FYU v Children's Guardian

[2024] NSWCATAD 112

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FYU v Children’s Guardian [2024] NSWCATAD 112

Hearing dates:

19 December 2023

Date of orders:

30 April 2024

Decision date:

30 April 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer, Senior Member
R Royer, General Member

Decision:

(1) The order made on 28 September 2023 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 varied and now made in the following terms:

(i) Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

(2)   The decision of the respondent on Internal Review dated 14 July 2023 to issue FYU with an exclusion and refuse to grant FYU a NDIS Worker Check clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW – NDIS Worker Checks – confidentiality - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant–– 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 – vulnerable persons

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Child Protection (Prohibited Employment) Act 1998 (repealed)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

Civil and Administrative Tribunal Rules 2014

National Disability Insurance Scheme (Worker Checks) Act 2018

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

National Disability Insurance Scheme Act 2013 (Cth)

Work Health and Safety Act 2011

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

Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 64

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

FBC v Children’s Guardian [2021] NSWCATAD 286

FMZ v Children’s Guardian [2023] NSWCATAD 86

FPV v Children’s Guardian [2023] NSWCATAD 59

Olunwabusor v Children’s Guardian [2023] NSWCATAD 199

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

Saba v Children’s Guardian [2023] NSWCATAD 156

Tilley v Children’s Guardian [2017] NSWCA 174

Texts Cited:

Nil

Category:

Principal judgment

Parties:

FYU (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
M Whitbread (Respondent)

Solicitors:
Spiritus Law Group Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00280841

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, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

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 ‘FYU’ in these proceedings. FYU 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 third parties FYU’s identity is covered by the Order and some aspects of the background facts 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. FYU was refused a clearance to work within the NDIS by the Children’s Guardian due to his recent history of dishonesty and workplace incidents. Based on all of the available evidence and having regard to the statutory provisions which we outline below, and in particular FYU’s evidence at hearing, we find that FYU currently 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. FYU applied for a NDIS worker clearance 2 March 2021 in accordance with s 6 of the NDIS Check Act. FYU worked in the disability sector whilst awaiting the outcome of his application. FYU has worked in the disability sector for some time 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. As the Tribunal has previously observed, 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 wrote to the applicant on 16 March 2023 indicating that they proposed to exclude him from holding a Clearance and imposed an interim bar in accordance with s 9 of the NDIS Check Act. The Children’s Guardian has conducted a risk assessment and examined the applicant’s criminal, workplace and other information considered relevant. During that process they identified a serious workplace incident with a sustained finding of workplace misconduct in 2021. The central matter concerned the abandonment of a shift for approximately one and a half hours leaving a young male client with disabilities and vulnerabilities without care and supervision.

8. The Children’s Guardian relied on s 14 (1) (c) of the NDIS Check Act in determining that due to FYU’s recent serious workplace conduct, 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.

9. 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.

10. 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.

11. 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;….

12. As noted above at [7] the Children’s Guardian wrote to the applicant on 16 March 2023. 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.

13. 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 the applicant 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.

14. Reasons for decision in accordance with s 11 (2) were provided in a one page decision provided on 7 June 2023. The decision focused on the workplace incident which occurred in 2021. The Children’s Guardian noted that the applicant’s behaviour on that occasion related to a failure to provide adequate care and supervision to a person with disabilities. The Children’s Guardian also noted that such conduct can result in a range of harm to persons with disabilities. 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, noting in June 2023 that the conduct had occurred as recently as December 2021.

15. The applicant applied for an Internal Review as provided by s 53 of the Administrative Decisions Review Act 1997 (the ADR Act) on 7 June 2023, the same date as the initial decision. On 14 July 2023 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.

16. On 4 September 2023 the applicant filed an administrative review with the Tribunal. That application was 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.

17. 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

18. Consistent with the observations in FPV v Children’s Guardian [2023] NSWCATAD 59 (FPV) and cases decided since that time, 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 is 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.

19. 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.

20. In the case of FBC v Children’s Guardian [2021] NSWCATAD 286, consistent with our findings 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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

27. The following observations were made by the Tribunal in FPV concerning additional context of NDIS worker check reviews under that legislative scheme. At [26] to [30] of FPV the Tribunal observed:

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

28. The grounds of the substantive application were:

1. I do not pose a risk of harm to people with disabilities.

2. I have completed further disability support development course to address the event that resulted in the requirement for a risk assessment.

3. The length of time that has passed and the activities I have undertaken to date has helped in addressing the risk of harm.

4. Apart from the relevant event that occurred on 28 December 2021, I do not have any criminal antecedents or any other history of employment or social misconducts.

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

30. The application was initially lodged 35 days beyond the 28 day period provided for in the ADR Act and the Civil and Administrative Tribunal Rules2014. However on the first return of the application for directions before the Tribunal, an order was made pursuant to s 41 of the NCAT Act extending time to lodge the administrative review application until 4 September 2023. At the same time the s 64 order referred to above at [2] was made.

The hearing

31. The matter was heard over one full day. The applicant gave evidence at hearing and was subject to lengthy cross-examination. The Tribunal also asked a number of questions of the applicant in evidence, utilising its powers under s 38 of the NCAT Act. Both parties attended the hearing in person with legal representation.

Written Evidence

FPV’s written material

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

1. Exhibit ‘A 1’: applicant’s bundle filed 14 December 2023.

2. Exhibit ‘A-2’ applicant’s Tender Bundle Police Certificate, employment emails and employment records and reference / letter of support – filed 1 November 2023.

Children’s Guardian’s written material

33. 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 -138 pages.

2. Exhibit ‘R-2’ Respondent’s additional bundle – 18 pages.

3. Exhibit ‘R-3’ documents compiled from production of material under summons from NSW Police. (12 pages)

34. Both the applicant and the Children’s Guardian also filed and served detailed written submissions and reply submissions and made oral submissions at hearing at the conclusion of the evidence.

35. The central basis of the risk assessment decision and the matters canvassed at the hearing concerned the applicant’s workplace incident in December 2021. The incident can be summarised as follows:

The applicant was employed with a registered provider under the NDIS and was engaged to assist another provider who ran Independent Supported Living (SIL) residences for persons with profound disabilities who were NDIS participants.

The applicant’s employer did not run the SIL’s and was not responsible for the overall support of the residents, however they provided staff to the other provider in times of staff shortages.

On 28 December 2021 the applicant was rostered to provide care at the SIL residence from 2:00pm to 10:00pm. A 17 year old boy ‘JA’ was the only resident at the SIL at the time of the rostered shift. ‘JA” has a diagnosis of Autism, moderate Intellectual Disability and Attention Deficit Hyperactivity Disorder (ADHD).

A neighbour saw ‘JA” standing alone outside the SIL residence at about 7:50pm. The neighbour assisted JA and in the absence of any staff present called Police and the former foster carer of JA.

Police attended the SIL residence at 9:30pm. The applicant returned back at the SIL residence (from being elsewhere) at 9:35pm after receiving a call from his employer at 9:20pm.

36. This is the central matter that was considered during the risk assessment being the abandonment of his duties leaving a NDIS participant unsupervised and absent care. Additional matters concerning the applicant’s information given in the workplace investigation including providing a false account also formed matters under consideration in the decision.

Applicant’s evidence at hearing

37. In evidence in chief the applicant told the Tribunal that he is here because he became aware of his NDIS ‘licence’ being cancelled. He referred to the incident at the workplace in December 2021 which led to the risk assessment and a finding that he poses a risk. The applicant said that as a result his NDIS certificate was suspended and then cancelled.

38. The applicant said that he was rostered to work from 2:00pm until 10:00pm. The applicant said he was employed by Health Care Australia and was contracted to work for Lifestyle Solutions from 2:00pm to 10:00pm that day. The applicant said that there was no one to do the shift overnight. He said that part of his issue was that he received instructions from two different organisations.

39. When asked how long he had been working with ‘JA’ the applicant said that he first worked with him when he came to an earlier house run by Lifestyle Solutions. In respect of training the applicant said that he had read ‘JA’s Behaviour Support Plan (BSP) and received a 15 minute induction, including being shown where ‘JA’s medication was stored. The applicant said that he was shown the pantry, medication cupboard matters relating to restrictive practices (as set out in the BSP), the care plan-relating to the level of assistance needed, as well personal care. The care plan also raised matters concerning ‘JA’s medication.

40. The applicant said that on the day of the shift where the incident occurred there were no planned activities or appointments for ‘JA’.

41. ‘JA’ was said to be listening to his music. He took his afternoon medication around 3:00pm and the applicant asked ‘JA’ if he wanted to have a shower, which he did not. Later the applicant asked ‘JA’ what he wanted for dinner and he made ravioli for him. The applicant said that ‘JA’s bedtime medication was due around 8:00pm and he would usually give it around 10 minutes before to 10 minutes after that time. The applicant said that he was not very sure of the time but believed that he would heave given the medication between 7:30 and 8:00pm.

42. The applicant said that the young person (‘JA’), said he was going to bed. The applicant said that he was then called by Lifestyle Solutions to stay over from 10:00pm to 6:00am. He said he was hungry and after the young person (‘JA’) went to bed he left to go to his home.

43. The applicant said that he has a Certificate 2 in Disability and Aged care from 2017. He has a Bachelor Degree in Social Work from Newcastle University from 2021. He has also worked in the sector from 2017 when he received his Certificate to 16 March 2023 when his clearance was cancelled.

44. The applicant got a job with the Department of Communities and Justice (DCJ). He said that he did three months in a case worker development program and finished the program in July 2022. The applicant said that he has done a lot of workshop programs. He also undertook a ‘Trauma in Young People’ course in 2023. He undertook a ‘Disability - challenging and complex behaviours’ course in February 2023.

45. The applicant said that post incident he had completed nine months with DCJ as a caseworker. He had also been working with ‘Thrive’ community service. Work had also been undertaken with Samaritans as a youth manager of housing. The applicant had also worked with Quantum Safety doing work health and safety type work until today.

46. In cross examination the applicant was asked to confirm his understanding of ‘JA’s disabilities. The applicant confirmed that ‘JA’ had a diagnosis of autism, moderate intellectual disability and ADHD and that he required ‘one on one’ care. The applicant agreed with the proposition that ‘JA’ cannot be left alone. He said that not only does he agree but that he had reflected on what happened every day since. The applicant said that he was very sorry for what happened.

47. The applicant was taken to page 46 of the s 58 documents concerning the times that he said that he came and went on the evening of the incident. The record contains a statement that the applicant made the day following the incident. In that statement the applicant says that ‘JA’ went to bed around 20:47 hours. Then he decided to ‘rush quickly down to my place in New Lambton which was about 8 mins away from the placement to grab some dinner and something for lunch for my day shift’. The applicant said that the report of the incident that he sent by email arose from a telephone call that he made to Lifestyle Solutions. In the email report the applicant says that ‘I spend a few minutes at my place packing some food’.

48. The applicant says that he received a call at 21:20 hours from Health Care Australia on call support on his personal phone asking where he was.

49. The applicant was taken to the medication chart in the s 58’s and agreed with the proposition that there was no tablet entries for 8:00pm on 28 December 2021. The applicant said that he would have put the medication administration for the evening into the ‘shift report’. The applicant’s evidence in cross examination was that he gave the oral medication prior to 8:00pm to ’JA’ but that he did not record it in the chart. The applicant was asked whether he agreed with that there was a risk posed to ‘JA’ because of the absence of a record on 28 December 2021 for the 8:00pm entry of the medication. The applicant agreed with this proposition.

50. The applicant was then asked what time he now says that he left the SIL home. The applicant said that he was not sure but that it was after the medication was administered, so sometime between 7:30pm and 8:00pm.

51. It was put to the applicant that ‘JA’, his former foster father and niece and Police were there at the SIL house from 7:45pm to 9:35pm. Work had called his personal mobile phone as his work phone was in his car and he lived in an apartment. The applicant was asked what he was doing at his home for the one and a half hours that he was there that evening? The applicant said that he went to his apartment to obtain food. He said that ‘JA’ had eaten all of the food in the fridge at the SIL home, so when he went home he had to prepare all of the food for his own dinner.

52. The applicant was questioned about the afterhours number for the support service. The applicant said that he was only permitted to call that number in case of an emergency not when he needed support due to a lack of food etc.

53. When pressed further the applicant said that when he got to his apartment he prepared his food and then ‘had dinner’ in that he consumed his food. He said that he had started packing up when he received the Police telephone call. The applicant said that he dropped everything and came straight back. It was put to the applicant that he was lying to explain and minimise his conduct and explain the matters that he had contemporaneously stated in his report as referred to at [47] above. In that report made on the day after the incident following was stated:

At approximately 20:47 (‘JA’) went to bed. That was when I decide to quickly rush down to my place in new Lambton which was about 8 mins away from the placement to grab some dinner and something for lunch for my day shift. When I got to my place, I accidently forgot the work phone inside my car. I rush upstairs to grab dinner / lunch. Honestly, I spend a few mins at my place packing some food. At 21:20 I received a call from HCA on-call support on my personal mobile phone asking where I was.

54. It was suggested to the applicant that he brought his absence time forward by one hour because he had seen the Police statement about a neighbour’s report (Exhibit ‘R-3’). The report refers to:

The POI (Applicant) then left the YP (‘JA’) alone at the premises. About 8:00pm the YP has gone to a premises next door and informed the occupant ’ that he had been left at the house on his own and did not know where his carer was. As a result, he has provided her with a number for the Wit, (former foster carer) as this is the only number he knows and remembers from the time that he lived with her. As such ‘C’ contacted the Wit. She resides 40 mins away and adviser [sic] her to call Police. Police were contacted at 8:10pm and advised of the incident.

55. It was suggested that the applicant now amended his version of what happened to reflect the critical matters from the above report. The applicant acknowledged that his actions were neither appropriate or ethical. It was suggested in cross examination that the applicant did not go home. The applicant responded by saying that he did not lie about what happened.

56. The applicant was asked about paragraph [5] of his main written submission. The submission sets out that the applicant was assigned an 8 hour shift from 2:00pm to 10:00pm with Lifestyle Solutions facilitated through Healthcare Australia. Early into the shift the applicant was contacted by Lifestyle Solutions requesting he extend his duty to include the sleepover shift from 10:00pm to 6:00am the following day. The submission goes on to state that he was also asked to continue from 9:00am to 2:00pm the following day (three back to back shifts). In his submission this situation was illustrated as a 24 hour shift without a break or provision for food for the following day.

57. At [18] of his submissions the applicant ‘implores the Tribunal to consider his past conduct – without incident, and contends that if he was allowed to complete his original 2:00pm to 10:00pm shift then there would have been no need to leave. At [35] of his submissions the applicant’s representative characterises the situation as … ‘while at work, he was unexpectedly directed to extend his duty by taking on an additional 8-hour sleepover shift starting from 10pm and ending at 6am the following day. Furthermore, he was also assigned a shift from 6am, to 2pm on the same day resulting in a total of 24 hours of work when he had originally planned an 8 hour shift.’ (emphasis added).

58. Questions were put to the applicant along the lines of what his views were of a person making a poor decision being a risk in the nominated care context. The applicant disagreed and rejected the notion that he would continue to be a risk to disabled persons. The applicant denied that the discrepancies in his 25 January 2022 workplace interview were lies.

55. In re-examination the applicant was asked about the sleep over shift. He said that the shift until 10:00pm was an ‘active’ shift whereas the shift from 10:00pm was a ‘passive’ shift. The applicant said that every time that the client wakes the worker up that needs to be recorded as an ‘active incident’.

56. The applicant was asked questions about the ‘shift report’ where he said that he recorded the medication. The Tribunal noted that the 8:00pm entry in the Medication Administration (chart) in Exhibit ‘R-2’ has no entry concerning number of tablets / dose administered at this time even though the time and the applicant’s initials are entered by hand.

57. The applicant agreed with the proposition that he had agreed to taking on the extra shifts. He said that he needed more shifts after a loss of shifts during Covid and that by agreeing to extra shifts he developed a better reputation in the businesses and would get offered more work.

58. The Tribunal asked questions of the witness consistent with its powers under s 38 of the NCAT Act. In respect of his residence in New Lambton the Tribunal inquired as to whether the applicant lived alone. He said that he had one other housemate who lived there but that at the relevant time they had gone to work.

59. We asked the applicant what was the food he ‘prepared’ and ‘ate’ at his residence that evening consistent with his evidence. The applicant said that he prepared pasta. He said that once it was prepared he sat down and ate it. He said that straight after he finished eating it he started packing up to return to the SIL house. The applicant said that he did not intend to be there that long and denied the suggestions by the respondent that he went anywhere else.

60. In respect of ‘JA’s behaviours the Tribunal inquired into his needs during a shift. The applicant said that ‘JA’ is very clear on what he wants and it is not possible to engage with him once he has decided his particular need. He said that he did not cook at the SIL home for himself as ‘JA’ would have gotten upset that the applicant was eating his food from the fridge and the kitchen. The applicant said that on that evening he weighed up those issues and did not think that he would be away for that long. The applicant agreed that neglect could be the same thing as abuse when it was put to him.

61. The applicant agreed when asked by the Tribunal that his actions would have placed ‘JA’ in a place of distress.

62. In reply to matters arising from the Tribunal’s examination the respondent asked the applicant whether whilst he was absent he ever thought that he should return to the SIL house? The applicant said that he lost track of time and deferred to his earlier evidence that he never intended to be away that long.

Applicant’s submissions

67. In oral submissions at the close of the evidence the applicant submitted that when the Tribunal looks at the matters in s 16 of the NDIS Check Act regarding matters to be considered in risk assessment, the Tribunal should not become focused solely on the fact that the applicant’s conduct was serious. This he submitted was not the only issue to consider. The facts that the Tribunal has heard are relevant, that there were in effect two employers and the terms of the contract were not fully complied with. The applicant was required to seek instructions.

68. The applicant’s representative submitted that the courses the applicant had undertaken and those completed since the incident have been undertaken to mitigate any future risk. Submissions were made that in respect of the evidence adduced at hearing the applicant was a bit confused with his times and also in the various written records.

69. However in respect of his character the applicant’s representative submitted that he was viewed positively by others and pointed to references at pages 75-79 of the s 58 material. A reference from the applicant’s SHS Case Manager whilst aware of the incident in broad terms (referring to it as a matter of neglect), talked mainly of his willingness to assist others in a positive manner. Another reference described as a character reference re: future risk ‘as compelling evidence not to suspend or excluded the applicant’s NDIS workers screening number;’ was also referred to as was a reference from a colleague who studied social work at University with the applicant.

70. In written submissions the applicant’s representative contrasted the current matter with the four NDIS cases that the Tribunal had considered and concluded on to date. FPV was referred to as evidence of mitigating future behaviour whereby that applicant attended Church and counselling were acknowledged as risk reduction elements. In FMZ v Children’s Guardian [2023] NSWCATAD 86 the applicant submitted that whilst FMZ had been convicted of theft, the Tribunal observed that he had not been provided with a satisfactory level of professional assistance to devise and implement strategies to address impulses that led to the convictions.

71. In Saba v Children’s Guardian [2023] NSWCATAD 156 the applicant submitted that the Tribunal found that whilst the Tribunal was dissatisfied with Saba’s conduct, they found it irrelevant (relating to drug offences other than use) to the issue of risk of harm. In Olunwabusor v Children’s Guardian [2023] NSWCATAD 199 that applicant was convicted of dishonesty offences and the Tribunal was dissatisfied with the applicant’s behaviour since the commission of those offences.

72. The current matter was submitted as open to being treated more favourably than the above four cases. The lack of the applicant having any criminal record, his level of experience and training in care, that the conduct was isolated and that in the intervening period the applicant has devoted time to more study as well as the positive character assessments were all cited as positive distinguishing matters. On a separate note the applicant’s representative submitted that it was arguable that the incident was partly caused by the employer when examined against the terms of his employment.

Children’s Guardian’s submissions

73. 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 the applicant’s NDIS clearance.

74. In oral submissions at the conclusion of the evidence the respondent submitted that the risk does not need to be likely or significant, nor does it need to be recent. It was submitted that the applicant had breached s 28 of the Work Health and Safety Act 2011 which provides:

28 Duties of workers

While at work, a worker must—

(a) take reasonable care for his or her own health and safety, and

(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

75. In that regard there is no need for a person to actually suffer injury (eg: ‘JA’) just the likelihood of injury.

76. The respondent referred to the inconsistencies in the applicant’s version of events. The respondent submitted that the applicant’s accounts to Police were inaccurate as were his accounts to his employer. He said in evidence before the Tribunal that he was gone for ‘a few minutes’ whereas in reality he was gone for at least 90 minutes. The respondent submitted after the evidence that the applicant could have called out for takeaway or had afterhours staff make an arrangement for him in the circumstances. At the bottom of page 46 of the s-58’s the applicant says that he ‘(I) rush upstairs’, and in his record of interview (Exhibit R-2), he refers to ‘quickly get dinner, and pack something for when I was doing the day shift’. (Pg. 9 R-2).

77. The respondent submitted that there were lots of misleading statements and inaccuracies in the applicant’s evidence. They submitted that the purpose of this was to minimise his conduct in respect if the incident.

78. The respondent submitted that the applicant’s ‘mistruths’ over the last two years would cause the Tribunal to have real concerns if the applicant was to work alone with a person with significant disabilities again.

79. In respect of the applicant’s raising of and reliance on some workplace industrial type issues (the potential that he was required to work three 8 hour shifts back to back / consecutively after being requested to do the overnight shift), which the applicant said was a breach of the award due to clauses regarding rest breaks, the respondent submitted that there was no need for the Tribunal to make a finding on this issue.

Submissions on s 64 order

80. On the issue of the s 64 order the applicant’s representative submitted that he would like a s 64 order for the hearing. In written submissions on this issue the representative submitted that publication of the appellant’s name might jeopardise his current non-disability work and prejudice future employment opportunities. Reference was made to the Tribunal’s position in FPV on the anonymity question. Referencing FPV at [111] the applicant observed:

11. … 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.

81. The other NDIS cases where suppression or non publication orders were lifted it was submitted involved serious criminal allegations which the current case does not. It was submitted that lifting the s 64 NCAT Act order would potentially prejudice future employment, and in light of his sincere remorse at his conduct the matter did not warrant the publication of his name and the details that led to his exclusion from working with people with disabilities.

82. In respect of the Children’s Guardian submission that the s 64 (NCAT Act) order should be lifted the Children’s Guardian submitted that the basis for an order under s 64 was very limited and in the current case was not required. In written submissions on this issue they submitted that the principles of open justice in both the NCAT Act and the NDIS Check Act apply with a presumption that the name of a person who brings an application is expected to be disclosed unless there is good reason for making the non disclosure order.

83. Reference was made to Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 64. At [45] of that case the Tribunal observed:

45. The risk of a negative emotional reaction to disclosure, such as embarrassment or humiliation, on the Respondent’s part, would not be an adequate reason for a non-publication order.

84. The respondent also submitted that none of the Applicant’s offending involved confidential material or tend to identify children such that a non-disclosure order might be justified.

Consideration

85. As noted from FPV we have also 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.

86. The applicant left a disabled individual young person who was still a child (17 years of age) alone without care in circumstances where care was not only required, but funded. The applicant was the person primarily responsible for the well being of the young person. He left the young person in circumstances whereby he sought to attend to his own personal needs, when there is an absence of evidence that he could have made alternate arrangements.

87. The young person had significant disabilities and it appears from the evidence within minutes of the applicant’s departure, became distressed and went outside of the premises in the early evening. He was seen by a neighbour who contacted a third party who suggested that the Police be called. It appears fortuitous that the young person came under the supervision of the neighbour within approximately 20 minutes of the applicant’s departure. Whilst the applicant retuned home some 90 minutes plus after departure this was a hurried return in response to being contacted about the situation by his employer and Police. Who is to know what time the applicant would have retuned had he not been summonsed by Police.

88. In our view it is difficult to speculate what might have happened had the young person remained unsupervised for the entire length of time that the applicant was absent, or the length of time that he might have sought to be absent had he not been interrupted and recalled. Whilst not condoning such action in similar circumstances, this was not in our view analogous to a ‘quick dash to the corner store to obtain milk’. However, in our view the evidence indicates that all along the applicant sought to characterise his conduct in such a manner.

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

89. It was just under three years at the time of the hearing and a little over three years now since the incident took place.

(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,

90. The young person was clearly vulnerable due to his diagnosis and life circumstances. He had significant disabilities. In our view because the young person was fully mobile he was particularly vulnerable in the circumstances. Even if environmental restraints were in place (of which we have no evidence), without supervision such protective factors would have been potentially harmful, we stress, in the absence of supervision which is the nature of the circumstances in question. We reiterate that the young person had significant disabilities.

91. The applicant was in authority or ‘locus parentis’ over the young person being the sole designated carer for him overnight. The role of the applicant was to support the young person as he provides support funded by the NDIS.

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

92. Whilst the applicant does not have a criminal record or any significant record of complaints, we observe that in the investigation and hearing of this matter, the applicant was not candid and changed his version of events approximately three times significantly. In the period since 28 December 2021 there has been concerning behaviour in relation to the investigation of this incident and this has continued to some extent at hearing. Whilst we make no specific or formal adverse finding about the applicant’s evidence on oath we note that there appeared to be a lack of logic and complete truth to some of his evidence about his length of absence.

93. At the end of his evidence even after asking questions of the applicant ourselves we were uncertain as to why in the circumstances (on his own evidence) he would somewhat casually in an apparently unhurried manner spend in excess of an hour and 10 minutes preparing and consuming a meal of pasta at his residence (after discounting 18-20 minutes travelling time to and from). Whilst we understand why the need for food might explain the decision to leave we are not comfortable with his evidence about his time away. This is particularly so in the context of not bringing his work phone with him from the car. If he had rushed off to obtain food it would be apparent that he would have been keen to return, at least one would have thought out of concern for the young person (who as he indicated in his evidence may get up overnight). Likewise if he had rushed off to obtain food it is logical to think that having decided to abandon his charge he would be in some hurry, if only to escape detection by being absent for as short a time as was humanly possible. Whilst there is no evidence before us to the contrary, like the respondent we maintain some doubts as to the applicant’s credibility on this issue. Those doubts to some extent call into question all of his evidence about 28 December 2021.

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

94. Other than his conduct in respect of the investigation and hearing primarily arising from the incident, the applicant has conducted himself in positive and pro-social manner. He has no other NDIS complaints of significance and no other workplace maters in the work he has pursued since his worker check was refused. He has progressed through relevant professional levels of study in he allied health / care and other areas of his experience and his personal references / referees speak highly of him.

(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,

95. The matter of significance is the central incident as detailed above and particularly at [86] to [93]. In our view the nature and circumstances of the incident are of such significance that we cannot be satisfied that the applicant has the requisite skill and level of responsibility to currently be engaged in NDIS work. In our view the applicant demonstrates poor decision making and as a result he may fail in his responsibility to supervise and care for persons with a disability. We agree with the respondent that the applicant’s conduct following the incident suggests an unwillingness and or inability to act in a manner that is protective to persons with a disability, where acting protectively would be adverse to his own interests in obtaining a favourable outcome.

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

96. As adopted from FPV, we consider this provision during our utilisation of the assessment as applying to the Tribunal. The respondent submitted that whilst the applicant has significant training and experience as a support worker, he failed to comply with a central and essential function of his role as a support worker. In such circumstances the respondent submitted that the training and experience should be afforded little weight.

Further consideration

97. 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.

98. Whilst the applicant raises the issue of being required to work three shifts consecutively ostensibly in breach of his employment award, no evidence was adduced about this issue other than the applicant’s evidence. We note that whether he was required or not, it was ultimately the applicant’s decision to agree to the overnight shift in the circumstances of knowing about his other shifts. At the very least it was open to the applicant to make some arrangements with his employer about his own needs when the extra shift was being discussed.

99. Due to the poor quality of some of the applicant’s evidence at hearing, and the fact that on a crucial aspect his evidence before the Tribunal was not credible, we are unable to find that the applicant has overcome the requirements of the NDIS Check Act to be granted a clearance. Having regard to the paramount consideration of preventing people with a disability from exposure to real and appreciable risks of harm, we are satisfied that the applicant poses a risk of harm to persons with a disability.

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

98. 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

102. As noted above at [80] – [84] the parties hold differing views about the confidentiality order being maintained by the Tribunal.

103. 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.

104. 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.

105. In our view the observations of he Court of Appeal at [46] of Tilley distinguish this matter from that case particularly the observations of Basten JA concerning the distinctions between an administrative review before a Tribunal and seeking relief before the Court.

106. In addition, contrary to the respondent’s submissions, we note that unlike the reasoning and facts in FPV that in the current case vulnerable people were referred to in the evidence before the Tribunal (such as persons with a disability). We also determine that there is a particular public interest reason for distinguishing the applicant’s case as one which should be afforded a non publication type order.

107. We disagree with the respondent’s submission that the evidence does not identify children (‘JA’ was a child at the time). Also as a person with disabilities he is vulnerable. If the applicant’s name was disclosed in our view vulnerable persons could be constructively identified.

108. In addition whilst noting the respondent’s reliance on Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 64 (EFA), in that matter the Tribunal finds a similar criteria to maintaining the suppression order as we find on the facts in the applicant’s case. At [43] to [49] of EFA the Tribunal observed:

43. …The only question is whether the non-publication order with respect to EFA should be lifted.

44. The starting point for the consideration of this question is that disclosure of the name of a person who is the subject of disciplinary proceedings is expected to be made, consistent with the concept of open justice, unless there is a compelling reason for a non-publication order to be made in relation to that person’s name.

45. The risk of a negative emotional reaction to disclosure, such as embarrassment or humiliation, on the Respondent’s part, would not be an adequate reason for a non-publication order.

46. The risk of reasonably foreseeable negative impacts upon the Respondent’s family from disclosure, such as embarrassment, and negative social impacts, would not, by themselves, be sufficient reason to make a non-disclosure order. They are factors to be weighed in consideration of the issue, but they do not weigh heavily.

47. EFA sought to maintain the non-disclosure order with respect to his name, although he acknowledged that some changes would have to be made to that order to accommodate the disciplinary orders and costs orders he anticipated that the Tribunal would make.

48. The Council initially took the position that the non-disclosure order should be lifted with respect to EFA’s name. However, a detailed specialist medical report regarding EFA by an independent psychiatrist, Dr Olav Nielssen, was then provided. In the report, a diagnosis of Major Depressive Illness is given and the risk of suicide in the event of the lifting of the non-disclosure order is outlined. The report is consistent with other medical reports which have been provided to the Tribunal from medical and health practitioners who have been involved in the management of EFA’s health in the period between the incident and the hearing of these proceedings. In light of the report, the Council did not pursue its request for the non-disclosure order to be lifted, and agreed that it was appropriate to retain it, but amend it to accommodate the disciplinary orders.

49. This is not a matter where the unsatisfactory professional conduct related to action taken in the course of the conduct of legal proceedings. There is no need to disclose EFA’s name to warn future prospective clients or solicitors. We have found that EFA does not pose a risk to anyone, including his future clients, on account of the kind of conduct the subject of this matter.

109. Having considered all of those matters, particularly noting that the evidence is very much tied to the vulnerable persons and regime that the NDIS Scheme operates in and supports, and because the evidence in this matter is significantly tied to the operation in practice of that regime, unlike many of the cases heard to date, we uphold the s 64 order in the terms initially made by the Tribunal and add some additional terms as set out below arising from he above analysis.

110. In this instance the confidentially order is not intended to protect the applicant, but the identity of innocent third parties. This practical outcome regularly arises in community service matters before the Tribunal.

Conclusion

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

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

113. 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 28 September 2023 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 varied and now made in the following terms:

1. Pursuant to s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, any children, victims, or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons, or any risk of harm reporter or any non-expert witness.

2. The decision of the respondent on Internal Review dated 14 July 2023 to issue FYU with an exclusion and refuse to grant FYU a NDIS Worker Check clearance is affirmed.

**********

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: 30 April 2024