Internal Reviews under the Education and Care Services National Law

Version Number

1.2

Implementation Date

26/05/2016

Scope

All Early Years

Purpose

This procedure outlines the responsibilities of the chief executive and delegated officers of the Department of Education and Training (the Regulatory Authority) in relation to undertaking internal reviews of decisions made under the Education and Care Services National Law (National Law) as applied in the Education and Care Services National Law (Queensland) Act 2011.​​

Overview

​The National Law requires the Regulatory Authority to approve, regulate and assess early childhood education and care services in Queensland.

Section 191 Internal Review
The following decisions can be subject to an application for internal review under section 191 of the National Law:

  • Refuse to grant a provider approval, service approval or supervisor certificate.
  • Impose a condition on a provider approval, service approval or supervisor certificate.
  • Amend a provider approval, service approval or supervisor certificate (at the initiative of the Regulatory Authority).
  • Refuse to amend a provider approval, service approval or supervisor certificate.
  • Suspend a provider approval, service approval or supervisor certificate (without first issuing a Show Cause Notice).
  • Refuse to consent to a service approval transfer.
  • Revoke a service waiver.
  • Issue a compliance notice or a compliance direction (internally reviewable only).

All internally reviewable decisions under section 191 of the National Law may also be subject to external review under section 192, except in the case of a decision to issue a compliance notice or a compliance direction.

The Regulatory Authority must assess applications for internal review under section 191 by conducting a merits review. Based on the outcome of the review, the Regulatory Authority may either confirm the decision or make any other decision that the Regulatory Authority thinks appropriate.

Section 141 Internal Review
An internal review of a decision about the rating levels of an education and care service (a ‘first tier review’) may be sought by an Approved Provider under section 141 of the National Law. 

Based on the outcome of the review, the Regulatory Authority may either confirm the specific, overall or both types of rating levels.  An approved provider may apply to the Australian Children’s Education and Care Quality Authority (ACECQA), the National Authority, for a further review by a Ratings Review Panel of the rating levels confirmed or amended by the Regulatory Authority.

Responsibilities

Chief Executive
Under section 14 of the Education and Care Services National Law (Queensland) Act 2011, the chief executive of the Department of Education and Training is the Regulatory Authority and is responsible for approving, regulating and assessing education and care services in Queensland.  The chief executive’s approval, regulatory and assessment powers under the National Law are delegated to appropriately qualified officers within the Regulatory Authority as detailed in Summary of Timeframes and Delegations under the National Law.

Delegated Officers
Delegated officers approve, regulate and assess education and care services on behalf of the chief executive under the National Law. 
A delegated officer must:

  • Determine an application for internal review after all prescribed material is provided by the applicant.
  • Ensure an applicant for internal review is provided procedural fairness before a decision is made.
  • Ensure that the safety, health and wellbeing of children is the primary consideration throughout the assessment of the application for internal review.
  • Not have been the person who was involved in the assessment or investigation of the person or service to whom or which the decision relates.
  • Seek legal advice from the Legal and Administrative Law Branch prior to making a decision, if considered necessary.
  • Determine the applicant’s application for internal review within legislative timeframes.
  • Maintain accurate records of all applications and decisions.

Regulation, Assessment and Service Quality, Department of Education and Training
Regulation, Assessment and Service Quality must process all applications for internal review and assign to delegated officers.

Process

To start this process, an applicant must apply in writing for an internal review by contacting the Regulatory Authority within legislative timeframes. The applicant should do this by submitting an ACECQA form AR01 Application for internal review of a reviewable decision or SA11 Application for review of ratings by regulatory authority (service rating).

  1. Intake
    Regulation, Assessment and Service Quality must:
  2. Assessment
    The delegated officer must:
    • Acknowledge receipt of the complete application
    • Assess the application by taking necessary steps as permitted by the National Law
    • Record the steps taken during the assessment of the application for internal review
  3. Decision
    The delegated officer must:
    • Make a decision on the application
    • Inform the applicant of the decision, including avenues for further review
    • Inform the original decision-maker of the outcome of the internal review.

Detailed information on the process for undertaking an internal review under the National Law is contained in the:

Online Resources

Review Date

31/01/2018
Attribution CC BY

Internal Review
Internal review refers to either:

  1. an internal review of a decision under section 191 of the National Law, or
  2. an internal review, requested under s141 of the National Law, of the rating levels determined by the Regulatory Authority for an education and care service.

National Quality Framework
The National Quality Framework comprises the:

Authorised Officer
An Authorised Officer is a person authorised by the chief executive’s delegate under section 195 of the National Law in the Instrument of Authorisation of Authorised Officers under the Education and Care Services National Law to exercise the powers, functions, authorities and duties, conferred or imposed on Authorised Officers.

Procedural Fairness
Procedural fairness includes:

  1. the opportunity to review any relevant and adverse material which is before the decision-maker and is given the opportunity to present a case before a decision is made
  2. the decision-maker is not biased and does not have the appearance of bias
  3. the decision-maker relies upon credible evidence to make their decision.
    Denial of procedural fairness is a ground for applying for a statutory order of review under the Judicial Review Act 1991 (Qld)