The CAU submitted that the Tribunal should affirm both decisions as the allegations against Ms Gupta gave rise to a real possibility of past abuse against vulnerable persons and the totality of the evidence clearly demonstrated that there is a possibility of harm to vulnerable persons under Ms Gupta's supervision, including both children and people with disability.

• The Tribunal is reasonably satisfied that Ms Gupta poses an unacceptable risk to children and a real and appreciable risk to people with disability;
• The correct or preferable decision is to affirm both decisions under review.

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 - Assessable information in making a determination

Administrative Review - Disability Inclusion Act 2018 - Review of a decision by the Central Assessment Unit to issue a NDIS worker check exclusion - Real and appreciable risk of harm - Assessable information in making a determination

Child Safety (Prohibited Persons) Act 2016 ss 3, 32

Disability Inclusion Act 2018 ss 18J, 18M, 18O

Legislation Interpretation Act 2021 ss 3, 32

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 35, 38, 39

Badea v Department of Human Services [2024] SACAT 37

Briginshaw v Briginshaw [1938] HCA 34

GJC v Department of Human Services [2020] SACAT 38

GM v Department of Human Services [2024] SASC 23

Griggs v Department of Human Services [2023] SACAT 60

M v M [1988] HCA 68Marshall v Department of Human Services [2023] SACAT 83

Penn v Department of Human Services [2024] SACAT 11

Schinckel v Registrar of Firearms [2020] SASC 236

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. This is a review of a decision of the respondent (the CAU) on 25 August 2023 to issue to Ms Gupta a prohibition notice under section 32 of the Child Safety (Prohibited Persons) Act 2016 (CSPP Act) and an NDIS worker check exclusion notice under section 18J of the Disability Inclusion Act 2018 (DI Act).[1]
2. The effect of the prohibition notice and of the exclusion notice is that Ms Gupta cannot undertake any one of the broad range of activities that the CSPP Act regards as working with children and cannot undertake any one of the range of activities that requires an NDIS worker check clearance.
3. In undertaking this review, I have had regard to the voluminous material that was before the CAU, including the documents in the CAU's four Books of Documents provided under section 35 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act), and to the additional evidence and submissions put before the Tribunal at the full hearing. This included Ms Gupta's two affidavits and the oral evidence given by Ms Gupta under affirmation on the second hearing day.[2]
4. The two applications for review were heard together. They turn on the same set of facts and involved the same submissions from the parties.
5. I explain in these reasons why I am satisfied that the correct or preferable decision in each case is to affirm the CAU's decision.

1. Ms Gupta is a 32 year old lady of petite stature who has worked as a disability support worker.
2. At the relevant times, Ms Gupta was an employee of two agencies (Drake Medox and Mediserve) and provided disability support services to residents of two group care homes operated in the Adelaide metropolitan area by the Department of Human Services (the Department), one in the western suburbs and one in the northern suburbs. The relevant residents were generally vulnerable adult persons with intellectual disabilities.
3. There are a total of 15 separate allegations made against Ms Gupta. These are summarised below (in parentheses are the dates of the alleged occurrences):[3]

Allegation 1: Ms Gupta had given keys to a vulnerable client with high and complex needs which could allow her access to cupboards where chemicals and knives are kept (on or around 9 November 2020);

Allegation 2: Ms Gupta facilitated vulnerable clients with high and complex needs accessing the hallway cupboard containing cleaning equipment and chemicals, access to the food chest which is locked to prevent the alleged victim from gorging and making herself ill and access to other areas of the house containing medication and money (undated);

Allegation 3: Ms Gupta allowed the alleged victim to eat three quarters of another resident's birthday cake, all the dinner cooked on a separate night and a large tin of spaghetti on another occasion (multiple dates);

Allegation 4: Ms Gupta did not follow meal plans for her clients and would buy takeaway leading to excessive weight gain (multiple dates);

Allegation 5: Ms Gupta did not follow the driving support plan when a vulnerable client with high and complex needs took off her seatbelt in the car, which includes stopping the car and putting the client's seatbelt on (multiple dates);

Allegation 6: Ms Gupta stood and watched as a vulnerable client with high and complex needs entered the driveway of the residence in her underwear and shirt attempting to take out the bins (23 November 2020);

Allegation 7: Ms Gupta hit a vulnerable client with high and complex needs on the arm, back and shoulder when "misbehaving" (undated);

Allegation 8: At the public toilets at Outer Harbour, Ms Gupta pinched a vulnerable client with high and complex needs on the breast in an attempt to stop the victim from grabbing Ms Gupta's ponytail (27 March 2021, at around 9am-10am);

Allegation 9: While at Port Adelaide, the alleged victim grabbed Ms Gupta's wrist. Ms Gupta then grabbed the vulnerable client's wrist and pinched her wrist so that the victim would let go (27 March 2021);

Allegation 10: While at Port Adelaide, the alleged victim grabbed Ms Gupta's ponytail, Ms Gupta then grabbed the vulnerable client's nipple and pinched her (27 March 2021);

Allegation 11: While at Port Adelaide, a vulnerable client with high and complex needs was self-harming by punching herself in the head which Ms Gupta stood by and watched (27 March 2021);

Allegation 12: At approximately 3pm while at the Angle Park Community Centre swimming pool, the alleged victim grabbed Ms Gupta's ponytail, Ms Gupta then turned around and grabbed the alleged victim's breast/nipple area and pinched it so hard that the alleged victim screamed (27 March 2021);

Allegation 13: Ms Gupta drove erratically and recklessly causing her to mount a kerb while a client was in the car (31 March 2021);

Allegation 14: Ms Gupta sleeps while on shift (multiple dates); and

Allegation 15: At the Angle Park Community Centre swimming pool, Ms Gupta grabbed the alleged victim's breast with her palm and squeezed it a few times in an attempt to cause the alleged victim to let go of her (6 April 2021).

1. Ms Gupta denies all of the allegations made against her.
2. Ms Gupta's employment with Drake Medox and Mediserve was terminated around the time of the last of these allegations. She has been unemployed since losing her NDIS worker check clearance.

Review under section 34 South Australian Civil and Administrative Tribunal Act 2013

1. The Tribunal conducts its review of the CAU'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.
2. 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.
3. 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.

1. I discussed the applicable legal issues in the decision of Penn v Department of Human Services [2024] SACAT 11 (Penn). Penn also involved decisions to issue a prohibition notice under the CSPP Act and an NDIS worker check exclusion under the DI Act. I adopt what I said in Penn, however I set out those principles again below for the sake of convenience.
2. In particular, I adopt in this decision what I said in Penn at [41], namely that the principles developed in decisions concerning working with children checks[4] apply also to clearances under the DI Act given the similarities in the statutory schemes and their purposes and objects.
3. The Penn decision was brought to the parties' attention in this matter but neither made any submissions about it to the Tribunal.

1. The statutory schemes for worker checks established under the CSPP Act and the DI Act are complex. In respect of the CSPP Act, the statutory provisions were addressed in substantial detail by the Tribunal in GJC v Department of Human Services [2020] SACAT 38 (GJC) and, in respect of the DI Act, in the decision of Griggs v Department of Human Services [2023] SACAT 60 (Griggs). I adopt what was said in GJC and Griggs about the relevant statutory provisions.
2. There are considerable similarities between the two schemes. In brief, the CSPP Act and DI Act establish a regime for the screening by the CAU of (respectively) people who want to work with children or with people with disability and for the prohibition of those persons who would (respectively) pose an unacceptable risk of harm to children or a risk of harm to people with disability. The screening process occurs by the CAU considering assessable information[5] of past behaviour and undertaking an assessment of potential future risk (with reference to Ministerial Guidelines[6]). As discussed further below, this involves a weighting process that takes into account, amongst other things, the reliability and context of the assessable information, the likelihood of recurrence of concerning conduct and the potential consequences of such conduct were it to recur.[7]
3. "Unacceptable risk" is not defined in the CSPP Act. However, in GJC, the Tribunal found that unacceptable risk means that there is a risk that, if a person is allowed to work with children, this would not ensure the adequate protection of children.[8]
4. Section 18M of the DI Act provides that a "risk of harm" to people with disability means real and appreciable risk of harm, which does not need to be likely or significant or arise from recent events, and that "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.
5. Both Acts set out certain objects or principles to be observed. Under the DI Act, this includes that people with disability have the right to live free from neglect, abuse and exploitation and a recognition that women and children are more vulnerable to risk of abuse or exploitation.
6. The Intergovernmental Agreement that is referred to in more detail in Griggs (and which is an interpretive aid in the construction of the DI Act) provides in clause 15 that, to realise the objective of protecting people with disability, NDIS worker screening is to be guided by a number of principles. This includes that "the paramount consideration is the right of people with disability to live lives free from abuse, violence, neglect and exploitation".
7. Section 3 of the CSPP Act sets out its objects and principles. In brief, they relevantly state that the primary object of the Act is to minimise the risk to children posed by persons who work with them and that the paramount consideration must always be the best interests of children, having regard to their safety and protection. Further, persons who pose an unacceptable risk to children are to be prevented from working with children.
8. In each case, there is no punitive or deterrent aspect to a risk assessment. However, the effect on an individual of not receiving a clearance is not relevant to the ultimate issue of whether they pose an unacceptable risk to children or a risk of harm to people with disability. The objects of the legislation are entirely protective of children and people with disability.
9. The CSPP Act evinces the intention that working with children is a privilege not a right and that the risk of injustice to an applicant is preferred over a risk to the safety of children.[9] I consider that these principles apply also to persons who would seek an NDIS worker check clearance under the DI Act to work with people with disability.[10]

Dealing with assessable information that discloses conduct of concern

1. A determination on the ultimate issue of risk involves first a finding as to the likelihood of the conduct of concern having occurred.
2. The CSPP Act Guidelines state:

Information that is of low quality (i.e. incomplete, vague, circumstantial or uncorroborated) will be given less weight than evidence that is direct, unrefuted or supported by other information from a reliable source. For example, information provided by an independent witness or notifier regarding abuse sustained by a child will attract greater weight than information offered by a person whose evidence may be compromised in some way.[11]

To determine the relative weight given to information in a risk assessment, the central assessment unit should take into account the context and characteristics of that information, including its reliability, how it was obtained, and the nature, extent and outcome of misconduct investigations. > > The weight attributed to sources of information (evidence) refers to the quality and/or reliability, or persuasiveness of the information. In the context of a risk assessment, it is the emphasis or degree of reliance a decision maker may place on the different pieces of information before them. Information that is indefinite, vague, or improbable will be given less or no weight in comparison to evidence that has been tested by a court of law or is direct and unrefuted.[12]

4. The Tribunal is not bound by the rules of evidence and may inform itself as it sees fit.[13] However, the Tribunal observed in GJC that, as assessable information will often include information that has not been scrutinised or tested in a court or 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 the information is essential.[14]
5. The conduct of concern may in some cases be proven to a high standard, for example, by admissions or by findings in criminal proceedings that are established on the usual criminal standard of beyond reasonable doubt.
6. In other cases, the CAU or the Tribunal may be satisfied on the evidence that the allegations made against the applicant are groundless. Those allegations are to be ignored in the risk assessment.
7. The CAU or the Tribunal may be satisfied on the civil standard of the balance of probabilities (with, where relevant, additional consideration of the Briginshaw[15] factors) that the conduct of concern occurred.
8. In Briginshaw, his Honour Justice Dixon said at 362-363:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences...This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

9. Or, the CAU or the Tribunal, may not be so satisfied but, nevertheless, cannot be satisfied that the conduct did not occur.
10. Where conduct of concern is admitted or proven to the criminal standard, it would ordinarily be given significant weighting in a risk assessment under the CSPP Act and DI Act. Where conduct of concern is not admitted or proven to this standard, the weighting given to it in the risk assessment must reflect the possibility that the conduct of concern did not occur, although findings made on the balance of probabilities would generally have a decisive impact on the risk assessment. This is consistent with the Guidelines.

1. Once having determined the likelihood of the conduct of concern having occurred and the weighting to give it in the risk assessment, the decision-maker must conduct the risk assessment by taking account all other relevant matters to determine the risk posed by the individual, with reference to Table 2 of the relevant Guidelines and section 18O of the DI Act (see below).
2. This requires an evaluation of the nature and degree of the risk posed by the individual and whether it is acceptable to allow it, i.e. a consideration of the likelihood of offending or conduct recurring in the future and the seriousness of the consequences if the conduct were to recur. Where the possible future harm is serious a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome as unacceptable. Conversely, an acceptable risk might be one which is fanciful, farfetched or theoretical and where the potential consequences are mild or insignificant. It is not required that there be no risk of harm.
3. The standard of satisfaction in the assessment of the ultimate issue of risk is a statutory standard of reasonable satisfaction, 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, merely that there is a possibility of future harm, and that the potential consequences would be serious if the perceived risk eventuated.
4. The respective Guidelines under the CSPP Act and DI Act are broadly similar. They each contain indicia relating to whether information should be given greater or lesser weight depending on matters such as its quality, relevance and seriousness.
5. The Guidelines also contain indicia relating to whether the information points to an increased risk or decreased risk of harm to children or people with disability. In this regard, s 18O of the DI Act sets out the following matters that must be considered in 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.

1. In nearly identical terms, the Ministerial Guidelines for the CSPP Act state that:

While the weight given to information relates to its quality, 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. > > Events or conduct referenced in this section includes alleged (unproven) events or conduct. > > The central assessment unit decision-maker should consider the substance of the information and have regard to:

• the person's criminal, child protection, disciplinary or other relevant history, including whether a pattern of concerning conduct is identified;
• the nature, gravity and circumstances of the events or conduct detailed in the information and how those factors are relevant to children or child-related work;
• the length of time that has passed since the events or conduct occurred;
• the person's conduct since the events or conduct occurred;
• the vulnerability of any victim at the time of the events or conduct including the age of the victim, the age of the person at that time, 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 material time; and
• all other relevant circumstances identified in the assessable information including, but not limited to, those pertaining to conduct which may be indicative of child grooming, poor boundary recognition, prurient interests, or other behaviour that may pose a risk to children and impact on the person's suitability 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.[16]

1. The Minister promulgated new Guidelines under the CSPP Act on 4 July 2024.
2. I raised with the parties at the commencement of the second day of the full hearing that, as I was required to determine the correct or preferable decision at the date of my decision,[17] I considered that I ought to apply the Guidelines of 4 July 2024. I observed that, in any event, there did not appear to be a material difference between the former and new sets of Guidelines, including the critical Chapters 9 and 10. I observed that, pragmatically, there would be no difference in outcome.
3. Mr Dean did not take issue with me applying the new Guidelines.
4. Ms Kane essentially also did not take issue with me applying the new Guidelines.
5. However, Ms Kane said that her instructions were that the CAU considers the former Guidelines apply to matters dating from before 4 July 2024, such as the present matter. She submitted that this was the effect of section 32 of the Legislation Interpretation Act 2021 (LI Act) on the basis that the former Guidelines are a legislative instrument for the purposes of that section.
6. Relevantly, s 32(5) states (underlining added):

An Act or a legislative instrument, or a provision of an Act or a legislative instrument, will, despite its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act, instrument or provision if there is no substituted Act, instrument or provision adapted to its continuance and completion.

7. While I agree that the Guidelines would appear to be a legislative instrument,[18] I disagree that s 32 applies. Alternatively, if it applies, I consider that the underlined portion above would require the new Guidelines to be used in any event.
8. The LI Act is always subject to a contrary intention.[19] A contrary intention exists in this case that displaces s 32 of the LI Act with the effect that it does not apply to the Guidelines. This is because the former Guidelines contain the statement explaining that they "are intended to be subject to continuous improvement and will be reviewed periodically to determine whether they are meeting the requirements of the Act and Regulations".[20] This indicates that any reviewed Guidelines were intended to be applied by decision-makers once they were promulgated, including in respect of matters dating from before the date of promulgation. It would not make sense for the Minister to intend that, for those matters, decision-makers would have to adhere to Guidelines that had been found to require improvement and/or review to ensure that they met the requirements of the legislative scheme.
9. A comparison between the former Guidelines and the new Guidelines indicates that the new Guidelines have been refined and elaborated upon in a number of places and reflect several decisions of the Tribunal as to principles relevant to decision-making under the CSPP Act. Otherwise, there is ultimately no significant difference in approach, and no material policy change, evident in the two sets of Guidelines.
10. It would be incongruous and inconsistent with the statement as to intent found in the former Guidelines for CAU decision-makers to apply the former Guidelines when exercising their functions under the CSPP Act. Clearly, it is intended that decision-makers apply the version of the Guidelines that incorporates references to the Tribunal's decisions rather than the initial set of Guidelines that were drafted without the benefit of the jurisprudence that has since arisen in this area.
11. If I am wrong in my view of the displacement of s 32, I consider that the current Guidelines are adapted to the continuance and completion of matters such as the present and should be applied in any event.
12. As neither party objected to my use of the new Guidelines in this matter, and as there is no appreciable difference in outcome, I proceeded to apply the new Guidelines.

1. The primary submissions made on behalf of Ms Gupta are essentially that none of the allegations against her are correct and the decisions under review should be set aside.
2. It was submitted that the Tribunal should prefer Ms Gupta's sworn evidence denying all the allegations over the unsworn evidence relied upon by the CAU.
3. It was also submitted that Ms Gupta was not provided with proper training by the agencies employing her (Drake Medox and Mediserve) in managing complex clients who were physically aggressive. Ms Gupta made similar assertions in her affidavit of 19 December 2023.[21]
4. I deal with other submissions made for Ms Gupta in the body of these reasons.

1. Ms Kane submitted that the Tribunal should affirm both decisions.
2. It was submitted that the allegations against Ms Gupta give rise to a real possibility of past abuse against vulnerable persons, as well as a pattern of inappropriate or insufficient care being provided in the context of her employment as a disability support worker.
3. The respondent relies on four witness statements and an interview transcript as establishing a pattern of behaviours giving rise to a real and appreciable risk to vulnerable persons. It is submitted that the totality of the evidence clearly demonstrates that there is a possibility of harm to vulnerable persons under Ms Gupta's supervision, including both children and people with disability. The risk she poses to children and people with disability, it is submitted, is not fanciful nor imaginary, rather it is a possibility which cannot be discounted and, in these circumstances, a minimal chance or possibility that it will occur is enough for that risk to be unacceptable.
4. Other submissions are dealt with in the body of these reasons.

1. In these reasons, I deal first with allegations that Ms Gupta assaulted persons in her care (Allegations 7, 8, 9, 10, 12 and 15 - the assault-related allegations).
2. I then turn to the allegations that (broadly speaking) Ms Gupta was negligent in performing her duties (Allegations 1 to 6 inclusive, 11, 13 and 14 - the negligence-related allegations).
3. I explain why I am satisfied on the basis of the assault-related allegations alone (in particular Allegations 8, 10, 12 and 15[22]) that Ms Gupta poses an unacceptable risk to children and a real and appreciable risk to persons with disability. I conclude that, on this basis, the decisions under review must be affirmed.
4. Given my findings on Allegations 8, 10, 12 and 15, I have generally dealt more briefly with the remaining allegations.

All Allegations - Weighting information sources - Table 1

1. The assessable (or relevant) information considered by the CAU largely comprised documents generated by the Department when investigating the allegations made against Ms Gupta. This included witness statements, interview transcripts and reports.
2. Other assessable information included the submissions made by Ms Gupta and two brief undated character/employment references. The two referees (Vishwani Rana and Gurpreet Kaur) are former co-workers of Ms Gupta.
3. Subject to what I say below when dealing with individual allegations, in terms of weighting information sources under Table 1 of the Guidelines, in making my decision, I place primary reliance on the materials generated by the Departmental investigation. The weight of this information is significant and its quality is high. Its relevance and seriousness are high because it pertains to the potential mistreatment of vulnerable persons and because of the gravity of such conduct and its potential impact on children and people with disability (which includes children).
4. I give some positive weight to the two character references but it cannot be significant weight as it is not clear if the referees were fully aware of all allegations made against Ms Gupta.

Allegations 7, 8, 9, 10, 12 and 15 - the assault-related allegations - Likelihood of occurrence of conduct of concern

1. These allegations concern multiple alleged assaults to a female resident of the western suburbs premises, ATB, and multiple alleged assaults to a female resident of the northern suburbs premises, XWI.
2. I deal first with the alleged assaults against ATB.

Allegations 8, 9, 10, 12 and 15 - alleged assaults against ATB

1. These allegations relate to alleged assaults by Ms Gupta to the breast and wrist of ATB, one of four residents of a group home for disabled persons operated by the Department in the western suburbs.
2. The assessable information relevant to these allegations are the statements given to Departmental investigators by Ms Lydia Mel and UCK. These allegations are made in unsworn statements. Neither Ms Mel nor UCK attended at the Tribunal to give evidence. They are workers who were also providing disability care services at the premises in which the alleged victim resided.
3. Other relevant assessable information was photographs allegedly depicting bruising and marks to ATB's breast and wrist. These photographs are of poor quality, ambiguous and inconclusive. They are forensically dubious and I give them little weight in these reasons.

1. Ms Mel's statement is dated 13 October 2020 [sic, 2021]. Ms Mel identified herself as a casual support worker employed by the Drake Medox agency since March 2021.
2. This is the same agency for which Ms Gupta was working at the time of the occurrence of these alleged assaults.
3. Ms Mel describes in her statements events she observed on 27 March 2021 relating to alleged assaults on ATB. Ms Mel was working that day with UCK and Ms Gupta (Joy).
4. I have extracted relevant parts of Ms Mel's statement.
   1. I believe it was on Saturday 27 March 2021, I commenced shift at 7am at [the western suburbs group home]. It was my first shift at this house. I was working with DHS staff member [UCK] and agency worker who I know as Joy.
   2. Around 9am -9.30am that morning Joy and I took client [ATB] in the van to Outer Harbour for a walk. Whilst outside the public toilets in Outer Harbour and whilst we were trying to encourage [ATB] to go to the toilet prior to getting back into the van, [ATB] grabbed Joy's ponytail and pulled her back. Joy was walking into the toilet to open the toilet door for [ATB] at the time.
   3. Joy turned around and was initially talking to [ATB] asking her to let go but [ATB] then scratched Joy on her chest area as she was trying to grab Joy's collar on her top. Joy was trying to remove herself from [ATB's] grip but was unable to do so. I then saw Joy grab hold of [ATB's] nipple on her breast and pinch her. She was telling [ATB] to let go of her ponytail as she remained pinching her. I could see from [ATB's] face that she was in pain and then she let go of Joy's hair.
   4. [ATB] walked away and went into the toilet. We then got back into the van and drove to Port Adelaide river where the dolphin cruise is. When we arrived [ATB] didn't want to initially get out of the van but I told her there was a boat and she seemed interested in seeing the boat. We made our way to the dolphin cruise boat and as were walking towards the pancake cafe, a few people were walking towards us which made [ATB] anxious. [ATB] then grabbed Joy's wrist with her hand and stopped walking.
   5. Joy continued to walk but [ATB] was trying to stop her by pulling on her wrist. Joy then turned around and grabbed [ATB] on her wrist and pinched her wrist so that [ATB] would let go. I noticed [ATB] had a red raised pinch mark on her wrist from where Joy had pinched her. [ATB] let go of Joy and we continued to walk past the pancake café and back up past the Lighthouse pub. As we were walking [ATB] saw people outside the pub which made her anxious again and she grabbed Joy by her ponytail and pulled her back.
   6. Joy immediately turned around and grabbed [ATB] by her nipple and pinched her, she was telling [ATB] to let go of her. Because there were people around Joy remained calm and appeared to be discreetly pinching [ATB's] breast.
   7. [ATB] wasn't letting go of Joy, so I intervened and tried to remove [ATB's] one hand from Joy's hair. I think Joy had stopped pinching [ATB's] breast at this point. With her other hand [ATB] was trying to grab Joy's top by her collar. I managed to get Joy's ponytail out of [ATB's] hand and then she went to grab me, but I quickly moved away and told her that's not ok. We eventually went back to the van and made our way to Pioneer Park in Port Adelaide.
   8. [ATB] had her lunch in the van and we then went into the park for a walk. We asked [ATB] to go to the toilet as we were taking her swimming that afternoon.
   9. Joy was rushing [ATB] and telling her to go to the toilet, however [ATB] was tired from walking and had stopped still. Joy was telling [ATB] in a raised voice that she couldn't stop walking as she had wet herself and that we needed to change her pad. Joy appeared to be getting frustrated with [ATB] and kept telling her to go to the toilet. Due to the commotion a male member of the public who was walking past at the time, asked us if everything was ok.
   10. I responded to him that it was fine and that we were trying to get our client to the toilet. By this point [ATB] was chasing Joy who was running towards the toilets. When [ATB] got to the toilets she stopped running and started self harming by punching herself in the head. Joy was just standing there watching [ATB] whilst I ran over to [ATB] and took hold of [ATB's] hands and told her to calm down and that we didn't have to walk, that we just needed to change her pad, then we could go home.
   11. [ATB] then took the pad from Joy's hand and made her way into the toilet. [ATB] changed her pad herself in the toilet and we made our way back to the van. We then drove back to [ATB's] home.
   12. We got back to [ATB's] home around 2pm and [ATB] appeared to be exhausted. I had a conversation with Joy about being left alone with [ATB] as she wanted me to leave her with [ATB] whilst I packed [ATB's] swimming bag. Earlier that morning when I commenced my shift, [UCK] told me and Joy in front of the night staff that no staff should be left alone with [ATB]. She said that if a staff member were left alone with her and they got hurt then there was no one to assist. [UCK] also said that staff needed to walk each side of [ATB] and not in front of her. That is to not only protect ourselves, but members of the public, as [ATB] will strike out or grab people.
   13. When we arrived home, [UCK] was there but supporting the other female clients who share the house with [ATB].
   14. At approximately 3pm or maybe later Joy and I took [ATB] swimming at Angle Park Community Centre. When it was time to leave the swimming pool, [ATB] was looking at the kids in the swimming pool and I could see she was becoming anxious when the children were getting near to her. We tried to get [ATB] to go into the changing rooms to get dressed however she refused and was pointing to the exit door. [ATB] then sat down on a bench beside the pool, whilst watching the kids in the pool. [ATB] then jumped up from the bench and grabbed Joy's ponytail again. [ATB] became aggressive and as she had hold of Joy's ponytail her other hand was around Joy's neck and was grabbing her collar of her top.
   15. Joy remained calm and was telling [ATB] to let go of her. I was also asking [ATB] to let go. Joy then managed to turn herself around and I believed that she grabbed [ATB] by her breast/nipple area and pinched [ATB] so hard that [ATB] started to scream like she was saying OWWW. I could see the pain on [ATB's] face, she looked like she was going to cry.
   16. Even though I did not see Joy's hand grab [ATB's] breast, I did see her release her grip when [ATB] let go of her hair. I was standing to the left side of Joy at the time and I think from my recollection she was grabbing [ATB]'s breast with her right hand and with her left hand she was holding her ponytail, trying to remove her hair from [ATB's] grip.
   17. There was lots of people watching when this was happening, and I think I panicked slightly and didn't really know what to do. My hands were also full as I was carrying [ATB's] bag, swimming noodle and Joy's bag. [ATB] eventually let go of Joy and we made our way out through the exit doors. [ATB] was still in her swimming costume so we sat outside in the sun so she could dry before getting in the van. From my recollection, whilst all this was happening at the pool side there was a lifeguard standing at the other end of the adult lap pool, watching but he didn't say anything.
   18. Whilst outside [ATB] was sitting on the bench, she did try and grab Joy but each time I firmly told her sit down and stop. [ATB] listened to me and there were no other incidents that day.
   19. When we returned to [ATB's] home [UCK] was in the kitchen cleaning up. At some point [ATB] was having a bath and I can't recall if it was before she entered the bath or during when I spoke to Joy about what had happened that day. I asked Joy why was [ATB] saying OWW when we were at the swimming pool and she replied that she was unsure.
   20. I said to Joy "you know you're not meant to hurt clients, if you did hurt her." Joy responded by saying "yeah yeah", Joy then walked off and appeared not to want to engage with me about this topic of conversation.
   21. Whilst [ATB] was in the bath I noticed that she had a red mark and a bruising was forming on one of her breasts, around the nipple area. I recall thinking that I had not seen that on [ATB] that morning. I seen [ATB] naked that morning when she had her bath. I did notice that she had a small scratch to one of her wrists that morning. I think it was her right wrist. This was in addition to the scratch that I saw on [ATB] after Joy pinched her at Port Adelaide that day.
   22. I then went to speak to [UCK] who was folding laundry at the dining table. I called her into the kitchen and told her what I witnessed Joy do to [ATB] that day. I was very emotional and upset when I was telling [UCK]. [UCK] told me to tell the Supervisor or report it to someone.
   23. On Monday 29 March 2021, I was at my home when I spoke to Ted Ditching[24] about what I had witnessed on the Saturday before. I explained briefly to Ted about what had happened with [ATB]. Ted said that he would send me an incident form which he did and on that same day I completed the form and returned it to Medox feedback email address. After this I did not hear anything else from Drake Medox until May 2021 when I was informed that SA Police were trying to get in contact with me. I was told that Drake had given the police my details.
   24. I would describe Joy as in her mid twenties, about 5ft 3 in height, slim-medium build, Indian heritage and she told me that she had one child.
   25. Apart from when [ATB] tried to grab me in Port Adelaide when we were making our way back to the van, she did not grab or try to hurt me at all. Her aggressive behaviour on 27 March was towards Joy and not me. It was my first shift there and I had the impression that there was some tension between Joy and [ATB]. I have not worked with Joy since this time.

1. UCK gave her statement on 14 April 2021. She said in her statement that she was an employee of the Department as a disability services officer and was then currently working at the western suburbs premises at which [ATB] was a resident.
2. UCK said in her statement that on 27 March 2021 she commenced her shift at the western suburbs residence and that Ms Gupta (Jyoti) and Ms Mel (Lydia) were also working that day. UCK said that this was the first time she had worked with either of those agency workers.
3. She said that:

around 9am - 10am that morning Jyoti and Lydia took .... [ATB] out for a walk to the beach. I can't recall what time they returned from their walk but sometime in the afternoon Lydia told me that whilst out, [ATB] was being aggressive to both of them and was trying to grab Jyoti. Lydia said that Jyoti wasn't good with [ATB] as every time [ATB] was trying to grab Jyoti, Jyoti was squeezing [ATB's] breast and pinching her. Lydia was very upset when telling me this.[26]

4. UCK said she told Ms Mel to report the matter to a shift supervisor when she was next working. UCK said that she herself did not report the incident, and did not speak to Ms Gupta about it, as she had not witnessed it.
5. UCK said the following about her observations on 6 April 2021:

1. ... I was working the day shift with Jyoti. I was supposed to stay with the other clients at home that day but because we were short staffed and [ATB] needed to go swimming, I called the Shift Supervisor. She came to the house to support the other clients whilst Jyoti and I took [ATB] swimming at the Angle Park Community Centre. 2. We arrived there around 10:30 am. Whilst walking with [ATB] from the car park into the community centre, I walked one side of her and Jyoti walked the other side of [ATB] to prevent her from attacking members of the public. Even though we walk alongside her, we keep about a meter away from her. 3. As we were walking into the centre, I saw [ATB] grab Jyoti's clothing on her shoulder. As I was talking to [ATB] requesting her to let go of Jyoti, I witnessed Jyoti grab [ATB's] breast with her palm of her hand and squeeze it a few times, she was telling [ATB] to let go of her. [ATB] did not let go of Jyoti but I spoke to her nicely and eventually she let go. 4. I asked Jyoti why she grabbed [ATB] on her breast and she said it was self-defence. I told her that it wasn't self defence, it was abuse. She replied that she had to defend herself.

6. I didn't say anything to the shift supervisor when we returned home as she was waiting to leave, but in the afternoon, I sent an email to Shift Supervisor Vicki Mooney and explained everything that I had witnessed with Jyoti and what Lydia had told me about what she had witnessed.
7. I recall showering [ATB] that afternoon, but I didn't witness any marks or bruising on her from when Jyoti grabbed her breast.

8. Although [ATB] can be very difficult to support as she grabs and scratches the support workers, if we engage with her, talk to her nicely and get her involved in activities at home, she will relax and follow directions. However, on occasions even those strategies don't work, and she will be restless and aggressive trying to scratch or grab the support workers all day.

1. As noted above, Ms Gupta denies these allegations. She did so in her affidavits and in her sworn oral evidence.
2. In her affidavit of 19 December 2023, Ms Gupta deposed to the following matters regarding events on 27 March 2021 with Ms Mel (Lydia) and [ATB]:
   1. I remember working with Ms Lydia Mel. I believe she was another agency support worker.
   2. On or around 27 March 2021, I was caring for [ATB]. I was working with Lydia that day, and remember it was her first shift. We took [ATB] to Outer Harbour for a walk. It was common to take [ATB] for walks.
   3. Lydia and I were walking with [ATB]. As we were walking towards other people, [ATB] became anxious. When [ATB] becomes anxious, she becomes aggressive. I encouraged [ATB] to go to the toilet to see if that would calm her down. As [ATB] and I were walking to the toilet, [ATB] grabbed my collar and my hair and pulled it back. It was common for [ATB] to do this to me.
   4. I asked [ATB] many times to stop and let go, but she did not. I had my hand on [ATB]'s hand which was gripping my hair. [ATB] then let go of my collar and grabbed my wrist which was holding her hand and would not let go. She was also scratching my hand and I kept asking her to let go saying "let go [ATB]", but she did not. This was happening for approximately 2 minutes.
   5. Lydia was standing next to me while [ATB] was attacking me. I said at least twice to Lydia while [ATB] was attacking me, "Lydia please help me". Lydia took a step back and said "I'm scared, I don't know how to help you".
   6. As Lydia did not help me, I then repeatedly said to [ATB] "let's go to the toilet [ATB]". [ATB] heard me and then eventually let go and walked with me to the toilet and then calmed down.
   7. I did not use any physical force to make [ATB] stop attacking me. I only held onto [ATB's] wrist while it was grabbing my hair. I did not pinch anywhere on [ATB's] body. I did not pinch [ATB's] breast.
   8. Lydia, [ATB] and I then returned to the van and drove to Port Adelaide. When we arrived, Lydia and I were walking on either side of [ATB]. People were walking towards us as we headed towards the Dolphin Cruise, which made [ATB] anxious. [ATB] then grabbed my wrist and was pinching my arm at the same time. I said to [ATB] "let go [ATB]" and "let's go to the toilet [ATB]" to see if she would let go. [ATB] did not grab my hair, she only grabbed my wrist. I did not pinch anywhere on [ATB's] body to make her let go. Lydia was standing nearby but did not help me. I asked Lydia for help while [ATB] was grabbing my wrist, and she again said "I'm scared". After [ATB] stopped, I asked Lydia again why she did not help me and she did not respond.
   9. Later that day, Lydia and I took [ATB] to Angle Park Community Centre where there is a swimming pool. Lydia and I walked on either side of [ATB] from the van to the centre. As you enter the Community Centre, there is a cafeteria near the entrance. [ATB] saw the food at the cafeteria and because she wants to eat the food, she begins to act up. I noticed this behaviour and told [ATB] that we cannot buy her any food. [ATB] then became aggressive and began to physically hit me. She then grabbed my hair and held the collar of my top. I remember the floor was very wet so I did not want [ATB] to slip and fall so I said to [ATB] "[ATB] leave me, [ATB] please stop". Lydia had taken a step back to avoid [ATB], and I asked Lydia to help me. Lydia said "I'm scared I'm sorry". I recall there was approximately 15 people nearby who may have witnessed this. I remember when Lydia responded to me, out of frustration I told her that she should not come back to work with clients like [ATB].
   10. I was holding [ATB's] hand as she was gripping my hair, the collar of my top, my arm and my wrist. I did not pinch anywhere on [ATB's] body. I did not pinch [ATB's] breast. [ATB] eventually let go of me. This lasted approximately 60 seconds. At no time did [ATB] say or scream "ow". During the times I worked with [ATB], she was non-verbal and did not say the word "ow".
   11. We then walked back to the van. When we got back to the van, I remember calling the supervisor to notify her that the incident had occurred. I remember the supervisor's name was Vicki. I remember Vicki said to me that [ATB] would often act aggressively and if she does act up and become aggressive, to come back home and not go into the centre. We then drove back to [ATB's] residence where I completed an incident report...
3. Ms Gupta deposed in this affidavit that, while she recalled having worked with UCK, for about seven shifts, she did not recall the incident UCK alleges happened on 6 April 2021 at the Angle Park Community Centre.
4. She denied that she ever pinched any part of [ATB's] body on any occasion and that ATB did not "act up or become aggressive" when Ms Gupta was working with UCK.[27]

1. The evidence for this allegation is derived predominantly from the transcript of an interview conducted with TXI on 9 December 2020. TXI is a resident of a home for disabled persons in the northern suburbs and lives there with XWI. The interview concerns, amongst other issues, alleged assaults by Ms Gupta on XWI.
2. The interview was conducted by two Departmental investigators (Kirsten and Louise) and was also attended by a support person (Tanya).
3. The CAU also relies on a written statement given by VSY.
4. Neither TXI nor VSY gave their evidence in an affidavit and neither attended to give evidence at the Tribunal.

1. The reference in TXI's interview relied upon by the CAU as evidence of an alleged assault on XWI is as follows:[29]

KIRSTEN ... So, what I want to talk to you about today is I heard you had a carer called Jyoti - Jyoti, who was working ... > > TXI Yeah. > > KIRSTEN ... here. All right? > > TXI Right. > > KIRSTEN So, I want you to tell me about her. What can you tell me about her? > > TXI That little lady? > > KIRSTEN Yeah. > > TXI That little lady. All the time, she used to hit - when [XWI], like, played up and that, she got hurt and - and lay on the lounge, and I pushed like that, and she was here, on her arm like that. > > KIRSTEN Okay. All right. So - and, then what happened? > > TXI You know, when she was hitting on her arm, she just went - she went into - in her car and - and had a guilty conscience and that. > > KIRSTEN She had a guilty conscience, did she? > > TXI Yeah. > > KIRSTEN Yep. Okay. All right. So, how - did that happen one time or more than one time? > > TXI This only one time. > > KIRSTEN Okay. Only one time? > > TXI Yep. > > KIRSTEN Yep. All right. So, she was a little lady, and was her name Jyoti or ... > > TXI Yeah. > > TANYA I think what you're thinking about ... > > KIRSTEN I think you're thinking of the other lady. > > TXI What other lady? > > TANYA The lady before her. > > KIRSTEN That was the other one. > > TXI Sorry. I can't ... > > TANYA Not the recent one. > > KIRSTEN No. That's okay. > > TXI Okay.

1. VSY's unsworn statement is dated 31 December 2020.
2. VSY is a Departmental employee who had worked at the northern suburbs premises for five years. As indicated earlier, XWI and TXI are the only residents of these premises.
3. VSY states that TXI told her that Ms Gupta "hit [XWI] on the arm, back and shoulder when she misbehaves ... and would smack [XWI] and send her to her room for being 'silly'".[31]
4. VSY said she believed this as, the following day, XWI flinched and said "no hit?" when VSY raised her arm to put her hair in a ponytail.

1. Ms Gupta deposed in her affidavit that she had never physically attacked a client, including XWI and denied that she "hit her with an open palm slap on the top of her back near her shoulders and on her arm".
2. She deposed that XWI "was very aggressive and she would often kick and hit me and others any time without warning". She said that she was shown a client care plan that set out XWI's disabilities and how she acts, and that she was told that XWI was very aggressive and would hit staff and other clients. She said that, in either her first or second shift with XWI, XWI became aggressive and hit her on her back and grabbed her hair and would not let go.
3. Ms Gupta deposed that she "had not been told or trained on how to manage [XWI's] physical aggression". She deposed that when XWI "became agitated and physically aggressive, I would follow the instructions provided to me by the supervisors and what were set out in the clinical care plans (as noted above) as I did not receive any other training on how to manage these complex behaviours".

Allegations 7, 8, 9, 10, 12 and 15 - Conclusions on the assessable information

1. I give substantial weight to Allegations 8, 10, 12 and 15, which are the allegations made by Ms Mel and UCK about Ms Gupta allegedly assaulting ATB by pinching, grabbing or squeezing ATB's breast or nipple. Their observations on this point have the effect of corroborating each other, even though they did not both see the same alleged assault at the same time. At separate times, including on different days, Ms Mel and UCK had both observed Ms Gupta allegedly assault ATB, a vulnerable client, on a sensitive part of her body (the breast and/or nipple) in order, apparently, to attempt to control ATB's behaviour.
2. I place a lesser amount of weight on Allegation 9 regarding the wrist pinch as it was only observed by Ms Mel and not corroborated by other evidence. I do not disregard it however as it is in the same vein as the alleged breast assaults - it is a further instance of Ms Gupta allegedly assaulting a vulnerable client on a sensitive part of the body to attempt to control her behaviours.
3. I do not accept the submission made on behalf of Ms Gupta that Ms Mel and UCK could have been mistaken in what they allegedly saw Ms Gupta do to ATB's breast. I do not accept Mr Dean's submission to the effect that Ms Mel's and UCK's observations are suspect because they did not particularise which of ATB's breasts or which of Ms Gupta's hands were involved in the alleged assaults. That is not a matter of significance in this decision. The pinching, grabbing or squeezing of a breast or nipple is an unequivocal act and one not likely to be misinterpreted (especially when accompanied by a scream or a grimace of pain). The same might be said of the alleged pinching of ATB's wrist, although a pinch to the wrist is more open to misinterpretation than an assault to the breast.
4. Additionally, to accept the mistake hypothesis necessarily requires a conclusion that Ms Mel and UCK were mistaken on each of the four occasions they say they saw Ms Gupta pinch or squeeze ATB's breast. The mathematical likelihood of four successive mistakes would be so small as to be significantly improbable.
5. Ms Gupta gave oral evidence that Ms Mel and UCK are lying about these allegations. She said that Departmental employees, such as UCK, do not like contract staff because they (contract staff) take shifts that should be given to Departmental staff. Ms Gupta also said that Ms Mel may have pre-emptively lied about her (Ms Gupta) to a supervisor because Ms Mel was concerned that Ms Gupta would complain about her for not coming to Ms Gupta's aid when she was being "attacked" by ATB. I do not accept any of this. This is simply Ms Gupta's theory. It is not evidence, and is not supported by any evidence.
6. I agree with Ms Kane's submissions that there is no evidence of tensions between permanent and agency workers.
7. Also, Ms Gupta's theory about why Ms Mel would have lied about her is inconsistent with Ms Mel's written statement (at paragraphs 12, 15, 20 and 23) about the instances in which she did go to Ms Gupta's aid. Her theory is also inconsistent with Ms Mel's statement that Ms Mel did not lodge an incident report until two days after the alleged incidents (at paragraph 28).
8. There is no evidence that Ms Mel and UCK conspired to lie about Ms Gupta, which (on Ms Gupta's theory) they presumably must have done to have both lied about Allegations 8, 10, 12 and 15.
9. In short, I am not persuaded by anything said by or on behalf of Ms Gupta that I should not accept Ms Mel and UCK as making truthful statements about what they saw Ms Gupta do to ATB, that is, the alleged assaults to her breast and wrist.
10. For the above reasons, in making my decision, I have given greater weight to the unsworn and untested observations of Ms Mel and UCK and less weight to Ms Gupta's denials of the allegations against her (albeit in sworn evidence). I consider that Ms Gupta is more likely than not to have reconstructed her account of the relevant events regarding ATB and invented a theory to explain away the allegations made against her.
11. However, given the serious nature of these allegations against Ms Gupta and that the allegations of Ms Mel and UCK are unsworn and untested, I must be mindful of the caution expressed in the above passage from the Briginshaw decision. In applying that cautious approach, I cannot be satisfied on the balance of probabilities that Ms Gupta assaulted ATB on the breast and wrist in the manner alleged by Ms Mel and UCK. However, I am not satisfied that Ms Gupta did not do so. In fact, the assessable information on these allegations has given rise in my mind to a serious concern that there is a substantial likelihood that these alleged assaults by Ms Gupta on ATB did in fact occur.
12. I must reduce the weighting of this finding in the overall risk assessment to reflect the possibility that these alleged assaults did not occur. Nevertheless, the weighting I give to my finding cannot be minimal given my concern that there is a substantial likelihood that these alleged assaults occurred. I therefore give my finding a high degree of weight in the risk assessment.
13. In respect of Allegation 7 (the alleged assault(s) on XWI), I do not consider that it would be fair to Ms Gupta to place weight of any significance in a risk assessment to information derived from the interview withTXI. As the above passage demonstrates in some respects, the interview with TXI is seriously problematic from a forensic perspective. TXI was led significantly by the interviewers, the support worker intervened on some occasions, some of TXI answers were suggested to her, some of her answers were incomplete and her responses were sometimes internally inconsistent.
14. In any event, the above passage from the interview transcript is inconclusive and confusing. It is not entirely clear that TXI is referring to Ms Gupta (or is always referring to Ms Gupta) in this passage and it is not entirely clear what Ms Gupta is alleged to have done to XWI.
15. In respect of VSY's statement, the difficulties with it are evident. It is hearsay. Also, it is possible that VSY could have misinterpreted XWI's response to VSY lifting her arm.
16. In applying a cautious Briginshaw approach to TXI's interview transcript and VSY's statement, I cannot be satisfied on the balance of probabilities that Ms Gupta assaulted XWI. But, I cannot positively rule it out. I am not satisfied that Ms Gupta did not assault XWI. There is a not insignificant possibility that Ms Gupta did assault XWI. However, the degree of likelihood of the occurrence of these alleged assaults on XWI is slight, and the reliability of the assessable information on this point is equivocal and problematic. Accordingly, I am not able to place a significant degree of weight on this finding in a risk assessment.

Allegations 1 to 6, 11, 13, 14 - the negligence-related allegations - Likelihood of occurrence of conduct of concern

1. I turn now to discuss the balance of the allegations made against Ms Gupta. I deal with these relatively briefly.
2. The reliance by the CAU on these remaining allegations is significantly problematic. It does not demonstrate a comprehensive and meticulous approach by the CAU to the scrutiny and evaluation of the assessable information.
3. On the whole, the relevant assessable information in respect of these allegations is dubious and flimsy. Some of the allegations (Allegations 1, 2, 3, 5, and 14) rely on information in the transcript of TXI's interview. I have already dealt the reliability of that interview in the context of the assault-related allegations and those same observations generally apply also to these negligence-related allegations. Some of what TXI said in her interview is repeated as hearsay in unsworn statements, including that of VSY (Allegations 1, 3, 5, 14) and Ms Pauline De Bruyn (Allegations 2, 14).
4. The negligence-related allegations against Ms Gupta are generally uncorroborated.
5. Ms Gupta deposed in her affidavit of 19 December 2023 and in her supplementary affidavit of 28 March 2024 that these events did not occur and/or do not bear the interpretation placed on them by the CAU. For example, she said that XWI "snatched" the keys from her and that she was tugging on the keys to get them back from XWI (Allegation 1) and that she had pulled over at a safe spot and put XWI's seat belt back on (Allegation 5).
6. I agree with Mr Dean's submissions that, in some respects, the totality of the assessable information casts serious doubt on some of the allegations made against Ms Gupta, either in respect of whether they occurred at all or the significance or interpretation placed on them by the CAU.
7. However, despite Mr Dean's submissions and Ms Gupta's denials, I am not able to positively find that these events did not occur. I am not satisfied that they did not occur. There is a not insignificant possibility that all or at least some of them did occur. However, as with Allegation 7, given that the degree of likelihood of the occurrence of these events is slight, and that the reliability of the assessable information on this point is equivocal and problematic, I do not place a significant degree of weight on this finding in the risk assessment.

1. In relation to the risk assessment to be conducted in respect of the assessable information, I deal with the assault-related allegations first and then, briefly, with the balance of the allegations against Ms Gupta.

Allegations 7, 8, 9, 10, 12 and 15 - the assault-related allegations

1. I focus here on the allegations made of assault against ATB, given my findings on the significantly reduced degree of weight to be given to the assessable information about the alleged assault(s) of XWI.
2. The findings on the assessable information in respect of ATB are relevant in the risk assessment to be undertaken under the CSPP Act and DI Act as they are suggestive of Ms Gupta resorting to assault when faced with challenging and difficult behaviours being exhibited by vulnerable persons.
3. Mr Dean submitted that Ms Gupta is not a general risk to children or people with disability, even if the allegations are made out, because ATB is a particularly volatile client. I do not accept this submission. Equally, I do not give any weight to the submission (unsupported by evidence) that Ms Gupta is not likely to care again for ATB in the future. While the alleged assaults were committed against a single person only (ATB), they were committed multiple times on three separate occasions (the morning and afternoon of 21 March 2021 and on 6 April 2021). This suggests that this was no mere one-off failure of judgement or uncharacteristic panic response. It suggests strongly that this is what Ms Gupta does as a matter of course when faced with challenging and difficult behaviours.
4. In submissions for Ms Gupta, ATB is described as having committed an unprovoked attack, of which Ms Gupta was the victim. This "attack" and "victim" language is somewhat hyperbolic. In conducting the risk assessment, ATB's conduct needs to be seen in proper context. ATB is a substantially disabled person who is known to engage in physical behaviour against care staff. ATB's conduct on the relevant occasions constituted the grabbing of Ms Gupta's clothing/collar (with some resultant scratching to Ms Gupta's chest), her ponytail and her wrist. Any reasonable person in the community would understand Ms Gupta's alleged response to ATB's conduct to be an unacceptable attack on the person and dignity of ATB and that it cannot be tolerated in any context. Therefore, it would be considered particularly disturbing if a trained care worker resorted to these measures against a disabled and vulnerable person in her care.
5. While these allegations arose in the context of Ms Gupta providing care services for adult disabled persons, I consider that these concerns are transferable to working with children (who are no less capable of exhibiting challenging and difficult behaviours that need sensitive management). I agree with Ms Kane's submission that dealing with complex behaviours is a frequent feature of the disability sector and working with children.
6. I turn now to evaluating under Table 2 of the WWCC and NDIS Guidelines the nature and degree of the risk posed by Ms Gupta and whether it is acceptable to allow it.
7. There are factors in this case that the Guidelines consider demonstrate an increased risk of harm. This includes that Ms Gupta's alleged conduct was violent and wilful in nature, that it was repeated on a subsequent occasion and that the victim was a vulnerable person with disability. Also, at the time of the alleged offending, there existed a power imbalance as Ms Gupta was in a position of authority over ATB, there was a significant difference in mental capacity between them, and the alleged conduct amounted to a breach of trust or care. The most serious of the allegations (the assaults against ATB) occurred some three and a half years ago and are considered under the NDIS Guidelines to still be recent.
8. The Guidelines also indicate that an increased risk of harm is demonstrated where a person rejects responsibility or minimises their actions and does not express remorse.
9. As there are no expressions of remorse by Ms Gupta, or expressions of insight into her behaviour and the need for change, there is no basis from which the Tribunal could conclude that Ms Gupta has taken steps to address her apparent propensity to deal inappropriately with challenging and difficult behaviours demonstrated by vulnerable persons in her care.
10. Also, in this respect, I consider it particularly adverse to Ms Gupta that she has sought to shift blame to others not training her to deal with complex behaviours. This could not reasonably be taken to be justification for her alleged behaviour. As I indicated above, a reasonable person in the community, more so one who is a disability worker charged with the care of vulnerable persons, would understand that this type of conduct cannot be tolerated in any context. In any event, the Guidelines are clear that lack of training or support does not necessarily mitigate a breach of common standards of behaviour.
11. Factors demonstrating a decreased risk, and which are weighted in Ms Gupta's favour, include the positive references, the lack of any adverse findings of misconduct against her in any setting and the lack of any other allegations of misconduct. However, I do not consider that these factors outweigh factors demonstrating that Ms Gupta poses an increased risk of harm.
12. I have considered the likelihood of the conduct of concern (assault of vulnerable persons) recurring in the future, and the seriousness of the consequences if the conduct were to recur in the context of Ms Gupta's work or volunteering with children and people with disability. I am not able on the evidence to positively find that Ms Gupta would repeat the conduct of concern. She may have been sufficiently deterred by the consequences of her alleged conduct. The risk of recurrence may therefore be small but it cannot be ruled out. If the conduct did recur in the context of Ms Gupta's work or volunteering, the consequences to children and people with disability would clearly be serious. It could result in physical and/or psychological harm.
13. As I noted above, where the possible future harm is serious a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome as unacceptable. I find that is the case in this instance. This is not a case of a risk that is acceptable because it is fanciful, farfetched or theoretical or where the potential consequences are mild or insignificant.
14. For all the above reasons, I am reasonably satisfied that Ms Gupta poses an unacceptable risk to children and a real and appreciable risk to people with disability.
15. To be clear, even if I were to entirely discount Allegation 7 (the alleged assault(s) of XWI) and Allegation 9 (the alleged assault to ATB's wrist), I would still be reasonably satisfied on the basis of Allegations 8, 10, 12 and 15 (the alleged assaults to ATB's breast/nipple) that Ms Gupta poses an unacceptable risk to children and a real and appreciable risk to people with disability.

Allegations 1 to 6, 11, 13, 14 - the negligence-related allegations

1. In view of my findings in respect of the assault-related allegations against Ms Gupta (particularly Allegation 8, 10, 12 and 15), it is not strictly necessary to deal with these remaining allegations at length. They do not change the outcome. However, as they were raised in the decisions under review and in the parties' submissions, I make the following final comments.
2. There can of course only be one risk assessment, where all assessable information is cumulatively considered, so I should not be taken as implying that I have undertaken two risk assessments in this matter (one of the assault-related allegations and one of the negligence-related allegations). Simply, due to the large number of allegations against Ms Gupta, it is convenient to make these separate observations about the negligence-related allegations.
3. As I have indicated above, I have given little evidentiary weight in the risk assessment to these allegations. However, even if I had been able to find on the balance of probabilities (or better) that these allegations were proven, I would discount them substantially for the purposes of the risk assessment.
4. It is not every instance of conduct of concern that is significant to a risk assessment. There needs to be a relevant and logical connection between the conduct of concern and the potential risk to children and people with disability.
5. Curiously, the WWCC and NDIS Guidelines indicate that a decreased risk of harm is demonstrated where the nature of the misconduct is not relevant to working with children or vulnerable people. This cannot be correct. Logically, if there is no relevance to working with children or vulnerable people, that misconduct should be given no weight in the risk assessment.
6. I have concluded that (if proven) Allegations 1 to 6, 11, 13, 14 demonstrate that on a few occasions Ms Gupta may have failed to undertake her duties with the aptitude and diligence to be expected of a disability care worker. I am satisfied that, on this occasion, this is more in the nature of a performance management issue, not an issue of significant relevance in an assessment of whether there is an unacceptable risk to children or people with disability. Accordingly, I have given Allegations 1 to 6, 11, 13, 14 little weight in the risk assessment. I have agreed with Mr Dean's submissions in this regard.
7. The weight to be given in a risk assessment to performance management issues will depend on their severity and relevance. It is not the purpose of these reasons to attempt to identify where this threshold lies. This may be left for another occasion when it arises on the facts of a particular case and is critical to the outcome.

1. For the above reasons, I conclude that the correct or preferable decision is to affirm both decisions under review.
2. As discussed on the second day of the hearing, Ms Gupta may make submissions to the Tribunal within 14 days of the date of this decision as to whether any publication or reporting of this decision should anonymise her name.

1. [1] See Respondent's Fourth Book of Documents, pp 10 - 25. These were decisions made on a reconsideration by the CAU under section 38 of the South Australian Civil and Administrative Tribunal Act 2013 and are therefore the reviewable decisions for the purposes of these reasons.

[2] Ms Gupta did not attend the first day of the hearing. The Tribunal was told she was too distressed to attend.

[3] I thank the parties for their aide memoire which helpfully organised this information.

[4] See M v M [1988] HCA 68; GJC v Department of Human Services [2020] SACAT 38; Marshall v Department of Human Services [2023] SACAT 83; GM v Department of Human Services [2024] SASC 23.

[5] Referred to as "relevant information" for the purposes of the Disability Inclusion Act 2018.

[6] Working with Children Check Guidelines, July 2024; NDIS Worker Check Guidelines, May 2021.

[7] See Schinckel v Registrar of Firearms [2020] SASC 236 at [30].

[8] GJC v Department of Human Services [2020] SACAT 38 at [104].

[9] Badea v Department of Human Services [2024] SACAT 37 at [79]. There was some discussion on the second day of hearing in this matter as to the Tribunal making directions for the use by Mr Dean of the unreported version of the Badea decision. However, as that decision has since been reported, those directions would be otiose.

[10] Penn v Department of Human Services [2024] SACAT 11.

[11] Working with Children Check Guidelines, July 2024, chapter 9.

[12] NDIS Worker Check Guidelines, May 2021, p 18.

[13] Section 39 South Australian Civil and Administrative Tribunal Act 2013.

[14] GJC v Department of Human Services [2020] SACAT 38 at [83] - [84].

[15] Briginshaw v Briginshaw [1938] HCA 34.

1. [16] Working with Children Check Guidelines, July 2024, chapter 10.

[17] Badea v Department of Human Services [2024] SACAT 37 at [23].

[18] Because they fall within paragraph (b) of the relevant definition of that term given that they are an instrument made by a Minister under an Act and published in the Gazette.

[19] Section 3(3) Legislation Interpretation Act 2021.

1. [20] 2019 Guidelines, p 4. The equivalent passage at page 3 of the 2024 Guidelines is not materially different.

[22] These allegations were the subject of charges laid against Ms Gupta of aggravated indecent assault. The charges were withdrawn on 21 April 2023.

[23] Respondent's Fourth Book of Documents, pp 78 - 82.

[24] I note Mr Ditching was at the relevant time a Recruitment Coordinator with Drake Medox.

[25] Respondent's Fourth Book of Documents, pp 74 - 77.

[27] Affidavit of Jyoti Gupta, 19 December 2023, [59] - [60].

[28] Respondent's Second Book of Documents, pp 236 - 282.

[29] Respondent's Second Book of Documents, pp 240 - 241.

[30] Respondent's Fourth Book of Documents, pp 61 - 63.

[31] Respondent's Fourth Book of Documents, pp 63 at [17].

[32] Affidavit of Jyoti Gupta, 19 December 2023, [15] - [22].