Guide to the Education and Care Services National Law and the Education and Care Services National Regulations 2011




НазваниеGuide to the Education and Care Services National Law and the Education and Care Services National Regulations 2011
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Guide to the Education and Care Services National Law and the Education and Care Services National Regulations 2011


November 2011


Copyright


The details of the relevant licence conditions are available on the Creative Commons website (accessible using the links provided) as is the full legal code for the CC BY 3.0 AU licence (http://creativecommons.org/licenses/by/3.0/au/legalcode). The document must be attributed as the

Guide to the National Law and Regulations 

ISBN

978-0-642-78125-3 [PRINT]

978-0-642-78126-0 [PDF]

978-0-642-78127-7 [RTF]

Contents

About this guide 7

How this guide is organised 7

Chapter 1: Introduction 9

Legislative framework of the National Quality Framework 9

Objectives 9

Guiding principles 10

Services covered by the National Law 11

Services excluded by the National Law 11

Services excluded by the National Regulations 12

Where key definitions can be found 13

Chapter 2: Approvals and certificates 15

Part 2.1: Provider approvals 16

Application process 16

Determining an application for provider approval 19

Grant and issue of provider approval 19

Conditions on provider approvals 20

Amendment of provider approval 20

Suspension of provider approval 20

Cancellation of provider approval 21

Approval of executor, representative or guardian as Approved Provider 22

Part 2.2: Service approvals 23

Application process 24

Determining an application for service approval 25

Grant and issue of service approval 26

Conditions on service approval 27

Amendment of service approval 28

Change to Nominated Supervisor 28

Transfer of service approval 28

Suspension of service approval 29

Cancellation of service approval 31

Waivers 31

Part 2.3: Supervisor Certificates 34

Application process 35

Determining an application for a Supervisor Certificate 36

If the Regulatory Authority grants a Supervisor Certificate 36

Conditions on Supervisor Certificates 37

Amendment of a Supervisor Certificate 38

Suspension or cancellation of a Supervisor Certificate 38

Summary of timeframes relating to approvals 39

Chapter 3: Assessments and ratings 41

Part 3.1: Quality Improvement Plans 42

Part 3.2: Rating levels 44

Part 3.3: Assessment process 45

Reassessment and re-rating 47

Part 3.4: Review of ratings 47

Internal review of ratings by Regulatory Authority 47

Further review by Ratings Review Panel 48

Part 3.5: Award of highest rating 48

Part 3.6: Offences for falsely representing ratings 49

Chapter 4: Operational requirements 51

Part 4.1: Educational program and practice 52

Quality Area 1: Standards and Elements 52

Educational program 52

Assessment of children’s learning 53

Information for parents about educational program 54

Part 4.2: Children’s health and safety 55

Quality Area 2: Standards and Elements 55

Health, hygiene and safe food practices 56

Food and beverages 57

Sleep and rest 57

Tobacco, drug and alcohol-free environment 58

Child protection 58

Incidents, injury, trauma and illness 59

Serious incidents 59

Infectious diseases 60

First aid kits 61

Medical conditions 62

Administration of medication 63

Adequate supervision 64

Protection from harm and hazards 66

Emergency procedures 67

Telephone or other communication equipment 68

Collection of children 68

Excursions 69

Part 4.3: Physical environment 71

Quality Area 3: Standards and Elements 71

Fencing and security 72

Furniture, materials and equipment 73

Laundry and hygiene facilities 73

Indoor space requirements 74

Outdoor space requirements 75

Toilet and hygiene facilities 76

Ventilation and natural light 77

Administrative space 77

Nappy change facilities 78

Outdoor space—natural environment 78

Outdoor space—shade 79

Premises designed to facilitate supervision 80

Assessments of family day care residences and venues 81

Glass 82

Part 4.4: Staffing arrangements 83

Quality Area 4: Standards and Elements 83

Responsible person 83

Nominated Supervisor 84

Certified Supervisor in day-to-day charge 85

Educational leader 85

Age and supervision requirements 86

Educator-to-child ratios 87

Qualification requirements: Centre-based services 90

Qualification requirements: Family day care services 93

Summary of qualification requirements 94

First aid qualification requirements 97

Approval of qualifications 97

Staff records: Centre-based services 99

Register of family day care educators 100

Staff, educator, coordinator and educator assistant records: Family day care services 100

Part 4.5: Relationships with children 101

Quality Area 5: Standards and Elements 101

Interactions with children 101

Relationships in groups 102

Part 4.6: Collaborative partnerships with families and communities 103

Quality Area 6: Standards and Elements 103

Part 4.7: Leadership and service management 105

Quality Area 7: Standards and Elements 105

Child attendance records 106

Child enrolment records 106

Other adults at the family day care residence to be fit and proper 107

Notice of new persons at residence 107

Visitors to family day care residence or venue 108

Policies and procedures 108

Prescribed information to be displayed 111

Notifications required 112

Record keeping 115

Chapter 5: Review, enforcement and compliance 119

Approaches and tools to assist with compliance 120

Authorised officers 120

Monitoring of education and care services 121

Compliance actions 121

Infringement notices 122

Enforceable undertaking 123

Compliance directions 123

Compliance notices 124

Prohibition notice 124

Notice to suspend a family day care educator 125

Emergency action notice 125

Emergency removal of children 126

Offences under the National Law and National Regulations 126

Publication of enforcement action taken under the National Law 127

Review of decision— internal review 128

Review of decision—external review 129

Summary of offences under the National Law 131

Summary of offences under the National Regulations 133

Chapter 6: Administration 139

Part 6.1: The National Authority and Regulatory Authorities 140

Australian Children’s Education and Care Quality Authority 140

Regulatory Authorities 142

Part 6.2: Information, records and privacy 143

Application of laws 144

Publication of registers and information 144

Disclosure of information 146

Part 6.3: Fees 147

Multiple service types 148

Late payment fees (annual fees) 148

Waiver, reduction, deferral and refund of fees 148

Fee structure as at 1 January 2012 149

Indexation of fees 150

Part 6.4: Delegations 151

Chapter 7: Transitional and Savings Arrangements 153

Approvals 154

Declared approvals 154

Existing applicants for provider approval and service approval 155

Existing multiple approvals to merge 155

Service waiver and temporary waiver 155

Declared out of scope services 156

Staffing arrangements 156

Preschool program in a composite class in a school 156

Persons taken to count as an educator holding an approved Certificate III qualification 156

Certificate III qualified educators 157

Diploma qualified educators 157

Early childhood teachers 157

First aid qualifications 158

Anaphylaxis training 159

Asthma training 159

Physical environment 159

Exemptions – declared approved Centre-based service 159

Exemptions – declared out of scope service 160

Fencing and security exemption- declared approved Family day care service 161

Preschool program in a composite class in a school 161

Assessment and rating 162

Quality Improvement Plans 162

Display of accreditation and rating 162

Taken to comply 162

Compliance 163

Effect of non-compliance before 1 January 2012 163

Notices and undertakings 163

Offences 163

Information retention and sharing 164

Information held by Regulatory Authorities 164

Information held by providers 164

Approved Learning Frameworks 164

Contacts 165

Sample forms and templates 167

Medication record 170

Excursion risk management plan 171

Staff record 174

Record of family day care co-ordinators, assistants and staff 178

Record of visitors to family day care residence or approved venue 181

Index 183


About this guide

The purpose of this guide is to assist providers of education and care services, Nominated Supervisors and educators to understand the Education and Care Services National Law Act 2010 (‘National Law’) and the Education and Care Services National Regulations 2011 (‘National Regulations’). It provides examples of how providers, services and supervisors might meet their obligations under the National Law and National Regulations.

Some of the explanatory context is drawn from the Guide to the National Quality Standard and the Guide to Developing a Quality Improvement Plan so you may also see it replicated in those documents.

This guide does not replace the National Law and National Regulations and is provided solely for guidance and assistance. Approved providers and those working directly with children should read and understand the National Law and National Regulations. Approved Services should seek their own legal advice for a full interpretation of the National Law and National Regulations. This guide contains information relevant to Centre-based services, including long day care, preschool (also called kindergarten in some jurisdictions) and outside school hours care, and Family day care services.

As a general approach, each section highlights key elements of the National Law and National Regulations but it is not exhaustive.

In many areas additional information is provided about how a service may operationalise the requirements on a day to day basis. This information is provided as guidance only.

How this guide is organised

This guide is organised into chapters which align with the structure of the National Regulations. Where a topic refers the reader to a particular regulation of the National Regulations or section of the National Law, the reference will be noted in a green box, for example:


National Law: eg Section 53

National Regulations: eg Regulation 104




Purple text boxes will highlight examples of practice, or information to note




Other boxes will refer the reader to other parts of this guide for more information on a particular topic or requirement.




Orange text boxes include guidance information.




Indicates the fee for this application




This guide also provides cross-references to the National Quality Standard, to help the reader understand the relationship between the National Law, the National Regulations and the National Quality Standard.



Information relating specifically to a service type or age group will be in bold—for example, relating to a Centre-based service or a Family day care service.

Chapter 1: Introduction

Legislative framework of the National Quality Framework

The National Law is not a Commonwealth Law. The National Quality Framework is being established under an applied law system comprising the Education and Care Services National Law and Education and Care Services National Regulations and will apply to most long day care, family day care and preschools (or kindergartens) and outside school hours care services in Australia.

A national applied law is a way of establishing national laws whereby a host jurisdiction (in this case Victoria) passes a law (the Education and Care Services National Law Act 2010 (Vic)) and other jurisdictions adopt that law or pass corresponding legislation.

The purpose of the Education and Care Services National Law is to create a jointly-governed, uniform and integrated national approach to the regulation and quality assessment of education and care services.

The National Law sets out the objectives and guiding principles for the National Quality Framework.

Objectives


National Law: Section 3 (2)



The objectives of the National Quality Framework are to:

ensure the safety, health and wellbeing of children attending education and care services

improve the educational and developmental outcomes for children attending education and care services

promote continuous improvement in the provision of quality education and care services

establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the National Quality Framework

improve public knowledge, and access to information, about the quality of education and care services

reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth.

Guiding principles


National Law: Section 3(3)



The following principles apply when making decisions about operating education and care services, and working to achieve the National Quality Standard and improve quality at each service:

the rights and best interests of the child are paramount

children are successful, competent and capable learners

the principles of equity, inclusion and diversity underly the National Law

that Australia’s Aboriginal and Torres Strait Islander cultures are valued

that the role of parents and families is respected and supported

that best practice is expected in the provision of education and care services.


The United Nations Convention on the Rights of the Child articulates the rights of all children and provides a set of guiding principles that shape the way we view children. ‘Best interests of the child’ is one of these guiding principles and sets out that when adults make decisions, they should consider how these decisions will affect children.



The National Law sets out:

approval processes for the operation of education and care services

the assessment and rating system

key operational requirements

compliance, monitoring and enforcement powers

review of decisions made by Regulatory Authorities

the functions and powers of the Ministerial Council

the functions and powers of the Australian Children’s Education and Care Quality Authority (ACECQA)—the national body that will oversee the new system

the functions and powers of Regulatory Authorities in each jurisdiction

creation of a nationally consistent freedom of information and privacy framework to apply to ACECQA and Regulatory Authorities

publication of information, including registers

key transitional arrangements.

Services covered by the National Law


National Law: Section 5



The National Quality Framework covers most long day care, family day care, preschool (kindergarten) and outside school hours care services.

The National Quality Framework has commenced with the largest services in terms of numbers of children. Given the range and diversity of education and care services, an all-encompassing national system will take a number of years to achieve. Further work will be undertaken in the future to assess how and when other services may be incorporated, including cost–benefit analyses for inclusion of these services.

Given that additional types of education and care services may be brought into the National Quality Framework later, the National Law adopts a broad definition of ‘education and care service’ as ‘any service providing or intending to provide education and care on a regular basis to children under 13 years of age’, except those services that are specifically excluded either by the National Law or the National Regulations.

Services excluded by the National Law

The following services are excluded by the National Law and are not within the scope of the National Quality Framework:

a school providing full-time education to children, including children in the year before Grade 1, but not including a preschool program delivered in a school or a preschool that is registered as a school (as these are within scope)

a preschool program delivered in a school if the program is delivered in a class or classes where a full-time education program is also being delivered to school children and the program is delivered to fewer than six children in the school (a composite class)

a personal arrangement

a service principally conducted to provide instruction in a particular activity (for example, a language class or ballet class)

a service providing education and care to patients in a hospital or patients of a medical or therapeutic care service

care provided under a child protection law of a participating jurisdiction.

Services that are excluded by the National Law are unlikely to be brought into the National Quality Framework in the future.

Services excluded by the National Regulations


National Regulations: Regulation 5



Services that are excluded by the National Regulations may be brought into the National Quality Framework in the future.

The National Regulations exclude the following services:

disability services defined under state or territory law, and early childhood intervention services for children with additional needs

education and care in a child’s home

education and care in a residence, other than as part of a Family day care service

occasional care services (for example, offered at short notice or on a casual basis)

education and care provided by a hotel or resort to children of short-term guests at the hotel or resort

education and care that is provided on an ad hoc basis to children of a guest, visitor or patron where the person who is responsible for the children is readily available at all times

education and care where it is primarily provided or shared by parents or family members

education and care provided at a secondary school to a child of a student attending the school, where the parent retains responsibility for the child

mobile services

services that provide education and care for no more than four weeks per calendar year during school holidays

transition to school programs provided by a school to orient children to that school

budget based funded services, other than where they receive Child Care Benefit

playschools licensed in the Australian Capital Territory

stand-alone services in Queensland

playcentres in South Australia

services licensed as Centre-based Class 4 or 5 services under the Child Care Act 2001 in Tasmania

licensed limited hours or short-term services in Queensland or Victoria

government-funded services under the Children and Community Services Act 2004 of Western Australia.

Where key definitions can be found


National Law: Section 5

National Regulations: Regulations 4, 10–13




child over preschool age

Regulation 4, National Regulations

child preschool age or under

Regulation 4, National Regulations

education and care service premises

Section 5, National Law

educator

Section 5, National Law

emergency

Regulation 4, National Regulations

excursion

Regulation 4, National Regulations

family day care educator assistant

Regulation 4, National Regulations

family member

Section 5, National Law

Meaning of actively working towards a qualification

Regulation 10, National Regulations

Meaning of serious incident

Regulation 12, National Regulations

Meaning of in attendance at a centre-based service

Regulation 11, National Regulations

Meaning of working directly with children

Regulation 13, National Regulations

office, in relation to a Family day care service

Section 5, National Law

parent

Section 5, National Law

participating jurisdiction

Section 5, National Law

person

Section 5, National Law

person with management or control

Section 5, National Law

preschool program

Section 5, National Law

regular outing

Regulation 4, National Regulations

Regulatory Authority

Section 5, National Law

school children

Section 5, National Law

staff member

Section 5, National Law



Chapter 2: Approvals and certificates

This chapter explains the process for obtaining approvals and Supervisor Certificates.

The National Law determines three inter-related approval processes for entities and individuals:

provider approval—which is nationally recognised and enables providers to apply for one or more service approvals

service approval—authorises an Approved Provider to operate an education and care service. The Approved Provider must nominate a person to be the Nominated Supervisor for each of their Approved Services

Supervisor Certificate—allows individuals who hold a Supervisor Certificate to be eligible to be a Nominated Supervisor, or to be placed in day-to-day charge when the Approved Provider or Nominated Supervisor is not physically present at the education and care service.

Diagram 1:


The National Law and National Regulations set out specific information required for each type of application. They also prescribe timeframes for Regulatory Authorities to make decisions and notify applicants of the outcome.

All decisions made by Regulatory Authorities in relation to the approvals process are reviewable. An application for internal review must be made in writing to the Regulatory Authority within 14 days after notification of the decision.

The Regulatory Authorities will assess applications to ensure that individuals, or in the case of an entity, persons with management or control, meet minimum requirements.

Provider and service approvals and Supervisor Certificates are national and ongoing approvals.

Applications can be made through the national online application system. If an entity or individual is unable to access online application forms, they should contact the Regulatory Authority in their jurisdiction.


Contact details for each Regulatory Authority are provided on page 165.



Part 2.1 outlines the process for obtaining provider approval.

Part 2.2 sets out matters related to service approval, including applications, amendments, suspension and cancellation, and waivers.

Part 2.3 sets out matters related to Supervisor Certificates, including applications, amendments and placing a supervisor in day-to-day charge of an Approved Service.

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