Children (Education and Care Services National Law Application) Bill 2010



About this Item
SpeakersGoward Ms Pru; McMahon Ms Lylea; Burney Ms Linda
BusinessBill, Message, Agreement in Principle, Passing of the Bill, Motion



CHILDREN (EDUCATION AND CARE SERVICES NATIONAL LAW APPLICATION) BILL 2010
Page: 27943

Agreement in Principle

Debate resumed from 12 November 2010.

Ms PRU GOWARD (Goulburn) [5.48 p.m.]: The Opposition does not oppose the Children (Education and Care Services National Law Application) Bill 2010. The primary purpose of the bill is to adopt the Education and Care Services National Law agreed to by the Council of Australian Governments in December 2009. The law gives effect to the National Partnership Agreement on the Quality Agenda for Early Childhood Education and Care as endorsed by the Council of Australian Governments in December 2009. That includes a commitment to establish a jointly governed uniform national quality framework and it facilitates the introduction through the national regulations made under the national law of a new national quality standard. Before the national law commences it will be necessary for New South Wales and each of the other States participating in the national licensing scheme to enact its own legislation providing for consequential amendments of other Acts consequent on the adoption of the national law, and that is the purpose of this bill and of this debate.

The national law provides a national approach to regulation, assessment and quality improvement for early childhood education and outside school hours care. It replaces existing separate licensing and quality assurance processes for preschool, family day care and outside school hours care, and establishes a public rating system for education and care services. It also establishes this at the national level. As I understand it, the State and Territory regulatory authorities will become the primary points of contact with service providers and the National Childcare Accreditation Council will disappear. New South Wales will thus retain responsibility for approving providers and services, certifying supervisors, and monitoring and enforcing compliance with the law. Regulatory authorities will also assess the quality of services against the national quality standards. Our State regulatory authority will be the community services agency in the Department of Human Services.

At the national level we will see the establishment of the Australian Children's Education and Care Quality Authority. Its functions will include guiding the implementation and administration of the national quality framework, and monitoring and promoting consistency in its administration. The New South Wales Government will have a representative on that authority's board, which in turn will report to the relevant ministerial council. The Australian Children's Education and Care Quality Authority also has an audit role which will ensure that regulatory authorities within each of our jurisdictions operate the national law in a consistent and nationally coherent manner. I note that the Liberals-Nationals Coalition in Victoria, where the bill arose, supported the intent of the legislation to adopt a national law much as we are today. It noted the fact that it would improve quality and standards in early childhood services. The Victorian Coalition made the point that the legislation had been rushed through and should be subject to further consultation and, in particular, full cost analysis. I repeat its concern that the bill needs a full cost analysis, particularly given expenses will be incurred by childcare providers because of the national quality framework.

I draw the attention of the House to a number of concerns. The first that has been raised with the Opposition is the fate of the commercial long day care sector. Will the long day care sector and those centres be eligible for the increased funding that the New South Wales Government intends making available for centres with fewer than 25 children to ensure that those centres have an early childhood teacher in attendance some of the time? Will commercial long day care centres who, after all, also provide preschool education, be eligible for that support? I understand it can be up to $6,000 for a three-year trained teacher or $8,000 for a seven-year trained teacher. I understand that new money, which will come to New South Wales under a bilateral agreement with the Commonwealth, is to be available to centre-based and mobile early childhood services. Again, the commercial sector, the long day care sector in particular, is anxious to understand whether that sector will enjoy that same support or whether it will be expected to meet the increase of the raised standards entirely through their own fee-raising efforts. I note also that although much concern has been expressed about the increasing cost of child care as a result of the national quality framework that the Commonwealth Government has agreed to additional funding to pay for the further education of childcare workers in technical and further education institutions.

The other issue that national legislation always provokes is the lowest common denominator. It is pleasing to see that the national quality framework has accepted a high standard and a standard that the New South Wales regulations already impose upon New South Wales centres, particularly that there be a tertiary- educated teacher. In this instance I do not know that New South Wales would say that it is disadvantaged by a national approach. However, in the long term we need to be cognisant that the way national legislation will be developed and advanced will require a majority of signed-up jurisdictions to agree to any change. If there were States that did not wish to see an increase in the childcare standard or quality of education services and if a majority of States were in that position, we would revert to what some might describe as a lower standard of early childhood education. I imagine that is an issue that will always confront national legislation. That is why we have States, why we have competition in standards and ideology, and those differences are quite healthy. But in the case of national legislation we accept the risk that there will be a lowest common denominator approach because we have to have agreement.

This new national legislation is intended to ensure that interstate agencies, franchised agencies, do not have to go through repeated re-registrations if they move from one State to another. Given the mobility of Australians, families will be pleased to know there is not a disparity in the level of regulation and the need to re-register services and to be sure, when they move from one State to another, of the standard of service they will receive. However, I think there is every risk that we will always have to agree on the minimum, not the maximum. I also draw to the attention of the House a concern raised by one of the stakeholders about the constitutionality of national law. That stakeholder makes the point that even if New South Wales parliamentarians thought it might be a good idea to agree to such parliamentary governance there is doubt about whether the New South Wales Parliament is constitutionally able to agree to such governance change without prior analysis and consultation. It is being done through a national process and not a parliamentary one.

The Chief Justice of New South Wales, the Hon. J. J. Spigelman, AC, considers this matter in his Garran Oration and in his address to the Administrative Law Symposium earlier this year. The Chief Justice considered the High Court's recent judgement in Kirk v Industrial Relations Commission. As I understand it, the upshot of Chief Justice Spigelman's comment is that it might not be constitutionally possible to remove New South Wales parliamentary governance capacity in the manner suggested by the national law. In his address to the Administrative Law Symposium, the Chief Justice noted:
      State Parliament cannot act so as to impinge on the constitutional idea of a Supreme Court of a State—
that is, the Supreme Court of New South Wales. The Chief Justice continued:
      I note, in passing, that the term "Parliament of a State" is also a constitutional expression …
He enlarged on this in his October Garran Oration:
      Just as the concept of a "Supreme Court of the State" is found to have certain essential characteristics, which cannot be changed and are, therefore, entrenched by the Commonwealth Constitution, so the frequent references in that Constitution to the Parliaments of the States will also be found to have entrenched individual characteristics which cannot be ordered by the Parliaments of the States or, indeed, by the people of the State in a referendum.

The point being made is that we need to be more confident than we are at this stage about the constitutionality of the national law process, particularly when it comes to changing arrangements. A third and final consideration I bring to the attention of the House is that raised by Ms Sheridan Dudley, Chief Executive of KU Children's Services. KU, like most of the peak bodies in this sector, has supported the national law. Ms Dudley certainly supports the national quality standard and has no objection to the national law. She supports a national approach to regulation, assessment and quality improvement for early childhood education and care. Ms Dudley states:
      However we do want an opportunity to influence the shape of the National Quality Framework process - especially to influence the assessment and rating process, the assessment and rating instrument, the National Quality Standard, the self-assessment and quality improvement templates and the National Regulation. We also want to see specific recognition within the NQF of support for children with additional needs.
    Having made those observations and sought an answer on behalf of the commercial long day care sector about its eligibility for additional funding if there are fewer than 25 children receiving preschool education, I indicate that the Opposition does not oppose the bill.

    Ms LYLEA McMAHON (Shellharbour—Parliamentary Secretary) [6.01 p.m.]: Through the Children (Education and Care Services National Law Application) Bill 2010 the New South Wales Government joins a national effort that aims to lift the quality of the educational experiences of our children in the early stages of their development. The lifelong benefits of quality early childhood education and care are well documented and create an obligation on all of us to ensure that children are given the best possible start in life. In December 2009 all State and Territory governments and the Commonwealth agreed to make early childhood education and care a national priority. From 1 January 2012, Australian governments will implement the landmark National Quality Framework, which will deliver better-quality services and promote strong developmental outcomes for the millions of Australian children attending long day care, family day care, preschool and outside school hours care. The bill applies, in New South Wales, the Education and Care Services National Law, which has been developed by the State, Territory and Commonwealth governments to operationalise the National Quality Framework.

    The National Quality Framework includes streamlined regulatory arrangements, a new National Quality Standard that includes improved staff-to-child ratios and a more qualified early childhood workforce, a transparent ratings system that gives families information about the quality of their child or children's early childhood or school-age care service, and a new national body to guide the implementation and management of the framework. The National Quality Standard defines seven key quality areas for services to be assessed and rated against. These areas are educational programs and practices; children's health and safety; the physical environment; staffing arrangements, including staff-to-child ratios and the qualifications of staff; the quality of the relationships that staff have with children; the quality of the partnerships they develop with families and communities; and the leadership and management of the service.

    Under the national law, State and Territory regulatory authorities will retain responsibility for approving providers and services and certifying supervisors, as well as monitoring and enforcing compliance with the law. They will also undertake the important task of assessing the quality of services against the National Quality Standard. The national law provides much-needed certainty for childcare providers, as it embeds an environment where the significant changes to standards that will affect the sector have been agreed between governments for the period 2012 to 2020. The national law provides for the periodic assessment of services against the National Quality Standard, which will be set out in the regulation under the national law. Following assessment, the quality of services will be rated and these ratings will be published.

    This new ratings system will improve the availability of information about the quality of services for families. A service's rating in each of these seven quality areas, and overall rating, will be published. These ratings will provide parents with information about the quality of education and care services, and will drive continuous improvement in the sector. As a result of this bill, parents will be able to compare services in their area and make more informed choices about which service best meets their child's needs. The ratings system will be central to promoting among providers a culture of quality assessment and improvement in the delivery of education and care services for children. It is vital that children's services are of a consistently high quality at a time when more children across Australia are spending more time attending those services.

    The new National Quality Framework will become operational from 1 January 2012, from which time Australian families will begin to have access to childcare services where standards are steadily improving in the two domains that are most important for children: staff-to-child ratios and staff qualifications. As I am sure all members will appreciate, the support of the New South Wales Parliament for this bill is a significant step towards delivering better-quality childcare services and promoting strong developmental outcomes for children in New South Wales who are attending long day care, family day care, preschool and outside school hours care services. I congratulate the Minister on the bill and commend the bill to the House.

    Ms LINDA BURNEY (Canterbury—Minister for the State Plan, and Minister for Community Services) [6.05 p.m.], in reply: I thank the member for Goulburn and the member for Shellharbour for their contributions to debate on the Children (Education and Care Services National Law Application) Bill 2010. My concluding comments will be brief. The bill provides for the application in New South Wales of the Education and Care Services National Law, which lays the legislative foundation for nationally consistent standards to ensure that quality education and care is provided by long day care, family day care, preschool and outside school hours care services. These service types constitute 95 per cent of all childcare services in New South Wales. The bill will enable the operationalisation of the National Quality Framework, which was agreed by the Council of Australian Governments in December 2009.
      The National Quality Framework will commence on 1 January 2012 and includes a national system of provider and service approvals and supervisor certificates; the staged introduction of improved staff-to-child ratios and staff qualifications; the introduction of a quality assessment and ratings system based on a national quality standard; and the establishment of a new national body, the Australian Children's Education and Care Quality Authority, to oversee the implementation of the framework. The introduction of a single national quality standard will ensure that the same quality standards are met by services across Australia. Improved staff-to-child ratios will give each child more individual care and attention. Higher staff qualifications will ensure staff have the skills to lead activities that help children learn, develop and participate fully in the programs on offer. The introduction of a transparent ratings system will give parents access to information about the quality of services so that they can make more informed choices about the services their children attend. A more streamlined regulatory approach will reduce the regulatory burden for service providers and the establishment of a new national body will ensure the regulatory framework, including the national quality standard, is applied consistently across the country.
        I will address briefly two issues raised by the member for Goulburn. The concern she raised around commercial or private providers of long day care centres is something with which I am very familiar. I have met with representatives of a number of those centres. They have raised their eligibility to public support and at this stage they are as aware as we are that they are not part of the system. I have met with them, listened to their concerns and raised those concerns where necessary. In my mind and according to the understanding of my advisers, the point the member raised about constitutionality is not an issue, so I can ease her mind on that one. Finally, in terms of funding, the New South Wales Government will introduce a teacher cost contribution scheme to help with the cost of employing early childhood teachers in all childcare centres, including private childcare centres. The subsidy will contribute between $6,000 and $8,000 per teacher per year, and that subsidy applies to private providers as well.

        KU Children's Services raised the draft regulation. The draft national regulation will be based on the Council of Australian Governments agreement and will be the subject of broad public consultation from early in 2011. This will provide KU Children's Services and all providers with the opportunity to comment on the regulation and quality assurance. In conclusion, the National Quality Framework that this bill enables in New South Wales provides the right balance between quality and affordability of children's services. It achieves this balance by focusing on improving the quality of education and care services, providing greater access to information about the quality of services to families, and reducing unnecessary regulatory burden for childcare providers. I commend the bill to the House.

        Question—That this bill be now agreed to in principle—put and resolved in the affirmative.
          Motion agreed to.
            Bill agreed to in principle.
              Passing of the Bill
                Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.