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.
National Law
Sections 15, 16
Calculating time
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.
1.2 CONSIDERING AN APPLICATION FOR FITNESS AND PROPRIETY
When reviewing the application, the regulatory authority will consider:
• if the applicant is a fit and proper person to provide an education and care service
• the applicant’s history of compliance or criminal history
• whether the applicant is bankrupt or other financial or medical matters which may limit their capacity to meet their obligations under the National Law.
There may be other circumstances in which a person is considered not to be fit and proper.
National Law
Section 12
Is the applicant a fit and proper person?
Provider approval will not be granted unless the regulatory authority is satisfied the applicant, and/or each person with management and control, is fit and proper to provide an education and care service.
The head of a government department administering an education law is taken to be a fit and proper person.
National Law
Sections 14–15
The regulatory authority may ask the applicant for more information or make enquiries to assess whether they are fit and proper. This may be in relation to their history of compliance, criminal history or any other relevant matter. If more information is requested, the time taken to provide it is not included in the period for determining the application.
Regulatory authorities may require applicants to attend an information session or interview, or undertake an NQF knowledge test.
If the regulatory authority obtains information from a source other than from the applicant and is considering making a decision that will adversely affect the applicant, principles of natural justice must be taken into account. Decisions that adversely affect a person include refusing to grant provider approval or granting provider approval subject to conditions. For more information (see Good Regulatory Practice – Good decision-making).
It is the applicant’s responsibility to identify each individual who will be in management or control (see Glossary).
For companies, this will generally include directors, and for committees and associations it will usually include executive members. Generally, a person with management or control is someone:
• who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the entity; or
• has the capacity to affect significantly the entity’s financial standing.
Therefore, while a person – such as a centre manager or nominated supervisor – may have ‘day to day charge’ of a service, they may not be a person with management or control of a provider.
National Law
Section 13
History of compliance
When determining whether a person is fit and proper, the regulatory authority must consider:
• the person’s history of compliance with any current or former education and care services law, children’s services law or education law
• any decision made under a former education and care services law, a children’s services law or an education law of any state or territory to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification issued to the person under that law.
If a person has been served with an infringement notice for an offence under the National Law and has paid the penalty, the offence cannot be taken into account when determining the person’s fitness and propriety (section 291).
The National Law does not specify a time period in relation to a person’s compliance history. When considering a person’s history of compliance the regulatory authority may consider:
• the severity of any issues and how recently they occurred
• the person’s willingness to comply, for example, whether escalation was required to resolve compliance issues. See also Good Regulatory Practice – Good decision-making.
Regulatory authorities must consider the person’s criminal history when determining whether they are fit and proper to be involved in providing an education and care service. Because working with children/vulnerable people legislation differs between states and territories, the National Law includes two options for considering a person’s criminal history, set out below.
Matters the regulatory authority must consider about criminal history
Option 1 Option 2
The regulatory authority must consider the below matters, to the extent that they may affect the person’s suitability to provide an education and care service:
• any matters included in a criminal history check, and
• if there is a working with children law:
– whether the person has a current working with children check or card, or
– whether the person is a registered teacher under an education law in their state or territory.
The regulatory authority must consider the person’s working with vulnerable people check.
In some instances, a check may show information about a person’s criminal history that is not relevant to whether they are fit and proper. Regulatory authorities must not take into account irrelevant information which may lead to an unlawful decision (see Good Regulatory Practice – Good decision-making).
TAS Working with children check legislation applies in all states and territories except for Tasmania. In Tasmania, registration to work with vulnerable people is required. See the table at the end of this section for details of screening units in each state and territory.
National Law
Section 13
Financial matters
Regulatory authorities must consider whether the applicant is bankrupt or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors.
In the case of a body corporate, the regulatory authority must consider whether the applicant is insolvent under administration or an externally-administered body corporate.
Regulatory authorities may also consider whether the applicant’s financial
circumstances may limit their capacity to meet their obligations under the National Law.
Applicant is bankrupt or insolvent
If the applicant is bankrupt or insolvent according to their declaration, the regulatory authority may consider:
• the period when bankruptcy is discharged
• past circumstances and changes of circumstances
• legal advice about whether the regulatory authority is bound by other law.
The National Personal Insolvency Index, maintained by the Australian Financial Security Authority (Australian Government), may have information about an applicant’s financial position and can be accessed at: www.afsa.gov.au.
Concerns about financial circumstances
Where there are concerns about an applicant’s financial circumstances, raised through the initial application, notification or other sources of information, the regulatory authority may ask an applicant to provide more information about their financial capacity, to determine the likelihood that they will be able to sustain ongoing operation of a service. For example, information about:
• liquidity
• cash flow
• asset sustainability
• capital structure and debt protection
• operating efficiency.
Regulatory authorities may make inquiries for more information to determine if a person is fit and proper. This includes seeking advice from an external expert, for example about the financial viability of an applicant to help analyse the applicant’s financial capacity.
Although there is a duty of confidentiality (section 273), a regulatory authority can disclose information when assessing a provider approval application.
National Law
Section 13
Medical conditions
The regulatory authority may consider whether the person has a medical condition that may limit their capacity to meet their obligations under the National Law.
Applicants are not required to provide medical information in their initial application.
However, the regulatory authority can ask for information, such as an assessment by a medical practitioner if concerned about the applicant’s capacity. The regulatory authority will detail why the assessment is needed and give a description of the role, to guide the person doing the assessment. The regulatory authority may require a written report.
Management capability
The regulatory authority may consider whether the person has the management capability to operate an education and care service in accordance with the National Law and National Regulations.
Evidence of management capability does not need to relate only to education and care services, or qualifications in education and care. Evidence of management capability may be related to any previous expertise, experience or qualification in a leadership, governance, administrative or management role in:
• a business, or
• a not-for-profit organisation, or
• a sporting or social club, or
• a community-based committee.
This may include experience gained as a volunteer.
Actions taken under Family Assistance Law
In assessing an applicant's fitness and propriety, the regulatory authority may also take into account certain actions taken under Commonwealth Family Assistance Law, including sanctions and suspensions.
National Law
Section 19