Citation: Zaksaw Pty Limited v Department of Education; Giacchi v Department of Education [2024] NSWDC 550
Court: District Court of New South Wales
Date: 28 June 2024
Judge: Kumar DCJ
Background
An approved childcare provider (Zaksaw Pty Limited, operating as Rise & Shine Kindergarten and Childcare Service) and its nominated supervisor were each convicted in the Local Court following an incident on 14 October 2019. During a sensory activity involving hot water, a trainee educator placed an insulated jug of hot water on the floor beside her. A nine-month-old child came into contact with the hot water and suffered burns requiring treatment at the Westmead Children's Hospital Burn Unit over approximately seven days.
The Department of Education prosecuted the approved provider under section 167(1) of the Children (Education and Care Services) National Law 2010 (NSW) and the nominated supervisor under section 167(2), alleging each had failed to ensure every reasonable precaution was taken to protect children from harm or hazard likely to cause injury. The Local Court found both guilty: the company was fined $3,000 and the nominated supervisor $600, with cost orders also made against them.
Both appellants appealed their convictions to the District Court, raising two grounds. The first challenged whether the evidence was sufficient to establish a failure to take reasonable precautions. The second concerned the proper construction of section 167, specifically whether it imposed absolute liability and whether the actions of employees could be attributed to the approved provider and nominated supervisor.
Legal Issues
- Whether the evidence was sufficient to establish, beyond reasonable doubt, that the appellants had failed to ensure every reasonable precaution was taken to protect the child from harm or hazard
- Whether the offence under section 167 of the National Law imposes absolute liability, such that there is no available defence based on absence of knowledge or fault
- Whether the acts of the educators (employees) could be attributed to the approved provider and nominated supervisor for the purposes of establishing liability under section 167
Decision
On the first ground, Kumar DCJ conducted an independent assessment of the evidence from the Local Court and found it sufficient to establish the appellants' guilt beyond reasonable doubt. The court noted that the magistrate had the advantage of observing and testing witnesses in cross-examination, and her conclusions were soundly based in the evidence. The District Court's own review of the record led to the same conclusion.
On the second ground, concerning the nature of liability under section 167, the court applied the Court of Criminal Appeal's reasoning in Department of Education v Trad [2023] NSWCCA 329, which was handed down after the Local Court conviction but before the District Court appeal hearing. That decision, following the Victorian Court of Appeal in ABC Developmental Learning Centres Pty Ltd v Wallace [2007] VSCA 138, confirmed that the equivalent predecessor provision was one of absolute liability. Because the National Law follows the equivalent Victorian legislation, Kumar DCJ accepted that the same conclusion applies to sections 167(1) and 167(2).
The court found that the phrase "must ensure" in section 167 does not import a defence of reasonable steps or honest and reasonable mistake. The offences are ones of absolute liability, meaning there is no available defence of that kind. The second ground was therefore not made out and was dismissed.
Both appeals against conviction were dismissed, and the Local Court's orders were confirmed.
Orders Made
- Each appeal against conviction dismissed
- The orders of the Local Court confirmed
- The question of costs reserved, with liberty to apply to relist on that question
Key Takeaways
- The District Court confirmed that the offences under sections 167(1) and 167(2) of the Children (Education and Care Services) National Law 2010 (NSW) are ones of absolute liability, following the Court of Criminal Appeal's analysis in Trad and the Victorian Court of Appeal's decision in Wallace.
- Under section 167, the phrase "must ensure" does not open the door to a reasonable steps or honest and reasonable mistake defence; the absence of personal fault on the part of the approved provider or nominated supervisor is not a complete answer to the charge.
- Acts of employees can be attributed to both an approved provider and a nominated supervisor for the purposes of establishing liability under section 167, meaning responsibility is not confined to the direct actions of those charged.
- In dismissing both appeals, the District Court applied the established appellate standard: the appeals were to be upheld only if, on the evidence before the magistrate, guilt could not be established beyond reasonable doubt on independent assessment.
- The decision reinforces the approach to statutory construction of child safety obligations in the National Law, treating the NSW provisions consistently with their Victorian legislative equivalents given the shared legislative scheme.
Legislation and Cases Referenced
Legislation:
- Children (Education and Care Services) National Law 2010 (NSW), ss 3, 5, 104, 162, 165, 167, 269
- Children's Services Act 1996 (Vic), ss 26(1), 27(1)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 19
Cases:
- Department of Education v Trad [2023] NSWCCA 329
- ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138
- Trad v Department of Education (NSW) [2023] NSWDC 168
- He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
- Proudman v Dayman (1941) 67 CLR 536; [1941] HCA 28
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298
- Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92