Olunwabusor v Children's Guardian

[2023] NSWCATAD 199

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Olunwabusor v Children's Guardian [2023] NSWCATAD 199

Hearing dates:

5 April 2023

Date of orders:

31 July 2023

Decision date:

31 July 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
M Maher, General Member

Decision:

The decision of the respondent dated 2 August 2022 to issue the applicant with an exclusion and refuse to grant the applicant a clearance is affirmed.

Catchwords:

ADMINISTRATIVE LAW – NDIS Worker Checks - child protection –risk of harm - whether risk real and appreciable– risk of harm likely or significant– weight of evidence of risk – current risk – non publication order – whether open justice served.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Criminal Code (Cth)

Drug Misuse and Trafficking Act 1985 (NSW)

Evidence Act 1995 (NSW)

National Disability Insurance Scheme Act 2013 (Cth)

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

National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018

Cases Cited:

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] NSWCATAD 164

Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988

Commission for Children and Young People v FZ [2011] NSWCA 111

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Council of the Law Society of NSW v CZD [2017] NSWCATOD 31

Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84

FBC v Children’s Guardian [2021] NSWCATAD 286

FPV v Children’s Guardian [2023] NSWCATAD 59

John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465

Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

LA v Commissioner for Children and Young People [2012] NSWSC 1454

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

R v Commission for Children and Young People [2002] NSWIRComm 101

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

Roberts v Balancio (1987) 8 NSWLR 436

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152

Tilley v Children’s Guardian [2017] NSWCA 174

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Emmanuel Olunwabusor (Applicant)
Children’s Guardian (Respondent)

Representation:

Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2022/00342251

Publication restriction:

Nil

Reasons for Decision

Introduction

1. The applicant, by an application dated 10 November 2022 and filed 14 November 2022, seeks administrative review pursuant to section 41(1) of the National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW) (the NDIS Worker Checks Act) of an internal review decision notified on 20 October 2022 affirming the original decision made on 2 August 2022 by the Children’s Guardian to refuse to grant the applicant an NDIS worker check clearance. This decision is referred to as the “refusal decision” in these reasons. The refusal decision notified on 20 October 2022 was a review conducted under section 53 of the Administrative Decisions (Review) Act 1997 (NSW).

2. The clearance was refused because the Children’s Guardian was satisfied that the applicant poses a risk of harm to persons with a disability.

3. The applicant has engaged in a series of dishonesty offences by participating in 2020 with an organised criminal enterprise to obtain personal financial gain. The applicant, however, considered himself a victim. The offences were ones in which he and his co-offenders misled innocent parties to transfer money to bank accounts controlled by the applicant and his co-offenders. The details of the offending behaviour are set out in more detail later in these reasons.

4. The Children’s Guardian opposed the application for review.

5. There has been no non-publication order made in this matter under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant.

Legal Context of the Administrative Review

6. The NDIS Worker Checks Act is aptly described in the second reading speech in the NSW Parliament, on 24 October 2018, as the first Federated worker screening scheme which will be applicable through Australia, designed to minimise the risk of harm to people with disability, by preventing workers that pose a risk of harm to such persons from working in certain roles within the NDIS. The scheme has some similarities to the Working with Children Check clearance scheme in relation to children but also has distinguishing features not present in that scheme.

7. Where an application is made to the Children’s Guardian for a clearance under section 6 of the NDIS Worker Checks Act, the Children’s Guardian must grant the clearance unless the application is to be refused pursuant to section 8 of that Act.

8. Section 8 (2) of the NDIS Worker Checks Act relevantly provides that an application 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.

9. The definition of a “disqualified person” in section 5 (1) of the NDIS Worker Checks Act is a person who has been convicted of an offence described by the National Disability Insurance Scheme (Worker Checks) Regulation 2020 (NSW) (NDIS Worker Checks Regulation) as a disqualifying offence, and the offence was committed by the person when they were an adult.

10. The applicant is not a “disqualified person”.

11. A risk assessment is required when the circumstances set out in section 14 of the NDIS Worker Checks Act apply. The provisions of section 14 are:

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.

12. In this matter the risk assessment was determined by the Children’s Guardian to be appropriate pursuant to section 14 (1) (c) of the NDIS Worker Checks Act due to the applicant’s criminal history.

13. The Children’s Guardian when conducting a risk assessment is to assess and determine whether a person poses a risk of harm to persons with disability, as required by section 13 (1) of the NDIS Worker Checks Act.

14. Section 13 of the NDIS Worker Checks Act provides as follows:

13 Nature of risk assessment

(1) A risk assessment is an assessment and determination by the Screening Agency as to whether a person poses a risk of harm to persons with disability.

(2) A reference in this Act to a risk of harm to persons with disability is to be interpreted in accordance with the following principles:

(a) the risk of harm must be a real and appreciable risk of harm,

(b) the risk of harm does not need to be likely or significant,

(c) the risk of harm need not arise from recent events.

(3) In this Act, harm includes but is not limited to the following:

(a) personal harm, which means any detrimental effect on a person’s physical, psychological, emotional or financial well-being,

(b) sexual harm, which means non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm).

15. ‘Risk of harm’ and ‘harm’ are thus given definition in the context of the legislative scheme and the detrimental effect of harm includes a broad range of effects namely physical, psychological, emotional or financial well-being.

16. By reason of clause 5 of schedule 1 of the NDIS Worker Checks Act a reference 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.

17. Section 16 of the NDIS Worker Checks Act sets out matters which the Children’s Guardian is required to consider for the purposes of the risk assessment. Those matters include:

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.

Summary of outcome of this Administrative Review

18. The conclusion of the Tribunal after considering all of the evidence and submissions is that the correct and preferable decision is that the applicant poses a risk of harm to persons with disability, and the decision to refuse a clearance ought to be affirmed. The reasons for this conclusion are set out in more detail in the following paragraphs of these reasons.

The Evidence

19. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal, includes:

1. Application for Administrative Review of the applicant filed 14 November 2022: Exhibit 1;

2. Bundle of documents filed by the applicant on 16 January 2023: Exhibit 2;

3. Respondent’s Documents filed pursuant to section 58 Administrative Decisions (Review) Act 1997 filed on 12 December 2022: Exhibit 3;

4. Submissions of the applicant filed 23 March 2023 dated 8 March 2023: Exhibit 4;

5. Submissions of the respondent filed 1 March 2023 dated 28 March 2023: Exhibit 5.

20. The applicant gave oral evidence and was cross-examined by the representative for the respondent. The applicant’s primary language is English.

21. The parties made oral submissions after the conclusion of the evidence.

22. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

23. The NDIS Worker Checks Act came into force on 28 November 2018.

24. The requirement to obtain a clearance under the NDIS Worker Checks Act is prescribed by the National Disability Insurance Scheme Act 2013 (Cth), The National Disability Insurance Scheme (Practice Standards-Workers Screening) Rules 2018, and the Intergovernmental Agreement for the NDIS.

25. The screening process for the grant of a clearance in New South Wales is carried out by the designated “Screening Agency”. Pursuant to section 4 of the NDIS Worker Checks Act the “Screening Agency” is the person or body appointed by the Minister by order in writing published in the Gazette as the screening agency for the purpose of the NDIS Worker Checks Act. The NSW Government Gazette (No 58) dated 27 March 2020 published that the Minister for Families, Communities and Disability Services appointed the Children’s Guardian as the “Screening Agency” for the purpose of the NDIS Worker Checks Act.

26. The paramount consideration under the NDIS Worker Checks Act is prescribed by section 3:

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.

27. The Tribunal may review the administrative refusal decision because of the provisions of section 41 of the NDIS Worker Checks Act which are:

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.

28. Pursuant to section 43 of the NDIS Worker Checks Act an “…application to the Tribunal for an administrative review of a decision under this Act does not affect the operation of the decision under review or prevent the taking of action to implement that decision.”

Standard of Proof and Onus of Proof

29. 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 review of the refusal to grant an NDIS worker check clearance to the applicant: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]. These matters and those in the following paragraphs have been considered by the Tribunal in the context of other administrative reviews: for example in FBC v Children’s Guardian [2021] NSWCATAD 286.

30. 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.

31. The Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17].

32. The NSW Supreme Court has accepted that there is no onus of proof upon either party in an administrative review. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, it was said at [74]:

“[74] Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

33. There is thus no onus of proof and consequentially a refinement of the civil standard of proof (the balance of probabilities) to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis “) at [36]-[39], (referred to with approval by Justice Button in Bronze Wing), as stated in the following extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

34. The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017, after granting leave to appeal, dismissed the appeal from Justice Button’s decision and orders in Bronze Wing.

35. Neither party bears an onus of proof in relation to an application for administrative review under section 41 of the NDIS Worker Checks Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40] partially extracted below. The purpose of the NDIS Worker Checks Act is to achieve the paramount consideration stated in section 3. The Tribunal’s role in reviewing a decision to refuse an NDIS worker’s check 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. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent, to determine the correct and preferable decision.

36. There is a ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons because section 41(3) of the NDIS Worker Check Act states:

…

(3) An applicant for administrative review must fully disclose to the Tribunal any matters relevant to the application…

37. The practical or forensic onus, but not the legal onus, consistent with the disclosure requirement, may be satisfied by the applicant. In support of that proposition the Tribunal refers to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated by the plurality in the High Court, comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

Required Considerations

38. The screening agency must consider the matters under section 16 of the NDIS Worker Checks Act.

39. The applicant is also required to fully disclose any matters relevant to the application as observed earlier: section 41(3) of the NDIS Worker Checks Act.

40. The Tribunal will also consider the matters in section 16 of the NDIS Worker Checks Act when reviewing the refusal decision.

41. The Tribunal is required to consider the evidence which is presented by the parties. The determination of the weight which can be given to any particular allegation or evidence, despite or because of the source from which it emanates, is ultimately a matter for the Tribunal.

Other matters

42. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), which is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: see Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

43. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence which resulted in the convictions: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any other criminal charges or reports of behaviour which may impact upon the risk assessment are also able to be considered, if considered appropriately relevant, for the same reasons.

44. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17(1)(b) of the Civil and Administrative Tribunal Act.

45. The jurisdiction of the Tribunal is protective and not punitive in nature: see section 3 of the NDIS Worker Checks Act; compare with AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130]. The applicant has already been punished for his crime.

Consideration of the evidence

46. The Children’s Guardian was required to consider the matters referred to in section 16 of the NDIS Worker Checks Act. The evidence received by the Tribunal is considered under each of the subsections of section 16. Some of the subsections may be thought less relevant and may be given less weight than others. However, each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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 (known as a ‘relevant event’), and how it is relevant to NDIS work

47. The applicant is now aged 40, faced charges in the NSW District Court and pleaded guilty on 29 November 2021 to conduct which occurred between 31 May 2020 and 29 July 2020.

48. The applicant acted with his criminal syndicate associates and issued invoices from legitimate businesses containing altered bank transfer details for his associates. The victims deposited money into the bank accounts of the applicant’s associates. The objective of the criminal group was to obtain a financial reward from the proceeds of business email compromises, and to launder the proceeds through a variety of bank accounts, foreign currency exchanges, gold bullion purchases and crypto currency remitters.

49. The applicant used “Signal” and “WhatsApp” conversations with his associates dealing with the identification and bank account information of other people associated with the applicant. The applicant personally monitored transactions made to the various bank accounts.

50. When the applicant was arrested on 20 July 2020 at his workplace and a search warrant was executed, his electronic devices were seized for examination. The applicant participated in an electronically recorded interview and at the time denied all allegations.

51. The applicant was initially charged with 3 offences. The first was an offence under section 93T(1A) of the Crimes Act 1900, that he did knowingly participate in a criminal group, by directing the activities of the group, knowing or being reckless as to whether that participation contributes the occurrence of criminal activity. The second was an offence under section 193B(2) of the Crimes Act that he did knowingly deal with the proceeds of crime being $1670 knowing that it was the proceeds of crime. The third was an offence under section 192K of the Crimes Act that he possessed identification information with the intention of facilitating the commission of an indictable offence, dealing with proceeds of crime. The applicant pleaded guilty to the 2 charges under section 193B(2) and 192K of the Crimes Act. The other charge did not result in any conviction.

52. The applicant was convicted on 29 November 2021. The applicant was sentenced to a Community Corrections Order for a period of two years and three months commencing from the date of conviction. Standard Conditions of the order were that the applicant must not commit any offence and must appear before the court if called upon to do so at any time during the term of the order. In addition, the applicant was required to participate in a rehabilitation program or receive treatment as directed by Community Corrections, abstain from the consumption of drugs, and prohibiting association with named persons from the criminal syndicate. A supervision condition was also imposed.

53. The statement of facts for the offence under section 193B(2) included that a real estate agency was contacted in June 2020 by a member of the syndicate, purporting to be a landlord client, requesting a change in bank account details into which rent was deposited. The applicant directed one of his co-offenders to withdraw the cash from the account into which the rent was deposited. Then the applicant directed the co-offender to send half of the cash withdrawn through an international money transfer machine to an account in a named country. The balance of the cash he instructed them “should b (sic) shared just keep a bag of shit for me yous (sic) can have the rest. Send the receipt to me so I can pass it on to him [the person in Thailand].” The co-offender sent the 2 receipts for the transfers. The applicant agreed when cross-examined the “shit” he referred to was drugs. The co-offender then sent the applicant, as he had directed, a screen shot of the receipts for the transfer to the international bank account. The drugs the applicant wanted to be purchased were cocaine and cannabis. The applicant claimed to be under the influence of cocaine at the commencement of his offending but also stated that this was a once off. Additionally, the applicant disclosed in the Sentencing Assessment Report ongoing cannabis use up to 3 times a week, self-medicating to ease his mental health symptoms.

54. The offence under section 192K of the Crimes Act that he possessed identification information with the intention of facilitating the commission of an indictable offence, dealing with proceeds of crime, was also contained in the statement of facts. The identification information was stated to be 8 different accounts for which the applicant had access including having requested the passwords so that he could monitor the transactions.

55. These offences are not presumptively disqualifying offences pursuant to clauses 3 and 5, and schedule 2 of the National Disability Insurance Scheme (Worker Checks) Regulation 2020 (NSW). A risk assessment conducted in relation to presumptively disqualifying offences presumes that a person who had committed such an offence poses a risk of harm to persons with a disability.

56. If, however, the victim was a “vulnerable person” as defined in clause 3 of the National Disability Insurance Scheme (Worker Checks) Regulation the offence under section 192K of the Crimes Act is a presumptively disqualifying offence.

57. The offences in relation to the applicant are sophisticated and planned offences. The applicant pleaded guilty.

58. The applicant minimised his involvement in the offences by providing an alternate version of events and also claiming he was unaware of the fraudulent activity. In the sentencing assessment report prepared in the sentencing process, it is stated that the applicant approached his co-offenders as he wanted to emulate their “lavish lifestyle”. The applicant also appeared to apportion blame onto his co-offenders by stating that his involvement in the offences was under coercion.

59. At the time of the offences the applicant was employed in two positions and had stable income but also claimed that he had financial stresses due to poor management of his income by his partner. The applicant denied making any financial profit despite receiving $1000 to invest into a digital currency network during the early stages of his offending.

60. The applicant reported that he was experiencing symptoms of depression since 2019. The applicant was referred to psychological intervention through a mental health care plan and also took some prescribed medication.

61. The applicant was referred to an alcohol and other drug counsellor through Odyssey House for which he was initially assessed and attended on two occasions in 2022.

62. The risk which is posed by the applicant arises from his demonstrated history of exploiting personal and financial information to the detriment of others and for his own benefit. If the applicant were to engage in such behaviour again by exploiting NDIS participants’ personal finances or plan funds for his personal gain, those participants would be exposed to the financial, emotional and psychological distress associated with that betrayal of trust.

63. The primary convictions related to organised criminal activity motivated by financial gain. It is apparent that the NDIS work is likely to present opportunities for organised financial criminal activity.

The length of time that has passed since a relevant event occurred

64. There has not been a significant length of time since the offences were committed. That event is relatively recent.

65. The applicant is still subject to a Community Corrections Order and it would be expected that he will be on his best behaviour during the period of that order. The conditions of the CCO must be adhered to, or the applicant will be in breach.

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

66. The applicant was not in a relationship with the victims. The applicant was not in a position of authority over the victims.

67. The applicant was deceptive and possessed some degree of organisation in issuing orders to other participants in the fraudulent activity directed to the unsuspecting victims.

68. The participants in the NDIS are in many cases less capable in detecting financial abuse, and protecting themselves from financial abuse directed towards them, than the victims of the applicant’s crimes. The purpose of the NDIS worker checks is to protect vulnerable people with a disability.

The person’s criminal history, history of misconduct and other relevant history including whether there is a pattern of concerning behaviour

69. The applicant committed the offences in 2020 and has not reoffended.

70. The offences for which the applicant was sentenced involved a pattern of concerning behaviour.

The person’s conduct since a relevant event

71. The applicant has worked in the disability sector since 2016. The applicant was working in the sector when he committed the offences.

72. The applicant has moved interstate to be with his family.

73. Since the offences were committed the applicant was charged with “make threat to kill” in Victoria. The applicant states that this was actually a threat of self-harm.

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

74. The applicant is no longer on any prescribed medication for his mental health issues. The applicant stated in the sentencing assessment report process that he used cannabis up to three times per week, self-medicating to ease his mental health symptoms.

75. The applicant did attend Odyssey House for counselling in relation to drug and alcohol use. That counselling has not continued. The applicant claimed to be under the influence of illicit drugs and alcohol when he agreed to become involved with his co-offenders and claimed as referred to in the sentencing assessment report that this impacted his decision-making.

76. The applicant had no prior criminal offences before the matters which he pleaded guilty to in November 2021.

77. The applicant claimed to be in a financially stressful position at the time of his offending, however he was employed in two positions and had stable income. The crimes were clearly motivated for financial gain.

78. The applicant has shown some insight into the impact of the offences on his victims while acknowledging that they would have incurred personal financial losses. As previously identified the applicant also saw himself as a victim.

79. A great deal of community trust is reposed in people undertaking NDIS work. There is a financial incentive to complete the work and there is limited evidence that the applicant would not be motivated in stressful circumstances to engage in exploitative behaviour, including adversely affecting emotional or financial well-being.

80. It is considered that in assessing the evidence as to risk, the Tribunal is not required to find that there is a likelihood of repetition 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.

Such other matters as the Children’s Guardian considers appropriate

81. The Children’s Guardian submitted that the applicant’s comments in relation to the offending are inconsistent with the agreed facts and his guilty plea. It is submitted that this suggests the applicant minimises his wrongdoing and involvement. This submission is consistent with the observations in the sentencing assessment report and his view of himself as a victim.

82. There is no non-publication order made in this review. The Civil and Administrative Tribunal Act 2013 (NSW) provides, in section 64:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

83. It is evident from the Civil and Administrative Tribunal Act and the NDIS Worker Checks Act that the principles of open justice apply to proceedings under those Acts.

84. The Court of Appeal in the case of Tilley v Children’s Guardian [2017] NSWCA 174 considered a non-publication or suppression order following a risk assessment in a protective jurisdiction at the conclusion of the substantive matter.

85. 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.

86. The principles of open justice were conveniently referred to in Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 at [26]–[28]:

26. The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476–477):

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is ‘necessary to enable it to act effectively within’ its jurisdiction.

27. Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991-1992) 26 NSWLR 131. There his Honour explained:

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

28. The reports contain many authorities dealing with the principle, and the exceptions to it. While the core principle remains the touchstone, particular care must be exercised when considering the precise terms of a statutory provision that provides exceptions to the principle.

87. The question for the Tribunal, when considering whether to make a non-publication order under s 64(1) of the Civil and Administrative Tribunal Act 2013, is whether the Tribunal is satisfied that the making of the order sought is desirable ‘by reason of the confidential nature of any evidence or matter or for any other reason’.

88. The Tribunal considers that the name of a person who brings an application under the NDIS Worker Checks Act is expected to be disclosed unless there is a good reason for the making of a non-publication order. The applicant’s prior criminal proceedings were not the subject of a suppression order. The risk of embarrassment or humiliation is not a good enough reason (see Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]).

89. There is no confidential evidence or matter, or any other good reason for a non-publication order in relation to the applicant.

Conclusion

90. The applicant’s willingness to engage in criminal activity for personal gain is a serious and concerning aspect of his personality. There is a likelihood of significant financial and other psychological or emotional harms to any future victims including people with disability.

91. Section 13 of the NDIS Worker Checks 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.

92. A real and appreciable risk is a risk that is greater than the risk of any adult preying on a person with disability: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]; 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 at [33]; FPV v Children’s Guardian [2023] NSWCATAD 59.

93. 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. The detrimental effect of type of harm includes a broad range of effects namely physical, psychological, emotional or financial well-being.

94. The applicant’s decision to participate in a scheme which targeted innocent people and extract from them their money, by deception, was extremely unwise and motivated by personal gain.

95. In all the circumstances, based on the material before it, the Tribunal on its own assessment of the applicant, is satisfied that the applicant does pose a real and appreciable risk to the safety of people with disability.

96. The correct and preferable decision is to affirm the decision of the Children’s Guardian.

Orders

97. The orders of the Tribunal are that:

1. The decision of the respondent dated 2 August 2022 to issue the applicant with an exclusion and refuse to grant the applicant a clearance is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 31 July 2023