BVK v Children's Guardian

[2016] NSWCATAD 94

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BVK v Children’s Guardian [2016] NSWCATAD 94
Hearing dates:	18 December 2015
Date of orders:	16 May 2016
Decision date:	16 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) Pursuant to section 28 (1) of the Child Protection (Working with Children) Act 2012 declare that the applicant not be treated as a disqualified person for the purposes of that Act in respect of his conviction in 1981 of the offence of Indecent Assault - female contrary to section 76 of the Crimes Act 1900 (NSW). (2) Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a Working with Children Check Clearance. (3) The application for an enabling order is granted.
Catchwords:	CHILD protection - Administrative law - Working with children - Risk - Whether risk real and appreciable - Risk of harm - Period of time since offences - Evidence of risk to children - Absent evidence.
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children ) Act 2012 Child Protection (Prohibited Employment) Act 1998 Civil and Administrative Tribunal Act 2013 Commissioner for Children and Young People Act 1998 Crimes Act 1900
Cases Cited:	BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commission for Children and Young People v FZ [2011] NSWCA 111 R v Commission for Children and Young People [2002] NSWIR Comm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115
Category:	Principal judgment
Parties:	BVK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lange (Applicant) D Ward (Respondent)   Solicitors: Aquila Lawyers (Applicant) Crown Solicitor’s Office (NSW) (Respondent)
File Number(s):	1510193
Publication restriction:	s-64 (1) Civil and Administrative Tribunal Act 2013

Reasons for decision

1. The Applicant in these proceedings is referred to as "BVK". BVK is the applicant's pseudonym used in these proceedings.

Background

2. On 13 April 2015 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.

3. In addition a stay was granted to the applicant in respect of the decision of the Children’s Guardian (Respondent).

4. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

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.

5. These proceedings arise because on 25 March 2015, the Children's Guardian made a decision to refuse to grant BVK a Working with Children Check clearance. On 7 April 2015 the applicant BVK applied to the Tribunal for an enabling order pursuant to section 28 of the Act.

Chronology of application

6. On 16 January 2015 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a Working with Children Check clearance due to the fact that in his occupation in the bus / transport industry he may have contact with children.

7. On 25 March 2015 the respondent finalised the working with children check and the applicant was refused a clearance.

8. As a result of the refusal of the clearance the applicant is unable to engage in child related employment.

9. On 7 April 2015 the applicant lodged an application for administrative review before the Tribunal accompanied by an application for a stay. The grounds of the application are (in summary) that: 'That irreparable harm would be caused to the applicant if an order under section 28 of the Child Protection (Working with Children) Act 2012 NSW would not be made in circumstances where factors outlined in section 30 of the Act are favourable to the applicant.’

10. The issue now 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 an enabling order in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

11. The object of the Act is to protect children by not permitting disqualified persons, or 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).

12. 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).

13. 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.

14. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

15. Section 13 of the Act provides that a person may apply to the Children's Guardian for a working with children check clearance.

16. Section 18(1) provides that the Children's Guardian must not grant a clearance to a person who is a 'disqualified person'. The section provides:

18 Determination of applications for clearances

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

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

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

17. 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.

18. In 1981 the applicant was convicted of the then offence of 'indecent assault -female'. It is because of this conviction for indecent assault that under the legislation the applicant is rendered to be a "disqualified person".

19. The offence of indecent assault female is an offence under the then section 76 of the Crimes Act 1900. That section was repealed and its provisions placed elsewhere in the Crimes Act a few months after BVK’s conviction in 1981. Schedule 2 Clause 1 (1) (i) provides:

Schedule 2 Disqualifying offences

1 Specified offences

(1) The following offences are specified:

….

(i) an offence under section 67, 68, 71, 72, 73 (before it’s substitution by the Crimes Amendment (Sexual Offences) Act 2003), 74 or 76 of the Crimes Act 1900. 1I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O or 61P of the Crimes Act 1900,

20. Part 4 of the Act deals with reviews and appeals. Section 28 makes provision for review, by the NSW Civil and Administrative Tribunal, of decisions that a person is a disqualified person, by declaring that they are not to be treated as a disqualified person.

21. Section 28 provides:

28 Orders relating to disqualified and ineligible persons

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

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

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

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

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

because the person is a disqualified person.

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

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

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

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

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

22. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. The section provides that:

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.

Burden of Proof

23. 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] NSWIR Comm 101 at [130].

24. 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].

25. However, in this case there is a presumption that the applicant poses a risk to children as the applicant is currently a disqualified person seeking an enabling order pursuant to section 28 of the Act. The applicant is according to the legislation presumed to be a risk to the safety and well-being of children and young persons. (s-28 (7) ).

26. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 22 above).

27. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That 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". ...'

28. These observations of Young CJ (in Equity) had 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.

29. 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] before this Tribunal.

The Issue to be decided

30. The primary issue before the Tribunal in this application as outlined at paragraph 10 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to whether the applicant should (or should not) be granted an enabling order.

The Hearing

31. The applicant's application was heard on 18 December 2015. The matter was originally to be heard on 18 September 2015 but the applicant’s legal representatives sought an adjournment in order to obtain an updated psychological and risk assessment expert report. Both parties were represented at the hearing by Counsel. At the conclusion of the hearing the Tribunal reserved its decision.

32. As outlined above, there is a presumption under section 28 of the Act that the applicant poses a risk to children as the applicant is a disqualified person (seeking an enabling order) under the Act.

33. A significant amount of material was tendered at the hearing by both parties. The applicant tendered a detailed affidavit with a number of signed references, letters of commendation and similar material annexed. The applicant also tendered an expert report from P Sheehan Forensic Psychologist. The report had been prepared based on an assessment of the applicant some two weeks prior to the hearing. The applicant also provided written grounds with his application (as summarised at paragraph 7 above).

34. The respondent tendered four items / volumes of material it obtained under section 31 of the Act.

35. The applicant and his expert witness gave oral evidence at the hearing. No other witnesses gave evidence nor were any other witnesses required by either party.

Applicant's Evidence.

36. The applicant was asked about the disqualifying offence. The applicant filed an affidavit of 1 April 2015, which was tendered in the proceedings. In addition the expert report of P Sheehan Forensic Psychologist dated 4 December 2015 was tendered on behalf of the applicant.

37. In evidence the applicant accepted that there was an error in his affidavit and that in fact he had pleaded not guilty to the offence in 1981, and in addition he was legally represented at that time. On the first occasion before the Court there was some doubt in respect of representation however it was clear that when the matter was heard before the Court the applicant was represented by Counsel.

38. In examination in chief the applicant gave evidence that a Mr ‘B’ made an allegation against him at his Sydney Bus depot, and that this was as a result of the applicant making a veiled threat of violence against his accuser. Whilst the allegation as recorded by his employer included a threat to perform a sexual act, the applicant denied making any such threat. His evidence was that he would ‘put him up against a wall as punishment’. When asked why he had made the threat in the terms conceded, the applicant advised that the other party / colleague Mr ‘B’ ‘acts like a little kid’ and is in effect immature and irresponsible towards his work.

39. His evidence was that Mr ‘B’ is a trouble maker and makes obscene gestures towards the applicant around the depot. In evidence the applicant again denied the allegation and stated that no charges (criminal or workplace) had arisen from the matter.

40. The applicant was taken to the expert report. The report stated that:

The granting of a stay in April has allowed (BVK) to continue driving buses in the interim before his NCAT hearing. However, he explained to me that in response to adverse media reports, the Transport Minister intervened and (BVK) has been temporarily redirected to a maintenance role in ….. bus depot until the matter is resolved.

41. The report then went on to detail the financial penalties arising from the removal of shift and overtime allowances. The applicant was questioned about this by his Counsel, particularly in respect of compliance by him with the Tribunal’s Order. BVK’s evidence was that notwithstanding the order of the Tribunal (and BVK holding a valid clearance due to the stay), because a colleague with a personal agenda against BVK called talkback radio and complained that BVK was driving buses, management re-directed BVK to depot based work (which does not require a clearance).

42. The applicant gave evidence that he had worked as a bus driver for 36 years, and had predominantly worked over a 6 - day roster. This however entailed 12 days straight, one day off, 10 days straight, followed by two days off. His evidence was that ordinarily he would transport thousands of passengers a day. He also worked on school charters and school bus routes regularly during his career.

43. In cross-examination the applicant denied being spoken to by management about problems with a female colleague. BVK’s evidence was that this colleague was the caller to talk back radio (outlined above), or so he believed from rumours circulating around the depot. BVK’s evidence was that the conflict related to his membership of the relevant trade union, and being a position holder / office bearer. His evidence was that the motivation for the conflict was that the female colleague resented BVK’s union position and coveted similar involvement for herself. However no evidence was available to verify or rebut this minor aspect of the overall evidence.

44. The applicant’s evidence was that since the 2001 child protection provisions came into force, he was not required to make any declarations or obtain any clearances prior to making this application to the respondent in January 2015.

45. The applicant was taken specifically to the 1981 incident which entails the disqualifying offence. The applicant’s evidence was that he could not remember the matter clearly. He was shown the transcript of the Magistrates Court. BVK in evidence before the Tribunal was unable to recall all of the aspects of the examination and re-examination by his solicitor. The applicant maintained his concern or objection to the term touching, and stated that it was a ‘brushing’.

41. In brief, the allegation (for which BVK was convicted) was that whilst working as a bus driver in July 1981, he struck up a brief conversation with a 17 year old schoolgirl who was at that time a student in year 12 (or the 6th Form as it had been known up until 1977). The evidence was that he went to the rear of the bus to change the destination sign / number and sat next to the victim. After a brief conversation he was alleged to have placed his hand inside the top of the victim’s dress on her breast. The applicant maintains that he touched the victim’s breast but only on the outside of her uniform / jumper, in the context of brushing off some grass which was attached to the upper part of her clothing.

42. It was conceded that the Magistrate preferred the evidence of the complainant / victim (Miss ‘B’) that BVK touched her on the breast in the manner that she said. BVK was convicted and placed on a Bond without passing sentence. Evidence arose at the Court hearing as to the potential impact on the applicant’s then employment and whether with the conviction he would still be considered a fit and proper person to drive buses.

43. In the applicant’s evidence before the Tribunal he regrets that he ‘ever came near the passenger at Earlwood’, being the 1981 incident.

44. The applicant was questioned about his son ‘S’. The Department of Community Services was apparently notified as there was an apparent issue with his son touching female students at school. The applicant’s evidence was that ‘S’ had a history of Attention Deficit Disorder, and Attention Deficit / Hyperactivity Disorder. The applicant placed his son into a Catholic School as he believed that this might provide a better environment for ‘S’.

45. The applicant was questioned about paragraph 11 of his affidavit where he deposed that from 1994 until March 2015 when he was notified of the bar, he had been continually employed to drive buses with his current employer without incident, and that he was a person of good character and an upstanding employee.

46. The respondent put it to the applicant that there were in fact ‘incidents’ arising from his employment during that period. The applicant’s evidence was that they are ‘usual’ incidents for a bus driver and nothing ‘unusual’.

47. There was a 2001 incident whereby the applicant’s evidence was that he started a route in one suburb and a female person took a taxi to a railway station bus stop a few suburbs away. The taxi pulled in front of his bus, and the occupant / passenger got out and came onto his bus and started abusing and attacking him. The applicant’s evidence was that the police took her statement but not his statement. On the applicant’s version the female alleged that the bus had departed early and she pursued it in a taxi, and that is why it pulled in front of his bus and she came on board and had words with him. It appears that the applicant suffered an anxiety attack and received medical treatment once his bus was evacuated of passengers.

48. There was a complaint involving a colleague (Mr ’B’ see paragraphs 38 and 39 above). The applicant was asked why this had not initially been raised with his solicitor, as part of his duty under the Act to disclose all relevant matters. The applicant advised that his understanding was that ‘complaints’ related to matters concerning customers / the public and not colleagues.

49. This matter appears to have arisen from a cultural dispute arising from an offer of food (on a reading of the statement of both Mr ‘B’ and the applicant). The disparity between the versions of events as to what was actually said and the nature of the threats / statements, remains in dispute (as set out in the applicant’s evidence in chief).

50. There was another incident whereby a utility vehicle (ute) was parked in a bus stop. The respondent tendered material obtained from the applicant’s employer about this complaint from a colleague bus driver about the applicant’s behaviour. However under cross-examination the applicant denied ever knowing of any complaint or workplace examination of it. He recalled an incident but stated that the matters set out about the incident from the respondent’s material had never previously been raised with him or shown to him by his employer.

51. The applicant was questioned about a Company for which he was the sole Director. The applicant’s evidence was that the purpose of the company was to transport meat for a Lebanese food chain. The applicant when challenged about his failure to disclose this issue but gave evidence that as he did not end up being employed by that company, he did not see it as relevant.

52. The applicant was also questioned about an Apprehended Violence Order (A.V.O.). The AVO was in fact an Interim AVO and had been adjourned to his son’s trial around September 2016. The applicant gave evidence that he was a Crown Witness in that trial, and that was related to the AVO. There were however allegations that the applicant had tried to influence a witness through contact, but that appears to have been a misunderstanding and no further action was taken.

53. In a separate matter the respondent provided police material concerning an incident with the applicant’s former spouse. The material again related to the application for an AVO, however we note that the person in need of protection advised police that ‘nil threats or assault occurred’.

54. Finally the applicant was questioned about a security business that he had an interest in. The applicant gave evidence that the business only dealt with static security guards, not armed guards, and his role was as company secretary. They had contracts for construction sites and car parks not shopping centres. The applicant’s evidence was that he was not currently working as a security guard and when he had worked as a guard he was an unarmed guard performing crowd control. His evidence was that he had last worked as security guard in 2004.

55. In re-examination the applicant was asked when he last ‘touched a passenger’. His evidence was that this had never happened since the 1981 incident in any manner.

56. The applicant stated in evidence in re-examination that he was ‘really sorry that he had made her (Miss ‘B’) feel bad and that it was not his intention and he is really sorry’.

The evidence of the Expert Witness

62. The expert witness gave evidence about his experience and qualifications (which were annexed to his report) and outlined that he had experience performing services for Corrective Services since 1999. His main experience arises in the areas of treatment and assessment. The witness gave evidence in chief that he has experience with supervising high-risk offenders. In addition he was involved in a program of screening all sex offenders within one year of their eligible parole date. He performed actuarial and dynamic risk assessments and in respect of the applicant, concluded that he is a negligible risk. The applicant’s Counsel asked about the issue of minimisation, and the witness gave evidence that in his opinion this often has little bearing on risk. This was further explained by reference to such a position being set out in the psychological academic literature and studies.

63. Under cross-examination the witness was asked about the material that he accessed in preparing his report. The evidence was that he had only received every second page of the sentencing remarks / transcript of the 1981 hearing but had received other material. The witness was asked whether in his opinion the applicant demonstrated any empathy towards the 1981 victim. The expert witness answered that on the material he had seen the applicant did not display any empathy. However this was qualified by the view that this was because the applicant did not agree with the charge. The witness agreed that the applicant made uninvited and unwanted physical advances / contact with the victim.

64. It was put to the witness that the applicant was operating under a particular offending syndrome, that is that in the applicant’s view the victim was ‘up for it’, and that informed the applicant’s behaviour. The witness gave evince that on the material before him, and his own assessment the applicant did not demonstrate those attitudes. The witness gave evidence that he focused on the 1981 incident differently to how he might usually examine the actions of an offender due to the 34 year passage of time between conviction and the assessment.

65. The witness advised that he did not explore the issue of the Interim AVO. In respect of police intelligence report the witness indicated that in his view they could not be given any significant weight when making his assessment as the majority of the matters contained therein do not proceed to a charge or conviction. The witness indicated that in his view there is often confusion between elements of a person’s character and their risk to children. In the expert’s opinion one cannot assume that they are the same and he could not see any link with the applicant’s history and presentation.

66. The witness was questioned about the reference to ‘anti-social influences’ in his report. His evidence was that this arises only as an aspect of taking a full history from a client / subject.

67. When asked about the protective factors in the RSVP test and whether in connection with his report the 2012 ‘Mr B’ incident at the bus depot was in his opinion baseless, the witness gave evidence that he did not believe that the incident was baseless, or without foundation. However, in the expert’s opinion it did suggest that the applicant had some difficulty in reading cues from others.

68. In respect of the sexually suggestive threat in the 2012 ‘Mr B’ incident, the witness agreed that the exchange was a statement of someone who is more than a little upset, and if that occurred then the consequences arising from the failure to read cues and overreact when upset were potential issues.

69. The witness cautioned and opined that he needed to be careful in linking matters which were half a lifetime apart. Whilst on his assessment all of the applicant’s scores and results were in the normative range, he stated that all individuals however they score will however from time to time potentially ‘have episodes’. Of significance to the witness was the fact that it was 34 years since the offence and there was a long period of relatively stable employment indicating the applicant’s conformity and his responsibility.

70. The witness gave evidence that he had obtained information about the applicant’s demeanour and attitude to people throughout the assessment process. This material indicated that in his occupational setting, patrons are often angry with buses, with buses being late, full and crowded and not picking up passengers, and that there is significant exposure to mentally ill persons interacting with both drivers and other passengers.

71. Finally the expert witness was asked if he had asked the applicant about the alleged incident with the ‘ute’. The witness had not asked the applicant about this but agreed that if factual it was indicative of the applicant’s trouble managing his behaviour.

The Respondent's evidence and submissions

72. The respondent filed written material amounting to approximately 250 folios as well as written submissions. In addition the respondent provided oral submissions at the conclusion of the evidence.

73. The respondent submitted that because of various discrepancies in the applicant’s evidence surrounding the 1981 Court matter, he does not demonstrate a proper insight into his prior offending behaviour because he does not even acknowledge his prior offending behaviour.

74. The respondent submitted that whilst the 1981 disqualifying offence was not the most serious offence, (being of the less serious range), this should not been seen as downplaying of the impact on the victim. In that regard the respondent agreed that the incident was not particularly aggravating but the fact remained that the victim was legally a child.

75. The respondent also highlighted the fact that the Magistrate accepted the victim’s evidence over the applicant, and specifically the fact that she told the applicant she was in ‘sixth form’. The respondent submitted that the impact on the victim is a relevant consideration.

76. The respondent submitted that the Tribunal needed to have regard to three workplace incidents since 2001.

Applicant's submissions

77. The applicant's Solicitor gave oral submissions at hearing. The expert reported that the 2012 incident involving the respondent’s colleague ‘Mr B’ did not cause him any concern. In making a submission going to section 30 (1) (i), it was submitted that the lack of any relevant offending other than the 1981 offence was significant, and pointed to a low risk and low likelihood of any repetition based on the agreed facts.

78. Further it was submitted that the Tribunal should give significant weight to the report of Mr Sheehan. In particular the following passages were said to be of particular relevance to the task before the Tribunal.

14. In my view there is no evidence of paraphilia. His conviction in 1981 would appear as an isolated incident. There is no suggestions of a pattern of disordered sexual behaviour, sexual impulsivity, or sexual preoccupation.

15. I could see no compelling evidence that (BVK) had a disorder of personality.

….

21. (Based on the score on the Static -99R..) this placed (BVK) in the Low risk category relative to other male sexual offenders. Further more, as per the Static-99R coding rules, consideration needs to be given to the 34 years that (BVK) has resided in the community without any form of restriction or supervision since his conviction. …

23. ….(BVK) Meets none of the criteria for these empirically based risk factors. Although he does minimise his 1981 offence by denying any sexual intent, he does not deny the offence and exhibits no attitudes that support or condone sexual offences..

24. .. In my expert opinion, the overall totality of information would suggest that his risk of reoffending would be considered negligible. He would appear to have come to attention in this matter due to procedural changes to the Working with Children Check as per section 18 of the Child Protection (Working with Children) Act 2012 and not because of any contemporaneous concerns about his ongoing behaviour. ….

79. The applicant submitted that the applicant posed no real and appreciable risk to the safety of children and young persons, and as such the enabling order should be granted.

Section 30 (1) considerations

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

80. The applicant was charged and convicted of the offence of indecent assault. The 1981 offence is a serious offence. It is an offence listed in Schedule 2 of the Act and as such it is a disqualifying offence. The applicant submitted that whilst this is a serious offence it was conceded between the parties that the circumstances of the offence were not of the most serious nature. Having regard to the range of charges available in respects of assaults generally, and noting that the preferred charge appears to be the most appropriate, in our view the circumstances are at or below the middle of the range of objective seriousness. This view takes into account the opportunistic nature of the offence and the apparent impact on the victim.

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

81. The applicant's offending occurred over 35 years ago. There are instances of workplace issues going to sexualised behaviour or threats in more recent years. However, noting the somewhat equivocal nature of the findings, the applicant’s own evidence at the hearing as to the circumstances of the incidents, the Tribunal places minimal weight on these matters in respect of this specific consideration under the Act.

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

82. The applicant was approximately 26 at the time of the 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.

83. The offence involved an adolescent female being 17 years of age. The fact that the applicant was an adult and the victim was a minor, and a passenger under the authority or responsibility of the applicant / driver, in our view demonstrates a level of vulnerability.

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

84. The victim of the offence was approximately 9 years younger than the applicant. On the evidence before us the victim was a stranger to the applicant. However, the applicant was the victim’s bus driver and therefore had responsibility for her both in that capacity and also as he was an adult and she was a child.

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

85. The victim was legally a child. The evidence in the Court and the evidence before the Tribunal from the applicant indicate that he knew she was in all likelihood a child as she was known to be in her final years at High School.

(g) The person's present age.

86. The applicant was 60 years of age at the time of the hearing.

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

87. The total criminal record comprises the offence set out at paragraphs 18 and 19 (above). The disqualifying offence is a serious offence attracting a possible penalty (at that time) of 2 years imprisonment. The workplace history of the applicant in respect of ‘complaints’ is a matter of contention between the parties. Whilst some matters are diminished or minimised by the applicant irrespective of the workplace finding (e.g. the 2012 ‘Mr B’ incidents), in other matters (the 2014 incident where a colleague complained about the applicant’s behaviour whilst on duty in a work Ute), they are not conceded by the applicant.

88. Whilst there are matters relating to interim and preliminary applications for apprehended violence orders, the evidence is somewhat vague and equivocal. In addition we note that those matters (at least in the form put before the Tribunal), are aligned with civil law rather than criminal law.

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

89. A risk assessment was provided by the applicant in respect of his application and an assessment of his real and appreciable risk of reoffending or behaving in a manner detrimental to the safety and well being of children. The report is favourable to the applicant's application in that he is assesed as having a low risk, and that there was no direct evidence of any risk to children.

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

90. The applicant provided approximately 20 items of commendation from his employers over his long and varied bus driving career. In addition there were numerous certificates of completion of courses relevant to transport and tourism, as well as personal commendations from clients. In addition the applicant demonstrated sorrow and remorse before the Tribunal in his evidence concerning the 1981 incident. The applicant’s oral submissions are set out above. Predominantly the applicant provided an expert report and his witness was subject to examination at the hearing. As stated above, in our view this report assists the applicant’s case, and the necessary burden which he is required to discharge.

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

91. The Children's Guardian submitted that the applicant’s evidence as to the circumstances of the 1981 offence / conviction cannot be accepted. It was submitted that the applicant’s affidavit evidence is in part unreliable, and contradicts the recorded facts.

91. The respondent submits that because the Magistrate accepted the victim’s / complainant’s version of events over that of the applicant, then it follows that the applicant cannot demonstrate insight into his prior offending behaviour because he does not even acknowledge his prior offending behaviour.

92. The respondent submitted that in all of the circumstances the Tribunal could not be satisfied that the applicant does not pose a risk to the safety of children.

Consideration

94. We have carefully considered all of the material submitted by the parties in these proceedings. Whilst we note that the applicant is a disqualified person, the task of the Tribunal is to ascertain whether the applicant is a real and appreciable risk to the safety and well-being of children and young persons.

95. There are many cases which address the issue of how risk should be considered and what findings if any can be made on such matters in the context of this jurisdiction. In the current case the findings as to the conduct in respect of the offence are clear.

96. In the case of BFC v The Children's Guardian [2014] NSWCATAD 90 His Honour Judge Mullane considered the issue of risk in respect of an enabling order application. At paragraphs 57 to 58 His Honour considers the conclusion of the expert witness and the meaning that this carries in respect of risk. At paragraph 58 reference to Young J's comments in the case of 'V' are considered.

57.Overall, the Tribunal finds that Ms Howell's conclusion is reliable and therefore the Tribunal accepts that the Applicant does not pose a real risk to children. It should be noted, however, that this is not a finding that the Applicant is no risk at all. Theoretically, most adult males pose some risk, but it is well established that the risk to be considered is a real risk, rather than a theoretical risk.

58.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". Young CJ in Eq held regarding the construction of the section [At par 41] and [at par 42]:

"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".

"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'".

97. We have carefully considered all of the evidence and submissions given, and filed by the parties even if we have not referred to every aspect of it specifically in these reasons.

98. We note the significant passage of time between the matters which occurred in 1981 and when the applicant was giving evidence in these proceedings.

99. Having regard to the material before the Tribunal, in our view there is insufficient evidence and material to make a finding that the applicant poses a real and appreciable risk to the safety and well-being of children and young persons.

100. In making this observation we note in particular that the disqualifying offence occurred over 35 years ago and that in respect of children there have been no concerns in the intervening period. In our view the AVO matters are of no import having had regard to the totality of the evidence and material. In addition whilst the disqualifying offence is serious, we note that it is one of the lesser offences referred to in the Schedule when one has regard to the circumstances of the offence and the penalty imposed by the Court. In making this observation we are in no way intending to mitigate the conduct, but examining it for what it is, in the context of real and appreciable risk, we note those matters above particularly in the context of the intervening period.

101. Conduct was set out concerning some of the other incidents occurring whilst driving buses. These matters seem to indicate a reaction to a set of circumstances when the applicant was confronted with challenging circumstances. If anything the 2001 incident appears more medical in nature than anything pointing specifically to risk. That aspect (if relevant) is more relevant to notions of fitness and propriety under other legislation such as the Road Transport Act 1989. In our view very little weight if any attaches to real and appreciable risk involving children and young persons from that incident.

102. Notwithstanding the material put forth by the respondent in respect of the 2014 (Ute) incident, it is clear to the Tribunal that if any inference were made in respect of this matter (in the absence of the applicant having any of those matters put to him by his employer), it would constitute unfairness. In cross-examination the applicant gave evidence that none of those matters were ever put to him by his employer. As far as his evidence was concerned it was never raised with him. Whilst the respondent was able to produce managerial and disciplinary material from the applicant’s employer on the 2012 and some other issues, nothing was provided of this nature in respect of the 2014 incident. All that was provided was one version of the allegation. The respondent did not produce any further material or findings in respect of that matter.

103. The matters relating to interim and provision AVO’s are in our view of little weight. These matters involve civil rather than criminal law processes. Whilst allegations may have been formalised by a complainant, or an assessment made by an authorised officer, there is no presumption that the risk (if any) is real or appreciable, merely a potential for risk which is untested.

Conclusion

104. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act, we reach the following conclusion.

105. The evidence and material referred to in these reasons does not establish that the applicant poses a real and appreciable risk to the safety of children.

106. Therefore in our view the evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant poses a risk to the safety and wellbeing of children.

107. In expressing these views above we note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

108. In our view having regard to all of the material before the Tribunal, the applicant does not pose a risk to the safety of children.

109. It therefore follows that the Tribunal should make an enabling order in accordance with section 28 of the Act.

Orders

110. 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 disqualifying offence.

1. Pursuant to section 28 (1) of the Child Protection (Working with Children) Act 2012 declare that the applicant not be treated as a disqualified person for the purposes of that Act in respect of his conviction in 1981 of the offence of Indecent Assault - female contrary to section 76 of the Crimes Act 1900 (NSW).

2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a Working with Children Check Clearance.

3. The application for an enabling order is granted.

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: 16 May 2016