Kendrick v Secretary of the Department of Education NSW

NCAT Administrative and Equal Opportunity|2018-11-12

New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: Nil Category: Principal judgment Parties: F Kendrick (Applicant) Secretary of the Department of Education NSW (Respondent) Representation: Counsel: P Gerber (Applicant) J Edwards (Respondent)

Solicitors: Gerber Legal (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2018/00238943 Publication restriction: None

Legislative background

The objectives and guiding principles of the National Law are found in section 3: 3 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; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (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; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
Section 4 provides how the functions under the National Law are to be exercised as follows: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.
The National Law provides under Part 3 for a natural person or company to operate an education and care service, which includes family day care services. The applicant in this matter is a natural person rather than a company. An applicant must obtain service approval under Part 3 in order to operate an education and care service.
The Regulatory Authority is defined in section 5 to be: "Regulatory Authority" means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction...
Pursuant to section 24 of the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) references to Regulatory Authority in the National Law is a reference to the Regulatory Authority for this jurisdiction. Under section 9 of the Children (Education and Care Services National Law Application) Act 2010 (NSW), the Regulatory Authority for NSW is the Director-General of the Department of Education and Communities, now known as the Secretary of the Department of Education.
The National Law provides a mechanism for the Regulatory Authority to issue a prohibition notice to a person who is in any way involved in the provision of an education and care service. A prohibition notice is a notice that prohibits the person from doing certain activities relating to the provision of education and care to children for an education and care service.
The Regulatory Authority may give a prohibition notice in certain circumstances described in section 182 of the National Law. Essentially, the prohibition notice may be issued if the Regulatory Authority considers 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 to provide education and care to children. Section 182 relevantly states: 182 GROUNDS FOR GIVING PROHIBITION NOTICE (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…
There is mechanism within the National Law for the issue of a "show cause notice" prior to issuing a prohibition notice. In circumstances where the Regulatory Authority is satisfied it is necessary in the interests of the safety, health or well-being of the child or children, to immediately issue a prohibition notice, then a show cause notice does not need to be issued because of section 183 (2) of the National Law.
A person to whom a prohibition notice has been issued may apply to the Regulatory Authority to cancel the prohibition notice. The relevant provision is section 186 of the National Law which provides: "186 CANCELLATION OF PROHIBITION NOTICE (1) If the Regulatory Authority is satisfied there is not a sufficient reason for a prohibition notice to remain in force for a person, the Regulatory Authority must cancel the prohibition notice and give the person notice of the cancellation. (2) A person for whom a prohibition notice is in force may apply to the Regulatory Authority to cancel the notice. (3) The application must-- (a) be in writing; and (b) include the prescribed information; and (c) be signed by the person. (4) The person may state in the application anything the person considers relevant to the Regulatory Authority's decision about whether there would be an unacceptable risk of harm to children if the person were-- (a) to remain at the education and care service premises; or (b) to provide education and care to children. (4A) The person may state in the application anything the person considers relevant to the Regulatory Authority's decision about whether the person is a fit and proper person to be nominated as a nominated supervisor with or without conditions. (5) The application may include a statement setting out any change in the person's circumstances since the prohibition notice was given or since any previous application under this section that would warrant the cancellation of the notice. (6) The Regulatory Authority must decide the application as soon as practicable after its receipt.

Jurisdiction

In CTG v NSW Department of Education Early Childhood and Care Directorate [2017] NSWCATAD 60, Senior Member McAteer determined that the application before the Tribunal is in the review jurisdiction rather than as an external appeal. This decision was followed in CVT v NSW Department of Education & Communities, Early Childhood Education & Care Directorate [2017] NSWCATAD 74. It was also considered that an application such as this is to be heard in the review jurisdiction of the Tribunal and that determination was made previously in CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132.
The matters of CTG v NSW Department of Education [2017] NSWCATAD 60, CVM v NSW Department of Education [2017] NSWCATAD 108, CVN v NSW Department of Education [2017] NSWCATAD 109, CVT v NSW Department of Education [2017] NSWCATAD 74 and CTZ v NSW Department of Education [2017] NSWCATAD 132, with respect, were wrongly decided in respect of the identified jurisdiction and the reference to the jurisdiction conferred by section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) is in error. The jurisdiction is instead more correctly considered to be conferred on the Tribunal under the general jurisdiction provision in s 29 of the Civil and Administrative Tribunal Act 2013 (NSW). The reasoning in CTG is respectfully correct in finding that the Tribunal's jurisdiction is not one in relation to an external appeal under s 31 of that Act. The National Law refers to "external review", not "external appeal". It is apparent that the Tribunal in CTG and in the decision in CTZ did not give consideration to section 29 of the Tribunal Act as a source of jurisdiction and as set out in the reasoning in DBU v Secretary, Department of Education [2017] NSWCATAD 257 section 29 of the Tribunal Act is the source of jurisdiction in this matter.
In Secretary, Department of Education v Joys Child Care Ltd [2017] NSWSC 749, Justice Parker acknowledged that there were two views about the statutory basis for the Tribunal's review power. The court in that matter did not need to reach any conclusion as to whether the Tribunal was exercising its jurisdiction under section 43 of the Civil and Administrative Tribunal Act or section 60 of the Administrative Decisions Review Act. Section 43 of the Civil and Administrative Tribunal Act is the equivalent stay provision to section 60 of the Administrative Decisions Review Act.
In DBU v Secretary, Department of Education [2017] NSWCATAD 257 (DBU) it was held by Senior Member Ransome at [22] that: In summary, while the National Law and associated legislation provide for review of some decisions with respect to child care services to be dealt with in the Tribunal's administrative review jurisdiction, that does not include the decision presently under review because it relates to a family day care service. That decision therefore falls for review within the Tribunal's residual general jurisdiction in s 29 of the Tribunal Act.
Because the Children (Education and Care Services) Supplementary Provisions Act 2011 (NSW) (especially sections 4 and 17) applies to "State regulated education and care services" and family day care services are excluded from the definition, the provisions of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) do not apply to this application. For the reasons given by Senior Member Ransome in DBU the previous determinations as to the exercise of the Tribunal's jurisdiction identified as having been conferred by section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) is in error and those previous decisions were incorrectly decided in that respect. It is noted that Senior Member Dr Lucy has also held that to be so in CYU v Secretary, Department of Education [2017] NSWCATAD 290.
Section 192 of the National Law relevantly provides: 192 Reviewable decision-external review A reviewable decision for external review is- (a) a decision of the Regulatory Authority made under section 191 (other than a decision in relation to the issue of a compliance direction or a compliance notice); or (b) a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction- (i) to suspend a provider approval under section 27; or (ii) to cancel a provider approval under section 33; or (iii) to suspend a service approval under section 72; or (iv) to cancel a service approval under section 79 or 307; or (v) to suspend or cancel a supervisor certificate under section 125; or (vi) to direct the approved provider of a family day care service to suspend the care and education of children by a family day care educator; or (vii) to give a prohibition notice or to refuse to cancel a prohibition notice. Note : A person is not entitled to a review under this section in respect of a suspension or cancellation of a service approval if that suspension or cancellation relates only to an associated children's service. Any right of review would be under the children's services law.
The issue of a prohibition notice and refusal to cancel a prohibition notice given under section 182 of the National Law is thus a reviewable decision for external review pursuant to section 192 (b) (vii) of the National Law.
Section 193 of the National Law provides: 193 Application for review of decision of the Regulatory Authority (1) A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision. (2) An application must be made within 30 days after the day on which the applicant is notified of the decision that is to be reviewed. (3) After hearing the matter, the relevant tribunal or court may- (a) confirm the decision of the Regulatory Authority; or (b) amend the decision of the Regulatory Authority; or (c) substitute another decision for the decision of the Regulatory Authority. (4) In determining any application under this section, the relevant tribunal or court may have regard to any decision under this Law as applying in another participating jurisdiction of a relevant tribunal or court of that jurisdiction.
In section 5 of the National Law the definition of relevant tribunal or court is: "relevant tribunal or court" , in relation to a participating jurisdiction, means the tribunal or court declared by a law of that jurisdiction to be the relevant tribunal or court for the purposes of this Law or a provision of this Law;
In section 8 of the Children (Education and Care Services National Law Application) Act 2010 the relevant Tribunal is declared: 8 Relevant tribunal or court For the purposes of the definition of "relevant tribunal or court" in section 5 of the Children (Education and Care Services) National Law (NSW) : (a) the District Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 181 of that Law, and (b) the Civil and Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Part 8 of that Law.
As Senior Member Ransome stated in DBU at [24]-[26]: [24] What then is the Tribunal's task on review in the present case? Under s 192 of the National Law the Tribunal is to conduct an "administrative review" of the decision made by the Regulatory Authority. That term is not defined. While the Tribunal Act sets out the practice and procedure to be followed by the Tribunal in its proceedings, it also is silent on what the Tribunal's task in its general jurisdiction with respect to an administrative review. [25] Consideration of the scope of an administrative review function arose most notably in the case of Drake v Minister for Immigration and Ethnic Affairs(1979) 24 ALR 577 where, in relation to the then newly established Commonwealth Administrative Appeals Tribunal (AAT), the Full Federal Court stated at 579 that the AAT's task was to reach "the correct or preferable decision" on the material before it. That description (and the similar formulation "correct and preferable") of a decision-maker's obligations when conducting administrative review has been repeated many times since, both in case law and in legislation. Indeed, under s 63 of the ADR Act in its administrative review jurisdiction, this Tribunal is tasked with making the "correct and preferable decision". [26] In my view, in conducting an administrative review in the exercise of its general jurisdiction under s 29 of the Tribunal Act, the Tribunal is required to perform essentially the same task as it would if the matter fell within its jurisdiction under s 30 of the Tribunal Act, that is, it is required to make the correct and preferable decision on the material before it. The High Court in the case of Shi v Migration Agents Registration Authority (2008) CLR 286 (sic) confirmed that administrative review is conducted at the time of the review on the material available to the Tribunal at the time of the review, which may include new or additional material that was not before the original decision-maker.
Therefore, the scheme of the legislation is that the Civil and Administrative Tribunal is the relevant tribunal to which an application may be made for external review of a decision of the Regulatory Authority under section 186 of the National Law. The powers given to the Tribunal are those in section 193 of the National Law. In addition, the National Law provides at section 194 that the Act which establishes this Tribunal is not limited by the National Law. The Tribunal therefore is required to make the correct and preferable decision on the material before it.

The evidence relied upon in the hearing

The documents in evidence before the Tribunal are: 1. Application for Administrative review filed 3 August 2018.: Exhibit 1. 2. Bundle of documents relied upon by the applicant filed 26 October 2018: Exhibit 2. 3. Summary of legal arguments relied upon by the applicant filed 8 November 2018: Exhibit 3. 4. Bundle of documents including relevant documents before the primary decision-maker filed on behalf of the respondent on 24 September 2018: Exhibit 4. 5. Affidavit of Brett Lalor investigator In the Early Childhood Education and Care Directorate filed 8 November 2018: Exhibit 5. 6. Submissions of the respondent filed 8 November 2018: Exhibit 6.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil standard of proof which is the balance of probabilities.

Onus of proof

The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]: "…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.
Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."
The Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing") at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted: "[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36]. [72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test. … [74] Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party."
The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 ("Karakatsanis ") at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis: "[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law. [37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])] [38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).] 'The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.' [39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present."(footnotes and references included)
The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button's decision and orders in Bronze Wing.
The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that: "This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened." (Citations omitted)

Further Legislative Provisions relevant to the decision

The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division on an application for this review is entitled to be represented by a lawyer without requiring leave of the Tribunal: see sections 16, 17 and Schedule 3, clause 9, of the Civil and Administrative Tribunal Act. There is no automatic prohibition on the publication of names under section 65 of the Civil and Administrative Tribunal Act because this review is not one under the Supplementary Provisions Act. This does not prevent the Tribunal from making nonpublication order under section 64 of the Civil and Administrative Tribunal Act of its own motion. The Tribunal does not consider a nonpublication order appropriate in the circumstances of this matter and no order was sought by the parties.

The Issue

As previously referred to, the issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Secretary Department of Education: see DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [24]-[26]; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
There is no requirement upon the applicant to show that the original decision maker's decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.
The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey's Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

The Evidence

The National Law regulates a range of "education and care services" including "family day care services". A family day care service is an education and care service that is delivered through the use of 2 or more family daycare educators at 2 or more residences.
The scheme of the legislation is that a person who wishes to operate a family day care service must obtain "provider approval" under Part 2 of the National Law. This involves an assessment of whether the person is a "fit and proper person" to be involved in the provision of a service. Once a person holds a provider approval they are known as an "approved provider".
A service approval must also be obtained for a family day care service. This approval is under Part 3 of the National Law. This approval focuses upon the education and care service which is actually operated and involves consideration of those matters specified in the Education and Care Services National Regulations ("National Regulations") at clause 6.
Once there is a provider approval and a service approval in place, the approved provider and the family daycare educators have continuing obligations under the statutory regime. One of those obligations is to "ensure that every reasonable precaution is taken to protect the child being educated and cared for as part of a family day care service from harm and from any hazards likely to cause injury": National Law section 167.
The applicant was a family day care educator registered with an approved provider. The applicant provided education and care services for up to 8 children from her residence.
The applicant's husband and their son occupied those premises and were required to hold, and in fact did hold, a Working with Children Check Clearance.
In or about 2012 the applicant's husband was diagnosed with frontotemporal dementia and his condition has deteriorated since that time. Mr Kendrick requires full-time care and assistance with daily living activities at the time of hearing.
On 10 April 2018 a person who was employed by the applicant as a cleaner and general administrative assistant was asked by the applicant to transfer a number of computer files from the applicant's computer to a USB memory stick device. Upon opening the USB memory stick device, she identified some files with names that suggested they may contain child abuse material.
On 11 April 2018 the applicant's employee reported the matter to crime stoppers and attended a local police station to hand over the USB memory stick device. She also provided 2 statements to New South Wales Police. The investigating Detective Senior Constable reviewed the files on the USB memory stick device and discovered thousands of child abuse images and videos. These images and videos appeared to be placed on the USB memory stick device in the first half of 2012. A letter which was a template document of the applicant's letterhead was also discovered. The template letterhead was dated 30 September 2013.
On 17 April 2018, New South Wales Police executed a search warrant at the applicant's home and seized 5 additional devices. The applicant's son stated during the search in the presence of police: "It's okay mum, it was dad's before he got sick."
The approved provider was notified by the police of the investigation. The approved provider then wrote to the applicant to inform her that her agreement with the approved provider was terminated with immediate effect.
The New South Wales police also informed the Regulatory Authority of their criminal investigation and the discovery of the child abuse material. On 19 April 2018 the Regulatory Authority issued the approved provider with an emergency action notice under section 179 of the National Law. This directed the approved provider to immediately suspend the applicant from providing education and care to children.
Investigators employed by the Regulatory Authority attended the home of the applicant and served her with a prohibition notice under section 182 and 183 (2) of the National Law. While speaking to the investigators the applicant said words to the effect: "I am so angry that she [the employee] did this. Once a cop always a cop. Why did she take the USB to the cops? She could have just came (sic) and told me what she found on it and given it back to me and I could have destroyed it. I'm so angry about this."
When confronted with this evidence the applicant stated that she could not recall saying what is reported. In fact, the applicant stated that she may have said it. The applicant stated that she would have taken the USB memory stick device to the police if she was aware of the child abuse material. Additionally, the applicant says that the children in her care did not have access to the USB memory stick device. The applicant's evidence is that the police also told her there were some family photos on a USB memory stick device. Mr Kendrick has limited life expectancy due to his current disability. The applicant stated that when he dies, she does not wish to resume family daycare activities. The applicant might take in adult student boarders and would like to be able to take in boarders some of whom may be under the age of 18 years.
The police investigation concluded on 10 May 2018 with the outcome as: "no offenders have been identified". The focus of the police investigation, it should be borne in mind, is to identify evidence which would result in a finding beyond reasonable doubt in any potential criminal prosecution.
On 12 May 2018 the applicant made an application to have the prohibition notice issued against her cancelled. The applicant asserted that she had been cleared from any wrongdoing. The Regulatory Authority obtained further information from the police which included the 2 statements from the applicant's employee, a statement by the investigating police officer, and a copy of a New South Wales police intelligence report concerning an attempt made by a man to communicate with Mr Kendrick about sexual experiences with "younger children".
On 25 June 2018 the Regulatory Authority made a decision to refuse to cancel the prohibition notice.

Consideration

The objectives and guiding principles under the National Law are in subsections 3(2) and 3(3) stated to be: (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; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (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; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
The rights and best interests of the child are paramount in implementing the National Law. Since section 4 of the National Law requires an entity that has functions under the law to exercise those functions having regard to the objectives and guiding principles set out in section 3, the Tribunal is required to regard the rights and best interests of the child as paramount in making a determination as to the correct and preferable decision in this matter.
Section 260 of the National Law identifies the functions of the Regulatory Authority as follows: 260 Functions of Regulatory Authority The Regulatory Authority has the following functions under this Law in relation to this jurisdiction- (a) to administer the National Quality Framework; (b) to assess approved education and care services against the National Quality Standard and the national regulations and determine the ratings of those services; (c) to monitor and enforce compliance with this Law; (d) to receive and investigate complaints arising under this Law; (e) in conjunction with the National Authority and the relevant Commonwealth Department, to educate and inform education and care services and the community in relation to the National Quality Framework; (f) to work in collaboration with the National Authority to support and promote continuous quality improvements in education and care services; (g) to undertake information collection, review and reporting for the purposes of- (i) the regulation of education and care services; and (ii) reporting on the administration of the National Quality Framework; and (iii) the sharing of information under this Law; (h) any other functions conferred on the Regulatory Authority under this Law.
In addition to its policing role the Regulatory Authority thus has an educative function and a function to implement improvements in the quality of education and care services.
The need to determine whether there "may be an unacceptable risk of harm" posed by the applicant to children is central as to whether the prohibition notice should be issued in the first place pursuant to section 182 of the National Law, and subsequently whether that notice should be cancelled pursuant to section 186 of the National Law. The Regulatory Authority may issue the prohibition notice "if it considers that there may be an unacceptable risk of harm to a child or children" if the applicant were allowed to provide education and care to children at her home. The Regulatory Authority may cancel a prohibition notice in respect of a person if it is "satisfied" that there is not a "sufficient reason" for the prohibition notice to remain in force for the person.
In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) as follows at [29], and [31]-[33]: [29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J). ... [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.
In Children's Guardian v CKF [2017] NSWSC 893 Justice Davies agreed that the correct approach to risk is as outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted earlier in these reasons. In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Justice Harrison considered what use could be made of events where the Tribunal had a lingering doubt or where suspicion remains. In addition, the Court of Appeal in Tilley v Children's Guardian [2017] NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children's Guardian and the Tribunal are entitled to act, or more practically, may lend some weight to other risk factors.
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.
The provisions of the National Law and the associated regulations are highly prescriptive in order to minimise the risk of harm to children attending education and care services who are in a very vulnerable position, and to protect those children from unacceptable risks of harm.
The risk to children arising from the discovery of the child abuse material is not simply exposure to that material, which is an extremely serious risk to the safety, health and well-being of children attending an education and care service. There is also a risk that children attending that service may be co-opted or forced to participate in the production of child abuse material, which is an even more serious risk. The fact that child abuse material was found on the premises grounds a strong inference that someone on those premises is interested in child abuse material, and also therefore poses a risk as a potential perpetrator of child abuse. A person who is a collector of child abuse material encourages the market for production of that material and is therefore complicit in the abuse of children the subject of that material. The magnitude of the risk posed arising from the discovery of child abuse material is therefore quite high. The fact that no perpetrator or offender has been identified does not diminish or lessen the seriousness of the risk. The gravity of the risk to children attending an education and care service is gravely serious.
The child abuse material was discovered at the home of the applicant. There appears to be little room for doubt that it belonged to one of the residents of the premises. There is also no doubt about the existence of that child abuse material. In all the circumstances, there is an unacceptable risk of harm to children from being on the premises of the applicant and in the care of or in the company of persons on those premises. The words used in section 182 of the National Law are "if it [the Regulatory Authority] considers that there may be an unacceptable risk of harm to a child". 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. Therefore, it is appropriate to find that the issue of the prohibition notice was justified in the circumstances of this matter.
There is no necessity to identify the owner of either the USB memory stick or the material which was stored upon that stick in order to say that there may be an unacceptable risk of harm. This is consistent with the authorities to which these reasons earlier refer. It is difficult to believe that the applicant knew that the USB memory stick device contained child abuse material since she gave it to her employee to use. In fact, it appears that the applicant believes Mr Kendrick may have utilised the USB memory stick device, but that he is currently no risk to children due to his disability. The applicant said that the USB memory stick was safely stored in her bedroom. Indeed, the police intelligence report which indicates that the post office box address to which correspondence was addressed to the applicant's husband was probably a secret from the applicant. There is insufficient evidence however to make a finding that Mr Kendrick was responsible for the child abuse material on the USB memory stick device, and he did not give evidence presumably because of his disability. Despite what is said by the applicant about her knowledge, she cannot be excluded from the pool of possible owners of the device or the material on it due to her knowledge of the existence of the device and her comments to the investigator to which reference is made in the following paragraph.
When the applicant was confronted with the fact that the USB memory stick device was provided to police by her employee her response was that: "She could have just came (sic) and told me what she found on it and given it back to me and I could have destroyed it. I'm so angry about this." In other words, she would have destroyed the USB memory stick if she was aware that her employee had found child abuse material on it. The applicant attempted to put forward a proposition that she would have taken it to the police rather than destroy the USB memory stick device, but that is clearly not what she stated as recorded by the investigation.
The Tribunal is in the position of preferring the evidence of the investigator to that of the applicant about the applicant's statement concerning destroying the USB.
Whilst it is understandable that the applicant may have wished to protect her family from embarrassment and perhaps prosecution, she was prepared to prefer her own interests or those of her family to the interests and protection of children in her care.
The purpose of the National Law is to prefer the interests of children in the care of paid carers over the interests of others.
The fact that the police could not identify an offender does not mean that there is not an unacceptable risk of harm. As observed by Justice McCallum in CMD v NSW Office of the Children's Guardian [2018] NSWSC 1348 at [60]: "I am not persuaded that error is established. As noted on behalf of the Children's Guardian, the task posed by the statute is to make an assessment of risk. The statute plainly contemplates that, whereas the imposition of a criminal penalty requires proof of a specific allegation beyond reasonable doubt, it is enough to disqualify a person from clearance under the Act that there exists a real and appreciable risk to the safety of children. That is an evaluative judgment. It is to be undertaken in a very different context from the assessment of the allegations in the criminal context, most importantly including the fact that the applicant has a statutory duty to disclose all relevant information. I do not see any conceptual difficulty with the proposition that a tribunal might fail to be satisfied on the balance of probabilities as to whether any specified act occurred and yet hold a sufficiently strong apprehension concerning whether any of the conduct might have occurred as to be satisfied that the person in question poses a real and appreciable risk to the safety of children. That is the third category of case explained by Harrison J based on the approach approved by the High Court to Family Court matters where the question of risk arises. It is an approach which unashamedly prefers the safety of children to all other considerations. To hold that the Tribunal could not be satisfied that a person poses a risk to the safety of children without making firm findings as to the occurrence of particular conduct specified with the particularity of an indictment would undermine that protection."(emphasis added)
The assessment of risk in this matter requires less particularity than under the legislation which was governing the exercise in CMD v NSW Office of the Children's Guardian because of the broad compass of the phrase "if it considers that there may be an unacceptable risk of harm to a child or children" in section 182 of the National Law.
The applicant's son stated in the presence of the police when they executed their warrant words to the effect: "It's OK Mum, it was Dad's before he got sick." This was apparently in reference to the USB memory stick device. Whether the son knew of the existence of the child abuse material present on the USB memory stick device is not clear from the evidence before the Tribunal. If the son knew what was on the USB memory stick device clearly the risk to children in the applicant's home is increased because no steps were taken to protect the children at family daycare or to report the offending images and videos to the police.
The applicant gave evidence that her son did not know where the USB stick came from despite his comment in the presence of police.
The Regulatory Authority has determined that there is a sufficient reason for the prohibition notice to remain in force.

Conclusion

The determination of the correct and preferable decision must regard the rights and best interests of the child who may receive the benefit of the service as paramount and to ensure the safety, health and wellbeing of children attending education and care services.
The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.
Having regard to all of the evidence, and for the reasons previously identified in these reasons, it is considered that there is an unacceptable risk of harm to children in the care of the applicant or at premises from which she conducts family day care services.
The Tribunal is not confined in its consideration of this matter to the reasons identified in the reasons for the original decision; Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45].
The applicant has given additional evidence to the Tribunal. The applicant has also provided some references to which the Tribunal has had regard. Those referees identify that the applicant is generally of good character but do not ultimately provide evidence to assist in the assessment of risk in a favourable way to the applicant. Ultimately, it is the Tribunal's determination that there remains a sufficient reason for the prohibition notice to remain in force.
Having regard to all of the matters raised it is the Tribunal's decision that in all the circumstances the correct and preferable decision is that the decision of the Regulatory Authority is confirmed. Consequently, the application for review must be dismissed.

Order

The orders of the Tribunal are that: 1. The decision of the respondent on 25 June 2018 to refuse to cancel a prohibition notice given on 19 April 2018 is confirmed. 2. The application for review filed 3 August 2018 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2019

Children (Education and Care Services) Supplementary Provisions Regulation 2012(NSW)

Because the Children (Education and Care Services) Supplementary Provisions Act 2011(NSW)

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