Being out of ratio is an offence under section 169 of the National Law: the approved provider must ensure the prescribed number of educators is educating and caring for the children at all times. Since the penalties were tripled on 2 January 2026 the maximum is $34,200 for an individual and $172,000 for a provider that is a company; a nominated supervisor faces up to $34,200. Inadequate supervision is a separate offence under section 165 with similar maximums. Only educators working directly with children count (r 122), the ratios are calculated across the service (r 123), and the offence does not apply to the extent a waiver covers it. Regulators can also use compliance directions, notices and infringement notices.
The offences behind ratio breaches, the 2026 maximum penalties, how regulators actually respond, and the defences and records that matter.
| Offence | Who | Maximum penalty | Section |
|---|---|---|---|
| Fewer educators than the prescribed number educating and caring for the children | Approved provider | $34,200 (individual); $172,000 (other) | s 169(1) |
| Educators not meeting the qualification requirements for their role | Approved provider | $34,200 (individual); $172,000 (other) | s 169(2) |
| The same two duties | Nominated supervisor | $34,200 | s 169(3), (4) |
| More children than permitted with a family day care educator | FDC educator | $34,200 | s 169(5) |
| Children not adequately supervised at all times | Approved provider; nominated supervisor | $34,200 (individual); $172,200 (other) as printed; $34,200 for a nominated supervisor | s 165 |
Section 169 does not apply to the extent the service holds a service or temporary waiver for the requirement (s 169(6)). See waivers.
Prosecution for the maximum is the exception. A breach found at a visit usually leads to a compliance direction or compliance notice, an infringement notice for prescribed offences, conditions on the approval, or, for repeated or serious breaches, suspension or prosecution, and enforcement action can appear on the service’s published compliance history. See compliance notices and enforcement. If a parent complains that the service was out of ratio, that complaint alleges a contravention of the Law and must be notified to the regulator (s 174(2)(b); see the complaints policy).
Under section 169 of the National Law, an approved provider faces a maximum of $34,200 for an individual and $172,000 for a company, and a nominated supervisor up to $34,200. Regulators more often use compliance directions, notices or infringement notices.
Yes. Section 169 requires the prescribed number of educators whenever children are being educated and cared for, and regulation 122 counts only educators working directly with children.
A breach is not itself a serious incident, but a complaint alleging that the service contravened the Law, such as being out of ratio, must be notified to the regulatory authority under section 174(2)(b).
Yes. Section 169(3) and (4) make it an offence for a nominated supervisor not to ensure ratios and qualification requirements are met, with a maximum penalty of $34,200.
WIDEN Law answers National Quality Framework questions with inline citations to the National Law, the Regulations and the NQS, so you can check the source provision yourself.
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