FXS v Secretary, Department of Education

[2025] NSWCATAD 94

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FXS v Secretary, Department of Education [2025] NSWCATAD 94

Hearing dates:

6 March 2024

Date of orders:

29 April 2025

Decision date:

29 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member
J Herberte, General Member

Decision:

(1)    The decision of the delegate of the Secretary, Department of Education made on 6 July 2023 to give FXS a prohibition notice is confirmed.

(2)    The application for review filed on 3 August 2023 is dismissed.

Catchwords:

ADMINISTRATIVE LAW – Children (Education and Care Services) National Law – long day care centre – nominated supervisor – prohibition notice – inappropriate discipline by educator – failure to report to parent - provision of false and misleading information to Regulatory Authority

Legislation Cited:

Administrative Decisions Review Act 1997

Children (Education and Care Services National Law Application) Act 2010

Children (Education and Care Services) National Law (NSW)

Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW)

Civil and Administrative Tribunal Act 2013

Community Services (Complaints, Reviews and Monitoring) Act 1993

Education and Care Services National Regulations

Cases Cited:

Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321

Briginshaw v Briginshaw (1938) 60 CLR 336

DBU v Secretary, Department of Education [2017] NSWCATAD 257

Department of Education v Trad [2023] NSWCCA 329

Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127

Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45

Shi v Migration Agents Registration Authority (2008) CLR 286

Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122

United Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc (No 2); Islamic Council of Victoria Inc v Australian Federation of Islamic Councils Inc [2022] NSWSC 868

Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85

Category:

Principal judgment

Parties:

FXS (Applicant)
Secretary, Department of Education (Respondent)

Representation:

Counsel:
G W Baldwin (Applicant)
T Liu (Respondent)

Solicitors:
Stacks Champion (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00246384

Publication restriction:

With the exception of any expert witnesses, officers of government agencies and legal representatives, the publication or broadcast of the name of any person mentioned in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. FXS is presently unable to be a nominated supervisor of an approved education and care service. This is because on 6 July 2023 the delegate of the Secretary of the Department of Education gave her a prohibition notice. The delegate issued the notice on the basis that FXS is not a fit and proper person to be nominated as a nominated supervisor of a service.

2. FXS seeks a review of that decision. In dealing with that application the Tribunal must determine what is the correct and preferable decision on the evidence before it.

References to certain legislation

3. For simplicity, we will refer to the following Acts and Regulations by giving them a shortened name at times:

1. The Children (Education and Care Services) National Law (NSW) will be referred to as the ‘National Law’

2. The Children (Education and Care Services National Law Application) Act 2010 will be referred to as the ‘Application Act’.

3. The Children (Education and Care Services) Supplementary Provisions Act 2011 will be referred to as the ‘Supplementary Provisions Act’.

4. The Education and Care Services National Regulations will be referred to as the ‘National Regulations’.

References to persons

4. In these reasons we refer to the Applicant and various children and educators at the service by de-identified pseudonyms, such as FXS, Child 1 and Educator 1. This is because of the order the Tribunal made prohibiting the publication and broadcast of the name of any person mentioned in these proceedings. By adopting this practice, we do not intend to depersonalise this case and acknowledge that those we refer to are real people.

Review jurisdiction

5. The decision to give a person a prohibition notice is a reviewable decision for external review under section 192(b)(vii) of the National Law. The NSW Civil and Administrative Tribunal has jurisdiction to hear and determine an external review of that decision as the Tribunal is identified as the “relevant tribunal” to which the application for review may be made: refer to section 193(1) of the National Law and section 8 of the Application Act.

6. The Tribunal has previously held in Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 that the jurisdiction is exercised in the Tribunal’s general jurisdiction: refer to Kendrick at [19] and section 29(1) of the Civil and Administrative Tribunal Act 2013.

7. The Tribunal has general jurisdiction where there is enabling legislation and the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction (section 29(1)(b) of the Civil and Administrative Tribunal Act 2013).

8. In DBU v Secretary, Department of Education [2017] NSWCATAD 257, Senior Member Ransome determined that a review of this nature is not conducted in the administrative review jurisdiction referred to in section 30 of the Civil and Administrative Tribunal Act 2013, given that the enabling legislation, in this case section 192 of the National Law, does not provide that applications may be made to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (refer to DBU at [14] – [15]).

9. The Tribunal also previously decided that the review is not determined in the Tribunal’s administrative review jurisdiction by virtue of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) in the case of a review related to a family day care service: DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [22]. This was because jurisdiction was not conferred by section 28(1)(a1) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) as it was not a decision under the National Law Alignment Provisions - refer to sections 4 and 17 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) and the definition of “State regulated education and care services” which does not include family day care services.

10. The same reasoning applies in the present case, because long day care services are an education and care service as defined in section 5(1) of the National Law and are therefore excluded in the same way, that is, they are not a State regulated education and care service: refer to section 4 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW).

11. The powers of the Tribunal on review are set out in section 193 of the National Law which states that the Tribunal is to confirm the decision, amend the decision or to substitute another decision for the decision under review.

12. In DBU Senior Member Ransome considered that conducting an administrative review in the exercise of the Tribunal’s general jurisdiction was “essentially the same task” as the task Tribunal would have undertaken in conducting an administrative review in its administrative review jurisdiction, that is, to determine what is the correct and preferable decision on the material before it, including any material available to the Tribunal at the time of the review including additional material that was not before the original decision-maker (refer to DBU at [26] which in turn cited Shi v Migration Agents Registration Authority (2008) CLR 286).

13. We note that FXS lodged her application for review within time, on 3 August 2023, that is, within 30 days after she was notified of the decision that is to be reviewed: refer to section 193(2) of the National Law.

Relevant legislation

14. According to section 4 of the National Law, an entity exercising functions under the National Law is to have regard to the objectives and guiding principles of the national education and quality framework set out in section 3.

15. Section 3 reads:

3   Objectives and guiding principles

(1)  The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.

(2)  The objectives of the national education and care services quality framework are—

(a)  to ensure the safety, health and wellbeing of children attending education and care services;

(b)  to improve the educational and developmental outcomes for children attending education and care services;

(c)  to promote continuous improvement in the provision of quality education and care services;

(d)  to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework;

(e)  to improve public knowledge, and access to information, about the quality of education and care services;

(f)  to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth.

(3)  The guiding principles of the national education and care services quality framework are as follows—

(a)  that the rights and best interests of the child are paramount;

(b)  that children are successful, competent and capable learners;

(c)  that the principles of equity, inclusion and diversity underlie this Law;

(d)  that Australia’s Aboriginal and Torres Strait Islander cultures are valued;

(e)  that the role of parents and families is respected and supported;

(f)  that best practice is expected in the provision of education and care services.

16. Section 182(1) of the National Law sets out the basis for the issue of a prohibition notice:

182   Grounds for giving prohibition notice

(1)  The Regulatory Authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed—

(a)  to remain on the education and care service premises; or

(b)  to provide education and care to children.

17. A nominated supervisor is a person involved in the provision of an approved education and care service: section 182(2)(b) of the National Law.

18. Section 182(3) of the National Law provides that:

(3)  The Regulatory Authority may give a prohibition notice to a person to—

(a)  prohibit the person from being nominated as a nominated supervisor if the Regulatory Authority considers the person is not a fit and proper person to be nominated as a nominated supervisor of a service; or

(b)  impose one or more conditions on the nomination of the person as a nominated supervisor that the Regulatory Authority considers appropriate, if the Regulatory Authority considers the person is a fit and proper person to be nominated as a nominated supervisor of a service subject to those conditions.

19. The Secretary of the NSW Department of Education (‘Secretary’) is the Regulatory Authority with power to make a decision to issue a prohibition notice (refer to section 182 of the National Law and also for the definition of Regulatory Authority refer to section 24 of the of the Supplementary Provisions Act and section 9 of the Application Act).

20. Before giving a person a prohibition notice, the Regulatory Authority must give the person a show cause notice, which gives the person an opportunity to address the Department of Education’s reasons for the proposed prohibition notice: refer to section 183 of the National Law.

Inappropriate discipline

21. A nominated supervisor must ensure that children in the service are not subjected to inappropriate discipline. Section 166(2) of the National Law states that:

(2)  A nominated supervisor of an education and care service must ensure that no child being educated and cared for by the service is subjected to—

(a)  any form of corporal punishment; or

(b)  any discipline that is unreasonable in the circumstances.

Penalty: $11 400.

False and misleading information

22. It is an offence for a person to provide false information to an authorised officer of a Regulatory Authority. Section 295(1) of the National Law reads:

(1)  A person must not give the Regulatory Authority or an authorised officer under this Law any information or document that the person knows is false or misleading in a material particular.

Penalty—

$6800, in the case of an individual.

$34 400, in any other case

Background - including the events leading to the prohibition notice

23. There were a series of events over the period 2020 to 2023 which ended in the Secretary issuing FXS with a prohibition notice.

24. FXS was employed as Director of a long day care centre (the ‘Centre’), an approved service. The approved provider was a limited liability company managed by a Board of Management consisting of active members of a particular church. FXS was nominated as the nominated supervisor of the service.

2020 Investigation and show cause notice

25. The NSW Department of Education (the ‘Department’) conducted an investigation about the conduct of two educators employed at the Centre after receiving reports that two educators had used inappropriate discipline with children at the Centre (‘2020 investigation’).

26. Following the investigation, the Department issued a show cause notice to FXS on 1 December 2020 on the basis that FXS had failed to ensure that two children were not subjected to inappropriate discipline while they were at the service and that she failed to report the incidents.

27. The allegations set out in the show cause notice were:

1. That on 21 February 2020 Educator 1 smacked Child 1 on his bottom, placed her hands around the child’s neck “mimicking a choking action” and held the child’s hands to “force him to hit himself on his face”.

2. That on 8 May 2020 Educator 2 grabbed hold of Child 2’s arm and pushed her out of the bathroom door. Additional allegations were made that Educator 2 “over a number of years” and during the time FXS was nominated supervisor, had engaged in conduct described as:

…[S]creaming and tone of voice used towards the children, making children sit for prolonged periods of time and rough handling of the children…threats and intimidation not only towards children but to other educators.”

28. The delegate of the Secretary identified further allegations about FXS in the show cause letter:

1. That FXS was “not forthcoming” in providing further incident or grievance reports about Educators 1 and 2 and denied the existence of these documents until she was served with a written notice to produce under section 215 of the National Law.

2. That FXS “attempted to coerce” Educator 3 to withdraw her incident report about the 8 May 2020 incident and suggested to Educator 4 “not make it known” that Educator 3 had “also witnessed the incident”.

3. That FXS kept other past complaints or incidents about inappropriate discipline of children at the service “in-house” and failed to report these to the approved provider or the Department.

2021 enforceable undertaking

29. On 28 May 2021 FXS signed an enforceable undertaking in which she agreed that:

1. She did not notify the Regulatory Authority or Child 1’s parents about the 21 February 2020 incident as described above at [27](1).

2. That Educator 4 observed Child 2 to have a red mark on her arm on 8 May 2020 and that Educator 3, a witness to the incident told FXS about the incident the same day. An incident report was completed on FXS’s return from leave on 18 May 2020. FXS did not notify the Regulatory Authority, the approved provider or Child 2’s parents about the incident.

3. That FXS failed to ensure no child being educated and cared for at the Centre was subjected to inappropriate discipline.

4. That FXS failed to notify the Regulatory Authority or the parents of the children involved about the incidents.

5. FXS accepted these contraventions and that she had contravened the National Law.

30. The effect of the enforceable undertaking was that if FXS complied with its requirements, no further proceedings would be taken by the Secretary for any offence “constituted by the contravention or alleged contravention” covered by the undertaking: refer to section 180 of the National Law.

31. FXS undertook to:

1. Ensure complaints alleging contravention of the National Law are notified to the approved provider within the prescribed timeframes.

2. Ensure parents or the approved provider are notified of any incidents occurring at the service within prescribed timeframes.

3. Ensure the approved provider’s reporting procedures are followed and complied with.

4. Ensure no child at the service is subjected to corporal punishment or discipline that is unreasonable in the circumstances.

Other actions taken in connection with the 2020 investigation

32. The Department took other actions at the conclusion of the 2020 investigation:

1. Educator 1 was issued with a caution letter on the basis that there was sufficient evidence to substantiate a breach of section 166(3) of the National Law, that is, the offence of using discipline that was unreasonable in the circumstances.

2. Educator 2 was issued with a prohibition notice on the basis that there would be an unacceptable risk of harm to a child or children if she remained on service premises or provided education or care to children: refer to section 182(1) of the National Law. The Department issued the notice on the basis that the evidence established that Educator 2 had subjected Child 2 to inappropriate discipline in contravention of section 166(3) of the National Law. The delegate of the Secretary also relied on other incidents which he said showed a tendency on the part of Educator 2 to “yell at children” and become “easily frustrated” with children and that she had been observed to grab children in a “forceful manner” and “pick them up or drag them roughly”. Other allegations were that Educator 2 had inappropriately disciplined children “by sending them outside as a form of punishment” and “by making them sit at a table for prolonged periods”. Educator 2 was also alleged to have subjected other educators to “threats and intimidation” and “bullied them”.

3. The approved provider was issued with a compliance notice requiring the provider to review certain service policies and procedures and to provide training to staff and volunteers including specific training on ineffective discipline and reporting obligations concerning “any incident where a child is being inappropriately disciplined whilst in care”. Penalties apply if the compliance notice is not complied with.

4. The approved provider was issued with a compliance letter which identified that it had contravened regulation 86 of the National Regulations, that is, it failed to ensure a parent was notified within 24 hours of any incident, injury, trauma or illness that occurred to their child at the service. A penalty infringement notice was issued for each of the two incidents in 2020 (refer to [27] above) for failing to notify the parents of the children involved.

2023 Investigation and show cause notice

33. The Department conducted an investigation about the conduct of Educator 5 at the Centre after receiving reports that she had used inappropriate discipline with children at the Centre (‘2023 investigation’).

34. Following the investigation, the Department issued a show cause notice to FXS on 9 June 2023 in which it was alleged:

1. On 3 February 2023 Educator 5 picked up Child 3 by both of her arms and sat her on the toilet in a “forceful manner”. Child 3 began crying and was upset after this interaction. Educators reported this incident to FXS the same day.

2. On 15 February 2023 Educator 5 picked up Child 4 from underneath his arms and “forcefully “slammed” him down on a chair”. Child 4 hit his mouth on the edge of the table which cause his teeth to “split through his bottom lip”. An educator reported this incident to FXS the same day.

3. That FXS failed to ensure children at the service were not subjected to discipline that was unreasonable in the circumstances.

4. That FXS failed to report these incidents and allegations to the approved provider, the Department, the Office of the Children’s Guardian, and the parents of the children involved.

5. That FXS provided a “false and misleading” incident report about the 15 February 2023 incident to the Department’s investigator.

35. The Investigator wrote in the show cause notice that:

The seriousness of these incidents raises concerns regarding your fitness and propriety and your capabilities and capacity to fulfill the responsibilities of a nominated supervisor.

FXS’s response to show cause notice

36. FXS’s lawyers prepared a response to the matters set out in the show cause notice. The response was as follows:

1. In respect of the allegation set out at [34(1)] above, this incident was not reported to FXS and the first she knew of it was when informed of it during the investigation. She made her own enquiries about what happened and the incident was not reportable by Educator 5 to FXS or by FXS to the Department, the Children’s Guardian, the approved provider or Child 3’s parents. What actually happened was that Educator “simply lifted [Child 3] onto the toilet”. This was not done in a forceful manner and Child 3 was crying before that occurred because she did not wish to be placed on the toilet. The placing of Child 3 on the toilet by Educator 5 was a “benign and proper action”.

2. About the allegation at [34(2)] above, FXS conducted her own enquiries and the injury caused to Child 4 was as a result of an accident when Child 4 was placed into the chair it overbalanced, “resulting in [Child 4] hitting his chin on the table and suffering, as a result, a split lip”. The incident did not involve deliberate and inappropriate use of force. It was “patently absurd” for the Department to characterise this as a serious incident as defined by regulation 12. It was a minor injury and Child 4’s parent regarded it so. Educator 5 reported the incident as an accident not as a serious incident because it was not a serious incident.

3. It was alleged that FXS submitted a false and misleading incident report about the incident described at [34(2)]. The allegation appears to be that FXS coerced an educator, Educator 6, into providing a report about the incident that agreed with that of Educator 5. FXS “completely and strenuously denies” this allegation and there is no corroborative evidence underpinning what is a “grave allegation”, requiring a corresponding strength of evidence in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336.

4. It was alleged that FXS stated when referring to the incident described at [34(2)], “the educators tell me stuff like this all the time”. It appears what was meant was that injuries are commonplace at the service.

5. Reference to the previous 2021 enforceable undertaking given by FXS is prejudicial if in fact FXS is not in breach of the National Law as alleged in 2023.

6. The investigator suggested that Educator 5 was related to the treasurer of the Board of the Centre. This is incorrect, Educator 5’s father is treasurer of the particular church referred to at [24]. This is an irrelevant matter and might have tainted the entire investigation.

37. It is helpful at this point, given the reference made above at [36(2)] to whether something is a serious incident, to set out regulation 12(b) of the National Regulations which states that a ‘serious incident’ includes:

(b)  any incident involving serious injury or trauma to a child occurring while that child is being educated and cared for by an education and care service—

(i)  which a reasonable person would consider required urgent medical attention from a registered medical practitioner; or

(ii)  for which the child attended, or ought reasonably to have attended, a hospital;

Example.

A broken limb.

2023 prohibition notice

38. On 6 July 2023, the delegate of the Secretary gave FXS a prohibition notice on the basis that she is not a fit and proper person. The effect of the notice is that FXS is prohibited from being a nominated supervisor: refer to section 182(3)(a) and 187(2)(a) of the National Law.

39. The delegate relied on the following:

1. The incident at [34](1) above

2. The incident at [34](2) above

3. Educator 5 inappropriately disciplined the two children in these incidents and that FXS was advised of the incidents by an educator or educators at the centre.

4. That FXS failed to report these incidents and allegations to the approved provider, the Department, the Office of the Children’s Guardian, and the parents of the children involved and that the approved provider had delegated these reporting responsibilities to FXS as nominated supervisor.

5. That FXS provided an incident report about the 15 February 2023 incident to the Department’s investigator which contained false or misleading information about the incident.

6. That FXS in her capacity as nominated supervisor of the service was in breach of the following provisions of the National Law:

1. Section 295(1) – False or misleading information or documents

2. Section 166(2) – Offence to use inappropriate discipline

7. That FXS in her capacity as nominated supervisor and person with day-to-day carriage of the service caused or contributed to the approved provider contravening the following provision of the National Law and the National Regulations:

1. Section 174(2)(b) – Offence to fail to notify certain information to Regulatory Authority

2. Regulation 86 – Notification to parents of incident, injury, trauma, and illness.

8. FXS’s previous alleged contraventions in 2020 of the following provisions of the National Law:

1. Section 166(2) - That FXS failed to ensure children being educated and cared for by the service were not subjected to any discipline that is unreasonable in the circumstances.

2. Section 174(2) – That FXS failed to report the incidents to the approved provider.

40. The delegate also referred to the objects and guiding principles of the National Law and also the question of whether or not FXS has the requisite knowledge, honesty and ability to act as nominated supervisor, including whether she had “adequate knowledge and understanding of the provision of education and care to children and [has] the ability to effectively supervise and manage an education and care service”, in accordance with regulation 117C of the National Regulations.

41. The delegate decided that FXS was not a fit and proper person to be a nominated supervisor.

The hearing

Primary focus of the hearing

42. The primary focus of the hearing was the incidents involving Educator 5 on 3 February 2023 and 15 February 2023 as alleged in [34(1)] and [34(2)] respectively and also whether FXS gave false and misleading information to the investigator in respect of the 15 February 2023 incident.

Opening submissions

For the Applicant

43. Mr Baldwin, Special Counsel, Stacks Champion, appeared for FXS. Mr Baldwin said that FXS was unaware of the allegation concerning the incident on 3 February 2023 involving Child 3 until the Department’s 2023 investigation. He referred to an alleged false report in respect of the 15 February 2023 incident involving Child 4 and said that the report had been already written and FXS “simply signed” it.

44. Mr Baldwin argued that the Department should not “contaminate” the matter by revisiting matters the subject of the 2020 compliance notice. A large volume of documents are not in issue and relate to the procedural running of the centre. The Applicant only became aware of other documents from the 2020 investigation when provided to her in the current proceeding. Mr Baldwin argued these documents are highly prejudicial and were taken into account by the decision-maker when FXS did not know anything about them. This denial of procedural fairness means that they should be set aside from the Tribunal’s consideration and only the 2023 allegations should be considered.

45. Mr Baldwin submitted that FXS denies the 2023 allegations and these allegations are underpinned by unreliable evidence. He argued that Briginshaw should be applied given that there were serious consequences from any findings because FXS lost her job. What Mr Baldwin was referring to here is the case of Briginshaw v Briginshaw (1938) 60 CLR 336 which stands for the proposition that where serious allegations are made, a fact finder should “feel an actual persuasion” of the existence of a fact and any allegation should be made out to the “reasonable satisfaction” of the tribunal: refer to Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [33].

For the Respondent

46. Mr Liu, of counsel, appeared for the Secretary. Mr Liu referred to the statutory context of this review, including section 182 of the National Law which describes the power and grounds on which the Regulatory Authority may give a prohibition notice to a nominated supervisor.

47. Mr Liu set out four main issues he said are relevant to the question of whether or not FXS is a fit and proper person to be nominated as a nominated supervisor:

1. A history of non-compliance by FXS and the centre from 2020, including contravention of the section concerning unreasonable discipline of children (section 166(2) of the National Law) and FXS’ enforceable undertaking.

2. Two instances in 2023 when Educator 5 used inappropriate discipline at which time FXS was the nominated supervisor.

3. Provision of a false and misleading incident report about the 15 February 2023 incident to the investigator conducting the 2023 investigation.

4. A failure by FXS to report the incidents referred to at [47(2)] above, which in turn caused the approved provider to contravene its reporting obligations under section 174(2)(b) of the National Law and also Regulation 86 of the National Regulations.

48. Mr Liu said that the Tribunal’s role is to conduct a de novo merits review of the decision to give FXS a prohibition notice and in conducting the review the Tribunal must consider the best and most current information available: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [41]. This includes the history of non-compliance of the person.

49. In addressing the FXS’s argument that the documents from the 2020 investigation should not be considered by the Tribunal because of a denial of procedural fairness, Mr Liu said that the Tribunal is not conducting a judicial review of the decision to issue the prohibition notice and need not determine whether or not the Regulatory Authority breached the requirements of procedural fairness in making the decision. By conducting the hearing of the application for review the Applicant is afforded procedural fairness for the decision the Tribunal has to make.

50. Mr Liu drew our attention to the Respondent’s written submissions and what he described as a “rich history” in the case law on fit and proper person, some of which I will refer to below under ‘Consideration’.

51. Mr Liu observed that the investigator who conducted the 2023 investigation was not required by FXS for cross-examination and so her affidavit is unchallenged evidence.

Evidence

52. We had the benefit of hearing oral evidence from four witnesses: FXS, Educator 3, Educator 6 and an educator not previously referred to in these reasons, whom we will call Educator 7. Written statements from FXS, Educator 3, Educator 6, Educator 7 were also in evidence as well as an affidavit from the investigator who conducted the 2023 investigation. A large volume of other documents was admitted into evidence which included policy documents from the service and documents relating to the two investigations and the compliance history of the service.

The giving of the enforceable undertaking

FXS’s evidence

53. FXS agreed that she had read, understood and signed the enforceable undertaking. She also agreed that she had given the undertaking.

54. In her statement FXS said she had taken steps following the giving of the enforceable undertaking “to ensure that every matter that comes under the definition of “serious incident” is reported”.

3 February 2023 incident

FXS’s evidence

55. FXS said she was unaware of this incident until informed by the investigator. FXS had no recollection of the conversation with Educator 3 about the incident. In any event, FXS’s view was that the incident was not reportable.

56. FXS said that Educator 3 said that Child 3 was “going from toilet to toilet” and then Educator 5 “held [Child 3] down on one of the toilets” and that Educator 3 thought Educator 5 was “probably sick of” Child 3 going from toilet to toilet when she needed to go to the toilet and wanted to avoid “the possibility of [Child 3] wetting herself”.

57. Mr Liu took FXS to Educator 3’s statement in which Educator 3 said:

6. [Educator 5] was in the bathroom and told [Child 3] to sit on the toilet. [Educator 5] was calm initially and was verbally encouraging to [Child 3].

7. [Child 3] was not complying with [Educator 5’s] verbal requests. When [Child 3] got off the fourth toilet [Educator 5] grabbed [Child 3] by both of her arms, picked her up and sat her on the toilet in a forceful manner.

58. We also observe at this point that Educator 3 also said in her statement that she saw Child 3 “playing roulette” on the preschool and toddler toilets and making her way between all of the toilets.

59. Mr Liu also took FXS to the service’s ‘Discipline and Safety’ policy, referred to at [95] below which set out that when a child displays “unsettled behaviour” they are to be redirected by staff.

60. FXS agreed that if the incident did occur in the manner stated by Educator 3, that would be inconsistent with the service’s policy that a child be redirected. She agreed if the incident occurred as stated by Educator 3, it would be inappropriate.

61. Mr Liu took FXS to the incident report completed by Educator 3. She again denied being told by Educator 3 about the incident and her concerns about the interaction, contrary to Educator 3’s statement which said Educator 3 had explained the situation to FXS and expressed her concerns regarding the interaction between Educator 5 and Child 3.

62. Mr Liu referred to the statement of Educator 9. He said that this educator had not been required by FXS for cross-examination and her statement has been admitted into evidence and not challenged. In that statement Educator 9 said that Educator 3 came and told FXS about the incident on 3 February 2023 and that the two educators notified FXS of this incident.

63. FXS continued to adhere to her evidence that she was never notified of the incident.

Evidence of Educator 3

64. Educator 3 said she was in the bathroom at the time of the incident. She agreed that Child 3 was resistant to being placed on the toilet by Educator 5. She explained what was meant in her statement by Educator 5 placing Child 3 on the toilet in a “forceful manner”. Educator 3 said there was “way too much force” used. She said Educator 5 had put her hands under Child 3’s arms and picked her up off the ground. She described the manner in which she had put her on the toilet was “too forceful”.

65. We note Educator 3 said in her statement that Child 3 cried and did not seem to be hurt but was perhaps shocked by the interaction.

66. Educator 3 said that later that day she was programming in the Director’s office and Educator 9 entered. Educator 3 said she explained what occurred to FXS, and FXS asked Educator 9 to go check on Child 3. Educator 9 also wrote it up in the book.

15 February 2023 incident

FXS’s evidence

67. FXS said that she found out about this incident when Educator 7 told her there had been an accident. This occurred not long after the incident happened. Educator 7 told her that:

…[Educator 5] had tried to pushed [sic] [Child 4]’ chair under a table, but in doing so the chair had overbalanced, with the result that [Child 4] had fallen onto the table, and put one of his teeth through his lip.

68. FXS said that Child 4’s mother was informed about the accident and that she attempted to email photos of the injury to Child 4’s mother but the emails bounced back. Child 4’s mother told FXS she would look at the photos when she picked Child 4 up in the afternoon and if there was any change in Child 4, she would try to come to the service and get Child 4.

69. FXS said that Educator 6 came into her office with a completed accident/incident form which Educator 6 had already filled out. FXS said she asked Educator 6 what happened and she replied that Child 4 “had been on his chair, when he had slipped off and put his tooth through his lip”. FXS signed the form.

70. FXS said she spoke to Educator 5 about what happened and Educator 5 said Child 4 had been “sitting on his chair when he overbalanced and hit his chin on the table, and his tooth had gone into his lip”. Educator 5 said that Educator 7 and Educator 6 had been in the room at the time the incident occurred, but neither had seen the incident.

71. FXS stated that when Child 4’s mother picked him up at about 5:45pm she was again told about what happened and show the photos of her son’s injury. The mother signed the incident form.

72. FXS said she did not report the incident to the Department as “it was quite clear” it did not fall within the Department’s definition of a ‘serious incident’.

73. FXS denied concealing the incident or pressuring any staff member to change their account of what occurred. In fact, the incident report was already filled out by Educator 6 and FXS did not make any changes and signed it.

74. At hearing FXS again denied suggesting to any staff member that they not report an accident. She said she tells the educators that everything needs to be reported correctly “as it’s a legal document”.

75. FXS was asked about the statement given to the investigator by Educator 7, which said:

6. Out of the corner of my eye I saw [Educator 5] slam [Child 4] down on a chair at the table. I think [Educator 5] picked [Child 4] up from behind and forcefully pushed him down on the chair.

…

9. After this occurred, I came in to the office to discuss this incident with the director [FXS]. [FXS] told me that I couldn’t write what actually happened on the incident report. She stated, “We can’t be writing that because the parent can’t know”.

76. In response to this, FXS said that Educator 7 did not come to her. She said she was at the door of the toddler room.

77. Mr Liu took FXS to the statement of Educator 6 which read:

8. I also notified [Educator 7] of the incident and told her that [Child 4] had split his lip.

9. As far as I am aware, [Educator 7] then came and notified [FXS] of the incident. [FXS’s] response was that we couldn’t write the details of the actual incident and what had happened. I had already begun to write an incident report, the original incident report is kept in a diary in the room.

10. [Educator 7] came back to the room and told us what [FXS] had requested we write on the incident form which was not reflective of what actually occurred.

78. FXS said that Educator 7 did not come to her, she came to Educator 7. She assumed a notebook entry was made by the educators at the time the incident occurred.

79. Under questioning, FXS said that Educator 7 did tell her about the incident but maintained that she did not tell Educator 7 that the details of what actually occurred could not be written in the incident report. Rather, FXS said that she tells educators they have to honest in what is recorded in the forms. FXS said she signed the incident form Educator 6 put in front of her and believed this is what occurred as she was not there to see it.

78. Mr Liu took FXS to the incident report about the 15 February 2023 incident, completed by Educator 6. FXS agreed that she had provided this incident report to the investigator on the visit to the service on 27 April 2023. She agreed that she had signed the incident report on the day of the incident. That report reads:

[Child 4] was at table when he slipped and his face hit the table resulting in his tooth going through his lip.

81. I note that the incident report records that Child 4 was aged two years old. The incident report states he sustained a “bite/cut wound to middle of lip” and the action taken by staff was “wet washer applied to lip”. I also note that the incident report is signed by Educator 7 as a “witness to first aid”.

82. FXS maintained that she did not tell Educator to write an account that did not reflect what actually happened, and said “I did not say this at all”. She also denied giving the investigator a false document, and said “It is not a false document”. She said she believed the incident report to be accurate when she gave it to the investigator, and stated, “I did not know it was false” and said it accorded with what Educator 6 said happened.

Evidence of Educator 6

83. Educator 6 said that Child 4 was crying and pulling away and trying to go the opposite way from Educator 5. She said that Educator 5 picked Child 4 up and “slammed him” onto the chair. She said Educator 5 picked him up under the arms and put him “forcefully into the chair” and “his face went down on the table”.

84. Mr Liu asked Educator 6 whether in fact Child 4 was seated in a chair and Educator 5 had tried to push that chair in and the chair became overbalanced and that was how Child 4 hit is chin on the table. Educator 6 said she did not believe that to be so and that Child 4 was not sitting on a chair, she remembered Educator 5 forcefully “slamming him down”.

85. Educator 6 maintained that Educator 5 had forcefully put Child 4 on a chair and his chin hit the very end of the table. Blood poured out of his mouth. Educator 5 grabbed paper towel and the blood was gushing out. A wet washer was applied.

86. Mr Liu said that the incident report stated that Child 4 had “slipped and his face hit the table” and suggested that was a false report. Educator 6 said that Educator 7 asked FXS what they were to write because they were not sure how to word it and she was told by FXS to write that he slipped and he fell. Educator 6 said that she was not told this directly by FXS.

87. Educator 6 was asked about a document showing two handwritten pages from an exercise book. She said that was a book in which educators document any incidents or concerns about children. She referred to it as the “DoCS Book” where records are made for the Department of Education. Educator 6 said she made the following entry on 15 February 2023 which reads:

[Child 4] was walking around near the food tables when [Educator 5] wanted him to sit at the tables but [Child 4] wanted to play. [Educator 5] forcefully grabbed [Child 4] by the arms and forcefully sat him down and resulted in [Child 4’s] face hitting [sic] table with his front teeth smacking into the bottom one. Blood occured [sic] and correct first aid was applied. [Educator 7] seeked [FXS] (director) and asked [FXS] “what do we write on the accident report”. [Educator 7] told [FXS] what had happened and [FXS’s] response was “we can’t write that, we just have to write that he slipped and fell resulting in his head bumping the table”. Late that afternoon 16^th of February 2023 after work shift [Educator 7] rang mandatory reporting at 4:19pm reference number [number].

88. This account of the incident differed from that recorded in the incident form as set out above at [80]. Mr Liu asked Educator 6 why were there two accounts. Educator 6 said that one version was what they were told to write and the other version was exactly what happened. Educator 6 said she did not challenge what she said was FXS’s instruction about how the incident should be portrayed in the incident report because she felt her job could be on the line. She said that the DOCS Book was for “mandatory reporting and as evidence” and she could go back on it for “what actually happened”.

Evidence of Educator 7

89. Educator 7 said in her statement that she saw “[o]ut of the corner of [her] eye” Educator 5 “slam” Child 4 down on a chair at the table. When asked what she saw of the incident Educator 7 said she “saw the movement but did not see all of it, no”. She said she saw the movement and sound of the chair hitting the floor and that Child 4 “started screaming”.

90. Educator 7 said in her statement that “there was a lot of blood” and she got a washer and cleaned Child 4 up with the washer.

91. Educator 7 said in her statement that she then came into the office to discuss the incident with FXS and that FXS said “we can’t be writing that”. Educator 7 conceded that statement was not exactly word for word. She said that Child 4’s mother was told what FXS has instructed Educator 6 to write in the incident report. She said that FXS said “we just have to write he slipped and fell which resulted in his head bumping the table”. She said that the entry in the DOCS Book was made the same day during rest time.

92. Educator 7 made a report to the Department of Education after she finished her shift. It appears from the documents filed by the Respondent that Educator 7 made a call to the Department of Communities and Justice (‘DCJ’) Child Protection Helpline on or about 16 February 2023 and that DCJ passed this information on to the Department of Education (refer to page 373 of the Respondent’s Bundle of Relevant Documents).

Role of FXS as Director of the centre and what the Secretary says FXS accepted when giving the enforceable undertaking

93. Under questioning, FXS agreed that as Director of the centre she was the most senior person employed and under the centre’s policies the Director was the nominated supervisor. As Director she has a role in formulating the centre’s policies and was responsible for the day to day operations of the centre and the main person who would deal with the Department.

94. FXS agreed that she was the person who primarily dealt with the representative of the Department during any compliance visit and responsibility for signing off on any response to a compliance issue.

95. Mr Liu took FXS to the centre’s ‘Discipline and Safety’ policy which stated that a child displaying “unsettled behaviour” is to be redirected. FXS agreed that this was an appropriate way of dealing with that behaviour. FXS also agreed that she was the ‘Responsible Person’ who inducted staff and that this involved reinforcing and discussing “appropriate behaviours” with new staff as referred to in the centre’s policy entitled ‘Staff’.

96. Mr Liu took FXS to the centre ‘Staff Code of Conduct’ and FXS also agreed as stated in that policy that as Director, she was accountable for decisions made and as nominated supervisor she would ensure all educators are aware of their obligations concerning ethical conduct and decision-making.

97. FXS agreed that in accordance with paragraph 9 of the enforceable undertaking she was responsible for those matters set out at [31] above.

98. FXS also agreed under cross-examination that she accepted the facts set out in the ‘Statement of Facts’ in the undertaking, which set out this version of events:

1. On 21 February 2020 Educator 1 smacked Child 1 on the bottom, placed her hands around his neck, mimicking a choking action and used Child 1’s hand to make him hit himself. That evening FXS was emailed an incident report by Educator 8, who witnessed the incident. An internal investigation was conducted by the approved provider on 25 February 2020 after Educator 8 notified the approved provider about the incident. FXS did not notify the Regulatory Authority or Child 1’s parents of the incident.

2. On 8 May 2020 Educator 2 held Child 2’s arm with her hand and pushed Child 2 out the bathroom door. Educator 4 observed a red mark on child 2’s arm. Educator 3 was a witness to the incident and notified FXS of the incident the same day. An incident report was completed on FXS’s return from leave on 18 May 2020. FXS did not notify the Regulatory Authority, the approved provider or Child 2’s parents of the incident.

99. The undertaking states that FXS accepts that the two incidents as described at [29] constituted a failure by FXS to ensure no child being educated and cared for at the centre as subjected to inappropriate discipline, in contravention of the National Law.

100. The undertaking also states that FXS accepted that she failed to notify the Regulatory Authority or the parents of the children involved in the incidents of the incidents.

101. FXS accepted the propositions set out at [99] and [100] above in her oral evidence. She agreed that she was the person ultimately responsible for compliance by the centre with the National Law.

Alleged failure to report both 2023 incidents and alleged provision of false incident report regarding the 15 February 2023 incident

102. According to the Respondent, FXS failed to report both 2023 incidents to the child’s parents and the Regulatory Authority caused the approved provider to contravene its reporting obligations.

103. It is helpful at this point to set out the reporting obligations of an approved provider. Section 174(2)(b) of the National Law requires that an approved provider must notify the Regulatory Authority of any complaints alleging a serious incident has occurred while a child was being educated and cared for at the service. What is a serious incident for the purposes of section 174(2)(b) is prescribed as such by regulation 112(b) of the National Regulations as set out at [125].

104. Regulation 86 of the National Regulations state that an approver provider must ensure the parent of a child is notified as soon as practicable and no later than 24 hours afterwards if their child is involved in “any incident, injury, trauma or illness” while at the service.

Alleged lack of procedural fairness in 2020 investigation

105. In her written statement, FXS said that she had not been aware that the investigator conducting the 2020 investigation had interviewed other staff of the centre. FXS described finding this out as “a huge shock” because she knew nothing about the interviews until she brought the current proceeding. She described the information as “really damning” and containing “damaging and inaccurate statements”. She said:

I have never had the opportunity to respond to any of this material, which contains content portraying me, without evidence, as being dishonest, being a bully, discouraging staff from reporting incidents, and encouraging inaccurate reporting.

Submissions made by the parties

For the Applicant

106. Mr Baldwin referred to the case of Department of Education v Trad [2023] NSWCCA 329 which was a criminal case where Ms Trad, the nominated supervisor for a service had her convictions overturned in the District Court. Ms Trad was charged under the National Law when a registered family day care educator, Ms Rataeu, did not follow safe sleeping practices and a baby died under her supervision.

107. Mr Baldwin sought to rely on that case to say that the Court accepted that practically there was nothing a nominated supervisor could do about what happened to the child. We examined the judgment of the Court of Criminal Appeal cited above and the case concerned the referral of a question to the Court about whether the relevant offence that a child being educated and cared for by a service was not adequately supervised at all times, was one of absolute liability given that the nominated supervisor was not physically present. It was not clear to me from reading that judgment why the convictions were quashed by the District Court. However, the Court of Criminal Appeal came to the conclusion that the offence was an absolute liability offence but in the circumstances of the stated case, the Court’s discretion to grant relief by quashing the orders and remitting the matter back to the District Court should not be exercised.

108. Mr Baldwin made much of what he submitted were procedural fairness failings on the part of the investigator who conducted the 2020 investigation. One example he gave was email correspondence from a person who appeared to be from the centre sent directly to the investigator and which contained a number of allegations about FXS (refer to page 90ff in Respondent’s Bundle of Relevant Documents). Mr Baldwin said there was more than 200 pages of material to which FXS had not been aware of until after 31 August 2023, which appears to be the date on which she was served with that material in this proceeding. He submitted that in other settings that would be “fatal” and that material was highly prejudicial. He acknowledged that this proceeding was not a judicial review but said that the alleged procedural fairness failings should be taken into account by this Tribunal in deciding what weight to give that evidence. He argued that there were profound and serious consequences for FXS because the supervisory role was taken from her.

109. Mr Baldwin submitted that it was open to the Tribunal to find on the evidence that Child 4 had sustained an injury as the result of an accident. He said the educators have some other version to make life difficult for FXS.

110. Mr Baldwin said that the incident involving Child 3 may have involved something being said in FXS’s presence but it was unclear if FXS had heard this or had been properly notified of the incident by staff.

111. Mr Baldwin contended that there were inconsistencies in the accounts and there were doubts about both incidents. He said both Child 3 and Child 4 were “fractious” children and perhaps Educator 5 was careless when pushing Child 4’s chair forward but the action was not inappropriate discipline nor did it show an intention to injure the child.

112. Mr Baldwin described FXS as clear and unwavering in her evidence and a person of good character. She acknowledged the enforceable undertaking. She had a long career in the sector and really does care for children. Child 4’s parent was promptly notified and FXS made no attempt to hide information from the parent. She would not hide information as she was aware of the enforceable undertaking she had given.

For the Respondent

113. Mr Liu drew attention to the wording of section 182(3)(a) of the National Law and said the prohibition notice may be given if the Regulatory Authority considers FXS is not a fit and proper person. He said that the Tribunal should have regard to:

1. An unsatisfactory compliance record referred to in paragraph [10] the 2023 investigator’s affidavit and that as nominated supervisor of the service, FXS should take a significant measure of responsibility for those matters. FXS held responsibilities as Director of the centre, responsible person and nominated supervisor and she was the most senior person employed and ultimately responsible for compliance, performance and outcomes at the service. FXS’s evidence was that she was principally responsible for dealing with the Regulator and he said she was responsible ultimately for the centre’s compliance.

2. The enforceable undertaking given by FXS which sets out the alleged contraventions concerning the incident on 21 February 2020 involving Child 1 and the incident on 8 May 2020 involving Child 2. Mr Liu said that by signing the undertaking FXS accepted those alleged contraventions. Mr Liu’s submission about this was that the Tribunal should proceed on those facts as being correct and that contraventions of the National Law flowed from those facts.

3. The incident on 3 February 2023. Mr Liu submitted that the best evidence about what occurred can be found in Educator 3’s statement. That statement included the following:

When [Child 3] got off the fourth toilet [Educator 5] grabbed [Child 3] by both of her arms, picked her up and sat her on the toilet in a forceful manner.

4. Mr Liu submitted that Educator 3 did not resile from her statement under cross-examination, particularly about the excessive force used by Educator 5. He described her evidence as clear and credible and argued she showed good recall. He contended that the Tribunal had no basis to not accept this account. FXS did not call Educator 5 to give evidence and the Tribunal had the benefit of an eyewitness account from Educator 3, including one that was able to be tested at hearing.

5. Mr Liu said that account should be accepted and constituted an example of inappropriate discipline. When he asked FXS about this she accepted that if the incident occurred as the Respondent said it did, it would be inconsistent with the centre’s policies.

6. The incident on 15 February 2023 incident involving Child 4. Mr Liu submitted that the Tribunal should find the incident occurred as alleged by the Respondent. He submitted that the best evidence of what occurred was the diary entry annexed to the investigator’s affidavit as set out at [87] above. Mr Liu argued that this record was contemporaneous as it was written the day the incident happened. It was written by an educator that was there. He stated that the Tribunal could reach a factual finding that FXS stated that a correct incident report could not be completed and FXS knew in providing that false incident report to the investigator that it contained false and misleading information.

7. Mr Liu also urged the Tribunal to consider the past compliance history of the service during the time that FXS was nominated supervisor.

Consideration

Can the Tribunal take the 2020 investigation into account if, as FXS suggests, procedural fairness was not accorded to FXS?

114. We agree with the overall submission made by the Secretary, that is, we are not conducting a judicial review and therefore not focussed on questions such as whether the requirements of procedural fairness were met by the delegate of the Secretary when making the decision to give FXS the prohibition notice.

115. Our task is a different one, and that is to conduct a full merits review of the decision, standing in the shoes of the Secretary, to determine what is the correct and preferable decision about the giving of a prohibition notice to FXS. In doing so, we are to exercise the functions given to the Tribunal by section 193(3) of the National Law, that is, to confirm or amend the decision of the Regulatory Authority or to substitute another decision for the decision under review. Any evidence about what occurred prior to 2023 that is relevant to the question of whether FXS is a fit and proper person to be nominated as a nominated supervisor can and should be considered as part of the circumstances of the case.

116. We agree with the Respondent that the past history of FXS’s compliance with the National Law is relevant and may be probative to the question of whether FXS is a fit and proper person.

117. We agree with the written submissions made by the Secretary which cite the case of United Muslims New South Wales Inc v Australian Federation of Islamic Councils Inc (No 2); Islamic Council of Victoria Inc v Australian Federation of Islamic Councils Inc [2022] NSWSC 868 at [111]-[113]. In that case his Honour Justice Kirk made what appear to be obiter comments and observed that where there is a breach of the requirements of procedural fairness at the first decision-making stage, a second decision overtakes the first and replaces it with a valid one. The breach of procedural fairness can be “cured” when the matter is considered afresh after affording the affected person a proper opportunity to be heard. As his Honour stated, “the ultimate issue is whether or not the operative decision is infected with a breach of procedural fairness”: at [113].

118. We consider that we could take into account the 2020 investigation and in particular the 2020 incidents, as FXS has been accorded procedural fairness by having access to the material filed in these proceedings. FXS had an opportunity to provide evidence in response to that material and to challenge and to test any evidence presented at hearing and to make submissions about it.

What factual findings does the Tribunal make and what standard should be applied?

Seriousness of the allegations and cogency of the evidence required for findings

119. We accept Mr Baldwin’s argument that there are serious consequences for FXS if certain factual findings are made. The reason is that if the Tribunal decides on the basis of those findings to confirm the decision under review, the effect on FXS is that she has lost the role and cannot be nominated as a nominated supervisor.

120. We are mindful that a finding that FXS instructed Educators to record false information on an incident report and that FXS then provided what she knew was a false account in that incident report to the investigator is itself a criminal offence: refer to section 295(1) of the National Law.

121. It is also a serious finding to make that FXS as nominated supervisor contravened section 166(2) of the National Law that she “must ensure” that no child being educated and cared for by the service is subjected to discipline that is unreasonable in the circumstances. As the Court of Criminal Appeal noted in Trad at [115]:

Nominated supervisors, although nominated by the approved provider, are only given this role if they have provided written consent to taking on such a role (see s 44(1)(da) of the National Law). This points to the legislature’s intent to ensure that those persons be aware of the obligations and onus placed on them when accepting such a position, including the potential offences of which they are or may be at risk.

122. We accept that we must reach an actual persuasion and that to make any findings of fact about these allegations we need to reach a level of reasonable satisfaction, because of the seriousness of such allegations: refer to Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [33].

2023 incidents

123. On the evidence before us, we have reached a level of reasonable satisfaction that:

1. In respect of the incident on 3 February 2023:

1. Educator 5 grabbed Child 3 by both of her arms, picked her up and sat her on the toilet in a forceful manner and that “way too much force” was used. We accepted the evidence of Educator 3 as this was the best evidence as she directly witnessed the incident.

2. Educator 3 advised FXS about the incident the same day and in the presence of Educator 9. We accepted the evidence of Educator 3 and Educator 9 about this. Our assessment of FXS’s evidence is that she did not recall being told about the incident.

2. In respect of the incident on 15 February 2023:

1. Educator 5 forcefully grabbed Child 4 by the arms and forcefully sat him down. This caused Child 4’s face to hit the table and pushed his front teeth into the bottom one. His lip bled and Educator 7 used a wet washer to clean up Child 4. We accepted what we agree is the best evidence, that is, the account recorded in the DOCS Book by Educator 6. That record was made contemporaneously and by a person who was a direct witness to the incident. Educator 6’s evidence about this was credible evidence that was tested at hearing and consistent with the contemporaneous record in the DOCS book. We prefer that account over the denials made by FXS which are supported by an incident report which we are satisfied contained false information. We make findings about that below.

3. We find that each of the two 2023 incidents, that is the incidents identified at [123](1)(a) and [123](2)(a), constitutes a contravention of section 166(2) of the National Law, that is, FXS as nominated supervisor failed to ensure that no child educated and cared for by the service is subjected to any form of discipline that is unreasonable in the circumstances. We note the comments of the Court of Criminal Appeal in Department of Education v Trad [2023] NSWCCA 329 about the meaning of “ensure”. The fact that it was another person who carried out the unreasonable discipline or the fact that the nominated supervisor had done their own “due diligence” (refer to [126] of Trad) does not absolve them from being held accountable.

4. We carefully considered the evidence concerning whether or not FXS told Educator 6 that she could not record what actually happened to Child 4 and that she should fill in the incident report to portray the incident as an accident rather than a deliberate act by Educator 5. We considered the cogency of the evidence in this regard, given the seriousness of the allegation that FXS knowingly provided false and misleading information to the investigator, who is a representative of the Secretary. According to FXS, Educator 6 came into her office with the incident form already completed, and when asked what happened, Educator 6 said Child 4 “had been on his chair, when he had slipped off and put his tooth through his lip”. Against this were the accounts of Educators 6 and 7 as well as the contemporaneous DOCS Book notes and the call to the DCJ Child Protection Helpline by Educator 7. In weighing this evidence, we were comfortably satisfied that in fact FXS had instructed a false incident report be prepared and that she later provided this report to the investigator.

5. We accept that FXS told Educator 7 that a correct account could not be provided in the incident report form. We accept Educator 7’s oral evidence that FXS said words to the effect of “we just have to write he slipped and fell which resulted in his head bumping the table”. I find that Educator 7 told Educator 6 about the conversation with FXS and as a result, Educator 6 completed the form with a false account that the injury was caused by accident.

6. The fact that the injury to Child 4 was not an accident but was the result of Educator 5’s actions when she forcefully grabbed Child 4 by the arms and forcefully sat him down is reinforced by the fact that Educator 7 made a mandatory report to the Department of Communities and Justice Child Protection Helpline. This report was made on 16 February 2023, close in time to the incident and included the allegation that an incident report was presented to the Director who said “[y]ou can’t write that, just say they slipped and bump [sic] themselves”.

7. The preponderance of the evidence therefore led us to be comfortably satisfied that FXS had told Educator 7 to record a false account in the incident form and that FXS then provided this incorrect incident form to the investigator, in contravention of section 295 of the National Law.

Reporting of the 2023 incidents

124. We are satisfied that FXS caused the approved provider to contravene Regulation 86 of the National Regulations in respect of the 3 February 2023 incident because FXS did not ensure that the parent of Child 3 was notified.

125. We considered whether, as the Respondent contends, the 15 February 2023 incident was one which needed to be notified to the Regulatory Agency. According to section 174(2) of the National Law that must occur where there is a serious incident or complaint alleging a serious incident. A serious incident is defined in regulation 12(b) the National Regulations to include:

(b)  any incident involving serious injury or trauma to a child occurring while that child is being educated and cared for by an education and care service—

(i)  which a reasonable person would consider required urgent medical attention from a registered medical practitioner; or

(ii)  for which the child attended, or ought reasonably to have attended, a hospital;

Example.

A broken limb.

126. The evidence is that Child 4’s lip was attended to with a wet washer. We are not satisfied on the evidence that this amounted to serious injury or trauma which a reasonable person would consider required urgent medical attention from a doctor or attendance at hospital. We therefore find it was not a serious incident as defined by the legislation and which needed to be reported to the Regulatory Agency.

2020 incidents

127. In respect of the incidents alleged to have occurred on 21 February 2020 and 8 May 2020, we accept that the effect of the enforceable undertaking is that FXS accepted the facts as set out in that undertaking and admitted that in respect of those incidents she did not ensure no child being educated and cared for at the centre was subjected to inappropriate discipline, in contravention of the National Law.

128. By signing the undertaking, FXS admitted that she did not notify the Secretary or the parents of the two 2020 incidents.

129. We also make the following factual findings in respect of the incidents on 21 February 2020 and 8 May 2020:

1. That on 21 February 2020 Educator 1 smacked Child 1 on his bottom, placed her hands around the child’s neck “mimicking a choking action” and held the child’s hands to “force him to hit himself on his face”.

2. That on 8 May 2020 Educator 2 grabbed hold of Child 2’s arm and pushed her out of the bathroom door.

130. In failing to notify the parents, FXS caused the approved provider to contravene regulation 86 of the National Regulations, which requires an approved provider must ensure a parent is notified as soon as practicable and within 24 hours of any incident, injury, trauma or illness experienced by their child.

131. We are satisfied that we can take those 2020 incidents into account on the basis that we are satisfied that FXS did not comply with the undertaking given, because we have found that FXS did not ensure no child was subjected to unreasonable discipline following the giving of the undertaking.

Is FXS a fit and proper person?

132. The High Court of Australia has considered how courts and tribunals should interpret the meaning of the phrase ‘fit and proper person’. In Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at [36] the Court held that the meaning of that phrase should be drawn from “its context, from the activities in which the person is or will be engaged and the ends to be served by those activities” and “cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities”. In certain contexts, character and reputation might be enough to lead to a finding that the person is not fit and proper to engage in the relevant activities.

133. According to the High Court in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, the expression ‘fit and proper person’ gives a decision-maker a very wide discretion and it involves three things: “honesty, knowledge and ability” to execute the office or vocation (at [9]).

134. Whether or not an applicant for a licence is a ‘fit and proper’ person is to be considered in the statutory context which includes the objectives and guiding principles in section 3 of the National Law. These include the objective in section 3(2)(a) to ensure the safety, health and wellbeing of children attending education and care services and the guiding principle in section 3(3)(a) that the rights and best interests of the child are paramount. The rights and best interests of the child has been interpreted as the rights and best interests of the child who may receive the service: Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [82].

135. In the light of the factual findings we have made, and in the context of the cases cited at [132]-[133] we considered whether FXS has the requisite ability to perform the duties of a nominated supervisor and also her honesty to execute those duties in the light objective in section 3(2)(a) and paramountcy of the guiding principle in section 3(3)(a). The result was that we consider that FXS is not a fit and proper person to be nominated as a nominated supervisor. The decision to give the prohibition notice must therefore be confirmed.

136. It is a very serious matter for there to be repeated instances of discipline that is unreasonable in the circumstances and for those instances to not be reported to parents of the children involved. On top of that, to seek to conceal the fact that an educator was the cause of an injury by telling another educator that a false incident report should be written in order to characterise the incident as an accident undermines the system of regulation of long day services. A person engaged in that conduct cannot be found to be a fit and proper person to be a nominated supervisor, given the responsibilities of a nominated supervisor and to find otherwise would not advance the rights and best interests of child attending any service at which FXS was a nominated supervisor.

ORDERS

1. The decision of the delegate of the Secretary, Department of Education made on 6 July 2023 to give FXS a prohibition notice is confirmed.

2. The application for review filed on 3 August 2023 is dismissed.

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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: 29 April 2025