Today Abigail passed a call for papers to investigate the clear failings of the NSW regulator of early childhood education and care, following recent increasing reports of harm to children in the care of these services. 

Abigail said:

I seek the leave of the House to amend private members' business item No. 1561, standing in my name on today's Notice Paper, by:

(1) Omitting "21 days" and inserting instead "28 days".

(2) Omitting "created since 1 January 2020" and inserting instead "created since 1 January 2021".

(3) In paragraph (k) inserting "(other than standardised notices or circulars sent to all, or a category of, ECEC providers)" after "forms of communication".

Accordingly, I move:

That, under Standing Order 52, there be laid upon the table of the House within 28 days of the date of passing of this resolution the following documents created since 1 January 2021, in electronic format if possible, in the possession, custody or control of the Deputy Premier, Minister for Education and Early Learning and Minister for Western Sydney, the Department of Education, the Minister for Police and Counter-Terrorism and Minister for the Hunter, the NSW Police Force, the Minister for Families and Communities and Minister for Disability Inclusion, the Department of Communities and Justice, or the Office of the Children's Guardian relating to the early childhood education and care sector:

(a) all documents relating to emergency action notices, prohibition notices, suspension notices, compliance notices, show cause notices or other notices or directions served on or regarding early childhood education and care [ECEC] providers under the Children (Education and Care Services) National Law (NSW) 2010 (the National Law);

(b) all written notices of decisions to cancel, suspend or continue approval of a service provider;

(c) any notifications to parents of children enrolled at an education and care service about the suspension or cancellation of provider approval;

(d) all documents relating to enforceable undertakings regarding early childhood education and care;

(e) all documents relating to suspected, alleged or actual criminal conduct, reportable incidents or allegation or risk of significant harm incidents, including:

(i) suspected criminal conduct in an ECEC provider towards a child;

(ii) alleged or actual criminal activity, including fraud, in relation to ECEC provision in New South Wales;

(iii) any investigations of suspected or proven criminal conduct towards a child or any other criminal activity related to New South Wales ECEC provision;

(iv) any actual or alleged offence of failing to notify certain circumstances or information, or failing to keep enrolment and other documents, as required by the National Law;

(v) any actual or alleged offence of using inappropriate discipline or of using an inappropriate person;

(vi) any actual or alleged offence relating to protection of children from harm and hazards;

(vii) any reports or notifications to the Department of Communities and Justice of risk of significant harm [ROSH] for children while in the care of New South Wales ECEC providers;

(viii) any reports or notifications to the Office of Children's Guardian of reportable allegations against staff, volunteers or contractors working for a New South Wales ECEC provider; and

(ix) any reports or notifications of reportable incidents to the National Quality Agenda IT System [NQA ITS] from New South Wales ECEC providers.

(f) all documents, including ministerial briefing documents, relating to death, serious injury or physical or sexual abuse of a child and a New South Wales ECEC facility or staff;

(g) all documents, including any briefs, relating to prosecutions of early childhood providers and educators, including in relation to:

(i) any recommendations for prosecution for conduct towards a child suspected to be criminal, or other criminal activity related to ECEC provision in New South Wales;

(ii) any recommendations for prosecution of criminal conduct against any New South Wales ECEC providers and or staff in such a facility; and

(iii) any prosecution of any New South Wales ECEC providers or their employees or contractors.

(h) all documents relating to allegations of fraud, money laundering or scams regarding New South Wales ECEC provision;

(i) all documents regarding actual or alleged wage underpayment in any New South Wales ECEC;

(j) all correspondence with the Productivity Commission or the Australian Competition and Consumer Commission relating to New South Wales ECEC providers;

(k) all documents, including emails and all forms of communication (other than standardised notices or circulars sent to all, or a category of, ECEC providers), sent between the department and representatives or employees of any of the following entities:

(i) G8 Education;

(ii) Guardian Child Care;

(iii) Affinity Education Group;

(vi) Busy Bees Early Learning Australia;

(v) Edge Early Learning;

(vi) Green Leaves;

(vii) Imagine Education;

(viii) Story House Early Learning;

(ix) Montessori Academy;

(x) Greentown Education;

(xi) Bright Horizons, also known as Only About Children;

(xii) Nido Early School;

(xiii) Mayfield;

(xiv) Sparrow Early Learning;

(xv) Fullshare Holdings;

(xvi) Journey Early Learning;

(xvii) Little Zak's Academy;

(xviii) Eden Academy;

(xix) Embark Early Education;

(xx) Stepping Stones;

(xxi) Explore and Develop;

(xxii) Aspire Early Learning;

(xxiii) Tallawong Childcare;

(xxiv) Tallawong Early Learning; and

(xxv) Genius Childcare.

(l) all documents regarding compliance visits, spot checks or other compliance monitoring activities of ECEC providers;

(m) all documents relating to grants and payments made by the Childcare and Economic Opportunity Fund since its inception;

(n) all documents relating to grants and payments made under the Start Strong for Long Day Care program; and

(o) any legal or other advice regarding the scope or validity of this order of the House created as a result of this order of the House.

It gives me no joy to move this motion today. The motion calls on the Government to provide documents relating to the regulation of the early childhood and education sector in New South Wales. The sector is responsible for the care of the most vulnerable people in our society: our children. Reports of harm to children in early childhood education and care [ECEC] settings have escalated over the past year. Last month, three shocking incidents were reported in just one week.

First, a childcare worker was charged with sexually abusing eight children in a regional day care centre. The next day, a Sydney day care worker was arrested and charged with sexual touching of a young child. The day after that, another childcare worker was charged with more than 10 counts of child abuse after allegedly filming himself abusing young boys while in the classroom and bathroom, and also allegedly pleasuring himself in the classroom in front of children. That was just in October of this year and just in New South Wales. I could go on for hours listing all of the other cases involving instances of abuse against children in ECEC settings across Australia.

There have been numerous other reports alleging neglect, short staffing, widespread breaches of regulation and cutting of corners, particularly by the profit-taking larger players that dominate this sector. My office has heard stories of children being harmed because of failures to adequately supervise children or keep premises repaired. Separately, we hear from workers in these centres that they are increasingly concerned about the safety of the children in their care. On top of that, workers in the industry have been raising the alarm for years about poor working conditions, low pay and dodgy and exploitative training and work experience programs.

Much like the aged care sector, the early childhood and education sector in Australia has become a largely privatised industry. Like the aged care sector, the only thing standing between companies that will do whatever they to can boost revenue and make more profit, and the children who will suffer if too many corners are cut in the pursuit of that profit, is regulation, monitoring and enforcement. It is a horrible aspect of humanity to confront, but wherever there are vulnerable people, there are other people willing to exploit that vulnerability. In both aged care and child care we have circumstances where people who are abused are less likely to be able to report their abuse or have their reports believed, and predators know that. When we add to those circumstances of vulnerability companies running these settings for financial gain with inherent incentives to cut corners and avoid scrutiny, anything less than the strongest and most proactive of regulatory regimes will leave people in harm's way.

With so many reports of harm to children and so many red flags being raised by staff and parents, it appears that the regulator in New South Wales is asleep at the wheel. With so much at stake, if we fail to adequately regulate the sector, I am left with no choice but to move this motion, to allow us and the public to review what has been happening in the sector, where the failings are and what we now need to do to reform it. I bring this motion because enough is enough. Children are being abused, trust is being betrayed and the sector is failing. We cannot just stand by and watch it happen.

I thank all parties for their willingness to discuss the motion with me, including the Government. Although we have not been able to reach a clear agreement on the scope of this call for papers, I note that I have made concessions by amending the motion to reduce its scope as a measure of good faith. I hope that going forward the Government will work with us to reform this sector that is so vital not just to children and their families but to society more broadly. I commend the motion to the House.

The Hon. JOHN GRAHAM (Special Minister of State, Minister for Roads, Minister for the Arts, Minister for Music and the Night-time Economy, and Minister for Jobs and Tourism): I thank the member. Listening to the way she has put the case, members would recognise these are very serious issues and they need to be dealt with sensitively. I thank the member for bringing the issues to the Chamber. I indicate that the Government is opposing the motion, given the concerns I will place on the record. But as the member has indicated, the Government has taken the issue very seriously.

I am advised that the Deputy Premier's office and the Deputy Premier and Minister for Education and Early Learning, Prue Car, spoke with the member today to discuss the order and raise concerns regarding its scope and nature. There have been some good discussions along those lines. I recognise that there is now an amendment to extend the timeline and narrow the time frame for which documents are sought, but the motion still seeks documents under 14 broad categories over an almost five‑year period.

I place on record some of the concerns of the relevant agencies. The primary concern is the protection of the children. Agencies have raised the concern that the release of some documents captured under the order could reveal sensitive information to ongoing criminal proceedings, including revealing the regulator's investigation methodology. That poses the risk of providing people with an avenue to evade that investigation. There are also concerns about the volume of resources. I will not spend long advocating for that. I know that members have taken a traditionally hard line on that process. But I place those concerns on record, including referring to the advice of 9 April 2014 of the Solicitor-General and Ms Mitchelmore, which has previously been tabled in the House. I refer back to that advice.

While there are volume issues, it is the nature of the documents sought, including extensive, sensitive, personal information, that significantly increases the practical difficulties, alongside the volume. The advice to the Government—and this is why the Government has to oppose the motion—is that it could put ongoing investigations at risk. Speaking to the documents sought from the disability inclusion area, this motion calls for all reports or notifications to the Department of Communities and Justice regarding risk of significant harm while in an early education setting. That means all reports received by the child protection system, whether the child was found to be at risk of significant harm or not. That would require a qualitative review of tens of thousands of reports.

It would include sensitive information that could reveal the personal details of mandatory reporters, children and families in the child protection system. It would be inappropriate for sensitive information of that nature to be shared. The Government is prepared to work with the member, but I have been asked to place those concerns on the record. They are relevant to the production of documents but also to how members or the House may seek to subsequently deal with the documents, particularly if they are provided under privilege. I will outline the concerns of the police. The Police Force has asked the Government to alert the House to the fact that the team that takes care of the call for papers process is a small but important team within the NSW Police Force's Office of the General Counsel. They are currently responding to the call for papers from the Hon. Jeremy Buckingham. I ask my colleagues to continue the Government's remarks to the motion.

The Hon. EMILY SUVAAL (Labor Party): I contribute to the debate on the motion. I continue where the Hon. John Graham ended in terms of the team that is currently responding to a very large number of matters, including a call for papers by the Hon. Jeremy Buckingham. Importantly, the team is working on the coronial inquest into the tragic incident at Westfield Bondi Junction earlier this year. That is an incredibly important piece of work, and responding to this very broad call for papers will pull resources away from the inquest. As it currently stands, the NSW Police Force would be unlikely to be able to produce the relevant documents due to the broad drafting of this call for papers.

Further, the terms of this order make it nearly impossible for the Police Force to conduct an accurate search. The NSW Police Force would not have the relevant details about any persons and their employment within an early childhood education and care provider and therefore would find it difficult to produce the material within the given time frame. I am advised information could sit with any police area command and police district or command across the NSW Police Force. I understand there have been discussions with the member about allowing the NSW Police Force to make its return to this order early next year after documents have been provided by the relevant regulator. That would allow the scope of the order to be refined so that the NSW Police Force can adequately respond to the order with the information relevant to the member.

I am also advised that many of the documents sought in the motion concern the administration of justice. In particular, paragraphs (e) to (h) of the motion seek, on their face, documents concerning alleged criminal conduct and criminal prosecutions. Those documents are within the purview of the Crown and courts and must be sought under Standing Order 55. They do not fall within the purview of the Executive Government and cannot be required to be produced under Standing Order 52.

I refer members to the Crown Solicitor's advice dated 19 January 2021 regarding this issue, which was tabled in response to an order for papers naming the NSW Police Force. The advice considers the operation of what was at the time Standing Order 53, now Standing Order 55. That advice considers the standing orders and previous case law and provides clear guidance as to whether a document concerns the administration of justice. Paragraph 11 of the advice notes the following three principles in relation to this issue:

(a) The historical and constitutional basis for the distinction between the operation of SO 53—

now Standing Order 55—

and SO 52 lies in the distinction between the Crown (as Sovereign) and the executive government, as well as the separation of judicial and legislative functions.

…

This context should inform the interpretation of SO 53.

(b) Documents will "concern the administration of justice" if they contain material touching on or concerning court proceedings. There must be some connection with actual … court proceedings, including prospective proceedings.

The Hon. CHRIS RATH (The Coalition): On behalf of the Opposition, I indicate support for the motion moved by Ms Abigail Boyd. The honourable member has done a good job of working with the Government to ensure that concessions or amendments have been included to agree, where possible, with the Government's request. We do not believe that the scope is unreasonable in its nature. We do not believe the concerns the Government now holds, which are concerns they did not hold when in opposition, about the volume of papers that would need to be produced is a legitimate concern. The Opposition has great belief that our public servants will be able to produce the requested documents in the appropriate time frame.

In the off‑chance that they are not able to produce the documents in the stated time frame, there is always the option of requesting an extension. In terms of the confidential nature of some of the documents, that can be worked through as well. Certain documents can be redacted or made privilege so they are viewed by members of this House only. There can be situations in which certain documents are not produced. But I do not think scenarios would develop in which information would be so sensitive that, if it were publicly available, it would interrupt various legal proceedings. The Opposition supports the motion. We have great belief that our public servants will meet the deadlines. We support greater accountability and transparency. We thank Ms Abigail Boyd for moving the motion.

The Hon. STEPHEN LAWRENCE (Labor Party): I also speak against the motion. The Government's firm position, which of course is based on advice, is that the motion is excessively broad and could capture documents that may impact on a number of ongoing criminal proceedings. I understand that Ms Abigail Boyd has moved an amendment that extends the timeline to 28 days and narrows the time frame by 12 months. But notwithstanding that, the motion seeks documents under 14 broad categories over an almost five-year period. The Government's primary concern is the protection of children. Not only could the release of some documents captured under this broad order reveal sensitive information in respect of criminal proceedings, but it could also reveal the regulator's investigation methodology and therefore pose the risk of providing people with an avenue by which to evade investigation.

Moreover, the quantum of the request for documents, as already discussed, would have the effect of diverting resources away from important ongoing investigations because the only staff able to process the request are those also tasked with other matters. In essence, the advice of the Solicitor General from 2014, which has been tabled in the House and published, states that it is reasonable, as a matter of privilege, to query or dispute an order that contains an impractical deadline or seeks documents in a way that is so broad and unwieldy as to place great practical difficulties on compliance. That advice has been referred to in this place before. I suggest it is difficult to see how such a broad order for papers is reasonably necessary for the functions of the House. In the Government's view, the imposition of this level of additional burden in an unreasonable time frame would compromise the primary function of the regulator, which is to keep children safe.

In relation to the scope of the motion, it calls for all reports or notifications to the Department of Communities and Justice [DCJ] regarding the risk of significant harm. For example, that would mean all reports received by the child protection system, whether the child was found to be at risk of significant harm or not. It would require a qualitative review of tens of thousands of reports and would include highly sensitive information that could reveal the personal details of mandatory reporters, children, and families in the child protection system. In the Government's view, it would not be appropriate for sensitive information of this nature to be shared. If the member would like more specific information, the Government is happy to work with her and provide to her what the Government can.

Ms ABIGAIL BOYD: In reply: I thank the members who contributed to the debate. I understand that a lot of what Government members said during the debate had come from other Ministers and departments, but I take issue with quite a bit of it. Firstly, I have done nothing but be willing to cooperate when it comes to negotiating the terms of this Standing Order 52 request. As I made clear when I moved my amendments to the motion at the beginning, and during my contribution introducing the motion, I am open to having further discussions on narrowing the scope of the motion and putting it in tranches—whatever it happens to be—as I have done consistently in this House for the last 5½ years.

For example, with the risk of serious harm reports, at no point was I given an amendment by the Government that would have narrowed that provision. When I investigated this, I was informed by people who know how these things work that in fact that would not be the case—that a risk of serious harm report would be an actual risk of serious harm report, not minor incidents reported. So I take issue: If Government members think The Greens could have done something to narrow this provision before the motion was moved, I would have been most open to that, but they did not come to us in that form. The idea that, by seeking to investigate the clear failings of a regulator, we are risking them failing more through a diversion of resources is quite offensive.

On the back of all of the reporting of sexual abuse of children in facilities and of the failings of the regulator, for the Government to then say, "Oh, yes, but if you look into this, they might fail more and maybe some more children will be harmed," is really offensive. It is our job in this place to hold the government of the day accountable, and that means using the powers of the House to investigate to the greatest extent possible what is going wrong in systems when something this grave is happening to children in this State. I do not apologise for moving this motion today. I also do not apologise for it being broad, because, by its nature, it needs to be. I will give the Government the benefit of the doubt and say that I am willing to negotiate once it has done a full investigation into the extent of these documents, but it is very disappointing that, after everything, the Government still opposes the production of these documents.

The motion was voted on and agreed to, with Labor the only ones in opposition. 

Read the full transcript in Hansard here.

13 November 2024