NSW's breaches are unbelievable!

Despite the national authority for Australia's early childhood education and care sector (ACECQA) confirming that "91% of services meeting the National Quality Standard (or higher)" (on 6 February 2025 (based on November 2024 ACECQA Snapshot),  the Productivity Commissioner's latest annual Report on Government Services (on 11 February 2025) highlights a very different reality especially for services in New South Wales:

For the fifth consecutive year, NSW not only has the highest number of breaches than any other Australian state or territory, NSW had more breaches than the rest of the nation combined!

The latest Report on Government Services also shows that NSW services continues to have the highest probability of attracting breaches:

• 325.3% (up from 303%) probability per NSW early childhood education and care service
• 202.9% (up from 138%) probability per TAS early childhood education and care service
• 187.9% (up from 107.5%) probability per NT early childhood education and care service
• 174.6% (down from 183.3%) probability per QLD early childhood education and care service
• 147.7% (up from 50.4%) probability per ACT early childhood education and care service
• 146.4% (down from 183.1%) probability per WA early childhood education and care service
• 118.4% (up from 107.2%) probability per VIC early childhood education and care service
• 77.7% (down from 99.5%) 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 ever-growing 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 (generated) in NSW, thankfully these do not appear to translate to a systemic loss of children's safety.

That said, ACA NSW has consistently and overtly been concerned about the increasing workload and burdens on early childhood education and care services.

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

ACA NSW has regularly raised this and sought to resolve this 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.

Instead, the NSW Department of Education provided a written 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)"

The NSW Department of Education also provided another written response on 8 November 2024 that:

"Where services are not following their own documented policies and procedures, a breach is recorded."

In other words, if a NSW-based early childhood education and care service were to include in their own documents outlining policies/procedures that exceed the relevant requirements of the National Quality Framework, National Law, National Regulations and/or any other legal requirement, and did not fulfill them (even though the NSW service was in compliance with the NQF, legal and/or regulatory requirement), the NSW service is likely (if not certainly) to have a breach(es) recorded.

ACA NSW continues to believe that regulatory approaches should be nationally 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 own calibration of regulatory activities and practices 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: 12 FEBRUARY 2024, 8 APRIL 2024, 13 FEBRUARY 2025

FIRST PUBLISHED: 12 JULY 2023