How to review an early childhood education and care regulatory decision
Certain regulatory decisions made by the Education Standards Board (ESB) under the Education and Care Services National Law Act 2010 (National Law), can be reviewed. This article outlines what decisions can be reviewed, how much time you have to submit a request for review, and an overview of the review process.
There are various ways a decision can be reviewed, including:
- Internal - a review undertaken within the ESB.
- External - a review undertaken by the District Court of South Australia.
- First tier - a review of an assessment and rating outcome undertaken within the ESB.
- Second tier - a review of an assessment and rating outcome undertaken by the Australian Children's Education and Care Quality Authority (ACECQA).
Internal reviews
What decisions can be internally reviewed?
Section 190 of the National Law specifies an internal review can be undertaken for the decision to:
- refuse to grant a provider approval or service approval
- amend or refuse to amend a provider approval or service approval
- impose condition on a provider approval or service approval
- suspend a provider approval under section 28 (Suspension without show cause) of the National Law
- suspend a service approval under section 73 (Suspension of service approval without show cause) of the National Law
- refuse to consent to the transfer of service approval
- revoke a service waiver
- issue a compliance direction
- issue a compliance notice.
How long do you have to submit a request for review?
An applicant may apply through the National Quality Agenda IT System within 14 calendar days of being notified of a decision. If the person is not notified of the decision, they can apply within 14 calendar days after becoming aware of the decision.
Who undertakes the review?
The person who conducts the review must have had no involvement with the decision, assessment or investigation, of the person or service to which the decision relates.
In many instances, the Registrar completes the internal review. However, if the decision was made by the Registrar, a subcommittee of the ESB Board will be convened to undertake the review of the Registrar's decision.
The outcome of the review can either confirm the original decision, or to make any other decision that the decision maker believes appropriate.
How long does the ESB have to complete the review?
The review must be conducted within 30 calendar days of the application being made.
If a request for further information is made, or if the person who applied for the review and the ESB agree, the ESB may extend the deadline by a maximum of 30 calendar days.
External review
What decisions can be externally reviewed?
Section 192 of the National Law specifies an external review can be undertaken for any decision that was internally reviewed by the ESB, excluding a compliance direction or compliance notice.
In addition, an external review can be undertaken without undertaking an internal review, for the decision to:
- suspend a provider approval under section 27 (Decision to suspend after show cause notice) of the National Law
- cancel a provider approval under section 33 (Decision in relation to cancellation) of the National Law
- suspend a service approval under section 72 (Decision in relation to suspension) of the National Law
- cancel a service approval under section 79 (Decision in relation to cancellation) or 307 (Service approvals) of the National Law
- direct the approved provider of a family day care service to suspend the education and care of children by a family day care educator
- give a prohibition notice or refuse to cancel a prohibition notice.
How long do you have to submit a request for an external review?
An applicant may apply to the District Court of South Australia.
Who undertakes the external review?
The review is undertaken by the District Court of South Australia.
How long does the Court have to complete the review?
There are no specified timeframes for the Court to undertake their review, however, the decision from the ESB remains until the Court makes their decision.
First tier reviews
What is a first tier review?
Section 141 of the National Law specifies that an approved provider may ask the ESB to review a rating level, following the outcome of their assessment and rating.
How long do you have to submit a request for review?
An applicant may apply through the National Quality Agenda IT System within 14 calendar days after the day on which the person is notified of the decision.
Who undertakes the review?
The person who conducts the review must not be a person who was involved in the assessment and rating of the service.
In many instances, the review will be undertaken by a Regulatory Officer who was not involved in the original assessment and rating. A Team Leader will conduct the review if there are no available Regulatory Officers.
The outcome of the review can be to either confirm, or amend, specific rating levels or the overall rating.
How long does the ESB have to complete the review?
The review must be conducted within 30 calendar days after the application is made.
The ESB may extend the timeframe by 30 calendar days if a request for further information is made by, or agreed to, by the applicant and the ESB.
The ESB may extend the timeframe by a further 60 calendar days in instances where the ESB considers there are special circumstances warranting an extension.
Second tier reviews
What is a second tier review?
Section 144 of the National Law specifies that following the outcome of a first tier review, an approved provider may ask ACECQA to convene a Ratings Review Panel to review the rating level.
How long do you have to submit a request for review?
An applicant may apply through the National Quality Agenda IT System within 14 calendar days after being notified of the decision first tier review.
Who undertakes the review?
ACECQA will convene a Ratings Review Panel comprising of up to three members external to the ESB.
How long does the panel have to complete the review?
The review must be conducted within 60 calendar days, unless the chairperson considers there are special circumstances warranting an extension. This needs to be agreed to by the approved provider.
What if the decision is not reviewable?
If your decision is not reviewable, you are able to make a complaint or provide feedback to the ESB through our Complaint and Feedback Management Framework.