COMPARISON BETWEEN THE CHILDREN’S SERVICES REGULATION 2004
AND THE EDUCATION AND CARE SERVICES NATIONAL REGULATIONS
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Prescriptive vs Outcomes Based Approach GENERAL COMMENTS
A key difference between the Children’s Services Regulation 2004 (NSW) (NSW Regulation) and the Education and Care Services National Regulations (National Regulations) is that the NSW Regulation is very prescriptive and include specific details about what a service must do to comply, whereas the National Regulations are more ‘outcomes based’ in that they require that an outcome be met without necessarily specifying how a service should do so. This difference in approach means that many provisions in the NSW Regulation do not appear to have a direct counterpart in the National Regulations. However, in most cases the specific requirement is actually encompassed within a more general requirement in the National Regulations. For example, the NSW Regulation specifies the temperature at which hot water in centre-based children’s services should be regulated, whereas the Children (Education and Care Services) National Law (NSW) (National Law) and the National Regulations have only a general requirement that approved providers etc take reasonable precautions to protect children from hazards likely to cause injury. The practical effect should be the same, but the outcome focus allows services to adopt measures relevant to their specific circumstances.
Not all of the regulatory requirements in the National Regulations are offence provisions. This is different from the NSW Regulation which provides that all provisions in Part 3, 4, 5, 6 and 7 of the NSW Regulation (facilities and equipment requirements, staffing requirements, child number requirements, operational requirements and administrative requirements) are prescribed conditions of a children’s service approval. The Children and Young Persons (Care and Protection) Act 1998 (NSW Act) in turn provides that contravention of an approval condition is an offence with a maximum penalty of $22,000.
Regulation of Outside School Hours Care
A substantive difference between the NSW Regulation and the National Regulations is that ‘outside school hours care services’ are now generally regulated by the National Law (subject to the exemptions in regulations 251 and 287 of the National Regulations). Previously they were only regulated to the extent of clause 62 of the NSW Regulation.
Administration and private consultation space
Physical Facilities and Equipment
30(1)(a) 111 The National Regulations allow one or more areas to be used to satisfy this requirement. Otherwise the requirement is the same.
Area for staff respite 30(1)(b) No equivalent No longer required under the National Regulations. Area for children under 2
years to sleep
30(1)(c) No equivalent No longer required under the National Regulations.
Indoor play space 30(2), (3) 125, Schedule 2
285, 286, 287
Although the area of indoor space required per child remains the same under the National Regulations (3.25m2), some of the details of how the space is to be calculated are slightly different.
In contrast with the NSW Regulation, a kitchen may be counted as “unencumbered” space under the National Regulations if it is primarily used by children as part of the educational program.
The National Regulations also allow a verandah to be included in a service’s indoor space calculation - with the consent of the Regulatory Authority - as long as the area is not also included in outdoor space calculation. This is not allowed for under the NSW Regulation. Other areas excluded from the calculation of “unencumbered” space are described slightly differently. However, the difference in terminology probably makes little practical
difference. The differences include the following:
• Whereas the National Regulations specifically exclude nappy change areas, areas for preparing bottles and (broadly) “hygiene facilities”, the NSW Regulation simply excludes space that is not “exclusively for the use of children”. In all but marginal cases (e.g. hygiene facilities which are intended solely for children), this should have the same effect.
• There may be some areas which are “exclusively for the use of children” – e.g. a narrow play area between a service’s building and the premises boundary – but which will not be classified as “suitable for children” under the National Regulations.
are excluded under the National Regulations, this may be narrower than at first appears.
Exemptions to these requirements in the NSW Regulation savings and transitional provisions persist in the National Regulations, with some minor modifications (e.g.
provision for expiry of the exemption where the premises is renovated or where the service is no longer provided by a school on a school site). An additional exemption has been included in the National Regulations for services not previously regulated by the NSW Regulation (i.e. outside school hours care services).
Outdoor play space 30(4), (5), (6), (7) and (8)
125, Schedule 2
108 285, 286
The area of space required per child remains the same under the National Regulations (7m2), but some of the details of how the space is calculated are slightly different. With respect to general exclusions:
• The NSW Regulation requires space to be “useable outdoor play space” that is “exclusively for the use of children” without any fixed items that prevent children from using the space or obstruct supervision.
• Under the National Regulations, space must be “unencumbered” and any space “that is not suitable for children” is excluded.
The National Regulations also specifically exclude pathways and thoroughfares (unless used as part of the program) and storage areas and sheds . However, these are probably already excluded under the NSW Regulation either because they are not “useable outdoor play space” or because there is a fixed item that prevents children’s use of the space or obstructs supervision.
The Regulatory Authority under the National Regulations has a broader discretion to permit indoor space to be calculated as outdoor space (provided the space is not also included in indoor space calculations). However, it is still likely to consider whether outdoor space could be provided and to require the indoor space to be designed and equipped to permit children to participate in activities that promote gross motor skills.
Under the National Regulations, the Regulatory Authority does not have a direct power to impose conditions on a consent to include indoor space as outdoor space, but does have a general power under the National Law to impose conditions on service approval. An alternative means of granting conditional approval could be through a service waiver, although a service waiver may only be granted following an application by the approved provider.
Exemptions to these requirements in the NSW Regulation savings and transitional provisions persist in the National Regulations, with some minor modifications (e.g.
provision for expiry of the exemption where the premises is renovated or where the service is no longer provided by a school on a school site).
Outdoor play spaces - natural environment
No equivalent 113 The National Regulations require the approved provider of a centre-based service to ensure that outdoor spaces are set up in such a way that they allow children to explore and experience the natural environment: for example, by including natural features such as trees, vegetation and sand. The NSW Regulation does not include this requirement.
Shade 30(6) 114
Both the NSW Regulation and the National Regulations require “adequate” shade. Although the National Regulations no longer mandate compliance with The Shade
Handbook, this publication will still be relevant to determining what shade is “adequate” in
The National Regulations include some transitional and savings provisions which exempt certain types of services from this requirement in certain circumstances:
• Outside school hours care services in NSW that existed before 1 January 2012 are not required to comply with this requirement until the premises is renovated or the service approval is transferred (however there will be an impact on the service’s rating after 31 December 2015 if a service premises still doesn’t comply with this requirement at that date).
• A school-based service that delivers a preschool program in a composite class is not required to comply with the National Regulations shade requirement.
Laundry facilities 31(1) and (3) 106 77
Unlike the NSW Regulation, the National Regulations do not require all centre-based services providing care to children under 3 years to have laundry facilities available on the premises.
All services must simply have appropriate, adequate and safe (a) laundry facilities, (b) access to laundry facilities or
In practice, “appropriate, adequate and safe” facilities will need to reflect the ages and number of children, and “health and hygiene” practices required under other provisions.
(c) other arrangements for dealing with soiled clothing (which might include hygienic facilities for storage).
s167 National Law
located elsewhere than next to food prep facilities or nappy change areas).
However, general requirements relating to health and hygiene and protection from hazards will be relevant. These general requirements are offence provisions and may be the
subject of compliance directions. Food preparation and storage
areas 33(1), (2), (3), (4) No specific equivalent 78, 77 s167 National Law
The National Regulations are more flexible than the NSW Regulation in relation to food preparation facilities. For example, although the National Regulations require food and beverages “appropriate to the needs of each child” to be offered on a regular basis throughout the day, certain services (e.g. services only providing care to school children for short periods of time) may be able to do this without providing food preparation and storage facilities. Further, a barrier to the kitchen may not be necessary, depending on the age of the children being cared for.
General requirements that a service implement safe food handling, preparation and
storage practices, protect children from harm and hazards likely to cause injury and ensure adequate supervision at all times must still be met and will require many if not all of the matters set out in clause 33 of the NSW Regulation to be met. Each of these general requirements is an offence provision and may be the subject of compliance directions. Area for the preparation of
33(5), (6) No equivalent 77
The National Regulations do not require a separate bottle preparation area.
If a service has a bottle preparation area, its location must be consistent with adequate health and hygiene practices.
Toilet, hand-washing, drying and bathing facilities
There is a very slight difference in terminology, but the requirements are effectively the same in both sets of Regulations.
In addition to NSW Regulation requirements that the facilities be safe and age appropriate, the National Regulations require them to be appropriate to the developmental stages of the children being cared for, adequate in number and conveniently accessible by the children.
While premises are no longer specifically required to have products and equipment for cleaning the toilet and washing facilities, adequate health and hygiene practices will dictate that the facilities must be kept clean.
Nappy changing facilities 35 112
106, 77 The National Regulations are less prescriptive and rely on an outcome based requirement that a service provide “adequate and appropriate hygienic facilities” for nappy changing, including at least 1 properly constructed nappy changing bench if any child is under 3 years of age.
Other requirements in clause 35 will generally be met through compliance with the general health and hygiene requirements in the National Regulations. Adjacent age appropriate washing facilities with temperature regulated hot and cold running water and a sluice or contaminated waste disposal unit are no longer specifically required but may fall into this category.
106, 77 The nappy change facilities requirements for family day care services are dealt with separately in the National Regulations because it will be the approved provider’s
responsibility to assess each family day care residence or venue to determine whether it has suitable nappy change arrangements to ensure the health, safety and wellbeing of children. Although the detailed nappy change facility requirements (discussed above) will no longer be directly applicable to family day care services under the National Law, the general requirements with respect to health and hygiene practices and laundry facilities do apply to family day care services.
Family day care services
Sleeping facilities 36 No specific equivalent 81, 77, 155(e) s167 National Law
The National Regulations do not include a specific provision about sleeping facilities. However some other requirements in the National Regulations are relevant:
• The requirement in the National Regulations that the sleep and rest needs of children are met will require adequate sleeping facilities to be provided at the premises. • The general requirement that adequate health and hygiene practices be implemented
will require similar standards of cleanliness to those under the NSW Regulation. • The NSW Regulation requirement for culturally appropriate bedding is addressed
through a general requirement to take account of a child’s family and cultural values. NSW Regulation requirements that children not share beds and that no child who is 7 or above may sleep in the same room as another child of the opposite sex and that adults generally not sleep in the same room as children are not prescribed by the National
educators have a general obligation under the National Law to ensure that reasonable precautions are taken to protect children from harm and hazards.
Nor are the specific requirements relating to the design and placement of beds, or compliance with Australian Standards relating to cots under the National Regulations. However, in practice services would be expected to use Australian Standard compliant cots.
Storage facilities 37 No specific equivalent s167 National Law
The National Regulations do not specifically regulate storage facilities.
However the requirement in section 167 of the National Law that reasonable precautions be taken to protect children from harm and any hazards requires that certain items be stored in places inaccessible to children.
Swimming pools 38
125, Sch 2
ss 165, 167 National Law
The NSW Regulation prohibition on having a swimming pool at a centre-based service unless the pool existed before 6 November 1996 continues to apply to centre-based services for children preschool age or under. School based services with a swimming pool that predates 1 July 2008 continue to be exempt from this prohibition.
The additional NSW Regulation requirement that any such pool at a centre-based service be fenced in accordance with the Swimming Pools Act 1992 (NSW) will no longer apply (unless that Act already applies because the premises has a residence on it). However, the general requirement to protect children from harm and hazards will mean that a pool fence is required.
Family day care services continue to be allowed to have pools, subject to pool fencing requirements.
Telephone 39 98 The National Regulations require services to have a telephone or communication equipment that enables immediate communication with emergency services and
The National Regulations are more flexible in relation to the type of communication equipment that can be used.
with parents (the NSW Regulation only refers to emergency services). In practice this
requirement means that a pre-paid telephone must always have sufficient credit to enable normal calls to be made, and not just emergency calls.
Development and play equipment
40 103, 105
Although the NSW Regulation is more specific in relation to what aspects of play equipment might constitute a hazard, the National Law continues to require services to ensure that play equipment does not present a hazard. Both sets of Regulations also
Law require equipment to be safe and in good repair.
The National Regulations continue to require services to provide children with access to materials and equipment suitable to their development and needs.
There is no longer a specific requirement that the materials and equipment be
“representative of a diverse range of cultures” or that there be a balance of indoor and outdoor equipment, but the requirement that the materials and equipment be “suitable for the education and care of [each] child” will have a similar effect.
The NSW Regulation specifically requires compliance with Australian Standards in relation surfacing under or around play equipment in a centre-based service. This is not
specifically required by the National Regulations but in practice services would be expected to use Australian Standard compliant surfacing.
First aid kits 41 89 Centre-based services will now need to have an appropriate number of first aid kits, having regard to the number of children attending, whereas the NSW Regulation only requires one (well stocked) kit at each premises.
Conditions relating to storage of and accessibility to first aid kits are slightly different: • The National Regulations do not specifically require first aid kits to be stored in a place
that is inaccessible to children (given that an older child might need to be able to access a first aid kit in an emergency situation at an outside school hours care
service). However, the general requirement that children be protected from harm and hazards will dictate that the first aid kit is kept in a place that is inaccessible to younger children.
• The National Regulations require that the first aid kit be easily recognisable and readily accessible to adults generally (rather than just accessible to the staff/family day carer who know where the kit is).
In contrast to the NSW Regulation, the National Regulations do not specifically require adult and child cardio-pulmonary resuscitation charts to be prominently displayed. Fire safety equipment 42 No specific
equivalent s167 National Law
There is no requirement in the National Regulations relating to fire safety equipment. These matters are already governed by other NSW legislation for some types of buildings. For example, the Environmental Planning and Assessment Regulation 2000 (NSW) contains some requirements with respect to smoke alarms and other fire protection
However, approved providers, nominated supervisors and family day care educators also have a general obligation under the National Law to ensure that reasonable precautions are taken to protect children from harm and hazards.
Ventilation, light and heating 43 110
s167 National Law
The NSW Regulation and the National Regulations are essentially the same. Both require appropriate ventilation. Although the NSW Regulation only requires “access to natural light” and the National Regulations require “adequate natural light”, services are in practice required to provide adequate natural light under the NSW Regulation. Similarly, the new requirement that the premises be “maintained at a temperature that ensures the safety and wellbeing of children” in place of the reference to “heating” in the NSW Regulation is unlikely to lead to any practical difference from a regulatory perspective.
NSW Regulation clauses 43(2), (3) and (4) are covered by the health and hazards offence provision in section 167 of the National Law.
Hot water 44 No specific
equivalent ss 165, 167 National Law
Although the National Regulations do not prescribe the temperature at which hot water should be regulated or specifically refer to supervision in the context of hot water, each of the requirements set out in clause 44 of the NSW Regulation will continue to apply under the National Law offence provisions requiring children to be protected from harm and hazards and adequately supervised.
Fencing 45 104
248, 251 103
s167 National Law
The primary requirement for fencing of outdoor spaces is essentially the same under the NSW Regulation and the National Regulations.
In contrast to the NSW Regulation, the National Regulations do not specifically:
• require the design and height of the fence or gate to inhibit or impede intruders from entering the premises (however, the National Regulations require premises to be enclosed by a fence or barrier (including any gate) that is of a height and design that children preschool age or under cannot go through, over or under it);
• require any side of a stairway, ramp, corridor, hallway or external balcony that is not abutting a wall to be enclosed to prevent a child being trapped or falling through; • require all gates leading to or from the premises of a children’s service to be designed
so as to prevent children from entering or leaving the premises unsupervised (but see above); or
• provide for the Director-General or the authorised supervisor of a family day care service to give notice in writing to a service/family day carer requiring them to install
child-proof barriers at the top and bottom of stairs.
However, these elements are likely to continue to be relevant to the National Law provisions requiring children to be protected from harm and hazards.
Note that Regulation 104 does not apply to a centre-based service that primarily provides education and care to children over preschool age.
The National Regulations include some transitional and savings provisions which exempt certain types of services from the National Regulations fencing requirement in certain circumstances:
• A school-based service that delivers a preschool program in a composite class is not required to comply with the National Regulations fencing requirement.
• Outside school hours care services in NSW that existed before 1 January 2012 are not required to comply with this requirement until the premises is renovated or the service approval is transferred (however, there will be an impact on the service’s rating after 31 December 2015 if a service premises still doesn’t comply with this requirement). Glass 46 117 Requirements applicable to glass remain the same.
Although regulation 117 of the National Regulations applies only to family day care
services, glass in centre-based services will continue to be regulated by the Building Code
of Australia such that the requirements are unchanged.
Cleanliness, maintenance and repair
s167 National Law
Specific requirements relating to cleanliness, maintenance and repair (including references to fumigation, vermin and pests, access to power points, garbage and rubble) are not included in the National Regulations, but will apply by virtue of general requirements in the National Regulations that the premises be safe, clean and in good repair, that adequate health and hygiene practices be implemented and that precautions be taken to protect children from hazards.
Safe environment 48 No equivalent The National Regulations do not specifically require compliance with the Occupational
Health and Safety Act 2000. However, the obligation to comply arises anyway under that
Repair of premises 49 103
The Regulatory Authority’s power to issue a compliance direction requiring certain steps to be taken by an approved provider to ensure compliance with regulation 103 of the National
Law good repair) is much the same as the Director-General’s power to direct under clause 49 of the NSW Regulation.
The key difference is that clause 49 of the NSW Regulation requires only “best
endeavours” where the licensee is not the owner or directly responsible for maintenance of the premises, whereas the National Law and Regulations do not distinguish between situations where the provider is the owner or lessee of the premises.
Premises designed to facilitate supervision No specific equivalent 66 115 248, 249, 251, 286
The National Regulations include an additional requirement that the approved provider of a centre-based service ensure that the premises are designed and maintained in a way that facilitates supervision of children (whilst maintaining the rights and dignity of the children). Although the NSW Regulation requires children to be supervised (as the National Law also does, in section 165), there is no requirement specifically relating to the design of the premises.
However, the National Regulations include broad transitional and savings provisions that exempt existing services from having to comply with this new requirement until certain circumstances arise. Centre-based services approved under the former NSW Law prior to 1 January 2012 are exempt from the requirement until such time as the service premises are renovated or the service approval is transferred. However there will be an impact on the service’s rating after 31 December 2015 if a service premises still doesn’t comply with this requirement at that date.
NSW-specific transitional exemption provisions are also included in the National
Regulations in relation to school-based children’s services operating before 1 July 2008 and outside school hours care services operating before 1 January 2012.
School-based services that deliver a preschool program in a composite class are not required to comply this requirement at any time (i.e. no time or other restriction). Family day care facilities and
50 No specific
The National Regulations do not make a family day carer directly responsible for meeting physical requirements at their home. Rather, the obligation is placed on the approved provider of the family day care service. Hence, the National Regulations require the approved provider of a family day care service to regularly conduct an assessment of family day care residences and approved family day care venues. Regulation 116 sets out the matters that the approved provider must consider.
The fitness and propriety of staff at centre-based services Staffing 51(1), (2) 118 No specific equivalent 146(d), 147(d) 126, 168, 170
The NSW Regulation requires approved providers of a centre-based service to be satisfied, prior to the employment of a primary contact staff member, that s/he is a fit and proper person. In considering the fitness and propriety of a person, a licensee must consider employment screening of the person (Part 7 of the Commission for Children and
Young People Act 1998), whether the person has been convicted of a serious sex offence
(Child Protection (Prohibited Employment) Act 1998) and whether the person has the knowledge and attributes set out in clause 51(2).
There is also a separate obligation in the NSW Regulation on licensees to conduct a “probity check” on all persons who will be involved in the service (including volunteers), except where employment screening has already been conducted.
Both obligations arise prior to the employment/engagement of the person and are not on-going.
The National Regulations do not include specific obligations on approved providers in this form. However, many of the elements of the fitness and propriety test will still arise under the National Law. For example, certain provisions of the National Regulations imply that approved providers (at least in jurisdictions with a working with children law, such as NSW) must conduct a working with children check or ensure that one is conducted for each staff member and nominated supervisor of a service. This is implied in the requirement that services keep a staff record that includes the identifying number of a current working with children check conducted under that law for each staff member and nominated supervisor. In addition, there are obligations to conduct working with children checks under the
Commission for Children and Young People Act 1998.
With respect to the knowledge and attributes specified in clause 51(2) of the NSW Regulation, many educators will in practice have them by virtue of their qualifications. Age restriction for primary
contact staff/educators at centre-based services
51(3) 120 A licensee is prohibited under the NSW Regulation from employing a person as a member of the primary contact staff if they are under 18 years of age.
In contrast, the National Law does not prohibit the employment of a person under 18 years of age as an educator. However, any educator who is under 18 years of age is not allowed to work alone and must be supervised by an educator who is at least 18 years.
Family day care educators must be at least 18 years old
100(2) 119 The National Regulations require family day care educators and family day care educator assistants to be at least 18 years old.
Under the NSW Regulation, the licensee of a family day care service must not register a family day carer unless the person is an adult.
Educational leader No specific equivalent 64(2)
The National Regulations require approved providers to designate in writing a suitably qualified and experienced person to be the ‘educational leader’ at the service, to lead the development and implementation of the educational programs. The name of the
designated educational leader must also be recorded in the staff record.
Under the NSW Regulation the authorised supervisor is responsible for ensuring the service has a compliant program.
Supervisors Appointment of authorised/nominated supervisors
51A Varied regime s161 National Law
Both the former NSW Act and the National Law require the appointment of an authorised supervisor/nominated supervisor for a service.
Under the NSW Regulation services may have up to 2 authorised supervisors. Under the National Law a service may only have 1 nominated supervisor, however another person may be placed ‘in day to day charge’ of the service when the approved provider and nominated supervisor are not present.
The NSW Regulation prohibits an authorised supervisor from appointment at more than 2 services at any one time. The National Regulations do not make any provision for (or restrict) the appointment of a nominated supervisor at more than one service.
Presence of supervisor at service 56 54, 150 ss 43(2), 105, 162, 164 National Law
In addition to a general requirement that licensees ensure that the authorised supervisor for a service has “overall supervision” of the provision of the service, the NSW Regulation obliges the licensee of a centre-based service to ensure that the authorised supervisor is present at the service premises for no less than 50% of the time the service is provided. Under the National Law, a service is required to have a nominated supervisor - being the person in day to day charge of the service. Although the nominated supervisor has various responsibilities, most obligations in the National Regulations rest with the
approved provider. However, a “responsible person” - namely the approved provider (or a person with management or control of the approved provider), the nominated supervisor or a certified supervisor who has been placed in day to day charge of the service - must be
present (in the case of a centre-based service) or available (in the case of a family day care service) at all
Both the National Regulations and the NSW Regulation require a record to be kept of the person who is in charge of the service at any given time.
times that the service operates.
Supervisor qualifications 6, 16 ss 219A, 219B NSW Act 47 s108 National Law
Under the NSW Regulation a person who has a supervisor approval authorising them to supervise the operation of a specified children’s service or a specified type or types of children’s service, may be appointed by a licensee as the authorised supervisor of that service or a service of that type.
Similarly, under the National Law an approved provider can nominate a person who holds a supervisor certificate to be the nominated supervisor of the approved provider’s service. The NSW Regulation requires an authorised supervisor to have completed an approved course in child protection. Although this is not generally a requirement of the National Regulations in relation to certified supervisor it is required of nominated supervisors and certified supervisors placed in day to day charge of a service in NSW pursuant to regulation 273.
The minimum qualification and experience requirements for supervisor approvals and supervisor certificates under the NSW Regulation and the National Regulations
respectively, are slightly different. Whereas the NSW Regulation requires one or more qualification(s) and 12 months’ full-time (or part-time equivalent) experience; the National Regulations allow either
Both sets of the Regulations refer generally to the abilities and supervisory capacity necessary to care for children and supervise a service. The NSW Regulation incorporates a more specific definition of “required abilities to care for children”. However in practice the meaning of the general requirements is likely to be similar.
a prescribed qualification or 3 years’ experience to be sufficient. Notwithstanding this, the NSW Regulation is more flexible than the National Regulations in that the Director-General has a discretion to grant a supervisor approval even if the
requirements are not met. Under the National Regulations, the Regulatory Authority must be satisfied that the minimum requirements have been met before a supervisor certificate can be granted, unless the certificate is subject to a condition that the holder may only be a nominated supervisor of, or placed in day to day charge of, an education and care service that primarily educates and cares for children over preschool age,
Staff to child ratios
Teaching staff to child ratio 52(1) 129 - 135 241, 272, 279, 282 - 284
NSW-specific savings provisions in the National Regulations ensure that the same number of teaching staff members continue to be required by centre-based services where a service is educating and caring from 30 or more children preschool age or under. NSW-specific transitional provisions are also included in the National Regulations to ensure that a licensee who holds an approval under the Early Childhood Teacher Interim Policy (exempting the service from having to comply with specified early childhood teacher requirements), will continue to be exempt from the early childhood teacher requirements specified in that approval (subject to any condition on that approval) until the approval expires or 1 January 2013 (whichever is sooner). Similarly, an application for approval under the Early Childhood Teacher Interim Policy that has been made but not yet
determined when the National Law commences, will be considered as an application for a temporary waiver of the relevant teacher requirements under the National Law.
From 1 January 2014, the National Regulations will impose new requirements on centre-based services caring for fewer than 30 children preschool age or under, as follows: • If a service provides education and care to between 25 and 29 children preschool age
or under on a given day, an early childhood teacher must be “in attendance” at the service for at least 6 hours on that day (if the service operates for 50 or more hours a week) or 60% of the service’s operating hours, otherwise the service must employ or engage a full time or full-time equivalent early childhood teacher.
• If a service is caring for fewer than 25 children preschool age or under, the service must “have access” to an early childhood teacher for at least 20 per cent of the time (calculated on a quarterly basis). “Access” may include working with an early childhood teacher over the internet.
For these smaller services, the National Regulations allow a person who holds an approved diploma qualification or a qualification in primary teaching to be taken to be an early childhood teacher when the early childhood teacher is absent due to a short-term illness or short-term leave (not exceeding 12 weeks).
The differences relating to teaching staff qualifications (which affect who can be taken to be teaching staff for the purposes of the minimum requirements) are dealt with below under the qualifications heading.
services that primarily care for children over preschool age. This exemption is explicitly provided for in the National Regulations in regulation 129(2). It is provided for in the NSW Regulation by virtue of the definition of “children’s service” (i.e. services caring for
children under 6 years Staff/Educator to child ratios
239, 271, 275 Both the National Regulations and the NSW Regulation provide a 1:4 educator/primary contact staff to child ratio for children under the age of 2 years. There is a slight distinction in the provision for this and other ratios in the 2 sets of Regulations in that the cut off point for the National Regulations is 2/over 2 years, rather than under 2 years/2 and over. Centre-based services
The National Regulations provide a 1:5 ratio for children over 2 years to less than 3 years (unlike the NSW Regulation provision for a 1:8 ratio). However, this National Regulations requirement does not apply until 1 January 2016. Until that time, the 1:8 ratio applies. The National Regulations will continue to require a 1:10 educator to child ratio in NSW for children aged 3 years or more but less than 6 years. This ratio is a NSW modification of the standard National Regulations requirement in relation to children aged 36 months to preschool age.
A school-based service that delivers a preschool program in a composite class is not required to comply with these National Regulations ratio requirements.
There is no staff to child ratio specified under either the NSW Regulation or the National Regulations for children over 6 years at centre-based services.
58(3) 124, 276
Under the NSW Regulation, the licensee must ensure that a family day care carer does not educate or care for more than 7 children who are under 12 years of age at any one time (including children related to the carer), and no more than 5 of those children may be children who do not ordinarily attend school.
Family day care services
Until 31 December 2013, this requirement continues under the National Regulations with some differences:
• The obligation is imposed on a family day care educator rather than on an approved provider.
other adult present and caring for them.
• The approved provider of a family day care service may approve a family day care educator to care for more than 7 children in total, or more than 5 children who are preschool age or under, in defined exceptional circumstances (e.g. all the children are siblings, a child is in need of protection or the service is in a rural or remote area and no alternative service is available). This allows greater flexibility than the NSW Regulation provision for the Director-General to approve, at his/her discretion, a place for 1 more child in an emergency.
From 1 January 2014, these National Regulations requirements are varied slightly: • A family day care educator must not educate or care for more than 7 children at any
one time, and no more than 4 of those children (as opposed to 5 prior to 1 January 2014) may be of preschool age or under.
• If the service is provided at a residence, the educator’s own children and other children at the residence are only included if they are under 13 years (as opposed to 12 years) and there is no other adult present and caring for the children.
• No more than 7 children can be educated or cared for as part of a family day care service at a single residence or approved venue, except where children are visiting a residence or venue as part of an excursion.
• The approved provider of a family day care service may approve a family day care educator to care for more than 7 children in total, or more than 4 children who are preschool age or under, in the same exceptional circumstances mentioned above. Calculating the ratios -
“primary contact staff” vs “educators”
53 122 In defining the ratios, the NSW Regulation refer to “primary contact staff”, whereas the National Regulations refer to “educators”.
Both terms require a person to be working directly with children at the service (or directly involved in educating or caring for children at the service) before they can be included in the calculation of staff/educator to child ratios.
However there are some significant differences in the meaning attributed to the two terms that may affect the calculation of staff/educator to child ratios:
• “Primary contact staff” is defined to include a licensee and any member of staff who is directly involved in educating or caring for children at the service and a trainee who is at the service as a formal part of studies at an educational institution. Other staff members not directly involved in the education or care (e.g. administrative staff and
staff involved in domestic duties), work experience persons and volunteers are specifically excluded from the meaning of “primary contact staff”.
• In contrast, “educator” is more broadly defined as a person who provides education and care for children as part of a service. This definition could include a volunteer or work experience student so long as the volunteer or student satisfies the minimum qualification requirements and is working directly with children.
• “Trainee” is not a concept used in the National Law/Regulations. However, “trainees” are likely to fall within the meaning of a person who is “actively working towards” a qualification and as such, may be “educators”. As such, both sets of Regulations allow the inclusion of trainees in staff/educator to child ratios. However, the inclusion of trainees in ratios is subject to a limitation in the NSW Regulation which is not
included in the National Regulations. Under the NSW Regulation a trainee may only be included in the staff to child ratio if the majority of primary contact staff, and at least 2 primary contact staff, are not trainees.
Calculating the ratios - including teaching staff in staff/educator to child ratios
52, 53 123(3), (4) The National Regulations and the NSW Regulation both allow the inclusion of teaching staff who are required to be “in attendance” at the service in the general staff/educator to child ratios if they are working directly with children.
The key difference between the National Regulations and the NSW Regulation is that an early childhood teacher to which a service only has “access” under the National Law - because there are fewer than 25 children at the service - cannot be included in the educator to child ratios.
Calculating the ratios - mixed age groups
53(3) 123(2) Under the NSW Regulation, where a service is provided to a group of children not all in the same age bracket, the relevant ratio to be applied is the ratio that applies to the youngest child in the group.
The National Regulations require ratios for each age range to be maintained if children are of mixed ages. In practice, this will result in the same outcome as under the NSW
Regulation. Minimum staff numbers 53(2) No specific
The NSW Regulation requires a minimum of 2 primary contact staff members to be present at the service premises whenever children are being cared for or educated by the service. In contrast, there is no minimum number of educators provided for by the
Additional staff 55 No specific equivalent
Unlike the NSW Regulation, there is no provision in the National Regulations for the Regulatory Authority to direct an approved provider to employ additional staff over and above the numbers required by the educator to child ratios.
Qualifications General (non-teaching) staff/educator qualification requirements No specific equivalent 51(2), 52(2) and (3) 126 239, 240, 243, 244, 277, 278
From 1 January 2014, the National Regulations will only allow educators to be counted, for the purpose of ratios relating to children preschool age or under at centre-based services, if they hold or are actively working towards a specified qualification. At least 50% of educators will have to have, or be actively working towards, an approved diploma level (or higher) qualification . All other educators will have to have, or be actively working towards, an approved certificate III (or higher) qualification.
This is a change from the NSW Regulation, which does not include a general qualification requirement applying to all primary contact staff members. Only the minimum knowledge and experience requirements set out in clause 51(2) is required. Clauses 52(2) and 52(3) set out qualification requirements that at least one primary contact staff member must have (in specified circumstances in the case of clause 52(2)). However, they are not minimum qualification requirements for all primary contact staff.
A person who immediately before the National Regulations commenced meets the
requirements of clause 52(2) of the NSW Regulation and is employed by a service, will be taken to hold an approved certificate III level qualification.
Until 31 December 2015, an educator can be included in a ratio without having, or actively working towards, a certificate III qualification if the person was employed by the same service immediately before 1 January 2012, and has been continuously employed as an educator for at least 15 years prior to this date.
A school-based service that delivers a preschool program in a composite class is not required to comply with the National Regulations educator qualification requirements. Neither set of Regulations includes qualification requirements for educators caring for children over preschool age at a centre-based service in NSW.
No equivalent 127
280 From 1 January 2014, the National Regulations require a family day care educator to have, or be actively working towards, an approved certificate III (or higher) qualification. Family day care services
There is no general qualification requirement in the NSW Regulation applying to family day carers.
Teaching staff qualification requirements
Although the meanings of “teaching staff member” and “early childhood teacher” may technically be slightly different , both include persons with approved qualifications. Anyone who was approved as a teaching staff member prior to the commencement of the National Regulations will be taken to hold an approved early childhood teaching qualification for the purposes of the National Law.
Between 1 January 2014 and 1 January 2016, a person who holds an approved diploma qualification, has completed at least 50 per cent of an early childhood teaching
qualification and is actively working towards completing that qualification, will be taken to be an early childhood teacher for the purposes of some early childhood teacher
requirements in the National Regulations. Family day care coordinator
No equivalent 128 281
s163 National Law
In addition to the nominated supervisor position, the National Law requires all family day care services to appoint or engage one or more family day care co-ordinators to assist with the operation of the service and support, monitor and train family day care educators. No equivalent position is provided for in the NSW Regulation.
From 1 January 2014, a family day care co-ordinator must have an approved diploma qualification.
requirements for educators of children under 2 years
52(2) No equivalent Clause 52(2) of the NSW Regulation obliges the licensee of a centre-based service to ensure that whenever a child under 2 years of age is being cared for, at least one primary contact staff member with a specified qualification is in attendance (e.g. enrolled nurse with Certificate III or IV, a registered nurse with work experience or another approved qualification).
There is no equivalent of this requirement in the National Regulations. First aid qualification
245, 246, 247 Both the NSW Regulation and the National Regulations require at least one person (in the Centre-based services
approved first aid qualification whenever children are being educated or cared for on the premises. However, there are some differences between the requirements more
• Under the National Regulations, from 1 January 2013 there must also
• The first aid requirement under the National Regulations extends beyond the service premises to wherever the children are being educated and cared for by the service (e.g. also on an excursion).
be at least one educator who has undertaken current approved anaphylaxis management training and at least one educator who has undertaken current approved emergency asthma management training.
• In the National Regulations allowance is made for a service on the site of a school that has an educator on the school site with the relevant qualifications (rather than at the service premises), as long as that person is “immediately available in an emergency”. A person who holds a first aid qualification approved under the NSW Regulation will be taken to hold a first aid qualification for the purposes of the National Regulations until that qualification expires (requires renewal/updating) or 31 December 2012 (whichever is sooner).
245, 246, 247
Family day care services
Both the NSW Regulation and the National Regulations require family day care educators to hold a current approved first aid qualification.
A family day care educator who holds an approved qualification under the NSW Regulation will continue to be taken to have one under the National Law until that qualification expires or 31 December 2012 (whichever is sooner).
Under the National Regulations, from 1 January 2013 family day care educators must also • current approved anaphylaxis training; and
• current approved emergency asthma management training.
Under the National Regulations, first aid qualification and training requirements also apply to family day care educator assistants.
protection legislation primary contact staff understand their responsibilities under the child protection legislation. The National Regulations require that approved providers ensure the nominated
supervisor and staff are advised of child protection laws. This obligation to advise is less onerous than the obligation under the NSW Regulation to ensure understanding.
However, the National Regulations obligation does apply more broadly, including to family day care services.
Course in child protection 16 273 Regulation 273 of the National Regulations (a NSW specific savings provision) obliges approved providers to ensure that the nominated supervisor and any certified supervisor in day to day charge of their service has successfully completed a course in child protection approved by the NSW Regulatory Authority.
This is similar to clause 16 of the NSW Regulation which empowers the Director-General to refuse to grant a supervisor approval if the applicant does not have the required qualifications and experience (including successful completion of an approved course in child protection).
Cooking staff 54 No equivalent There are no requirements in the National Regulations relating to the qualifications of cooking staff.
Volunteers 57 No equivalent Under the National Regulations a volunteer may be an “educator” (if the volunteer has the requisite qualification and is working directly with children) and be included in educator to child ratios. This is not possible under the NSW Regulation (except for the purposes of excursion ratios).
The additional constraints on the use of volunteers under the NSW Regulation (they must be accompanied by primary contact staff when in the presence of children and be covered by appropriate insurance arrangements) are not included in the National Regulations.
Maximum number of children Child Numbers
58(1) and (2) 59, 60
s52 National Law
The maximum number of children who can attend a centre-based service will be specified on the service’s service approval under both Laws.
centre-based service at any one time, unless the Minister approves otherwise.
The NSW Regulation also allow for a process whereby the Director-General can give a service approval to care for more children than the number specified on the licence in an emergency. The National Regulations do not provide for such a process. However the maximum number of children provided for in a service’s approval could be amended and a temporary waiver granted in relation to space requirements (if necessary).
58(3) 59(3), 60
The requirements for family day care services are set out above in the context of staff/educator to child ratios.
Family day care services
By way of summary, the maximum number of children who may be cared for by a family day care educator will remain at 7 under the National Regulations (unless the approved provider approves otherwise). However, there are differences in relation to which children must be taken into account and the number of younger children allowed.
As discussed above, the National Regulations also make provision for an approved provider to approve a greater maximum number of children in specified circumstances.
Group size 61 No specific
The National Regulations do not regulate group sizes, aside from the requirement that approved providers have regard to the size and composition of groups in ensuring that children have opportunities to interact and develop relationships with other children. School children 62 Varied regime Clause 62 of the NSW Regulation limits the number of school children who may be cared
for by a centre-based service and requires a licensee of a centre-based service to ensure that pre-school children are not negatively impacted by the presence of school children. The National Regulations regulate the care and education of school aged children outside school hours more extensively. The definition of “education and care service” includes the education or care of children under 13 years of age in contrast to the definition of
“children’s service” in the NSW Regulation which encompasses education or care of children under the age of 6 years who do not ordinarily attend school. For this reason, the National Regulations do not specify a percentage limit on the number of school children who may be cared for by an education and care service. Furthermore, most of the general regulatory requirements in the National Regulations apply to the care of school aged children, and as such, there is no provision for the matters included in clause 62 of the NSW Regulation.
Children must be enrolled 63 No equivalent The NSW Regulation requires authorised supervisors to ensure that all children to whom education or care is provided are enrolled in the service.
This is not a requirement in the National Regulations.
64, 95, 97 73, 74, 75, 76 s168 National Law
Although many of the general principles for development of programs are the same, the National Regulations emphasise the outcomes sought for each child rather than the types of activities that should be included.
The National Regulations include a new requirement that child assessments or evaluations be documented. However, in practice this is unlikely to be a significant shift as much of the information that will be included in this documentation is likely to be recorded in the
developmental record for each child required by clause 95 of the NSW Regulation.
The National Regulations require more information about the program to be displayed and available to parents than the NSW Regulation. The National Regulations do not require a policy to be developed and implemented that sets out the level of involvement of children, parents and staff in the development of the curriculum and the ways in which children will be assisted in the transition to other early childhood programs or to school. However, the importance to the National Law of family involvement and support of each child’s transition to further learning is evident in the identification of these matters in the National Quality Standard (elements 6.1.2 and 6.3.2) and their relevance to a service’s assessment and rating.
Interactions with children 65 155, 156 The National Regulations adopt the same general principles for interactions with children, although not in the same level of detail as the NSW Regulation.
A key difference is that, under the National Regulations, responsibility for ensuring that these principles are met belongs solely to the approved provider, whereas under the NSW Regulation authorised supervisors and family day carers are also responsible for
The National Regulations include an additional requirement that approved providers must take reasonable steps to ensure that children have opportunities to interact and develop respectful and positive relationships with each other and with staff members and
Supervision of children 66 s165 National Law
Although the NSW Regulation is more prescriptive as to what will not amount to adequate supervision (e.g. no member of primary contact staff is allowed to perform other duties while supervising children), the National Law requirement that children be “adequately supervised at all times” is intended to ensure the same outcome.
Health and hygiene practices 67 77 Unlike in the NSW Regulation, health and hygiene practices are not referable to current community standards and relevant government guidelines, but these matters will be persuasive in determining what is “adequate...to minimise risks to children”.
Under the National Regulations, the approved provider is directly responsible for the implementation of adequate heath and hygiene practices (not merely for the development of procedures and policies). Nominated supervisors and family day care educators continue to have this responsibility also.
Tobacco, drugs and alcohol 67 82, 83
The National Regulations continue to prohibit the use of tobacco, illicit drugs and alcohol on the premises while children are being cared for. However there are some subtle differences from the NSW Regulation:
• Under the National Regulations, the prohibition extends to places outside the service premises, e.g. while on an excursion.
• The National Regulations do not specifically require all practicable steps to be taken to ensure that no tobacco is smoked indoors, even when children are not there. However, arguably a residual tobacco smells would make the environment no longer “free from the use of tobacco”.
The National Regulations include an additional requirement that the approved provider ensure staff members and volunteers are not affected by alcohol or drugs (including prescription medication) such that their capacity to supervise children is impaired. Under the National Regulations, only the approved provider is responsible for regulating others’ behaviour. The nominated supervisor is only responsible for ensuring that s/he does not herself/himself consume alcohol and that s/he is not affected by alcohol or drugs while caring for children. This is different from the NSW Regulation, where authorised supervisors have wider responsibility and that of the licensee is more limited.
The requirements for family day care services are essentially unchanged, but with some subtle differences:
Family day care services
• The requirement that a family day care educator not be affected by alcohol or drugs is limited in the National Regulations to where the effect impairs the educator’s capacity to provide education and care to children. This is not the case in the NSW Regulation (except in relation to medication).
• The National Regulations require family day care educators to ensure children are provided with an environment free from the use of tobacco, illicit drugs and alcohol. This requirement applies to anyone at the residence/venue and not just the family day care educator. Although the NSW Regulation requires a “smoke free environment”, the scope of this requirement does not extend to alcohol or non-smoking illicit drugs. • The National Regulations do not include the NSW Regulation’s specific requirements
• a family day carer must be in good health and free from any medical conditions that may affect the carer’s ability to care for children (although this may form part of an approved provider’s assessment of whether a family day care educator is a fit and proper person to care for children); and
• a family day carer who requires regular medication must obtain a medical certificate confirming his or her ability to care for children.
Food and nutrition 68 77, 78, 79, 80 The National Regulations distinguish between services that provide food or beverages to children and services that only handle food or beverages provided by a parent/family member. Services that provide food or beverages are required to have regard to dietary requirements of children and whether food and beverages are nutritious whereas those services that fall within the later category only need to ensure that food and beverages that are appropriate to each child’s needs are offered on a regular basis. This distinction is not made in the NSW Regulation.
Under the National Regulations the approved provider and nominated supervisor are both responsible for ensuring the requirements are implemented. The NSW Regulation requires the licensee to develop and maintain a policy dealing with the various matters and the Centre-based service
There are also some differences in the substantive requirements:
• The NSW Regulation requirement that food and drinks be “varied” is not required by the National Regulations.
• The National Regulations do not specifically require a service’s practices to be
consistent with the Food Act 2003 and its regulations or the Dietary Guide for Children. • The educational aspects of clause 68(1) of the NSW Regulation are not specifically
required by the National Regulations (i.e. cl 68(1)(d), (e) and (f)). However, though not a regulatory requirement, the promotion of healthy eating is identified in the National Quality Standard (element 2.2.1) as a matter of importance (compliance with the National Quality Standard is not a regulatory requirement but will affect a service’s assessment and rating).
• The National Regulations clarify that a weekly menu does not need to be displayed if food and beverages are provided by parents/family members and not the service. • The National Regulations specifically require that drinking water must be “safe”. • The National Regulations do not specifically require eating utensils and furniture used
when eating to be of a size and shape that encourage development of eating skills and independence in eating by children.
Again, there are some other differences in the substantive requirements: Family day care services
• The NSW Regulation requirement that food and drinks be “varied” is not included in the National Regulations.
• The National Regulations require family day care educators to implement safe practices for handling, preparing and storing food to minimise risks to children. • The National Regulations specifically require that drinking water must be “safe”. • The National Regulations do not specifically require information to be available to
parents of a child outlining the approach taken to the nutritional needs of that child and that child’s eating habits. Services must have a health and safety policy including matters relating to nutrition, food and beverages and dietary requirements generally, but the eating habits of individual children are not required to be set out. Some information about an individual child’s eating habits may be available through the
documentation of the child’s participation in the educational program.
• The National Regulations require family day care educators to display a weekly menu where relevant, in line with the requirement for centre-based services. Family day care educators are not required to do so by the NSW Regulation.
Sleep and rest No equivalent 81 There is a new requirement in the National Regulations that an approved provider,
nominated supervisor and family day care educator must take reasonable steps to ensure that children’s sleep and rest needs are met.
Pool safety 69 25(c), 26(m),
168(2)(a)(iii) ss 165, 167 National Law
Most of the pool safety requirements in the NSW Regulation are not specifically provided for in the National Regulations. There is no requirement in the National Regulations that written authorisation be obtained before a child is allowed to enter a pool of water on the service premises (National Regulations excursion authorisation requirements relate to trips outside the premises).
However, the National Regulations do require a water safety policy to be prepared. This policy must be provided with any service approval application relating to a premises with a swimming pool. The policy and the general ‘adequate supervision’ and ‘protection from harm and hazards’ requirements cover most of the requirements in clause 69.
Storage of dangerous substances and equipment
70 s167 National Law
Although the NSW Regulation is very specific about what items are to be stored securely and how they are to be stored, the general requirement in the National Law that every reasonable precaution be taken to protect children from harm and from hazard likely to cause injury encompass the NSW Regulation requirements.
Under the National Law, approved providers, nominated supervisors and family day care educators all have the responsibility to ensure reasonable precautions are taken in practice. As in other cases, this extends the licensee’s responsibility for policies and procedures only. Animals 71 No specific equivalent 77, 116(2)(e) ss 165, 167 National Law
Animals kept on a service premises are not specifically regulated by the National Regulations. However the general ‘adequate health and hygiene practices’, ‘protection from harm and hazards likely to cause injury’ and ‘adequate supervision’ requirements cover most of the requirements set out in clause 71 of the NSW Regulation.
Plants 72 No specific equivalent s167 National Law
Although there is no specific provision in the National Regulations relating to poisonous vegetation, the requirement that approved providers, nominated supervisors and family day care educators take every reasonable precaution to protect children from harm and any hazard likely to cause injury will require them to protect children from poisonous plants.
Obtaining information about child
76, 74(2)(b) Under the National Regulations, parents must be given:
• information about the program so far as it relates to their child and their child’s participation in the program; and
• copies of their child’s assessments/evaluations (including of the child’s developmental needs, interests and experiences).
Although the NSW Regulation reference to “information...about the heath, welfare and conduct of the child” may appear broader, in practice the requirements are likely to be much the same.
The National Regulations require information to be provided to a parent on request (regardless of how or through what medium that request is made - e.g. email/telephone), whereas the NSW Regulation obligation to give information only arises where a parent attends the service in person.
Arrival and departure of child 74 99
168(2)(f), 170 12(d)(iii), 158(1)(b), 159(b) ss 165, 174(2)(a) National Law
The National Regulations do not specifically require a staff member or family day carer to “receive” a child at the service premises, or for centre-based services to ensure that beds and all areas of the premises are thoroughly checked by at least 2 staff at the end of the day. However, failure to “receive” a child or to ensure that no child remains on the premises after the service closes would be likely to be a breach of the National Law requirement that children be adequately supervised. Furthermore:
• accurate recording of the time of a child’s arrival (as required by regulations 158(1)(b) and 159(b) of the National Regulations) may not be possible if no one “receives” the child;
• the National Regulations (consistently with the NSW Regulation) require a policy to be prepared and implemented in relation to the delivery and collection of children - this policy may include practices to ensure children are not locked in; and
• a child being mistakenly locked in a service premises is a “serious incident” in the National Regulations, of which the Regulatory Authority must be notified under section