In the case of GFQ v Secretary, Department of Education an educator applied to the NSW Civil and Administrative Tribunal for review of the decision of the NSW Department of Education (Regulatory Authority under the National Law) to issue her with a prohibition notice under section 182, National Law. Around August or September 2017, the applicant worked briefly at a childcare centre in the room for older children aged between four and five years old, which was known as the ‘preschool room’. During this period, she worked with a former employee, AG, who is currently the subject of sexual abuse related criminal charges. He was the room leader of the preschool room at that time. In the time that the applicant worked with AG, various incidents allegedly arose which were the subject of subsequent investigation by the respondent. The respondent contended that after observing various incidents that allegedly occurred in 2017, the applicant was required to make mandatory notifications to the management of the childcare centre or to the Child Protection Helpline at that time. Consequently, the Department issued a prohibition notice on the applicant (educator) providing the following reasons (para.19):
The applicant had attended staff training conducted by the approved provider in 2015 and 2016 on the procedures implemented in the preschool room to ensure oversight of staff alone inside the room.
The applicant had attended a staff meeting conducted by the approved provider in 2016 on her obligations as a mandatory reporter and she was provided with education and training on how to make a report to the Child Protection Helpline.
Investigators from the Department contacted the applicant and emailed a questionnaire to her to provide information to assist in the investigation. The applicant did not respond to the questionnaire.
Information provided to Department indicated that the applicant may have witnessed certain instances of offending by AG and the applicant was issued with a notice to appear and to give evidence on 13 October 2023.
The applicant did not comply with the notice or provide a reasonable excuse or response which was in contravention of section 218, National Law.
The applicant gave certain information to investigators over the telephone on 1 November 2023 and this information was shared with NSW Police who subsequently contacted the applicant to assist with its investigations.
The applicant provided information to the NSW Police about what she had witnessed but declined to provide a signed witness statement about these matters.
The Department issued a show cause notice to the applicant on 29 November 2023 giving the applicant notice of its intention to prohibit her from engaging in the provision of early childhood education and care. The show cause notice outlined a number of the matters referred to above.
The applicant provided a written response to the show cause notice on 30 November 2023, in which she admitted to failing to report her concerns and cited several reasons, including her personal beliefs and caring responsibilities for her husband in New Zealand, as reasons for the failure to report and to assist the NSW Police.
This written response demonstrated that the applicant places her own interests before the safety health and wellbeing of children in the education and care of the service, which raises concerns that her failure to make a mandatory report may arise in the future, thereby aggravating the unacceptable risk that the applicant may pose to children in education and care.
There is concern about the honesty and integrity of the applicant because she asserted she had assisted investigators and NSW Police whereas the information held provides evidence that those claims are false and misleading.
After considering all the evidence, the Tribunal upheld the decision of the Department, stating (paras.127-135):
Having regard to these matters, the question is whether there may be an unacceptable risk of harm to a child or children if the applicant is allowed to remain on education and care service premises or to provide education care to children. The investigation report recommending that a prohibition notice be issued speaks of whether the applicant is ‘fit and proper’ and whether she is honest and has integrity. These tests apply to provider approval but not in relation to an educator, who does not need to be approved. The threshold criterion for the issue of a prohibition notice is whether “there may be an unacceptable risk of harm to a child or children”, although we note that s 182(3) also provides for the Regulatory Authority to prohibit a person from being nominated as a “nominated supervisor” if it is considered the person is not a fit and proper person to be nominated as a nominated supervisor of a service.
The prohibition notice is wide in its terms. It prohibits the applicant from being engaged as a supervisor, educator, family day care educator, employee, contractor or staff member of, or being a volunteer at, an education and care service and in carrying out any other activity relating to education and care services. Whether the prohibition on the applicant being a supervisor also engages s 182(3) of the National Law, was not the subject of submissions. Despite this, we accept that issues about the honesty and integrity of a person, who is involved in the provision of an approved education and care service, may be relevant to the question of whether 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 an education and care service. Concerns about the honesty and integrity of a person being prepared to disclose mistakes, errors and reportable conduct, may reasonably raise concerns about such a person providing education and care services to children where the safety, health and wellbeing of children and the best interests of children are paramount. This is particularly relevant where the interest of the children may conflict with the persons’ own interests and this issue is either not recognised or deliberately overlooked. This has the potential to undermine the mandatory reporting protections in the system and thereby heightened the risk of harm.
We do not accept that the failure of the childcare centre to observe the protocols in relation to the preschool room was the applicant’s responsibility alone. There was a protocol that the preschool doors should be kept open when the children were napping, and there was criticism that the applicant should have checked on AG frequently in accordance with those protocols. We accept the applicant’s explanation that AG was a more senior and respected staff member. There were other staff at the childcare centre who did not raise the issue about the preschool door being closed during sleep time, which must have been obvious. It was the key responsibility of managers to enforce these protocols. The applicant could have been stronger in this regard, but it is unreasonable to lay the burden and sole responsibility for the failure to observe the centre protocols on the applicant.
Based on the objective material available, it is apparent that the applicant must have attended meetings where mandatory reporting was discussed and we do not accept the applicant’s denial that she did not understand mandatory reporting obligations in 2017. At that stage the applicant had been working at the childcare centre and in childcare for a number of years and even though she was primarily working in the babies’ room, mandatory reporting would apply regardless of whether a childcare worker was working with preschool children or children of a younger age. We also note that in 2014 the applicant’s childcare qualifications were assessed by the Australian Children's Education and Care Quality Authority as being equivalent to a Certificate III in early childhood. It is therefore implausible that the applicant had no knowledge of her mandatory reporting obligations until 2017.
Having regard to all of the evidence, we find that the applicant observed conduct of AG which she considered to be inappropriate on at least one occasion while she was working with him in the preschool room in 2017. We accept that the applicant did not observe obvious sexual abuse, but she observed conduct which should and, on her own evidence, did put her on notice of concerns sufficient to engage mandatory reporting obligations. We accept the applicant’s evidence that she did not feel confident about reporting these matters to superiors because AG was a long-term employee at the childcare centre, was more senior and appeared to have more support. However, this does not explain is why the applicant did not report to the Helpline, as mandated. According to the applicant's evidence, a significant reason why she did not report these matters at that time was because she was concerned about losing her job and the environment was not supportive or conducive to reporting. While these concerns explain the applicant’s failure to report and to remain silent for so many years, they do not excuse it.
We accept that the failure of the applicant to report her suspicions was significant. However, the submission made by Mr Herron in his investigation report that this failure should not be underrated, suggesting that much of what followed was a result of the applicant’s failure to report, is indeed a heavy handed and somewhat harsh conclusion. There were clearly many failures at this childcare centre and the actions of one educator, who was relatively inexperienced at the time, cannot explain why there was such a fundamental and catastrophic failure by the centre, the managers and the supervisors to identify this risk of harm to the children in the centre.
The difficulty in the matter is that the applicant has not accepted responsibility for her previous errors and now gives evidence that is considerably different from the evidence that she initially gave to the investigator, NSW Police and in response to the show cause notice. This impacts negatively on the applicant's character and, at the very least, her honesty. She states, in her own words, that she was concerned about making disclosures because she did not want to lose her job and she felt she would not be believed. This raises concerns about the applicant’s understanding of the importance of the safety, health and wellbeing of children in her care and their best interests being a paramount consideration.
While there is no evidence that the applicant, by her actions, directly caused harm to the children at the childcare centre, this is not the test. The issue is whether, having regard to the material before us, we are satisfied that the applicant may be an unacceptable risk of harm to a child or children if she were allowed to remain on the education and care service premises or to provide education and care services.
The system imposes mandatory reporting obligations on persons working with who may observe reportable conduct. This includes those who provide education and care services to vulnerable members of the community, namely children. One of the objectives of the National Law is to ensure the safety, health and wellbeing of children attending education and care services. The rights and best interests of the child are paramount. The national framework relies on participants, including educators, supervisors, family day care educators, employees, contractors or staff members or volunteers, observing these objectives and principles. If there is evidence that a person seeking to work within the education and care system has not had sufficient regard to these objectives and principles and does not understand the importance of mandatory reporting or places their own interests above the interests of the children when that person is providing education and care services, there may be a risk that the checks and balances imposed through the mandatory reporting system will be undermined. This is because there is an increased risk that incidents will not be identified and reported, and this may give rise to an unacceptable risk of harm to a child or children when that person is providing education and care services. In this case, we find that that the applicant may be an unacceptable risk not only because of her past conduct but primarily from her current conduct and attitude towards her obligations to children and to the Regulatory Authority and law enforcement authorities.
The Tribunal also declined to vary the scope of the notice, stating (paras.141-2):
We have also considered the scope of the prohibition notice. The question is whether the prohibition nominated under the notice is disproportionate to the risk (Nilufar v Secretary, Department of Education [2020] NSWCATAD 37 at [65]). While we accept that the prohibition notice is broad in its terms, because the conduct of the applicant as an “educator” has been found to have fallen short, we are not satisfied that excluding education and care services to children in other capacities, such as a supervisor, employee, staff member or volunteer, is appropriate or would mitigate the risk.
Accordingly, we are not satisfied that the notice should be varied, either through limiting its terms or by imposing conditions. We also note that the applicant may apply to the respondent to have the prohibition notice cancelled if circumstances warrant cancellation and if she is able to satisfy DoE about the various matters that resulted in the issue of this prohibition notice.
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