Zaksaw Pty Limited v Department of Education; Giacchi v Department of Education [2024] NSWDC 550

Zaksaw Pty Limited v Department of Education; Giacchi v Department of Education [2024] NSWDC 550

Section 167(1) and (2) of the Children (Education and Care Services) National Law 2010 (NSW) imposes absolute liability on approved providers and nominated supervisors; they are liable if every reasonable precaution is not taken irrespective of knowledge, policies, or training, and a 'reasonable steps' defence is not available. The actus reus is the failure to guarantee the outcome that every reasonable precaution is taken.

Parties
First Appellant: Zaksaw Pty Limited; Second Appellant: Stefania Giacchi; Respondent: Department of Education
Jurisdiction
Australia
Judgment Date
28 June 2024
Procedural Posture
Criminal Appeal / Appeal Against Conviction From Local Court
Outcome
Appeal dismissed
Legal Topics
Statutory Offences, Absolute Liability, Duty of Care in Childcare
Criminal Law Child Protection Education Law Statutory Offences Absolute Liability Duty of Care in Childcare

Case Brief

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Parties

Zaksaw Pty Limited

First Appellant

Stefania Giacchi

Second Appellant

Department of Education

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction From Local Court

Legal Issues

  1. 1 Whether s 167 of the Children (Education and Care Services) National Law 2010 (NSW) creates absolute liability for approved providers and nominated supervisors
  2. 2 Whether policies and training are sufficient to discharge the obligation to ensure every reasonable precaution is taken
  3. 3 Whether a 'reasonable steps' defence is available under s 167

Ratio Decidendi

Section 167(1) and (2) of the Children (Education and Care Services) National Law 2010 (NSW) imposes absolute liability on approved providers and nominated supervisors; they are liable if every reasonable precaution is not taken irrespective of knowledge, policies, or training, and a 'reasonable steps' defence is not available. The actus reus is the failure to guarantee the outcome that every reasonable precaution is taken.

Court Disposition

Appeal dismissed

Orders

  • Each appeal against conviction is dismissed.
  • The orders of the Local Court are confirmed.