GHT v Children's Guardian - [2025] NSWCATAD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GHT v Children’s Guardian [2025] NSWCATAD 16
Hearing dates: 15 August 2024 & 18 October 2024, last submissions due 8 November 2024
Date of orders: 16 January 2025
Decision date: 16 January 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern, Senior Member
S Davison, General Member
Decision:
The Tribunal affirms the decision under review.

Catchwords:
ADMINISTRATIVE LAW – NDIS worker check clearance – risk of harm – mental health issues –
PROCEDURAL – non-publication orders

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth).
Health Practitioners Regulation National Law NSW
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018
National Disability Insurance Scheme (Worker Checks) Act 2018 NSW
National Disability Insurance Scheme (Worker Checks) Regulation 2020

Cases Cited:
Council of New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84
FMZ v Children’s Guardian [2023] NSWCATAD 86
FPV v Children's Guardian [2023] NSWCATAD 59
FVD v Children's Guardian [2023] NSWCATAD 329
Okunwabusor v Children's Guardian [2023] NSWCATAD 199
Saba v Children's Guardian [2023] NSWCATAD 156

Texts Cited:
None cited

Category: Principal judgment
Parties: GHT (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
C Wong (Applicant)
A Zheng (Respondent)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2024/00154689
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceedings, is prohibited. Pursuant to s 64(1)(c) of the CAT Act the disclosure of evidence given or matters in documents lodged with the Tribunal in relation to the applicant’s medical records or health conditions is prohibited.

REASONS FOR DECISION

Introduction

This is an application for review of a decision made by the respondent to refuse the applicant’s worker check clearance under the National Disability Insurance Scheme (Worker Checks) Act 2018 NSW (NDIS Worker Checks Act). An NDIS Worker Check clearance is required for anyone filling certain roles in relation to providing supports under the National Disability Insurance Scheme (NDIS). The NDIS is a national scheme to provide supports and funding to people with a disability. The scheme is principally legislated through the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The applicant, GHT, has a background in nursing. He has a long-standing diagnosis of schizophrenia. On 29 March 2021, the applicant was granted an NDIS Worker Check clearance. At that time, he was working in aged care.
On 15 February 2023, the applicant was convicted of an offence of using a carriage service to make a hoax or threat by emailing the Department of the Prime Minister and Cabinet on multiple occasions in December 2022. The applicant appealed the sentence, as result of which he was discharged with no convicted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCATAD 16
Decision Date: 16 January 2025

CaseChat Overview and Summary

The case of GHT v Children's Guardian involved GHT, an individual seeking to provide services under the National Disability Insurance Scheme (NDIS), and the Children's Guardian, who was responsible for ensuring that those working with children and vulnerable individuals met certain standards. The dispute arose when the Children's Guardian refused to provide GHT with a clearance, citing concerns about GHT's mental health and the potential risk of harm to children. The matter was heard by the Administrative Appeals Tribunal, which was tasked with reviewing the Children's Guardian's decision.

The legal issues before the Tribunal included whether the Children's Guardian had the authority to refuse clearance based on the information available, and whether the decision was made in accordance with the relevant legislative framework. The Tribunal needed to assess the evidence related to GHT's mental health, the potential risk to children, and whether the decision-making process complied with procedural fairness and the applicable laws.

In its decision, the Tribunal found that the Children's Guardian had acted within their authority and had provided adequate reasons for their decision. The Tribunal concluded that the evidence supported the view that GHT's mental health issues posed a risk of harm to children, and that the decision was made in accordance with the legislative requirements. The Tribunal also noted that the Children's Guardian had considered GHT's application fairly and had provided an opportunity for GHT to respond to the concerns raised.

The Tribunal affirmed the decision of the Children's Guardian and denied GHT's application for review. Additionally, the Tribunal made non-publication orders to protect the identity of the parties and the sensitive nature of the information involved.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	GHT v Children’s Guardian [2025] NSWCATAD 16
Hearing dates:	15 August 2024 & 18 October 2024, last submissions due 8 November 2024
Date of orders:	16 January 2025
Decision date:	16 January 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern, Senior Member S Davison, General Member
Decision:	The Tribunal affirms the decision under review.
Catchwords:	ADMINISTRATIVE LAW – NDIS worker check clearance – risk of harm – mental health issues – PROCEDURAL – non-publication orders
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code Act 1995 (Cth). Health Practitioners Regulation National Law NSW National Disability Insurance Scheme Act 2013 (Cth) National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 National Disability Insurance Scheme (Worker Checks) Act 2018 NSW National Disability Insurance Scheme (Worker Checks) Regulation 2020
Cases Cited:	Council of New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 FMZ v Children’s Guardian [2023] NSWCATAD 86 FPV v Children's Guardian [2023] NSWCATAD 59 FVD v Children's Guardian [2023] NSWCATAD 329 Okunwabusor v Children's Guardian [2023] NSWCATAD 199 Saba v Children's Guardian [2023] NSWCATAD 156
Texts Cited:	None cited
Category:	Principal judgment
Parties:	GHT (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C Wong (Applicant) A Zheng (Respondent) Solicitors: Crown Solicitor (Respondent)
File Number(s):	2024/00154689
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), the disclosure of the applicant’s name, including any further identifying information as provided in connection with these proceedings, is prohibited. Pursuant to s 64(1)(c) of the CAT Act the disclosure of evidence given or matters in documents lodged with the Tribunal in relation to the applicant’s medical records or health conditions is prohibited.