Division 1 Application for provider approval
10 Application for provider approval
(1) A person, other than a prescribed ineligible person, may apply to the Regulatory Authority for a provider approval.(2) An application may be made by more than one person.(3) If an application is made by more than one person—(a) the prescribed information must be provided in respect of each person; and(b) the requirements of this Division must be complied with by and in respect of each person.
An application under section 10 must—(b) be in writing; and(c) include the prescribed information; and(d) include payment of the prescribed fee.
12 Applicant must be fit and proper person
(1) An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service.(2) If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that—(a) each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and(b) the applicant is a fit and proper person to be involved in the provision of an education and care service.(3) The head of a government department administering an education law of a participating jurisdiction is taken to be a fit and proper person for the purposes of this Part.
13 Matters to be taken into account in assessing whether fit and proper person
(1) In determining whether a person is a fit and proper person under this Division, the Regulatory Authority must have regard to—(a) the person’s history of compliance with—(i) this Law as applying in any participating jurisdiction; and(ii) a former education and care services law of a participating jurisdiction; and(iii) a children’s services law of a participating jurisdiction; and(iv) an education law of a participating jurisdiction; andNote. If a person has been served with an infringement notice for an offence under this Law, and the person has paid the penalty, the Regulatory Authority cannot consider that conduct when determining whether the person is fit and proper. See section 291(5).(b) any decision under a former education and care services law, a children’s services law or an education law of a participating jurisdiction to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification or other authorisation granted to the person under that law; and(c) either—(i) any prescribed matters relating to the criminal history of the person to the extent that history may affect the person’s suitability for the role of provider of an education and care service; or(ii) any check of the person under a working with vulnerable people law of a participating jurisdiction; and(d) whether the person is bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors or, in the case of a body corporate, is insolvent under administration or an externally-administered body corporate.(2) Without limiting subsection (1), the Regulatory Authority may have regard to—(a) whether the person has a medical condition that may cause the person to be incapable of being responsible for providing an education and care service in accordance with this Law; and(b) whether the financial circumstances of the person may significantly limit the person’s capacity to meet the person’s obligations in providing an education and care service in accordance with this Law.(3) Nothing in subsection (1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service.
14 Regulatory Authority may seek further information
(1) For the purpose of carrying out an assessment as to whether a person is a fit and proper person, the Regulatory Authority may—(a) ask the person to provide further information; and(b) undertake inquiries in relation to the person.(2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request and the provision of the further information is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application.
15 Grant or refusal of provider approval
(1) On an application under section 10, the Regulatory Authority may—(a) grant the provider approval; or(b) refuse to grant the provider approval.Note. A provider approval is granted subject to conditions in accordance with section 19.(2) The Regulatory Authority must not grant a provider approval unless the Authority is satisfied as to the matters in section 12.(3) Subject to subsection (4), the Regulatory Authority must make a decision on the application within 60 days after the Regulatory Authority receives the application.Note. If further information is requested under section 14(3), the period between the making of the request and the provision of the information is not included in the 60 day period.(4) The period referred to in subsection (3) may be extended by up to 30 days with the agreement of the applicant.(5) The Regulatory Authority is taken to have refused to grant a provider approval if the Regulatory Authority has not made a decision under subsection (1)—(a) within the relevant period required under subsection (3); or(b) within the period extended under subsection (4)—as the case requires.
16 Notice of decision on application
The Regulatory Authority must give written notice to the applicant of a decision under section 15 and the reasons for that decision within 7 days after the decision is made.
17 Duration of provider approval
A provider approval granted under section 15 continues in force until it is cancelled or surrendered under this Law, or this Law as applying in a participating jurisdiction.
18 Effect of provider approval
A provider approval authorises the approved provider to operate an approved education and care service and an associated children’s service if the approved provider is the holder of the service approval for those services.
19 Conditions on provider approval
(1) A provider approval may be granted subject to any conditions that are prescribed in the national regulations or that are determined by the Regulatory Authority.(2) Without limiting subsection (1), a provider approval is subject to the condition that the approved provider must comply with this Law.(3) A condition of a provider approval applies to the provider as the operator of any education and care service or associated children’s service, unless the condition expressly provides otherwise.
If the Regulatory Authority grants a provider approval under this Part, the Regulatory Authority must provide a copy of the provider approval to the approved provider stating—(a) the name of the approved provider; and(b) if the approved provider is not an individual, the address of the principal office of the provider; and(c) any conditions to which the approval is subject; and(d) the date that the provider approval was granted; and(e) the provider approval number; and(f) any other prescribed matters.
21 Reassessment of fitness and propriety
(1) The Regulatory Authority may at any time assess—(a) whether an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or(b) whether a person with management or control of an education and care service operated by an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service; or(c) whether a person who becomes a person with management or control of an education and care service operated by the approved provider after the grant of the provider approval is a fit and proper person to be involved in the provision of an education and care service.(2) Sections 13 and 14 apply to the reassessment.
Division 3 Amendment of provider approvals
22 Amendment of provider approval on application
(1) An approved provider may apply to the Regulatory Authority for an amendment of the provider approval.(2) The application must—(a) be in writing; and(b) include the prescribed information; and(c) include payment of the prescribed fee.(3) The Regulatory Authority must decide the application by—(a) amending the provider approval in the way applied for; or(b) with the applicant’s written agreement, amending the provider approval in another way; or(c) refusing to amend the provider approval.(4) The Regulatory Authority must make a decision on the application within 30 days after the Regulatory Authority receives the application.(5) Without limiting subsection (3), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.
23 Amendment of provider approval by Regulatory Authority
(1) The Regulatory Authority may amend a provider approval at any time without an application from the approved provider.(2) Without limiting subsection (1), an amendment may vary a condition of the provider approval or impose a new condition on the provider approval.(3) The Regulatory Authority must give written notice to the approved provider of the amendment.(4) An amendment under this section has effect—(a) 14 days after the Regulatory Authority gives notice of the amendment under subsection (2); or(b) if another period is specified by the Regulatory Authority, at the end of that period.
24 Copy of amended provider approval to be provided
If the Regulatory Authority amends a provider approval under this Division, the Regulatory Authority must—(a) provide an amended copy of the provider approval to the approved provider; and(b) make any necessary amendments to any service approval held by the provider and provide an amended copy of the service approval to the approved provider.
Division 4 Suspension or cancellation of provider approval
25 Grounds for suspension of provider approval
The Regulatory Authority may suspend a provider approval if—(a) the approved provider has been charged with an indictable offence, or with an offence that if committed in this jurisdiction would be an indictable offence, or any other circumstance indicates that the approved provider may not be a fit and proper person to be involved in the provision of an education and care service; or(b) the approved provider has failed to comply with a condition of the provider approval; or(c) the approved provider has failed to comply with this Law as applying in any participating jurisdiction; or(d) action is being taken under Part 7 (other than a compliance direction) in respect of more than one education and care service operated by the approved provider; or(e) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension); or(f) the approved provider purported to transfer or receive a transfer of an approved education and care service without the consent of the Regulatory Authority; or(g) the approved provider has not paid any outstanding prescribed fees.
26 Show cause notice before suspension
(1) This section applies if the Regulatory Authority is considering the suspension of a provider approval under section 25.(2) The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—(a) that the Regulatory Authority intends to suspend the provider approval; and(b) the proposed period of suspension; and(c) the reasons for the proposed suspension; and(d) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed suspension.
27 Decision to suspend after show cause process
After considering any written response from the approved provider received within the time allowed by section 26(2)(d), the Regulatory Authority may—(a) suspend the provider approval for a period not more than the prescribed period; or(b) decide not to suspend the provider approval.
28 Suspension without show cause notice
(1) The Regulatory Authority may suspend the provider approval on a ground referred to in section 25 without giving the approved provider a show cause notice under section 26 if the Regulatory Authority is satisfied that there is an immediate risk to the safety, health or wellbeing of a child or children being educated and cared for by an education and care service operated by the provider.(2) The suspension may not be for a period of more than 6 months.
29 Notice and taking effect of suspension
(1) The Regulatory Authority must give the approved provider written notice of the decision to suspend the provider approval.(2) The notice of a decision to suspend must set out the period of suspension and the date on which it takes effect.(3) The decision under section 27 to suspend takes effect at the end of 14 days after the date of the decision, or, if another period is specified by the Regulatory Authority, at the end of that period.(4) The decision under section 28 to suspend takes effect on the giving of the notice.
(1) Subject to this section, if a provider approval is suspended under section 27 or 28 of this Law as applying in any participating jurisdiction, all service approvals held by the provider are also suspended for the same period.(2) A suspension under subsection (1) applies to both education and care services and any associated children’s services.(3) A person whose provider approval is suspended is taken not to be an approved provider for the period of the suspension.(4) A service approval is not suspended under subsection (1) during any period that a person is approved under section 41 to manage or control the education and care service.(5) The Regulatory Authority may consent under Part 3 to the transfer of a service approval that is suspended under section 27 or 28.(6) The suspension of the service approval ceases on the transfer taking effect, unless the conditions imposed by the Regulatory Authority on the consent to the transfer specify a later date.
31 Grounds for cancellation of provider approval
The Regulatory Authority may cancel a provider approval if—(a) the Regulatory Authority is satisfied that the approved provider or a person with management or control of an education and care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education and care service; or(b) the Regulatory Authority is satisfied that the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child or class of children being educated and cared for by an education and care service operated by the approved provider; or(c) the approved provider has been found guilty of an indictable offence or an offence that if committed in this jurisdiction would be an indictable offence; or(d) the approved provider has been found guilty of an offence under this Law as applying in any participating jurisdiction; or(e) the approved provider has breached a condition of the provider approval; or(f) the approved provider has not operated any education and care service for a period of more than 12 months (including any period of suspension).
32 Show cause notice before cancellation
(1) This section applies if the Regulatory Authority is considering the cancellation of a provider approval under section 31.(2) The Regulatory Authority must first give the approved provider a notice (show cause notice) stating—(a) that the Regulatory Authority intends to cancel the provider approval; and(b) the reasons for the proposed cancellation; and(c) that the approved provider may, within 30 days after the notice is given, give the Regulatory Authority a written response to the proposed cancellation.
33 Decision in relation to cancellation
(1) After considering any written response from the approved provider received within the time allowed under section 32(2)(c), the Regulatory Authority—(a) may—(i) cancel the provider approval; or(ii) suspend the provider approval for a period not more than the prescribed period;(iii) decide not to cancel the provider approval; and(b) must give the approved provider written notice of the decision.(2) The decision to cancel the provider approval takes effect at the end of 14 days after the date of the decision or, if another period is specified by the Regulatory Authority, at the end of that period.(3) The notice of a decision to cancel the provider approval must set out the date on which it takes effect.(4) This Law applies to a suspension of a provider approval under this section as if it were a suspension under section 27.
(1) Subject to this section, if a provider approval is cancelled under section 33 of this Law as applying in any participating jurisdiction, all service approvals held by the person who was the approved provider are also cancelled.(2) A cancellation under subsection (1) applies to both education and care services and any associated children’s services.(3) A service approval is not cancelled under subsection (1) if before that cancellation a person is approved under section 41 to manage or control the education and care service.(4) A service approval is cancelled if a person referred to in subsection (3) ceases to manage or control the service.(5) A provider whose provider approval is to be cancelled under section 33 may apply to the Regulatory Authority under Part 3 for consent to transfer a service approval held by the provider.(6) The application for consent to transfer must be made within 14 days after the date of the decision to cancel the provider approval is made.(7) If an application for consent to transfer is made, the service approval is suspended until the Regulatory Authority determines the application.(8) The suspension of the service approval ceases on the transfer taking effect, unless the conditions of the transfer specify a later date.(9) If the Regulatory Authority refuses to consent to the transfer, the service approval is cancelled on the making of the decision to refuse consent.
35 Approved provider to provide information to Regulatory Authority
(1) This section applies if a show cause notice has been given to an approved provider under section 26 or 32.(2) The approved provider, at the request of the Regulatory Authority, must, within 7 days of the request, provide the Regulatory Authority with the contact details of the parents of all children enrolled at each education and care service operated by the approved provider.(3) The Regulatory Authority may use the information provided under subsection (2) solely to notify the parents of children enrolled at an education and care service about the suspension or cancellation.
36 Notice to parents of suspension or cancellation
(1) This section applies if a provider approval has been suspended or cancelled under section 27, 28, 33 or 34.(2) The Regulatory Authority may require the person who is or was the approved provider to give written notice of the suspension or cancellation and its effect to the parents of children enrolled at all or any of the education and care services operated by that person.(3) A person must comply with a requirement made of that person under subsection (2).Penalty:
$3000 in the case of an individual.
$15 000 in any other case.
37 Voluntary suspension of provider approval
(1) An approved provider may apply to the Regulatory Authority for a suspension of the provider approval for a period of not more than 12 months.(2) The application must—(a) be in writing; and(b) include the prescribed information; and(c) include payment of the prescribed fee.(3) The approved provider must, at least 14 days before making an application under this section, notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to make the application.(4) The Regulatory Authority must within 30 days after the application is made decide whether or not to grant the application.(5) The Regulatory Authority must give written notice of its decision (including the period of suspension) to the approved provider.(6) If the Regulatory Authority decides to grant the application, the suspension takes effect on a date agreed between the Regulatory Authority and the approved provider.(7) A suspension under this section remains in force for the period of time specified in the notice.(8) The approved provider may apply to the Regulatory Authority to revoke the suspension before the end of the suspension period.(9) If the Regulatory Authority grants the application to revoke the suspension, the suspension ceases on the date determined by agreement with the approved provider.(10) If a provider approval is suspended under this section, each service approval held by the provider is also suspended for the same period unless—(a) a person is approved under section 41 to manage or control the education and care service to which the approval relates; or(b) the service approval is transferred under Division 3 of Part 3.
38 Surrender of provider approval by approved provider
(1) An approved provider may surrender the provider approval by written notice to the Regulatory Authority.(2) The notice must specify a date on which the surrender is intended to take effect which must be—(a) after the notice is given; and(b) after the end of the period of notice required under subsection (3).(3) The approved provider must notify the parents of children enrolled at the education and care services operated by the approved provider of the intention to surrender the provider approval, at least 14 days before the surrender is intended to take effect.(4) If a provider approval is surrendered, the approval is cancelled on the date specified in the notice.(5) If a provider approval is surrendered, any service approval held by the provider is also taken to be surrendered.Note. If a service approval is surrendered, it is cancelled—see section 86. A cancelled service approval cannot be transferred—see definition of service approval and also Division 3 of Part 3.
Division 5 Approval of executor, representative or guardian as approved provider
(1) This section applies if an approved provider dies.(2) The nominated supervisor or any other person having day to day control of an education and care service of the approved provider must notify the Regulatory Authority of the approved provider’s death within 7 days after that death.(3) The executor of the estate of the approved provider may continue to operate any approved education and care service of the approved provider for the relevant period provided the nominated supervisor or any certified supervisor continues to manage the day to day operation of the service.(4) The executor of the estate of the approved provider may transfer, surrender or apply for suspension of a service approval of the approved provider under this Law during the relevant period as if the executor were the approved provider.(5) The executor of the estate of the approved provider may apply to the Regulatory Authority for a provider approval.(6) The application must be made within 30 days of the death of the approved provider and must—(a) be in writing; and(b) include the prescribed information; and(c) include payment of the prescribed fee.(7) In this section relevant period means—(a) the period of 30 days after the death of the approved provider; or(b) if the approved provider makes an application under subsection (5) within that period, until the application is finally determined under this Law.
40 Incapacity of approved provider
(1) This section applies if an approved provider has become incapacitated.(2) The legal personal representative or guardian of an approved provider may apply to the Regulatory Authority for a provider approval.(3) The application must—(a) be in writing; and(b) include the prescribed information; and(c) include payment of the prescribed fee.
(1) The Regulatory Authority must not grant a provider approval to a person who has made an application under section 39 or 40 unless the Regulatory Authority is satisfied that the person is a fit and proper person to be involved in the provision of an education and care service.(2) Sections 12, 13 and 14 apply to the assessment of a person under subsection (1).(3) Subject to this section, the Regulatory Authority may—(a) grant the provider approval; or(b) grant the provider approval subject to conditions; or(c) refuse to grant the provider approval.(4) An approval under this section—(a) may be granted for a period of not more than 6 months; and(b) may be extended for a further period of not more than 6 months—at the discretion of the Regulatory Authority.(5) The provider approval is granted only in relation to the operation of the approved education and care services of the approved provider for whom the applicant is the executor, legal personal representative or guardian, as the case requires.
Division 6 Exercise of powers by another Regulatory Authority