HBU v Secretary, Department of Education, Early Childhood Education and Care [2026] NSWCATAD 85;

1. By an application lodged with the Tribunal on 27 May 2025 (Review Application), HBU (Applicant) is seeking review of a decision (Decision) of a delegate of the Secretary of the Department of Education (Respondent) made on 1 May 2025 to issue a prohibition notice (Prohibition Notice) under s 182 of the Children (Education and Care Services) National Law 2010 (NSW) (National Law), the effect of which was to prevent the Applicant from continuing to work in the childcare field.
2. The Prohibition Notice was issued following an incident (Incident) that occurred on 12 November 2024 at a childcare centre (Service) where the Applicant had been employed. The Incident, which was captured on CCTV, records the Applicant being approached by Child A who was jumping up and down. The Applicant pushed Child A to his face, and he fell to the ground. The Applicant then redirected another child (Child B) by moving her away by applying force to her shoulder. Following the Incident, the Applicant was stood down from her employment at the Service.
3. On 26 June 2025, the Tribunal made an order under s 64(1)(a) of the CAT Act prohibiting the publication of the names of any children who receive education and care at the education and care centres where the Applicant was employed, or of any information that would identify them or their families. This includes the name of the Applicant who is to be referred to by the pseudonym 'HBU', and the names of any staff members referred to in the reasons for decision.

1. At the time of the Incident, the Applicant was employed as an educator at the Service. The approved provider for the Service is Harvey Avenue Investments Pty Ltd (the Approved Provider).
2. On 13 March 2025, following an investigation of the Incident, the Respondent issued a show cause notice (Show Cause Notice) dated 10 March 2025 to the Applicant pursuant to s 183 of the National Law.[1] The Show Cause Notice invited the Applicant to respond to concerns held by the Respondent that the Applicant posed an unacceptable risk to the safety of children if she was allowed to provide care to children as an educator. The Applicant was given four weeks to provide her any written submissions that she wished to be considered in response to the Show Cause Notice.
3. The Applicant provided a written response to the Show Cause Notice on 10 April 2025.[2]
4. The Prohibition Notice issued in accordance with s 182 of the National Law on 1 May 2025 stated that the Applicant may be an unacceptable risk of harm to a child or children if she was allowed to remain on an education and care service premises or provide education and care to children and provided reasons for the Respondent's decision.[3] The Prohibition Notice prohibits the Applicant from doing any of the following:

(1) providing education and care to children for an education and care service;

(2) being engaged as a supervisor, educator, family day care educator, employee, contractor or staff member of an education and care service;

(3) being a volunteer at an education and care service; or

(4) carrying out any other activity relating to education and care services.

1. The National Law establishes a national education and care services quality framework: s 3(1). Section 3 of the National Law sets out the objectives of the regulatory scheme as follows:

Objectives and guiding principles

(1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children.

(2) The objectives of the national education and care services quality framework are -

(a) to ensure the safety, health and wellbeing of children attending education and care services;

(b) to improve the educational and developmental outcomes for children attending education and care services;

(c) to promote continuous improvement in the provision of quality education and care services;

...

(3) The guiding principles of the national education and care services quality framework are as follows -

(a) that the rights and best interests of the child are paramount;

...

(f) that best practice is expected in the provision of education and care services.

1. By s 3A, the paramount consideration of the National Law is described as follows:

(1) The protection of the rights and best interests of each child and the children attending education and care services must be the paramount consideration in giving effect to this Law, including in making decisions or otherwise exercising functions under this Law.

1. The National Law applies in New South Wales pursuant to s 9 of the Children (Education and Care Services National Law Application) Act 2010 (Application Act). Pursuant to section 24 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) references to a Regulatory Authority in the National Law is a reference to the Regulatory Authority for this jurisdiction. The Respondent is identified by s 5 of the National Law and by s 9 of the Application Act as the relevant Regulatory Authority.

1. The National Law provides that an "approved provider" can operate an approved education and care service: s 18. Section 5 of the National Law provides that an "educator" is an individual who provides education and care for children as part of an education and care service.
2. The National Law outlines the obligations of approved providers, nominated supervisors and educators. Providers of education and care services must be approved by the relevant Regulatory Authority to provide such services. In assessing an application for provider approval, an applicant must be assessed as being a fit and proper person. The Regulatory Authority may grant or refuse provider approval, may impose conditions on provider approval and may suspend or cancel provider approval. The Regulatory Authority may also give service approval of an education and care service to an approved provider and may assess and rate approved education and care services. It may issue notices to obtain information to assist in undertaking its functions and has a broad range of powers to facilitate monitoring and enforcement.

1. Part 7 of the National Law is headed "Compliance with this Law". Division 3 provides for "Prohibition Notices". Section 182 sets out the grounds for issuing prohibition notices:

(1) The Regulatory Authority may give a prohibition notice to a person who is in any way involved in the provision of an approved education and care service if it considers that there may be an unacceptable risk of harm to a child or children if the person were allowed--

(a) to remain on the education and care service premises; or

(b) to provide education and care to children.

(2) For the purposes of subsection (1), a person may be involved in the provision of an approved education and care service as any of the following--

(a) an approved provider;

(b) a nominated supervisor;

(c) an educator;

(d) a family day care educator;

(e) an employee;

(f) a contractor;

(g) a volunteer;

(h) a person who was formerly a person referred to in paragraphs (a) to (g) in relation to the approved education and care service--

1. Before issuing a prohibition notice, the Regulatory Authority must give to the person a show cause notice under section 183 of the National Law. The show cause notice must give notice that the Regulatory Authority proposes to issue a prohibition notice, provide the reasons for the proposed prohibition, and invite the person to make written submissions about the proposed prohibition within a specified period, being at least 14 days.
2. Before issuing a prohibition notice, the Regulatory Authority must have regard to any written submissions provided by the person within the time specified: s 184, National Law. A prohibition notice given under s 182(1) must specify whether the person is prohibited from doing one or more of the things set out in s 185(1) and must state that the person may apply for cancellation of the prohibition notice and give details of how the application may be made: s 185(3).
3. A person must not contravene a prohibition notice: s 187.

1. Prior to 23 September 2025, s 192(b)(vii) of the National Law provided that a decision of the Regulatory Authority to impose a prohibition order was a "reviewable decision for external review". However, with effect from 23 September 2025, s 192(b)(vii) was repealed and a decision to impose a prohibition order is no longer amenable to external review.
2. The Applicant lodged her application for review on 27 May 2025, prior to the repeal of s 192(b)(vii) of the National Law. Schedule 1 of the National Law contains "miscellaneous provisions relating to interpretation". Part 6 of Schedule 1 is headed "Effect of repeal, amendment or expiration". Clause 34(1)(b) provides: "The repeal, amendment or expiry of a provision of the Law does not ... (b) affect the previous operation of the provision or anything suffered, done or begun under the provision". As the Applicant's review application was filed and received by the Tribunal prior to the repeal, and the external review process was therefore "begun under the provision", the Tribunal is satisfied that it has jurisdiction to complete the review, notwithstanding the repeal of s 192(b)(vii) of the National Law.
3. Prior to its repeal, the decision by the Regulatory Authority to issue a prohibition notice was a reviewable decision under s192(b)(vii) of the National Law. Section 8 of the Children (Education and Care Services National Law Application) Act 2010 (NSW) provides that the Tribunal is the relevant tribunal for the purposes of external review of a reviewable decision.

1. The Tribunal has power to conduct a review of the Respondent's Decision pursuant to its general jurisdiction under s 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). In DBU v Secretary, Department of Education,[4] the Tribunal observed at [24]-[26] that when the Tribunal is conducting administrative review under its general jurisdiction, it is required to perform "essentially the same task" as it would if the matter fell within its administrative review jurisdiction under s 30 of the NCAT Act, that is, if it were a review being conducted under the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
2. In determining an application for administrative review, by s 63 of the ADR Act the Tribunal is to decide what is "the correct and preferable decision" having regard to "any relevant factual material, and any applicable written or unwritten law". That can include material that postdates the decision under review (see Shi v Migration Agents Registration Authority[5] at [37]-[38], [45]-[46], [99], [143]; Bilanenko v Commissioner of Police[6] at [10]. The Tribunal is said to "stand in the shoes" of the original decision-maker and can exercise all the powers and functions that could be exercised by that decision-maker: GFQ v Secretary, Department of Education (GFQ)[7] at [43].

1. The issue for the Tribunal's determination is whether, having regard to the material currently before the Tribunal, issuing the Applicant with a Prohibition Notice is the correct and preferable decision. That in turn depends upon whether the Tribunal considers that there "may be an unacceptable risk of harm to a child or children if the applicant were allowed ... to remain on the education and care service premises; or to provide education and care to children".

1. The Applicant did not provide a written statement or any submissions in support of her Review Application.
2. On 16 August 2025 the Applicant filed with the Tribunal and served the Respondent with the following documents:

(a) An unsigned reference from NF who worked with the Applicant at the Service in 2024

(b) A signed reference provided by JR, Compliance Manager/ Human Resources at an education and care service where the Applicant was employed

(c) Transcript of Academic Records of the Applicant provided by TAFE NSW dated 8 April 2025

(d) A copy of a Statement of Completion for a Child Protection Refresher Training course, dated 14 February 2025

(e) Screenshots of emails that appear to produce the certificate referred to in d. above and another which appears to be a certificate for a Challenging Behaviour Positive Guidance in Childcare course

(f) A document headed 'AHRC Learn - Record of eLearning' listing courses and completion dates

(g) Unnamed, undated, unsigned document which appears to be observations made of the Applicant carrying out her duties

(h) Undated and unsigned copy of reference provided by RA, Head Teacher Childhood Education TAFE NSW.

1. On 17 July 2025, the Respondent filed and served its bundle of documents (RB) relevantly containing:

(a) Incident report dated 12 November 2024

(b) Notification of Incident made to the Regulator dated 13 November 2024

(c) NSW Education Request for information from the Approved Provider

(d) File note dated 19 November 2024 made by the Investigator re contact with parents on 15 November 2024 advising of the Investigation

(e) File note dated 19 November 2024 made by the Investigator re contact with Operations Manager on 15 November 2024

(f) File note dated 19 November 2024 made by the Investigator re contact with parent on 18 November 2024

(g) Documents provided by Approved Provider to NSW Education

(h) File note dated 19 November 2024 made by the Investigator recording phone call on 18 November 2024

(i) Notes summarising visit to Service by Investigator on 22 November 2024

(j) Statements of four Educators at the Service dated 22 November 2024

(k) NSW Office of the Children's Guardian information sheet on Reporting Obligations (undated)

(l) Letter to Applicant from Investigator with invitation to participate in interview dated 11 February 2025

(m) Letter to Operations Manager as delegate of Approved Provider from Investigator with invitation to interview dated 21 February 2025

(n) Transcript of interview with Applicant and Department of Education investigators dated 21 February 2025

(o) Transcript of interview with Operations Manager dated 25 February 2025

(p) Caution letter issued to Service by NSW Department of Education, Early Childhood Education dated 10 March 2025

(q) Email to Applicant dated 13 March 2025 providing Show Cause Notice

(r) Section 183 Show Cause Notice issued to Applicant dated 10 March 2025

(s) Email dated 10 April 2025 from Applicant to Investigator responding to Show Cause Notice

(t) Applicant letter of response to Show Cause Notice dated 8 April 2025

(u) Case summary report of Incident dated 17 April 2025

(v) Investigation report and recommendations in relation to the Incident dated 23 April 2025

(w) Prohibition Notice issued to Applicant under s 182 dated 1 May 2025

(x) Summary report of incident at the Kindergarten on 23 January 2025 dated 19 February 2025

(y) Statement of the Applicant regarding the incident at the Kindergarten on 23 January 2025 dated 19 February 2025.

1. The Respondent relies on the following electronic material:

(a) CCTV of Incident dated 12 November 2024

(b) Screen recording of CCTV footage dated 12 November 2024

(c) Video footage of interview with Applicant dated 21 February 2025

(d) Video footage of interview with Operations Manager dated 25 February 2025.

1. The Respondent relies on its written submissions dated 14 August 2025 (RS).
2. The matter was heard by the Tribunal on 25 September 2025. The Applicant attended the hearing in person and gave oral evidence and was cross-examined.

1. The following outlines the facts which emerge from the Respondent's reasons provided in the Prohibition Notice, and the investigation reports prepared in support of the Notice. The Applicant did not provide any evidence disputing these facts.
2. On 12 November 2024, the Applicant was working as an educator at the Service where Child A and Child B were enrolled and in attendance. At around 12:50pm, the Applicant and another educator (Second Educator) were working in a room in which the children were preparing to have their sleep or resting quiet time.
3. The CCTV footage which captures the Incident shows Child A initially sitting on the ground with the Second Educator in the room. Child B approaches the Applicant at around the same time Child A gets up from where he was sitting with the Second Educator, and starts jumping up and down near the Applicant, seemingly in a bid to capture the Applicant's attention. The Second Educator recalls Child A asking the Applicant "can I get up?" and the Applicant asked Child A to get back on the mat, after which she appeared to get frustrated and pushed Child A away by pushing his face with her hand with force. Child A fell backwards onto a mat but did not cry and did not seem too affected.[8]
4. The Second Educator reported the Incident on the same day to the nominated supervisor of the Service (Nominated Supervisor), who then reviewed the CCTV footage and reported the Incident to the Approved Provider, who directed the Nominated Supervisor to terminate the Applicant's employment.
5. The Applicant was shown the CCTV footage of her pushing Child A by the Nominated Supervisor.
6. The Incident was reported to the Respondent on 13 November 2024 and the Incident was internally assessed and an investigator (Investigator) was assigned to investigate the Incident.
7. The Applicant participated in a voluntary interview (Interview) with the Investigator about the Incident on 21 February 2025.[9] The Applicant's support person, RA, also attended the Interview.
8. An investigation report (Investigation Report)[10] prepared following the interview summarises the Applicant's account of the Incident provided by her during the Interview:

4.1 During her interview, [the Applicant] did not fully accept that her behaviour when interacting with [Child A] and [Child B] was inappropriate. [The Applicant] stated that she didn't use much force and [Child A] was hopping and it wasn't just her that caused him to fall over. After reviewing the footage several times, said her interactions with [Child A] were appropriate at the time because she did not hurt him. It was more of a playful situation instead of frustrating, finally saying she could have used her words instead and could have done better.

4.2 During the interview, [the Applicant] did not appear to be remorseful contradicting herself by indicating she knows the difference between an appropriate and inappropriate interaction with a child. She would use her words to redirect a child and give them a choice rather than forcing them.[11]

1. On 23 January 2025, whilst the Applicant was working at another education and care service (Kindergarten), she witnessed an inappropriate interaction between the nominated supervisor and a child (Child C). The Applicant failed to report the incident.
2. A Case Summary Report dated 10 February 2025 records that the nominated supervisor had been accused of "physically mistreating [Child C] by aggressively grabbing their arm, picking them up, putting them down, and pushing them over, causing [Child C] to fall forward on their face, while also making staff feel threatened."[12]
3. In her interview with the investigator about this incident on 19 February 2025, the Applicant stated that she did not report the incident to anyone because the nominated supervisor had not been "nice" to her, and she did not think she could report it. She said she had spoken to other educators about the nominated supervisor's behaviour who said that she "has always been like that." The Applicant said that she did not think the way the nominated supervisor interacted with [Child C] was appropriate and was not in accordance with policies and procedures.[13]

1. The Applicant is an international student born in September 2004. At all relevant times she was enrolled in a Bachelor or Education (Early Childhood) at TAFE NSW. She commenced work at the Service on 25 September 2023.
2. During her oral evidence under cross-examination, the Applicant told the Tribunal that on the day of the Incident she "felt stressed" and under pressure because she was overseeing 18-20 pre-school children. The Second Educator had only worked at the Service for about a week, and the Applicant was feeling "helpless" and "overwhelmed" as she was undertaking most of the necessary tasks to prepare the children for their naptime while the Second Educator sat on the floor with the children.
3. In relation to Child A, the Applicant agreed that she pushed him on the forehead, and he fell back onto a mat on the floor behind him. He was not injured, and he was not distressed following the fall. In relation to Child B, the Applicant said that she had no memory of redirecting her by moving her away by applying force to her shoulder.
4. The Applicant told the Tribunal that during her break following the Incident she was shown the video footage of what had occurred. Following this, her employment at the Service was terminated.
5. The Applicant agreed that she should use her words not physical force to address behaviour of children which is disruptive. She said that she deeply regrets her actions, which were not appropriate in any way.
6. The Applicant said she received legal advice from a lawyer at a community legal centre and from the Head Teacher, Childhood Education at TAFE NSW, that she should not fully accept responsibility for the Incident.
7. The Applicant's evidence is that since the Incident she has completed an online training course in challenging behaviour by children. She also has been seeing a counsellor at TAFE to support her mental health.
8. The Applicant was questioned about the incident at the Kindergarten on 23 January 2025. The Applicant said that she had observed the nominated supervisor's interactions with staff and the children, and she considered the nominated supervisor's behaviour to be "inappropriate". She had discussed the nominated supervisor's inappropriate behaviour with her colleagues, but she did not report it to anyone as she was scared to do so without the support of one of her colleagues. When the Applicant was interviewed by an investigator about the nominated supervisor's inappropriate behaviour, she reported what she had observed. The Applicant said that at the time she had felt "intimidated" by the nominated supervisor, but she has "more confidence now" and has found her voice, and in future she would report a colleague who she observed to be behaving inappropriately.

1. In her reference dated 12 May 2025, RA, the Applicant's support person and Head Teacher Childhood Education TAFE NSW states as follows:

"I have spoken with [the Applicant] both prior to and after the interview. She is genuinely sorry for what occurred. We had a lengthy discussion about appropriate discipline methods and reviewed what had transpired. We also discussed how similar situations could be addressed differently in the future, including seeking support from other employees.

Throughout my interactions with [the Applicant], I have found her to be a dedicated and compassionate individual who is committed to the well-being and development of children in her care. She has never had any issues raised by her TAFE NSW assessors during her practicums and in fact has been very well supported and recommended by the management of the centre where the incidents took place and where she currently works."

1. In her undated reference, JR, Compliance Manager/Human Resources at the Kindergarten states that she has known the Applicant for 18 months in a professional capacity as a childcare educator. She is aware of the Incident and that it was taken seriously by the Applicant and the Service involved. She describes the Applicant's conduct since the Incident as follows:

"To her credit, [the Applicant] responded with maturity and accountability, engaging in professional development and meaningful self-reflection. She has since moved forward with a clear understanding of the importance of her role and has applied the lessons learned to her daily practice.

Since then, I have observed a clear and consistent improvement in [the Applicant]. She demonstrates a patient, empathetic, and nurturing approach with the children in her care. Her ability to manage challenging behaviours has notably strengthened, and she now contributes as a calm, reliable and positive presence within the learning environment.

[The Applicant] is well-liked by parents, children and her colleagues, and she has become a valued member of the team.

It is evident that [the Applicant] has grown both personally and professionally from this experience. She has shown a sincere commitment to the well-being of the children and provides safe, responsive and high-quality care."

1. In the 'Grounds for Application' attached to her application for review (Grounds for Review), the Applicant states that during the Interview she was shown video footage of the Incident and was asked to respond it. She had not seen the second segment of the video footage and yet she was required to comment on it immediately after she had viewed it. The Applicant contends that she was denied the "reasonable opportunity to respond to the allegations in a fair and timely manner." She also states that she was not provided with a copy, or access to, the video footage at any stage during the investigation or decision-making process.
2. The Applicant's Grounds for Review, state that she is aware of her responsibilities as an educator, however she is "unfamiliar with the legal and administrative law system in Australia." She sought the advice of her TAFE lecturer and was advised by her "not to provide too much information in response to the allegations." The Applicant contends that this placed her "at a great disadvantage, where I was unable to fully explain the incident and steps I have taken to learn from my behaviour". She states that she had "not fully understood [her] rights, the complex legal issues surrounding [the] investigation and disciplinary process."
3. In the Grounds of Review the Applicant claims there was "perceived bias" associated with the Respondent's decision to issue her with a Prohibition Notice. The Applicant "strenuously" denies the statement in the Prohibition Notice that she "did not appear to be remorseful for [her] actions" and states that it is "unfair not to consider cultural cues such as facial expressions, body language and communication style, all of which may have been open to misinterpretation by the Investigator." The Applicant further states in the Grounds of Review that the decision to issue her a Prohibition Notice is "unduly harsh as the investigation and review process did not provide [her] natural justice." She states that she acknowledges her mistake and continues to take steps to learn from the Incident.

1. The Respondent contends that the Applicant's conduct during the Incident was "plainly inappropriate".[14]
2. The assessment of the risk of harm to children in the future is informed by the Applicant's conduct in the past and by the degree of insight and understanding which she has demonstrated since the Incident.[15] The Applicant has not demonstrated any such insight. There is no evidence illustrating that she appreciates why the conduct was inappropriate, or what steps she would implement to avoid engaging in inappropriate discipline in the future and to uphold the standards expected of her in considering her later failure to report inappropriate conduct of another educator.[16]
3. If the Tribunal accepts that the Applicant does not properly appreciate the significance of her conduct, and why it amounted to using inappropriate discipline, then it gives rise to the risk that the Applicant either may engage in further inappropriate conduct in the future, and may not identify other problematic conduct by others in the future and report it in order to ensure the safety of children in her care.[17]
4. The Prohibition Notice was not issued by considering the Applicant's conduct during the Incident in isolation. It is relevant that prior to the Incident, the Applicant required the intervention of the Regulatory Authority in relation to using more appropriate language with children, and after the Incident, the Applicant failed to report witnessing inappropriate conduct by a nominated supervisor on 23 January 2025. The Applicant's failure to report inappropriate conduct after her employment at the Service had been terminated demonstrates that the Applicant had failed to learn and develop her understanding around child safety. The Applicant has not properly taken responsibility for this failure to report, and she has sought to excuse it on the basis that she felt as though she could not report the nominated supervisor, because she had not previously been "nice" to the Applicant. This demonstrates a serious lack of understanding of the paramount importance of the best interests of the children: National Law s 3(3)(a).[18]
5. The assessment of risk depends on a number of factors including the circumstances surrounding the Incident and whether it was a single incident or was in "the course of conduct". The Prohibition Notice was not issued solely in relation to the Incident but was also impacted by the Applicant's failure to report the conduct that she witnessed on 23 January 2025.[19]
6. The Applicant has been involved in three separate investigations, and on each occasion her behaviour fell short of expected standards for an educator. Following these investigations and regulatory action, the Applicant has not demonstrated that she now understands the standards expected of an educator and adapted her behaviour accordingly.[20]
7. The Tribunal should find that the Applicant may pose an unacceptable risk to the safety of children if she were permitted to provide education and care to children It follows that the decision to issue the Prohibition Notice should be affirmed.[21]

1. The essential criterion for the issuance of a prohibition notice is the requirement that there "may be an unacceptable risk of harm to a child or children if the person were allowed to remain on the education and care service premises or provide education and care to children."
2. The phrase "unacceptable risk of harm" is not defined in the National Law, but the principles applied when considering decisions to refuse or grant a working with children's check clearance under the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) are analogous: GFQ at [39]-[40]; Kumar v Secretary Department of Education (Kumar)[22] at [19].
3. The objects and purpose of the National Law are comparable to those in the WWC Act which is to "ensure", s 4 and "secure" in s 3 National Law "the safety, welfare and well-being of children". Section 15 of the WWC Act requires consideration as to "whether the applicant poses a risk to the safety of children" whereas s 182 of the National Law requires a consideration of whether "there may be an unacceptable risk of harm to a child or children". Both the WWC Act and the National Law have as their guiding principle "that the rights and best interests of the child are paramount".
4. In Kendrick v Secretary of the Department of Education NSW,[23] the Tribunal, when considering the review of a decision to refuse to cancel a prohibition notice, observed at [70] as follows:

"The relevant section of the National Law (section 182) refers to the phrase "unacceptable risk of harm". It was submitted in this matter that the approach articulated by the High Court and the Supreme Court, and adopted in the Tribunal in the context of decisions made about Working with Children Check Clearances, applies in relation to the context of the decision to be made in this matter. The assessment of unacceptable risk of harm is dependent upon a consideration of the objectives under the National Law, and unacceptability of risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate."

1. In Nilufar v Secretary of the Department of Education,[24] the Tribunal said at [52]:

"The correct test to be applied is whether we are satisfied that there may be an unacceptable risk of harm posed by the applicant to children if the applicant were allowed to remain on the premises or provide education and care services to children. As stated in Kendrick [at [73]:

"Since section 182 refers to whether the Regulatory Authority considers there may be an unacceptable risk of harm to a child, rather than a higher standard of satisfaction, the provisions are considered to be protective and attempt to prevent an unacceptable risk from arising."

1. In GFQ at [128], the Tribunal accepted that concerns about the honesty and integrity of the person may be relevant to the question of unacceptable risk. That is because concerns about the honesty and integrity of a person in being prepared to disclose mistakes and reportable conduct may in turn raise concerns about such a person providing education and care services to children where the best interests of children are paramount.[25]

1. The Tribunal must determine whether there, "may be an unacceptable risk of harm" to a child or children if the Applicant is "allowed to remain on the education and care service premises".
2. In determining this question, the Tribunal has assessed the risk based on the evidence and the material before the Tribunal. The assessment of risk depends on a number of factors: CXZ v Children's Guardian[26] at [53], including the circumstances surrounding the Incident and whether the Incident was a single incident or was in "the course of conduct": BKE v Office of the Children's Guardian[27] at [33].
3. There is no dispute that the Applicant pushed Child A's face with force causing him to fall backwards onto a mat and that she redirected Child B by moving her away by applying force to her shoulder.
4. Having viewed the video footage of the Incident, it is apparent that at the time the Applicant was very busy undertaking the tasks necessary to organise the children's naptime. The Second Educator was present in the room, but she was sitting on the floor with one of the children, and she did not assist until after the Incident had occurred. We find that there are a number of possible actions that the Applicant could have taken when she found herself overwhelmed by her responsibilities. She could have asked the Second Educator to assist her or requested that another staff member be assigned to the pre-school room. The Applicant acknowledges that her behaviour towards Child A and Child B was inappropriate, and she deeply regrets her actions. She accepts that she should use her words not physical force to address behaviour of children which is disruptive.
5. In relation to the failure of the Applicant to report the inappropriate behaviour of the nominated supervisor with whom the Applicant worked in January 2025, the Tribunal finds that the Applicant was obliged to report this behaviour, and her failure to do so because she felt intimidated by the nominated supervisor does not excuse her inaction. The Tribunal accepts the Applicant's evidence that since this incident her confidence has grown, and she would now report any inappropriate behaviour she observes in her role as an educator, including when the behaviour is by a colleague who is her supervisor, or by a colleague who is more senior to the Applicant.
6. The evidence before the Tribunal, specifically the character references provided by RA and JR, indicates that since the Incident the Applicant has worked at another service where she is highly regarded by her colleagues, the children and their parents, and she has demonstrated an awareness of how similar situations such as that which occurred during the Incident could be addressed differently in the future, including by seeking the support of other employees.
7. The Tribunal does not accept the Respondent's submission that the character references should be given less weight because they are unsigned, or because they do not refer in detail to the Incident. RA attended the Interview as the Applicant's support person and therefore was fully aware of the allegations made against the Applicant. JR has observed the Applicant's work at the Kindergarten and she describes the Applicant's approach to the children in her care as "patient, empathetic and nurturing" and states that the Applicant contributes "a calm, reliable and positive presence within the learning environment."
8. On the evidence before the Tribunal and having regard to the relevant authorities, we do not consider that the Applicant may be an unacceptable risk of harm to a child or children if she were allowed to remain on the education and care service premises. The Applicant accepts responsibility for her conduct during the Incident and is aware that she should use her words not physical force to address behaviour of children which is disruptive. We are satisfied that the Applicant is aware of her mandatory reporting obligations and her responsibility to report any inappropriate behaviour she observes. We have taken into account that the Applicant was a young woman aged 20 years at the time of the Incident and at the time she did not report the inappropriate behaviour of the nominated supervisor she observed while she was working at the Kindergarten. In the period since these incidents the Applicant has undertaken further study in childhood education and worked at another centre where she has demonstrated her ability to manage challenging behaviours and has contributed as a reliable and positive presence within the learning environment.
9. To prohibit the Applicant from providing education and care to children would in our view be punitive not protective, as it would be based on an assessment of the Applicant's risk to children based on her past conduct, and not based on the Applicant's current and future risk to children which we are satisfied is neither real nor appreciable. We are satisfied that the Applicant would not pose an unacceptable risk of harm to a child or children if she was allowed to remain on an education and care service premises or provide education and care to children.

1. For the reasons set out above, the Respondent's decision to issue a prohibition notice to the Applicant is set aside.

(1) The decision of the Respondent made on 1 May 2025 to issue the Applicant with a prohibition notice is set aside.

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

[4] [2017] NSWCATAD 257.

[5] [2008] HCA 31; (2008) 235 CLR 286.

[6] [2022] NSWCATAD 76.

[7] [2024] NSWCATAD 237.

[22] [2021] NSWCATAP 411.

[23] [2019] NSWCATAD 45.

[24] [2020] NSWCATAD 37.

[26] [2020] NSWCA 338.

[27] [2015] NSWSC 523.