Changes to the Children's Services Act

The Children’s Services Act has changed

Early childhood education and care services in Victoria are currently regulated either under the Children’s Services Act 1996 (CS Act) and Children’s Services Regulations 2009 (Regulations), or under the National Quality Framework (NQF). The two regulatory regimes are similar but not consistent.

Amendments to align the CS Act to the Education and Care Services National Law (where appropriate) were passed by Parliament in November 2019. They will come into effect in May 2020.

Objectives and guiding principles

The CS Act adopts the objectives and guiding principles in the National Law. These focus on quality educational and developmental outcomes, and the safety, health and wellbeing of children.

Terminology and roles of key personnel

The CS Act retains the term ‘children’s service’ so it is clear these services are separate to the NQF education and care services.

Other terminology in the CS Act has changed to the terms used in the NQF. For example:

  • licensees have become approved providers
  • licences have become service approvals
  • licensee representatives and responsible persons have become persons with management or control – each approved provider will need to appoint one or more person(s) with management or control responsible for managing the delivery of the service
  • primary nominees have become nominated supervisors
  • accepted nominees and approved nominees have become persons in day-to-day charge
  • the term ‘proprietor’ has become redundant.

Licensing and approvals

The licensing structure and fit and proper requirements under the CS Act has aligned with the NQF terminology and processes:

  • Fixed-term licences are replaced with ongoing service approvals.
  • Renewals of licences on application and payment of a fee are replaced with an annual fee payable on invoice.
  • The new fit and proper requirements for people operating a children’s service are more comprehensive and explicit, for example, the applicant’s past conduct under other relevant laws will be considered.
  • An approved provider will be able to operate multiple services under the CS Act, under a single provider approval.
  • The two-step process for approval of premises is replaced with a one-step integrated process for service approval, as in the National Law, which enables consideration of all relevant matters about the service at the time the application is complete.
  • Service approvals are transferable between approved providers (subject to approval by the regulatory authority), increasing flexibility for approved providers.
  • All existing approved providers under the National Law will be eligible to operate a children’s service without the need to separately apply for a provider approval under the CS Act.

Operational requirements for services

The basic requirements to operate a children’s service has been aligned with the National Law. For example, new approved providers under the CS Act have to appoint nominated supervisors and persons in day-to-day charge of services. While these roles are fundamentally the same as the existing roles, there are more explicit requirements in the law on what to consider when appointing these individuals. (See also Terminology and roles of key personnel.)

Other operational requirements in the Regulations (for example, requirements for staffing and premises, equipment and facilities, record-keeping, first-aid) are in the process of being reviewed. Separate consultation will occur on any changes proposed to the Regulations.

Requirement for educational program

The CS Act required an educational or recreational program that is based on the developmental needs, interests and experiences of each child, and designed to take into account the individual differences of those children.

This is strengthened by aligning it with the National Law requirement to deliver a program based on an approved learning framework.

The program will need to be proportionate and reflect the nature of the education and care provided and how long the children attend. Information and resources will be provided to help services develop programs appropriate for their service.

Educators’ guides are currently available to support the national approved learning frameworks, including resources to support the Victorian Early Years Learning and Development Framework.

Compliance and enforcement

The compliance approach under the National Law gives the regulatory authority more flexible options. The monitoring and enforcement provisions in the CS Act are aligned with their equivalent provisions in the National Law. This will include the option of an enforceable undertaking where the provider enters into a binding agreement to undertake actions to bring them back into compliance. This provides a more flexible alternative to prosecution.

Offences and penalties

The offences and penalties in the CS Act are aligned as closely as possible with those in the National Law.

Offences

Alignment has introduced some new offences, like operating a children’s service without a ‘nominated supervisor’ (what is now a primary nominee). However, other offences remain the same; for example, it is currently an offence under both regulatory regimes to inadequately supervise children.

Penalties

The CS Act will continue to express penalties in penalty units, whereas the National Law expresses them in dollar amounts.

Alignment with the National Law means that an offence will carry a different maximum penalty for individuals and corporate bodies. In most cases, the new maximum penalties will be lower for individuals and higher for corporate bodies.

Example: the offence of inadequately supervising children.

Under the National Law, the maximum penalty is $10,000 for individuals and $50,000 for corporate bodies.

Under the CS Act – maximum penalty of 120 penalty units (around $19,350)

Under the CS Act after alignment – maximum penalty of 60 penalty units for individuals (around $9,700), and 300 penalty units for corporate bodies (around $48,400).

Approved associated children’s services

The approved associated children’s service (AACS) model enables an approved provider to operate services under both the NQF and the CS Act at the same premises, under a single NQF service approval. This model makes it easier for a provider operating services under the differing requirements of the two regulatory regimes. There are currently around 32 AACSs in Victoria.

Following alignment, AACSs in Victoria will be phased out by 2022. Approved providers under the NQF who currently hold a service approval and operate an AACS will be able to:

  • operate the entire service under the NQF service approval (with appropriate service conditions and/or waivers, if required), so that both the existing NQF service and the AACS become regulated under the NQF; or
  • apply for a separate service approval under the CS Act, which relates only to their AACS.

We will work with affected providers for each AACS individually to establish appropriate arrangements during this two year interim period.

Transitional arrangements

To minimise the impacts of the changes for service providers, transitional arrangements will:

  • ensure any service that is exempt from a requirement under the CS Act or Regulations (e.g. staff-to-child ratios) has six months from when the reforms begin to apply for a service waiver in respect of the equivalent requirement under the CS Act (as amended)
  • provide processes for dealing with licence applications that are in progress when the reforms commence.

Resources

  • Quality Assessment and Regulation Update newsletter for early childhood providers.
  • Early Childhood Update links professionals, providers and educators with news, resources and information that supports the learning and development of young children in Victoria.

Contact us

For queries, or to send a written submission, email us at cs.law.reform@edumail.vic.gov.au.