Trustees of the Roman Catholic Church v NSW Department of Education

1. [1]

   The summons by which the plaintiff commenced these proceedings was filed on 13 January 2023. The first paragraph of the relief claimed is as follows:

   1. (1)

      1. A declaration that the decision on 19 August 2022 by the Defendant to issue a compliance notice pursuant to section 177 of the Children (Education and Care Services) National Law 2010 (NSW) (“National Law”) to the Plaintiff (“19 August Decision”) is a reviewable decision for internal review for the purposes of section 190 of the National Law.

2. [2]

   The proceedings were listed before me for final determination on 21 June 2023. At the conclusion of the hearing a declaration was made in the above terms and the defendant was ordered to pay the plaintiff’s costs. The Court’s reasons for decision were reserved and are now provided.

The issue

1. [3]

   The issue raised by the summons is one of construction of the Children (Education and Care Services) National Law 2010 (NSW) (the Law). Section 9 of the Children (Education and Care Services National Law Application) Act 2010 (NSW) provides that the Secretary of the Department of Education is the Regulatory Authority for the purposes of the Law. For the sake of brevity in these reasons I will refer to the relevant decision maker as the Secretary or the Secretary’s delegate. The plaintiff is an “approved provider” under the legislation, having obtained approval under Pt 2 (ss 10-42) of the Law to provide education and care services for children under 13 years of age.

2. [4]

   Section 177 makes the following provision for the Secretary to issue compliance notices:

3. [5]

   On 9, 10, 11 and 13 May 2022 authorised officers of the Secretary inspected centres, also called services, operated by the plaintiff in the Hunter Region and mid-North Coast. On 2 June 2022 a delegate of the Secretary (“the first delegate”) issued to the plaintiff a compliance notice under s 177 stating the Secretary’s satisfaction that, in the operation of the centres inspected, the plaintiff had failed to comply with the following sections:

4. [6]

   The notice of 2 June 2022 also asserted non-compliance with the following regulations:

5. [7]

   The issue of such a notice under s 177(1) has potentially significant consequences for an approved provider. This particular notice required compliance within 14 days. Default would attract a penalty of $30,000 as provided for in s 177(3). Default could be viewed by the Secretary as ground for issuing a notice under s 178(2), to show cause why the plaintiff should not suspend its provision of education and care services, or under s 183(1), to show cause why the plaintiff should not be prohibited from continued involvement in the education and childcare field. Part 5 of the Law (ss 133-160) provides for a system of assessment and rating of education and care services, for the purposes of which an approved provider’s compliance record is taken into account: ss 135(2)(c), 153(4)(b). The process of assessment and rating may be suspended while any compliance notice is outstanding: s 137(1)(b). Rating levels are published: s 160.

6. [8]

   Division 1 of Pt 8 of the Law, comprising ss 190-191, provides for internal review by the Secretary of decisions that have been made under specified sections of the Law. Division 2 of Pt 8 provides for external review of decisions within nominated categories. External review is by the tribunal specified for the purposes of the Law, namely, the NSW Civil and Administrative Appeals Tribunal.

7. [9]

   The question that arises in the case is this:

8. [10]

   To answer the question it will be necessary to interpret and apply ss 190 and 191 of the Law, which are in the following terms:

9. [11]

   The decision of the first delegate to issue the compliance notice of 2 June 2022 was amenable to internal review pursuant to s 190(h). On 16 June 2022 the plaintiff applied for internal review. On 19 August 2022 that application was determined under s 191(7)(b) by a different delegate (“the second delegate”), who purported to confirm the original compliance notice in substantially different terms. The answer to the central question in the case will require comparison of the terms of the original notice with those of the notice that was issued on 19 August after the internal review.

The plaintiff’s education and care services

1. [12]

   The plaintiff operates 33 centres for the care of children out of school hours, referred to in the proceeding by the acronym “OOSH centres”. It also operates 12 early childhood learning centres in which day care and educational activities are provided for children who range in age from very young toddlers up to the age of preparation for kindergarten. Through its centres the plaintiff provides care to approximately 5,200 children.

2. [13]

   The centres are operated on a not-for-profit basis. There is evidence before the Court that many of the clients of the business are families wherein both parents work. There is a strong inference that the scope for the plaintiff to increase its charges, in order to cover additional operating expenses including the cost of complying with statutory requirements and Departmental directions, is very constrained. The plaintiff’s enterprise is heavily and closely regulated under the National Law, as is apparent from the numerous and detailed provisions of the Law and the Regulations. The defendant’s counsel described the statutory regime in these terms:

3. [14]

   This superstructure of minute regulation comes at significant cost, and with considerable burden and absorption of resources – for government, for approved providers and for the users of their services. The burden of heavy regulation is illustrated in this case by evidence of the manner in which authorised officers of the Secretary have scrutinised the operation of some of the plaintiff’s centres and by the documentary evidence of the plaintiff’s painstaking and protracted efforts to reason with Departmental offices about the impracticability of their enforcement directions.

The original compliance notice: 2 June 2022

1. [15]

   The aspect of the 2 June 2022 compliance notice that most strongly spurred the plaintiff to seek internal review was the delegate’s assertion that s 167(1) had been breached with respect to the plaintiff’s preparedness, at some of its centres, for managing children who suffer from asthma. Those aspects of the 2 June notice require close consideration because in the 19 August notice, issued after the internal review, the second delegate identified entirely different alleged failings of the plaintiff and directed entirely different steps that she required the plaintiff to take in order to achieve compliance.

2. [16]

   The following is an abridged reproduction of particulars given in Annexure A of the 2 June notice, being matters of alleged non-compliance with s 167(1) at six of the plaintiff’s OOSH centres. The date of attendance by the Secretary’s authorised inspection officers is noted in this summary and the children’s names are anonymized. For ease of reference there has been assigned to each particular the number that was subsequently used by the second delegate in the internal review:

3. [17]

   The notice directed the plaintiff within 14 days to take the following steps to remedy the above particulars of alleged non-compliance with s 167(1) (emphasis added):

Internal review – particulars 1, 11 and 12 of breach of s 167

1. [18]

   When the Secretary’s delegate determined the plaintiff’s application for review on 19 August 2022, items 1, 11 and 12 of the particulars of breach of s 167 were withdrawn. The fate of those particulars will be explained first, because nine of the remaining 10 are a homogenous group and the plaintiff’s grounds for seeking review of them, as well as the second delegate’s decision on them, can thereafter be considered collectively.

2. [19]

   On internal review, the second delegate was not satisfied that the children concerned in particulars 1, 11 and 12 were exposed to harm as a result of the circumstances recorded by the inspectors. The second delegate therefore could not find a breach of s 167, as would have been necessary to justify inclusion of those particulars in the 2 June notice. The following circumstances concerning the initial inclusion of the particulars and their withdrawal on review are pertinent.

3. [20]

   With respect to item 1, the allegation of failure to take “every reasonable precaution” to protect EF from harm was that Moktelukast was not available at the centre. Breach of s 167 was alleged despite a letter from the child’s parents that this medication was to be administered only at home. It is clear that the authorised inspector was not medically qualified. Rather than make further inquiry to reconcile the parents’ instructions with the inspector’s erroneous interpretation of the child’s medical management plan, the first delegate included this allegation in the compliance notice. On review, the second delegate reversed this particular, on the following basis:

4. [21]

   It appears unsatisfactory, to say the least, that medically untrained personnel should, in the name of the Secretary, formally allege on medical grounds that an offence has been committed contrary to s 167, carrying a $50,000 fine, and issue a statutory notice for which non-compliance attracts a $30,000 fine. On 19 August 2022 “online research” was considered by the second delegate sufficient to show that by following parental instructions, which accorded with the nature of the medication, the plaintiff took “every reasonable precaution” as required by the Law. It is difficult to see why the inspector and first delegate should not have been sufficiently trained either to refrain from making medical judgments beyond their expertise or to make the online inquiry themselves, before imposing upon an authorised provider the risk and burden of dealing with a compliance notice that was unjustified in this material particular.

5. [22]

   Regarding item 11, in support of the review the plaintiff explained that, from the point of view of child safety, no medical significance could be attached to the absence of Clarityne from the Rutherford centre. The plaintiff made the following submission:

6. [23]

   The second delegate arrived at the same conclusion. She ascertained that Clarityne is a tradename for a drug also known as Claratin and Loratadine. The second delegate gleaned the following information, presumably also from the internet:

7. [24]

   The observation made above in relation to item 1 may also be made concerning this particular and its withdrawal. If medically unqualified inspectors are to be deployed it would be a reasonable expectation of the public generally, of approved providers and of the families that use these services, that the inspectors would at least be trained to inquire into the significance, or otherwise, of a well-known non-prescription medication before alleging an offence and issuing a compliance notice.

8. [25]

   With respect to particular 12, the Scone service did have on hand a medical management plan for BH, prepared by the Australasian Society of Clinical Immunology and Allergy (“ASCIA”). The plan was signed by the plaintiff on 1 April 2022 and by the child’s mother on 5 April 2022. It specified that in the event of anaphylaxis, Ventolin was to be administered after an adrenaline injection. By inadvertence the box adjacent to that instruction had not been ticked but the plaintiff’s staff understood that it was applicable to both the adrenaline injector and the Ventolin and, as supplied to the centre by the child’s parents. Understandably, the second delegate disagreed with the allegation in the 2 June 2022 notice that “no medical management plan was available to support the administration of Ventolin medication to BH”. The manifestly trivial error of inadvertent failure to tick a box did not give rise to a breach of s 167(1) and this particular was not included in the notice issued on 19 August 2022.

Internal review – particulars 2-10 of breach of s 167

1. [26]

   Items 2-10 of the breaches of s 167 particularised in the 2 June notice, summarised at [16] above, concerned the absence from the plaintiff’s respective centres of the medications Redipred or Prednisolone. Each particular referred to a management plan that had been provided to the plaintiff by parents and/or a medical practitioner in respect of a child who was a disclosed asthma sufferer. Where those plans prescribed Redipred or Prednisolone to be used in nominated circumstances, the inspectors and the first delegate formulated alleged breaches of s 167 on the assumption that the intent of the management plans was that every person or institution who might have care of the child from time to time would stand ready to administer the drug.

2. [27]

   The plaintiff’s detailed submissions supporting its application for review strongly refuted the delegate’s assumption, as follows:

3. [28]

   In conducting the internal review the second delegate ascertained that Redipred is a tradename for an orally ingested medicine in which the active ingredient is Prednisolone or a compound thereof. The second delegate’s reasons for decision included the following at p15:

4. [29]

   At pp 15-18 of the second delegate’s reasons for decision on the internal review she acknowledged that the plaintiff had no authorisation from parents to administer medication other than Ventolin or Zempreon inhalers, for any of the children concerned in particulars 2-10. The plaintiff’s failure to have on hand Redipred/Prednisolone, a medication that the plaintiff’s staff had no authority to give to children in its care, could not have constituted a breach of s 167. However, the second delegate found that the section had been breached in relation to these children in a different respect, deriving from what she perceived to be conflict between the generic asthma management plans with which the plaintiff had been provided and the limited scope of authority that parents had given for the administration of medicines.

5. [30]

   The second delegate said this at pp 19-20 of her reasons o 19 August 2022:

6. [31]

   At p 20 of the second delegate’s reasons, the following appears:

Internal review – particular 13 of breach of s 167; sundry other breaches

1. [32]

   In the 2 June compliance notice, particular 13 of breach of s 167 comprised a very minor oversight, on a single occasion, of failing to record the time, as well as the date, of administering a lunchtime dose of Ritalin, a medication for the treatment of Attention Deficit Hyperactive Disorder. The breach also encompassed failure to update the child’s management plan, although he was not due to return to the centre for about seven weeks. The second delegate did not see fit to withdraw this particular.

2. [33]

   Two breaches of s 175 of the Law were particularised in the 2 June notice, resulting from the plaintiff not having had on hand at its Maitland and Rutherford centres full hard copy staff records for two of its employees. The records were held by the plaintiff centrally in electronic form and, in the case of one staff member, a record of her own qualifications was available for inspection on a mobile phone. All required records were were readily available, but not in hard copy at the respective centres. The second delegate dismissed the plaintiff’s submission that this was a merely technical breach, not warranting the issue of a compliance notice. The second delegate said, at p 26 of her reasons:

3. [34]

   With respect, having regard to contemporary electronic record keeping systems in the year 2022, this is a questionable conclusion, with no practical utility to the objects of the legislation. The evidence shows that each of the plaintiff’s centres has access to its central repository of the required records via computer terminal located at the service premises – either by online access or by email transmission of an attachment, the evidence does not specify which. In the present case the plaintiff contends that when the alleged breach was recorded by the inspector a reasonable opportunity was not afforded for retrieval of the centrally held record by this means. In any event, it appears that that would not have satisfied the Secretary. The utility of enforcement at this level of detail is not immediately apparent.

4. [35]

   One breach of reg 75(1) was specified in the original compliance notice, namely, that information about the educational program for the plaintiff’s service at Taree was not available for inspection at the premises. A single breach of reg 103(1) was particularised as wear to a soft fall mat beneath play equipment at the same centre. A single breach of reg 97(4) was particularised as failure to display prominently an emergency and evacuation floor plan and instructions at Rutherford. The second delegate found that these breaches were sustained but accepted the plaintiff’s submission that they did not warrant inclusion in a compliance notice. With respect to the breach of reg 103(1), the second delegate saw fit to issue a compliance direction pursuant to s 176, in place of the compliance notice.

Characterisation of the internal review decision of 19 August 2022

1. [36]

   The second delegate stated her decision on the plaintiff’s review application as follows:

2. [37]

   The second delegate’s reasons were accompanied by a document entitled Compliance Notice dated 19 August 2022. With respect to the most substantial aspects of alleged non-compliance, which were items 2-10 in breach of s 167 as specified in the 2 June notice, the 19 August compliance notice again alleged breaches with respect to the same children at the same care centres but identified a different shortcoming and a different remedy. On 2 June the failure was said to be the absence of Redipred / Prednisolone at the plaintiff’s centres. On 19 August it was said to be that management plans provided to and held by the plaintiff did not make clear that staff at the respective centres were not required or authorised to administer this medicine.

3. [38]

   The 19 August notice stipulated the following “Steps to be taken to comply” with s 167:

4. [39]

   The alternatives available to the second delegate pursuant to s 191(7) were to “confirm” the original decision or to “make any other decision that the Regulatory Authority thinks appropriate”. By no straining of statutory language could it be said that the decision to issue the 19 August notice was to “confirm” the issue of the 2 June notice. That characterisation might have been placed upon the 19 August decision if it had simply withdrawn from the 2 June notice some of the allegations of breach and/or some of the steps required to be taken. However, a notice that not only withdrew a number of alleged breaches but also particularised some of the original breaches in different terms and directed that different rectification be undertaken went well beyond confirmation.

5. [40]

   Necessarily, therefore, the decision of 19 August was “any other decision that the Regulatory Authority thinks appropriate”. On my interpretation of s 191(7)(b) the “any other decision” must find its source of power in another enabling provision of the Law. Section 191(7)(b) is not a substantive source of authority for the Regulatory Authority to make any decision that it wishes, unconstrained. Part 7 of the Law confers upon the Secretary a wide range of powers to be exercised for the purposes of enforcement. “Any other decision” made pursuant to s 191(7)(b) must be supportable by reference to a power-conferring section, either in Pt 7 or elsewhere in the Law. To read s 191(7)(b) any other way would involve attributing to it a freestanding source of unlimited power, because that subsection does not contain within itself any restriction. The scope and limits of “any other decision” must be found in the substantive sources of power specified elsewhere in the Act. In my view it follows that the second delegate was only empowered to make the decision of 19 August to issue a compliance notice materially different from that of 2 June by undertaking a fresh exercise of the power conferred by s 177(2). The decision of 19 August therefore falls within par (h) of s 190 as being of a type that is amenable to internal review under s 191.

6. [41]

   The defendant submits that the decision to issue the 19 August notice was not made under s 177 but under s 191 and that the decision therefore does not fall within any of the paragraphs of s 190 that permit internal review. This argument is said to be supported by s 192(a), which is as follows (emphasis added):

7. [42]

   Section 192 goes on to specify in par (b) seven other categories of decision from which an external review is available. I do not accept that s 192(a) assists the defendant’s argument. Certainly, the provision denies external review of a decision that has been made under s 191 upon internal review of a compliance notice. However, that does not dictate, nor even suggest, that when an internal review of a compliance notice is resolved under s 191(7)(b), the “any other decision” then made must be regarded as only referable to s 191(7)(b) and not to the substantive power, located elsewhere in the Law, upon which the “other decision” draws. Contrary to the defendant’s submission I do not consider that the words “in relation to” indicate that the issue of a fresh compliance notice by way of resolution of an internal review must be regarded as a decision made “under” s 191 and not “under” s 177, for the purposes of applying s 190(h). Possibly, some types of “other decision” made under s 191(7)(b) at the conclusion of an internal review of a compliance notice may not constitute the exercise of a power that falls within s 190(a)-(h). In the present case, where the “other decision” is to issue what amounts to a substantially new compliance notice, the power provided for in s 177 has been exercised and s 190(h) is engaged with respect to that exercise.

8. [43]

   The defendant further submits that to interpret the provisions as permitting an internal review of the 19 August decision would give rise to the “unpalatable”, “inconvenient, improbable or irrational” consequence that there could be “a chain of internal review applications which is potentially infinite until there is a decision in the applicant’s favour”. I do not accept that that is a consequence of the interpretation I have adopted. There would be no right of further review if, at some point in the consideration of a compliance notice and its sequelae, the Secretary should simply confirm the most recent decision under review, relying upon s 191(7)(a). Although it is not necessary to decide this for the purpose of the present case, I consider that confirmation under s 191(7)(a) would include a case where the compliance notice under internal review was upheld with no adjustment other than deletions. The circumstances of the present case are that on 19 August there was issued a compliance notice that was for all practical purposes new. No inconvenience or absurdity flows from a construction of the Law that permits the plaintiff to apply for a first internal review of that new notice.

9. [44]

   Thirdly, the defendant submits that subs (3) of s 191 cannot be reconciled with the interpretation that I have adopted. Subsection (3) is as follows:

10. [45]

    I see no difficulty flowing from that subsection. In the present case, the “assessment or investigation of the person or service to whom or which” the decision of 19 August relates has “involved” the authorised inspectors whose investigation resulted in the 2 June notice as well as the first delegate and the second delegate. If the plaintiff should seek internal review of the 19 August decision, then subs (3) would preclude any of those people from conducting the review.

11. [46]

    Fourthly, the defendant relies upon the use of the definite article in s 191 where it refers to “the review”. It is submitted that this indicates there cannot be more than one internal review of any decision to issue a compliance notice. That submission does not conflict with the interpretation that I have indicated above. What I take to be the correct interpretation does not involve multiple internal reviews of any decision, rather it recognises the plaintiff’s right to one internal review of the exercise of the s 177 power on 2 June and one internal review of the subsequent, distinct exercise of that power on 19 August.

12. [47]

    The defendant also disputes the interpretation that I have adopted on the basis that it is inconsistent with what is submitted to be “a coherent and cascading route to internal and external review” provided for in Divs 1 and 2 of Pt 8. It is submitted that this overall scheme provides that “the affected person will ordinarily have one opportunity to put their case to the defendant (whether through internal review or in response to a show cause notice) and will then have a right of external review”, subject to “the specific carve in s 192(a)” by which external review is excluded in relation to a compliance direction or compliance notice. I do not consider that this alleged overall intent of the Law’s scheme of review is sufficiently clear to displace the interpretation that I have adopted. The interpretation outlined above flows from and accords with the plain text of the Law, on a straightforward reading.

Utility of the proceedings

1. [48]

   An assessment of the utility of the proceedings has a bearing upon the incidence of costs. Before filing its summons the plaintiff identified to the Secretary, in detailed and considered submissions, its reasons for contesting the steps required to be undertaken pursuant to the 19 August notice. So far as the alleged breaches of s 175 were concerned (the question of having hard copy staff records at each centre), the plaintiff’s objections were along the lines referred to at [34] above. With respect to the steps directed to remedying alleged s 167 breaches, namely, that the plaintiff:

2. [49]

   The Executive Director’s email included the following (emphasis added):

3. [50]

   In view of the short timeframe specified in the compliance notice of 19 August (five weeks), the Executive Director requested that his email be treated as an application for internal review. The response from the second delegate was a letter of 19 October 2022 extending time for compliance by about nine weeks to 30 November 2022 but asserting that no internal review is available. That position rested upon the interpretation of the legislation that has been advanced on behalf the defendant in these proceedings and that I have rejected. Pending the Court’s determination of that legal issue the plaintiff has endeavoured to implement the steps required under the 19 August notice in relation to asthma management plans. It has encountered insuperable difficulties.

4. [51]

   After the plaintiff had informed the Department of some of those difficulties, on 2 February 2023 an officer sent an email saying that the Department would accept as sufficient compliance (1) written assurance that all medical management plans had been reviewed with “any inaccuracies identified” and that “action has been taken to rectify the plans”, (2) provision of a 25% sample of “rectified” asthma management plans and (3) evidence that the families concerned with the 25% sample “have provided a response”. Understandably, on 9 February 2023 the plaintiff sought an explanation of what these three requirements meant. It is not clear to me. It remains obscure after reading the Department’s further correspondence of 14 February 2023.

5. [52]

   On 3 March 2023 the plaintiff reported to the Department by email that 843 children in its care were identified as requiring medical management and risk management plans. Of those, 349 were asthma sufferers. Within the group of 349, 190 had management plans that listed preventer and steroid medicines that were not held by the plaintiff at its service centres. The plaintiff had written to each of the families in the last-mentioned category, with the following results:

6. [53]

   The plaintiff’s report to the Department on the above results included the following commentary:

7. [54]

   In the email of 3 March 2023 the plaintiff went on to quote examples of responses from parents who expressed considerable frustration, as members of working families, at being asked to undertake further expensive consultations with medical practitioners to have their children’s management plans revised. A number of them complained about being asked to clarify whether they authorised the plaintiff’s staff to administer Redipred/Prednisolone and/or other medication for acute symptoms, in circumstances where they considered they had made it perfectly clear that they did not. The plaintiff was placed in the impossible position of, effectively, questioning the instructions of parents by which they limited the medications that they permitted childcare staff to dispense. That position arose directly from the second delegate’s conclusion, highlighted in the passage from the 19 August 2022 decision quoted at [30] above. I repeat it for ease of reference:

8. [55]

   On 18 April 2023 an Investigator, Compliance and Investigations of the Education Department notified the plaintiff in the following terms:

9. [56]

   On 2 May 2023 a Senior Solicitor of the Crown Solicitor’s Office wrote to the plaintiff as follows:

10. [57]

    The plaintiff’s response of 11 May 2023 included the following:

11. [58]

    I do not consider that the proceedings have lacked utility from the plaintiff’s point of view. The plaintiff’s unsuccessful endeavours to implement the Secretary’s requirement that asthma medical management plans should be revised has demonstrated that the requirement is incapable of being carried out and that the attempt is counter-productive to relations between the approved provider and its clients and to the provision of high-quality child care to the families affected. The inequity of inflicting these impractical burdens on one approved provider rather than adopting a sector wide standard is self-evident. The Department’s approach of having “closed this compliance action” resolved nothing. It merely manifested incoherence and indecision. By denying that the plaintiff had any legal entitlement to an internal review of the 19 August decision the Secretary in effect sought to shut down further discussion through the only means by which the plaintiff could bring the issue to a head.

12. [59]

    In the circumstances described above, the plaintiff was effectively driven to file and prosecute its summons. A costs order in its favour is appropriate. It is reasonable to observe that for the Department’s outlay on enforcement activity and on these proceedings, it could probably have funded an appropriately qualified medical specialist to advise upon standardised directions to all approved operators, with due consideration for the autonomy of parents in choosing the extent to which they will authorise or require childcare staff to administer medication. The plaintiff has throughout its dealings with the Department urged that competent medical assistance should be recruited. Most recently that plea was reiterated in the highlighted passages of the email of 1 September 2022, extracted at [49] above.

13. [60]

    Throughout its communications with the delgates the plaintiff has expressed willingness to co-operate in implementing the standards of the statutory regime. The plaintiff has frequently offered constructive suggestions, particularly with respect to the subject of medical management. While the plaintiff’s personnel do not profess medical expertise they have demonstrated a practical appreciation of issues concerning medication and parental consent. The Regulatory Authority appears to lag behind the provider in its corporate understanding of these matters. At the outset of the hearing of this case, in an endeavour to understand why the defendant’s compliance activity had festered into litigation, I enquired of the defendant’s counsel whether his client regarded the plaintiff as a recalcitrant, persistent offender. The answer was, “No”. The competence and bona fides of the plaintiff could not be in doubt on the material that has been tendered to the Court.

14. [61]

    Yet the Department’s relationship with this provider has been one of enforcement, penalisation and legal disputation rather than guidance or support. This has led to a perception within the plaintiff’s organisation that it is being scrutinised selectively and unfairly, as expressed repeatedly by the plaintiff’s Executive Director in correspondence over the past year. The sense of being harassed has been imparted to the plaintiff’s childcare staff at the centres. In the plaintiff’s application for review dated 16 June 2022 the Executive Director was prompted to write the following:

15. [62]

    Each child care worker or early childhood educator would be managing a number of young children, trying to organise activities for them and to manage their behaviour. Performance of these duties cannot have been made any easier by the attendance of Departmental inspectors demanding to see stocks of Redipred/Prednisolone that the inspectors erroneously thought should be present, requiring production of hard copy records, refusing to acknowledge a staff member’s qualification certificate on a mobile phone (contrary to almost universal modern commercial practice) and finding minor faults.

16. [63]

    The Department’s generation of anxiety by its approach to administering the Law has extended to a number of families. They are economically dependent upon the availability of the services offered by the plaintiff. The direction of 19 August for review of health management plans has caused concern amongst parents about their capacity to attend to this and about the eligibility of their children for care in the meantime. The direction has subsequently been abandoned by the Investigator’s email of 23 April 2023, but only after imposing additional medical consultations upon families who can ill afford the expense.

17. [64]

    If, on the other side of the account, the Secretary’s compliance campaign with respect to the plaintiff has delivered benefits to the public, to approved providers, to parents or to children, those benefits have not come to light in the evidence tendered in these proceedings. The plaintiff’s summons has been at least useful, perhaps necessary, as a means of requiring the Secretary to take responsibility for settling the disruption and uncertainty that have been caused by the 19 August decision.