Education and Care Services National Regulations

These Regulations may be cited as the Education and Care Services National Regulations.

These Regulations are made under sections 301 and 324 of the Education and Care Services National Law.

These Regulations commence on 1 January 2012.

Note—

The commencement dates for the Education and Care Services National Regulations 2012 of Western Australia were—

regulations 1 and 3, 25 July 2012;

the rest of the regulations, 1 August 2012.

In these Regulations—

ABN has the same meaning as in section 41 of the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth;

actively working towards a qualification—see regulation 10;

approved anaphylaxis management training has the meaning given by regulation 136(5);

approved certificate III level education and care qualification means—

a qualification for the education and care of children generally or children of a specified age that is approved by the National Authority and included in the list of approved certificate III level education and care qualifications published under regulation 137; or

a qualification included in the list of approved diploma level education and care qualifications or approved early childhood teaching qualifications published under regulation 137;

approved diploma level education and care qualification means—

a qualification for the education and care of children generally or children of a specified age that is approved by the National Authority and included in the list of approved diploma level education and care qualifications published under regulation 137; or

a qualification included in the list of approved early childhood teaching qualifications published under regulation 137;

approved early childhood teaching qualification means a qualification for the education and care of children generally or children of a specified age that is approved by the National Authority and included in the list of approved early childhood teaching qualifications published under regulation 137;

approved education and care qualification, in regulations 126A, 135 and 324, means—

an approved certificate III level education and care qualification; or

an approved diploma level education and care qualification; or

an approved early childhood teaching qualification;

approved emergency asthma management training has the meaning given by regulation 136(5);

approved first aid qualification has the meaning given by regulation 136(5);

approved number of places, in relation to a centre-based service, means the maximum number of children who can be educated and cared for by the service at any one time, stated on the service approval under section 52(g) of the Law;

bankruptcy declaration means a declaration made by an individual about any proceeding in bankruptcy brought against the individual including—

whether any actions have been taken against the individual under Part IV of the Bankruptcy Act 1966 of the Commonwealth; and

whether the individual has made any debt agreement under Part IX of the Bankruptcy Act 1966 of the Commonwealth; and

whether the individual has made any personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth;

building law means a law generally regulating building construction and demolition;

building permit means a permit or consent to carry out building work issued under a building law or planning and development law of a participating jurisdiction;

building practitioner means—

a person who is registered as a building surveyor, building inspector or draftsperson under a law of a participating jurisdiction; or

a person who is registered as an architect under a law of a participating jurisdiction; or

a person who is licensed as a surveyor under a law of a participating jurisdiction; or

a person who is licensed or registered as a building certifier under a law of a participating jurisdiction; or

a person who is accredited under a law of a participating jurisdiction to design buildings that will be used to provide education and care services;

centre-based service means an education and care service other than a family day care service;

certificate of final inspection means a certificate issued on completion of building work by a building practitioner under a building law or planning and development law of a participating jurisdiction;

child over preschool age means a child who—

is enrolled or registered at a school; and

attends, or in the current calendar year will attend, school in the year before grade 1 or in grade 1 or a higher grade;

child preschool age or under means a child under the age of 7 years who is not a child over preschool age;

criminal history record check means a full disclosure Australia-wide criminal history record check, issued by a police force or other authority of a State or Territory or the Commonwealth;

criminal history statement means a statement made by an individual that—

states whether the individual has been convicted in Australia of any offences relevant to a person seeking to work with children; and

includes details of those convictions;

diagnosed as at risk of anaphylaxis, in relation to a child, means a child who has been diagnosed by a registered medical practitioner as at risk of anaphylaxis;

disciplinary proceedings statement means a statement made by an individual that states—

whether the individual is or has been subject to a formal disciplinary proceeding or action under an education law of a participating jurisdiction (other than a proceeding or action that was unsuccessful or was withdrawn); and

the outcome of the proceeding or action (if known);

early childhood teacher means a person with an approved early childhood teaching qualification;

educational program means a program referred to in section 168 of the Law;

emergency, in relation to an education and care service, means an incident, situation or event where there is an imminent or severe risk to the health, safety or wellbeing of a person at the education and care service;

Examples—

1 Flood.

2 Fire.

3 A situation that requires the education and care service premises to be locked down.

excursion means an outing organised by an education and care service or family day care educator, but does not include an outing organised by an education and care service provided on a school site if—

the child or children leave the education and care service premises in the company of an educator; and

the child or children do not leave the school site;

family assistance law has the same meaning as it has in the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth;

family day care educator assistant means a person engaged by or registered with a family day care service to assist family day care educators;

financial declaration means a declaration made by a person who is not an individual indicating whether the person is or has been declared insolvent or is or has been placed under external administration;

in attendance, at a centre-based service, in relation to an early childhood teacher or a suitably qualified person—see regulation 11;

infectious disease, in relation to a participating jurisdiction, means an infectious disease that is designated under a law of that jurisdiction or by a health authority (however described) as a disease that would require a person with the disease to be excluded from an education and care service;

medication means medicine within the meaning of the Therapeutic Goods Act 1989 of the Commonwealth;

multi-storey building means a building with more than 2 storeys;

occupancy permit means a certificate or permit issued under a building law or planning and development law of a participating jurisdiction that permits a building to be occupied;

optical surveillance device has the same meaning as in section 6(1) of the Surveillance Devices Act 2004 of the Commonwealth;

overseas criminal history statement means a statement made by an individual that—

states whether the individual has been convicted outside Australia of any offences relevant to a person seeking to work with children; and

includes details of those convictions;

planning and development law means a law generally regulating the planning of the use and development of land;

planning permit means a permit, approval or consent in respect of the use or development of any land granted under a building law or a planning and development law of a participating jurisdiction;

previous service statement means a statement made by an individual that states—

whether or not the individual has held any role with an education and care service or a children’s service in the previous 3 years; and

includes the following details for each role—

the name of the service; and

the State or Territory in which the service was located; and

the nature of the role;

registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

regular outing, in relation to an education and care service, means a walk, drive or trip to and from a destination—

that the service visits regularly as part of its educational program; and

where the circumstances relevant to the risk assessment are substantially the same on each outing;

regular transportation, in relation to an education and care service, means the transportation by the service or arranged by the service (other than as part of an excursion) of a child being educated and cared for by the service, where the circumstances relevant to a risk assessment are substantially the same for each occasion on which the child is transported;

renovate, in relation to premises, means—

construction, demolition, removal or relocation of a building or other fixed structure (or part of a building or other fixed structure); or

carrying out structural alterations on a building or other fixed structure;

responsible person, in relation to an education and care service, means a person referred to in section 162(1)(a) to (c) of the Law;

safety screening clearance...

scheme commencement day means 1 January 2012;

Note—

The scheme commencement day for Western Australia was 1 August 2012—see the definition of scheme commencement day in regulation 4 of the Education and Care Services National Regulations 2012 of Western Australia.

serious incident—see regulation 12;

soil assessment means an analysis of soil conducted by an environmental consultant, environmental consulting firm, or environmental auditor for the purposes of determining—

the nature, extent and levels of contamination; and

the actual or potential risk to human health resulting from that contamination;

storey, of a building, includes the following—

the ground level;

a level of a split level;

suitably qualified person means a person who has—

a qualification for the education and care of children generally or children of a specified age that is approved by the National Authority and included in the list of approved qualifications for suitably qualified persons published under regulation 137; or

a qualification approved by the National Authority as a higher qualification for suitably qualified persons and included in the list of approved qualifications for suitably qualified persons published under regulation 137;

the Law means the Education and Care Services National Law;

vaping device has the same meaning as in section 41P of the Therapeutic Goods Act 1989 of the Commonwealth;

vaping substance has the same meaning as in section 41P of the Therapeutic Goods Act 1989 of the Commonwealth;

working directly with children—see regulation 13;

working with children check number has the same meaning as it has in the Child Protection (Working with Children) Act 2012 of New South Wales;

working with vulnerable people check means a check of a person under a working with vulnerable people law of a participating jurisdiction;

working with vulnerable people registration means—

in relation to the Australian Capital Territory—a registration issued to a person under the Working with Vulnerable People (Background Checking) Act 2011 of the Australian Capital Territory allowing the person to be engaged in an education and care service; or

in relation to Tasmania—a registration issued to a person under the Registration to Work With Vulnerable People Act 2013 of Tasmania allowing the person to be engaged in childcare services.

A requirement under these Regulations applying in relation to a stated number of children applies each time there is the stated number of children or a part of the stated number.

Example—

There are 30 children aged 36 months or over (not including children over preschool age) at a centre-based service. Regulation 123(1)(c) requires 1 educator for each 11 children. In this case 3 educators would be required.

Unless the context otherwise requires, a reference in these Regulations to a Part by a number is a reference to the Part, designated by that number, of these Regulations.

Guides to Chapters do not form part of these Regulations.

For the purposes of paragraph (g) of the definition of education and care service in section 5(1) of the Law, the following classes of disability service are excluded from the definition of education and care service—

a service that is a designated service within the meaning of the Disability Services Act 1993 of New South Wales;

services that are disability services under the Disability Services Act 2006 of Queensland;

a disability service provided by a disability service provider within the meaning of the Disability Act 2006 of Victoria;

a service providing education and care to a child with a disability that is funded by a grant of financial assistance approved under the Disability Services Act 1993 of Western Australia;

an early childhood intervention service provided for the principal purpose of providing intervention or support for children with a disability, additional needs or developmental delay.

For the purposes of paragraph (h) of the definition of education and care service in section 5(1) of the Law, the following classes of service are excluded from the definition of education and care service—

a service providing education and care to children in premises where the majority of the children usually reside and the educator does not reside;

a service providing education and care to children in the service provider’s residence other than as part of a service that is delivered through the use of 2 or more educators to provide education and care to children in residences;

Note—

Paragraph (b) does not apply in Western Australia—see regulation 5(2)(b) of the Education and Care Services National Regulations 2012 of Western Australia.

a service providing education and care to children primarily on an ad hoc or casual basis where—

the service does not usually offer full-time or all day education and care to children on an ongoing basis; and

most of the children provided with education and care are preschool age or under;

Note—

This form of care is commonly referred to as occasional care.

a service provided by a hotel or resort to provide education and care to children who are temporary guests of the hotel or resort;

Example—

A ski resort that offers child-minding services for children staying at the resort.

a service providing education and care to a child on an ad hoc basis at premises where the parent of, or other person responsible for, the child is—

a guest, visitor or patron; and

readily available at all times that the child is being educated and cared for;

Examples—

1 A service that provides education and care to a child at a conference attended by the parent.

2 A service that provides education and care to a child at a sports and leisure centre or shopping centre where the parent is a patron.

a service that provides education and care to children where the education and care is primarily provided or shared by parents or family members of the children and a parent or family member is readily available for the period that the child is educated and cared for and retains responsibility for the child;

a secondary school or college providing education and care to the children of students attending the school or college where a parent of each child retains responsibility for the child while the child is being educated and cared for;

a service providing education and care primarily to children preschool age or under that transports its equipment and materials or staff to one or more locations on each occasion that the service is provided;

Note—

This form of care is commonly called a mobile service.

a service that provides education and care during school holidays for a total of not more than 28 days in a calendar year;

a short term program provided by and at a school to children who will attend the school in the following year, for the purpose of orienting children to the school;

a service providing education and care if, on 30 June 2018—

the service provider was, in respect of the service, in receipt of funding under the Budget Based Funded program administered by the Department of Education and Training of the Commonwealth; and

the service was not approved for the purposes of the family assistance law;

a service providing education and care if, on 30 June 2018—

the service provider was, in respect of the service, in receipt of funding under the Indigenous Advancement Strategy administered by the Department of Prime Minister and Cabinet of the Commonwealth; and

the service was not approved for the purposes of the family assistance law; and

the service was not regulated under the National Quality Framework;

a licensed playschool under the Children and Young People Act 2008 of the Australian Capital Territory;

a stand alone service under a children’s services law of Queensland;

a service funded by the Queensland Government to provide limited hours care;

a South Australian Government operated Playcentre;

a service licensed as a Centre Based Care Class 4 or Centre Based Care Class 5 service under the Child Care Act 2001 of Tasmania;

an approved children’s service under the Children’s Services Act 1996 of Victoria that, immediately before 17 May 2020, was a licensed limited hours Type 2 service under that Act;

a service funded by the government department principally administering the Children and Community Services Act 2004 of Western Australia for the purposes of preventive, support and recreation services for at risk children.

For the purposes of the definition of eligible association in section 5(1) of the Law, a parents and citizens association formed under Chapter 7 of the Education (General Provisions) Act 2006 of Queensland is a prescribed association.

For the purposes of paragraph (d) of the definition of national education and care services quality framework in section 5(1) of the Law, the prescribed rating system is set out in Parts 3.2 to 3.5.

For the purposes of the definition of National Quality Standard in section 5(1) of the Law, the prescribed National Quality Standard is set out in Schedule 1.

For the purposes of paragraph (e) of the definition of person in section 5(1) of the Law, the following are prescribed entities—

the Catholic Education Commission of Western Australia;

a body politic.

For the purposes of the definition of approval in principle criteria in section 5(1) of the Law, the following regulations are prescribed—

regulation 109(b);

regulation 110(a) and (b);

regulation 112(4);

regulation 115.

For the purposes of these Regulations, an educator is actively working towards a qualification if the educator—

is enrolled in the course for the qualification; and

provides the approved provider with documentary evidence from the provider of the course that—

the educator has commenced the course; and

the educator is making satisfactory progress towards completion of the course; and

the educator is meeting the requirements for maintaining the enrolment; and

in the case of an approved diploma level education and care qualification, the educator—

holds an approved certificate III level education and care qualification; or

has completed the units of study in an approved certificate III level education and care qualification determined by the National Authority; or

has completed the percentage of total units of study required for completion of an approved early childhood teaching qualification determined by the National Authority.