FPV v Children's Guardian

[2023] NSWCATAD 59

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FPV v Children’s Guardian [2023] NSWCATAD 59

Hearing dates:

22 February 2023

Date of orders:

17 March 2023

Decision date:

17 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member (Legal)
Emeritus Professor P J Foreman AM, General Member (Community)

Decision:

(1) The order made on 1 December 2022, under s64(1)(a) of the Civil and Administrative Tribunal Act 2013, in respect of the publication or broadcast of the name of the applicant, is confirmed/continued.

(2) The decision of the respondent on Internal Review dated 31 October 2022 to issue FPV with an exclusion and refuse to grant FPV a clearance 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 – credibility of witness evidence – personal harm – detrimental effect on person – whether conduct poses a risk of personal harm – non publication order – whether open justice served – whether risk to applicant

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 (repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

National Disability Insurance Scheme (Worker Checks) Act 2018

Crimes (Sentencing Procedure) Act 1999

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

National Disability Insurance Scheme Act 2013 (Cth)

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

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

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FPV (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00354623

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify that person.

REASONS FOR decision

Introduction

1. This applicant seeks administrative review of a decision by the respondent refusing to grant him a clearance under the National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW), the ‘NDIS Check Act’. The clearance was refused because the respondent (the Office of the Children’s Guardian) was satisfied that the applicant posed a risk of harm to persons with a disability.

2. The applicant is referred to as ‘FPV’ in these proceedings. FPV is the applicant's pseudonym used in these proceedings in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant. In order to prevent constructive identification of the applicant, some aspects of his background (including cultural matters and geographic locations where matters raised in these proceedings are relevant) are referred to in general rather than specific terms. As outlined below, the Children’s Guardian sought that the s 64 order be lifted by the Tribunal in the interests of open and transparent justice. We address that matter at the end of these reasons.

3. FPV was refused a clearance to work within the NDIS by the Children’s Guardian due to his recent history of dishonesty offences. Based on all of the available evidence and having regard to the statutory provisions which we outline below, and in particular FPV’s evidence at hearing, we find that FPV continues to pose a risk of harm to persons with a disability and as a result the clearance will be refused and the Children’s Guardian’s decision affirmed.

Procedural Background.

4. FPV applied for a NDIS worker clearance 24 March 2021. FPV has worked in the disability sector for some years and was required with the passage of the National Disability Insurance Scheme Act 2013 (Cth) and the more recent settling and publishing of the intergovernmental agreement for the NDIS, to apply for a clearance. The Children’s Guardian is the designated ‘screening agency’ for the purpose of the ‘NDIS Check Act’ whereby the Minister for Community Services in NSW in Government Gazette No 58 dated 27 March 2020 appointed the Children’s Guardian as the designated agency.

5. When an applicant applies for a NDIS worker check clearance in NSW, the Children’s Guardian is required to grant the clearance unless the application must be refused under s 8 of the NDIS Check Act. Section 8 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.

6. Section 14 of the NDIS Check Act provides the following in respect of risk assessments:

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.

7. The Children’s Guardian relied on s 14 (1) (c) of the NDIS Check Act in determining that due to FPV’s recent serious offending, it was appropriate to conduct a risk assessment. Section 16 sets out the criteria or matters that the Children’s Guardian is required to consider if they conduct a risk assessment. The section 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.

8. In respect of the references to ‘risk of harm’ the NDIS Check Act provides additional statutory guidance in cl 5 of Schedule 1. The provision provides:

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.

9. The roles applicable to working screening checks are set out in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (Cth) ‘the NDIS Rules’. At Clause 5 of the NDIS Rules a risk assessed role is 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.

10. The NDIS Rules go on at cl 6 to define matters pertaining to the term ‘more than incidental contact’. Division 4 of the NDIS Rules deals with 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;….

11. Under s 10 of the NDIS Check Act the Children’s Guardian is required to give notice to any applicant that it proposes to refuse the grant of a clearance or to impose an interim bar under s 9 if 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. The sections 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.

12. In the current matter, the Children’s Guardian, after going through the steps outlined at s 9 and 10 of the NDIS Check Act and previously addressing sections 8, 14 and 16, determined to issue FPV with an exclusion being the refusal to grant a clearance under s 11 (1) of the NDIS Check Act. Section 11 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.

13. Reasons for decision in accordance with s 11 (2) were provided in a1.5 page decision provided on 19 August 2022. The decision focused on FPV’s criminal conduct between December 2018 and January 2019 where he engaged in offences relating to the fraudulently obtaining of funds and goods. The Children’s Guardian noted FPV’s ‘propensity to engage in significant criminal activity for personal gain’. They further noted that: ‘Any repetition of similar behaviour in an NDIS role could result in significant financial harm to people with a disability and the NDIS scheme’. Finally the Children’s Guardian considered that there had been an insufficient passage of time since the offending such that they could be satisfied that any risks associated with that offending had been mitigated.

14. FPV applied for an Internal Review as provided by s 53 of the Administrative Decisions Review Act 1997 (the ADR Act) on 19 August 2022. On 31 October 2022 the Children’s Guardian affirmed the original decision. The statement of reasons was more detailed on review and set out the evidence and findings for each of the criteria under s 16 of the NDIS Check Act.

15. On 24 November 2022 FPV filed an administrative review with the Tribunal. That application as filed pursuant to s 41 of the NDIS Check Act which requires that an internal review be lodged and completed as a precondition to any administrative review before the Tribunal. The section provides:

Part 6 Review of decisions

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.

16. The Tribunal’s role on administrative review is to make the correct and preferable decision. These review proceedings are somewhat analogous to matters under s 27 of the Child Protection (Working with Children) Act 2012, (‘the WWCCC Act’) in that they constitute an administrative review of a decision following a risk assessment process.

Jurisdiction of the Tribunal

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

20. 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.

21. It is well established that in considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

22. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

25. As noted above, an application under s 41 of the NDIS Check Act is an administrative review. The Tribunal’s function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law.

Further provisions of the NDIS Check Act

26. 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).

27. 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.

28. 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". ...'

29. 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.

30. 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

31. The grounds of the substantive application were:

The decision as not authorised by the Act or was an improper exercise of the Act.

The decision was induced and an error of law occurred.

The decision maker took into account irrelevant considerations, disregarding relevant consideration. [sic]

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

33. There is no dispute that the application to the Tribunal has been filed within time.

The hearing

34. The matter was heard over one full day. FPV gave evidence at hearing and was subject to lengthy cross-examination. The Tribunal also asked a number of questions of FPV in evidence, utilising its powers under s 38 of the NCAT Act. Both parties attended the hearing in person with the Children’s Guardian being legally represented. As FPV was not legally represented the Tribunal commenced with some preliminary questions to obtain FPV’s evidence in chief prior to a lengthy cross-examination by the Children’s Guardian representative. A detailed explanation of the procedure of the Tribunal including the difference between giving evidence and making submissions was also provided to FPV.

35. In opening submissions the Children’s Guardian submitted that they had conducted a discretionary risk assessment of FPV as provided for by the NDIS Check Act. The Guardian also submitted that Clearances are in this instance provided by NSW but are obtained for Commonwealth purposes as the NDIS is a Commonwealth based scheme which operates at a national level.

Written Evidence

FPV’s written material

36. FPV filed a number of written items in support of his application.

1. Exhibit ‘A 1’: statement of FPV and medical report dated 15 November 2022.

2. Exhibit ‘A-2’ Statutory Declaration of FPV’s medical practitioner re: attendance at ‘psychology therapy’ dated 23 January 2023.

3. Exhibit ‘A-3’ Statement of FPV filed 24 November 2022 rebutting Children’s Guardian assessments and attaching character references and evince of academic studies and employment opportunities offered.

Children’s Guardian’s written material

37. The respondent filed substantial material under both s 58 of the ADR Act and material obtained since the commencement of the proceedings under summons.

1. Exhibit ‘R-1’ Respondent’s Section 58 ADR Act -160 pages.

2. Exhibit ‘R-2’ documents compiled from production of material under summons. (27 pages)

38. The Children’s Guardian also filed and served detailed written submissions and made oral submissions at hearing at the conclusion of the evidence.

39. The central basis of the risk assessment decision and the matters canvassed at the hearing concerned FPV’s offending. FPV was initially convicted of a number of offences relating to dishonesty and on appeal to the District Court was afforded the benefit of a Conditional Release Order, given a penalty in excess of $10,000. 00 and a direction that no conviction be recorded.

40. The initial offences commenced in September 2019 were as follows:

• Five counts of dishonesty / obtain financial advantage by deception,

• Seven counts of dishonestly obtain financial advantage by deception,

• Two counts of recklessly dealing with the proceeds of crime,

• Three counts of possession of identity information to commit an indictable offence.

41. In November 2019 further charges were laid:

• Nine counts of dishonestly obtain financial advantage by deception,

• One count of dishonestly obtain property by deception,

• One count of recklessly dealing with the proceeds of crime.

42. In April 2020 further charges were laid:

• One count of dishonestly obtain financial advantage by deception,

• One count of recklessly deal with proceeds of crime,

• One count of dishonestly obtain property by deception.

43. FPV eventually pleaded guilty to a reduced number of offences based on amended / agreed facts pled before the Court. He was sentenced in March 2021 to an 18 month Community Correction Order. As noted above at [39] on appeal on sentence a Conditional Release Order and non conviction direction were entered.

44. The background to the offences committed by FPV as described by police as an organised fraud operation which involved the procurement of $188,821.58 and was referred to as a ‘Business Email Compromise’. The Children’s Guardian summarised the process of the fraud as an operation ‘which involved stealing of money by altering the bank details on issued invoices so that money is fraudulently placed into a bank account nominated by the fraud operation rather than into the genuine bank account of the business issuing the invoices’. The Children’s Guardian conceded in submission that FPV’s involvement was at a different level than those who had set up the organised fraud operation, his role being to obtain benefit from the operation. This characterisation is reflected in the nature of the initial charges and the charges that ultimately proceeded before the Court.

Applicant’s evidence at hearing

45. In evidence in chief, FPV referred to his current employment being a Home Care Worker in the area of aged care. FPV said that in respect of the offences, the other protagonists were his friends at the tine or housemates and he turned a blind eye to what was going on.

46. He described a situation whereby he said that he was offered payment for certain goods and services from his housemates or their friends (in particular a Mr ‘H’) whereby he obtained Uber rides, the purchase of high end footwear (sneakers) as well as other items. In addition airline tickets were purchased to enable FPV to travel overseas on personal and family business, allegedly from an account linked to Mr ‘H’ and with the permission of Mr ‘H’.

47. The initial Police raid of FPV’s premises occurred whilst FPV was overseas where they located some bank / credit cards in the names of other persons amongst his possessions. FPV denied any knowledge of these cards or why they were in his room when the Police raided his residence (cards in the names of ‘L.S.’ and ‘E.P.’) A card in the name of Mr ‘H’ was also located.

48. During this evidence, which touched on the apparent generosity of Mr ‘H’, the Tribunal inquired as to what assistance Mr ‘H’ had given in exonerating FPV and vouching for the position that he gifted the funds to FPV and also purchased gifts for him. FPV said that Mr ‘H’ did not go to Court because if he did ‘he would have perjured himself’. FPV maintained that he was remorseful for his actions, but also gave evidence that he was innocent of any wrongdoing. This conflict was also apparent from FPV’s written evidence.

49. In cross-examination FPV was taken to various pages of ‘R-1’ which listed the charges before the Local Court and the Police Facts. On page 19 of the s - 58 documents the Facts recorded a purchase made at the Westfield Shopping Centre at Bondi Junction where the client information was given as an address in St Mary’s. It was put to FPV that the exact full address provided to the store for the high end purchase was identical to the address of one of FPV’s employers who had provided a reference for him. This position was verified by reference to other material before the Tribunal in evidence. At page104 of the s – 58 documents was the reference provided to the Magistrate at Burwood Court by ‘M.E.’, whose address had been provided during the fraudulent transaction whereby perfume and high end luggage had been purchased at the Westfield store.

50. It was put to FPV that he had placed the details (the address of his employer) in the system when requested to provide an address at purchase. FPV denied this was the case.

51. FPV was asked whether he knew Mr “H’. FPV said that Mr ‘H’ was a friend of his housemates. When asked how often he saw Mr ‘H’, FPV said that he saw him very frequently for about six months and he was a very frequent visitor to the residence.

52. FPV said that in respect of a trip to Dubai for a wedding of a friend, Mr “H’ gave him $1,500.00 for airfares. He said that Mr ‘H’ had helped him in the past when he had a flat tyre and he drove him round when his transport was not available. FPV said that he needed a new pair of sneakers to wear on his trip overseas, and that Mr ‘H’ helped him out. These sneakers cost $210.00 and were part of the financial assistance to travel to Dubai.

53. FPV was taken to the first suite of offences which related to Uber trips, expensive sneakers and perfume and high end luggage. FPV said that a person called ‘J’ purchased those items but FPV was with him when the purchases were made.

54. FPV outlined that his own wedding was in March 2019. As a gift for this wedding, ‘J’ purchased two gifts (being pairs of high end sneakers) as a present for FPV’s wedding, one pair purchased for $1,065.00 and the second pair were $935.00 being $2,000.00 total footwear gift purchases.

55. The second set of offences related to the airline ticket and the $210.00 sneaker purchase. The third set of offences concerned the use of a card to buy shoes at Footlocker. In respect of the third set of offences FPV said that he did not make the purchase, the purchase being made by Mr ‘H’ himself.

56. FPV was questioned about the credit / banking cards and ‘velocity’ cards which were left at his residence while he was overseas. These cards were in the names of two women, Ms ‘S’ and Ms ‘P’. FPV did not hand these cards in to Police or the Bank and said that he spoke to ‘J’ in May 2019 and he asked FPV to ‘hold onto them’ for him. FPV told the Tribunal that after he carried out the purchases with the cards and he travelled to the United States, he became ‘suspicious about the cards.

57. FPV was taken to the psychologist report prepared for his sentencing before the Court. In the report dated 10 March 2021, which is contained within Exhibit ‘R-1’, the author records that: ‘(FPV) confirmed he has entered a plea of guilty in relation to all charges. He concurred with the events outlined in the Agreed Facts. (FPV) confirmed this is his first criminal offence.’ FPV was questioned as to why (noting his evidence at hearing) he agreed with the Police Facts, but now states that he did not commit the offences. FPV was unable to properly articulate his position on this question. Like many of his answers, they were somewhat contradictory. The major issue being that on the one hand he was remorseful, ashamed and extremely apologetic for his actions. and at the same time denied any criminality or culpability in the circumstances of the offences. Overarching these contradictory positions was the fact that FPV, with the benefit of legal representation, pleaded guilty to the charges and conceded the agreed facts.

58. The Tribunal returned to this conflict in the evidence a number of times throughout the hearing, and attempted to give FPV the opportunity to explain what he meant or be clearer about his position.

59. In response to further questioning about taking responsibility for his actions FPV said that he was only actually taking responsibility for ‘trusting his housemates’.

60. FPV was questioned about another card which belonged to a Mr ‘M’. FPV said that he did not know this and believed that the card belonged to ‘J’ his housemate.

61. FPV told the Tribunal in his evidence that he and ‘J’ went out shopping but that ‘J’ did not give FPV any credit cards.

62. The Psychology report referred to at [57] was used in sentencing of FPV. The Children’s Guardian put it to FPV that the report was not accurate and therefore the Court did not have accurate material before it in order to sentence FPV. The lack of accuracy was only down to FPV.

63. When asked about the pleas of guilty and the agreed facts, bearing in mind his evidence to the Tribunal, FPV said that he received legal advice to ‘settle the matters’.

64. In respect of his living circumstances at the time of the offending behaviours, FPV said that he was sharing with a Mr ‘A’ and that he was paying $250.00 each week in rent. He said that some payments were made by his parents especially while he was studying. FPV said that his current support / carer work was under the My Aged Care system.

65. FPV told the Tribunal that at present he is still studying and attending University. He said that he graduates in June 2023.

66. FPV maintained in his later evidence that he never had the card in his possession (concerning the purchase of the first two pairs of sneakers). However, his earlier evidence was that these sneakers were purchased on the card of a friend of his housemates as a wedding gift for FPV (the footwear valued at $1,065.00 and $935.00 retail) and that he made the purchases. These transactions were matters that FPV had pleaded guilty to before the Court.

67. FPV was taken through a chronology of the purchases and gave evidence as to his involvement in each (notwithstanding matters put to the Court as a result of the pleas).

1. 10/1/2019 Uber $86.69 FPV and ‘J’. ‘J’ had put a credit card into his phone in someone else’s name and FPV said he was unaware of this at the time.

2. Westfield Louis Vuitton $1065.00 footwear for FPV (agreed present)

3. Fendi store $990.00 footwear (agreed present)

4. Uber trip back to Sydney (FPV present)

5. Uber trip to Bass Hill (FPV stated not present)

6. 11/1/2019 Uber trip Bankstown to Villawood (FPV stated not present)

7. Uber trip Villawood to Liverpool (FPV stated not present)

8. Uber trip Liverpool to Villawood (FPV stated not present)

68. In respect of the Louis Vuitton purchases, FPV reiterated that he did not make the purchases and was not in the store when the transactions occurred.

69. In respect of a pair of Gucci ‘sliders’ (footwear) retailing at $450.00 FPV was adamant that he did not purchase them and was not in the store when they were purchased. However FPV admitted that ‘J’ did give the sliders to FPV as a gift, and this was explained as necessary because they had no suitable footwear to wear indoors.

70. FPV told the Tribunal that when he moved house was when he found the credit cards / debit cards. On 13/3/2019 FPV used Mr ‘H’s credit card to book his flight and the only caveat given by Mr ‘H;’ was ‘not to spend more than five thousand dollars on the card.’ On 13/3/2019 FPV also bought the $210.00 sneakers as he had no suitable footwear to wear on the aircraft.

71. FPV gave evidence that some of the Uber trips were actually travelled by his wife and booked with her as the passenger. When pressed, FPV outlined to the Tribunal the nature and timing of his overseas travel during this period. In April 2018 FPV travelled to Dubai to attend a friend’s wedding. Mr ‘H’s card funded much of this trip and accommodation was provided by a friend.

72. In July 2019 FPV travelled to the United States and the United Kingdom to catch up with family and a friend. Whilst he was overseas, the Police executed a warrant and searched his Sydney residence in August 2019. FPV received communication from his wife and others that police wanted to speak with him. When FPV returned to Australia in November 2019, he went to a Police station and presented for questioning.

73. FPV answered the Tribunal’s question about his marriage, overseas travel, living arrangements and the criminal matters. FPV confirmed that the combined effect of the matters had ended his marriage. FPV’s evidence at hearing was that he was now separated from his wife.

Children’s Guardian’s submissions

74. The Children’s Guardian filed and served written submissions and made oral submissions at the hearing. The Children’s Guardian submitted that the Tribunal is conducting a merits review of the Internal Review decision to refuse FPV’s NDIS clearance.

75. The Children’s Guardian submitted that what the Tribunal should examine was (a) that there had been this offending, and (b) there was a pattern of conduct. It was submitted that there does not need to be a likelihood of the same type of misconduct, but that the risk of misconduct is there. Due to the quality of FPV’s evidence, the contradictions in his evidence, and his inconsistent answers to some of the matters put to FPV in cross examination, the Tribunal cannot be satisfied as to risk.

74. The Children’s Guardian also submitted that in respect of any period of time since the offending occurred, the Tribunal needs to be mindful that FPV was still under the conditions of a Bond imposed by the Court, and as he was under that period of supervision, the issue of risk remained live as the ‘sentence’ had not as yet expired. FPV was, however, no longer under direct supervision of Probation and Parole.

75. The Children’s Guardian referred to the objects under the NDIS Check Act and that section 3 (a) describes personal harm as meaning any detrimental effect on a person’s physical, psychological, emotional or financial well-being.

76. The Children’s Guardian submitted that in respect of FPV’s evidence before the Tribunal, effectively denying direct involvement in the allegations, the Tribunal should note that he pleaded guilty before the District Court, and nothing was noted by the Court or raised by FPV concerning a lesser or lower level of involvement for which he was not liable.

77. The Children’s Guardian submitted that, contrary to FPV’s assertions, he did not take responsibility for his action and conduct and that his evidence at hearing increases their concerns about his level of risk. It was submitted that FPV’s evidence at hearing was tailored to answer questions the way that FPV perceived that the Tribunal would want to hear the answers and view his evidence favourably. This, it was submitted, in itself raises further concerns.

78. The Children’s Guardian submitted that FPV had found the further cards in the names of the two women in February 2019. FPV did not raise any concerns with ‘J’ until May 2019 some months later. This only arose when FPV said that he started to have concerns about ‘J’ and then all of the matters involving cards and discretionary purchases.

79. In addition the plea of guilty came late in that FPV was first questioned about the matters in November 2019 and charged, but the guilty plea arose in January 2021.

80. The Children’s Guardian submitted that FPV’s evidence at hearing that he ‘did not engage in any of the offending conduct’ would cause the Tribunal to have significant concern about granting a clearance, especially as a clearance is unconditional.

81. In respect of the evidence that FPV’s engaging in counselling would mitigate any risk, the Children’s Guardian submitted that FPV’s counselling was between August and November 2022 and had effectively ceased as there were no ongoing appointments.

FPV’s submissions

84. In oral submissions at the conclusion of the evidence, FPV denied any suggestion that his behaviour illustrated a propensity to engage in fraudulent activity. He submitted that there was nothing adverse before the Tribunal from an employer and no evidence that he posed a risk.

85. FPV submitted that he needed the clearance in order to complete his placement at the end of June when the coursework component was completed in respect of disability services.

Submissions on s 64 order

86. In respect of the Children’s Guardian submission that the s 64 (NCAT Act) order should be lifted, FPV submitted that he did not want his name listed on the decision and wanted to retain the pseudonym FPV.

87. FPV said that he would easily be targeted and identified in his community (Central African heritage) and that the others who were really involved in any criminal enterprise believed that he had given evidence against them to the Police and had received leniency as a result. FPV said that he had a real and genuine fear for his safety if this matter was placed in the public domain.

88. The Children’s Guardian submitted that the basis for an order under s 64 was very limited. No vulnerable people were referred to in the evidence before the Tribunal (such as persons with a disability or children) and that there was no particular public interest reason for distinguishing FPV’s case as one which should be afforded a non publication type order.

Consideration

89. As noted above at [20], we have decided that to properly consider the ultimate question in determining whether to grant a clearance, the Tribunal would be well guided by the statutory approach that the Parliament has set out in the legislation. In this regard we will address the s 16 of the NDIS Check Act criteria.

Section 16 considerations

(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,

90. The offences are objectively serious and total close to $10,000.00 in illegally obtained funds being expended by FPV. FPV was in possession of fraudulently obtained cards and expended funds on a number of occasions (despite his denials to the Tribunal).

91. Despite earlier denials and assertions of ignorance, FPV conceded to his psychologist that there was suspicion around what was occurring. Irrespective of this he did nothing.

92. The matters are relevant to NDIS work as participants are vulnerable to exploitation and abuse due to their disabilities. The conduct involved the intentional use of other people’s cards and funds.

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

93. FPV’s offending is recent and he is still under the terms of his sentence. For reasons which we elaborate below, we are not satisfied that any aspect of these matters have been ameliorated due to the passage of time or otherwise. We make a finding below that FPV’s evidence is self serving and 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,

94. There is no information concerning the background or lifestyles of the victims to the fraud. However, it seems likely that there would have been a financial impact because (a) legitimate invoices were unpaid and in abeyance which was a charge to the victims, and (b) they lost funds in the scam. It seems likely that they would have been out of pocket and possibly impacted by identity theft issues arising from the email fraud scam. The matters before the Court did not point to any relationship between FPV and the victims.

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

95. Whilst FPV does not have a criminal record in Australia due to the benefit of the non conviction order under s 10 of the Crimes (Sentencing Procedure) Act 1999, his criminal history for the purpose of NDIS checks is significant since his relatively short time in Australia. The respondent, in our view, characterised the matters in their review as suggesting a proclivity to engage in dishonest and fraudulent behaviour for personal gratification.

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

96. FPV was absent overseas for some months following his offending and prior to his charging, thus limiting his ability to offend further. Since 2019, he has been facing Court and since sentencing in early 2021 he has been under a bond.

97. FPV reported attendance at Church and his documented counselling during 2021 and 2022. Whilst they might have reduced his risk of reoffending, we note that during the hearing FPV tailored his evidence, which we touch on below.

(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,

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

99. Very little of his evidence was, in our view, candid. His evidence was somewhat self serving as he tailored and amended his answers from previously given answers when his earlier admissions were put to him later in his evidence. It appeared that FPV admitted the offences on oath to which he pleaded guilty and 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.

100. FPV was pressed by the Tribunal a number of times to clarify his answers and, in particular, to address what it was that he apologising for about his conduct and showing remorse, if his most recent evidence at hearing was that he had not committed any offences.

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

102. A telling point early in his cross examination concerned denying any knowledge of a specific transaction other than being in or near the store when an acquaintance performed the transaction. However, as set out above at [49], customer / client registration address details given to a luxury goods retail store were that of FPV’s own previous employer (as noted from a reference tendered by him before the Tribunal).

103. This evidence casts serious doubts on the credibility of most of FPV’s evidence about the transactions, as there was no viable explanation for such a remote ‘coincidence’ unless (as we suspect) FPV provided that address during the actual transaction.

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

104. We consider this provision during our utilisation of the assessment as applying to the Tribunal. In our view there has been a pattern of conduct. We are also of the view that 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.

105. Due to the poor quality of FPV’s evidence at hearing, and the fact that we find that much of his evidence before the Tribunal was not credible, we are unable to find that FPV has overcome the requirements of the NDIS Check Act to be granted a clearance.

106. As a result of our own assessment of FPV (as required for an administrative review following and Internal Review), we have determined that the applicant (FPV) poses a risk of harm to persons with disability.

107. Because of this finding, the application will be dismissed and the correct and preferable decision is to affirm the decision of the Children’s Guardian as designated screening agency.

Confidentiality consideration

108. As noted above at [86] – [88] the parties hold differing views about the confidentiality order being maintained by the Tribunal.

109. We do not repeat the submissions outlined above. During the later part of the hearing, the Tribunal noted the approach of the Court of Appeal in the case of Tilley v Children’s Guardian [2017] NSWCA 174 which at the conclusion of the substantive matter considered a non publication or confidentiality order following a risk assessment consideration in a protective jurisdiction.

110. In Tilley the Court of Appeal observed at [45] – [47] when considering a suppression order that:

45. While it is true that material revealing the allegations of unlawful conduct was not put before the Tribunal, or the Court, by the appellant, but rather by the Children’s Guardian, the presentation of such material was an inevitable consequence of the appellant’s application for a clearance and his challenge to the refusal of the Children’s Guardian to grant such a clearance. Although the disclosure of such material might well be distressing and embarrassing to the appellant (although he gave no evidence to that effect) he had no basis to resist its disclosure in response to his own application.

46. There is, no doubt, a public interest in allowing a person against whom allegations of sexual assault have been made to test and, if possible, answer those allegations in the course of seeking a clearance from the Children’s Guardian. That process does not engage the public interest in open justice. Nor is it necessary to consider whether the appeal to the Tribunal was properly undertaken in conditions of anonymity. However, when the matter reached a court, the principle of open justice was engaged and a suppression or non-publication order could only be made in the circumstances envisaged by s 8(1).

47. In applying the well-established principles discussed above, the requirement of s 8(1)(a) is not satisfied. Nor is par (d) engaged. If there were some other public interest in non-disclosure which “significantly outweighs the public interest in open justice” it was not identified in the present case. Accordingly, it is appropriate to revoke the non-publication order with respect to the identification of the appellant made on an interim basis in the course of the hearing of the appeal.

111. In our view the observations of he Court of Appeal at [46] of Tilley distinguish this matter from that case. The matter is still before the Tribunal and, unlike Tilley which involved sex based allegations, the current matter has public interest consideration in open justice of a different nature. The charges are serious but not as serious as those in Tilley as they did not involve assaults.

112. Despite our findings on FPV’s substantive evidence, his evidence about risk of harm to himself and his family appeared to us to have some merit. This coupled with the fact that he was effectively caught (possibly to due his absence overseas) in a complex labyrinth of criminality for which there was some suggestion that many others escaped detection adds to this position that FPV was prosecuted, appropriately, but Police were unable to pursue others due to lack of evidence.

113. The evidence above about Mr ‘H’ not going to Court to give evidence in FPV’s favour because he would have perjured himself by doing so further supports this position.

114. Whilst we broadly understand and, in this instance, accept the Children’s Guardian’s position that no vulnerable persons would be protected by a s 64 order, because of the additional issue about safety to FPV and his family, as well as the observations of Basten JA concerning the distinctions between a legislative review before a Tribunal and seeking relief before the Court, we uphold the s 64 order in the terms initially made by the Tribunal.

Conclusion

115. For the reasons set out above, we reach the following conclusion.

116. The evidence and material received by the Tribunal establishes that the Tribunal is satisfied that FPV poses a risk of harm to persons with disability.

117. It therefore follows that the correct and preferable decision is to affirm the decision of the Children’s Guardian.

Orders

1. The order made on 1 December 2022 under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 in respect of the publication or broadcast of the name of the applicant is confirmed / continued.

2. The decision of the respondent on Internal Review dated 31 October 2022 to issue FPV with an exclusion and refuse to grant FPV a clearance 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: 17 March 2023