Department of Education – Show Cause Notice Before Prohibition Notice
Introduction
In Queensland, the Department of Education (the ‘Department’) is the regulatory authority that can investigate suspected non-compliance with the Education and Care Services National Law (Queensland) 2013 Act (the ‘Act’) and the Education and Care Services National Law (Queensland) Regulations 2011.
The Department has a wide range of powers under the Act and Regulations to take action against individuals or companies that are regulated by these laws.
If a person receives a show cause notice from the Department in relation to a prohibition notice, usually this could also mean that there will be further correspondence (if not already received) from other regulatory bodies such as Blue Card Services, Queensland College of Teachers or the NDIS.
This article will focus on discussing the Department’s powers in relation to a prohibition notice and will set out the general process involved in the context of a prohibition notice.
This article is general in nature and should not be construed as legal advice. If you require specific legal advice, you should seek independent legal advice as soon as possible.
In some cases, there may be ongoing criminal charges, or potential criminal offences which means that caution should be exercised to ensure that a person’s rights are fully protected as best as possible in the circumstances.
Potts Lawyers have experienced criminal and litigation lawyers who are well versed in dealing with both the criminal and civil aspects. We offer a 20-minute obligation-free consultation to discuss your matter.
You can contact our firm on 07 5532 3133 to speak with one our solicitors.
What is a prohibition notice?
A prohibition notice is a serious enforcement action taken by the Department against early childhood providers and educators.
As the name suggests, it prohibits an early childhood provider or educator from doing things that are stated in the prohibition notice.
What are the grounds for a prohibition notice?
Under section 182(1) of the Act, the Department may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed:
- to remain on the education and care service premises; or
- to provide education and care to children.
The wording of section 182(1) captures a wide range of people and can include people who were formerly involved in the provision of an approved education care service.
Under section 182(3) of the Act, the Department may also give a person a prohibition notice to a person to:
- prohibit them from being nominated as a nominated supervisor if the Department considers them not to be a fit and proper person to be nominated as a supervisor; or
- impose one or more conditions on the nomination of the person as a supervisor that the Department considers appropriate, if the Department considers the person is a fit and proper person to be nominated as a supervisor as long as they comply with those conditions.
What are the contents of a prohibition notice?
The content of the prohibition notice varies depending on the section of the Act that the Department is relying upon to exercise its powers.
Sections 185(1) and (2) of the Act sets out the contents of a prohibition notice, namely:
- if the Department gives a person a prohibition notice under section 182(1) of the Act, the prohibition notice must state that the person is prohibited from one or more of the following:
- providing education and care to children for an education and care service;
- being engaged as an educator, family day care educator, employee, contractor or staff member of, or being a volunteer at, an education and care service;
- carrying out any other activity relating to an education and care service.
- if the Department gives a prohibition notice under section 182(3) of the Act, the prohibition notice must state that either:
- the person is prohibited from being nominated as a nominated supervisor of an education and care service; or
- the person may only be nominated as a nominated supervisor of an education and care service on the condition(s) set by the Department in the prohibition notice.
Before the Department issues a prohibition notice
Under section 183(1) of the Act, before the Department gives a person a prohibition notice, they must give a ‘show cause notice’ stating:
- that the Department proposes to give the person a prohibition notice;
- the reasons for the proposed prohibition notice;
- invite the person to make written submissions to the Department, within a stated time of at least 14 days, about the proposed prohibition notice.
However, under section 183(2) of the Act, the requirements to first provide a person with a show cause opportunity does not apply if the Department is satisfied that it is necessary, in the interests of the safety, health and wellbeing of a child or children, to immediately issue a prohibition notice to the person.
If the Department provides a person with a show cause notice they must have regard to any written submissions received within the time stated in the show cause notice before giving a person a prohibition notice.
If the Department decides not to issue a prohibition notice, they must give notice to the person.
What is a show cause notice in the context of a prohibition notice?
A show cause notice is an opportunity for the person to provide written submissions to the Department before the Department giving a person a prohibition notice (unless section 183(2) of the Act applies).
It is important to carefully consider any written submissions provided to the Department. Particularly, if a person has been charged with a criminal offence that may be related to the basis of the show cause notice received from the Department as written submissions (if not drafted appropriately or carefully) may prejudice the outcome of the criminal charge.
Is there an alternative to a prohibition notice?
The short answer is yes, but that depends on the basis relied upon by the Department in their show cause notice when they are proposing to give a person a prohibition notice.
If the Department gives a person a show cause notice proposing to give that person a prohibition notice, the Department may accept a written enforceable undertaking from a person instead of giving them a prohibition notice.
What is an enforceable undertaking in relation to a prohibition notice?
An enforceable undertaking is a promise made to the Department of Education where an approved provider or person agrees to take certain actions or refrain from taking certain actions in relation to an education and care service.
A person may, with the consent of the Department, withdraw or amend an undertaking.
The Department may withdraw its acceptance of the undertaking at any time, which would mean that the undertaking ceases to be in force upon the Department withdrawing it.
The Department may publish the undertaking accepted on its website.
Section 179B of the Act sets out certain actions which are prohibited by the Department while the undertaking is in effect.
Section 180 of the Act sets out certain actions which are prohibited by the Department if the undertaking is complied with.
What happens if a person fails to comply with the undertaking given instead of a prohibition notice?
Under section 181(1) of the Act, if the Department considers that a person has failed to comply with an accepted undertaking, the Department may apply to the relevant tribunal or court to enforce the undertaking.
Under section 181(3)(c) of the Act, If the relevant tribunal or court determines that an approved provider has failed to comply with a term of an undertaking (which was given instead of a prohibition notice), the Department, may without further notice, give the approved provider a prohibition notice.
Under section 181(5) of the Act, if the relevant tribunal or court determines that a person has failed to comply with a term of an undertaking (which was given instead of a prohibition notice, the Department may, without further notice, give the person a prohibition notice.
Next steps
If you receive a show cause notice from the Department about a proposed prohibition notice, it is important to take the matter very seriously and to seek independent legal advice as quickly as possible.
There may be related or ongoing criminal charges (or the potential for such charges to arise) and it is important to seek independent legal advice from a firm that can assist with the show cause notice and any criminal charges.
Contact Us
Potts Lawyers have experienced criminal lawyers and expert litigation lawyers who are well-versed in dealing with both the criminal and civil aspects.
We offer a 20-minute obligation-free consultation to discuss your matter. You can contact our firm to speak with one of our solicitors.
Request a free online consultation or call our Gold Coast Office on (07) 5532 3133 or our Brisbane Office on (07) 3221 4999.