Appeal Against Prohibition Notice

In GDB v Secretary, Department of Education, the NSW Civil and Administrative Tribunal considered an appeal against the decision of the NSW Regulator (Department of Education) to issue a prohibition notice under section 182, National Law, against GDB (applicant). On 7 December 2023, the applicant was issued with a prohibition notice by the Department. Pursuant to section 193(1), National Law, the applicant sought an administrative review before the Tribunal. The basis for the Department's decision was that there may be an unacceptable risk of harm posed by the applicant to children. The background to the case is very complex and involved. In summary, on 4 September 2023, the applicant performed three hours of a student placement course at an early childhood education centre. The applicant had a working with children clearance. One of the parents of a child receiving education at the early childhood education centre was a principal at a school. This parent, as a consequence of her position had access to confidential information as to persons listed on a “Not To Be Employed List” (“NTBE List”) made by the NSW Department of Education. This parent recognised GDB as a person listed on the “Not To Be Employed List” and notified the early childhood education centre, who contacted the respondent. The parent also stated in the communication to the centre that the applicant had been “raided for child pornography”. In April 2013, the applicant was charged with four counts of possession of child abuse material. The charges came about as a result of a disclosure made by the applicant that he was sent the child abuse material in 2004 when he was 18 years old when he joined an online chat group for homosexual men. The applicant was placed on the NTBE List in 2020 for reasons unrelated to the possession of child abuse material. The reason for the applicant being placed on the NTBE List was “following performance concerns and associated complaints that were subject to determinations by external review bodies.”

In reaching its decision, the Tribunal in some depth addressed the issue of what "unacceptable risk of harm to a child or children" meant under section 182 (paras.121-142):

The consideration of whether a person may be an unacceptable risk of harm to a child or children within the meaning of s 182 of the National Law is analogous to considerations made about Working with Children Check Clearances pursuant to the Child Protection (Working with Children) Act 2012; Kendrick v Secretary of the Department of Education NSW [2019] NSWCATAD 45 [70]; GFQ v Secretary, Department of Education [2024] NSWCATAD 237 [40]; Kumar v Secretary Department of Education [2021] NSWCATAP 411 [21].

The objects and purpose of the National Law are comparable to those in the Child Protection (Working with Children) Act, which is to “ensure”, s 4 and “secure” in s 3 National Law “the safety, welfare and well-being of children”.

Section 15 of the Child Protection (Working With Children) Act 2012 asks “whether the applicant poses a risk to the safety of children” as where s 182 of the National Law requires a consideration of whether “there may be an unacceptable risk of harm to a child or children”(by the applicant).

Both the Child Protection (Working With Children) Act 2012 and the National Law have as its guiding principle “that the rights and best interests of the child are paramount”.

As Young JA observed in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [17], all adults pose the possibility of risk to the safety of a child. The issue is assessing that risk: 

Risk in the context of the Act does not seem to me to be concerned with what may be mere possibilities, but rather an exposure to a situation which involves a recognisable potential for harm. The existence of that potential will require some foundation in fact.

His Honour at [22] and [24] supported the view expressed by Haylen J in R v Commissioner for Children and Young People [2002] NSWIR Comm 101 that the jurisdiction is protective and not punitive and that an assessment of real risk is required:

His Honour thus said that what 9(4) was focused on was “not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.

At [42] his Honour said that in constructing the words “pose a risk to the safety of children” should be read together:

…but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children".

In carrying out its fact finding function, the Tribunal should take into account the circumstances surrounding the particular incident and the course of conduct; CXZ v Children’s Guardian [2020] NSWCA 338 [57] Simpson AJA; BKE v Office of the Children’s Guardian [2015] NSWSC 523 [33] Beech-Jones J.

Basten JA in CXZ stated that the correct test in assessing whether a person poses a risk to the safety of children was set out by the High Court in M v M (1988) 166 CLR 69; [1988] HCA 68, applied by Beech-Jones J in BKE at [33] and followed in Tilley v Children’s Guardian [2017] NSWCA 174 at [34]-[35].

In M v M the High Court held that access to a child by a parent will be denied if there exists an “unacceptable risk” to the child being exposed to sexual abuse. At [25], the High Court set out the difficulties in defining the concept of risk to children (footnotes excluded):

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" "an element of risk" or "an appreciable risk", "a real possibility", a "real risk", and an "unacceptable risk. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

At [24], the High Court observed that a determination must be based on evidence going to risk of sexual abuse occurring “and assess the magnitude of that risk.”

Simson AJA in CXZ stated that:

[53] In the context of the Child Protection Act this assessment will depend upon a number of things: among them, the seriousness of the allegations, the strength of any evidentiary support for the allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant.

…

[58] It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

We consider these authorities as being apposite to considering whether there “may be an unacceptable risk of harm” to a child or children if the applicant  was “allowed to remain on the education and care service premises” within the meaning of s 182 of the National Law.

There is no definition of the phrase “unacceptable risk of harm” in the National Law. There are numerous uses of the word “unacceptable risk to the safety, health or wellbeing of any child” and “unacceptable risk of harm” throughout the legislation. We consider that the word “harm” incorporates risk to the safety and wellbeing of any child.

It is not clear what the word “unacceptable” adds to describing the risk of harm. There is a presumption that words chosen by legislature should be given meaning and effect; Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414 Griffith CJ; Beckwith v R [1976] HCA 55; 135 CLR 569 at 574 Gibbs J.

However as stated by Kiefel and Bell JJ in Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; 259 CLR 106:

Moreover, it has been recognised more than once that Parliament is sometimes guilty of "surplusage" or even "tautology”. The possibility that Parliament may not have appreciated that the reference in s 177(2)(b) was not necessary, and was liable to confuse, is not a reason for giving it a literal interpretation (footnotes not cited).

As the High Court noted in M v M at [25], the attempt to describe the degree of may be an attempt “that the subject is not capable of yielding”. We consider that the meaning of the word “unacceptable” to be “not acceptable, not satisfactory or allowable”: The Australian Oxford Dictionary, Second Edition.

We do not need to decide whether the phrase “considers that there may be an unacceptable risk” in s182 indicates a deliberate drafting choice to adopt a lower standard of persuasion as compared to ss 31(b), 49(1)(a) and 77(a) of the National Law as the language used there is “satisfied that the … would constitute an unacceptable risk” and “reasonably believes that the …would constitute an unacceptable risk” as submitted by the respondent.

These submissions by the respondent were at very high level and there was no identification of what ss 31(b), 49(1)(a) and s77(a) of the National Law address. The respondent did not refer to any extraneous material that supported its submission or any authorities.

In consideration of the context and purpose of the National Law the assessment of risk must be considered in light of the fact that children attending education and care service premises are young children who have not reached the age of school children. Young children in education and care service premises are more vulnerable to harm from adults than children in primary and secondary schools because of their young age and ability to defend themselves against harm.

This is also obvious when one understands that a person may well have a WWCC but be excluded from attending at an education and care service premises.

The Tribunal has approached its task, taking into account the object and principles of the National Law, to consider that the correct and preferable decision would be to refuse the application for review if a finding is reached that the applicant may be an unacceptable risk of harm to a child or children if he or she was allowed to remain on the education and care service premises.

The Tribunal concluded (paras.178-85):

The assessment of risk is a forward looking one. The “possess child abuse material” charges in 2012 are material and have been taken into account. The charges are significant in assessing whether there may be an unacceptable risk of harm to a child or children if the applicant was permitted to provide or participate in education and care services to children. However, we find that the submission made by the respondent that the applicant may sexually abuse or exploit children to be without foundation. 

The reason why the applicant came to the respondent’s attention was because a parent sent an email to the child care centre that stated that the applicant had, “previously been raided for child pornography and was dismissed… he was on the do not employ list with the department of education… I wouldn’t leave him alone with any of the kids and watch him carefully.”

The email from the parent referred to above is not accurate in numerous regards. It gives the impression that the applicant did not disclose to his employer that he downloaded the child abuse material and that he has been placed on the NTBE List because he was “raided for child pornography”. As we have set out in detail above, that is not the evidence before the Tribunal.

We are acutely aware that our role is to uphold the objects of the National Law which is to, “ensure the safety, health and wellbeing of children attending education and care services”. It is critical that parents and carers have confidence in the services provided to their children and that they are satisfied that the services provided are safe and caring.

This Tribunal must determine whether there, “may be an unacceptable risk of harm” to a child or children if the applicant  was “allowed to remain on the education and care service premises”.

In determining this question, the Tribunal has assessed the risk based on the evidence and the material before the Tribunal. The assessment of risk depended on a number of factors; CXZ [53] including the circumstances surrounding the particular incident and whether the incident was a single incident or was in “the course of conduct”; BKE [33].

We do not consider that the applicant may be an unacceptable risk of harm to a child or children if he was allowed to remain on the education and care service premises. As such, the correct and preferable decision is for the Prohibition Notice to be cancelled.

To prohibit the applicant from working in education and care service premises would in our view be punitive as it would be based not on an assessment of real and appreciable current and future risk to children but because as an eighteen year old, over twenty years ago he downloaded child abuse material and or because he has or has had in the past a mental health illness.