergency services at the education and care service premises was sought, or ought reasonably to have been sought;
(d)  any circumstance where a child being educated and cared for by an education and care service—
(i)  appears to be missing or cannot be accounted for; or
(ii)  appears to have been taken or removed from the education and care service premises in a manner that contravenes these Regulations; or
(iii)  is mistakenly locked in or locked out of the education and care service premises or any part of the premises.

13 Meaning of working directly with children

For the purposes of these Regulations a person is working directly with children at a given time if at that time the person—
(a) is physically present with the children; and
(b) is directly engaged in providing education and care to the children.

Chapter 2 Approvals and certificates

Guide to Chapter 2—

This Chapter sets out requirements for obtaining provider approvals, service approvals and supervisor certificates.

Part 2.1 deals with the process of obtaining provider approvals and includes the information required for applications.

Part 2.2 contains matters relating to service approvals.

Division 1 deals with applications for service approvals, conditions on service approvals and annual fees for service approvals.

Division 2 deals with amendment of service approvals and notices of change to nominated supervisors.

Division 3 deals with the transfer of service approvals from one approved provider to another.

Division 4 deals with the suspension of service approvals.

Division 5 deals with the process for obtaining a service waiver.

Division 6 deals with the process for obtaining a temporary waiver.

Part 2.3 sets out matters relating to supervisor certificates.

Division 1 deals with the process for obtaining a supervisor certificate.

Division 2 deals with the amendment of supervisor certificates.

Division 3 deals with the suspension of supervisor certificates.

Division 4 deals with the process for placing a certified supervisor in day to day charge of an education and care service.

Part 2.1 Provider approvals

14 Application for provider approval by individual

An application for a provider approval made by an individual under section 10 of the Law must include the following information—
(a)  the applicant’s full name, and any former or other name the applicant may be known by;
(b)  the applicant’s residential address and contact details;
(c)  the applicant’s date and place of birth;
(d)  proof of the applicant’s identity;
(e)  a previous service statement made by the applicant;
(f)  except in the case of an application to the New South Wales Regulatory Authority or the Queensland Regulatory Authority, if the participating jurisdiction has a working with children law—
(i)  if held by the applicant, a copy of the applicant’s current working with children card or working with children check; or
(ii)  if the applicant is a teacher registered under an education law of that jurisdiction, proof of the current registration under that law;
(iii)    (Repealed)
(fa)  in the case of an application to the New South Wales Regulatory Authority, the applicant’s working with children check number or a copy of the applicant’s current working with children card or working with children check;
(fb)  in the case of an application to the Queensland Regulatory Authority, a copy of the applicant’s current working with children card or working with children check;
(fc)  in the case of an application to the Tasmanian Regulatory Authority, a copy of the applicant’s safety screening clearance or working with vulnerable people registration;
(g)  except in the case of an application to the Queensland Regulatory Authority—
(i)  a copy of the applicant’s current working with vulnerable people check; or
(ii)  a criminal history record check in respect of the applicant issued not more than 6 months before the date of the application;
(h)  if a criminal history record check has been provided under paragraph (g)(ii), a criminal history statement made by the applicant in relation to the period after the date on which the criminal history record check was issued to the date of the application;
(i)  if the applicant lived and worked outside Australia at any time within the previous 3 years, an overseas criminal history statement made by the applicant;
(j)  a disciplinary proceedings statement made by the applicant;
(k)  a bankruptcy declaration made by the applicant.
Note—
If there is more than one applicant, the prescribed information must be provided in respect of each applicant—see section 10(3) of the Law.

15 Application for provider approval by person other than an individual

An application for a provider approval made by a person other than an individual under section 10 of the Law must include the following information—
(a)  the applicant’s name and any trading or other name used by the applicant;
(b)  the applicant’s street address and postal address or, if there is more than one address, the street address and postal address of the applicant’s principal office;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  documentary evidence of the legal status of the applicant and its constitution;
Example—
The partnership agreement for a partnership.
(e)  a financial declaration regarding the applicant;
(f)  for each individual who will be a person with management or control of an education and care service to be operated by the applicant, the information set out in regulation 14.
Note—
If there is more than one applicant, the prescribed information must be provided in respect of each applicant—see section 10(3) of the Law.

16 Matters relating to criminal history

The matters relating to the criminal history of a person that the Regulatory Authority must have regard to under section 13(1)(c)(i) of the Law are—
(a)  if the participating jurisdiction has a working with children law, whether the person—
(i)  holds a current working with children card or working with children check issued under that law; or
(ii)  is a registered teacher under an education law of that jurisdiction; and
(b)  except in the case of an application made to the Queensland Regulatory Authority, any matters included in a criminal history record check.

17 Application for amendment of provider approval

An application under section 22 of the Law for an amendment of a provider approval must include the following information—
(a)  the full name of the approved provider;
(b)  the provider approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  the details of the amendment applied for;
(e)  sufficient information or documentation to support the application for amendment.

18 Maximum period of suspension of provider approval

The prescribed maximum period of suspension of a provider approval under section 27(a) or 33(1)(a)(ii) of the Law is 12 months.

19 Application for voluntary suspension of provider approval

An application under section 37 of the Law for the suspension of a provider approval must include the following information—
(a)  the full name of the approved provider;
(b)  the provider approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  the reasons for the suspension;
(e)  the date on which the suspension is proposed to take effect and the duration of the suspension;
(f)  what is intended to happen to each education and care service operated by the approved provider during the proposed suspension;
(g)  a statement indicating that the approved provider has notified the parents of children enrolled at the education and care services operated by the approved provider in accordance with section 37(3) of the Law.

20 Application by individual executor for provider approval

An application for a provider approval made under section 39(5) of the Law by an executor who is an individual must include the following information—
(a)  the applicant’s full name, and any former or other name the applicant may be known by;
(b)  the applicant’s residential address and contact details;
(c)  the applicant’s date and place of birth;
(d)  in relation to the current approved provider—
(i)  the approved provider’s full name;
(ii)  the provider approval number;
(iii)  the date of the approved provider’s death;
(iv)  a copy of the death certificate or other evidence of the death of the approved provider;
(e)  the proposed duration of the provider approval;
Note—
This period cannot exceed 6 months.
(f)  proof of the applicant’s identity;
(g)  except in the case of an application to the New South Wales Regulatory Authority or the Queensland Regulatory Authority, if the participating jurisdiction has a working with children law—
(i)  if held by the applicant, a copy of the applicant’s current working with children card or working with children check; or
(ii)  if the applicant is a teacher registered under an education law of that jurisdiction, proof of the current registration under that law;
(iii)    (Repealed)
(ga)  in the case of an application to the New South Wales Regulatory Authority, the applicant’s working with children check number or a copy of the applicant’s current working with children card or working with children check;
(gb)  in the case of an application to the Queensland Regulatory Authority, a copy of the applicant’s current working with children card or working with children check;
(gc)  in the case of an application to the Tasmanian Regulatory Authority, a copy of the applicant’s safety screening clearance or working with vulnerable people registration;
(h)  except in the case of an application made to the Queensland Regulatory Authority—
(i)  a copy of the applicant’s current working with vulnerable people check; or
(ii)  a criminal history record check issued not more than 6 months before the date of the application;
(i)  if a criminal history record check has been provided under paragraph (h)(ii), a criminal history statement made by the applicant in relation to the period after the date on which the criminal history record check was issued to the date of the application;
(j)  if the applicant lived and worked outside Australia at any time within the previous 3 years, an overseas criminal history statement made by the applicant;
(k)  a disciplinary proceedings statement made by the applicant;
(l)  a bankruptcy declaration made by the applicant.

21 Application by executor other than an individual for provider approval

An application for a provider approval made under section 39(5) of the Law by an executor other than an individual must include the following information—
(a)  the applicant’s name and any trading or other name used by the applicant;
(b)  the applicant’s street address and postal address or, if there is more than one address, the street address and postal address of the applicant’s principal office;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  in relation to the current approved provider—
(i)  the approved provider’s full name;
(ii)  the provider approval number;
(iii)  the date of the approved provider’s death;
(iv)  a copy of the death certificate or other evidence of the death of the approved provider;
(e)  the proposed duration of the provider approval;
Note—
This period cannot exceed 6 months.
(f)  documentary evidence of the legal status of the applicant and its constitution;
Example—
The partnership agreement for a partnership.
(g)  a financial declaration regarding the applicant;
(h)  for each individual who will be a person with management or control of an education and care service to be operated by the applicant, the information set out in regulation 20.

22 Application by individual for provider approval on incapacity of approved provider

An application for a provider approval made under section 40 of the Law by the legal personal representative or guardian of an approved provider must include the following information if the applicant is an individual—
(a)  the applicant’s full name, and any former or other name the applicant may be known by;
(b)  the applicant’s residential address and contact details;
(c)  the applicant’s date and place of birth;
(d)  the current approved provider’s full name and provider approval number;
(e)  the proposed duration of the provider approval;
Note—
This period cannot exceed 6 months.
(f)  proof of the applicant’s identity;
(g)  except in the case of an application to the New South Wales Regulatory Authority or the Queensland Regulatory Authority, if the participating jurisdiction has a working with children law—
(i)  if held by the applicant, a copy of the applicant’s current working with children card or working with children check; or
(ii)  if the applicant is a teacher registered under an education law of that jurisdiction, proof of the current registration under that law;
(iii)    (Repealed)
(ga)  in the case of an application to the New South Wales Regulatory Authority, the applicant’s working with children check number or a copy of the applicant’s current working with children card or working with children check;
(gb)  in the case of an application to the Queensland Regulatory Authority, a copy of the applicant’s current working with children card or working with children check;
(gc)  in the case of an application to the Tasmanian Regulatory Authority, a copy of the applicant’s safety screening clearance or working with vulnerable people registration;
(h)  except in the case of an application made to the Queensland Regulatory Authority—
(i)  a copy of the applicant’s current working with vulnerable people check; or
(ii)  a criminal history record check issued not more than 6 months before the date of the application;
(i)  if a criminal history record check has been provided under paragraph (h)(ii), a criminal history statement made by the applicant in relation to the period after the date on which the criminal history record check was issued until the application is made;
(j)  if the applicant lived and worked outside Australia at any time within the previous 3 years, an overseas criminal history statement made by the applicant;
(k)  a disciplinary proceedings statement made by the applicant;
(l)  a bankruptcy declaration made by the applicant.

23 Application by person other than an individual for provider approval on incapacity of approved provider

An application for a provider approval made under section 40 of the Law by the legal personal representative or guardian of an approved provider must include the following information if the applicant is a person other than an individual—
(a)  the applicant’s name and any trading or other name used by the applicant;
(b)  the applicant’s street address and postal address or, if there is more than one address, the street address and postal address of the applicant’s principal office;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  the current approved provider’s full name and provider approval number;
(e)  the proposed duration of the provider approval;
Note—
This period cannot exceed 6 months.
(f)  documentary evidence of the legal status of the applicant and its constitution;
Example—
The partnership agreement for a partnership.
(g)  a financial declaration regarding the applicant;
(h)  for each individual who will be a person with management or control of an education and care service to be operated by the applicant, the information set out in regulation 22.

Part 2.2 Service approvals

Division 1 Applications for service approvals

24 Application for service approval—centre-based service

An application under section 43 of the Law for a service approval for a centre-based service must include the following information—
(a)  the applicant’s full name and—
(i)  provider approval number; or
(ii)  if the applicant has applied for a provider approval but the application has not been decided, the applicant’s contact details;
(b)  the name of the proposed education and care service;
(c)  the proposed date on which the education and care service will commence operation;
(d)  if known, the contact details, including an after-hours telephone number, for the proposed education and care service;
(e)  the proposed ages of children to be educated and cared for by the education and care service;
(f)  the proposed maximum number of children to be educated and cared for by the education and care service;
(g)  the proposed hours and days of operation of the education and care service;
(h)  a description of the nature of the education and care service;
(i)  the details of any associated children’s service for which approval is sought;
(j)  a statement that the applicant has prepared the policies and procedures referred to in regulation 168;
(k)  in relation to the certified supervisor nominated to be the nominated supervisor—
(i)  the full name and contact details, including after-hours telephone number, of the certified supervisor; and
(ii)  the supervisor certificate number of the certified supervisor, unless the applicant is nominated to be the nominated supervisor and has applied for a supervisor certificate but the application has not been decided.
Note—
The application must include the certified supervisor’s written consent to the nomination—see section 44(1)(d) of the Law.

25 Additional information about proposed education and care service premises

(1) Subject to subregulation (2), in addition to the information referred to in regulation 24, an application for a service approval for a centre-based service must include the following information about the proposed education and care service premises—
(a)  the location and street address of the proposed education and care service premises;
(b)  plans prepared by a building practitioner of the proposed education and care service premises showing the following—
(i)  the location of all buildings, structures, outdoor play areas and shaded areas;
(ii)  the location of all entries and exits;
(iii)  the location of all fences and gates, specifying the type of fence or gate used or to be used;
(iv)  the location of toilet and washing facilities, nappy changing areas and any food preparation areas;
(v)  the boundaries of the premises;
(vi)  the landscape of, or landscaping plans for, outdoor spaces that will be used by the education and care service, specifying the natural environments that are or will be provided;
(vii)  a floor plan indicating unencumbered indoor and outdoor spaces suitable for children;
(viii)  the location of any associated children’s service;
(ix)  calculations, carried out by a building practitioner, of the areas referred to in regulations 107 and 108 relating to unencumbered indoor and outdoor space;
(x)  the elevation plans of the premises;
(c)  if a swimming pool or other water hazard is situated on the proposed education and care service premises, a copy of the service’s proposed water safety policy;
Note—
Restrictions on swimming pools apply in New South Wales and Tasmania.
(d)  one of the following—
(i)  a soil assessment for the site of the proposed education and care service premises;
(ii)  if a soil assessment for the site of the proposed education and care service premises has previously been undertaken, a statement to that effect, specifying when the soil assessment was undertaken;
(iii)  a statement made by the applicant that states that, to the best of the applicant’s knowledge the site history does not indicate that the site is likely to be contaminated in a way that poses an unacceptable risk to the health of children;
(e)  a copy of the planning permit for the proposed education and care service premises if a planning permit is required under the planning and development law of the participating jurisdiction;
(f)  a statement that the applicant has the right to occupy and use the premises and any document evidencing this;
Example—
A lease of the premises.
(g)  unless the education and care service premises is a government or registered school, either—
(i)  a copy of any occupancy permit, certificate of final inspection, building certificate, certificate of classification or building surveyor’s statement issued or given in respect of the final construction and fit out of the education and care service premises; or
(ii)  a statement made by a building practitioner that states that the education and care service premises complies with building requirements under a building law or planning and development law of the participating jurisdiction.
(2) A regulatory authority may determine that the information set out in subregulation (1)(b) or (g) is not required to be provided if the approved provider is seeking—
(a)  to relocate the education and care service to alternative premises for not more than 12 months; or
(b)  to locate the education and care service on a school site.

26 Application for service approval—family day care service

An application under section 43 of the Law for a service approval for a family day care service must include the following information—
(a)  the applicant’s full name and—
(i)  provider approval number; or
(ii)  if the applicant has applied for a provider approval but the application has not been decided, the applicant’s contact details;
(b)  the name of the proposed family day care service;
(c)  the proposed date on which the family day care service will commence operation;
(d)  if known, the contact details, including after-hours telephone number, for the proposed principal office of the service;
(e)  the proposed hours and days of operation of the family day care service including whether the service proposes to engage or register family day care educators who will provide overnight or weekend care;
(f)  the proposed location and street address of the principal office of the family day care service;
(g)  the proposed number of family day care educators expected to be engaged by or registered with the proposed family day care service within 6 months of commencement of the service;
(h)  the jurisdictions and proposed local government areas in which the family day care educators expected to be engaged by or registered with the proposed family day care service will provide education and care;
(i)  the proposed number of family day care coordinators expected to be engaged by the proposed family day care service within 6 months of commencement of the service;
(j)  a statement that the applicant has prepared the policies and procedures referred to in regulation 168;
(k)  a copy of the proposed policies and procedures referred to in regulation 169;
(l)  if the family day care service will permit a family day care residence or venue with a swimming pool or something that may constitute a water hazard, a copy of the service’s proposed water safety policy;
Note—
Swimming pools are prohibited in Tasmania for all education and care services.
(m)  in relation to the certified supervisor nominated to be the nominated supervisor—
(i)  the full name and contact details, including after-hours telephone number, of the certified supervisor;
(ii)  the supervisor certificate number of the certified supervisor, unless the applicant is nominated to be the nominated supervisor and has applied for a supervisor certificate but the application has not been decided.
Note—
The application must include the certified supervisor’s written consent to the nomination—see section 44(1)(d) of the Law.

27 Additional matters to have regard to in determining application for service approval

In determining an application for a service approval under section 43 of the Law, the Regulatory Authority must have regard to the following matters—
(a) any suspension of the applicant’s provider approval;
(b) any conditions of the applicant’s provider approval.
Note—
See section 47(1)(g) of the Law.

28 Additional grounds for refusal to grant service approval

The Regulatory Authority may refuse to grant a service approval on the following grounds—
(a)  the Regulatory Authority is not satisfied that the applicant is capable of operating the proposed service in a way that meets the requirements of the Law or these Regulations or the National Quality Standard;
Examples—
1
The Regulatory Authority is not satisfied that the applicant is capable of maintaining premises or equipment or providing staff as required under the Law, whether because of financial or management capacity or another reason.
2
The Regulatory Authority is not satisfied that the applicant is capable of assessing family day care venues or residences or monitoring family day care educators as required under the Law, whether because of financial or management capacity or another reason.
(b)  in the case of a centre-based service, the Regulatory Authority is not satisfied that the applicant is entitled to occupy the education and care service premises.
Note—
See section 49(2) of the Law.

29 Condition on service approval—insurance

A service approval is granted subject to a condition that the approved provider must hold the following insurance in respect of the education and care service—
(a)  a current policy of insurance providing adequate cover for the education and care service against public liability with a minimum cover of $10 000 000; or
(b)  a policy of insurance or an indemnity against public liability provided by the Government of a State or Territory in respect of the education and care service.
Notes—
1
See section 51(4) of the Law.
2
See regulation 180 for the requirement to keep evidence of prescribed insurance.

30 Condition on service approval—family day care educator insurance

A service approval for a family day care service is granted subject to the condition that the approved provider of the service must ensure that each family day care educator engaged by or registered with the service holds insurance against public liability with a minimum cover of $10 000 000.
Notes—
1
See section 51(5) of the Law.
2
See regulation 180 for the requirement to keep evidence of prescribed insurance.

31 Condition on service approval—quality improvement plan

A service approval is granted subject to the condition that the approved provider of the education and care service must ensure that the current quality improvement plan for the service—
(a)  is kept at the education and care service premises or, in the case of a family day care service, the principal office of the family day care service; and
(b)  is made available for inspection by the Regulatory Authority or an authorised officer; and
(c)  is made available on request to parents of a child who is enrolled at the service or who are seeking to enrol a child at the service.
Notes—
1
See section 51(5) of the Law.
2
See regulations 55 and 56, which set out requirements for quality improvement plans.

32 Condition on service approval—entitlement to occupy premises

A service approval for a centre-based service is granted subject to the condition that the service continues to be entitled to occupy the education and care service premises.
Note—
See section 51(5) of the Law.

33 Annual fees

The approved provider of an education and care service must pay the relevant annual fee set out in Schedule 2 for the service approval on or before 1 July each year.

Division 2 Amendment of service approval and notice of change to nominated supervisor

34 Prescribed information for application to amend service approval

An application under section 54 of the Law for an amendment of a service approval must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  the details of the amendment applied for;
(e)  sufficient information or documentation to support the application for amendment.

35 Notice of change to nominated supervisor

A notice under section 56 of the Law to change the person nominated as the nominated supervisor of an education and care service must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  the full name and contact details of the new nominated supervisor;
(e)  the nominated supervisor’s written consent to the nomination;
(f)  the supervisor certificate number of the new nominated supervisor;
(g)  the date on which the new supervisor commences or commenced work as the nominated supervisor.

Division 3 Transfer of service approval

36 Notice of transfer of service approval—centre-based service

A notice under section 59 of the Law of a transfer of a service approval for a centre-based service must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the transferring approved provider’s—
(i)  name and contact details; and
(ii)  provider approval number;
(d)  the receiving approved provider’s—
(i)  name and contact details; and
(ii)  provider approval number;
(e)  the date on which the transfer is intended to take effect;
(f)  the details of any proposed changes in relation to the information required to be provided under regulations 24 and 25.

37 Notice of transfer of service approval—family day care service

A notice under section 59 of the Law of a transfer of a service approval for a family day care service must include the following information—
(a)  the name of the family day care service;
(b)  the service approval number;
(c)  the transferring approved provider’s—
(i)  name and contact details; and
(ii)  provider approval number;
(d)  the receiving approved provider’s—
(i)  name and contact details; and
(ii)  provider approval number;
(e)  the date on which the transfer is intended to take effect;
(f)  the details of any proposed changes to the information required to be provided under regulation 26.

38 Notification of decision to intervene in transfer of service approval

A notification under section 62(2) of the Law of the decision to intervene in the transfer of a service approval must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name of the transferring approved provider;
(d)  the name of the receiving approved provider;
(e)  the matters about which the Regulatory Authority is concerned.

Division 4 Suspension of service approval

39 Maximum period of suspension of service approval

The prescribed maximum period of suspension of a service approval under sections 72(a) and 79(1)(a)(ii) of the Law is 12 months.

40 Application for voluntary suspension of service approval

An application under section 85 of the Law for the suspension of a service approval must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  the reasons for the suspension;
(e)  the date on which the suspension is proposed to take effect and the duration of the suspension;
(f)  a statement indicating that the approved provider has notified the parents of children enrolled at the education and care service and any associated children’s service in accordance with section 85(4) of the Law.

Division 5 Service waiver

41 Service waiver—prescribed elements

For the purposes of section 87(1) of the Law, the prescribed elements are—
(a)  the standards and elements set out in Quality Areas 3 and 4 of the National Quality Standard; and
(b)  the following provisions—
(i)  regulations 104, 107, 108 and 110; and
(ii)  in the case of a centre-based service, Division 2 of Part 4.3 and regulations 120, 123, 126 and 130 to 134; and
(iii)  in the case of a family day care service, regulations 117, 124, 127 and 128; and
(iv)  any provision in Chapter 7 that applies in place of a provision referred to in subparagraph (i), (ii) or (iii).

42 Prescribed information—application for service waiver

An application under section 87 of the Law for a service waiver must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  a statement that specifies—
(i)  the elements of the National Quality Standard and the regulations in relation to which a service waiver is sought; and
(ii)  the way in which the education and care service does not or will not comply with the specified elements or regulations;
(e)  if the education and care service is unable to comply with the specified elements or regulations—
(i)  the reasons that the education and care service is unable to comply; and
(ii)  details and evidence of any attempts made to comply with the specified elements or regulations;
(f)  in any other case, the reasons that the education and care service seeks the service waiver;
(g)  the measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the service while the service waiver is in force.
Note—
See section 88 of the Law.

43 Prescribed period—revocation of service waiver

(1) For the purposes of section 92(3) of the Law, the prescribed period in relation to a revocation of a service waiver under section 92(1) of the Law is—
(a)  60 days after the Regulatory Authority notifies the approved provider of the decision to revoke; or
(b)  if another period is determined by the Regulatory Authority with the agreement of the approved provider, that other period.
(2) For the purposes of section 92(3) of the Law, the prescribed period in relation to a revocation of a service waiver under section 92(2) of the Law, is—
(a)  14 days after the Regulatory Authority notifies the approved provider of the approval of the application; or
(b)  if another period is determined by the Regulatory Authority with the agreement of the approved provider, that other period.

Division 6 Temporary waiver

44 Temporary waiver—prescribed elements

For the purposes of section 94 of the Law, the prescribed elements are—
(a)  the standards and elements set out in Quality Areas 3 and 4 of the National Quality Standard; and
(b)  the following provisions—
(i)  regulations 104, 107, 108 and 110; and
(ii)  in the case of a centre-based service, Division 2 of Part 4.3 and regulations 120, 123, 126, 130 to 134 and 136; and
(iii)  in the case of a family day care service, regulations 117, 124, 127, 128 and 136; and
(iv)  any provision in Chapter 7 that applies in place of a provision referred to in subparagraph (i), (ii) or (iii).

45 Application for temporary waiver

An application under section 94 of the Law for a temporary waiver must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  a statement that specifies—
(i)  the elements of the National Quality Standard and the regulations in relation to which a temporary waiver is sought; and
(ii)  the way in which the education and care service does not or will not comply with the specified elements or regulations;
(e)  the reasons that the education and care service is unable to comply with the specified elements or regulations;
(f)  details and evidence of any attempts made to comply with the specified elements or regulations;
(g)  the period for which a temporary waiver is sought and the reasons for seeking that period;
Note—
This period cannot exceed 12 months.
(h)  details of steps that are being or will be taken in order to comply with the specified elements or regulations;
(i)  the measures being taken or to be taken to protect the wellbeing of children being educated and cared for by the education and care service while the temporary waiver is in force.
Note—
See section 95 of the Law.

Part 2.3 Supervisor certificates

Division 1 Applications for supervisor certificates

46 Application for supervisor certificate

(1) Subject to subregulation (2), an application under section 106 of the Law for a supervisor certificate must include the following information—
(a)  the applicant’s full name, and any former name or other name the applicant may be known by;
(b)  the applicant’s residential address and contact details;
(c)  proof of the applicant’s identity;
(d)  proof that the applicant is aged 18 years or over;
(e)  details of the applicant’s relevant skills, experience, training and qualifications, including—
(i)  evidence of the applicant’s training and qualifications; and
(ii)  details of how the applicant meets the minimum requirements set out in regulation 47;
(f)  except in the case of an application to the New South Wales Regulatory Authority, the Queensland Regulatory Authority or the Tasmanian Regulatory Authority, the following—
(i)  if the applicant holds a current working with children check, working with children card or working with vulnerable people check, a copy of the check or card; or
(ii)  if the applicant is a teacher registered under an education law of a participating jurisdiction, proof of current registration under that law; or
(iii)    (Repealed)
(iv)  in any other case—
(A)  a criminal history record check issued not more than 6 months before the date of the application; and
(B)  a criminal history statement made by the applicant in relation to the period after the date on which the criminal history record check was issued to the date of the application; and
(C)  if the individual lived and worked outside Australia at any time within the previous 3 years, an overseas criminal history statement about the applicant; and
(D)  a disciplinary proceedings statement regarding the applicant;
(g)  in the case of an application to the New South Wales Regulatory Authority, the applicant’s working with children check number or a copy of the applicant’s current working with children card or working with children check;
(h)  in the case of an application to the Queensland Regulatory Authority, a copy of the applicant’s current working with children card or working with children check;
(i)  in the case of an application to the Tasmanian Regulatory Authority, a copy of the applicant’s safety screening clearance or working with vulnerable people registration.
(2) An application under section 106 of the Law for a supervisor certificate made by an individual who is an approved provider or a person with management or control of an education and care service must include the following information—
(a)  the applicant’s full name;
(b)  the provider approval number;
(c)  the applicant’s contact details;
(d)  proof that the applicant is aged 18 years or over;
(e)  details of the applicant’s relevant skills, experience, training and qualifications, including—
(i)  evidence of the applicant’s training and qualifications; and
(ii)  details of how the applicant meets the minimum requirements set out in regulation 47.

47 Minimum requirements for qualifications, experience and management capability

(1) The minimum requirements for qualifications, experience and management capability for the purposes of sections 108(1)(b) and 112(c) of the Law are—
(a)  the applicant must have—
(i)  adequate knowledge and understanding of the provision of education and care to children; and
(ii)  the ability to effectively supervise and manage an education and care service; and
(b)  subject to subregulation (2), the applicant must have at least one of the following—
(i)  at least 3 years’ experience working as an educator in an education and care service or a children’s service or a school or in a service regulated under a former education and care services law;
(ii)  an approved diploma level education and care qualification;
(iii)  an approved early childhood teaching qualification.
(2) Subregulation (1)(b) does not apply in relation to a supervisor certificate that is subject to a condition that the holder may only be a nominated supervisor of, or placed in day to day charge of, an education and care service that primarily educates and cares for children over preschool age.

48 Matters relating to criminal history

The matters relating to the criminal history of a person that the Regulatory Authority must have regard to under section 109(1)(c) of the Law are—
(a)  if the jurisdiction has a working with vulnerable people law—
(i)  any check of that person under that law; or
(ii)  whether the person holds a current teacher registration under an education law of that jurisdiction; and
(b)  if the jurisdiction does not have a working with vulnerable people law—
(i)  any matters included in a criminal history record check; or
(ii)  whether the person holds a current teacher registration under an education law of that jurisdiction.
Note—
This regulation applies if the applicant does not provide a working with children check.

49 Prescribed classes of persons for grant of supervisor certificate

The Regulatory Authority may grant a supervisor certificate under section 114 of the Law to a person in one of the following classes of persons—
(a)  a principal of a school that provides an education and care service at the site of the school;
(b)  a person in charge of a campus of a school that provides an education and care service at that campus;
(c)  a teacher at an off-site government preschool (within the meaning of the Education Act 2004 of the Australian Capital Territory);
(d)  a director of a pre-school education program (within the meaning of the Education Act 1972 of South Australia) provided by either a Government school or a registered non-Government school (both within the meaning of that Act);
(e)  a director of a pre-school education program provided in a children’s services centre registered under the Children’s Services Act 1985 of South Australia;
(f)  a registered teacher delivering a pre-preparatory learning program under an education law of Queensland;
(g)  a registered teacher (within the meaning of the Teachers Registration Act 2000 of Tasmania) providing a preschool program at a school established or registered under the Education Act 1994 of Tasmania;
(h)  a teacher registered under the Western Australian College of Teaching Act 2004 providing education and care to children in their pre-compulsory education period (within the meaning of the School Education Act 1999 of Western Australia) in a school or community kindergarten established or registered under that 1999 Act.

50 Issue of supervisor certificate—supervisor in prescribed class

A supervisor certificate issued under section 116 of the Law in respect of a certificate granted under section 114 of the Law must include the following information—
(a) the name of the approved education and care service;
(b) if applicable, the name of the school that provides the education and care service (if different from the name of the approved education and care service).

Division 2 Amendment of supervisor certificate

51 Application for amendment of supervisor certificate

An application under section 119 of the Law for an amendment of a supervisor certificate must include the following information—
(a)  the full name of the certified supervisor;
(b)  if the certified supervisor is a member of a prescribed class, the class;
(c)  the supervisor certificate number;
(d)  the certified supervisor’s contact details;
(e)  the details of the amendment applied for.

Division 3 Suspension of supervisor certificate

52 Maximum period of suspension of supervisor certificate

The prescribed maximum period of suspension of a supervisor certificate under section 125(a)(i) of the Law is 12 months.

53 Prescribed information—voluntary suspension of supervisor certificate

An application under section 129 of the Law for the suspension of a supervisor certificate must include the following information—
(a)  the full name of the certified supervisor;
(b)  if the certified supervisor is a member of a class prescribed under regulation 49, that class and the details of the service for which the supervisor holds the position in that class;
(c)  the supervisor certificate number;
(d)  the certified supervisor’s contact details;
(e)  the reasons for the suspension;
(f)  the date on which the suspension is proposed to take effect, and the duration of the suspension.

Division 4 Process for certified supervisor to be placed in day to day charge

54 Process for certified supervisor to be placed in day to day charge of education and care service

For the purposes of section 162(1)(c) or 164(1)(c) of the Law, a certified supervisor is placed in day to day charge of an education and care service if—
(a) the approved provider or the nominated supervisor for the service designates the certified supervisor as the certified supervisor in day to day charge; and
(b) the certified supervisor accepts the designation in writing.
Note—
A certified supervisor placed in day to day charge of an education and care service is not the nominated supervisor for the service and does not have the same responsibilities as the nominated supervisor.

Chapter 3 Assessments and ratings

Guide to Chapter 3—

This Chapter outlines the assessment and ratings process for an education and care service and applies to all education and care services.

Part 3.1 sets out the requirements for preparation and review of quality improvement plans.

Part 3.2 sets out the different rating levels that may be given to an education and care service and the method used to determine a rating.

Part 3.3 deals with assessments.

Division 1 sets out the process for making assessments of approved education and care services and determining ratings, including the matters that the Regulatory Authority must consider.

Division 2 sets out the process for applying for reassessment of an education and care service.

Part 3.4 deals with reviews of ratings.

Division 1 sets out the process for applying for a review of a rating of an education and care service by the Regulatory Authority.

Division 2 sets out the process for applying for a further review of a rating of an education and care service by a rating review panel.

Part 3.5 sets out the process by which the approved provider of an education and care service, if eligible, may apply for the highest rating.

Part 3.6 sets out offences relating to falsely representing ratings.

Part 3.1 Quality improvement plans

55 Quality improvement plans

(1) The approved provider of an education and care service must ensure that, within 3 months of the grant of the service approval, a quality improvement plan is prepared for the service that—
(a)  includes an assessment by the provider of the quality of the practices of the service against the National Quality Standard and these Regulations; and
(b)  identifies any areas that the provider considers may require improvement; and
(c)  contains a statement of the philosophy of the service.
(2) The approved provider must submit the quality improvement plan to the Regulatory Authority on request.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

56 Review and revision of quality improvement plans

(1) The approved provider of an education and care service must review and revise the quality improvement plan for the service having regard to the National Quality Standard—
(a) at least annually; and
(b) at any time when directed by the Regulatory Authority.
(2) The approved provider must submit the current quality improvement plan to the Regulatory Authority on request.
Note—
See regulation 31 for the conditions on the service approval requiring the current quality improvement plan to be kept available.

Part 3.2 Prescribed rating levels

57 Rating levels

For the purposes of section 134(1) of the Law, the prescribed rating levels are—
(a)  Significant Improvement Required;
(b)  Working Towards National Quality Standard;
(c)  Meeting National Quality Standard;
(d)  Exceeding National Quality Standard (the second highest rating level);
Note—
The second highest rating level is referred to in section 152(5) of the Law.
(e)  Excellent rating (the highest rating level).
Note—
The criteria for an excellent rating are determined by the National Authority. See section 153 of the Law.

58 Prescribed provisional rating

For the purposes of section 133(2) of the Law, the prescribed provisional rating is Provisional—Not Yet Assessed under the National Quality Framework.

59 Significant Improvement Required

(1) A Significant Improvement Required rating may be given for a quality area stated in the National Quality Standard if the education and care service does not meet that quality area or a relevant regulation for that quality area in a way that the Regulatory Authority is satisfied constitutes an unacceptable risk to the safety, health or wellbeing of any child or children being educated and cared for by the service.
(2) If an education and care service has a Significant Improvement Required rating for any quality area stated in the National Quality Standard, the overall rating of the service is to be Significant Improvement Required.

60 Working Towards National Quality Standard

(1) A Working Towards National Quality Standard rating may be given for a quality area stated in the National Quality Standard if the education and care service does not meet a standard in that quality area or a relevant regulation for that quality area but is not rated as Significant Improvement Required.
(2) If an education and care service has a Working Towards National Quality Standard rating for any quality area stated in the National Quality Standard but does not have a Significant Improvement Required rating for any quality area, the overall rating of the service is to be Working Towards National Quality Standard.

61 Meeting National Quality Standard

(1) A Meeting National Quality Standard rating may be given for a quality area stated in the National Quality Standard if the education and care service meets the standards and relevant regulations for that quality area.
(2) If an education and care service has a rating for each quality area stated in the National Quality Standard that is Meeting National Quality Standard or Exceeding National Quality Standard but does not satisfy the requirements of regulation 62 for an overall Exceeding National Quality Standard rating, the overall rating of the service is to be Meeting National Quality Standard.

62 Exceeding National Quality Standard

(1) Subject to subregulation (2), an Exceeding National Quality Standard rating may be given for a quality area stated in the National Quality Standard if the education and care service exceeds the standards for that quality area and complies with the relevant regulations for that quality area.
(2) An Exceeding National Quality Standard rating may only be given for the educational program and practice quality area of the National Quality Standard for an education and care service that educates and cares for children who are in the year that is 2 years before grade 1 of school if the service either—
(a)  provides a preschool program; or
(b)  has a documented arrangement with an approved provider of another education and care service to provide a preschool program and informs parents of this arrangement.
(3) The overall rating of an education and care service is to be Exceeding National Quality Standard if—
(a)  the education and care service has an Exceeding National Quality Standard rating for all quality areas stated in the National Quality Standard; or
(b)  the education and care service has—
(i)  an Exceeding National Quality Standard rating for 4 or more quality areas stated in the National Quality Standard at least 2 of which are among the following quality areas—
(A)  educational program and practice;
(B)  relationships with children;
(C)  collaborative partnerships with families and communities;
(D)  leadership and service management; and
(ii)  a Meeting National Quality Standard rating for each other quality area stated in the National Quality Standard.

Part 3.3 Assessment

Division 1 Assessment

63 Assessing approved education and care services

(1) Subject to subregulation (3), for the purposes of assessing an approved education and care service under section 133(1) of the Law, the Regulatory Authority—
(a)  must consider—
(i)  the current quality improvement plan for the service; and
(ii)  any rating assessment history of the service, including any records of previous rating assessments made under the Law; and
(iii)  the service’s history of compliance—
(A)  with the Law as it applies in any participating jurisdiction in which the service operates; and
(B)  in the period of 3 years preceding 1 January 2012, with a former education and care services law of a participating jurisdiction in which the service operates or has operated; and
Note
The date specified in sub-subparagraph (B) does not apply in Western Australia. The applicable date in Western Australia is 1 August 2012—see regulation 63(1)(a)(iii)(B) of the Education and Care Services National Regulations 2012 of Western Australia.
(C)  with an education law of a participating jurisdiction in which the service operates or has operated; and
(D)  with a children’s services law of a participating jurisdiction in which the service operates or has operated; and
(b)  must arrange for a site visit by an authorised officer—
(i)  in the case of a centre-based service, of the education and care service premises; and
(ii)  in the case of a family day care service, of one or more approved family day care venues or family day care residences.
(2) In addition to subregulation (1), the Regulatory Authority may consider the following—
(a)  any relevant information disclosed to the Regulatory Authority by—
(i)  a government department, public authority or local authority under section 271 of the Law; or
(ii)  the Regulatory Authority of another participating jurisdiction under section 271 of the Law as applying in that jurisdiction or a person acting for that Authority; or
(iii)  the relevant Commonwealth Department or a person acting for the relevant Commonwealth Department;
(b)  any information available to the Regulatory Authority about any steps taken by the approved education and care service to rectify any matters identified during the rating assessment;
(c)  information relating to any other quality assurance or registration process under an education law applicable to the approved education and care service;
(d)  in the case of an education and care service that provides education and care to children in the year that is 2 years before grade 1 of school, whether the service facilitates access to a preschool program as set out in regulation 62(2).
(3) This regulation does not apply to a reassessment of an education and care service or an aspect or element of an education and care service under section 138 or 139 of the Law.
Note—
See Division 2 of this Part.

64 Matters for determination of rating

In determining a rating level under section 135 of the Law, the matters the Regulatory Authority may have regard to include the following—
(a) any matters that may be considered under regulation 63; and
(b) in the case of a reassessment and re-rating on application under section 139 of the Law, any information included in that application.

65 Assessment and rating of new education and care services

On being granted a service approval, an education and care service is rated as Provisional—Not Yet Assessed under the National Quality Framework.
Note—
See section 133(2) of the Law.

Division 2 Reassessment

66 Application for reassessment

An application under section 139 of the Law for a reassessment and re-rating of an approved education and care service must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  the nature of the reassessment sought, including whether—
(i)  the application is for reassessment of the service; or
(ii)  the application is for reassessment of one or more aspects or elements of the service;
(e)  if the application is for reassessment of an aspect or element of the service, the particular aspects or elements and quality areas in the National Quality Standard for which reassessment is sought;
(f)  a statement setting out the reasons why reassessment is sought.

67 Reassessment by Regulatory Authority

For the purposes of the reassessment and re-rating of an approved education and care service or an aspect or element of an approved education and care service under section 138 or 139 of the Law, the Regulatory Authority—
(a)  may consider any information referred to in regulation 63 in relation to the service, including the current quality improvement plan for the service; and
(b)  may inspect the education and care service premises; and
(c)  may consider any changes to the education and care service since the last assessment.

Part 3.4 Review of ratings

Division 1 Review of ratings by Regulatory Authority

68 Prescribed information for request for review of rating

A request to the Regulatory Authority under section 141 of the Law for a review of rating levels must be accompanied by the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the request;
(d)  the quality areas stated in the National Quality Standard to which the grounds for review relate.
Note—
Section 141(4)(b) of the Law requires that the request must set out the grounds on which a review is sought.

Division 2 Review of ratings by Ratings Review Panel

69 Application for further review by Ratings Review Panel

An application under section 144 of the Law for a further review by a Ratings Review Panel of rating levels must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  a statement setting out—
(i)  the ground on which the provider seeks review of the decision of the Regulatory Authority; and
(ii)  the quality areas stated in the National Quality Standard to which the ground for further review relates.
Note—
See section 145(2)(b) of the Law.

70 Prescribed areas of expertise or expert knowledge of Ratings Review Panel pool

For the purposes of section 147(3)(c) of the Law, the prescribed areas of expertise or expert knowledge are—
(a) the assessment of quality in education and care services or other relevant services; and
(b) best practice regulation.
Note—
These areas are in addition to the areas prescribed in section 147(3) of the Law.

Part 3.5 Highest rating

71 Application or re-application for the highest rating

An application under section 152 or a reapplication under section 159 of the Law for an approved education and care service to be assessed for the highest rating level must include the following information—
(a)  the name of the education and care service;
(b)  the service approval number;
(c)  the name and contact details of the contact person for the purposes of the application;
(d)  a statement and evidence demonstrating that the service meets the assessment criteria.

Part 3.6 Offences

72 Offences in relation to giving false or misleading statements about ratings

(1) The approved provider of an education and care service must not falsely represent the overall rating or a rating in respect of a quality area stated in the National Quality Standard given to the service under the Law.
Penalty: $2000.
(2) The approved provider must take reasonable steps to ensure that any person employed or engaged by the approved provider does not falsely represent the overall rating or a rating in respect of a quality area stated in the National Quality Standard given to the service under the Law.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1) or (2).

Chapter 4 Operational requirements

Guide to Chapter 4—

This Chapter contains requirements for operating an education and care service. This Chapter is relevant for all services and is aligned with the National Quality Standard.

Part 4.1 sets out requirements for an educational program and practice for a service. The regulations in this Part are relevant to quality area 1 of the National Standard.

Part 4.2 sets out requirements for services relating to children’s health and safety. The regulations in this Part are relevant to quality area 2 of the National Standard.

Division 1 sets out requirements to be put in place for the health, safety and wellbeing of children.

Division 2 sets out the requirements for policies and procedures relating to incidents, injuries, trauma and illness.

Division 3 sets out requirements for a medical conditions policy and medication procedures.

Division 4 sets out matters relating to the administration of medication.

Division 5 sets out matters relating to emergencies and communication.

Division 6 sets out requirements for collection of children from premises and excursions.

Part 4.3 sets out the physical environment requirements for services. These requirements may differ depending on whether the service is a centre-based service or a family day care service. The regulations in this Part are relevant to quality area 3 of the National Standard.

Division 1 sets out the requirements for premises for both centre-based services and family day care services.

Division 2 sets out the additional requirements for centre-based services.

Division 3 sets out the additional requirements for family day care services.

Part 4.4 sets out staffing requirements for education and care services, including minimum numbers of educators, qualification requirements, requirements for early childhood teachers and family day care educator assistants and staff and educator records and registers. The regulations in this Part are relevant to quality area 4 of the National Standard.

Part 4.5 sets out provisions relating to relationships between children and educators. The regulations in this Part are relevant to quality area 5 of the National Standard.

Part 4.6 sets out a requirement for services to have collaborative relationships with families. The regulations in this Part are relevant to quality area 6 of the National Standard.

Part 4.7 sets out matters relating to management and leadership in services. The regulations in this Part are relevant to quality area 7 of the National Standard.

Division 1 sets out matters relating to the management of services.

Division 2 sets out matters relating to policies and procedures for services.

Division 3 sets out information and record-keeping requirements.

Part 4.1 Educational program and practice

73 Educational program

(1) This Part applies in relation to the program (the educational program) that is required to be delivered under section 168 of the Law to a child being educated and cared for by an education and care service.
(2) An educational program is to contribute to the following outcomes for each child—
(a)  the child will have a strong sense of identity;
(b)  the child will be connected with and contribute to his or her world;
(c)  the child will have a strong sense of wellbeing;
(d)  the child will be a confident and involved learner;
(e)  the child will be an effective communicator.

74 Documenting of child assessments or evaluations for delivery of educational program

(1) The approved provider of the education and care service must ensure that, for the purposes of the educational program, the following are documented—
(a)  for a child preschool age or under—
(i)  assessments of the child’s developmental needs, interests, experiences and participation in the educational program; and
(ii)  assessments of the child’s progress against the outcomes of the educational program; and
(b)  for a child over preschool age, evaluations of the child’s wellbeing, development and learning.
(2) In preparing the documentation, the approved provider must—
(a)  consider—
(i)  the period of time that the child is being educated and cared for by the service; and
(ii)  how the documentation will be used by the educators at the service; and
(b)  prepare the documentation in a way that is readily understandable by the educators at the service and the parents of the child.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

75 Information about educational program to be kept available

The approved provider of an education and care service must ensure that—
(a)  information about the contents and operation of the educational program for the service is displayed at the education and care service premises at a place accessible to parents of children being educated and cared for by the service; and
(b)  a copy of the educational program is available at the following places for inspection on request—
(i)  in the case of a centre-based service, at the education and care service premises;
(ii)  in the case of a family day care service, at each family day care residence or family day care venue.
Note—
A compliance direction may be issued for failure to comply with this regulation.

76 Information about educational program to be given to parents

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 provided with the following information on request—
(a)  information about the content and operation of the educational program so far as it relates to that child;
(b)  information about the child’s participation in the program;
(c)  a copy of the documents kept under regulation 74 in respect of the child.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Part 4.2 Children’s health and safety

Division 1 Health, safety and wellbeing of children

77 Health, hygiene and safe food practices

(1) The approved provider of an education and care service must ensure that the nominated supervisor and staff members of, and volunteers at, the service implement—
(a)  adequate health and hygiene practices; and
(b)  safe practices for handling, preparing and storing food—
to minimise risks to children being educated and cared for by the service.
Penalty: $2000.
(2) The nominated supervisor of an education and care service must implement, and ensure that all staff members of, and volunteers at, the service implement—
(a)  adequate health and hygiene practices; and
(b)  safe practices for handling, preparing and storing food—
to minimise risks to children being educated and cared for by the service.
Penalty: $2000.
(3) A family day care educator must implement—
(a)  adequate health and hygiene practices; and
(b)  safe practices for handling, preparing and storing food—
to minimise risks to children being educated and cared for by the educator as part of a family day care service.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

78 Food and beverages

(1) The approved provider of an education and care service must ensure that children being educated and cared for by the service—
(a)  have access to safe drinking water at all times; and
(b)  are offered food and beverages appropriate to the needs of each child on a regular basis throughout the day.
Penalty: $2000.
(2) The nominated supervisor of an education and care service must ensure that children being educated and cared for by the service—
(a)  have access to safe drinking water at all times; and
(b)  are offered food and beverages on a regular basis throughout the day.
Penalty: $2000.
(3) A family day care educator must ensure that children being educated and cared for by the educator as part of a family day care service—
(a)  have access to safe drinking water at all times; and
(b)  are offered food and beverages on a regular basis throughout the day.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

79 Service providing food and beverages

(1) The approved provider of an education and care service that provides food or a beverage to children being educated and cared for by the service must ensure that—
(a)  the food or beverage provided is nutritious and adequate in quantity; and
(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—
(i)  each child’s growth and development needs; and
(ii)  any specific cultural, religious or health requirements.
Penalty: $2000.
(2) The nominated supervisor of an education and care service that provides food or a beverage to children being educated and cared for by the service must ensure that—
(a)  the food or beverage provided is nutritious and adequate in quantity; and
(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—
(i)  each child’s growth and development needs; and
(ii)  any specific cultural, religious or health requirements.
Penalty: $2000.
(3) A family day care educator who provides food or a beverage to children being educated and cared for by the educator as part of a family day care service must ensure that—
(a)  the food or beverage provided is nutritious and adequate in quantity; and
(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—
(i)  each child’s growth and development needs; and
(ii)  any specific cultural, religious or health requirements.
Penalty: $2000.
(4) To avoid doubt, this regulation does not apply to food or a beverage provided by a parent or family member for consumption by the child.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

80 Weekly menu

(1) The approved provider of an education and care service that provides food and beverages (other than water) to children being educated and cared for by the service must ensure that a weekly menu—
(a)  is displayed at a place at the education and care service premises accessible to parents of children being educated and cared for by the service; and
(b)  accurately describes the food and beverages to be provided by the service each day.
Penalty: $1000.
(2) The nominated supervisor of an education and care service that provides food and beverages (other than water) to children being educated and cared for by the service must ensure that a weekly menu—
(a)  is displayed at a place at the education and care service premises accessible to parents of children being educated and cared for by the service; and
(b)  accurately describes the food and beverages to be provided by the service each day.
Penalty: $1000.
(3) A family day care educator who provides food and beverages (other than water) to children being educated and cared for by the educator as part of a family day care service must ensure that a weekly menu—
(a)  is displayed at a place at the family day care residence or approved family day care venue accessible to parents of children being educated and cared for by the service; and
(b)  accurately describes the food and beverages to be provided by the family day care educator each day.
Penalty: $1000.
(4) To avoid doubt, this regulation does not apply to food and beverages provided by a parent or family member for consumption by the child.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

81 Sleep and rest

(1) The approved provider of an education and care service must take reasonable steps to ensure that the needs for sleep and rest of children being educated and cared for by the service are met, having regard to the ages, development stages and individual needs of the children .
Penalty: $1000.
(2) The nominated supervisor of an education and care service must take reasonable steps to ensure that the needs for sleep and rest of children being educated and cared for by the service are met, having regard to the ages, development stages and individual needs of the children.
Penalty: $1000.
(3) A family day care educator must take reasonable steps to ensure that the needs for sleep and rest of children being educated and cared for by the educator as part of a family day care service are met, having regard to the ages, development stages and individual needs of the children.
Penalty: $1000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

82 Tobacco, drug and alcohol-free environment

(1) The approved provider of an education and care service must ensure that children being educated and cared for by the service are provided with an environment that is free from the use of tobacco, illicit drugs and alcohol.
Penalty: $2000.
(2) A family day care educator must ensure that children being educated and cared for by the educator as part of a family day care service are provided with an environment that is free from the use of tobacco, illicit drugs and alcohol.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

83 Staff members and family day care educators not to be affected by alcohol or drugs

(1) The approved provider of an education and care service must ensure that the nominated supervisor or a staff member of, or volunteer at, the service is not affected by alcohol or drugs (including prescription medication) so as to impair his or her capacity to supervise or provide education and care to children being educated and cared for by the service.
Penalty: $2000.
(2) The nominated supervisor of an education and care service must not, while educating and caring for children for the service—
(a)  consume alcohol; or
(b)  be affected by alcohol or drugs (including prescription medication) so as to impair his or her capacity to supervise or provide education and care to the children.
Penalty: $2000.
(3) A family day care educator must not, while providing education and care for children as part of a family day care service—
(a)  consume alcohol; or
(b)  be affected by alcohol or drugs (including prescription medication) so as to impair his or her capacity to provide education and care to the children.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

84 Awareness of child protection law

The approved provider of an education and care service must ensure that the nominated supervisor and staff members at the service who work with children are advised of—
(a) the existence and application of the current child protection law; and
(b) any obligations that they may have under that law.
Penalty: $1000.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Division 2 Incidents, injury, trauma and illness

85 Incident, injury, trauma and illness policies and procedures

The incident, injury, trauma and illness policies and procedures of an education and care service required under regulation 168 must include procedures to be followed by nominated supervisors and staff members of, and volunteers at, the service in the event that a child—
(a)  is injured; or
(b)  becomes ill; or
(c)  suffers a trauma.

86 Notification to parents of incident, injury, trauma and illness

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.
Penalty: $2000.

87 Incident, injury, trauma and illness record

(1) The approved provider of an education and care service must ensure that an incident, injury, trauma and illness record is kept in accordance with this regulation.
(2) A family day care educator must keep an incident, injury, trauma and illness record in accordance with this regulation.
(3) The incident, injury, trauma and illness record must include—
(a)  details of any incident in relation to a child or injury received by a child or trauma to which a child has been subjected while being educated and cared for by the education and care service or the family day care educator, including—
(i)  the name and age of the child; and
(ii)  the circumstances leading to the incident, injury or trauma; and
(iii)  the time and date the incident occurred, the injury was received or the child was subjected to the trauma;
(b)  details of any illness which becomes apparent while the child is being educated and cared for by the education and care service or the family day care educator including—
(i)  the name and age of the child; and
(ii)  the relevant circumstances surrounding the child becoming ill and any apparent symptoms; and
(iii)  the time and date of the apparent onset of the illness;
(c)  details of the action taken by the education and care service or family day care educator in relation to any incident, injury, trauma or illness which a child has suffered while being educated and cared for by the education and care service or family day care educator, including—
(i)  any medication administered or first aid provided; and
(ii)  any medical personnel contacted;
(d)  details of any person who witnessed the incident, injury or trauma;
(e)  the name of any person—
(i)  whom the education and care service notified or attempted to notify, of any incident, injury, trauma or illness which a child has suffered while being educated and cared for by the education and care service or family day care educator; and
(ii)  the time and date of the notifications or attempted notifications;
(f)  the name and signature of the person making an entry in the record, and the time and date that the entry was made.
(4) The information referred to in subregulation (3) must be included in the incident, injury, trauma and illness record as soon as practicable, but not later than 24 hours after the incident, injury or trauma, or the onset of the illness.

88 Infectious diseases

(1) If there is an occurrence of an infectious disease at an education and care service, the approved provider of the service must ensure that reasonable steps are taken to prevent the spread of the infectious disease at the service.
Penalty: $2000.
(2) If there is an occurrence of an infectious disease at a centre-based service, the approved provider of the service must ensure that a parent or an authorised emergency contact of each child being educated and cared for by the service is notified of the occurrence as soon as practicable.
Penalty: $2000.
(3) If there is an occurrence of an infectious disease at a family day care residence or approved family day care venue, the approved provider of the family day care service must ensure that a parent or an authorised emergency contact of each child being educated and cared for at the residence or venue as part of the service is notified of the occurrence as soon as practicable.
Penalty: $2000.

89 First aid kits

(1) The approved provider of an education and care service must ensure that first aid kits are kept in accordance with this subregulation, wherever the service is providing education and care to children—
(a)  an appropriate number of first aid kits must be kept having regard to the number of children being educated and cared for by the service; and
(b)  the first aid kits must be suitably equipped; and
(c)  the first aid kits must be easily recognisable and readily accessible to adults, having regard to the design of the education and care service premises.
Penalty: $2000.
(2) A family day care educator must keep a first aid kit that is suitably equipped, easily recognisable and readily accessible to adults wherever the educator is educating and caring for children as part of a family day care service.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

Division 3 Medical conditions policy

90 Medical conditions policy

(1) The medical conditions policy of the education and care service must set out practices in relation to the following—
(a)  the management of medical conditions, including asthma, diabetes or a diagnosis that a child is at risk of anaphylaxis;
(b)  informing the nominated supervisor and staff members of, and volunteers at, the service of practices in relation to managing those medical conditions;
(c)  the requirements arising if a child enrolled at the education and care service has a specific health care need, allergy or relevant medical condition, including—
(i)  requiring a parent of the child to provide a medical management plan for the child; and
(ii)  requiring the medical management plan to be followed in the event of an incident relating to the child’s specific health care need, allergy or relevant medical condition; and
(iii)  requiring the development of a risk-minimisation plan in consultation with the parents of a child—
(A)  to ensure that the risks relating to the child’s specific health care need, allergy or relevant medical condition are assessed and minimised; and
(B)  if relevant, to ensure that practices and procedures in relation to the safe handling, preparation, consumption and service of food are developed and implemented; and
(C)  if relevant, to ensure that practices and procedures to ensure that the parents are notified of any known allergens that pose a risk to a child and strategies for minimising the risk are developed and implemented; and
(D)  to ensure that practices and procedures ensuring that all staff members and volunteers can identify the child, the child’s medical management plan and the location of the child’s medication are developed and implemented; and
(E)  if relevant, to ensure that practices and procedures ensuring that the child does not attend the service without medication prescribed by the child’s medical practitioner in relation to the child’s specific health care need, allergy or relevant medical condition are developed and implemented; and
(iv)  requiring the development of a communications plan to ensure that—
(A)  relevant staff members and volunteers are informed about the medical conditions policy and the medical management plan and risk minimisation plan for the child; and
(B)  a child’s parent can communicate any changes to the medical management plan and risk minimisation plan for the child, setting out how that communication can occur.
(2) The medical conditions policy of the education and care service must set out practices in relation to self-administration of medication by children over preschool age if the service permits that self-administration.
(3) In subregulation (2), the practices must include any practices relating to recording in the medication record for a child of notifications from the child that medication has been self-administered.

91 Medical conditions policy to be provided to parents

The approved provider of an education and care service must ensure that a copy of the medical conditions policy document is provided to the parent of a child enrolled at an education and care service if the provider is aware that the child has a specific health care need, allergy or other relevant medical condition.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Division 4 Administration of medication

92 Medication record

(1) The approved provider of an education and care service must ensure that a medication record is kept that includes the details set out in subregulation (3) for each child to whom medication is or is to be administered by the service.
(2) A family day care educator must keep a medication record that includes the details set out in subregulation (3) for each child being educated and cared for by the educator as part of a family day care service to whom medication is or is to be administered.
(3) The details to be recorded are—
(a)  the name of the child;
(b)  the authorisation to administer medication (including, if applicable, self-administration), signed by a parent or a person named in the child’s enrolment record as authorised to consent to administration of medication;
(c)  the name of the medication to be administered;
(d)  the time and date the medication was last administered;
(e)  the time and date, or the circumstances under which, the medication should be next administered;
(f)  the dosage of the medication to be administered;
(g)  the manner in which the medication is to be administered;
(h)  if the medication is administered to the child—
(i)  the dosage that was administered; and
(ii)  the manner in which the medication was administered; and
(iii)  the time and date the medication was administered; and
(iv)  the name and signature of the person who administered the medication; and
(v)  if another person is required under regulation 95 to check the dosage and administration, the name and signature of that person.

93 Administration of medication

(1) The approved provider of an education and care service must ensure that medication is not administered to a child being educated and cared for by the service unless—
(a)  that administration is authorised; and
(b)  the medication is administered in accordance with regulation 95 or 96.
Penalty: $2000.
(2) The approved provider of an education and care service must ensure that written notice is given to a parent or other family member of a child as soon as practicable, if medication is administered to the child under an authorisation referred to in subregulation (5)(b).
Penalty: $1000.
(3) The nominated supervisor of an education and care service must ensure that medication is not administered to a child being educated and cared for by the service unless—
(a)  that administration is authorised; and
(b)  the medication is administered in accordance with regulation 95 or 96.
Penalty: $2000.
(4) A family day care educator must ensure that medication is not administered to a child being educated and cared for by the educator as part of a family day care service unless—
(a)  that administration is authorised; and
(b)  the medication is administered in accordance with regulation 95 or 96.
Penalty: $2000.
(5) In this regulation the administration of medication to a child is authorised if an authorisation to administer the medication—
(a)  is recorded in the medication record for that child under regulation 92; or
(b)  in the case of an emergency, is given verbally by—
(i)  a parent or a person named in the child’s enrolment record as authorised to consent to administration of medication; or
(ii)  if a parent or person named in the enrolment record cannot reasonably be contacted in the circumstances, a registered medical practitioner or an emergency service.

94 Exception to authorisation requirement—anaphylaxis or asthma emergency

(1) Despite regulation 93, medication may be administered to a child without an authorisation in case of an anaphylaxis or asthma emergency.
(2) If medication is administered under this regulation, the approved provider or nominated supervisor of the education and care service or family day care educator must ensure that the following are notified as soon as practicable—
(a) a parent of the child;
(b) emergency services.

95 Procedure for administration of medication

Subject to regulation 96, if medication is administered to a child being educated and cared for by an education and care service—
(a)  the medication must be administered—
(i)  if the medication has been prescribed by a registered medical practitioner, from its original container, bearing the original label with the name of the child to whom the medication is to be administered, and before the expiry or use by date; or
(ii)  from its original container, bearing the original label and instructions and before the expiry or use by date; and
(b)  the medication must be administered in accordance with any instructions—
(i)  attached to the medication; or
(ii)  any written or verbal instructions provided by a registered medical practitioner; and
(c)  except in the case of a family day care service or an education and care service that is permitted to have only 1 educator to educate and care for children, the following must be checked by a person other than the person administering the medication—
(i)  the dosage of the medication to be administered;
(ii)  the identity of the child to whom the medication is to be administered.

96 Self-administration of medication

The approved provider of an education and care service may permit a child over preschool age to self-administer medication if—
(a) an authorisation for the child to self-administer medication is recorded in the medication record for the child under regulation 92; and
(b) the medical conditions policy of the service includes practices for self-administration of medication.

Division 5 Emergencies and communication

97 Emergency and evacuation procedures

(1) The emergency and evacuation procedures required under regulation 168 must set out—
(a)  instructions for what must be done in the event of an emergency; and
(b)  an emergency and evacuation floor plan.
(2) For the purposes of preparing the emergency and evacuation procedures, the approved provider of an education and care service must ensure that a risk assessment is conducted to identify potential emergencies that are relevant to the service.
Penalty: $2000.
(3) The approved provider of an education and care service must ensure that—
(a)  in the case of a centre-based service, the emergency and evacuation procedures are rehearsed every 3 months by the staff members, volunteers and children present at the service on the day of the rehearsal and the responsible person in relation to the service who is present at the time of the rehearsal; and
(ab)  in the case of a family day care service, the emergency and evacuation procedures are rehearsed every 3 months by each family day care educator and the children being educated and cared for by the family day care educator on that day; and
(b)  the rehearsals of the emergency and evacuation procedures are documented.
Penalty: $2000.
(4) The approved provider of an education and care service must ensure that a copy of the emergency and evacuation floor plan and instructions are displayed in a prominent position near each exit at the education and care service premises, including a family day care residence and approved family day care venue.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with subregulation (2), (3) or (4).

98 Telephone or other communication equipment

The approved provider of an education and care service must ensure that, when educating or caring for children as part of the service, the nominated supervisor and staff members of the service have ready access to an operating telephone or other similar means of communication to enable immediate communication to and from parents and emergency services.
Penalty: $1000.
Example—
Fixed-line telephone, mobile phone, satellite phone, 2-way radio, video conferencing equipment.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Division 6 Collection of children from premises and excursions

99 Children leaving the education and care service premises

(1) The approved provider of an education and care service must ensure that a child who is being educated and cared for by the education and care service does not leave the education and care service premises except in accordance with subregulation (4).
Penalty: $2000.
(2) The nominated supervisor of an education and care service must ensure that a child who is being educated and cared for by the education and care service does not leave the education and care service premises except in accordance with subregulation (4).
Penalty: $2000.
(3) A family day care educator must ensure that a child who is being educated and cared for by the educator as part of a family day care service does not leave the residence or approved family day care venue except in accordance with subregulation (4).
Penalty: $2000.
(4) The child may only leave the relevant premises if the child—
(a)  is given into the care of—
(i)  a parent of the child; or
(ii)  an authorised nominee named in the child’s enrolment record; or
(iii)  a person authorised by a parent or authorised nominee named in the child’s enrolment record to collect the child from the premises; or
(b)  leaves the premises in accordance with the written authorisation of the child’s parent or authorised nominee named in the child’s enrolment record; or
(c)  is taken on an excursion in accordance with this Division; or
(d)  is given into the care of a person or taken outside the premises—
(i)  because the child requires medical, hospital or ambulance care or treatment; or
(ii)  because of another emergency.
(5) In this regulation parent does not include a parent who is prohibited by a court order from having contact with the child.
Note
Regulation 99 does not apply in Western Australia. Western Australia has enacted an equivalent provision in section 165A of the Schedule to the Education and Care Services National Law (WA) Act 2012.

100 Risk assessment must be conducted before excursion

(1) The approved provider of an education and care service must ensure a risk assessment is carried out in accordance with regulation 101 before an authorisation is sought under regulation 102 for an excursion.
Penalty: $2000.
(2) The nominated supervisor of an education and care service must ensure a risk assessment is carried out in accordance with regulation 101 before an authorisation is sought under regulation 102 for an excursion.
Penalty: $2000.
(3) A family day care educator must carry out a risk assessment in accordance with regulation 101 before an authorisation is sought under regulation 102 for an excursion.
Penalty: $2000.
(4) A risk assessment is not required under this regulation for an excursion if—
(a) the excursion is a regular outing; and
(b) a risk assessment has been conducted for the excursion.

101 Conduct of risk assessment for excursion

(1) A risk assessment for an excursion must—
(a)  identify and assess risks that the excursion may pose to the safety, health or wellbeing of any child being taken on the excursion; and
(b)  specify how the identified risks will be managed and minimised.
(2) Without limiting subregulation (1), a risk assessment must consider—
(a)  the proposed route and destination for the excursion; and
(b)  any water hazards; and
(c)  any risks associated with water-based activities; and
(d)  the transport to and from the proposed destination for the excursion; and
(e)  the number of adults and children involved in the excursion; and
(f)  given the risks posed by the excursion, the number of educators or other responsible adults that is appropriate to provide supervision and whether any adults with specialised skills are required; and
Example—
Specialised skills could include life-saving skills.
(g)  the proposed activities; and
(h)  the proposed duration of the excursion; and
(i)  the items that should be taken on the excursion.
Example—
A mobile phone and a list of emergency contact numbers for children on the excursion.

102 Authorisation for excursions

(1) The approved provider of an education and care service must ensure that a child being educated and cared for by the service is not taken outside the education and care service premises on an excursion unless written authorisation has been provided under subregulation (4).
Penalty: $1000.
(2) The nominated supervisor of an education and care service must ensure that a child being educated and cared for by the service is not taken outside the education and care service premises on an excursion unless written authorisation has been provided under subregulation (4).
Penalty: $1000.
(3) A family day care educator must ensure that a child who is being educated and cared for by the educator as part of a family day care service is not taken outside the residence or approved family day care venue on an excursion unless written authorisation has been provided under subregulation (4).
Penalty: $1000.
(4) The authorisation must be given by a parent or other person named in the child’s enrolment record as having authority to authorise the taking of the child outside the education and care sevice premises by an educator and must state—
(a)  the child’s name; and
(b)  the reason the child is to be taken outside the premises; and
(c)  the date the child is to be taken on the excursion (unless the authorisation is for a regular outing); and
(d)  a description of the proposed destination for the excursion; and
(e)  the method of transport to be used for the excursion; and
(f)  the proposed activities to be undertaken by the child during the excursion; and
(g)  the period the child will be away from the premises; and
(h)  the anticipated number of children likely to be attending the excursion; and
(i)  the anticipated ratio of educators attending the excursion to the anticipated number of children attending the excursion; and
(j)  the anticipated number of staff members and any other adults who will accompany and supervise the children on the excursion; and
(k)  that a risk assessment has been prepared and is available at the service.
(5) If the excursion is a regular outing, the authorisation is only required to be obtained once in a 12 month period.

Part 4.3 Physical environment

Division 1 Centre-based services and family day care services

103 Premises, furniture and equipment to be safe, clean and in good repair

(1) The approved provider of an education and care service must ensure that the education and care service premises and all equipment and furniture used in providing the education and care service are safe, clean and in good repair.
Penalty: $2000.
(2) This regulation does not apply to a part of a family day care residence that is not used to provide a family day care service.
Note—
A compliance direction may be issued for failure to comply with this regulation.

104 Fencing

(1) The approved provider of an education and care service must ensure that any outdoor space used by children at the education and care service premises is enclosed by a fence or barrier that is of a height and design that children preschool age or under cannot go through, over or under it.
Penalty: $2000.
(2) This regulation does not apply to a centre-based service that primarily provides education and care to children over preschool age.
(3) This regulation does not apply in respect of a family day care residence or a family day care venue if all the children being educated and cared for at that residence or venue as part of a family day care service are over preschool age.
Note—
A compliance direction may be issued for failure to comply with this regulation.

105 Furniture, materials and equipment

The approved provider of an education and care service must ensure that each child being educated and cared for by the education and care service has access to sufficient furniture, materials and developmentally appropriate equipment suitable for the education and care of that child.
Note—
A compliance direction may be issued for failure to comply with this regulation.

106 Laundry and hygiene facilities

(1) The approved provider of an education and care service must ensure that the service has—
(a) laundry facilities or access to laundry facilities; or
(b) other arrangements for dealing with soiled clothing, nappies and linen, including hygienic facilities for storage prior to their disposal or laundering—
that are adequate and appropriate for the needs of the service.
(2) The approved provider of the service must ensure that laundry and hygienic facilities are located and maintained in a way that does not pose a risk to children.
Note—
A compliance direction may be issued for failure to comply with subregulation (1) or (2).

107 Space requirements—indoor space

(1) This regulation does not apply in respect of a family day care residence.
(2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 3.25 square metres of unencumbered indoor space.
Penalty: $2000.
(3) In calculating the area of unencumbered indoor space—
(a)  the following areas are to be excluded—
(i)  any passageway or thoroughfare (including door swings);
(ii)  any toilet and hygiene facilities;
(iii)  any nappy changing area or area for preparing bottles;
(iv)  any area permanently set aside for the use or storage of cots;
(v)  any area permanently set aside for storage;
(vi)  any area or room for staff or administration;
(vii)  any other space that is not suitable for children;
(b)  the area of a kitchen is to be excluded, unless the kitchen is primarily to be used by children as part of an educational program provided by the service.
(4) The area of a verandah may be included in calculating the area of indoor space only with the written approval of the Regulatory Authority.
(5) A verandah that is included in calculating the area of outdoor space cannot be included in calculating the area of indoor space.
(6) In this regulation a reference to a child does not include—
(a)  a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5); or
(b)  an additional child being educated or cared for in exceptional circumstances as set out in regulation 124(5) and (6).
Note—
A compliance direction may be issued for failure to comply with subregulation (2).

108 Space requirements—outdoor space

(1) This regulation does not apply in respect of a family day care residence.
(2) The approved provider of an education and care service must ensure that, for each child being educated and cared for by the service, the education and care service premises has at least 7 square metres of unencumbered outdoor space.
Penalty: $2000.
(3) In calculating the area of unencumbered outdoor space required, the following areas are to be excluded—
(a)  any pathway or thoroughfare, except where used by children as part of the education and care program;
(b)  any car parking area;
(c)  any storage shed or other storage area;
(d)  any other space that is not suitable for children.
(4) A verandah that is included in calculating the area of indoor space cannot be included in calculating the area of outdoor space.
(5) An area of unencumbered indoor space may be included in calculating the outdoor space of a service that provides education and care to children over preschool age if—
(a)  the Regulatory Authority has given written approval; and
(b)  that indoor space has not been included in calculating the indoor space under regulation 107.
(6) In this regulation a reference to a child does not include—
(a)  a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5); or
(b)  an additional child being educated or cared for in exceptional circumstances as set out in regulation 124(5) and (6).
Note—
A compliance direction may be issued for failure to comply with subregulation (2).

109 Toilet and hygiene facilities

The approved provider of an education and care service must ensure that—
(a) adequate, developmentally and age-appropriate toilet, washing and drying facilities are provided for use by children being educated and cared for by the service; and
(b) the location and design of the toilet, washing and drying facilities enable safe use and convenient access by the children.

110 Ventilation and natural light

The approved provider of an education and care service must ensure that the indoor spaces used by children at the education and care service premises—
(a)  are well ventilated; and
(b)  have adequate natural light; and
(c)  are maintained at a temperature that ensures the safety and wellbeing of children.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Division 2 Additional requirements for centre-based services

111 Administrative space

The approved provider of a centre-based service must ensure that an adequate area or areas are available at the education and care service premises for the purposes of—
(a)  conducting the administrative functions of the service; and
(b)  consulting with parents of children; and
(c)  conducting private conversations.
Note—
A compliance direction may be issued for failure to comply with this regulation.

112 Nappy change facilities

(1) This regulation applies if a centre-based service educates and cares for children who wear nappies.
(2) The approved provider of the service must ensure that adequate and appropriate hygienic facilities are provided for nappy changing.
(3) Without limiting subregulation (2), the approved provider of the service must ensure that the following are provided—
(a) if any of the children are under 3 years of age, at least 1 properly constructed nappy changing bench; and
(b) hand cleansing facilities for adults in the immediate vicinity of the nappy change area.
Penalty: $1000.
(4) The approved provider of the service must ensure that nappy change facilities are designed, located and maintained in a way that prevents unsupervised access by children.
Note—
A compliance direction may be issued for failure to comply with subregulation (3).

113 Outdoor space—natural environment

The approved provider of a centre-based service must ensure that the outdoor spaces provided at the education and care service premises allow children to explore and experience the natural environment.
Example—
The use of natural features such as trees, sand and natural vegetation.
Note—
A compliance direction may be issued for failure to comply with this regulation.

114 Outdoor space—shade

The approved provider of a centre-based service must ensure that outdoor spaces provided at the education and care service premises include adequate shaded areas to protect children from overexposure to ultraviolet radiation from the sun.
Penalty: $1000.
Note—
A compliance direction may be issued for failure to comply with this regulation.

115 Premises designed to facilitate supervision

The approved provider of a centre-based service must ensure that the education and care service premises (including toilets and nappy change facilities) are designed and maintained in a way that facilitates supervision of children at all times that they are being educated and cared for by the service, having regard to the need to maintain the rights and dignity of the children.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Division 3 Additional provisions for family day care services

116 Assessments of family day care residences and approved family day care venues

(1) The approved provider of a family day care service must conduct an assessment (including a risk assessment) of each residence and approved family day care venue of the service—
(a)  before education and care is provided to children at the residence or venue as part of the service; and
(b)  at least annually—
to ensure that the health, safety and wellbeing of children being educated and cared for by the service are protected.
Penalty: $2000.
(2) The following matters must be considered as part of an assessment—
(a)  the matters relating to family day care services in Division 1 and regulation 117;
(b)  the suitability of the residence (and areas within the residence) or venue according to the number, ages and abilities of children attending, or likely to attend, the service at the residence or venue;
(c)  the suitability of nappy change arrangements for children attending, or likely to attend, the service at the residence or venue, who wear nappies;
(d)  the existence of any water hazards, water features or swimming pool at or near the residence or venue;
(e)  the risk posed by any animals at the residence or venue.
(3) The approved provider of a family day care service must require each family day care educator educating and caring for children at a residence or approved family day care venue as part of the service to advise the provider of—
(a)  any proposed renovations to the residence or venue; and
(b)  any changes relating to the residence or venue affecting any of the matters set out in subregulation (2); and
(c)  any other changes to the residence or venue that will affect the education and care provided to children at the service.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

117 Glass

(1) The approved provider of a family day care service must ensure that any glazed area of a residence or approved family day care venue of the service complies with subregulation (2) if the area—
(a)  is accessible to children; and
(b)  either—
(i)  is of or below the height above floor level, specified by AS 1288-2006Glass in buildings—Selection and installation, approved on behalf of the Council of Standards Australia, published on 16 January 2006, incorporating Amendments Nos 1 and 2; or
Note—
The height above floor level specified in subparagraph (i) does not apply in Western Australia. The applicable height above floor level is 1 metre—see regulation 117(1)(b) of the Education and Care Services National Regulations 2012 of Western Australia.
(ii)  if the residence or family day care venue was approved before 1 June 2014, is 0.75 metres or less above floor level.
(2) The glazed area must be—
(a)  glazed with safety glass, if the Building Code of Australia requires this; or
(b)  in any other case—
(i)  treated with a product that prevents glass from shattering if broken; or
(ii)  guarded by barriers that prevent a child from striking or falling against the glass.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Part 4.4 Staffing arrangements

Division 1 Educational leader

118 Educational leader

The approved provider of an education and care service must designate, in writing, a suitably qualified and experienced educator, co-ordinator or other individual as educational leader at the service to lead the development and implementation of educational programs in the service.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Division 2 Age and supervision requirements

119 Family day care educator and family day care educator assistant to be at least 18 years old

The approved provider of a family day care service must ensure that any family day care educator and any family day care educator assistant engaged by or registered with the service has attained the age of 18 years.
Penalty: $1000.
Note—
A compliance direction may be issued for failure to comply with this regulation.

120 Educators who are under 18 to be supervised

The approved provider of a centre-based service must ensure that any educator at the service who is under 18 years of age—
(a) does not work alone at the service; and
(b) is adequately supervised at all times by an educator who has attained the age of 18 years.
Penalty: $1000.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Division 3 Minimum number of educators required

121 Application of Division 3

(1) This Division prescribes the minimum number of educators required to educate and care for children at an education and care service for the purposes of section 169(1) and (3) of the Law.
(2) Division 4 sets out the minimum qualifications for educators and Division 5 sets out how many educators are to be early childhood teachers.
Note—
Chapter 7 contains provisions that affect the operation of this Division in relation to particular jurisdictions.

122 Educators must be working directly with children to be included in ratios

An educator cannot be included in calculating the educator to child ratio of a centre-based service unless the educator is working directly with children at the service.

123 Educator to child ratios—centre-based services

(1) The minimum number of educators required to educate and care for children at a centre-based service is to be calculated in accordance with the following ratios—
(a)  for children from birth to 24 months of age—1 educator to 4 children;
(b)  for children over 24 months and less than 36 months of age—1 educator to 5 children;
(c)  for children aged 36 months of age or over (not including children over preschool age)—1 educator to 11 children;
(d)  for children over preschool age in a jurisdiction, the relevant ratio (if any) set out in Chapter 7 for that jurisdiction.
(2) If children being educated and cared for at a centre-based service are of mixed ages the minimum number of educators for the children must meet the requirements of subregulation (1) at all times.
(3) If an early childhood teacher is required under Division 5 to be in attendance at a centre-based service, subject to regulation 122 that teacher is counted as an educator at the service for the purposes of this regulation.
(4) If a centre-based service is required under regulation 130 or 131 to have access to an early childhood teacher for a period, subject to regulation 122 that teacher is counted as an educator at the service for the purposes of this regulation.
(5) In subregulations (1) and (2) a reference to children does not include a child who is, or 2 or more children from the same family who are, educated and cared for at a centre-based service in an emergency for a period of not more than 2 consecutive days on which the service operates.
Examples
1
A child is determined to be in need of protection under a child protection order.
2
The parent of a child needs urgent health care that prevents them caring for the child.
(6) An approved provider of a centre-based service must not permit an additional child or additional children to be educated and cared for at the service in an emergency in the circumstances set out in subsection (5) unless the approved provider is satisfied on reasonable grounds that this will not affect the health, safety and wellbeing of all the children attending the service.
Note—
The Education and Care Services National Regulations 2012 of Western Australia include an extra subregulation before subregulation (1) as follows—

“(1A) In this regulation—
emergency, in relation to a child, means a serious and unexpected short term care emergency that requires the child to be provided with immediate education and care.
Examples—
1
A child is determined to be in need of protection under a child protection order.
2
The parent of a child needs urgent health care that prevents them caring for the child.”.

124 Number of children who can be educated and cared for—family day care educator

(1) A family day care educator must not educate and care for more than 7 children at a family day care residence or approved family day care venue at any one time.
(2) In determining the number of children who can be educated and cared for by a family day care educator for the purposes of subregulation (1)—
(a)  no more than 4 can be preschool age or under; and
(b)  if the children are being educated and cared for at a residence, the educator’s own children and any other children at the residence are to be taken into account if—
(i)  those children are under 13 years of age; and
(ii)  there is no other adult present and caring for the children.
(3) No more than 7 children can be educated and cared for as part of a family day care service at a family day care residence or an approved family day care venue at any one time.
(4) Subregulation (3) does not apply to children visiting a family day care residence or an approved family day care venue as part of an excursion.
Note—
A visiting family day care educator must do a risk assessment for the excursion under regulation 100.
(5) Despite subregulations (1) to (4), the approved provider of a family day care service may approve, in writing, a family day care educator to educate and care for more than 7 children, or more than 4 children who are preschool age or under, at any one time, in exceptional circumstances.
(6) For the purposes of subregulation (5), exceptional circumstances exist if—
(a)  all the children being educated and cared for by the family day care educator are siblings in the same family; or
(b)  a child to be educated and cared for is determined to be in need of protection under a child protection law and the family day care educator is determined to be the best person to educate and care for the child; or
(c)  the family day care residence or approved family day care venue is in a rural or remote area and no alternative education and care service is available.

Division 4 Educational qualifications for educators

125 Application of Division 4

This Division prescribes the educational qualifications required for—
(a) educators educating and caring for children at education and care services for the purposes of section 169(2) and (4) of the Law; and
(b) family day care co-ordinators for the purposes of section 163 of the Law.
Note—
Chapter 7 contains provisions that affect the operation of this Division in relation to particular jurisdictions.

126 Centre-based services—general educator qualifications

(1) The qualification requirements for educators at a centre-based service educating and caring for children preschool age or under are as follows—
(a)  at least 50 per cent of the educators who are required to meet the relevant educator to child ratios for the service must have, or be actively working towards, at least an approved diploma level education and care qualification; and
(b)  all other educators who are required to meet the relevant educator to child ratios for the service must have, or be actively working towards, at least an approved certificate III level education and care qualification.
(1A) The qualification requirements in subregulation (1)(b) do not apply to an educator if the educator has been employed by an approved provider on a probationary basis for not more than 3 months, at one or more centre-based services operated by the approved provider.
(1B) Subregulation (1A) does not apply in relation to New South Wales or South Australia.
(2) The qualification requirements for educators at a centre-based service educating and caring for children over preschool age in a jurisdiction are the qualification requirements (if any) set out in Chapter 7 for that jurisdiction.
(3) If Division 5 requires an early childhood teacher to be in attendance at a centre-based service, that teacher, or a person taken to be an early childhood teacher under regulation 135(1)(b), is to be counted as meeting the requirements of subregulation (1)(a).
Notes—
1
Meaning of actively working towards—see regulation 10.
2
An early childhood teacher can be included in determining the number of educators who have an approved diploma level education and care qualification if the teacher is working directly with children.

127 Family day care educator qualifications

A family day care educator must have, or be actively working towards, at least an approved certificate III level education and care qualification.

128 Family day care co-ordinator qualifications

A family day care co-ordinator must have an approved diploma level education and care qualification.

Division 5 Requirements for educators who are early childhood teachers.

129 Application of Division 5

(1) This Division prescribes requirements for access to or attendance of educators who are early childhood teachers at a centre-based service for the purposes of section 169 of the Law.
Note—
Chapter 7 contains provisions that affect the operation of this Division in relation to particular jurisdictions.
(2) This Division does not apply to a centre-based service if the main purpose of that service is to provide education and care to children over preschool age.
(3) In this Division a reference to a number of children being educated or cared for by a centre-based service does not include a child being educated or cared for in an emergency in the circumstances set out in regulation 123(5).

130 Requirement for early childhood teacher—centre-based services—fewer than 25 approved places

(1) If the approved number of places for children preschool age or under at a centre-based service is fewer than 25, the service must have access to an early childhood teacher working with the service for at least 20 per cent of the time that the service provides education and care.
(2) To comply with subregulation (1), the early childhood teacher may be working with the service by means of information communication technology.
(3) For the purposes of this regulation the period that an early childhood teacher works with a centre-based service may be calculated on a quarterly basis.

131 Requirement for early childhood teacher—centre-based services—25 or more approved places but fewer than 25 children

(1) This regulation applies if the approved number of places for children preschool age or under at a centre-based service is 25 or more but the service is educating or caring for fewer than 25 children.
(2) The service must comply with regulation 130 during any period that it educates and cares for fewer than 25 children.
Note—
Regulation 132 applies if the centre-based service provides education and care to 25 or more but less than 60 children preschool age or under.
(3) Any period that an early childhood teacher is in attendance at the service in compliance with regulation 132 may be counted towards the period of access to an early childhood teacher required by subregulation (2).

132 Requirement for early childhood teacher—centre-based services—25 to 59 children

(1) If a centre-based service provides education and care to 25 or more but less than 60 children preschool age or under on a given day, an early childhood teacher must be in attendance at the service—
(a)  for at least 6 hours on that day, if the service operates for 50 or more hours a week; or
(b)  for 60 per cent of the operating hours of the service on that day, if the service operates for less than 50 hours a week.
(2) A centre-based service is not required to comply with subregulation (1) if—
(a)  the approved number of places for children preschool age or under at the service is 25 or more but less than 60; and
(b)  the service employs or engages a full-time or full-time equivalent early childhood teacher at the service.

133 Requirement for early childhood teacher—centre-based services—60 to 80 children

(1) If a centre-based service provides education and care to 60 or more but not more than 80 children preschool age or under on a given day—
(a)  an early childhood teacher must be in attendance at the service—
(i)  for at least 6 hours on that day, if the service operates for 50 or more hours a week; or
(ii)  for 60 per cent of the operating hours of the service on that day, if the service operates for less than 50 hours a week; and
(b)  a second early childhood teacher or another suitably qualified person must be in attendance at the service—
(i)  for at least 3 hours on that day, if the service operates for 50 or more hours a week; or
(ii)  for 30 per cent of the operating hours of the service on that day, if the service operates for less than 50 hours a week.
(2) A centre-based service is not required to comply with subregulation (1) if—
(a)  the approved number of places for children preschool age or under at the service is 60 or more but not more than 80; and
(b)  the service employs or engages—
(i)  a full-time or full-time equivalent early childhood teacher at the service; and
(ii)  a second early childhood teacher or a suitably qualified person for half of the full-time or full-time equivalent hours at the service.

134 Requirement for early childhood teacher—centre-based services—more than 80 children

(1) If a centre-based service provides education and care to more than 80 children preschool age or under on a given day—
(a)  an early childhood teacher must be in attendance at the service—
(i)  for at least 6 hours on that day, if the service operates for 50 or more hours a week; or
(ii)  for 60 per cent of the operating hours of the service on that day, if the service operates for less than 50 hours a week; and
(b)  a second early childhood teacher or another suitably qualified person must be in attendance at the service—
(i)  for at least 6 hours on that day, if the service operates for 50 or more hours a week; or
(ii)  for 60 per cent of the operating hours of the service on that day, if the service operates for less than 50 hours a week.
(2) A centre-based service is not required to comply with subregulation (1) if—
(a)  the approved number of places for children preschool age or under at a centre-based service is more than 80; and
(b)  the service employs or engages—
(i)  a full-time or full-time equivalent early childhood teacher at the service; and
(ii)  a second full-time or full-time equivalent early childhood teacher or suitably qualified person.

135 Early childhood teacher illness or absence

(1) If an early childhood teacher is absent from the education and care service because of short-term illness or leave, the following persons may be taken for the purposes of regulations 132(1), 133(1) and 134(1) to be an early childhood teacher during that absence—
(a) a person who holds an approved diploma level education and care qualification;
(b) a person who holds a qualification in primary teaching.
(2) To avoid doubt, subregulation (1) does not apply in case of a period of leave exceeding 12 weeks.

Division 6 First aid qualifications

136 First aid qualifications

(1) The approved provider of a centre-based service must ensure that the following persons are in attendance at any place where children are being educated and cared for by the service, and immediately available in an emergency, at all times that children are being educated and cared for by the service—
(a)  at least one educator who holds a current approved first aid qualification;
(b)  at least one educator who has undertaken current approved anaphylaxis management training;
(c)  at least one educator who has undertaken current approved emergency asthma management training.
Penalty: $2000.
(2) If children are being educated and cared for at service premises on the site of a school, it is sufficient for the purposes of subregulation (1) if the following are in attendance at the school site and immediately available in an emergency—
(a)  an educator referred to in subregulation (1)(a) or at least one staff member of the school who holds a current approved first aid qualification;
(b)  an educator referred to in subregulation (1)(b) or at least one staff member of the school who has undertaken current approved anaphylaxis management training;
(c)  an educator referred to in subregulation (1)(c) or at least one staff member of the school who has undertaken current approved emergency asthma management training.
(3) The approved provider of a family day care service must ensure that each family day care educator and family day care educator assistant engaged by or registered with the service—
(a)  holds a current approved first aid qualification; and
(b)  has undertaken current approved anaphylaxis management training; and
(c)  has undertaken current approved emergency asthma management training.
Penalty: $2000.
(4) The same person may hold one or more of the qualifications set out in subregulation (1).
(5) In this regulation—
approved anaphylaxis management training means anaphylaxis management training approved by the National Authority in accordance with Division 7;
approved emergency asthma management training means emergency asthma management training approved by the National Authority in accordance with Division 7;
approved first aid qualification means a qualification that—
(a)  includes training in the following that relates to and is appropriate to children—
(i)  emergency life support and cardio-pulmonary resuscitation;
(ii)  convulsions;
(iii)  poisoning;
(iv)  respiratory difficulties;
(v)  management of severe bleeding;
(vi)  injury and basic wound care;
(vii)  administration of an auto-immune adrenalin device; and
(b)  has been approved by the National Authority in accordance with Division 7.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

Division 7 Approval and determination of qualifications

137 Approval of qualifications

(1) The National Authority must publish on its website lists of qualifications it has approved for the purposes of the Law including—
(a)  a list of approved early childhood teaching qualifications; and
(b)  a list of approved diploma level education and care qualifications; and
(c)  a list of approved certificate III level education and care qualifications; and
(d)  a list of approved qualifications for suitably qualified persons; and
(e)  a list of approved first aid qualifications and anaphylaxis management and emergency asthma management training.
(2) The National Authority must also publish on its website lists of qualifications it has approved for the purposes of Chapter 7 including—
(a)  a list of former qualifications approved as any of the following—
(i)  early childhood teaching qualifications;
(ii)  diploma level education and care qualifications;
(iii)  certificate III level education and care qualifications; and
(b)  for Queensland, a list of former qualifications approved as either of the following—
(i)  diploma level education and care qualifications;
(ii)  certificate III level education and care qualifications; and
(c)  a list of qualifications for working with children over preschool age for each participating jurisdiction; and
(d)  a list of qualifications and former qualifications for family day care coordinators in Queensland.
(3) The National Authority may publish on its website qualifications and training that it has approved as equivalent to an approved qualification or training for the purposes of the Law.
(4) The National Authority may publish on its website the following for the purposes of the definition of actively working towards a qualification—
(a)  units of approved certificate III level education and care qualifications;
(b)  the percentage of total units required for completion of an approved early childhood teaching qualification.

138 Application for qualification to be assessed for inclusion on the list of approved qualifications

(1) A person may apply to the National Authority to assess a qualification for the purpose of approving that qualification under the Law.
(2) The application must include—
(a) a detailed outline of the course of study for the qualification, including details of any supervised practicum placements and the length of the course; and
(b) the relevant fee set out in Schedule 2.

139 Application for determination of equivalent qualification

(1) An application for a determination of an equivalent qualification under section 169(7) of the Law must—
(a)  include the information set out in regulations 140, 141(1), 142 and 143; and
(b)  be accompanied by the relevant fee set out in Schedule 2.
(2) The application must also include—
(a)  a statutory declaration by the applicant that the information provided in the application is true and correct; and
(b)  the applicant’s consent to verification by the National Authority of the information provided in the application; and
(c)  any other information that the National Authority declares in guidelines is required with the application.
(3) The National Authority may accept other evidence (including by statutory declaration) of information required to be included in the application if the certified copies of that information required by regulations 142 and 143 cannot be provided.
(4) An applicant must provide any additional information about the application and documents that the National Authority reasonably requires.

140 Application for determination of an equivalent qualification

The following information is required for an application for a determination of an equivalent qualification—
(a)  the applicant’s full name;
(b)  the applicant’s contact details;
(c)  the applicant’s gender;
(d)  the applicant’s date of birth;
(e)  if the applicant is currently engaged with or employed by an education and care service, the following information—
(i)  the name and address of the service;
(ii)  the position the applicant is currently working in;
(iii)  the length of time the applicant has been with the service;
(f)  if the applicant is not an Australian citizen, the applicant’s visa or residency status in Australia (or both);
(g)  in relation to the qualification for which the applicant seeks a determination—
(i)  the name of the qualification; and
(ii)  the full name and location (city, state and country) of the educational institution that awarded the qualification; and
(iii)  if the applicant studied for the qualification at an educational institution different to the institution that awarded the qualification, the full name and location (city, state and country) of that institution; and
(iv)  the years the applicant commenced and completed study for the qualification; and
(v)  whether the study for the qualification was completed on a full-time or part-time basis (or both); and
(vi)  the length of study required to complete the qualification on a full-time basis; and
(vii)  a summary of the major areas of study in the qualification, including the areas of study that relate to early childhood years and a description of how they are so related;
(h)  details of any other course or study undertaken by the applicant that was a prerequisite for admission to study for the qualification or formed a credit towards the qualification (for example, a relevant course undertaken during secondary or vocational schooling);
(i)  primary documentation (or a statutory declaration if primary documentation is not available) of any supervised practicum placements undertaken during study for the qualification, including the following details—
(i)  the name and location of the practicum centre;
(ii)  the duration of the placement;
(iii)  the setting of the placement, including (where practicable) the ages of children worked with during the placement;
(iv)  the ages of children at the placement;
(v)  the year the placement was completed;
(vi)  evidence of the successful completion of the placement;
(j)  a summary of the applicant’s education, other than the qualification that is to be determined, including—
(i)  the age, grade levels and years the applicant started and completed—
(A)  secondary schooling; and
(B)  any relevant tertiary education; and
(C)  any relevant vocational schooling; and
(ii)  the full name and location (city, state and country) of each educational institution attended by the applicant for secondary schooling and any relevant tertiary and vocational schooling.

141 Additional information for application for determination of equivalent qualification

(1) The following documents must also be provided with an application for determination of an equivalent qualification—
(a)  a certified copy of the applicant’s qualifications, including—
(i)  the qualification to be determined; and
(ii)  any other qualifications that were a prerequisite for, or formed a credit towards completion of, the qualification that is to be determined;
(b)  a certified copy of the transcript of academic record of the applicant for—
(i)  the qualification that is to be determined; and
(ii)  the applicant’s primary and secondary schooling (where it is practicable to do so); and
(iii)  any other relevant tertiary education; and
(iv)  any other relevant vocational schooling; and
(v)  any other course that was a prerequisite for, or formed a credit towards completion of, the qualification that is to be determined;
(c)    (Repealed)
(d)  proof of the applicant’s identity;
(e)  a certified copy of evidence of any name change of the applicant since the qualification was obtained.
(2) If the qualification was awarded, or the educational institution was attended, in a country other than Australia, the applicant must, at the request of the National Authority, give the National Authority a certification of the Australian Qualification Framework level of the qualification from—
(a)  the Australian Education International-National Office of Overseas Skills Recognition, located in the Department of Education, Employment and Workplace Relations of the Commonwealth; or
(b)  Trades Recognition Australia, located in the Department of Education, Employment and Workplace Relations of the Commonwealth; or
Note—
Western Australia has replaced paragraph (b) with the following—

“(b)  Trades Recognition Australia, located in the Department of Industry of the Commonwealth; or”.
See regulation 141(2)(b) of the Education and Care Services National Regulations 2012 of Western Australia.
(c)  an overseas qualification unit, or other unit responsible for recognising overseas qualifications, of the State or Territory where the applicant resides.

142 Translations of documents

Certified copies of Australian Government or other official translations of the documents referred to in regulations 140 and 141 are required if the originals are in a language other than English (in addition to the copies of the originals).

143 Certification of documents

The documents set out in regulations 140 and 141 that are required to be provided with the application or otherwise to the National Authority must be certified as a copy of the original by—
(a)  the institution that originally issued the documents; or
(b)  a justice of the peace; or
(c)  a person authorised under the legislation of the participating jurisdiction to witness or take statutory declarations; or
(d)  a person accredited as a translator who is employed by an Australian overseas diplomatic mission; or
(e)  a person accredited as a translator and interpreter by the National Accreditation Authority for Translators and Interpreters Limited A.C.N. 008 596 996.

Division 8 Family day care educator assistant

144 Family day care educator assistant

(1) An approved provider of a family day care service may approve a person to assist a family day care educator in providing education and care to children as part of a family day care service in the circumstances set out in subregulation (2).
(2) An approved family day care educator assistant may assist the family day care educator by—
(a)  in the absence of the family day care educator, transporting a child between the family day care residence or approved family day care venue and—
(i)  a school; or
(ii)  another education and care service or children’s service; or
(iii)  the child’s home; and
(b)  providing education and care to a child, in the absence of the family day care educator, in emergency situations, including when the educator requires urgent medical care or treatment; and
(c)  providing education and care to a child, in the absence of the family day care educator to attend an appointment (other than a regular appointment), if—
(i)  the absence is for less than 4 hours; and
(ii)  the approved provider of the family day care service has approved that absence; and
(iii)  notice of that absence has been given to the parents of the child; and
(d)  providing assistance to the educator while the educator is educating and caring for children as part of a family day care service.
(3) An approved provider must not approve a person under subregulation (1) unless the family day care educator provides the written consent of a parent of each child being educated and cared for by the educator to the use of the assistant in the circumstances set out in subregulation (2).

Division 9 Staff and educator records—centre-based services

145 Staff record

(1) The approved provider of a centre-based service must ensure that a staff record is kept for that service in accordance with this Division.
(2) The staff record must include—
(a)  the information about nominated supervisors set out in regulation 146; and
(b)  the information about staff members set out in regulation 147; and
(c)  the information about the educational leader set out in regulation 148; and
(d)  the information about volunteers set out in regulation 149(1).
Note—
Other records are also required to be kept by the approved provider under this Division.

146 Nominated supervisor

The staff record must include the following information in relation to the nominated supervisor—
(a)  the full name, address and date of birth of the nominated supervisor;
(b)  evidence—
(i)  of any relevant qualifications held by the supervisor; or
(ii)  if applicable, that the supervisor is actively working towards that qualification as provided under regulation 10;
(c)  evidence of any approved training (including first aid training) completed by the supervisor;
(d)  if the education and care service is located in a jurisdiction with a working with children law or a working with vulnerable people law, a record of the identifying number of the current check conducted under that law and the expiry date of that check, if applicable, unless paragraph (e) applies;
(e)  if the nominated supervisor has provided proof as permitted by regulation 46 of the supervisor’s current teacher registration under an education law of a participating jurisdiction, a record of the identifying number of the teacher registration and the expiry date of that registration;
(f)  in relation to Tasmania, a record of the identifying number of the nominated supervisor’s safety screening clearance or working with vulnerable people registration and the expiry date of that clearance or registration.

147 Staff members

The staff record must include the following information in relation to staff members—
(a)  the full name, address and date of birth of the staff member;
(b)  evidence—
(i)  of any relevant qualifications held by the staff member; or
(ii)  if applicable, that the staff member is actively working towards that qualification as provided under regulation 10;
(c)  evidence of any approved training (including first aid training) completed by the staff member;
(d)  if the education and care service is located in a jurisdiction with a working with children law or a working with vulnerable people law, a record of the identifying number of the current check conducted under that law and the expiry date of that check, if applicable, unless paragraph (e) applies;
(e)  except in the case of New South Wales, Queensland and Tasmania, if the staff member has provided proof of the staff member’s current teacher registration under an education law of a participating jurisdiction, a record of the identifying number of the teacher registration and the expiry date of that registration;
(f)  in relation to Tasmania, a record of the identifying number of the staff member’s safety screening clearance or working with vulnerable people registration and the expiry date of that clearance or registration.

148 Educational leader

The staff record must include the name of the person designated as the educational leader in accordance with regulation 118.

149 Volunteers and students

(1) The staff record must include the full name, address and date of birth of each student or volunteer who participates in the centre-based service.
(2) The approved provider of a centre-based service must also keep a record for each day on which the student or volunteer participates in the service, the date and the hours of participation.

150 Responsible person

The staff record must include the name of the responsible person at the centre-based service for each time that children are being educated and cared for by the service.

151 Record of educators working directly with children

The approved provider of a centre-based service must keep a record of educators working directly with children that includes the following information—
(a) the name of each educator who works directly with children being educated and cared for by the service;
(b) the hours that each educator works directly with children being educated and cared for by the service.
Example—
The record could be a staff roster or staff time sheet.

152 Record of access to early childhood teachers

(1) The approved provider of a centre-based service that provides education and care to fewer than 25 children preschool age or under must ensure that a record is kept of the following—
(a) the period that an early childhood teacher is working with the service in accordance with regulation 130 or 131(2); and
(b) the periods that the early childhood teacher is working directly with children and is not working directly with children.
(2) The approved provider of a centre-based service that provides education and care to 25 or more children preschool age or under must ensure that a record is kept of the period that an early childhood teacher is in attendance at the service.

Division 10 Register of family day care educators and records of family day care service

153 Register of family day care educators

For the purposes of section 269 of the Law, the register of family day care educators must include the following information in relation to each family day care educator engaged by or registered with the service—
(a)  the full name, address and date of birth of the educator;
(b)  the contact details of the educator;
(c)  the address of the residence or approved family day care venue where the educator will be providing education and care to children as part of the service, including a statement as to whether it is a residence or a venue;
(d)  the date that the educator was engaged by, or registered with, the service;
(e)  when applicable, the date that the educator ceased to be engaged by or registered with the service, for the period of 3 years following that date;
(f)  the days and hours when the educator will usually be providing education and care to children as part of the service;
(g)  if the educator is an approved provider, the number of the provider approval and the date the approval was granted;
(h)  if the educator is a certified supervisor, the number of the supervisor certificate and the date it was granted;
(i)  evidence—
(i)  of any relevant qualifications held by the educator; or
(ii)  if applicable, that the educator is actively working towards that qualification as provided under regulation 10;
(j)  evidence that the educator has completed—
(i)  current approved first aid training; and
(ii)  current approved anaphylaxis management training; and
(iii)  current approved emergency asthma management training;
(k)  evidence of any other training completed by the educator;
(l)  if the educator will be providing education and care to children in a jurisdiction with a working with children law or a working with vulnerable people law, a record of the identifying number of the check conducted or card issued under that law and the expiry date of that check or card (if applicable);
(m)  for each child educated and cared for by the educator as part of the family day care service—
(i)  the child’s name and date of birth; and
(ii)  the days and hours that the educator usually provides education and care to that child;
(n)  if the education and care is provided in a residence—
(i)  the full names and dates of birth of all persons aged 18 years and over who normally reside at the family day care residence;
(ii)  the full names and dates of birth of all children aged under 18 years who normally reside at the family day care residence;
(o)  a record of—
(i)  the identifying number of the working with children check, working with children card, working with vulnerable people check or criminal history record check or teacher registration of each person referred to in paragraph (n) who is required to provide the check, card, record or registration under regulation 163 and the date of expiry of that check, card or registration, if applicable; and
(ii)  the date that the check, card, record or registration was sighted by the approved provider or nominated supervisor of the service.

154 Record of staff, family day care co-ordinators and family day care educator assistants

The approved provider of a family day care service must keep a record of staff, of family day care co-ordinators engaged by the service and of family day care educator assistants approved by the service that includes—
(a)  the name of the person currently designated as the educational leader in accordance with regulation 118; and
(b)  in relation to the nominated supervisor, the information set out in regulation 146; and
(c)  in relation to each other staff member of the family day care service, the information set out in regulation 147; and
(d)  in relation to volunteers and students, the information set out in regulation 149; and
(e)  in relation to each family day care educator assistant approved by the service, the following information—
(i)  the full name, address and date of birth of the educator assistant;
(ii)  the contact details of the educator assistant;
(iii)  the name of the family day care educator to be assisted by the educator assistant;
(iv)  the date that the educator assistant was approved by the service;
(v)  when applicable, the date that the educator assistant ceased to be approved by the service, for the period of 3 years following that date;
(vi)  evidence that the educator assistant has completed first aid qualifications in accordance with regulation 136(3);
(vii)  the identifying number of the current working with children check, working with children card or working with vulnerable people check or record of criminal history or teacher registration of the educator assistant and the date of expiry of that check, card or registration, if applicable;
(viii)  the date that the check, card, record or registration was sighted by the approved provider or nominated supervisor of the family day care service.

Part 4.5 Relationships with children

155 Interactions with children

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 the children to express themselves and their opinions; and
(b)  allows the 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, and physical and intellectual development and abilities of each child being educated and cared for by the service.

156 Relationships in groups

(1) The approved provider of an education and care service must take reasonable steps to ensure that the service provides children being educated and cared for by the service with opportunities to interact and develop respectful and positive relationships with each other and with staff members of, and volunteers at, the service.
(2) For the purposes of subregulation (1), the approved provider must have regard to the size and the composition of the groups in which children are being educated and cared for by the service.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

Part 4.6 Collaborative partnerships with families and communities

157 Access for parents

(1) 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 may enter the education and care service premises at any time that the child is being educated and cared for by the service.
Penalty: $1000.
(2) The nominated supervisor of an education and care service must ensure that a parent of a child being educated and cared for by the service may enter the education and care service premises at any time that the child is being educated and cared for by the service.
Penalty: $1000.
(3) A family day care educator must not prevent a parent of a child being educated and cared for by the educator as part of a family day care service from entering the family day care residence or approved family day care venue at any time that the child is being educated and cared for by the educator.
Penalty: $1000.
(4) Despite subregulations (1) to (3), the approved provider, nominated supervisor or family day care educator is not required to allow a parent to enter the education and care service premises if—
(a)  permitting the parent’s entry would—
(i)  pose a risk to the safety of the children and staff of the education and care service; or
(ii)  conflict with any duty of the provider, supervisor or educator under the Law; or
(b)  the provider, supervisor or family day care educator reasonably believes that permitting the parent’s entry would contravene a court order.
Notes—
1
A compliance direction may be issued for failure to comply with subregulation (1).
2
Other regulations also relate to collaboration with families including requirements to give information about educational programs to parents, for parents to provide enrolment information, for information to be provided or displayed to parents and for administration areas to have adequate space for consulting with parents.

Part 4.7 Leadership and service management

Division 1 Management of services

Subdivision 1 Attendance and enrolment records

158 Children’s attendance record to be kept by approved provider

(1) The approved provider of an education and care service must ensure that a record of attendance is kept for the service that—
(a)  records the full name of each child attending the service; and
(b)  records the date and time each child arrives and departs; and
(c)  is signed by one of the following persons at the time that the child arrives and departs—
(i)  the person who delivers the child to the education and care service premises or collects the child from the education and care service premises;
(ii)  the nominated supervisor or an educator.
(2) A preschool program provided by a school is not required to comply with subregulation (1) if it keeps attendance records in accordance with the education law, or Government education department policy, of the participating jurisdiction.

159 Children’s attendance record to be kept by family day care educator

A family day care educator must keep a record of attendance that—
(a)  records the full name of each child being educated and cared for at the family day care residence or approved family day care venue; and
(b)  records the date and time each child arrives and departs; and
(c)  is signed by one of the following persons at the time that the child arrives and departs—
(i)  the person who delivers the child to the family day care residence or venue or collects the child from the family day care residence or venue;
(ii)  if the signature of the person who delivers the child cannot reasonably be obtained—the family day care educator.

160 Child enrolment records to be kept by approved provider and family day care educator

(1) The approved provider of an education and care service must ensure that an enrolment record is kept that includes the information set out in subregulation (3) for each child enrolled at the education and care service.
(2) A family day care educator must keep an enrolment record that includes the information set out in subregulation (3) for each child educated and cared for by the educator.
(3) An enrolment record must include the following information for each child—
(a)  the full name, date of birth and address of the child;
(b)  the name, address and contact details of—
(i)  each known parent of the child; and
(ii)  any person who is to be notified of an emergency involving the child if any parent of the child cannot be immediately contacted; and
(iii)  any person who is an authorised nominee; and
Note—
Authorised nominee means a person who has been given permission by a parent or family member to collect the child from the education and care service or the family day care educator. See section 170(5) of the Law.
(iv)  any person who is authorised to consent to medical treatment of, or to authorise administration of medication to, the child; and
(v)  any person who is authorised to authorise an educator to take the child outside the education and care service premises;
(c)  details of any court orders, parenting orders or parenting plans provided to the approved provider relating to powers, duties, responsibilities or authorities of any person in relation to the child or access to the child;
(d)  details of any other court orders provided to the approved provider relating to the child’s residence or the child’s contact with a parent or other person;
(e)  the gender of the child;
(f)  the language used in the child’s home;
(g)  the cultural background of the child and, if applicable, the child’s parents;
(h)  any special considerations for the child, for example any cultural, religious or dietary requirements or additional needs;
(i)  the relevant authorisations set out in regulation 161;
(j)  the relevant health information set out in regulation 162.
(4) In this regulation—
parenting order means a parenting order within the meaning of section 64B(1) of the Family Law Act 1975 of the Commonwealth;
parenting plan means a parenting plan within the meaning of section 63C(1) of the Family Law Act 1975 of the Commonwealth, and includes a registered parenting plan within the meaning of section 63C(6) of that Act.

161 Authorisations to be kept in enrolment record

(1) The authorisations to be kept in the enrolment record for each child enrolled at an education and care service are—
(a)  an authorisation, signed by a parent or a person named in the enrolment record as authorised to consent to the medical treatment of the child, for the approved provider, nominated supervisor or an educator to seek—
(i)  medical treatment for the child from a registered medical practitioner, hospital or ambulance service; and
(ii)  transportation of the child by an ambulance service; and
(b)  if relevant, an authorisation given under regulation 102 for the education and care service to take the child on regular outings.
(2) The authorisations to be kept in the enrolment record for each child educated and cared for by a family day care educator are—
(a)  an authorisation, signed by a parent or a person named in the enrolment record as authorised to consent to the medical treatment of the child, for the family day care educator to seek—
(i)  medical treatment for the child from a registered medical practitioner, hospital or ambulance service; and
(ii)  transportation of the child by an ambulance service; and
(b)  if relevant, an authorisation given under regulation 102 for the family day care educator to take the child on regular outings.

162 Health information to be kept in enrolment record

The health information to be kept in the enrolment record for each child enrolled at the education and care service is—
(a)  the name, address and telephone number of the child’s registered medical practitioner or medical service; and
(b)  if available, the child’s Medicare number; and
(c)  details of any—
(i)  specific healthcare needs of the child, including any medical condition; and
(ii)  allergies, including whether the child has been diagnosed as at risk of anaphylaxis; and
(d)  any medical management plan, anaphylaxis medical management plan or risk minimisation plan to be followed with respect to a specific healthcare need, medical condition or allergy referred to in paragraph (c); and
(e)  details of any dietary restrictions for the child; and
(f)  the immunisation status of the child; and
(g)  if the approved provider or a staff member or family day care educator has sighted a child health record for the child, a notation to that effect; and
(h)  in relation to New South Wales, certificates for immunisation or exemption for the child, as required under section 87(1), (2) and (3) of the Public Health Act 2010 of New South Wales; and
(i)  in relation to Victoria—
(i)  an immunisation status certificate within the meaning of section 147 of the Public Health and Wellbeing Act 2008 of Victoria that is issued to a child enrolled at an education and care service other than a service (or any part of a service) that is not an early childhood service as defined under the Public Health and Wellbeing Act 2008 of Victoria; or
Note
The definition of early childhood service under the Public Health and Wellbeing Act 2008 of Victoria does not include an outside school hours care service or a school holiday care service.
(ii)  details of any exemption in relation to a child under section 143C of the Public Health and Wellbeing Act 2008 of Victoria.

Subdivision 2 Residents at family day care residences and family day care educator assistants

163 Residents at family day care residence and family day care educator assistants to be fit and proper persons

(1) The approved provider of a family day care service must take reasonable steps to ensure that a person aged 18 years or over who resides at a family day care residence is a fit and proper person to be in the company of children.
Penalty: $2000.
(2) The approved provider of a family day care service must take reasonable steps to ensure that a person who is a family day care educator assistant at a family day care residence or approved family day care venue is a fit and proper person to be in the company of children.
Penalty: $2000.
(3) To comply with subregulation (1) or (2), the approved provider must assess each person in accordance with subregulation (4).
(4) Except in the case of New South Wales, Queensland, Tasmania or Victoria, the approved provider must consider one of the following in respect of the person—
(a)  a criminal history record check issued not more than 6 months before it is considered;
(b)  a current working with children check, working with children card or working with vulnerable people check issued on the basis of a criminal history record check;
(c)  a current teacher registration.
(4A) In New South Wales or Queensland, the approved provider must consider the person’s current working with children check or working with children card.
(4B) In Victoria, the approved provider must consider the person’s current working with children check or current teacher registration.
(4C) In Tasmania, the approved provider must consider the person's safety screening clearance or working with vulnerable people registration.
(5) For the purposes of subregulation (4)(b), if a person who does not hold a working with children check or working with children card—
(a)  attains the age of 18 years; and
(b)  has applied for a working with children check or working with children card—
the person is taken to hold the check or card until the application is determined.
Note—
A compliance direction may be issued for failure to comply with subregulation (1) or (2).

164 Requirement for notice of new persons at residence

The approved provider of a family day care service must require each family day care educator to notify the provider of—
(a) any new person aged 18 years or over who resides, or intends to reside, at the educator’s family day care residence; and
(b) any circumstance relating to a person who has previously been considered under regulation 163 in relation to the family day care residence that may affect whether the person is a fit and proper person to be in the company of children.
Penalty: $2000.
Note—
A compliance direction may be issued for failure to comply with this regulation.

165 Record of visitors

(1) An approved provider of a family day care service must take all reasonable steps to ensure that a record is kept of all visitors to a family day care residence or approved family day care venue while children are being educated and cared for at the residence or venue as part of that service.
(2) A family day care educator must keep a record of all visitors to a family day care residence or approved family day care venue while children are being educated and cared for by the educator at the residence or venue as part of a family day care service.
(3) The record of visitors must include the signature of the visitor and the time of the visitor’s arrival and departure.

166 Children not to be alone with visitors

(1) An approved provider of a family day care service must take all reasonable steps to ensure that a child being educated and cared for at a family day care residence or approved family day care venue as part of the service is not left alone with a visitor to the residence or venue.
Penalty: $2000.
(2) A family day care educator must not leave a child being educated and cared for by the educator at a family day care residence or approved family day care venue as part of a family day care service with a visitor to the residence or venue.
Penalty: $2000.

Subdivision 3 Record of service’s compliance

167 Record of service’s compliance

(1) Subject to subregulations (2) and (3), the record of the service’s compliance must include the following information—
(a)  details of any amendment of the service approval made by the Regulatory Authority under section 55 of the Law, including—
(i)  the reason stated by the Regulatory Authority for the amendment;
(ii)  the date on which the amendment took, or takes, effect;
(iii)  the date (if any) that the amendment ceases to have effect;
(b)  details of any suspension of the service approval (other than a voluntary suspension), including—
(i)  the reason stated by the Regulatory Authority for the suspension;
(ii)  the date on which the suspension took, or takes, effect;
(iii)  the date that the suspension ends;
(c)  details of any compliance direction or compliance notice issued to the approved provider in respect of the service, including—
(i)  the reason stated by the Regulatory Authority for issuing the direction or notice;
(ii)  the steps specified in the direction or notice;
(iii)  the date by which the steps specified must be taken.
(2) The information set out in subregulation (1) must not include any information that identifies any person other than the approved provider.
(3) Subregulation (1) does not include an amendment, suspension, compliance notice or compliance direction if—
(a)  the period for seeking internal or external review under section 191 or 193 of the Law has not yet expired; or
(b)  an application for internal or external review under section 191 or 193 of the Law has been made but not yet determined; or
(c)  an application for internal or external review under section 191 or 193 of the Law has been determined, and the amendment, suspension, compliance notice or compliance direction was not confirmed.

Division 2 Policies and procedures

168 Education and care service must have policies and procedures

(1) The approved provider of an education and care service must ensure that the service has in place policies and procedures in relation to the matters set out in subregulation (2).
Penalty: $1000.
Note—
These may include policies and procedures prepared by the approved provider in accordance with an education law of the participating jurisdiction.
(2) Policies and procedures are required in relation to the following—
(a)  health and safety, including matters relating to—
(i)  nutrition, food and beverages, dietary requirements; and
(ii)  sun protection; and
(iii)  water safety, including safety during any water-based activities; and
(iv)  the administration of first aid;
(b)  incident, injury, trauma and illness procedures complying with regulation 85;
(c)  dealing with infectious diseases, including procedures complying with regulation 88;
(d)  dealing with medical conditions in children, including the matters set out in regulation 90;
(e)  emergency and evacuation, including the matters set out in regulation 97;
(f)  delivery of children to, and collection of children from, education and care service premises, including procedures complying with regulation 99;
(g)  excursions, including procedures complying with regulations 100 to 102;
(h)  providing a child safe environment;
(i)  staffing, including—
(i)  a code of conduct for staff members; and
(ii)  determining the responsible person present at the service; and
(iii)  the participation of volunteers and students on practicum placements;
(j)  interactions with children, including the matters set out in regulations 155 and 156;
(k)  enrolment and orientation;
(l)  governance and management of the service, including confidentiality of records;
(m)  the acceptance and refusal of authorisations;
(n)  payment of fees and provision of a statement of fees charged by the education and care service;
(o)  dealing with complaints.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

169 Additional policies and procedures—family day care service

(1) In addition to the policies and procedures set out in regulation 168, the approved provider of a family day care service must ensure that the family day care service has in place policies and procedures in relation to the matters set out in subregulation (2).
Penalty: $1000.
(2) Policies and procedures are required in relation to the following—
(a)  assessment and approval and reassessment of approved family day care venues and family day care residences, including matters to meet the requirements of regulation 116;
(b)  engagement or registration of family day care educators;
(c)  keeping of a register of family day care educators under regulation 153;
(d)  monitoring, support and supervision of family day care educators, including how the service will manage educators at remote locations;
(e)  assessment of family day care educators, family day care educator assistants and persons residing at family day care residences, including the matters required under regulation 163;
(f)  visitors to family day care residences and venues while education and care is being provided to children as part of a family day care service;
(g)  the provision of information, assistance and training to family day care educators;
(h)  the engagement or registration of family day care educator assistants.
Note—
A compliance direction may be issued for failure to comply with subregulation (1).

170 Policies and procedures to be followed

(1) 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.
Penalty: $1000.
(2) The approved provider of a family day care service must take reasonable steps to ensure that the nominated supervisor and staff members of, and family day care educators engaged by or registered with, the service follow the policies and procedures required under regulations 168 and 169.
Penalty: $1000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1) or (2).

171 Policies and procedures to be kept available

(1) The approved provider of an education and care service must ensure that copies of the current policies and procedures required under regulation 168 and, in the case of a family day care service, regulation 169 are readily accessible to the nominated supervisor, staff members of, volunteers at, and family day care educators engaged by or registered with, the service.
Penalty: $1000.
(2) The approved provider of an education and care service must ensure that copies of the current policies and procedures required under regulation 168 and, in the case of a family day care service, regulation 169 are available for inspection at the education and care service premises at all times that the service is educating and caring for children or otherwise on request.
Penalty: $1000.
Note—
A compliance direction may be issued for failure to comply with subregulation (1) or (2).

172 Notification of change to policies or procedures

(1) Subject to subregulation (3), the approved provider of an education and care service must ensure that parents of children enrolled at the service are notified at least 14 days before making any change to a policy or procedure referred to in regulation 168 or 169 that may have a significant impact on—
(a) the service’s provision of education and care to any child enrolled at the service; or
(b) the family’s ability to utilise the service.
(2) The approved provider of an education and care service must ensure that parents of children enrolled at the service are notified at least 14 days before making any change that will affect the fees charged or the way in which fees are collected.
(3) If the approved provider considers that the notice period would pose a risk to the safety, health or wellbeing of any child enrolled at the service, the approved provider must ensure that parents of children enrolled at the service are notified as soon as practicable after making a change referred to in subregulation (1).
Note—
A compliance direction may be issued for failure to comply with subregulation (1)(b).

Division 3 Information and record-keeping requirements

Subdivision 1 Display and reporting of prescribed information

173 Prescribed information to be displayed

(1) For the purposes of section 172 of the Law, the following information is prescribed in respect of the matters in paragraphs (a) to (e) of that section—
(a)  in relation to the provider approval—
(i)  the name of the approved provider;
(ii)  the provider approval number;
(iii)  any conditions on the provider approval;
(b)  in relation to the service approval—
(i)  the name of the education and care service;
(ii)  the service approval number;
(iii)  any conditions on the service approval;
(c)  in relation to the nominated supervisor or the prescribed class of persons to which the nominated supervisor belongs—
(i)  the name of the nominated supervisor; or
(ii)  if the nominated supervisor is a member of a prescribed class, the class;
(d)  in relation to the rating of the service—
(i)  the current rating levels for each quality area stated in the National Quality Standard; and
(ii)  the overall rating of the service;
(e)  in relation to any service waivers or temporary waivers held by the service, the details of the waivers including—
(i)  the elements of the National Quality Standard and the regulations that have been waived; and
(ii)  the duration of the waiver; and
(iii)  whether the waiver is a service waiver or a temporary waiver.
(2) For the purposes of section 172(f) of the Law, the following matters and information are prescribed—
(a)  the hours and days of operation of the education and care service;
(b)  the name and telephone number of the person at the education and care service to whom complaints may be addressed;
(c)  except in the case of a family day care residence or approved family day care venue, the name and position of the responsible person in charge of the education and care service at any given time;
(d)  the name of the educational leader at the service;
(e)  the contact details of the Regulatory Authority;
(f)  if applicable, a notice stating that a child who has been diagnosed as at risk of anaphylaxis is enrolled at the education and care service;
(g)  if applicable, a notice of an occurrence of an infectious disease at the education and care service.

174 Time to notify certain circumstances to Regulatory Authority

(1) For the purposes of section 173(3) of the Law, a notice must be provided within 14 days of the relevant event or within 14 days of the approved provider becoming aware of the relevant event.
(2) For the purposes of section 173(4) of the Law, a notice must be provided—
(a) in the case of a notice under section 173(2)(f), within the period referred to in section 59 of the Law;
(b) in any other case, within 7 days of the relevant event or within 7 days of the approved provider becoming aware of the relevant event.

175 Prescribed information to be notified to Regulatory Authority

(1) For the purposes of section 174(1)(b) of the Law, the following matters are prescribed—
(a)  any change to the address of the approved provider or the principal office of the approved provider, or the contact details of the approved provider;
(b)  the appointment of receivers or liquidators or administrators to the approved provider or any other matters that affect the financial viability and ongoing operation of the education and care service.
(2) For the purposes of section 174(2)(c) of the Law, the following matters are prescribed—
(a)  any change to the hours and days of operation of the education and care service;
(b)  any incident that requires the approved provider to close, or reduce the number of children attending, the education and care service for a period;
Example—
A flood or a fire that requires an approved provider to close the education and care service premises (or part of those premises) while repairs are undertaken.
(c)  any circumstance arising at the service that poses a risk to the health, safety or wellbeing of a child or children attending the service;
(ca)  the attendance at the approved education and care service of any additional child or children being educated and cared for in an emergency in the circumstances set out in regulation 123(5), including—
(i)  a description of the emergency; and
(ii)  a statement by the approved provider that the approved provider had taken into account the safety, health and wellbeing of all the children attending the education and care service when deciding to provide education and care to the additional child or children.
(d)  in the case of a family day care service, any change to the State or Territory in which the family day care service operates;
(e)  in the case of a family day care service, if a new approved family day care venue is added to the service.

176 Time to notify certain information to Regulatory Authority

(1) For the purposes of section 174(3) of the Law, a notice must be provided within 7 days of the relevant event or within 7 days of the approved provider becoming aware of the relevant information.
(2) For the purposes of section 174(4) of the Law, a notice must be provided—
(a)  in the case of a notice under section 174(2)(a)—
(i)  in the case of the death of a child, as soon as practicable but within 24 hours of the death, or the time that the person becomes aware of the death; and
(ii)  in the case of any other serious incident, within 24 hours of the incident or the time that the person becomes aware of the incident;
(b)  in case of a notice under section 174(2)(b) or a notice of a matter referred to in regulation 175(2)(b), within 24 hours of the complaint or incident;
(ba)  in the case of a notice under regulation 175(2)(ca), within 24 hours of the commencement of the attendance of the child or children at the education and care service;
(c)  in any other case, within 7 days of the relevant event or within 7 days of the approved provider becoming aware of the relevant information.

Subdivision 2 Prescribed records

177 Prescribed enrolment and other documents to be kept by approved provider

(1) For the purposes of section 175(1) of the Law, the following documents are prescribed in relation to each education and care service operated by the approved provider—
(a)  the documentation of child assessments or evaluations for delivery of the educational program as set out in regulation 74;
(b)  an incident, injury, trauma and illness record as set out in regulation 87;
(c)  a medication record as set out in regulation 92;
(d)  a record of assessments of family day care residences and approved family day care venues conducted under regulation 116;
(e)  in the case of a centre-based service, a staff record as set out in regulation 145;
(f)  a record of volunteers and students as set out in regulation 149;
(g)  the records of the responsible person at the service as set out in regulation 150;
(h)  in the case of a centre-based service, a record of educators working directly with children as set out in regulation 151;
(i)  a record of access to early childhood teachers as set out in regulation 152;
(j)  in the case of a family day care service, a record of staff, family day care co-ordinators engaged by the service and family day care educator assistants approved by the service, kept under regulation 154;
(k)  a children’s attendance record as set out in regulation 158;
(l)  child enrolment records as set out in regulation 160;
(m)  a record of the service’s compliance with the Law as set out in regulation 167;
(n)  a record of certified supervisors placed in day to day charge of the education and care service under section 162 of the Law.
Note—
Western Australia includes an extra paragraph after paragraph (d) as follows—

“(da)  a record of a decision about a child, that affects educator to child ratios at a centre-based service, made under regulation 123(7);”.
See regulation 177(1)(da) of the Education and Care Services National Regulations 2012 of Western Australia.
(2) The approved provider of the education and care service must take reasonable steps to ensure the documents referred to in subregulation (1) are accurate.
Penalty: $2000.
(3) Subject to Subdivision 4, the approved provider of the education and care service must ensure that—
(a)  subject to subregulation (4), the documents referred to in subregulation (1) in relation to a child enrolled at the service are made available to a parent of the child on request;
(b)  the record of compliance referred to in subregulation (1)(m) is able to be accessed on request by any person.
Penalty: $2000.
(4) If a parent’s access to information of the kind in the documents referred to in subregulation (1) is limited by an order of a court, the approved provider must refer to the court order in relation to the release of information concerning the child to that parent.
(5) An approved provider of a family day care service is not required to keep a document set out in subregulation (1) if an equivalent record is kept by a family day care educator under regulation 178.
Note—
A compliance direction may be issued for failure to comply with subregulation (2) or (3).

178 Prescribed enrolment and other documents to be kept by family day care educator

(1) For the purposes of section 175(3) of the Law, the following documents are prescribed in relation to each child educated and cared for by the family day care educator as part of a family day care service—
(a)  the documentation of child assessments or evaluations for delivery of the educational program as set out in regulation 74;
(b)  an incident, injury, trauma and illness record as set out in regulation 87;
(c)  a medication record as set out in regulation 92;
(d)  a children’s attendance record as set out in regulation 159;
(e)  child enrolment records as set out in regulation 160;
(f)  a record of visitors to the family day care residence or approved family day care venue as set out in regulation 165.
(2) The family day care educator must take reasonable steps to ensure the documents referred to in subregulation (1) are accurate.
Penalty: $2000.
(3) Subject to Subdivision 4 and subregulation (4), the family day care educator must ensure that the documents referred to in subregulation (1) in relation to a child enrolled at the service are made available to a parent of the child on request.
Penalty: $2000.
(4) If a parent’s access to information of the kind in the documents referred to in subregulation (1) is limited by an order of a court, the family day care educator must refer to the court order in relation to the release of information concerning the child to that parent.

179 Family day care educator to provide documents on leaving service

A family day care educator must provide all documents referred to in regulation 178(1) to the approved provider of the family day care service on ceasing to be engaged by or registered with the service.

Subdivision 3 Insurance information

180 Evidence of prescribed insurance

(1) The approved provider of an education and care service must keep evidence of the current prescribed insurance at the education and care service premises, or in the case of a family day care service, at the principal office of the service, and must make the evidence available for inspection by the Regulatory Authority or an authorised officer under the Law.
(2) A family day care educator must keep evidence of the educator’s current public liability insurance at the family day care residence or family day care venue and must make the evidence available for inspection by the Regulatory Authority or an authorised officer under the Law.
(3) Subregulation (1) does not apply if the prescribed insurance for the education and care service is a policy of insurance or an indemnity provided by the Government of a State or Territory.

Subdivision 4 Confidentiality and storage of records

181 Confidentiality of records kept by approved provider

The approved provider of an education and care service must ensure that information kept in a record under these Regulations is not divulged or communicated, directly or indirectly, to another person other than—
(a)  to the extent necessary for the education and care or medical treatment of the child to whom the information relates; or
(b)  a parent of the child to whom the information relates, except in the case of information kept in a staff record; or
(c)  the Regulatory Authority or an authorised officer; or
(d)  as expressly authorised, permitted or required to be given by or under any Act or law; or
(e)  with the written consent of the person who provided the information.
Penalty: $2000.

182 Confidentiality of records kept by family day care educator

A family day care educator must ensure that information kept in a record under these Regulations is not divulged or communicated, directly or indirectly, to another person other than—
(a)  to the extent necessary for the education and care or medical treatment of the child to whom the information relates; or
(b)  a parent of the child to whom the information relates; or
(c)  the approved provider or nominated supervisor of the family day care service; or
(d)  the Regulatory Authority or an authorised officer; or
(e)  as expressly authorised, permitted or required to be given by or under any Act or law; or
(f)  with the written consent of the person who provided the information.
Penalty: $2000.

183 Storage of records and other documents

(1) The approved provider of an education and care service must ensure that records and documents set out in regulation 177 are stored—
(a)  in a safe and secure place; and
(b)  for the relevant period set out in subregulation (2).
(2) The records must be kept—
(a)  if the record relates to an incident, illness, injury or trauma suffered by a child while being educated and cared for by the education and care service, until the child is aged 25 years;
(b)  if the record relates to an incident, illness, injury or trauma suffered by a child that may have occurred following an incident while being educated and cared for by the education and care service, until the child is aged 25 years;
(c)  if the record relates to the death of a child while being educated and cared for by the education and care service or that may have occurred as a result of an incident while being educated and cared for, until the end of 7 years after the death;
(d)  in the case of any other record relating to a child enrolled at the education and care service, until the end of 3 years after the last date on which the child was educated and cared for by the service;
(e)  if the record relates to the approved provider, until the end of 3 years after the last date on which the approved provider operated the education and care service;
(f)  if the record relates to the nominated supervisor or staff member of an education and care service, until the end of 3 years after the last date on which the nominated supervisor or staff member provided education and care on behalf of the service;
(g)  in case of any other record, until the end of 3 years after the date on which the record was made.
Note—
A compliance direction may be issued for failure to comply with this regulation.

184 Storage of records after service approval transferred

(1) Subject to subregulation (2), if a service approval is transferred under the Law, the transferring approved provider must transfer the documents referred to in regulation 177 relating to children currently enrolled with the service to the receiving approved provider on the date that the transfer takes effect.
(2) The transferring approved provider must not transfer the documents relating to a child under subregulation (1) unless a parent of the child has first consented to that transfer.

Subdivision 5 Law and regulations to be available

185 Law and regulations to be available

The approved provider of an education and care service must ensure that a copy of the Law and these Regulations is accessible at the education and care service premises at all times for use by the nominated supervisor, staff members, volunteers, parents of children enrolled at the service and any person seeking to make use of the service.
Note—
A compliance direction may be issued for failure to comply with this regulation.

Chapter 5 Review, enforcement and compliance

Guide to Chapter 5—

This Chapter contains provisions relating to review, enforcement and compliance.

Part 5.1 provides for the process of applying for internal review of decisions of the Regulatory Authority.

Part 5.2 contains provisions relating to enforcement and compliance, including the form of identity cards, compliance directions, cancellation of prohibition notices, infringement offences and false or misleading information or documents.

Part 5.1 Internal review

186 Application for internal review of reviewable decision

An application for internal review under section 191 of the Law must include the following information—
(a)  the name of the applicant;
(b)  contact details for the applicant, including an address for service of the decision;
(c)  the provider approval number, service approval number or supervisor certificate number to which the reviewable decision relates;
(d)  the full name of the person to whom the provider approval, service approval or supervisor certificate was granted;
(e)  a statement setting out—
(i)  the details of the decision or the part of the decision with respect to which review is sought;
(ii)  how the decision affects the applicant;
(iii)  the grounds for seeking a review of the decision;
(f)  any information that the applicant considers relevant to the review.

Part 5.2 Enforcement and compliance

187 Prescribed form of identity card

(1) For the purposes of section 196(1) of the Law, an identity card is in the prescribed form if it—
(a)  states the full name of the authorised officer; and
(b)  states that the officer is authorised under section 195 of the Law; and
(c)  is issued by the Regulatory Authority which authorised the officer; and
(d)  states the date of the officer’s authorisation.
(2) An identity card may contain a photograph of the authorised officer.
(3) If an identity card does not contain a photograph of the authorised officer, the authorised officer must carry the following and produce it when showing the identity card under the Law or these Regulations—
(a)  another form of photographic identification of the authorised officer; and
(b)  a letter from the Regulatory Authority authorising the use of that form of photographic identification.
Penalty: $1000.

188 Compliance directions

The provisions of the regulations set out in Schedule 3 are prescribed for the purposes of section 176 of the Law.

189 Application to cancel prohibition notice

For the purposes of section 186(3)(b) of the Law, the following information is prescribed—
(a)  the applicant’s name;
(b)  contact details for the applicant, including an address for service of the decision;
(c)  a statement setting out the grounds for the application to cancel the prohibition notice.
Note—
Section 186(4) and (5) of the Law set out additional statements that may be included in the application.

190 Infringement offences

The following offences against the regulations are prescribed for the purposes of section 291 of the Law—
(a)  regulation 77(1), (2) and (3) (health, hygiene and safe food practices);
(b)  regulation 80(1) (weekly menu);
(c)  regulation 83(1), (2) and (3) (use of alcohol or drugs);
(d)  regulation 86 (notification of incidents);
(e)  regulation 88(1) (infectious diseases);
(f)  regulation 89(1) and (2) (first aid kits);
(g)  regulation 97(4) (display of emergency and evacuation plan);
(h)  regulation 98 (telephone or communication equipment);
(i)  regulation 104(1) (fencing);
(j)  regulation 112(3) (nappy change facilities);
(k)  regulation 177(2) and (3) (enrolment and other documents to be kept by approved provider);
(l)  regulation 178(2) and (3) (enrolment and other documents to be kept by family day care educator).

191 False or misleading information or documents

(1) A person must not give the National Authority under the Law any information or document that the person knows is false or misleading in a material particular.
Penalty: $2000.
(2) Subregulation (1) does not apply in respect of the giving of a document, if the person when giving the document—
(a) informs the National Authority, to the best of the person’s ability, how it is false or misleading; and
(b) gives the correct information to the National Authority if the person has, or can reasonably obtain, the correct information.

Chapter 6 Administration

Guide to Chapter 6—

This Chapter contains provisions relating to administrative matters and applies in relation to all education and care services.

Part 6.1 sets out provisions relating to the National Authority.

Part 6.2 sets out matters relating to information, records and privacy affecting the National Authority and Regulatory Authorities.

Division 1 contains provisions relating to the application of the Commonwealth Privacy Act 1988.

Division 2 contains provisions relating to the application of the Commonwealth Freedom of Information Act 1982.

Division 3 contains provisions relating to the application of the New South Wales State Records Act 1998.

Division 4 contains records relating to the application of the Commonwealth Ombudsman Act 1976.

Division 5 contains provisions relating to the publication of information by the National Authority and Regulatory Authority.

Division 6 contains provisions relating to registers of approved providers, approved education and care services and certified supervisors.

Part 6.3 contains provisions relating to fees.

Part 6.4 sets out classes of persons to whom delegations can be made.

Part 6.1 Australian Children’s Education and Care Quality Authority

192 Co-operation with prescribed classes of body

For the purposes of section 228(1)(c) of the Law, the following classes of bodies are prescribed—
(a)  bodies involved in the development of approved education and care qualifications;
(b)  bodies involved in the training of educators or of persons wishing to qualify as educators;
(c)  bodies involved in setting standards for the education and care of children;
(d)  bodies involved in the assessment of equivalence of overseas qualifications.

193 Allocating, transferring or reimbursing money to a participating jurisdiction

For the purposes of section 276(c) of the Law, money that is to be allocated, transferred or reimbursed from the Authority Fund to a participating jurisdiction is to be credited to a fund specified by the Regulatory Authority of the participating jurisdiction.

194 Investment of Authority Fund

For the purposes of section 277 of the Law, the National Authority may invest the Authority Fund—
(a)  on deposit with any bank; and
(b)  in securities of the Commonwealth or of a State or Territory; and
(c)  in securities guaranteed by the Commonwealth or a State or Territory; and
(d)  in any other manner that—
(i)  is consistent with sound commercial practice; and
(ii)  minimises the probability of capital losses over a 12 month period of investment—
to enhance the capacity of the National Authority to discharge its liabilities, costs, expenses and obligations.

Part 6.2 Information, records and privacy—National Authority and Regulatory Authorities

Division 1 Application of Commonwealth Privacy Act 1988

195 Application of Commonwealth Privacy Act 1988

For the purposes of section 263 of the Law, this Division sets out the modifications of the Privacy Act as it applies as a law of a participating jurisdiction for the purposes of the National Quality Framework.

196 Modifications relating to National Education and Care Services Privacy Commissioner and staff

The Privacy Act applies as if it were modified—
(a)  to provide that a reference to the Information Commissioner is taken to be a reference to the National Education and Care Services Privacy Commissioner; and
(b)  to provide that a reference to the National Education and Care Services Privacy Commissioner is taken to be a reference to the person appointed to that office by the Ministerial Council with the remuneration, and on the terms and conditions, decided by the Council; and
(c)  to provide that the National Education and Care Services Privacy Commissioner may only be removed from office by the Ministerial Council on the grounds of—
(i)  misconduct; or
(ii)  physical or mental incapacity that significantly impacts on the ability of the Commissioner to perform his or her functions; or
(iii)  a finding of guilt for an offence committed in a participating jurisdiction or elsewhere that the Ministerial Council considers makes the Commissioner unfit to continue to hold office as Commissioner; or
(iv)  a failure by the Commissioner to carry out his or her functions under the Law; and
(d)  so that the functions of the National Education and Care Services Privacy Commissioner did not include matters relating to the issuing of guidelines under Commonwealth legislation or matters relating to tax file numbers or credit reporting; and
(e)  to provide that the National Education and Care Services Privacy Commissioner may, for the purposes of performing the Commissioner’s functions—
(i)  employ staff; and
(ii)  engage contractors or consultants; and
(iii)  enter into arrangements with another entity relating to the provision of staff or other resources by that entity to the Commissioner; and
(f)  to provide that the National Education and Care Services Privacy Commissioner may, in writing, delegate to any member of the staff of the Office of the National Education and Care Services Privacy Commissioner or to any person employed under, and subject to the obligations in, a public sector law of a participating jurisdiction all or any of the Commissioner’s powers under the Privacy Act other than—
(i)  the making of determinations for the purposes of section 52 of that Act; and
(ii)  the submission of an annual report under section 95D of that Act as modified under regulation 198.

197 Modifications about financial matters

The Privacy Act applies as if it were modified to provide that the National Education and Care Services Privacy Commissioner is required to—
(a)  ensure the Commissioner’s operations are carried out efficiently, effectively and economically; and
(b)  keep proper books and records in relation to the funds held by the Commissioner; and
(c)  ensure expenditure is made from the funds held by the Commissioner only for lawful purposes and, as far as possible, reasonable value is obtained for moneys expended from the funds; and
(d)  ensure the Commissioner’s procedures, including internal control procedures, afford adequate safeguards with respect to—
(i)  the correctness, regularity and propriety of payments made from the funds held by the Commissioner; and
(ii)  receiving and accounting for payments made to the Commissioner; and
(iii)  prevention of fraud or mistake; and
(e)  take any action necessary to ensure the preparation of accurate financial statements in accordance with Australian Accounting Standards for inclusion in the Commissioner’s annual report; and
(f)  take any action necessary to facilitate the audit of the financial statements; and
(g)  arrange for any further audit by a qualified person of records kept by the Commissioner in relation to the funds held by the Commissioner, if directed to do so by the Ministerial Council.

198 Modifications about annual report

The Privacy Act applies as if after section 95C there were inserted—

“95D   Annual report
(1) The National Education and Care Services Privacy Commissioner must submit, within 4 months after the end of each financial year, an annual report for the financial year to the Ministerial Council.
(2) The National Education and Care Services Privacy Commissioner is required to include in the annual report a financial statement for the period to which the report relates that—
(a)  has been prepared in accordance with Australian Accounting Standards; and
(b)  has been audited by a public sector auditor (within the meaning of section 279(6) of the Law).
(3) The National Education and Care Services Privacy Commissioner is required to include in the annual report a report about the performance of the Commissioner’s functions under the Privacy Act during the period to which the report relates.
(4) The Ministerial Council is to make arrangements for the tabling of the annual report in the Parliament of each participating jurisdiction and the Commonwealth.”.

199 Modifications relating to National Authority and Regulatory Authorities

The Privacy Act applies as if it were modified so that—
(a)  it applies only to agencies; and
(b)  the agencies it applies to are—
(i)  the National Authority; and
(ii)  each Regulatory Authority of a participating jurisdiction; and
(c)  a reference in the Act to the principal executive of an agency is taken to be a reference to—
(i)  for the National Authority, the Chairperson of the Board of the National Authority; and
(ii)  for a Regulatory Authority, the person nominated by the Regulatory Authority as the chief executive of the Regulatory Authority.

200 Modifications relating to determinations

The Privacy Act applies as if it were modified so that—
(a) the provisions of the Act providing for the disallowance of determinations made by the Commissioner do not apply; and
(b) sections 303 and 304 of the Law apply to a determination as if it is a regulation.

201 Miscellaneous modifications

The Privacy Act applies—
(a)  as if a reference to the Minister were a reference to a member of the Ministerial Council nominated by that Council; and
(b)  as if a reference to the Governor-General were a reference to the Ministerial Council; and
(c)  as if a reference to the Parliament were a reference to the Parliaments of the Commonwealth and each participating jurisdiction; and
(d)  as if a reference to the Commonwealth or the Government of the Commonwealth were a reference to a participating jurisdiction or the Government of a participating jurisdiction; and
(e)  as if a reference to the Administrative Appeals Tribunal were a reference to a relevant administrative tribunal; and
(f)  as if a reference to the Federal Court were a reference to the Supreme Court, or another court of competent jurisdiction, of a participating jurisdiction; and
(g)  as if a reference to the Federal Magistrates Court were a reference to the Magistrates Court or Local Court of a participating jurisdiction; and
(h)  as if a reference to the Ombudsman were a reference to the Education and Care Services Ombudsman; and
(i)  as if a reference to a contracted service provider were a reference to a person who provides goods or services under a contract with the National Authority or a Regulatory Authority, or a subcontract for that contract; and
(j)  as if a reference to a Commonwealth contract, a government contract or a State contract were a reference to a contract under which goods or services are to be, or were to be, provided to the National Authority or a Regulatory Authority; and
(k)  as if references to arrangements or communications between a Minister of the Commonwealth and a Minister of a State included references to arrangements or communications between Ministers of States; and
(l)  as if a requirement for a payment to be made by the Commonwealth were a requirement for a payment to be made by the National Authority from the Authority Fund; and
(m)  as if it were modified so that the Commissioner’s power to authorise persons to enter premises occupied by an agency and inspect documents extends to a power to authorise any person the Commissioner considered appropriate; and
(n)  as if it were modified so that the provisions providing for the establishment of a Privacy Advisory Committee do not apply; and
(o)  as if it were modified so that the provisions relating to emergencies and disasters do not apply; and
(p)  as if it were modified so that the provisions relating to transferring complaints to the Ombudsman do not apply to complaints made about a Regulatory Authority; and
(q)  as if it were modified so that the provisions relating to the making of guidelines about medical research, health information and genetic information do not apply; and
(r)  as if a reference to any other Commonwealth office holder or body were a reference to the equivalent office holder or body of a participating jurisdiction; and
(s)  with any other modifications that are necessary for the effective administration of the Privacy Act for the purposes of the National Quality Framework.

202 Relevant administrative tribunal

For the purposes of regulation 201(e), a reference in the Privacy Act to a relevant administrative tribunal is taken to be a reference to any of the following—
(a)  the ACT Civil and Administrative Tribunal established under the ACT Civil and Administrative Tribunal Act 2008 of the ACT;
(b)  the Administrative Decisions Tribunal of New South Wales established under the Administrative Decisions Tribunal Act 1997 of New South Wales;
(c)  the Administrative and Disciplinary Division of the District Court of South Australia established under the District Court Act 1991 of South Australia;
(d)  the Local Court established under the Local Court Act of the Northern Territory;
(e)  the Magistrates Court (Administrative Appeals Division) established under the Magistrates Court (Administrative Appeals Division) Act 2001 of Tasmania;
(f)  the State Administrative Tribunal established under the State Administrative Tribunal Act 2004 of Western Australia;
(g)  the Victorian Civil and Administrative Tribunal established under the Victorian Civil and Administrative Tribunal Act 1998 of Victoria.

203 Regulations

The regulations made under the Privacy Act do not apply.

Division 2 Application of Commonwealth Freedom of Information Act 1982

204 Application of Commonwealth Freedom of Information Act 1982

For the purposes of section 264 of the Law, this Division sets out the modifications of the FOI Act as it applies as a law of a participating jurisdiction for the purposes of the National Quality Framework.

205 Modifications relating to National Education and Care Services Freedom of Information Commissioner and staff

The FOI Act applies as if it were modified—
(a)  to provide that a reference to the Office of the Australian Information Commissioner is taken to be a reference to the Office of the National Education and Care Services Freedom of Information Commissioner established by the Ministerial Council and consisting of—
(i)  the National Education and Care Services Freedom of Information Commissioner; and
(ii)  the staff employed by the National Education and Care Services Freedom of Information Commissioner; and
(b)  to provide that a reference to the Information Commissioner is taken to be a reference to the National Education and Care Services Freedom of Information Commissioner; and
(c)  to provide that a reference to the National Education and Care Services Freedom of Information Commissioner is taken to be a reference to the person appointed to that office by the Ministerial Council with the remuneration, and on the terms and conditions, decided by the Council; and
(d)  to provide that the National Education and Care Services Freedom of Information Commissioner may only be removed from office by the Ministerial Council on the grounds of—
(i)  misconduct; or
(ii)  physical or mental incapacity that significantly impacts on the ability of the Commissioner to perform his or her functions; or
(iii)  a finding of guilt for an offence committed in a participating jurisdiction or elsewhere that the Ministerial Council considers makes the Commissioner unfit to continue to hold office as Commissioner; or
(iv)  a failure by the Commissioner to carry out his or her functions under the Law; and
(e)  to provide that the National Education and Care Services Freedom of Information Commissioner may, for the purposes of performing the Commissioner’s functions—
(i)  employ staff; and
(ii)  engage contractors or consultants; and
(iii)  enter into arrangements with another entity relating to the provision of staff or other resources by that entity to the Commissioner; and
(f)  to provide that the National Education and Care Services Freedom of Information Commissioner may, in writing, delegate to any member of the staff of the Office of the National Education and Care Services Freedom of Information Commissioner or to any person employed under, and subject to the obligations in, a public sector law of a participating jurisdiction all or any of the Commissioner’s powers under the FOI Act other than the following—
(i)  the function conferred under section 55H of that Act;
(ii)  the function conferred under section 55K of that Act;
(iii)  the function conferred under section 55Q of that Act;
(iv)  the function conferred under section 73 of that Act;
(v)  the function conferred under section 86 of that Act;
(vi)  the functions conferred under sections 89 and 89A of that Act;
(vii)  the function conferred under section 89K of that Act;
(viii)  issuing guidelines under section 93A of that Act;
(ix)  the submission of an annual report under section 93C of that Act as modified under regulation 207.

206 Modifications about financial matters

The FOI Act applies as if it were modified to provide that the National Education and Care Services Freedom of Information Commissioner is required to—
(a)  ensure the Commissioner’s operations are carried out efficiently, effectively and economically; and
(b)  keep proper books and records in relation to the funds held by the Commissioner; and
(c)  ensure expenditure is made from the funds held by the Commissioner only for lawful purposes and, as far as possible, reasonable value is obtained for moneys expended from the funds; and
(d)  ensure the Commissioner’s procedures, including internal control procedures, afford adequate safeguards with respect to—
(i)  the correctness, regularity and propriety of payments made from the funds held by the Commissioner; and
(ii)  receiving and accounting for payments made to the Commissioner; and
(iii)  prevention of fraud or mistake; and
(e)  take any action necessary to ensure the preparation of accurate financial statements in accordance with Australian Accounting Standards for inclusion in the Commissioner’s annual report; and
(f)  take any action necessary to facilitate the audit of the financial statements; and
(g)  arrange for any further audit by a qualified person of records kept by the Commissioner in relation to the funds held by the Commissioner, if directed to do so by the Ministerial Council.

207 Modifications about annual report

The FOI Act applies as if after section 93B there were inserted—

“93C   Annual report
(1) The National Education and Care Services Freedom of Information Commissioner must submit, within 4 months after the end of each financial year, an annual report for the financial year to the Ministerial Council.
(2) The National Education and Care Services Freedom of Information Commissioner is required to include in the annual report a financial statement for the period to which the report relates that—
(a)  has been prepared in accordance with Australian Accounting Standards; and
(b)  has been audited by a public sector auditor (within the meaning of section 279(6) of the Law).
(3) The National Education and Care Services Freedom of Information Commissioner is required to include in the annual report a report about the performance of the Commissioner’s functions under the FOI Act during the period to which the report relates.
(4) The Ministerial Council is to make arrangements for the tabling of the annual report in the Parliament of each participating jurisdiction and the Commonwealth.”.

208 Modifications relating to National Authority and Regulatory Authorities

The FOI Act applies as if it were modified so that—
(a)  it applies only to agencies; and
(b)  the agencies it applies to are—
(i)  the National Authority; and
(ii)  each Regulatory Authority of each participating jurisdiction; and
(c)  a reference in the Act to the principal officer of an agency is a reference to—
(i)  for the National Authority, the Chairperson of the Board of the National Authority; and
(ii)  for a Regulatory Authority, the person nominated by the Regulatory Authority as the chief executive of the Regulatory Authority; and
(d)  a reference in the Act to the responsible Minister of an agency or the Minister is a reference to a member of the Ministerial Council nominated by the Ministerial Council; and
(e)  the requirement to publish information about the following is a requirement for an agency to publish the information—
(i)  information concerning the functions and documents of the agency; and
(ii)  the addresses of offices that are to be Information Access Offices for the purposes of the Act; and
(f)  the requirement to first publish the information referred to in paragraph (e) is a requirement for an agency to publish the information as soon as practicable after the scheme commencement date but not later than 12 months after that commencement date.

209 Miscellaneous modifications

The FOI Act applies—
(a)  as if a reference to the Commonwealth or the Government of the Commonwealth (other than a reference in relation to a matter affecting national security, defence, international relations or the national economy) were a reference to a participating jurisdiction or the Government of a participating jurisdiction; and
(b)  as if a reference to the Parliament were a reference to the Parliaments of the Commonwealth and the participating jurisdictions; and
(c)  as if a reference to relations, arrangements or communications between the Commonwealth and a State included a reference to relations, arrangements or communications between States; and
(d)  as if a reference to the Federal Court were a reference to the Supreme Court, or another court of competent jurisdiction, of a participating jurisdiction; and
(e)  as if—
(i)  a reference to the Administrative Appeals Tribunal were a reference to a relevant administrative tribunal; and
(ii)  a provision of the Administrative Appeals Tribunal Act 1975 did not apply; and
(f)  as if a reference to the Ombudsman were a reference to the Education and Care Services Ombudsman; and
(g)  as if a reference to any other Commonwealth office holder or body (other than a reference to the Inspector-General of Intelligence and Security) were a reference to the equivalent office holder or body of a participating jurisdiction; and
(h)  as if a requirement for a Minister to prepare a report on the operation of the Act were a requirement for the National Authority to include a report on the operation of the Act, so far as it relates to the National Authority, in its annual report; and
(i)  as if a reference to the payment of costs by the Commonwealth were a reference to the payment of costs by the National Authority from the Authority Fund; and
(j)  as if it were modified so that the provisions relating to transferring complaints to the Ombudsman do not apply to complaints made about a Regulatory Authority; and
(k)  with any other modifications that are necessary for the effective administration of the FOI Act for the purposes of the National Quality Framework.

210 Relevant administrative tribunal

For the purposes of regulation 209(e), a reference in the FOI Act to a relevant administrative tribunal is taken to be a reference to any of the following—
(a)  the ACT Civil and Administrative Tribunal established under the ACT Civil and Administrative Tribunal Act 2008 of the ACT;
(b)  the Administrative Decisions Tribunal of New South Wales established under the Administrative Decisions Tribunal Act 1997 of New South Wales;
(c)  the Administrative and Disciplinary Division of the District Court of South Australia established under the District Court Act 1991 of South Australia;
(d)  the Local Court established under the Local Court Act of the Northern Territory;
(e)  the Magistrates Court (Administrative Appeals Division) established under the Magistrates Court (Administrative Appeals Division) Act 2001 of Tasmania;
(f)  the State Administrative Tribunal established under the State Administrative Tribunal Act 2004 of Western Australia;
(g)  the Victorian Civil and Administrative Tribunal established under the Victorian Civil and Administrative Tribunal Act 1998 of Victoria.

211 Regulations

The regulations made under the FOI Act, other than the provisions providing for fees and charges, do not apply.

Division 3 Application of New South Wales State Records Act 1998

212 Application of State Records Act

For the purposes of section 265 of the Law, this Division sets out the modifications of the State Records Act as it applies as a law of a participating jurisdiction for the purposes of the National Quality Framework.

213 Modifications relating to State Records Authority and its Board and Director

The State Records Act applies as if it were modified—
(a)  to provide that a reference to the Authority is taken to be a reference to the State Records Authority constituted under the State Records Act 1998 of New South Wales; and
(b)  to provide that a reference to the Board is taken to be a reference to the Board of the State Records Authority constituted under the State Records Act 1998 of New South Wales; and
(c)  to provide that a reference to the Director is taken to be a reference to the Director within the meaning of the State Records Act 1998 of New South Wales; and
(d)  so that sections 63 and 69 and Schedule 2 did not apply.

214 Modifications relating to National Authority

The State Records Act applies as if it were modified so that—
(a)  in section 3(1), the definition of public office referred only to the National Authority; and
(b)  any reference to an agency of the State included a reference to a public office; and
(c)  sections 40(4), 42 and 43 did not refer to the State; and
(d)  sections 45(3), 47(1) and 60(3)(e) also applied to the National Authority.

215 Modifications relating to Ministerial Council

The State Records Act applies as if it was modified so that—
(a)  any reference to a Minister, the Premier, the Attorney General or the responsible Minister were a reference to the Ministerial Council; and
(b)  any reference to the Minister responsible for a public office were a reference to the Ministerial Council; and
(c)  in section 17—
(i)  subsection (1) provided for the review to be conducted by the Ministerial Council in place of the responsible Ministers; and
(ii)  subsections (2) and (4) did not apply.

216 Miscellaneous modifications

The State Records Act applies—
(a)  as if the definition of State collecting institution in section 3 and section 5 did not apply; and
(b)  as if sections 4, 9, 16, 21(2)(e), 25, 26 and 49 did not apply; and
(c)  as if section 48(1), (2), (3) and (4) and the definition of recognised estray provisions in section 48(6) did not apply; and
(d)  as if in section 58(2)—
(i)  a reference to the appropriate Minister were a reference to the Ministerial Council; and
(ii)  the last sentence were omitted; and
(e)  as if section 64 applied only to the State Record Authority’s functions in relation to the National Quality Framework; and
(f)  as if sections 79 and 82 and Schedule 3 did not apply; and
(g)  as if any reference to the Gazette were a reference to the New South Wales Government Gazette; and
(h)  as if any reference to the Supreme Court or a Local Court were a reference to a court of competent jurisdiction; and
(i)  as if a reference in section 19 to the State were a reference to New South Wales; and
(j)  as if any reference in sections 21, 40 and 46 to New South Wales were a reference to Australia; and
(k)  as if any reference in section 22 to the regulations were a reference to guidelines issued by the Ministerial Council; and
(l)  as if section 36A provided that the Authority may enter into access arrangements under that section with an authority of any participating jurisdiction; and
(m)  as if any reference to the Government Information (Public Access) Act 2009 were a reference to the FOI Act; and
(n)  as if section 73(5) also referred to the following persons and bodies—
(i)  the Crime and Misconduct Commission established under the Crime and Misconduct Act 2001 of Queensland;
(ii)  the Anti-Corruption Branch of the South Australia Police;
(iii)  the Integrity Commission of Tasmania established under the Integrity Commission Act 2009 of Tasmania;
(iv)  the Ombudsman appointed under section 3 of the Ombudsman Act 1973 of Victoria;
(v)  the Corruption and Crime Commission established under the Corruption and Crime Commission Act 2003 of Western Australia;
(vi)  if a person or body or an office referred to in subparagraphs (i) to (v) (the initial entity), whether by or under an Act of the relevant participating jurisdiction or otherwise, is abolished and another person, body or office is conferred or given functions and powers that substantially correspond to the functions and powers of the initial entity, that person, body or office;
(vii)  if the functions and powers of a person or body or an office referred to in subparagraphs (i) to (v), whether by or under an Act of the relevant participating jurisdiction or otherwise, are transferred to another person, body or office, that person, body or office; and
(o)  as if in section 76 any reference to the Crown were a reference to a public office; and
(p)  as if in section 78(2) the reference to the Criminal Procedure Act 1986 were a reference to any other law and the notes were omitted; and
(q)  with any other modifications that are necessary for the effective administration of the State Records Act for the purposes of the National Quality Framework.

217 Regulations

The regulations made under the State Records Act do not apply.

Division 4 Application of Commonwealth Ombudsman Act 1976

218 Application of Commonwealth Ombudsman Act

For the purposes of section 282(2) of the Law, this Division sets out modifications of the Ombudsman Act as it applies as a law of a participating jurisdiction for the purposes of the Law.

219 Modifications relating to Education and Care Services Ombudsman and staff

The Ombudsman Act applies as if it were modified—
(a)  so that the provisions of the Act providing for the appointment of the Ombudsman and the conditions of service of the Ombudsman (other than the provisions providing for the resignation, retirement, suspension or removal of the Ombudsman and the appointment of an acting Ombudsman) do not apply; and
(b)  to provide that a reference to the Education and Care Services Ombudsman is taken to be a reference to the person appointed to that office by the Ministerial Council with the remuneration, and on the terms and conditions, decided by the Council; and
(c)  so that the Education and Care Services Ombudsman may be—
(i)  suspended from office by the Ministerial Council without the need for a statement of the grounds of the suspension to be laid before a House of Parliament; and
(ii)  removed from office by the Ministerial Council on the ground of misconduct or physical or mental incapacity without the need for an address being presented to a House of Parliament; and
(d)  so that the provisions of the Act providing for the Deputy Ombudsman and other staff of the Ombudsman do not apply; and
(e)  to provide that the Education and Care Services Ombudsman may, for the purposes of performing the Ombudsman’s functions—
(i)  employ staff; and
(ii)  engage contractors or consultants; and
(iii)  enter into arrangements with another entity relating to the provision of staff or other resources by that entity to the Ombudsman.

220 Modifications about financial matters

The Ombudsman Act applies as if it were modified to provide that the Education and Care Services Ombudsman is required to—
(a)  ensure the Ombudsman’s operations are carried out efficiently, effectively and economically; and
(b)  keep proper books and records in relation to the funds held by the Ombudsman; and
(c)  ensure expenditure is made from the funds held by the Ombudsman only for lawful purposes and, as far as possible, reasonable value is obtained for moneys expended from the funds; and
(d)  ensure the Ombudsman’s procedures, including internal control procedures, afford adequate safeguards with respect to—
(i)  the correctness, regularity and propriety of payments made from the funds held by the Ombudsman; and
(ii)  receiving and accounting for payments made to the Ombudsman; and
(iii)  prevention of fraud or mistake; and
(e)  take any action necessary to ensure the preparation of accurate financial statements in accordance with Australian Accounting Standards for inclusion in the Ombudsman’s annual report; and
(f)  take any action necessary to facilitate the audit of the financial statements; and
(g)  arrange for any further audit by a qualified person of records kept by the Ombudsman in relation to the funds held by the Ombudsman, if directed to do so by the Ministerial Council.

221 Modifications about annual report

The Ombudsman Act applies as if it were modified to provide that—
(a)  the Education and Care Services Ombudsman is required to submit, within 4 months after the end of each financial year, an annual report for the financial year to the Ministerial Council; and
(b)  the Education and Care Services Ombudsman is required to include in the annual report a financial statement for the period to which the report relates that—
(i)  has been prepared in accordance with Australian Accounting Standards; and
(ii)  has been audited by a public sector auditor (within the meaning of section 279(6) of the Law); and
(c)  the Education and Care Services Ombudsman is required to include in the annual report a report about the performance of the Ombudsman’s functions under the Ombudsman Act during the period to which the report relates; and
(d)  the requirement to lay a copy of the report before each House of the Parliament is a requirement for each member of the Ministerial Council to cause a copy of the report to be laid before each House of the Parliament of the jurisdiction the member represents.

222 Modifications relating to National Authority and Regulatory Authorities

The Ombudsman Act applies as if it were modified so that—
(a)  it applies only in relation to prescribed authorities; and
(b)  the prescribed authorities are the National Authority; and
(c)  a reference in the Act to the principal executive of an agency is a reference to the Chairperson of the Board of the National Authority.

223 Miscellaneous modifications

The Ombudsman Act applies—
(a)  as if a reference to the Minister or the responsible Minister were a reference to a member of the Ministerial Council nominated by that Council; and
(b)  as if a reference to the Governor-General were a reference to the Ministerial Council; and
(c)  as if a reference to the Parliament were a reference to the Parliaments of the Commonwealth and the participating jurisdictions; and
(d)  as if a reference to the Commonwealth or the Government of the Commonwealth were a reference to a participating jurisdiction or the Government of a participating jurisdiction; and
(e)  as if a reference to the Prime Minister were a reference to a member of the Ministerial Council nominated by that Council; and
(f)  as if a reference to the Federal Court were a reference to the Supreme Court, or another court of competent jurisdiction, of a participating jurisdiction; and
(g)  as if—
(i)  a reference to the Administrative Appeals Tribunal were a reference to a relevant administrative tribunal; and
(ii)  a provision of the Administrative Appeals Tribunal Act 1975 did not apply; and
(h)  as if section 6C applied so that a reference to the Information Commissioner were a reference to the National Education and Care Services Privacy Commissioner or the National Education and Care Services Freedom of Information Commissioner; and
(i)  as if it were modified so that provisions relating to the Integrity Commissioner did not apply; and
(j)  as if a reference to a Commonwealth service provider were a reference to a person who provides goods or services under a contract with the National Authority; and
(k)  as if a reference to any other Commonwealth office holder or body were a reference to the equivalent office holder or body of a participating jurisdiction; and
(l)  as if a reference to an arrangement or communication between a Commonwealth Minister and a Minister of a State included a reference to an arrangement or communication between Ministers of States; and
(m)  as if the requirement to observe confidentiality under the Act—
(i)  applies to any person performing functions under the Act; but
(ii)  does not prevent a member of the Ministerial Council making a record of, or divulging or communicating to another member of the Ministerial Council, information acquired by the member in performing functions under the Act; and
(n)  with any other modifications that are necessary for the effective administration of the Ombudsman Act for the purposes of the National Quality Framework.

224 Relevant administrative tribunal

For the purposes of regulation 223(g), a reference in the Ombudsman Act to a relevant administrative tribunal is taken to be a reference to any of the following—
(a)  the ACT Civil and Administrative Tribunal established under the ACT Civil and Administrative Tribunal Act 2008 of the ACT;
(b)  the Administrative Decisions Tribunal of New South Wales established under the Administrative Decisions Tribunal Act 1997 of New South Wales;
(c)  the Administrative and Disciplinary Division of the District Court of South Australia established under the District Court Act 1991 of South Australia;
(d)  the Local Court established under the Local Court Act of the Northern Territory;
(e)  the Magistrates Court (Administrative Appeals Division) established under the Magistrates Court (Administrative Appeals Division) Act 2001 of Tasmania;
(f)  the State Administrative Tribunal established under the State Administrative Tribunal Act 2004 of Western Australia;
(g)  the Victorian Civil and Administrative Tribunal established under the Victorian Civil and Administrative Tribunal Act 1998 of Victoria.

225 Regulations

The regulations made under the Ombudsman Act, other than provisions providing for witness expenses, do not apply.

Division 5 Publication of information

226 Publication of information

For the purposes of section 270(1)(e) of the Law, the information that may be published in respect of an approved education and care service includes the following—
(a)  the contact details for the service;
(b)  the hours and days of operation of the service;
(c)  the conditions to which the service approval is subject;
(d)  in relation to a centre-based service, the approved number of places.

227 Compliance and enforcement information

(1) For the purposes of section 270(5)(a) of the Law, the Regulatory Authority may publish the information set out in subregulation (3) in relation to any enforcement action set out in subregulation (2).
(2) The enforcement actions are—
(a)  a prosecution for an offence against the Law or these Regulations leading to a conviction or finding of guilt or a plea of guilt;
(b)  the acceptance by the Regulatory Authority of an enforceable undertaking;
(c)  the giving of a compliance notice;
(d)  the suspension or cancellation (other than a voluntary suspension or surrender) of a provider approval, service approval or supervisor certificate;
(e)  an amendment made to a provider approval, service approval or supervisor certificate for purposes of enforcement.
(3) The following information may be published—
(a)  the nature of the enforcement action;
(b)  the details of the person in relation to whom the enforcement action was taken, including—
(i)  the name and provider approval number of the approved provider;
(ii)  for a centre-based service—
(A)  the address of the service; and
(B)  the name by which the service is known;
(iii)  for a family day care service—
(A)  the address of the service, unless the address is also the home address of a family day care educator; and
(B)  the name by which the service is known;
(iv)  for an individual, the name of the individual and the individual’s supervisor certificate number, if relevant;
(c)  the reason for taking the enforcement action, including details of the breach or alleged breach by the person of the Law or these Regulations and the provision that was breached or alleged to be breached;
(d)  details of the enforcement action taken, including—
(i)  for a prosecution leading to a conviction or finding of guilt or a plea of guilt—
(A)  the provision of the Law or these Regulations that the person was convicted or found guilty of, or pleaded guilty to, breaching; and
(B)  the date of the conviction, finding of guilt or the making of the plea of guilt for the offence; and
(C)  any penalty imposed for the offence; and
(D)  information about any steps taken to remedy the subject of the prosecution and the date the steps were taken;
(ii)  for an enforceable undertaking—
(A)  the terms of the enforceable undertaking; and
(B)  the date of the enforceable undertaking; and
(C)  information about any steps taken to remedy the subject of the enforceable undertaking and the date the steps were taken;
(iii)  for a compliance notice—
(A)  the steps specified in the compliance notice that the person must take to comply with the provision of the Law or these Regulations; and
(B)  the date specified in the notice by which the steps must be taken; and
(C)  information about any steps taken to remedy the subject of the compliance notice and the date the steps were taken;
(iv)  for the amendment of a provider approval, service approval or supervisor certificate—
(A)  the details of the amendment; and
(B)  the date on which the amendment took effect;
(v)  for a suspension of a provider approval, service approval or supervisor certificate—
(A)  the date on which the suspension took effect; and
(B)  the date on which the suspension ends;
(vi)  for a cancellation of a provider approval, service approval or supervisor certificate, the date on which the cancellation took effect.
(4) In this regulation, a reference to information does not include information that could identify or lead to the identification of a child.
Note—
Section 270(6) of the Law further restricts the publication of identifying information.

228 Timing of publication where internal or external review of enforcement action is available

(1) If the Regulatory Authority publishes information about an enforcement action for which an application for internal review or external review can be made under section 191 or 193 of the Law, it must publish the information in accordance with this regulation.
(2) If an application for internal review can be made under section 191 of the Law, the Regulatory Authority may publish the information after the end of the period for requesting the review under section 191, if no request for internal review is received in that period.
(3) If an application for external review can be made under section 193 of the Law, the Regulatory Authority may publish the information at the end of the period for requesting an external review under section 193, if no request for external review is received in that period.
(4) If an application for internal or external review is made and withdrawn before a decision is made on the review, the Regulatory Authority may publish the information on or after the day on which the application is withdrawn.
(5) If an application is made for an external review, the Regulatory Authority may publish the information on or after the day on which the decision with respect to the review is made if the enforcement action is confirmed or amended on review, or if another enforcement action is substituted on review.

Division 6 Registers

229 Register of approved providers

For the purposes of section 266 of the Law, the following information must be included in the register of approved providers in respect of each approved provider—
(a)  the postal address of the approved provider;
(b)  any conditions to which the provider approval is subject;
(c)  the date the provider approval was granted;
(d)  the provider approval number;
(e)  the service approval numbers of all education and care services provided by the approved provider.

230 Register of approved education and care services

For the purposes of section 267 of the Law, the following information must be included in the register of approved education and care services in respect of each service—
(a)  the contact details for the service;
(b)  in relation to a centre-based service, the hours of operation of the service;
(c)  any conditions to which the service approval is subject;
(d)  in relation to a centre-based service, the approved number of places;
(e)  the date the approved provider was granted a service approval;
(f)  the service approval number;
(g)  the provider approval number.

231 Register of certified supervisors

For the purposes of section 268 of the Law, the following information must be included in the register of certified supervisors in respect of each supervisor—
(a)  if the supervisor is in a prescribed class of persons—
(i)  the prescribed class to which the certified supervisor belongs; and
(ii)  the name of the relevant approved education and care service; and
(iii)  if applicable, the name of the school that provides the relevant education and care service (if different from the name of the approved education and care service);
(b)  the date the certified supervisor was granted a supervisor certificate;
(c)  the supervisor certificate number.

Part 6.3 Fees

232 Prescribed fees

The prescribed fee payable under a provision of the Law is the relevant fee in Schedule 2 in relation to that provision of the Law.
Note—
See also regulations 138 and 139, which also provide for the payment of fees.

233 Late payment fees (annual fees)

(1) If the annual fee for a service approval is not paid on or before 1 July, the Regulatory Authority may charge the approved provider a late payment fee, in addition to the annual fee, for every 30 days (or part of every 30 days) that the annual fee is overdue.
(2) The late payment fee is 15 per cent of the relevant annual fee prescribed for the purposes of regulation 33.

234 Waiver, reduction, deferral and refund of fees

The National Authority may waive, reduce, defer or refund any fee payable or paid to it under the Law if there are exceptional circumstances.

235 Indexation of fees

(1) If a fee is required to be paid under the Law or these Regulations before 1 July 2013, the amount of the fee is the amount prescribed in these Regulations for the relevant matter.
(2) If a fee is required to be paid in a financial year starting on 1 July 2013, or 1 July in a later year (the relevant year), the amount of the fee is to be worked out as follows—
(a)  identify the amount of the fee payable for the relevant matter in the previous year;
(b)  multiply the amount by the indexation factor for the relevant year;
(c)  round the result down to the nearest whole dollar.
Example—
An indexed fee for an application for a provider approval for the year starting 1 July 2013 would be worked out by multiplying $200 (the fee payable in the previous year) by the indexation factor for 2013–2014 worked out under subregulation (3), and then rounding the result down.
(3) The indexation factor is worked out using the following formula—

where—
index number, for a quarter, means the All Groups Consumer Price Index Number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter;
most recent March year means the period of 12 months ending on 31 March in the financial year that occurred immediately before the application year;
previous March year means the period of 12 months immediately preceding the most recent March year;
quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.
(4) The result worked out under subregulation (3) must be rounded up or down to 3 decimal places, rounding up if the result ends in 0.0005.
(5) A calculation under subregulation (3) is to be made—
(a)  using the index numbers published in terms of the most recently published reference base for the Consumer Price Index; and
(b)  disregarding index numbers that are published in substitution for previously published index numbers (unless the substituted numbers are published to take account of changes in the reference base).

236 Publication of indexed fees

(1) The National Authority must, before the financial year commencing 1 July in each year after 2012, publish the fees applicable for that financial year determined in accordance with regulation 235.
(2) The Regulatory Authority may also publish the fees referred to in subregulation (1).

Part 6.4 Delegations

237 Delegation

For the purposes of section 262(1)(b) of the Law, the following classes of person are prescribed—
(a)  any person employed under a public sector law of another participating jurisdiction;
(b)  the Regulatory Authority of another participating jurisdiction or any member of staff of the Regulatory Authority of another participating jurisdiction;
(c)  the chief executive officer or any member of staff of any entity that is established under a law of a participating jurisdiction for a public purpose;
(d)  the chief executive officer or another member of staff of the National Authority;
(e)  a responsible authority under the Education and Early Childhood Services (Registration and Standards) Act 2011 of South Australia;
(f)  the Catholic Education Commission of Western Australia.

Chapter 7 Jurisdiction-specific and transitional and saving provisions

Guide to Chapter 7—

This Chapter contains transitional and saving provisions and provisions that relate to specific jurisdictions.

Part 7.1 contains general transitional and saving provisions.

Part 7.2 contains provisions relating to the Australian Capital Territory.

Part 7.3 contains provisions relating to New South Wales.

Part 7.4 contains provisions relating to the Northern Territory.

Part 7.5 contains provisions relating to Queensland.

Part 7.6 contains provisions relating to South Australia.

Part 7.7 contains provisions relating to Tasmania.

Part 7.8 contains provisions relating to Victoria.

Part 7.9 contains provisions relating to Western Australia.

Part 7.1 General transitional and saving provisions

Division 1 Quality improvement plans

238 Quality improvement plans

(1) The approved provider of a declared approved service must—
(a)  prepare a quality improvement plan in accordance with regulation 55(1) by 30 April 2012; and
(b)  make the quality improvement plan available to the Regulatory Authority on request.
(2) Regulation 55(2) does not apply to a declared approved service.
(3) Regulation 55(2) applies to the approved provider of an education and care service for which a service approval is granted under the Law before 31 January 2012 as if it required the quality improvement plan to be submitted to the Regulatory Authority on or before 30 April 2012.
Notes
1
The date specified in subregulation (1)(a) does not apply in Western Australia. The applicable date in Western Australia for the preparation of quality improvement plans is 30 November 2012—see regulation 238(1)(a) of the Education and Care Services National Regulations 2012 of Western Australia.
2
Western Australia has replaced subregulation (3) with the following—

“(3) Regulation 55(2) applies to the approved provider of an education and care service for which a service approval is granted under the Law before 31 August 2012 as if it required the quality improvement plan to be submitted to the Regulatory Authority on or before—
(a)  for all participating jurisdictions other than Western Australia—30 April 2012; and
(b)  for Western Australia—30 November 2012.”.
See regulation 238(3) of the Education and Care Services National Regulations 2012 of Western Australia.

Division 1A Prescribed classes of persons for grant of supervisor certificate

238A Prescribed classes of persons for grant of supervisor certificate

(1) This regulation applies until 31 December 2016.
(2) The Regulatory Authority may grant a supervisor certificate under section 114 of the Law to a person in one of the following classes of persons—
(a)  a person employed or engaged by an approved provider to be responsible for the day to day management of an approved education and care service;
(b)  a family day care co-ordinator;
(c)  a person employed or engaged by an approved provider to exercise supervisory and leadership responsibilities in relation to a section of an approved education and care service providing education and care to children.

Division 2 Staffing arrangements

239 Centre-based service offering a preschool program in a composite class in a school

(1) This regulation applies to a centre-based service that delivers a preschool program in a school in a class or classes where a full-time education program is also being delivered to school children.
(2) Regulations 123 and 126, and any provision of this Chapter that applies in place of those regulations, do not apply to the centre-based service.
(3) For the purpose of a rating assessment under Part 5 of the Law the centre-based service is taken to comply with regulations 123 and 126.
Note—
See also Division 7.

239A Centre-based services in remote and very remote areas—attendance of early childhood teachers

(1) This regulation applies until 1 January 2018 to a centre-based service that is located in a remote area or a very remote area.
(2) The centre-based service may meet the requirements of regulation 132, 133 or 134 for attendance of an early childhood teacher if the service has access to an early childhood teacher working with the service at least 20 per cent of the time that the service provides education and care.
(3) To comply with subregulation (2), the early childhood teacher may be working with the service by means of information communication technology.
(4) For the purposes of this regulation, the period that an early childhood teacher works with the centre-based service may be calculated on a quarterly basis.
(5) In this regulation and regulation 240—
ARIA+ score means the score calculated in accordance with the ARIA+ Index, produced by the University of Adelaide;
remote area, in relation to the location of a centre-based service, means a geographic area that is Remote Australia (average ARIA+ score greater than 5.92 but less than or equal to 10.53) in the Australian Statistical Geography Standard: Volume 5 - Remoteness Structure. Canberra, Australian Capital Territory: Australian Bureau of Statistics. Cat No. 1270.0.55.005;
very remote area, in relation to the location of a centre-based service, means a geographic area that is Very Remote Australia (ARIA+ score greater than 10.53) in theAustralian Statistical Geography Standard: Volume 5 - Remoteness Structure. Canberra, Australian Capital Territory: Australian Bureau of Statistics. Cat No. 1270.0.55.005.

240 Qualifications for educators—centre-based service

(1) This regulation applies to a centre-based service—
(a)  if the service is located in a remote area or a very remote area, until 1 January 2018; or
(b)  otherwise, until 31 December 2015.
(2) Despite regulation 126(1)(b), an educator at a centre-based service can be included to meet a relevant educator to child ratio for the service without having, or actively working towards, a certificate III level education and care qualification if—
(a)  the educator has been continuously employed as an educator in an education and care service or a children’s service for a period of at least 15 years up to immediately before the scheme commencement day; and
(b)  the educator is employed by the same approved provider as the educator was employed by immediately before the scheme commencement day.

241 Persons taken to hold an approved early childhood teaching qualification

(1) A person is taken to hold an approved early childhood teaching qualification for the purposes of these Regulations if, immediately before the scheme commencement day, the person—
(a)  was—
(i)  recognised under the former education and care services law, or for the purposes of a preschool funding program, of any participating jurisdiction as an early childhood teacher; and
(ii)  employed or engaged in a declared approved service as an early childhood teacher; or
(b)  held a qualification that is published under regulation 137(2) in the list of former qualifications approved as early childhood teacher qualifications; or
(c)  was registered or accredited as an early childhood teacher in accordance with the requirements of any participating jurisdiction; or
(d)  was employed to deliver a pre-preparatory learning program (within the meaning of the Education (General Provisions) Act 2006 of Queensland); or
(e)  was registered as a teacher under the Teachers Registration and Standards Act 2004 of South Australia and was employed to deliver a preschool program; or
(f)  was registered as a teacher under the Teachers Registration Act 2000 of Tasmania and was employed to deliver a preschool program at a school established or registered under the Education Act 1994 of Tasmania; or
(g)  was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland and held a qualification that is published under regulation 137(2) in the list of former qualifications approved as diploma level qualifications.
(2) If, immediately before the scheme commencement day, a person was enrolled in a course for a qualification that is published under regulation 137(2) in the list of former qualifications approved as early childhood teacher qualifications, the person is taken to hold an approved early childhood teaching qualification for the purposes of these Regulations on the completion of the course.
(3) If, immediately before the scheme commencement day, a person who was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland was enrolled in a course for a qualification that is published under regulation 137(2) in the list of former qualifications approved as diploma level qualifications, the person is taken to hold an approved early childhood teaching qualification for the purposes of these regulations—
(a)  while the person is actively working towards the approved diploma level qualification; and
(b)  if the person completes the approved diploma level qualification, on completion of that qualification.
(4) If a person who, immediately before the scheme commencement day, was registered as a teacher under the Education (Queensland College of Teachers) Act 2005 of Queensland commences actively working towards an approved diploma level qualification on or before 31 December 2013, the person is taken to hold an approved early childhood teaching qualification for the purposes of these regulations—
(a)  while the person is actively working towards the approved diploma level qualification; and
(b)  if the person completes the approved diploma level qualification, on completion of that qualification.
(5) If, immediately before the scheme commencement day, the recognition, registration, accreditation or qualification as an early childhood teacher of a person referred to in subregulation (1) was subject to restrictions imposed by or under an education law of a participating jurisdiction, the person is taken to be an early childhood teacher under that subregulation subject to the same restrictions.
(6) Subregulation (1)(c) does not apply if immediately before the scheme commencement day the person was registered or accredited as an early childhood teacher or equivalent on the basis that the person was working towards an early childhood teacher qualification or equivalent.
(7) For the purposes of subregulations (3) and (4), the person is actively working towards an approved diploma level qualification if the person—
(a)  is enrolled in the course for the qualification; and
(b)  provides the approved provider with documentary evidence from the provider of the course that—
(i)  the person has commenced the course; and
(ii)  is making satisfactory progress towards completion of the course; and
(iii)  is meeting the requirements for maintaining the enrolment.

242 Persons taken to be early childhood teachers

(1) This regulation applies on and after 1 January 2014 and before 1 January 2018.
(2) A relevant regulation applies to an education and care service as if a reference in regulations 130 to 134 to an early childhood teacher included a reference to a person who—
(a)  is actively working towards an approved early childhood teaching qualification; and
(b)  provides the approved provider with documentary evidence that—
(i)  the person has completed at least 50 per cent of the course; or
(ii)  holds an approved diploma level education and care qualification.
(3) In this regulation—
relevant regulation means regulation 130, 131, 132, 133, 134, 266, 267, 279, 293, 294, 303, 304, 330, 331, 332, 333, 348, 349, 362, 363 or 379.

243 Persons taken to hold an approved diploma level education and care qualification

A person is taken to hold an approved diploma level education and care qualification if, immediately before the scheme commencement day, the person—
(a)  was—
(i)  recognised under the former education and care services law of any participating jurisdiction as a diploma level educator; and
(ii)  employed or engaged in a declared approved service; or
(b)  held a qualification that is published under regulation 137(2)(a) in the list of former qualifications approved as diploma level education and care qualifications; or
(c)  in Queensland, held a qualification that is published under regulation 137(2)(b) in the list of former qualifications approved as diploma level education and care qualifications.

243A Persons taken to hold an approved diploma level education and care qualification for regulation 128 in Queensland

Without limiting regulation 243, a person is taken to hold an approved diploma level education and care qualification for the purposes of regulation 128 if, immediately before the scheme commencement day, the person, in Queensland, held a qualification that is published under regulation 137(2)(d) in the list of qualifications and former qualifications for family day care coordinators.

244 Persons taken to hold an approved certificate III level education and care qualification

A person is taken to hold an approved certificate III level education and care qualification if, immediately before the scheme commencement day, the person—
(a)  was—
(i)  recognised under the former education and care services law of any participating jurisdiction as a certificate III level educator; and
(ii)  employed or engaged in a declared approved service; or
(b)  held a qualification that is published under regulation 137(2)(a) in the list of former qualifications approved as certificate III level education and care qualifications; or
(c)  in Queensland, held a qualification that is published under regulation 137(2)(b) in the list of former qualifications approved as certificate III level education and care qualifications.

245 Person taken to hold approved first aid qualification

(1) This regulation applies if—
(a)  immediately before the scheme commencement day, a person held a first aid qualification or had completed first aid training that met the requirements under the former education and care services law of a participating jurisdiction for first aid qualifications or training for educators; and
(b)  that qualification or training is not included in the list of approved first aid qualifications and training programs published under regulation 137(1)(e).
(2) The person is taken to hold an approved first aid qualification within the meaning of regulation 136(5) on and from the scheme commencement day until the earlier of the following—
(a)  31 December 2012; or
(b)  the date on which the training or qualification is, or would have been, required to be renewed or updated under the requirements of the qualification or the training or the former education and care services law.
Note
The date specified in subregulation (2)(a) does not apply in Western Australia. The applicable date in Western Australia is 31 July 2013—see regulation 245(2)(a) of the Education and Care Services National Regulations 2012 of Western Australia.

246 Anaphylaxis training

(1) This regulation applies in a participating jurisdiction if, immediately before the scheme commencement day, the former education and care services law or the education law of that jurisdiction did not require the attendance at an education and care service of an educator trained in anaphylaxis management.
(2) Regulations 136(1)(b) and 136(3)(b) do not apply in relation to that service before 1 January 2013.
Note
The date specified in subregulation (2) does not apply in Western Australia. The applicable date in Western Australia is 1 August 2013—see regulation 246(2) of the Education and Care Services National Regulations 2012 of Western Australia.

247 Asthma management training

(1) This regulation applies in a participating jurisdiction if, immediately before the scheme commencement day, the former education and care services law or the education law of that jurisdiction did not require the attendance at an education and care service of an educator trained in asthma management.
(2) Regulations 136(1)(c) and 136(3)(c) do not apply in relation to that service before 1 January 2013.
Note
The date specified in subregulation (2) does not apply in Western Australia. The applicable date in Western Australia is 1 August 2013—see regulation 247(2) of the Education and Care Services National Regulations 2012 of Western Australia.

Division 3 Physical environment

248 Centre-based service offering a preschool program in a composite class in a school

(1) This regulation applies to a centre-based service that delivers a preschool program in a school in a class or classes where a full-time education program is also being delivered to school children.
(2) Regulations 104, 114 and 115 do not apply to the centre-based service.
(3) For the purpose of a rating assessment under Part 5 of the Law the centre-based service is taken to comply with regulations 104, 114 and 115.
Note—
See also Division 7.

249 Declared approved services (other than declared approved family day care services)

(1) This regulation applies to a declared approved service (other than a declared approved family day care service) that is taken to be an approved education and care service under section 307(4) of the Law.
(2) If, on the scheme commencement day, the premises of the declared approved service do not comply with a provision of regulation 104, 114 or 115 and, immediately before that day, were not required to comply with a similar requirement under the former education and care services law or education law of the relevant participating jurisdiction—
(a)  that regulation does not apply to the declared approved service until—
(i)  the premises of the declared approved service are renovated; or
(ii)  the service approval for the declared approved service is transferred under section 58 of the Law; and
(b)  for the purpose of a rating assessment under Part 5 of the Law the declared approved service is taken to comply with that regulation until the first of the following to occur—
(i)  the premises of the declared approved service are renovated; or
(ii)  the service approval for the declared approved service is transferred under section 58 of the Law; or
(iii)  31 December 2015.
(3) For the purpose of subregulation (2), renovation of the premises of the declared approved service does not include a renovation of a building or structure on those premises that is not used for the education and care of children, whether or not it is used to operate the service.
Note—
See also Division 7.

250 Declared approved family day care services

(1) This regulation applies to a declared approved family day care service that is taken to be an approved education and care service under section 307(4) of the Law.
(2) If, on the scheme commencement day, a declared approved family day care venue or family day care residence used by a family day care educator engaged by or registered with the service does not comply with regulation 104 and, immediately before that day, was not required to comply with a similar requirement under the former education and care services law or education law of the relevant participating jurisdiction—
(a)  regulation 104 does not apply to the declared approved family day care service in respect of that venue or residence until—
(i)  the venue or residence is renovated; or
(ii)  the family day care educator is no longer registered or engaged by the service; and
(b)  for the purpose of a rating assessment under Part 5 of the Law the declared approved service is taken to comply with that regulation until the first of the following to occur—
(i)  the venue or residence is renovated; or
(ii)  the family day care educator is no longer registered or engaged by the service; or
(iii)  31 December 2015.
Note—
See also Division 7.

251 Declared out of scope services

(1) This regulation applies to a declared out of scope service for which a person is taken to hold a service approval under section 309 of the Law.
(2) If, immediately before the scheme commencement day, the premises of the declared out of scope service did not comply with a provision of regulation 104, 114 or 115—
(a)  that regulation does not apply to the declared out of scope service until—
(i)  the premises of the declared out of scope service are renovated; or
(ii)  the service approval for the declared out of scope service is transferred under section 58 of the Law; and
(b)  for the purpose of a rating assessment under Part 5 of the Law the declared out of scope service is taken to comply with that regulation until the first of the following to occur—
(i)  the premises of the declared out of scope service are renovated; or
(ii)  the service approval for the declared out of scope service is transferred under section 58 of the Law; or
(iii)  31 December 2015.
Note—
See also Division 7.

Division 4 Information retention and sharing

252 Information held by Regulatory Authority or regulatory body

For the purpose of section 322(1) of the Law, the prescribed information is all information held by the Regulatory Authority (or any regulatory body under the former education and care services law) in relation to the matters set out in section 322(1)(a) and (b) of the Law.

253 Information kept by approved provider

For the purposes of section 322(3) of the Law, the documents must be kept in accordance with regulation 183.

Division 5 Declared approved learning frameworks

254 Declared approved learning frameworks

(1) For the purpose of section 323 of the Law, the following, as in force on the scheme commencement day, are declared approved learning frameworks—
(a)  Belonging, Being and Becoming: The Early Years Learning Framework for Australia, produced by the Department of Education, Employment and Workplace Relations of the Commonwealth for the Council of Australian Governments, 2009;
(b)  My Time, Our Place: Framework for School Age Care in Australia produced by the Commonwealth Government Department of Education, Employment and Workplace Relations for the Council of Australian Governments, 2011.
(2) For the purpose of section 323 of the Law, the following, as in force on the scheme commencement day, are declared approved learning frameworks for the purpose of the Law as it applies in the participating jurisdiction specified—
(a)  for the Australian Capital Territory, Every Chance to Learn—Curriculum framework for ACT schools preschool to Year 10;
(b)  for Tasmania, the Tasmanian Curriculum, the Department of Education of Tasmania, 2008;
(c)  for Victoria, the Victorian Early Years Learning and Development Framework, published by the Department of Education and the Victorian Curriculum and Assessment Authority in November 2009;
(d)  for Western Australia, the Curriculum Framework for Kindergarten to Year 12 Education in Western Australia.
(3) Subregulation (2)(a) ceases to have effect on 31 December 2015.

Division 6 Fees

255 Fees for application for provider approval for declared out of scope service

Despite anything to the contrary in these Regulations, the fee for an application for a provider approval for a declared out of scope service made in accordance with section 309 of the Law is nil.

Division 7 General provisions relating to exemptions

256 Publication where service taken to comply with regulations

(1) This regulation applies if an education and care service is taken under a prescribed regulation to comply with a provision of these Regulations for the purposes of a rating assessment.
(2) For the purposes of section 172 of the Law—
(a) the application of the prescribed regulation to the service is a prescribed matter; and
(b) the following statement is the prescribed information in relation to that matter—
“This service is taken to comply with regulations [insert regulations that service is taken to comply with for the purpose of rating assessment] of the Education and Care Services National Regulations.”.
(3) In this regulation—
prescribed regulation means regulation 239, 248, 249, 250, 251, 285, 286, 287, 325A, 337, 338, 339, 353 or 383.

257 Application for removal of exemption

(1) This regulation applies if an education and care service is taken under a prescribed regulation to comply with a provision of these Regulations for the purpose of a rating assessment.
(2) The approved provider of the education and care service may apply to the relevant Regulatory Authority for the prescribed regulation to cease to apply in relation to the service.
(3) The Regulatory Authority may approve the application.
(4) The relevant prescribed regulation ceases to apply to the education and care service on the approval of the application.
(5) In this regulation—
prescribed regulation means regulation 239, 248, 249, 250, 251, 285, 286, 287, 337, 338, 339, 353 or 383.

Part 7.2 Australian Capital Territory—specific provisions

Division 1 Application of Part 7.2

258 Application of Part 7.2

This Part applies to the Australian Capital Territory.

259 Definitions

In this Part—
government preschool means a government preschool established under the Education Act 2004 of the Australian Capital Territory;
non-government preschool means a preschool licensed as an independent preschool under the former education and care services law of the Australian Capital Territory;
preschool means a government preschool or non-government preschool.

Division 2 Children over preschool age—minimum number of educators and qualifications required

260 Educator to child ratio—children over preschool age—centre-based services

For the purposes of regulation 123(1)(d), the educator to child ratio for children over preschool age at a centre-based service is 1 educator to 11 children.

261 General qualifications for educators—children over preschool age—centre-based services

(1) For the purposes of regulation 126(2), the qualification requirement for educators at a centre-based service educating and caring for children over preschool age is at least 1 qualified educator for every 33 children.
(2) If a qualified educator is absent from a centre-based service for not more than 2 weeks, the service may meet the requirement under subregulation (1) by providing that—
(a)  the qualified educator to child ratio is met by an educator other than a qualified educator; and
(b)  at least 1 qualified educator is on duty at all times that children are in attendance at the service premises.
(3) If a qualified educator resigns, the service may meet the requirement under subregulation (1) for up to 4 weeks after the resignation by providing that—
(a)  the qualified educator to child ratio is met by an educator other than a qualified educator; and
(b)  at least 1 qualified educator is on duty at all times that children are in attendance at the service premises.
(4) During school holidays and on pupil free days a centre-based service may meet the requirement under subregulation (1) by providing the relevant number of full-time equivalent qualified educator positions if—
(a)  at least 1 qualified educator is on duty at all times that children are in attendance at the service premises outside the hours of the full-time equivalent positions; and
(b)  the educator to child ratio is met by the educator referred to in paragraph (a) and educators other than qualified educators outside the hours of the full-time equivalent positions.
(5) In this regulation qualified educator means an educator who is qualified in accordance with regulation 262.

262 Required qualifications to be a qualified educator for children over preschool age

(1) The first educator required to meet the qualified educator to child ratio for children over preschool age must—
(a)  hold a qualification that is published under regulation 137(2) in the list of approved qualifications for the first qualified educator working with children over preschool age for the Australian Capital Territory; or
(b)  comply with the following—
(i)  be enrolled in a course for a qualification that is included in the list referred to in paragraph (a); and
(ii)  be able to demonstrate that he or she is continuing to study for that qualification; and
(iii)  be approved by the Regulatory Authority to work as a qualified educator for children over preschool age.
(2) All other educators required to meet the qualified educator to child ratio must—
(a)  hold any qualification that is included in the list referred to in subregulation (1)(a); or
(b)  hold a qualification that is published under regulation 137(2) in the list of approved qualifications for the second and subsequent qualified educators working with children over preschool age for the Australian Capital Territory.
(3) The Regulatory Authority may, on application, grant an approval for the purposes of subregulation (1).

Division 3 Transitional provisions—staffing arrangements

Subdivision 1 Centre-based services

263 Educator to child ratios

(1) This regulation applies in place of regulation 123(1)(c) until 31 December 2015.
(2) The educator to child ratio at a centre-based service for children preschool age and under who are aged 36 months or over is—
(a) in the case of a centre-based service other than a government or non-government preschool, 1 educator to 11 children;
(b) in the case of a government or nongovernment preschool, 2 educators to 25 children.

264 General qualifications for educators—centre-based services

(1) Regulation 126(1) applies as modified by this regulation until 31 December 2017.
(2) If a qualified educator is not working directly with children or is absent from a centre-based service, the service may meet the requirements under regulation 126(1) by providing the relevant number of full-time equivalent qualified educator positions if—
(a)  the educator to child ratios are met at all times the service is educating and caring for children; and
(b)  the number of qualified educators specified in subregulation (3) or (4) (as the case requires) educates and cares for children at all times the service is educating and caring for children.
(3) For the purposes of subregulation (2)(b), the number of qualified educators for a centre-based service (other than a preschool) is—
(a)  for a centre-based service providing education and care to less than 25 children, at least one qualified educator;
(b)  for a centre-based service providing education and care to 25 to 59 children, at least 2 qualified educators;
(c)  for a centre-based service providing education and care to 60 to 80 children, at least 3 qualified educators;
(d)  for a centre-based service providing education and care to more than 80 children, at least 4 qualified educators.
(4) For the purposes of subregulation (2)(b), the number of qualified educators for a preschool is—
(a)  for a preschool providing education and care to 50 children or fewer, at least one qualified educator;
(b)  for a preschool providing education and care to 51 to 100 children, at least 2 qualified educators.
(5) On request by the Regulatory Authority, an approved provider of a centre-based service must demonstrate that the approved provider has taken into account the best interests of children (including provision of adequate supervision) in relation to replacement of qualified educators.
(6) This regulation does not apply if the qualified educator is absent from the centre-based service—
(a)  in case of an unexpected absence, for more than 5 consecutive days; or
(b)  in case of pre-arranged leave for recreation, illness or other personal leave, for any period.

265 Required qualifications to be a qualified educator—unexpected absence of qualified educator

For the purposes of regulation 264(3) and (4), an educator is qualified if he or she—
(a)  holds or is actively working towards an approved diploma level education and care qualification; or
(b)  holds an approved early childhood teaching qualification; or
(c)  is taken to be an early childhood teacher under regulation 135 or 242; or
(d)  holds a primary teaching qualification.

266 Early childhood teacher—fewer than 60 children

The requirements in regulations 130 to 132 do not apply to a centre-based service before 1 January 2014.

267 Early childhood teacher—60 or more children

(1) This regulation applies to a centre-based service that provides education and care to 60 or more children.
(2) The requirements in regulations 133(1)(a) and 134(1)(a) do not apply to the service before 1 January 2014.
(3) The requirements in regulations 133(1)(b) and 134(1)(b) do not apply to the service before 1 January 2020.

Subdivision 2 Family day care services

268 Qualifications for family day care educators

The qualification requirements in regulation 127 do not apply to family day care educators before 1 January 2014.

269 Qualifications for family day care co-ordinators

(1) This regulation applies in place of regulation 128 until 31 December 2013.
(2) One in every 3 family day care co-ordinators at a family day care service must hold an approved diploma level education and care qualification.

Subdivision 3 Criminal history record checks

269A Criminal history clearance—staff members

(1) The approved provider of an education and care service must not engage a person as a staff member of that service unless—
(a)  the approved provider has undertaken a criminal history records check in relation to the person; or
(b)  the person has provided the approved provider with—
(i)  the person’s current working with vulnerable people check; or
(ii)  proof of current registration as a teacher under the education law of the Australian Capital Territory.
Penalty: $2000.
(2) A person must not work as a staff member of an approved education and care service unless the staff member—
(a)  has consented to the approved provider undertaking a criminal history records check in relation to the person within the previous 3 years; or
(b)  the person has a current working with vulnerable people check and has provided the approved provider with that check; or
(c)  the person has a current registration as a teacher under the education law of the Australian Capital Territory and has provided the approved provider with proof of that registration.
Penalty: $2000.
(3) The staff record must also include, in relation to a staff member, a record of the identifying number of any police record check or current teacher registration obtained or provided under this regulation and the date of expiry of that check or registration.
(4) This regulation ceases to apply on 7 November 2013.

Part 7.3 New South Wales—specific provisions

Division 1 Application of Part 7.3

270 Application of Part 7.3

This Part applies to New South Wales.

Division 2 Minimum number of educators and qualifications and training required

271 Educator to child ratios—children aged 36 months or more but less than 6 years

(1) Regulation 123(1)(c) applies as modified by this section.
(2) The educator to child ratio for children aged 36 months or more but less than 6 years of age is 1 educator to 10 children.

272 Early childhood teachers—children preschool age or under

(1) This regulation applies in place of regulations 131 to 134 in relation to a centre-based service that educates and cares for 30 or more children preschool age or under.
(2) One early childhood teacher must be in attendance at all times that a centre-based service is educating and caring for 30 to 39 children preschool age or under.
(3) Two early childhood teachers must be in attendance at all times that a centre-based service is educating and caring for 40 to 59 children preschool age or under.
(4) Three early childhood teachers must be in attendance at all times that a centre-based service is educating and caring for 60 to 79 children preschool age or under.
(5) Four early childhood teachers must be in attendance at all times that a centre-based service is educating and caring for 80 or more children preschool age or under.

Division 3 Additional ongoing requirements

273 Course in child protection

The approved provider of an education and care service must ensure that the nominated supervisor of the service and any certified supervisor in day to day charge of the service has successfully completed a course in child protection approved by the New South Wales Regulatory Authority.

274 Swimming pools

(1) The approved provider of a centre-based education and care service (other than a school-based service) in New South Wales for children preschool age or under must ensure that there is no swimming pool on the service premises unless the swimming pool existed on the premises before 6 November 1996.
(2) The approved provider of a school-based service in New South Wales for children preschool age or under must ensure that there is no swimming pool on the service premises unless the swimming pool existed on the premises and the service was operating before 1 July 2008.
(3) The approved provider of a family day care service must ensure that any swimming pool at a family day care residence or approved family day care venue of the service in New South Wales is fenced in accordance with the requirements for fencing a new swimming pool under the Swimming Pools Act 1992 of New South Wales.
(4) In this regulation—
school-based service means an education and care service that is conducted by a school within the meaning of the Education Act 1990 of New South Wales;
swimming pool has the same meaning as it has in the Swimming Pools Act 1992 of New South Wales.

Division 4 Transitional and saving provisions—staffing arrangements

Subdivision 1 Centre-based services

275 Educator to child ratio—centre-based service—children aged over 24 months and less than 36 months

(1) This regulation applies in place of regulation 123(1)(b) until 31 December 2015.
(2) The educator to child ratio for a centre-based service for children aged over 24 months but less than 36 months is 1 educator to 8 children.

276 Number of children who can be educated and cared for—family day care educator

(1) This regulation applies in place of regulation 124 until 31 December 2013.
(2) A family day care educator must not educate and care for more than 7 children who are under 12 years of age at any one time.
(3) In determining the number of children who can be educated and cared for by a family day care educator—
(a)  no more than 5 of the children educated and cared for by a family day care educator can be children who do not ordinarily attend school;
(b)  if the children are being educated and cared for at a residence, the educator’s own children and any other children at the residence are to be taken into account if—
(i)  they are under 12 years of age; and
(ii)  there is no other adult present and caring for the children.
(4) Despite subregulations (1) to (3), the approved provider of a family day care service may approve, in writing, a family day care educator to educate and care for more than 7 children, or more than 5 children who are preschool age or under, at any one time, in exceptional circumstances.
(5) For the purposes of subregulation (4), exceptional circumstances exist if—
(a)  all the children being educated and cared for by the family day care educator are siblings in the same family; or
(b)  a child to be educated and cared for is determined to be in need of protection under a child protection law and the family day care educator is determined to be the best person to educate and care for the child; or
(c)  the family day care residence or approved family day care venue is in a rural or remote area and no alternative education and care service is available.
(6) In subregulation (3), children who do not ordinarily attend school includes children preschool age or under.

277 Qualifications for educators—centre-based services

The qualification requirements in regulation 126 do not apply to educators at a centre-based service before 1 January 2014.

278 Qualifications for primary contact staff members—saving

(1) This regulation applies to a person who—
(a) was employed by an education and care service at any time in the period beginning on (and including) 1 January 2010 and ending on the scheme commencement day; and
(b) met the requirements of regulation 52(2) of the Children’s Services Regulation 2004 of New South Wales.
(2) The person is taken to hold an approved certificate III level education and care qualification for the purposes of the Law and these Regulations.
(3) This regulation does not apply to a person who holds, or is taken under another provision of these Regulations to hold, an approved certificate III level education and care qualification or an approved diploma level education and care qualification.

279 Early childhood teacher—centre-based service—fewer than 30 children

(1) This regulation applies to a centre-based service that provides education and care to fewer than 30 children.
(2) The requirements in regulations 130 to 132 do not apply to the service before 1 January 2014.

Subdivision 2 Family day care services

280 Qualifications for family day care educators

The qualification requirements in regulation 127 do not apply to family day care educators before 1 January 2014.

281 Qualifications for family day care co-ordinators

The qualification requirements in regulation 128 do not apply to family day care co-ordinators before 1 January 2014.

Division 5 Transitional and saving provisions—temporary waivers

282 Definition of Early Childhood Teacher Interim Policy

In this Division, Early Childhood Teacher Interim Policy means the New South Wales Department of Community Services Early Childhood Teacher Interim Policy, dated March 2006 (updated September 2008).

283 Early childhood teacher interim policy approval

(1) This regulation applies to a declared approved provider in New South Wales who—
(a) is taken to be an approved provider under section 306 of the Law; and
(b) who immediately before the scheme commencement day held a current approval under the Early Childhood Teacher Interim Policy in relation to the qualification requirements for early childhood teachers under the Children’s Services Regulation 2004 of New South Wales.
(2) The approval is taken to be a temporary waiver of the equivalent requirements under regulation 272 subject to any condition on the approval.
(3) The temporary waiver under subregulation (2) ends on 1 January 2013 or the expiry of the period for which the approval was granted, whichever is the earlier.

284 Application for early childhood teacher interim policy approval

(1) This regulation applies to a declared approved provider in New South Wales who—
(a) is taken to be an approved provider under section 306 of the Law; and
(b) immediately before the scheme commencement day had applied for an approval under the Early Childhood Teacher Interim Policy, but the application had not yet been determined.
(2) The application for the approval is taken to be an application under the Law for a temporary waiver.
Note—
The Regulatory Authority may exercise powers under section 96 of the Law in relation to the application.

Division 6 Transitional provisions—physical environment

285 Space requirements

(1) Subject to subregulation (3), this regulation applies to a declared approved service if the former approval in respect of that service was subject to space requirements under clause 4(1)(c) of Schedule 2 to the Children’s Services Regulation 2004 of New South Wales.
(2) The declared approved service is not required to comply with regulations 107 and 108 to the extent that the service complies with the space requirements in the former approval.
(3) For the purpose of a rating assessment under Part 5 of the Law the declared approved service is taken to comply with regulations 107 and 108 to the extent that the service complies with the space requirements in the former approval.
(4) This regulation ceases to apply when the service premises are renovated.
Note—
See also Division 7 of Part 7.1.

286 School based children’s services operating before 1 July 2008—saving

(1) Subject to subregulation (4), this regulation applies to a declared approved service that immediately before the scheme commencement day was a school based children’s service (within the meaning of the Children’s Services Regulation 2004 of New South Wales), operating before 1 July 2008.
(2) Regulations 107, 108 and 115 do not apply to the service.
(3) For the purpose of a rating assessment under Part 5 of the Law, the declared approved service is taken to comply with regulations 107, 108 and 115.
(4) This regulation ceases to apply if—
(a) the service approval is transferred to an approved provider who is not a school; or
(b) the service ceases to be provided by a school on school premises.
Note—
See also Division 7 of Part 7.1.

287 Declared out of scope services—indoor space requirements

(1) This regulation applies to a declared out of scope service in New South Wales for which a person is taken to hold a service approval under section 309 of the Law.
(2) If, immediately before the scheme commencement day, the premises of the declared out of scope service did not comply with regulation 107—
(a)  that regulation does not apply to the declared out of scope service until—
(i)  the premises of the declared out of scope service are renovated; or
(ii)  the service approval for the declared out of scope service is transferred under section 58 of the Law; and
(b)  for the purpose of a rating assessment under Part 5 of the Law, the declared out of scope service is taken to comply with that regulation until the first of the following to occur—
(i)  the premises of the declared out of scope service are renovated; or
(ii)  the service approval for the declared out of scope service is transferred under section 58 of the Law.
Note—
See also Division 7 of Part 7.1.

Part 7.4 Northern Territory—specific provisions

Division 1 Application of Part 7.4

288 Application of Part 7.4

This Part applies to the Northern Territory.

Division 2 Children over preschool age—minimum number of educators and qualifications required

289 Educator to child ratio—children over preschool age

(1) For the purposes of regulation 123(1)(d), the educator to child ratio for children over preschool age is 1 educator to 15 children.
(2) This regulation does not apply before 1 January 2014.

290 General qualification requirements for educators—children over preschool age

(1) This regulation sets out the qualification requirement for educators at a centre-based service educating and caring for children over preschool age for the purposes of regulation 126(2).
(2) At least 50 per cent of the educators required to meet the educator to child ratio for children over preschool age must hold, or be actively working towards, one of the following—
(a)  a qualification that is published under regulation 137(2) in the list of approved qualifications for educators working with children over preschool age for the Northern Territory; or
(b)  a 2 year accredited post-secondary course in child care; or
(c)  a post-secondary sports and recreation or teaching qualification.
(3) This regulation does not apply before 1 January 2014.

Division 3 Transitional and saving provisions—staffing arrangements

Subdivision 1 Centre-based services

291 Educator to child ratio—preschool services

(1) The requirement in regulation 123(1)(c) does not apply to a centre-based service that is a government pre-school or non-government registered pre-school before 1 January 2016.
(2) In this regulation—
government pre-school means a pre-school established under section 6 of the Education Act of the Northern Territory;
non-Government registered pre-school means a pre-school that is part of a registered non-Government school under Part 7 of the Education Act of the Northern Territory.

292 Qualifications for educators—centre-based services

The qualification requirements in regulation 126(1)(b) do not apply to educators at a centre-based service before 1 January 2014.

293 Early childhood teacher—fewer than 60 children

(1) This regulation applies to a centre-based service that provides education and care to fewer than 60 children.
(2) The requirements in regulations 130 to 132 do not apply to the service before 1 January 2014.

294 Early childhood teacher—60 or more children

(1) This regulation applies to a centre-based service that provides education and care to 60 or more children.
(2) The requirements in regulations 133(1)(a) and 134(1)(a) do not apply to the service before 1 January 2014.
(3) The requirements in regulations 133(1)(b) and 134(1)(b) do not apply to the service before 1 January 2020.

Subdivision 2 Family day care services

295 Number of children who can be educated and cared for by family day care educator

The requirements in regulation 124 do not apply to a family day care service before 1 January 2014.

296 Qualifications for family day care educators

The qualification requirements in regulation 127 do not apply to family day care educators before 1 January 2014.

Part 7.5 Queensland—specific provisions

Division 1 Application of Part 7.5

297 Application of Part 7.5

This Part applies to Queensland.

Division 2 Children over preschool age—minimum number of educators and qualifications required

298 Educator to child ratio—children over preschool age

For the purposes of regulation 123(1)(d), the educator to child ratio for children over preschool age is 1 educator to 15 children.

299 General qualification requirements for educators—children over preschool age

(1) This regulation sets out the qualification requirement for educators at a centre-based service educating and caring for children over pre-school age for the purposes of regulation 126(2).
(2) On any day that the centre-based service educates and cares only for children over preschool age, at least one educator who holds or is actively working towards a minimum 2 year relevant qualification must be present at the education and care service premises—
(a) if the service educates and cares for children for more than 7 hours and 15 minutes on that day—for at least 7 hours and 15 minutes of the time the service is educating and caring for children; or
(b) otherwise—at all times the service is educating and caring for children.
(3) The qualification requirements in subregulation (2) do not apply to an educator if the educator is at least 18 years of age and has been engaged at the education and care service for not more than 6 months.
(4) If the centre-based service educates and cares for 30 or more children at least one educator for every 30 children must hold, or be actively working towards, at least a 1 year relevant qualification.
(5) The qualification requirements in subregulation (4) do not apply to an educator if the educator is at least 18 years of age and has been engaged at the education and care service for not more than 3 months.
(6) All educators who are under 18 years of age must hold or be actively working towards at least a minimum 1 year relevant qualification.
(7) In this regulation—
relevant qualification means a qualification that is published under regulation 137(2) in the list of approved qualifications for educators working with children over preschool age for Queensland.

Division 3 Transitional provisions—staffing arrangements—general

Subdivision 1 Centre-based services

300 Educator to child ratios—children aged 15 months to 24 months

(1) This regulation applies to a declared approved service that—
(a)  was granted a licence under the former education and care services law of Queensland before 1 January 2011; and
(b)  immediately before the scheme commencement day educated and cared for children aged 15 months or more up to and including 24 months.
(2) The educator to child ratio for the service for children aged 15 to 24 months is 1 educator to 5 children.
(3) The educator to child ratio in subregulation (2) applies in place of regulation 123(1)(a) until—
(a)  31 March 2012, unless paragraph (b) applies; or
(b)  if the approved provider applies to the Regulatory Authority under subregulation (4), that application is finally determined.
(4) If, on the application of the approved provider, the Regulatory Authority decides that it is necessary for the service to continue to apply the educator to child ratio in subregulation (2), that ratio continues to apply in place of regulation 123(1)(a) until 31 December 2017.

301 Educator to child ratios—children aged over 24 months to 13 years

(1) This regulation applies to a centre-based service in place of regulation 123(1)(b) and (c) and for the purposes of regulation 123(1)(d) until 31 December 2015.
(2) The educator to child ratios applying to a centre-based service are as follows—
(a)  for children aged more than 24 months but less than 36 months—1 educator to 6 children;
(b)  for children aged more than 30 months but less than 36 months—1 educator to 8 children;
(c)  for children aged at least 3 years but under 7 years—1 educator to 12 children;
(d)  for children aged at least 4 years but under 7 years—1 educator to 13 children;
(e)  for children aged at least 4 years but under 13 years—1 educator to 12 children.
(3) Subregulation (2) does not apply to a service providing education and care solely to children over preschool age.

302 General qualifications for educators—centre-based services

(1) This regulation applies to a centre-based service in place of regulation 126(1) until 31 December 2013.
(2) This regulation sets out the qualification requirements for educators at a centre-based service educating and caring for children preschool age or under.
(3) The first of every 2 educators required to meet the relevant educator to child ratio for the centre-based service must—
(a)  hold—
(i)  an approved diploma level education and care qualification; or
(ii)  a qualification that is published under regulation 137(2) in the list of former qualifications approved as diploma level education and care qualifications; or
(b)  be actively working towards a qualification referred to in paragraph (a) and hold one of the following qualifications—
(i)  a certificate III or IV in an area of study applying to childcare workers under the Australian Qualifications Framework;
(ii)  a 1 year qualification in early childhood or childcare studies;
(iii)  a qualification that, immediately before the scheme commencement day, was approved under the Child Care Regulation 2003 of Queensland as equivalent to a qualification referred to in subparagraph (i) or (ii).
(4) The qualification requirements in subregulation (3) do not apply to an educator if the educator—
(a)  is at least 18 years of age; and
(b)  holds a qualification referred to in subregulation (3)(b)(i) to (iii); and
(c)  has been engaged at the education and care service for not more than 3 months.
(5) Any other educators required to meet the relevant educator to child ratio for the centre-based service must—
(a)  hold—
(i)  an approved certificate III level education and care qualification; or
(ii)  a qualification referred to in subregulation (3)(a); or
(b)  be actively working towards a qualification referred to in paragraph (a).
(6) The qualification requirements in subregulation (5) do not apply to an educator if the educator is at least 18 years of age and has been engaged at the education and care service for not more than 3 months.

303 Early childhood teacher—fewer than 60 children

(1) This regulation applies to a centre-based service that provides education and care to fewer than 60 children.
(2) The requirements in regulations 130 to 132 do not apply to the service before 1 January 2014.

304 Early childhood teacher—60 or more children

(1) This regulation applies to a centre-based service that provides education and care to 60 or more children.
(2) The requirements in regulations 133(1)(a) and 134(1)(a) do not apply to the service before 1 January 2014.
(3) The requirements in regulations 133(1)(b) and 134(1)(b) do not apply to the service before 1 January 2020.

Subdivision 2 Family day care services

305 Number of children who can be educated and cared for by a family day care educator

(1) This regulation applies in place of regulation 124 until 31 December 2015.
(2) A family day care educator must not educate and care for more than 7 children at any one time (not including the educator’s own children who are over preschool age).
(3) No more than 4 of the children educated and cared for by a family day care educator can be preschool age or under.
(4) No more than 7 children can be educated and cared for as part of a family day care service at a family day care residence or an approved family day care venue at any one time.
(5) Subregulation (4) does not apply to children visiting a family day care residence or an approved family day care venue as part of an excursion.
Note
A visiting family day care educator must do a risk assessment for the excursion under regulation 100.
(6) Despite subregulations (2) to (5), the approved provider of a family day care service may approve, in writing, a family day care educator to educate and care for more than 7 children, or more than 4 children who are preschool age or under, at any one time, in exceptional circumstances.
(7) For the purposes of subregulation (6), exceptional circumstances exist if—
(a)  all the children being educated and cared for by the family day care educator are siblings in the same family; or
(b)  a child to be educated and cared for is determined to be in need of protection under a child protection law and the family day care educator is determined to be the best person to educate and care for the child; or
(c)  the family day care residence or approved family day care venue is in a rural or remote area and no alternative education and care service is available.
(8) The approved provider must notify the regulatory authority in writing within 24 hours after approving a family day care educator to educate and care for more than 7 children, or more than 4 children who are preschool age or under, at any one time.
(9) The notice under subregulation (8) must specify—
(a)  the total number of children to be educated and cared for by the family day care educator; and
(b)  the proposed duration of the education and care to be provided to the additional children; and
(c)  the exceptional circumstances on which the approval was based.
(10) The approved provider who gave an approval under subregulation (6) must provide the regulatory authority with any additional information requested by the authority to enable the authority to satisfy itself as to the health, safety and wellbeing of the children being educated and cared for.

306 Qualifications for family day care educators

The qualification requirements in regulation 127 do not apply to family day care educators before 1 January 2014.

307 Qualifications for family day care co-ordinators

(1) This regulation applies in place of regulation 128 until 31 December 2013.
(2) A family day care co-ordinator must hold one of the following qualifications—
(a)  an approved diploma level education and care qualification;
(b)  a diploma in community services under the Australian Qualifications Framework;
(c)  a 2 year qualification published under regulation 137(2) in the list of approved qualifications or former qualifications for family day care coordinators for Queensland.

Division 4 Transitional provisions—staffing arrangements during rest periods, rest pauses and short absences

Subdivision 1 Definitions

308 Definitions

In this Division—
rest pause means a short break taken by a person from duties of the person’s employment;
rest period condition, in relation to a former approval for a declared approved service, means a condition—
(a) included in the former approval under section 63 of the Child Care Act 2002 of Queensland, providing for 1 or more periods during a day, totalling not more than 2 hours during the day, to be rest periods for the service; and
(b) that is taken to be a condition on a service approval for the declared approved service under section 307(8) of the Law.

Subdivision 2 Former approval with rest period condition

309 Application of Subdivision 2

This Subdivision applies if the former approval for a declared approved service included a rest period condition.

310 Educator to child ratios

(1) Despite anything to the contrary in these Regulations, the educator to child ratios in subregulation (2) apply to the service during a rest period specified in the condition until the first of the following to occur—
(a)  the surrender or cancellation of the service approval;
(b)  the removal of the condition from the service approval by the Regulatory Authority;
(c)  31 December 2019.
(2) The educator to child ratios are—
(a)  for children over 24 months but less than 36 months of age—
(i)  for the first 12 children, 1 educator to 12 children;
(ii)  for any additional children, 1 educator to 6 children;
(b)  for children over 30 months but less than 36 months of age—
(i)  for the first 16 children, 1 educator to 16 children;
(ii)  for any additional children, 1 educator to 8 children;
(c)  for children at least 3 years but under 7 years of age—
(i)  for the first 24 children, 1 educator to 24 children;
(ii)  for any additional children, 1 educator to 12 children;
(d)  for children at least 4 years but under 7 years of age—
(i)  for the first 26 children, 1 educator to 26 children;
(ii)  for any additional children, 1 educator to 13 children;
(e)  for children at least 4 years but under 13 years of age—
(i)  for the first 24 children, 1 educator to 24 children;
(ii)  for any additional children, 1 educator to 12 children.
(3) If the declared approved service educates and cares for fewer than 31 children, during a rest period 1 staff member or volunteer may be counted as an educator for every 3 educators included in the required educator to child ratio.

311 Additional staff members or volunteers

In addition to the educators required to meet the educator to child ratios in regulation 310(2), the following additional staff members or volunteers must be present at the declared approved service premises during a rest period and be able to attend to children immediately (if required)—
(a)  for a declared approved service with no more than 30 approved places—1 staff member or volunteer;
(b)  for a declared approved service with at least 31 but no more than 75 approved places—2 staff members or volunteers;
(c)  for a declared approved service with 76 or more approved places—3 staff members or volunteers.

312 Qualifications for educators

(1) All educators required to meet the relevant educator to child ratio during a rest period set out in regulation 310 must have attained the age of at least 17 years and hold or be actively working towards an approved certificate III level education and care qualification.
(2) If the declared approved service complies with subregulation (1), the service is taken to meet the relevant qualification requirements for educators during rest periods.

Subdivision 3 Rest pauses and short absences

313 (Repealed)

314 Educator to child ratios when educator or early childhood teacher on rest pause

(1) This regulation applies until 31 December 2019.
(2) A centre-based service is taken to meet the relevant educator to child ratio while an educator or early childhood teacher is on a rest pause if—
(a)  the rest pause is not more than 10 minutes duration; and
(b)  the educator or early childhood teacher has not already taken more than 1 rest pause that day; and
(c)  there is a specified person present at the education and care service premises during the rest pause who is—
(i)  not working with children; and
(ii)  able to attend to children immediately if required; and
Note—
The person may be the educator or early childhood teacher who is taking the rest pause.
(d)  only one educator or early childhood teacher counted in the relevant required educator to child ratio is absent on a rest pause at any one time; and
(e)  if the centre-based service has a rest period condition, the educator or early childhood teacher does not take the rest pause during a rest period.
(3) During a rest pause taken by an educator or early childhood teacher in accordance with subregulation (2), the centre-based service is taken to meet the relevant qualification requirements for educators.
(4) In this regulation, a reference to an early childhood teacher is a reference to an early childhood teacher who is counted as an educator in calculating the educator to child ratio of the service.
Note—
An early childhood teacher cannot be counted as an educator in calculating the educator to child ratio unless the teacher is working directly with children—see regulation 122.
(5) In this regulation—
qualification in a relevant area of study means a qualification published under regulation 137(2) in a list of approved qualifications for Queensland in one of the following areas of study—
(a)  early childhood education and care;
(b)  nursing, physiotherapy, occupational therapy, diversional therapy or speech pathology;
(c)  primary, secondary or special education;
(d)  human welfare studies and services;
(e)  behavioural science;
(f)  sport and recreation;
(g)  creative arts, fine arts, drama or music;
(h)  community services;
specified person means—
(a)  a staff member or volunteer who is at least 18 years of age; or
(b)  a staff member or volunteer who is at least 17 years of age and who holds or is actively working towards one of the following qualifications—
(i)  unless subparagraph (ii) applies, an approved certificate III level education and care qualification; or
(ii)  if the centre-based service educates and cares only for children over preschool age—
(A)  a certificate III or IV in community services under the Australian Qualifications Framework; or
(B)  a 1 year qualification in a relevant area of study; or
(C)  a qualification that is higher than a qualification referred to in sub-subparagraph (A) or (B).

315 Access to or attendance of early childhood teacher on rest pause

(1) This regulation applies until 31 December 2019.
(2) An early childhood teacher is taken to be in attendance at the centre-based service or the service is taken to have access to an early childhood teacher (as the case requires), while the early childhood teacher is on a rest pause if—
(a)  the early childhood teacher’s rest pause is not more than 10 minutes duration; and
(b)  the early childhood teacher has not already taken more than 1 rest pause that day; and
(c)  if the centre-based service has a rest period condition, the early childhood teacher does not take a rest pause during a rest period.

316 Educator to child ratios when educator or early childhood teacher absent for 5 minutes or less

(1) This regulation applies until 31 December 2019.
(2) A centre-based service is taken to meet the relevant educator to child ratio during the absence of an educator or early childhood teacher if—
(a)  the educator or early childhood teacher is absent for not more than 5 minutes; and
(b)  the educator or early childhood teacher is not absent on a rest pause or during a rest period; and
(c)  no other educator or early childhood teacher counted in the relevant required educator to child ratio is absent during that absence.
(3) During the absence of an educator or early childhood teacher in accordance with subregulation (2), the centre-based service is taken to meet the relevant qualification requirements for educators.
(4) In this regulation, a reference to an early childhood teacher is a reference to an early childhood teacher who is counted as an educator in calculating the educator to child ratio of the service.
Note—
An early childhood teacher cannot be counted as an educator in calculating the educator to child ratio unless the teacher is working directly with children—see regulation 122.

317 Access to or attendance of early childhood teacher absent for 5 minutes or less

(1) This regulation applies until 31 December 2019.
(2) An early childhood teacher is taken to be in attendance at the centre-based service or the service is taken to have access to an early childhood teacher (as the case requires), while the early childhood teacher is absent if—
(a) the early childhood teacher is absent for not more than 5 minutes; and
(b) the early childhood teacher is not absent on a rest pause or during a rest period.

Part 7.6 South Australia—specific provisions

Division 1 Application of Part 7.6

318 Application of Part 7.6

This Part applies to South Australia.

319 Definitions

In this Part—
government preschool means a government operated kindergarten that is a children’s services centre within the meaning of the Children’s Services Act 1985 of South Australia;
non-government school means a non-government school registered under the Education and Early Childhood Services (Registration and Standards) Act 2011 of South Australia or a former education and services law of South Australia;
preschool means a government preschool or a preschool program provided by a nongovernment school;
preschool aged child means a child aged over 36 months who is not a child over preschool age;
rural preschool means a government preschool that is designated as a rural preschool under the South Australian Department of Education and Children’s Services policy GP 23—Policy on DECS Children’s Services for Rural Communities.

Division 2 Minimum number of educators and qualifications required—over preschool age

320 Educator to child ratios—children over preschool age

For the purposes of regulation 123(1)(d), the educator to child ratio for children over preschool age is 1 educator to 15 children.

321 General qualification requirements for educators—children over preschool age

(1) This regulation sets out the qualification requirement for educators at a centre-based service educating and caring for children over preschool age for the purposes of regulation 126(2).
(2) The first of every 2 educators required to meet the educator to child ratio for children over preschool age must hold a qualification that is published under regulation 137(2) in the list of approved qualifications for educators working with children over preschool age for South Australia.

Division 3 Minimum number of educators and qualifications required—preschool age or under

Subdivision 1 Centre-based services

322 Educator to child ratios—disadvantaged preschools

(1) This regulation applies in place of regulation 123(1)(c) on and after 1 January 2016 for disadvantaged preschools.
(2) The educator to child ratio for preschool aged children is 1 educator to 10 children.
(3) In this regulation disadvantaged preschool means a preschool that—
(a) is provided on a school site by a non-government school or is a government preschool; and
(b) is ranked as Category 1 for disadvantage under the South Australian Department of Education and Children’s Services Category Ranking Policy.

323 Educator to child ratios—preschool children at an education and care service

(1) This regulation applies in place of regulation 123(1)(c) for an education and care service other than a preschool.
(2) The educator to child ratio for preschool aged children is 1 educator to 10 children.

324 Early childhood teachers—preschools

(1) This regulation applies in place of regulation 126 for preschools.
(2) Until 1 January 2014, the first and third educators required to meet the educator to child ratio for preschool aged children in a preschool must be early childhood teachers.
(3) On and after 1 January 2014, the first and second educators required to meet the educator to child ratio for preschool aged children in a government preschool (other than a prescribed preschool) must be early childhood teachers.
(4) On and after 1 January 2014, the first and third educators required to meet the educator to child ratio for preschool aged children in a prescribed preschool must be early childhood teachers.
(4A) If an early childhood teacher is absent from a preschool because of short-term illness or leave, the following persons may be taken for the purposes of this regulation to be an early childhood teacher during that absence—
(a)  a person who holds an approved diploma level education and care qualification;
(b)  a person who holds a qualification in primary teaching.
(4B) To avoid doubt, subregulation (4A) does not apply in case of a period of leave exceeding 12 weeks.
(5) In this regulation—
prescribed preschool means—
(a)  a preschool provided by a school on the site of a school; or
(b)  a rural preschool; or
(c)  a preschool with fewer than 16 children.

Subdivision 2 Family day care services

325 Qualifications for family day care educators

(1) This regulation applies in place of regulation 127.
(2) A family day care educator must hold at least an approved certificate III level education and care qualification.

Division 3A Minimum number of educators during short absences

325A Educator to child ratios during short absence of educators

(1) A centre-based service is taken to meet the relevant educator to child ratio while an educator is not working directly with children if—
(a) the educator’s total periods away from working directly with children do not exceed 30 minutes in a day; and
(b) during each period away from working directly with children, the educator is available to attend to children immediately if required.
(2) For the purpose of a rating assessment under Part 5 of the Law, the centre-based service is taken to comply with regulation 123.
Note—
See Division 7 of Part 7.1.

Division 4 Transitional and saving provisions—staffing arrangements

Subdivision 1 Centre-based services

326 Educator to child ratios—children aged over 24 months but less than 36 months

(1) This regulation applies in place of regulation 123(1)(b) until 31 December 2015.
(2) The following educator to child ratios apply to a centre-based service for children over 24 months but less than 36 months of age—
(a) for the first 8 children, 1 educator to 8 children;
(b) for any additional children, 1 educator to 10 children.

327 Educator to child ratios—preschool aged children

(1) This regulation applies to a preschool in place of regulation 123(1)(c) until 31 December 2015.
(2) The educator to child ratio for preschool aged children attending the preschool is 1 educator to 13 children.

328 Qualifications for educators—centre-based services other than preschools

(1) This regulation applies until 31 December 2013 to a centre-based service other than a preschool.
(2) Subregulations (3), (4) and (5) apply in place of regulation 126(1)(a).
(3) For every 20 children aged 24 months or less at least 1 educator must hold an acceptable tertiary qualification in children’s services or early childhood education.
(4) For every 35 children aged more than 24 months (not including children over preschool age), at least 1 educator must hold an acceptable tertiary qualification in children’s services or early childhood education.
(5) Despite subregulations (3) and (4), if not more than 15 children preschool age or under are being educated and cared for and they are of mixed ages, at least 1 educator must hold an acceptable tertiary qualification in children’s services or early childhood education.
(6) The qualification requirements in regulation 126(1)(b) do not apply to any other educator at the centre-based service in the circumstances set out in subregulations (3) to (5), unless the educator has not attained the age of 18 years.
(7) For the purposes of this regulation—
acceptable tertiary qualification in children’s services or early childhood education means—
(a)  an approved early childhood teaching qualification; or
(b)  an approved diploma level education and care qualification; or
(c)  a qualification published under regulation 137(2) in the list of former qualifications approved as early childhood teaching qualifications or diploma level education and care qualifications.

329 Qualifications for other educators—preschools

(1) This regulation applies until 31 December 2013.
(2) The qualification requirements in regulation 126(1)(b) do not apply to an educator required to meet the educator to child ratio at a preschool unless the educator has not attained the age of 18 years.

330 Early childhood teacher—fewer than 25 children

(1) This regulation applies to a centre-based service that—
(a) provides education and care to fewer than 25 children; and
(b) is not a preschool.
(2) The requirements in regulations 130 to 132 do not apply to the service before 1 January 2014.

331 Early childhood teacher—25 to 59 children

(1) This regulation applies to a centre-based service that—
(a) provides education and care to 25 or more but fewer than 60 children; and
(b) is not a preschool.
(2) The requirements in regulations 130 to 132 do not apply to the service before 1 January 2014.

332 Early childhood teacher—60 or more but fewer than 81 children

(1) This regulation applies to a centre-based service that—
(a) provides education and care to 60 or more but fewer than 81 children; and
(b) is not a preschool.
(2) The requirements in regulation 133(1)(a) do not apply to the service before 1 January 2014.
(3) The requirements in regulation 133(1)(b) do not apply to the service before 1 January 2020.

333 Early childhood teacher in attendance—more than 80 children

(1) This regulation applies to a centre-based service that—
(a) provides education and care to more than 80 children; and
(b) is not a preschool.
(2) The requirements in regulation 134(1)(a) do not apply to the service before 1 January 2014.
(3) The requirements in regulation 134(1)(b) do not apply to the service before 1 January 2020.

Subdivision 2 Family day care services

334 Educator to child ratios—exemption condition for family day care services

(1) If the former approval for a declared approved family day care service included an exemption condition, regulation 124 does not apply in relation to the educator specified in the exemption until the earlier of—
(a)  any expiry date specified in the exemption condition; or
(b)  1 January 2020.
(2) In this regulation—
exemption condition, in relation to a former approval for a declared approved family day care service, means a condition—
(a)  included in the former approval under section 33(2b) of the Children’s Services Act 1985 of South Australia, providing for a specified family day care educator to care for more than 4 young children, or more than 7 children in total, at any one time; and
(b)  that is taken to be a condition on a service approval for the declared approved family day care service under section 307(8) of the Law in relation to that specified educator.

335 Transitional provision—educator to child ratios—Regulatory Authority may continue to exempt family day care service

(1) This regulation applies until 31 December 2019.
(2) The Regulatory Authority may grant an exemption from regulation 124 to an approved provider of a family day care service in respect of a specified family day care educator if—
(a)  all children being educated and cared for by the family day care educator are of the same family; or
(b)  no more than 8 children are being educated and cared for by the family day care educator and the Regulatory Authority is satisfied that special circumstances exist; or
(c)  an exemption applies under regulation 334 in respect of that family day care educator and an extension to that exemption is sought.
(3) An exemption granted under subregulation (2) will only apply—
(a)  in the case of an exemption under subregulation (2)(a)—to children of the family; or
(b)  in the case of an exemption under subregulation (2)(b) or (c), to the children being educated and cared for by the family day care educator at the time the exemption is granted.
(4) An exemption granted under subregulation (2) may be subject to any conditions the Regulatory Authority thinks fit.
(5) If an exemption is granted under subregulation (2), from the day it is granted until the earlier of any expiry date specified in the exemption or 31 December 2019—
(a)  the exemption is taken to be a condition on the family day care service approval; and
(b)  regulation 124 does not apply in relation to the educator specified in the exemption.

336 Family day care educators

(1) This regulation applies until 31 December 2015.
(2) The requirements of regulations 127 and 325 do not apply to a family day care educator who—
(a) was approved under the Children’s Services Act 1985 of South Australia before the scheme commencement day; and
(b) was not required under that Act to hold at least a certificate III level education and care qualification.

Division 5 Saving provisions—physical environment

337 Centre-based services indoor space requirements

(1) Subject to subregulation (5), this regulation applies to a declared approved service that—
(a)  is a centre-based service that was first licensed under the Children’s Services Act 1985 of South Australia before 3 April 1999; and
(b)  immediately before the scheme commencement day held an exemption from a requirement under the Children’s Services (Child Care Centre) Regulations 1998 of South Australia in relation to the minimum useable indoor play space at service premises.
(2) Regulation 107 does not apply to the service premises.
(3) The declared approved service is required to comply with the requirements in relation to play room floor area set out in the Child Care Centre Regulations 1985 of South Australia (as in force immediately before they were revoked).
(4) For the purpose of a rating assessment under Part 5 of the Law, the declared approved service is taken to comply with regulation 107 if subregulation (3) is complied with.
(5) This regulation ceases to apply if—
(a)  the service approval is transferred to another approved provider; or
(b)  the service premises are renovated.
Note—
See also Division 7 of Part 7.1.

338 Preschool indoor and outdoor space requirements

(1) Subject to subregulation (4), this regulation applies to a declared approved service that is a preschool.
(2) Regulations 107 and 108 do not apply to the service premises.
(3) For the purpose of a rating assessment under Part 5 of the Law, the declared approved service is taken to comply with regulations 107 and 108 in respect of the service premises.
(4) This regulation ceases to apply if—
(a) the service approval is transferred to another approved provider; or
(b) the service premises are renovated.
Note—
See also Division 7 of Part 7.1.

339 Over preschool age—indoor space requirements

(1) Subject to subregulation (4), this regulation applies to a declared approved service that provides education and care only to children over preschool age at the service premises.
(2) Regulation 107 does not apply to the service premises if there is indoor space of not less than 2.8 square metres per child.
(3) For the purpose of a rating assessment under Part 5 of the Law the declared approved service is taken to comply with regulation 107 in respect of the service premises if subregulation (2) is complied with.
(4) This regulation ceases to apply if—
(a) the service approval is transferred to another approved provider; or
(b) the service premises are renovated.
Note—
See also Division 7 of Part 7.1.

Part 7.7 Tasmania—specific provisions

Division 1 Application of Part 7.7

340 Application of Part 7.7

This Part applies to Tasmania.

Division 2 Staffing arrangements

341 Educator to child ratio—children over preschool age

For the purposes of regulation 123(1)(d), the educator to child ratio for children over preschool age is 1 educator to 15 children.

342 Educator to child ratio—children preschool age and under who are 36 months of age or over

(1) This regulation applies to a centre-based service in place of regulation 123(1)(c).
(2) The educator to child ratio for children preschool age or under who are 36 months of age or over is—
(a) for children attending a preschool program, 2 educators to 25 children; and
(b) otherwise, 1 educator to 10 children.

343 Qualifications for educators—preschools

(1) This regulation applies in place of regulation 126(1)(a) to a centre-based service that delivers a preschool program.
(2) The first of every 2 educators included in the educator to child ratio for children attending the preschool program must hold an approved early childhood teaching qualification.

344 Safety screening clearance—staff members

(1) The approved provider of an education and care service must not engage a person as a staff member of that service unless the staff member holds a working with vulnerable people registration or a current safety screening clearance.
Penalty: $2000.
(2) The approved provider of an education and care service must ensure that a person who is 18 years of age or older who is a volunteer at, or a student on a practicum placement at the service holds proof that he or she holds a working with vulnerable people registration or a current safety screening clearance issued by the Department of Education of Tasmania.
(3) This regulation ceases to apply when a declaration is made under a law of Tasmania that a law is a working with children law for Tasmania for the purposes of the Law.

Division 3 Swimming pools

345 Swimming pool prohibition

The approved provider of an education and care service must ensure that there is no swimming pool on the education and care service premises.

Division 4 Transitional provisions—staffing arrangements

Subdivision 1 Centre-based services

346 Educator to child ratios—certain declared approved services

(1) This regulation applies until 31 December 2017.
(2) This regulation applies to a declared approved service that immediately before the scheme commencement day was educating and caring for children over 24 months but less than 72 months of age using an educator to child ratio that is equivalent to subregulation (3) in accordance with the former education and care services law of Tasmania.
(3) The educator to child ratio for that service is 1 educator to 7 children over 24 months but less than 72 months of age if not more than 3 of the children are less than 36 months of age.
(4) Regulation 123(1)(b) and (c) do not apply to the centre-based service to the extent that a ratio in subregulation (3) applies.

347 Qualifications for educators

(1) This regulation applies to a centre-based service (other than a service delivering a preschool program) in place of regulation 126(1) until 31 December 2013.
(2) At least 1 of every 2 educators required to meet the relevant educator to child ratio for a centre-based service for children preschool age or under must hold at least an approved diploma-level education and care qualification.

348 Early childhood teacher in attendance—fewer than 60 children

(1) This regulation applies to a centre-based service that provides education and care to fewer than 60 children.
(2) The requirements in regulations 130 to 132 do not apply to the service before 1 January 2014.

349 Early childhood teacher in attendance—60 or more children

(1) This regulation applies to a centre-based service that provides education and care to 60 or more children.
(2) The requirements in regulations 133(1)(a) and 134(1)(a) do not apply to the service before 1 January 2014.
(3) The requirements in regulations 133(1)(b) and 134(1)(b) do not apply to the service before 1 January 2020.

Subdivision 2 Family day care services

350 Number of children who can be educated and cared for—family day care educators

(1) This regulation applies in place of regulation 124(1) to (4) until 31 December 2013.
(2) A family day care educator must not educate and care for more than 7 children at any one time.
(3) No more than 4 of the children educated and cared for by the family day care educator can be aged under 5 years, unless subregulation (4) applies.
(4) If, immediately before the scheme commencement day, the family day care educator held an extended registration under the former education and care services law, no more than 5 of the children educated and cared for by the family day care educator can be aged under 5 years.
(5) Subregulation (4) only applies while the family day care educator is providing the education and care with the declared approved service that granted the extended registration and only while the extended registration is in force.
(6) The approved provider of the declared approved service that granted an extended registration referred to in subregulations (4) and (5) may cancel the extended registration if the provider considers it appropriate to do so.

351 Qualifications for family day care educators

The qualification requirements in regulation 127 do not apply before 1 January 2014 to a family day care educator other than a family day care educator who—
(a) held an extended registration under the former education and care services law immediately before the scheme commencement day; and
(b) holds at least an approved certificate III level education and care qualification or is actively working towards that qualification.

352 Qualifications for family day care coordinators

(1) This regulation applies in place of regulation 128 until 31 December 2013.
(2) A family day care coordinator must hold at least one of the following qualifications—
(a)  an approved diploma level education and care qualification;
(b)  a qualification published under regulation 137(2) in the list of former qualifications approved as diploma level education and care qualifications;
(c)  if the family day care service also cares for school-aged children, a 2 year full-time or equivalent accredited post-secondary or tertiary qualification in school-aged care or recreation.

Division 5 Transitional provisions—physical environment

353 Physical environment requirements

(1) Subject to subregulation (4), this regulation applies to a centre-based service that, immediately before the scheme commencement day, was operating a preschool program in a school under the Education Act 1994 of Tasmania.
(2) Regulations 104, 107, 108, 114 and 115 do not apply to the service premises.
(3) For the purpose of a rating assessment under Part 5 of the Law, the centre-based service is taken to comply with regulations 104, 107, 108, 114 and 115 in respect of the service premises.
(4) This regulation ceases to apply if—
(a) the service approval is transferred to an approved provider other than a school; or
(b) the service premises are renovated.
Note—
See also Division 7 of Part 7.1.

Part 7.8 Victoria—specific provisions

Division 1 Application of Part 7.8

354 Application of Part 7.8

This Part applies to Victoria.

Division 2 Minimum number of educators and qualifications required

355 Educator to child ratio—children over preschool age

For the purposes of regulation 123(1)(d), the educator to child ratio for children over preschool age is 1 educator to 15 children.

356 Qualifications for educators—children over preschool age

(1) This regulation sets out the qualification requirements for educators at a centre-based service educating and caring for children over preschool age for the purposes of regulation 126(2).
(2) At least 50 per cent of the educators required to meet the educator to child ratio for children over preschool age must hold, or be enrolled in and studying for, at least a qualification published under regulation 137(2) in the list of approved diploma level qualifications for educators working with children over preschool age for Victoria.
(3) All other educators required to meet the educator to child ratio for children over preschool age must—
(a) hold, or be actively working towards, at least a qualification published under regulation 137(2) in the list of approved certificate III level education and care qualifications for educators working with children over preschool age for Victoria; or
(b) commence obtaining a qualification referred to in paragraph (a) within 6 months of commencing to educate and care for children.
(4) Subregulation (3) does not have effect before 1 January 2014.

357 Educator to child ratio—children aged over 24 months but less than 36 months

(1) This regulation applies to a centre-based service in place of regulation 123(1)(b).
(2) The educator to child ratio for children aged more than 24 months but less than 36 months is 1 educator to 4 children.

Division 3 Other staffing arrangements

358 Working with children check to be read

(1) The approved provider of an education and care service must read, or ensure that the nominated supervisor of, or the certified supervisor in day to day charge of, the service has read, a person’s working with children check before the person is—
(a)  engaged as an educator at the service; or
(b)  engaged or registered as a family day care educator as part of the service; or
(c)  permitted to be a volunteer at the service.
(2) Subregulation (1) does not apply in respect of a person if—
(a)  a working with children check cannot be issued for the person because of the person’s age; and
(b)  the person cares for or educates children at the education and care service only under the immediate supervision of an educator who—
(i)  has attained the age of 18 years; and
(ii)  holds or is actively working towards an approved diploma level education and care qualification.
(3) Subregulation (1) does not apply to a person who is a volunteer and who provides education and care at the service only under the immediate supervision of an educator who—
(a)  has attained the age of 18 years; and
(b)  holds or is actively working towards an approved diploma level education and care qualification.
(4) Subregulation (1) does not apply in relation to a person who is registered as a teacher under the Education and Training Reform Act 2006 of Victoria and the approved provider, nominated supervisor or certified supervisor in day to day charge of the education and care service has checked the relevant register kept under that Act to ensure that the person is registered.

359 Criminal history record check to be read and considered

The approved provider of a family day care service must read and consider, or ensure that the nominated supervisor of or the certified supervisor in day to day charge of the service has read and considered, a person’s criminal history record check before engaging or registering the person as a family day care educator.

Division 4 Transitional and saving provisions—staffing arrangements

Subdivision 1 Centre-based services

360 Educator to child ratios—children aged 36 months to preschool age

(1) This regulation applies to a centre-based service in place of regulation 123(1)(c) until 31 December 2015.
(2) The educator to child ratio at a centre-based service for children preschool age or under who are aged 36 months or over is 1 educator to 15 children.

361 General qualifications—centre-based service

(1) This regulation applies in place of regulation 126(1) until 31 December 2013.
(2) At least 1 of every 3 educators required to meet the relevant educator to child ratio for a centre-based service for children aged less than 36 months must hold at least an approved diploma level education and care qualification.
(3) At least 1 of every 2 educators required to meet the relevant educator to child ratio for a centre-based service for children preschool age or under who are 36 months of age or over must hold at least an approved diploma level education and care qualification.

362 Early childhood teacher in attendance—fewer than 60 children

(1) This regulation applies to a centre-based service that provides education and care to fewer than 60 children.
(2) The requirements in regulations 130 to 132 do not apply to the service before 1 January 2014.

363 Early childhood teacher in attendance—60 or more children

(1) This regulation applies to a centre-based service that provides education and care to 60 or more children.
(2) The requirements in regulations 133(1)(a) and 134(1)(a) do not apply to the service before 1 January 2014.
(3) The requirements in regulations 133(1)(b) and 134(1)(b) do not apply to the service before 1 January 2020.

364 Educational qualifications—centre-based services—saving of existing experience and qualification

Regulation 126(1)(b) does not apply in relation to an educator in a centre-based service who—
(a)  had been employed—
(i)  full-time and continuously as a staff member at a licensed children’s service or outside school hours care service for a period of at least 5 years immediately preceding 25 May 2009; or
(ii)  at least part-time and continuously as a staff member at a licensed children’s service or outside school hours care service for a period of at least 10 years immediately preceding 25 May 2009; and
(b)  before the scheme commencement day completed a professional development course approved by the Secretary under the Children’s Services Regulations 2009 of Victoria.

Subdivision 2 Family day care services

365 Qualifications for family day care educators

The qualification requirements in regulation 127 do not apply to family day care educators before 1 January 2014.

366 Qualifications for family day care educators—saving of existing experience and qualifications

Regulation 127 does not apply in relation to a family day care educator who—
(a)  had been employed—
(i)  full-time and continuously as a family day carer as part of a family day care service for a period of at least 5 years immediately preceding 25 May 2009; or
(ii)  at least part-time and continuously as a family day carer as part of a family day care service for a period of at least 10 years immediately preceding 25 May 2009; and
(b)  before the scheme commencement day, had completed a professional development course approved by the Secretary under the Children’s Services Regulations 2009 of Victoria.

Part 7.9 Western Australia—specific provisions

Division 1 Application of Part 7.9

367 Application of Part 7.9

This Part applies to Western Australia.

368 Definitions

In this Part—
kindergarten programme has the same meaning as it has in the School Education Regulations 2000 of Western Australia;
pre-kindergarten programme means an educational programme provided by a school for children aged 36 months and over before the pre-compulsory education period within the meaning of the School Education Act 1999 of Western Australia;
pre-primary programme has the same meaning as it has in the School Education Regulations 2000 of Western Australia;
preschool means an education and care service that is a preschool program provided by a school or a community kindergarten;
provided by a school includes provided by a recognised school system or the Chief Executive Officer of the department referred to in section 228 of the School Education Act 1999 of Western Australia or the Minister administering that Act;
school means a school or community kindergarten established or registered pursuant to the School Education Act 1999 of Western Australia;
secondary programme has the same meaning as it has in the School Education Regulations 2000 of Western Australia.

Division 2 Minimum number of educators and qualifications required—children over preschool age

369 Educator to child ratios—children over preschool age

For the purposes of regulation 123(1)(d), the educator to child ratios for children over preschool age are set out in column 3 of the following Table.
Age group
Number of children
Number of educators
Number of qualified educators
Over preschool age (no preschool child attending session)
1–10 children
1
1
11–26 children
2
1
27–39 children
3
1
40–52 children
4
2
53–65 children
5
2
66–78 children
6
2
79–91 children
7
3
92–104 children
8
3
105–117 children
9
3
118–130 children
10
4
131–143 children
11
4
Over preschool age (at least one preschool child attending session)
1–10 children
1
1
11–20 children
2
1
21–30 children
3
1
31–40 children
4
2
41–50 children
5
2
51–60 children
6
2
61–70 children
7
3
71–80 children
8
3
81–90 children
9
3
91–100 children
10
4
101–110 children
11
4

370 General qualification requirements for educators—children over preschool age

(1) This regulation sets out the qualification requirement for educators at a centre-based service educating and caring for children over pre-school age for the purposes of regulation 126(2).
(2) The number of educators at the service who are required to be qualified educators is the relevant number set out in column 4 of the Table to regulation 369 in relation to the service.
(3) In subregulation (2)—
qualified educator means a person who holds a qualification published under regulation 137(2) in the list of approved qualifications for educators working with children over preschool age for Western Australia.

Division 3 Minimum number of educators and qualifications required—centre-based services—children preschool age or under

371 Educator to child ratio—children preschool age or under who are 36 months of age or over (other than for a pre-kindergarten programme or kindergarten programme)

(1) This regulation applies in place of regulation 123(1)(c) to an education and care service other than a pre-kindergarten programme or kindergarten programme provided by a school.
(2) The educator to child ratio for children preschool age or under who are 36 months of age or over is 1 educator to 10 children.

372 Educator to child ratio—pre-kindergarten programme or kindergarten programme provided by a school

(1) This regulation applies in place of regulation 123(1)(c) on and after 1 January 2016 to a pre-kindergarten programme or kindergarten programme provided by a school.
(2) The educator to child ratio is 1 educator to 10 children.
(3) Despite subregulation (2), the educator to child ratio may be increased to 1 educator to 11 children—
(a) in exceptional circumstances; or
(b) for a period not exceeding one year.

373 Early childhood teachers—pre-kindergarten programme or kindergarten programme provided by a school

(1) This regulation applies in place of regulations 130 to 134 in relation to a pre-kindergarten programme or kindergarten programme provided by a school.
(2) One early childhood teacher is required for every 30 children being educated and cared for by the programme.
(3) Despite subregulation (2), the requirement for an early childhood teacher may be 1 early childhood teacher to a maximum of 33 children—
(a) in exceptional circumstances; or
(b) for a period not exceeding one year.
(4) An early childhood teacher must be in attendance at all times that children are being educated and cared for by the programme.

Division 4 Transitional provisions—staffing arrangements

Subdivision 1 Centre-based services

374 Educator to child ratio—pre-kindergarten programme or kindergarten programme provided by a school

(1) This regulation applies in place of regulation 123(1)(c) until 31 December 2015 to a pre-kindergarten programme or kindergarten programme provided by a school.
(2) The educator to child ratio for the programme is 2 educators for the first 25 children and 1 educator for each additional 8 children.
(3) Despite subregulation (2), if the programme educates and cares for 13 or fewer children, the programme may meet the educator to child ratio for those children with 1 educator who is an early childhood teacher.
Note
The Education and Care Services National Regulations 2012 of Western Australia include an additional regulation after regulation 374 as follows—

“374A Educator to child ratios—centre-based services during lunch periods
(1) In this regulation—
lunch period means a period of not more than 3 hours in any day during which educators at centre-based services are permitted to have lunch breaks.
(2) This regulation applies in place of regulation 123 until 1 August 2014 to a centre-based service during lunch periods.
(3) During lunch periods, a centre-based service that educates and cares for children who are 5 years of age or under may meet the educator to child ratio for those children with a number of educators that is not less than 60 per cent of the number of educators that would otherwise be required under regulation 123.”.

375 Qualifications for educators—children aged 24 months or under (other than for a pre-kindergarten programme or kindergarten programme)

(1) This regulation applies to a centre-based service until 31 December 2013.
(2) This regulation does not apply to a pre-kindergarten programme or a kindergarten programme provided by a school.
(3) One of every 3 educators required to meet the educator to child ratio for children aged 24 months or under at a centre-based service must—
(a)  hold—
(i)  an approved diploma level education and care qualification; or
(ii)  a qualification published under regulation 137(2) in the list of former qualifications approved as diploma level education and care qualifications; and
(b)  have undertaken a specialist course on the principles and practices of the care and education of children aged no more than 24 months; and
(c)  have at least 100 hours practical experience educating and caring for children aged 24 months or under.
(4) The qualification requirements in regulation 126(1) do not apply in relation to the educators educating and caring for children aged 24 months or under at the service.

376 Qualifications for educators—children aged more than 24 months but less than 36 months (other than for a pre-kindergarten programme or kindergarten programme)

(1) This regulation applies until 31 December 2013.
(2) This regulation does not apply to a pre-kindergarten programme or a kindergarten programme provided by a school.
(3) One of every 2 educators required to meet the educator to child ratio for children aged more than 24 months but less than 36 months at the centre-based service must—
(a)  hold—
(i)  an approved diploma level education and care qualification; or
(ii)  a qualification published under regulation 137(2) in the list of former qualifications approved as diploma level education and care qualifications; or
(b)  be a registered mothercraft nurse.
(4) The qualification requirements in regulation 126(1) do not apply in relation to the educators educating and caring for children aged more than 24 months but less than 36 months.

377 Qualifications for educators—children preschool age or under who are 36 months of age or over (other than a pre-kindergarten programme or kindergarten programme)

(1) This regulation applies until 31 December 2013.
(2) This regulation does not apply to a pre-kindergarten programme or kindergarten programme provided by a school.
(3) One of every 3 educators required to meet the educator to child ratio for children preschool age or under who are 36 months of age or over at a centre-based service must—
(a)  hold—
(i)  an approved diploma level education and care qualification; or
(ii)  a qualification published under regulation 137(2) in the list of former qualifications approved as diploma level education and care qualifications; or
(b)  be a registered mothercraft nurse.
(4) The qualification requirements in regulation 126(1) do not apply to educators educating and caring for children preschool age or under who are 36 months of age or over at the service.

378 Qualifications for educators—pre-kindergarten programme or kindergarten programme provided by a school

(1) This regulation applies to a pre-kindergarten programme or kindergarten programme provided by a school.
(2) The qualification requirements in regulation 126(1) do not apply before 1 January 2014.

379 Educators required to be early childhood teachers

(1) Division 5 of Part 4.4 does not apply to a centre-based service until 1 January 2014.
(2) Regulations 133(1) and 134(1)(b) do not apply to a centre-based service until 1 January 2020.
(3) This regulation does not apply to a pre-kindergarten programme or kindergarten programme provided by a school.

Subdivision 2 Family day care services

380 Number of children who can be educated and cared for—family day care educator

(1) This regulation applies in place of regulation 124 until 31 December 2013.
(2) A family day care educator must not educate and care for more than 7 children at any one time.
(3) In determining the number of children for subregulation (1)—
(a)  any child who has commenced a secondary programme is not counted; and
(b)  the educator’s own children are counted unless they are excluded by paragraph (a); and
(c)  no more than 5 children may be below the age to attend a pre-primary programme; and
(d)  at least one of the children referred to in paragraph (c) must be a child attending a kindergarten programme.
(4) Despite subregulation (2), the approved provider of a family day care service may approve, in writing, a family day care educator to educate and care for more than 7 children, or more than 5 children below the age to attend a pre-primary programme, at any one time, in exceptional circumstances.
(5) For the purposes of subregulation (4), exceptional circumstances exist if—
(a)  all the children being educated and cared for by the family day care educator are siblings in the same family; or
(b)  a child to be educated and cared for is determined to be in need of protection under a child protection law and the family day care educator is determined to be the best person to educate and care for the child; or
(c)  the family day care residence or approved family day care venue is in a rural or remote area and no alternative education and care service is available.

381 Qualifications for family day care educators

The qualification requirements in regulation 127 do not apply to family day care educators before 1 January 2014.

382 Qualifications for family day care co-ordinators

The qualification requirements in regulation 128 do not apply to family day care co-ordinators before 1 January 2014.

Division 5 Saving provision—physical environment

383 Saving provision—education and care services provided by a school

(1) Subject to subregulation (4), this regulation applies to a declared approved service or a declared out of scope service that is a pre-kindergarten programme or kindergarten programme that was operating immediately before the scheme commencement day.
(2) Regulations 107, 108 and 115 do not apply to the service.
(3) For the purpose of a rating assessment under Part 5 of the Law, the service is taken to comply with regulations 107, 108 and 115.
(4) This regulation ceases to apply if—
(a) the service approval is transferred to an approved provider that is not a school; or
(b) the service ceases to be provided by a school on a school site.
Note—
See also Division 7 of Part 7.1.

Schedule 1 National Quality Standard

Notes—

The National Quality Standard is used to assess education and care services to determine rating levels under Part 5 of the Law.

The Regulatory Authority may suspend a service approval if an education and care service is rated under Part 5 of the Law as not meeting the National Quality Standard, there has been no improvement in that rating and a service waiver or temporary waiver does not apply—see section 70(d) of the Law.

Quality area 1—Educational program and practice

The educational program and practice is stimulating, engaging and enhances children’s learning and development. In services for children over preschool age the program nurtures the development of life skills and complements children’s experiences, opportunities and relationships at school, at home and in the community.

Standard 1.1

An Approved Learning Framework informs the development of a curriculum that enhances each child’s learning and development.

Element 1.1.1

Curriculum decision making contributes to each child’s learning and development outcomes in relation to their identity, connection with community, wellbeing, confidence as learners and effectiveness as communicators.

Element 1.1.2

Each child’s current knowledge, ideas, culture, abilities and interests are the foundation of the program.

Element 1.1.3

The program, including routines, is organised in ways that maximise opportunities for each child’s learning.

Element 1.1.4

The documentation about each child’s program and progress is available to families.

Element 1.1.5

Every child is supported to participate in the program.

Element 1.1.6

Each child’s agency is promoted, enabling them to make choices and decisions and influence events and their world.

Standard 1.2

Educators and co-ordinators are focused, active and reflective in designing and delivering the program for each child.

Element 1.2.1

Each child’s learning and development is assessed as part of an ongoing cycle of planning, documentation and evaluation.

Element 1.2.2

Educators respond to children’s ideas and play and use intentional teaching to scaffold and extend each child’s learning.

Element 1.2.3

Critical reflection on children’s learning and development, both as individuals and in groups, is regularly used to implement the program.

For the purposes of Quality area 1—

agency involves being able to make choices and decisions, to influence events and to have an impact on one’s world;

intentional teaching involves educators being deliberate, purposeful and thoughtful in their decisions and actions. Intentional teaching is the opposite of teaching by rote or continuing with traditions simply because things have “always” been done that way;

scaffold means the educators’ decisions and actions that build on children’s existing knowledge and skills to enhance their learning.

Quality area 2—Children’s health and safety

Every child’s health and wellbeing is safeguarded and promoted.

Standard 2.1

Each child’s health is promoted.

Element 2.1.1

Each child’s health needs are supported.

Element 2.1.2

Each child’s comfort is provided for and there are appropriate opportunities to meet each child’s need for sleep, rest and relaxation.

Element 2.1.3

Effective hygiene practices are promoted and implemented.

Element 2.1.4

Steps are taken to control the spread of infectious diseases and to manage injuries and illness, in accordance with recognised guidelines.

Standard 2.2

Healthy eating and physical activity are embedded in the program for children.

Element 2.2.1

Healthy eating is promoted and food and drinks provided by the service are nutritious and appropriate for each child.

Element 2.2.2

Physical activity is promoted through planned and spontaneous experiences and is appropriate for each child.

Standard 2.3

Each child is protected.

Element 2.3.1

Children are adequately supervised at all times.

Element 2.3.2

Every reasonable precaution is taken to protect children from harm and any hazard likely to cause injury.

Element 2.3.3

Plans to effectively manage incidents and emergencies are developed in consultation with relevant authorities, practised and implemented.

Element 2.3.4

Educators, co-ordinators and staff members are aware of their roles and responsibilities to respond to every child at risk of abuse or neglect.

Quality area 3—Physical environment

The physical environment is safe, suitable and provides a rich and diverse range of experiences which promote children’s learning and development.

Standard 3.1

The design and location of the premises is appropriate for the operation of a service.

Element 3.1.1

Outdoor and indoor spaces, buildings, furniture, equipment, facilities and resources are suitable for their purpose.

Element 3.1.2

Premises, furniture and equipment are safe, clean and well maintained.

Element 3.1.3

Facilities are designed or adapted to ensure access and participation by every child in the service and to allow flexible use, and interaction between indoor and outdoor space.

Standard 3.2

The environment is inclusive, promotes competence, independent exploration and learning through play.

Element 3.2.1

Outdoor and indoor spaces are designed and organised to engage every child in quality experiences in both built and natural environments.

Element 3.2.2

Resources, materials and equipment are sufficient in number, organised in ways that ensure appropriate and effective implementation of the program and allow for multiple uses.

Standard 3.3

The service takes an active role in caring for its environment and contributes to a sustainable future.

Element 3.3.1

Sustainable practices are embedded in service operations.

Element 3.3.2

Children are supported to become environmentally responsible and show respect for the environment.

Quality area 4—Staffing arrangements

Staffing arrangements create a safe and predictable environment for children and support warm, respectful relationships. Qualified and experienced educators and co-ordinators encourage children’s active engagement in the learning program. Positive relationships among educators, co-ordinators and staff members contribute to an environment where children feel emotionally safe, secure and happy.

Standard 4.1

Staffing arrangements enhance children’s learning and development and ensure their safety and wellbeing.

Element 4.1.1

Educator-to-child ratios and qualification requirements are maintained at all times.

Standard 4.2

Educators, co-ordinators and staff members are respectful and ethical.

Element 4.2.1

Professional standards guide practice, interactions and relationships.

Element 4.2.2

Educators, co-ordinators and staff members work collaboratively and affirm, challenge, support and learn from each other to further develop their skills, to improve practice and relationships.

Element 4.2.3

Interactions convey mutual respect, equity and recognition of each other’s strengths and skills.

Quality area 5—Relationships with children

Relationships that are responsive, respectful and promote children’s sense of security and belonging free them to explore the environment and engage in learning.

Standard 5.1

Respectful and equitable relationships are developed and maintained with each child.

Element 5.1.1

Interactions with each child are warm, responsive and build trusting relationships.

Element 5.1.2

Every child is able to engage with educators in meaningful, open interactions that support the acquisition of skills for life and learning.

Element 5.1.3

Each child is supported to feel secure, confident and included.

Standard 5.2

Each child is supported to build and maintain sensitive and responsive relationships with other children and adults.

Element 5.2.1

Every child is supported to work with, learn from and help others through collaborative learning opportunities.

Element 5.2.2

Each child is supported to manage their own behaviour, respond appropriately to the behaviour of others and communicate effectively to resolve conflicts.

Element 5.2.3

The dignity and rights of every child are maintained at all times.

Quality area 6—Collaborative partnerships with families and communities

Collaborative relationships with families are fundamental to achieve quality outcomes for children. Community partnerships that focus on active communication, consultation and collaboration also contribute to children’s learning and wellbeing.

Standard 6.1

Respectful, supportive relationships with families are developed and maintained.

Element 6.1.1

There is an effective enrolment and orientation process for families.

Element 6.1.2

Families have opportunities to be involved in the service and contribute to service decisions.

Element 6.1.3

Current information about the service is available to families.

Standard 6.2

Families are supported in their parenting role and their values and beliefs about child rearing are respected.

Element 6.2.1

The expertise of families is recognised and they share in decision making about their child’s learning and wellbeing.

Element 6.2.2

Current information is available to families about community services and resources to support parenting and family wellbeing.

Standard 6.3

The service collaborates with other organisations and service providers to enhance children’s learning and wellbeing.

Element 6.3.1

Links with relevant community and support agencies are established and maintained.

Element 6.3.2

Continuity of learning and transitions for each child are supported by sharing relevant information and clarifying responsibilities.

Element 6.3.3

Access to inclusion and support assistance is facilitated.

Element 6.3.4

The service builds relationships and engages with their local community.

Quality area 7—Leadership and service management

Effective leadership contributes to sustained quality relationships and environments that facilitate children’s learning and development. Well documented policies and practices that are developed and regularly evaluated in partnership with educators, co-ordinators, staff members and families contribute to the ethical management of the service. There is a focus on continuous improvement.

Standard 7.1

Effective leadership promotes a positive organisational culture and builds a professional learning community.

Element 7.1.1

Appropriate governance arrangements are in place to manage the service.

Element 7.1.2

The induction of educators, co-ordinators and staff members is comprehensive.

Element 7.1.3

Every effort is made to promote continuity of educators and co-ordinators at the service.

Element 7.1.4

Provision is made to ensure a suitably qualified and experienced educator or coordinator leads the development of the curriculum and ensures the establishment of clear goals and expectations for teaching and learning.

Element 7.1.5

Adults working with children and those engaged in management of the service or residing on the premises are fit and proper.

Standard 7.2

There is a commitment to continuous improvement.

Element 7.2.1

A statement of philosophy is developed and guides all aspects of the service’s operations.

Element 7.2.2

The performance of educators, co-ordinators and staff members is evaluated and individual development plans are in place to support performance improvement.

Element 7.2.3

An effective self-assessment and quality improvement process is in place.

Standard 7.3

Administrative systems enable the effective management of a quality service.

Element 7.3.1

Records and information are stored appropriately to ensure confidentiality, are available from the service and are maintained in accordance with legislative requirements.

Element 7.3.2

Administrative systems are established and maintained to ensure the effective operation of the service.

Element 7.3.3

The Regulatory Authority is notified of any relevant changes to the operation of the service, of serious incidents and any complaints which allege a breach of legislation.

Element 7.3.4

Processes are in place to ensure that all grievances and complaints are addressed, investigated fairly and documented in a timely manner.

Element 7.3.5

Service practices are based on effectively documented policies and procedures that are available at the service and reviewed regularly.

Schedule 2 Prescribed fees

Part 1 Fees relating to provider approvals, service approvals and ratings

		Fee
Section of the Law	Description	Centre-based service (No. of approved places or places to be offered)	Family day care service (No. of family day care educators engaged by or registered with service)
Section 11(d)	Application for provider approval	$200	$200
Section 22(2)(c)	Application to amend provider approval	Nil	Nil
Section 37(2)(c)	Application to voluntarily suspend provider approval	Nil	Nil
Section 39(6)(c)	Application by executor for provider approval	Nil	Nil
Section 40(3)(c)	Application by legal personal representative or guardian for provider approval	Nil	Nil
Section 44(1)(e)	Application for service approval	24 places or fewer $400	$600
		25 to 80 places $600
		81 or more places $800
Section 53	Annual fee—approved service	24 or fewer approved places $185	5 or fewer family day care educators $185
		25 to 80 approved places $275	6 to 20 family day care educators $275
		81 or more approved places $365	21 or more family day care educators $365
Section 54(2)(c)	Application to amend service approval	Nil	Nil
Section 59(2)(c)	Notification of intended transfer of service approval	$100	$100
Section 85(2)(c)	Application to voluntarily suspend service approval	Nil	Nil
Section 88(c)	Application for service waiver	$100	$100
Section 95(c)	Application for temporary waiver	$100	$100
Section 139(2)(c)	Application for reassessment and re-rating	24 or fewer approved places $400	5 or fewer family day care educators $400
		25 to 80 approved places $600	6 to 20 family day care educators $600
		81 or more approved places $800	21 or more family day care educators $800
Section 141(4)(d)	Application for review by Regulatory Authority	Nil	Nil
Section 145(2)(c)	Application for review by Ratings Review Panel	24 or fewer approved places $400	5 or fewer family day care educators $400
		25 to 80 approved places $600	6 to 20 family day care educators $600
		81 or more approved places $800	21 or more family day care educators $800
Section 152(3)(c)	Application for highest rating	24 or fewer approved places $200	5 or fewer family day care educators $200
		25 to 80 approved places $400	6 to 20 family day care educators $400
		81 or more approved places $600	21 or more family day care educators $600
Section 159(3)(c)	Re-application for highest rating	24 or fewer approved places $200	5 or fewer family day care educators $200
		25 to 80 approved places $400	6 to 20 family day care educators $400
		81 or more approved places $600	21 or more family day care educators $600

Part 2 Other fees

Provision of the Law or regulation	Description	Fee
Section 107(c)	Application for supervisor certificate	$30
Section 119(2)(c)	Application to amend supervisor certificate	Nil
Section 129(2)(c)	Application to voluntarily suspend supervisor certificate	Nil
Section 266(4)	Copy or extract from Register of approved providers	$5 per page or $65 for an electronic copy
Section 267(4)	Copy or extract from Register of approved education and care services	$5 per page or $65 for an electronic copy
Section 268(4)	Copy or extract from Register of certified supervisors	$5 per page or $65 for an electronic copy
Regulation 138	Application for qualification to be assessed for inclusion on lists of approved qualifications	$2000
Regulation 139	Application for determination of equivalent qualification	$100

Schedule 3 Compliance directions—prescribed provisions

Regulation 188

Regulation	Description
Regulation 55(1)	Quality improvement plans
Regulation 72(1), (2)	Offences in relation to giving false or misleading statements about ratings
Regulation 74(1)	Documenting of child assessments or evaluations for delivery of educational program
Regulation 75	Information about educational program to be kept available
Regulation 76	Information about educational program to be given to parents
Regulation 77(1)	Health, hygiene and safe food practices
Regulation 78(1)	Food and beverages
Regulation 79(1)	Service providing food and beverages
Regulation 80(1)	Weekly menu
Regulation 81(1)	Sleep and rest
Regulation 82(1)	Tobacco, drug and alcohol-free environment
Regulation 83(1)	Nominated supervisors, staff members and volunteers not to be affected by alcohol or drugs
Regulation 84	Awareness of child protection law
Regulation 89(1)	First aid kits
Regulation 91	Medical conditions policy to be provided to parents
Regulation 97(2), (3), (4)	Emergency and evacuation procedures
Regulation 98	Telephone or other communication equipment
Regulation 103(1)	Premises, furniture and equipment to be safe, clean and in good repair
Regulation 104(1)	Fencing
Regulation 105	Furniture, materials and equipment
Regulation 106(1), (2)	Laundry and hygiene facilities
Regulation 107(2)	Space requirements—indoor
Regulation 108(2)	Space requirements—outdoor
Regulation 110	Ventilation and natural light
Regulation 111	Administrative space
Regulation 112(3)	Nappy change facilities
Regulation 113	Outdoor space—natural environment
Regulation 114	Outdoor space—shade
Regulation 115	Premises designed to facilitate supervision
Regulation 116(1)	Assessments of family day care residences and approved family day care venues
Regulation 117(1)	Glass
Regulation 118	Educational leader
Regulation 119	Family day care educator and educator assistant to be at least 18 years old
Regulation 120	Educators who are under 18 to be supervised
Regulation 136(1)	First aid qualifications
Regulation 156(1)	Relationships in groups
Regulation 157(1)	Access for parents
Regulation 163(1), (2)	Residents at family day care residence and family day care educator assistants to be fit and proper persons
Regulation 164	Requirement for notice of new persons at residence
Regulation 168(1)	Education and care service must have policies and procedures
Regulation 169(1)	Additional policies and procedures—family day care service
Regulation 170(1), (2)	Policies and procedures to be followed
Regulation 171(1), (2)	Policies and procedures to be kept available
Regulation 172(1)(b)	Notification of change to policies or procedures affecting ability of family to utilise service
Regulation 177(2), (3)	Prescribed enrolment and other documents to be kept by approved provider
Regulation 183	Storage of records and other documents
Regulation 185	Law and regulations to be available

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Education and Care Services National Regulations (2011 SI 653)

Age group	Number of children	Number of educators	Number of qualified educators
Over preschool age (no preschool child attending session)	1–10 children	1	1
	11–26 children	2	1
	27–39 children	3	1
	40–52 children	4	2
	53–65 children	5	2
	66–78 children	6	2
	79–91 children	7	3
	92–104 children	8	3
	105–117 children	9	3
	118–130 children	10	4
	131–143 children	11	4
Over preschool age (at least one preschool child attending session)	1–10 children	1	1
	11–20 children	2	1
	21–30 children	3	1
	31–40 children	4	2
	41–50 children	5	2
	51–60 children	6	2
	61–70 children	7	3
	71–80 children	8	3
	81–90 children	9	3
	91–100 children	10	4
	101–110 children	11	4