Complaints Management and Compliance under the Education and Care Services Act 2013

Version Number

2.0

Implementation Date

4/12/2014

Scope

All Early Years

Purpose

​This procedure relates to the management of complaints received about Queensland education and care services and the functions of investigating, monitoring and enforcement of compliance with the Education and Care Services Act 2013 (ECS Act) and Education and Care Services Regulation 2013 (ECS Regulation).

Overview

​The ECS Act requires the chief executive to approve Queensland education and care services and regulate the provision of education and care by those services. As part of the role of regulating services the chief executive requires the department to:

  • receive and investigate complaints arising under the ECS Act
  • receive and investigate notifications and information about non-compliance under the ECS Act
  • oversee the responsibilities of authorised officers to investigate, monitor and enforce compliance with the ECS Act
  • determine appropriate department responses to investigations.

Authorised officers’ investigation and monitoring activities include collection of evidence and provision of guidance to an approved provider, targeted campaigns, compliance visits, unscheduled visits and scheduled visits.
Compliance and enforcement actions are used after non-compliance with the ECS Act and ECS Regulation has been substantiated by authorised officers. Compliance and enforcement actions are informed by a risk-based methodology, where the most serious non-compliance will attract the most severe compliance and enforcement action.  Authorised officers and delegated officers are empowered to pursue compliance and enforcement action under the ECS Act.

Responsibilities

Chief Executive
Under the ECS Act the chief executive of the department is responsible for approving and regulating Queensland education and care services. The chief executive’s powers under the ECS Act are delegated to appropriately qualified officers within the department as detailed in the Director-General’s Delegations under Education and Care Services Act 2013.

Delegated and Authorised Officers
Delegated and Authorised officers must:

  • record, assess and respond to complaints, notifications and/or information received about non-compliance
  • refer complaints to the Queensland Police Service – Child Protection Investigation Unit, as appropriate
  • refer complainants to other agencies to pursue their complaint, as appropriate
  • ensure procedural fairness
  • seek legal advice from the Legal and Administrative Law Branch as necessary prior to making a decision to pursue compliance and enforcement action or prosecutorial action
  • ensure that the safety, health and wellbeing of children is the primary consideration when pursuing compliance and enforcement action or prosecutorial action
  • maintain accurate records of all actions and decisions
  • decide the appropriate decision to be made, or action to be taken (or not taken) after considering all material relevant to the complaint, notification or suspected non-compliance
  • communicate decision outcomes to persons affected by the department response

Authorised Officers
Under Section 137 of the ECS Act Authorised Officers must also:

  • investigate, monitor and enforce compliance with the Act;
  • investigate or monitor whether an occasion has arisen for the exercise of powers under the Act; and
  • facilitate the exercise of powers under the Act.

Regulation, Assessment and Service Quality
Regulation, Assessment and Service Quality must provide information, assistance, advice and training to Authorised Officers and delegated officers.

Process

1) Receive information
Authorised officers must:

  • Determine if the information received is within the scope of the ECS Act
  • Assess the risk associated with the information using a risk-based methodology in order to prioritise a response

2) Investigate
Authorised Officers must:

  • Investigate  the circumstances identified in the information received using the powers available to authorised officers under the ECS Act to gather evidence in order to substantiate or not substantiate the information and make findings of fact.
  • Record actions taken in the investigation and the evidence uncovered in the investigation.
  • Assess the evidence in order to determine if
    • there has been non-compliance with the ECS Act.
      And/or
    • a child’s safety, health or wellbeing has been or is being compromised at a Queensland education and care service.

3) Act
Authorised and delegated officers must:

  • Decide on an appropriate department response which may or may not include compliance and enforcement action, or prosecutorial action
  • Notify Regulation, Assessment and Service Quality of serious instances of non-compliance with the ECS Act
  • Inform the persons affected by the department response of the outcome of the investigation to the extent permitted by Law including any avenues for review of decisions (see the procedure for Reviews under the Education and Care Services Act 2013).

Online Resources

Review Date

31/01/2015
Attribution CC BY

​Information
Information includes:

  • A complaint about an approved provider, a Queensland education and care service, an educator or any person involved in the provision of an education and care service.
  • A notification from an approved provider in accordance with section 127(1).
  • Any information which suggests that a Queensland education and care service is not complying with a provision of the ECS Act.

Department response
The department response is the decision or action taken by delegated officers in response to information received and investigated and may include:

  • If information received is unsubstantiated – the department response is to take no action
  • If information received is substantiated – the department response may include compliance and enforcement action

Compliance and enforcement action
Compliance and enforcement action is action pursued by the department following an investigation and may include:

  • additional monitoring of an education and care service
  • advice and guidance provided to a Queensland approved provider
  • meetings or discussions with a Queensland approved provider
  • a Compliance Caution Letter sent to a Queensland approved provider
  • amendment and suspension of approvals for the purposes of monitoring and enforcement
  • cancellation of approvals
  • Section 97 Revocation of a service waiver
  • Section 105 Revocation of a temporary waiver
  • Section 190 Authorised Officer may give a notice to stand alone carer directing the carer not to provide education and care in the home.
  • Section 193 and 194 Compliance Notices
  • Section 195 Emergency Action Notices
  • Section 196 Prohibition Notices
  • Section 229 Prosecution of offences

Review of decisions
Sections 209, 210 and 211 of the ECS Act outline what decisions may be subject to review.  For further detail, see the procedure, Reviews under the Education and Care Services Act 2013

Publication of enforcement action
Section 204 of the ECS Act outlines the details of enforcement actions that may be published by the department.

Notification
For the purposes of this procedure, a notification is a:

Authorised Officer
Authorised officer means an Authorised Officer under Section 195 of the Education and Care Services National Law (Queensland) (Section 138 ECS Act) authorised to exercise the powers, functions, authorities and duties, conferred or imposed on Authorised Officers.

Delegated Officer
Delegated officer means any officer within the department that holds a delegation under Section 240 of the ECS Act.

Queensland Education and Care Service
Queensland Education and Care Service means a service that is providing regulated education and care under the ECS Act for children under 13 years of age and that is not one of the service types listed under Section 8 of the ECS Act.

Procedural Fairness
Procedural fairness means:

  1. the opportunity to review any relevant and adverse material which is before the decision-maker and 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.