Applicant 032018 v Commissioner for Fair Trading

[2018] ACAT 77

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

APPLICANT 032018 v COMMISSIONER FOR FAIR TRADING

(Occupational Discipline) [2018] ACAT 77

OR 3/2018

Catchwords:             OCCUPATIONAL DISCIPLINE – Working with Vulnerable People (Background Checking) Act 2011 – unacceptable risk of harm to a vulnerable person – negative notice refusing registration – examination and application of risk assessment guidelines – evaluation of risks arising from offences – consideration of possible conditions on registration –affirmation of refusal to register

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 s 35

Working with Vulnerable People (Background Checking) Act 2011 ss 26, 27, 28, 29, 34, 40, Part 7 & Schedule 2

Subordinate

Legislation:Working with Vulnerable People (Background Checking) Regulation 2012

Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012

Cases cited:S v Commissioner for Fair Trading [2014] ACAT 59

Department of Human Services v DR [2013] VSC 579

Williams v Secretary to the Department of Justice and Regulation [2017] VCAT 44

Tribunal:                  Senior Member M Brennan
  Senior Member Professor D Byrne

Date of Orders:  30 July 2018

Date of Reasons for Decision:         30 July 2018

AUSTRALIAN CAPITAL TERRITORY        )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 3/2018

BETWEEN:

APPLICANT 032018

Applicant

AND:

COMMISSIONER FOR FAIR TRADING

Respondent

TRIBUNAL:Senior Member M Brennan

Senior Member Professor D Byrne

DATE:30 July 2018

ORDER

Having regard to the quantity and details of personal information in this matter the Tribunal is satisfied that the right to a public hearing is outweighed by the interest of the private lives of the parties which require privacy.

Accordingly, pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008, the Tribunal orders that:

1.The hearing is to be held in private and there is to be no access by the public to the file for these proceedings, or by the public to transcript or audio recordings of the hearings, save by order of the Tribunal.

2.The applicant shall be referred to as Applicant 032018.

The Tribunal orders that:

3.The decision of the respondent to issue a negative notice under section 40 of the Working With Vulnerable People (Background Checking) Act 2011 is confirmed.

………………………………..

Senior Member M Brennan

For and on behalf of the Tribunal

REASONS FOR DECISION

1.In this case the Tribunal is reviewing a decision refusing the applicant’s registration to work with vulnerable people. The applicant has been tutoring and lecturing at tertiary level for several years. He needs this registration to continue this casual employment.

2.On 6 March 2018 the applicant filed an application for review of the respondent’s decision of 16 February 2018 to issue a negative notice pursuant to section 40 of the Working with Vulnerable People (Background Checking) Act 2011 (the WWVP Act). The respondent decided that the applicant was not suitable to be registered under the WWVP Act on the grounds that he presented an unacceptable risk of harm to vulnerable people.

3.The respondent advised the applicant its reasons for this were:

(a)his national police history check revealed multiple convictions for sexual offences against children;

(b)in accordance with the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1),  (the Risk Assessment Guidelines), sexual offences against children are of critical severity, regardless of how long ago they occurred;

(c)the offences he was convicted of occurred whilst he was engaging in a regulated activity, and were committed against vulnerable people;

(d)the risk assessment determined that he posed a high/critical level of risk of causing physical, emotional, psychological and sexual harm to vulnerable people whilst engaging in a regulated activity;

(e)a high/critical level of risk is unacceptable;

(f)he had been unable to demonstrate with the supporting documentation that he provided that he did not pose an unacceptable level of risk; and

(g)there has been no suitable condition identified that could sufficiently mitigate the type and level of risk determined in the risk assessment.

4.The ACAT is empowered to review the respondent’s decision by Part 7 and Schedule 2 of the WWVP Act and the review is conducted in accordance with the provisions of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).

Background

5.On 15 February 2017 the applicant completed a working with vulnerable people application. He sought registration as an employee and ticked two of the three boxes under the heading ‘Registration Type’, these being ‘General registration to work with both children and disadvantaged adults;’ and ‘Conditional registration to work with disadvantaged adults only.’

6.The applicant detailed that he was casually employed at the Australian National University as a tutor. In answer to the question of what regulated activity he engaged in, the applicant ticked the boxes ‘Coaching and Tuition’ and ‘Vocational and Educational Training.’  The applicant also declared that he had been convicted of an offence, including juvenile offences. He added to his application:

I am in the process of applying to the WA Police and/or WA Australian District Court to have a 37 year old conviction spent. I was a school teacher (1980) and pleaded guilty to charges against minors. (16/03/81) I was incarcerated for nine months. I have spent the last 16 years tutoring/lecturing at Canberra Universities and have recently been informed that I require a working with vulnerable people certificate to continue my employment…

7.The Tribunal Documents[1] include details of a CRIMTRAC National Person History Check for the applicant. His convictions dating back to 1965 to 1992 include indecent behaviour; two fights in a public place; three assaults; and eight counts of indecent dealing with a female under 14 years. The record also details that the applicant was acquitted on all charges in 1994 of incest with a child under 10 and 16 years and two charges of an act of indecency on a female under 16 years. 

[1] Tribunal Documents filed by the respondent on 28 March 2018

8.On receiving the application, the respondent decided to refer it for independent advice in accordance with section 34 of the WWVP Act to three independent advisors. Their role was to review the application and provide the respondent with their opinion on whether they considered that the applicant posed an unacceptable risk of harm to a vulnerable person in a regulated activity; and if so, whether they believed the risks could be treated by imposing conditions upon the registration and if so, to provide examples of suitable conditions. The respondent also asked the independent advisors whether the applicant should be served a negative notice to remove him from regulated activities for the negative notice period (three years) after which time the applicant’s circumstances may have changed.

9.The respondent received advice from the three independent advisors who individually detailed their reasons for recommending that the applicant should be issued with a negative notice.

10.On 28 November 2017 the respondent provided a Proposed Negative Notice to the applicant. The respondent advised that the applicant was considered unsuitable to hold a WWVP registration and that he could seek a reconsideration of the proposed negative notice.

11.On 30 November 2017 the applicant sought a reconsideration of this decision. In support of this request, the applicant advised the Commissioner that: he would participate in a psychiatric assessment if required; he had not re-offended “in any way” since 1980; at the time of the offences he was undergoing a psychiatric break down; he became a Christian six years ago; he has five children and has regular contact with children including his neighbours’ children and step-grandchildren; he could provide documents from his previous and current partners to substantiate that he poses no threat to the community; over 37 years he has undertaken advance tertiary studies that have resulted in him becoming a valuable academic and educator to adults and late teenagers; and that he had experience as a hair salon business owner, training many young people and providing services to the general public, including children.

12.The applicant advised the respondent that he still sought an “unrestricted registration, but would be most happy instead to receive a restricted registration if this would enable me to continue in my academic employ.”

13.On 16 February 2018 the respondent issued the applicant with a negative notice.

The hearing

14.The Application was heard on 3 July 2018. The applicant was self-represented. Dr Jarvis appeared for the respondent instructed by the ACT Government Solicitor.

15.The applicant tendered a number of testimonials including from his current and former partner, his late parents, students he had tutored and a pastor from the Baptist Church.  A number of these testimonials only refer to the author’s experience of the applicant’s teaching. They did not demonstrate that the writer had any knowledge of the applicant’s prior convictions involving children.

16.The respondent tendered two reports dated 18 and 25 June 2018 from Professor Stephen Woods, a psychologist with an endorsement in forensic psychology. Professor Woods saw the applicant for the purposes of a clinical forensic assessment on 12 June 2018 and had a follow up tele-consultation with the applicant on 14 June 2018.

17.The applicant read a prepared statement at the hearing.  He was cross-examined by the respondent’s counsel. Professor Woods also gave evidence by telephone at the hearing and was asked a series of questions by the applicant.

Issue for determination

18.The principal issue for determination by the Tribunal is whether it should affirm the respondent’s decision to issue a negative notice under section 40 of the WWVP Act to the applicant because the Tribunal is satisfied that the applicant poses an unacceptable risk of harm to a vulnerable person. It is also open to the Tribunal to vary the decision or set it aside and substitute another decision.

Governing legislation

19.In the ACT the legislative scheme for the protection of vulnerable people includes the Working with Vulnerable People (Background Checking) Act 2011, the Working with Vulnerable People (Background Checking) Regulation 2012 (the WWVP Regulation) and the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1) (the RA Guidelines).

20.Pages 4-5 of the Revised Explanatory Statement to the Bill advises that the WWVP Scheme provides:

The protection of the rights of children and vulnerable adults in the ACT is a legitimate objective and pressing social need. The ACT Government considers that the creation of a checking system for people who work with, or want to work with, vulnerable people, with appropriate safeguards, is a proportionate response under Section 28 of the Human Rights Act 2004 (ACT).

The basic premise of background checking is that the past behaviour of an individual provides an indication of the possible future behaviour of that individual. Examples or patterns of abusive or inappropriate behaviour can sometimes be evident in information available for assessment, which includes an individual’s criminal record or employment history.

There have been documented cases in which a person with a history of abusive behaviour has gained access to vulnerable people because their previous history was not known to their employer or other vetting agency…

21.Division 5.4 of the WWVP Act covers negative risk assessments and details the requirements of a proposed negative notice and the reconsideration of such a negative risk assessment. After the reconsideration process, section 40 of the WWVP Act requires that the respondent must refuse to register a person if a revised risk assessment is conducted and the Commissioner is satisfied that the person poses an unacceptable risk of harm to a vulnerable person.

22.In the decision of S v Commissioner for Fair Trading [2014] ACAT 59 the tribunal considered the phrase: “an unacceptable risk of harm” and referred to the case of Department of Human Servicesv DR[2] where the court reasoned that this term means “there is a sufficient likelihood of the occurrence of risk which, having regard to all relevant circumstances, makes it unacceptable”[3].  The court also noted that in addition to the likelihood of the risk’s occurrence the risk’s consequences should be considered. Importantly, the court additionally reasoned that given the legislation’s purpose, it was unnecessary to establish that the risk was more likely than not.

[2] [2013] VSC 579

[3] [2013] VSC 579 at [60]

23.Section 27 of the WWVP Act requires that the Commissioner must make guidelines about how risk assessments are to be conducted under the Act.

24.Section 28(2) of the WWVP Act details the risk assessment guidelines must provide for the following to be taken into account in conducting a risk assessment for a person in relation to a regulated activity:

(a)     the person’s criminal history;

Note The risk assessment guidelines must provide for certain matters to be taken into account in relation to relevant offences included in the person’s criminal history- see s29.

(b)     non-conviction information about the person;

Note The risk assessment guidelines must provide for certain matters to be taken into account in relation to relevant offences, or alleged relevant offences, included in the non-conviction information about the person- see s2 …

…

(e)     any other information the commissioner believes on reasonable grounds is or may be relevant in deciding whether, in engaging in the activity, the applicant poses a risk of harm to a vulnerable person.

25.Section 29 of the WWVP Act provides that the risk guidelines must provide for the following to be taken into account in relation to any relevant offence included in the person’s criminal history:

(a)the nature, gravity and circumstances of the offence;

(b)the relevance of the offence;

(c)how long ago the offence was committed;

(d)the age of the person and the victim at the time of the offence;

(e)whether the person’s circumstances have changed since the offence was committed;

(f)the person’s attitude to the offence;

(g)if the person has undergone a program of treatment or intervention for the offence – any assessment of the person following the program;

(h)if the offence was committed outside Australia—whether the offence is an offence in Australia;

(i)whether the person has committed any other relevant offence;

(j)any submission made by the person to the Commissioner in relation to the matters mentioned in paragraphs (a) to (i).

Application of governing legislation

26.In this case the Commissioner accessed details of the applicant’s convictions for several offences of sexual assault and indecent dealings with ten female students in 1980 while he was employed as a primary school teacher in Western Australia. The respondent also obtained information about the applicant being tried and found not guilty of incest and acts of indecency on a child in 1994 in the ACT. At the time of the alleged offences the applicant’s daughter was aged 5 and 10.

27.T-Document 22 is the risk assessment evaluation undertaken by the applicant. It lists the factors considered under the heading ‘is there a relevant offence as defined by section 26 of the WWVP Act?’ Section 26 provides that a relevant offence can mean any of eight offences detailed whether committed in the ACT or elsewhere. Section 26(a) is a sexual offence; and section 26(b) is an offence against the person.

28.The risk assessment evaluation sets out that the relevant offences are: “Act of indecency on female u16yrs x 2, incest u10yrs, incest, 10yrs and under 16yrs x2; common assault and aggravated assault on female & indecent dealing with a female under 14 yrs.”

29.It also details that there were between 6-9 offences; that the time of the most recent offence was more than 10 years ago; that the respondent was aged between 26-39 and 40 and above at the time of the offence(s) and that the victims were aged between 0-17. In looking at paragraph (e) of section 29, whether the person’s circumstances had changed since the offence was committed, the respondent noted that the applicant asserted his daughter had admitted that her claims against him were false. He added that she was convinced something must have happened but she did not know what. The respondent also recorded that the applicant stated his ex-wife’s new husband had lied in court claiming that the applicant had started the fight in his conviction for common assault. Finally, in relation to aggravated assault on a female and indecent dealing with a female under 14 years of age, the respondent noted the applicant’s advice that he is now a devout Christian who has forgiven himself but not forgiven what he did and will always regret hurting others.

30.Towards the end of T-document 23 a final risk assessment evaluation is conducted in accordance with the RA Guidelines. The RA Guidelines state that “the intent of the risk analysis process is not to determine whether a person is guilty or innocent. Risk analysis is the process to comprehend the nature of risk and to determine the level of risk.”

31.Table 1 of the RA Guidelines treats “sexual offence against a child” as requiring a “negative notice unless satisfied otherwise.” Factors the respondent then details as increasing the impact on the level of risk are: the abuse of power or breach of trust given the applicant was the ten girls’ teacher; committed against a vulnerable person; the fact he was convicted of a sexual offence with multiple convictions with a period of imprisonment; with children under 18 and with a significant age difference between the victims and the applicant.

32.The respondent states that:

whilst there has been no further convictions for the same type of offence committed by the applicant there was nothing noted within the risk assessment that has decreased the likelihood of reoffending by the applicant.  The applicant did not provide any evidence of treatment nor any relevant references which support a change of behaviour by the applicant…Overall the applicant maintains a high/critical level of risk that is unacceptable without any mitigation.[4]

[4] T-Document 23, Risk Assessment Recommendation Report, page 6

33.In issuing a negative notice the Commissioner found that the level or risk had been assessed as high/critical and “The Committee was unable to find a condition that would reduce the applicant’s level of risk to vulnerable people to an acceptable level.”

Consideration of the Commissioner’s decision

34.In addition to the material before the Commissioner, the Tribunal had the benefit of the applicant and Professor Wood’s evidence. As noted by Deputy President Dwyer in Williams v Secretary to the Department of Justice and Regulation[5], “…the extent of probative evidence required to [find the applicant should be registered] will necessarily vary having regard to the particular circumstances of an individual case.”[6]

[5] [2017] VCAT 44

[6] [2017] VCAT 44 at [6]

35.Professor Woods was briefed with extensive documentation detailed in the first four pages of his report. He saw the applicant on 12 June 2018 and spoke by phone with him on 14 June 2018. Professor Woods notes that apart from the convictions in Western Australia in 1981 and the allegations made by his daughter, which were dismissed after a trial, the applicant had no history of sexual criminal offending or otherwise sexually deviant behaviour. However, Professor Woods raised the fact of the applicant commencing a relationship with his second wife when she was 17 and with reported evidence of a background of dysfunctional psychosocial history on her part.  Moreover, she was at the time employed by him as an apprentice. Professor Woods opined this “raised employer-employee power inequality ethical questions.”

36.Professor Woods concludes that notwithstanding “the highly reprehensible nature” of the applicant’s offenses, he currently presents a low level risk of re-offending. Professor Woods adds that in coming to this view, he recommends, for the sake of abundant caution, that the applicant not be permitted to work with persons aged younger than 18 years. Professor Woods also suggests that any employer or social/religious organisation in which the applicant is involved should be made aware of this restricted approval.

37.In a follow up report where Professor Woods said that he was asked to clarify the risk factors the applicant may pose, he opines that it would be irresponsible for the body providing approval to work with vulnerable people not to insist that the applicant notify the current and/or any future tertiary institutions where he is or might be employed, of his restricted registration; that is, approval to work with persons over the age of 18.

38.In the written statement read to the tribunal the applicant advises that his conduct resulting in the criminal convictions in 1981 were due to his mental state at that time after the break down of his marriage and loss of his children. The Tribunal notes this explanation is based on the applicant’s assessment and that there is no psychological evidence to support this. The applicant describes now being in a very different state of mind with a stable relationship, work he really enjoys and involvement in community and church activities.

39.The Tribunal notes the concerns expressed by the respondent that the applicant was unable to refer to any treatment he had undertaken since his 1981 convictions apart from counseling while he was incarcerated and four psychologist appointments in 2018.  

40.The applicant filed a report by Ms Laura Summerfield, a registered psychologist with JMA psychology.[7] Ms Summerfield reports conducting four one-hour counselling sessions with the applicant “to address concerns about the impact of historic child sex offences on [his] current employment prospects and application for approval for WWVP.”  Ms Summerfield briefly summarises the nature of her discussions with the applicant without providing any opinion on his psychological condition.

[7] Bundle of documents filed by the applicant on 21 June 2018

41.Dr Jarvis asked the applicant about how a WWVP registration with a condition prohibiting work with persons under 18 could work in practice.  The applicant acknowledged that he was not in the position to know his students’ ages or have any control on who is allocated to his classes. The respondent’s counsel also raised the possibility of a chaperone type condition, which would require another adult to be present when the applicant was with students. Such conditions have been used in health practitioner matters, though were subject to significant criticism in a recent review.  The applicant advised that this would be unviable due to the cost.

42.The Tribunal considers the respondent engaged in a very thorough and careful exercise in evaluating the applicant’s registration to work with vulnerable people. This included seeking the views of three independent advisors appointed pursuant to section 34 of the WWVP Act. As detailed, this Act has mandatory requirements in assessing applications for registration. These consist of a risk assessment being undertaken which requires a number of factors be considered including the applicant’s criminal history.

43.A sexual offence against a child is the most severe of offense categories to be considered under the WWVP Act, which must result in a negative notice unless satisfied otherwise. The Guidelines further specify that abuse of power or breaches of trust, committed against a vulnerable person, are factors increasing the risk level. They also specify that diminished capacity due to mental state at the time of offence/alleged offence is given a neutral risk level. These are all factors relevant in this case.

44.The Tribunal took into account the applicant’s evidence that his convictions for child sexual assaults in 1981 were due to the stressors he was experiencing at that time. However, it also notes the concerns of the respondent that the applicant offered no medical evidence or treatment record to support this.  Further, while Professor Woods opines that the risk of the applicant reoffending are low, particularly given his age, he also recommends that any approval for registration should be with conditions.

45.It is understandable that the applicant points to the age of his sexual offence convictions in submitting to the Tribunal that he does not pose a future risk to his pupils or to any other minor. However, as submitted by the respondent, in the case of child sexual offences the passage of time is not an indicator of reduced risk.[8]

[8] Page 12 of the RA Guidelines

46.As an aside, the Tribunal was surprised that the applicant had not been required to obtain registration under the WWVP Act at an earlier time than last year given that his prior work was likely to have been with some students under 18 years of age.

47.The Tribunal carefully considered whether conditional registration is possible in this case. The applicant did not offer any suggestions as to how registration with a condition prohibiting teaching pupils less than 18 years of age could work in practice.  In cross-examination a number of scenarios were put to the applicant.  He rejected them all as being unworkable. The Tribunal agrees that is most probably the case.

48.It follows that having regard to the requirements of the WWVP Act in this case, the Tribunal confirms the Commissioner’s decision.

………………………………..

Senior Member M Brennan

For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	OR 03/2018
PARTIES, APPLICANT:	Applicant 032018
PARTIES, RESPONDENT:	Commissioner for Fair Trading
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Dr Jarvis
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Senior Member M Brennan, Senior Member D Byrne
DATES OF HEARING:	3 July 2018