Ley v Children’s Guardian

1. This is an internal appeal from the decision of the Tribunal made on 7 January 2026 in proceedings in the Administrative and Equal Opportunity Division (AEOD) between Grace Jian Hong Ley (Ms Ley) and Children's Guardian (the Guardian or CG) whereby it affirmed the decision of the Guardian to refuse to grant to Ms Ley a clearance under the National Disability Insurance Scheme (Workers Checks) Act 2018 (NSW) (NDIS Worker Checks Act): Ley v Children's Guardian [2026] NSWCATAD 5 (the AEOD proceedings or the AEOD decision according to the context).
2. The Guardian has applied to dismiss the appeal.
3. I have decided to dismiss on the appeal on the ground that the Appeal Panel does not have jurisdiction to determine the appeal together with the pending stay application.

1. On 31 October 2022, Ms Ley pleaded guilty to the following two offences:

(1) dealing with suspected proceeds of crime pursuant to s 193C(2) of the Crimes Act 1900 (Cth); and

(2) providing a registerable digital currency exchange service to another person not being a registered digital currency exchange provider pursuant to s 76A(3) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).

1. On 21 August 2024, Ms Ley applied for a NDIS worker check clearance under the NDIS Worker Checks Act.
2. On 28 May 2025, the Guardian made a decision to refuse to issue a clearance to Ms Ley pursuant to s 8(2)(b) of the NDIS Worker Checks Act (the original CG decision).
3. On 3 June 2025, Ms Ley lodged a request for an internal review of the original CG decision.
4. On 11 July 2025, the Guardian affirmed the original CG decision (the internal review GC decision).
5. On 22 July 2025, Ms Ley commenced the AEOD proceedings by lodging an administrative review application in which she sought an administrative review of the internal review CG decision (the AEOD application).
6. On 7 January 2026, the Tribunal constituted by Senior Member R Bailey and General Member J Herberte made the AEOD decision.

1. On 27 January 2026, Ms Ley as the appellant commenced this appeal against the Guardian as the respondent by lodging the following documents:

(1) a notice of appeal in which she challenges the AEOD decision:

(2) a stay application in which she seeks a stay of the AEOD decision.

1. On 28 January 2026, the Appeal Panel constituted by Principal Member Dr J Lucy made procedural directions for the hearing of the stay application and listed the appeal for a call over and the hearing of the stay application on 20 February 2026 at 11.30 am (the 28 January 2026 directions).
2. On 11 February 2026, the Guardian lodged an application for miscellaneous matters seeking an order dismissing the appeal pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) (the dismissal application).
3. On 13 February 2026, the Registrar sent a letter dated 10 February 2026 by email to the parties requesting comments on the dismissal application by 17 February 2026 at 3:00 PM and whether or not they object to a hearing being dispensed with (the 13 February 2026 NCAT letter).
4. On 17 February 2026, the Guardian lodged her submissions seeking the dismissal of the appeal and the stay application (the CG submissions).
5. On 19 February 2026, the Appeal Panel constituted by myself vacated call over and the hearing of the stay application on 20 February 2026 at 11.30 am.
6. Ms Ley has not lodged any evidence or submissions in response to the 28 January 2026 directions or the 13 February 2026 NCAT letter.

1. The determination of the dismissal application will involve answering the following two questions:

(1) whether a hearing of the dismissal application should be dispensed with;

(2) whether the appeal should be dismissed.

1. If the appeal should be dismissed, then the question will arise as to whether the stay application should be dismissed.

Whether a hearing of the dismissal application should be dispensed with

1. The Guardian consents to a hearing of the dismissal application being dispensed with, and Ms Ley has made no submission on this issue.
2. I am satisfied that the issues for determination in relation to the dismissal application can be adequately determined in the absence of the parties by considering their written submissions. Accordingly, I have decided pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to make an order dispensing with a hearing of the dismissal application.

1. Before considering this issue, I have set out the applicable statutory provisions and summarised the relevant legal principles and the submissions of the parties.

1. Part 3 (ss 28-34) contains provisions dealing with the jurisdiction of the Tribunal. Section 32 deals with the Internal appeal jurisdiction of the Tribunal, and relevantly provides:

(1) The Tribunal has internal appeal jurisdiction over -

(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and

...

1. Part 4 Div 4 (ss 49-55) contains provisions dealing with the conduct of proceedings in the Tribunal. Section 55 deals with the dismissal of proceedings, and relevantly provides:

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -

...

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

...

1. As at 22 July 2025, Pt 6 Div 2 (cll 15-18) of Sch 3 which relates to the AEOD contained provisions dealing with appeals against certain AEOD decisions. Clause 15 dealt with AEOD decisions that are not internally appealable, and relevantly provided:

15 Division decisions that are not internally appealable

Despite section 32 of this Act, each of the following Division decisions is not an internally appealable decision for the purposes of an internal appeal -

...

(c) Division decision for the purposes of the National Disability Insurance Scheme (Worker Checks) Act 2018,

...

1. Clause 17 dealt with certain AEOD decisions to be appealed directly to Supreme Court, and relevantly provided:

17 Certain decisions to be appealed directly to Supreme Court

(1) A party to proceedings in which any of the following decisions is made may appeal to the Supreme Court on a question of law against the decision -

...

(b) a Division decision for the purposes of the National Disability Insurance Scheme (Worker Checks) Act 2018.

1. On 23 September 2025, the Child Protection (Working with Children) and Other Legislation Amendment Act 2025 (NSW) (Amendment Act) so far as relevant came into force and by Sch 3[4] omitted cll 15(c) and 17(1)(b) of Sch 3 of the NCAT Act.

1. As from 23 September 2025, by Sch 4[2] of the Amendment Act which was introduced into the first introduced into Parliament on 5 August 2025, the following transitional provisions were inserted into the NDIS Worker Checks Act:

Part 2 Provision consequent on enactment of Child Protection (Working with Children) and Other Legislation Amendment Act 2025

(1) This clause applies to an application for review made to the Tribunal but not finally determined before the commencement date.

(2) For an application for review made before the introduction date, the application must be determined by the Tribunal as if the amendment Act had not commenced.

(3) For an application for review made on or after the introduction date and before the commencement date, the application is taken to have been withdrawn by the person who made the application.

(4) In this clause -

amendment Act means the Child Protection (Working with Children) and Other Legislation Amendment Act 2025.

application for review means an application to the Tribunal for a review of any of the following decisions -

(a) a decision to refuse to grant an application for an NDIS worker check clearance, including a decision to terminate an application for an NDIS worker check clearance,

(b) a decision to impose an interim bar on an applicant for an NDIS worker check clearance, if the bar has been in force for more than 6 months,

(c) a decision to suspend an NDIS worker check clearance, if the suspension has been in force for more than 6 months,

(d) a decision to cancel an NDIS worker check clearance, other than cancellation at the request of the holder of the clearance.

commencement date means the date on which this clause commences.

introduction date means the date on which the Bill for the amendment Act was first introduced into Parliament.

Interpretation Act

1. Part 1 (ss 1-5) of the Interpretation Act 1987 (NSW) contains preliminary provisions. Section 5 deals with the application of the Interpretation Act, and relevantly provides:

(1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act.

...

1. Part 4 (ss 27-30) contains provisions dealing with amendments and repeals. Section 30 deals with the effect of the amendment or repeal of Acts and statutory rules, and relevantly provides:

30 Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not -

...

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

...

1. In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267; [1957] HCA 7, Dixon CJ stated the following common law principle:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."

1. This common law principle has been subsequently referred to with approval on many occasions in the High Court of Australia and the New South Wales Court of Appeal: see, for recent examples, Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362 at [50] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ; with Edelman J agreeing); SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [35] (Basten JA; with Ward JA v agreeing). This common law principle has been applied by the Appeal Panel on several occasions: see, for example, Niu v Chief Commissioner of State Revenue [2023] NSWCATAP 123 at [30]; Wrigley v Owners Corporation SP 53413 [2017] NSWCATAP 100 (Wrigley) at [69].
2. Section 30(1)(c) of the Interpretation Act has been the subject of judicial consideration by New South Wales Court of Appeal and Supreme Court. In Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291; [2005] NSWCA 223 (Colley) at [19] and [23], Handley JA observed (with Giles JA agreeing):

"[19] Subject to any contrary intention in the repealing or amending legislation s 30 preserves rights which have been acquired or have accrued under the repealed or amended Act. It does not define or describe the nature of the rights that are preserved and the courts have had to work this out over a long period."

"[23] In Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 the Privy Council held that the right of a litigant in pending proceedings to appeal as of right to a higher court was a vested right although the lower court had not yet given judgment and an appeal had not yet been filed. It is clear that a prospective litigant would have no such right."

1. In Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports & Recreation Association Inc v Karabay (2007) 69 NSWLR 669; [2007] NSWCA 96 (Torrac) at [43], Young CJ in Eq said (with Ipp JA and Handley AJA agreeing):

"An individual substantive right which came into existence before the repeal of the statute which created it will be saved by the Interpretation Act provisions even if nothing had been done to enforce or claim that right before the repeal." (citations omitted)

1. In In the matter of Rocha Pty Limited (No 2) [2016] NSWSC 1172, Brereton J reviewed and referred to many cases, and at [3] and [29] said:

"[3] It is worth observing at this point that s 30(1)(c) preserves any right which is acquired or accrued under a repealed Act before its repeal, and the concluding paragraph of s 30(1) preserves the ability to institute legal proceedings in respect of such an accrued right, after the repeal of the relevant Act. Section 30(1)(c) is concerned with the substantive right, and the concluding paragraph with the proceeding to enforce it."

"[29] Thus, although the authorities have sometimes expressed the distinction as one between cases in which a right automatically accrues or is acquired upon the happening of an event specified by the statute which is independent of the act of the individual concerned, and cases in which statutory rights are generally available without the happening of a specific event and do not accrue until some step is taken by a plaintiff, that is really no more than a way of expressing the difference between an extant substantive right on the one hand, and standing to apply for a favourable exercise of discretion on the other. ... The mere right to make an application for a favourable exercise of discretion is not an "acquired or accrued right" for the purposes of s 30(1) - at least until the application has been made, when a right to have it considered and determined may accrue."

1. In Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 Qd R 210 at 218 (Sunskill Investments), McPherson J said (with Demack J agreeing):

"A right of appeal that exists when the proceedings are instituted is considered as inhering in the proceedings from commencement of the action, and so will not be affected by subsequent statutory restriction unless it is plain that the restriction is intended to have retrospective application. Colonial Sugar Refining Co. v. Irving is itself an illustration of that principle."

1. This principle in Sunskill Investments has been applied by the Appeal Panel: Wrigley at [81], [120].

1. The Guardian in the CG submissions, after referring to the background, the applicable statutory provisions and the relevant legal principles (which are unnecessary to repeat), submits:

(1) when Ms Ley lodged the AEOD application on 22 July 2025, the right for the parties to appeal the AEOD decision to the Supreme Court on a question of law is properly understood as inhering in the AEOD proceedings and vesting in the parties on that date. As such, the Amendment Act is presumed not to disturb that accrued right of appeal, and by extension the entire appeal pathway as in effect on that date, for the purposes of the AEOD proceedings;

(2) Ms Ley's opposition to the dismissal application is necessarily predicated on an argument that the omission of cl 15(c) of Sch 3 of the NCAT Act has had the effect of conferring a new right of appeal to the Appeal Panel because decisions for the purposes of the NDIS Worker Checks Act are no longer specified as an exception to the Appeal Panel's internal appeal jurisdiction, provided for by s 32 of the NCAT Act. However, whether this right of appeal is characterised as a new right of appeal or a right of appeal that has been transferred from the Supreme Court to now lie in the Appeal Panel, in either case, the presumption against the retrospective operation of legislation will apply;

(3) the terms of the Amendment Act disclose no basis to rebut that presumption. The relevant transitional provision (cl 2(2) of Sch 2 of the NDIS Worker Checks Act) states that a surviving application for review "must be determined by the Tribunal as if the Amendment Act had not commenced". The authorisation in that provision is limited in its scope in that its terms appear only to preserve a right that an application for external review be "determined by the Tribunal" in accordance with pre-Amendment Act law. As a determination by the Tribunal in this context is a determination of the AEOD, the provision may not extend so as to provide express instruction on the law (and appeal pathway) that would apply after that determination occurs. The Amendment Act is otherwise completely silent on rights of appeal to the Supreme Court that have vested in respect of applications lodged in the Tribunal prior to 5 August 2025. There is certainly no express suggestion that these rights are abolished;

(4) as to what may be inferred from the omission of clls 15(c) and 17(1)(b) of Sch 3 to the NCAT Act, it cannot be reasonably argued that the act of omission alone is sufficient to rebut the presumption against retrospectivity. The omissions reveal nothing more than an intention by Parliament to delete redundant references to a discontinued jurisdiction;

(5) there is, therefore, no express language or language from which to derive a necessary intendment that an amended appeal pathway, with a new or transferred right to appeal to the Appeal Panel and an abolished right of appeal to the Supreme Court, would apply retrospectively to applications for administrative review that survived the Amendment Act;

(6) in all the circumstances, it would be a strange outcome if the Amendment Act, whose very raison d'être is to extinguish the Tribunal's jurisdiction to externally review decisions under the NDIS Worker Checks Act, instead created a new right of internal appeal to the Appeal Panel, which has never before had jurisdiction in respect of such decisions, and only for the benefit of proceedings that were commenced before 5 August 2025. That cannot reasonably be suggested to have been Parliament's intention;

(7) for these reasons, the Appeal Panel should find that the appeal pathway in force as at 22 July 2025 continues to apply to the AEOD proceedings with the consequence that the Appeal Panel has no jurisdiction to consider an internal appeal against the AEOD decision in accordance with the terms of cl 15(c) of Sch 3 to the NCAT Act as at that date.

1. The Guardian in the CG submissions records that the dismissal application is opposed by Ms Ley, who contends that, as a result of the Amendment Act, the appeal pathway has been varied such that the Appeal Panel now has jurisdiction to consider an appeal against the AEOD decision.

1. I am satisfied that for substantially the same reasons advanced by the Guardian that on the proper construction of Sch 3[4] of the Amendment Act and cl 2(2) of Sch 2 of the NDIS Worker Checks Act there is no internal appeal jurisdiction under s 32(1)(a) of the NCAT Act in respect of the AEOD decision. In particular, the right of appeal to the Supreme Court on a question of law under cl 17(1)(b) of Sch 3 of the NCAT Act was a right vested in Ms Ley. No intention to remove or abolish accrued rights of appeal from the AEOD decision appears "with reasonable certainty" to use the words of Dixon CJ in Maxwell v Murphy at 267 from the provisions of the Amendment Act. Further, having regard to the principles in Colley at [23], Torrac at [43], and Sunskill Investments at 218, the same result is achieved by the application of s 30(1)(c) of the Interpretation Act which by s 5(1) thereof is applicable to the Amendment Act. On the contrary, as cl 2(2) of Sch 2 of the NDIS Worker Checks Act makes clear, the AEOD application was required to be determined by the Tribunal as if the Amendment Act had not commenced. This requirement included the right of appeal to the Supreme Court and exclusion of the right of appeal to the Appeal Panel pursuant to cll 17(1)(b) and cl 15(c) respectively of Sch 3 of the NCAT Act.
2. It follows that the appeal should be dismissed because it is misconceived or lacking in substance within s 55(1)(b) of the NCAT Act.

Whether the stay application should be dismissed

1. As the appeal should be dismissed, it follows that the pending stay application should also be dismissed because it is misconceived or lacking in substance within s 55(1)(b) of the NCAT Act.

(1) A hearing of the application of the respondent that the appeal is dismissed is dispensed with.

(2) The appeal is dismissed.

(3) The stay application 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.