FMZ v Children's Guardian

[2023] NSWCATAD 86

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMZ v Children’s Guardian [2023] NSWCATAD 86

Hearing dates:

15 February 2023

Date of orders:

11 April 2023

Decision date:

11 April 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
F Duffy, Senior Member

Decision:

The decision under review is affirmed

Catchwords:

ADMINISTRATIVE LAW – NDIS Worker Checks - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant– weight of evidence of risk – current risk

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018 (Cth)

National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFC v The Children's Guardian [2014] NSWCATAD 90,
BFX v Children's Guardian [2014] NSWCATAD 115 BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
FBC v Children’s Guardian [2021] NSWCATAD 286

FPV v Children’s Guardian [2023] NSWCATAD 59

Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88

Texts Cited:

None

Category:

Principal judgment

Parties:

Onismo Baivatu (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Mr R Pietriche (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2022/00264627

Publication restriction:

None

REASONS FOR DECISION

1. On 19 April 2021, FMZ (“the applicant”) applied for a clearance (Clearance) pursuant to s 6 of the National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018 (NDIS Check Act). On 4 August 2022, the Children’s Guardian (Children’s Guardian) refused the Clearance pursuant to 11(1) of the NDIS Check Act after conducting a risk assessment because the applicant’s criminal history included two dishonesty offences for which he had been charged and convicted. The Children’s Guardian concluded that the applicant poses a risk of harm to persons with a disability.

2. On 5 September 2022, the applicant filed in this Tribunal an application for administrative review of the Children’s Guardians refusing him a Clearance.

3. The Children’s Guardian opposes the application and maintains that the Tribunal should affirm the decision to refuse the grant of a Clearance to the applicant.

4. Based on all of the available evidence and having regard to the statutory provisions which we outline below, we find that the applicant continues to pose a risk of harm to persons with a disability. As a result, the Children’s Guardian’s decision is affirmed. Our reasons follow.

Background

5. At the date of hearing the applicant was 40 years of age. He works in an administrative role with a major retail employer. The applicant was working as a disability support worker until the Children’s Guardian placed an interim bar on him undertaking such work and refused to issue to the applicant a Clearance. He desires to continue working within the disability sector as a support worker. It is not disputed that the applicant is required to obtain a Clearance to continue working within the NDIS sector.

6. Relevantly, the applicant’s Clearance was refused by the Children’s Guardian due to two dishonesty offences contained in his criminal record. The two offences occurred in 2016 to 2017 and in 2019, during a period when the applicant was employed in the hospitality sector. Since his offending, the applicant has ceased working in hospitality to lessen any temptation to commit further acts of dishonesty.

First conviction

7. The first offence occurred when the applicant was employed as a restaurant manager at the Watergrill restaurant in the Kirribilli RSL Club throughout 2016 and 2017. The applicant pleaded guilty to an offence pursuant to s 156 of the Crimes Act 1900 (NSW), steal property as clerk/servant greater than $15,000. The facts with which the applicant was convicted, involved him stealing money from the restaurant by way of voiding transactions of cash paying customers, replacing these transaction in the electronic accounting system with open orders with zero balances and stealing the money collected from the customers. Over a two week period, voided transactions totalled $5,500. The applicant confessed to stealing $5,500 and told his manager he would repay the money. He then resigned from his position on 31 October 2017. After contacting an IT specialist, the applicants employer identified $246,094.50 of voided transactions in the point of sale (“POS”) system going back to 1 January 2016. When confronted by his manager about the $246,094.50 in voided transactions, the applicant is alleged to have said “I’ve sent it all to Fiji, I’ve spent it, It’s all gone”.

8. The applicant was arrested and cautioned on 2 November 2017. He admitted in an electronically recorded interview to stealing between $60,000 to $70,000 from his employer from February 2016 – October 2017. He said he started stealing when he saw other employers doing the same. He denied stealing $246,094.50. He said he spent the money on rent, food, clothing and other daily expenses. During the interview, the applicant expressed remorse for his offending.

9. The applicant was convicted for the offence with which he was charged. He was sentenced to a term of imprisonment of 15 months to be served by way of an intensive corrections order (“ICO”) pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (“CSP Act”) commencing on 29 January 2018 and expiring on 28 April 2019.

Second conviction

10. In 2019, the applicant was a manager at the Hurricane’s Grill restaurant at Circular Quay. As part of his duties, he took orders from customers and received payments on behalf of the restaurant.

11. On 15 June 2019, a customer who dined at the restaurant and was overcharged by $50 for a meal not ordered. After making a complaint, the applicant issued to the customer a gift voucher for $50. On 3 August 2019, a table of customers were overcharged $52 by the applicant. After a complaint was made, the applicant refunded the customer $52 from his personal bank account. This was contrary to the restaurants policy to refund customers from the company account.

12. On or about 6 October 2019, the applicant was detected manipulating the POS system to obtain a financial benefit. The financial benefit amounted to $121.35.

13. The applicant pleaded guilty to defrauding the restaurant of $507.80. He was convicted of an offence pursuant to s 192E(1)(b) of the Crimes Act and sentenced to a community corrections order (“CCO”) pursuant to s 8 of the CSP Act for a term of 18 months. The applicant was ordered to pay compensation to the restaurant in the amount of $507.80.

The legislative scheme

14. The National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018 (Cth) (“Rules”) made under National Disability Insurance Scheme Act 2013 (Cth), set out requirements relating to worker screening for those who work within the National Disability Insurance Scheme (“NDIS”). The rules are an important element of the NDIS practice standards that seek to minimise the risk of harm to people with disability from the people who work closely with them.

15. As set out in the preamble to the Rules, the worker screening process is one source of information that can support employers in fulfilling their responsibility in  recruiting appropriate staff and providing a safe environment for people with disability. 

16. The NDIS worker screening regime has been brought into effect through relevant Commonwealth, State and Territory legislation and policy.  In New South Wales, the Children’s Guardian is the responsible agency for implementing the NDIS worker screening scheme within New South Wales pursuant to the NDIS Check Act and the NDIS Check Regulations.

17. The relevant roles applicable to worker screening checks are set out in cl 5 of the NDIS Rules, which include a “risk assessed role” being defined as:

Risk assessed role means:

(a) a key personal role of a person or an entity; or

(b) a role for which the normal duties include the direct delivery of specified support or specified services to a person with a disability; or

(c ) a role for which the normal duties are likely to require more than incidental contact with a person with a disability.

18. At cl 6 of the Rules, matters pertaining to the term “more than incidental contact” are defined. Division 4 of the Rules sets out worker screening clearances and cl 13 provides:

13 Risk assessed roles restricted to workers or personnel with clearance

Subject to the exceptions contained in this Division, a registered NDIS provider that provides supports or services to a person with a disability in a participating jurisdiction:

(a) must only allow a worker to engage in risk assessed role, if the worker has a clearance;….

19. In NSW, the screening process is carried out by the “Screening Agency” pursuant to s 4 of the NDIS Check Act, which provides:

"Screening Agency" means the person or body appointed by the Minister by order in writing published in the Gazette as the Screening Agency for the purposes of this Act.

20. In the NSW Government Gazette (No 58) dated 27 March 2020, the Minister for Families, Communities and Disability Services appointed the Children’s Guardian as the “Screening Agency” for the purposes of the NDIS Check Act.

21. The requirements for a person making an application for a Clearance is set out in s 6 of the NDIS Check Act as follows:

6 MAKING AN APPLICATION FOR A CLEARANCE

(1) An application for a clearance cannot be made before 1 July 2019 or such earlier date as may be prescribed by the regulations.

(2) An application for a clearance must:

(a) be in the form approved by the Screening Agency, and

(b) be accompanied by any information required by the Screening Agency, and

(c) include or be accompanied by proof of the identity of the applicant in the form approved by the Screening Agency, and

(d) be accompanied by the fee prescribed by the regulations.

(3) The Screening Agency may require an applicant for clearance to provide a recent photograph of the applicant, obtained in accordance with arrangements determined by the Screening Agency.

(4) An application is not considered to be completed and is not valid until all the requirements of this section for an application have been complied with.

(5) There is no requirement that an applicant for a clearance under this Act be a resident of NSW or have any other connection with NSW.

22. There is no evidence before us that the applicant does not comply with s 6.

23. In determining an application for a clearance, the Children’s Guardian is to consider s 8 of the NDIS Check Act, which provides:

8 DETERMINATION OF APPLICATION

(1) An application for a clearance must be granted unless the application is refused under this section.

(2) An application for a clearance must be refused if:

(a) the applicant is a disqualified person, or

(b) a risk assessment of the applicant is required (as provided by Part 3) and the risk assessment determines that the applicant poses a risk of harm to persons with disability.

Note : A presumptively disqualified person requires a risk assessment and is presumed to pose a risk of harm to persons with disability unless there are exceptional circumstances. See Part 3.

(3) An application for a clearance may be refused if the Screening Agency is not satisfied that the applicant is or will be engaged to do NDIS work.

24. The relevant part of this provision is s 8(2)(b). This is because the Children’s Guardian, when taking into consideration the applicants criminal history and after conducting a risk assessment (s 14 of the NDIS Check Act) has determined that the applicant poses a risk of harm to persons with a disability.

25. When the Screening Agency imposes an interim bar on a person, in circumstances where the Children’s Guardian is of the opinion that there is a reasonable likelihood that the risk assessment will determine the person poses a risk of harm to persons with a disability, or intends to refuse a Clearance, ss 9 and 10 of the NCAT Check Act provide:

9 Interim bar on applicant

Note—

Arrangements under the NDIS Act that allow an applicant for a clearance to do NDIS work while an application is pending will not allow this while an interim bar is in force.

(1) The Screening Agency may, at any time after receiving an application for a clearance and pending determination of the application, impose an interim bar on the applicant if of the opinion that there is a reasonable likelihood that a risk assessment will determine that the person poses a risk of harm to persons with disability.

(2) The Screening Agency imposes an interim bar by giving written notice of the interim bar to the applicant.

(3) The Screening Agency may give written notice of an interim bar to any person that the Screening Agency reasonably believes to be a notifiable person in relation to the applicant.

(4) An interim bar ceases to have effect:

(a) on notification in writing by the Screening Agency to the applicant that the interim bar is revoked, or

(b) if the application is granted or refused,

whichever occurs first.

10 NOTICE OF PROPOSED REFUSAL OF APPLICATION

(1) If the Screening Agency proposes to refuse to grant a clearance to an applicant, the Screening Agency must notify the applicant in writing of the proposed decision and that the applicant may make a submission to the Screening Agency within the period specified in the notice.

(2) The Screening Agency must consider any submission made by an applicant within the specified period before finally deciding the application.

(3) This section does not apply to an application for a clearance that is made by a disqualified person.

26. In compliance with s 10, the Children’s Guardian notified the applicant of the intention to refuse the Clearance on 20 June 2022 and that an interim bar had been imposed on him pursuant to s 9. The applicant provided further information which was considered by the Children’s Guardian in July 2022.

27. When the Screening Agency makes a decision to grant or refuse a Clearance, s 11 of the NCAT Check Act provides:

11 NOTICE OF FINAL DECISION GRANTING OR REFUSING CLEARANCE

(1) The Screening Agency must notify the applicant in writing of the Screening Agency's decision to grant or refuse to grant a clearance.

(2) Notice of a decision not to grant a clearance must set out the reasons for the refusal and any right to seek a review under Part 6 (Review of decisions).

(3) The Screening Agency may give written notice of the refusal of an application to any person that the Screening Agency reasonably believes to be a notifiable person in relation to the applicant.

28. The Children’s Guardian complied with the notice provision in s 11, by serving on the applicant a notice of refusal to grant a Clearance on 4 August 2022.

29. In undertaking a risk assessment, the following provisions which are set out in s 14 of the NDIS Check Act, are relevant:

14 REQUIREMENT FOR RISK ASSESSMENT

(1) A risk assessment of an applicant for or the holder of a clearance is required in the following circumstances:

(a) if the applicant or holder is a presumptively disqualified person,

(b) in circumstances prescribed by the regulations,

(c) in such other circumstances as the Screening Agency may determine, either generally or in a particular case.

(2) A risk assessment of an applicant for a clearance is required at the time of application if there are circumstances at the time of application that require a risk assessment.

(3) A risk assessment of the holder of a clearance is required if the Screening Agency becomes aware that there are circumstances that require a risk assessment.

30. The Children’s Guardian determined that a risk assessment was appropriate having regard to the applicant’s criminal history which included dishonesty offences, relying on s 14(1)(c) of the NDIS Check Act.

31. When conducting a risk assessment , the primary question is whether a person poses a risk of harm to persons with a disability. Section 13 of the NDIS Check Act provides as follows:

13 NATURE OF RISK ASSESSMENT

(1) A

"risk assessment" is an assessment and determination by the Screening Agency as to whether a person poses a risk of harm to persons with disability.

(2) A reference in this Act to a risk of harm to persons with disability is to be interpreted in accordance with the following principles:

(a) the risk of harm must be a real and appreciable risk of harm,

(b) the risk of harm does not need to be likely or significant,

(c) the risk of harm need not arise from recent events.

(3) In this Act,

"harm" includes but is not limited to the following:

(a) personal harm, which means any detrimental effect on a person's physical, psychological, emotional or financial well-being,

(b) sexual harm, which means non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm).

32. Clause 5 of Sch 1 to the NDIS Check Act, provides the following further guidance:

5 REFERENCES TO RISK OF HARM TO PERSONS WITH DISABILITY

A reference in this Act to a person posing a risk of harm to persons with disability is a reference to a person posing such a risk if the person is engaged to do NDIS work.

33. The factors to be considered by the Screening Agency when undertaking a risk assessment to determine whether a person poses a risk of harm to persons with a disability are set out in s 16 of the NDIS Check Act which provides:

16 MATTERS TO BE CONSIDERED IN RISK ASSESSMENT

The Screening Agency is to consider the following for the purposes of a risk assessment:

(a) the nature, gravity and circumstances of any offence, misconduct or other event that resulted in or contributed to the requirement for a risk assessment in relation to the person (a

"relevant event" ), and how it is relevant to NDIS work,

(b) the length of time that has passed since a relevant event occurred,

(c) the vulnerability of any victim of a relevant event at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event,

(d) the person's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour,

(e) the person's conduct since a relevant event,

(f) all other circumstances in respect of the person's criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work,

(g) such other matters as the Screening Agency considers appropriate.

The Tribunal’s jurisdiction

34. We have had the benefit of a decision published by the Tribunal in FPV v Children’s Guardian [2023] NSWCATAD 59. The Tribunal made the following observations concerning its jurisdiction in reviewing applications such as the one before us at [17] – [22], which we adopt:

In our view, consistent with the observation at [16] above, the jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature. This has been set out by various decisions in Courts of record and analogous with matters under the WWCCC Act, as set out by the Court when considering such a matter in: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal. In that regard, the objects of the NDIS Check Act and the paramount consideration are set out at s 3 of that Act.

3 Health, safety and well-being of people with disability to be paramount consideration

The health, safety and well-being of people with disability and, in particular, protecting them from abuse, violence, neglect and exploitation is the paramount consideration in the operation of this Act.

In our view the purpose of the NDIS Check Act is to achieve the purpose stated in s 3 of that Act. The Tribunal’s role in reviewing a decision to refuse a clearance is to ensure that the paramount consideration is met when assessing and making findings on risk arising from a consideration of all of the available evidence and material before the Tribunal.

In the case of FBC v Children’s Guardian [2021] NSWCATAD 286, consistent with our findings at [14] above, the Tribunal considered the setting of administrative review within a protective regime where a paramount consideration was in place in the legislation. At [72] – [75] of FBC the Tribunal observed:

72 The primary issue before the Tribunal in this application is what the correct and preferable decision is, having regard to the material before the Tribunal, in relation to the refusal to grant a Working with Children Check Clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

73 There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

74 There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

75 The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2002] QSC 396; [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association [1985] FCA 232; (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

In assessing the correct and preferable decision the Tribunal effectively stands in the shoes of the original decision maker. Whilst, unlike the WWCCC Act, there is no statutorily specified criteria for the Tribunal to consider (such as s 30 of the WWCCC Act), in our view consistent with the above findings we should embark on a task that requires us to consider the s 16 criteria from the NDIS Check Act, as the Children’s Guardian was required to do.

An application pursuant to s 41 of the NDIS Check Act is clearly on the analysis above a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

Consistent with the findings in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, neither party bears the onus of proof in administrative review proceedings.

35. The Tribunal’s task is to undertake an administrative review of decision to refuse the Clearance. It derives jurisdiction to undertake such a review pursuant to s 41 of the NDIS Check Act, which provides:

41 ADMINISTRATIVE REVIEW OF DECISIONS

(1) A person who is aggrieved by any of the following decisions ( "reviewable decisions") may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision:

(a) a decision to refuse to grant an application for a clearance (including a decision to terminate an application for a clearance),

(b) a decision to impose an interim bar on an applicant for a clearance,

(c) a decision to suspend a clearance,

(d) a decision to cancel a clearance (other than cancellation at the request of the holder of the clearance).

Note :Administrative review of a decision cannot be applied for until an internal review of the decision has been applied for and finalised. See sections 53 and 55 of the Administrative Decisions Review Act 1997 .

(2) An application for administrative review (including internal review) under the Administrative Decisions Review Act 1997 cannot be made to the Tribunal in respect of a decision to impose an interim bar or to suspend a clearance until the interim bar or suspension has been in force for at least 6 months.

(3) An applicant for administrative review must fully disclose to the Tribunal any matters relevant to the application.

(4) The Screening Agency may on its own motion review a reviewable decision at any time and without any application by an aggrieved person for administrative review.

36. The Tribunal’s role when undertaking an administrative review of a decision is to make the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63(1). Upon determining an application for review we may make orders that include an order to affirm the decision of the Children’s Guardian, or an order to set aside the decision of the Children’s Guardian and in substitution thereof making another decision (in this case an order to grant a Clearance): see ADR Act, s 63(3).

37. The Tribunal in FPV went on further to address the following at [26]-[30], which we also adopt:

Further provisions of the NDIS Check Act

The second reading speech of the NDIS Check Act observed that the Act is a ‘protective and preventative scheme which recognises that the right of NDIS participants to receive safe services must be prioritised even when there could be adverse consequences for a worker’. (Second Reading Speech Legislative Council 24 October 2018).

Section 13 of the NDIS Check Act provides that the risk of harm must be real and appreciable, but does not need to be likely or significant and the risk of harm need not arise from recent events.

We note that the Tribunal has regularly observed in WWCCC Act reviews that meaning of the word 'risk' has previously been considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal (ADT), in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

The application for administrative review

38. The grounds in the substantive application were not particularised. However, the applicant said in his opening statement, and in oral submissions, that he did not believe he was a risk of harm to persons with a disability because he had learnt from his mistakes. He had removed himself from temptation, in that he was no longer working in employment here there was “a lot of cash”. Therefore, he should be granted a Clearance.

39. The issue to be decided by the Tribunal is whether, on the balance of probabilities, the applicant poses a risk of harm to persons with a disability when he is engaged in disability work.

40. The application for administrative review has been filed within time.

The hearing

41. The applicant gave evidence at hearing and was subject to brief cross-examination. Both parties attended the hearing in person. The Children’s Guardian was legally represented. The Tribunal commenced with some preliminary questions to obtain the applicant’s evidence in chief. This was because he was self-represented.

Documentary evidence

The applicant’s written material

42. Application filed 5 September 2022 with annexure - A1

43. Bundle filed 12 January 2023 (12 pages) – A2

Children’s Guardian’s written material

44. The Children’s Guardian filed a bundle of material under s 58 of the ADR Act - R1.

45. The Children’s Guardian relied upon written submissions. Each party made oral submissions at hearing at the conclusion of the evidence.

Overview of the risk assessment

46. The risk assessment decision and the matters canvassed at the hearing primarily concerned the applicant’s offending. The applicant was first convicted of a number of offences relating to dishonesty occurring in 2016 to 2017 at [7] – [9] for which he was sentenced to a term of imprisonment of 15 months to be served by way of an ICO.

47. In 2019, after the expiry of the ICO, the applicant was again convicted of further dishonesty offences at [10] – [13]. He was sentenced to a CCO for 18 months and ordered to repay to his employer the sum of $507.80.

48. The applicant pleaded guilty to each of the recorded offences based on amended agreed facts put before the Court.

49. The background to the offences involved a deliberate manipulation of the applicants employer’s POS system to obtain financial advantage. In the two periods of his offending, the applicant’s conduct amounted to a gross breach of trust between him and his employer. This is not in dispute.

The applicant’s oral evidence

50. The applicant conceded that he has a poor and embarrassing criminal history, of which he is not proud of. He does not dispute the factual matters concerning his offending and agreed that he pleaded guilty to the amended police facts for which he was charged and convicted. However, he did recant from some of those facts which we set out below.

51. The applicants evidence included a history of him growing up in a small community in Fiji. He was sexually abused by his uncle with whom he trusted. He experienced trauma related to that abuse until he 18 years of age. The trauma included his uncle making threats of violence to him if he told his family about the abuse.

52. In explaining his stealing, the applicant said as a child his uncle told him to go into houses in Fiji to steal items from strangers homes. He was about 9 or 10 at that time. Due to this ongoing pattern of behaviour, and at the insistence of his uncle, the applicant believed stealing was “ok”. It was not until he matured that he recognised that stealing was “wrong”.

53. The applicant had engaged a counsellor Jonathan Righetti with whom he consulted until January 2023 on a monthly basis. The counselling involved talking through what he should do “when things come up in my mind to not think about previous trauma in life and also to deal with my finances. He told me to leave hospitality, apart from that he has not touched on fraudulent activity.” He agreed that the counselling mainly focused on the trauma he has experienced due to the physical abuse by his uncle. Any counselling about his convictions and stealing was on the periphery.

54. Unfortunately, due to the applicant’s parlous financial situation, he has not been able to fund any other counselling or professional assistance concerning his fraud and dishonesty behaviours.

55. The Tribunal asked the applicant to explain what caused him to offend in 2016/2017 and then again in 2019. His evidence included that his mind flashed back to stealing in Fiji and what he used to do as a child. He said he had financial difficulties and would fund his lifestyle from the money he stole from his employers. His offending in 2019, followed after he stopped with counselling due to financial reasons. Without that support, he lapsed back into his “old lifestyle”. This part of the applicant’s evidence is of particular concern which we have placed significant weight.

56. The applicant said he left employment in hospitality to avoid the temptation of “working with cash” and “I made a decision to come out of hospitality where cash was involved.” He believes there is a tighter control and record keeping required of disability support workers when they deal with participants money, which he sees as a safeguard. Therefore, the risk of him reoffending is low.

57. Of concern, when asked by the Tribunal whether he considered his previous offending posed any risk of harm to persons with a disability, the applicant said “I do not think there is any risk because I have already taken people out for lunch and purchases even with my previous offending. I am not a risk as I have already displayed. I have their card and wallet. I provide a receipt and fill out a form. I do not think I can relapse in disability.”

58. In cross-examination the applicant said he would not be tempted to steal money if working as a disability support worker because “In disability it is a different arrangement and process, that goes through a few people. In hospitality there is easy access to money. I am not dealing with a lot of money in disability.” In circumstances where the applicant admits that he has an uncontrolled temptation to steal money where there is a lot of cash, his lack of insight into a potential risk of harm to persons with a disability, where undoubtably he may handle cash demonstrates in our minds a lack of insight.

59. The applicant agreed that one of the reasons he committed the subject offences was because of being under financial stress. He denied that he continues to experience financial stress. He said he has changed his lifestyle and “I do not overspend anymore”.

60. The applicant was asked if he would accept that it is important to receive treatment to deal with the triggers of offending. He said yes, but due to limited financial means he could not afford professional assistance. We were left with the impression that his triggers and the potential for reoffending remain untreated.

61. The cross-examination explored some of the circumstances relating to the applicant’s offending. His evidence was unclear at times and we find he attempted to minimise some of his offending. He attempted to excuse his offending by saying “the system went down and he had to manually place order with the kitchen.” He denied that part of his fraud included voiding sale transactions, which evidence was inconsistent with the agreed facts tendered before the Local Court in relation to the 2016 – 2017 offending.

62. Overall, we accept the applicant as generally a reliable witness. However, his credibility is affected by his attempt to minimise or excuse his offending which demonstrates a lack of remorse and insight. It also reflects poorly on his candour.

Our consideration

63. In conducting a review of the decision to refuse the applicant a Clearance, we are to consider the matters set out in s 16 of the NDIS Check Act.

(a) the nature, gravity and circumstances of any offence, misconduct or other event that resulted in or contributed to the requirement for a risk assessment in relation to the person (a relevant event), and how it is relevant to NDIS work,

64. The offences are objectively serious and total close to $67,000.00 in illegally obtained funds being stolen and expended by the applicant. It is not in dispute that the applicant devised and executed a system of fraudulently obtaining a financial advantage against his employers. Despite the first conviction and sentence which included a period of incarceration, notwithstanding that period being served by way of an ICO, the applicant continued to offend. His offending was aggravated by a breach of trust in the employer/employee relationship.

65. Even considering the applicant’s sad history of trauma and abuse as a child, he has not obtained reasonable and satisfactory professional assistance, mainly because of minimal financial resources to do so.

66. The matters are relevant to NDIS work. To become a participant in the NDIS participants have been diagnosed with a disability. They are often vulnerable to exploitation and abuse because of their disability. The applicants conduct involved a systemic and prolonged breach of trust and the intentional use of his employer’s funds.

(b) the length of time that has passed since a relevant event occurred,

67. Despite the applicant’s offending last occurring in 2019, we find it is recent. The CCO was made on 18 March 2021 for a period of 18 months, expiring in September 2022. Given that the applicant re-offended with five months of the expiry of the ICO relating to the 2016/2017 offences, we have no confidence sufficient time has passed to satisfy us that the applicant has been rehabilitated and is less likely to reoffend.

68. Notwithstanding the applicant’s evidence that he will no longer be tempted to steal money because he is not working in hospitality, we make a finding below that the applicant’s evidence is self-serving and while he truly believes the same, it is not credible.

(c) the vulnerability of any victim of a relevant event at the time of the event and the person’s relationship to the victim or position of authority over the victim at the time of the event,

69. The victim in relation to both periods of offending were the applicants employers. He was a manager charged with the responsibility of not only managing the restaurants, but also, trusted to handle and keep safe the employer’s money.

70. The unsupervised discretion given to the applicant and the control he had over the financial takings of the restaurant, meant that he was able to manipulate the employers’ systems and steal money which was only detected by chance. If the applicant had not been detected there is a good chance he may have continued to perpetrate the fraud.

71. We are satisfied that the employers are relevantly victims. This is because they were vulnerable to the applicant’s deception due to the nature of the employment relationship. The nature of the relationship is akin to the position of trust a NDIS worker would have when providing support to persons with a disability in carrying out NDIS work.

(d) the person’s criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour

72. The only offending recorded against the applicant relates to the two subject convictions. The offending in each matter concerned a deliberate and prolonged course of conduct of fraud and dishonesty, which financially benefited the applicant. Of particular relevance is the applicants history of reoffending soon after the expiry of the ICO. He has so far demonstrated a pattern of overly concerning behaviour.

(e) the person’s conduct since a relevant event,

(f) all other circumstances in respect of the person’s criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work,

73. The applicant has not been detected for any criminal matter since 2019. He has taken positive steps to address his conduct which includes consulting a counsellor, leaving work within the hospitality sector, and working as a disability support worker since October 2020 until the interim bar was put in place, without reported incident.

73. However, by the applicant’s own admission he removed himself from the hospitality sector to avoid any temptation of reoffending. While this is indeed admirable and demonstrates some insight into his limitations, the applicant has not in our minds obtained a satisfactory level of professional assistance to develop and implement strategies to combat the urges which led to the two convictions.

74. In our view the nature of the applicant’s offending and the nature of his evidence before the Tribunal at hearing, establish significant concerns as to risk regarding persons with disabilities.

75. Parts of his evidence was somewhat self-serving as he tailored and gave inconsistent answers about admissions he made when he pleaded guilty to the 2019 offence. He later sought to recant or retract his prior admissions as he was seeking to respond to the Tribunal’s preliminary (adverse) view of his evidence.

76. In our view the applicant’s answers on these points (notwithstanding the lack of legal representation) were not credible.

(g) such other matters as the Screening Agency considers appropriate.

78. In our view there has been a pattern of concerning conduct. The applicant has not sought appropriate treatment for his offending, which, we recognise is partly because of a lack of financial resources.

79. Insufficient time has passed from the expiry of the CCO (September 2022) until the date of the hearing which would comfortably satisfy the Tribunal that the applicant is rehabilitated. As identified in FPV at [104], which we adopt: “In assessing the evidence as to risk, the Tribunal is not required to find that there is a likelihood of the same conduct / misconduct. All that is required is the presence of risk of a sufficient level, not necessarily likely or significant risk of harm but the presence of a risk of harm.”

80. Due to the lack of evidence of reasonable professional support and the applicant’s concession that he has temptations and flashback to his childhood concerning stealing, we find that the applicant has not overcome the requirements of the NDIS Check Act to be granted a clearance. This is because there is a sufficient level of a presence of risk of harm to persons with a disability if the applicant is granted a Clearance.

81. In undertaking our own assessment of the applicant (as required for an administrative review), we find that the applicant poses a risk of harm to persons with disability.

82. Because of this finding, the correct and preferable decision is to affirm the decision of the Children’s Guardian.

Orders

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 April 2023