The importance of publishing Enforcement Actions under the Education and Care Services National Law

State or Territory Regulatory Authorities under the National Law may publish information about enforcement action taken against approved providers, services, and educators, relating to breaches of the National Law and Regulations (under section 270(5)). Here, former Victorian Regulatory Authority compliance manager and solicitor, Mick Ogrizek outlines the value found in publishing enforcement actions under the Education and Care Services National Law.

Enforcement actions that can be published include: compliance notices, enforceable undertakings, amendment to provider/service approvals, suspension or cancellation of provider/service approvals, and prosecutions.

Most of the Regulatory Authorities publish such information. However, the information is difficult to find on their websites, is often not published in a timely fashion, not updated frequently, is published in different formats, or does not include sufficient details of the facts underpinning the enforcement action. The exception is the West Australian Department of Communities who publish their enforcement actions in a timely manner providing the relevant facts behind the enforcement action. You can find links to all the Regulatory Authorities’ websites here.  

The importance of publishing such information is undervalued and not clearly understood in the sector. Publishing details of enforcement actions is a sanction in itself but such ‘naming and shaming’ serves a broad number of important purposes. It:

• acts as an embarrassment to such extent that it deters future breaches across the sector.
• supports those complying with their legal obligations by showing that the Regulatory Authority is prepared to take action against those breaching the law. It gives confidence to the ‘good guys’ about the efficacy of the regulatory regime and complying with the law.
• plays an educational role by providing examples or case studies to the sector about where breaches can occur so they can review their processes and address any shortcomings. It also performs the function of disseminating information about the content and application of the National Law and Regulations, supporting future compliance.
• enhances the transparency of Regulatory Authorities’ exercise of their enforcement powers.
• Acts as an additional sanction, damaging the offender’s reputation and perhaps their financial position.

Importantly – and in addition to the above – it provides parents (and prospective parents) with information about the performance of services. Although assessment ratings primarily perform that role, they only reflect a snapshot in time, assessment visits are announced beforehand, and assessment and rating only occurs infrequently (possibly once every three years). Enforcement action usually is taken where there is a risk to the health, safety or wellbeing to children and/or there is ongoing non-compliance with the National Law and Regulations and usually follows an unannounced visit(s) to the service. It is important parents have as much information as possible about the performance of services given the major users of the service are young children who are unable, unsurprisingly, to provide informed assessments of the quality of the service provided.

As outlined, the publication of enforcement actions by Regulatory Authorities performs a broad range of important functions ranging from informational to punishment and deterrence. This is sometimes misunderstood within the sector and it would only support better compliance of the National Law and Regulations if such information was published in a timely and comprehensive manner.

Ideally, all enforcement actions should be published in a single, central, register, particularly as many approved providers have services across jurisdictions. This would also enhance the ‘naming and shaming’ effect as this information would more likely be republished by the broader media. An example, is the Commonwealth’s Child Care Enforcement Action Register, although that register could include more details of non-compliances.

Mick Ogrizek is an experienced member of the early childhood education and care (ECEC) community, having spent three years as the manager of monitoring and compliance at the Victorian Regulatory Authority. Prior to his role with the Regulatory Authority, Mick was involved in operational policy development with the Victorian Police force, was an experienced solicitor with 17 years experience of running his own firm, several qualifications in Law, the Arts and Investigation and Regulation.