1.1 Application for provider approval

[ National Law, Sections 10, 11, 12 ] WA An individual, body corporate, eligible association, partnership or prescribed entity may apply to be an approved provider. See the Glossary for the meaning of these terms.

The application must include all information listed in the National Regulations and payment of the set fee. See Application checklists – Tables I, II and Fees.

Applications by individuals

The application must be sent to the regulatory authority in the state or territory where the applicant/s live.

Applications by non-individuals

The application must be sent to the regulatory authority in the state or territory where the applicant’s principal office is located (or where any of the applicants’ principal offices are located if there is more than one).

Section 12(2) of the National Law refers to applicants for provider approval who are not individuals. A non-individual applicant for provider approval can include:

a corporate body (this includes an incorporated association, statutory corporation, etc)
unincorporated associations (for example, a cooperative)
partnerships, and
government bodies.

When an applicant is not an individual, section 12(2)(a) of the National Law requires the applicant to satisfy the regulatory authority that each person who will be a person with management or control at the service is a fit and proper person.

A person with management or control is:

If the provider is an eligible association – each member of the executive committee who has responsibility for managing the delivery of the education and care service
If the provider is a partnership – each partner who has responsibility for managing the delivery of the education and care service
In any other case, each person who has the responsibility for managing the delivery of the education and care service.

Each entity is jointly and severally responsible for complying with the National Law and Regulations. Regulatory authorities may assess the risk associated with joint applicants when determining applications for approvals.

If the provider is a body corporate, a person with management and control will be an officer of the body corporate within the meaning of the Corporations Act 2001 (see the Glossary) who is responsible for managing the delivery of the education and care service.

However, not all officers of a body corporate approved provider entity are automatically considered to be persons with management or control.

A director or executive member of the approved provider entity can expressly indicate in writing that they will not have management or control of the service.

To assess the fitness and propriety of a non-individual applicant for provider approval, regulatory authorities should assess all constituent individual personnel of the applicant entity for fitness and propriety, regardless of whether the person is determined by the approved provider to be a person with management or control.

Constituent individual personnel include company directors, executive members of an association, and partners of a partnership.

Note: A trust is not a legal entity and therefore cannot hold property or enter into contractual arrangements. For example, a trust cannot hold a provider approval. A trustee can apply for and hold a provider approval, as an individual or body corporate.

Applications and notifications can be submitted to the regulatory authority online using the National Quality Agenda IT System on the ACECQA website at www.acecqa.gov.au. The National Regulations do not specify what type of documentation is required as proof of identity when applying, and do not require applicants to submit 100 points of identity or certified copies of their documentation. The regulatory authority may request certified copies if it is concerned about the authenticity of documents included in an application.

Incomplete applications

The timeframe for processing an application does not begin until an application is 'valid', meaning complete with all prescribed information.

If an application does not include all prescribed information the regulatory authority may treat the application as invalid and either request missing information be provided within a set timeframe, or close the invalid application.

The National Law does not specify how much time applicants have to provide this information once requested by a regulatory authority. Regulatory authorities will set timeframes taking into consideration:

the amount and complexity of the information requested
the applicant’s capacity to provide information in that timeframe
whether a timeframe applies to when the applicant must submit the application.

The regulatory authorities must keep records of incomplete applications. The State Records Act 1998 (NSW) applies to all jurisdictions for the purposes of the National Law and Regulations except to the extent that the National Law applies to a regulatory authority and the records of a regulatory authority (section 265).

Generally, the regulatory authority will not complete applications on behalf of applicants using the information held on file as this information could be out of date. Procedural fairness issues could arise if information is taken into account without the knowledge of the applicant.

Timeframe for assessing an application

[ National Law, Sections 14, 15 ] The regulatory authority must make a decision within 60 calendar days of receiving a complete application.

If more information is requested, the time taken to provide it is not included in the 60-day period. If the applicant agrees, the 60-day period (not including any time taken to provide additional information) may be extended by up to 30 calendar days.

If a decision is not made within 60 calendar days, the application is taken to be refused.

The regulatory authority must give the applicant written notice of its decision and the supporting reasons, within seven (7) calendar days of making the decision.

Calculating time

[ National Law, Sections 15, 16 ] The National Law sets out how timeframes are calculated at schedule 1, clause 31.

An application cannot begin to be processed unless the application is complete/valid and includes all the required information.

When calculating the timeframe, the day the application is received is excluded. If the timeframe is expressed in the legislation in terms of a number of days, the last day of that timeframe is also excluded. ‘Day’ means calendar day. For example, a regulatory authority must make a decision on a provider approval application within 60 days after the application is received (see section 15). If the regulatory authority receives the application on 1 March, the 60-day timeframe commences on 2 March and runs until the end of 1 May. 1 March is excluded from the calculation, and 30 April, the 60th day, is also excluded.

If the last day of the timeframe falls on a non-business day, the next business day will be the last day. Using the example above, if 1 May is a Saturday, Sunday or public holiday, the regulatory authority’s decision will be due the first working day after 1 May.