Applicant 201824 v Australian Capital Territory (As Represented BY Chief Minister, Treasury and Economic Development Directorate) (Occupational Regulation)
[2019] ACAT 72
•5 August 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT 201824 v AUSTRALIAN CAPITAL TERRITORY (AS REPRESENTED BY CHIEF MINISTER, TREASURY AND ECONOMIC DEVELOPMENT DIRECTORATE) (Occupational Regulation) [2019] ACAT 72
OR 24/2018
Catchwords: OCCUPATIONAL REGULATION – working with vulnerable people – risk assessment guidelines – whether the applicant poses no risk or an unacceptable risk of harm – whether condition necessary – whether condition is reasonably appropriate and adapted
Legislation cited: Children and Young People Act2008
Working with Vulnerable People (Background Checking) Act 2011 ss 8, 9, 10, 12, 17, 23, 27, 28, 31, 32, 41, 42, 43, 44, 46, Schedule 1
Subordinate
Legislation cited: AS/NZS ISO 31000:2009 – Risk Management – Principles and guidelines
Revised Explanatory Statement to the Working with Vulnerable People (Background Checking) Bill 2010
Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1)
Cases cited:Mulholland v Australian Electoral Commission (2004) 220 CLR 181
Attorney-General v Walker (1849) 154 ER 833
Tribunal:Senior Member P Spender
Date of Orders: 5 August 2019
Date of Reasons for Decision: 5 August 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 24/2018
BETWEEN:
APPLICANT 201824
Applicant
AND:
AUSTRALIAN CAPITAL TERRITORY
(AS REPRESENTED BY CHIEF MINISTER, TREASURY AND ECONOMIC DEVELOPMENT DIRECTORATE)
Respondent
TRIBUNAL:Senior Member P Spender
DATE:5 August 2019
ORDER
The Tribunal orders that:
1. The decision dated 30 October 2018 is set aside and the decision set out in the orders hereunder is substituted.
2. Subject to fulfillment of the conditions referred to in this paragraph and the operation of the order in paragraph 3, the applicant is registered under section 42 Working with Vulnerable People (Background Checking) Act 2011, with the following conditions:
a.(a) The applicant must undertake and successfully complete a program of education approved by the respondent as follows:
i. (i) Within 6 months of the date of these orders the applicant must nominate for approval by the respondent an education course, assessment or program (the education) addressing the topics of managing challenging behaviours and trauma. The applicant must ensure that the nomination includes a copy of the curriculum of the education.
ii. (ii) The applicant must complete the education within 12 months of the notice of the respondent’s approval of the education.
iii. (iii) Within 1 month of the completion of the education, the applicant must provide to the respondent evidence of the successful completion of the education.
a.(b) All costs associated with the completion of the education are at the applicant’s own expense.
3. Upon the applicant successfully completing the education referred to in paragraph 2, the respondent is directed to issue to the applicant an unrestricted registration under section 41(2) of the Working with Vulnerable People (Background Checking) Act 2011.
………………………………..
Senior Member P Spender
REASONS FOR DECISION
a.1. The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current panel. The Commissioner of Fair Trading (the Commissioner) made the relevant reviewable decision as a delegate of the respondent, the Australian Capital Territory.
b.2. In summary, the Tribunal has concluded that the condition imposed by the Commissioner upon the applicant’s registration under the Working with Vulnerable People (Background Checking) Act 2011 (WWVP Act or the Act) that she may not engage in any accommodation services for vulnerable people and may not engage in regulated activities or services in a residential setting was not necessary — that is, not reasonably appropriate or adapted. The Tribunal has substituted a decision that the applicant undertake an education program addressing the topics of trauma and managing challenging behaviours. Upon the successful completion of the education program by the applicant the respondent is directed to issue an unrestricted registration under section 41(2) of the WWVP Act.
c.3. When necessary, the children referred to in the reasons below are called Child A and Child B respectively. Other participants’ names are initialised as necessary.
Background
a.4. The applicant applied for a review of a decision of the Commissioner dated 30 October 2018 (the application). In the application, the applicant applied for a review of the decision to confirm the decision to issue a conditional registration under section 43 of the WWVP Act. The applicant sought the following orders:
a.(a) The Commissioner’s decision to issue a conditional registration under section 42 of the Act be set aside.
b.(b) The Commissioner be directed to issue an unrestricted registration under section 41(2) of the Act.
a.5. The conditions set by the respondent were as follows:
May not engage in any accommodation services for vulnerable people and may not engage in regulated activities or services in a residential setting.
a.6. A person may apply to the Tribunal for review of a decision by the Commissioner to register a person subject to conditions under section 44(2)(b) of the Act. The decision to register a person subject to conditions under section 46(1) of the Act is a reviewable decision under the Act, therefore the Tribunal has jurisdiction to conduct this review.
The legislation
a.7. The WWVP legislation introduced a requirement for people who have contact with vulnerable people in the course of engaging in certain regulated activities or services to be registered. According to the Revised Explanatory Statement to the Working with Vulnerable People (Background Checking) Bill 2010, the Act provides for:
Background checking as part of a risk assessment of people working with, or wanting to work with, children or vulnerable adults in the ACT. The exclusion of people with a known history of certain behaviour is a fundamental part of creating safe environments for vulnerable people.
…
The aim of the Bill is to reduce the incidence of sexual, physical, emotional or financial harm or neglect of vulnerable people in the ACT.
a.8. Pursuant to section 12 of the Act, a person is required to be registered when they are engaging in a regulated activity. ‘Regulated activity’ is defined in section 8 to include an activity or service mentioned in the schedule or one prescribed by regulation. Pursuant to section 9 a person is engaged in a regulated activity if they have contact with the vulnerable person as part of engaging in the activity and is engaged in the activity in any capacity and whether for reward or otherwise or under an arrangement with someone else. Section 10 defines “contact” with the vulnerable person as part of engaging in the regulated activity and means contact that:
a. (a) would reasonably be expected as a normal part of engaging in the activity; and
b. (b) is not incidental to engaging the activity; and
c. (c) is 1 or more of the following:
i.(i) physical contact, including engaging in the activity at the same place as the vulnerable person;
ii.(ii) oral communication whether face-to-face or by telephone;
iii.(iii) written communication including –
A.(A) electronic communication; or
B.(B) dealing with a record relating to the vulnerable person;
i.(iv) making a decision that affects the vulnerable person.
9. A person is required to be registered to engage in a regulated activity (section 12(1)) unless they are not required under section 12(2), which includes short periods of engagement and where the person is a close relative of the vulnerable person. A person may apply to the Commissioner for registration under the Act — section 17. As part of the registration process, the Commissioner undertakes a risk assessment. This risk assessment is defined in section 23 as follows:
risk assessment, for a person, means an assessment by the Commissioner of whether the person poses an unacceptable risk of harm to a vulnerable person.
10. Section 23(2) states that it does not matter whether the risk of harm rises from neglect, abuse or other conduct by the person. Pursuant to section 27, the Commissioner must make guidelines (Risk Assessment Guidelines) about how risk assessments are to be conducted under the Act. The Background Screening Unit conducts the risk assessment on behalf of the Commissioner. The content of the Risk Assessment Guidelines is set out in section 28. This provision states as follows:
Risk assessment guidelines—content
i. (1) The risk assessment guidelines must provide for —
i.(a) matters the commissioner must or may take into account in conducting a risk assessment; and
ii.(b) how those matters must or may be taken into account.
i. (2) The risk assessment guidelines must provide for the following to be taken into account in conducting a risk assessment for a person in relation to a regulated activity:
i.(a) the person’s criminal history;
ii.(b) non-conviction information about the person;
iii.(c) whether the person was previously given a negative notice under this Act or a corresponding law;
iv.(d) whether the person was previously registered under this Act or a corresponding law (including whether the registration was suspended or cancelled) ;
v.(e) any other information the commissioner believes on reasonable grounds is or may be relevant in deciding whether, in engaging in the activity, the applicant poses a risk of harm to a vulnerable person.
i. (3) The risk assessment guidelines must provide that —
a.(a) the applicant may make submissions to the commissioner in relation to any matter the commissioner must or may take into account in conducting a risk assessment ; and
b.(b) the commissioner must not take into account any information about an applicant unless satisfied on reasonable grounds that the information is accurate.
a.11. This provision is complemented by section 31, which states:
Risk assessment guidelines—other information
The risk assessment guidelines must provide for the following to be taken into account in relation to any other information the commissioner believes on reasonable grounds is or may be relevant in deciding whether, in engaging in a regulated activity, the applicant poses a risk of harm to a vulnerable person:
a. (a) how the information was obtained;
b. (b) the relevance of the information;
c. (c) the truthfulness, completeness and reliability of the information:
d. (d) any submission made by the person to the commissioner in relation to the matters mentioned in paragraphs (a) to (c).
a.12. Pursuant to section 41 of the Act, the Commissioner must register the person if the Commissioner conducts a risk assessment for a person and is satisfied that the person poses no risk or an acceptable risk of harm to a vulnerable person. However, a registration may be subject to conditions under section 42. If the Commissioner intends to register a person conditionally the Commissioner must tell the person in writing via a proposed conditional registration notice. This notice must state what the condition is and the reasons for proposing to register the person conditionally. If the Commissioner gives a person a proposed conditional registration notice, the person may seek reconsideration of the decision to impose the conditions.
b.13. In this case, the Commissioner reconsidered the proposed conditional registration but concluded under section 44(2)(b) that the condition was necessary and therefore registered the applicant subject to the condition.
The risk assessment guidelines
a.14. The relevant instrument is Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1). This instrument provides some general information about the background checking system and the risk assessment process. The risk assessment process is consistent with Australian/New Zealand Standard AS/NZS ISO 31000:2009 – Risk Management – Principles and guidelines (the Standard) which provides generic guidelines and establishes a number of principles for the identification and management of risk. The risk assessment process is based on the standard for risk management and consists of:
•(a) risk identification;
•(b) risk analysis;
•(c) risk evaluation; and
•(d) risk treatment.
a.15. As regards risk identification, the risks to be assessed by the Commissioner are the extent to which applicant’s background poses a “threat of harm, be it sexual, physical, emotional, financial, neglect or other, to a vulnerable person”. The existence of potential sources of risks is identified through the application process and this includes the applicant’s statement of whether they have been charged or found guilty of a relevant offence. The risk analysis step refers to matters which the Act requires that the Commissioner take into account and these include:
•(a) the person’s criminal history;
•(b) non-conviction information;
•(c) negative notices issued under the Act or corresponding law;
•(d) whether the person previously registered under the Act or corresponding law; and
•(e) any other information the Commissioner considers relevant in determining the applicant’s risk.
a.16. As regards “any other information”, the Risk Assessment Guidelines state that the Commissioner will consider any information obtained from other sources during the risk assessment process if it is believed it is, or may be, relevant to determining whether the applicant poses an unacceptable risk. This may include information obtained from other government authorities, employers, the applicant or other public sources. The Risk Assessment Guidelines then mention the statutory obligations under section 31 for the Commissioner to take into account how the information was obtained, the relevance of the information, the truthfulness, completeness and reliability of the information, and any submission made by the applicant addressing the above.
b.17. Risk evaluation is the process by which the Commissioner compares the results of the risk analysis (background checking) with the risk criteria to determine whether the risk, and/or its magnitude is acceptable.
c.18. Where there is a very low or low risk, this is acceptable without any mitigation. A moderate or high level of risk requires mitigation (i.e. conditions) to reduce the risk to an acceptable level. A critical level of risk is unacceptable (i.e. the applicant will be issued with a proposed negative notice). This risk evaluation is reproduced in tabular form in the Risk Assessment Guidelines (Figure 1).
| Likelihood | |||||
| Impact | Rare | Unlikely | Possible | Likely | Almost certain |
| Catastrophic | Moderate | High | High | Critical | Critical |
| Major | Moderate | Moderate | High | High | Critical |
| Moderate | Low | Moderate | Moderate | High | High |
| Minor | Very low | Low | Moderate | Moderate | Moderate |
| Insignificant | Very low | Very low | Low | Moderate | Moderate |
Figure 1Risk Rating Matrix
The reconsidered decision
a.19. The applicant originally applied for registration under the Act on 14 October 2013. She was registered unconditionally at that time. On the application form for registration, the applicant answered “no” to the question “… have you been the subject of an investigation by the ACT Child protection agency of an allegation about abuse or neglect of a child or young person in the ACT?”
b.20. She subsequently applied for registration on 10 October 2017. In this application, she answered “yes” to the same question. The result of this application was the conditional registration by the Commissioner and this application is the subject of the reconsidered decision in the present proceedings. The applicant sought a reconsideration of the decision to issue a conditional registration on 23 April 2018.
c.21. By letter dated 3 October 2018, sent to the applicant by email on 4 October 2018, a delegate of the Commissioner notified the applicant as follows:
On the basis of the information available to me I am not satisfied that you are suitable to hold a WWVP general registration for the following reasons:
• • You have been the subject of two investigations by CYPS [ACT Child and Youth Protection Services];
• • These investigations concluded that you inappropriately chastised a child in your care in 2013 and failed to report physical abuse of a child in your care in 2015;
• • Following the most recent investigation, CYPS notified you that they would be revoking your Approved Carer Authority;
• • The risk assessment that was conducted taking these investigations into consideration concluded that you pose a moderate level of risk to vulnerable people;
• • In accordance with the Guidelines a moderate level of risk is unacceptable without appropriate mitigation;
• • You have been unable to demonstrate that you do not pose an unacceptable level of risk without appropriate mitigation.
a.22. As part of the reconsideration of the decision, a delegate conducted a Risk Assessment Recommendation Report on 19 September 2018. The report relied upon certain sources of information (for the purposes of section 28 of the Act) as follows:
•(a) a national police history check;
•(b) information provided by ACT Child and Youth Protection Services (CYPS); and
•(c) the applicant’s statement.
a.23. The relevant officer assessed the reliability of each of the sources of information (for the purposes of section 31 of the Act). The national police history check and the information provided by CYPS were regarded as reliable sources of information. In relation to the CYPS information, the Risk Assessment Recommendation Report stated as follows. This information has been set out in full because it is central to the respondent’s reasons for the reviewable decision.
[s]31(a)(b)(c) Source, relevance, truthfulness, completeness and reliability of the information
On the 7th December 2017… CYPS provided the Background Screening Unit with a letter that had been provided to the applicant dated 10 May 2016. This letter outlined that her Approved Carer Approval was being revoked.
…
CYPS provided the following evidence to support their decision:
• • March 2013, a Child Concern Report was written alleging that the applicant had used inappropriate chastisement with a foster child in her care.
• • August 2013, a letter was sent to the applicant informing her that an appraisal had substantiated the allegations of abuse and additional training would be provided to assist her in managing challenging behaviours.
• • July 2015, a Child Concern Report was written which outlined two allegations of physical abuse by her husband, to the foster child in her care that had occurred within 24 hours of each other. The first was strangulation of the child and the second was the physical restraint of the child. The applicant failed to report either of these incidents.
• • July 2015, advice was received from a General Practitioner in relation to the injuries sustained by the child.
• • October 2015, a record of interview was provided by the Australian Federal Police.
• • October 2015, a Care and Protection appraisal was concluded which substantiated allegations of physical abuse by the applicant’s husband.
• • November 2015, a letter was issued notifying the applicant of the outcome of the appraisal.
• • April 2016, a letter was issued revoking the applicant’s Approved Carer Approval.
On the 10th of May 2018 Infinity Legal wrote to the Background Screening Unit requesting a reconsideration of the conditional registration issued to the applicant. Their submission outlined the following:
• • 11 March 2015, the applicant and her husband became foster carers for a child who had noted psychological issues (including PTSD) prior to coming into their care, which they were aware of.
• • 18 March 2015 the applicant and her husband wrote to Marymead stating that psychological treatment was necessary for the child.
• • 25 May [2015] the applicant and her husband were notified that the child had been suspended from school due to non-compliance and violence towards a teacher.
• • 27 June 2015 the applicant claimed that she was assaulted by the child, stating that she was punched, head-butted and verbally threatened.
• • 5 July 2015 the applicant and her husband reported to Marymead that the child’s behaviour was out of control and threatening.
•o On the 5th July 2015 the husband picked the child up and tried to place him on the bed in his bedroom to calm him. During this incident, the wooden bed frame broke caused by a known weakness in a wooden slat and no injury to the child was visible or witnessed. The applicant was not in the room when the incident occurred. The husband called Marymead twice to immediately collect the child.
•o The applicant did not engage in the appraisal process as she claims that she did not receive the letter from CYPS indicating that her Approved Carer Approval would be revoked.
•o 17 June 2016, both the applicant and her husband were found to be unsuitable as foster carers through the appraisal process and applied for a review of the decision through ACAT.
•o The ACT Government solicitor discontinued the ACAT proceedings as “the decision maker had made their decision in error”. As a result, the applicant withdrew her application with ACAT on the 4th of August 2016.
•o The applicant’s husband who was the party directly involved in restraining the child was recently issued with a Working with Vulnerable People card, with no conditions imposed.
Infinity Legal have provided a copy of the letter from the ACT Government solicitor, dated 25 July 2016. It confirms that the decisions to revoke … [the applicant and her husband’s] Approved Carer Authorities were made in error, and are null and void. However, it outlines that the reason for this is because neither party held an Approved Carer Authority at the time of the decision, and therefore something cannot be revoked if it does not in fact exist.
Infinity Legal have also provided a letter that was sent to the foster child’s mother on the 29th of May 2015. It outlines that the child is nine years old (turning ten in August) and that he was moved from his previous foster carers as they couldn’t meet his needs due to his ADHD.
…
This submission does not provide much weighting in the assessment of this application as it was written prior to the incidents of assault.
[s]31(d) Submission made by the applicant/registered person to the Commissioner
In her application, [the applicant] self-disclosed that she had been the subject of an investigation by the ACT Child Protection agency of an allegation about abuse or neglect of a child or young person in the ACT.
In the applicant’s … statement she makes admissions to the incident which occurred on the 18th of March 2013 stating that she “slapped - open handed - a foster child in my care”. She further states that he was approximately 10 years old at the time and “had been using inappropriate language and generally misbehaving”. She says that she immediately reported the incident to Marymead, took full responsibility, and noted that her actions were inappropriate. She states that on the 28th of March she participated in a meeting with Marymead and CYPS where she was informed that no further action would be taken and that the foster placement would continue. The applicant did not provide any insight into any internal/external factors that could have led to the incident in her … statement, nor did she provide any supporting references.
Other Information (optional)
The applicant has stated that they would like it taken into consideration that she was issued with a WWVP card after the 2013 incident [had] occurred and therefore her application for a WWVP has already been assessed against the incident and the information provided.
Access Canberra records indicate that the applicant applied for a Working with Vulnerable People Registration on the 13th of October 2013. As the applicant did not disclose that they had been the subject of an investigation by the ACT Child Protection Agency of an allegation about abuse or neglect of a child or young person in the ACT and no criminal history was reported by ACIC, the application was processed as a General Registration for three years. If the applicant had disclosed the above to the Background Screening Unit then a risk assessment would have been undertaken earlier.
a.24. The Risk Assessment Recommendation Report made the following evaluation:
| Risk source | Harm/s | Consequence | Likelihood | Rating |
| Other relevant information under s31 – Applicant has been the subject of an investigation by CPYS | Physical Psychological/Emotional Neglect | Minor | Possible | Moderate |
Figure 2Final Risk Assessment evaluation
a.25. The delegate gave the following summary of reasons for this recommendation:
In determining the applicant’s suitability to hold a WWVP registration, the applicant’s conduct has been given consideration with regard to the Working With Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1)
…
Many factors have been taken into consideration whilst assessing this application, with additional ‘weighting’ being attributed to the following details:
Factors that are considered to increase the impact on the level of risk:
• • Abuse of power or breach of trust
• • Committed against a vulnerable person
• • Used force or weapons
• • Multiple substantiated incidents for the same type of conduct
• • Age of victim: under 18
• • Significant difference in age/mental capacity between victim and applicant
Factors that are considered to reduce the impact on the level of risk:
• • Accepted responsibility upfront or at time of concerning conduct
Factors where the risk level is dependent on the circumstances of the offence/incident:
• • Lapse in time since last substantiated incident: 1-5 years
• • Accepted responsibility and/or apologised.
a.26. The delegate concluded that the applicant had not been “upfront and honest” with the Background Screening Unit when she applied for registration in October 2013, which was “seven months after the first reported incident of abuse towards a child in her care and two months after she was notified that the allegations against her had been substantiated”. The delegate considered that “had she done so the risk assessment process could have been undertaken at this time”. The applicant disclosed that she had been the subject of an investigation by CYPS in the application that is presently under review and the Background Screening Unit was able to obtain further information to undertake the risk assessment. The applicant admitted to open handedly slapping a young child in her care in her statement and the delegate concluded that
… she does not attempt to justify her actions or provide an explanation as to the circumstances surrounding the incident for the background screening unit to take into consideration.
a.27. The delegate recognised that the applicant’s husband committed the second and third substantiated allegations of abuse (which occurred in 2015). However she was “aware that harm been caused to a child in her care. As a foster carer she had a duty of care to report these incidents and she neglected to do so.”
b.28. The delegate concluded that the applicant and her husband were aware that the child was struggling with psychological issues (including PTSD) prior to coming into their care and so his difficult behaviour could have been anticipated. Although the applicant had been offered additional training following the incident in 2013 to assist her in managing challenging behaviour, no evidence was provided that the applicant participated in or completed this training. Further, “the applicant has not provided any evidence to suggest they have changed, or intend to change their behaviour towards their approach to guardianship of children in their care.”
c.29. The delegate assessed the applicant’s overall risk as ‘moderate.’ In accordance with the Risk Assessment Guidelines a moderate level of risk requires mitigation through the use conditions. Therefore it was recommended that the applicant be issued with a conditional registration.
The applicant’s contentions
a.30. The applicant gave the following reasons for seeking review of the decision.
a.(a) She poses no risk of harm or, in the alternative, an acceptable risk to vulnerable persons within the meaning of section 41(1) the Act.
b.(b) She is entitled to unconditional registration under section 41(2) of the Act because there is no reasonable basis for the Commissioner to impose conditions upon her registration or the conditions imposed on the registration are unfair, unreasonable or unnecessary.
c.(c) The risk assessment undertaken by the Commissioner under section 32 of the Act did not comply with the Risk Assessment Guidelines because the applicant was not afforded procedural fairness and natural justice in relation to the decision-making process.
a.31. The starting point of the applicant’s argument is section 41 of the Act which requires the Commissioner to consider the Risk Assessment Guidelines, then if under the Risk Assessment Guidelines the person poses no risk or unacceptable risk of harm, the Commissioner must issue an unconditional general registration. The applicant argued that section 28 states the Risk Assessment Guidelines will provide all the matters that the Commissioner must or may take into account and how those matters may be taken into account. Then section 28(2) lists all of the things that must be taken into account, culminating with “other information” in section 28(2)(e). The applicant relied upon a statement in the Risk Assessment Guidelines as follows:
where a person holds the current general registration for working with children and/or vulnerable people… Unless there has been a change in circumstances since approval (as indicated in a criminal history check) … The Commissioner will usually issue a general registration.
a.32. The applicant contended that a general reading of the Risk Assessment Guidelines suggests that the intention of the risk assessment is squarely to draw attention to criminal conduct, non-conviction information and previous suspensions or cancellations. It was common ground that the applicant has no criminal history. Similarly, no issue arises about non-conviction information or negative vetting notices. There has never been a suspension or cancellation of the applicant’s registration under the Act or its equivalents.
b.33. The applicant argued that she has a low level of risk which is acceptable without any mitigation, so it is appropriate to issue a general registration.
c.34. The applicant pointed to inconsistencies in the material that the Commissioner relied upon in reaching the reviewable decision. For example, contrary to bullet point 1 of the decision, the applicant was the subject of one CYPS appraisal in 2013 and her husband was the subject of another CYPS appraisal in 2015. Similarly the statement at bullet point 2 that “these investigations concluded that you inappropriately chastised the child in your care 2013 and failed to report the physical abuse of a child in your care in 2015” is inaccurate. The applicant notes that the outcome of the 2013 police investigation was that the applicant had lawfully chastised the child. The applicant admitted that the chastisement was inappropriate but the actual finding was lawful chastisement. Importantly the outcome of that CYPS appraisal, as reflected in the CYPS Appraisal Outcome Report (the CYPS 2013 Appraisal Report), was that there was no significant risk identified and the child remained in the applicant’s care. The Australian Federal Police (AFP) Case Summary (AFP Case Summary) states that the CYPS told the AFP that they had no concerns with the child’s safety.
d.35. The AFP case summary states the following:
… this is a one-off incident
[The applicant] was extremely upset at herself for slapping [Child A], she was remorseful and very ashamed of her actions
[The applicant] informed [Y] she reacted badly and it would never happen again.
…
… the decision was made not to take any further action, police and CPS have no concerns for [Child A] and believe this incident although not acceptable was lawful chastisement by his Foster Mother.
a.36. The applicant argues that the 2015 appraisal by CYPS made no allegations of wrongdoing by the applicant. It squarely focussed on the conduct of the applicant’s husband. The applicant could not find an allegation that she failed to report physical abuse of a child in 2015 in any of the documents that were before the Tribunal. Moreover, the outcome of the 2015 police investigation was that the applicant’s husband’s actions were lawful chastisement and there was an irreconcilable difference between the versions of events of Child B and the carers. The CYPS made a positive finding of physical abuse despite the fact that the child did not experience or suffer significant harm or any significant risk of harm. The positive finding of physical abuse was made without CYPS interviewing the applicant’s husband or the applicant. By the time the CYPS began making enquiries about what happened the applicant and her husband were overseas. A letter was sent to them on 7 October 2015 but they say they did not receive it. The letter stated:
I would like to give you the opportunity to speak with myself regarding the events which led to the placement breakdown.
If CYPS have not heard from you by 14 October 2015, we will accept that you do not wish to participate in the assessment and won’t be taking any further action on this matter at this time.
a.37. The applicant said that she did not receive this letter but nevertheless CYPS took further action and continued with the appraisal process without consulting the applicant’s husband or the applicant and delivered a report in which it revoked their Approved Carer status. By the time the decision to revoke the Approved Carer status was underway the applicant and her husband were back from overseas and capable and willing to participate in the process and they wrote submissions about this decision. They engaged a solicitor to challenge the revocation. The application did not progress because their Approved Carer status had been revoked because of legislative changes.
b.38. On behalf of the applicant, Ms Hogan commented that the applicant gave evidence before the Tribunal in which she demonstrated contrition, stating that she regrets most sincerely what happened in 2013. She was emphatic that there would be no repeat of this conduct. The applicant and her husband cannot have a foster child in their home without getting their Approved Carer status back. The applicant contended that there is no risk that they will have a foster child in their home. Therefore, it is difficult to understand why it is necessary to impose a condition to address a risk that does not exist or one where the risk is so low as to be inconsequential with reference to the level of contrition demonstrated by the applicant.
c.39. Finally, the applicant challenged the finding that she poses a moderate level of risk to vulnerable people. The applicant says that the risk assessments took into account incomplete and inaccurate information because they did not for example have the AFP Case Summary or Case Note, the CYPS 2013 Appraisal Report or the minutes of the meeting in relation to the 2013 incident. They also did not follow the Risk Assessment Guidelines because they gave a lot of weight to incomplete and inaccurate ‘other information’ and gave inconsequential weight to more serious aspects such as the absence of criminal history or negative vetting notices and the other criteria that are nominated under section 28 of the Act.
d.40. Ms Hogan contended on behalf of the applicant there is a real danger in this case that there has been a retrospective assessment about the seriousness of harm which was already assessed by someone else when it was happening, contemporaneously, as being insignificant and not warranting any further intervention. The appropriate regulatory authorities actively considered the risk of harm at the time and concluded that no further intervention was warranted. This should inform our current thinking when we are considering the applicant’s present risk to the extent that that is based on her past conduct.
The respondent’s contentions
a.41. The respondent argued that the object and purpose of the WWVP Act is to protect vulnerable people generally. Children are in a special and distinct category where they are necessarily vulnerable and the schedule to the Act illustrates that there are degrees of vulnerability of children. The conduct which is presently under review involves children that are the most vulnerable, being children that are in child protection services who may be cared for in overnight accommodation.
b.42. The respondent argued that the Tribunal must be satisfied that the condition is necessary. “Necessary” has a well-established meaning which is not synonymous with ‘essential’ or ‘indispensable’. Rather, it means “reasonably appropriate and adapted” or “reasonably required”. The respondent submitted that there is a risk of harm that will be reduced by the imposition of a condition that minimises that risk, therefore the condition is necessary. It is appropriate in the circumstances that the applicant be subject to a specific and limited condition that reflects the risk of harm that arises by reason of the applicant’s past conduct. Relevantly section 42 contains a discretion to impose a condition that is an unfettered discretion, only limited by the objects and purpose of the Act. The Act is designed to reduce or minimise the risk of harm to children by imposing conditions. When applying section 44(2) the only matter for the Tribunal to determine is whether a condition is necessary. It is clearly envisaged that conditions are a means by which an unacceptable risk may be reduced to an acceptable risk.
c.43. As a matter of practicality, the risk of harm is determined by looking at past conduct, as evidenced by section 28 and the Risk Assessment Guidelines. But when looking at past conduct one must consider the nature of the conduct and its relationship to the relevant risk of harm. The respondent submitted that the relevant risk of harm is the risk of physical and emotional harm to highly vulnerable children in care in a home environment. ‘Harm’ is defined in section 23 in very broad terms to include emotional harm which does not involve any considerations of criminality or moral culpability. Applying section 23, it does not matter how the risk arises – it may be as a result of neglect or abuse or other conduct. The relevant conduct here is the use of force against a child and, in a very limited sense, the failure of the applicant to disclose that matter in the October 2013 application form. The conduct has a direct link to the risk of harm in the sense that the applicant used physical force against a foster child in her care that resulted in a degree of physical and emotional harm to that child. The physical harm was acknowledged by the child. The emotional harm arises from concern by a counsellor who interviewed Child A that he was blaming himself for the conduct and must be seen in the context of the foster child who is in a precarious position. The inference that the child was minimising the physical harm and thereby suffered emotional harm arises from the Appraisal Meeting Minutes, which state the following:
[The applicant] reported that [Child A] was frightened of the Police interview and worried that he might not go home. She advised that she and [her husband] talked to [Child A] about why the police spoke to him and he was worried about getting [the applicant] into trouble wanted to know why [the applicant] admitted to hitting him – to which [the applicant] explained why.
a.44. The respondent contended that the outcome of the CYPS’s investigation in 2013 was that there was inappropriate discipline and there was no risk involved in the child returning to the applicant’s care but that was subject to the recommendation that the applicant undertake training because she had said, during the interview, that she could not promise that she wouldn’t behave the same way if she was placed in same or similar circumstances. Quite explicably, argued the respondent, after being subjected to prolonged abuse, when Child A made an offensive comment to the applicant, she responded reactively and slapped him. It was an instinctive response to extreme circumstances. It was not a case of discipline. Whilst it is important to recognise that these are extreme circumstances, the purpose of the condition is to avoid the situation arising.
b.45. Applying the guidelines, the use of force is to be treated as serious, particularly by someone in a position of authority which is relatively recent, being just outside the five-year timeframe. It is significant that the child was in the most vulnerable of categories being a child who is in protective services. His vulnerability is heightened by his age — 12 years old. A child in child protection services may have had a difficult background that could mean they have been exposed to trauma, abuse and emotional harm. The child might also have significant behavioural issues.
c.46. Although the applicant argued that she is not approved as a foster carer under the Children and Young People Act2008 (the CYP Act) and any attempt by her to participate in this activity would be met with further regulatory hurdles, the respondent contended that there is nothing to prevent her from applying and she may get registration if no conditions are imposed under the WWVP Act. Although the applicant placed significant weight upon the findings of the police, the respondent submitted that these findings are not relevant to the requirements under the WWVP Act. A decision not to prosecute in particular circumstances does not assist the Tribunal in characterising the nature of the conduct. The decision not to prosecute involves a multitude of considerations which cannot lead to the simple conclusion that the person involved does not represent a risk of harm.
d.47. The respondent submitted that simply by the fact that the conduct involved the use of physical force, resulting in some harm, necessarily puts it in the more serious category of risk. That risk must be evaluated in relation to providing the particular regulated activity which is protection services. The combination of those factors leads to the conclusion that there would be an unacceptable risk of harm, with the consequence that if there was no condition the applicant must be refused registration. The respondent acknowledges that this would be an entirely absurd result given that the risk is narrow and specific so the present condition is appropriate and adapted to ensure that someone in the applicant’s position can be registered.
e.48. The respondent contended that the risk of harm is elevated by the applicant’s failure to declare “yes” to the question “… have you been the subject of an investigation by the ACT child protection agency of an allegation about abuse or neglect of a child or young person in the ACT?” This is a limited submission that is relevant to child protection services, where there may be either a mandatory or contractual obligation to report. The applicant acknowledged in her testimony that she understood there was an informal investigation by CYPS in 2013, that there had been a process that involved both the police and CYPS interviewing the child and there must have been a possibility in her mind that she had the option of selecting “yes” and she did not do so. In the application form in 2017, when faced with the same option she ticked “yes” then described what it had occurred as an investigation. The respondent contended that this behaviour supported the imposition of the condition because it needs to be taken into account where an applicant for registration has potential voluntary or mandatory reporting obligations.
Consideration
a.49. The Tribunal notes that the applicant may apply for registration under section 17 of the Act. As part of the registration process and pursuant to section 23 the Tribunal, standing in the shoes of the Commissioner, must undertake a risk assessment, that is, an assessment of whether the person poses an unacceptable risk of harm to a vulnerable person, noting that it does not matter whether the risk of harm arises from neglect, abuse or other conduct. The Tribunal will follow the relevant Risk Assessment Guidelines. For the purposes of the Risk Assessment Guidelines and section 28 of the Act, the Tribunal notes the following:
a.(a) The applicant has no criminal history.
b.(b) There is no relevant non-conviction information about the applicant.
c.(c) The applicant has not been given a negative notice under the Act or a corresponding law.
d.(d) The applicant has been previously registered under the Act and the registration was not suspended or cancelled.
e.(e) There is other relevant information which consists of reports provided to the Tribunal by CYPS that will be considered below.
a.50. The following information that will be relied upon by the Tribunal:
a.(a) The applicant’s testimony before the Tribunal.
b.(b) Information provided by CYPS.
a.51. Applying section 31 of the Act, the latter information is reliable information as it emanates from a public agency and is therefore contemplated by Table 2 of the Risk Assessment Guidelines. The Tribunal believes on reasonable grounds that the information is relevant in deciding whether, in engaging in the activity, the applicant poses a risk of harm to a vulnerable person.
b.52. The Tribunal has also taken into account the documentary evidence presented at the hearing, the documents filed with the tribunal and the helpful submissions made by the lawyers acting for the parties at the hearing.
The 2013 incident
a.53. In the first incident, the applicant slapped a child (Child A) in her care with an open hand. Child A had been residing with the applicant and her husband for three years at the time. He had returned from a visit with his mother and was agitated. He had an “attitude” which persisted for an “extremely long time”. He was throwing things and swearing at the applicant and her husband. The applicant was trying to calm him down but he continued to be aggressive, yelling in the applicant’s face and using words to describe the applicant’s husband that were “very disgusting” immediately before the applicant slapped him. The applicant reported the incident to the relevant authorities two days later.
b.54. The police investigated the incident but decided to take no further action believing that the incident, although not acceptable, was lawful chastisement. In contemporaneous statements, the applicant said that she could not guarantee that she would not behave the same in similar circumstances but in her evidence before the Tribunal she said that she could guarantee that she would not behave in precisely the same way today and that she had been in similar situations since this incident and had not reacted like that. She also stated that since going to counselling and talking to people she had learned mechanisms to cope with it. Further, the shock of disappointment in her behaviour was enough to ensure that she does not do it again.
c.55. CYPS undertook a Child Protection Appraisal in relation to this incident. The appraisal commenced on 22 March 2013 and concluded on 18 April 2013. The applicant and her husband were advised by letter of the result in an undated letter sent to them by CYPS. The appraisal concluded that this was a case of “inappropriate discipline in response to Child A’s challenging behaviour”. The appraisal recommended that it was in “Child A’s best interests to remain in your care and additional training be offered to assist you to manage these situations.”
d.56. The Tribunal relies upon the CYPS 2013 Appraisal Report. This report provided the following information under the heading ‘Analysis and Conclusion:’
Risk factors:
[the applicant and her husband] have communicated in an open and honest way about this incident; however, [the applicant] has said that she cannot promise that she will not hit [Child A] again if he has similar behaviours.
…
Cumulative harm:
As far as CPS are aware this is a one-off incident in this placement
Recommendation:
It is recommended that [Child A] remain in his foster placement. [Child A] has lived with his foster family for nearly 3 years wherein he has settled well and formed attachments with his care givers. [Child A] wishes to stay in this placement until he is 18 years old and his carers have made a commitment to this.
It is felt that [Child A’s] carers would benefit from some training on challenging behaviour and trauma and that [Child A] would benefit from some counselling to help support him to manage his strong emotions.
Action plan:
• - [the applicant and her husband] attend a “challenging behaviour” training course to learn strategies on managing negative behaviour
• - [the applicant and her husband] to attend “trauma” training to help them best understand some of [Child A’s] behaviours. …
a.57. As regards the recommendations made by the CYPS 2013 Appraisal Report, the relevant caseworker noted that “no significant risks were identified.” The other option available to the caseworker was “abuse/neglect or future risk identified.”
The 2015 incident
a.58. Child B was residing with the applicant and her husband in a foster placement in 2015. The evidence indicates that some difficulties had been encountered during April 2015. Following on from some incidents that occurred at Child B’s school the applicant asked for the placement to end however by mid-June 2015 the applicant and her husband decided to continue with the arrangement. However, approximately one week prior to the incident the applicant’s husband emailed the workers at Marymead and asked for Child B to be relocated immediately due to concerns about the safety of the applicant and Child B. The applicant’s husband requested that the worker give him a call at her earliest convenience so they could put a plan into place.
b.59. On 5 July 2015, there was an altercation between the applicant’s husband and Child B. During that altercation a wooden slat on Child B’s bed was broken.The applicant’s husband immediately called Marymead to ask for Child B to be picked up. The worker from Marymead proceeded to the applicant’s home where Child B was picked up and taken back to a Marymead residence.
c.60. The police investigation of the 2015 incident recognised that there were two different versions of the event and the police were unable to definitively establish which of the two versions of the event was accurate. However the police commented that there was “a lack of physical evidence to support the severity of the incident as described by [Child B]. The evidence leans more towards [the applicant’s husband’s actions] being an effort to prevent further property damage and/or lawful chastisement.”
d.61. Importantly, there is no reference to the applicant’s behaviour in any of the reports that flowed from the 2015 incident. There was a subsequent decision by CYPS to undertake an appraisal of the incident which resulted in the purported termination of the applicant and her husband’s Approved Carer status. The Tribunal uses the term “purported” because the Approved Carer status had been revoked due legislative amendments. However, this was unknown to CYPS at that time. The applicant and her husband did not make any submissions to CYPS during this appraisal because they were overseas and by virtue of the letter sent by CYPS on 14 October 2015, CYPS assumed that in the absence of contact by the applicant and her husband that they did not wish to participate in the assessment. However, upon returning to Australia and after finding out about the revocation they instructed a solicitor to lodge an application in ACAT to challenge it. However, this challenge was futile because legislative amendment had rendered their Approved Carer status redundant.
e.62. The decision-maker of the reconsidered decision in the present application relied upon the 2015 incident as evidencing a failure by the applicant to report this incident. However, the contemporaneous records indicate that the applicant’s husband notified Marymead immediately after the incident had occurred and asked for Child B to be picked up. There is no evidence in any of the records of a failure of the applicant to report physical abuse. The Tribunal recognises that CYPS concluded its appraisal in October 2015 and it found that allegations of physical abuse by the applicant’s husband to be substantiated, however this was in the absence of any input by the applicant and her husband. The Tribunal accepts the argument made by the applicant that there is no evidence in the material before the Tribunal that indicates a failure to report by the applicant.
f.63. The Tribunal therefore does not consider the 2015 incident is relevant to a risk assessment of the applicant. The Tribunal notes the comments of the decision-maker upon the reconsideration that the applicant was “aware that harm had been caused to a child in her care. As a foster carer she had a duty of care to report these incidents and she neglected to do so.” There is no evidence that the applicant neglected to report any incidents of harm to a child in her care. As regards the incident that occurred on 3 July 2015, as stated above, the applicant’s husband reported the incident immediately.
g.64. The Tribunal will therefore focus upon the 2013 incident in deciding whether the applicant poses no risk, an acceptable risk or an unacceptable risk of harm to a vulnerable person. In doing so, the Tribunal relies upon the applicant’s oral testimony about her current approach. The applicant impressed the Tribunal as an honest witness and the Tribunal accepts her evidence that she would not react the same today as she did in 2013 and the shock and disappointment in her behaviour was enough to ensure that she would not do it again. The Tribunal also relies upon the records made by persons who assessed the risk at the time of the incident. These people met all the protagonists and had an opportunity to assess the risk first hand in context. The decision-makers at CYPS considered that no significant risk was identified and the child remained in the applicant’s care.
h.65. However, the Tribunal notes that the 2013 episode was a serious incident that resulted in physical and emotional harm to the child involved. The Tribunal also notes that the definition of harm in the Act is wide enough to encompass this type of harm and adopts the submissions of the respondent that the interviews of Child A at the time indicate that he had suffered emotional harm and that he is in a particularly vulnerable category of persons, being children who are within child protection services.
66. The Tribunal considers that the conduct and the context of the 2013 incident demonstrates that the applicant presents a moderate level of risk which is unacceptable and should be mitigated by appropriate conditions. The Tribunal will adopt the factors used by the decision-maker upon the reconsideration though within a narrower compass and not within the same categories:
Factors that are considered to increase the level of risk:
• • abuse of power
• • committed against a vulnerable person
• • used force
• • age of victim – under 18
• • significant difference in age between the victim and applicant.
Factors that are considered to reduce the level of risk:
• • accepted responsibility upfront or at the time concerning conduct
• • lapse in time since last substantiated incident 5+ years
Factors where risk level is dependent on the circumstances of the incident
• • accepted responsibility and/or apologised
• • confused about reporting obligations.
a.67. The penultimate dot point is important because the CYPS 2013 Appraisal Report contemplated that the applicant undertake training in relation to both trauma and challenging behaviours. By the time of the reconsidered decision, there was no evidence that this training had been undertaken and the decision-maker upon the reconsideration concluded that the applicant had not provided any evidence to suggest they had changed or intended to change their approach towards the guardianship of children in their care. The applicant’s lawyer in submissions recommended that a condition may be applied whereby the applicant undertakes further training as a prerequisite to an unconditional registration under the Act. This is elaborated below.
b.68. The final dot point is also significant and the Tribunal accepts the respondent’s submission that the applicant’s failure to disclose the investigation undertaken by CYPS in her October 2013 application amounted to further risk because she might not be adherent to mandatory reporting obligations. The delegate who undertook the risk assessment report for the reconsidered decision concluded that the applicant had not been “upfront and honest” when she applied for registration in October 2013. It is clear that this failure to disclose streamlined the process for the applicant’s unconditional registration in 2013. The applicant’s explanation for her failure to disclose was that she understood the investigation by CYPS was “informal.” The Tribunal considers that this conduct leads to an increased risk as a consequence of a failure by the applicant to proactively disclose material information.
c.69. In accordance with the Risk Assessment Guidelines, the Tribunal considers that a moderate level of risk is prima facie unacceptable without mitigating conditions. In framing conditions, the respondent relied upon the test of necessity, which in this case means “reasonably appropriate and adapted” or “reasonably required.” However, the Tribunal considers that the condition imposed in the reconsidered decision is not reasonably appropriate or adapted.
d.70. The condition under review prohibits the applicant from engaging in accommodation services for vulnerable people and also prohibits her from engaging in activities or services in a residential setting. The closest regulated service that is defined in the Act is a child accommodation service under section 1.5 of Schedule 1 of the Act. This provision defines a child accommodation service to mean:
b.(a) … a service for which the main purpose is to provide residential accommodation for children; and
c.(b) includes an overnight camp for children, irrespective of the kind of accommodation or of how many children are involved.
d.71. The condition under review therefore potentially has a very wide operation. In the Tribunal’s view, the condition is not appropriate because it is disproportionate to the level of risk based on the applicant’s past conduct. Moreover, it is not ‘adapted’ because it is not fit for purpose — it contemplates particular activities that are not likely to be undertaken by the applicant in the future because the applicant does not have Approved Carer status to undertake foster care. Certainly the Tribunal notes the respondent’s submissions that there is no reason why the applicant cannot seek Approved Carer status under the CYP Act but we have to assume that CYPS would consult their own records if and when the applicant took such a step. We cannot use a condition under the WWVP Act to effectively block an application under the CYP Act. Perhaps more importantly, the condition does not conform to the solutions that were originally proposed in relation to the 2013 incident, which was further training on managing challenging behaviour and trauma.
e.72. The Tribunal has imposed a condition which reinstates the obligation of the applicant to undergo that training and thereby mitigate the harm that was contemplated by the decision-makers in 2013. In the Tribunal’s view, the substituted condition is appropriate because it is proportionate to the level of risk and is adapted because it is directed to and mitigates the harm.
f.73. The Tribunal has therefore ordered that training in relation to trauma and challenging behaviours be undertaken by the applicant upon the successful completion of which she will be issued with an unconditional registration under the Act. Both types of training must be undertaken at the applicant’s own expense.
………………………………..
Senior Member P Spender
HEARING DETAILS
FILE NUMBER: | OR 24/2018 |
PARTIES, APPLICANT: | Applicant 201824 |
PARTIES, RESPONDENT: | Australian Capital Territory |
COUNSEL APPEARING, APPLICANT | Ms A Hogan |
COUNSEL APPEARING, RESPONDENT | Mr N Oram |
SOLICITORS FOR APPLICANT | Namadgi Legal |
SOLICITORS FOR RESPONDENT | ACT Government Solicitors |
TRIBUNAL MEMBERS: | Senior Member P Spender |
DATES OF HEARING: | 15 February 2019 |
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