New Child Transport Requirements for NSW Education and Care Services


This article applies to education and care services in all States and Territories.

Education and Care Services National Amendment Regulations 2020 (NSW)

Provisions of the Education and Care Services National Amendment Regulations 2020 (NSW) (the Amending Regulations) commenced on 1 September 2020 and 1 October 2020, and have amended the Education and Care Services National Regulations (the Regulations).

Under the new amendments, providers of education and care services who transport children must implement new policies and procedures relating to the transportation of those children.

Amendments to existing provisions

Risk assessments and authorisations for excursions

The Amending Regulations have expanded requirements in relation to the conduct of risk assessments for excursions, and the information required in a written authorisation for an excursion. Under the new amendments, a risk assessment under regulation 101 of the Regulations relating to an excursion involving the transport of children must now consider, in addition to the existing requirements:

  • the means of transport; and
  • any requirements for seatbelts or safety restraints under a law of each jurisdiction in which the children are being transported; and
  • the process for entering and exiting the education and care service premises and the pick-up location or destination; and
  • procedures for embarking and disembarking the means of transport including how each child is to be accounted for on embarking and disembarking.

Regulation 102 of the Regulations has also been amended to implement changes to the requirements for authorisations for excursions given by a parent, or other person authorised in the child’s enrolment records as having authority to authorise the taking of the child outside the education and care service premises by an educator. In addition to the existing requirements, the authorisation must now include, in the case of an authorisation for a regular outing, a description of when the child is to be taken on the regular outings. In addition, if the excursion involves transporting children the authorisation is required to state the means of transport as well as any requirements for seatbelts or safety restraints under a law of each jurisdiction in which the children are being transported.

Transportation of children other than as part of an excursion

The Amending Regulations have introduced new obligations relating to the transportation of children other than as part of an excursion.

More specifically, an approved provider and a nominated supervisor of an education and care service, must now carry out a risk assessment in accordance with regulation 102C of the Regulations before seeking an authorisation to transport a child. Failure to comply with this requirement attracts a penalty of $2,000. Organisations should note however, that a risk assessment is not required for transporting a child if the transportation is regular transportation and a risk assessment has been conducted for the regular transportation of the child within the previous 12 months. Regular transportation, in relation to an education and care service, means the transportation by the service, or arranged by the service, (other than as part of an excursion) of a child being educated and cared for by the service, where the circumstances relevant to a risk assessment are substantially the same for each occasion on which the child is transported.

New regulation 102C sets out requirements for the conduct of a risk assessment under the Regulations, including that the risk assessment must identify and assess risks that transporting the child may pose to the safety, health or wellbeing of the child, and specify how those identified risks will be managed. Furthermore, the risk assessment must consider:

  • the proposed route and duration of the transportation; and
  • the proposed pick-up location and destination; and
  • the means of transport; and
  • any requirements for seatbelt or safety restraints under a law of each jurisdiction in which the children are being transported; and
  • any water hazards; and
  • the number of adults and children involved in the transportation; and
  • given the risks posed by transportation, the number of educators or other responsible adults that is appropriate to provide supervision and whether any adults with specialised skills are required; and
  • whether any items should be readily available during transportation; and
  • the process for entering and exiting the education and care service premises, and the pick-up location or destination as required; and
  • procedures for embarking and disembarking the means of transport, including how each child is to be accounted for on embarking and disembarking.

Organisations should note that these requirements are substantially similar to the requirements set out in regulation 102 of the Regulations relating to the risk assessment required to be carried out when transporting children for the purposes of an excursion.

Organisations should also be aware that regulation 102D introduces new offences relating to authorisations for an education and care service to transport children. Under this new regulation, an approved provider of an education and care service, or a nominated supervisor of an education and care service, must ensure that a child being educated and cared for by the service is not transported by the service or on transportation arranged by the service unless written authorisation has been given. A failure to do so incurs a penalty of $1,000. Written authorisation under this new regulation must be given by a parent or other person named in the child’s enrolment record as having authority to authorise the child being transported by the service or on transportation arranged by the service and must state:

  • the child’s name; and
  • the reason the child is to be transported; and
  • if the authorisation is not for regular transportation, the date the child is to be transported; and
  • a description of the proposed pick-up location and destination; and
  • the means of transport; and
  • the period of time during which the child is to be transported; and
  • the anticipated number of children likely to be transported; and
  • the anticipated number of staff members and any other adults who will accompany and supervise the children during the transportation; and
  • any requirements for seatbelts or safety restraints under a law of each jurisdiction in which the children are being transported; and
  • that a risk assessment has been prepared and is available at the education and care service; and
  • that written policies and procedures for transporting children are available at the education and care service.

Organisations should note that if the transportation is regular transportation, the authorisation is only required to be obtained once in a 12-month period.

Conclusion

Organisations who operate an education and care service should note the new requirements under the Regulations and should update their procedures and develop new policies where required.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au