3. Enforceable undertakings

What is an enforceable undertaking?

[ National Law, Sections 179A, 179B and 180 ] An enforceable undertaking is a written undertaking from a person, in which the person sets out what they will do or refrain from doing, to comply with the National Law and Regulations.

When can it be used?

If a person has contravened, or the regulatory authority alleges that a person has contravened, a provision of the National Law, an enforceable undertaking from the person can be accepted.

  WA  In Western Australia, this section also applies to people who believe they may have contravened a provision of the National Law.

An enforceable undertaking is a useful tool where there is evidence of a breach or potential breach of the National Law or Regulations which may justify enforcement action, but voluntary action by the offender is most likely to encourage ongoing compliance.

For example, where health and hygiene practices are not being followed, a regulatory authority might request an approved provider to agree to train staff in health and hygiene practices, rather than issuing a compliance notice. This is consistent with the principle of an ‘outcomes focus’ in regulatory actions.

Enforceable undertakings are designed to address non-compliance through prevention and remediation. Their purpose is to reduce risk by having the person in question voluntarily modify their practices, behaviour or skills to ensure they comply with the National Law and Regulations. As an enforceable undertaking is voluntary, it should only be accepted in circumstances where the person is willing to abide by their undertaking.

An enforceable undertaking may also be considered in circumstances when a prohibition or suspension notice under the National Law might be issued. This gives more flexibility to the regulatory authority in addressing issues when a less severe alternative to a prohibition or suspension notice is more suitable for the issue.

For example, a regulatory authority may consider an enforceable undertaking rather than a prohibition notice for the presence of a hazard that could potentially cause a child unacceptable harm or injury, but does not pose an immediate risk to the safety, health or wellbeing of a child, such as an educator who has used any form of discipline that is inappropriate in the circumstances. This gives the service the opportunity to provide a written undertaking setting out the action it will take to eliminate or mitigate the risk.

How can it be used?

The National Law allows a regulatory authority to accept an enforceable undertaking from a person who has contravened, or who the regulatory authority alleges has contravened, a provision of the National Law. A regulatory authority does not have to accept an enforceable undertaking.

A regulatory authority cannot require a person to enter into an enforceable undertaking. However, the regulatory authority may suggest to a person that they give an enforceable undertaking.

Content of an enforceable undertaking

• An enforceable undertaking must be in writing. It should set out each specific undertaking in plain language.
• Each undertaking must be assessable, so the regulatory authority can check it has been fulfilled.
• An enforceable undertaking needs to address the contravention, or alleged contravention, of the National Law, and set a timeframe for the undertaking to be fulfilled.
• An enforceable undertaking needs to include the name and signature of the person giving the undertaking, and the date it was accepted by the regulatory authority.

When negotiating the content of an enforceable undertaking with the person, the regulatory authority may seek to include the matters listed below.

An enforceable undertaking should not include the below matters.

Deciding whether to accept an enforceable undertaking

Enforceable undertakings must not be unduly burdensome or disproportionate to the breach or alleged breach of the National Law. The obligations imposed by the undertaking should not be more intrusive, expensive or damaging than obligations which may result from other enforcement action, such as cancellation of an approval or prosecution.

Regulatory authorities should not accept enforceable undertakings which will cause loss or damage to a third party, unless that loss or damage is unavoidable to properly address the breach.

Factors which the regulatory authority may consider when deciding whether or not to accept an enforceable undertaking include:

• Is it likely the enforceable undertaking will be fulfilled?
• Does the undertaking address the non-compliance?
• Is the regulatory authority able to monitor compliance with the enforceable undertaking?
• Is the person willing to comply with the undertaking?

While an undertaking is in force or being complied with, proceedings cannot be brought for any directly related offence. Similarly, if a regulatory authority has accepted an undertaking in relation to a proposed suspension of provider approval (see section 27(a)), proposed suspension of service approval (see section 72(a)) or proposed prohibition (see section 184(3)), the regulatory authority must not suspend the provider or service approval, or give the prohibition notice.

The regulatory authority should consider whether the offence for which an enforceable undertaking is entered into would lead to prosecution if not complied with.

It is at the discretion of the regulatory authority whether it will accept an enforceable undertaking from a person. The acceptance of an enforceable undertaking does not establish a precedent that would bind the regulatory authority to accept an enforceable undertaking in similar circumstances or to accept an enforceable undertaking from a person who has previously entered into one.

What happens after it has been accepted?

Disclosure

The regulatory authority may publish on its website an enforceable undertaking it has accepted (see Publishing information about enforcement actions).

By agreeing to, and complying with, an enforceable undertaking, proceedings cannot be brought against the person for the offence.

Changing or withdrawing acceptance of an enforceable undertaking

A person may withdraw or change the enforceable undertaking with the agreement of the regulatory authority.

The regulatory authority may withdraw its acceptance of the undertaking at any time, and the undertaking ceases to be in effect on that withdrawal.

Combining an enforceable undertaking with other compliance action

An enforceable undertaking may be combined with other action, such as:

• education about how to comply
• action to amend or suspend the person’s provider approval (sections 23, 25) or service approval (sections 55, 70), if the person is an approved provider
• an infringement notice (section 291).

Failure to comply with an enforceable undertaking

[ National Law, Section 181, 284 ] If the regulatory authority considers the person who gave the enforceable undertaking has failed to comply with any of its terms, the regulatory authority may seek an order from the relevant tribunal or court to enforce the undertaking.

The tribunal or court may order the person to:

• comply with the undertaking
• take a specific action to comply with the undertaking, or
• any other order appropriate to the circumstances.

If the tribunal or court determines that a term of the undertaking has been breached, legal action can be taken for any offence related to the breach of the undertaking or the original non-compliance.

If a regulatory authority accepted an undertaking in relation to a proposed suspension of provider approval (see section 27(a)), proposed suspension of service approval (see section 72(a)) or proposed prohibition (see section 184(3)), and the tribunal or court determines that a term of the undertaking has been breached, the regulatory may without further notice suspend the provider or service approval or give a prohibition notice.

Where a person has breached a term of an undertaking, legal action can be taken either within two (2) years of the date on which the offence is alleged to have occurred, or within six (6) months of the determination of the court or tribunal, whichever occurs last.

The regulatory authority is not required to seek an order. The regulatory authority may choose to withdraw the enforceable undertaking and address the non-compliance through other statutory action, for example, an infringement notice or prosecution. The action would be based on the original breach of the National Law or Regulations, not on failure to fulfil the enforceable undertaking.

Seeking orders from the relevant tribunal or court may be an expensive process, and there are no guarantees either an order can be sought in the timeframe required to address the breach, or that the tribunal or court will grant the order sought by the regulatory authority.

When deciding whether or not to seek an order, the regulatory authority should take into account all options available to address the breach.

3.1 Prohibition notices

What is a prohibition notice?

[ National Law, Sections 182–183 ] A prohibition notice is a written notice given to a person which states the person is prohibited from doing any of the following:

• providing education and care to children for an education and care service
• being engaged as a nominated supervisor, educator, family day care educator, employee, contractor or staff member, or being a volunteer at, an education and care service
• carrying out any other activity relating to education and care services.

Who does it apply to?

A prohibition notice may be given to any person who is in any way involved in the provision of an approved education and care service.

A prohibited notice may be given to a person in any of the following roles.

When can it be used?

[ National Law, Section 182 ] A regulatory authority may give a prohibition notice to a person in the following circumstances:

• If the regulatory authority considers there may be an unacceptable risk of harm to a child or children, if the person were allowed to remain on the education and care service premises, or to provide education and care to children (section 182(1)).
• To prohibit a person from being nominated as a nominated supervisor, if the regulatory authority considers the person is not a fit and proper person to be a nominated supervisor (section 182(3)(a)).
• To impose one or more conditions on the nomination of a nominated supervisor if the regulatory authority considers the person is a fit and proper person to be a nominated supervisor of a service, subject to those conditions (section 182(3)(b)).

The National Law does not limit the type of conditions. A regulatory authority may consider it appropriate to prohibit a person from being a nominated supervisor entirely or subject to conditions. For example, a person may be restricted by a condition that they can only work as a nominated supervisor for:

• one particular service
• a centre-based service and not a family day care service
• a service that primarily educates and cares for children over preschool age if the person’s qualification or experience is specifically related to school age children. In such cases, the regulatory authority may inform the person of the factors taken into consideration when determining whether a service primarily educates and cares for children over preschool age.

For example:

• the percentage of children who are enrolled and, if the information is available, who attend, the education and care service who are over preschool age – for example, 60 per cent is a persuasive factor, 70 per cent would be more persuasive whereas 51 per cent would be less so
• the operating hours of the service – operating mostly or solely out of school hours may indicate the service ‘primarily’ educates and cares for school age children
• service advertising – advertising education and care for school age children may indicate the service primarily provides education and care to school age children.

See Monitoring, Compliance and Enforcement – Conditions for more information about using a prohibition notice to impose a condition on a nominated supervisor.

To issue a prohibition notice under section 182(1), the regulatory authority must:

• identify the reason there may be an unacceptable risk of harm to a child or children
• have sufficient evidence to support the view there may be unacceptable risk of harm (for more information about evidence gathering, see Investigations and evidence-gathering).

The National Law does not define unacceptable risk of harm. The risk of harm may be direct (for example, causing harm to children) or indirect (for example, wilful failure to act to prevent harm to children), but it must be unacceptable.

Regulatory authorities can refer to the risk matrix when assessing this risk (see Good Regulatory Practice).

How can it be used?

Show cause notice

[ National Law, Section 183 ] Before giving a person a prohibition notice, the regulatory authority must give the person a show cause notice which:

• tells the person the regulatory authority is going to give the person a prohibition notice and the reasons for the proposed prohibition
• invites the person to make a written submission within a set time (at least 14 calendar days) about the proposed prohibition.

The purpose of a show cause notice is to give the recipient an opportunity to explain why they should not receive the prohibition. The show cause notice should clearly set out the reasons for the proposed prohibition, so the person fully understands the regulatory authority’s rationale and can respond appropriately.

Prohibition without a show cause notice

If the regulatory authority is satisfied that it is necessary, in the interests of the safety, health or wellbeing of a child or children to give the prohibition notice immediately, the regulatory authority may choose not to give a show cause notice.

Considering the response to a show cause notice

[ National Law, Section 184 ] If the regulatory authority has given a person a show cause notice and the person gives a written response in the specified timeframe, the regulatory authority must have regard to the response before deciding whether to give the person a prohibition notice.

If the regulatory authority decides not to give the person a prohibition notice, it needs to notify the person in writing.

The regulatory authority may accept an enforceable undertaking from a person instead of giving a prohibition notice.

Content of a prohibition notice

[ National Law, Section 185 ] A prohibition notice given under section 182(1) must state the person is prohibited from doing any of the following:

• providing education and care to children for an education and care service
• being engaged as an educator, family day care educator, employee, contractor or staff member of, or being a volunteer at, an education and care service
• carrying out any other activity relating to education and care services.

A prohibition notice given to a person under section 182(3) must state that either:

• the person is prohibited from being nominated as a nominated supervisor, or
• the person may only be nominated as a nominated supervisor on the condition or conditions specified in the notice.

A prohibition notice must also state the person may apply for cancellation of the notice, and how to apply for cancellation.

The prohibition notice should be accompanied by information about the approved provider’s right to an external review of the decision under section 192 of the National Law (see Reviews).

Serving a prohibition notice

A prohibition notice may be given in accordance with the requirements of the National Law about serving notices (see Serving notices).

Can it be appealed?

[ National Law, Section 192 ] The recipient of a prohibition notice can seek external review of the decision to give the prohibition notice, or a decision to refuse to cancel a prohibition notice (see Reviews).

What happens after it has been issued?

Disclosure

[ National Law, Section 272 ] The National Law and Regulations do not give regulatory authorities the power to publish information which discloses who is the subject of a prohibition notice. However, if asked by an approved provider, the regulatory authority can say whether the person named in the request is the subject of a prohibition notice.

Cancelling the notice

[ National Law & Regulations, Section 186, Regulation 189 ] The regulatory authority must cancel the prohibition notice if it is satisfied that there is not a sufficient reason for the prohibition notice to stay in force. The regulatory authority must notify the person that the prohibition notice is cancelled.

The recipient of a prohibition notice may apply to the regulatory authority to have it cancelled. The application must be in writing and include:

• the applicant’s name
• their contact details, including an address for service of the decision
• a statement setting out the grounds for the application to cancel the prohibition
• the signature of the person.

The applicant may include the following additional information in their application:

• anything the person considers relevant to the regulatory authority's decision about whether:
  • there would be an unacceptable risk of harm to children if they were to remain at the service premises, or to provide education and care to children
  • the person is a fit and proper person to be nominated as a nominated supervisor (with or without conditions)
• any change in the person's circumstances since the prohibition notice was given, or since they last applied for cancellation of the notice, that would warrant cancellation of the notice.

Failure to comply with a prohibition notice

[ National Law, Sections 187–188 ] An approved provider must not engage a person, or allow a person to volunteer, or nominate a person as a nominated supervisor, if the provider knows or ought reasonably to have known that there is a prohibition notice in place for this person or that their nomination to be a nominated supervisor would contravene a condition of the prohibition notice.

The regulatory authority can take further compliance action if a prohibited person contravenes the notice, or if a provider engages or allows a person who is subject to a prohibition notice to volunteer at the service.

The maximum penalty which may be imposed by a court for non-compliance with a prohibition notice is $20,000. The maximum penalty for approved providers who knowingly employ or engage a person who is subject to a prohibition notice is $20,000, in the case of an individual; $100,000, in any other case.

When considering whether to prosecute for employing or engaging a person who is subject to a prohibition notice, the regulatory authority may consider whether there is evidence that the approved provider:

• was aware of the prohibition notice
• intentionally or recklessly disregarded the responsibility to not employ or engage a person subject to a prohibition notice.

Giving false or misleading information about a prohibition notice

[ National Law, Section 188A ] A person who is subject to a prohibition notice must not give an approved provider false or misleading information about the content or existence of the notice. The maximum penalty which may be imposed for non-compliance is $6,000.

3.2 Direction to exclude inappropriate persons from service premises

What is a direction to exclude inappropriate persons?

[ National Law, Section 171 ] A direction to exclude an inappropriate person is an instruction to an approved provider, nominated supervisor and/or family day care educator to exclude a person from a service. The inappropriate person can be excluded for as long as the regulatory authority considers appropriate.

When can it be used?

A direction to exclude an inappropriate person can be given in relation to a person:

• who may pose a risk to the safety, health or wellbeing of any child or children being educated and cared for by the service, or
• whose behaviour or state of mind, or whose pattern of behaviour or common state of mind, is such that it would be inappropriate for him or her to be on the premises. For example, a person who is under the influence of drugs or alcohol.

The regulatory authority should be able to identify why it would be ‘inappropriate’ for this person to be at the service premises.

How can it be used?

Deciding whether to issue a direction to exclude inappropriate persons

Before issuing a direction to exclude an inappropriate person, the regulatory authority should consider all available information about the person to be excluded and judge whether this information is credible. The regulatory authority may investigate further if there is not enough information to make a decision.

The regulatory authority may choose to give the person the opportunity to make submissions about the available information and the proposed direction to exclude the person. This may be particularly appropriate in situations where a long period of exclusion is being considered. For more information about a regulatory authority’s obligations to give procedural fairness, see Good Regulatory Practice – Good decision-making.

Content of a direction to exclude inappropriate persons

A direction to exclude an inappropriate person should be in writing, except where the direction is given in the case of an emergency. In an emergency, a verbal direction may be appropriate.

The direction should identify:

• the approved provider, nominated supervisor or family day care educator to whom the direction is made
• the inappropriate person who is the subject of the direction
• the education and care service premises that the inappropriate person is to be excluded from while children are being educated and cared for at the premises
• the length of time it applies for
• any other terms of the direction.

Can it be appealed?

A decision to give a direction to exclude inappropriate persons is not a reviewable decision under the National Law.

What happens after it has been issued?

If the recipient of the direction is unable to persuade the inappropriate person to stay away from the premises, the person may need to obtain assistance from an authority, such as the police.

If the recipient does not comply with the direction, the regulatory authority may consider taking further compliance action.

The maximum penalty which may be imposed by a court for not complying is $10,000, in the case of an individual; $50,000, in any other case.

3.3 Prosecution

What is prosecution?

Prosecution involves instituting legal proceedings in a court or tribunal against a person who has allegedly committed an offence. If the offence is proven, then a fine or other form of penalty such as a suspension or prison sentence can be imposed. Prosecution aims to punish the offender, encourage future compliance and deter others from committing an offence.

Who does it apply to?

Any person who has allegedly committed an offence against the National Law can be prosecuted. Where an offence is committed by an approved provider that is a separate legal entity, such as a corporation, the entity may be prosecuted. If a body corporate commits an offence against the National Law, any person with management or control of the body corporate who failed to exercise due diligence to prevent the contravention also commits the offence. They may be subject to the penalty for an individual who commits that offence.

When can it be used?

A person may be prosecuted for any offence under the National Law, however there is no obligation to prosecute.

When deciding to prosecute for an offence against the National Law, regulatory authorities should consider the matters listed below.

How can it be used?

The process for deciding when and how to prosecute varies in each state and territory. Regulatory authority staff should consult closely with their legal team or equivalent for advice on prosecution.