GFQ v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2024-06-21

Pursuant to section 64(1)(c) Civil and Administrative Tribunal Act 2013 (NSW) the publication or broadcast of matters contained on pages 173-184 and 212-239 of Exhibit R1 and contained in Exhibit R5 is prohibited.

REASONS FOR DECISION

The applicant was employed as an educator at an early childcare centre from 2015 until 2017. While she was working at the childcare centre, another employee was alleged to have perpetrated sexual abuse on children at the centre. This became known after this employee was charged with significant sexual offences in Queensland and New South Wales in August 2023.
The childcare centre was operated by an approved provider. Following investigations by the respondent, a decision was made to prohibit the applicant from providing education and care to children for an education and care service and the related activities specified in the notice. The decision to issue the prohibition notice was made by a delegate of the respondent pursuant to s 182 of the Children (Education and Care Services) National Law (NSW) (the National Law).
The applicant seeks a review of this decision. The decision is a reviewable decision under s 192 of the National Law. Section 8 of the Children (Education and Care Services National Law Application) Act 2010 (NSW), which provides for the adoption of the national scheme for the regulation of education and care services into the law of New South Wales, also provides that the Tribunal is a relevant tribunal for the purposes of external review of a reviewable decision. The Tribunal thus has power to conduct a review of this decision pursuant to its general jurisdiction under s 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).

BACKGROUND

In 2015, the applicant commenced full time employment as an educator at a childcare centre. At the relevant time, the childcare centre was an approved education and care service under s 48 of the National Law.
During her employment at the childcare centre, the applicant worked with all children at the centre but primarily worked in the babies' room where the children were between the age of 0 to 1 year old. She worked casually with children aged one to two years old and from time to time assisted in the rooms for the children aged between two and three and three and four years old.
In about August or September 2017, the applicant worked briefly in the room for older children aged between four and five years old, which was known as the 'preschool room'. During this period, she worked with the former employee, AG, who is currently the subject of criminal charges. He was the room leader of the preschool room at that time. In the time that the applicant worked with AG, various incidents allegedly arose which were the subject of subsequent investigation by the respondent. The respondent contends that after observing various incidents that allegedly occurred in 2017, the applicant was required to make mandatory notifications to the management of the childcare centre or to the Child Protection Helpline at that time.
The applicant's failure to report these matters in 2017 and her alleged failure to cooperate with the respondent's investigation and NSW Police in 2023 and 2024 are disputed. Findings about these matters are critical to the review. Those findings are set out later in these reasons and are based on the documentary and oral evidence provided by both parties in these proceedings.
The applicant left the employment of the childcare centre in September 2017 and after that time worked in various childcare centres. In 2017, she enrolled at in a Bachelor of Education from which she graduated in May 2020.
On 1 August 2023, AG was charged with a significant number of sexual offences against children in both Queensland and New South Wales, including 68 counts of sexual intercourse with a child under 10, 42 counts of aggravated sexual intercourse with a child under 10, 69 counts of aggravated indecent assault and one count of producing child abuse material. A number of those charges relate to alleged offending at the childcare centre between July 2014 and December 2017.
In August 2023, the Department of Education (DoE) commenced an investigation into, amongst other things, whether the childcare centre or other persons had committed offences under the National Law or under the Children (Education and Care Services) National Regulations (National Regulations). The investigation did not focus on the circumstances surrounding AG's alleged offending as this was being actively investigated by NSW Police and was before the criminal courts in Queensland and New South Wales.
As part of the investigation, the childcare centre produced documents in accordance with notices issued under s 215 of the National Law. The documents produced included a spreadsheet identifying the names and contacts of educators employed at the childcare centre during the time of alleged offending. The applicant was identified as an educator employed at that time.
Mr Brett Herron, investigator with the DoE, contacted the applicant to request information from her. He also issued a notice to appear under s 215 of the National Law, which required the applicant to appear and provide evidence as part of the investigation. The notice was emailed to the applicant on 12 October 2023, but the residential address included in the notice was in error. This is not in dispute. The applicant did not appear or meet with Mr Herron in response to that notice but had various telephone conversations with him about her work at the childcare centre and with AG. He subsequently provided her details to NSW Police as a person who may be able to assist with the criminal investigation into AG. An officer of NSW Police contacted the applicant and there were numerous communications between them. These communications are detailed in the outline of the evidence set out later in these reasons.
In November 2023, the applicant sent an email to the relevant police officer advising that she did not wish to be involved in the investigation. At this time, the applicant was living in New Zealand.
On 29 November 2023, an officer of DoE sent an email to the applicant attaching a show cause notice issued under s 183 of the National Law. This recorded the DoE's intention to prohibit the applicant from providing education and care to children for an education and care service and from being engaged as an educator. She was invited to make a written response to the notice. The applicant provided a written response by email the following day.
On 10 January 2024, a delegate of the respondent made the decision to issue a prohibition notice to the applicant. In the reasons for the decision, the delegate noted the following matters: 1. The applicant had attended staff training conducted by the approved provider in 2015 and 2016 on the procedures implemented in the preschool room to ensure oversight of staff alone inside the room. 2. The applicant had attended a staff meeting conducted by the approved provider in 2016 on her obligations as a mandatory reporter and she was provided with education and training on how to make a report to the Child Protection Helpline. 3. Investigators from DoE contacted the applicant and emailed a questionnaire to her to provide information to assist in the investigation. The applicant did not respond to the questionnaire. 4. Information provided to DoE indicated that the applicant may have witnessed certain instances of offending by AG and the applicant was issued with a notice to appear and to give evidence on 13 October 2023. 5. The applicant did not comply with the notice or provide a reasonable excuse or response which was in contravention of s 218 of the National Law. 6. The applicant gave certain information to investigators over the telephone on 1 November 2023 and this information was shared with NSW Police who subsequently contacted the applicant to assist with its investigations. 7. The applicant provided information to the NSW Police about what she had witnessed but declined to provide a signed witness statement about these matters. 8. The DoE issued a show cause notice to the applicant on 29 November 2023 giving the applicant notice of its intention to prohibit her from engaging in the provision of early childhood education and care. The show cause notice outlined a number of the matters referred to above. 9. The applicant provided a written response to the show cause notice on 30 November 2023, in which she admitted to failing to report her concerns and cited several reasons, including her personal beliefs and caring responsibilities for her husband in New Zealand, as reasons for the failure to report and to assist the NSW Police. 10. This written response demonstrated that the applicant places her own interests before the safety health and wellbeing of children in the education and care of the service, which raises concerns that her failure to make a mandatory report may arise in the future, thereby aggravating the unacceptable risk that the applicant may pose to children in education and care. 11. There is concern about the honesty and integrity of the applicant because she asserted she had assisted investigators and NSW Police whereas the information held provides evidence that those claims are false and misleading. 12. The applicant's response to the show cause notice failed to adequately address the concerns raised and there remains a concern that the factors in the applicant's decision not to report the child abuse she witnessed still existed at the time of the issue of the prohibition notice.
Having regard to these matters and on the evidence before him, the delegate was of the view the applicant may be an unacceptable risk of harm to a child or children if she was allowed to remain in the premises of an education and care service. She was prohibited from being involved in providing education and care to children for an education and care service; being engaged as a supervisor, educator, family day care educator, employee, contractor or staff member of, or being a volunteer at, an education and care service: and carrying out any other activity relating to education and care services. There is no limiting term in the prohibition notice but a person who is the subject of a notice may apply to have the prohibition cancelled.
On 14 February 2024, the applicant made an application for review of this decision. The application was made by a lawyer retained by the applicant at that time.
In a letter dated 21 February 2024, the applicant's then lawyer made a request to the DoE that the probation notice be reviewed. The letter responded to various issues raised in the show cause and prohibition notices, denied several allegations made in those notices and provided updated details of the applicant's employment history and her qualifications. It was submitted that, instead of the prohibitions imposed by the delegate, the applicant should not hold any supervisory role for 12 months and conditions could be imposed under s 182(3). The conditions to be imposed were not nominated.
An officer of the DoE responded by letter dated 23 February 2024 refusing this request, notifying the applicant's lawyer that the prohibition notice would remain in force. It is apparent that the officer of the DoE proceeded on the basis that this was a request for cancellation of the prohibition notice under s 186 of the National Law. However, there is no reference to this provision in the letter from the applicant's lawyer which appears, on its face, to be a request for a review of the decision made after the application had been filed. Because the applicant was no longer represented by the lawyer at the hearing, this issue could not be clarified.
Ultimately, it does not matter because it is clear that the decision the subject of this review is the decision made by a delegate of the respondent on 10 January 2024 under s 182 of the National Law. This is consistent with the application made by the applicant, which specifically refers to the prohibition decision issued on 10 January 2024. We have therefore conducted the review on this basis. The letter from the applicant's former lawyer is nonetheless relevant because it proposes alternative prohibitions under the prohibition notice, which may be considered by the Tribunal in undertaking administrative review. This issue is discussed later in these reasons.
While it is not directly relevant to the current proceedings, it should be noted that regulatory action was taken against the approved provider.

RELEVANT LAW

The provision of education and care services is governed by the National Law. The National Law and Regulations establish a national education and care services quality framework for the delivery of education and care services to children. One of the objectives of the national framework is to ensure the safety, health and wellbeing of children attending education and care services: s 3(2)(a). Section 3(3) sets out the guiding principles of the national framework. Notably, s 3(3)(a) provides that the rights and best interests of the child are paramount.
Broadly speaking, the National Law outlines the obligations of approved providers, nominated supervisors and educators and provides for the regulation of education and care services for children under a national scheme. It provides for the Regulatory Authority to undertake various functions under the Act. Providers of education and care services must be approved by the relevant Regulatory Authority to provide such services. In assessing an application for provider approval, an applicant must be assessed as being a fit and proper person. The Regulatory Authority may grant or refuse provider approval, may impose conditions on provider approval and may suspend or cancel provider approval. The Regulatory Authority may also give service approval of an education and care service to an approved provider and may assess and rate approved education and care services. It may issue notices to obtain information to assist in undertaking its functions and has a broad range of powers to facilitate monitoring and enforcement. In New South Wales, the Regulatory Authority is the Secretary of the DoE.
Approved providers may provide education and care services through educators. Section 5 of the National Law provides that an "educator" is an individual who provides education and care for children as part of an education and care service. The applicant was employed by the childcare centre as an educator to provide education and care for children as part of the education and care service being provided by the childcare centre.
Section 5 defines an "education and care service" as: …any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than-- (a) a school providing full-time education to children, including children attending in the year before grade 1 but not including a preschool program delivered in a school or a preschool that is registered as a school; or (b) a preschool program delivered in a school if-- (i) the program is delivered in a class or classes where a full-time education program is also being delivered to school children; and (ii) the program is being delivered to fewer than 6 children in the school; or (c) a personal arrangement; or (d) a service principally conducted to provide instruction in a particular activity; or Example : Instruction in a particular activity could be instruction in sport, dance, music, culture or language or religious instruction. (e) a service providing education and care to patients in a hospital or patients of a medical or therapeutic care service; or (f) care provided under a child protection law of a participating jurisdiction; or (g) a prescribed class of disability service; or (h) a service of a prescribed class; Example : Education and care services to which this Law applies include long day care services, family day care services, outside school hours services and preschool programs including those delivered in schools, unless expressly excluded.
The Regulatory Authority has broad powers to assist it in the exercise of its functions. Section 215 of the National Law provides that if the Regulatory Authority reasonably suspects that an offence has or may have been committed against the Law, the Regulatory Authority may by written notice require a specified person to provide certain information or to appear before the Regulatory Authority, or someone specified on behalf of the Regulatory Authority, to give evidence and produce any document specified in the notice. Failure to comply with the notice is an offence and self-incrimination is not an excuse for non-compliance. Relevantly, any information disclosed in compliance with the notice cannot be used against the person in criminal proceedings, other than in proceedings relating to the offence of hindering or obstructing the Regulatory Authority or providing false or misleading information or documents to the Regulatory Authority.
Section 218 of the National Law provides that a person must not hinder or obstruct the Regulatory Authority in the exercise of its powers under ss 215 and 216 and s 295 provides that it is an offence to give the Regulatory Authority, or an officer, any information that the person knows is false or misleading in a material particular.
As such, it is apparent that the Regulatory Authority, in this case the Secretary of the DoE, can exercise compulsory powers to obtain information to assist in the exercise of its regulatory functions. A person who is issued with a notice must comply with those compulsory powers but is generally protected from prosecution in respect of the information provided and evidence given, unless the person has committed an offence by hindering the Regulatory Authority or providing false or misleading information or documents.
Division 3 of Part 7 of the National Law contains the provisions dealing with prohibition notices.
Section 182 provides as follows: (1) The Regulatory Authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed-- (a) to remain on the education and care service premises; or (b) to provide education and care to children. (2) For the purposes of subsection (1), a person may be involved in the provision of an approved education and care service as any of the following-- (a) an approved provider; (b) a nominated supervisor; (c) an educator; (d) a family day care educator; (e) an employee; (f) a contractor; (g) a volunteer; (h) a person who was formerly a person referred to in paragraphs (a) to (g) in relation to the approved education and care service-- or in any other capacity. (3) The Regulatory Authority may give a prohibition notice to a person to-- (a) prohibit the person from being nominated as a nominated supervisor if the Regulatory Authority considers the person is not a fit and proper person to be nominated as a nominated supervisor of a service; or (b) impose one or more conditions on the nomination of the person as a nominated supervisor that the Regulatory Authority considers appropriate, if the Regulatory Authority considers the person is a fit and proper person to be nominated as a nominated supervisor of a service subject to those conditions.
Before giving a prohibition notice, the Regulatory Authority must give to the person a show cause notice under section 183 of the National Law. The show cause notice must give notice that the Regulatory Authority proposes to issue a prohibition notice, provide the reasons for the proposed prohibition and invite the person to give written submissions within a specified period, being at least 14 days, about the proposed prohibition. Before issuing a prohibition notice, the Regulatory Authority must have regard to any written submissions provided by the person within the time specified: s 184. A prohibition notice given under s 182(1) must specify whether the person is prohibited from doing one or more of the things set out in s 185(1) and must state that the person may apply for cancellation of the prohibition notice and give details of how the application may be made: s 185(3).
Section 186 provides that if the Regulatory Authority is satisfied there is not a sufficient reason for a prohibition notice to remain in force for a person, the Regulatory Authority must cancel the prohibition notice and give the person notice of the cancellation. Any application for cancellation must be in writing and in a prescribed form. A person must not contravene a prohibition notice: s 187.
As noted, it is unclear whether the correspondence from the applicant's former lawyer after these proceedings were commenced was intended to be an application for the prohibition notice to be cancelled as opposed to a request for a review of the prohibition notice. The content of the correspondence suggests the latter because alternative prohibition orders were proposed.
In the present case, a show cause notice was provided to the applicant prior to the issue of the prohibition notice and the show cause notice met the requirements in s 183 of the National Law. It is also apparent that the prohibition notice met the requirements of ss 182 and 185 of the National Law. As such, and there is no evidence or submissions to the contrary, there is no dispute that the Regulatory Authority had power to issue the prohibition notice.
The essential criterion for the issuance of a prohibition notice is the requirement that there may be an unacceptable risk of harm to a child or children if the person were allowed to remain on the education and care service premises or provide education and care to children. The phrase "unacceptable risk of harm" is not defined in the National Law, but the principles applied when considering decisions to refuse or grant a working with children's check clearance under the Child Protection (Working with Children) Act 2012 (NSW) are analogous.
In Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45, the Tribunal, when considering the review of a decision to refuse to cancel a prohibition notice, observed at [70] as follows: The relevant section of the National Law (section 182) refers to the phrase "unacceptable risk of harm". It was submitted in this matter that the approach articulated by the High Court and the Supreme Court, and adopted in the Tribunal in the context of decisions made about Working with Children Check Clearances, applies in relation to the context of the decision to be made in this matter. The assessment of unacceptable risk of harm is dependent upon a consideration of the objectives under the National Law, and unacceptability of risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate.
Section 192 provides that certain decisions of the Regulatory Authority are reviewable decisions through external review to a relevant tribunal. A decision to issue a prohibition notice or to refuse to cancel a prohibition notice is a reviewable decision for the purposes of s 192. Section 193 of the National Law provides that a person who is subject to a reviewable decision for external review may apply to the relevant Tribunal for a review of the decision. As already noted, the Tribunal is the relevant tribunal exercising its jurisdiction under s 29 of the CAT Act. On review, the Tribunal may confirm, amend or substitute another decision for the decision made by the Regulatory Authority, in this case DoE: s 193(3) of the National Law.
Also relevant to the facts in this case is s 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), which applies to a person who, in the course of his or her professional work or employment, delivers amongst other things, education and children's services to children. Section 27(2) provides that if a person to whom the section applies has reasonable grounds to believe that a child is at risk of significant harm and those grounds arise during the course of, or from the person's work or role, it is the duty of the person to report, as soon as practicable, to the Secretary the name, or a description, of the child and the grounds for suspecting that the child is at risk of significant harm. This is known as the mandatory reporting requirement. There is no dispute that this provision applied to the applicant at the relevant time and was one of the grounds for the issue of the prohibition notice.
As observed in DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [24] - [26], when the Tribunal is conducting administrative review under its general jurisdiction, it is required to perform "essentially the same task" as it would if the matter fell within its administrative review jurisdiction under s 30 of the CAT Act. It is therefore long accepted that the role of this Tribunal in exercising its general jurisdiction is to make the "correct and preferable" decision based on the material available to the Tribunal at the time of the review, not on the information before the original decision maker alone (refer also Al Hamid v Secretary, Department of Education [2018] NSWCATAD 74 and Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) CLR 286 more generally in relation to administrative review). The Tribunal stands in the shoes of the original decision maker and can exercise all of the powers and functions that could have been or could be exercised by that decision maker, in this case, a delegate of the respondent.
The delegate issued a prohibition notice in broad terms. The question for the determination is whether, having regard to the circumstances of this case and the material currently before the Tribunal, the prohibition notice should be issued and, if so, whether it should be issued in its current terms or whether those terms should be varied.

OUTLINE OF EVIDENCE

The Tribunal was provided with an affidavit from Mr Neil Herron sworn 22 May 2024. He also gave evidence at the hearing. Mr Herron is an investigator in compliance and investigations, Statewide Operations Network, Early Childhood Education Directorate within the DoE. He is responsible for investigating and enforcing compliance with the national law. The DoE commenced an investigation into the childcare centre in August 2023 after it became aware that AG had been charged with numerous sexual offences against children at the service while he was employed at the childcare centre. Mr Herron worked with two other investigators. Mr Herron was assigned to contact the applicant.
According to Mr Herron, he attempted to telephone the applicant on 26 September 2023 on the telephone number recorded on the spreadsheet provided to him. There was no answer, and he left a voicemail. Following this, Mr Herron emailed the applicant email address recorded on the spreadsheet and received a reply that day. On 4 October 2023, Mr Herron, at the applicant's request, sent an email with the questions that he wanted her to answer. The questions included questions about whether she worked with AG, whether she observed anything of concern relating to AG (such as inappropriate touching, isolation, Sleep time procedure, abusing staff etc) and whether she was aware of others making complaints about AG to either other staff, nominated supervisors or owners. The applicant acknowledged receipt of the email, but he did not receive any response before the applicant responded to the show cause notice on 30 November 2023.
Mr Herron states that on 11 October 2023 he received a telephone call from another educator who worked at the childcare centre at the relevant time. She told him she had received text messages from the applicant that she wished to bring to his attention. She sent screenshots of the messages exchanged between her and the applicant. One of the texts sent to her by the applicant was as follows: Yes. I was upset when I witnessed it in 2017. No one to talk to at that time because everyone was frightened and thought about the job. It's a mandatory requirement we report it. I want to be ethical and honest. I got the email sometime back and still waiting. Did you witness it. Just need some advice before I answer the Edu. Questions please. I don't want to get into trouble but as a fully registered teacher in the field I want to see justice and closure to this nightmare.
Mr Herron further states that when he saw this message he was concerned because it appeared to indicate that the applicant may have witnessed alleged abuse and failed to report it. He attempted to telephone the applicant on the same mobile number that he had previously been given and, on receiving no response, left a message. It was decided that a notice to appear should be issued to the applicant. He emailed the notice to her on 12 October 2023 requiring her to give evidence the following day at the residential address nominated in the notice. The residential address identified was the applicant's former residential address, but Mr Herron did not realise that this was the incorrect address at the time of sending the email. He attended the address the following day and the occupant informed him that the applicant did not live at that address. Mr Herron subsequently realised the telephone number that he had for the applicant was also incorrect and he called the number recorded on the screenshot in the text messages between the applicant and the other childcare worker. He had a conversation with the applicant and took notes of the conversation, which are annexed to his affidavit.
The file note recorded a conversation with the applicant to the following effect. The applicant identified herself and stated that she had received the notice to appear via email but due to her age, being 65 years old, her family suggested it would not be good for her health. She stated that she would be happy to tell everything she knows and that she was deeply saddened from what has alleged to have occurred. She stated that she was nervous to approach the owners of the childcare centre to complain about AG because he was fully trusted by management. She had conversations with another educator who was sick of AG's attitude. The applicant mentioned that at sleep time AG was always in the room with the children. When asked whether she ever saw anything inappropriate involving AG and the children, the applicant is recorded as having said "yes". The investigator did not ask any further questions at that stage and told the applicant that her telephone number would be passed to NSW Police. The applicant informed Mr Herron that she was attempting to travel to New Zealand to spend time with her daughter and while she did not have a ticket at that stage, she was looking at travelling to New Zealand on 4 November 2023 until end January 2024.
The respondent relies on the following documents provided by the childcare centre in response to a compulsory notice: 1. Minutes of a team meeting on 21 October 2015 which records the applicant attending the meeting between 5:00 and 6:00pm. The matters discussed are recorded in the minutes and, under the heading 'Children's Health and Safety', it is noted that changes were being implemented in the senior and junior preschool rooms that educators are to check on staff every five to 10 minutes if another educator is by themselves during rest/sleep time. 2. Onboarding documentation dated 2 December 2015, which included a PowerPoint setting out various matters relating the operation of the childcare centre and its procedures and policies. The induction program included a presentation about Child Protection with a flow chart identifying the steps to be taken to report a child at risk of significant harm, a table setting out indicators of child abuse and neglect and a flow chart for reportable conduct in relation to an allegation made against employees. 3. Minutes of the staff meeting held on 22 November 2016, which record the applicant as being in attendance. The agenda included an item, 'Children's Health and Safety', and notes that a child protection presentation is attached. Attached to the minutes is a Child Protection Induction document, version 22 November 2016. The presentation comprises 24 slides. It notes that educators must be visible at all times and there should always be two educators in the room at sleep time. It also notes that if the class has non sleepers and sleepers, the two educators must decide that whilst an educator remains in the room with the sleepers, certain checks must remain in place, which include the classroom door remaining open, the educator with the sleepers is to be in clear sight with no obstruction, each child must be in clear sight with no obstruction and the educator outside the room must do checks every five to 10 minutes on the educator in the classroom. Of the 24 slides, 17 deal with mandatory reporting related issues. 4. Email dated 14 December 2016 headed, 'Team Meeting Minutes 22.11.2016', attaching the minutes and child protection slides referred to in (3). The email notes it has been sent to staff at their personal emails. The applicant is named as a recipient of the email. The email also attaches Policy 3.1 'Child Protection' and Policy 5.4 'Child Protection - allegations of abuse against staff, educators, volunteers and students'.
Included in the respondent's documents is email correspondence between the DoE investigators and NSW Police. Relevantly, there is an email from the head investigator, Brett Lalor, to the senior police officer investigating the matter providing telephone contacts for the applicant. The email refers to the fact that the applicant is proposing to fly to New Zealand on 4 November 2023. On 3 November 2023 there is an email from the detective to Brett Lalor stating that she had been on the telephone to the applicant for some time attempting to get a statement from her. It was noted that the statement is currently unsigned but had been sent to the applicant for review. It is also noted that there were additional questions for the applicant to answer and it was difficult to complete the statement over the telephone, but she was hoping to finalise the statement through email correspondence. In the email, the senior police officer sets out the information that she has at this stage.
In an email dated 24 November 2023, the senior police officer provides to Mr Brett Lalor an email from the applicant addressed to the senior police officer, together with an unsigned statement for the applicant. The email from the applicant is as follows: I have spent lots of time answering questions and explaining what I could remember at [childcare centre] in 2017 and I have sent an email to you stating all what I can remember. I am sorry I cannot get involved in this anymore please. I am a heart patient now living overseas and not in Australia. Even after two - three years time I will not be able to attend courts or proceed in representing myself as a witness anymore. Kindly drop me at this stage as I am an old person of 65 years and unwell. Please consider my mental state at this stage of my life as I cannot go through this past terrible of incidents over and over again. Your investigation is because someone caught him red handed. Therefore I have provided all what I knew to support your case against this person for the short few days/ weeks that I was compelled to work with him and kindly let me have some privacy now as I no longer able to help in this case. Sorry for any inconvenience but I prefer to be left out now that I cannot go on in this court proceeding and submitting statements. In my life I have never ever got involved in such situations and I like to lead the rest of my life peacefully as every human being needs a closure to such matters where someone has done wrong going against the law of the country and nature and just because I witnessed that unfortunate incident I am not in a position further to be a part of being under obligation to repeat the same thing over and over again. That's all what I have to say at this time cos I have done my best to oblige with the duty of care towards the young children we work with and rules around children should be much tighter and taken care of rather than catching the perpetrators later. That's all what I have to say finally and please avoid sending any emails to me on this matter. My husband is down with severe dementia and depression right now and I am going through a very stress anxiety situation here.
This email has been extracted in full because it represents a contemporaneous account of the matters considered by the applicant at this time.
By email dated 29 November 2023 from Brett Lalor to the applicant, DoE served a show cause notice on the applicant. The show cause notice referred to the investigations and alleged sexual assault of children by AG and specifically referred to staff meetings attended by the applicant on 21 October 2015 and 22 November 2016 in relation to obligations in respect of the oversight of staff in the preschool room at sleep time and the mandatory reporting obligations of staff. The notice included particulars of how the applicant had failed to cooperate with the investigation.
In her response to the show cause notice, the applicant responded with a lengthy email dated 30 November 2023. The email attaches various documents.
The first attachment is a copy of a document from Charles Sturt University providing details of the applicant's Bachelor of Education degree. It is noted that she commenced the course on 10 July 2017.
The second attachment is a document referred to as an "amended statement" which the applicant identifies as having been signed on 29 November 2023. Analysis of the amended statement attached to the applicant's email of 30 November 2023 reveals that it is the unsigned statement attached to the senior police officer's email dated 24 November 2023, together with marked up annotations. To explain the amended statement and the annotations made by the applicant, details of the unsigned statement are summarised below, together with any annotations or markups made by the applicant. The annotations were made on either 29 or 30 November 2023. This is apparent from the document because each of the annotations has a date recorded next to the annotation.
The statement sets out the applicant's background, noting that she first started working in childcare in 2014. Her work at the childcare centre is summarised, with the applicant noting that she was primarily working in the babies' room and sometimes worked in the other rooms. The applicant did not make any material changes to these paragraphs in her annotated version.
In response to the statement made that she would be prepared to give evidence in court as a witness, the applicant noted that if needed she could participate via zoom as she was not physically able to attend alone. There were also some changes made about her background as outlined in the preliminary part of the statement. It is further noted in the annotations that the statement is to be dated 29 November 2023.
It is noted that the applicant began her degree in early childhood education and care in 2017 and began working in the preschool room for children aged four to five years old at this time. This is when she first started working with AG. He was not welcoming, and he was scary and a little bit strange. He was not cooperative, and he did not like her. She stated that he did not like her being in the room with him and that she felt very unwanted. Other educators worked with AG from time to time and he was friendly with two of the other educators. Apart from correcting the name of the degree, the applicant did not make any material changes to this part of the statement.
It is noted that the preschool room was located at the front of the centre near the office. A person was not able to see into the room unless the door was open. AG would set up the room for the children to nap. Some children would nap after lunch while others played in the playground. Because AG was the room leader, he would tell the applicant what to do. AG set up the room by pulling the blinds down and putting curtains over the lamps and would use a blanket or cloth to cover the children. The only change to this part of the statement was to delete the words "putting curtains over the lamps".
It is recorded in the statement that the applicant did not remember a specific policy about having the room doors open or closed and she followed the instruction of the team leader. The only change made to this paragraph was to record staff are instructed to listen to their "room" leader as opposed to their "team" leader.
It is also recorded in the original draft statement that when the applicant worked in the preschool room and she was in the playground area while the other children were napping, she would knock on the door before going into the room. AG would be in the room alone with the children with the door closed during the whole nap time. Nap time would be roughly around one to two hours. One day she walked into the room through the office and was standing behind AG. He was sitting down on the floor and she saw his hand underneath the blanket, he was meddling with something. AG must have recognised her presence and turned around and looked at her. He looked shocked and didn't expect her to be there. She could not remember the conversation, but AG said something like "What are you doing?". The children were face down when he had his hand under the blanket, and it seemed like he was touching their bottom. She could not specifically see what AG was doing with his hand under the blanket, but she thought he had his hands under their underwear. She stated that I knew this wasn't the right thing to do having his hand underneath the blanket, he was a male and she felt this was an inappropriate move and something that was not right. The applicant remembered seeing this around two to three separate times.
The changes made to this part of the statement were to change the word "shocked" to AG looked "alarmed or surprised". The applicant noted that she was not sure about the statement that she thought he had his hands under their underwear. She also noted that she could not be sure about the statement that she had seen this happen two to three times. Her comment was that she saw it once "for sure" and maybe she saw it one to two times. Otherwise, the applicant does not make any other comments or annotations in respect of this part of the statement.
The original draft of the statement records that when the applicant confronted AG about this, he said to her something like "Let me be with the girls and I can put them to sleep". He also said to her that the children would not sleep with her and he said, "You don't tell me what to do, I know what I am doing". The applicant stated that she knew this wasn't the right thing to do but she couldn't speak to talk to anybody and couldn't approach anyone as he had the power. Thereafter the applicant was not allowed to approach the preschool room through the office staff room. She did not talk to the supervisors about it as they were not approachable. When she did raise something about AG, they took his word over hers and they would say AG is "one of our best good teachers here".
The only material change that the applicant made to these paragraphs was about the supervisors being "not approachable". In her comments, the applicant stated that the supervisors would think she was "mad or off her head". She further stated in her comments that the supervisors would not believe her over the room leader as "it's like degrading their position in the centre and questioning someone's conduct undermining them and over ruling the Management supervision".
The statement records the applicant as stating "I was helpless and felt I had no choice. I had to convince myself that God is there and if he is doing this, he will be punished. I knew this would come out". In response to this last sentence, the applicant added a comment to the following effect: If it was true. According (sic) our religion, no one can do a sin and get away with it. They all will face justice at some point of our lives. Therefore, I had to leave my suspicion in the hands of the gods above us who punish us when we do something wrong.
It is stated that the applicant did not speak to her colleagues about this and that there was lots of "horizontal violence" in this trade. She also stated that when she packed away the beds, she found one or two pairs of underwear on the napping floor, although this was not unusual because she had been told that sometimes the girls took their pants off during nap time. The applicant made no comments in relation to this part of the statement.
The original draft statement records the applicant as stating: All the children loved him and the parents loved him too. I thought that the girls would speak up.
She corrected this by commenting "some (not all)" and "their parents liked him". She did not make any amendment to the statement that she thought the girls would speak up.
It is recorded in the original draft statement that the applicant left the childcare centre because of AG. There was no change made to this paragraph.
This marked up version of the statement appears to represent a considered view of the applicant's evidence about what she witnessed in the preschool room of the childcare centre when she was working with AG for a short period in 2017. It is apparent that the marked-up version of the applicant statement was completed by 30 November 2023 because each of the comments are dated either 29 or 30 November 2023.
This "amended statement" has an electronic signature for the applicant applied to the bottom of each page of the statement. The amended statement includes footnotes with comments marked and numbered within the statement. The amendments have not been made to the body of the statement and it is possible that if the statement provided to the applicant was not in a word version or version that could be easily amended, she has inserted notes to identify proposed amendments. Insofar as the applicant has applied her electronic signature to this statement, the statement is incomplete because it includes numbered notes. There are at least 30 annotations on the face of the document. As such, the document that has been "signed" is clearly not a final version. It is best described as a document signed by the applicant demonstrating her agreement with the contents as amended by her in the markup notations.
In the email in response to the show cause notice, the applicant states as follows: My apologies for the delay in submitting the attachment (2) "amended statement" (signed 29.11.23) which took hours for me to correct some wordings and type comments on the right-hand side column. I am mainly worried going to courts and it's a major stressful and traumatic state for me in my old age if I had to go through all this again with people that I do not want to see anymore.
The applicant attached a letter from her doctor dated 31 March 2023, being a brief letter stating that the applicant consulted him for a mental assessment. She attached further documents noting her diagnosis of mitral stenosis and "hole in the heart". The referral notes that the applicant usually sees a cardiologist twice a year but this was changed to yearly in June. It is noted that the applicant has hypothyroidism, allergies and depression. The applicant states that she is awaiting surgery and it is therefore hard for her to further get involved in the case by attending courts and travelling away from home alone. She also states that she has hearing loss problems.
The applicant also states that she worked for a very short time with "the person in question" in the preschool room. She states that this was a very stressful and traumatic time as she was just starting her part time studies at university, and she was living alone without support from her family. She had never worked with "the culprit" until she worked with him in the preschool room for the short period. In reference to staff meetings on 21 October 2015 and 22 November 2016 and the material referred to in those minutes, the applicant notes she was not working in the preschool room at that stage. She states that she cannot recall so much emphasis on the mandatory role explained during the meeting or that there was any special training given on child protection during a meeting time. The applicant states that she may have left earlier because she did not feel safe working late at night.
The applicant notes that she was a junior staff member, she was new to the country and very inexperienced at the time and she was made to feel that the room leader was more experienced. The applicant stated that therefore she "could not believe my own self to have witnessed something of that nature or to have seen something not right".
The applicant states that she did respond to Neil Herron's email dated 4 October 2023 and that she spoke with the NSW Police officer over the phone for hours who questioned her about what had happened. She states that she did not receive the other correspondence or letters until she received the show cause notice by email, noting that she was not living in Sydney and she did not live at any of those addresses. She was under pressure to travel to New Zealand to look after her husband who had severe dementia and depression. She stated that the DoE should have no concerns that she may not be a fit and proper person to be engaged in the provision of early childhood education and care because she "may have witnessed something unfortunate" and she may have failed to raise the alarm against "a force of very powerful individuals at the time" because she was "timid, frightened helpless and alone". The applicant stated as follows: ..So I became suspicious at the time of what I witnessed I had no evidence to prove which made me just hopeless, unable to do anything about it with the approved provider who will just reject my words away against one of their close teachers, unaware of how to take any action with an outside source as I knew that I will be kicked out of the Centre and that will be a black mark for my career professionally as well as my personal life when I was fending for myself as a woman living alone. I was 59 years old at the time and it was hard for me to find another job at that age without a teaching degree specially in this field. If I went to voice it at that time, it would not be anything important at all to them and I would be considered as someone insane spreading rumours against the room leader. When I witnessed it, I wasn't sure of what was happening or took place at that time because it was hard for me to believe my own self and convinced my own consciousness against the room leader whom I respected, looked up to and trusted with children. Recently, after listening and getting to know the allegations towards him from the NSW Department, I am now able to comprehend and relate that incident to what may have happened and what he would have been doing then according to the findings now. Also, I wasn't sure at that time whether what I saw and assumed was true because none of my colleagues though I knew them well have not mentioned anything like that to me at that time. I have provided reasonable material and response in complying with the notice I received today via email which I have not received before by post due to change of address and country. Therefore, I have not hindered or obstructed Regulatory Authority. I have only witnessed what I have specifically mentioned in the statement and apart from that I have not seen the offender in any inappropriate sexual act ie physically indulging in intercourse or having sex with the children.... The attached signed statement sent along with this email explained all what I saw and I have stated exactly what happened in my few days in that preschool room. ………….. If I blew the whistle, will the responsible people much higher above my level financially as well as status wise be convinced of my story. Will they believe me when they trust this person so much more than me who joined recently. They can turn me down and I can lose my job at a very crucial time when I needed to work in peace of mind to study my first year.
After outlining the difficulties and the fact that she now has more education and knowledge, the applicant stated as follows: Kindly accept my apologies and I am deeply sorry from the bottom of my heart for these young and innocent children who may have got affected by him due to the unavoidable circumstances or my incapacity to voice this suspicion to the needful authorities at that time. Yet again, I need to stress the fact that all these children were very fluent verbally and they spoke very well with me. I still wonder why they did not say anything about this, speak out anything about what he was doing to them for, if he did anything bad to them or if he did something unacceptable to them at that time to me, other staff or their caregivers and parents. Sadly, it is still a question to me.
In an email sent by Brett Lalor to the senior police office investigating AG dated 15 December 2023, he included the response provided to DoE by the applicant on 30 November 2023 and asked whether the statement had been signed. The senior police office responded on the same day stating that she had not received the signed statement, but she would follow it up with the applicant.
The senior police officer must have followed this up as included in the respondent's bundle of documents was an email from her to the applicant dated 9 January 2024. The police officer noted that she had received the edited version of the statement provided by the applicant and had made the amendments as requested. Attached to the email was a statement for the applicant dated 9 January 2024. Examination of this draft of the statement reveals that the statement previously provided to the applicant had been amended in accordance with the comments and annotations made by the applicant referred to above.
The applicant responded by email on the following day stating that the amended statement was "fine" and that she attached both "signed" statements, being the previously signed and annotated version of the statement together with the updated statement sent to her by email dated 9 January 2024. The second statement attached was not signed by the applicant as she noted that she was now 65 years old and the statement needed to be updated. In an email response sent on that day, the senior police officer responded that she would amend the statement accordingly. The document provided by the respondent in the respondent's bundle is described as a signed statement of the applicant dated 9 January 2024. The copy provided in the bundle was not actually signed but it appears that the applicant may have signed the statement about the time that it was sent back to her on 10 January 2024.
On 8 January 2024, Brett Lalor completed an investigation report in relation to the applicant. The report summarised the concerns raised in the show cause notice and the applicant's response in relation to those concerns. Mr Lalor found that the applicant had admitted to failing to report concerns to the relevant authorities and gave weight to the exchange of text messages between the applicant and the former colleague sent on 11 October 2023. He concluded that there were numerous reasons the applicant gave for not making the mandatory reports, including her ill health, the ill health of her husband and personal beliefs. He reported that what was concerning was it is "unclear whether those same reasons and beliefs would not apply today". He further found that the applicant placed her own interests and comforts before the safety, health and wellbeing of the children in the childcare centre, indicating she may not be a fit and proper person to be engaged in the provision of early childhood education and care.
Mr Lalor states that the gravity of the applicant's repeated decisions not to report her concerns to the relevant authorities should not be understated given AG not only continued to offend against the same children but went on to offend against significantly more children in Queensland. He concluded that it would not be unreasonable to prohibit the applicant on those grounds alone.
Mr Lalor notes that the applicant failed to respond to questions raised by the investigators and did not cooperate with the investigators or with NSW Police. He concludes that there is sufficient evidence that the applicant contravened s 218 of the National Law and that she would have been unlikely to assist if it had not been for the show cause notice that was issued to her on 29 November 2023. It is also noted that the applicant had falsely indicated she had provided a signed statement to the NSW Police when she had not done so and this impacted on her fitness and propriety, which includes an assessment of her honesty and integrity. It was recommended that a prohibition notice be issued to the applicant.
This report was endorsed by the senior investigator and was accepted by the manager, compliance investigations, Edward Issa, who issued the prohibition notice.
The applicant provided a written statement to the Tribunal in support of her application. The statement is dated 22 April 2024.
In summary, the applicant states that she had worked with AG for two weeks in 2017. She had never witnessed AG sexually offending the children in her care and she was an inexperienced undergraduate at that time. In response to the allegation that she failed as a mandatory reporter, the applicant states that she had never seen AG offending and that she may have contradicted herself by speaking about what she now knows to be the case having been disclosed to her by the Police and wording her statement in past tense format. She states that, after hearing from the investigators in 2023 she reflected on the time when she walked in on AG patting the children on the back under the blanket. She states that at this stage the fact that he was abusing the children did not cross her mind therefore she believed she had nothing to report.
The applicant also states that she did not have any form of mandatory child protection training to the extent described in the Centre staff meeting minutes in 2015 as she was working in the baby room. The applicant further states that she never saw anything or suspected AG at all but after the investigators revealed this to her, this is when she realised that he was an offender. She also stated that the questionnaire sent to her by Mr Herron indicated to her the acts that AG had been committing and the anger and hate that she felt towards him influenced her statements and the way she wrote her statement. The applicant complained that she was not informed of her rights before providing her statement and was not informed of her right to legal representation nor did she understand the consequence of giving the statement.
The applicant stated that once she knew about what was alleged in relation to AG and the theme of the survey questions about the criminal act, she wanted AG to be behind bars which led her to exaggerate her statement. She also felt pressured and this too led her to exaggerate the statement that she had given. She stated that she had exaggerated on answering the canvas questionnaire over the phone on 11 October 2023 as she did not like AG and he had verbally abused her and grabbed the phone from her in front of the preschool children when she was going to call the office. She left the centre because of AG's abusive behaviour. She also felt injustice towards her at the centre and the information that she provided was exaggerated as she wanted justice for the way she had been treated by AG and the centre managers. She was glad that the police had contacted her which would get AG into trouble. The applicant stated that she had supported the DoE investigation to the best of her ability, and she honestly had no concerns about AG offending children. She was emotionally overwhelmed and felt helpless but also felt a slight amount of satisfaction that someone who had mistreated her for no reason was now being punished. When she completed her statement she should have spoken in the present tense and not the past tense.
The applicant denied that she received mandatory training on how to inform or watch out for misconduct by colleagues. She had no reason or any factual evidence to suspect AG at that time and therefore had nothing to report.
The applicant notes that when she messaged her colleague on 11 October 2023 about what she may have witnessed during her time at the centre, she only sent this message to piece together what had happened. Her knowledge about the incident she is referring to in her text is a situation in 2017 where she observed AG's hand under the blanket. Once she was informed by the investigators about AG, she assumed that what she saw in 2017 may be related to what the investigators told her. In the text message to her colleague, the applicant states that it is "mandatory that we report". This was a question rather than a statement. She was overwhelmed and was not texting with a sound mind.
The applicant states that she genuinely had no idea what AG was doing. The applicant also said that if she had seen him doing something to the children it would have been a perfect opportunity to get AG out of the centre and to have him investigated rather than leaving.
The applicant states that the email of 12 October 2023 was not received by her and she only saw this email attached to the bottom of the show cause notice. The applicant states that there was no telephone call from DoE to see if she had received this important notice. The applicant further states that she was travelling to Melbourne from NZ to help her daughter with moving house and it was hard for her to get access to a computer. After replying to Mr Herron on 11 October 2023 she thought that everything was over.
The applicant states that she is now an elderly woman with a hearing impairment and there were many emails and telephone calls that she found it difficult to keep up with. She had responded to the best of her ability. She states that she was telephoned by the senior police officer investigating the case on 3 November 2023 just as she was preparing to fly to Auckland the following day. As outlined in her email response to the show cause notice, the applicant states that her answers to Mr Herron on the phone were influenced by the questions asked. She denies seeing AG patting the children's bottoms or his hands under their underwear, only that his hand was under the blanket. The applicant states that she is supportive of the narrative that AG is a bad person, but it would have been impossible for her to see his hand under the blanket as the lighting in the senior preschool room was very poor.
The applicant repeats the assertion made in her email response of 30 November 2023 that her statement was influenced by the facts that investigators informed her about. The only incident that she saw was AG's right hand under the blanket. She did not suspect him of child abuse in 2017, however, when writing her replies in 2023 and 2024 she stated that she suspected AG based on that one incident in 2017. Her judgement in giving these statements may be exaggerated.
The applicant also states are there a number of misinterpretations of her statement. The first misinterpretation is that she wanted to discuss with AG concerns about his attitude to her and the fact that she wanted to take turns in supervising the children indoors. This is what she was referring to when she said she felt powerless. The applicant notes that the other misinterpretation is that it needs to be understood that in her statement she is speaking hypothetically in the past tense. The applicant explained thar her statement about her personal beliefs about God was in the context that she had no proof and did not know or see anything like AG abusing the children at the centre. In response to her statement where the applicant stated that she thought the "girls would speak up", this was a clear example of her referring to the past in the present tense. She does not believe it is the child's responsibility to speak up against abuse because they may not identify it.
The applicant again raises concerns that she was not informed of her rights when she made those statements and that she is being portrayed as someone who failed to report a serious act. Her statements may have been exaggerated due to the injustices she faced from AG and the centre, and she may have projected her grievances into her responses.
The applicant also stated that since graduating from Charles Sturt University in 2020, she has gained an understanding and qualifications to support childcare. She completed her child protection and mandatory reporting course in 2022. She has worked in childcare centres with no issues or disciplinary action, and she is a proud mother of two daughters. The applicant states that she wants the prohibition notice to be revoked, she wants to have the cancellation of her working with children check revoked and she would be happy to undergo further training in childcare if deemed appropriate.
The applicant also provided medical reports, including doctor's reports, a referral to a cardiologist and optometry clinical report and hearing loss reports. She provided details of her academic qualifications and qualifications to work in childcare, including a certificate for her Bachelor of Education degree conferred on 8 May 2020, certificates of completion for courses completed in 2020 and 2022 (being a child protection refresher course and a protecting children course dealing with mandatory reporting) and several reference letters from former employers relating to her work in working with children. The applicant also provided a document that she said was emailed to Mr Herron on 11 October 2023. This is the email that the applicant says she sent through to Mr Herron in response to his email of 4 October 2023. The document is not an email but rather a Word document which responds to a series of questions relating to her employment at the centre, such as whether there was a policy about being alone with children, whether she had ever worked with AG and whether the children were left alone with one educator. In this document, and in response to the question about whether she had ever observed anything of concern regarding AG, the applicant is recorded in this document as responding as follows: Yes. Inappropriate touching of the girls, isolating them during the sleep time was one of his main focuses. He has verbally abused me when I confronted him.
The applicant also reportedly responded to the following effect: In this statement, I have expressed my feelings and obligation to society. This was something I could not reveal all these years and wanted to inform the authorities many times as it is a mandatory factor, but I was frightened of losing my job and becoming unaccepted as I had to say and I faced many objections when confronting such issues. I believe in Karma and the truth will come out one day and that he cannot hide and continue this for long.
It should be noted that Mr Herron gives evidence that he did not receive this email.
The applicant gave evidence at the hearing. She was shown the minutes of the meeting of 22 November 2016 which showed that she attended the staff meeting where there was a discussion about mandatory reporting. The applicant said that she could not recall the slideshow being discussed at the meeting and that she only realised about the mandatory reporting obligations when she went to another childcare centre in 2017. The applicant was questioned about her claim that she had exaggerated the evidence contained in her statement and she was taken to various parts of her statement where she had set out what she saw AG doing in the preschool room. She said that this statement was incorrect because she was talking about her understanding now, not in 2017. When asked about whether she would have been concerned if she had saw this in 2017, the applicant responded that she just never thought that AG would be involved in child abuse. At that time, she did not know anything, and she assumed that whatever he was doing was not inappropriate at that time. The applicant was asked why she simply did not say in her statement that she did not realise this at the time, but she now knows that what AG was doing was inappropriate. The applicant repeated the claims made in her statement that her use of the past tense in the statement was not correct. She was making this statement based on what she now knows. She now believes that what AG was doing was not right.
The applicant said that she had responded to the email from Mr Herron, and she sent her response on 11 or 12 October 2023 but was now unable to find a record of this email. When it was put to the applicant that she had not sent this email, she said that she did send it as far as she could recall. The applicant also said that she did not receive the notice to appear. The applicant was asked about the telephone conversation that she had with Mr Herron, where she is reported by Mr Herron to have said that she had observed inappropriate behaviour involving AG. The applicant responded that she could not recall the telephone call and she may have misunderstood the question. The only telephone conversation she can recall is the conversation with the senior police officer investigating the criminal conduct of AG. When the applicant was shown a copy of the file note of Mr Herron's telephone conversation with her on 1 November 2023, the applicant said that she did not agree with this conversation. The applicant said that she did not sign the statement sent to her by the police initially because it was incorrect. It was put to the applicant the only reason she cooperated with police was because she had been served with the show cause notice by this stage. She denied this.
The applicant was asked how things would be different if she observed now what she observed in 2017 and she said that things would be different because at that stage she did not have training, she trusted the other employees and did not think that it would happen. She now understood her obligations and she came to know this when she worked in another centre in 2017.

SUBMISSIONS

The respondent submits that the applicant is trying to explain away her misgivings about the actions of AG and that there were aspects of her evidence that are not credible. She seeks to resile from the previous statements that she had made to state that she has now formed the view that AG's actions were inappropriate, but she did not appreciate this in 2017. The applicant went through a time-consuming process in reviewing those statements, yet her current evidence and submissions are to the effect that the contents of the statement are not correct or not what she meant. This should not be accepted as credible.
The applicant did not respond to the questions raised by Mr Herron and the Tribunal should accept the objective evidence set out in the documents provided that she did not co-operate. The mandatory obligations exist to ensure that others report inappropriate conduct. There are concerns about whether the applicant would be able to identify inappropriate conduct or whether she would be influenced by someone more senior not to report. The mandatory reporting obligations require that childcare educators are proactive. The Tribunal cannot be satisfied on the basis of the applicant's evidence that she would be proactive or that she would be able to identify inappropriate or reportable conduct or that she would take steps to report such conduct in the future. The risk also arises because there is evidence that the applicant did not willingly engage with the DoE investigators and the police. Honesty is an important aspect because it is very important that a person is able to take responsibility for their mistakes and is prepared to make the necessary disclosures about those mistakes.
It is submitted that while the prohibition notice could be subject to conditions, there is no regulatory response that could prevent or mitigate a concern that stems from the behavioural and conduct issues demonstrated by the applicant. One option would be to require the applicant to report on a regular basis but there would be problems with enforcement of this reporting given her failure to previously identify the risks and her evidence before the Tribunal. Providing more training would not assist to test whether she had changed her views. It is submitted that the applicant's failings are of such a nature that she could not adequately monitor or supervise others. The fact that there has been an impact on the applicant's livelihood is not the determinative factor. The issue of a prohibition notice is predicated on the objectives under the National Law and safety of children is parament. The key question for the Tribunal is whether there is an unacceptable risk of harm, and it is submitted that there is such a risk because the applicant cannot be relied on to make mandatory reporting, which is a fundamental requirement.
The applicant submits that she is very sorry that she had exaggerated things and she had tried her best to assist the investigators and police. At the time she worked with AG, she did not believe he was engaging in suspect conduct but has only come to understand this now. The statements she has previously made do not properly reflect this.
The applicant further submits that she now knows what she should be doing, and she now knows the gravity of the issue. She would report matters to police. Her daughters made submissions on the applicant's behalf. It is submitted that now their mother had graduated, she understands the importance of mandatory reporting. The impact on her mother has been very harsh as she has lost her livelihood. It is submitted that this has also resulted in the removal of her working with children clearance. The decision was heavy handed.

CONSIDERATION

The issue for the Tribunal is whether there may be an unacceptable risk of harm to a child or children if the applicant were allowed to remain on education and care service premises or to provide education and care to children. There is no dispute that she is a person in respect of whom a prohibition notice can be issued. If satisfied that there may be an unacceptable risk of harm, there is discretion, signified by the use of the word "may", about whether a prohibition notice should be issued and the scope of the notice.

Unacceptable risk of harm?

We accept that the applicant is facing several medical issues and was under significant stress at the time when she was first contacted about her knowledge or observations of offending by AG.
The applicant was first contacted in October 2023 at a time when she was in the process of relocating to New Zealand to support her husband who was unwell. There were issues about communications and there is evidence that the DoE had incorrect details for the applicant. She attempted to assist investigators by responding to telephone calls, although it is apparent she did not respond to the notice issued to her under s 215 of the National Law. We accept that the applicant received the notice by email because she refers to this in her telephone conversation with Mr Herron on 1 November 2023. In this regard, we accept the evidence of Mr Herron and note that he made contemporaneous notes of the conversation he had with the applicant about this. Whether the applicant received the notice on 12 October 2023 or at some later time it is not clear, but it is apparent the applicant received the email at some stage, and this is consistent with her evidence.
The applicant states that she sent a detailed response to the questionnaire to Mr Herron on 12 October 2023. He says he did not receive this.
There are two possibilities in relation to the evidence about this email. The first possibility, which appears to be the one contended by the respondent, is that the email is a fabrication after the event to counter any suggestion that the applicant failed to cooperate with investigators. If the email is a fabrication, this raises concerns about the applicant's honesty and integrity.
The other alternative is that the email was intended to be sent by the applicant at the time but because of difficulties with her email it was not transmitted. We accept Mr Herron's evidence, but we cannot discount the applicant's evidence that she sent the email, or at least believed she sent it, but was having difficulties with her emails at that time. The applicant extracts her response in the evidence provided to the Tribunal. This email, which is referred to above, is instructive. While we have reservations about the evidence of the applicant suggesting that this email was a 'bounce back', we cannot discount the possibility that the applicant was having difficulties with her email system at that time.
Regardless of which explanation we accept, the contents of the claimed email raise significant concerns. Relevantly, the email response clearly communicates that AG was inappropriately touching girls and was isolating them. It is further stated that the applicant had wanted to raise this for some time. The contents of the email evidence the applicant's view about what AG was doing at the time and infer that the applicant's opinion about these matters is based on her views at the time she worked with AG and not on a subsequent opinion formed on the basis of her current understanding.
The applicant submits that the statements she has provided are misunderstood or are incorrect in a number of material respects. In her most recent statement and submissions, the applicant says that her statements are actually intended to be drafted in the present tense because she now understands that what she previously saw was inappropriate, but this was not her view at the time.
The respondent submits that this is not plausible, and this is evidence of the applicant changing her story to advance her own position. It is submitted that the statements are clear, they refer to observations made by the applicant about what happened in 2017. If it had been the applicant's intention to describe what she believes may have happened in the past based on what she now knows to be the case, she could have easily amended the statements to reflect this view. In brief, it is the applicant's contention her statement to NSW Police was intended to state that she saw certain things at the time, did not believe they were inappropriate, and this did not raise concerns for her at the time but now that she knows what has happened, she can see the conduct was inappropriate. If this was the applicant's honest held view and intention when she prepared her statement, she could easily have stated this in her statements and in her emails. She did not and the applicant's current evidence about these matters should not be accepted.
We accept the respondent's submission on this issue. While we note that English may not be the applicant's first language, she is clearly proficient in English and is a university graduate. There is evidence the applicant spent many hours reviewing and revising the draft statements. In her email response to the show cause notice on 30 November 2023, the applicant stated that she had observed inappropriate conduct by AG but there were difficulties in reporting it. She was concerned about her own position. It was not until the applicant lodged her statement on 22 April 2024 and made her submissions in July 2024 that she stated these statements were misunderstood or incorrectly represented an observation or opinion based on the past tense, when it was intended the opinions or observations expressed in the statement were in the present tense viewing the past events with hindsight.
This is inconsistent with a plain reading of the draft statements and emails. They are unequivocal in this regard and furthermore provide explanations for why the applicant felt unable to report the matters. Notably, the applicant's current version of her observations is inconsistent with the more contemporaneous records of her evidence set out in emails, discussions with Mr Herron and in her text to a former colleague. This text suggests that the applicant had observed something serious at the time that she believed was reportable but was concerned about her own position, which is why she wanted to consult with the former colleague.
The applicant states that she did not observe AG having sexual intercourse or abusing the children. This is conduct which is obvious sexual abuse and there is no evidence, nor has it been alleged, that the applicant observed flagrant sexual abuse. Drawing a distinction between this and the conduct referred to in the applicant's draft statements of AG having his hand under the blanket and meddling with children suggests that the applicant does not understand or will not be able to identify the potential for risk or to identify instances where the conduct is not overt but nonetheless meets reportable conduct guidelines in accordance with mandatory notification requirements.
The applicant also now says that she exaggerated her evidence. In her submissions, the applicant contends that she exaggerated her evidence under duress, but this is inconsistent with the explanation that she gives in her statement of April 2024. In this statement, the applicant states that she gave an exaggerated account because of feelings of anger against AG. This evidence of itself is a matter of serious concern as it suggests the applicant was prepared to perjure herself because of personal grievances against AG.
Both explanations do not reflect well on the applicant's credibility. The first because it is completely inconsistent with the previous evidence that she has given on repeated occasions and secondly because the applicant is making an admission that she was not telling the truth in previous statements she has submitted to DoE officers and NSW Police. This latter issue raises a very significant concern about both the applicant's credibility and character.
The respondent submits that the applicant did not freely cooperate with the investigation or with NSW Police and only took action to assist once she was confronted with the show cause notice.
Given the chronology of events and the content of the applicant's earlier communications, there is force in this submission. The applicant was cooperative, albeit reluctantly, perhaps driven by her concern about being involved in a criminal prosecution where she may have been concerned that she would be criticised for failing to act. However, when the evidence is considered as a whole, it is apparent that the applicant responded, when prompted, but only took action to provide information to investigators and NSW Police when she was put on notice of regulatory action.
Having regard to these matters, the question is whether there may be an unacceptable risk of harm to a child or children if the applicant is allowed to remain on education and care service premises or to provide education care to children. The investigation report recommending that a prohibition notice be issued speaks of whether the applicant is 'fit and proper' and whether she is honest and has integrity. These tests apply to provider approval but not in relation to an educator, who does not need to be approved. The threshold criterion for the issue of a prohibition notice is whether "there may be an unacceptable risk of harm to a child or children", although we note that s 182(3) also provides for the Regulatory Authority to prohibit a person from being nominated as a "nominated supervisor" if it is considered the person is not a fit and proper person to be nominated as a nominated supervisor of a service.
The prohibition notice is wide in its terms. It prohibits the applicant from being engaged as a supervisor, educator, family day care educator, employee, contractor or staff member of, or being a volunteer at, an education and care service and in carrying out any other activity relating to education and care services. Whether the prohibition on the applicant being a supervisor also engages s 182(3) of the National Law, was not the subject of submissions. Despite this, we accept that issues about the honesty and integrity of a person, who is involved in the provision of an approved education and care service, may be relevant to the question of whether there may be an unacceptable risk of harm to a child or children if the person were allowed to remain on the education and care service premises or to provide an education and care service. Concerns about the honesty and integrity of a person being prepared to disclose mistakes, errors and reportable conduct, may reasonably raise concerns about such a person providing education and care services to children where the safety, health and wellbeing of children and the best interests of children are paramount. This is particularly relevant where the interest of the children may conflict with the persons' own interests and this issue is either not recognised or deliberately overlooked. This has the potential to undermine the mandatory reporting protections in the system and thereby heightened the risk of harm.
We do not accept that the failure of the childcare centre to observe the protocols in relation to the preschool room was the applicant's responsibility alone. There was a protocol that the preschool doors should be kept open when the children were napping, and there was criticism that the applicant should have checked on AG frequently in accordance with those protocols. We accept the applicant's explanation that AG was a more senior and respected staff member. There were other staff at the childcare centre who did not raise the issue about the preschool door being closed during sleep time, which must have been obvious. It was the key responsibility of managers to enforce these protocols. The applicant could have been stronger in this regard, but it is unreasonable to lay the burden and sole responsibility for the failure to observe the centre protocols on the applicant.
Based on the objective material available, it is apparent that the applicant must have attended meetings where mandatory reporting was discussed and we do not accept the applicant's denial that she did not understand mandatory reporting obligations in 2017. At that stage the applicant had been working at the childcare centre and in childcare for a number of years and even though she was primarily working in the babies' room, mandatory reporting would apply regardless of whether a childcare worker was working with preschool children or children of a younger age. We also note that in 2014 the applicant's childcare qualifications were assessed by the Australian Children's Education and Care Quality Authority as being equivalent to a Certificate III in early childhood. It is therefore implausible that the applicant had no knowledge of her mandatory reporting obligations until 2017.
Having regard to all of the evidence, we find that the applicant observed conduct of AG which she considered to be inappropriate on at least one occasion while she was working with him in the preschool room in 2017. We accept that the applicant did not observe obvious sexual abuse, but she observed conduct which should and, on her own evidence, did put her on notice of concerns sufficient to engage mandatory reporting obligations. We accept the applicant's evidence that she did not feel confident about reporting these matters to superiors because AG was a long-term employee at the childcare centre, was more senior and appeared to have more support. However, this does not explain is why the applicant did not report to the Helpline, as mandated. According to the applicant's evidence, a significant reason why she did not report these matters at that time was because she was concerned about losing her job and the environment was not supportive or conducive to reporting. While these concerns explain the applicant's failure to report and to remain silent for so many years, they do not excuse it.
We accept that the failure of the applicant to report her suspicions was significant. However, the submission made by Mr Herron in his investigation report that this failure should not be underrated, suggesting that much of what followed was a result of the applicant's failure to report, is indeed a heavy handed and somewhat harsh conclusion. There were clearly many failures at this childcare centre and the actions of one educator, who was relatively inexperienced at the time, cannot explain why there was such a fundamental and catastrophic failure by the centre, the managers and the supervisors to identify this risk of harm to the children in the centre.
The difficulty in the matter is that the applicant has not accepted responsibility for her previous errors and now gives evidence that is considerably different from the evidence that she initially gave to the investigator, NSW Police and in response to the show cause notice. This impacts negatively on the applicant's character and, at the very least, her honesty. She states, in her own words, that she was concerned about making disclosures because she did not want to lose her job and she felt she would not be believed. This raises concerns about the applicant's understanding of the importance of the safety, health and wellbeing of children in her care and their best interests being a paramount consideration.
While there is no evidence that the applicant, by her actions, directly caused harm to the children at the childcare centre, this is not the test. The issue is whether, having regard to the material before us, we are satisfied that the applicant may be an unacceptable risk of harm to a child or children if she were allowed to remain on the education and care service premises or to provide education and care services.
The system imposes mandatory reporting obligations on persons working with who may observe reportable conduct. This includes those who provide education and care services to vulnerable members of the community, namely children. One of the objectives of the National Law is to ensure the safety, health and wellbeing of children attending education and care services. The rights and best interests of the child are paramount. The national framework relies on participants, including educators, supervisors, family day care educators, employees, contractors or staff members or volunteers, observing these objectives and principles. If there is evidence that a person seeking to work within the education and care system has not had sufficient regard to these objectives and principles and does not understand the importance of mandatory reporting or places their own interests above the interests of the children when that person is providing education and care services, there may be a risk that the checks and balances imposed through the mandatory reporting system will be undermined. This is because there is an increased risk that incidents will not be identified and reported, and this may give rise to an unacceptable risk of harm to a child or children when that person is providing education and care services. In this case, we find that that the applicant may be an unacceptable risk not only because of her past conduct but primarily from her current conduct and attitude towards her obligations to children and to the Regulatory Authority and law enforcement authorities.

Prohibition notice

Having decided that there may be an unacceptable risk of harm if the applicant is allowed to remain on education and care service premises or to provide education and care to children, the question arises about whether, in the circumstances of this case, a prohibition notice should be imposed in the current terms, or at all. It is submitted by the applicant, and her daughters on her behalf, that this is a very harsh outcome for the applicant who may now find it very difficult to undertake a role as a teacher, having recently obtained her Bachelor of Education. It is also submitted that the prohibition notice has, or will, impact her working with children check clearances.
We accept that the prohibition notice may have this consequence, although we also note that if the applicant wishes to continue to work with children, she may still be able to obtain a clearance or, at the least, an enabling order. We also note that the education and care service covered by the prohibition notice is limited under s 5 of the National Law and is not intended to cover education and care services to children under 13 years of age provided on a regular basis in a school environment. It is therefore not clear whether the applicant would be precluded from undertaking further work in a school in furtherance of her Bachelor of Education degree.
However, the impact of a prohibition notice on an applicant, while it may be relevant to consider in the exercise of discretion, is not the paramount consideration. There is a balancing exercise that must be undertaken when exercising a discretion and the Tribunal must have regard to the objectives and guiding principles of the National Law, including the safety, health and wellbeing of children, whose rights and best interests must be paramount, when exercising this discretion.
The respondent was asked whether conditions could be imposed on the applicant to mitigate any unacceptable risk of harm. The respondent submits that as the key concern is the applicant's failure to observe and understand mandatory reporting requirements and to display honesty and integrity in dealing with the regulator, it was difficult to envisage a relevant condition that could be imposed to mitigate any such risk. The applicant was not able to refer to such a condition, although we note her former lawyer suggested that the prohibition notice should be varied to preclude the applicant from holding any supervisory role for 12 months. No other conditions were suggested.
While further training on mandatory reporting may be of assistance to the applicant, there is evidence she completed further training as recently as 2022 yet still does not appear to appreciate the significance of the mandatory reporting obligation. We are therefore not satisfied that this would be an appropriate condition to otherwise allow the applicant to provide education and care services as an educator, supervisor, employee or volunteer.
We have also considered the scope of the prohibition notice. The question is whether the prohibition nominated under the notice is disproportionate to the risk (Nilufar v Secretary, Department of Education [2020] NSWCATAD 37 at [65]). While we accept that the prohibition notice is broad in its terms, because the conduct of the applicant as an "educator" has been found to have fallen short, we are not satisfied that excluding education and care services to children in other capacities, such as a supervisor, employee, staff member or volunteer, is appropriate or would mitigate the risk.
Accordingly, we are not satisfied that the notice should be varied, either through limiting its terms or by imposing conditions. We also note that the applicant may apply to the respondent to have the prohibition notice cancelled if circumstances warrant cancellation and if she is able to satisfy DoE about the various matters that resulted in the issue of this prohibition notice.

Conclusion

Having regard to the evidence, submissions and objectives and guiding principles of the National Law, we have decided to confirm the decision under review.

ORDERS

The decision of the respondent on 10 January 2024 to issue a prohibition notice is confirmed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2024

Children (Education and Care Services) National Regulations Civil and Administrative Tribunal Act 2013(NSW)

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (6)