NSW Regulatory Authority issues $90,000 in prosecutions to one service

The New South Wales Regulatory Authority concluded their 2019 compliance actions by issuing over $90,000 in financial penalties arising from a series of offences by one approved provider who continued to operate, and to advertise as an early childhood education and care (ECEC) service, despite their provider approval being cancelled.

The first prosecution relates to an individual who held dual positions as a Director of a company who was an approved provider for a family day care service and as a public officer for an international students association. 

The Sector has chosen not to name the individual involved, who will instead be referred to as “JS”. 

The student association for which JS was a public officer was the holding entity of JS’ company, although never held a provider approval in its own right. 

In late 2016, the NSW Regulatory Authority suspended the provider approval of JS’ company, effective immediately, also suspending the service approval. Despite the suspension, the service continued to operate. 

In March 2017, the provider approval was cancelled, at which point the provider and service were no longer approved under the National Law. Despite the suspension of the provider approval and its subsequent cancellation, the service continued to operate, and to advertise, until August 2017. At various points, the service advertised and operated under either the name of JS’ company, or the name of the international students association. 

In April 2017, the Department issued a notice to JS under section 215 of the National Law. The notice required JS to produce certain documents, which did not occur. On 17 August 2017, the Department executed a search warrant at the service premises and obtained evidence establishing the continued operation of the service. 

During the execution of the search warrant, JS obstructed authorised officers in the execution of their powers and failed to comply with a number of requirements outlined in Schedule 2 of the National Law, including (but not limited to) failure to exercise due diligence by continuing to operate and advertise a childcare service after the provider approval had been suspended, obstructing authorised officers and failing to comply with requirements during the execution of the search warrant by: 

• refusing to allow officers to contact the parents of children to allow the search of the premises to continue without the children being present; 
• denying access to levels one and two of the premises; 
• interfering with officers attempting to interview staff at the premises; 
• causing the officers to call the police on a number of occasions so that the search could progress; and, 
• failing to answer questions relating to the premises and the documents held on the premises.

JS was convicted at Parramatta local court, and penalised $34,000 for: 

• one offence of providing an education and care service without a service approval – section 103(1)(a) and (b) of the Children (Education and Care Services) National Law (NSW);  
• one offence of advertising education and care services for a service that was not an approved service – section 104 of the Children (Education and Care Services) National Law (NSW);  
• one offence of obstructing an authorised officer in the exercise of his powers under the National Law – section 207 of the Children (Education and Care Services) National Law (NSW); 
•  one offence of failing to comply with requirements made by an authorised officer under Schedule 2 of the National Law – section 208 of the Children (Education and Care Services) National Law (NSW); and,  
• one offence of failing to comply with a requirement under section 215 of the National Law – section 217 of the Children (Education and Care Services) National Law (NSW)

The company owned by JS was prosecuted in Paramatta local court, and penalised $47,500 for: 

• one offence of providing an education and care service without a service approval – section 103(1)(a) and (b) of the Children (Education and Care Services) National Law (NSW); and,  
• one offence of advertising education and care services for a service that was not an approved service – section 104 of the Children (Education and Care Services) National Law (NSW).

The international student association, of which JS was a public officer, was convicted at Parramatta Local Court and fined a total of $47,500 for:

• one offence of providing an education and care service without a service approval – section 103(1)(a) and (b) of the Children (Education and Care Services) National Law (NSW); and,  
• one offence of advertising education and care services for a service that was not an approved service – section 104 of the Children (Education and Care Services) National Law (NSW).

For more information on the cases highlighted above, please see here.