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About enforcement actions
The Department of Communities makes decisions about when to investigate education and care services (formerly known as child care or day care centres) for non-compliance, and which enforcement action is appropriate, according to the Compliance Enforcement Framework.
Communities uses a risk based approach to regulation and conducts monitoring checks as part of that approach. Where breaches of the legislations are detected the department will formally notify the approved provider and will take any necessary and appropriate action to ensure the issues are rectified.
The department is committed to keeping parents, the community and the education and care sector informed about compliance action taken against serious offences through the publication of prosecutions under the National Law.
All references to sections and regulations are to sections of the Schedule to the Education and Care Services National Law (WA) Act 2012 (National Law) and regulations of the Education and Care Services National Regulations 2012 (national regulations) unless otherwise specified.
Communities publishes details after all court, tribunal or administrative action is finalised and any appeals process is concluded. Communities also uses media releases in accordance with the Regulation and Quality Media Statement Policy. The published lists will cover the following enforcement actions for serious non-compliance:
- suspension or cancellation of provider approvals and service approvals
- issue of compliance notices
- imposition of conditions on approvals for purposes of enforcement
- acceptance by Communities of enforceable undertakings
- details of criminal prosecutions in the Magistrates Court or of applications to the State Administrative Tribunal.
The State Administrative Tribunal (SAT) publishes its orders and decision on the eCourts website. To find SAT's orders and decisions under the National Law click on the link – which should be to the "Advanced Search" on the eCourts site – and enter the following:
- next to "Jurisdiction" choose "State Administrative Tribunal"
- next to "Act (NOT "Legislation") enter " Education and Care Services National Law (WA) Act 2012"
- next to "Decision Type" choose "All".
This will bring up all consent orders and decisions by the Tribunal relating to the National Law. For consent orders the Tribunal will publish the order with a link to an "annexure". The annexure will set out all the agreed facts about the contravention of the National Law and what has been done to prevent future contraventions from occurring.
Non-compliance
If a service is found to be non-compliant with the legislation, a risk assessment will be undertaken to determine whether the non-compliance exposed a child to serious risk of harm. The assessment will also consider whether the continued provision of the service constitutes an unacceptable risk to the safety, health and wellbeing of the children attending the service.
All actions by the Education and Care Regulatory Unit will be based on such an assessment, with high risk non-compliance resulting in the most serious action. Details of serious non-compliance are published as enforcement actions. Disciplinary action or reviews can be found at the State Administrative Tribunal.
The Swiss cheese effect video
To assist approved education and care providers to consider risk within a service, ECRU have prepared this presentation on the top five non-compliances in WA. Consider what works, what doesn’t work and how you can improve it. How can you remedy any risks? Risk assessment isn’t about implementation alone it’s also about reviewing, improving and monitoring to ensure best practice. If you’d like to know more, please refer to the resources on the ECRU resources page.
