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Question and Answer Tracking Details

3221 - Education and Early Learning - DISPUTES RELATING TO ECEC SERVICE PROVIDERS AND EDUCATORS

Boyd, Abigail to the Minister for Finance, Minister for Domestic Manufacturing and Government Procurement, and Minister for Natural Resources representing the Deputy Premier, Minister for Education and Early Learning, and Minister for Western Sydney
DISPUTES RELATING TO ECEC SERVICE PROVIDERS AND EDUCATORS

(1) The Department of Education   website lists details of providers, nominated supervisors and other individuals who have pled guilty to or who have been found guilty or convicted of offences under education and care services legislation. For each calendar year from 2020 to 2024, how many prosecutions were brought which are not listed on the site because they did not result in a finding of guilt or a conviction?

(a) In each calendar year from 2020 to 2024, how many breaches of the national law or regulations were not pursued as prosecutions due to a settlement or other agreement being entered into with the party or parties who would otherwise have been prosecuted against?

(b) Who is responsible for determining which breaches of the National Law are prosecuted and which are not?

(i) On what basis is that decision made?

(2) For each calendar year from 2020 to 2024, how many providers, nominated supervisors or other individuals brought action against the ECEC (Early Childhood Education and Care) Regulatory Authority or the Department in NCAT (New South Wales Civil and Administrative Tribunal) in relation to an enforcement action, such as a compliance notice, prohibition notice or cancellation or suspension, taken against them by the ECEC Regulatory Authority?

(a) How many of those NCAT cases were decided in favour of the applicant?

(b) How many of those NCAT cases did not proceed to a decision because the Department or the ECEC Regulatory Authority entered into a settlement or other agreement with the applicant?

(c) In relation to any settlement or other agreement with the applicant in the course of NCAT proceedings, how many involved a confidentiality provision, suppression order or similar?

(i) How many involved the execution of an Enforceable Undertaking by the applicant?

(3) Other Australian jurisdictions, such as   Victoria,   Queensland and Western Australia, provide far more detailed information in relation to enforcement actions and regulator activities under the National Law and Regulations than New South Wales does, for example, the Department's site does not even disclose the name of the party entering into an enforceable undertaking. Whose decision was it to disclose limited information only?

(a) When was this decision first made?

(b) When was this decision last considered?

(c) Why was the decision made to continue to disclose less information than other states and territories?

(d) Are there any Enforceable Undertakings or other enforcement actions which are not listed on the New South Wales website because of confidentiality obligations or suppression orders?

(4) Among other things, the   New South Wales ECEC Regulatory Authority Sector Survey 2024 key findings showed that almost one in four respondents were unable to agree that regulatory officers "acted fairly and without bias", and over 40 per cent of respondents could not agree that the Regulatory Authority understood the current issues and needs of the sector. What specific actions are the Regulatory Authority and the Department taking to address these findings?

(a) Were these findings considered when making a decision to transfer the Regulatory Authority to a different section of the Department structurally?
Answer -

There is one prosecution in each of the calendar years 2020 to 2022, which has not been listed on the Department of Education's website because it did not result in a finding of guilt or a conviction. There are no prosecutions in the 2023 and 2024 calendar years that have not been published due to not resulting in a finding of guilt or a conviction.

In the calendar years 2020 to 2024, 70 breaches of the National Law or Regulations were not pursued as prosecutions due to plea negotiations. This consists of 16 breaches in 2020, nine breaches in 2021, four breaches in 2022, 28 breaches in 2023 and 13 breaches in 2024.

Following consideration of legal advice, the Executive Director, NSW Early Childhood Education and Care Regulatory Authority (ECEC RA) determines which breaches of the National Law are prosecuted and which are not. Once prosecution proceedings have commenced, the ECEC RA Legal Team determines any plea negotiations, subject to appropriate consideration.

The decision to commence prosecution proceedings is made in consideration of theProsecution Guidelines published by the NSW Office of the Director of Public Prosecutions. In the calendar years 2020 to 2024, 63 matters were brought against the ECEC RA in NCAT in relation to the taking of an enforcement action. This consists of 11 matters in 2020, 10 matters in 2021, 12 matters in 2022, 14 matters in 2023 and 16 matters in 2024. Four of the NCAT cases were decided in favour of the applicant, three in 2020 and one in 2022. 15 of the NCAT cases did not proceed to a decision because the ECEC RA entered into an agreement with the applicant. This consists of three in 2020, three in 2021, four in 2022, four in 2023 and 1 in 2024. In relation to any settlement or other agreement with the applicant in the course of NCAT proceedings, one matter in 2023 involved a non-publication order. Five of the NCAT matters involved the execution of an Enforceable Undertaking by the applicant. This consists of one matter in 2021 and four matters in 2023.

The Relieving Executive Director, NSW ECEC RA requested a review of information that is published and then made a determination to increase the range of information made available. The decision to publish information on enforceable undertakings was made in December 2023. The decision was last considered in December 2023.

Prior to December 2023, the ECEC RA published information on prosecutions, cancellations and involuntary suspensions. After reviewing what other jurisdictions published, it was decided to include enforcement actions.

There is one Enforceable Undertaking not listed on the department's website due to non-publication orders.

In relation to the findings on regulatory officers "acted fairly and without bias" actions include:

  • Mandatory training and testing for all authorised officers by the Australian Children's Education & Care Quality Authority in order to be authorised.
  • The NSW RA's customised Regulatory Empowerment and Learning (REAL) Staff Training Program which ensures our regulatory officers are equipped with the latest skills and knowledge to be confident and capable regulatory practitioners.
  • Clear polices and processes that guide decision making.
  • Ongoing training and development of our operational teams with a focus on consistency and reflective practice designed to lead to improvements to regulatory officers acting fairly and without bias.
  • Organisational redesign of our operational teams to allow better access to mentoring and skills uplift opportunities through improved span of control.
  • eer review of Assessment and Rating reports.

In relation to the findings on "understanding of current issues and needs of the sector", actions include:

  • Events such as ECE Connect engagement sessions. These focus on needs and issues relevant to the sector. In 2024, there were 25 sessions held (18 on line and seven face-to-face). In 2025, there are four blocks of events proposed to be held throughout the year, each block containing several face-to-face and online sessions.
  • Regular meetings with large providers.
  • Regulatory meetings with advisory groups including the ECE Advisory Group and Gudjagang Gulgul (Aboriginal advisory group) and subgroups as needed.
  • Regular separate meetings with peaks as needed or on specific issues of interest.
  • Continued use of surveys and consultation on key initiatives.
  • Review of complaints data to identify themes and trends.

The transfer of the Regulatory Authority to the Operations Division of the department occurred in January 2024. The decision to transfer under the Operations Group was based on an administrative realignment within the overall department structure. Results from the sector survey are used internally within the Regulatory Authority to seek sector sentiments and identify areas for improvements. The survey results do not inform operational decisions made by the department as a wider organisation.

Question asked on 17 January 2025 (session 58-1) and published in Questions & Answers Paper No. 417
Answer received on 10 February 2025 and published in Questions & Answers Paper No. 432

The Parliament of New South Wales acknowledges and respects the traditional lands of all Aboriginal people, and pays respects to all Elders past and present. We acknowledge the Gadigal people as the traditional custodians of the land on which the Parliament of New South Wales stands.