Appeal Against Prohibition Notice

In FXS v Secretary, Department of Education, before the NSW Civil and Administrative Tribunal, a nominated supervisor appealed against the imposition of a prohibition noticed against them by the NSW Regulatory Authority (Department of Education). By way of background, On 6 July 2023, the Department gave FXS a prohibition notice on the basis that she is not a fit and proper person. The effect of the notice was that FXS was prohibited from being a nominated supervisor. The basis of the notice was (paras 38-9):

• On 3 February 2023 Educator 5 picked up Child 3 by both of her arms and sat her on the toilet in a “forceful manner”. Child 3 began crying and was upset after this interaction. Educators reported this incident to FXS the same day.

• On 15 February 2023 Educator 5 picked up Child 4 from underneath his arms and “forcefully “slammed” him down on a chair”. Child 4 hit his mouth on the edge of the table which cause his teeth to “split through his bottom lip”. An educator reported this incident to FXS the same day.

• Educator 5 inappropriately disciplined the two children in these incidents and that FXS was advised of the incidents by an educator or educators at the centre.

• That FXS failed to report these incidents and allegations to the approved provider, the Department, the Office of the Children’s Guardian, and the parents of the children involved and that the approved provider had delegated these reporting responsibilities to FXS as nominated supervisor.

• That FXS provided an incident report about the 15 February 2023 incident to the Department’s investigator which contained false or misleading information about the incident.

• That FXS in her capacity as nominated supervisor of the service was in breach of the following provisions of the National Law: section 295(1) – False or misleading information or documents and section 166(2) – Offence to use inappropriate discipline

• That FXS in her capacity as nominated supervisor and person with day-to-day carriage of the service caused or contributed to the approved provider contravening the following provision of the National Law and the National Regulations: section 174(2)(b) – Offence to fail to notify certain information to Regulatory Authority; and regulation 86 – Notification to parents of incident, injury, trauma, and illness.

• FXS’s previous alleged contraventions in 2020 of the following provisions of the National Law: section 166(2) - that FXS failed to ensure children being educated and cared for by the service were not subjected to any discipline that is unreasonable in the circumstances; and section 174(2) – that FXS failed to report the incidents to the approved provider.

The Tribunal considered the issue of whether FXS was a fit a proper person (paras. 132-136):

The High Court of Australia has considered how courts and tribunals should interpret the meaning of the phrase ‘fit and proper person’. In Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 at [36] the Court held that the meaning of that phrase should be drawn from “its context, from the activities in which the person is or will be engaged and the ends to be served by those activities” and “cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities”. In certain contexts, character and reputation might be enough to lead to a finding that the person is not fit and proper to engage in the relevant activities.

According to the High Court in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, the expression ‘fit and proper person’ gives a decision-maker a very wide discretion and it involves three things: “honesty, knowledge and ability” to execute the office or vocation (at [9]).

Whether or not an applicant for a licence is a ‘fit and proper’ person is to be considered in the statutory context which includes the objectives and guiding principles in section 3 of the National Law. These include the objective in section 3(2)(a) to ensure the safety, health and wellbeing of children attending education and care services and the guiding principle in section 3(3)(a) that the rights and best interests of the child are paramount. The rights and best interests of the child has been interpreted as the rights and best interests of the child who may receive the service: Two Cubed Pty Ltd v Secretary of the Department of Education NSW [2019] NSWCATAD 122 at [82].

In the light of the factual findings we have made, and in the context of the cases cited at [132]-[133] we considered whether FXS has the requisite ability to perform the duties of a nominated supervisor and also her honesty to execute those duties in the light objective in section 3(2)(a) and paramountcy of the guiding principle in section 3(3)(a). The result was that we consider that FXS is not a fit and proper person to be nominated as a nominated supervisor. The decision to give the prohibition notice must therefore be confirmed.

It is a very serious matter for there to be repeated instances of discipline that is unreasonable in the circumstances and for those instances to not be reported to parents of the children involved. On top of that, to seek to conceal the fact that an educator was the cause of an injury by telling another educator that a false incident report should be written in order to characterise the incident as an accident undermines the system of regulation of long day services. A person engaged in that conduct cannot be found to be a fit and proper person to be a nominated supervisor, given the responsibilities of a nominated supervisor and to find otherwise would not advance the rights and best interests of child attending any service at which FXS was a nominated supervisor.