The applicant sought review of two decisions made by the respondent, the first of which was to cancel the applicant's NDIS worker check clearance under s 18S(1) of the Disability Inclusion Act 2018 and the second was to issue a prohibition notice under s 32 of the Child Safety (Prohibited Persons) Act 2016. The respondent had found that the applicant posed a real and appreciable risk to people with disability and an unacceptable risk to children due to a long history of fraud offences. The applicant submitted that the offences were committed out of honest ignorance and are not relevant to his clearances as they do not relate to the targeting of vulnerable people. The respondent submitted that the applicant posed an increased risk of harm to people with disability and to children because his fraud offences were recurring, recent, and resulted in a sentence of imprisonment.
The applicant's long history of persistent offences of dishonesty are directly relevant to whether he should be allowed to work with people particularly vulnerable to exploitation, such as people with disability or children;
The Tribunal did not accept the applicant's assertion that he committed these offences out of an honest ignorance;
There is a risk that the aspects of the applicant's character that resulted in his commission of dishonesty offences may manifest themselves again;
Should the applicant be in a position of power or trust involving people with disability or children, there is a risk of financial harm to them;
The potential consequences of such conduct to people with disability or children are not likely to be mild or insignificant; there is a risk of serious harm.
Administrative Review - Disability Inclusion Act 2018 - Review of a decision by the Central Assessment Unit to cancel a NDIS worker check clearance - Real and appreciable risk of harm - Consideration of proven charges
Administrative Review - Child Safety (Prohibited Persons) Act 2016 - Review of a decision by the Central Assessment Unit to issue a prohibition notice - Unacceptable risk to children - Consideration of proven charges
Mr J Homburg, Gilchrist Connell, appeared for the respondent
This is a review by the Tribunal of two decisions made by the respondent on 25 October 2022.
The first is a decision to cancel a NDIS worker check clearance that had been issued to the applicant under the Disability Inclusion Act 2018 (DI Act).[1] The effect of this decision is that the applicant cannot undertake any one of the range of activities that requires a NDIS worker check clearance. The NDIS is the National Disability Insurance Scheme under the Commonwealth's National DisabilityInsurance Scheme Act 2013.[2] This decision is reviewable by the Tribunal under s 18ZI of the DI Act and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SACATAct).
The second is a decision to issue a prohibition notice to the applicant under s 32 of the Child Safety (Prohibited Persons) Act 2016 (CSPP Act).[3] The effect of the prohibition notice is that the applicant cannot undertake any one of the broad range of activities that the CSPP Act regards as working with children. This includes providing disability services for children.[4] This decision is reviewable by the Tribunal under s 43 of the CSPP Act and s 34 of the SACAT Act.
In undertaking this review, I have had regard to the material that was before the respondent, including the documents in the respondent's Books of Documents provided under s 35 of the SACAT Act, and to the additional evidence and submissions put before the Tribunal at the full hearing. The applicant was unrepresented during the hearing. Although English is not his first language, he was able to participate effectively during the hearing.
The two applications for review were heard together and turn on the same set of facts and involved generally the same submissions from the parties. It is convenient for the Tribunal to issue one Statement of Reasons dealing with both decisions together.
I explain for the reasons that follow that I am satisfied that it is appropriate to affirm each of the respondent's decisions.
The Tribunal conducts its review of the respondent's decisions as an independent body. The Tribunal will, in exercising its review jurisdiction, examine the decisions of the decision-maker by way of rehearing. On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
The procedure on a rehearing will include an examination of the evidence or material before the decision-maker and consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.
After making its decision, the Tribunal can affirm or vary the decision under review or can set the decision aside and either substitute its own decision or send the matter back to the decision-maker for reconsideration.
The applicant is a 36-year-old disability support worker.
The applicant came to Australia in 2004 as a 17-year-old refugee with his aunt and other relatives after war in his home country in West Africa. His father had been killed in that country and his mother had disappeared. He does not know if she is still alive. The applicant only spoke French at the time he came to Australia but has since learned English and completed years 10 and 11 before joining the work force.
On three occasions (in 2013, 2017 and 2022), the applicant was sentenced for the following offences against s 135.2(1) of the Commonwealth Criminal Code Act 1995 ("Obtaining Financial Advantage"). Essentially, the offending involved the applicant making false statements as to his income while he was in receipt of welfare benefits and resulted in him being overpaid $90,789.78 in benefits:
on 4 February 2013, the applicant pleaded guilty to two charges of offending and was sentenced to three months imprisonment but released on his own recognisance on a $500 bond to be of good behaviour for a period of 18 months. The offending occurred at various times in the period between July 2008 and March 2009 and involved the applicant under declaring his income on four occasions and failing to declare his income on 12 other occasions. This resulted in the applicant being overpaid $8,289.02 in benefits.
on 8 September 2017, the applicant pleaded guilty to nine charges of offending and was sentenced to nine months imprisonment and served two weeks before being released on his own recognisance on a $100 bond to be of good behaviour for a period of 24 months. The facts of the offending were that the applicant under-declared his income on 18 occasions and failed to declare his income on 51 occasions resulting in an overpayment of $32,197.24. This offending occurred at various times during the period between April 2011 and October 2015.
on 10 June 2022, the applicant pleaded guilty to three charges and was sentenced to nine months imprisonment, with two months of that sentence to be served in addition to the balance of the sentence remaining from the 2017 sentence. In total, the applicant served 10 months and 17 days imprisonment. He was released on his own recognisance on a bond of $100 to be of good behaviour for a period of two years. The applicant's offending resulted in an overpayment of $50,303.52 in the period between September 2016 and November 2019. Information as to the number of individual false declarations is not available to the Tribunal.
The Magistrate's sentencing remarks for the third sentence noted that:
the offending occurred over a period of three years and was part of a course of conduct;
the immediate relapse into non-law-abiding ways was concerning;
besides the social security fraud convictions, the applicant was otherwise of good character;
the risk of reoffending was reduced given his new employment and completed and ongoing studies, but was not low;
the offending is serious and he has been treated leniently in the past.[5]
The applicant's second and third sets of offences were each committed in breach of the periods of good behaviour imposed in the sentences for, respectively, the first and second set of offences.
In the period between the second and third set of offences, the respondent issued the applicant with a NDIS worker check clearance under the DI Act (on 1 October 2021) and the applicant was determined by the respondent not to be prohibited from working with children under the CSPP Act (on 24 November 2021).
The respondent received information from SA Police in February 2022 about the applicant's third set of offences. The respondent then commenced a risk assessment of the applicant under the DI Act and undertook a working with children check (WWCC) on its own motion under the CSPP Act. This resulted eventually in the cancellation of his NDIS worker check clearance and the issue of the prohibition notice on 25 October 2022.
Information in the respondent's Book of Documents indicates that the applicant was charged with other offences that did not result in a conviction, namely dishonestly taking property without consent (2014) and assault and property damage (2015). These offences were not the subject of submissions and, while I take note of them, I do not give them any weight for the purposes of this decision.
The long title of the DI Act explains that one of the purposes of the Act is:
to provide for the screening of persons who want to work or volunteer with people with disability and to prohibit those who pose an unacceptable risk to people with disability from working or volunteering with them. (my underlining)
[2]
Section 3(1) of the DI Act states that "disability":
in relation to a person, includes long-term physical, psycho-social, intellectual, cognitive, neurological or sensory impairment, or a combination of any of these impairments, which in interaction with various barriers may hinder the person's full and effective participation in society on an equal basis with others.
[3]
There are several objects of the DI Act. Relevantly, the objects of the Act include:[6]
providing safeguards in relation to the delivery of all supports and services for people with disability.
[4]
There are also several principles that are to be observed in the operation, administration and enforcement of the DI Act. Relevantly, this includes that:[7]
people with disability have the right to live free from neglect, abuse and exploitation.
[5]
The DI Act also requires that the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of the Act:
1. many women with disability face multiple disadvantages and are potentially more vulnerable to risk of abuse or exploitation;[8] and
2. children with disability are more vulnerable to risk of abuse or exploitation.[9]
6. A person who wishes to obtain a NDIS worker check clearance must apply to the central assessment unit (CAU) established under the CSPP Act.[10]
7. The CAU must issue a NDIS worker check clearance unless:
1. a NDIS worker check exclusion is issued under s 18J of the DI Act; or
2. the CAU is not satisfied that the applicant is or will be engaged to do NDIS work and decides to refuse the application for the clearance.[11]
8. Section 18J(1) states that the CAU must issue a NDIS worker check exclusion to an applicant for a clearance if:
1. the applicant is a disqualified person;[12] or
2. a risk assessment of the applicant is required[13] and the risk assessment determines that the applicant poses a risk of harm to people with disability.
9. Briefly, an applicant for a clearance who has been found guilty of a presumptive disqualification offence[14] is presumed to pose a risk of harm to people with disability unless the person satisfies the CAU that the offence should be disregarded or such exceptional circumstances exist that the person does not pose a risk of harm to people with disability.[15]
10. Both a NDIS worker check clearance and a NDIS worker check exclusion generally remain in force for five years unless cancelled, except where the exclusion is issued to a disqualified person in which case the exclusion is in force indefinitely.[16]
11. A NDIS worker check clearance can be suspended by the CAU if it is of the opinion that there is a reasonable likelihood that a risk assessment of the holder will determine that the holder poses a risk of harm to people with disability.[17]
12. Under s 18S(1), the CAU must cancel a person's NDIS worker check clearance if the CAU becomes aware the that:
1. the person is a disqualified person; or
2. a risk assessment determines that the person poses a risk of harm to people with disability.
13. A person is entitled under ss 18J and 18S of the DI Act to make submissions to the CAU where the CAU is considering issuing the person a NDIS worker check exclusion or cancelling a NDIS worker check clearance.
14. Generally speaking, a person to whom a NDIS worker check exclusion has been issued or who has had an NDIS worker check clearance cancelled is banned from applying for a clearance for five years unless there has been a relevant change in circumstances.[18]
Risk assessments for NDIS worker check clearances are dealt with in ss 18M to 18O in Division 3 of Part 5A of the DI Act. This provides that:
18M - Nature of risk assessment
>
> (1) A risk assessment of a person for the purposes of this Part is an assessment and determination by the central assessment unit as to whether the person poses a risk of harm to people with disability.
>
> (2) For the purposes of this Part, a reference to a risk of harm to people with disability is to be interpreted in accordance with the following principles:
>
> (a) the risk of harm must be a real and appreciable risk of harm;
>
> (b) the risk of harm does not need to be likely or significant;
>
> (c) the risk of harm need not arise from recent events.
>
> (3) In this section -
>
> harm includes -
>
> (a) any detrimental effect on a person's physical, psychological, emotional or financial wellbeing (personal harm); and
>
> (b) non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm).
>
> 18N - Requirement for risk assessment
>
> (1) A risk assessment of an applicant for, or the holder of, a clearance is required in the following circumstances:
>
> (a) if the applicant or holder is a presumptively disqualified person;
>
> (b) in the circumstances prescribed by the regulations for the purposes of this paragraph;
>
> (c) in such other circumstances as the central assessment unit may determine.
>
> (2) A risk assessment of an applicant for a clearance is required at the time of application if there are circumstances at the time of application that require a risk assessment.
>
> (3) A risk assessment of the holder of a clearance is required if the central assessment unit becomes aware that there are circumstances that require a risk assessment.
>
> 18O - Matters to be considered in risk assessment
>
> The central assessment unit is to consider the following for the purposes of a risk assessment:
>
> (a) the nature, gravity and circumstances of any offence, misconduct or other event that resulted in, or contributed to, the requirement for a risk assessment in relation to the person (a relevant event), and how it is relevant to NDIS work;
>
> (b) the length of time that has passed since a relevant event occurred;
>
> (c) the vulnerability of any victim of a relevant event at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event;
>
> (d) the person's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour;
>
> (e) the person's conduct since a relevant event;
>
> (f) all other circumstances in respect of the person's criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work;
>
> (g) such other matters as the central assessment unit considers appropriate.
The Minister has published guidelines under s 12 of the DI Act in respect of the conduct of NDIS worker checks and risk assessments (the NDIS Worker Check Guidelines).
Section 18A(8) of the DI Act provides that, in the interpretation of Part 5A, consideration may be given to the provisions of the Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme and its Schedules (as in force from time to time) (the Intergovernmental Agreement). The Intergovernmental Agreement was signed by the then Prime Minister and State and Territory leaders in 2018.
Worker screening has a preventative effect in deterring individuals who pose a high risk of harm from seeking work in the sector, and reducing the potential for providers to employ workers who pose an unacceptable risk of harm to people with disability. Worker screening also has a corrective effect in prohibiting those persons who pose an unacceptable risk or are proven to have harmed vulnerable people from having more than incidental contact with people with disability when working for a registered NDIS provider.
Clauses 14 and 15 of the Intergovernmental Agreement state:
The objective of nationally consistent NDIS worker screening is to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services under the NDIS, by:
a) demonstrating that the rights of people with disability to be safe and protected are a high community priority
>
> b) reducing the potential for providers to employ or engage individuals who pose an unacceptable risk of harm to people with disability
>
> c) prohibiting individuals who have a history of harm against people with disability from having more than incidental contact with people with disability when working for a registered NDIS provider
>
> d) deterring individuals who pose a high risk of harm from seeking work in the NDIS sector.
To realise these objectives, NDIS worker screening will be guided by the following principles:
a) Human rights-based - the paramount consideration is the right of people with disability to live lives free from abuse, violence, neglect and exploitation, consistent with the United Nations Convention on the Rights of Persons with Disabilities
>
> b) Provider duty-of-care - employers have the primary responsibility for ensuring that they do not engage unsuitable people and that their workers are not acting or behaving in any way that puts people with disability at risk
>
> c) Risk-based - ensuring decisions are made based on the potential risk an individual worker poses after assessing the details of a range of relevant information
>
> d) Proportionality - ensuring that only workers whose role poses a significant opportunity for harm are required to be screened
>
> e) Consistency - ensuring the NDIS worker screening assessment delivers the same outcome, regardless of the jurisdiction in which the assessment was conducted
>
> f) Privacy and appropriate use of information - an individual's information obtained in the course of conducting an NDIS worker screening assessment will not be used for an improper purpose and will be protected from inappropriate disclosure
>
> g) Natural justice - procedural fairness and transparency, ensuring NDIS worker screening processes and decisions will be independent and fair
>
> h) Efficiency and effectiveness - streamlined and simplified screening processes for workers and providers who operate across jurisdictions, with a single screening process for all NDIS worker roles.
Schedule B of the Intergovernmental Agreement contains the following provisions about risk:
MEANING OF UNACCEPTABLE RISK OF HARM
>
> B11 In determining whether or not a person poses an unacceptable risk of harm, the NDIS worker screening unit must consider if there is a real and appreciable risk that the applicant might in the future cause harm to people with disability.
>
> B12 Harm includes, but is not limited to, any detrimental effect on a person's physical, sexual, psychological, emotional or financial wellbeing.
>
> B13 In determining if there is a real and appreciable risk, the NDIS worker screening unit does not need to be satisfied that it is likely the person will cause harm to a person with disability in the future.
>
> B14 In determining whether or not a person poses an unacceptable risk of harm, the NDIS worker screening unit must consider the following factors, as set out in clause 66 of the Agreement:
>
> a) the nature, gravity and circumstances of the offence, misconduct and/or other relevant information, and how this is relevant to disability-related work
>
> b) the length of time that has passed since the event occurred
>
> c) the vulnerability of the victim at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event
>
> d) the person's criminal, misconduct and disciplinary, or other relevant history, including whether there is a pattern of concerning behaviour
>
> e) the person's conduct since the event
>
> f) all other relevant circumstances in respect of their offending, misconduct or other relevant history, and the impact on their eligibility to be engaged in disability-related work.
>
> B15 To determine the relative weight given to information in a risk assessment, NDIS worker screening units will take into account the context and characteristics of that information, including its reliability, how it was obtained, and the nature, extent and outcome of investigations.
>
> B16 The rights of and personal impact to an applicant or a holder of a clearance are not relevant in determining whether they pose an unacceptable risk of harm.
>
> B17 Where an applicant has multiple criminal offences of varying severity, NDIS worker screening units will consider disqualifying offences and presumed exclusion offences before considering other offences.
Part 5A of the DI Act, which commenced on 1 February 2021, appears to have been drafted to closely reflect the terms of the Intergovernmental Agreement. For example, ss 18M and 18O of the DI Act closely reflect clause 66 and Schedule B of the Intergovernmental Agreement.
A "real and appreciable" risk of harm is an unacceptable risk of harm
The long title of the DI Act refers to the relevant risk threshold to people with disability being an "unacceptable" risk. The long title is part of the DI Act.[20]
The adjective "unacceptable" is not used again in the DI Act to qualify the phrase "risk of harm". Instead, s 18M provides that "risk of harm to people with disability" is to be interpreted in accordance with the principle that "the risk of harm must be a real and appreciable risk of harm".
I am satisfied that Parliament intended that the terms "unacceptable risk" and "real and appreciable risk" be essentially synonymous. In other words, it is not every risk of harm to people with disability that must lead to the issue of a NDIS worker check exclusion but only those risks to people with disability that are unacceptable because there is a real and appreciable risk of harm to them. Therefore, it is not the case that the CAU or the Tribunal must find on undertaking a risk assessment that there is no risk of harm for a person to be issued a NDIS worker check clearance. The decision-maker may be satisfied that any risk is sufficiently mitigated in the particular circumstances.
These principles are consistent with the terms of the Intergovernmental Agreement, (which, as noted earlier, may be used as an interpretative aid in the construction of the DI Act).
The terms "unacceptable risk" and "real and appreciable risk" are not defined in the DI Act. It is permissible therefore to consider their ordinary or dictionary definitions in order to understand their meaning in the context of the DI Act.
The Macquarie Dictionary (online edition) defines "unacceptable" as:
so far from a required standard, norm, expectation, etc., as not to be allowed.
true (rather than merely ostensible, nominal, or apparent) ... existing or occurring as fact; actual.
capable of being perceived or estimated; noticeable.
exposure to the chance of injury or loss; a hazard or dangerous chance.
My research of decisions of Courts and other Tribunals indicates that the term "real and appreciable risk" is used commonly in numerous decisions across a number of different legal contexts. I am satisfied that it is appropriate that these other decisions be considered by the Tribunal in interpreting that term, especially where those other laws are also related to the protection of the public, but provided due account is given to the different legal and factual contexts in which that term has been used in those other decisions.
In R v Boyes[1861] EngR 626; [1861] 121 ER 730 at 738 (a decision concerning the privilege against self-incrimination), the Court stated that there should exist:
danger [which is] real and appreciable, with reference to the ordinary operation of law in the ordinary course of things - not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of the law and such that no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. ... But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice. (my emphasis)
In Commission for Children and Young People v V[2002] NSWSC 949 at [42] (a decision concerning whether a person poses a risk of safety to children), Young CJ said:
One does not define risk as meaning minimal risk. One would in any case ... exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. (my emphasis)
As regards an "appreciable risk", the Supreme Court said in Attorney-General v Grosser[2016] SASC 49 at [29] (a decision concerning high risk offenders) that:[21]
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. (my emphasis)
Drawing from these sources, a "real and appreciable risk" must be actual and perceptible; it must be more than a theoretical, speculative, remote or fanciful risk;[22] and must be unacceptable such that it ought not to be allowed.
In view of the national nature of the NDIS worker screening scheme, decisions in other jurisdictions, although not of course binding on the Tribunal, may be persuasive and of assistance in deciding these matters, especially as the national jurisprudence in this relatively new area of the law grows. Also, consistency of outcome regardless of jurisdiction is a principle of the Intergovernmental Agreement.[23]
I consider also that some of the principles articulated by this Tribunal in the decision GJC v Department of Human Services[2020] SACAT 38 (GJC) are relevant and should be adopted in dealing with these reviews under the DI Act. The GJC decision concerned the worker screening scheme applicable under the CSPP Act for those persons who wish to work with children. This scheme has some similar features to the scheme for NDIS worker check clearances. In particular, both schemes consider the assessment of risk of harm to vulnerable persons - children in one case and people with disability in the other case. In this regard, it cannot be overlooked that the DI Act expressly recognises that people with disability will include children with disability.[24]
Drawing from the DI Act, the Intergovernmental Agreement, decisions in other jurisdictions and from aspects of the GJC decision that I consider should be adopted for the purposes of the DI Act (with suitable adaptations), I am satisfied that the following are relevant principles for determining this review:
the conduct of a NDIS worker check risk assessment is an administrative process in the nature of an inquiry about the applicant's past behaviour and the risks to people with disability that are likely to flow from that behaviour.[25] The inquiry is entirely protective;[26]
the guiding principle (referred to as the paramount consideration in clause 15(a) of the Intergovernmental Agreement) is that people with disability have the right to live free from neglect, abuse and exploitation;[27]
a person will be found to pose an unacceptable risk of harm to people with disability if a risk assessment determines that there is a real and appreciable risk of harm to people with disability, which does not need to be a likely or significant risk of harm or arise from recent events;[28]
a "real and appreciable" risk of harm is a risk that is actual and perceptible and is more than theoretical, speculative, remote or fanciful. A risk that is fanciful, farfetched or theoretical, where the potential consequences are mild or insignificant, might be an acceptable risk.[29] It is not required that there be no risk at all.[30] This involves a "measuring or evaluative exercise as to the nature and extent of the risk"[31] and "the seriousness of the consequence if the conduct eventuates";[32]
"harm" includes any detrimental effect on a person's physical, psychological, emotional or financial wellbeing and non-consensual or inappropriate conduct of a sexual nature.[33] This may include failing to respect the privacy, dignity and safety of people with disability and making them feel uncomfortable and distressed;[34]
consideration of the factors set out in s 18O of the DI Act is a critical part of the risk assessment.[35] The ability of the CAU and the Tribunal to consider under s 18O such other matters as they consider appropriate allows consideration of matters relevant to the mitigation of risk;
the sole focus of the decision-maker is the public interest in the protection of people with disability. There is no punitive aspect to the process and no focus on the impact that a NDIS worker check exclusion will have on the individual;[36]
"unacceptable risk" or "real and appreciable risk" means that there is a risk that, if a person is allowed to work with people with disability, this will not ensure the adequate protection of people with disability and therefore this ought not to be allowed;[37]
the task is to consider whether, having regard to the likelihood of the person behaving in a certain way in the future, and the behaviour that is likely to occur, the risks or consequences of that behaviour are so unacceptable that it is necessary, in the interests of people with disability to ensure that the person does not work with people with disability;[38]
where the possible future harm is serious then even a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome or risk to be unacceptable;[39]and
for the reasons articulated in GJC as to assessments of the likelihood of future events, the standard of satisfaction for the decision-maker is not the balance of probabilities.[40] It is a statutory standard which cannot be measured against or equated to the criminal or civil standards of satisfaction. The decision-maker is required to reach a standard of reasonable satisfaction as to the ultimate issue of whether a person poses an unacceptable or real and appreciable risk to people with disability. This must be based on careful weighting of information and a process of reasoning that is neither illogical or irrational.[41]
I consider also that the passage from GJC that is set out in para 77 of these reasons summarises the principles that should also be applied regarding the standard of proof applicable to the assessment of risk to people with disability under the DI Act, with the references in the passage to the risk to children equally applicable to people with disability.
The statutory regime established under the CSPP Act is complex. This was addressed in substantial detail by the Tribunal in the GJC decision and are outlined below.
It is an offence under s 15 of the CSPP Act for a "prohibited person" to work with children. Section 6 of the CSPP Act and reg 7 of the Child Safety (Prohibited Persons) Regulations2019 generally make provision for what will constitute working with children.
A "prohibited person" is a person:
to whom a prohibition notice has been issued under the Act; or
who is prohibited from working with children under another Australian law; or
who has been found guilty of a prescribed offence[42] committed as an adult.
The employer of a prohibited person also commits an offence under s 15 if they employ the person in prescribed positions.[43]
Under s 16 of the Act, it is an offence for a person who is not an excluded person to work with children unless a WWCC has been conducted in relation to the person within the preceding five years.
The penalties under ss 15 and 16 are significant and include the potential for imprisonment for up to a year.
Critical to the Tribunal's decision are the objects and principles of the CSPP Act. They are found in s 3 of that Act. They relevantly state:
(1) The primary object of this Act is to minimise the risk to children posed by persons who work with them.
(2) In order to further the primary object, it is a further object of this Act to provide a framework for the prohibition of persons who pose an unacceptable risk to children from working with them.
(3) The paramount consideration in respect of the administration, operation and enforcement of this Act must always be the best interests of children, having regard to their safety and protection.
(4) The following principles must be taken into account in connection with the administration, operation and enforcement of this Act:
(a) a working with children check relating to a person is conducted by the central assessment unit to determine (based on an assessment of information available to the central assessment unit) -
(i) whether the person poses an unacceptable risk to children; and
(ii) whether the person should be prohibited from working with children;
(b) persons who pose an unacceptable risk to children are to be prevented from working with children ...
I accept as correct and adopt the principle articulated by the Tribunal in a different case that the CSPP Act evinces the intention that working with children is a privilege not a right.[44]
Part 5 of the CSPP Act establishes the CAU; provides that its powers are relevantly to conduct WWCCs and to issue or revoke prohibition notices; and that in doing so it must have regard to, and seek to give effect to, the objects and principles set out in s 3 of the Act.
Section 4 of the CSPP Act relevantly provides that the Minister must make guidelines for procedures and standards to be followed by the CAU when conducting WWCCs (the CSPP Guidelines).
Section 26 provides for the conduct of WWCCs and states that:
(1) A working with children check in respect of a person consists of the central assessment unit assessing assessable information relating to a person against the prescribed risk assessment criteria to determine whether or not the person poses an unacceptable risk to children.
(2) Nothing in subsection (1) requires the central assessment unit to assess all assessable information relating to a person (and the fact that the central assessment unit did not assess all assessable information relating to a person in the course of a working with children check does not, of itself, invalidate the working with children check, or a decision of the central assessment unit made in relation to the working with children check).
(3) In conducting a working with children check, the central assessment unit -
(a) is not bound by the rules of evidence; and
(b) may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal; and
(c) may otherwise inform itself as it thinks fit.
(4) A working with children check must be conducted in accordance with any other requirements set out in the regulations and the guidelines (however, a failure to comply with this subsection does not, of itself, invalidate a working with children check).
(5) On completing a working with children check in respect of a person, the central assessment unit must determine whether the person is, or is not, to be prohibited from working with children.
(6) To avoid doubt, a working with children check may be used in relation to any child-related work despite being conducted in relation to a particular position, service or activity or employer.
(7) In this section -
prescribed risk assessment criteria means the risk assessment criteria set out in the guidelines.
In respect of risk assessment criteria, the CSPP Guidelines state that:[45]
While the weight given to information relates to the quality of the evidence, or the degree of reliance the central assessment unit decision maker may place on the information before them, the risk assessment criteria is concerned with the content of the information or evidence. The central assessment unit decision maker must consider the substance of the information and have regard to:
the nature, gravity and circumstances of the information including criminal offences, child protection information or disciplinary or misconduct information and how this is relevant to children or child related work;
the length of time that has passed since the event occurred;
the vulnerability of the victim at the time of the event including the age of the victim, the age of the person at the time of the event, the age difference between the person and the victim and the person's relationship to the victim or position of authority over the victim at the time of the event;
the person's criminal, child protection, disciplinary or misconduct and/or other relevant history, including whether there is a pattern of concerning conduct;
the person's conduct since the event;
all other relevant circumstances in respect of the information including offending, child protection, disciplinary or misconduct and/or other information or other relevant history, and the impact on their eligibility to be engaged in child related work. In weighing up the risk assessment criteria, the paramount consideration must be the best interests of children, having regard to their safety and protection.
The CSPP Guidelines also state that the factors that should not be taken into consideration when conducting a risk assessment are:[46]
the impact of a prohibited outcome on the person - the rights of, or personal impact on the person the subject of the application, should they be prohibited from working with children following a risk assessment are not relevant considerations in assessing whether they pose an unacceptable risk to children;
the role of the person the subject of the application - a working with children check outcome is portable between roles and employers. Any stated role of the person at the time of application or throughout the assessment process bears no weight as to whether the applicant poses an unacceptable risk to children; and/ or
lived experience - it is acknowledged that some individuals, by virtue of their history, have valuable lived experience to share with children, and that a person can make significant changes in their life, this alone is not relevant for the risk assessment. The role of the central assessment unit is to determine whether, based on assessable information, a person poses an unacceptable risk to children. It is not to assess suitability for employment; this is an employer's responsibility.
The Tribunal observed in GJC that as assessable information will often include information that has not been scrutinised or tested in a criminal or civil court, or by a disciplinary or employment tribunal (and may include hearsay or mere allegations of misconduct obtained from diverse sources), a comprehensive and meticulous approach to the scrutiny and evaluation of such information is clearly essential.[47]
Section 32(1) of the CSPP Act states that:
If the central assessment unit determines under section 26(5) that a person is to be prohibited from engaging in child-related work, the central assessment unit must, in accordance with the regulations,[48] issue a notice to the person prohibiting the person from engaging in child-related work (a prohibition notice).
Briefly, an applicant for a WWCC who has been found guilty of a presumptive disqualification offence[49] is presumed to pose an unacceptable risk to children unless the person satisfies the CAU that the offence should be disregarded or such exceptional circumstances exist that the person does not pose an unacceptable risk of harm to children.[50]
Under s 33, the CAU has the power to revoke a prohibition notice in certain circumstances.
The leading decision on reviews under s 43 of the CSPP Act is the decision of this Tribunal in GJC. This decision has been followed in numerous subsequent decisions of the Tribunal.
The term "unacceptable risk" is not defined for the purposes of the CSPP Act. In GJC, the Tribunal said the following about what "unacceptable risk" to children is in the context of the CSPP Act (footnotes omitted):
Courts in Australia have accepted that the concept of 'risk' involves two elements: the degree or likelihood of the occurrence of an event and the possible consequences if it does.
The term 'risk' is further qualified in the CSPP Act. It requires an assessment of whether there is an 'unacceptable risk' to children. Parliament has seen fit to employ this phrase in the legislation as opposed to "a risk" or "any risk"; as such, in my view, this connotes a measuring or evaluative exercise as to the nature and extent of the risk. In my view 'unacceptable risk' must be interpreted in the context of the specific legislation and in consideration of the objects and purpose of the legislation, which is to minimise the risk to children from adults who may potentially pose a risk to their safety.
... the term 'unacceptable risk' as described in section 26(1) of the CSPP Act is that there is a risk that, if a person is allowed to work with children, this will not ensure the adequate protection of children.
Therefore, the task of the Central Assessment Unit (or, on review, of the Tribunal) must be to consider whether, having regard to the likelihood of the person behaving in a certain way in the future, and the behaviour that is likely to occur, the risks or consequences of that behaviour is so unacceptable that it is necessary in the interests of children to ensure that the person does not work with children.
I agree that the Tribunal does not need to be satisfied that it is more likely than not that the concerning conduct will again eventuate, but merely that there is risk that if it does it will cause harm to children and that this is unacceptable.
It follows that where the possible future harm is serious then even a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome, or risk to children, as unacceptable.
Behaviour or conduct of adults that may result in the risk of future serious harm to children would include assessable information demonstrating (or giving rise to the reasonable suspicion of) past sexual abuse, physical abuse, emotional or psychological manipulation, intimidation or harassment, sexual violence or gross neglect of children or adults.
Much of this conduct is encapsulated by the types of criminal offences for which a conviction would amount to an automatic or presumptive prohibition under the CSPP Act.
Other examples of an adult's conduct that may lead to real concerns about risks to children might include past conduct amounting to the "grooming" of children, poor boundary recognition in a relationship where there is a power imbalance, behaviour such as 'peeping tom' or prurient interest conduct, the viewing of unsuitable or violent videos in the presence of children, the possession of child pornography, or the possession of some types of adult pornography (which may say a great deal about the sexual mores of a person if combined with other risk factors).
Where, however, the likely impact on a child or children is of a more moderate nature (and particularly if it is combined with a low possibility or likelihood of that risk occurring) it may be appropriate to treat that risk against the background of other factors (such as the level of insight of the person, the success of any rehabilitation etc.) as "acceptable".
Some examples of less serious direct risks to children might be those associated with a person's somewhat dysfunctional or hazardous lifestyle (such as prolonged drug use, or isolated violent offending towards an adult), or the imposition on others of social or religious attitudes that are considered to be questionable or outside of broader community norms.
To summarise: in my view the term 'unacceptable risk' requires an evaluation of the nature and degree of the risk to children and whether it is acceptable to allow it, i.e. a consideration of the likelihood of offending/or conduct occurring in the future and the seriousness of the consequences if the conduct eventuates.
Conversely, an acceptable risk might be one which is fanciful, farfetched or theoretical and where the potential consequences to children are mild or insignificant.
As to the requisite standard of proof, the Tribunal said in GJC:
In my view the decision-maker is required to reach a standard of reasonable satisfaction as to the ultimate issue (i.e. whether the person poses an unacceptable risk to children) based on a careful weighting of information and a process of reasoning about the ultimate issue that is neither illogical nor irrational. This might correctly be described as a statutory standard ...
To summarise, in my view the correct approach by the decision-maker to assessing unacceptable risk to children in the context of s 26 of the CSPP Act is as follows:
The decision-maker's task under the CSPP Act is to determine only whether the Applicant poses an unacceptable risk to children (the ultimate or wider issue). If the conclusion is that he or she does, the determination that must follow is that he or she I to be prohibited from working with children. No conditions can be applied to the decision to issue a notice (such as supervision); the outcome is 'prohibited' or 'not prohibited'.
This process involves a consideration of the assessment of the information and risk issues as one task to determine the 'degree of concern' that the evidence evokes about an individual and the risk he or she poses to children.
The decision-maker may make positive findings as to any alleged act of wrongdoing to a standard equating to the balance of probabilities. In making those findings the decision-maker may, but need not have regard to the considerations expressed in Briginshaw v Briginshaw. This will depend on the nature of the allegations and the findings to be made.
If positive findings are to be made about very serious allegations (in the absence of a criminal conviction), such as the sexual abuse of a child, the decision-maker should only do so on a standard equating to the balance of probabilities. It would be appropriate in such a case to also have regard to the considerations expressed in Briginshaw v Briginshaw concerning the need for careful scrutiny of evidence and the degree of comfortable satisfaction required.
A positive finding to such a standard that relevant conduct has taken place, if such findings can be made, will generally have a "decisive impact" on the outcome of the application regarding the assessment of future risk to children.
Alternatively, the decision-maker may have no hesitation in rejecting the allegations of past conduct as groundless. In such a case the outcome of the risk assessment will be that there is no future risk to children.
However, it is not necessary for the decision-maker to be satisfied on the balance of probabilities to make any positive findings that an allegation of past conduct has been made out when determining the ultimate issue about unacceptable risk.
The decision-maker is entitled to consider the totality of the assessable information (after careful scrutiny and 'weighting') and the related risk factors, even if no individual act is proved to a standard equating to the civil standard, and find that the information cumulatively raises 'issues of concern' i.e. the decision-maker is not satisfied that the alleged conduct did not occur and the concern about risk to children therefore remains.
Cancellation of NDIS worker check clearance - DI Act
The decision made on 25 October 2022 under the DI Act indicates that a risk assessment was undertaken following receipt of information as to the applicant's 2022 sentencing and after consideration of the nature of the offending, the sentence imposed, the sentencing remarks and a submission from the applicant.
The applicant had been invited to make a submission to the CAU in respect of it taking this action. Briefly, in his letter dated 4 August 2022 the applicant states that:
he has never worked "full-time" in Australia and only ever worked casual or permanent part-time;
before his latest conviction, he thought that income reporting to Centrelink was only compulsory for full-time workers. He never had the reporting system explained to him until the previous year. Since then, he has been reporting his income properly;
he does not pose a risk to children, vulnerable or aged people and has never committed any crime against them or any member of the community;
his crimes against Centrelink were committed out of ignorance and he is remorseful for what he did;
he has four children and has never been a risk to them and has always been a good father and good family man;
he loves helping people in need and caring for people and wants to continue working with disabled people to give back to the community that gave him a second chance in life; and
he is a good and honest person who has been working with disabled people for over a year and has never done them wrong or thought of doing them wrong.
In the decision to cancel the applicant's NDIS worker check clearance, the decision-maker stated:
Your criminal history spans 2013-2022 [sic], and is assessed as significant, adverse and demonstrates a pattern of offending which poses a real and appreciable risk of harm to persons with a disability. You present with 23 [sic] fraud offences and are currently incarcerated due to your consistent pattern of offending. Your most recent offending occurred while you were subject to a suspended sentence bond for previous offences, and indicates deliberate and premeditated behaviour. The monetary amounts involved in your offending have been significant, and your offending has occurred over an extensive period of time which is assessed to form an adverse pattern of conduct. You are currently serving a term of imprisonment for serious offending, which is determined to heighten your risk when assessing this NDIS worker application ...
>
> You present with recent, serious criminal convictions which suggest a risk of harm remains present, and you have yet to demonstrate an offence free period which would indicate that changes have been sustained such that would mitigate the associated risk.
>
> The Central Assessment Unit has determined that you pose a real and appreciable risk of harm to people with disability and your NDIS worker check clearance is cancelled.
The letter advising the applicant of the issue of the prohibition notice sets out the reasons for the decision. The applicant had been invited to make submissions to the CAU before it took this action. It appears that he intended that his submissions of 4 August 2022 be considered for this purpose also.
The reasons given by the CAU for the issue of the prohibition notice are essentially identical to the reasons for the cancellation of the applicant's NDIS worker check clearance that are extracted above (save for references to the risk of harm to children rather than the risk of harm to people with disability).
The applicant provided written submissions to the Tribunal prior to the full hearing and in answer to the written submissions that had been earlier provided by Mr Homburg on behalf of the respondent. Although the applicant's written submissions address only the decision to cancel his NDIS worker check clearance, he indicated at the hearing that he means them to generally apply also to the decision to issue him with a prohibition notice under the CSPP Act.
Briefly, the applicant's written submissions acknowledge the purpose of NDIS worker checks is to safeguard vulnerable individuals. However, he asserts that his crimes were much less serious than listed in the notice and that they are not relevant to his clearance as they do not relate to the targeting of vulnerable people, such as the aged and children, or any member of the public. He stated that his offending was honest ignorance due to him not understanding the way the system worked, as a migrant coming from a war-torn country with English as his second language. He said that he is a good person and a good member of the community. He said that he has undergone OARS financial counselling and has been reporting his income to Centrelink. He said that he has done his punishment and has also done community service to repay the community. He said that he has learned from his mistake and has been educating people in his community about how to report income properly to Centrelink.
The applicant's oral submissions at the hearing were generally consistent with his written submissions in this regard. The applicant also stated at the hearing that the fact that he immediately reoffended after his sentencing demonstrates that he did not understand his reporting obligations as he would not have reoffended if he did understand them.
The applicant observed in his written submissions that the NDIS worker check process places an unnecessary burden on workers. He acknowledged again that it serves a critical purpose in safeguarding vulnerable individuals but said that it was necessary to strike a balance between inclusivity and risk management. He concluded that "rather than cancelling the checks, let us focus on improving the process and providing support to workers, ensure a fair and efficient system for all involved".
The applicant also supplied the Tribunal with a brief character reference dated 20 February 2023 from Reverend Ralph Legge of the City International Christian Church.
Rev Legge states that, to his knowledge, the applicant has not committed any crime against children, aged people, disabled people or any other vulnerable member of the public. He writes that the applicant "has learned a painful but valuable lesson and is ready now to resume his employment in these areas".
Mr Homburg submitted that both of the decisions under review should be affirmed by the Tribunal as the correct or preferable decisions.
Mr Homburg submitted in respect of the decision under the DI Act that the Tribunal's approach should be the same as that taken under the CSPP Act and articulated in GJC. He submitted that:
the CAU is not required to make a positive finding about the foundational facts giving rise to the concern of risk of harm to people with disability in order to reach a level of reasonable satisfaction that the statutory standard of risk of harm to people with disability is met. A finding of risk of harm can still be made even where the CAU is not satisfied on balance that the concerning conduct the subject of the foundational facts did occur. The CAU may be satisfied of risk of harm of concerning conduct if it is unable to exclude the possibility that the concerning conduct the subject of the foundational facts did occur.
He submitted that when conducting a risk assessment under the DI Act, the decision-maker should not take into account the impact of an exclusion on the applicant, nor the nature of the role of the applicant at the time of application, nor any value that might accrue to the community from the applicant's employment. He made similar submissions in respect of WWCCs under the CSPP Act.
Mr Homburg took the Tribunal to the parts of the Guidelines for NDIS worker checks and the Guidelines for WWCCs that he submitted applied to the applicant. These guidelines are separate but similar in nature. Mr Homburg submitted that the guidelines indicated that the applicant posed an increased risk of harm to people with disability and to children, including because his offending for fraud was prolonged, recent and has recurred; that he was an adult when it occurred; and that he was sentenced to imprisonment for his offending.
He submitted that the characteristics of the applicant's offending behaviour translate directly as a risk of harm to people with disability and to children and that the risk of harm is neither fanciful nor theoretical.
Mr Homburg submitted that the applicant's assertion that he did not understand his reporting obligations to Centrelink may be tenable in relation to the first set of offences, was less tenable in respect of the second set of offences, but was untenable in respect of the third set of offences.
Mr Homburg submitted that little weight should be given to Rev Legge's reference as it is not evident that Rev Legge has knowledge of the applicant's past character and behaviour.
I agree that it was reasonable and appropriate for the CAU to undertake a NDIS risk assessment and a fresh WWCC in respect of the applicant on being informed by SA Police of the third set of offences he had committed.
The applicant has a long history of persistent offences of dishonesty. As such, these offences are directly relevant to whether he should be allowed to work with people particularly vulnerable to exploitation, such as people with disability or children.
I do not accept the applicant's assertion that he committed these offences out of an honest ignorance of his reporting obligations to Centrelink. While this assertion may possibly be sustainable in respect of the first set of offences,[51] I reject it in respect of the second and third set of offences. The applicant's assertion of ignorance is simply not credible. It is against the evidence and the reasonable inferences that the Tribunal may draw from the evidence.
In particular, the applicant pleaded guilty to all offences against him. He told the Tribunal at the hearing that he was legally represented on every occasion. I do not accept that the factual basis of his offences was never explained to him at any time while he was being dealt with by the Court for his offending. In fact, the applicant conceded at the hearing that the charges were explained to him as resulting from him not reporting his income properly but he said that he was confused by the formal title of the offences (which was "Obtaining Financial Advantage").
Also, the applicant's explanation that he thought reporting obligations were confined to "full-time" workers is not plausible. Many instances of the applicant's offending were because he under-declared his income. When this was brought to his attention during the hearing, he said that on some occasions he declared income even though he was not obliged to do so. He also pointed to confusion resulting from mental health difficulties he experienced following a serious vehicle accident some time ago, and said that he is now receiving treatment under a mental health plan.
I agree with Mr Homburg's submissions that the applicant's offending has significant features that would indicate a risk of harm to people with disability and to children. I agree also with Mr Homburg's reasons for giving little weight to Rev Legge's character reference.
Even though the applicant's offences of dishonesty have not been committed against people with disability or children or other vulnerable persons, the nature of his offending is relevant to whether he can be entrusted with working with vulnerable persons. In particular, the wilful, recent, prolonged and recurring pattern of the applicant's offending of dishonesty, committed by him as an adult, is particularly adverse to the applicant.
Also adverse to the applicant are his immediate reoffending and consequent breaches of the court ordered periods of good behaviour, his failure to be deterred from offending by the sentences that he has received, and his attempts to minimise personal responsibility for his conduct.
These factors all indicate a disregard for the law which reflects poorly on the applicant's character.
His attempt to minimise his personal responsibility for his offending also suggests an inadequate level of insight as to the seriousness of his offending despite his expressions of remorse and regret.
There are few features present in this case that would demonstrate a decreased risk of harm to people with disability or to children. I am not satisfied that sufficient time has elapsed since the applicant's last offending to demonstrate a significant mitigation of the risk of harm that the applicant's poses to people with disability or to children.
I find that there is a risk that is not theoretical, speculative, remote or fanciful that the aspects of the applicant's character that resulted in his commission of offences of dishonesty for personal gain may manifest themselves again. If that were to happen while the applicant was in a position of power or trust involving people with disability or children, particularly as this work often involves one-on-one contact, there is a risk of financial harm to them. The potential consequences of this conduct to people with disability or children are not likely to be mild or insignificant. There is a risk of serious harm.
I am reasonably satisfied therefore that the applicant currently poses a real and appreciable risk of harm to people with disability and an unacceptable risk of harm to children.
As noted earlier, the purpose of the worker checks system is purely protective in nature. That means that, in making my decision, I cannot take into account factors personal to the applicant, including the tragedies and hardships he has endured, nor the possible effect on his livelihood of affirming the CAU's decisions. I also cannot take into account his criticisms of the NDIS worker check scheme as the role of the Tribunal is only to undertake a review of the CAU's two decisions not to engage itself in the policies underlying the decisions.
In view of my findings, the correct or preferable decision in respect of the applicant's NDIS worker check clearance was to cancel it under s 18S of the DI Act and to issue the applicant with an NDIS worker check exclusion under s 18J of that Act. The CAU's decision to issue a prohibition notice under the CSPP Act was the correct or preferable decision.
The Tribunal affirms the two decisions under review.
[22] See also R v Tan[2001] WASC 275 at [39] (whether the risk of goods being concealed, lost or destroyed justifies the exercise of the power of entry search and seizure without a warrant) and Webb v Commissioner of Police, New South Wales Police[2004] NSWADT 110 at [32] (a decision concerning a firearms licence).
[23] Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme, clause 15(e).
[36]GJC v Department of Human Services[2020] SACAT 38 at [121] and Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme, Schedule B, para B16.
[40] On this point, the Tribunal should not follow Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships[2022] QCAT 386 at [27] as to the applicable standard of proof being the balance of probabilities.
Australian Civil and Administrative Tribunal Act 2013
Interpretation Act 2021
Inclusion Act 2018
Safety (Prohibited Persons) Act 2016
Disability Insurance Scheme Act 2013
Code Act 1995
Young People (Safety) Act 2017
Scheme Act 2013
Inclusion (NDIS Worker Check) Regulations 2020
Safety (Prohibited Persons) Regulations 2019
Cases Cited (1)
Griggs v Department of Human Services [2023] SACAT 60 (28 July 2023)
The standard of satisfaction in the assessment of the ultimate issue is a statutory standard of 'reasonable satisfaction that the person poses an unacceptable risk to children', which cannot be measured against, or equated to, an evidential standard of proof.
This means the decision-maker does not necessarily need to be satisfied that it is likely, to any standard or level of satisfaction (such as the balance of probabilities), that the person will cause harm to a child in the future, merely that there is a possibility of future harm to children, and that the potential consequences to children would be serious if the perceived risk eventuated.
However, the final decision reached about whether the person poses an unacceptable risk to children must not be arbitrary or capricious: it must be a reasoned decision based on a careful weighting of all of the assessable information and a rational assessment of future risk.