Horner v Children's Guardian

[2024] NSWCATAD 173

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Horner v Children’s Guardian [2024] NSWCATAD 173

Hearing dates:

25 March 2024

Date of orders:

27 June 2024

Decision date:

27 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
K Stubbs, General Member

Decision:

1. The Tribunal grants the applicant an extension to file the application pursuant to s 41 of the Civil and Administrative Tribunal Act 2013.

2. The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – national disability insurance scheme (NDIS) worker check – assessment of risk

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

National Disability Insurance Scheme (Worker Checks) Act 2018

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

Tara Horner (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
M Whitbread (Respondent)

Solicitors:
Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00430129

Publication restriction:

N/A

REASONS FOR DECISION

1. On 24 February 2022 Ms Horner applied for a NDIS workers check clearance (“Clearance”). On 20 December 2022 Ms Horner was sent a notice of proposed refusal of the application. On 6 June 2023, Ms Horner was informed that the Children’s Guardian had refused to grant the Clearance pursuant to s 8(2)(b) of the National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW) (“the Act”). On 26 October 2023, the Children’s Guardian affirmed its decision and on 24 November 2023, Ms Horner made an application to this Tribunal for an administrative review of the Decision pursuant to s41(1)(a) of the Act. The application was filed one day after the end of the 28 day period, but the respondent does not oppose an extension of time. The extension of time is granted.

2. For the reasons that follow, we have decided that the correct and preferable decision is a that a Clearance should not be provided to Ms Horner, we explain why below.

The Law

3. Section 63 of the Administrative Decisions Review Act 1997 (“the ADR Act”) provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law.

4. The paramount purpose of the Act, set out in s 3 is to protect the “health, safety and well-being of people with disability”. The protection is from, but is not limited to; “abuse, violence, neglect and exploitation”.

5. The Act places a requirement on a person engaged in NDIS related work to hold a Clearance. The screening process for the making of Clearances falls on the Children’s Guardian: s4 of the Act and NSW Government Gazette (No 58) dated 27 March 2020.

6. The respondent must refuse to issue a Worker Check if the applicant is a “presumptively disqualified person”;s14(1)(a) or if a risk assessment is required pursuant to Pt 3 of the Act and the assessment is that “the applicant poses a risk of harm to persons with a disability”:s13(1).

7. In determining whether there is a risk, the Tribunal must consider the matters set out in s16(a) to (g) of the Act.

16 MATTERS TO BE CONSIDERED IN RISK ASSESSMENT

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

(a)

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

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

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

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

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

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

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

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

The Evidence

8. Ms Horner relied on a statement from her employer and another person. She had previously provided numerous character references to the respondent, and these were included in the material relied on by the respondent filed pursuant to s58 of the ADR Act. Ms Horner also provided a written response to the s58 material filed by the respondent, including a character references, a reference from her employer and submissions. Ms Horner was cross examined.

9. The following is a chronology of events taken from material before the Tribunal, including the report of Mr Nolan, general and forensic psychologist dated 12 August 2016 and Ms Horner’s oral evidence. Mr Nolan prepared the report for the purpose of informing the court on charges of possession and supply of prohibited drugs.

10. Ms Horner was raised in a loving family environment. She was a good student and gained a Bachelor of Nursing in 2008.It was a career she wanted from the age of 9. Ms Horner has worked as a Registered Nurse in a number of different areas and enjoyed her profession.

11. Ms Horner is close to her family. She nursed her terminally ill grandmother until she was moved to palliative care. She also cared for her uncle who was a severely schizophrenic patient.

12. On 24 January 2016, Ms Horner was charged with supply and possession of the prohibited drug Buprenorphine when visiting her partner who was a prisoner in a correctional centre at the time.

13. On 16 February 2016, Ms Horner received a bond pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the charge of possession of prohibited drugs on 10 January 2015 and was sentenced to an Intensive Correctional Order for 1 year and 8 months.

14. Ms Horner made a decision to not disclose her convictions in 2015 and 2016 to Australian Health Practitioner Regulation Agency (“APHRA”) and let her nursing registration lapse.

15. In terms of personal relationships, Mr Nolan opined that Ms Horner’s clinical profile suggested that “she has a history of involvement in intense and volatile relationships”.

16. Ms Horner told Mr Nolan that “even though she felt she would be caught (bringing drugs into the prison), she felt compelled to do what she was requested to do (by her partner).”

17. Mr Nolan formed an opinion that at that time, Ms Horner lacked self-value and was suffering from significant thinking and concentration problems, accompanied by prominent distress and dysphoria. Ms Horner described herself as “very meek and unassertive person who has difficulty standing up for herself, even when assertiveness is warranted.”

18. Ms Horner’s evidence was that her relationship with the man in prison ended while he was incinerated as she understood that the relationship contributed to her wrongdoing and that she was tricked by him.

19. In 2020, Ms Horner connected again with her ex-partner who was previously an in prison. Ms Horner’s evidence was that they had a mutual friend, Rebecca.

20. On 29 October 2020, Rebecca called her from a carpark, she was in a panic about a deal done wrong that she believed her ex-partner could fix. Ms Horner telephoned her ex-partner about the deal, which she initially though involved drugs but later came to realise involved a gun.

21. On 26 October 2022, Ms Horner was sentenced to a community correction order for 12 months in relation to a charge of unauthorised supply of a pistol part. The incident occurred in 2020. Ms Horner assisted in securing part of a firearm (a magazine) to supply to another person.

22. In part, the police relied on agreed facts which included a transcript of intercepted text messages exchanged between Ms Horner and her ex-partner. The messages showed that Ms Horner knowingly took part in the supply of the firearm part that was missing from the pistol after the fact. Ms Horner denied that she was assisting her friend for economic gain.

Application of the facts to the law

16(a) the nature, gravity and circumstances of any offence and how it is relevant to NDIS work.

23. Ms Horner’s offending was naïve and unsophisticated. She offended to please her ex-partner and friend. Her offending was brazen and simple. She carried drugs into a prison in 2016 because her ex-partner tricked her into believing that his life was in danger and engaged in text messaging with her ex-partner entirely revealing the criminal activity to assist her friend in 2020 to finish off a deal to buy a gun.

24. The offending was injudicious and foolish. Ms Horner permitted herself to be manipulated by others and she paid scant regard to the gravity of the offending. Ms Horner’s desire to please others with whom she had personal relations overrode rational decision making.

25. Ms Horner’s offending is relevant for NDIS work because she would be placed in a position of trust working with vulnerable people.

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

26. The last offending occurred in October 2020.

16(c) the vulnerability of any victim and the person's relationship to the victim or position of authority over the victim

27. The drug supply offence involved her supplying her ex-partner with the drugs while he was in prison. The firearm part supply offence involved an imitation firearm. It is not clear whether Ms Horner knew that the firearm was imitation or real. We do not consider that her friend or ex-partner were victims or were vulnerable.

28. There is no evidence of any victims of her crimes but potentially that could have been the case.

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

29. We accept that Ms Horner’s history can be described as a “pattern of concerning conduct”. The pattern of conduct was being involved in criminal activity to assist persons with whom she had a personal relationship with. It is also important to note that Ms Horner engaged with her ex-partner after finding out that he tricked her into smuggling drugs into prison. Ms Homer was gullible to involve herself in the criminal conduct.

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

30. Ms Horner is a single parent and from her accounts has managed to support her child in a financially and emotionally stable environment.

16(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.

31. The Children’s Guardian relied on a sentencing assessment report prepared in October 2022 by a Community Corrections Officer that Ms Horner identified her impulsivity and a lack of consequential thinking as contributing factors to her behaviour.

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

32. The Children’s Guardian did not raise any other matters.

Consideration

33. Ms Horner and her young daughter reside in stable accommodation with her disabled uncle. Ms Horner is a single parent and is the carer for her uncle. Ms Horner has ongoing positive support from her immediate family. Ms Horner is employed as a cleaner and her employer has given her a positive reference.

34. Based on the report of Dr Nolan in 2016 and the report of the Community Corrections Officer in 2020, Ms Horner’s offending occurred because of her association with people committing offences and negative peers.

35. We accept that Ms Horner is genuinely remorseful for her offending and has engaged in some self-reflection on her past conduct and its drivers. However we have concerns that she may again come under the influence of a person in her personal life who manipulates her into engaging in criminal conduct. If that was to occur, Ms Horner would pose a risk to NDIS participants. The nature of the risk to a NDIS participant being cared for by a person involved in criminal activity as the type engaged in by Ms Horner in the past could be multitudinous. It could be financial risk or psychological or emotional risk.

36. Had Ms Horner accessed some psychological assistance and provided evidence to the Tribunal that addressed concerns raised by Dr Nolan such as her “lacking in self-value and suffering from distress and dysphoria”, and the issues she herself identified in 2020 such as “impulsivity and lack of consequential thinking”, the decision may well have been different.

37. We are not confident that Ms Horner’s description of herself as “very meek and unassertive person who has difficulty standing up for herself, even when assertiveness is warranted” in 2016 has changed sufficiently.

38. Based on the evidence and material before the Tribunal, we find that Ms Homer would pose a real and appreciable risk to persons with a disability.

Orders

39. The Tribunal makes the following orders:

1. The Tribunal grants the applicant an extension to file the application pursuant to s 41 of the Civil and Administrative Tribunal Act 2013.

2. The application 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: 27 June 2024