Child Care Act 2001

Child Care Act 2001

An Act to provide for the regulation of child care services and child care workers and for related purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Child Care Act 2001 .

2.   Commencement

(1)  Part 1 , Division 4 of Part 8 and sections 71 , 72 , 73 , 74 , 75 and 76 commence on the day on which this Act receives the Royal Assent.

(2)  The remaining provisions of this Act commence on a day to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

amend means –

(a) omit matter; and

(b) insert matter; and

(c) omit matter and substitute other matter;

ancillary staff means persons employed by a child care service provider or in respect of a child care service otherwise than as child carers;

Appeals Panel means a Child Care Appeals Panel constituted under section 57 ;

Appeals Panel Register means the Child Care Appeals Panel Register kept under section 61 ;

applicant means a person who has applied for a licence under section 13 ;

approved premises means premises approved by the Secretary, or premises of a class approved by the Secretary, under subsection (2) ;

approved registration body means a person who holds an approved registration body licence;

approved registration body licence means a licence granted under section 16 that authorises one or more of the activities specified in section 10 ;

authorised officer means a person appointed as an authorised officer under section 72 ;

centre-based child care licence means a centre-based child care licence granted under section 16 that authorises the activity specified in section 11 ;

child means a person who has not attained the age of 13 years;

child care has the meaning given by section 4 ;

child care centre means premises, other than a person's primary residence or approved premises or the primary or other residence of the child, at which a child may be provided with child care;

child care service means –

(a) the operation by an approved registration body of any business that involves one or more of the activities authorised by the licence; and

(b) the operation by the holder of a centre-based child care licence of any business that involves the activity authorised by the licence; and

(c) the operation by the holder of a home-based child care licence of any business that involves the activity authorised by the licence; and

(d) the provision of child care by a registered carer;

child care service provider means –

(a) an approved registration body; and

(b) a holder of a centre-based child care licence; and

(c) a holder of a home-based child care licence; and

(d) a registered carer;

child carer, in respect of a child who is being provided with child care, means a person who, for fee or other material benefit, cares for the child –

(a) in that person's primary residence; or

(b) in that person's approved premises; or

(c) in the child's primary or other residence; or

(d) in premises in which child care is provided under a centre-based child care licence;

close relative, in relation to a person, means –

(a) another person who resides with that person; and

(b) another person who is a guardian of that person; and

(c) another person who, in the opinion of the Secretary, may have frequent or extended contact with a child for whom that person is operating or providing, or may operate or provide, a child care service;

director, in relation to a body corporate –

(a) if the body corporate is a corporation within the meaning of the Corporations Act, has the same meaning as in the Corporations Act; and

(b) if the body corporate is not a corporation within the meaning of the Corporations Act, means a person holding a position in the body corporate that is equivalent to or substantially the same as the position of director in a corporation that is a corporation within the meaning of the Corporations Act;

employ means employ for payment or other reward and includes engage the services of, whether as an employee or an independent contractor or otherwise;

extended family has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;

guardian has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;

home-based child care means the provision of child care –

(a) in the child's primary or other residence; or

(b) in the child carer's primary residence; or

(c) in the approved premises of the child carer;

home-based child care licence means a licence granted under section 16 that authorises the activity specified in section 12 ;

licence means –

(a) an approved registration body licence; and

(b) a centre-based child care licence; and

(c) a home-based child care licence;

parent includes a stepmother, stepfather and guardian;

person-in-charge means –

(a) in relation to a child care service operated or provided by an approved registration body, the person who is directly in charge of the day-to-day coordination of the child care service; and

(b) in relation to a child care service operated or provided by the holder of a centre-based child care licence or a home-based child care licence, the person who –

(i) is physically at the centre, residence or other facility or premises where children are provided with child care by that service; and

(ii) is in charge of the day-to-day running and supervision of that service or the centre, residence or other facility or premises –

whether the person referred to in paragraph (a) or (b) is the holder of the licence under which the child care service operates or is provided or an individual employed by that holder;

potential child carer means a person who is desirous of obtaining employment as a child carer;

premises includes –

(a) a vehicle, vessel and other means of transport; and

(b) a part of premises;

registered carer means a person who has been registered as a child carer by an approved registration body;

registration means registration of a person as a child carer by an approved registration body in accordance with the Standards;

regulations means the regulations made and in force under this Act;

responsible person means the individual to whom is assigned by an incorporated or unincorporated body the general responsibility for, and supervision of the operations of, the provision of child care under a licence held by that body;

reviewable decision has the meaning given by section 50 ;

school has the same meaning as in the Education Act 1994 ;

spouse, in relation to a person, includes a person who, although not legally married to that person –

(a) is generally recognised as the de facto husband or wife of that person; or

(b) has a relationship with that person that is of a marital nature;

Standards means the Child Care Standards issued under section 47 , as amended or substituted from time to time;

statutory authority means an incorporated or unincorporated body which is established, constituted or continued by or under an Act or under the royal prerogative, being a body which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister of the Crown or another statutory authority.

(2)  The Secretary –

(a) by written notice to a person who is providing child care, or intends to provide child care, in premises, may approve those premises as providing a home-like environment; or

(b) by notice in the Gazette, may approve a class of premises as providing a home-like environment.

4.   Child care defined

(1)  Child care is the provision, for fee or other material benefit, of care to a child by a person other than –

(a) the child's parent; or

(b) a member of the child's extended family.

(2)  Child care may be provided in the child's residence, a person's residence, a school, a church, a shop or any other premises.

(3)  Except as provided in subsection (4) , the provision of education at a school, or by home education, within the meaning of the Education Act 1994 , is not the provision of child care.

(4)  If a school or other person provides early childhood education for a child who is less than 5 years of age, the Secretary may determine, by written notice provided to the school or other person –

(a) that the school or other person is providing child care for that child; and

(b) the kind of child care being provided.

5.   Objects of Act

The objects of this Act are –

(a) to provide for a system of licensing child care services; and

(b) to provide for the establishment and maintenance of standards for the provision of –

(i) quality child care; and

(ii) child care that is a safe, nurturing and educational experience; and

(iii) child care programs that promote the emotional, intellectual, social and physical development of children; and

(c) to support families by enabling the development of a range of child care services responsive to different needs and appropriate to different stages of child rearing; and

(d) to encourage and support the planning and delivery of culturally appropriate child care in a multicultural society; and

(e) to support the development of a cohesive and integrated child care sector in the community.

6.   Interests of children paramount

The interests of children are to be regarded as the paramount consideration in the interpretation, enforcement and administration of this Act, the regulations and the Standards.

7.   Exemption from operation of Act, &c.

(1)  The Secretary may –

(a) by notice published in the Gazette and 3 daily newspapers published and circulating in the State, determine that a class of persons is exempt from the operation of this Act or a provision of this Act, the regulations or the Standards; and

(b) by notice provided to a person, determine that the person is exempt from the operation of this Act or a provision of this Act, the regulations or the Standards.

(2)  An exemption under subsection (1)  –

(a) may be limited to a class or kind of child care or child care service specified in it or not so limited; and

(b) may be for an indefinite period or for a time specified in it; and

(c) is subject to the conditions specified in it.

(3)  An exemption under subsection (1) may specify the conditions to which it is subject –

(a) in the case of an exemption referred to in subsection (1)(a) or (b)  –

(i) by stating the conditions in the exemption; or

(ii) by reference to the Standards; or

(b) in the case of an exemption referred to in subsection (1)(a) , by attaching the conditions to the exemption.

(4)  At any time, the Secretary may revoke or amend an exemption under subsection (1) (including the conditions to which it is subject).

PART 2 - Child Care to be Licensed

8.   Child care to be licensed

A person must not operate or provide child care or a child care service except as authorised by a licence or registration.

Penalty:  Fine not exceeding 100 penalty units.

PART 3 - Licences

Division 1 - Types of licences

9.   Types of licences

The following licences may be granted under section 16 :

(a) approved registration body licence;

(b) centre-based child care licence;

(c) home-based child care licence.

10.   Authority of approved registration body licence

(1)  An approved registration body licence authorises the person specified in it to do, in accordance with this Act, the regulations, the Standards, the licence and any conditions specified in the licence, one or more of the following, as specified in the licence:

(a) to arrange, organise, coordinate and monitor the provision of child care by another person in the primary residence of that other person or the approved premises of that other person;

(b) to arrange, organise or coordinate meetings, or provide information that enables meetings, between a potential child carer and the parent of a child in relation to the provision of child care by the potential child carer in his or her primary residence or the approved premises of the potential child carer;

(c) to arrange, organise or coordinate the placement of a potential child carer with a child who needs child care within the primary or other residence of the child;

(d) to arrange, organise or coordinate meetings, or provide information that enables meetings, between a potential child carer and the parent of a child in relation to the provision of child care by the potential child carer in the primary or other residence of the child;

(e) to hold himself, herself or itself out as arranging home-based child care of a kind referred to in this section;

(f) to approve and register persons as child carers;

(g) to do any other thing specified by the Standards.

(2)  The Standards may provide for different classes of approved registration body licences and the types of activities that may be operated, provided or undertaken by the holders of those classes of licences.

11.   Authority of centre-based child care licence

(1)  A centre-based child care licence authorises the person specified in it to operate, in accordance with this Act, the regulations, the Standards, the licence and any conditions specified in the licence, a child care centre in the premises specified in the licence.

(2)  The Standards may provide for different classes of centre-based child care licences and the types of child care centres, child care and other activities that may be operated, provided or undertaken by the holders of those classes of licences.

12.   Authority of home-based child care licence

(1)  A home-based child care licence authorises the person specified in it to operate or provide, in accordance with this Act, the regulations, the Standards, the licence and any conditions specified in the licence, child care in the primary residence of that person or the approved premises of that person.

(2)  The Standards may provide for different classes of home-based child care licences and the types of child care and activities that may be provided or undertaken by the holders of those classes of licences.

Division 2 - Application for licence

13.   Application for licence

(1)  A person may apply to the Secretary for a licence.

(2)  An application –

(a) is to be in a form approved by the Secretary; and

(b) must be accompanied by a notice of disclosure under section 14 ; and

(c) must be accompanied by any prescribed fee; and

(d) is to be accompanied by any documents and information the Secretary requires.

(3)  The Secretary may waive payment of part or all of any fee payable under subsection (2) .

(4)  If a change occurs in the information provided in or in connection with an application (including in any document provided with the application) before the application is determined, the applicant must provide the Secretary with written particulars of the change as soon as is reasonably practicable and in any case not later than 7 days after the change occurs.

14.   Notice of disclosure

(1)  In this section –

former Act means the Child Care Act 1960 (cited as the Child Welfare Act 1960 before 1 July 2000);

other relevant person means –

(a) if the applicant is a body corporate, a director of the applicant; and

(b) if the applicant is an unincorporated association, a member of the committee of management of the applicant; and

(c) if the applicant is an individual, any body of which the applicant is or was a director or member of the committee of management.

(2)  An applicant for a licence must provide to the Secretary together with the application a notice giving particulars of –

(a) any indictable offence of which the applicant or other relevant person has been convicted, whether or not charged on indictment; and

(b) any charge of an offence laid against the applicant or other relevant person where, if convicted, the applicant or other relevant person would be disqualified from holding a licence; and

(c) any refusal in this State or any other place of an application by the applicant or other relevant person for a permission of any type to operate or provide child care or a child care service; and

(d) any suspension or revocation of such a permission; and

(e) any penalty imposed in the last 5 years for a contravention of such a permission; and

(f) any conviction of the applicant or other relevant person for an offence against the former Act, the Child Protection Act 1974 , the Children, Young Persons and Their Families Act 1997 or this Act, the regulations or the Standards; and

(g) any orders made under the former Act or the Children, Young Persons and Their Families Act 1997 in relation to a child of whom the applicant or other relevant person is or was a parent; and

(h) any matters prescribed by the regulations or Standards; and

(i) any other relevant matters required by the Secretary.

15.   Investigation of application

(1)  On receiving an application for a licence, the Secretary may carry out any investigation he or she considers necessary or appropriate to enable the making of a decision as to whether or not to grant the licence.

(2)  In an investigation, the Secretary may be aided by such authorised officers as the Secretary considers appropriate.

(3)  For the purposes of an investigation, the Secretary and any authorised officer aiding the Secretary may do one or more of the following:

(a) enter, remain in and inspect the premises in respect of which application is made;

(b) require any of the following persons to provide information and documents or further information and documents:

(i) the applicant;

(ii) a director or other person concerned in the management of the applicant;

(iii) a person who the applicant intends to employ or use as a responsible person, child carer, person-in-charge or ancillary staff;

(iv) a spouse or close relative of a person referred to in subparagraph (i) , (ii) or (iii) ;

(v) any other person the Secretary or authorised officer considers may have frequent or extended contact with a child who would be provided with child care under the licence if granted;

(c) require a person referred to in paragraph (b) to have his or her photograph, fingerprints and palm prints taken as specified in the requirement for the purposes of the report of the Commissioner of Police made under subsection (6) ;

(d) require a person referred to in paragraph (b) to authorise the Secretary to obtain a report from the Commissioner of Police in respect of convictions and proceedings taken against the person;

(e) take photographs, films and video recordings in those premises;

(f) operate electric and electronic equipment in those premises;

(g) do any other thing the Secretary or authorised officer considers appropriate to facilitate and enable the investigation and the obtaining of all relevant information.

(4)  If, during an investigation, a person referred to in subsection (3)(b) requests that the person conducting the investigation or an authorised officer aiding in the investigation produce identification –

(a) the person or officer must produce his or her certificate of identification; and

(b) the person or officer may not take any action or further action in the investigation in relation to the person making the request until that certificate of identification has been produced.

(5)  The Secretary may refer to the Commissioner of Police –

(a) the names of the persons referred to in subsection (3)(b) ; and

(b) any photographs, fingerprints and palm prints taken from those persons; and

(c) any information and documentation relating to the application.

(6)  The Commissioner of Police must inquire into and report to the Secretary on any matters concerning the application that the Secretary requests.

(7)  [Section 15 Subsection (7) substituted by No. 12 of 2003, s. 4, Applied:16 Apr 2003] Sections 22(1) , 31(1) , 45(1) and 108 of the Youth Justice Act 1997 do not apply to the identification in a report under subsection (6) of a youth, within the meaning of that Act, in respect of any action or proceedings referred to in those sections.

(8)  The Secretary may require an applicant to pay all or part of the cost of an investigation under this section.

Division 3 - Grant, issue and terms of licence

16.   Grant or refusal of licence

(1)  In this section –

(a) a reference to ancillary staff, child carer, person-in-charge or responsible person is a reference to a person that the applicant has nominated in the application to be employed or used in that position if the licence applied for is granted; and

(b) a reference to a child care service is a reference to the child care service which would be authorised by the licence if granted.

(2)  On receipt of an application for a licence, the Secretary may grant a licence or refuse to grant a licence.

(3)  The Secretary must not grant a licence unless the Secretary is satisfied –

(a) that the applicant is a fit and proper person to hold that licence; and

(b) that, if the licence is granted, the licence holder and the child care service operated or provided under the licence are likely to comply with all relevant provisions of the Standards; and

(c) that the applicant has paid any fee payable under section 13 or any cost that the applicant has been required to pay under section 15(8) .

(4)  In determining whether an applicant is a fit and proper person to hold the licence applied for, the Secretary must take into account any matter the Secretary considers relevant including, but not limited to, those of the following matters that are relevant:

(a) whether the applicant is a suitable person to operate or provide the child care service;

(b) whether each director and other person concerned in the management of the applicant and the responsible person are suitable persons to be concerned in the operation or provision of the child care service;

(c) whether any person-in-charge, child carer and ancillary staff are suitable persons to care for or have contact with children who would be provided with the child care service under the licence if granted;

(d) whether any spouse or other close relative of a person referred to in paragraph (a) , (b) or (c) might have contact with children who would be provided with the child care service under the licence if granted and, if so, whether that spouse or other close relative is a suitable person to have contact with such children;

(e) whether any of the persons referred to in paragraph (a) , (b) , (c) or (d) has been charged or found guilty in this State or elsewhere within the period of 10 years immediately preceding the lodgment of the application of an offence punishable by a period of imprisonment;

(f) whether any person referred to in paragraph (a) , (b) , (c) or (d) has been found guilty of an offence against this Act, the regulations or the Standards, any previous corresponding Act or law or any enactment or law of another State or a Territory that corresponds to this Act, the regulations or the Standards;

(g) all reports provided by the Commissioner of Police under section 15(6) ;

(h) whether any person referred to in paragraph (a) or (b) is, or previously has been, concerned in the operation, provision or management of a child care service, or in the provision of child care, in Tasmania or elsewhere and, if so, the quality and standard of that child care service or child care;

(i) the result of any assessment undertaken by any person referred to in paragraph (a) , (b) or (c) in compliance with a requirement of the Standards or otherwise undertaken;

(j) whether the persons referred to in paragraph (a) , (b) , (c) or (d) are of good repute having regard to character, honesty and integrity;

(k) the qualifications and experience of the persons referred to in paragraph (a) , (b) or (c) ;

(l) the knowledge of the persons referred to in paragraph (a) , (b) or (c) of this Act, the regulations and the relevant Standards;

(m) any other matter prescribed by the regulations or Standards.

(5)  In determining whether any person, other than the applicant, is a fit and proper person or a suitable person for the purposes of this section, the Secretary must apply subsection (4) , with necessary modification and adaptation, as if the person concerned were the applicant.

(6)  If the Standards provide for different classes of a particular type of licence and the Secretary grants a licence of that type, the Secretary must determine which class the licence is to be and endorse that class on the licence.

(7)  If the Secretary grants a licence, the Secretary may specify in the licence the premises, or the class of premises, in which the holder of the licence may or may not operate or provide the child care service.

17.   Issue of licence or notice of refusal

(1)  On granting a licence and on receipt of payment of any prescribed licence fee, the Secretary must issue the appropriate licence to the applicant for the licence.

(2)  On refusing to grant a licence, the Secretary must provide to the unsuccessful applicant for the licence written notice of that refusal.

(3)  Within 14 days after receiving the written request of an unsuccessful applicant for a licence for the reasons for which the Secretary refused to grant the licence, the Secretary must provide to the applicant written notice of those reasons.

18.   Licence subject to conditions

(1)  When granting a licence, the Secretary may specify in the licence conditions to which the licence is subject.

(2)  A licence is subject to –

(a) the conditions specified in it; and

(b) all relevant conditions specified in the Standards.

(3)  Without limiting the conditions that may be specified by the Secretary under subsection (1) , those conditions may include conditions relating to any one or more of the following matters:

(a) the safety and wellbeing of children provided with child care under the licence;

(b) the provision of child care and the quality of child care provided under the licence;

(c) the size, layout, facilities, equipment and safety features of the premises in which the child care service is operated or provided under the licence and their compliance with specified standards or criteria;

(d) who may or may not be allowed entry to those premises or specified parts of those premises;

(e) the qualifications and experience of persons caring for children under the licence or otherwise employed in relation to the operation or provision of the child care service under the licence;

(f) the times and days when the child care service may be operated or provided and child care may be provided;

(g) the minimum number of child carers and other persons employed in relation to the operation or provision of the child care service under the licence who must be in attendance during the operation or provision of that child care service;

(h) the ages of children in respect of whom a child care service may be operated or provided or child care may be provided;

(i) the number of children who may be cared for under the licence at any, or any specified, time or in any specified situation;

(j) the monitoring of the operation or provision of the child care service under the licence;

(k) the administration and management of the child care service operated or provided under the licence;

(l) the keeping of records and the provision of reports and information;

(m) the insurance cover to be taken out in respect of the child care service and the provision of child care.

(4)  Conditions are specified in a licence by being set out in the licence or in an attachment to the licence.

(5)  Conditions specified in a licence form part of the licence.

19.   When licence takes effect

(1)  A licence takes effect on the day it is granted or on a later day determined by the Secretary and specified in the licence.

(2)  If a licence specifies that it is to take effect on a day other than the day it is granted, the day on which the licence takes effect may be specified by reference to –

(a) a date; or

(b) the occurrence of a specified event; or

(c) the fulfilment of a specified condition; or

(d) the issue of a certificate as to the compliance of the size, layout, facilities and safety features of the premises in which the child care service is to be operated or provided; or

(e) any other matter the Secretary considers appropriate.

20.   Period of licence

Unless sooner cancelled or surrendered, a licence has effect for the period not exceeding 2 years commencing on the day on which the licence takes effect.

21.   Licence not transferable

A licence is not transferable to any other person.

22.   Amendment of licence

(1)  The holder of a licence may request the Secretary to amend the licence.

(2)  A request –

(a) is to be in writing; and

(b) must be accompanied by any prescribed fee; and

(c) is to be accompanied by any documents and information the Secretary requires.

(3)  At the Secretary's discretion or on the request of the holder of a licence, the Secretary by notice provided to the holder of a licence may amend the licence.

23.   Renewal of licence

(1)  Not less than 90 days before the expiration of a licence, the holder of the licence may apply to the Secretary for the renewal of the licence.

(2)  The Secretary, at his or her discretion, may accept an application for the renewal of a licence lodged less than 90 days before the expiration of the licence.

(3)  An application for renewal must be –

(a) in a form approved by the Secretary; and

(b) accompanied by any prescribed application fee and, in the case of an application accepted under subsection (2) , any further prescribed late fee; and

(c) accompanied by any documents and information the Secretary requires.

(4)  The Secretary may waive payment of part or all of a fee payable under subsection (3) .

(5)  Section 13(2) , (3) and (4) and sections 14 , 15 , 16 , 17 and 18 apply to an application for, and the grant and issue of, the renewal of a licence in the same manner as they apply to an application for and the grant and issue of a licence.

(6)  If an application for renewal of a licence is made under this section, the current licence continues in force until it is renewed or its renewal is refused.

(7)  The renewal of a licence takes effect from the day on which the licence was due to expire.

(8)  The refusal to renew a licence takes effect on the day specified in the refusal.

24.   Replacement licence

The Secretary may issue a replacement for a licence –

(a) if satisfied that the licence has been lost, destroyed or badly defaced; and

(b) on payment of any prescribed fee.

Division 4 - Disciplinary action

25.   Disciplinary action

(1)  In this section,

disciplinary action means any one or more of the following:

(a) the issuing of a letter of censure;

(b) the imposition of a fine not exceeding 20 penalty units;

(c) the amendment of a licence;

(d) the suspension of a licence;

(e) the cancellation of a licence.

(2)  Subject to this section, the Secretary may take disciplinary action if satisfied –

(a) that the holder of a licence, as the holder of the licence or as an applicant for the licence, has contravened this Act, the regulations, the Standards or a condition to which the licence is subject; or

(b) that the holder of a licence is no longer a fit and proper person to hold the licence, having regard to the matters specified in section 16(4) ; or

(c) of any other matter prescribed by the regulations or Standards for the purposes of this section.

(3)  The Secretary may not take disciplinary action, other than the issue of a letter of censure, without first allowing the holder of the licence an opportunity to make submissions in relation to the matter and considering any submissions so made.

(4)  A letter of censure may direct the holder of the licence to take the action specified in the letter for the purposes of rectifying any matter giving rise to the letter of censure and may direct that the action be taken within a period specified in the letter.

(5)  Without limiting the actions that a letter of censure may direct the holder of a licence to take, the letter of censure may direct a holder of a licence who is an approved registration body to cancel or suspend the registration of a registered carer or to amend that registration (including the conditions to which that registration is subject).

(6)  The holder of a licence must comply with a direction given in a letter of censure within the time specified in the letter of censure.

(7)  On making a determination under subsection (2) , the Secretary must notify the holder of the licence in writing as to whether disciplinary action is being taken and, if so, what disciplinary action is being taken.

(8)  The cancellation, suspension or amendment of a licence, or the amendment of the conditions specified in, or attached to, a licence, takes effect on the day the holder of the licence receives the notice given under subsection (7) or on a later day specified in that notice.

(9)  The Secretary may at any time terminate or reduce a period of suspension.

(10)  A fine imposed under this section may be recovered as a debt due to the Crown.

Division 5 - End of licence

26.   When licence ceases to have effect

(1)  A licence ceases to have effect –

(a) at the end of the period for which it has effect under section 20 ; or

(b) when it is surrendered with the agreement of the Secretary; or

(c) if it is cancelled, on the day specified in the notice of cancellation provided to the holder of the licence under section 25(7) .

(2)  If a licence is suspended, the licence has no effect during the period of suspension.

27.   Surrender of licence

(1)  The holder of a licence may surrender the licence by written notice provided to the Secretary.

(2)  The surrender of a licence takes effect on a day, not less than 4 weeks after the notice is provided to the Secretary, determined by the Secretary.

28.   Continuation of child care after end of licence

(1)  If –

(a) the holder of a licence dies, absconds or goes into liquidation; or

(b) a licence is cancelled or suspended; or

(c) the Secretary considers that circumstances warrant it –

the Secretary may continue the child care service, or authorise another person to continue the child care service, for the purposes and period determined by the Secretary.

(2)  The licence referred to in subsection (1) and the conditions to which it is subject, as amended by the Secretary, apply in respect of the continuation of a child care service under that subsection.

(3)  If the Secretary under subsection (1) determines that a child care service is to be continued, the Secretary may –

(a) determine the purpose and period of the continuation; and

(b) amend the licence (including the conditions specified in or attached to it); and

(c) determine how the profits from the operation or provision of the child care service earned during the period of continuation are to be disbursed; and

(d) determine the amount –

(i) that a person authorised to continue the child care service may receive as remuneration in respect of operating or providing the child care service; or

(ii) that the Crown may receive in respect of operating or providing the child care service; and

(e) make provision in respect of any other matter the Secretary considers appropriate.

PART 4 - Duties and Offences

29.   Safe and suitable child care

(1)  The holder of a licence, responsible person, person-in-charge and person employed by the holder of a licence to care for a child must ensure that, at all times during which a child is provided with child care under the licence –

(a) the child is provided with a safe environment and proper and appropriate care and supervision; and

(b) every reasonable precaution is taken to protect the child from a hazard likely to cause injury.

Penalty:  Fine not exceeding –

(a) 50 penalty units in the case of a first offence; and

(b) 100 penalty units in the case of a second or subsequent offence.

(2)  A registered carer must ensure that, at all times during which a child is provided with child care under his or her registration –

(a) the child is provided with a safe environment and proper and appropriate care and supervision; and

(b) every reasonable precaution is taken to protect the child from a hazard likely to cause injury.

Penalty:  Fine not exceeding –

(a) 20 penalty units in the case of a first offence; and

(b) 50 penalty units in the case of a second or subsequent offence.

(3)  The Standards may specify –

(a) the measures, practices and procedures that a holder of a licence, responsible person, person-in-charge, person employed by the holder of a licence to care for a child or registered carer must take, follow or use to ensure that –

(i) a child who is provided with child care under a licence or the registration is provided with a safe environment and proper and appropriate care and supervision; and

(ii) every reasonable precaution is taken to protect the child from a hazard likely to cause injury; and

(b) that compliance with any particular or all relevant provisions of the Standards is sufficient to ensure compliance with subsection (1) or (2) .

30.   Insurance

The holder of a licence must take out and maintain the insurance cover in relation to the child care service as required by the regulations, the Standards or the conditions to which the licence is subject.

Penalty:  Fine not exceeding 20 penalty units.

31.   Limited access to child care premises

The holder of a licence, a responsible person, a person-in-charge and a registered carer must not allow access to the premises at which a child is being provided with child care under a licence or registration to any person that the holder, responsible person, person-in-charge or registered carer suspects is not at the premises for a legitimate reason.

Penalty:  Fine not exceeding 5 penalty units.

32.   Keeping and availability of Act, regulations and Standards

(1)  Each holder of a licence and registered carer must ensure that a copy of this Act and all relevant provisions of the regulations and the Standards are held at the premises at which child care is provided under the licence or registration.

Penalty:  Fine not exceeding 2 penalty units.

(2)  Each holder of a licence, responsible person, person-in-charge and registered carer must ensure that the copy of this Act and all relevant provisions of the regulations and the Standards are made available, upon request, for inspection by –

(a) any parent of a child being provided with child care under the licence or registration; and

(b) any person employed by the holder of the licence to care for such a child or who may have contact with such a child.

33.   Display of licence

The holder of a licence must ensure that the current licence is displayed in a prominent position for public view at the address where child care is provided or at the address of the child care service.

Penalty:  Fine not exceeding 2 penalty units.

34.   Advertising not to be false or misleading

The holder of a licence must ensure that an advertisement in relation to the child care, or child care service, operated or provided by the holder –

(a) is not false or misleading in a material particular; and

(b) does not advertise any matter or activity that is not permitted under this Act, the regulations, the Standards, the conditions to which the licence is subject or another Act.

Penalty:  Fine not exceeding 10 penalty units.

35.   Compliance with licence and registration conditions

(1)  The holder of a licence must comply with any condition to which the licence is subject.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A registered carer must comply with any condition to which the registration is subject.

Penalty:  Fine not exceeding 20 penalty units.

36.   Providing false information, &c.

A person must not, without reasonable excuse, knowingly provide any false or misleading information, document or answer to a question under this Act, the regulations or the Standards.

Penalty:  Fine not exceeding 10 penalty units.

37.   Unauthorised alteration of licence

A person must not alter or deface a current licence without the authorisation of the Secretary.

Penalty:  Fine not exceeding 10 penalty units.

PART 5 - Inspections

38.   Inspections of child care and child care services

(1)  For the purpose of determining whether or not a person is contravening this Act, the regulations, the Standards or the conditions to which a licence or registration is subject, an authorised officer may at any time –

(a) enter, remain in and inspect the premises –

(i) in or from which child care or a child care service is operated or provided or the officer has reasonable grounds for believing is being operated or provided; or

(ii) in which any document relating to the provision of child care or the operation or provision of a child care service is kept; and

(b) examine, seize, make copies of or take extracts from any document in those premises; and

(c) take photographs, films and video recordings in those premises; and

(d) seize any thing that appears to indicate that an offence under this Act, the regulations or the Standards has been or is being committed; and

(e) operate electric and electronic equipment in those premises.

(2)  For the purposes of subsection (1)  –

(a) an authorised officer may be assisted by such police officers or other persons as the authorised officer considers appropriate; and

(b) a police officer or other person assisting the authorised officer has the same powers under subsection (3) as the authorised officer; and

(c) subsections (4) and (5) and section 39 apply as if the police officer or other person assisting the authorised officer were the authorised officer.

(3)  In any premises lawfully entered under subsection (1) , an authorised officer may require any person in those premises to –

(a) provide the authorised officer with his or her name and address; and

(b) answer any question that the authorised officer considers relevant; and

(c) provide as directed a document, or a copy of a document, that is in the person's possession or control and that the authorised officer considers relevant; and

(d) otherwise provide information that the person has access to and that the authorised officer considers relevant; and

(e) provide reasonable assistance in relation to the exercise of the authorised officer's powers.

(4)  Subsection (3) does not apply to a person who is the parent of a child being provided with child care under a licence or registration unless that person is also –

(a) the holder of the licence or the registered carer; or

(b) a director or other person concerned in the management of the holder of the licence; or

(c) a responsible person, person-in-charge, child carer or ancillary staff in respect of the licence.

(5)  A person must not, without reasonable excuse, fail or refuse to comply with a requirement made under subsection (3) .

Penalty:  Fine not exceeding 10 penalty units.

(6)  On convicting a person of an offence under subsection (5) , in addition to imposing a penalty the court may order that person to provide the answer, other information or document in respect of which the offence was committed.

39.   Access to and possession of seized document or thing

(1)  If an authorised officer has seized or otherwise taken possession of a document or other thing under section 38  –

(a) the Secretary has possession of the document or thing; and

(b) the Secretary may retain the document or thing for so long as is necessary for the purposes of this Act, the regulations or the Standards; and

(c) the authorised officer must provide written notice of the seizure or taking of possession as soon as is reasonably practicable; and

(d) on the request of a person who would be entitled to possession of the document if it were not in the possession of the Secretary, the Secretary must provide that person with a copy of the document certified by the Secretary to be a true copy.

(2)  A copy of a document certified by the Secretary to be a true copy is to be received in all courts and elsewhere as if it were the original document.

40.   Authorised officer may give directions

(1)  As the result of or during an inspection under section 38 , an authorised officer may give written directions to a holder of a licence, responsible person, person-in-charge or registered carer.

(2)  Without limiting the directions that may be given under subsection (1) , those directions may include directions requiring a holder of a licence, responsible person, person-in-charge or registered carer to take any action or measures to ensure that the holder, responsible person, person-in-charge or carer is not in, or does not continue to be in, contravention of this Act, the regulations, the Standards or the conditions to which the licence or registration is subject.

(3)  A person given a direction under subsection (1) must comply with the direction.

Penalty:  Fine not exceeding 10 penalty units.

(4)  On convicting a person of an offence under subsection (3) , in addition to imposing a penalty the court may order that person to comply with the direction in respect of which the offence was committed.

41.   Authorised officer to show identification

If, during an inspection under section 38 , a person to whom section 38(3) applies requests that the authorised officer produce identification –

(a) the officer must produce his or her certificate of identification as an authorised officer to that person; and

(b) the officer may not take any action or further action under this Act in relation to the inspection until he or she has so produced that certificate of identification.

42.   Warrant to enter premises

(1)  If a person refuses to allow an authorised officer to enter, remain in and inspect premises that the authorised officer, on reasonable grounds, believes –

(a) are being or may be used for the provision of child care or the operation or provision of a child care service; or

(b) are premises in which any documents relating to the provision of child care or the operation or provision of a child care service are or may be kept –

the authorised officer may apply to a justice of the peace for a warrant.

(2)  On receipt of an application under subsection (1) , a justice of the peace may issue a warrant if satisfied, by information on oath, that a person has refused to allow an authorised officer to enter, remain in and inspect premises of a kind referred to in that subsection and that the authorised officer has reasonable grounds for the belief referred to in that subsection.

(3)  A warrant authorises an authorised officer and such police officers and other assistants as the authorised officer considers appropriate, using such force as is reasonable –

(a) to enter, remain in and inspect the premises specified in the warrant; and

(b) to perform and exercise any functions and powers the authorised officer and assistants may perform and exercise in, or in respect of, any premises lawfully entered under section 38 .

(4)  An application for a warrant –

(a) may be in a written form approved and provided by the Secretary; or

(b) if the justice of the peace is satisfied that the circumstances are urgent or that the delay resulting from a written application would frustrate the effective execution of the warrant, may be made by telephone, telex, facsimile, e-mail or other electronic means.

(5)  Section 15 of the Search Warrants Act 1997 applies, with necessary modifications and adaptations, in respect of an application under subsection (4) and a warrant issued as a result of such an application.

(6)  A person must not refuse to allow an authorised officer or any police officer or other person assisting the authorised officer to enter, remain in and inspect premises when authorised by a warrant under this section.

Penalty:  Fine not exceeding 10 penalty units.

43.   Offences in relation to authorised officer

A person must not, without reasonable excuse –

(a) resist, impede, obstruct or assault –

(i) an authorised officer who is performing or exercising any function or power under this Act, the regulations, the Standards or the conditions to which a licence is subject; or

(ii) a person assisting that officer; or

(b) use threatening, abusive or insulting language to such an officer or assistant; or

(c) prevent or attempt to prevent a person from answering questions, giving information or providing documents to such an officer or assistant; or

(d) impersonate an authorised officer.

Penalty:  Fine not exceeding 10 penalty units.

PART 6 - Emergency Powers

44.   Emergency removal of children

(1)  In this section,

prescribed officer means an authorised officer or person approved by an approved registration body for the purposes of this section.

(2)  If a prescribed officer considers, on reasonable grounds, that a child being provided with a child care service –

(a) is not in a safe environment; or

(b) is not being properly and appropriately cared for and supervised; or

(c) is in or may be exposed to a situation where every reasonable precaution is not taken to protect the child from a hazard likely to cause injury –

and that the child is neglected or has suffered injury or death, or is at risk of being neglected or suffering injury or death, the prescribed officer may remove the child from the premises at which he or she is being provided with child care.

(3)  In the exercise of a power under subsection (2)  –

(a) a prescribed officer may enter the premises in which the child is being provided with child care, without warrant; and

(b) a prescribed officer may use reasonable force as necessary; and

(c) a prescribed officer may be assisted by such police officers and other persons as the prescribed officer considers appropriate; and

(d) a police officer or other person assisting the prescribed officer has the same powers as the prescribed officer.

(4)  If a child is removed from premises under subsection (2)  –

(a) the prescribed officer must ensure that the child's parent is notified of the situation and the child's whereabouts as soon as practicable; and

(b) the child is in the custody of the Secretary or the person-in-charge of the approved registration body, as the case requires, until the child's parent removes the child from that custody.

(5)  The Standards may make further provision in respect of the exercise of powers under this section.

(6)  A prescribed officer who is a person approved by an approved registration body for the purposes of this section may only exercise powers under this section in relation to a child being provided with child care by a registered carer.

45.   Emergency suspension of licence or registration

(1)  If the Secretary or an approved registration body considers, on reasonable grounds, that a child being provided with a child care service –

(a) is not in a safe environment; or

(b) is not being properly and appropriately cared for and supervised; or

(c) is in or may be exposed to a situation where every reasonable precaution is not taken to protect the child from a hazard likely to cause injury –

and it is appropriate to do so to prevent that child or another child being put at risk of being neglected or suffering injury or death, the Secretary or approved registration body may suspend the licence or registration of that child care service for a period not exceeding 7 days.

(2)  The Secretary or an approved registration body may further suspend a licence or registration suspended under subsection (1) or this subsection if the Secretary or approved registration body considers it appropriate to do so to prevent a child being put at risk of being neglected or suffering injury or death.

(3)  A suspension of a licence or registration takes effect on written notice of it being provided to the holder of the licence or the registered carer.

(4)  If the Secretary or an approved registration body suspends a licence or registration under this section, the Secretary or approved registration body may revoke the suspension at any time.

(5)  If the Secretary or an approved registration body suspends a licence or registration under this section, the Secretary or approved registration body may proceed to take disciplinary action under Division 4 of Part 3 or the Standards.

(6)  An approved registration body may only exercise powers under this section in relation to a child care service that is the provision of child care by a registered carer.

46.   Interim orders

(1)  If a person is charged with an offence against this Act, the regulations or the Standards, the Secretary may apply to a magistrate for an order preventing the person from providing child care or otherwise caring for or looking after a child who is not the child of that person.

(2)  An application –

(a) is to be in a form approved by the Chief Magistrate; and

(b) may be served on the person charged with the offence in the same manner as a summons under the Justices Act 1959  –

and service of the application may be proved in the same manner as the service of such a summons may be proved.

PART 7 - Child Care Standards

47.   Child Care Standards

(1)  The Secretary must issue the Child Care Standards.

(2)  The Standards may provide for any matter relating or incidental to the provision of child care and the operation or provision of child care services.

(3)  Without limiting subsection (2) , the Standards may make provision with respect to the following matters:

(a) the regulation of –

(i) child care and child care services; and

(ii) the persons operating or providing child care and child care services; and

(iii) persons employed by the operators or providers of child care and child care services;

(b) the internal administration of operators or providers of child care and child care services;

(c) the physical specifications of premises at which child care or a child care service is operated or provided;

(d) all matters connected with the safety and wellbeing of children being provided with child care or a child care service;

(e) the assessment of the operators or providers of child care or child care services and persons employed by the operators or providers or employed in the operation or provision of child care or child care services, the provision of assessments and the recognition of assessments and qualifications gained by such persons;

(f) classes of licences;

(g) all matters relating to –

(i) the approval and registration of persons as child carers by an approved registration body; and

(ii) the arrangement and placing of children with child carers by an approved registration body; and

(iii) the taking of disciplinary action by an approved registration body against a child carer;

(h) the taking of disciplinary action by the Secretary against the operators or providers of a child care service;

(i) exemptions under section 7 ;

(j) dispute resolution;

(k) principles and matters on which the Secretary or another person is to base any direction, decision or determination under this Act, the regulations or the Standards;

(l) the review of any direction, decision or determination made under this Act, the regulations or the Standards;

(m) amendment, revocation and substitution of the Standards;

(n) administration of the Standards;

(o) enforcement of the Standards;

(p) any other matter for which the Secretary considers it appropriate for the Standards to provide.

(4)  The Standards may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the Standards.

(5)  The Standards may –

(a) provide that a contravention of any of the Standards is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(6)  The Standards may authorise any matter to be from time to time determined, applied or regulated by the Secretary or another person specified in the Standards.

(7)  The Standards may adopt either wholly or partly and with or without modification, and either specifically or by reference, any enactment, any regulations or other instrument made under an enactment or any other document wherever made whether the enactment, regulations, instrument or document was made or published before or after the commencement of this section.

(8)  A reference in subsection (7) to an enactment, regulations or another instrument made under an enactment or any other document includes a reference to an amendment to the enactment, regulations or other instrument made under an enactment or the other document, whether the amendment is published or issued before or after the commencement of this section.

(9)  [Section 47 Subsection (9) substituted by No. 12 of 2003, s. 5, Applied:16 Apr 2003] If the Standards require the Commissioner of Police to provide a report in respect of any person, sections 22(1) , 31(1) , 45(1) and 108 of the Youth Justice Act 1997 do not apply to the identification in that report of a youth, within the meaning of that Act, in respect of any action or proceedings referred to in those sections.

(10)  The Standards must be consistent with this Act, the regulations and the public interest.

(11)  If there is an inconsistency between the Standards and this Act or the regulations, the Standards are invalid to the extent of the inconsistency.

(12)  The Standards –

(a) are to be treated for all purposes as a law of the State; and

(b) are not a statutory rule for the purposes of the Rules Publication Act 1953 .

48.   Review, amendment and replacement of Standards

(1)  The Secretary may review the Standards –

(a) at his or her discretion; or

(b) on the request of any person.

(2)  The Secretary must review the Standards when required to do so by the Minister.

(3)  The Secretary may amend or revoke and substitute the Standards as specified in, and in accordance with, the Standards.

49.   Availability of Standards

(1)  The Secretary must provide a person with a copy of the Standards or part of the Standards if the person –

(a) requests it; and

(b) pays to the Secretary any reasonable fee determined by the Secretary.

(2)  The Secretary, free of charge, must allow a person to peruse the Standards at the appropriate office at any time within the hours during which that office is normally open.

PART 8 - Review of Decisions

Division 1 - Reviewable decisions

50.   Reviewable decisions

(1)  The following decisions are reviewable decisions:

(a) the refusal to grant or renew a licence;

(b) the cancellation of a licence;

(c) the suspension of a licence;

(d) the imposition under section 25 of a fine exceeding 5 penalty units;

(e) a letter of censure that requires the holder of a licence to –

(i) dismiss or suspend the employment of an employee; or

(ii) suspend or cancel the registration of a registered carer;

(f) a decision under this Act, the regulations or the Standards prescribed by the regulations to be a reviewable decision.

(2)  A person aggrieved by a reviewable decision may apply to the Appeals Panel for a review of the decision.

Division 2 - Review procedure and determination

51.   Commencing review

(1)  An application for a review of a reviewable decision –

(a) is to be made to the Secretary in writing within 14 days after the person aggrieved by the decision receives written notice of the decision or such longer time as the Secretary allows; and

(b) must specify the grounds on which the application is made.

(2)  The person who applied for a review of a reviewable decision may at any time withdraw the application by notice in writing provided to the Secretary.

52.   Effect of commencing review

(1)  If a person has applied for a review of a reviewable decision, that decision does not have effect unless and until –

(a) it is confirmed by the determination of the review; or

(b) the person withdraws the application.

(2)  At any time after the making of an application for a review of a reviewable decision that cancels or suspends a licence, the Appeals Panel may order that the licence is suspended until the review is determined if it considers that it is prudent to do so to ensure children who are being provided with child care under the licence are not at risk of physical, emotional or psychological harm.

(3)  A licence that has been suspended under subsection (2) is of no effect during the period of the suspension.

53.   Nature of review

A review of a reviewable decision is to be conducted in the nature of a rehearing and is not limited to matters raised before or by the Secretary when making the reviewable decision.

54.   Procedures on review

(1)  The Appeals Panel is not bound by the rules of evidence but may inform itself as it considers appropriate.

(2)  The Appeals Panel must –

(a) give the applicant for the review of the reviewable decision and the Secretary reasonable opportunity to give evidence and make representations; and

(b) conduct its proceedings in public unless the Appeals Panel considers that the public interest, the interests of justice or the interests of children who are or were being provided with child care under the licence in respect of which the review of the reviewable decision is being conducted require otherwise; and

(c) proceed with as little formality and technicality and with as much expedition as the proper consideration of the matter before it permits.

(3)  A party to the review of the reviewable decision may appear before the Appeals Panel personally or by representative.

(4)  The Appeals Panel when conducting a review of a reviewable decision may –

(a) take into consideration, and act on the basis of, oral or written evidence or representations; and

(b) require the production of papers and documents; and

(c) appoint one of its members to make any inquiry or inspection that appears to it necessary or expedient for the purposes of the review; and

(d) use the knowledge of its own members, however gained.

(5)  On the hearing of a review of the reviewable decision, the Appeals Panel may –

(a) adjourn the hearing at any time; and

(b) request the attendance of witnesses and ask them questions; and

(c) proceed with the hearing in the absence of a party if satisfied that the party has been given reasonable notice of the date, time and place of the hearing.

(6)  Subject to this section, the Appeals Panel may regulate its own procedure.

55.   Determination of review

(1)  The Appeals Panel may determine the review of a reviewable decision by –

(a) confirming the decision of the Secretary and specifying the day on which that decision takes effect, not being a day earlier than the day on which the determination is made; or

(b) quashing the decision of the Secretary; or

(c) quashing the decision of the Secretary and substituting its decision in place of the Secretary's decision.

(2)  If the Appeals Panel determines to substitute its decision for that of the Secretary, it may make any decision that the Secretary could have made.

(3)  If the Appeals Panel determines to substitute its decision for that of the Secretary and its decision imposes a fine under section 25 , the amount of the fine may be recovered as a debt due to the Crown.

(4)  The Appeals Panel must notify the parties to the review of a reviewable decision, in writing, of its determination of the review.

(5)  The Secretary must give effect to the Appeals Panel's determination of the review of a reviewable decision.

(6)  A person aggrieved by the determination of the Appeals Panel of the review of a reviewable decision may apply to the Magistrates Court (Administrative Appeals Division) for a review of the determination.

(7)  If a person has applied for a review of a determination under subsection (6) , that determination does not have effect unless and until –

(a) it is confirmed by the determination of the review by the Magistrates Court (Administrative Appeals Division); or

(b) the person withdraws the application –

but a suspension under section 52(2) continues until the determination of the review by the Magistrates Court (Administrative Appeals Division).

56.   Register of review determinations

The Secretary must keep a register of proceedings in respect of, and determinations of, reviews of reviewable decisions.

Division 3 - Child Care Appeals Panel

57.   Child Care Appeals Panel

(1)  On receipt of an application for a review of a reviewable decision, the Secretary must constitute a Child Care Appeals Panel for the purpose of conducting the review.

(2)  A Child Care Appeals Panel is constituted by 3 members appointed by the Secretary from the Child Care Appeals Panel Register of whom –

(a) one must be a State Service officer or State Service employee employed in the Department; and

(b) one must be –

(i) a State Service officer or State Service employee employed in a State Service Agency other than the Department; or

(ii) a person employed in or for the purposes of a statutory authority other than a State Service Agency; or

(iii) a person employed in or for the purposes of a council –

being a State Service Agency, statutory authority or council that the Secretary considers has functions or powers that are relevant to the matters in respect of which the application for a review of the reviewable decision is made; and

(c) one must be a person providing or concerned with the operation or provision of the class or kind of child care service in respect of which the application for a review of the reviewable decision is made or, if no such person is available, a person operating or providing or concerned with another class or kind of child care service.

(3)  For the purposes of subsection (2)(c) , the person appointed must not be a person who could also be appointed under subsection (2)(a) or (b) .

(4)  The Secretary must appoint one of the members of the Appeals Panel as its chairperson.

(5)  Schedule 1 has effect with respect to the membership and meetings of the Appeals Panel.

58.   Functions and powers of Appeals Panel

(1)  The Appeals Panel has the following functions:

(a) the review and determination of reviewable decisions;

(b) functions imposed by this or any other Act;

(c) functions prescribed by the regulations or the Standards.

(2)  The Appeals Panel has the power to do all things necessary or convenient to perform its functions.

59.   Conflict of interest

(1)  In this section –

family member of a person means –

(a) the spouse of that person or a person who lives with that person as his or her wife or husband without being legally married to that person; and

(b) the child or grandchild of that person; and

(c) the parent or grandparent of that person; and

(d) that person's brother or sister; and

(e) a descendant of that person's brother or sister; and

(f) a close relative of that person; and

(g) the spouse of a person referred to in paragraph (b) , (c) , (d) , (e) or (f) or a person who lives with such a person as his or her wife or husband without being legally married to that person;

prescribed person means –

(a) a member of the Appeals Panel; and

(b) a person selected by the Secretary to be appointed as a member of the Appeals Panel.

(2)  If a prescribed person has a direct or indirect interest (pecuniary or otherwise) in a matter being or about to be considered by the Appeals Panel and the interest could be seen to conflict with the proper performance of the prescribed person as a member, the prescribed person –

(a) must notify the Secretary, in writing, of that interest as soon as practicable after the relevant facts have come to the prescribed person's knowledge; and

(b) must not be present during or take part in any consideration of, or the making of a decision in relation to, the matter unless the Secretary has determined otherwise.

Penalty:  Fine not exceeding 10 penalty units.

(3)  Without limiting what may constitute an interest for the purposes of subsection (2) , the following constitute an interest by the prescribed person in a matter being considered by the Appeals Panel:

(a) the provision of child care to a family member of the prescribed person by a child care service that is the subject of the reviewable decision in respect of which the application for a review is made;

(b) an interest (pecuniary or otherwise) by a family member of the prescribed person in the subject of the reviewable decision in respect of which the application for a review is made.

60.   Staff of Appeals Panel

The Secretary of the Department must arrange for the Appeals Panel to be provided with such facilities and the services of such State Service employees or State Service officers employed in the Department as are necessary to enable the Appeals Panel to perform and exercise its functions and powers.

Division 4 - Child Care Appeals Panel Register

61.   Child Care Appeals Panel Register

(1)  The Secretary must keep a register of persons from whom he or she may appoint Appeals Panels.

(2)  A person may request, in writing, the Secretary to remove the person's name from the Appeals Panel Register at any time.

(3)  The Secretary is to –

(a) keep the Appeals Panel Register current; and

(b) remove from the Appeals Panel Register the name of any person who has been entered in it for a period of 3 years and has not been nominated, or has not made an application, for further entry in the Register at the end of that period; and

(c) remove from the Appeals Panel Register the name of any person who has requested it; and

(d) remove from the Appeals Panel Register the name of any person who the Secretary has become aware is no longer residing in the State or is no longer qualified or suitable to be entered in the Register.

62.   Calling for interested persons

For the purposes of ensuring that a reasonable selection of people is entered in the Appeals Panel Register, the Secretary may –

(a) request organisations or bodies that represent persons employed in or concerned with the provision of child care to nominate persons for entry in the Appeals Panel Register; and

(b) by advertising in 3 daily newspapers published and circulating in the State, request any persons interested in being entered in the Appeals Panel Register to apply to the Secretary; and

(c) request State Service officers and State Service employees employed in State Service Agencies, or persons employed in or for the purposes of statutory authorities, that the Secretary considers have functions or powers that are relevant to the matters in respect of which reviews of reviewable decisions may be made to apply for entry in the Appeals Panel Register; and

(d) request persons employed in or for the purposes of councils to apply for entry in the Appeals Panel Register; and

(e) request, by any means the Secretary considers appropriate, persons employed in or concerned with the operation or provision of a child care service or child care services generally to apply for entry in the Appeals Panel Register; and

(f) allow persons employed in, concerned with or interested in the operation or provision of a child care service or child care services generally to apply for entry in the Appeals Panel Register.

63.   Entering person in Appeals Panel Register

(1)  On receipt of a nomination or an application for the entry of a person in the Appeals Panel Register, the Secretary must inquire into the qualifications and suitability of the nominee or applicant to be so entered.

(2)  If the Secretary considers that the nominee or applicant is qualified and suitable to be entered in the Appeals Panel Register, the Secretary must –

(a) enter the person's name, address and qualifications and any other information the Secretary considers appropriate in the Register; and

(b) notify the person, in writing, that the person has been entered in the Register and that the person will remain in the Register for the period of 3 years.

(3)  Despite subsection (2) , the Secretary is not to enter the name of a person in the Appeals Panel Register unless –

(a) in the case of a person nominated by an organisation or body referred to in section 62(a) , that person has consented to being so entered in the Register; or

(b) in the case of a State Service officer or State Service employee employed in a State Service Agency other than the Department, the Head of the State Service Agency has consented to that officer or employee being so entered in the Register; or

(c) in the case of a person employed in, or for the purposes of, a statutory authority or a council and required by any Act to devote the whole of his or her time to the duties of that employment, the statutory authority or council has consented to that person being so entered in the Register.

(4)  If the Secretary considers that the nominee or applicant is not qualified or not suitable to be entered in the Appeals Panel Register, the Secretary must notify the person, in writing, of that decision and the reasons for the decision.

PART 9 - Miscellaneous

64.   Register of child care services

(1)  The Secretary must keep a register of –

(a) the holders of licences; and

(b) responsible persons, persons-in-charge and persons the Secretary has approved to act in the position of responsible person or person-in-charge.

(2)  Subject to this section, the Secretary must make the register available for inspection by any person during normal business hours.

(3)  The holder of a home-based child care licence may request, in writing, that the Secretary not publish or make available for inspection to any person any entry in the register relating to that holder.

(4)  If the holder of a home-based child care licence has made a request under subsection (3) , the Secretary –

(a) must not publish to or make available for inspection by any person, other than the parent of a child being provided with child care by that holder, any entry in the register relating to that holder; but

(b) on the inquiry of a person as to whether that holder is the holder of a home-based child care licence, may inform that person that the holder does hold such a licence.

65.   Protection of person notifying of contravention of Act, &c.

(1)  A person who believes on reasonable grounds that this Act, the regulations, the Standards or the conditions to which a licence is subject are being, or have been, contravened and notifies the Secretary or an authorised officer of that belief and those grounds is not liable –

(a) to any action or proceedings for unprofessional conduct or a breach of professional ethics in respect of that notification; or

(b) in any legal proceedings in respect of that notification.

(2)  In any legal proceedings, evidence as to the grounds contained in a notification referred to in subsection (1) may be given but evidence that a particular matter is contained in such a notification or evidence that identifies, or is likely to lead to the identification of, the person who made the notification is only admissible in the proceedings if the court grants leave or that person consents in writing.

(3)  A witness in a legal proceeding must not be asked and, if asked, may refuse to answer –

(a) any question to which the answer would or might identify the person who made a notification referred to in subsection (1) ; or

(b) any question as to whether any matter is contained in a notification referred to in subsection (1)  –

unless the court grants leave for the question to be asked or that person has consented to the question being asked.

(4)  A court may only grant leave under subsection (2) or (3) if it is satisfied that –

(a) it is necessary to ensure the safety and wellbeing of a child who is being provided with a child care service; or

(b) the interests of justice require it.

(5)  Except as allowed by subsection (2) or (3) , a person concerned in the administration or enforcement of this Act, the regulations or the Standards who learns the identity of a person who made a notification referred to in subsection (1) must not disclose to a person not so concerned in the administration or enforcement of this Act, the regulations or the Standards –

(a) the identity of the person who made the notification; or

(b) any information likely to lead to the identification of the person who made the notification.

Penalty:  Fine not exceeding 40 penalty units.

(6)  The Freedom of Information Act 1991 does not apply to the identity of a person who made a notification referred to in subsection (1) or any information contained in or relating to such a notification that may lead to the identification of that person.

66.   Registration body may charge for services

Nothing in this Act prevents an approved registration body from determining and requiring the payment of charges and fees in respect of the performance of its functions under this Act and the provision of its services.

67.   General immunity

A person does not incur any personal liability in respect of any act done or omitted in good faith –

(a) in the performance or exercise, or the purported performance or exercise, of any function or power under this Act, the regulations or the Standards; or

(b) in the administration or execution, or the purported administration or execution, of this Act, the regulations or the Standards.

68.   Offences by bodies corporate

(1)  If a body corporate is convicted of an offence against this Act, the regulations or the Standards, the penalty that the court may impose is a fine not exceeding 5 times the maximum amount that, but for this section, the court could impose as a pecuniary penalty for that offence.

(2)  If a body corporate is convicted of an offence against this Act, the regulations or the Standards, any director or other person concerned in the management of the body corporate who knowingly authorised or permitted the contravention that is the subject of the offence is also guilty of that offence and liable to the penalty for that offence.

69.   Offences are summary offences

An offence against this Act, the regulations or the Standards is a summary offence.

70.   Evidentiary matters

(1)  In any proceeding under or in respect of this Act, the regulations or the Standards, a certificate signed by the Secretary or purportedly signed by the Secretary that relates to any one or more of the following matters is evidence of the matters contained in it:

(a) whether at any particular time a person held or did not hold a licence;

(b) the terms of a licence;

(c) the conditions to which a licence was subject at any particular time;

(d) whether or not at a particular time a person was an authorised officer or was assisting an authorised officer in an inspection under section 38 ;

(e) whether or not child care or a child care service was, or the premises in which child care or a child care service was operated or provided were, at any particular time exempt from compliance with a provision of this Act, the regulations or the Standards;

(f) any other matter prescribed in the regulations.

(2)  All courts and persons acting judicially must take judicial notice of –

(a) the official signature of a person who is or has been the Secretary if the signature purports to be attached or appended to the Standards or any certificate or other document under this Act, the regulations or the Standards; and

(b) the fact that the person holds or has held the office of Secretary.

(3)  A court or person acting judicially must –

(a) take judicial notice of the Standards, as amended from time to time; and

(b) admit as evidence a copy of the Standards, as amended from time to time, if the copy is certified as a true copy by the Secretary.

71.   Employees

Subject to and in accordance with the State Service Act 2000 , persons may be appointed for the purposes of this Act.

72.   Appointment of authorised officers

(1)  The Secretary may appoint a State Service officer or State Service employee employed in the Department to be an authorised officer and that officer or employee may hold that office in conjunction with State Service employment.

(2)  The Secretary, with the consent of another Head of a State Service Agency, may appoint a State Service officer or State Service employee employed in that Agency to be an authorised officer and that officer or employee may hold that office in conjunction with State Service employment.

73.   Advisory council

(1)  The Minister may establish any advisory council the Minister considers necessary to advise and assist the Minister in the exercise of powers and the performance of functions under and in respect of this Act.

(2)  The Minister may appoint persons as members of an advisory council on any terms and conditions the Minister considers appropriate.

(3)  A State Service officer or State Service employee appointed as a member of an advisory council may hold that office in conjunction with State Service employment.

74.   Delegation

(1)  The Secretary may delegate any of his or her functions or powers under this Act, the regulations or the Standards, other than this power of delegation.

(2)  The Commissioner of Police may delegate any of his or her functions or powers under this Act, the regulations or the Standards, other than this power of delegation.

(3)  Subsections (1) and (2) do not derogate any right the Secretary or Commissioner of Police otherwise would have to authorise another person to perform a function or exercise a power on his or her behalf.

75.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  The regulations may prescribe the fees payable under this Act, the regulations or the Standards and those fees may be prescribed on an annual or other basis, as a rate of interest or in any other manner.

(3)  Regulations may be made so as to apply differently according to the matters, limitations or restrictions specified in the regulations.

(4)  The regulations may –

(a) provide that a contravention of any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 5 penalty units for each day during which the offence continues.

(5)  The regulations may authorise any matter to be from time to time determined, applied or regulated by any person or body specified in the regulations.

(6)  The regulations may adopt either wholly or partly and with or without modification, and either specifically or by reference, any enactment, any regulations or other instrument made under an enactment or any other document, whether the enactment, the regulations or other instrument made under an enactment or the other document are published or issued before or after the commencement of this section.

(7)  A reference in subsection (6) to an enactment, regulations or other instrument made under an enactment or any other document includes a reference to an amendment to the enactment, the regulations or other instrument made under an enactment or the other document, whether the amendment is published or issued before or after the commencement of this section.

(8)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or the making of the regulations or the Standards.

(9)  A provision referred to in subsection (8) may take effect on and from the day on which this Act commences or a later day.

76.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Education; and

(b) the department responsible to the Minister for Education in relation to the administration of this Act is the Department of Education.

77.   Transitional provisions

(1)  In this section –

commencement day means the day proclaimed under section 2(2) ;

family day care scheme means a family day care scheme that, immediately before the commencement day, was exempted from the operation of the Child Care Act 1960 ;

transitional period means the shorter of the following periods:

(a) the period commencing on the commencement day and ending, as the case requires, when –

(i) the exemption from the operation of the Child Care Act 1960 ; or

(ii) the approval or registration as a child carer by a family day care scheme under that Act; or

(iii) the day nursery licence or children's boarding home licence under that Act –

would have ceased to have effect if this Act had not commenced;

(b) the period of 18 months commencing on the commencement day.

(2)  A family day care scheme is taken to be an approved registration body holding an approved registration body licence that –

(a) has effect for the transitional period; and

(b) otherwise is subject to the same conditions to which its exemption from the operation of the Child Care Act 1960 was subject.

(3)  A person who, immediately before the commencement day, provided child care to a child in the person's primary residence under a family day care scheme is taken to be a registered carer for the transitional period and his or her registration is subject to the same restrictions and conditions that applied in respect of the person's provision of child care immediately before the commencement day.

(4)  A person who, immediately before the commencement day, held under the Child Care Act 1960 a day nursery licence authorising the person to care for children in the person's residence or a children's boarding home licence is taken to hold a home-based child care licence that –

(a) has effect for the transitional period; and

(b) otherwise is subject to the same conditions to which that day nursery licence or children's boarding home licence was subject.

(5)  A person who, immediately before the commencement day, held under the Child Care Act 1960 a day nursery licence authorising the person to care for children in premises other than the person's residence is taken to hold a centre-based child care licence that –

(a) has effect for the transitional period; and

(b) otherwise is subject to the same conditions to which that day nursery licence was subject.

(6)  If –

(a) a person by reason of this section is taken to hold a licence or be a registered carer; and

(b) the structural or physical characteristics of the premises in which the child care was being provided immediately before the commencement day met the requirements of the Child Care Act 1960 and any conditions to which the licence under, or the exemption from the operation of, that Act was subject –

those structural or physical characteristics of the premises are taken to meet the requirements of this Act, the regulations and the Standards during the transitional period unless the Secretary by written notice provided to the person determines otherwise.

(7)  A person who, immediately before the commencement day, was lawfully providing child care or operating or providing a child care service without needing a licence or other form of permission under the Child Care Act 1960 may continue to provide that kind of child care or operate or provide that child care service during the transitional period as if this Act had not commenced.

(8)  If this section commences before the Magistrates Court (Administrative Appeals Division) Act 2001 commences, a person aggrieved by a determination of the Appeals Panel of a review of a reviewable decision may appeal to a magistrate within 14 days after receiving notice of that determination.

(9)  At the hearing of an appeal under subsection (8) , the magistrate may –

(a) confirm the determination of the Appeals Panel and determine the day on which the determination of the Appeals Panel which gave rise to the appeal takes effect; or

(b) set aside the determination of the Appeals Panel; or

(c) set aside the determination of the Appeals Panel and substitute another determination of the kind that the Appeals Panel could have made.

(10)  Subject to this section, an appeal under subsection (8) is to be instituted, heard and determined as prescribed.

(11)  On and after the commencement of the Magistrates Court (Administrative Appeals Division) Act 2001  –

(a) a person may not commence an appeal under subsection (8) ; but

(b) an appeal already commenced under that subsection may be continued and dealt with as if that Act had not commenced.

78.   Repeal of Child Care Act 1960

The Child Care Act 1960 is repealed.

79.   

See Schedule 2 .

SCHEDULE 1 - Membership and Meetings of Appeals Panel

Section 57(5)

PART 1 - Preliminary

1.   Interpretation

In this Schedule –

meeting includes proceeding and hearing;

member means a member of the Appeals Panel.

PART 2 - Membership of Appeals Panel

2.   Term of office

A member is appointed for such period as is necessary to undertake, determine and finalise the review of the reviewable decision in respect of which the member is appointed.

3.   Holding other office

(1) A member who is a State Service officer or State Service employee may hold the office of member in conjunction with State Service employment.

(2) The holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office may, despite that Act, hold the office of member in conjunction with that first-mentioned office.

4.   Remuneration of members

A member is entitled to be paid such remuneration (including travelling and subsistence allowance) as the Minister determines.

5.   Vacation of office

(1) A member vacates office –

(a) if he or she dies; or

(b) if he or she resigns; or

(c) in the case of a member who is a State Service officer or State Service employee, if he or she ceases to be such an officer or employee; or

(d) if he or she is removed from office under subclause (2) .

(2) The Minister may remove a member from office if the member –

(a) is absent from 3 consecutive meetings of the Appeals Panel without the permission of the Appeals Panel; or

(b) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for 12 months or longer; or

(c) is convicted of an offence against this Act; or

(d) has had a licence or registration under this Act suspended or cancelled or has been required under section 25 to pay a fine exceeding 5 penalty units; or

(e) is unable, in the opinion of the Minister, to perform adequately or competently the duties of the office of a member.

6.   Filling of vacancies

If the office of a member becomes vacant, the Minister may appoint to the vacant office for the remainder of that member's term a person listed in the Appeals Panel Register who has the qualifications required by section 57(2) in respect of that office.

7.   Validity of proceedings, &c.

(1) An act or proceeding of the Appeals Panel or of any person acting under any direction of the Appeals Panel is not invalidated by reason only that at the time when the act or proceeding was done, taken or commenced there was a vacancy in the office of a member.

(2) Despite the subsequent discovery of any defect in the appointment of any member or that any member was disqualified from acting as, or incapable of being, a member, all acts and proceedings of the Appeals Panel or of any person acting under any direction of the Appeals Panel are as valid as if the Appeals Panel had been fully constituted and the member –

(a) had been duly appointed; and

(b) was qualified to act as, or capable of being, a member.

8.   Presumptions

In any proceedings by or against the Appeals Panel, or in respect of any proceeding, act, inaction or determination of the Appeals Panel, unless evidence is given to the contrary, proof is not required of –

(a) the constitution of the Appeals Panel; or

(b) any resolution or determination of the Appeals Panel; or

(c) the appointment of any member; or

(d) the presence of a quorum at any meeting of the Appeals Panel.

PART 3 - Meeting of Appeals Panel

9.   Convening of meetings

A meeting of the Appeals Panel may be convened by the chairperson or by any 2 members.

10.   Procedure at meetings

(1) The quorum at any duly convened meeting of the Appeals Panel consists of the chairperson and one other member.

(2) Any duly convened meeting of the Appeals Panel at which a quorum is present is competent to transact any business of the Appeals Panel.

(3) Questions arising at a meeting of the Appeals Panel are to be determined by a majority of votes of the members present and voting but, in the case of an equality of votes, the chairperson has a casting vote.

(4) The chairperson of the Appeals Panel is to preside at all meetings of the Appeals Panel.

(5) The Appeals Panel may permit members to participate in a particular meeting or all meetings of the Appeals Panel by –

(a) telephone; or

(b) closed-circuit television; or

(c) any other means of communication.

(6) A member who participates in a meeting under a permission granted under subclause (5) is present at the meeting.

(7) The Appeals Panel may allow a person to attend a meeting for the purpose of advising or informing it on any matter.

(8) Subject to this Act, the procedure for the calling of, and for the conduct of business at, meetings of the Appeals Panel are as determined by the Appeals Panel.

11.   Resolutions without meetings

(1) If the chairperson and at least one other member sign a document containing a statement that they are in favour of a resolution in terms set out in the document, a resolution in those terms is taken to have been passed at a meeting of the Appeals Panel held on the day on which the document is signed or, if the members do not sign it on the same day, on the day on which the last of the members signs the document.

(2) If a resolution is taken to have been passed under subclause (1) , each member is to be –

(a) advised immediately of the matter; and

(b) given a copy of the terms of the resolution.

(3) For the purposes of subclause (1) , 2 or more separate documents containing a statement in identical terms, each of which is signed by one or more members, is taken to constitute one document.

12.   Minutes

The Appeals Panel must keep minutes of its proceedings.

SCHEDULE 2 - Consequential Amendments

The amendments effected by Section 79 and this Schedule have been incorporated into authorised versions of the following Acts:

(a) Approvals (Deadlines) Act 1993 ;

(b) Children, Young Persons and Their Families Act 1997 ;

(c) Hospitals Act 1918 .