2.6 Transfer of service approval
[ National Law & Regulations, Sections 58–61, Regulations 36–37 ] An approved provider (the transferring approved provider) may transfer a service approval to another approved provider (the receiving approved provider).
Notification of decision to transfer
The transferring and receiving approved providers must jointly notify the regulatory authority of the transfer at least 42 calendar days before it is intended to take effect.
The regulatory authority may agree to a shorter notification period if it considers there are exceptional circumstances (see below).
The notice must be in writing, include the required information and payment of the fee (see Application checklists – Table X and Fees).
Regulatory authority consent
A service approval can only be transferred with the regulatory authority’s consent. The regulatory authority is taken to have consented if it is notified of the transfer and, 28 calendar days before the transfer is to take effect, has not advised the approved providers that it intends to intervene.
The regulatory authority may reassess waivers when notified of the transfer of service approval.
Exceptional circumstances
Regulatory authorities may agree ‘exceptional circumstances’ exist to justify a shorter notification period of less than 42 calendar days where, for example, the approved provider is ill and no longer able to operate the service, and it is in the best interests of the children at the service to ensure continuity by transferring the service to a new approved provider.
SA NSW TAS WA Where a service in SA, NSW, TAS or WA is transferred under a transitional arrangement, the notification of transfer must include information regarding the requirements that will need to be met by the service.
Where a service is in NSW and has a waiver, the notification must include how the service will fulfil obligations of the waiver, i.e. whether they will be keeping on an early childhood teacher nominee for a staffing waiver.
Decision to intervene in transfer of service approval
[ National Law & Regulations, Section 62, Regulation 38 ] The regulatory authority may intervene in a transfer if it is concerned about any matter it considers relevant including:
- the receiving approved provider’s capacity to operate the service, considering their financial capacity, fitness and propriety and management ability
- the receiving approved provider’s history of compliance with the National Law and Regulations, including in relation to any other education and care service they operate.
If the regulatory authority decides to intervene both the transferring and receiving approved provider must be notified in writing at least 28 calendar days before the transfer is intended to take effect. This does not apply in cases where a notification of service transfer is not lodged in accordance with section 59 of the Law. The notice must include the information set out below.
Information that must be included in notification to intervene in transfer of service approval |
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The name of the education and care service |
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The service approval number |
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The transferring approved provider’s name |
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The receiving approved provider’s name |
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The matters about which the regulatory authority is concerned. |
[ National Law, Sections 63–64 ] If the regulatory authority intervenes, a transfer cannot proceed unless the regulatory authority gives written consent.
The regulatory authority may request more information from the transferring or receiving approved providers to inform its decision to consent or refuse to consent to the transfer. The regulatory authority may also make inquiries about the receiving approved provider.
Decision following intervention in transfer
[ National Law, Sections 65–66 ] The regulatory authority may impose conditions on its consent to transfer, including specifying the date the transfer will take effect. The service approval must be transferred in accordance with any conditions imposed.
If the regulatory authority intervenes in a transfer of a service approval, it must notify the transferring and receiving approved providers of its decision at least seven (7) calendar days before the transfer is intended to take effect.
The notice must specify the regulatory authority’s decision according to the options set out below.
Transfer of service approval – notice of outcome |
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Consent to the transfer, including the date on which the transfer will take effect and any conditions on the consent to transfer (notice may also include any new conditions placed on the receiving provider’s provider approval or service approval), or |
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Refusal to consent to the transfer (service cannot be transferred), including the reasons for refusal, or |
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Suspension of consideration of the transfer until more information is received, and that the transfer may not proceed until the regulatory authority gives its written consent, or |
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Decision not yet made on the transfer but will decide within 28 calendar days, and that the transfer may not proceed until the regulatory authority gives its written consent. |
[ National Law, Section 67 ] A transfer of service approval is void if it is made:
- without the regulatory authority’s consent
- in a way that does not satisfy conditions imposed on the regulatory authority’s consent
- to a person other than the receiving approved provider who notified the regulatory authority of the transfer.
A cancelled service approval cannot be transferred. A service approval that is going to be cancelled may be able to be transferred (see Monitoring, Compliance and Enforcement).
Notification following transfer of service approval
[ National Law, Section 68 ] The transferring and receiving approved providers must notify the regulatory authority in writing within two (2) calendar days after the transfer takes effect, specifying the date of the transfer. Transfer of a service approval includes transfer of any associated children's service included on the service approval.
On receiving notice that the service has been transferred, the regulatory authority must amend the service approval and give the receiving approved provider an updated copy. The amendment to the service approval is taken to have effect on the date of transfer.
The receiving approved provider must notify parents of children enrolled at the service of the transfer at least two (2) calendar days before transfer takes effect.
Transfer of suspended service approval
[ National Law, Section 76 ] The regulatory authority may consent to the transfer of a suspended service approval. In this case, the suspension ceases when the transfer takes effect, unless the regulatory authority has imposed a condition on the transfer stating otherwise.
Application to transfer service approval when provider approval is cancelled
[ National Law, Section 34 ] An approved provider can apply to the regulatory authority for consent to transfer a service approval if their provider approval will be cancelled (see Monitoring, Compliance and Enforcement).
The application to transfer must be made within 14 calendar days after the date of the decision to cancel the provider approval. In this case, the service approval is suspended until the regulatory authority has determined the application for consent to transfer.
If the regulatory authority consents to the transfer, suspension of the service approval ceases on the date the transfer takes effect, unless conditions of transfer specify a later date.
If the regulatory authority decides not to consent to the transfer, the service approval is cancelled from the date of its decision.
Application to transfer cancelled service approval
[ National Law, Sections 81–82 ] An approved provider can apply to the regulatory authority for consent to transfer a service approval that is to be cancelled, unless the cancellation relates only to an associated children’s service.
The application must be made within 14 calendar days after the regulatory authority decides to cancel the service approval.
If the approved provider applies for consent to transfer, the service approval is suspended, rather than cancelled, until the regulatory authority determines the application.
If the regulatory authority consents to the transfer, its decision to cancel the service approval is revoked. The suspension of the service approval ceases when the transfer takes effect, unless the regulatory authority imposes a condition on their consent to transfer, specifying a later date.
If the regulatory authority refuses to consent to the transfer, the service approval is cancelled, effective from the date of its decision.
The National Law does not specify how an approved provider must apply for consent to transfer service approval if their approval will be cancelled. To ensure it has all the necessary information to decide whether to consent to the transfer, the regulatory authority can request an application be made in the same form as an application to transfer service approval in ordinary circumstances (See Notification of decision to transfer).