This is another case heard by the NSW Civil and Administrative Tribunal where an educator has sought a review of the decision by the Regulatory Authority under the National Law in NSW (Department of Education) to impose a prohibition notice under section 182.
In this case, a family day care educator was issued with a notice which in effect prohibited her from involvement in education and care services (see para. 2 of decision). The basis of the prohibition notice was that there was an unacceptable risk to children as a a search warrant (in relation to the activities of two of her sons) was executed by police at the premises which found a white toxic substance in the garage.
In reviewing the imposition of the prohibition notice, the The Tribunal was required to assess whether it was satisfied that there may be an unacceptable risk of harm posed by the educator to children if the educator were allowed to remain on the premises or provide education and care services to children (para.52). The Tribunal looked at the objectives of the National Law in determining the scope of "unacceptable risk" and concluded:
In this case, a family day care educator was issued with a notice which in effect prohibited her from involvement in education and care services (see para. 2 of decision). The basis of the prohibition notice was that there was an unacceptable risk to children as a a search warrant (in relation to the activities of two of her sons) was executed by police at the premises which found a white toxic substance in the garage.
In reviewing the imposition of the prohibition notice, the The Tribunal was required to assess whether it was satisfied that there may be an unacceptable risk of harm posed by the educator to children if the educator were allowed to remain on the premises or provide education and care services to children (para.52). The Tribunal looked at the objectives of the National Law in determining the scope of "unacceptable risk" and concluded:
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. (para.58)The Tribunal then made the following assessment:
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).The Tribunal therefore found that the scope of the prohibition notice was too broad:
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.
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.
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.
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.
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. (paras.59-64).
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.(para.65).
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