APPLICANT 201915 v COMMISSIONER FOR FAIR TRADING (Occupational Regulation)
[2019] ACAT 117
•13 December 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT 201915 v COMMISSIONER FOR FAIR TRADING (Occupational Regulation) [2019] ACAT 117
OR 15/2019
Catchwords: OCCUPATIONAL REGULATION – application to remove conditions on working with vulnerable people – unacceptable risk of harm – necessary to mitigate risk – what is the risk of harm posed by the applicant – failure to take responsibility for actions
Legislation cited: Human Rights Act 2004
Working with Vulnerable People (Background Checking) Act 2011 ss 8, 10, 12, 17, 23, 24, 25, 27, 32, 42, 43, 44, 47, Sch 1
Subordinate
Legislation cited: Magistrates Court (Working with Vulnerable People Infringement Notices) Regulation 2012
Working with Vulnerable People (Background Checking) Bill 2010
Working with Vulnerable People (Background Checking) Regulation 2012
Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1)
Cases cited: Applicant 032018 v Commissioner for Fair Trading [2018] ACAT 77
Applicant 201824 v Australian Capital Territory (As Represented by Chief Minister, Treasury and Economic Development Directorate) [2019] ACAT 72
Council of the Law Society of the ACT v Legal Practitioner (Chanaka Bandarage) [2012] ACAT 40
Department of Human Services v DR [2013] VSC 579
Geary & Maddigan & Anor [2016] FamCA 1069
Medical Board of Australia v Helmy (No 2) [2018] ACAT 19
S v Commissioner for Fair Trading [2014] ACAT 59
List of
Texts/Papers cited: Macquarie Dictionary, Online Edition
Tribunal: Senior Member H Robinson
Date of Orders: 13 December 2019
Date of Reasons for Decision: 13 December 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 15/2019
BETWEEN:
APPLICANT 201915
Applicant
AND:
COMMISSIONER FOR FAIR TRADING
Respondent
TRIBUNAL: Senior Member H Robinson
DATE: 13 December 2019
ORDER
The Tribunal orders that:
1. The decision under review is confirmed.
………………………………..
Senior Member H Robinson
REASONS FOR DECISION
1. This is an application for review of a decision by the respondent, the Commissioner for Fair Trading (the Commissioner) to refuse to remove conditions from the applicant’s registration under the Working with Vulnerable People (Background Checking) Act 2011 (WWVP Act). The applicant seeks unconditional registration so that she may complete her training as a childcare worker. The question for the Tribunal is whether it should confirm, amend or set aside the Commissioner’s decision.
The legislative framework
2. The legislative scheme for the protection of vulnerable persons in the ACT comprises the:
(a) WWVP Act;
(b) Working with Vulnerable People (Background Checking) Regulation 2012 (the WWVP Regulation),
(c) Magistrates Court (Working with Vulnerable People Infringement Notices) Regulation 2012; and
(d) Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1) (the Guidelines).
3. The Guidelines are made pursuant to section 27 of the WWVP Act. This section requires the Commissioner for Fair Trading “to make guidelines (risk assessment guidelines) about how risk assessments are to be conducted under this Act.” The Act is prescriptive about the kinds of considerations that need to be considered in the Guidelines.
4. The Revised Explanatory Statement to the Working with Vulnerable People (Background Checking) Bill 2010 (at pages 4-5) provides the rationale for the WWVP Scheme, and its interaction with the Human Rights Act 2004, as follows:
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...
…
A rigorous and transparent background check and risk assessment process will enable appropriate and defensible decision making. Background checking and risk assessment will complement an organisation’s recruitment practices and other policies to create safe working places for clients, employers, employees and volunteers.
The Bill provides protective measures for current and future employees and volunteers through ensuring an individual’s career and/or volunteer opportunities are not unduly influenced by non-relevant criminal information, such as, parking infringements.
5. In other words, the scheme is designed to permit background checking of persons who will have contact with children and vulnerable adults, but in doing it strives to balance the protection of vulnerable persons with some protective measures for applicants, including constraints around the kind of information that maybe considered.
6. Under the WWVP Act, any person who has contact with a vulnerable person as part of engaging in a regulated activity must be registered, subject to some exceptions. A ‘vulnerable person’ includes a child, and a regulated activity includes a childcare service.
7. In order to be registered, a person must apply to the Commissioner. The Commissioner must then undertake a ‘risk assessment’ under section 23 of the WWVP Act. A ‘risk assessment’ is defined in section 23 to mean:
23 Meaning of risk assessment
(1) In this Act:
risk assessment, for a person, means an assessment by the commissioner of whether the person poses an unacceptable risk of harm to a vulnerable person.
Examples—harm
1 sexual
2 physical
3 emotional
4 financial
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2) It does not matter whether the risk of harm arises from neglect, abuse or other conduct by the person.
8. The Commissioner must conduct the risk assessment for the person in accordance with the Guidelines. The Commissioner may register a person subject to conditions, and there is a process in place to ensure that an applicant is advised of proposed conditional registration and can comment on it before a final decision is made. Registration with conditions may be reviewed internally. If a person asks for a reconsideration of a proposed condition, the Act provides:
(2) If the person asks the commissioner to reconsider the decision, the commissioner must, as soon as practicable—
(a) if the commissioner is satisfied that the condition is unnecessary—register the person unconditionally; or
(b) if the commissioner is satisfied that the condition is necessary—register the person subject to the condition.
9. This test — that is, whether the condition is necessary — is the only separate test that applies to the consideration or reconsideration of a condition. This test applies at an earlier stage in the process to what is before the Tribunal in this matter, as the applicant is this matter is already subject to the conditional registration and seeks its removal.
10. The Act then provides that a person with conditional registration may apply to the Commissioner to amend their registration, including by removing or amending a condition of the registration. The Commissioner may require the applicant to give the Commissioner any additional information or documents they require, and must then either amend the registration or refuse to do so. The Commissioner’s decision on this application is subject to review in this Tribunal. The applicant seeks review under this section.
The decision under review
11. The applicant was first registered under the WWVP Act in May 2015. This appears to have been an unconditional registration.
12. In October 2017 and November 2017, a series of events transpired which resulted in the applicant being charged with certain offences against her son. On 28 August 2018, she pleaded guilty to one count of common assault. An 18-month good behaviour order was imposed and no conviction was recorded.
13. On 30 January 2019 the applicant was given conditional registration under the WWVP Act. The condition placed on her registration (the condition) was that she:
Must be supervised by a general WWVP registration holder at all times whilst engaging in a regulated activity of service.
14. The applicant is undertaking training as a childcare worker and the condition compromises her ability to work and complete her training. Consequently, on 17 April 2019 the applicant asked the Commissioner to amend her WWVP registration under section 47 of the WWVP Act to remove the condition.
15. Following consideration of the application, the delegate of the Commissioner declined to remove the condition (the refusal decision). The reasons for refusal decision as set out in a letter dated 22 May 2019 were as follows:
• On 28 August 2018 you were charged without conviction for common assault
• You are currently within the period of the Good Behaviour Bond you were issued with as a result of this offence;
• The assault involved a vulnerable child;
• The nature of this offence is inherent to the requirements of the type of regulated activity you wish to engage in;
• The risk assessment identified a moderate level of risk to a vulnerable person in a regulated activity which is unacceptable if it is not mitigated;
• You have been unable to demonstrate how your circumstances have changed, and that you do not pose an unacceptable risk without appropriate mitigation;
• You have been unable to demonstrate how the supervision condition on your current registration impacts on your supervised educational work-based placements.
16. On 13 June 2019 the applicant made an application for review of the refusal decision.
The question for the Tribunal
17. The question for the Tribunal whether the applicant presents an ‘unacceptable risk of harm’ to a vulnerable person, and whether a condition on her registration is necessary to ameliorate or mitigate that risk to an acceptable risk.
What is the risk?
18. The term ‘risk of harm’ is not defined in the WWVP Act. It is therefore appropriate to have regard to its ordinary meaning.
19. The Macquarie Dictionary defines ‘harm’ to mean, relevantly:
noun
1. injury; damage; hurt: to do someone bodily harm.
2. moral injury; evil; wrong.
20. The definition of ‘moral’ includes, relevantly:
8. of, relating to, or producing an effect upon the mind, feelings, or on results generally: a moral victory; moral support.
21. In other words, ‘harm’ can encompass a physical injury or a ‘moral’ one, which in turn means an emotional or psychological harm.
22. The ordinary meaning of ‘risk’ includes:
1. exposure to the chance of injury or loss; a hazard or dangerous chance: to run risks.
23. In other words, a risk is a ‘chance’ or the ‘possibility’.
24. In S v Commissioner for Fair Trading [2014] ACAT 59 the Tribunal considered the phrase: “an unacceptable risk of harm”. As part of its consideration, the Tribunal referred to the Victorian Supreme Court case of Department of Human Services v DR, in which that Court reasoned that the term is satisfied where “there is a sufficient likelihood of the occurrence of risk which, having regard to all relevant circumstances, makes it unacceptable.” The Tribunal noted the Court’s observations 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. I adopt these observations, which are in any case consistent with the Guidelines.
25. There will always be some degree of risk, and the WWVP Act does not purport to eliminate it. Rather, the Act calls for an assessment of whether there is an unacceptable chance that the person will cause harm to a vulnerable person, whether sexual, physical, emotional, financial or through some form of neglect. For the purposes of the WWVP Act, this is done by considering the applicant’s past conduct, which is accepted as an indication of the possible future behaviour of that individual, as part of a risk assessment process.
26. The Act and Guidelines set out a broad range of information about an applicant’s past behaviour that the Commissioner must consider as part of the risk assessment process. This includes:
(a) the applicant’s criminal history, which includes any conviction or finding of guilt against, the person for a relevant offence;
(b) non-conviction information about the applicant – including charges, acquittals, convictions that were quashed or set aside, infringement notices and spent convictions, (that is, where information was insufficient to pursue or obtain a conviction); and
(c) 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.
27. As noted above, it is unnecessary to establish that the risk is more likely than not.
28. However, in order to be fair to an applicant, the Guidelines provide that the Commissioner must not take into account any information about an applicant unless satisfied that the information is reasonably accurate. Again, it does not need to be confirmed. Ultimately, the truthfulness, completeness and reliability of the information are matters to be weighed up by the decision-maker. This is a risk assessment exercise, not a determination of whether certain accusations are true.
29. In weighing up the information, the decision-maker must also keep in mind that the legislation is protective — that is, the aim must be to protect vulnerable members of the public from inappropriate behaviours by persons placed in positions of influence or authority. While the process should never be punitive, it must be recognised that an outcome necessary to ensure the protection of the public may have a serious adverse effect on the person denied registration.
The risk assessment process
The risk assessment guidelines
30. The Guidelines set out a risk assessment process based on the standards for risk management.
31. This process under the Guidelines was summarised in in Applicant 201824 v Australian Capital Territory (As Represented by Chief Minister, Treasury and Economic Development Directorate) [2019] ACAT 72 as follows:
14. … The risk assessment process is based on the standard for risk management and consists of:
(a) risk identification;
(b) risk analysis;
(c) risk evaluation; and
(d) risk treatment.
15. As regards risk identification, the risks to be assessed by the Commissioner are the extent to which applicant’s background poses a “threat of harm, be it sexual, physical, emotional, financial, neglect or other, to a vulnerable person”. The existence of potential sources of risks is identified through the application process and this includes the applicant’s statement of whether they have been charged or found guilty of a relevant offence. The risk analysis step refers to matters which the Act requires that the Commissioner take into account and these include:
(a) the person’s criminal history;
(b) non-conviction information;
(c) negative notices issued under the Act or corresponding law;
(d) whether the person previously registered under the Act or corresponding law; and
(e) any other information the Commissioner considers relevant in determining the applicant’s risk.
16. As regards “any other information”, the Risk Assessment Guidelines state that the Commissioner will consider any information obtained from other sources during the risk assessment process if it is believed it is, or may be, relevant to determining whether the applicant poses an unacceptable risk. This may include information obtained from other government authorities, employers, the applicant or other public sources. The Risk Assessment Guidelines then mention the statutory obligations under section 31 for the Commissioner to take into account how the information was obtained, the relevance of the information, the truthfulness, completeness and reliability of the information, and any submission made by the applicant addressing the above.
17. Risk evaluation is the process by which the Commissioner compares the results of the risk analysis (background checking) with the risk criteria to determine whether the risk, and/or its magnitude is acceptable.
18. Where there is a very low or low risk, this is acceptable without any mitigation. A moderate or high level of risk requires mitigation (i.e. conditions) to reduce the risk to an acceptable level. A critical level of risk is unacceptable (i.e. the applicant will be issued with a proposed negative notice). This risk evaluation is reproduced in tabular form in the Risk Assessment Guidelines (Figure 1).
Likelihood
Impact
Rare
Unlikely
Possible
Likely
Almost certain
Catastrophic
Moderate
High
High
Critical
Critical
Major
Moderate
Moderate
High
High
Critical
Moderate
Low
Moderate
Moderate
High
High
Minor
Very low
Low
Moderate
Moderate
Moderate
Insignificant
Very low
Very low
Low
Moderate
Moderate
What is the risk of harm posed by the applicant?
32. The respondent contends that the applicant poses a risk of physical and emotional harm to children in her care for three reasons:
(a) she physically assaulted her son, resulting in physical and emotional harm to him;
(b) she discussed the charges against her with her son and pressured him to change his story in relation to the physical assault in breach of the Child and Youth Protection Services Safety Plan (Safety Plan) entered into with Child and Youth Protection Services (CYPS), thereby causing him emotional harm; and
(c) she lacks insight into her conduct, with the possibility it may be repeated.
33. The applicant denies that she presents any risk to her son or any other vulnerable people.
34. I observe from the outset that the applicant’s position in these proceedings has been unhelpful. While I can appreciate that she does not view her conduct as a risk, her approach to these proceedings, being to deny the events happened and to denied the totality of the risk, means that I cannot adequately assess what that conduct was, and whether the risks have been mitigated. This situation is exacerbated by the applicant’s position in relation to the factual allegations having changed throughout these proceedings.
35. In the first set of submissions filed by the applicant (first submissions), the applicant concedes that she “gently slapped the child on the face,” as a result of “frustration and stress,” but otherwise denies the allegations. During the hearing the applicant denied the allegations in their entirety, a position which she reiterated in her reply to the respondent’s submissions, where she submitted that there was no evidence to support any of them. As I understand the applicant’s position following the hearing, it is that she denies the totality of the allegations, and that she submits that the Tribunal cannot be satisfied on reasonable grounds that any of them are true, and hence cannot be satisfied that she presents an unreasonable, or indeed any, risk.
36. It is therefore necessary to consider the evidence before it in relation to what happened.
The allegations of physical abuse
37. The initial allegations were made by the applicant’s son upon questioning by teachers on the morning of 1 November 2017. The child initially said that his mother repeatedly hit him with a thong on the face and the thighs and attempted to strangle him. On the next day he said that he had lied about the strangulation, but maintained that he had been repeatedly hit by his mother with a thong or slipper.
38. On 9 November 2017 the applicant was charged with one count of assault and one count of choking her child. The latter charge was later dropped. The applicant entered into the Safety Plan, which set out parameters for discussing this matter with her son pending the hearing of the charges.
39. Subsequently, in an interview with CYPS on 13 November 2019, the child withdrew all the allegations and stated that he had “lied” and that his mother had not assaulted him. The respondent contends that the applicant spoke to her son and encouraged him to change his story for the CYPS Interview in breach of the Safety Plan, and contrary to her son’s welfare.
40. During the CYPS interview, the applicant stated that she believed her son was either coached (by students), pressured (by police or teachers) or simply lied about the physical abuse allegations in order to “stop being picked on about the original suspension.” These explanations were maintained by the applicant throughout the hearing of this matter.
The criminal charge
41. The applicant entered a guilty plea and was sentenced at the ACT Magistrates Court on 28 August 2018. Because of her guilty plea, the facts were not tested. However, a statement of facts was tendered at the sentencing hearing. This document set out the facts to which the applicant entered a plea of guilty. The relevant portion of the statement of facts reads as follows:
Whilst inside the defendant’s bedroom with the child, the defendant, with her right hand, struck the child’s left side of the face … The defendant’s strikes caused the child to be in pain and discomfort and it goes on to refer to swelling and bruising on the upper left side of the child’s face and forehead.
42. Although the statement of facts refers to “strikes”, the Magistrate observed that:
… [t]he assault involved a single strike by you to the face of your nine-year-old son…
43. His Honour also noted that the assault took place in the wake of the child being suspended from primary school for two days, and accepted that that the conduct was “one-off” and “out of character” and that the “…evidence speaks of a loving, caring and diligent mother who has a good relationship with her son.” There was no suggestion of lasting injury to the child.
44. The applicant was convicted of common assault and released on an 18-month good behaviour bond, with no conviction recorded.
The applicant’s position in relation to the statement of facts
45. The applicant now wishes to resile from the statement of facts. Her position at hearing in this Tribunal was that her son lied about the assault and that the allegations made by teachers at the school were “not truthful” and were constructed by the teachers at her son’s school and the police. She repeatedly denied that she assaulted, slapped, hit, or laid her hand upon her son. She said that she was “forced” to enter the guilty plea because she could not afford to defend the charges and her legal advisors told her to plead guilty.
The respondent’s position
46. While the applicant now seeks to resile from the statement of facts, the Commissioner asks that the Tribunal make factual findings that go beyond it. The Commissioner suggests that the evidence is “…consistent with a sustained attack,” and points to evidence of multiple hits with a thong and to the child having been scratched.
The evidence
47. Having reviewed all the evidence, I am satisfied that I should accept the facts as set out in the statement of facts as being the most accurate account of the circumstances of the assault. I have reached this conclusion having regard to the totality of the evidence before me, but particularly the following.
48. Given the inconsistencies of the applicant’s evidence, I have preferred contemporary documentary evidence to the oral evidence of the applicant.
49. On the morning of Wednesday 1 November 2017, three teachers observed the applicant’s son to have bruising to his face. They made reports to both CYPS and the Australian Federal Police.
50. Two of those teachers subsequently gave evidence about what they saw:
(a) Both at the hearing and in a police interview, Ms D described two very red marks on the face; one in the middle of his forehead and one down the left side of the face. She described the one on the left side of the face was very red, about the size of her palm, and was evident for a few days. The mark in the middle or on the forehead that was not nearly as red and went down much quicker.
(b) In a police interview, Ms S described the red mark down the side of the cheek as “very red” and “huge” and approximately ten centimetres long.
51. Ms D repeated that evidence to the Tribunal and was cross-examined on it. I am satisfied she gave truthful evidence as to the bruising she witnessed on the child’s face.
52. I am not in a position to assess how bad the bruising was, but I note that at an appointment with Dr Sansum at the Child at Risk Health Assessment Unit at ACT Health on 2:40pm on 9 November 2017, the reviewing doctor said that she could not find any marks or other signs of alleged abuse, so whatever bruising was on the child had faded within a week. I do not believe there is any suggestion that the applicant physically harmed her son on any other date.
53. As well as the witness evidence as to the bruising, there is other evidence that suggests that the statement of facts is correct. This is set out further below, but for present purposes I note that although the applicant now denies physically chastising her son, she made numerous disclosures to various parties prior to the hearing. I accept these early disclosures as being more likely truthful than her subsequent denials. These disclosures include during a conversation with Ms O on 1 November 2017 and the statements made in her police interview on 8 November 2017 in which she told the police she slapped her son once. Further, in a meeting with a Ms A she conceded that she hit her son once, with an open hand, while he was on the couch, although she denied hitting him with a thong and said that he had lots of bruises on his legs from play. Each of these disclosures is largely consistent and with the version of events in the statement of facts. The applicant’s chronology, filed in these proceedings on 10 October 2019, states that on 31 October 2019, she “gently slapped the child on his face”. Additionally, under cross-examination during the hearing, the applicant admitted to slapping her son in a non-aggressive manner before appearing to later deny physical contact, although it is possible that she was confused about the question.
54. Turning to the Commissioner’s case, there is some, albeit sparse evidence before me that the child had bruising on his legs following the assault. The applicant appears to have acknowledged both to the AFP and CPYS that her son had bruises on his legs or thighs (although in her submissions in response she suggests that there was no evidence of bruising). Dr Sansum does not appear to have noticed bruising of any concern when she examined the child a week later. Moreover, the applicant provided a medical certificate from a medical practitioner, dated 5 March 2018, that states that her son “…suffers from recurrent bruising after minor trauma e.g school ground sports.” It is not surprising or unreasonable to conclude that a young boy may suffer some bruising on his legs from playground accidents. Hence, this is a reasonable explanation. I am not satisfied that the applicant hit her son numerous times on the legs or that she engaged in a sustained physical attack.
55. In summary, therefore, I am satisfied that the evidence that the applicant gave in her police interview, which was subsequently reflected in the statement of facts provided to the Magistrate Court, is reasonably accurate. That is, I am satisfied that she struck her son across the face at least once and that the strike or strikes were hard enough to cause bruising that was visible for a couple of days. I am not satisfied that the applicant struck her son on multiple occasions, that she struck him across the legs or thighs, or that she engaged in a sustained attack. It is in any case a single strike that appears to be the substance of the conviction.
56. Opinions on the appropriateness of physically chastising children differ from person to person within the community. The defence of ‘reasonable chastisement’ still remains part of the common law of the Australian Capital Territory. The current position under the Family Law Act is similar and was described but Family Court in in Geary & Maddigan & Anor [2016] FamCA 1069 as follows:
…although community standards may now deem punishment in that form to be obsolete, it is still not necessarily “abuse” as defined in section 4 of the Family Law Act 1975. It is only abusive if it is disproportionate to the misbehaviour sought to be corrected.
57. Ultimately, however, whether the applicant’s actions were reasonable chastisement or not is not a matter for this Tribunal. That defence does not appear to have been run in the Magistrates Court, and the full denial before this Tribunal meant no question of it arises. The applicant pleaded guilty to a summary criminal offence, being common assault. The offence itself is relevant to an assessment under the WWVP Act, and I will consider it as such. However, I note that there are other, exacerbating factors in this case.
The applicant’s denial that an assault occurred
58. As set out above, following some initial admissions, the applicant later denied assaulting her son. She maintained this position at the hearing.
59. The denials were first made in the CYPS interview on 13 November 2017. On this occasion, both the applicant and her son claimed the facial bruising was caused by the child being him hit by a closing sliding door. The applicant also alleged that the school was biased against her and that the allegations against her were constructed. This position was maintained at hearing and in her final submissions.
60. In summary, the applicant suggests that a complaint was only made to police because:
(a) two teachers at the school, Ms D and Ms O, did not like her son and were trying to get him into trouble and were lying about their respective conversations with the applicant;
(b) she had threatened to make a complaint to the Department of Education about the conduct of the teachers and the school and this was retaliation;
(c) her son only made allegations as a result of pressure by students, the police or teachers;
(d) the applicant was only charged as she had threatened to make a complaint against the arresting police officer; and
(e) the transcript of her evidence to the police was false.
61. The consequence of the applicant’s position in these proceedings is that I am faced with a situation where the applicant’s version of events in some of her submissions and at hearing was inconsistent with contemporaneous documents, inconsistent with previous submissions filed by her representative, and inconsistent with the statement of facts tendered to the Magistrates Court. In other words, I am being asked to accept that applicant’s previous evidence to the police and the Magistrates Court was false, and her evidence at hearing in this Tribunal and summarised in reply to the respondent’s submissions is correct.
62. I do accept that the applicant felt pressured to make concessions at various stages of the investigation and the proceedings, and perhaps even to plead guilty when she would have preferred to defend the charges. However, the evidence before me suggests that she has changed her position on several occasions, and not only with the police. This suggests a degree of opportunism or perhaps desperation. The inconsistent evidence means I have little choice but to consider the respondent an unreliable witness.
63. In any case, I do not accept that the CYPS officers, the school and the police all conspired to invent a story that the applicant assaulted her child. The suggestion is simply not credible.
64. In and of itself, dishonesty or obfuscation in these proceedings does not make the applicant an unacceptable risk to children. I can well understand that she feels overwhelmed, upset, and that she is perhaps in a state of denial. The difficulty is, however, I do not know the full circumstances of the assault, I cannot trust the applicant has honestly relayed them to me, or perhaps even honesty reflected on them herself. This causes me to have concerns about whether I can trust her to be honest in other environments, including in a childcare environment, where disclosure is an important part of the role.
The applicant has failed to take responsibility for her actions
65. As set out above, the applicant’s response to these proceedings has been to portray the complaints to the AFP, and the subsequent laying or charges against her, as a scheme by teachers at the school and offices of the AFP to cover their own wrongdoing, in relation to the suspension process or otherwise. This appears to be an attempt to divert blame and responsibility.
66. Meanwhile, the applicant has not shown any insight or remorse into her actions. She has not accepted that her conduct was irresponsible or that it has the potential to damage her son. She has blamed others. She has failed to reflect, as least in these proceedings, on what led to the offending conduct and on what strategies she could engage to ensure it does not happen again. She has failed to undertake any activities that would mitigate the risk of a repeat of the offending conduct.
67. It is likely that this apparent lack of insight was why the delegate observed, as a reason for denying registration, that:
You have been unable to demonstrate how your circumstances have changed, and that you do not pose an unacceptable risk without appropriate mitigation.
68. This lack of insight and reflection remains one of my concerns.
69. The applicant’s strategy of denying the allegations in their entirety in this proceeding was unwise. It denied her the opportunity address what lead to the incident of 1 November 2017, or to say what has changed, or indeed what she would do differently. It means I have little basis upon which I could conclude that she has reflected on her conduct, and therefore I cannot conclude that there has been any change in circumstance that may mitigate the risk she presented at the time the Commissioner imposed the condition, or presently.
The circumstances surrounding the assault
70. In assessing the risk of harm posed by the applicant, there are a few additional factors that I have had regard to.
71. First, there is some evidence that the applicant planned to ‘smack’ her child but was advised not to do so. Shortly before leaving the school, the applicant stated to Ms D that she was “going to smack” her son and was told by Ms D that “in our culture we don’t normally smack ... our children,” “it’s not something we do.” Ms D’s evidence was that, at the time of making this statement, the applicant was quite calm. The applicant appears to have insisted that she had the right to discipline her child in this way. In response to Ms O saying “You can’t - you can’t hit him. It’s not right,” the applicant stated “I am the mother. I discipline him”. I accept Ms D’s evidence. As such, it would appear that at the time of assaulting her son, the applicant understood that it was not acceptable in Australia to discipline a child by slapping him on the face.
72. The planned nature of the smack increases the risk, because it shows the respondent acted with some premeditation, rather than impulsively. Again, this could have been addressed by the applicant clearly stating that she had reflected on her conduct and agreed that it was unacceptable. However, her lack of candour in these proceedings means that the applicant has not had an opportunity to set out whether she accepts that her conduct was inappropriate, to confirm that it will not happen again, or to set out the strategies she has in place to ensure that it does not.
73. Secondly, I am concerned that the applicant appears to have breached the Safety Plan put in place in relation to her son, and that she did so in a manner that interfered with the investigation.
74. As mentioned above, when released from custody the applicant signed the Safety Plan. The Safety Plan included an agreement that:
The mother agrees to use a script, such as the one below, to speak to the child about the physical abuse and Police and CYPS intervention. Script “You did the right thing by telling Police. I’m sorry I hurt you. I am going to work with Care and Protection to help me with my parenting”. The mother agrees not to discuss the child’s disclosures around the physical abuse.
The mother agrees not to coach or lead the child to changing his statement.
75. The Safety Plan was discussed with the applicant at the time it was signed.
76. The applicant’s evidence was that:
(a) CYPS had told her that she could tell her son that he had lied and in fact asked her to do so;
(b) she had talked to her son about the fact that he had lied before 13 November 2017; and
(c) she had not talked to her son about his allegations.
77. However, as set out above, the child subsequently changed his evidence, telling CYPS that his facial bruising was a consequence of being caught in a door while his head was leaned forward, breaking his reading glasses. This reflects what the applicant told CYPS during that interview, which in turn is contrary to what she said in previous disclosures. I am satisfied that the applicant and her son discussed their evidence and agreed upon an alternative story, being that the boy was caught in a closing sliding door.
78. Further, on 14 November 2017, the applicant’s son told his teacher:
[Ms D], you know when I said that my Mum hit me? Well that wasn’t true. I was careless (when I was doing something) and I hit my head on a drawer.
79. It is significant that the cause of the injury changed, again, from shutting his head in a door, to a drawer.
80. Then, on 17 November 2017, the applicant and her son attended a consultation with the school psychologist. The notes of the consultation include the following:
... When asked about what they wanted to achieve in the appointment, both [the Applicant’s son] and his mother said that [the Applicant’s son] wanted to share his story with me. He provided the following information in the company of his mother:
... At home she lightly slapped me on the face telling me why did I do it. She called dad - dad was upset as well. Later in the evening / was putting on face cream and was closing the sliding door and then I hurt myself with the sliding door when I was closing it ... Mum said it was punishment from God for doing bad things at school and also my glasses broke when I did that. And the next day I went to school and mum told me to say sorry to my teacher and my friends saw the mark on me and I was really upset that my mum was crying. I felt like saying that my mum did it so my teacher wouldn’t make any more complaints so I said sorry to my teacher and said my mum made this mark. ... I saw the police officer and I lied because I thought something good might happen out of it. I said that my mum hit me because my mum made a one way ticket to India and I really like Australia and I didn’t want to leave. I lied and told them mum hit me and I thought that I might stay and then we have to cancel this ticket, this holiday: now I know it was a holiday to India. ... [The Applicant] then said “I don’t want to say him feel guilty, you make this mistake and think before you tell anything and it’s a big trouble... we disturb, my whole family because of these things. I am trying to keep him on track, go to school, eat well.
81. In summary, therefore, it is apparent that over the course of these events, the applicant’s story changed, from a light slap, to no physical contact at all and the applicant’s son hurting himself with a sliding door, to a sliding door and a light slap.
82. Then, in a subsequent interview with CYPS on 22 November 2017:
(a) the applicant’s son repeated that he was lying to police and the school regarding physical abuse by his mother, and claimed that he suffered a mark on his face when the cupboard door hit his spectacles, and appeared tense and emotional; and
(b) the applicant told care and protection that the information contained within the statement of facts was not correct and that her son had admitted that he lied – despite later agreeing in part to the statement of facts.
83. On another occasion, the applicant’s son reported to the school psychologist that he experienced shame and guilt around reporting his mother’s behaviour towards him to police. The constantly changing story suggests some concoction.
84. The respondent contends that the breach of the Safety Plan caused significant emotional harm to the applicant’s son. The respondent pointed to several incidents of apparent self-harm, the details of which I do not need to set out here. The son would appear to have experienced emotional challenges, but I do not have the medical or psychological evidence to draw any connections between this behaviour and the breach of the Safety Plan. What I do conclude, however, is that the applicant encouraged or permitted her son to:
(a) give contrary and wrong information to CYPS; and
(b) form a view that the giving of information about an assault upon himself to regulatory services or the police is a source of guilt.
85. Additionally, I am very concerned by the applicant’s submission, in her final submissions, that:
Any emotional harm suffered by the child of the applicant was due to the fact that the school management acted irresponsibly toward the applicant and the child. The police was involved without any justification. All this resulted in the applicant and the child suffering emotional harm.
86. This submission, while made in a document prepared by the applicant’s lawyer, was presumably made with the applicant’s authorisation and on her instructions. It demonstrates a profound lack of understanding by the applicant as to the reasons why the school was concerned, the reasonable basis for those concerns. It also demonstrates a concerning inability of the applicant to separate her interest from that of her child.
Lack of insight
87. The applicant has shown no remorse or insight into her actions and the harm it has caused to her son. To the contrary, the applicant’s witness statement and evidence primarily concerned the negative impact of the events on her and blamed others for her predicament.
The character references
88. The applicant’s character attest to the applicant being a generally good mother and a respectable person. Her friends and colleagues clearly think well of her. However, the references have little to no relevance to the determination of the application, as it is not apparent that the applicant disclosed the full nature and gravity of the assault to the referees.
The risk assessment
89. Having regard to my findings above, and the material before the Tribunal, I have undertaken a revised risk assessment in relation to the applicant, using the Risk Assessment Guidelines.
90. The first step is risk identification as per page 6 of the Guidelines. The Guidelines identify several forms of risk, but I consider the largest in this case to be risk of physical harm and some risk of emotional harm.
91. The second step is a risk analysis. The criminal history of the applicant is the relevant consideration. Even a spent conviction involving an act of violence is a serious matter, having regard to the factors of page 7 of the Guidelines. In relation to those factors:
(a) Nature, gravity and circumstances: There is a single offence of common assault, committed against a vulnerable person. However, the act itself took place under very trying circumstances and did not occur in the workplace. This is a neutral factor.
(b) Relevance: the offence involved an act of violence against a vulnerable child in her care. As such, it is relevant and indicates an increased level of risk.
(c) How long ago the offence was committed: It has now been two years since the applicant committed the offence and just over a year since her sentencing. There is no evidence of a re-occurrence, but the applicant is still the subject of a good behaviour bond. This is a neutral factor.
(d) Age: The age of the victim of the common assault has an increased impact on risk levels, noting that this factor is already strongly factored into the nature of the offence (above).
(e) Whether the person’s circumstances have changed since the offence: I have no evidence that the applicant’s circumstances have changed. It is probable she now understands the consequences of physical chastisement from a legal perspective, but I do not have any evidence of parenting classes or counselling courses are any steps taken to enhance her conflict resolution skills. I note that there was been no change in circumstances.
(f) Attitude towards offence: The applicant has not indicated remorse and regret and she continues to question the statement of facts.
(g) Number of offences: the applicant was convicted of a single offence.
Other information
92. In addition to the offence, I am being asked to have regard to the applicant’s subsequent breach of the Safety Plan. I have considered this allegation as follows:
(a) Truthfulness, completeness and reliability: I am satisfied that the information before me about the breach of the Safety Plan is reasonably truthful, complete and reliable, although I note it comes from inferences drawn from events rather than any direct evidence.
(b) How the information was obtained: the sources of the information are professionals engaged in child welfare activities with no pre-existing relationship with the applicant.
(c) Relevance: The information is relevant before it goes to the applicant’s reliability and acknowledgment of the offence, and her willingness of capacity to grow and change.
93. I am satisfied that the breach of the Safety Plan is a factor that increases the risk posed by the applicant.
Assessment of the risk of harm
94. This is an unfortunate case. The applicant is isolated from her family and her partner, all of whom live overseas. She balances work and family commitments and education and does so mainly alone. On the day of the assault, she was required to leave her educational facility and travel by bus to collect her son, early, and face the prospect that he would be suspended. I have no doubt that she was tired, stressed and perhaps overwhelmed, both when she spoke to Ms D about smacking her son, and indeed when she later slapped him. She pleaded guilty, and no conviction was recorded. To the extent that this singular event suggests that she poses an unacceptable risk to vulnerable children, that risk could be addressed by counselling or parenting lessons such that conditions could be removed.
95. However, the applicant’s wider conduct is a cause for concern. She has failed to take responsibility for her actions, to reflect upon her conduct, or to make changes necessary to demonstrate that similar behaviour will not happen again if she is confronted with a stressful or difficult situation involving a vulnerable person. Indeed, the lack of acknowledgement of responsibility, insight and remorse increases the risk that such incidents will occur again in the future.
96. Consequently, I agree with the Commissioner that the applicant presents a possible risk of minor emotional or physical harm to a vulnerable person. Having regard to the overall risk assessment process, she remains a moderate risk. This is not an acceptable level risk, and I cannot be satisfied that the condition imposed on her registration is unnecessary.
97. Had the applicant been honest and open about the circumstances of the offence, and presented to the Tribunal the reasons why her actions were unlikely to be repeated, I may have had a very different view of these circumstances. It is possible that the Commissioner may form a different view, too, if the applicant takes some steps toward addressing the concerns raised about her conduct more frankly.
98. At present, however, I am satisfied that the condition imposed is reasonably appropriate and adapted as it still allows the applicant to engage in the regulated activity, however, ensures the protection of vulnerable people.
99. Accordingly, I confirm the decision under review.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER:
OR 15/2019
PARTIES, APPLICANT:
Applicant 201915
PARTIES, RESPONDENT:
Commissioner for Fair Trading
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
R and J Lawyers
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Senior Member H Robinson
DATES OF HEARING:
24 September 2019
0
7
7