Many administrative decisions in the public sector, or the processes used to reach those decisions, are open to challenge by persons affected by those decisions. These challenges are often referred to as ‘review’ or ‘appeal’ rights.
The Children (Education and Care Services) National Law 2010 (the "National Law"), provides for an internal review to be conducted by the department, and an external review to be conducted by the relevant court or tribunal, which in NSW is the NSW Civil and Administrative Tribunal.
The decisions that can be internally reviewed are outlined as follows:
A person who is the subject of a reviewable decision may apply in writing for a review of the decision under section 191 of the National Law. An application must be submitted online using the National Quality Agenda Information Technology System. The application must be made:
- Within 14 days after the day on which the person is notified of the decision; or
- If the person is not notified of the decision, within 14 days after the person becomes aware of the decision.
An internal review under section 190 of the National Law is a merits based review, which entails a reconsideration of the facts, law and policy aspects of the original decision and a determination of what is the correct and preferable decision.
The department will conduct internal reviews in accordance with the principles of procedural fairness under administrative law and having regard to the objectives and guiding principles of the national education and care services quality framework as set out in section 3 of the National Law.
The result of an internal review is generally the confirmation or variation of the original decision, but may also involve any other decision that the reviewer considers appropriate in the circumstances.
The reviewing officer will make a decision within 30 days of receiving a valid and complete application. This time period may be extended by up to 30 days:
- If a request for further information is made; or
- By agreement between the applicant and the reviewer. Any such agreement will be documented in writing.
The applicant will be notified in writing of the outcome of their application for an internal review. The contents of the notification will include the decision, the reasons for the decision and, if applicable, the applicant’s right to external review and the time period within which those rights must be exercised.