Welcome to The Service Desk
A weekly intelligence briefing for childcare owners, providers, and investors.
We analyse the policies, trends, and operational decisions shaping the sector, and what they actually mean for your service, your strategy, and your bottom line.
This week's briefing covers one of the most significant legal changes our sector has seen in some time, and it's a lot more dramatic than it seems on first read.
This now puts personal liability at scale on all approved providers.
Please share this with your directors so they understand the full significance, and with any colleagues you have in the industry. Everyone needs to be across this.
We're building The Service Desk to become a trusted source of insight for operators across the country, and this newsletter is just the beginning.
Because childcare isn't just a sector, it's a serious business.
Sam Benjamin
Chair, The Desktop
Paramount Consideration.
Child first is now law. You are personally liable.
Law changes mean you are now personally responsible.
On 27 February 2026, the Education and Care Services National Law (National Law) was amended to introduce a new statutory duty: the safety, rights and best interests of children must be the paramount consideration in the operation and delivery of every education and care service in Australia.
If you run a childcare service, you already put children first. That has always been the sector's ethos. But there is a critical difference between a guiding principle and a legal duty with personal consequences.
This article explains;
Who is personally liable
What the penalties look like after a threefold increase in January 2026,
What you should be doing right now to protect yourself and your service.
Penalties tripled.
The reforms did not arrive as a single announcement. They were rolled out in stages, each building on the last.
1. Penalties were tripled on 2 January 26.
2. The paramount duty landed in February.
3. The first enforcement wave hit in March, when 30 services were flagged under new Commonwealth compliance powers, with affected providers given 48 hours to notify families and six months to demonstrate improvement or face suspension of Child Care Subsidy approvals.
This is not a coincidence. The government built the consequences first, then gave regulators a new legal standard to enforce against.
What actually changed.
Before 27 February 2026, the National Quality Framework's guiding principles already stated that children's rights and best interests were paramount. Regulators were required to "have regard" to those principles. But in practice, compliance was assessed against prescriptive operational requirements: ratios, supervision, policies, incident reporting. The principle existed. It just wasn't what you got measured on.
The amendment adds an express duty: the safety, rights and best interests of each child must be treated as the paramount consideration in the operation of an education and care service and in the delivery of education and care to children.
"Paramount consideration" is the key phrase. It means this duty doesn't sit alongside other factors. It sits above them.
Child-centred decision-making becomes an enforceable obligation on providers and individuals.
This change elevates child-centred decision-making from a principle guiding regulators to an enforceable obligation on providers and individuals. Each of these individuals must be able to explain, and where appropriate document, how their decisions placed each child’s safety, rights and best interests first.
What this means in plain language.
If a director makes a decision that prioritises budget over a child's safety, they cannot defend that decision by arguing they were acting in the company's financial interest. The law has specifically removed that defence.
You are now personally liable.
The paramount duty does not just apply to the service as an entity. It applies to individuals.
Under Section 285 of the National Law, if a body corporate commits an offence, every person with management or control who failed to exercise due diligence also commits the offence individually. Section 286 extends this to partnerships, eligible associations and other prescribed entities. Each person with management or control can be penalised as if they personally committed the breach.
The new inappropriate conduct offence under Section 166A makes this personal liability even more explicit. It creates separate duties for approved providers, nominated supervisors, staff members, volunteers, and family day care educators, each with an individual penalty of $34,200.
For officers of corporate entities, the ACECQA information sheet confirms that the paramount consideration obligation prevails over obligations under the Corporations Act 2001. Your responsibilities under the National Law must be the primary consideration when exercising your duties as a company officer.
The penalties have tripled since January 2026.
From 2 January 2026, all maximum penalties under the National Quality Framework were tripled. Penalty Infringement Notices were also expanded, giving regulators more tools to issue fines on the spot. These are the current maximum penalties for key offences:
Offence | Individual | Large Provider | Other Provider |
|---|---|---|---|
Inadequate supervision (s 165) | $34,200 | $516,600 | $172,200 |
Inappropriate conduct (s 166A) | $34,200 | $516,600 | $172,200 |
Failure to protect from harm (s 167) | $34,200 | $516,600 | $172,200 |
Staffing/qualification breach (s 169) | $34,200 | $516,600 | $172,200 |
Engaging a prohibited person (s 188) | $68,700 | $1,034,100 | $344,700 |
Operating without approval (s 103) | $68,700 | $1,034,100 | $344,700 |
These are per-breach figures. A single incident could trigger multiple offence categories simultaneously. And remember: under Sections 285 and 286, individuals with management or control face these penalties personally if they failed to exercise due diligence.
Important
The new enforcement does not require a child to be injured whilst being educated and cared for by the Service. Regulators may now assess whether your decision-making itself properly prioritised the child's interests. The question is shifting from "Did you follow the procedure or risk assessment?" to "Did your decision, among reasonable options, demonstrably place the child's safety first?"
How regulators will assess you differently.
Under the amended law, regulators may go beyond checking whether operational rules were followed. They can now assess whether decision-making itself properly prioritised children's interests. Expect greater emphasis on how decisions were made and recorded.
Where previously the focus was on whether a checklist was completed, the analysis may now extend to whether the choice taken, among reasonable options, demonstrably placed the child's safety, rights and best interests first.
While there is, at the time of writing, no regulator guidance designating particular scenarios as breaches of the new duty, the following illustrative examples show how regulatory scrutiny may evolve:
Transport
A headcount conducted from memory rather than a second physical check during a rushed departure. Regulators may enquire whether the safeguards employed reflected a proper prioritisation of children's safety.
Sleep monitoring
Rest checks that drift outside required intervals because of rostering pressures. Regulators may examine whether staffing decisions placed the infant's wellbeing first.
Child moving room
A child is due to move up to the next room based on age; however, they are showing signs of distress, are not yet settling well in group activities and become anxious during visits to the new room, the regulators may examine if you moved a child for their best interest or for enrolment pressures.
Incident notification
Delaying notification to decide whether reporting thresholds are met could be questioned if the delay cannot be justified as serving the child's best interests.
The key shift is this: you do not have to prove you were perfect. You have to be able to show that when competing pressures arose, you did not treat the child as one consideration among many. You treated them as the overriding one. And you need written records that demonstrate this.
What you should do now.
1. Review and update all core policies
Governance, risk management, excursion, transport, sleep and rest, behaviour guidance and incident management policies should explicitly state that children's safety, rights and best interests are the paramount consideration. Policy language should move beyond general statements of commitment to specify how the paramount consideration will be applied in practice across each operational area.
2. Embed paramount consideration into existing documentation
Include prompts in incident reports, supervision plans, transport authorisation forms, excursion risk assessments and daily operational checklists. A simple question, such as "How were the child's safety, rights and best interests treated as the paramount consideration in this decision?", creates contemporaneous evidence that child-centred reasoning informed each decision.
3. Strengthen governance and leadership decision-making
Leadership decisions on staffing levels, room configurations, budget allocations and daily operational practices should be tested against the new duty and documented in governance records.
Assessors will want to view individual services showing leadership decisions- staff meetings, management meetings, items with the service's QIP, and management reports should include a standing item addressing how the paramount duty was considered.
Where financial or operational constraints create tension with child-centred outcomes, the records should document how the conflict was resolved in favour of children's interests.
4. Deliver scenario-based staff training
Training should shift from rule-recall to scenario-based application. Staff need practical exercises on applying paramount consideration in everyday situations, including how to resolve conflicts between budgetary constraints and child-centred choices. Every person listed under the duty, from volunteers to directors, should understand they are individually bound and be able to articulate how their decisions prioritise children's safety.
All staff, volunteers and students must complete mandatory child safety training by 27 August 2026. New staff must complete it within 14 days of commencement.
5. Establish escalation pathways
Create clear pathways for situations where staff identify a conflict between operational pressures and the paramount duty. Staff should know who to escalate to and be assured that raising concerns is expected and supported. Retain escalation records as evidence of commitment to the duty.
6. Conduct internal audits focused on decision-making
Regular audits should go beyond checking that logs, ratios and procedural records exist. The real question is whether documentation shows the paramount consideration was the decisive factor. Sample incident reports, excursion records, transport logs and supervision plans to verify each contains evidence of child-centred reasoning.
7. Monitor regulator guidance
Regulator guidance and enforcement practice have not yet fully crystallised around the new duty. Actively monitor publications from ACECQA and your state or territory regulatory authority for guidance, fact sheets and enforcement updates.
How The Desktop has already responded
The Desktop has reviewed and updated key child safe policies, procedures and resources to explicitly state that children's safety, rights and best interests are the paramount consideration. If you are a Desktop subscriber, this work has already been done for you.
Policies updated to reflect paramount consideration
• Governance Policy
• Child Safe Environment Policy
• Child Protection Policy
• Management Committee Policy
• Performance Management Policy
• Recruitment Policy
• Behaviour Guidance Policy
• Behaviour Guidance – Bullying Policy
• Interactions with Children, Families and Staff Policy
• Staffing Arrangements Policy
• Student, Volunteer and Visitor Policy
• Writing and Reviewing Policies Policy
• Supervision Policy
• Dealing with Complaints Policy
• Code of Conduct Policy
Additional resources reviewed and updated
• Staff, Family, FDC Educator and Student Handbooks
• Code of Conduct Staff Acknowledgement
• Induction checklists: Staff, Student, Volunteer and Visitor
The bottom line.
Most of you already put children first. That is what drew you to this sector. But the law has now formalised that expectation into an enforceable duty with real personal consequences. The penalties are three times what they were twelve months ago, regulators are actively using their new powers, and the standard against which your decisions will be judged has shifted.
If you embed child-centred reasoning into your policies, governance and daily documentation, you are doing more than meeting a legal obligation. You are building a service that is defensible, compliant, and positioned to lead.
The Desktop is here to help you do exactly that.
What should we cover next?
Got a topic, challenge or question you want unpacked? Send it through and we’ll turn it into a future issue. Click the link below or email us here: [email protected]
Thanks for reading.
We appreciate you taking the time to stay across what’s shaping early learning right now. We’ll be back next week with more insights, analysis and practical takeaways.
– The team @ The Service Desk
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