Event and Time
Event Description
This case revolves around the interpretation of s 165(2) of the Children (Education and Care Services) National Law 2010 (NSW). It involves Ms. Faten Trad, who was the nominated supervisor of a family day care service, and the consequences following a child’s death due to inadequate supervision.
Application and Claims
The Secretary of the Department of Education sought clarification on the nature of liability under s 165(2) – whether it imposes absolute liability on the nominated supervisor for ensuring the supervision of children even when not present. After her initial conviction and subsequent appeal at the District Court, the question was posed for determination regarding the statutory interpretation of “must ensure” in this context.
Judicial Decisions
The Court determined that s 165(2) imposes absolute liability on a nominated supervisor for ensuring adequate supervision of children in care, irrespective of the presence or actions of the supervisor at the service at the time of an incident.
Dispute Points and Legal Basis
Dispute Points
- Claimant (Secretary):
- Argues that “must ensure” in s 165(2) indicates a duty of absolute liability irrespective of the supervisor’s presence. - Cites parallel provisions and legislative intent to demonstrate that the liability imposed is intended to be strict and absolute to protect child welfare.
- Respondent (Ms. Trad):
- Contends that the offence should not be interpreted as absolute liability. - Argues that legislative provisions indicate obligations tailored to the context, asserting that the nominated supervisor was not required to be present and could not be held liable for actions taken by others under their supervision. - Emphasizes potential unfairness and lack of mens rea associated with absolute liability.