Guidance Note: Paramount Consideration

What Has Changed Under the National Law?

From 27 February 2026, the National Law now contains an express provision requiring that the protection of the safety, rights and best interests of each child attending an education and care service must be the paramount consideration when exercising powers, making decisions, or performing functions under the legislation.

Importantly, the duty applies broadly to every individual and stakeholder involved in the operation of an education and care service, including:

• Approved providers
• Persons with management or control (PMCs)
• Persons in day-to-day charge (responsible person)
• Nominated supervisors
• Educators and teachers
• Staff members
• Volunteers, including students

Any perceived or actual conflict of interest must be identified, declared and managed immediately to ensure it does not influence decisions relating to children's safety or wellbeing. If a conflict arises, the individual must withdraw from the decision-making process to maintain objectivity and uphold the child-first principle.

In New South Wales, the legislation goes further. It states that the safety, rights and best interests of children must prevail over the financial interests of approved providers and applies to any person exercising functions under National Law, including the regulatory authority.

In practice, this means early childhood services must be able to demonstrate that decision-making consistently prioritises the child's interests above competing considerations.

Examples of operational decisions that may be assessed include:

• Staffing decisions; including developing staffing rosters, the hiring or terminating employees
• Managing unsafe environments; including procuring or replacing equipment and technology, the structure of learning environments
• Interactions with children; including behaviour guidance, inappropriate conduct and inappropriate discipline
• Supervision planning
• Preparing policies and procedure manuals
• Responding to complaints
• Incident reporting and response procedures

Implications of Failing to Prioritise the Child's Best Interests

Authorised officers may now assess whether practices, decisions, or actions demonstrate a priority of the child's safety, rights and best interests. As a result, conduct previously treated as minor procedural failures may now constitute statutory non-compliance.

Breaches may result in:

• Service approval conditions
• Suspensions
• Significant fines
• Potential criminal prosecution in serious cases

Support for Early Childhood Education and Care Services

For approved providers already maintaining high safety standards, the new duty may not require major operational changes. However, it does require services to clearly evidence that child-centred reasoning informed every decision.

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.

Key policies updated:

• 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 include:

• Staff/Family/FDC Educator/Student Handbooks
• Code of Conduct Staff Acknowledgement
• Inductions: Staff/Student/Volunteer/Visitor

Embedding Paramount Consideration Duty

Services must recognise that the child's best interests are the paramount consideration in all decisions and actions. Failure to comply with this requirement may result in significant consequences, including formal enforcement action and financial penalties.

The following practical examples demonstrate how services can apply the paramount consideration duty across key areas of operation.

Leadership and Governance

Ensure management and committees prioritise children's safety and wellbeing in all strategic and operational decisions. Include paramount consideration principles in policies, procedures, and code of conduct. Regularly review governance practices to ensure decisions align with child-focused priorities.

Policies and Procedures

Update all key policies to reflect the paramount consideration duty, including supervision, behaviour guidance, staffing, excursions and risk management. Implement clear procedures for decision-making that document how children's best interests are prioritised. Conduct regular policy reviews and audits to ensure compliance.

Staff Practices and Training

Provide thorough inductions for staff, volunteers and students to ensure they are aware of child-first principles and how they can apply this in daily practice, including risk assessment, behaviour guidance and interactions with children. Include examples and case studies showing how decisions should prioritise child safety and wellbeing. Encourage staff to speak up if decisions or practices compromise the child's best interests.

Risk Assessment and Supervision

Ensure staffing ratios and qualifications always support safe supervision and responsive care. Conduct regular risk assessments for activities, excursions and routines with a child-first lens. Document safety checks, headcounts and supervision practices to demonstrate prioritisation of children's wellbeing.

Family and Community Engagement

Engage families in decisions affecting their child's safety, learning, and wellbeing. Encourage feedback from parents and the community to inform child-focused decision-making. Maintain transparent communication about how the service prioritises children's best interests.

Monitoring and Continuous Improvement

Use audits, incident reviews, and feedback to identify gaps where children's best interests may not have been fully considered. Adjust practices and policies to continuously embed the paramount consideration duty into the service culture.