Wednesday, 18 October 2023

Early Childhood Legislation Amendment (Premises Approval in Principle) Bill 2023

Statement of compatibility

Ben CARROLL (Niddrie – Minister for Education, Minister for Medical Research) (11:12): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Early Childhood Legislation Amendment (Premises Approval in Principle) Bill 2023.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Early Childhood Legislation Amendment (Premises Approval in Principle) Bill 2023 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.

Overview of the Bill

The purpose of the Bill is to amend the Education and Care Services National Law (National Law) set out in the Schedule to the Education and Care Services National Law Act 2010 (National Law Act), to establish an ‘approval in principle’ process in participating jurisdictions for proposed education and care service premises located in multi-storey buildings and to make approval in principle a precondition of service approval in certain participating jurisdictions. The Bill also amends the National Law Act to declare that the approval in principle process set out in the National Law applies in Victoria and that the Minister may declare, by order, that an approval in principle is a precondition of service approval in certain cases.

The Bill also amends the Children’s Services Act 1996 (CS Act) to establish a corresponding approval in principle process for proposed children’s services premises located in multi-storey buildings and to make certain offences under the CS Act infringement offences.

Human rights issues

The human right protected by the Charter that is relevant to the Bill is the right to a fair hearing in section 24(1) of the Charter.

Right to a fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of administrative decision-makers with the power to determine private rights and interests. While recognising the broad scope of section 24(1), the term ‘proceeding’ and ‘party’ suggest that section 24(1) was intended to apply only to decision-makers who conduct proceedings with parties. In my view, the administrative decisions at issue here do not involve the conduct of proceedings with parties. Further, it is understood that unless a decision determines existing rights, the fair hearing right is unlikely to apply. In the context of this Bill, decisions determining existing rights would be limited to the cancellation of an existing approval in principle.

If a very broad reading of section 24(1) was adopted and it was understood that the fair hearing right was engaged by this Bill, this right would nevertheless not be limited. The right to a fair hearing is concerned with the procedural fairness of a decision and the right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. The entire decision-making process, including the availability of reviews and appeals, must be examined in order to determine whether the right is limited.

Approval in principle for certain service premises located in multi-storey buildings

The new Part 4 of the National Law and Part 3A of the CS Act provide the Regulatory Authority with the power to grant or refuse an application for approval in principle of a proposed education and care service premises or a children’s service premises (section 110 of the National Law and section 100E of the CS Act). The Regulatory Authority must refuse to grant approval in principle where it is not satisfied that the proposed premises and the location of those premises will be suitable for the operation of an education and care service or a children’s service and will meet the approval in principle criteria. The Regulatory Authority must also refuse to grant approval in principle unless it is satisfied that the proposed premises will have direct egress to an assembly area to allow the safe evacuation of all children (section 111 of the National Law and section 100F of the CS Act). Part 4 of the National Law and Part 3A of the CS Act also provides the Regulatory Authority the power to amend (sections 115 and 116 of the National Law and sections 100J and 100K of the CS Act), transfer (sections 118 and 119 of the National Law and sections 100M and 100N of the CS Act), cancel (section 120 of the National Law and section 100O of the CS Act), extend (section 124 of the National Law and section 100S of the CS Act) or reinstate (section 125 of the National Law and section 100T of the CS Act) the approval in principle held by an approved provider.

If, on a broad understanding of section 24(1), a decision to refuse an application for approval in principle or to cancel, amend, transfer, extend or reinstate an approval in principle engages section 24(1), this right is, in my view, not limited. This is so because all decisions made by the Regulatory Authority in relation to approvals in principle are reviewable. Specifically, section 190 of the National Law and section 132 of the CS Act provide for internal review of a decision to refuse to grant, refuse to amend, amend, transfer an approval in principle under section 119 of the National Law or section 100N of the CS Act, cancel, refuse to extend, or refuse to reinstate an approval in principle. In each case the person receives notification of the initial adverse decision and where the Regulatory Authority makes a decision to refuse to grant, amend or refuse to amend, transfer under section 119 of the National Law or section 100N of the CS Act, cancel, refuse to extend, or refuse to reinstate an approval in principle, the person receives notification of, and reasons for, the adverse decision. Importantly, decisions to cancel an approval in principle can only be made following a show cause process (section 121 and 122 of the National Law and sections 100P and 100Q of the CS Act).

Finally, all decisions made by the Regulatory Authority on internal review under section 191 of the National Law and section 132 of the CS Act are subject to external review by the relevant court or tribunal (sections 192(a) and 193 of the National Law and sections 134(a) and section 135 of the CS Act) and thereby affords approval in principle holders or applicants a hearing before an independent and impartial court or tribunal and satisfies the requirements in section 24(1) of the Charter.

Application of service approval where no approval in principle has been obtained

The effect of the approval in principle on a subsequent application for service approval is dependent on the application of section 49A in the relevant jurisdiction. Section 49A applies to a Part 4 jurisdiction if the Part 4 jurisdiction has specifically declared by law, or an instrument made under that law, that section 49A applies to that jurisdiction. Section 49A will not have immediate application in Victoria but may be declared applicable in Victoria through a Ministerial Order, made in consultation with the Minister responsible for administering the Building Act 1993 and published in the Government Gazette.

Where a jurisdiction has not declared section 49A applicable in that jurisdiction, a failure to obtain approval in principle will not in itself affect the outcome of an application for service approval other than risking that the building and premises design fails to meet the physical environment requirements for service approval. However, where a jurisdiction declares section 49A applicable in that jurisdiction, approval in principle is a mandatory precondition for service approval (for centre-based services in Part 4 buildings), requiring that the applicant holds a current approval in principle at the time of the service approval application (exemptions are set out in sections 49A(3) and (4)). Where the applicant does not hold approval in principle at the time of the service approval application, or the premises are not constructed in accordance with the approval in principle, the Regulatory Authority must, under section 49A(2) of the National Law, refuse to grant a service approval.

A refusal to grant service approval where approval in principle is a mandatory precondition for service approval does not in my view engage the fair hearing right in section 24(1) of the Charter. Where a legislative provision mandates that a decision-maker must refuse an application where certain pre-conditions have not been satisfied, the decision-maker does not engage in a decision-making exercise when refusing the application and the fair hearing right is therefore not ordinarily engaged. In the event that the refusal to grant service approval under section 49A is capable of review (jurisdictional error or otherwise) sections 190(a) and 191(a) of the National Law provides a person who is the subject of a reviewable decision, the right to internal review. A decision made by the Regulatory Authority on internal review can on application be reviewed by the relevant court or tribunal (sections 192(a) and 193 of the National Law) and thereby satisfies the fair hearing requirements in section 24(1) of the Charter.

Infringement offences under the CS Act

The new section 178A of the CS Act makes section 112 (offence to fail to display prescribed information), section 113 (offence to fail to notify certain circumstances to Regulatory Authority) and section 116 (compliance directions) of the CS Act infringement offences within the meaning of the Infringements Act 2006 (Infringements Act). It also creates a prescription power to allow for offences against the Children’s Services Regulations 2020 (CS Regulations) to be prescribed as infringeable offences (section 178A(1)(b)). This means that infringement offences under sections 112, 113 and 116 of the CS Act, as well as prescribed offences under the CS Regulations, will be managed in accordance with the prescribed processes in the Infringements Act, which provides the option to pay a fixed penalty or request an internal review of the decision to serve the infringement notice for the contravention of the relevant provision or prescribed offence. Alternatively, the person has a right to request that the matter be referred to the Magistrates’ Court of Victoria at any time before the outstanding amount of the infringement penalty is registered with Fines Victoria (section 16 of the Infringements Act). Accordingly, a person served with an infringement notice for the contravention of an infringement offence under the CS Act has an opportunity to a fair hearing in each instance that an infringement is received. Given these safeguards, I consider that the infringement provisions in the Bill are compatible with the right to a fair hearing in section 24(1) of the Charter Act.

Conclusion

I am therefore of the view that the Bill is compatible with the Charter.

The Hon. Ben Carroll MP

Minister for Education

Second reading

Ben CARROLL (Niddrie – Minister for Education, Minister for Medical Research) (11:12): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Allan Labor Government is committed to ensuring quality early childhood education and care, which plays a vital role in supporting the learning and development of Australian children in their early years and helps to lay the foundation for better health, education and employment outcomes later in life. In its last term, the Government enacted the Early Childhood Legislation Amendment Act 2022 to implement most of the findings and recommendations of the 2019 National Quality Framework (NQF) Review (2019 NQF Review), which was approved by all states and territories and the Commonwealth through the Education Ministers Meeting.

Key features of the Bill

This Bill seeks to implement an outstanding recommendation of the 2019 NQF Review and enhance the regulatory system for early childhood education in Victoria and nationally by:

(a) amending the Education and Care Services National Law (National Law) to establish a scheme that allows developers, builders or education and care service providers to obtain an ‘approval in principle’ from the Regulatory Authority in relation to a premises for a centre-based service proposed to be built or renovated in a multi-storey building (the premises approval in principle scheme), and provide that a participating jurisdiction may declare that the premises approval in principle scheme applies in that jurisdiction as either a voluntary or mandatory application process;

(b) amending the Education and Care Services National Law Act 2010 (National Law Act) to:

(i) declare that the premises approval in principle scheme applies in Victoria as a voluntary application process; and

(ii) provide a mechanism for Victoria to declare, by way of Ministerial Order and after consultation with the Minister with responsibility for administering the Building Act 1993, that the premises approval in principle scheme applies in Victoria as a mandatory statutory precondition to applying for and being granted a service approval;

(c) amending the Children’s Services Act 1996 (CS Act) to:

(i) establishing a mirror premises approval in principle scheme for Victorian children’s services that will operate as a voluntary application process; and

(ii) establishing the ability for the Regulatory Authority to issue infringement notices for certain existing offences in the CS Act and Children’s Services Regulations 2020 (CS Regulations), in alignment with the approach to infringements under the National Law.

Amendments arising from the NQF Review to establish a premises approval in principle scheme

The NQF operates nationally and regulates education and care services that are provided to children on a regular basis, including preschools (kindergartens), long day care services, family day care services and outside school hours care services. The NQF consists of the National Law and the Education and Care Services National Regulations (including the National Quality Standard).

Since its commencement in 2012, the NQF has been reviewed every 5 years to ensure it is current, fit for purpose and implemented through best practice regulation.

The 2019 NQF Review identified various system-wide improvements to the NQF. A specific area of focus was the challenges associated with services located in multi-storey buildings, particularly in relation to the safety and wellbeing of children attending those services.

In addition to the recommendations to improve safety measures related to services located in multi-storey buildings, the 2019 NQF Review also identified an emerging issue in Victoria and the ACT in relation to newly built or renovated early childhood service premises in multi-storey buildings which are completed consistently with local building law and planning law requirements, but do not comply with the NQF requirements relating to the physical design and environment of education and care service premises. In these circumstances, applicants for a service approval to operate an education and care service in newly built or renovated premises face the risk that their application will be refused unless costly post-construction rectification works are undertaken to make the service premises compliant with the NQF.

The 2019 NQF Review recommended establishing a premises approval in principle scheme for newly built or renovated service premises in multi-storey buildings in Victoria and the ACT to address this issue.

The Bill makes changes to the National Law to give effect to the 2019 NQF Review recommendation by providing for the Regulatory Authority to grant ‘approval in principle’ in relation to a centre-based education and care service premises proposed to be located in a multi-storey building. The Bill provides that a participating jurisdiction may declare that the premises approval in principle scheme applies in that jurisdiction as a voluntary process or, alternatively, declare that premises approval in principle is a mandatory statutory precondition to obtaining service approval (for a centre-based service in a multi-storey building).

The Bill applies the premises approval in principle scheme in Victoria as a voluntary application process, with the option to make the scheme mandatory in the future.

Amendments to the Children’s Services Act 1996

The CS Act applies to children’s services in Victoria that were not brought into the scope of the NQF when it was established in 2012 (mostly occasional care and limited hours services). Since 2020, Victoria has aligned the CS Act with the NQF to ensure that the two schemes are administered consistently.

To maintain alignment between the CS Act and the National Law, the Bill will make corresponding amendments to the CS Act to establish a voluntary premises approval in principle scheme for newly built or renovated children’s service premises proposed to be located in a multi-storey building. This will ensure that all proponents of centre-based early childhood services in Victoria (including both education and care services and children’s services) are able to realise the benefit of the premises approval in principle scheme.

While the NQF provides for certain offences to be infringeable, the corresponding offences in the CS Act are not infringeable. This means that the same conduct could be an infringeable offence in some early childhood service settings but not others, depending on which regulatory scheme applies. Maintaining alignment between the NQF and the CS Act and CS Regulations is necessary to enable equal treatment of similar conduct by approved providers under both the regulatory schemes. Therefore, the Bill will further align the CS Act with the National Law by making certain existing offences under the CS Act and CS Regulations infringeable.

I commend the Bill to the House.

Jess WILSON (Kew) (11:12): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 1 November.