On 16 June 2017, the NSW Civil and Administrative Tribunal handed down its decision in the matter of  CYD v Secretary of the Department of Education. The matter related to a review of a decision by the NSW Department of Education to cancel the service approval of a family day care service based in Sydney’s south-west. This is the first decision by the Tribunal  and the reasoning will set a precedent for all future matters.

BIRCHGROVE LEGAL acted for the family day care operator. The decision can be accessed here.


The Department alleged breaches by the service, including:

1. A failure to keep a register of the kind contemplated by regulation 153 and section 269 of the National Law.

2. A failure for educators to have completed the First Aid qualifications and training required by regulation 136 (3) of the regulations.

3. A failure for educators to keep an adequate record of attendance.

4. A breach of regulation 100 requiring an approved provider to ensure a risk assessment is carried out in accordance with clause 101 before an authorisation is sought for an excursion under clause 102 of the regulations.

5. A breach of clause 117 of the regulations in failing to meet the requirements regarding glass in educator’s residence areas, such as windows and doors.

The Response by the service

The service challenged some of the alleged breaches, but also accepted that it had breached a number of the regulations. Where breaches were accepted, the service relied on extensive evidence to show that:

1. The breach had been rectified;

2. The service had put in place policies and procedures to ensure the breach would not re-occur; and

3. It would continue to monitor implementation in order to ensure that the changes were put into effect.


After two days of hearing, the Tribunal ultimately accepted the submissions by the service.

The Tribunal accepted that:

1. The service had rectified the areas of non-compliance;

2. There was no deliberate non-compliance by the service; and

3. There were no complaints by children or parents;

In the above circumstances, the Tribunal found that the correct and preferable decision was  that the decision of the Regulatory Authority was to be set aside.



Being pro-active is always the best remedy. Services should consider self-assessment of their processes, or Birchgrove Legal can be engaged to carry out an audit and assessment of the policies, procedures and compliance with the National Law.

If your service has received a show-cause notice, or a cancellation, you should contact our office to discuss the next steps. We will assist you in putting in place an action plan to:

1. identify all areas of non-compliance; and

2. put into place strategies to address all breaches.

If a decision to cancel has been made by the NSW Department, we may be able to apply for a stay of the decision.  If granted, this would mean that the service could continue to operate until the Tribunal makes its decision. A recent decision in which we were able to obtain a stay  can be accessed here.


Have any questions about the new system, then get in touch. Birchgrove Legal has developed an expertise in servicing the education industry and can assist with a broad range of matters.

Hamza Alameddine | Principal Solicitor

Office: + 61 2 9018 1067 M: +61 424 747 799     W:

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