WA – the state of difference for regulatory breaches

by David Oliver

May 06

The views expressed by contributors are their own and not the view of The Sector.

Western Australia, through its Education and Care Regulatory Unit (ECRU) at the Department of Communities, is the only Australian state or territory that enforces serious breaches of the Education and Care Services National Law through civil disciplinary proceedings in its State Administrative Tribunal.as an alternative to criminal prosecutions. In this piece, Legal Practitioner David Oliver explains the process of civil disciplinary proceedings and the desired outcomes.  

 

Disciplinary proceedings of such regulatory breaches fall into the civil disciplinary proceedings space, rather than the criminal space. This means that  regardless of the outcome of the case – whether the breaches are accepted or unable to be proved – the approved provider or anyone else taken to the Tribunal, will not receive a criminal record.

 

Similarly, other professions outside of the early childhood education and care (ECEC) sector are referred to a disciplinary tribunal for breaches of regulatory code. Educators, nominated supervisors and approved providers often feel apprehensive about a court appearance, or prosecution. It is important to emphasise that in civil proceedings, as a general rule, no one is treated like a criminal.

 

If an approved provider or other person is prosecuted under the National Law in a criminal court, they must appear alongside alleged drug dealers, burglars, perpetrators of violence, and the like.

 

On the very rare occasions that educators, nominated supervisors or approved providers must physically attend a Tribunal hearing, they may share a room with other licensed professionals or members of licensed vocations, such as lawyers, doctors and other health practitioners. All the licensed professionals listed above are likely to be there because of allegations that they have ‘fallen short’ of their professional codes and standards, not because they have conducted criminal activity.

 

Likelihood of court attendance

 

Additionally, unlike in a criminal court, nearly all procedural matters related to civil disciplinary proceedings for offences against the National Law – or situations where educators, nominated supervisors or approved providers have been found to be in breach of the law, such as adjournments or directions – can be addressed via email correspondence and emailed orders, without the need for anyone to attend in person.

 

It is also important for those working in the Western Australian ECEC sector to be aware that 95 per cent of the matters brought by ECRU to the Tribunal are typically resolved, without moving to a formal hearing, by mediation and mutual agreement between ECRU and the approved provider.

 

Managing mediation

 

Mediation brings both parties together – literally around a table –  with a Tribunal member guiding the negotiation process but not imposing an outcome.

 

By law, the discussions are confidential and completely non-binding, but if an agreement is reached, it is written up and the Tribunal makes orders considering the agreement. The agreement includes agreed penalties and agreed facts, not just the facts proving the breach but also all the steps the approved provider has taken to ensure such a breach doesn’t occur again.

 

While the Tribunal has the final say on the orders (and is not bound by the agreed penalty), it nearly always publishes the agreed orders and agreed facts word-for-word. If the Tribunal has an issue with the agreed penalty as being too low or too high, the Tribunal member would first inform the parties of that view and suggest they try to agree on a more appropriate figure.

 

Alternatively, the Tribunal member may ask the parties to make written submissions on the issue. Usually the member conducting the mediation has a fair idea of what an appropriate range for the penalty might be, and is able to judge and inform parties at the mediation if the agreed penalty is likely to be approved, meaning written submissions are rarely necessary.

 

If mediation fails

 

In the rare event that an agreement can’t be reached, and a hearing is needed, the Tribunal adopts civil procedures to minimise the length of hearing and the delay until the hearing can occur. One such application has gone to a full hearing, but no witnesses were called as their statements were accepted as their evidence and no cross-examination was sought. The hearing took less than an hour including the delivery of the penalty.  

 

All documentary evidence is filed ahead of the hearing as are all witness statements, and every effort is made to agree on as much of the evidence as possible so that the hearing can focus on the areas of disagreement. The Tribunal makes its decision on the civil standard of proof, which, broadly speaking, means a decision is reached “on the balance of probabilities”, which essentially means deciding which version of the facts are more likely true than not.

 

A criminal prosecution must be proved “beyond reasonable doubt”, meaning that if a magistrate has any reasonable doubts that the breach occurred, or that a defence might apply, the magistrate must acquit, and only convict if the magistrate holds no reasonable doubts.

 

Timelines

 

There is a well-known saying that ‘justice delayed is justice denied’.

 

Analysis of ECRU’s internal data to date reveals that on average a Tribunal matter takes between two and two and a half months from the time the application is filed to the final orders being made, and an average of three months from when a breach occurred to when the final orders concerning that breach were made.

 

ECRU still criminally prosecutes some matters, and the data shows that they take about a year from breach to final orders, and close to eight months from filing to final orders. As such, an appearance to the Tribunal provides a “win-win” scenario for both regulator and the approved provider. Matters are resolved quicker, with far less stress for providers and the involved staff. Outcomes are published in detail on the Tribunal’s own website, unlike Magistrate’s Court decisions, so that everyone can see past decisions and the basis for them.

 

The importance of publishing

 

Publishing the full facts of any given case is important for the community, and for comparison of the penalties and facts for one case with those for another, to help decide the matter’s relative seriousness. It is also important for the approved provider’s reputation, as a public record of the active steps taken to prevent future breaches.

 

Even though a penalty is imposed, on most occasions approved providers feel that they have been listened to, and that the outcome of the mediation process comes from a dialog between them and the regulator, rather than an outcome imposed by a court. Anecdotally, the process is sometimes described as far more ‘human’ than the formality of a court.

 

Every State and Territory, except Tasmania, has a similar generalist tribunal that exercises civil disciplinary jurisdiction over various other licensed professions and vocations, and the Tasmanian government is considering it.

 

Every State and Territory could, if they wanted to, confer civil disciplinary jurisdiction on their tribunal or on a court to deal with contraventions of the Education and Care Services National Law.Enforcement. Using civil penalties has been a feature of the Australian regulatory environment since it was first introduced by the Australian government in the 1990s, and has regularly appeared as an enforcement option in Commonwealth State and Territory legislation.

 

For example, other than in Western Australia’s corresponding Education and Care Service National Law, civil penalties are provided in Chapter 5 of the Australian Consumer Law, adopted as a Schedule by States and Territories in their Fair Trading Acts .The Australian Government in Part 4 of its Regulatory Powers (Standard Provisions) Act 2014 sets out civil penalty provisions that can be adopted by any other Commonwealth Act.

 

There are many good reasons why it is appropriate for the regulation of education and care in Australia. For further information about the regulatory authority for your state and territory, visit the Australian Children’s Education and Care Quality Authority (ACECQA) website here.

 

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