Nilufar v Secretary, Department of Education

The issue to be determined

1. In this case the issue to be determined is what is the correct and preferable decision having regard to the material before the Tribunal, including material which may not have been before the Secretary of the 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].
2. 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.
3. The question of whether the Tribunal is satisfied that there may be an unacceptable risk of harm to a child or children if the person were allowed 1. to remain on the education and care service premises; or 2. to provide education and care to children; is central to the decision the Tribunal must make.

The evidence

1. The material in evidence before the Tribunal at the hearing was: 1. Two affidavits of Sultana Nilufar dated 13 November and 16 November 2019; 2. A statement of Detective Senior Constable Mark Turner; 3. An affidavit of Deanne Stanley; 4. Documents relating to the decision under review.
2. On 21 August 2019 NSW Police executed a search warrant at the premises where the applicant operated a family day care service.
3. The occupier's notice for the search warrant empowered the police to search for: "Cardboard boxes, plan white t-shirts, prohibited drugs, items that may be used to extract prohibited drugs from the t-shirts, documentation regarding consignments from Malaysia, documentation in relation to importing items in the country, documentation regarding Sleek Boutique, Cipher mobile phone, mobile phones, large sums of Australian currency, firearm, firearm parts."
4. It states that the warrant was granted on the basis that the issuing officer found that there were reasonable grounds to believe that there were on the premises the things listed above, which were things connected with the offences of: 1. Importation of Prohibited Drug under s S 307.1 of the Criminal Code Act 1995 (Commonwealth); 2. Possess Prohibited Drug under s 9 of the Drug Misuse and Trafficking Act 1985 (NSW) 3. Kidnapping under s 85 of the Crimes Act 1900 (NSW).
5. It was not in dispute that none of the items on the search warrant were found.
6. The applicant gave evidence. She said that until the prohibition notice she operated the day care service from her home and the rumpus room and family room were used for that purpose.
7. She said that she had three sons, aged 16, 27 and 29. She last saw the two oldest sons on 22 July 2019. She said her sons had told her they were going overseas with friends but she did not know who or where they were going and they did not say how long they would be away.
8. She was present when the search warrant was executed, along with her husband and one child who was in care.
9. She said she did not believe her two oldest sons were involved in criminal activities. She denied any knowledge of the matters on the search warrant. She said that she had not read the search warrant properly at the time.
10. When cross examined about her son's movements, she said she could not remember exactly when she last spoke to them.
11. She said she had no knowledge of the white powder that was found in the garage. It was in a plastic container inside a plastic bag which was under three or four heavy boxes. She said she asked her sons about the white powder. Her son told her it was protein powder for weight loss. She did not know how it got there, although she said she had assembled the boxes on top, which contained toys. There were no labels on the boxes or the container. She did not ask them about the crimes on the search warrant or what they were doing.
12. She denied knowing that it was a toxic substance and said that she would have been concerned if she had known that. She agreed that she needed to be aware of what was on the premises but the door between the garage and the house interior was locked and there was a safety gate in the corridor leading to the garage to prevent children going into that part of the premises.
13. She agreed that her sons would be allowed to use the family room when they were at home in the evenings.
14. A plan of the premises was in evidence. There are two entrances to the garage, one at the front of the garage from the outside and one from inside the house via a door.
15. The applicant said that she had a Bachelor of Science degree and had been registered as a child care provider for 14 years with no concerns. At present she could not work at all because of the prohibition notice and she had been diagnosed with depression. She said that she would prefer to work from her own home. She is the primary breadwinner for the household. Since the prohibition notice was issued they have experienced financial hardship and have had to borrow money from relatives.
16. Detective Senior Constable Mark Turner gave evidence. He is the officer in charge of an ongoing investigation into suspected criminal activity in which the applicant's two eldest sons are persons of interest. He made the application for the search warrant.
17. Information about the details of the investigation was not available due to a claim of public interest immunity by the NSW Police Force over relevant material.
18. His searches on the Computerised Operational Policing System database and the Roads and Maritime Services database resulted in only one listed residential address for the sons of the applicant, which was the address of the premises she used for her family daycare service.
19. He had received information from the Department of Home Affairs that the two sons had left Australia on 22 June 2019.
20. During the search on the premises, white powder was found which was sent to a forensic laboratory to be tested. Detective Senior Constable Turner was not at the premises when the powder was found but he had seen a photo of its location. The testing indicated it was not cocaine as had been suspected, but Dinitrophenol. No one had been charged in relation to the powder.
21. He said that the garage had a normal garage door and an internal door. The back of the house had a rumpus room and family room with children's things in it.
22. The sons of the applicant did not have criminal offences on their record apart from one driving offence. The investigation into the matters on the search warrant is ongoing. He stated that he continued to have concerns for the health, safety and wellbeing of any child who would be cared for at the premises.
23. Ms Deanne Stanley, an investigator employed by the respondent, gave evidence. Ms Stanley said that she had made inquiries with the police after the respondent was notified of the search warrant incident. The police were not able to tell her much at this stage but she was told by a Detective Brendan Sharwood on 22 August 2019 that the white powder was believed to be cocaine and that police had concerns for the health, safety and wellbeing of children being cared for at the premises.
24. On 8 October 2019 Ms Stanley was informed by Detective Sharwood that the powder was identified as Dinotrophenol. In a file note she recorded that he told her that it was a very dangerous diet powder and was also used in explosives in World War II. She searched Dinotrophenol on the internet. She had found information including: 1. A document of the Therapeutic Goods Administration dated July 2016 indicating an application was made to list dinitrophenol in Schedule 10 due to its "high toxicity"; 2. An 2011 article from the Journal of Medical Toxicology regarding dinitrophenol (DNP) which states: "DNP is sold mostly over the internet under a number of different names as a weight loss/ slimming aid. It causes uncoupling of oxidative phosphorylation; the classic symptom complex associated with toxicity of phenol-based products such as DNP is a combination of hypothermia, tachycardia, diaphoresis and tachypnoea, eventually leading to death". … To date, there have been 62 published deaths in the medical literature attributed to DNP."
25. The respondent referred us to the Poisons Standard for December 2019 issued by the Commonwealth Department of Health. Dinitrophenol is listed in Schedule 4 as a prescription only medicine; Schedule 6 as a poison; Schedule 7 as a restricted poison for analytical or research purposes only; and in Schedule 10 as a substance for human use "of such danger to health as to warrant prohibition of sale, supply and use". It should carry the warnings "highly corrosive", "strongly alkaline" and "Warning - may be fatal to children" (Appendix F of the Standard).

The parties' submissions

1. The applicant submitted that the respondent's decision was flawed. This is not relevant to the issue which the Tribunal must decide, namely, what is the correct and preferable decision based on the material before it.
2. The applicant also submitted that the Tribunal must be satisfied that there is a risk, and that no risk was identified, given the precautions taken by the applicant. The garage, where the powder was found, was not part of the childcare premises. There was no evidence as to the purity of the powder. It was not clear what risk was posed by the sons, if any, as it was not known why they were persons of interest and the Tribunal should not infer that they were suspects. None of the items on the search warrant were found.
3. It was not the applicant's responsibility to know about her sons' actions. No adverse inference should be drawn from her lack of evidence about her sons. There was no evidence that she did not supervise the children sufficiently.
4. There was also no evidence to show that the applicant personally posed a risk to children if she remained on the premises. There was nothing adverse on her record. The order was excessive in that regard and unsupported by evidence.
5. The respondent submitted that the Tribunal should find that there may be an unacceptable risk of harm to a child or children if the applicant were allowed to remain on premises; or provide education and care to children.
6. When determining what was unacceptable, the Tribunal should consider the objects of the National Law. In determining if there may be an unacceptable risk if the applicant provided education and care to children, the Tribunal should consider how the applicant provided that education and care. That is, it should assume she was providing education and care at those premises.
7. The respondent's Counsel referred to the decision of Kendrick, in relation to determining whether the powder posed a risk to the safety of children in care at the premises. In that case a USB containing child abuse material was found at the home of the applicant. At paragraph 72 the Tribunal said: "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."
8. The applicant had the forensic burden to prove that the sons did not pose a risk by adducing evidence of their whereabouts and living arrangements. The applicant disputed this and submitted that the correct test was whether there was an unacceptable risk, not whether there may be.

Consideration

1. 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." .
2. In our view two possible risks arise. 1. The risk of harm associated with the presence of the Dinotrophenol on the premises. It is apparent from the available evidence that this substance is a poison which may be fatal to children. The risk is not necessarily limited to harm from direct ingestion of the substance but what can be inferred about the safety of the premises from the presence of the substance on the premises. 2. The risk of harm or danger associated with the execution of the search warrant on the premises and the ongoing police investigation of the applicant's sons, whom according to police are persons of interest relation to possible kidnapping, drug offences and drug importation.
3. It is not necessary for us to make a finding that criminal conduct has occurred, in order to find that there may be a risk. It was submitted by the respondent, and we agree, that the approach is similar to that involved in s 28 of the Child Protection (Working with Children) Act 2012 (NSW). As stated by McCallum J in CMD v Office of the Children's Guardian [2018] NSWSC 1348 at [60]: "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… 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."

What is an unacceptable risk

1. The term "unacceptable risk' is not defined in the legislation. In Kendrick it was held that: "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." (at 50-51]).
2. The objectives in s 3 include ensuring the safety, health and wellbeing of children attending education and care services. In addition s 3(3)(a) states that one of the guiding principles is that the rights and best interests of the child are paramount.
3. Secondly as noted above the National Law is protective in nature.
4. In our view, therefore, in this context a risk is unacceptable if it is not compatible with, or would detract from ensuring the safety, health and wellbeing of children attending the services provided by the applicant and promoting the rights and bests interests of children.

Whether there may be an unacceptable risk if the applicant were allowed to remain on the premises or provide education and care services to children

1. While the evidence concerning the criminal investigation and the dinitrophenol is limited, it is still open to the Tribunal to consider that there may be a risk (Shak-Ra-Zad v NSW Department of Education, unreported, NSW Civil and Administrative Tribunal, 2018/67404).
2. The presence of the white powder suggests that a person or persons who have lived at or used the premises where the education and care service was operated, have access to and use prohibited substances. One of the applicant's sons conceded he knew about the powder. While he does not live there presently, he may return there in the future.
3. Its presence also poses a risk that children might come into contact with those substances. While it might not be possible for a child to gain access to the garage, there is a risk that the substance could be used in other parts of the premises which are accessible by children. We also note that the boxes on top of the container where the substance was stored contained toys which might be used by children.
4. The execution of the search warrant on the premises and the ongoing police investigation of the applicant's sons, in relation to possible kidnapping, drug offences and drug importation offences, present a risk that should the sons return to Australia, any children at the premises might be exposed to contact with serious criminal activity or possible harm. Based on the available evidence, the premises is associated with the two sons as their only official residential address. The applicant said that her sons would be allowed to stay there if they return to Australia.
5. We consider that these risks are unacceptable in the context of the legislation. Any hardship to the applicant is not relevant in assessing the risk.
6. There is no evidence to suggest that the applicant knows of or is associated with any criminal activity. We did find her evidence to lack credibility in relation to her knowledge of her son's whereabouts and we found it improbable that she would not have asked where they were or how long they would be away. Nonetheless we consider that the risk is associated with the applicant providing the services on those premises or other premises associated with her sons, rather than associated with the applicant herself.
7. In that regard we consider that the content of the prohibition notice was disproportionate to the risk. We do not consider that the applicant being engaged as a supervisor, educator, family day care educator, employee, contractor, volunteer or staff member of an education and care service which is not at her own premises presents an unacceptable risk. Therefore the correct and preferable decision would be to amend the decision so that it addresses the identified risk.
8. It is noted that the applicant may apply to the Department to have the prohibition notice cancelled should the circumstances warrant this under s 186 of the National Law.

Orders 1. The decision under review is amended by amending the prohibition notice dated 23 August 2019 to state that the applicant is prohibited from providing education and care to children for an education and care service at the premises named in the notice or any other family day care residence or venue which is owned or operated by the applicant.

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: 31 January 2020