A Queensland tribunal has reluctantly banned a valued and respected woman working with disabled and disadvantaged people based on previous convictions for welfare fraud.
In doing so, it said that though the ruling may be legally sound, it was in no way a “just decision”.
Queensland Civil and Administrative Tribunal member Peta Stilgoe made the observation while backing the Queensland Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships July 2020 decision to prevent Tammy Davidson from being issued with a ‘yellow card’.
Ms Stilgoe, in a decision published last week, said Ms Davidson had been a dedicated and popular support worker for vulnerable adults for six years – between 2015-21 – and “loved her work and was valued and respected by her clients and peers”.
However, Ms Davidson hit a life and career-changing roadblock in 2019 when she was compelled to apply for National Disability Insurance Scheme (NDIS) Worker Screening Clearance – which if successful results in the issue of a ‘yellow card’ – and was denied by way of a ‘negative notice’.
“Ms Davidson was excluded from the industry she loved … (and has) applied to the tribunal for a review of the department’s decision,” Ms Stilgoe said.
The tribunal was told Ms Davidson was issued with the negative notice from the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships because she had two previous convictions for welfare fraud.
“On 11 August 2009, Ms Davidson was convicted of obtaining financial advantage relating to three counts of Centrelink fraud,” Ms Stilgoe said. “No conviction was recorded but she was placed on recognisance, to be of good behaviour and ordered to repay the full amount.
“On 5 November 2018, Ms Davidson was convicted of obtaining financial advantage by deception, an amount of approximately $62,000. The offending conduct occurred over a six-year period from 2010 to 2017.
“Ms Davidson was sentenced to two years’ imprisonment, to be released after serving three months. She was ordered to pay reparations and to serve a good behaviour bond of three years.
“If Ms Davidson is to have a yellow card, I must find that there are exceptional circumstances such that she does not pose an unacceptable risk of harm to people with disability.”
After hearing evidence in support of Ms Davidson’s appeal against the negative notice in Brisbane on 5 September, a decision to determine the outcome was not delivered until a month ago (12 October).
Mr Stillgoe, in her eight page decision published last Thursday, said that after weighing up all of the risks against the protective factors, she was not convinced Ms Davidson represented an unacceptable risk of harm to people with disability.
“There is no evidence that she has ever subjected her clients to any risk of harm,” she said. “There is no evidence that she has exploited her clients financially.
“There is no evidence that her anxiety and depression is not under control, despite a lack of formal supervision.
“There is no evidence that her gambling is not under control, despite a lack of formal supervision.
“Indeed, the evidence paints the opposite picture. But is that enough to make Ms Davidson’s circumstances exceptional?”
Ms Stilgoe said it was clear to the tribunal there were three factors in support of Ms Davidson’s claim her circumstances were exceptional.
“The first is that she has worked in the disability sector for around five years without any suggestion that she has abused her clients financially,” she said.
“The second is that Ms Davidson’s risk of offending is not a straight line from opportunity to action.
“The evidence shows that Ms Davidson offended because she gambled, and she gambled because she was anxious and depressed.
“The evidence shows that Ms Davidson’s anxiety and depression is under control, as is her gambling.
“The third reason is that Ms Davidson’s previous offending was passive, in that she failed to report a change in her circumstances. There is no evidence that Ms Davidson ever wrongfully took money through a positive action, even though she had that opportunity.
“Unfortunately, I have concluded that these three reasons are not enough.
“The test of exceptional circumstances is a deliberately high bar.
“It was made even higher in 2020 by the amendment to the regulations which made Centrelink fraud a disqualifying offence.
“I understand that the department is, and should be, risk averse. It is vital that people are protected from predatory behaviour by workers within the industry.
“Ms Davidson does not, and may never, have enough time or money to undertake the counselling expected of her.
“She is effectively lost to an industry crying out for dedicated workers and she is condemned to working long hours for less pay.
“Clients have lost the opportunity of having her support. Although my decision is the correct decision at law it is not a just decision.”
Ms Stilgoe said that under existing laws the offences committed by Ms Davidson would “never go away” and forever impede her ability to work in support of society’s most disadvantaged and vulnerable people.
“No doubt for public policy reasons, defrauding Centrelink – an offence which has no direct connection to behaviour which would represent an unacceptable risk of harm to people with disability – is a serious offence,” she said.
“I cannot use the very nature of the offence – a passive offending – as an exceptional circumstance in light of this very clear message from the legislation.
“I understand that the department is, and should be, risk averse. It is vital that people are protected from predatory behaviour by workers within the industry.
“(Therefore) the decision made on 27 July 2020 to issue a negative notice to Tammy Davidson is confirmed.”
Read the decision.
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