Second tier review
Education and care services under the National Quality Framework (NQF) will be assessed and rated against the National Quality Standard (NQS) by state and territory regulatory authorities. If the approved provider disagrees with the ratings, they may apply, under section 141, to the regulatory authority for a review (first tier review).
If the approved provider is still not satisfied after the first tier review, they may apply for a further review (second tier review). Applications are received by ACECQA, who facilitate the review process. Rating reviews are conducted by an independent Ratings Review Panel. Please note, the panel can only review rating levels confirmed or amended by the regulatory authority at first tier review, i.e., they cannot review a rating level that was not reviewed at first tier review.
Find out more about second tier reviews:
If applying for a second tier review, you must lodge your application within 14 calendar days of receiving the decision of the regulatory authority on the first tier review. ACECQA does not have the power to extend the timeframe.
Your application must:
be in writing using the second tier review application form
set out the grounds on which review is sought
include the name of the education and care service
include the service approval number
include the name and contact details of the contact person for the application
include a statement setting out:
- the ground on which the approved provider seeks review of the decision of the regulatory authority, and
- the quality areas to which the ground for further review relates
An application must not include information or evidence that was not given to the regulatory authority as part of an initial assessment and rating, reassessment and re-rating or first tier review.
Your application must be submitted to ACECQA within 14 calendar days. If you received the first tier review notice by email, then you have 14 days from the day the email was sent (not from the day it is first read). If the 14th day falls on a day that ACECQA is not open, you have until the first business day ACECQA re-opens to lodge your application.
ACECQA must receive an application (including the prescribed fee) before close of business on the final day of the application period. If the application is emailed, ACECQA receives the application the day the email was sent. ACECQA will acknowledge receipt of your application by phone or email within five working days.
If you post your application, you must allow enough time for delivery. ACECQA recommends a minimum of four days and, if in doubt, suggests you keep evidence of postage, such as a receipt for registered post.
You may seek review of the rating levels for one of more quality areas (including elements or standards within each quality area) and/or the overall rating for the service. Only those aspects of the NQS that were confirmed or amended by the regulatory authority at first tier review can be reviewed at second tier review.
You are only able to apply for a second tier review on the grounds that the regulatory authority:
a) failed to take into account or give sufficient weight to special circumstances existing or facts existing at the time of the rating assessment, or
b) did not appropriately apply the prescribed processes for determining a rating level
If you believe the regulatory authority overlooked, or did not take into account important information, you should apply for a second tier review on the ground that the regulatory authority failed to take into account, or give enough weight to, facts existing at the time of the rating assessment.
You should state the facts that existed at the time of your rating assessment that you believe that the regulatory authority did not take into account or give weight to. Provide information about how the facts should be taken into account and what you believe your rating levels should be if the facts are properly considered.
You can only provide information or evidence that was available to the regulatory authority. The panel cannot take into account events or circumstances that occurred after the rating assessment. This is because second tier review is a ‘desktop review' of evidence and facts in existence that informed the proposed quality rating that is under review. Panel members do not visit services, and do not take a fresh look at the service overall. Second tier review panels can only consider evidence and circumstances as they existed at the time of the original assessment and ratings visit.
Special circumstances are unusual, uncommon or exceptional circumstances that cause a service to be awarded a lower rating than would have been awarded, if that special circumstance did not occur. The types of scenarios that can be defined as ‘special circumstances’ will depend on each particular case.
If you believe the regulatory authority failed to take into account, or give enough weight to, special circumstances that existed at the time of the rating assessment, you should apply for second tier review on this ground.
You should state the special circumstance that existed at the time of your rating assessment. You will need to provide information about:
- why the circumstance was unusual, uncommon or exceptional
- how the special circumstance affected your rating levels, and
- state the quality areas you believe have been affected.
You can only provide information or evidence that was available to the regulatory authority. The Ratings Review Panel cannot take into account events of circumstances that occurred after the rating assessment.
The prescribed processes include those set out under section 142 of the National Law and regulation 69 of the National Regulations. If you believe the regulatory authority failed to follow the correct process during your first tier review, you should apply for a second tier review on this ground.
You can apply under this ground if:
- the regulatory authority failed to consider:
- your service’s current quality improvement plan
- rating assessment history
- history of compliance with the National Law, a relevant education or children’s services law or, in the period of 3 years preceding 1 January 2012,
a relevant former education and care services law
- the regulatory authority failed to arrange a site visit
- the person who conducted the first tier review was involved in the initial assessment and rating of their service
- the first tier review was not conducted within the correct timeframe (either 30 days or 60 days if the regulatory authority makes a request for information, or the approved provider and regulatory authority agree to extend the timeframe).
You should state how the regulatory authority failed to follow the correct process and provide evidence to support your claim. You will need to state which quality area(s) or standard(s) you wish to have reviewed under this ground.
Please note that the grounds for review are used to determine the validity of a second tier review application. The Ratings Review Panel cannot review the conduct of a regulatory authority or authorised officer.
When making an application for review, you will need to support your claims. You should consider what evidence is available to support your application for a further (second tier) review. Evidence can come in different forms and could include documents, reports, photographs, declarations and other records that existed at the time of the rating assessment. View more information on putting your best case forward.
You do not need a lawyer to make an application for review. If you need assistance making an application, or have questions about what information or evidence may be useful, please contact ACECQA.
The National Law requires that the application fee be paid before ACECQA can consider an application. An application is not complete until the fee has been paid. The application fee is set by the National Regulations and varies according to the size of the service. View the current application fee for a second tier review and methods of payment.
ACECQA prefers to receive applications electronically. If possible, please submit your application by email.
Applications can be sent to ACECQA
By email: [email protected]
By post: Second tier review, ACECQA
PO Box 358
Darlinghurst NSW 1300
ACECQA will acknowledge receipt of the application by phone or email within 5 working days.
We are unable to process incomplete applications. For all complete applications, ACECQA will contact you to discuss the review process and to answer any questions you may have about the review. We will notify the regulatory authority of the application, including the grounds on which you seek review, and invite the regulatory authority to make submissions. We may provide the regulatory authority with a copy of your application. We will send you a copy of any information provided by the regulatory authority and provide you with an opportunity to respond in writing.
Once ACECQA has collected relevant information from you and the regulatory authority, ACECQA will prepare information for the Ratings Review Panel to consider.
Ratings Review Panels are responsible for confirming or amending the quality rating levels given to education and care services by regulatory authorities. ACECQA will establish a Ratings Review Panel for each review. Members of the Ratings Review Panel are drawn from the Ratings Review Panel pool. View more information on the Ratings Review Panel and current pool members.
Nominations for the Ratings Review Panel pool are sought from State and Territory regulatory authorities and the Commonwealth Minister responsible for Education and Care Services. The pool includes at least two ACECQA staff members.
- early learning and development research or practice
- the assessment of quality in education and care services or other relevant services
- best practice regulation
All members of the Ratings Review Panel pool are required to complete an induction program including training in education and care service quality assessment and the principles of good administrative decision making.
Each Ratings Review Panel consists of three members, including a chair. Each Panel will include at least one member who is an early childhood or out of school hours care expert. An ACECQA staff member may participate (but will not be the chair).
The Ratings Review Panel pool consists of experts from all jurisdictions with diverse backgrounds. When establishing a Ratings Review Panel, consideration will be given to the skill set required to conduct the review. ACECQA will convene panels in such a way as to avoid or minimise conflicts of interest.
Subject to the National Law, the procedure of a Ratings Review Panel is in its discretion In most cases. Ratings Review Panels will conduct reviews via teleconference or other electronic means. A Ratings Review Panel is not required to hold an oral hearing for a review or to meet face-to-face. In some limited circumstances, it may be necessary for the Ratings Review Panel to undertake a site visit of the service and ACECQA will liaise with the approved provider to arrange a suitable time.
Panel members must act in all proceedings with fairness, equity and impartiality. They are required to adhere to the National Law and processes determined by ACECQA. Panels will be supported by a secretariat provided by ACECQA.
The Ratings Review Panel will review all available evidence before confirming or amending the service’s ratings levels. Minutes of the deliberations of the review will be kept and the panel will set out its decisions on the review.
The Ratings Review Panel must make a decision within 60 days after the application for review was made (section 151(2)). This period may be extended if the chairperson of the Panel considers special circumstances warrant the extension or if the approved provider agrees.
Under section 150(5) of the National Law, ACECQA will give the approved provider a copy of any documents, information or evidence provided by the regulatory authority about the review. ACECQA will also send the approved provider a copy of the regulatory authority’s submissions. You will have an opportunity to respond in writing. On reviewing these documents, you may also wish to submit further evidence in support of your application.
Where necessary, the panel may ask the approved provider to provide further information, for example if the panel needs the approved provider to clarify a particular.
In conducting a review, a Ratings Review Panel may consider:
- any documents, information, plans, photographs, video or other evidence available to the regulatory authority in carrying out the rating assessment
- the approved provider and service’s history of compliance with the National Law
- the application for review to the regulatory authority
- any submissions made by the approved provider to the internal review by the regulatory authority
- the application for review to the Ratings Review Panel
- any written submissions or responses made to the Ratings Review Panel by the approved provider
- any written submissions or responses made to the Ratings Review Panel by the regulatory authority relating to the stated grounds for review
- any advice received from ACECQA, at the request of the Ratings Review Panel, about how the prescribed processes for rating assessments are intended to be applied that is relevant to the review
If you have made changes at your service since your ratings assessment that you believe will improve your ratings levels, you should not apply for review of your ratings. Instead, you should consider whether to apply for a reassessment and re-rating under the National Law. During a reassessment and re-rating, the regulatory authority can take into account changes made after the initial ratings assessment. The changes cannot be taken into account during first and second tier reviews.
The Ratings Review Panel may ask you and the regulatory authority to provide further written information in relation to the ratings review application and ACECQA will facilitate these requests.
After a review, the Ratings Review Panel may:
a) confirm the rating levels determined by the regulatory authority, or
b) amend the rating levels.
Ratings Review Panels must seek to make decisions by consensus (section 148(4)). If no consensus can be obtained, a decision of the majority of the members of the Panel will be the decision. If a majority decision is not reached; the panel is taken to have confirmed the rating levels determined by the regulatory authority (section 148(6)).
The panel must provide written notice of its decision, setting out the Panel’s findings on each review ground ACECQA will send the decision notice to both you and the regulatory authority, on behalf of the Panel, within 14 days of the decision being made.
The regulatory authority will be invited to make submissions to a second tier review. You will be given copies of information provided by the regulatory authority and provided with an opportunity to respond in writing.
The rating level confirmed or amended by the Panel will be the rating level for your service The Ratings Review Panel can confirm or amend rating levels. A service’s final ratings may be lower, the same or higher than the ratings awarded by the regulatory authority following its first tier review.
You may withdraw the application at any time prior to the Ratings Review Panel making a decision. The application fee will be forfeited.
Second tier review decisions will be de-identified and published on the ACECQA website.
Ratings levels determined by a Ratings Review Panel will be the rating levels for the service. The National Law does not provide a right of appeal against a decision of a panel. If you are dissatisfied with the rating levels determined by a panel, you may wish to seek legal advice.
If you believe you have been treated unfairly by ACECQA, you may complain to the Education and Care Services Ombudsman.
If you have questions about the application process and assessment of second tier review applications, please contact ACECQA on 1300 422 327 or email [email protected].
You can find data on the number of second tier review applications we have received and processed. This information is updated quarterly.