Owabor v Children’s Guardian

[2024] NSWCATAD 34

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Owabor v Children’s Guardian [2024] NSWCATAD 34

Hearing dates:

27 October 2023

Date of orders:

12 February 2024

Decision date:

12 February 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Organ, Senior Member
J Herberte, General Member

Decision:

1. The order made on 6 July 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 revoked.

2. The decision of the respondent on internal review dated 9 June 2023 to issue Nosa Owabor with an exclusion and refuse to grant Nosa Owabor 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

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Criminal Code (Cth) 1995
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:

Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41NSWSC 523

FPV v Children’s Guardian [2023] NSWCATAD 59

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

Olunwabusor v Children’s Guardian [2023] NSWCATAD 199

Saba v Children's Guardian [2023] NSWCATAD 156

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Nosa Owabor (Applicant)
Children’s Guardian (Respondent)

Representation:

Lucky Iyare & Associates (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2023/00189900

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. On 2 June 2021, Nosa Owabor (‘the applicant’) applied for a clearance (the Clearance) pursuant to s 6 of the National Disability Insurance Scheme (Worker Checks) Act (NSW) 2018(NDIS Check Act). On 20 March 2023, the Children’s Guardian (Children’s Guardian) refused the Clearance pursuant to 11(1) of the NDIS Check Act after conducting a risk assessment because of the applicant’s criminal history.  The Children’s Guardian concluded that the applicant poses a risk of harm to persons with a disability.

2. On 9 June 2023 following an internal review of that decision at the applicant’s request, the decision was affirmed.

3. On 13 June 2023, the applicant filed in this Tribunal an application for administrative review of the Children’s Guardians refusing her a Clearance.

4. The Children’s Guardian opposes the application and maintains that the Tribunal should affirm the decision to refuse the grant of a Clearance to the applicant.

5. Having regard to the statutory provisions which we outline below, as well as the evidence considered in these proceedings, we find that the applicant continues to pose a risk of harm to persons with a disability. As a result, the Children’s Guardian’s decision is affirmed. 

Background

6. The applicant wishes to  work within the disability sector as a support worker. It is not disputed that the applicant is required to obtain a Clearance to continue working within the NDIS sector.

7. The applicant’s Clearance was refused by the Children’s Guardian.  The applicant has convictions for offences which are detailed below.

First offences

8. On 12 October 2015, the applicant was convicted of using an unregistered vehicle on the road, refusing to submit to a breath test, assaulting a police officer in execution of his duty, using an uninsured motor vehicle, and resisting a police officer in the execution of his duty.

9. Two of the charges being the charge of assaulting a police officer in execution of his duty and resisting a police officer in the execution of his duty, were contested by the applicant. Following a hearing the Magistrate was satisfied the offences were proven beyond reasonable doubt.

10. The applicant was convicted with no other penalty for the two driving offences, and received a 12 month s 10 bond for refusing to submit to the breath test. The applicant received a 12 month s 9 bond for the assault police officer in the execution of his duty and resist police officer in the execution of his duty offences.

Second offences

11. On 8 December 2020, the Applicant was convicted of the offence under ss 135.2(1) and 136.1(1) of the Criminal Code 1995 (Cth) of obtaining a financial advantage from a Commonwealth entity and knowingly by act or omission making a false or misleading statement in an application. The second offences involved two ‘rolled up’ counts. Pursuant to s 20(1) (a) of the Crimes Act 1914 (Cth) no sentence was passed on condition the applicant give security of $500 and be of good behaviour for 18 months. The offending conduct occurred between April 2016 and October 2018.

12. The offences according to the Summary of Facts document dated 4 December 2020 related firstly to the applicant receiving Austudy payments to which she was not entitled because she was employed and had received income of $81,181.65. The applicant failed to declare that income. This resulted in her receiving an overpayment of $17,082.78. Secondly, the applicant made claims to Services Australia on 28 February 2018, 4 September 2018 and 7 October 2018 being a claim for Newstart Allowance and two claims for Parenting Payment Partnered. In these claims for payment the applicant made false statements in relation to whether she had undertaken any paid work within the previous 12 months and also in relation to her bank accounts. The Summary of Facts in evidence records that Services Australia sent at least 51 letters and made five phone calls to the applicant advising her of her reporting obligations in the period both prior to and during which the offending occurred.

Third offence

13. On 10 December 2020 the applicant pleaded guilty to an offence pursuant to s 193C (2) of the Crimes Act 1900 (NSW), and was convicted of dealing with the proceeds of crime (less than $100,000). She was sentenced to a two year conditional release order. The offence occurred on 22 March 2018.

14. The Police Facts Sheet records that at the time of the offence the applicant was a student at a University. This offence involved the applicant receiving $5,000 credited to her bank account to which she was not entitled. The money had been deposited as a result of e-mail addresses of an employee of a travel company and a customer being hacked and an e-mail thread between them being intercepted by an unknown third party. A request was made for the deposit of funds to the applicant’s bank account. The applicant is noted to have logged into her bank profile associated with her bank account on multiple occasions on 22 March 2018. During a subsequent record of interview with Police the applicant is said to have denied any knowledge or memory of the $5,000 entering her bank account.

15. In a document entitled ‘Letter of Apology’ dated 26 November 2020 and addressed to the Magistrate at Newtown Local Court, the applicant says that a man she knew who lived in the United States offered to lend her $5,000 when she was pregnant with her daughter and she took him up on the offer. The applicant says she used the money to buy prams, cots and other items for her daughter. She says she repaid the money into the lender’s Nigerian bank account over the next year. It was only when contacted by Police that the applicant became aware the money which was loaned to her was from fraud.

The statutory framework

16. The objects of the NDIS Check Act and the paramount consideration are set out at s 3 of that Act. Those objects are that the health, safety and well-being of people with disability are to be paramount consideration. Further, those objects state that in particular, protecting people with a disabilty from abuse, violence, neglect and exploitation is the paramount consideration in the operation of the Act.

17. The National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018 (Cth) (“NDIS Rules”) made under the National Disability Insurance Scheme Act 2013 (Cth), set out requirements relating to worker screening for those who work within the National Disability Insurance Scheme (“NDIS”). The rules are part of the NDIS practice standards that seek to minimise the risk of harm to people with disability from the people who work closely with them.

18. The preamble to the NDIS Rules, sets out the worker screening process is one source of information that can support employers in fulfilling their responsibility in  recruiting appropriate staff and providing a safe environment for people with disability. 

19. The NDIS worker screening regime has been brought into effect through relevant Commonwealth, State and Territory legislation and policy.  In New South Wales, the Children’s Guardian is the responsible agency for implementing the NDIS worker screening scheme within New South Wales pursuant to the NDIS Check Act and the NDIS Check Regulations.

20. The relevant roles applicable to worker screening checks are set out in cl 5 of the NDIS Rules, which include a “risk assessed role” being defined as:

(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.

21. At cl 6 of the Rules, matters pertaining to the term “more than incidental contact” are defined. Division 4 of the Rules sets out 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;….

22. The requirements for a person making an application for a Clearance is set out in s 6 of the NDIS Check Act. There is no evidence before us that the applicant did not comply with s 6.

23. In determining an application for a clearance, the Children’s Guardian is to consider s 8 of the NDIS Check Act, which 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.

1. 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.

   24. In undertaking a risk assessment, the following provisions which are set out in s 14 of the NDIS Check Act, are relevant:

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.

25. When conducting a risk assessment , the primary question is whether a person poses a risk of harm to persons with a disability. Section 13 of the NDIS Check 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).

26. Section 16 sets out the matters to be considered in a risk assessment:

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 Tribunal’s jurisdiction

27. The Tribunal’s jurisdiction is protective and not punitive in nature. Consistent with the approach taken by the Tribunal differently constituted in FPV v Children’s Guardian [2023] NSWCATAD 59, (FPV) 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 being the health, safety and well-being of people with disability, is met when assessing and making findings on risk arising from a consideration of all of the available evidence and material before the Tribunal.

28. 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 Clearance to the applicant. In assessing the correct and preferable decision the Tribunal effectively stands in the shoes of the original decision maker. Although there is no specified criteria in the statute for the Tribunal to consider in our view, again consistent with the approach taken in FPV, we should consider the s 16 criteria from the NDIS Check Act, as the Children’s Guardian was required to do.

29. 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.

30. The Tribunal’s role when undertaking an administrative review of a decision is to make the correct and preferable decision having regard to the material before us and the applicable law: see Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63(1). Upon determining an application for review we may make orders that include an order to affirm the decision of the Children’s Guardian, or an order to set aside the decision of the Children’s Guardian and in substitution thereof making another decision (in this case an order to grant a Clearance): see ADR Act, s 63(3).

31. The Tribunal in FPV at [104] said that while s 13 of the NDIS Check Act provides that in assessing risk, that risk must be real appreciable however

in assessing the evidence as to risk the Tribunal is not required to find 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.

32. The Tribunal in FPV also made reference to the second reading speech of the NDIS Check Act which referred to the Act as 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).

The application for administrative review

33. The grounds for the application filed by the applicant are that the decision was wrong and erroneous and took into account irrelevant material. The decision is also said not to have taken into account the applicant’s evidence and give it proper consideration as required under the law. The applicant’s grounds say she does not pose a risk of harm to persons with a disability that should lead to her exclusion or bar under the relevant legislation.

34. 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 she is engaged in disability work.

35. The application for administrative review has been filed within time.

The hearing

36. The applicant was legally represented, gave evidence at the hearing and was cross-examined. The Children’s Guardian was legally represented. 

Documentary evidence

The applicant’s written material

37. Application filed 13 June 2022 with annexures - A1

38. Bundle filed 15 August 2023– A2

Children’s Guardian’s written material

39. The Children’s Guardian filed a bundle of material under s 58 of the ADR Act – on 12 July 2023 and further material on 1 September 2023.

40. The Children’s Guardian and the applicant relied upon written submissions. Each party made oral submissions at hearing at the conclusion of the evidence

Overview of Applicant’s evidence and supporting material

41. The applicant said she has obtained a number of qualifications including a Bachelor of Social Sciences and a Certificate 3 in Disability Support. She commenced a Master of Criminology but had to defer that course as her mental health was being impacted. Her goal is to work as a youth worker.

42. The applicant emphasised that she posed no risk to people with a disability and said she had never had a complaint made against her in the course of her previous work in this type of role. She says she has never been accused of dishonesty in dealing with people with a disability. She has since undertaken some short courses including a webinar ‘Influencing people and Outcomes’ and a Continuing Professional Development Course in Probity and Ethics both undertaken in November 2022. She says both of these have given her skills including in behaving ethically.

43. The applicant says her circumstances are now very different to what they were at the time of the dishonesty offences. She says she was ill at the time and had suffered a serious leg injury for which she required surgery and she then became pregnant with her first child. She was also overwhelmed by university at the time.

44. The applicant relies upon a report dated 13 December 2022 of Ms Kristy Delmas, a Psychologist who provided an opinion on the applicant’s current mental health, attitude to the offending behaviour and the risk the applicant poses to people with a disability.

41. Ms Delmas notes the applicant has not been subject to any complaints during her time working in the disability sector and has not received any complaints from her clients, their families or the organisation itself regarding her conduct as well as how she handles money provided to her. Ms Delmas concluded that the applicant’s risk of harm to people with a disability is low. Ms Delmas says the applicant’s approach and genuine passion for her work suggests her clients may thrive under her care.

42. Ms Delmas says if the applicant is restricted from working with people with a disability for 5 years this would contribute to a major decline in the applicant’s mental health potentially resulting in major depression or significant anxiety.

43. The applicant drew to our attention that she repaid the sum of $5000 deposited into her bank account and is in the process of repaying the amount of overpayment received from Centrelink.

Our consideration and findings

48. In conducting a review of the decision to refuse the applicant a Clearance, we are to consider the matters set out in s 16 of the NDIS Check Act.

(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

49. The conduct relating to the dishonesty offences with which the applicant has been charged and convicted are objectively serious. The second offences relate to the applicant failing to declare income she received of $81,181.65 which resulted in the applicant receiving an overpayment of Centrelink benefits of $17,082.78. The applicant also made false statements to Services Australia when making claims for Newstart and Parenting Payments. The Statement of Facts indicates that the applicant had been specifically questioned on 4 October 2013 about a discrepancy between her reported income and information received by Services Australia. The applicant said that she thought if she was a student she did not need to notify of her employment.

50. The report of Ms Kristy Delmas, Psychologist which was submitted in evidence by the applicant indicates the applicant gave a different account to Ms Delmas which was that she as she had only worked casually at the time, she did not think that failing to report her income would have such a large impact to the benefit she was going to receive from Centrelink. Ms Delmas goes on to say the applicant told her that if she had her time again she would have been more thorough in her reporting.

51. The third offence relates to dealing with the proceeds of crime being receipt of $5,000 into her bank account. The applicant has given different accounts of her knowledge of the funds into her bank account, initially saying when interviewed by Police that she did not have knowledge or memory of receipt of the sum. This was so even though she had logged into her bank account on multiple occasions on the day the funds were deposited into her account. Her letter of apology to the sentencing Magistrate in the Local Court says the funds were a loan from an acquaintance in the United States and that she used the money for the purchase of items for her baby. The report of the Psychologist Ms Delmas, says the applicant told her the funds were put into her account by a close friend of hers who was in America at the time and that he asked her to withdraw the funds that he had put into her account. In her evidence before the Tribunal the applicant was not able to satisfactorily explain why she had given these differing versions of events.

52. The applicant has engaged in offending conduct which involved a pattern of dishonesty for the purpose of financial gain. She demonstrated a repeated disregard for her legal obligation to report accurately and truthfully to a government agency. These matters are relevant to NDIS work. Participants in the NDIS  have been diagnosed with a disability. They are often vulnerable to exploitation and abuse because of their disability. NDIS workers often have access to information about participant’s medical conditions, financial affairs and other highly personal information.

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

53. The applicant’s offending occurred between 2016 and 2018. The last criminal conduct was 5 years ago. The applicant pleaded guilty to the dishonesty offences in 2020. However we note that detection of the dishonesty offences by the relevant authorities took a significant amount of time. The Conditional Release order to which the applicant was subject was for 2 years until 19 December 2022. This is very recent and as a consequence the applicant has not had an extended period of time where she has not been subject to the external scrutiny of the Conditional Release order. Notwithstanding the applicant’s evidence that she does not pose a risk to people with a disability, given what we regard is a limited amount of time that has elapsed since the relevant events, we cannot be confident that the pattern of dishonesty for financial benefit will not be repeated.

(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,

54. There was no evidence that the victims of the relevant conduct were vulnerable or that the applicant was in a position of authority over them at the relevant time.

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

(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,

55. In addition to the dishonesty offences, the applicant on 12 October 2015, was convicted of using an unregistered vehicle on the road, refusing to submit to a breath test, assaulting a police officer in execution of his duty, using an uninsured motor vehicle, and resisting a police officer in the execution of his duty. The applicant pleaded guilty to an agreed set of facts about this incident and following a contested hearing on some of the charges findings were made that the charges were made out beyond reasonable doubt. The applicant’s evidence before the Tribunal strongly suggested she did not accept all of the findings that were made by the Magistrate and this is borne out in the account of the events given by Ms Delmas in her report that the applicant had been assaulted by police officers when she was arrested for driving an unregistered vehicle.

56. In interviews with Services Australia and NSW Police we find the applicant gave inconsistent and evasive answers to questions about the dishonesty offences. For example in interviews with Services Australia she was asked about why she had so many bank accounts and she proffered the reason that it was probably so she could save. However the agreed Summary of Facts to which she pleaded guilty set out that she had ‘concealed the existence of bank accounts into which her income was deposited.’ (Ex R1 tab 13B p. 98 [13] . Similarly, in an interview with Police the applicant said she only had two bank accounts. The Summary of Facts records that as at February 2018 the applicant had 15 bank accounts three of which she had disclosed and 12 which she concealed. ( Ex R1 tab 13B p. 101 [29].

57. The respondent sought to tender evidence of other activity involving the applicant which was the subject of interviews with the applicant conducted by NSW Police and Services Australia. The applicant through her Solicitor objected to the tender of this material. We note that the material had been produced under Summons and had been available to the applicant and her legal representative prior to the hearing. Given the protective nature of the jurisdiction, we determined to allow the admission of the material but noted it was clear this activity had not been the subject of any criminal charges or formal findings against the applicant.

58. The activity related to the the applicant’s bank accounts. Between 2017 to 2018 amounts totalling $823,000 approximately were allegedly credited to the applicant’s bank accounts. The applicant is alleged to have sent approximately $454,000 from a WorldRemit account (used to transfer funds internationally) to herself, her partner and other family members. After initially saying to Police that she did not recall where the money was from she subsequently said it was mostly from the sale of her parent’s home and a redundancy payment her father received. During cross-examination the applicant was referred to a number of specific transactions in her accounts however she said she had no clear memory of the transactions. She said she could not explain definitively what these were for although she offered possible explanations such as being for funds she sent overseas for family members medical treatment. The applicant acknowledged that although she was bothered by not being able to account for these amounts she did not take steps to investigate these amounts and transactions.

59. The evidence available to us is insufficient to draw any firm conclusions about the transactions referred to in this material. We agree however with the respondent’s submission that the applicant’s apparent lack of curiosity and lack of investigation by her regarding these funds and transactions is surprising. It is the respondent’s submission that the relevance for these proceedings is that it casts some concern about whether the applicant would take action to report or investigate suspicious financial activity she became aware of in relation to working with people with a disability.

60. In our view the nature of the applicant’s offending and her evidence before the Tribunal at hearing, establish significant concerns as to risk regarding persons with disabilities. Overall we found the applicant’s evidence before the Tribunal was less than candid. She sought to explain her lack of knowledge about certain events and why she had given different versions of events around her dishonesty offences by blaming memory difficulties. Her lapses in memory coincided a number of times with being asked a question to which the answer might not cast the applicant in a favourable light. There was no compelling objective evidence available to us that supported her assertion including any formal assessment and diagnosis of cognitive impairment. Although not asked to specifically assess the applicant’s cognitive capacity, in cross-examination Ms Delmas said she did not see any signs of cognitive impairment in the applicant in her interview with her.

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

61. The applicant has not been detected for any criminal matter since 2018. She has undertaken university study and successfully completed a Bachelor of Science degree in 2020 and two short courses to further her understanding of ethical issues and responsibilities in working with vulnerable people. We observe however that when asked in cross examination to explain what she had learned from these courses she spoke of the need to be careful about not discriminating against individuals because of their religion. With prompting she said also said she would need to be careful if there was money that was missing belonging to a client and that she would need to check the source of any large sums of money she received. The applicant expressed remorse and says she has developed insight. However she was not able to articulate what it was she had learned from either her previous conduct or further study she has undertaken that would mitigate against risk to persons with a disability.

62. The applicant was engaged in employment until November 2022 when her NDIS Work Check was refused.

63. The applicant has repaid the $5,000 she received in relation to the deal with the proceeds of crime offence and is repaying her Centrelink debt. Overall these matters weigh in favour her application.

64. We have had regard to the statements submitted by the applicant from family members and former employers which are supportive of the applicant being granted a NDIS Worker’s Check and their belief that she is remorseful and has accepted responsibility for her actions.

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

65. The respondent submits that limited weight should be attached to the report of Ms Delmas and her opinion that the applicant’s risk of harm to persons with a disability if granted a Clearance is low. The Tribunal agrees that Ms Delmas’ opinion is based, at least in part, on the applicant’s self-reporting about the circumstances of the dishonesty offences which is inconsistent with the facts to which the applicant pleaded guilty.

66. The respondent also submits the applicant was not able address what she has learned from the courses which she has undertaken subsequent to the dishonesty offences. The respondent says the applicant’s memory lapses were convenient and were to avoid difficult questions.

Conclusion

67. In our view there has been a pattern of concerning conduct on the applicant’s part. The applicant’s willingness to engage in criminal activity for personal gain is both serious and concerning as is her failure to have regard to her lawful obligations in reporting accurately to a government agency. There is great trust reposed by the community in people undertaking NDIS work and a breach of that trust would include conduct which could adversely affect their emotional, psychological or financial well-being.

68. We acknowledge the evidence from a Psychologist that if the applicant is restricted from working with people with a disability for 5 years this would contribute to a major decline in the applicant’s mental health potentially resulting in major depression or significant anxiety. However, the intention of the legislature is clear that the NDIS Check Act is a protective and preventative scheme which prioritises the right of NDIS participants to receive safe services even when there could be adverse consequences for a worker.

69. We agree with the reasoning in FPV at [104], 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 significantrisk of harm but the presence of a risk of harm.

70. The expiry of the Conditional Release Order in December 2022 until now is still recent and this period of time is not in our view sufficient to be comfortably satisfied the applicant does not pose a risk of harm to persons with a disability. We are not satisfied the statements of support from other people provided by the applicant and the high regard in which she held by these people mitigate the risk which the applicant poses to people with a disability.

71. The weight of the available evidence leads us to conclude there is the presence of risk of a sufficient level to persons with a disability if the applicant is granted a NDIS Worker’s Check. That risk is not fanciful but is a real and appreciable risk.

72. 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.

73. As a result the correct and preferable decision is to affirm the decision of the Children’s Guardian.

Should there be a non-disclosure order?

74. The applicant has requested that the Tribunal continue the non-disclosure order over the applicant’s name. The respondent submits that there is no basis for a non-disclosure order in the circumstances of this case.

75. The starting point for consideration of this issue is as 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.

76. The Civil and Administrative Tribunal Act 2013 (NSW) provides, in s 64(1) that if 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’ it may of its own motion or on the application of a party may restrict disclosures by making one or more of the orders set out in s64(1)(a-d).

77. In the matter of Olunwabusor v Children’s Guardian [2023] NSWCATAD 199 (Olunwabusor) at [ 90] the Tribunal said 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. The Tribunal agrees with that position.

78. In both Olunwabusor and the matter of Saba v Children's Guardian [2023] NSWCATAD 156 (Saba) the Tribunal considered that the name of a person who brings an application for an NDIS Worker Check is expected to be disclosed unless there is a good reason for making a non-publication order. It was submitted that the applicant’s mental health would be adversely affected if the non-publication order was lifted. As in Olunwabusor and Saba the criminal proceedings against the applicant were not the subject of a suppression order on her name and the criminal proceedings against her were in the public domain.

79. The matters which were the subject of evidence and the applicant’s offending did not involve children. While the applicant has children these reasons do not name the applicant’s children or identify any of her family members in these reasons. Unlike in the matter of FPV where the Tribunal decided to maintain the order made by the Tribunal prior to the hearing under s 64(1) there was no objective evidence that there would be a risk of harm to the applicant and her family. In FPV the Tribunal accepted there was a risk of the applicant in that matter being targeted in her community by others involved in a criminal enterprise. We are not satisfied that there is a particular public interest for distinguishing the applicant’s case as one which in which a non-publication order should be made or in this case continued.

80. The Tribunal is not satisfied there is confidential matter or evidence or any other good reason for a non-disclosure order in relation to the applicant. The order made under s64(1) relation to disclosure of the applicant’s name should therefore be revoked.

Orders

1. The order made on 6 July 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 revoked.

2. The decision of the respondent on internal review dated 9 June 2023 to issue Nosa Owabor with an exclusion and refuse to grant Nosa Owabor 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

Amendments

23 February 2024 - Removed Publication restriction as there should be none.

23 February 2024 - Removed publication restriction.

Decision last updated: 23 February 2024