OOSH provider St Nicholas Early Education wins court bid against Department of Education

St Nicholas Early Education services, which operates 33 out-of-school-hours OOSH services for children at Catholic schools in the Maitland-Newcastle Diocese, as well as 12 early childhood learning centres, caters to about 5,200 children.

The service was taken to task over allegations it failed to properly manage children with asthma at six of its OOSH centres in Abermain, Branxton, Lochinvar, Maitland, Rutherford and Scone.

However, Supreme Court Justice Des Fagan criticised the department for inflicting "impractical burdens" on St Nicholas rather than adopting a sector-wide standard.

He described the laws regulating the industry as a "superstructure of minute regulation" which 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," Justice Fagan said.

As it was, the centres operated on a not-for-profit basis, and there was 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," he said.

In this case, the department was seeking for St Nicholas to keep on the premises asthma-related drugs which were only required to be taken once per day, at home.

"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 ... carrying a $50,000 fine, and issue a statutory notice for which non-compliance attracts a $30,000 fine ... (when) 'online research' was considered (upon review) sufficient to show that by following parental instructions, which accorded with the nature of the medication, the plaintiff (St Nicholas) took 'every reasonable precaution' as required by the Law," Justice fagan said.

"It is difficult to see why the inspector and (department) 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."

The department's requirements were outside of accepted industry practise, medical advice and community standards.

Being forced to approach parents for updated asthma plans in an effort to appease the department, St Nicholas reported that four families withdrew their child's asthma plans saying they had outgrown them, and two families left the service citing the requirement of a new asthma plan where it was not a requirement at other services.

"A significant number of parents have expressed concerns around the cost and availability of accessing their GP/specialist to request a further update to the plan and whether this accessibility issue will threaten the ability of their child/children to continue attending care," the department's legal counsel said.

"Out of the responses received, less than 14 per cent have been able to provide updated plans that [meet] the requirements [the department] have outlined. We believe this to be further evidence that the department's current approach with the approved provider's services is outside of accepted industry practice, medical advice and community standards."

Justice Fagan ordered the department to pay St Nicholas's costs, saying the money it had spent on its approach to enforcement could probably have funded "an appropriately qualified medical specialist" to advise on standardised directions to all approved operators, taking into account the autonomy of parents to choose the extent to which they will authorise or require childcare staff to administer medication.

"The department's relationship with this provider has been one of enforcement, penalisation and legal disputation rather than guidance and support," he said.

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