BNP v Children's Guardian

[2015] NSWCATAD 133

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BNP v Children’s Guardian [2015] NSWCATAD 133
Hearing dates:	13 May 2015
Decision date:	26 June 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member
Decision:	The application for an enabling order is refused.
Catchwords:	ADMINISTRATIVE LAW – child protection – enabling order - working with children check clearance – disqualified person – disqualifying offence was a conviction in 2000 of aggravated indecent assault of a 10 year old child – victim unrelated to applicant - no further disqualifying offences – applicant aged 70 at time of Tribunal hearing –whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus not discharged
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal 2013 Crimes Act 1900
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949
Texts Cited:	BNP (Applicant) Children’s Guardian (respondent)
Category:	Principal judgment
Parties:	BNP (Applicant) Children’s Guardian (respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitor: BNP (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410609
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the application, any victims, or evidence given or received in these Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

reasons for decision

1. The applicant is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an enabling order, pursuant to section 28 of that Act, declaring that he not be treated as a ‘disqualified person’ so that he can be granted a working with children check clearance. The applicant is seeking a clearance so that he can continue his employment as a bus driver.

2. The applicant is a ‘disqualified person’ by reason of his conviction in the Local Court on 24 January 2000 of an offence of aggravated indecent assault of a child contrary to section 61M(1) of the Crimes Act 1900. On that date, the applicant was ordered to enter into a bond to be of good behaviour for a period of 3 years, with the condition that he not contact the victim and/or the victim’s family.

3. On 18 July 2014, the applicant made an application to the respondent for a working with children check clearance. On 19 September 2014, the respondent refused to grant him a clearance, as required under subsection 18(1) of the Act because of his disqualifying offence.

4. On 23 October 2014, the Tribunal received the applicant’s application for an enabling order. On 10 November 2014, the applicant applied to have a hearing brought forward due to the pending termination of his employment.

5. On 19 November 2015, the Tribunal stayed the decision of the respondent pending the determination of the application on condition that the applicant not seek child related employment with any employer other than his current employer. On that occasion, the Tribunal also made orders relating to the file and service of documents, including that the applicant file and serve any expert evidence. The matter was listed for hearing on 18 February 2015.

6. On 18 February 2015, the hearing was vacated on the application of the applicant who sought additional time to file an expert’s report. The matter was adjourned for hearing on 13 May 2015.

7. At the conclusion of the hearing on 13 May 2015, the Tribunal reserved its decision.

The Working with Children legislative Scheme

8. Section 4 of the Child Protection (Working with Children) Act 2012 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 the Act.

9. Subsection 8(1) of the Act prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children’s Guardian for the relevant working with children check clearance.

10. Subsection 18(1) provides that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been ‘convicted’ of an offence falling within Schedule 2 of the Act.

11. Subsection 28(1) of the Act makes provision for a ‘disqualified person’ to make an application to the Tribunal for an enabling order.

12. Where such an application is made, section 28 also provides the following:

28 Orders relating to disqualified and ineligible persons

(1) …

…

(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 … 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) …

13. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

‘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.’

14. The former Administrative Decisions Tribunal construed the meaning of ‘risk’, as it appeared in subsection 33J(1) of Part 7 (now repealed) of the Commission for Children and Young People Act 1998 to have the same meaning. It is accepted that the word ‘risk’, has a similar meaning in the current Act.

15. Section 30 sets out how an application under section 28 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.

16. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

Issue

17. What is at issue at the hearing is whether the applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children.

The evidence

18. The applicant tendered into evidence in support of his application the following documents:

1. Applications to the Tribunal dated 23 October 2014 and 10 November 2014;

2. Documents in relation to the positions held by the applicant in his employment;

3. Print-out from Transport NSW indicating no compliments or complaints pertaining to his employment as a bus driver;

4. Various correspondence from the Children’s Guardian and the Tribunal.

5. Forensic Psychological Risk Assessment report dated 15 April 2015, prepared by Ms Caroline Hare, Forensic Psychologist, for the purposes of these proceedings.

19. The applicant and Ms Hare each gave oral evidence at the hearing and were cross-examined by counsel for the respondent.

20. The respondent tendered into evidence bundles of documents comprising copies of the applicant’s criminal record, relevant court files, police records and documents produced in response to other enquiries made by the respondent to various bodies, including NSW Police, Transport NSW, and the applicant’s previous employers.

Consideration of the section 30(1) factors

21. Set out below is an overview of the evidence and the Tribunal’s findings in regard to the section 30(1) factors.

(a) The seriousness of the applicant’s disqualifying offence

22. The disqualifying offending involved a 10 year old girl (“the victim”) who lived with her family in a neighbouring home to the applicant. On the afternoon of 4 May 1999, the victim had finished school for the day and was playing with other children in the neighbourhood, when the applicant, who was standing outside of his house, invited her to come into his house in order to give her a jigsaw puzzle. According to the victim’s statement, it was normal for her and her friends to be invited into the applicant’s home. However, on this occasion, the applicant said that only the victim, whom he called “princess”, was invited inside his home.

23. At the time, the victim was wearing her school uniform, including a skirt with bike shorts underneath. The offending occurred inside the applicant’s home. The victim was standing while the applicant was seated. The applicant put his hands up the victim’s skirt, and touched her over her bike shorts; moving his hands back and forth on her legs and her genital area. The applicant also tried to kiss the victim on the lips. The applicant then asked the victim whether she wanted to go and play, to which the victim responded that she did. The applicant gave the victim the jigsaw puzzle and said he wanted to see the puzzle when she had finished it.

24. After leaving the applicant’s home, the victim told her friends and her mother about what had happened. The victim’s mother subsequently contacted child protection authorities, and a police investigation ensued.

25. The applicant sought legal advice and declined to be interviewed by police (as was his legal right). He was arrested and charged with the offence of aggravated indecent assault of a child. The applicant pleaded not guilty to the offence and the matter proceeded to hearing in the Local Court. A transcript of the proceedings was not made available to the Tribunal. Records from the Local Court file include a police facts sheet, statements by police, the victim, the victim’s mother and two other children to whom the offending was reported by the victim and who were present on the day in question.

26. A letter from a Solicitor for Public Prosecutions indicates that on 24 January 2000, the Magistrate found the applicant guilty of the offence. The applicant was convicted and ordered to enter into a good behaviour bond for a period of three years, with the condition that the applicant not contact the victim or her family.

27. The Tribunal finds that the disqualifying offence was a serious offence, particularly in light of the vulnerability and age of the victim. It involved contact over clothing of the victim’s genital area and an attempt to kiss the victim. It is also of concern that some enticement (a puzzle) was used as a means of encouraging the victim to enter the applicant’s home, into which the victim’s friends were precluded from entering.

(b) The period of time since the disqualifying offence was committed

28. It is now 16 years since the disqualifying offence occurred.

(c)The age of the applicant at the time the disqualifying offence was committed

29. The applicant was 54 years of age at the time of the offending conduct. He is now 70 years of age.

(d) The age of the victim and matters relating to the vulnerability of the victim.

30. The victim was 10 years of age at the time of the offence. The victim and her family were neighbours of the applicant. At the time of commission of the offence, the victim was alone in the company of the applicant and was vulnerable.

(e) The difference in age between the victim and the applicant and the relationship between them

31. There was 44 years’ difference in the ages of the victim and the applicant. They were known to each other only as neighbours.

(f) Whether the applicant knew or could reasonably have known the victim was a child

32. The applicant was aware the victim was a child.

(g) The applicant’s present age

33. The applicant is now 70 years of age.

(h) The seriousness of the applicant’s total criminal record and his conduct since the disqualifying offence.

34. The applicant has a criminal history which commenced in 1961. During that year, he was convicted of a break, enter, and steal and stealing offences for which he was committed to a juvenile institution for three months. On 11 December 1962 he was convicted of a further break, enter and steal offence and was ordered to enter into a recognizance to be of good behaviour for 3 years with conditions including the supervision of the Probation Service.

35. There are no further criminal convictions on the applicant’s criminal record other than his conviction in 2000 for the disqualifying offence.

36. Probation records indicate that on 18 April 2011 the applicant was found guilty of the offence of exceed speed in a school zone. Without conviction, he was ordered to enter into a good behaviour bond under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, with supervision and guidance of the Probation and Parole Service, and to complete a Traffic Offender’s Program. On 8 July 2011, the Local Court varied the bond to delete the supervision requirement.

(i) The likelihood of any repetition by the applicant of the offence and the impact on children of any such repetition

37. Ms Hare, Forensic Psychologist, conducted an interview of the applicant on 9 April 2015. According to her report dated 15 April 2015, the applicant presented as an intelligent and articulate man. When eliciting the applicant’s family and development history, the applicant told Ms Hare that all of his immediate family: his mother, father, and two sisters tragically died in a boating accident when he was 13 years old. The applicant reported that prior to this event, his childhood was “awful”, in that his father drank alcohol excessively and was violent towards him and his mother. The applicant told Ms Hare that he had never disclosed his experiences in any level of detail to anyone.

38. The applicant reported to Ms Hare that following the death of his family, he was made a ward of Legacy. He went to boarding school, and said he left at the age of 16 because there were insufficient funds to continue his education. The applicant reported that he gained employment and financial independence. With a lack of supervision and guidance, he began associating with negative peer influences and engaging in antisocial conduct which resulted in him being sentenced to 3 months’ detention in a juvenile institution.

39. According to Ms Hare, the applicant undertook studies at technical college which qualified him in hydraulic engineering, an occupation which he continued in for about 45 years. He reported to Ms Hare that he left the hydraulic engineering industry about 5 years ago because he had enough of it, and it had become too much, and excessive paperwork put him in conflict with a new manager, and which led to the termination of his employment.

40. The applicant subsequently gained employment as a bus driver, an occupation which continues to the present time. The applicant told Ms Hare he intends to retire within the next 12 months. He said the refusal of a working with children check clearance would not cause him financial hardship, however, he is keen “to correct a wrong” as he does not believe he was rightfully convicted. He told Ms Hare he does not plan to engage in volunteer work, further employment or leisure pursuits involving children in the future. However Ms Hare noted that the applicant’s wife operates a speech therapy business for children from the applicant’s home.

41. The applicant has been married to his wife for 40 years. He does not have children. The applicant reported to Ms Hare that he was selective about his associates, he has no really close friends, and he prefers to stay at home during his leisure time. Ms Hare opines that the applicant has maintained a level of detachment as a means of preventing discussions about difficult areas of his childhood, which he finds uncomfortable discussing, and this has resulted in a lack of close friendships.

42. The applicant denied being directly involved in the break, enter and steal offences in 1961 and 1962, claiming it was by association only.

43. In relation to the disqualifying offence, the applicant told Ms Hare that the victim and her younger brother often called upon him requesting food and seeking attention. He said he started calling the victim ‘princess’ as he had observed her wearing a tiara on her birthday, and he was not aware of her actual name.

44. He said on the day of the incident he was working from home alone. He said he discovered a jigsaw puzzle in the garage that he and his wife had been looking for. He said he had it in his hand when the victim rang the doorbell, and the victim had become tearful when he said she could not have it. He said that he then invited her inside, and he told the victim that the puzzle was complicated and she would need her mother’s assistance with it. He also said he told the victim he would like to see the completed puzzle. The applicant said he then told the victim that she would need to leave as he had work to do, but she did not comply with his requests. He said he then stood up, placed his hands on the victim’s shoulders and “frog marched’ her out of the house. He denied touching her anywhere other than on her shoulders, and denied trying to kiss her.

45. Ms Hare said the applicant was unable to provide an explanation as to why the victim might have lied about the incident. Rather, the applicant suggested the victim’s mother might have been seeking recognition or financial gain because she had contacted radio stations about the event. According to Ms Hare, the applicant “did not appear to consider that she (the victim’s mother) might have been motivated by a concern to maintain the safety of other children”.

46. Ms Hare conducted a Personality Assessment Inventory (PAI) during her assessment of the applicant. Ms Hare stated the applicant’s responses suggested that he tended to present himself in a consistently favourable light with a reluctance to admit common shortcomings. According to Ms Hare, this tendency means he may minimise or be unaware of areas of his functioning that might be less than normal. However, Ms Hare indicated that the applicant’s PAI profile revealed no elevations of clinical psychopathology and was within normal limits.

37. In conducting her assessment of the applicant, Ms Hare took into account static risk factors (the Static 99 test) and dynamic risk factors (‘Risk for Sexual Violence Protocol’ (RSVP)). The Static-99 is an actuarial risk assessment which measures static factors, such an offender’s age and the extent of previous offending. The RSVP is a clinician-rated structured clinical assessment tool that explores static and dynamic risk factors, in additional to individual future needs that could reduce the risk of recidivism.

38. Ms Hare indicated the applicant’s score on the Static-99 test places him in the low risk category, and within the group whereby for every 100 offenders, approximately three will sexually reoffend over the next five to ten years. However, she noted that the applicant has spent 15 years in the community seemingly without reoffending, and that generally the expected sexual offence recidivism rate should be reduced by about half if the offender has five to ten years of offence-free behaviour in the community.

39. In conducting the RSVP assessment, Ms Hare identified the following risk factors:

1. the applicant’s limited self-awareness in terms of his understanding of the pathway that led him to commit the offence;

2. the applicant’s problems with emotional detachment and appropriate expression of anger resulting from childhood physical abuse; and

3. the applicant’s denial of the sexual offending.

50. Ms Hare identified the applicant’s protective factors as being:

1. Healthy sexual interests, including a preference for sex with consenting adults;

2. Capacity for emotional intimacy, as evidenced by his lasting emotionally intimate relationships, and his care and concern for others;

3. Prosocial support network;

4. Engagement in goal-directed living;

5. Evidence of good problem solving and effective coping skills;

6. Engagement in employment and constructive leisure activities;

7. Sobriety;

8. Hopeful, optimistic and motivated attitude towards not engaging in any future antisocial (including sexually offensive) behaviours.

51. Based on her assessment of the applicant’s current dynamic risk and protective factors, Ms Hare opines that the applicant poses an overall low risk of engaging in future sexual offending against children. She said that the applicant’s denial of sexual offending is one of the few factors she considers to be relevant and worthy of further discussion. However, she opines the weight she has given to the presence of denial is mitigated because of the limited evidence of any failure by the applicant to comply with treatment participation, monitoring or supervision.

52. Ms Hare concludes that the applicant’s 15 years of seemingly offence-free behaviour further reduces his risk. She refers to research which indicates that by 60 or 70 years of age, there is a uniformly low sexual recidivism rate for men who have committed sexual offences.

53. Ms Hare supports the applicant’s application for an enabling order.

54. During cross examination by the respondent, Ms Hare conceded that the applicant’s results on the PIA, namely his tendency to minimise and consistently portray himself in a favourable light, could also indicate that he is not telling the truth.

55. Ms Hare was made aware of certain facts which contradicted the information the applicant had reported to her during the course of her interview with him. It was put to Ms Hare that in 2008 and/or 2009 the applicant had organised a public memorial and mass for his deceased family members, and had spoken to a journalist from a local newspaper about his family tragedy. This was contrary to the applicant’s advice to her that he had never shared his family’s history in any level of detail with anyone, and is inconsistent with Ms Hare’s opinion that the applicant finds it uncomfortable to discuss. In response, Ms Hare said the applicant was tearful and distressed when discussing his early family life, however, conceded it seemed ‘strange’ that they had not discussed the applicant’s actions in organising such a public event.

56. In cross examination, Ms Hare was also made aware that the applicant had in fact been the subject of complaints in relation to his employment, and been summarily dismissed by his previous employer. Those facts were contrary to the information the applicant gave Ms Hare when specifically asked questions on those topics. In response, Ms Hare stated that the applicant’s failure to disclose such matters indicate an attempt by the applicant to “put his best foot forward”, which was consistent with the impression created during her interview with the applicant. Ms Hare said it is of concern that there are more inconsistencies in the applicant’s self-report, but she does not believe her assessment of the applicant as being in the low risk category would necessarily change. She further stated that the applicant’s risk was “probably lower than two”; that is, he would fall into the group where for every 100 offenders, approximately two are likely to sexually reoffend over the next 10 years.

(j) Information given by the applicant

57. The applicant continues to maintain his innocence in relation to the disqualifying offence. In his evidence, he said he strongly disagrees with the findings of the Local Court, and will continue to protest his innocence. He denies touching the victim anywhere near her private parts, and admitted only to putting his hands on her shoulders to escort her out of his home. He said he did this as it was the only way he could get the victim out of his house. In his written correspondence to the Tribunal, the applicant stated that there was no evidence of any physical contact between himself and the victim. In cross examination, the applicant stated he meant that there was no actual hand on skin contact.

58. The applicant was legally represented during his criminal trial in 2000. He indicated that he initially considered appealing his conviction. However, following advice from his legal representative about the possible outcome, he decided not to do so.

59. The applicant currently works as a bus driver three days a week. The demographic of his passengers varies and includes both adults and children. Whilst the applicant has indicated that he does not need to continue in his employment, he wishes to continue to work as bus driver, and in the future would consider casual coach driving, for example, for seniors and clubs. He is 70 years of age and had a major operation in 2014 for prostate cancer which required him to take time off work. He told the Tribunal that his current health is very good.

60. In support of his application, the applicant provided a certificate of appreciation for his service as a bus driver. He also provided a reference from his current manager, who states he has always found the applicant to be an honest, well presented, punctual and trustworthy employee.

61. The applicant submits that in his years of bus driving he has not been involved in any incidents of an unsavoury nature, and he tends to be protective of his younger passengers. He submits that he does not have a fascination with children and he is not a deviant. Rather, he submits he is clean living and sociable, and does not believe he poses a risk to the safety of children.

62. The applicant was cross examined at length by counsel for the respondent. The respondent suggested that the applicant had been untruthful and misleading in a number of respects during the interview with Ms Hare and in his written evidence to the Tribunal.

63. Counsel for the respondent suggested that the applicant was untruthful when he told Ms Hare that he did not reside with members of his extended family after the death of his family, as he did not disclose that he moved in with his grandparents after his family’s accident (as well as becoming a ward of Legacy). The respondent also suggested the applicant was untruthful when he told Ms Hare his father was in the Air Force, when other evidence indicates his father worked for the Department of Works.

64. In response, the applicant said that he only stayed with his grandparents for two weeks before he went to boarding school. In addition, he said that his father had in fact been in the Air Force (evidence of which he subsequently provided to the Tribunal) and it did not seem necessary to advise Ms Hare that his father had in fact left the Air Force.

65. The Tribunal was not satisfied that the applicant had been deliberately untruthful in either of those specific reports to Ms Hare (in relation to not living with extended family and his father being in the Air Force). Rather, the Tribunal accepts the opinion of Ms Hare that the applicant was attempting to “put his best foot forward” rather than being deliberately misleading. However, in other aspects of the applicant’s evidence the Tribunal did have concerns about the applicant’s veracity and credibility.

66. In particular, the applicant specifically denied that he had been the subject of customer complaints at work. Yet, records from his employment as a bus driver indicate that between December 2013 and December 2014 approximately nineteen complaints were lodged about the applicant’s behaviour. The applicant was found not to be at fault in respect of fourteen of those complaints, while on five occasions he was found to be at fault. None of those complaints involve allegations of inappropriate conduct of a sexual nature. Nor were they of a serious nature, relating mainly the applicant’s failure to drive on the correct route or stop to collect passenger/s, and his apparent rudeness to passengers and another bus driver.

67. The applicant concedes he did not disclose the fact that he had received complaints, but indicated that such complaints are a common feature of bus driving, and noted that for most of them, he was found not to be at fault. However, the Tribunal was less concerned about the substance of the complaints (none of which were of relevance to the Tribunal’s determination), but rather, the applicant’s denial of having been the subject of complaints.

68. In his written correspondence to the Tribunal, the applicant failed to disclose his most recent employment (where he was employed as a service and repair and/or sales engineer) prior to becoming a bus driver. This was despite that employment lasting for 2 years and 8 months, from 2006 to 2009.

69. Similarly, in his written evidence and his interview with Ms Hare, the applicant indicated that he retired from the corporate world to have a “sea change”. However, evidence from his previous employer (whom he did not initially disclose) indicates that the applicant had been summarily dismissed. The reason for his dismissal from that employment was due to his telephone records not matching his call reports; that is, the places where he was reasonably expected to be working.

70. In response, the applicant told the Tribunal that he did not disclose that employment to the Tribunal because it did not involve a senior management role. In relation to his termination, the applicant said he was given the opportunity to further discuss the issues with senior management, however, he elected not to do so as he had had enough and it was time to “get out”. He denies that he was being deliberately untruthful.

71. In his written evidence the applicant failed to disclose any periods of unemployment. He also specifically denied having any breaks from employment when asked by Ms Hare and by counsel for the respondent. Yet, during an interview with a Probation Service officer in 2011, the applicant indicated he was unemployed at that time and in receipt of a pension while looking for work in the hospitality industry. Upon further questioning by counsel for the respondent the applicant admitted he was unemployed during a period of 8-10 weeks while his driver’s licence was suspended, and had undertaken a security course in the meantime.

72. The Tribunal notes that during the same interview with the Probation Service, the applicant indicated he had worked as a service and repair engineer with his former employer (spelt incorrectly on the Probation Service record) for six to seven years. However, the other evidence indicates that such employment lasted approximately two years and eight months only. Similarly, during that interview the applicant indicated that he had completed Year 12 of school, while on his own admission he had in fact left school half-way through his fourth year of high school.

73. In addition, the Tribunal noted that in the applicant’s evidence to the Tribunal, the applicant said he had been working as a bus driver for “seven plus” years. Later, in his oral submissions, the applicant said he had worked as bus driver for eight years. Yet, other evidence, including his report to Ms Hare and his written correspondence to the Tribunal (in December 2014), indicate that the applicant has worked as a bus driver since 2009, therefore making the length of time in that occupation five to six years only.

(k) Any other matters that the Children’s Guardian considers necessary

74. The respondent opposed the making of the order sought, and submitted on the evidence the Tribunal could not be satisfied that the applicant had discharged his onus that he does not pose a risk to the safety of children. Counsel for the respondent submitted that the applicant had not been entirely frank with the Tribunal, and attempted to portray himself in a better light. She submitted that the applicant’s inconsistencies, while not in themselves particularly significant, taken together are relevant to the applicant’s honesty generally.

75. Counsel for the respondent submitted that whilst the psychological testing indicates the applicant poses a low risk of further offending, she suggests that the applicant’s risk increased from 1.5 to 2 (in 100) in light of the new information put to Ms Hare during the course of the Tribunal hearing. Counsel for the respondent submitted this represents more than a fanciful risk, and that the applicant has failed to show that he poses no risk to the safety of children.

Conclusions and Orders

76. The role of the Tribunal in this application is to determine whether the applicant has discharged his onus and rebutted the presumption that he does pose a real and appreciable risk to the safety of children because of his past offence of aggravated indecent assault of a child.

77. The Tribunal notes that the applicant’s offending was not sustained and repeated, but was a single incident involving the victim. Whilst not at the most extreme level of sexual offending, it is nonetheless serious, particularly in light of the victim’s age and vulnerability.

78. The Tribunal takes into account that since his offending in 1999, the applicant has not been convicted of any further offences against children. He is now 70 years of age. There is no evidence of any complaints of his behaviour towards children during the past five to six years he has worked as a bus driver, which has included contact with children on a regular basis. The psychological evidence indicates the applicant’s risk to children is low.

79. The applicant’s personal circumstances, namely, the loss of his parents and sisters at a young age, are extremely tragic. The Tribunal finds that the applicant remains genuinely and significantly affected by that event, and its emotional impact on the applicant was clearly evident when facing questions on the topic.

80. However, the Tribunal was troubled by some of the inconsistencies in the applicant’s evidence. A number of his statements were able to be soundly contradicted by other evidence. Although taken in isolation, none of the applicant’s inconsistencies or untruths were of special significance or seriousness in themselves. However, when considered in their totality, the Tribunal was concerned by the pattern that emerged, and found that the applicant was not frank and forthcoming. Such a finding is of particular significance in the context of section 27(4) of the Act, which imposes a positive obligation on the applicant to fully disclose to the Tribunal any matters relevant to the application.

81. It is clear that the applicant wishes to portray himself in a favourable light, which in itself is not unusual. However, the matters reflecting adversely on the applicant’s credit and the matters of inadequate disclosure together persuade the Tribunal that it could not have confidence that the applicant would have disclosed anything adverse or anything else that he was obliged to disclose under the Act unless it would support his application.

82. Furthermore, the Tribunal notes the applicant continues to maintain his innocence despite the findings of the Local Court. There is no evidence that the applicant has sought any treatment or counselling since his conviction, and it is apparent he does not see the need to do so. There is therefore little, if any, evidence upon which it could be said that the applicant has developed any insight into his offending conduct, its effect on children, and the measures he needs to adopt to ensure it does not re-occur.

83. The Tribunal accepts that if the applicant is granted a working with children check clearance he may work with children of any age. No conditions may be imposed on the grant of a clearance.

84. The Tribunal is cognisant of the fact that the safety, welfare and wellbeing of children and in particular, protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. Having regard to this principle, the Tribunal is unable to make a finding that the applicant has any real insight into his offending. Similarly and relatedly, the Tribunal is unable to find that that the applicant has taken sufficient steps to mitigate the risk of further offending. Accordingly, on all of the evidence before it, the Tribunal cannot be satisfied that the applicant has discharged his onus to prove that he is not a risk to children. Accordingly, his application for an enabling order is refused.

Order:

85. The applicant’s application for an enabling order is refused.

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: 26 June 2015