The government’s duty of care: Lessons from Trevorrow v SA, RoboGovernment, and risks in NDIS reforms
Image description: a statue of Lady Justice cast in bronze.
The 2007 case Trevorrow v State of South Australia set a crucial precedent for government duty of care toward vulnerable individuals. Bruce Trevorrow, an Aboriginal child, was unlawfully removed from his family and placed into state care in the 1950s, resulting in lifelong trauma. The Supreme Court of South Australia found that the State had breached its duty of care, determining that the government had a responsibility to act in Trevorrow’s best interests, to prevent foreseeable harm, and to safeguard his well-being.
This ruling underscored that the State’s duty of care involved actively protecting vulnerable individuals from harm caused by government policies—harm they should have seen coming and stood in the path of to prevent. Little Bruce Trevorrow was owed this and not given it. From Trevorrow v SA emerged the Apology to the Stolen Generations and the compensation schemes that have cynically served to neuter further civil claims. Despite this, Trevorrow remains a distinct common law warning to all governments since the judgement was made.
In Trevorrow, Justice Gray emphasised that when a government exerts control over a vulnerable person’s welfare, it must anticipate and mitigate risks of harm stemming from its actions. The government was held liable for not only the direct harm to Trevorrow but also the broader trauma and loss of cultural identity he endured as a result of systemic policy decisions.
This legal principle is highly relevant today, as the current NDIS changes potentially place disabled families at serious risk of catastrophic and preventable disintegration by withdrawing essential supports through eligibility reassessment before State governments have equivalent supports ready. Much like the outcomes for young Bruce Trevorrow, this foreseeable impact includes increased intervention by child protection agencies at the State level.
Future Federal matters along similar lines are likely inevitable, given that the NDIA seems determined to proceed in reassessing participants before Foundational Supports are designed and operational, despite clear and persistent warnings of the risks of doing so by Australia’s representative Disabled People’s Organisations (DPROs). While not binding, due to the strength of the ratio in Trevorrow and the fundamental similarities between that judgement and these issues, higher courts may still view the decision as a persuasive precedent.
Core to the reasoning in Trevorrow and the issues we now face regarding support for Disabled parents and children, is this:
Each government’s knowledge of potential harm establishes a duty to act to prevent that harm.
They must not turn away.
No Fate But What The NDIA Makes?: Systematised decision-making and pipeline to state intervention
The Structured Decision Making (SDM) model, used by child protection agencies, is a systematised approach developed to assess the "risk of significant harm" to children based on specific criteria, including the availability of external supports for families. The SDM model was implemented following recommendations from the Wood Special Commission of Inquiry into Child Protection Services that resulted in the 2008 Wood report, followed by the NSW government response to the report, titled 'Keep them safe: A shared approach to child wellbeing'.
This inquiry, led by Justice James Wood, responded to concerns about inconsistent and fragmented decision-making within child protection services. The Wood Report advocated for a more structured, evidence-based system to improve consistency, objectivity, and transparency in assessing risk and determining intervention. SDM has faced strong scrutiny in the intervening years for the way it depersonalises child protection work to the point of dehumanisation of families and the mass production of bias in decision outcomes. It can be assumed this was never the goal.
Challenges to SDM are well underway and have been for years, with even Kate Alexander - Senior Practitioner, Office of the Senior Practitioner (OSP), DCJ - undertaking a PhD which suggests that SDM is flawed as the sole lens for how families are assessed with respect to risk by the state. She has been exploring the possibilities of adapting the model to be more person-centred and to allow for reflective, humanistic and responsive practice to flow back into child protection work, while warding off the worst failings of previous decades.
For disabled parents and their children, NDIS supports often serve as essential scaffolding within this system of monitoring and assessment of risk, helping maintain family stability and reducing the need for intervention. If NDIS supports are removed through reassessment without replacement structures, the SDM model may categorise these families as high-risk due to a lack of resources. This heightened risk assessment increases their likelihood of involvement with child protection services, creating a pathway for state intervention.
Contemplate for a moment the intensity and profound nature of that injustice. Born or made Disabled, parenting in a system where your only defence against the removal of your children is ensuring you are surrounded by support, you work to access the NDIS - only for an Act of Parliament to remove that layer of protection, with nowhere else for you to turn.
Can you imagine that parent's despair? Please take a moment to.
This systematised approach has created what advocacy groups like the Australian Neurodivergent Parents Association (ANPA) are describing as a ‘predictable pipeline’ of our community’s children into out-of-home Care. Our community, above all others, is squarely in the NDIA’s sights for removal from the Scheme, something that Minister Shorten has made little secret of over the last 12 months of egregious and disrespectful media commentary.
Here, families losing NDIS support face increased vulnerability, not because of personal failings but due to policy changes that disregard the interconnected nature of systems that support, monitor and control our families. Without transitional supports, disabled children and children of disabled parents face a foreseeably high risk of separation, with intergenerational trauma and harm to children the fallout.
This is a harm to Disabled parents and Disabled children that the government’s duty of care obliges it to prevent.
The culture of RoboGovernment: automation and duty of care
Marie Johnson, former Head of the NDIA Technology Authority, has spoken extensively on the “RoboGovernment” culture that produced both RoboNDIS and Robodebt, describing them as “twin spawn” of a whole-of-government automation strategy. While automation raises ethical concerns, the core issue extends beyond and transcends technology.
In her September 2024 article, The dangerous culture that created Robodebt and RoboNDIS, Johnson highlights a broader culture within government that normalises harmful practices, automated or not, when administrative efficiency is prioritised over vulnerable individuals’ welfare.
Drawing on Diane Vaughan’s work on the Challenger disaster, Johnson points to the “normalisation of deviance,” where harmful practices gradually become acceptable within institutions, even when warning signs are present.
This systemic culture poses a critical threat, especially in cases like RoboNDIS. Whether decisions are automated or manual, the NDIA and public service bear a duty to respond to potential harm. Johnson’s critique reminds us that government agencies must not allow expediency or automation to override ethical responsibility, particularly when such choices risk exposing vulnerable families to significant harm.
For our community’s children, the prevailing principle under International and Domestic Law should always be that their best interests are paramount. And as the kids would say:
This ain’t it.
The Chips Will Fall: International law and the ethical duty of care
International human rights frameworks reinforce the government’s duty of care, including the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and the UN Convention on the Rights of the Child (UNCRC).
These conventions require states to prevent unnecessary family separations and prioritise children’s best interests, particularly where disability is a factor. Article 23 of the UNCRPD specifically obliges governments to support disabled individuals in their parenting roles; this can reasonably be presumed to extend to ensuring that the security and integrity of Disabled people’s families is not destabilised by policies or legislative changes that withdraw essential support.
Here is Article 23 of the UNCRPD, core business for The ANPA, in full:
1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:
a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;
b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;
c) Persons with disabilities, including children, retain their fertility on an equal basis with others.
2. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.
3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.
4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.
5. States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting.
THE People Are Speaking, So Listen: DISABILITY Advocacy and potential for future class actions
The ANPA has consistently advocated for urgent reforms to prevent foreseeable harm to children, first and foremost, over the entire first year of our operation. We will continue to do so. We are parents; our children are our first, second and last consideration in everything we do.
Regarding these clear and imminent risks to families from our communities, this has included advocating directly to Minister Shorten for amendments to the NDIS Rules that account for the carer status of participants and the socioeconomic context of families during reassessment. These proposed changes from the ANPA to the Rules aim to close gaps that could expose families to increased child protection intervention due to a lack of support.
The ANPA’s advocacy has extended to civil protests, sit-ins at NDIA offices, and careful documentation of families being moved off the scheme with no support to catch them. Our actions in this reflect our awareness that, without adequate safeguards, NDIS reforms will lead to future class actions if families suffer harm due to these decisions. We will play our part in ensuring justice is available to remedy that harm, but we would much prefer it was avoided instead.
What reasonable person is content to sit by and watch this play out for children to secure votes for an election and some budget savings? Nobody I want in government, honestly. I find myself constantly wondering if these people do sleep well at night, at all, and to what extent they have sold their conscience for politics. For those I am talking about - if they are reading this, and those that are parents - I would like them to imagine their own child being ripped from their arms and placed into Out of Home Care, and I would like them to imagine there being no recourse to ward that outcome off; no way to prevent it.
If support gaps result in predictable harm, courts may look to the Trevorrow case as a persuasive, even if not binding, precedent in assessing the NDIA’s liability from now on. Future courts may find that the NDIA knowingly exposed families to preventable harm by disregarding documented warnings and advocacy concerns, thus establishing grounds for future litigation.
If we cannot prevent it, the ANPA will do all we can to assist families in that journey. No matter what happens, we will not leave our peers alone with this terror or this harm. This much remains within our power to do.
What now?: Upholding duty to prevent harm in interlocking systems
Marie Johnson, Head of NDIA Technology Authority shared the following searing quote, and with this I will conclude my comments.
“The statement from the Public Service Commissioner when releasing the report, establishes a positive obligation on all public servants:
‘Public servants have a duty to consider whether a decision is ethically sound. The question cannot be confined to whether a decision is legally and technically possible but also whether it is, in fact, the right thing to do, no matter how hard that may be.
It is not open to a public servant to manufacture contrivances, to selectively choose evidence to justify a line of action, or to simply turn away.’”
NDIA CEO Rebecca Falkingham, Children’s Taskforce General Manager Samantha Taylor, and Minister Shorten are now responsible for what will happen to us as a community. The Minister can change the NDIS Rules to protect us from the catastrophic consequences of support gaps for our families, and Falkingham and Taylor can pause reassessments until this is in place. There is no excuse for not taking these sensible, practical steps.
The time for debating whether this transition should happen at all is past. It is here, whether we like it or not. Yet regardless of this disagreement, the question of how it happens, how fast, and how harm is being safeguarded must remain central to every discussion the Agency, the Minister, and the States have about these issues.
Human lives and fundamental human rights must never drift from view.
By responding proactively, Falkingham and Taylor can demonstrate the NDIA’s commitment to ethical principles under the APS Code of Conduct, their international obligations under the UNCRPD, and the duty of care the Agency owes to vulnerable families. Swift action would signal that the NDIA values the rights and well-being of our families above administrative efficiency, setting a vital precedent that the Agency prioritises safety and support in its policy decisions.
Now is the time to show Disabled people that you do remember your duty to us. Do you?
Decisive leadership in response to these concerns is the correct path and the most legally defensible course. Safeguarding children is a basic moral imperative no public servant - or human being - should ever forget.
But what would I know? I’m just a mum. :)
