BKN v Children's Guardian

[2014] NSWCATAD 213

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BKN v Children's Guardian [2014] NSWCATAD 213
Hearing dates:	27 October 2014
Decision date:	05 December 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Sheedy, Senior Member
Decision:	The decision of the respondent is set aside and in substitution thereof a decision that the respondent grant to the applicant a working with children check clearance authorising the applicant to engage in paid and unpaid child-related work.
Catchwords:	Administrative Law - review under section 27 Child Protection (Working with Children) Act 2012 - refusal of working with children check clearance - the correct and preferable decision - whether the applicant poses a risk to the safety of children - offences committed against adults more than a decade ago
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2014 Commissioner for Children and Young People Act 1998 Civil and Administrative Tribunal Act 2013 Criminal (Sentencing Procedure) Act 1999
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v Office of the Children's Guardian (No 2) [2014] NSWSATAD 164 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 R v Commission for Children and Young People [2002] NSWIRComm 101 RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140. Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.
Category:	Principal judgment
Parties:	BKN (Applicant) NSW Office of the Children's Guardian (Respondent)
Representation:	BKN (Applicant in person) Crown Solicitor (Respondent)
File Number(s):	1410390
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this 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. The Applicant in these proceedings is referred to as "BKN". On 7 July 2014, the Children's Guardian made a decision to refuse to grant BKN a Working with Children Check clearance. On 23 July 2014 the applicant BKN applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Child Protection (Working with Children) Act 2012 ('the Act').

1. On 23 August 2013 the applicant, who works as a bus driver, applied for a Working with Children Check clearance from the respondent.

1. The applicant requires a Working with Children Check clearance because, in his current role as a bus driver he provides transport services which is child-related work as defined in the Act. (See section 6(2)). The applicant is not able to work in this role unless he holds a working with children check clearance. (See section 8).

1. It is not in dispute that the applicant has been convicted of an offence which triggered the respondent conducting a risk assessment to determine whether the applicant poses a risk to the safety of children. (See clause 1(1)(b) of Schedule 1 and Part 3, Division 3 of the Act).

1. On 5 June 2014, the respondent forwarded a 'Notice of Proposed Refusal of Application' under section 19 of the Act to the applicant. The purpose of this notice was to give the applicant the opportunity to submit documents to assist in the respondent's risk assessment. The respondent did not receive a reply to the notice and consequently proceeded to finalise the review in the absence of any documents from the applicant.

1. On 7 July 2014 the respondent refused the Working with Children Check clearance as the respondent determined that the applicant poses a risk to children. It is that decision which is the subject of this review before the Tribunal.

1. The applicant's evidence to the Tribunal was that he did not receive the letter from the respondent and cites this as the reason no documents were provided. The applicant has provided documents in support of his application before the Tribunal.

1. On 18 August 2014, on application by the applicant lodged on 23 July 2014, a differently constituted Tribunal granted a stay of the Children's Guardian's decision.

1. The issue to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

1. The object of the 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 transport services. (See section 6(2)(l) of the Act.)

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;

(i)   Section 15(1) provides that the Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance to determine whether the applicant poses a risk to the safety of children.

(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'. (Broadly these include persons convicted of an offence, committed as an adult and specified in Schedule 2 of the Act.)

1. Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

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 NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian, including a refusal to provide a working with children check clearance.

(i) 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the AdministrativeDecisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) A person whose clearance is cancelled by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act1997 of the decision within 28 days after notice of the decision was given to the person.

(3) A person who is subject to an interim bar imposed by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions ReviewAct 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

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

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:

(i) 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.

1. In determining the application under s 27 of the Act the Tribunal is to decide what the correct and preferable decision, having regard to all the material before it, including material which may not have been before the Children's Guardian. (See s 63 Administrative Review Act 1997)

The relevant legal principles

The Trigger for the risk assessment

1. The matters referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian are those matters referred to in clause 1(1)(b) of Schedule 1.

1. Section 14 of the Act requires a risk assessment if any of the matters specified in Schedule 1 of the Act apply.

Nature of the proceedings

1. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] 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]

Burden of Proof

1. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

1. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

1. There is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act.

1. The applicant has a duty to disclose all relevant material. (See section 27(4))

1. Although the applicant has no legal burden he does have a practical or forensic onus (Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53) and the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act.

Risk to the safety of children

1. In this application, an issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. The Tribunal must have regard to the matters contained in section 15(4) and section 30(1) of the Act in deciding this issue.

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 and RD v Commissioner NSW Commission for Children and Young People[2011] NSWADT 140 at [10].

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, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33].

The Issue

1. The primary issue before the Tribunal in this application, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: section 63 Administrative Decisions Review Act 1997.

The Evidence and Consideration of the Evidence

1. The applicant relied upon the following documents:

(a)   Letter with attachments from the applicant to the Crown Solicitor dated 13 August 2014 and Statement from the applicant dated 22 July 2014. (Exhibit A1)

(b)   Letter from the applicant to the Crown Solicitor dated 14 October 2014. (Exhibit A2)

1. The respondent relied upon the following documents:

(a) Bundle of Documents filed pursuant to section 58 Of the Administrative Decisions Review Act 1997 filed 7 August 2014. (Exhibit R1)

(b)   Bundle of Additional Documents filed on 30 September 2014. (Exhibit R2)

1. The applicant was sworn and gave oral evidence.

1. The evidence is now considered under each of the subheadings of sections 15(4) and 30(1) of the Act.

1. In BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [49] it was held that the Tribunal should consider both those factors it must consider as set out in section 30(1) and those matters which the Children's Guardian may consider as set out in section 15(4) of the Act "which are more aptly descriptive of the process than section 30(1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.

1. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it appears appropriate to have regard to both sections 30(1) and section 15(4) considerations as required by both sections. That would fulfil the requirements of both sections, taking into account the nature of the administrative review."

(a) the seriousness of any matters that caused the assessment in relation to the person (s15(4)(a) and 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 (s30(1)(a))

Matter 1

1. The applicant was charged with aggravated sexual assault inflicting actual bodily harm on his wife however this charge was withdrawn as the victim did not wish to proceed.

1. The applicant pleaded guilty to the backup charge and was sentenced on 23 June 2004 to a fixed term of nine months' imprisonment suspended conditional upon his ensuring a good behaviour bond to be of good behaviour for nine months, attending the probation and parole service and participating in a domestic violence program.

1. The assault occurred on 17 October 2003 when the applicant's wife refused to have sexual intercourse with him and he hit her with a stapler on the head and face several times cause injuries to those areas. He also put a pillow over her head. The assault ceased after the applicant and his wife's child entered the bedroom.

Matter 2

1. In December 2002 the applicant was charged with maliciously inflicting grievous bodily harm. The backup charge was assault causing actual bodily harm.. The magistrate found that both parties were to blame for a fight which resulted from a road rage incident. The magistrate dismissed the charge of maliciously inflict grievous bodily harm but found the applicant guilty of the backup charge and proceeded to deal with the matter pursuant to section 10 of the Criminal (Sentencing Procedure) Act 1999. The Crown appealed the sentence to the District Court. The appeal was upheld and the applicant was sentenced to a Section 9 bond to be of good behaviour for two years.

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

1. The offences occurred in 2002 (twelve years ago) and 2003 (eleven years ago). The applicant has not been convicted of any further offences.

1. The applicant is a bus driver and some adverse comments were included regarding his driving on his record around 2003. The respondent's documents produced documents from the applicant's employer and suggest his assessments in 2014 have been positive.

1. The applicant has attended a bible college and obtained a Certificate of Christian Ministry in November 2013. The applicant gave evidence to the Tribunal that he is about to graduate with a Diploma of Pastoral Ministry.

1. In his letter of 13 August 2013 and in his oral evidence the Applicant states that over the last ten years he has learned a lot from the mistakes he has made and he has attended course which have helped him a lot.

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

1. The applicant was born in 1961 and was 41 at the time of his first offence and 42 at the time of his second offence.

(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. At the time of the offence against his wife, she was 34 years old.

1. At the time of the second offence, the victim was 21 years old.

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

1. Both the applicant and the victims were adults at the time of the offences.

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

1. Neither of the victims were children.

1. The Respondent submits that although neither of the victims was a child, the applicant and victim's son was a witness to at least part of the attack on his mother.

1. The police facts record that one of the children came into the bedroom and the applicant stopped what he was doing.

(g) the person's present age

1. The applicant is currently 53 years of age

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

1. The applicant's total criminal record consists of these two incidents.

(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 successfully completed an anger management/domestic abuse programme. He completed this 10 session course in April 2005.

1. The applicant has not obtained a risk assessment from an expert. The applicant said initially he planned to obtain a report from a psychologist however he was not able to afford it.

(j) any information given, in or in relation to, the application (s 15(4)(j)) and any information given by the applicant in, or in relation to, the application (s30(1)(j))

1. The applicant has commendations from his current employer and a character reference from the operations manager of his employer. He also has character references from the bible college where he is been a student for the past four years and from the Minister at his church whom has known the applicant for some fifteen years. The Minister refers to BKN as "one of the most committed senior preachers in the church...He is reliable and trustworthy man not only in the preacher's team but also in the fathers (sic) group that he is involved as well." The Tribunal notes that neither character references make mention of the offences committed by the applicant.

1. The applicant and his wife live together with their three children, a seven year old and two young adults. BKN's wife moved back in with him in 2003 when the AVO was finalised and they have been together ever since with no repetition of the type of behaviour of which he was convicted.

1. BKN explained that on the night he committed the offence against his wife he had been strongly urged by friends to drink alcohol, something which he never did. He became drunk and had never had that experience before and it was in this context he assaulted his wife. He acknowledged that "my behaviour towards my wife was terrible."

1. Since this incident BKN said he has never touched alcohol again. He said the incident changed him as he had to face his family, his community and the police. He also had to do a course which made him talk about the assault and this too helped to change him.

1. In relation to the second incident BKN considered that he was also a victim in the situation. He said he was "totally tired" having been working from 6am. He said he was shaken by the incident, but was angry and the other driver ran to him and pushed him and he felt he had to respond. BKN said that if he were placed in a similar position now he would not react in the same way. He said he was now older and had more experience in life and had learnt from the anger management course. He said if a similar set of circumstances arose now he would simply walk away. If necessary he would ring the police and the depot as it is their job to handle it.

1. BKN said that as a bus driver he deals with the public and is regularly faced with people who are "rude" or "uneducated" or have a "mental illness." He said he is able to respond to issues raised in such contexts calmly and without incident.

1. BKN told the Tribunal he had learned from his mistakes and has been through hardships and tries to put himself in others shoes or think, in his treatment of others, how he would like others to treat his children.

1. In addition to the anger management course BKN has undertaken, he has completed a Certificate 3 in Hospitality, a responsible service of alcohol course and eighty modules of a theology course, including courses on psychology.

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

1. The Children's guardian notes that if the applicant is granted a clearance he may work with any children, of any age.

1. The Children's Guardian submits that after considering all the evidence the Tribunal cannot be satisfied that the applicant does not pose a real and appreciable risk to children or young people, and, because the safety, welfare and well-being of children is the paramount consideration, the Tribunal ought to find that the correct and preferable decision is that the application be dismissed.

1. The Tribunal accepted BKN's evidence that he has learned a great deal from the convictions, the courses he has undertaken, and through his experience. BKN has a stable family life, has completed studies and is an active member of his community. BKN has had no convictions in more than 10 years and this fact can be given particular weight given that BKN works as a bus driver and as such regularly has to deal with members of the public who are difficult, unreasonable or rude.

1. The Tribunal is satisfied that the behaviour of the applicant resulting in convictions was not planned or a part of a pattern of behaviour. It has not been ongoing and the second of those offences has been more than a decade ago. In the past decade BKN has sustained a positive path in relation to his work, his family life and his community work. The Tribunal is satisfied that BKN has made a genuine and sustained effort to remedy his past conduct and despite the effluxion of time, remains remorseful, particularly regarding the offending against his wife.

1. In all the circumstances, on the balance of probabilities and taking into account the matters set out in section 30(1) of the Act the Tribunal considers that the preferable decision is that the applicant does not pose a risk to the safety of children and should therefore receive a Working with Children check clearance.

1. The order of the Tribunal therefore is:

The decision of the respondent dated 7 July 2014 to refuse to grant the applicant a working with children check clearance is set aside and in substitution thereof a decision that the respondent grant to the applicant a working with children check clearance authorising the applicant to engage in paid and unpaid child-related work.

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

Decision last updated: 05 December 2014