In the NSW and VIC early childhood sector, safeguarding children and ensuring accountability in service operations are paramount. But what happens when a complaint—particularly one involving alleged harm to a child—is investigated by the Department of Education and deemed “inconclusive,” with no breach of law or regulation found? Can that decision be contested, and if so, how?
This article outlines the formal pathways available to services and individuals in NSW and VIC who seek to challenge departmental decisions, especially in cases where child safety concerns remain unresolved.
NSW Legal and Regulatory Framework
In NSW, early childhood education and care services are governed by:
- Children (Education and Care Services) National Law (NSW)
- Education and Care Services National Regulations
- Child Protection (Working with Children) Act 2012 (NSW)
- Children and Young Persons (Care and Protection) Act 1998 (NSW)
The NSW Department of Education is the regulatory authority responsible for investigating complaints and ensuring compliance with these laws.
VIC Legal and Regulatory Framework
Victorian early childhood services operate under the following legislation:
-
Education and Care Services National Law Act 2010 (Vic)
-
Education and Care Services National Regulations
-
Children, Youth and Families Act 2005 (Vic)
-
Child Wellbeing and Safety Act 2005 (Vic)
-
Working with Children Act 2005 (Vic)
The Department of Education and Training (DET) is the regulatory authority responsible for investigating complaints and ensuring compliance with these laws.
Can You Contest a Decision?
Yes. Services and individuals have the right to request a review or escalate concerns if they believe a departmental decision was flawed, incomplete, or failed to account for critical evidence.
Available Pathways For NSW:
-
Internal Review by the Department of Education
You may submit a formal request for reconsideration, especially if new evidence has emerged or procedural inconsistencies are identified. -
NSW Ombudsman
If you believe the department’s handling of the complaint was unfair, unreasonable, or lacked procedural integrity, you can lodge a complaint with the NSW Ombudsman. -
Office of the Children’s Guardian (OCG)
For matters involving child protection, the OCG may be engaged to assess compliance with Working With Children Check obligations and safeguarding standards. -
Administrative Review Tribunal (NCAT)
In some cases, decisions made by the department may be reviewed by the NSW Civil and Administrative Tribunal (NCAT), particularly if they relate to service approvals or enforcement actions.
Available Pathways For VIC
-
Internal Review by DET
A formal request for reconsideration may be submitted, particularly if new evidence has emerged or procedural inconsistencies are identified. -
Victorian Ombudsman
If the handling of the complaint appears unfair, unreasonable, or lacking procedural integrity, a complaint can be lodged with the Victorian Ombudsman. -
Commission for Children and Young People (CCYP)
For concerns involving child safety, the CCYP may investigate systemic issues or failures in safeguarding practices. They also oversee reportable conduct schemes under the Child Wellbeing and Safety Act 2005. -
Victorian Civil and Administrative Tribunal (VCAT)
In certain cases—such as service approvals, enforcement actions, or registration decisions—VCAT may review departmental determinations.
Best Practice for Contesting
To strengthen your case:
- Maintain detailed documentation of the incident, internal actions taken, and all correspondence with the department.
- Reference specific regulatory clauses that support your position (e.g., Regulation 84: Awareness of child protection law).
- Seek legal or union support to navigate procedural complexities.
- Engage families transparently where appropriate, ensuring their voices are heard and documented.
When departmental decisions are perceived as dismissive or incomplete—especially in cases involving potential harm to children—it can erode trust and compromise safety. Contesting such decisions is not only possible but, in many cases, necessary to uphold the integrity of the sector and protect vulnerable children.
Further Reading
Performance Appraisals In Early Childhood
A Guide to Staff Appraisals in Early Childhood Services
Dealing With Workplace Bullying In Childcare
Bullying In The Workplace
References:
Victorian Ombudsman
NSW Ombudsman
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