BHA v Children's Guardian

[2014] NSWCATAD 161

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	BHA v Children's Guardian [2014] NSWCATAD 161
Decision date:	03 October 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Sheedy, Senior Member
Decision:	The application for an enabling order is refused.
Catchwords:	Working with children clearance - application for enabling order by disqualified person - presumption the applicant poses a risk to the safety of children - whether the applicant has proven the contrary
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulations 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Commission for Children and Young People Act 1998 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Interpretation Act 1987
Cases Cited:	ADV v Commissioner for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIRComm 101 RD v Commission for Children and Young People [2007] NSWADT 299 RV v Commissioner for Children and Young People [2007] NSWADT299
Category:	Principal judgment
Parties:	BHA (Applicant) Children's Guardian
Representation:	Counsel G Moore (Respondent) Legal Aid NSW(Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1410222
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013 - Restriction against publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons

reasons for decision

INTRODUCTION

1. An order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

1. On 20 June 1988, the applicant, BHA, was convicted of indecent assault under section 61E of the Crimes Act 1900 in the District Court at Gosford. At the time of the offence BHA was 24 years old. The victim was a 10 year old boy. The applicant was released on a recognisance to be of good behaviour for a period of four years and to accept the supervision of the Probation and Parole Service.

1. The applicant's conviction is for an offence listed at clause 1(1)(d) of Schedule 2 of the Child Protection (Working with Children) Act 2012 ('the Act'). The Children's Guardian must not grant a working with children check clearance to a person convicted as an adult of such an offence by reason of section 18(1)(a) of the Act. Section 18 (1) deems those convicted of offences listed in Schedule 1 of the Act as "disqualified persons."

1. On 1 May 2014 the applicant filed an application for an enabling order under section 28(1) of the Act declaring him not to be treated as a disqualified person for the purposes of the Act. The enabling order, if made, would enable the applicant to work in any child-related work or child-related role.

1. The applicant stated in his application to the Tribunal that he is seeking the enabling order in order to work in hospitals. In his oral evidence the applicant described the work he is seeking as security guard/wardsman in a hospital.

1. The respondent opposes the order sought.

The working with children legislative scheme

1. The object of this Act is to protect children by not permitting disqualified persons, without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).

1. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).

1. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. A breach of section 8(1) is an offence.

1. The definition of "child related work" includes a "worker engaged in work in a child related role." (See section 6(1) of the Act).

1. Section 6(2) of the Act provides that the work referred to for the purpose of section 6(1)(a), is work for, or in connection with any of the activities, as listed in section 6(2)(a) to (m), and which are declared by the regulations, to be child related work. Included in the activities is "the provision of health care in wards of hospitals where children are treated and the direct provision of other child health services." (See section 6(2)(c) of the Act.)

1. Relevantly The Child Protection (Working with Children) Regulations 2013 ('the Regulations') declares "work by persons (other than health practitioners who provide health and care services in paediatric or adolescence health services is child related work." ("health services" includes a hospital.) (See regulation 6(3) and 6(5) of the Regulations.)

1. There is no dispute between the parties and no issue raised with the Tribunal that the work BHA proposes undertaking in hospitals requires that he have the relevant clearance.

1. Part 3 of the Act deals with working with children clearances. That Part is divided into 6 Divisions as follows:

(1) Division 1 sets out the classes of clearance. There are essentially two classes of clearance, a volunteer clearance authorising a person to engage in unpaid child-related work and a non-volunteer clearance authorising a person to engage in paid and unpaid child-related work: (See section 12 of the Act)

(2) Division 2 deals with applications for clearances: (See section 13 of the Act) Such applications are made to the Children's Guardian;

(3)   Division 3 deals with risk assessment of persons who have made an application for a clearance or who are holders of a clearance;

(4)   Division 4 deals with determinations by the Children's Guardian, of applications for clearance;

(5)   Division 5 deals with the duration of a clearance (5 years) and the circumstances in which a clearance can be cancelled: (See sections 22 to 24);

(6)   Division 6 - establishes the working with children register.

1. Section 18(1) of the Act provides that the Children's Guardian must not grant a working with children check clearance to a 'disqualified person'. That section is in the following terms:

18 Determination of applications for clearances

(1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

1. The word 'conviction' is defined in section 5(1) to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to conviction.'

1. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the New South Wales Civil and Administrative Tribunal, of decisions of the Children's Guardian, including a refusal to provide a working with children check clearance. Where a person is a 'disqualified person,' section 18(1)(a) of the Act operates as a mandatory refusal. Accordingly, on administrative review, the same mandatory refusal provision would apply.

1. Section 28 deals with 'disqualified persons' and is in the following terms:

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order" ). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order" ). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person's clearance has been cancelled,

because the person is a disqualified person.

(4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

1. Section 30 sets out how an application under Part 4 of the Act is to be determined by the Tribunal. It is in the following terms:

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person's present age,

(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(k) any other matters that the Children's Guardian considers necessary.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter.

EVIDENCE

1. The evidence before the Tribunal at the hearing consisted of:

a) The General Application Form filed on 1 May 2014

b) A Psychologist's Report dated 15 July 2014, by Dr Christopher Lennings, clinical psychologist in regard to the applicant (Exhibit A1)

(c) A bundle of documents filed on behalf of the respondent on 28 July 2014 (Exhibit R1)

1. The applicant and Dr Lennings were sworn and gave oral evidence.

CONSIDERATION

Nature of the proceedings

1. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ[2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People[2002] NSWIRComm 101 at [130]."

Presumption

1. It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children (see section 28(7) of the Act.) The standard of proof to be applied in these proceedings is the civil standard, that is, the balance of probabilities.

Enabling order cannot be made subject to conditions

1. An enabling order made pursuant to the Act cannot be made subject to conditions. (See section 28(8) of the Act.)

Disclosure

1. The Act requires the applicant to make full disclosure of any matters relevant to the application. (See Section 28(5) of the Act)

Risk to the safety of children

1. In this application, the issue for determination is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children. The Tribunal must have regard to the matters contained in section 30(1) of the Act in deciding this issue.

1. As noted, section 28(7) of the Act presumes that the applicant does pose a risk to the safety of children.

1. The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V[2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would ...exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

1. These remarks of His Honour have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People[2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15], L v Commission for Children and Young People & anor [2008] NSWIRComm 195 at [31], FZ (supra) at [60].

1. The applicant accepts that the Tribunal could only make an order under the Repealed Act if it found that, in all the circumstances there was a real and appreciable risk in the sense that it was a risk greater than the risk of any adult preying on a child.

1. Ms Allan, solicitor for the applicant, submitted that risk in the Act has a different meaning to the meaning of risk in the Repealed Act and that guidance to the meaning of risk in the Act can be derived from consideration of the Second Reading Speech given by the Minister, Mr Dominello, on 13 June 2012.

"The Administrative Decisions Tribunal will now need to determine whether an applicant presents a serious risk to children in the whole range of child-related work and the child -related activities ......If the tribunal cannot be sure that the applicant does not present a serious risk it will not be able to order that the applicant be granted a clearance....The way risk is understood will be critical to the considerations of both the commission and the Administrative Decisions Tribunal. All adults can present a risk to children. The bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the bill proposes that to bar a person from working with children the risk must be significant."

1. Ms Allan argued that the risk contemplated by the Act is a serious or significant risk to the safety of children and therefore unless the Tribunal finds BHA a serious or significant risk to the safety of children, then he must succeed in his application before the Tribunal.

1. Dr Lennings is a clinical psychologist instructed by the applicant to conduct a risk assessment. Dr Lennings report was filed with the Tribunal (Exhibit A1) and will be referred to in greater detail later in these Reasons for Decision. Dr Lennings concluded that BHA presents a moderate risk to the safety of children. Ms Allan submits that if the Tribunal accepts Dr Lennings' conclusion that BHA poses only a moderate risk to the safety of children then this moderate level of risk is not sufficient to satisfy the test in the Act that BHA poses a serious or significant risk to children, and his application must succeed.

1. The remarks of Young CJ in Commissioner for Children and Young People v V (supra) have continued to be cited with approval, by the Administrative Decisions Tribunal and then the NSW Civil and Administrative Tribunal in construing the meaning of 'risk' as it appears in section 28 of the Act. In BYR v Children's Guardian[2013] NSWADT 310 at paragraph 40 when Deputy President Higgins as she then was when considering His Honour's remarks wrote :

'In my view, the remarks of His Honour equally apply to the meaning of 'risk' as it appears in s 28 of the Act.'

1. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian[2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90 and most recently in BFX v Children's Guardian [2014] NSWCATAD 115. In this latter case Senior Member Anderson wrote:

43 'It is accepted that the risk should not merely be any level of risk but must be "a real and appreciable risk": see BYR v Children's Guardian[2013] NSWADT 310, at [38], [39] ; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V[2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).

44. The risk must also be linked "to the safety of children": section 28 (7) of the Act; Commission for Children and Young People v V (supra), at [42]. This decision does not make reference to the High Court decision in M v M[1988] HCA 68; 166 CLR 69, and the discussion there of "unacceptable risk" of harm.'

1. Senior Member Anderson also had cause to consider the Second Reading Speech and concluded that the previous decisions identifying real and appreciable risk to the safety of children is appropriate in the interpretation of the current Act.

45. 'The second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill for the Act be read a second time in that House, may be considered in the interpretation of a provision of the Act to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision: section 34(2)(f) of the Interpretation Act 1987.

46. The 2nd reading speech for the bill which became the Act, given by Mr Dominello, the Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contained in the following:

"All adults can present a risk to children. The bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

47. In the following paragraph of the speech the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

48. These extracts from the 2nd reading speech assist in the interpretation of what is meant by "poses a risk to the safety of children" in section 28 (7) of the Act. It can be seen that the previous decisions identifying a real and appreciable risk, or unacceptable risk, and linking it to the safety of children, with respect to those judicial pronouncements, is appropriate in the interpretation of the provisions of the current Act.'

1. The consequence of defining risk in the way Ms Allan has invited the Tribunal to do would be that a higher threshold test to refuse clearances would be imposed, thereby making it less onerous to obtain a clearance, resulting in a corresponding reduction in the protection of children by the Act compared to the Repealed Act.

1. The Minister's remarks must be read in the context of the whole Second Reading Speech. The opening paragraph of the Second Reading Speech does not support the result as Ms Allan has submitted. Instead the opening paragraph provides that the Act has been designed to provide greater, not less, protection for children.

"The purpose of the Child Protection (Working with Children) Bill 2012 is to introduce a new Working With Children Check that will provide greater protection for the children of New South Wales. The new Working With Children Check improves on the current model in four key ways: it provides the same Working With Children Check for all categories of work, including paid workers, volunteers, self-employed people, authorised carers and adults sharing their homes. It accesses full criminal histories instead of a defined subset of records, and continuously monitors new New South Wales records to manage risks that occur after a person has received clearance to work with children. It has only two outcomes: a clearance or a bar, so employers can no longer engage a person assessed as a serious risk. It is easier to operate, with streamlined on-line systems and centralised operations."

1. Additionally, the opening paragraph summarises what the Minister describes as four "key ways" the law is to be changed. He makes no mention of changing the risk threshold to work with children to make it easier for those convicted of relevant offences to be able to work with children. Undoubtedly such a change to the law designed to protect children, would have been a "key change."

1. Section 33 of the Interpretation Act 1987 requires that in the interpretation of a provision of an Act a construction that promotes the purpose or object underlying the Act shall be preferred to a construction that would not.

1. The object of the Act is to protect children by requiring those persons engaged in child related work to be eligible to obtain clearances and effectively prohibiting disqualified persons without clearances or an enabling order from engaging in that work. (See section 3 of the Act.) Only preventing persons who pose a serious or significant risk to the safety of children from working with children would not, in my view, promote the objects of the Act.

1. The Tribunal cannot accept that the Second Reading Speech, read as a whole, can support Ms Allan's submission that the risk in section 28(7) is a serious or significant risk.

1. In my view, the remarks of Young CJ in the Commissioner for Children and Young People v V apply to the meaning of 'risk' as it appears in section 28 of the Act.

1. It follows that Ms Allan's submission that if the Tribunal accepts BHA risk to children is anything less than a serious risk then it must grant an Enabling Order is rejected. The Tribunal must determine whether the applicant has provided sufficient evidence to rebut the presumption that the applicant poses a risk to the safety of children, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child, linking the risk to the safety of children.

1. The evidence is now considered under each of the subheadings of section 30(1) of the Act.

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

1. The police facts of the index offence are contained in the tender bundle as follows:

"About 12:30 PM on 7 September 1986 the victim spoke to the offender in Tuggerawong Road, Tuggerawong. The victim then left the offender and went to a public wharf at Wyongah and then began fishing. Shortly after the offender approached the victim and sat beside him on the wharf. After a brief conversation the offender then placed his hand on the front of the victim's shorts and rubbed the area of the victim's genitals. The victim told him to stop or he would scream and with that the offender got up and walked from the jetty. The victim then reported the matter to his parents who informed police. The offender was later arrested and conveyed to Wyong police station where he was charged."

1. BHA pleaded guilty to the offence of indecent assault and was released on a recognisance to be of good behaviour for a period of four years and to accept the supervision of the Probation and Parole Service.

1. In his oral evidence BHA denied he committed this offence. His explanation of the event was that his mother was ill with leukaemia and she was at the end stage of her illness. He went for a walk to the shop, got a drink and packet of chips and went to the lake where he was upset and crying about his mother.

1. Whilst there a young boy came along. BHA said he mentioned to the boy which side of the jetty not to fish from and the boy replied that he knew what he was doing.

1. A little while later the boy got his line snagged and BHA helped him with this. He said that whilst he was helping him his hand touched the boy's knee accidentally. The boy mentioned to BHA that he wanted to look at BHA's penis. BHA said he knew the boy and his parents and knew the boy's parents would not like the boy saying such a thing.

1. BHA said the boy had told him that if he did not let him look at his penis he would report a child rape. Later that night the police charged BHA with touching the boy on "the private parts." BHA told the Tribunal that he pleaded guilty to the offence "under instructions" from his barrister and solicitor. He also said that as far as he knew he was only charged with assault.

1. Dr Lennings reports (in paragraph 28) that BHA told him that he did not even touch the boy, but the boy asked if he could see his penis and when he said no the boy said that he could charge him with rape. Dr Lennings reports that BHA told him he did not want to put any additional pressure on the child (his parents were going through a messy divorce) and his barrister had suggested that he should plead guilty as a strategy to minimise his sentence.

1. The respondent's tender bundle included a report from the Probation and Parole Service dated 20 June 1988. The explanation in the Probation report was:

"When discussing the offence BHA stated that had a ...near the boy and after freeing a tangled fishing line he brushed the boys leg with his hand. BHA claimed at no time had he touched the boys genital area and he could not recall discussing anything of a sexual nature. He stated he had left the area on being asked by the boy to go."

1. The report then records that BHA "initially told this Service that he had no sexual interest in the boy. At a later interview he conceded in his own words that "maybe the intent was there." At an even later interview he acknowledged that he had upset the boy and expressed sorrow at causing him distress.

1. The applicant, in denying the disqualifying offence, is effectively asking the Tribunal to 'set aside' or disregard that conviction for the purpose of these proceedings.

1. If the Tribunal was at liberty to effectively 'set aside' or disregard the conviction for the purpose of proceedings under the Act, the Tribunal would require clear and cogent evidence disputing the facts that underpin the conviction. BHA's evidence falls substantially short of this standard.

1. The Tribunal finds BHA's evidence cannot be accepted as honest or reliable. His accounts of the incident and his conviction were inconsistent. When convicted the applicant was legally represented, he pleaded guilty and did not appeal the conviction. Following his conviction when being supervised by the Probation and Parole Service BHA appeared to make some concession towards acknowledging committing the act when he told the Probation and Parole Service that "maybe some intent was there" and that he may have caused the boy distress. In his oral evidence to the Tribunal BHA said his hand only touched the boy's knee accidentally. He told Dr Lennings he did not touch the boy (paragraph 28).

1. BHA told the Tribunal he pleaded guilty to the offence because he was instructed to do so by his lawyers, yet he told Dr Lennings he did so to protect the boy from having to give evidence and to minimise his sentence.

1. The Tribunal also considered BHA's evidence in relation to the offence as unreliable as, when giving evidence regarding his inviting children into his house to play PlayStation, which is referred to in more detail later in these Reasons for Decision, BHA told the Tribunal he did not mention this conviction (to the children's mother) as he had forgotten about it. Yet the evidence BHA gave to the Tribunal was very detailed and included what items he purchased at the shops, the conversation with the boy and which side of the jetty the boy was fishing from.

1. The Tribunal does not accept that BHA did not commit the disqualifying offence but considers that the offence can be viewed as being towards the lower end of the scale of seriousness of that offence because the offence was constituted by touching rather than some invasive contact, there was an absence of overt force and the penalty imposed by the court was a good behaviour bond.

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

1. The offence is recorded as being committed 28 years ago.

1. The Applicant has two convictions since this offence. The first is a conviction for Offensive Behaviour in 1987 when he was convicted in the Local Court at Wyong and fined $200. This offence related to urinating on a shrub in his front lawn in view of a female (adult) neighbour.

1. The second conviction was for Contravene Apprehended Violence Order in the District Court at Dubbo (on appeal from the Local Court at Dubbo), in 26 February 2003, where the matter was dealt with under section 10 of the Crimes (Sentencing Procedure) Act 1999.

(c) the age of the person at the time the offences or matters occurred

1. At the time of the offence the applicant was 24 years of age.

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

1. The victim was aged 10 and because of his age he was a vulnerable person.

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person

1. There was a 14 year age difference, the victim being a child, and although the victim was known to the applicant, there was no relationship between them.

(f) whether the person knew, or could reasonably have known, that the victim was a child

1. The applicant knew the victim was a child.

(g) the person's present age

1. The applicant's age at the time of the hearing was 52 years.

(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred

1. The applicant was convicted of an Indecent Assault on a female infant on 2 May 1975, when he was 13 years old.

1. In 1981 the applicant was convicted for driving in a manner dangerous, was fined $300 and was disqualified from driving for a twelve month period.

1. In 1986 the District Court at Newcastle the applicant withdrew his appeal for convictions in the Local Court for stealing and malicious injury for which he was sentenced to 5 months imprisonment.

1. In 1996 the applicant was acquitted of charges of indecent assault, buggery and sexual intercourse without consent, involving his cousin.

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

1. The applicant asserts that as he has never committed any offences there can be and is no likelihood of a repetition.

1. Dr Lennings assessed BHA and concluded he had a moderate risk rating and that his profile raises concerns as to the possibility of opportunistic offending against young males in particular.

1. Dr Lennings advised that if the applicant was working with children, due to his ongoing preoccupation that if there was an opportunity he may be willing to take it and to ensure that children were safe it would be best if BHA was chaperoned.

(j) any information given by the applicant in, or in relation to, the application

The incident involving "Harry"

1. Dr Lennings recorded an incident in paragraph 13 of his report. Much was made of this incident in these proceedings and it is worth recounting the paragraph in its entirety.

"BHA spontaneously told me of an event two years ago for which no charges had been laid in which he alleges that a 13 or 14 year old boy from across the street from where he was living in Dubbo allegedly approached BHA and tried to insert his hand down BHA's pants in order to play with his genitals. BHA told the boy to go away. However, once again, a pattern of behaviour raises concerns about the nature of BHA's interaction with young children, particularly boys and the potential for cognitive distortions around sexualised behaviour. BHA tells me that when the boy across the road tried to fondle him he had no sexual feelings and no sense of arousal to that behaviour."

1. In his oral evidence BHA denied the event happened as Dr Lennings described it. He said he had told Dr Lennings that the boy, whose name is Harry, came over and Harry put his own hands down his own pants and "adjusted his package."

1. In cross examination BHA confirmed that Dr Lennings accurately recorded all the elements of the incident, including the time, the age of Harry and the fact that he had told the boy to "go away." The only thing Dr Lennings was mistaken about was that the boy did not try and put his hands in BHA's pants.

1. BHA was asked what it was about this incident that caused him to raise it with Dr Lennings as there did not appear to be anything extraordinary or memorable about a boy "adjusting his package." BHA replied that he wanted to tell Dr Lennings everything.

1. BHA also said that this incident took place in the front yard and his neighbour Kevin was also there. Harry was sexually into other boys and men and BHA knew this from the way Harry walked and talked. He also said he told Dr Lennings of another incident involving Harry when Harry had asked another neighbour, an adult male, to show him his penis so they could compare measurements. BHA noted that this incident had not made it into Dr Lennings' report.

1. In his oral evidence Dr Lennings confirmed that what was told to him by BHA is what is written in his report and he is certain that he did not mishear or misunderstand BHA. He described BHA as having a 'slight slur" but said he was able to understand him clearly. Dr Lennings recalled that when BHA spontaneously told him about the incident he recorded in paragraph 13 he thought it was "quite odd" and he therefore explored the incident in some detail with BHA.

The 1975 Conviction

1. BHA was convicted of indecent assault on a female infant on 2 May 1975 when he was 13 years old. BHA pleaded guilty to the charge at the Children's Court at Yasmar and he was released on probation for a period of 12 months.

1. BHA told the Tribunal he does not remember the incident though he does know it is on his criminal history. He then told the Tribunal that he admitted it because he was coerced by the police and the police coerced him to plead guilty.

1. In answer to a question from Mr Moore in cross-examination about the offence BHA again said he could not remember what took place as it was such a long time ago. Then in answer to a question as to how he was able to remember the police coerced him into pleading guilty yet was unable to remember any details of the incident, BHA replied that the police had coerced him before, in 1986. He said in 1975 he was only 13 and impressionable and he assumed they coerced him because that is what they do. He then said he assumes that he was coerced because he pleaded guilty, although he did not assault the girl.

Malicious Damage

1. BHA agreed he appealed his conviction and then withdrew his appeal. He said the charges were for malicious damage to fire brigade vehicles and stolen fuel.

1. In the Pre-Sentence Report dated 16 May 1986 it was noted that the applicant:

"...denies all four charges. He claimed that he was charged because a personal article of his was found near the scene of the offence."

1. In cross examination by Mr Moore BHA said he presumes he was legally represented in these proceedings. He said he was not guilty of the offences of which he had been convicted, explaining that the police had approached a neighbour to perjure himself and give evidence that he saw BHA commit the offence. BHA said he knew this because the neighbour told him once he had been released from gaol.

1. BHA view is that the magistrate found him guilty because the magistrate was "sick of" damage being caused to the community's property.

1. Mr Moore put to BHA that he was a person who refuses to take responsibility for his criminal behaviour. BHA did not accept this as he said he has not committed any offences.

'Open House Policy'

1. Dr Lennings' referred in his report to what he termed BHA's 'open house policy.' There was a considerable emphasis placed on this in the proceedings and it is therefore reproduced;

"14. I also discussed with BHA a significant assault that took place on him around about 2005 when apparently a neighbour took to him with a machete, cutting him quite severely and with him ending up requiring the amputation of his little finger. It appears that what was occurring at this time was that rumours were spreading in the local community that BHA was a paedophile. Although the source of these rumours is unclear it would seem that somehow or other his police record had become known by members of the community. BHA didn't help his cause very much because he seemed to provide an open house policy to children in the area to come to his home and play on his PlayStation. This was an extraordinary lack of reputation protection behaviour on BHA's part given firstly he was aware of the accusations in the community, secondly he had been arrested on several occasions for offensive behaviour towards children (although only two convictions have occurred [three if the masturbation charge is counted as a sexual offence] and thirdly it just doesn't seem to have been very commonsensical behaviour. His view was that it was better that children come to his place and play PlayStation "to get them off the street" because he was living in the [ ] which is well-known for significant problems with the children there. He tells me mail deliveries have been suspended into that area for a couple of years because of the attacks on mailmen by children in the area. However such behaviour does suggest some disquieting aspects to BHA, such that his failure to protect his reputation may legitimately raise issues about whether he has a sublimated sexual orientation towards children, and sit uncomfortably with his criminal record. Given that BHA denies sexual attraction to children it remains difficult to interpret such behaviour, but caution suggests it may reflect an unconscious predilection for association with vulnerable children."

1. BHA told the Tribunal that Dr Lennings was mistaken about there being an open house policy and that it was only one family who would come to his house to use the PlayStation, brothers, AB who is around 12 and AC who is around 8. For about a year they came regularly either once or twice per week. There was no one else there except sometimes AB's friend, who was about the same age.

1. It was BHA' evidence that he had told AB and AC's mother that he was accused of interfering with his cousin but was found not guilty. He said he did not tell her of his conviction in 1988 because he had forgotten about it and nor did he mention his first conviction though he did tell her he had been to gaol for malicious damage and stealing.

1. In relation to whether BHA said that children were being invited into his home to play PlayStation Dr Lennings was again certain that BHA was not referring to one family only. Dr Lennings' oral evidence was that BHA specifically said he was getting the children "off the street" and he was performing a "service." Dr Lennings said he was surprised that BHA would do such a thing and therefore asked BHA a number of questions around this point.

1. Ms Allan submitted to the Tribunal that some of the incidents Dr Lennings had relied upon to form his view that BHA posed a moderate risk to the safety of children may not have happened or may not reflect what BHA was trying to tell him. Whilst Dr Lennings was sure that he heard him correctly, Ms Allan submitted that there is always the possibility that he misheard BHA particularly as BHA is sometimes somewhat slurred in his speech.

1. Ms Allan argued the Tribunal could draw this conclusion as the Tribunal had had the opportunity of hearing from BHA and it should have been clear to the Tribunal that BHA's speech is not always clear, he has a tendency to mumble and slur his words and he often had to be asked to repeat what he said and to clarify some of his explanations were not particularly clear. In Ms Allan's submission it is not a "big leap" to find that it is quite possible that Dr Lennings misunderstood the incidents with Harry and the open house policy and further it is not a "big jump" to accept BHA's version of how these events had happened.

1. Ms Allan submitted on behalf of the applicant that Dr Lennings' conclusion of moderate risk was based, to a significant degree, on either or both the incident regarding 'Harry' and the 'open house policy' and Dr Lennings understanding of these events was incorrect. If the Tribunal accepts that Dr Lennings got one or both of these incidents wrong then his assessment of moderate risk cannot be accurate and should not be accepted by the Tribunal.

1. Ms Allan also submitted that the incidents where the 13-year-old boy adjusted himself is not an unlikely event and that this needs to be taken into consideration when thinking about the moderate risk finding.

1. The Tribunal accepts Dr Lennings' evidence that he accurately reported what he was told by BHA and he did not misunderstand him in relation to the incident regarding Harry and 'the open house policy.' The Tribunal did not consider that BHA's difficulty with his speech was such that it would impede understanding of BHA to any significant degree and additionally the Tribunal accepted Dr Lennings explored the subjects at some length with BHA, leaving little room for misunderstanding. Nor did the Tribunal accept as plausible that BHA would have told Dr Lennings of the incident involving Harry if his description to the Tribunal of the incident were true. The corollary of this is that BHA's evidence in relation to the incident involving Harry and the open house policy is rejected. The Tribunal considers it is likely that BHA changed his account of these events when giving evidence to the Tribunal as he, by then, understood the relevance of these matters in Dr Lennings forming his opinion.

(j) any information given by the applicant in, or in relation to, the application,

1. The Tribunal has considered the information given by the applicant and has referred to that evidence in other subparagraphs of section 30(1).

(k) any other matters that the Children's Guardian considers necessary

1. BHA was charged with, but acquitted of, Offensive Behaviour in April 1986, approximately 4 months prior to the disqualifying offence.

1. BHA made a handwritten statement in the proceedings to the NSW Police in relation to this charge and the statement forms part of the Respondent's tender bundle. In that statement the applicant wrote:

"I came home about two-thirty pm from Wyong, where I put my food stuff away. I then when (sic) over to the tollets (sic), when I was in there a young boy look under the side wall, when I saw him I told him to go away and stop looking. Because I was playing with myself. The young boy left after I said don't look. The next thing I knew about it was when the police came around to my place."

1. Although BHA was acquitted of an offence he admitted that a young boy approached him whilst he was masturbating in a public toilet. Dr Lennings considered this incident and BHA's record and opined that "what the criminal record indicates is a disturbing pattern of behaviour suggests an almost exhibitionist like feature to BHA's behaviour, and one that involves children."

CONCLUSION AND ORDERS

1. The Tribunal does not accept BHA has been a witness of truth and finds that the applicant has not accepted responsibility for his offending and blamed others for his convictions, including the victims (in making the allegations) his legal representatives (for instructing him to plead guilty) and the police (for coercing him to admit offences/plead guilty).

1. Ms Allan submitted that even if the Tribunal were to conclude that the applicant was not a witness of truth and/or that he did not accept responsibility for his actions, such findings would not be sufficient to lead to a conclusion that BHA is a risk to children.

1. Ms Allan cites as authority for this proposition the case of R v Commission for Children and Young Persons [2002] NSWIRC 101. She said this was a case where there was an issue about how many times the plaintiff committed the offending behaviour and the court found it was not able to form the view that the applicant's dissembling of the number of occasions of the offending behaviour took place did not impinge in any significant way on whether the applicant poses a risk to the safety of children.

1. Although Ms Allan did not direct the Tribunal to a specific part of the decision of Haylen J in R v New South Wales Commission for Children and Young People (supra) it seems she was referring to the following of His Honour's remarks:

'136 The issue then arises as to what the Commission is to make of the fact that the applicant has, for a considerable time, been reluctant to face and be truthful about the number of occasions on which he touched the young child's breasts. During argument, I suggested to counsel for the respondent Commission that, in the way the issue was being pursued, the test in s 9(4) of satisfying the Commission that the applicant did not pose a risk to the safety of young children would be replaced by a test as to whether or not the applicant was a credible witness on an issue related to the offence which brought him before the Commission.

137 Kavanagh J faced a similar issue in "G" v J & H [2001] NSWIRComm 69. In that case, the respondent submitted that the applicant was not a man of truth but her Honour noted that the question before the Commission was that, even if on the evidence the applicant was found not to be a man of truth, did that finding make him a risk to the safety of children? Her Honour concluded that she could not accept, even if she was unable to find the applicant a witness of truth as to some matters of fact, that such a finding necessarily translated to a finding that he posed a risk to the safety of children (see par 59 and par 60). In this case, I am not able to form the view that the applicant's dissembling about the number of occasions on which this action took place impinges in any relevant way upon the consideration of whether or not the applicant poses a risk to the safety of children. Dr Allnutt accepted, and it appeared to flow from the Hanson and Bussiere article so heavily relied on by the respondent Commission, that minimisation and denial in relation to an offence has never been regarded as a reliable indicator of recidivism. Dr Allnutt spoke of the natural tendency of offenders to minimise their offence either because of their shame or because of a reluctance to publicly expose the extent of their abhorrent conduct. In other proceedings under the Prohibited Employment Act, I have received expert evidence to a similar effect.'

1. In R v NSW Commission for Children and Young People the applicant initially denied the allegations of abuse to the girl's mother, the police and his family, but shortly after being first exposed he admitted his guilt and His Honour said:

'138 It also seems to me important that a distinction be made between denial of the offence and minimisation of the extent of the conduct which constituted the offence...........To his credit, the applicant finally came to the position where he could no longer continue to live in denial of his conduct and he informed his wife, his local priest and his father. This acceptance of guilt is of significance because of the active and senior role he was playing in his church ........... The applicant was then able to change his plea in the Local Court and was given a three year good behaviour bond which apparently passed without incident."

139 These were not the only occasions on which the applicant had to confess his guilt. Before the Local Court there were a number of character witnesses who made it apparent from their written references that they were aware, in general terms, of the behaviour which had brought the applicant before the court. Similarly, in evidence before this Commission the five witnesses who gave evidence in the applicant's case had all been told of the offence and the fact that it involved a child under the age of consent. The added importance of these occasions where the applicant has had to confront his guilt is that it, at least in part, answers the respondent Commission's submission that the applicant has not adequately acknowledged his conduct. '

1. The Tribunal accepts the proposition that a finding that an applicant is not a witness of truth to some matters of fact or a finding that an applicant does not accept responsibility for his actions does not necessarily translate to a finding that the applicant is a risk to children.

1. It is important to note the distinction His Honour made between cases where there where there is denial of offending, as in BHA's case, and a denial of the extent of the offending, as in R's case. His Honour too raised the relevance of acknowledgment of offending conduct when considering whether the applicant is a risk to the safety of children.

1. BHA denies all offences for which he has been convicted, blaming the victims for misrepresenting the truth, the police for coercion and his legal representatives for his guilty pleas. The failure by BHA to admit any guilt results in his not confronting his conduct. The Tribunal cannot be satisfied that he appreciates the gravity of his conduct or its effect.

1. BHA's claim of innocence in relation to the disqualifying offence means that the Tribunal could not explore with him any motivation in relation to the offence and/or any other circumstances relating to the conduct giving rise to the offence. As a result the Tribunal cannot predict how the applicant would manage if again placed in similar circumstances.

1. The Applicant presented as an unreliable witness. The matters reflecting adversely on his credit and the matters of inadequate disclosure together persuade the Tribunal that it could not be confident that BHA would have disclosed anything adverse or anything else that he was obliged to disclose under the Act unless it would support his application.

1. Ms Allan's final submission was that the length of time that has passed since the offence and the applicant's relatively good behaviour for the past 28 years should satisfy the Tribunal that the enabling order should be made.

1. Dr Lennings assessed BHA using STATIC 99 which he described as the "gold standard instrument for the assessment of risk." He also assessed BHA against the dynamic risk factors proposed by 'The Risk for Sexual Violence Protocol' and exercised his clinical judgment. Dr Lennings concluded that:

"BHA presents with an overall moderate risk rating. He continues to report behaviour that indicates a lack of caution, at the very least, in his response to young people, mainly boys. His profile raises concerns as to the possibility of opportunistic offending against young males in particular."

1. Other than Dr Lennings conclusions being based on a misunderstanding of what he was told by BHA which was dealt with and rejected earlier in these Reasons for Decision, there was no challenge by the applicant, to Dr Lennings' rating of risk as moderate. The Tribunal considers Dr Lennings to be well qualified and highly experienced in his field and his reasoning and opinion were persuasive.

1. The applicant maintains his innocence in relation to the disqualifying offence (and indeed all offences for which he has been convicted).

1. Mere denial of the disqualifying offence is not enough to discharge the onus on the applicant of demonstrating that he does not pose a risk to the safety of children. On the applicant's version he has never posed a risk to the safety of children because he has never offended against children.

1. In the absence of evidence from the applicant that he accepts the conviction and that attempts to put his offending behaviour in context, or of cogent evidence disputing the facts that underpin his criminal record, the Tribunal is left only with the applicant's assurance that he does not pose (and he would say he has never posed) a risk to the safety of children. His credibility is diminished by the evidence he has given in the proceedings such that the Tribunal cannot place any weight on his assurance.

1. He has relied mainly on his own argument that because he has not been guilty of any offences the Tribunal should be satisfied that he has discharged the onus as to risk. The Tribunal cannot be satisfied on the evidence that the applicant has discharged the onus. He has not established that he is not a risk to the safety of children.

1. In all the circumstances the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety of children and the application for an enabling order is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

14 October 2014 - formatting

Amended paragraphs: paragraph numbering

Decision last updated: 14 October 2014