11. Second Tier Review
[ National Law & Regulations, Sections 144–151, Regulation 69 ] Under the National Law and Regulations an approved provider can request a review of the service’s rating if the provider disagrees with the rating given. This review of ratings by the regulatory authority is referred to as a first tier review. If the approved provider is still not satisfied after the first tier review, they may apply to ACECQA for a further review (a ‘second tier review’) by a ratings review panel.
Who can apply?
[ National Regulations, Regulation 68 ] An approved provider can only apply to ACECQA for a second tier review if the regulatory authority has conducted a first tier review. The application must:
- be submitted to ACECQA within 14 calendar days of receiving the notice of the outcome of the first tier review
- identify on what grounds the review is being sought and include information set out in the National Regulations (see table)
- be made using the application form on the ACECQA website which sets out the information applications must provide.
An approved provider can only apply for a second tier review on the grounds that the regulatory authority:
- failed to take into account or give sufficient weight to special circumstances existing or facts existing at the time of the rating assessment, or
- did not appropriately apply the prescribed processes for determining a rating level.
Information that must be included in an application for second first tier review
The name of the education and care service
The service approval number
The name and contact details of the contact person for the purposes of the application
A statement setting out the grounds on which the provider seeks review of the decision of the regulatory authority and the quality areas to which the grounds for review relate.
[ National Law, Sections 139, 145 ] 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.
If a service has made changes since its ratings assessment that it believes will improve the service’s ratings levels, it should not apply for a review of ratings. Instead, it should consider whether to apply for a reassessment and re-rating. Changes to a service cannot be taken into account during first and second tier reviews.
Timeframe for conducting a second tier review
ACECQA must give written notice to the regulatory authority that a second tier review application has been received within seven days of receipt. The second tier review panel must make a decision to confirm or amend the rating levels within 60 calendar days of the application for review being made (section 151(2)).
ACECQA must give the approved provider and the regulatory authority written notice of the decision on the review and the reason for the decision within 14 calendar days of the decision being made (section 151(5)).
[ National Law, Section 151 ] The chairperson of the panel may extend the period for decision-making if the chairperson considers there are special circumstances that warrant that extension, or by agreement between the chairperson and the approved provider.
Conducting the second tier review
[ National Law & Regulations, Sections 146–151 Regulation 70 ] ACECQA must invite the regulatory authority to make submissions to the review.
ACECQA must establish a ratings review panel to conduct the review.
Ratings review panels are responsible for confirming or amending the rating levels given to education and care services by regulatory authorities. ACECQA will establish a ratings review panel for each review. Members for the ratings review panel are drawn from the ratings review panel pool.
Persons approved as members of the panel must have expertise or expert knowledge in:
- early learning and development research or practice
- a prescribed area, such as the assessment of quality in education and care services or other relevant services
- best practice regulation.
[ National Law, Sections 150 ] The National Law sets out what the ratings review panel may consider when conducting the review.
What a ratings review panel may consider when conducting a second tier review
Documents, information, plans, photographs, video or other evidence available to the regulatory authority in carrying out the rating assessment
The approved provider’s and service’s history of compliance with the National Law
Any submissions made by the approved provider as part of the first tier review
The outcome of the first tier review
Any submissions made by the approved provider as part of the second tier review
Any submissions made by the regulatory authority as part of the second tier review.
The ratings review panel is not required to hold an oral hearing for a review. The ratings review panel may request written information from the regulatory authority or approved provider.
If the regulatory authority provides any documents, information or evidence to the ratings review panel, ACECQA will provide the approved provider with a copy and give the provider an opportunity to respond in writing, as required under the National Law.
Determining the second tier review
In most cases, ratings review panels will conduct reviews via teleconference or other electronic means.
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. This period may be extended if the chairperson of the panel considers special circumstances warrant the extension or if the approved provider agrees.
[ National Law, Section 151 ] Rating 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 an approved provider is dissatisfied with the rating levels determined by a panel, it may seek legal advice.
If an approved provider believes they have been unfairly treated by ACECQA, they may complain to the Education and Care Services Ombudsman.
After the second tier review has been determined
The ratings review panel may confirm the rating levels determined by the regulatory authority at first tier review, or amend the rating levels.
The rating level confirmed or amended by the panel will be the rating level for the service.
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 the approved provider and regulatory authority, on behalf of the panel, within 14 calendar days of the decision being made.
ACECQA will publish the rating levels determined by a ratings review panel. ACECQA also publishes de-identified summaries of second tier review decisions on its website.