NSW's breaches are unbelievable!

The Productivity Commissioner has released its latest annual Report on Government Services for 2024.

Yet again, NSW not only has the highest number of breaches than any other Australian state or territory, the last three financial years showed NSW had the majority share the nation's breaches!

The latest Report also infers that NSW services effectively have the highest probability of attracting breach notices:

• 303% (up from 273%) probability per NSW early childhood education and care service
• 183% (up from 168%) probability per WA early childhood education and care service
• 183% (up from 142%) probability per QLD early childhood education and care service
• 138% (up from 61%) probability per TAS early childhood education and care service
• 107% (up from 105%) probability per NT early childhood education and care service
• 107% (up from 83%) probability per VIC early childhood education and care service
• 50.4% (up from 46%) probability per ACT early childhood education and care service
• 99.5% (up from 39%) probability per SA early childhood education and care service

What does not make sense is the starkly low number of prosecutions (ie enforcement actions) that the NSW Department of Education has taken over the same period given NSW's high number of breaches.

Taking the two sets of data into consideration, especially given the extremely low number of enforcement actions relative to the huge number of breaches in NSW, thankfully these do not translate to a systemic loss of children's safety.

That said, for many years, ACA NSW has consistently and overtly been concerned about the increasing workload and burdens on early childhood education and care services, where breaches/non-compliances contribute toward in some not so insignificant proportion.

Moreover, the stresses and morale of services and their educators and teachers upon receiving breaches/non-compliances especially for low levels of regulatory non-compliances add toward the loss of vocational satisfaction and the increasing rate of attrition.

ACA NSW has regularly raised this and sought to discuss this in detail with the NSW Department of Education with the view of reaching a mutually acceptable landing on how to balance the NSW Regulatory Authority's regulatory obligations while still ensuring services produce quality and safe outcomes for children.

The NSW Department of Education finally provided a formal response on 28 March 2024 as follows:

"Jurisdiction comparisons are not advised due to different approaches.

NSW’s approach is to record all areas of non-compliance. This is to enable better data capture to monitor risk trends and patterns and inform our proactive regulatory efforts such as campaigns and communications in order to optimise safety and quality.

A high number of breaches may not necessarily indicate a lower quality of services but may indicate more intensive regulatory practice (for example, more frequent regulatory visits or a higher propensity to investigate complaints). The NSW approach is based on our commitment to safety and quality.

There are also technical reasons as to why breach data is variable and caution should be exercised when comparing across jurisdictions:

1. When a breach is added to the NQA ITS system (at time of breach or at a later stage)

2. Where a breach is recorded (direct to NQA ITS or into an external application)

3. Issuance of guided advice alongside a breach notice or not (approaches are highly variable across jurisdictions)"

ACA NSW continues to believe that regulatory approaches should be consistent across the nation given the National Quality Framework. All Regulatory Authorities must be cognisant of and immediately respond to the consequences of regulatory workload on services, educators and teachers. And above all, every Regulatory Authority should critically reflect if their different calibration of regulatory activities overtly achieve superior and measurable outcomes for their jurisdiction.

For any further information/clarification, please contact the ACA NSW team via 1300 556 330 or nsw@childcarealliance.org.au. 

UPDATED: 8 APRIL 2024 & 12 FEBRUARY 2024

FIRST PUBLISHED: 12 JULY 2023