The Early Childhood Regulatory Authority (Regulatory Authority) responds to non-compliance using a risk-based approach. Risk assessments are undertaken to determine the most appropriate and proportionate regulatory response.
In matters that involve serious harm to children and/or significant negligence on the part of the approved provider, the Regulatory Authority may use high level statutory sanctions against approved providers and individuals.
Read more about the mitigating and aggravating factors the Regulatory Authority considers when determining a regulatory response in the Regulating for Quality risk-based framework.
Compliance tools
The Education and Care Services National Law (National Law) provides a range of compliance and enforcement tools to enable regulatory authorities to address non-compliance.
Section 2 of the Australian Children’s Education and Care Quality Authority (ACECQA)'s
Guide to the National Quality Framework describes the different tools, how they can be used, and who they may be applied to.
Serious enforcement action
Some of the types of serious enforcement action the Regulatory Authority takes are briefly outlined below.
Prohibition notices
The Regulatory Authority may prohibit a person from providing education and care or from holding specific roles in a service, such as nominated supervisor, because they may pose an unacceptable risk of harm to children. Unless the Regulatory Authority is satisfied that there is an immediate risk to the safety, health or wellbeing of children, a show cause notice will be issued first, allowing the person to provide their version of events and explain why the Regulatory Authority should not take this action.
Information about these decisions cannot be published under the law. Understand the relevant provisions in the
National Law on prohibition notices.
A person subject to a prohibition notice can no longer legally be involved with education and care services and includes all paid and volunteer work. A person can also be prohibited because they are found to not be fit and proper to be a nominated supervisor, which means they cannot hold that role in any education and care service.
Remember: It is an offence for approved providers to employ or continue to employ a prohibited person—check a person's prohibition status prior to employment.
Enforceable undertakings
An enforceable undertaking is a written agreement between a person and the Regulatory Authority. It contains specific details of actions and/or restrictions the person agrees to undertake to support them to comply with the law in the future, and or ensure they no longer pose an unacceptable risk of harm to children (or are fit and proper to be nominated as a nominated supervisor). Understand the relevant provisions in the
National Law on enforceable undertakings.
Suspension or cancellation of provider or service approval
The National Law provides several grounds for suspending and cancelling a service approval (National Law
sections 70 and
77) and provider approval (sections 25 and
31). Unless the Regulatory Authority is satisfied that there is an immediate risk to the safety, health or wellbeing of children, a show cause notice will be issued allowing the approved provider to tell their version of events and explain why the Regulatory Authority should not take this action.
A suspension or cancellation of a provider approval means all services held by the provider, in any jurisdiction, are also suspended or cancelled.
Prosecution
The Regulatory Authority may bring any offence against the National Law or National Regulations for a decision by a court or tribunal. Prosecution is pursued for matters of greatest seriousness and where the risk to the safety, health or wellbeing of children is significant. Successful prosecutions send a powerful message to the sector about unacceptable conduct or where a serious failure of control has occurred.
The Regulatory Authority has 2 years to commence a prosecution from the date the alleged offence occurs (National Law
section 284).
Publishing enforcement actions
Publishing serious enforcement actions ensures parents and carers, the community and the early childhood sector can access information about individuals and organisations that have presented a risk to children's safety, health and wellbeing when providing education and care.
The Regulatory Authority may publish certain information about the following enforcement actions taken under the National Law or ECS Act:
- compliance notice
- emergency action notice
- enforceable undertaking
- amendment to approvals for purpose of enforcement
- suspension or cancellation of approvals (other than voluntary)
- prosecution.
The information that the Regulatory Authority chooses to publish is not a comprehensive list of all serious enforcement action taken. Families wishing to see a comprehensive record of a service's compliance should request to see the record of service's compliance history, which approved providers are required to keep under
National Regulation 167.
Access the register of published enforcement actions.
Help and support
Read more about
Regulatory Authority powers including compliance tools, enforcement actions and publishing enforcement actions in the Guide to the National Quality Framework.
For assistance with compliance and enforcement actions, please contact your
regional office.