Applicant A v Commissioner for Fair Trading (Occupational Regulation)
[2022] ACAT 86
•18 October 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT A v COMMISSIONER FOR FAIR TRADING (Occupational Regulation) [2022] ACAT 86
OR 19/2021
Catchwords: OCCUPATIONAL REGULATION – working with vulnerable people registration– no evidence for criminal conduct provided – unacceptable risk of harm – assessment of risk – conditional registration
Legislation cited: Working with Vulnerable People (Background Checking) Act 2011 ss 8,10,12, 17, 24, 32, 42, 43, 44, 47
Subordinate
Legislation cited: 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 201915 v Commissioner for Fair Trading [2019] ACAT 117
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
Medical Board of Australia v Helmy (No 2) [2018] ACAT 19
Tribunal:Senior Member D Mulligan
Date of Orders: 18 October 2022
Date of Reasons for Decision: 18 October 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 19/2021
BETWEEN:
APPLICANT A
Applicant
AND:
COMMISSIONER FOR FAIR TRADING
Respondent
TRIBUNAL:Senior Member D Mulligan
DATE:18 October 2022
ORDER
The Tribunal orders that:
The Commissioner’s decision is varied.
The applicant is granted working with vulnerable people registration subject to two conditions:
(1)the applicant must be supervised by a WWVP general registration holder in settings where children are physically present; and,
(2)the applicant must inform the Commissioner for Fair Trading in writing about any regulated activity he engages in for, or on behalf of, a particular employer or organisation. The written notice must include in what capacity he so engages, and the name and contact details of the employer or organisation for, or on behalf of whom the registrant provides the regulated activity.
A non-publication order is made under section 39 of the ACT Civil and Administrative Tribunal Act 2008 in relation to the names of:
(a)the applicant;
(b)the applicant’s daughter;
(c)the applicant’s former wife; and
(d)the applicant’s two nephews
.………………………………..
Senior Member D Mulligan
REASONS FOR DECISION
The facts of this case
On 17 September 2018, the applicant applied for a Working with Vulnerable People (WWVP) registration.[1]
[1] Exhibit R1, pages 175-183
In making the application the applicant also provided a consent form which allowed the Commissioner for Fair Trading or delegate (the respondent, the delegate or the Commissioner) to conduct a criminal history check and make other inquiries that may be relevant to deciding the application.[2]
[2] Exhibit R1, page 185
The respondent made inquiries and obtained a National Criminal History Check.[3] Following receipt of that document the respondent sought further information from the applicant[4] and from the NSW Police Force, NSW Police Force Child Abuse Unit (Riverina) and the NSW Department of Family and Community Services (FACS).[5]
[3] Exhibit R1, pages 173-174
[4] Exhibit R1, pages 158-172
[5] Exhibit R1, pages 137-139
The information received from the NSW Police included details of limited criminal offending by the applicant:
(a)Four charges in 1997, relating to allegations of fraud. Two of the allegations were found proved and two not proved.
(b)In 2008 the applicant faced two charges relating to a domestic assault. The charge of common assault relating to an assault on the applicant’s former wife was proved. The other charge was dismissed.[6]
[6] Exhibit R1, pages 141-144
The NSW convictions are now spent.
The information from FACS included:
(a)Reports in 2008 (for which one allegation of assault was proved) and in 2015, that outlined alleged incidents of domestic abuse against the applicant’s former wife.[7]
(b)Allegations in 2015 and 2016, that the applicant is a person of interest in relation to the abuse of three children (including the applicant’s daughter).[8] The allegation report states:
[The applicant] is recorded as a Person of Interest (POI) towards three children – male born 2000, male born 2005 and Female born 2008. These records are dated 2015 – 2016 and relate to Risk of Physical Harm Injury, Risk of Sexual Harm/Injury and Sexual: Indecent acts/molest
[7] Exhibit R1, page 106
[8] Exhibit R1, page 105
The applicant was provided further information from FACS relating to these incidents.[9]
[9] Exhibit R1, pages 105-128
He was told that one of the allegations is that the applicant’s daughter witnessed the applicant involved in domestic violence and verbal abuse against his former wife.[10]
[10] Exhibit R1, page 106
He was also told that the allegations related to two of the applicant’s former wife’s nephews. In one incident the applicant is said to have chased one of his young nephews with an axe and then chopped a bicycle with the axe.
The other young nephew is said to have been head-butted and punched by the applicant.
The source of these allegations is the applicant’s former wife. It appears she called FACS and made those allegations on 15 September 2015.
There is no evidence in the material provided by the Commissioner to ACAT, that the two nephews were interviewed by the police or FACS and no information as to why it is that no prosecutions were brought against the applicant for offending against two children who would have been about 10 and 15 years old at the time of the allegations made by the applicant’s former wife.
In addition to the above material, the FACS documents also included:
(a)an allegation (relating to the applicant’s daughter) that in 2016 the applicant:
is recorded as a Person Causing Harm (PCH) towards female born 2008. This record is dated 2016 and relates to Sexual: Indecent acts/molest.[11]
(b)reports from the applicant’s wife in May and June 2016, that contained further allegations that the applicant had sexually abused his seven-year-old daughter.[12]
[11] Exhibit R1, page 105
[12] Exhibit R1, page 107
I note the applicant has been convicted of one count of common assault against his wife, but he has never been charged with, let alone convicted of, any offence relating to the physical assault or sexual assault of a child.
On 2 October 2019, the Commissioner undertook a risk assessment[13] and then made a negative decision in relation to the application for WWVP registration, in effect declining the application.
[13] Exhibit R1, page 101-103
The risk assessment document includes a “Risk Evaluation” which categorised the risk posed by the applicant as “Critical” and the “Risk source” upon which that assessment was based as “Allegation – Child Sexual Assault – Substantiated by FACS – no charges.”[14]
[14] Exhibit R1, pages 101-103
The delegate noted that the applicant’s daughter:
… has been assessed as suffering from anxiety (psychologists treatment) and having below developmental delays, and extremely low IQ, and below average communication and cognitive functioning.
The delegate went on to say:
Response – Risk of Significant Harm – Allegations Substantiated – no care and protection required due to non-contact AVO and no contact with the applicant.
The risk assessment includes a notation to the effect:
The applicant denies the allegations and claims that their ex-wife has made/made the child provide false allegations as part of a property/child access dispute.
The risk assessment also recorded the fact that the police had investigated the complaint and elected not to prosecute the applicant.
On 13 November 2019, the applicant sought a reconsideration of the decision.[15]
[15] Exhibit R1, page 93-94
On 10 April 2020, the applicant provided two character references which spoke of his positive attributes and their positive observations of the way in which the applicant interacts with children.[16]
[16] Exhibit R1, pages 87-88
On 18 June 2020, the Commissioner sought information from the applicant concerning the status of an Apprehended Violence Order.[17]
[17] Exhibit R1, page 78
On 23 June 2020, the NSW Local Court at Young provided the respondent with copies of a Provisional Apprehended Domestic Violence order and an order varying the Apprehended Domestic Order Violence.[18]
[18] Exhibit R1, pages 69-77
The applicant conceded that the Apprehended Domestic Violence Orders were made but highlighted that they were made by consent and without admission as to the substance of the allegations contained in the orders.
In any event the orders did not contain allegations that the applicant had sexually offended, or offended in any way, against his daughter or any other child.
On 24 June 2020, the NSW Police provided their report relating to their investigation into the applicant’s alleged sexual abuse of his daughter.[19]
[19] Exhibit R1, pages 49-67
According to police officer who interviewed the child on 16 June 2016, when she was seven years old, he believed the essence of the allegation and made a notation on the record of interview: “Child disclosure which appears genuine”.
The officer however did not bring a prosecution against the applicant. The officer’s reasoning was:
Unfortunately there is insufficient evidence to charge the poi with any offences due to a number of reasons. These being the victims reduced mental capacity, her inability to understand a lie, she had to be led through the interview and the unknown times frames as to when it occurred (sometime when the victim was between 2 and 6 years old).[20]
[20] Exhibit R1, page 51
I am not able to comment on the level to which the child had to be led through the interview or the words used by the child, as the police report is only in the form of a brief summary. The summary is unable to support an independent assessment of what was actually said by the child during the interview and what words, and the extent, the officer used to lead her through the complaint.
Given the officer’s comments it is understandable as to why no prosecution was brought against the applicant.
I should record that the applicant strongly denies sexually abusing his daughter. He points to the fact that the allegation arose at the time of an acrimonious marriage split. He believes his former wife manufactured a false complaint. He said:
About twelve months after the breakdown of my marriage there was a dispute about the division of marital property, and I refused to transfer my interest in the family home (to my former wife). Shortly after I was served with an apprehended violence order (AVO) and I was interviewed by the police.
I now know this interview and AVO was in respect to false allegations made by (my former wife) had levelled against me, asserting I had abused my daughter. I believe (my former wife) made these allegations to punish me for not cooperating with the transfer of the family home.[21]
[21] Exhibit A4 at [11]-[12]
The allegation that sexual offending took place and the applicant’s denial of offending cannot both be true.
The delegate gave no explanation as to why the allegation should be accepted and the denial by the applicant rejected and how it is that on the balance of the probabilities (the test that the delegate was said to have applied), he finds the allegation substantiated.
If the comment “Allegation Substantiated” in the risk assessment is meant to convey that the allegation has been substantiated either to the criminal or civil standard, then I disagree with the delegate.
The applicant provided three more positive character references in June and July 2020 to the respondent.[22]
[22] Exhibit R1, pages 45-48
On 19 January 2021, the Commissioner communicated the result of the reconsideration of the decision which had been requested by the applicant on 13 November 2020.
The Commissioner informed the applicant that he intended to serve a registration with the condition that the applicant “may engage in a regulated activity or service with vulnerable adults only.”[23]
[23] Exhibit R1, page 30
Whilst this result was an improvement on the earlier decision not to grant WWVP registration, it still denied the applicant the ability to work with children.
On 26 January 2021 the applicant sought a reconsideration of the decision of 19 January 2021.[24]
[24] Exhibit R1, pages 26-27
On 24 November 2021, the Commissioner issued a notice which affirmed the decision to allow the applicant to work with vulnerable adults but declined the application for the applicant to work with children.[25]
[25] Exhibit R1, pages 12-14
One of the reasons given in the notice as to why the applicant should not be allowed to work with children was stated in the following terms:
Based on evidence Access Canberra has obtained from Family and Community Services (FACS) and your own submissions, the risk assessment has concluded that, on the balance of probabilities, you have behaved in a manner that caused physical, psychological, emotional and sexual harm to a child.[26]
[26] Exhibit R1, page 13
I presume the “child” in question is the applicant’s daughter.
As discussed above the child’s statement to the police was replete with inadequacies. She had to be led through her complaint notwithstanding the fact that she had already discussed the allegations at least twice with her mother in May and June 2020, just before her police interview[27], she could not say when the offending occurred, she was unable to explain to the interviewing officer what a lie is. Additionally, the child also has reduced mental capacity. The extent of that mental impairment is unstated in the police report.
[27] Exhibit R1, page 106
I also note the child did not make any allegations of physical abuse or witnessing any domestic abuse when she spoke to the police.
It may be that she was not asked about these issues.
In the face of a weak allegation made by the child and a strong denial by the applicant I do not understand how the respondent concluded, on the balance of probabilities, the applicant behaved in a manner that caused physical, psychological, emotional and sexual harm to a child.
In making that comment I note:
(a)The respondent was never charged with any offence against his daughter.
(b)The respondent did not have the benefit of a conviction to rest his opinion that the applicant had sexually abused his daughter.
(c)There are no civil proceeding or civil findings which supports the fact of the alleged offending.
(d)The respondent did not have the benefit of hearing from any witnesses and seeing them give evidence and respond to cross-examination.
(e)There were no third-party witnesses who saw the alleged offending.
(f)The respondent’s decision was based solely on the papers provided by FACS and the NSW police. Those papers record:
(i) the applicant denied any wrongdoing relating to his daughter; and
(ii) the fact that the applicant alleged that the complaints were a tactic used by his former wife to try and improve her position in an acrimonious property settlement process.
On the basis of the material before the respondent, I do not think that any reasonable tribunal of fact would be satisfied on the balance of the probabilities that the applicant had in anyway sexually abused his daughter.
Having said that, and notwithstanding the criticism I have levelled at the process adopted by the respondent, the child did make a complaint of sorts to the NSW Police that her father had inappropriately touched her.
On the material before me I cannot be satisfied to a level of complete mathematical certainty that the touching did not happen.
If the “child” mentioned in the notice is meant to extend to the two other children; the two nephews mentioned in paragraph 6(b) above, then there is no adequate basis upon which the delegate could conclude that it is more likely than not that the applicant offended against those children.
The material provided by the Commissioner to the Tribunal lacks the types of material one would normally rely upon before reaching those conclusions. If it is alleged that the applicant offended against two boys who would have been about 10 and 15 at the time the allegations were made by the applicant’s wife in 2015. I would expect to see:
(a)any police reports;
(b)any copies of the interviews the police conducted with the two children;
(c)any copies of the interview the police conducted with the alleged offender;
(d)any medical reports or photos confirming any physical injuries the victims are said to have suffered;
(e)any witness statements;
(f)any forensic evidence;
(g)any other evidence that corroborates or confirms, or tends to corroborate or confirm the allegations made by the two children;
(h)any explanation as to why no charges were brought against the applicant by the police.
There are no civil proceeding or criminal charges or convictions which supports the fact of the alleged offending against the two boys.
I also note the respondent did not have the benefit of hearing from any witnesses and seeing them give evidence and respond to cross-examination.
Likewise, the Commissioner has failed to provide to ACAT any material from FACS that would allow him to reasonably conclude that FACS undertook any inquires beyond receiving the applicant’s wife’s statement as to what is said to have happened and relying upon that complaint as if the allegations were made out because of the fact of the complaint.
The Commissioner had no evidence (or has provided no evidence to ACAT) that pointed to FACS undertaking any inquiries and there is no evidence the two boys or any other witnesses were spoken to.
There are no reports (beyond the minimal notations mentioned in paragraph 6(b) and in the information provided by FACS to the applicant)[28], no witness statements, no interviews with the children, other witnesses or the applicant, no corroborative material and no explanation why the matter was either not taken to the police or why the police declined to prosecute.
[28] Exhibit R1, pages 105-128
FACS and the Commissioner seem to have taken the view that the applicant’s former wife’s complaint is sufficient for them to be satisfied that it is more likely than not that the applicant offended against each of the two nephews in the manner described.
It is not.
Any determination needs to be based on cogent evidence and on a balanced inquiry.
One person’s word and version of events is an allegation.
An allegation in the absence of further inquiries, particularly in the absence of giving the alleged offender the opportunity to answer the allegation, is not sufficient to determine whether, on the balance of the probabilities, a person has done a particular act or committed an offence.
I do not share the Commissioner’s delegate’s conclusion in the notice that the evidence relating to any of the allegations said to have been made by the three children (the nephews and the applicant’s daughter) reasonably supports a conclusion that, on the balance of the probabilities, the applicant offended against them in any way.
The review
The applicant was not satisfied with notice of decision of 14 November 2021, and on 23 December 2021 he filed an application for review of that decision at ACAT.
I note that at the time of the hearing the applicant was unemployed. He nevertheless wants an unrestricted WWVP registration as it will be helpful in obtaining work in the future.
When determining the application for review, the ACAT member hearing the application stands in place of the Commissioner and makes the correct or preferable decision based on all the information available to him or her.
Having heard from the applicant on 7 July 2022, when he gave evidence in the proceeding, I have more information available to me than the Commissioner or his delegate had at the time he made the decision contained in the notice of 14 November 2021.
On that occasion counsel for the respondent had the opportunity to cross-examine the applicant. She did so, but did not put to him that he had been in any way offended against his daughter or his two nephews.
The legislative framework
Presidential Member Robinson in Applicant 201915 v Commissioner for Fair Trading very helpfully spoke to the legislative framework applicable to this case. She noted:
2. The legislative scheme for the protection of vulnerable persons in the ACT comprises the:
(a)WWVP Act[29];
[29] Working With Vulnerable People (Background Checking) Act 2011
(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[30] with a vulnerable person as part of engaging in a regulated activity must be registered,[31] subject to some exceptions. A ‘vulnerable person’ includes a child, and a regulated activity includes a childcare service.[32]
[30]See Working with Vulnerable People (Background Checking) Act 2011 sections 8, 10
[31]Working with Vulnerable People (Background Checking) Act 2011 section 12(1)
[32] Working with Vulnerable People (Background Checking) Act 2011 section 8(1)(a), Schedule 1, item 1.3
7. In order to be registered, a person must apply to the Commissioner.[33] 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:
[33]Working with Vulnerable People (Background Checking) Act 2011 section 17
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
NoteAn 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.[34] The Commissioner may register a person subject to conditions,[35] 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.[36] Registration with conditions may be reviewed internally.[37] If a person asks for a reconsideration of a proposed condition, the Act provides:
[34] Working with Vulnerable People (Background Checking) Act 2011 section 32
[35] Working with Vulnerable People (Background Checking) Act 2011 section 42
[36] Working with Vulnerable People (Background Checking) Act 2011 section 43
[37] Working with Vulnerable People (Background Checking) Act 2011 section 44
(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.[38] 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.[39] The Commissioner’s decision on this application is subject to review in this Tribunal. The applicant seeks review under this section.[40]
[citations retained]
The question for the Tribunal
[38] Working with Vulnerable People (Background Checking) Act 2011 section 47
[39] Working with Vulnerable People (Background Checking) Act 2011 section 47(4)
[40] Applicant 201915 v Commissioner for Fair Trading [2019] ACAT 117 at [2]-[10]
The question for me to determine is whether the applicant presents an ‘unacceptable risk of harm’ to a vulnerable person, and whether a condition on his registration is necessary to ameliorate or mitigate that risk to an acceptable level.
Presidential Member Robinson[41] also addressed the issue of ‘risk’ and how it should be approached by the respondent and the Tribunal. She said:
[41] Applicant 201915 v Commissioner for Fair Trading [2019] ACAT 117
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[42] defines ‘harm’ to mean, relevantly:
[42]Online edition, retrieved 19 November 2019
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[43] 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,[44] 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.”[45] 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.
[43] See also Applicant 032018 v Commissioner for Fair Trading [2018] ACAT 77
[44] Department of Human Services v DR [2013] VSC 579
[45] Department of Human Services v DR [2013] VSC 579 at [60]
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,[46] as part of a risk assessment process.
[46] Revised Explanatory Statement to the Working with Vulnerable People (Background Checking) Bill 2010, page 4
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;[47]
[47] Working with Vulnerable People (Background Checking) Act 2011 section 24
(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);[48] and
[48] Working with Vulnerable People (Background Checking) Act 2011section 25
(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.[49] 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.
[49] WWVP Guidelines Page 4
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.[50] 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.[51]
[50] Cf disciplinary proceedings for example Council of the Law Society of the ACT v Legal Practitioner (Chanaka Bandarage) [2012] ACAT 40
[51] See for example Medical Board of Australia v Helmy (No 2) [2018] ACAT 19 at [27]
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
(Figure 1)
What is the risk posed by the applicant?
The applicant has a number of spent NSW convictions. Whilst I am particularly concerned about the assault the applicant committed on his former wife, I do not think they are relevant to the determination as to whether he should be granted a WWVP registration that allows him to work with children.
The non-conviction information the respondent relies on is that which relates to the applicant’s alleged sexual abuse of his daughter and possible issues relating to his two nephews.
As noted above the Guidelines provide that the Commissioner must not take into account any information about an applicant unless satisfied that the information is reasonably accurate.[52]
[52] Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2012 (No 1) Page 4
That information 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.
Is the information against the applicant reasonably accurate?
Two nephews
For the reasons given above I am satisfied the that allegations relating to the two nephews is not reasonably accurate and should form no part of my determinations. The allegations came from the applicant’s former wife and were apparently not investigated by the police or FACS and the applicant was never spoken to about the allegations.
Daughter
Hypothetically, if the applicant had been convicted of a criminal offence or found liable in a civil proceeding for the sexual abuse of his daughter, then when applying that fact to the ‘Likelihood’ portion in tabular form in the Risk Assessment Guidelines (Figure 1), it would be ‘likely’ or ‘almost certain’ that the sexual touching of his daughter had taken place and his risk level would be ‘Critical’ and the outcome would be ‘Catastrophic’.
This is the position the respondent seems to have taken; that it was likely or almost certain that the applicant offended sexually offended against his daughter.
On the basis of the information before me I think they were wrong to do so.
The applicant has not been charged or convicted of any offence relating to sexual offending against his daughter. He strongly denies the allegations and he would not, in my opinion, be convicted of any criminal offence given the information available to the Commissioner.
If the respondent was required to prove to the civil or criminal standard that the applicant sexually touched his daughter, then on the information available to me I would dismiss that allegation and grant the applicant a WWVP registration without any conditions.
I do not believe any reasonable tribunal of fact would make a determination that it was more likely than not he sexually offended against his daughter.
However, the WWVP Act and Guidelines do not require proof to the civil or criminal standard, they speak to risk.
As noted above I cannot conclude with mathematical certainty that any touching did not take place.
Given that conclusion the question that needs to be answered is what level of risk should be attributed to the applicant? The remaining three levels of likelihood remain found in the table in the guidelines relating to risk are rare, unlikely or possible:
Likelihood Impact Rare Unlikely Possible Catastrophic Moderate High High Major Moderate Moderate High Moderate Low Moderate Moderate Minor Very low Low Moderate Insignificant Very low Very low Low
It is difficult to decide where the applicant sits within that continuum.
I have only read a very brief summary of the child’s allegation, which did not meet the standard required to bring a criminal proceeding against the applicant and did not allow me to determine the extent she had to be led through her complaint.
I note that the issue of risk was considered by the respondent in a ‘Risk Assessment Recommendation Report’; dated 22 December 2020.[53] In this report the writer made a recommendation to the respondent.
[53] Exhibit R1, pages 32-36
The report writer noted the applicant’s denial of sexually abusing his daughter and the other relevant facts of this matter and concluded:
Despite the allegations of sexual abuse towards B, the writer notes the Applicant had been exposed to other children when he was living with family and in his involvement with the Scouts, but there had been no concerns or issues raised about his behaviour…
And:
Therefore to mitigate any possible risk posed by the Applicant towards children, the write therefore recommends for a registration with condition that the Applicant be supervised by a WWVP general registration holder in settings where children are physically present.[54]
[54] Exhibit R1, page 36
In coming to that decision the report writer must have had regard to the risk table (above) and concluded that the ‘likelihood’ was in the ‘rare’ range with the potential impact being ‘moderate’.
The Risk Assessment Recommendation Report was sent to the ‘decision maker’ for approval.
The decision maker did not accept that recommendation.
It is not clear why the respondent did not accept that advice.
At the hearing on 7 July 2022, I heard relatively little evidence from the applicant, and he was not cross-examined in relation to any of the allegations relating to his daughter (or in relation to his two nephews).
Given what I heard and saw on 7 July 2022, together with the other material before me I would agree with the writer of the Risk Assessment Recommendation Report and say that the ‘likelihood’ was in the ‘rare’ range with the potential impact being ‘moderate’. In coming to that conclusion I note:
(a)the inherent weaknesses of the complaint;
(b)the applicant’s strong denials of any offending against his daughter;
(c)the lack of any other complaints of a sexual nature against the applicant, notwithstanding the fact he lived with other children in his household and was active in the scout community;
(d)the positive character references given in favour of the applicant;
(e)the passage of time that has passed since the complaint was made to the police.
In my view the risk that the applicant poses a level of risk that could be accommodated by placing a restriction on the applicant’s WWVP registration, but that would still allow him to have work in environments where he may encounter children.
At the end of the hearing on 7 July 2022, I asked counsel for the respondent to provide conditions relating to the applicant working with children, that would be acceptable to the respondent.
Later that day counsel for the respondent provided that information in an email which in part states:
The Respondent considers that the following conditions would be appropriate (please note that the Applicant is referred to as the ‘registrant’ below):
1.The registrant must be under direct line of sight supervision at all times when engaging in regulated activities with children.
2.For the purposes of condition (1) above, the supervising person must hold an unconditional registration and be aware of the conditions imposed on the registrant’s registration.
3.The registrant must inform the Commissioner for Fair Trading in writing about any regulated activity he engages in for, or on behalf of, a particular employer or organisation. The written notice must include in what capacity he so engages, and the name and contact details of the employer or organisation for, or on behalf of whom the registrant provides the regulated activity.
4.The registrant consents to the Commissioner for Fair Trading notifying and providing information to the registrant’s employer or organisation of the reasons for the conditions imposed on the registrant’s registration.
By email of 7 September 2022, the applicant’s solicitor, Mr Shortland, responded to the conditions sought by the Commissioner. He said:
We refer to the above matter and confirm the Applicant is amenable to the making of a non-publication order in the form provided.
The Applicant believes points one through three will effectively serve to make him unemployable but does not wish to be heard on them specifically.
The Applicant remains strongly opposed to point four. The Applicant has raised concerns over the Commissioner’s previous reliance on false information about him to make adverse inferences. The Applicant is concerned a general right of disclosure to prospective employers would serve to further promulgate the false allegations against him. Accordingly, if a right of disclosure is necessary, the nature of personal information releasable by the Commissioner should be restricted to factual information only and exclude personal information based on opinion or conjecture.
I agree with Mr Shortland that the conditions sought by the respondent are very onerous and may make it unlikely that any potential employer will be prepared to employ the applicant in any role, especially in circumstances where he would be in proximity to children.
In my view the restriction proposed by the writer of the a ‘Risk Assessment Recommendation Report’; dated 22 December 2020[55]; that the “Applicant be supervised by a WWVP general registration holder in settings where children are physically present” is sufficient to protect the community.
[55] Exhibit R1, pages 32-36
I also share Mr Shortland’s concerns about the fourth condition proposed by the Commissioner.
In my view the conditions sought by the Commissioner are disproportionate to the risk posed by the applicant. In my view the appropriate conditions that should be imposed on the applicant’s WWVP registration are:
(1)the applicant must be supervised by a WWVP general registration holder in settings where children are physically present; and,
(2)the applicant must inform the Commissioner for Fair Trading in writing about any regulated activity he engages in for, or on behalf of, a particular employer or organisation. The written notice must include in what capacity he so engages, and the name and contact details of the employer or organisation for, or on behalf of whom the registrant provides the regulated activity.
I make a non-publication order suppressing the names of the applicant, the applicant’s daughter’s, the applicant’s two nephews and the applicant’s former wife.
………………………………..
Senior Member D Mulligan
| Date(s) of hearing: | 7 July 2022 |
| Solicitors for the Applicant: | Mr Henry Marjason, Marjason & Marjason Solicitors |
| Counsel for the Respondent: | Ms Anca Costin |
| Solicitors for the Respondent: | ACT Government Solicitor |
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