Overview
The department conducts investigations at early childhood education and care services where there is reason to believe that offences have been, or are being, committed that pose a risk to the safety, health or wellbeing of any child at the service.
Those investigations are carried out by Authorised Officers with the assistance of other persons when reasonably required.
Matters investigated
The department will only investigate matters that are within its jurisdiction, that is potential offences against the:
- Education and Care Services National Law Act 2010 (National Law)
- Education and Care Services National Regulations (National Regulations)
- Children’s Services Act 1996 (CS Act)
- Children’s Services Regulations 2020 (CS Regulations)
- Child Wellbeing and Safety Act 2005 (CSWA).
From 1 January 2023 the department is now an integrated regulator of the Child Safe Standards for early childhood services under the CSWA.
Matters outside of jurisdiction cannot be investigated by Authorised Officers.
The department may become aware of a possible offence in many ways, including:
- of departmental officers’ direct observations during a service visit
- notifications made by the approved provider about serious incidents or complaints at the service
- direct complaints received about care provided for children at the service
- reports made by service staff, or other agency staff, about observed issues of concern
- disclosures made by children
- referral by another agency.
To lodge a complaint about an early childhood service where you have concerns regarding the safety, health or wellbeing of children, or the behaviours and practices of staff at an early childhood service, please visit Make A Complaint About Early Childhood Services.
Investigation process
Procedurally fair, ethical and transparent investigations are of critical importance to the department. If an incident has occurred, a systematic process will take place to establish whether or not it constitutes non-compliance with the legislative requirements.
An assessment is made of the potential level of risk to the safety, health or wellbeing of any child or children at a service whenever the department becomes aware of a possible breach of legislation.
The department places the highest priority on investigating possible breach of legislation that represent the greatest risk to children, including initiating immediate risk management strategies when appropriate.
The nature and timeframes of an investigation vary depending on the complexity and the degree of cooperation experienced during the investigation. The department aims to achieve appropriate outcomes within reasonable timeframes and to minimise service disruption.
Following an investigation
The department informs the approved provider of the education and care service of the outcome of the investigation including whether enforcement action is being considered. The department will also advise any other relevant party of the investigation outcome.
In doing so, the department will not provide information where disclosure is prohibited by the relevant legislation or is otherwise protected by law. For example, the details of certain statutory sanctions, such as prohibitions under the National Law, are not provided because the National Law does not allow those actions to be publicly communicated.
Where the evidence collected during an investigation supports a view that an offence has occurred, consideration will be given to the most appropriate way to address the situation. This may include enforcement action where persistent or serious offending has been identified at a service.
The role of Authorised Officers
Authorised Officers are departmental employees delegated with the authority to undertake certain functions and exercise particular powers in accordance with the National Law and the Children's Services Act.
They must carry an identity card, and show it upon request and on entering a service, whenever undertaking their functions or exercising their powers.
Authorised Officers have a role in assessing and monitoring early childhood education and care services as well as in relation to the conduct of investigations.
Authorisation of Authorised Officers
- National Law, Section 195
- Children's Services Act, Section 136.
Powers of entry to undertake investigations
Authorised Officers, with any necessary assistance, may enter and inspect any approved service at any reasonable time, with or without the consent of the occupier, to conduct an investigation. They may also enter and inspect the business premises of an approved provider for a similar purpose.
Authorised Officers have broad powers to search the service or business premises and anything within it in order to collect evidence, that persons at the service provide information, and to make recordings.
An Authorised Officer may also obtain a search warrant when appropriate to do so, including when there is reason to believe that an unapproved service is being operated in contravention of the National Law.
Powers of entry
- National Law, Part 9 Division 2
- Children's Services Act, Part 5B Division 2.
Requirements to assist Authorised Officers
There is a general expectation that Authorised Officers will be given reasonable assistance when they are exercising their powers. It is an offence to obstruct, fail to assist, destroy documents or damage notices, and/or otherwise inhibit and mislead investigation that may result in a fine or prosecution.
Offences relating to enforcement
- National Law, Part 9 Division 4
- Children's Services Act, Part 5B Division 4.
Complaints about Authorised Officers
If any person believes that an Authorised Officer of the department has behaved in a way that is unlawful or unreasonable during the conduct of an investigation, they may make a complaint (PDF) to the department.
All complaints about Authorised Officers will be reviewed and investigated by a manager or other senior departmental officer.
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