Guideline formonitoring, compliance and enforcement

under the Education and Care Services Act 2013

Purpose

The purpose of this guideline is to detail the roles of central and regional office Department of Education, Training and Employment (the department) officers inmonitoring, compliance and enforcement under the Education and Care Services Act 2013(the ECS Act). This guideline falls under the department’s procedure for Complaints management and compliance under the Education and Care Services Act 2013.

Background

The department administers the ECS Act which regulates early childhood education and care provided by Queensland education and care services(QEC services) that are not within the scope of the Education and Care Services National Law (National Law) 2010 (National Law).Monitoring, compliance and enforcement activities in Queensland regions are undertaken through the exercise of thepowers of Authorised Officers which are to investigate, monitor and enforce compliance with the ECS Act and centrally through the Monitoring and Compliance team in Regulation, Assessment and Service Quality (RASQ).

Compliance, enforcement and prosecutorial action

The compliance and enforcement actions associated with this guideline are listed below:

  1. Additional monitoring of an education and care service
  2. Information and guidance provided to a Queensland approved provider
  3. Meetings and discussions with a Queensland approved provider
  4. Compliance caution letter issued to a Queensland approved provider
  5. Amendment to a Queensland provider approval or a Queensland service approval
  6. Suspension of a Queensland provider approval or a Queensland service approval (other than on application by the approved provider)
  7. Cancellation of a Queensland provider approval or a Queensland service approval
  8. Section 97(1) Revocation of a service waiver (other than on application by the approved provider)
  9. Section 105 Revocation of a temporary waiver
  10. Section 190 Authorised officer may give a notice to stand-alone carer directing the carer not to provide education and care in the home
  11. Section 193 Compliance noticesissued for contravening a provision of the Education and Care ServicesAct
  1. Section 194 Building Act requirement compliance notice
  2. Section 195 Emergency action notices
  3. Section 196 Prohibition notices
  4. Section 207 Triennial inspection

In addition, the following prosecutorial action is associated with this guideline:

  1. Section 229 Prosecution of offences

By pursuing compliance, enforcement or prosecutorial action, the departmentdemonstrates its commitment to ensuring the safety, health and wellbeing of children attending QEC services. The department will take decisive action to compel approved providers to protect children in QEC services from preventable harm. Monitoring activities may be conducted reactively or may be proactive to target services or legislative requirements as needed.

Templates

Templates for use by departmental officers which relate to monitoring, compliance and enforcement are available in TRIM at 60/11/353 (DETE employees only).

Process

1)Monitoring and Investigation

a)Authorised officers must monitor QEC services for compliance with the ECS Act. Monitoring activities include the following:

i)Reactive monitoring, including:

­Receiving and responding to notifications under the ECS Act, including ECS22 Serious incident notification and/or ECS23 Complaint and emergency care notification

­Receiving and responding to complaints about QEC services.

­Receiving and responding to other intelligence.

ii)Proactive monitoring, including:

­Providing education and guidance to the QEC sector.

­Undertaking targeted campaigns.

­Conducting scheduled three–yearly compliance inspections (triennial inspection).

­Conducting QEC service inspections (announced and unannounced).

b)Authorised officers must conduct investigations where non-compliance is suspected, in accordance with the Investigation Handbook. The purpose of Authorised Officer investigations is to:

i)Determine the cause of an incident, injury or illness.

ii)Obtain further information about the incident, injury, illness or complaint.

iii)Determine compliance with the ECS Act.

iv)Determine what action may be required in future to prevent further occurrence.

v)Determine what compliance action should pursued by the department, if any.

c)Investigations are undertaken with the knowledge that departmental resources are finite. Investigations will be tailored according to the seriousness, frequency of occurrence and significance of the non-compliance.

d)In some cases, an issue uncovered during an investigation may need to be referred to another agency that is better placed to conduct the investigation. For further information on referring matters to other agencies, consult the Investigation Handbook.

2)Assessment

Authorised Officers must assess the matter in accordance with the Enforcement Policy, the Compliance Reference Tooland the Investigation Handbook. The assessment is a two-step process:

1)Assess the non-compliance by considering the following questions:

a)Is there sufficient evidence of non–compliance?

i)If there is no evidence of non–compliance detected during the investigation, do not continue with the assessment and inform the person or provider under investigation that the investigation is concluded.

ii)If there is evidence of non-compliance, then continue with the assessment.

b)Does the public interest require a compliance or enforcement action?

2)Use the Child Care Information Service (CCIS), the National Quality Agenda Information Technology System (NQA–ITS) and investigation report to record all decisions and actions taken during the assessment of the non-compliance.

3)Consult with the Monitoring and Compliance team in RASQ on an appropriate course of compliance and enforcement action if the matter involves high risk non-compliance or non-compliance that has major or significant consequences.

4)Seek legal advice if required for guidance around interpretation of provisions of the ECS Act and/or to discuss the evidence, the investigation process and/or the findings reached.

NOTE:

Examples of where it may be appropriate to seek legal advice include:

i)Where the elements of the provision are based on a standard of conduct (for example, where the provision requires an assessment of the reasonableness of actions)

ii)Where an element of the provision requires the assessment of the legal standing of some entity or document (for example, whether an entity is an individual or a body corporate, whether a certificate of insurance meets the prescribed requirement as a matter of law)

Legal advice should be obtained from LALB through the Monitoring and Compliance Team, Regulation Assessment and Service Quality (RASQ). The Monitoring and Compliance team is available to assist regional staff with the preparation of instructions for legal advice by contacting them at .

Legal advice may be obtained from LALB by contacting them at .

3)Decision

Authorised officers must:

1)Decide on an appropriate course of compliance and/or enforcement action in accordance with the Enforcement Policy, the Compliance Reference Tool and the Investigation Handbook.

2)Consult with RASQ on the compliance and enforcement action if the matter involves high risk non-compliance or non-compliance that has major or significant consequences

3)Inform:

i)the person affected by the compliance and enforcement action of the decision to pursue compliance action, including any avenues for review, or pursue the prosecutorial action.

ii)the Monitoring and Compliance team, RASQ of any compliance action that is pursued which may be published.

iii)the Children’s Commissionerof disciplinary action listed in section 91 of the ECS Act and if a prohibition notice is given to a person under section 196 of the ECS Act.

Publication of enforcement and compliance or prosecutorial action

Due tothe potential for reviews under the ECS Act the delegated officerresponsible for publishing enforcement and compliance or prosecutorial action must not influence the officer deciding whether to take the enforcement and compliance or prosecutorial action.

The delegated officer responsible for publishing enforcement and compliance or prosecutorial action:

1)Must be informed of the any decision to take the following compliance and enforcement action:

a)A prosecution for an offence against the ECSAct or Education and Care Services Regulation 2013 (ECS Regulation) which led to a conviction

b)The giving of a compliance notice

c)The suspension or cancellation(other than a voluntary suspension or surrender) of a provider approval or service approval

d)An amendment made to a provider approval for the purposes of enforcement

e)The giving of a prohibition notice.

2)Must decide whether to publish the information based on public interest considerations in the Enforcement Policy.

This guideline is non-binding information that assists users to follow a procedure.

Uncontrolled copy. Refer to the Department of Education, Training and Employment Policy and Procedure Register at to ensure you have the most current version of this document. Page 1 of 4