Reviews under the Education and Care Services Act 2013

Version Number

1.3

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 department) in relation to undertaking reviews of decisions made un​der the Education and Care Services Act 2013 (Qld) (ECS Act).​​

Overview

​The ECS Act requires the department to approve, regulate and monitor Queensland education and care services.

Section 211 Review by Queensland Civil and Administrative Tribunal (QCAT)
There are a range of decisions that the chief executive (or delegated officer) may make which could be subject to an application for review by QCAT under section 211 of the ECS Act, including decisions to:

  • Refuse to grant a Queensland provider approval or a Queensland service approval
  • Grant a Queensland provider approval or a Queensland service approval on a condition
  • Amend a Queensland provider approval or a Queensland service approval (other than in a way the approved provider has applied for or agreed to)
  • Refuse to amend a Queensland provider approval or a Queensland service approval (in a way the approved provider has applied for)
  • Suspend a Queensland provider approval or Queensland service approval (other than on application by the approval holder)
  • Cancellation of a Queensland provider approval or Queensland service approval
  • Refuse to lift the suspension of a Queensland provider approval or a Queensland service approval
  • Confirm an original decision to revoke a service waiver
  • Confirm an original decision to give a compliance notice
  • Give a prohibition notice to a person
  • Refuse to cancel a prohibition notice in force for a person
  • Refuse an application for the transfer of a service approval to a person
  • Refuse to extend transitional approval period for a personal representative of a Queensland approved provider who died
  • Extend transitional approval period other than for the further period the personal representative (of an approved provider who has died) has applied for

Internal review
A review decision by the chief executive (or delegated officer) under section 209 or 210 of the ECS Act is an internal review. The following decisions may be subject to internal review:

  • Decision to issue a compliance notice (section 209)
  • Decision to revoke a service waiver (section 210)

The chief executive (or delegated officer) must assess applications for an internal review under sections 209 and 210 and make a review decision.

Responsibilities

Chief Executive
Under the ECS Act the chief executive of the department is responsible for approving, regulating and monitoring 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 the Education and Care Services Act 2013.

Delegated Officers
Delegated officers exercise their delegated powers in accordance with the Director-General’s delegations under the Education and Care Services Act 2013
A delegated officer who holds a delegation under section 209 and/or 210 of the ECS Act must:

  • Assess the application for review under section 209 or 210 and determine whether further information is required to decide the application
  • Request further information if required
  • Determine an application for review within the legislated timeframe
  • Ensure an applicant for 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
  • Seek legal advice from the Legal and Administrative Law Branch prior to making a decision, if considered necessary
  • 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 review of a decision under the ECS Act and assign to delegated officers.

QCAT
QCAT may invite the decision maker to reconsider the decision. The original decision maker then has the option to confirm, amend or set aside the original decision and substitute a new decision. 

If the original decision maker confirms the original decision after reconsidering it or QCAT does not refer the matter back to the original decision maker, QCAT can make its own decision about the review. QCAT may confirm or amend the original decision or set aside the original decision and substitute its own decision. It may also set aside the decision and return the matter for reconsideration to the decision-maker, with the directions the tribunal considers appropriate.

After the review of the decision, QCAT can make recommendations to the decision maker about their policies, practices and procedures to improve future decisions.

Process

​To start a review process, an applicant must either:

  • for an internal review (sections 209 or 210 of the ECS Act): apply in writing for an internal review by contacting the Department within 14 days. The applicant should do this by submitting a form ECS24 Application for internal review
    OR
  • for a review by QCAT (section 211 ECS Act) apply to QCAT by submitting the appropriate QCAT form within legislative timeframes. The applicant can do this by submitting a Form 23 - Application to review a decision to QCAT

1) Intake
Internal Review
Regulation, Assessment and Service Quality must:

a) Process the application for internal review (ECS24 Application for internal review of reviewable decision
b) Review the application for completeness
c) Refer the complete application to the relevant delegated officer for determination

2) Assessment
The delegated officer must:

a) Acknowledge receipt of the complete application
b) Assess the application by taking necessary steps as permitted by the ECS Act or QCAT
c) Record the steps taken during the assessment of the application for review

3) Decision
The delegated officer must:

a) Make a decision on the application
b) Notify the applicant of the decision, as soon as practicable after making the decision including avenues for further review and any timeframes applicable to seeking the review
c) Inform the original decision-maker of the outcome of the review.

Further guidance on the process for undertaking a review is in the 

Online Resources

Review Date

31/01/2018
Attribution CC BY

​Review
Review refers to either:

  1. an internal review under sections 209 (review of decision to give a compliance notice) or 210 (review of decision to revoke service waiver) of the ECS Act, or
  2. a review by the Queensland Civil and Administrative Tribunal section 211 of the ECS Act.

Delegated Officer
Delegated officer means an officer delegated powers to approve, regulate and monitor Queensland education and care services in accordance with the Director-General’s delegations under the Education and Care Services Act 2013.

The Queensland Civil and Administrative Tribunal (QCAT)
QCAT is an independent tribunal which is part of the justice administration division within the Department of Justice and Attorney-General. QCAT is a tribunal, not a court, but still makes decisions that are final and can be enforced.

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.

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.

Denial of procedural fairness is a ground for applying for a statutory order of review under the Judicial Review Act 1991 (Qld).