BML v Children's Guardian

[2015] NSWCATAD 50

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	BML v Children’s Guardian [2015] NSWCATAD 50
Hearing dates:	5 March 2015
Decision date:	24 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hon G Mullane ADCJ, Principal member
Decision:	1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offence of “Carnally knowing a girl between 10 and 16” found proved by the Moss Vale Court of Petty Sessions on 17January 1980. 2. The Children’s Guardian must grant the Applicant a Working with Children Check Clearance.
Catchwords:	Working with children – disqualifying offence- carnal knowledge – credit of applicant poor- enabling application granted
Legislation Cited:	Crimes Act 1900; Child Protection (Working with Children) Act 2012; Adoption Act 2000;
Cases Cited:	Commission For Children and Young People v V [2002] NSWSC 949
Texts Cited:	Nil
Category:	Principal judgment
Parties:	BML (Applicant) Children's Guardian (Respondent)
Representation:	Counsel: S Flannigan (Applicant) R Lee (Respondent) Solicitors: Waterford Ryan Solicitors (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1410532
Publication restriction:	The name of the Applicant or of any other person that would identify the Applicant is not to be published or broadcast without leave of the Tribunal.

Reasons for Decision

INTRODUCTION

1. On 17 January 1980 the Applicant was convicted in the Moss Vale Court of Petty Sessions on a plea of guilty to the offence under s.71 of the Crimes Act, 1900, as it then was. That section provided:

“Whosoever unlawfully and carnally knows any girl of or about the age of 10 years, and under the age of 16 years, shall be liable to a penal servitude for 10 years.”

2. On 9 June 2014 the Applicant applied to the Children's Guardian for issue of a Working with Children Check Clearance. On 4 September 2014 the Children's Guardian notified the Applicant by letter that his application was refused because of his conviction for carnal knowledge on 17 January 1980, which was a “disqualifying conviction” under the Child Protection (Working with Children) Act, 2012.

3. This is a hearing of the Applicant’s Application for an Enabling Order to enable him to obtain a Working with Children Check Clearance despite the conviction.

THE EVIDENCE

4. The evidence before the Tribunal comprised:

1. Letter of 4 March 2015 from Waterford Ryan Solicitors to the Tribunal.

2. The Application filed 23 September 2014 annexing a copy of the letter of 4 September 2014 from the Children's Guardian to the Applicant notifying the Applicant of the decision of the Children's Guardian.

3. A bundle of six documents numbered and listed and filed by the Children's Guardian as a bundle on 19 December 2014.

4. The Applicant’s Affidavit affirmed 19 December 2014 and filed on 23 December 2014.

5. A bundle of two documents filed by the Children's Guardian on 8 January 2015.

6. The psychological report of Stephanie Ryan filed by the Applicant on 3 February 2015 and undated.

5. There were also written submissions provided by each party.

RELEVANT LEGISLATIVE PROVISIONS

6. Section 4 of the Act provides that:

“The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”

7. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.

8. Section 8 requires that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.

9. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.

10. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.

11. Section 12 provides that there are two classes of Working with Children Check Clearances which are:

a) Volunteer – authorising workers to engage in unpaid child-related work;

and

b) Non-volunteer – authorising workers to engage in paid and unpaid child-related work.

12. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.

13. Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is “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”. The Applicant was born on 10 November 1954 and was an adult at the time of the offence. Section 4, the definition section of the Act, provides that “conviction” includes a finding that the charge is proved although the court does not enter a conviction.

14. In para (1)(e) of Schedule 2 to the Act, offences under s.71 of the Crimes Act, 1900, are included in the specified offences that are disqualifying offences.

15. Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to BML because of the offence leading to the conviction in 1980.

APPLICATIONS FOR AN ENABLING ORDER

16. Section 28 of the Act provides:

(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 Commission 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 Commission 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.

(9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings.

17. Section 30 of the Act provides as follows:

(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 Commission considers necessary.

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

Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.

(3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.

CREDIT OF THE APPLICANT

18. The Applicant gave inconsistent evidence in relation to the offence of which he was convicted and his reasons for pleading guilty.

19. Notwithstanding that his affidavit was affirmed, when he gave evidence to the hearing by telephone on 5 March 2015, he told the Tribunal that he believes in God and he then swore a religious oath to tell the truth.

20. In his Application written out by his solicitor on the Applicant’s instructions and read by the Applicant before he signed it on 19 September 2014, the Applicant stated:

“The offence was committed in 1976. At the time the Applicant believed the person involved was 18 because he met her in a pub. The Applicant was away for a month, then took the person involved out for dinner when he got back. The next day the Applicant found out the age of the person at which time he ended the relationship.”

21. In his Affidavit which he affirmed on 19 December 2014 he said:

“Explanation of Conviction

6 In or about 1976, I met a woman at the Jimmy Moss Hotel at Moss Vale. She introduced herself to me as [V]….. We did not have any prior relationship.

7 She looked like she was over 18. I did not know that she was a child and due to the circumstances of our meeting at a hotel, I believed that she was 18. At that time, I was around 22 years of age.

8 I was employed as a coach captain, driving buses to different parts of Australia. This required me to travel frequently, and I would usually only spend around 1 or 2 nights a month at my property in Moss Vale.

9 The day after we initially met, I had to leave on a bus trip. However, I saw [V] again when I returned to Moss Vale. Over a period of 6 months I saw her around 6 times. During that time I was not aware that she was under 18.

10 At some time in 1976, my sister and brother-in-law … came to stay at my property while I was away for work. I recall that I had a conversation with my brother-in-Iaw to the following effect:

[BML]: I am currently seeing a girl named [V] …….

[Brother in law]: I am friends with her father. She isn't 18.

11 When I next saw [V], we had a conversation to the following effect, as best as I can recall:

[BML]:    How old are you?

[V]: I'm 15 and 8 months.

12 I do not recall what I then said, but I immediately ended the relationship.

13 When I stopped seeing her, [V] became very angry and upset. She told her uncle, who was a federal police officer in Canberra, about the relationship. My understanding is that he reported the matter to the local police, who later charged me.

14 On 17 January 1980, the matter was brought before the Court and I did not defend the charge. This was because of the time that had elapsed since the offence and the fact that I did not wish to cause [V] any difficulty or embarrassment, particularly as she was in another relationship, pregnant and soon to be engaged.

15 I recall that she had told me that she was having her engagement party on the weekend following the Court date.”

22. When he was interviewed by Ms Ryan, the Psychologist, in December 2014 he told her:

1. The offence was committed in 1976;

2. He was 22;

3. He was unaware that the victim was only 15 as he had met her in at the hotel and 18 is the legal age to be drinking in a hotel;

4. When he became aware of her age he terminated the relationship;

5. Charges were brought against him three years later in 1980;

6. He did not defend the charges because the female in question was about to be married and he did not want to disrupt her life.

23. When he was asked in cross-examination whether the victim “looked over 18”, he avoided the question and then said: “She was drinking, so yes”. He had not at that stage provided any other reason for his alleged belief that the victim was 18, other than that she was drinking in a hotel.

24. In his cross-examination he was asked whether he had asked the girl’s age prior to speaking with his brother-in-law about it. He said: “Yes. She said: ‘I repeated Year 12 so I’m 18’.” But nowhere in his Application or in his Affidavit had he alleged that the girl had told him she was 18. On the contrary, in paragraph 9 of his Affidavit he swore: “Over a period of six months I saw her around six times. During that time I was not aware she was under 18”. But he did not allege she had told him she was 18.

25. When it was drawn to his attention in cross-examination that he had not made such an allegation in the document and was now raising it, he avoided the question. He was then cautioned about evasion and volunteering unresponsive material. He denied that he was saying she had told him she was 18 to make him “look better”.

26. In the version given in his Application the Applicant did not disclose when it was that he had carnal knowledge of the victim. Indeed, it appeared that from that version that he met her, he was then away for a month, then he took her out for dinner, and then the next day he discovered she was under-aged and ended the relationship. It appeared on that version that the time that elapsed from him meeting her at the hotel and him ending the relationship was only a matter of about four weeks.

27. But the version in his Affidavit was that he saw her around six times during a period of about six months. He said he ended the relationship in 1976.

28. In cross-examination it was put to the Applicant that he had sex with the victim many times over a period of 12 months. He answered: “Six months”. When the question was repeated he said: “That would be correct”. But he then reconsidered it and said: “No, I’m sure it was only six months”, then he volunteered unresponsive material. He then said: “It wasn’t 12 months at all”. This evidence was most unconvincing given his previous conflicting versions in the Application and his Affidavit.

29. The Police record in relation to the offence says that the offence was reported to the Police on 15 November 1979 and the relationship with the victim occurred over a period from August 1978 to 13 November 1979 (15 months). The records show that the victim was 15 years of age at the time of the complaint and a school student. It shows that the Applicant was arrested on the 11 January 1980 and the Applicant’s criminal record shows that he was convicted of the offence on 17 January 1980 in the Moss Vale Petty Sessions Court.

30. The Police records show the following narrative:

“Between August, 1978, the offender and the victim started to see each other. A relationship developed and after some time sexual intercourse took place. This happened on many occasions of a period of about 12 months. On Friday, 11 January 1980 the offender was charged at Moss Vale Police Station with the above offence.”

31. Assuming that the offence occurred over a period of 12 months, then if the victim was 15 years and 8 months at the time the relationship ended, it appears the victim was about 14 years and 5 months of age when the relationship commenced and about 14 years and 8 months when the offence commenced.

32. The Police record was prepared for the Moss Vale Court of Petty Session on 11 January 1980 and on 17 January the Applicant pleaded guilty to the offence as charged. There is no other contemporaneous record in evidence of the reporting of the offence on 15 November 1979 and the facts as presented to the Court when the Applicant pleaded guilty. The Tribunal has preferred the contemporaneous Police record of events to alleged recollections of the Applicant more than 35 years later..

33. In the Application he signed on 19 September 2014 the Applicant stated:

“The Applicant did not fight the charges because by the time it went to Court, the person was pregnant and getting married the following weekend. The Applicant therefore did not wish to tie the person up in Court.”

34. In December 2014 he also told the psychologist preparing the risk assessment report that the reason he did not defend the application was that the victim was about to be married and he didn’t want to disrupt her life.

35. However, in the version in the Affidavit of the Applicant he said that the reason he did not defend the charge was:

“… because of the time that had elapsed since the offence and the fact that I did not wish to cause [V] any difficulty or embarrassment, particularly as she was in another relationship, pregnant and soon to be engaged.”

36. He also said in his oral evidence that she had told him that she was having her engagement party the weekend following the Court date.

37. In cross-examination, the Applicant denied lying in the Application when he referred to the victim getting married. He said that was wrong and that she was getting engaged. He said the error was his fault.

38. Given that the victim was 15 years of age at the time of offence being reported to the police on 15 November 1979, it appears to be highly improbable that she would have been getting married around the court date, or even getting engaged to be married.

39. In cross-examination, the Applicant gave further evidence about the planned engagement. He said he thought the Court case was a Thursday and: “She and [fiancé] were getting engaged on the Saturday. I was invited to it. I knew them both. There was no animosity between us.”

40. But this evidence that he was invited and there was no animosity appears to be quite inconsistent with the evidence in his affidavit in paragraphs 12 and 13 to the effect that when he ended the relationship the victim was “angry and upset”, reported the offence to her uncle, a Federal Police Officer, and he reported the matter to the local Police.

41. According to the police records, the relationship had ended on 13 November 1979. The Applicant was convicted on 11 January 1980. Other evidence (some by him) is that she was angry and upset when the relationship ended, she reported the offence to her uncle, the complaint was made to Moss Vale Police on 15 November 1979 and he was arrested and charged on 11 January 1980. But his evidence is that as at 17 January he was on good terms with the victim and her fiancée and they had invited him to their engagement party the following weekend. That is inherently unlikely. In the context of his other problems with credit it was not believable.

42. Given the serious problems with the Applicant’s credit, the Tribunal comfortably finds on the balance of probabilities the following facts:

1. The Applicant met the victim in August 1978.

2. At the time the Applicant was 23 years of age and the victim was 14;

3. The Victim did not tell the Applicant that she was 18;

4. The Applicant did not believe when he met her or during the relationship that the victim was 18;

5. The Applicant knew when he met the victim, and when he commenced to carnally know her that she was under 16;

6. The Applicant had sexual intercourse with the victim many times over a period of about 12 months ending on 13 November 1979;

7. The Applicant turned 24 on 10 November 1978 before or early in the period of the offence;

8. The victim turned 15 during the period of the offence;

9. At the time the complaint was made to the Moss Vale Police in November 1979 and when the Applicant was charged and convicted, the Applicant and the victim were not on good terms;

10. When the Applicant was charged or convicted the Applicant had not been invited to an engagement party for the victim and her fiancée; and

11. The excuses offered by the Applicant for pleading guilty to the offence are untrue.

SERIOUSNESS OF THE OFFENCE WITH RESPECT TO WHICH THE APPLICANT IS A DISQUALIFIED PERSON

43. The offence was a very serious offence against a vulnerable person aged only 14 and later 15. The Legislature regarded it as a serious offence, given the maximum penalty is 10 years imprisonment.

THE AGE OF THE APPLICANT AT THE TIME OF THE OFFENCES

44. At the time of the offence the Applicant was 23 years of age and then 24 years of age.

THE AGE OF THE VICTIM AT THE TIME OF THE OFFENCE AND ANY MATTERS RELATING TO THE VULNERABILITY OF THE VICTIM

45. The victim was 14 years of age when the offence commenced and 15 years of age later.

46. She was vulnerable in that she was not subject to proper parental care, supervision and protection because she was able to go on numerous occasions to the Applicant’s abode and have sexual intercourse with him.

47. The Applicant had been previously married at 19 years of age. That relationship had lasted 2 years and there was one child of the marriage, who is now 40. The victim was also vulnerable because at the time of the offence the Applicant was 9 years older than her, had been married and was probably more mature, more experienced and more worldly than her.

48. The Applicant was in all likelihood aware of that.

THE DIFFERENCE IN AGE BETWEEN THE VICTIM AND THE APPLICANT AND THEIR RELATIONSHIP (IF ANY)

49. The Applicant was 9 years older than the victim. Their relationship, it appears, was a sexual relationship, and to a minor degree, companionship.

WHETHER THE APPLICANT KNEW OR COULD REASONABLY HAVE KNOWN THAT THE VICTIM WAS A CHILD

50. On the balance of probabilities the Applicant knew the victim was under 18 years of age when he met her and for the duration of their relationship.

THE APPLICANT’S PRESENT AGE

51. The Applicant is now 60 years of age.

THE SERIOUSNESS OF THE APPLICANT’S TOTAL CRIMINAL RECORD AND HIS CONDUCT SINCE THE OFFENCES OCCURRED

52. The Applicant’s criminal record is as follows:

53. Concerning the conduct of the Applicant since the offence, there is the evidence of the Applicant in his Affidavit and very little evidence that might corroborate or contradict his version.

54. At 26 the Applicant married again. The marriage lasted 10 years. There are two children of the marriage and the Applicant still has contact with those children.

55. Subsequently the Applicant had a de facto marriage for four years. There is a child of that relationship who is now 17. The Applicant’s relationship with them is estranged. He does not see them.

56. The Applicant has been living in a de facto marriage for the last 6 years with his current partner and her 16 year old son. He says that he has a good relationship with both of them. The partner did not give evidence in support of the application.

57. The Applicant provided the following employment history in his Affidavit:

“Employment History

16 From 1976 to 1983, I drove buses for various companies in Sydney and the Southern Highlands.

17 Between 1983 and 1997, I was employed in various positions in [town], including as a plant operator, truck driver and motel manager.

18 Between 1994 and 1997, I was also the President of the [town] Pony Club.

19 I then moved to Queensland and I was employed in various positions, including at Boral Tyres and the CDEP in the years from 1997 to 2002.

20 From approximately 2002 to 2005, I then moved back to [town] and was the manager of the [town] abbatoir.

21 In the period around 2005 and 2006, I was unemployed or sporadically employed.

22 In the period from around 2007 to 2009 I had various jobs in and around Dubbo, including as a sheep dipper, taxi driver and self-employed furniture maker.

23 In the period from 2009 to 2011, I was unemployed or sporadically employed.

24 Since around 2011, I have been employed as a school bus driver at [town]. I am currently employed by X Buses Pty Ltd (ACN  xxx xxx xxx).”

58. In his Affidavit the Applicant says that he has been involved since 2010 as a volunteer with the [town] Junior Rugby League Club because his step-son (now aged 16) is involved in the club.

59. He said he has stopped that involvement once the clearance was refused. He told the psychologist, Ms Ryan, that he has been the president of the [town] Pony Club for four years and captain of the Polo-cross team for four years. He said he walks for exercise most days and enjoys fishing. His evidence is that he has never been the subject of any complaints, disciplinary proceedings or risk assessments in the course of his current or previous employment or his role as a volunteer, including any involving children.

60. In relation to his employment with X Buses Pty Ltd, the company by letter to the Children's Guardian of 18 December 2014 advised that since the Applicant’s employment with the company commenced on 12 April 2013, the company had never had any performance or management issues with the Applicant and there had never been any complaint made regarding his conduct whilst an employee of the company. Since notification of the refusal to grant the Certificate the Applicant has been working maintaining the buses of the company at the [town] Depot.

61. The previous owner of the business has also reported that for the period from February 2011 to March 2013 when it employed the Applicant, there were no performance or management issues concerning the Applicant, there were no complaints made against him in relation to his work, and the only reason he ceased employment with the company was that the company sold the business.

THE LIKELIHOOD OF ANY REPETITION BY THE APPLICANT OF THE OFFENCE OR CONDUCT AND THE IMPACT ON CHILDREN OF ANY SUCH REPETITION

62. The impact of any similar conduct on a child would be very serious and probably long lasting. It would deny or seriously damage the child’s innocence and ability to enjoy the freedom of childhood. It may cause long term psychological disturbance and to the child and distrust of adults.

63. It is more than 35 years since the offence occurred. In that period the Respondent has at times lived with male and female children for various numbers of years. Since the offence he has driven buses in Sydney and the Southern Highlands for about five years which would have involved dealing with children. He has also had dealings with children as a motel manager and as a taxi driver for short periods.

64. From February 2011 to September 2014 he was employed full time as a school bus driver and dealt with children extensively.

65. The Applicant has also had dealings with children for some years through his voluntary work with the [town] Pony Club and also the [town] Junior Rugby League Club.

66. His employers from the period from 2011 onwards have provided written confirmation that there have been no complaints in relation to his conduct and no performance or management issues raised in respect of his work. Indeed, there is no evidence of any complaint, allegation or charge in respect of his conduct at any time in the more than 35 years since the offence.

67. The Applicant’s age of 60 years suggests that he is less likely to commit a sexual offence on a child than when he was in his 20’s.

68. The complaint has provided evidence from a psychologist, Ms Ryan, who has in her report assessed his risk to children as “low”.

69. There are several limitations that should be mentioned in relation to Ms Ryan’s report:

1. The Applicant extensively misinformed Ms Ryan regarding the details of the offence as discussed earlier in this Judgment.

2. Ms Ryan specifically expressed limitations regarding the report as follows:

Limitations of Report

“I had a limited time frame to work with [BML] which was unfortunate as it is important that all information can be collected and all sources of information followed up allowing for a comprehensive anamnestic assessment. Information I would like to sight would be medical records and discussions with family members. Even so, [BML] has been very honest about his situation and the implications of the carnal knowledge.

It should be clearly understood that assessments are not designed to serve as a proxy for investigating additional undisclosed crimes. Moreover, there is no single assessment tool, nor combination of tools, that can determine whether an individual is a sex offender. Rather, assessments are most appropriately used to provide the Court with objective rationale for consideration.”.

3. In applying the STATIC – 99 test, one of the factors taken into account in the Applicant’s favour was that the Applicant had a “history of long term relationships”. The Applicant’s first marriage lasted two years. He had another relationship that lasted four years. His current de facto marriage has lasted six years and is continuing. He did have a previous de facto marriage which lasted ten years.

When the Tribunal raised these matters with Ms Ryan she was not able to say how the concept of a “long term relationship” is defined for purposes of the STATIC – 99

However, when some of the issues of false information given to her by the Applicant and the question about the “long term relationships” was raised, Ms Ryan adhered to her opinion that the Applicant is low risk.

4. Ms Ryan is not yet a clinical psychologist. She has graduated in psychology and is a registered psychologist. She has associate membership with the Australian Psychological Society. She has completed a Master’s Degree in Clinical Psychology and when she wrote the report was about to embark on a 12 month supervisory program to gain endorsement as a clinical psychologist. She has experience working in acute mental health as part of her clinical master’s degree and forensic training. She received training in risk assessment with Dr Allnut and Colman O’Drisscoll from the NSW Justice Health Department, who were the authors of the clinical guidelines for Risk Assessment and Management for mental clinicians in NSW. She did not disclose any particular experience in applying the various models for the purposes of risk assessment in relation to sexual offenders.

70. There was no other evidence that contradicted the assessment of Ms Ryan.

71. The Tribunal concludes on the evidence that the risk of the Applicant for repeat conduct such as that of the offence is low.

72. There should be a copy of these reasons provided to Ms Ryan so that she will be aware of the extent to which she was misled by the applicant and the value of insisting on accessing records and people who might corroborate or contradict critical information for the assessment provided by the person being assessed.

ANY OTHER INFORMATION GIVEN BY THE APPLICANT IN OR RELATION TO THE APPLICATION WHICH HAS NOT BEEN SET OUT ABOVE EARLIER

73. There is no other such information.

ANY OTHER MATTERS THE CHILDREN'S GUARDIAN CONSIDERS NECESSARY

74. The Children's Guardian informed the Tribunal that it neither opposes nor supports the Application of the Applicant.

CONCLUSIONS

75. A literal interpretation of ss.28(7), requiring the Applicant to prove that he does not pose a risk to the safety of children, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.

76. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation “not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. He held regarding the construction of the section:

“One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence”. [At par 41] and [at par 42]

“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, 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 ‘risk’ with the words that follow, namely, ‘to the safety of children’.

77. Overall the evidence establishes the Applicant does not pose a real and appreciable risk to the safety of children.

ORDERS

78. The Orders of the Tribunal therefore are:

1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offence of “Carnally knowing a girl between 10 and 16” found proved by the Moss Vale Court of Petty Sessions on 17 January 1980.

2. The Children’s Guardian must grant the Applicant a Working with Children Check Clearance.

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

22 April 2015 - Anonymise company name in paragraph 57 and 60

Decision last updated: 22 April 2015