Disclaimer: This article contains references to abuse involving children, which may be distressing to some readers.

The Early Childhood Education and Care ('ECEC') sector is under unprecedented scrutiny following investigations into allegations of sexual assault perpetrated by childcare workers in New South Wales and interstate. New South Wales is the largest provider of ECEC in Australia, with the Early Childhood Education and Care Regulatory Authority ('ECEC Regulatory Authority') charged with monitoring and supporting the 6,053 early childhood services which fall within its ambit, and the 500,000+ children to whom services are rendered.  

In February 2025, NSW Deputy Premier Prue Car commissioned an independent review of the NSW ECEC Regulatory Authority by former Deputy NSW Ombudsman Chris Wheeler ('the Wheeler Report'), which was released publicly on 26 June 2025. This article examines the Wheeler Report, its recommendations and the extent of its implementation by government, with a particular focus on the implications for institutional liability in the context of child safety.  

The law in relation to ECEC regulation and assessment is provided for federally by the National Quality Framework ('NQF'), which includes the National Law to be administered by state regulatory authorities. The ECEC Regulatory Authority, as a notionally independent division of the Department of Education, has been New South Wales' method of enforcing NQF compliance, with the objective of driving "high quality outcomes for children and communities".

Calls for a review of the ECEC Regulatory Authority were enkindled in response to increases in the number of confirmed breaches of the NQF at New South Wales ECEC services from 2018 onwards. Confronting revelations regarding administration and reporting by ECEC centres in recent cases have enhanced this scrutiny.

Late 2024 brought the conviction of Ashley Paul Griffith for 307 child abuse offences, described by presiding Judge Paul Smith as "depraved" and "horrendous", over 19 years at ECEC centres in Queensland and overseas. Separately, in July of this year, it was revealed that alleged perpetrator Joshua Dale Brown worked across 23 ECEC centres in Victoria, prompting health authorities to recommend infectious disease testing for 2,000 potentially victimised children. Most recently, the AFP’s Operation Arctile led to an array of child abuse offences against David James, who worked at 58 childcare centres between 2018 and 2024.

The Wheeler Report is thus well timed to tender recommendations for renewing trust in the ECEC Regulatory Authority in respect of what is unquestionably its foremost and paramount priority: creating and maintaining child-safe environments.  

The 166-page Wheeler Report’s recommendations were eagerly anticipated; however, it is essential to understand the scope and methodology before engaging with its findings.

Mr Wheeler was tasked with examining the ECEC Regulatory Authority’s efficacy, including its resourcing, structure and operations within the framework of the NQF. Importantly, the Wheeler Report acknowledged that the short timeframe, combined with the volume of materials and interview candidates, may limit its findings. Nevertheless, it concluded that, although the ECEC Regulatory Authority "has been effective in the performance of its role", it is ultimately constrained by the NQF, which is "in several respects not adequate or best suited to facilitate… meeting [the NSW Government's] expectations".  

Relevant issues and related recommendations

A key function of the ECEC Regulatory Authority is issuing Rating Certificates to providers as a means to provide information and assurance to parents. The Wheeler Report considered the current 'Working Towards Policy', which attempted to ensure that providers did not remain rated as 'working towards' for "unreasonable periods of time", and found it was not "sufficiently transparent".

Instead, under Recommendations 1 and 2, the Report proposes that Rating Certificates display both the provider’s rating and compliance history clearly in the reception area for parents to view. Further, under Recommendation 3, the ECEC Regulatory Authority should "publish the maximum amount of information about its compliance actions" as legally permissible.

Moreover, multiple issues were identified in relation to the operative structure of the ECEC Regulatory Authority. Firstly, it was determined that the "conflict of duties" produced by the ECEC Regulatory Authority being subsumed within the Department of Education impacts upon "the perceived, if not the actual, degree of trust in… efficiency and integrity".

Secondly, concerns were raised regarding the spectre of "conflicts of interests" affecting the decision-making process by responsible persons. In light of this, Recommendation 4 suggests inserting a provision into the National Law which statutorily cements child protection as the "paramount consideration in decision-making".

Relatedly, Recommendation 5 combats conflicts of interest in proposing a dedicated Conflicts of Interest Policy, emphasising the "paramount importance of the rights and best interests of enrolled children in decision-making". Perhaps most importantly, Recommendation 6 provides that the ECEC Regulatory Authority be established as a separate, independent agency, including in respect of communication and engagement with the ECEC sector.

Regarding the ECEC Regulatory Authority’s monitoring obligations, examination of serious incident reports revealed the need for proactively protective measures. Recommendation 7 urges legislative adoption of whistleblower protections to protect those who disclose potential wrongdoing to initiate investigations. Further to this, Recommendations 8 and 9 have drawn attention in conditioning ECEC provider approvals on CCTV installations, as both risk mitigation and for use in subsequent incident investigations.  

Acting NSW Minister for Education and Early Learning, the Hon Courtney Houssos MLC, accepted the recommendations in principle, and circumvented the fact that many identified issues apply nationwide (in arising from flaws in the NQF), by declaring that "NSW is not in a position to wait and will amend our own legislation" in light of the recommendations.

In practice, the NSW Government released a reform package informed by the recommendations, establishing the ECEC Regulatory Authority as an independent agency reporting directly to the Minister. In response to the Wheeler Report’s transparency critiques, new Ministerial Directions mandate the publication of detailed information on provider quality and safety performance, enabling informed decision-making. Additionally, a trial of the Wheeler Report's CCTV-related recommendations is in place, which mandates installation "where safety concerns arise".

It must also be remembered that the issues identified in the Wheeler Report were predominantly a result of national-level constraints. The NSW Government is therefore well positioned to advocate for the implementation of the recommendations across Australia. For example, it has proposed changes to the NQF, including inserting a "paramount consideration" of child safety. We note that a Parliamentary Inquiry into the ECEC is ongoing, with public hearings scheduled between August and October.  

Ultimately, whilst the benefits of ECEC should not be understated, public confidence in the sector, and its regulatory authority, is understandably diminished. The Wheeler Report recommendations are directed at improving the ECEC Regulatory Authority's efficacy, but more broadly are attentive to issues plaguing the National Law and NQF. Whilst New South Wales' proactive approach goes some way to increasing regulation and safeguarding, for guidance on how to ensure your organisation is properly covered, please reach out to our Institutional Risk & Liability team.

The Wheeler Report can be downloaded here.