BVT v Children's Guardian

[2016] NSWCATAD 12

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BVT v Children's Guardian [2016] NSWCATAD 12
Hearing dates:	17 December 2015
Date of orders:	13 January 2016
Decision date:	13 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson - Senior Member M O’Halloran - General Member
Decision:	1) The decision of the Children’s Guardian dated 20 November 2013 to refuse to grant the applicant a Working with Children Check clearance is affirmed. 2) The application for review of the decision of the Children's Guardian and an enabling order filed 17 April 2015 is otherwise refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- disqualifying offence under (repealed) section 65 Crimes Act 1900 (NSW) assault with intent to rape-plea of guilty - sentence of 5 years imprisonment- risk assessment – assessment of risk posed by applicant- likelihood of repetition of disqualifying offence - whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence - onus of proof not discharged by applicant- enabling order refused.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Children and Young Persons (Care and Protection) Regulation 2012 Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIRComm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BVT (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Andelman (Applicant) J Harris (Respondent)   Solicitors: Legal Aid NSW (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510210
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any victims, nonprofessional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

Reasons for Decision

Introduction

1. This is an application commenced on 17 April 2015 seeking administrative review or appeal of a decision by the Children’s Guardian which was notified to the applicant on 20 November 2013. The Children’s Guardian informed the applicant who is referred to as “BVT” in these proceedings, that due to his conviction on 29 March 1973, for which he was sentenced on 8 June 1973, of an offence of assault with intent to rape under (then) section 65 of the Crimes Act 1900 (NSW), he was not eligible to be granted a Working with Children check clearance. The applicant was sentenced for that criminal matter to five years’ incarceration. It was not in dispute that the offence is one which is specified within Schedule 2 of the Child Protection (Working with Children) Act 2012 (“the Act”).

2. The Children’s Guardian cannot grant a clearance because of the conviction for assault with intent to rape, which is an offence specified in schedule 2 of the Act: section 18 (1) (a) of the Act. The applicant filed an application for administrative review of the decision of the Children’s Guardian. That application was intended to be and ought be treated as an application for an enabling order pursuant to section 28 (1) of the Act. The application clearly was filed out of time by a couple of years. On 16 July 2015 the Tribunal extended time for the applicant to file his application and that is how the matter came to be listed for hearing on 17 December 2015.

3. An order was made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. This order has continued. The matter was heard on 17 December 2015 at which time additional evidence was provided by the applicant.

4. The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The enabling order would permit the applicant to work with children in any child-related work. The respondent adopted a neutral position in relation to the application for an enabling order: neither in favour nor against the grant. The Children’s Guardian acted as a contradictor. The respondent submitted that the applicant bears the burden of proving that he does not pose a risk to the safety of children.

5. The formal and legal matters which are set out from this point in these reasons are repetitious of the same provisions which are set out in previous judgments of the Tribunal. The discussion which follows is repetitive of matters set out in earlier judgments of the Tribunal, but is set out in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children’s Guardian. The statement of the law applied to this decision is therefore fully set out in these reasons.

The Evidence

6. The documentary evidence provided behalf of the applicant and the respondent and received by the Tribunal is as follows:

1. Affidavit of the applicant dated 14 August 2015 and filed on 19 August 2015: Exhibit A1;

2. Report of Caroline Hare dated 2 September 2015 annexed to the affidavit of the applicant’s solicitor: Exhibit A2;

3. Additional report of Caroline Hare dated 8 December 2015: Exhibit A3;

4. Outline of applicant’s submissions filed 8 December 2015: Exhibit A4;

5. Application filed by the applicant on 17 April 2015 annexing the letter from the Children’s Guardian dated 20 November 2013 and grounds for the application: Exhibit A5;

6. Bundle of documents filed by the respondent for the interim hearing on 16 July 2015: Exhibit R1;

7. Criminal History of the applicant relied upon by the respondent for the interim hearing on 16 July 2015: Exhibit R2;

8. Further bundle of documents filed by the respondent on 31 July 2015: Exhibit R3;

9. Further documents filed on behalf the respondent on 2 December 2015: Exhibit R4;

10. Outline of Submissions on behalf of the respondent filed 2 December 2015: Exhibit R5.

7. There was no objection maintained by either party to the receipt of this evidence by the Tribunal.

8. The applicant gave oral evidence and was cross-examined. The expert retained by the applicant was also cross-examined. The applicant’s partner also gave oral evidence, even though she had not given any written evidence.

9. The Tribunal received and was assisted by oral submissions in addition to the written submissions already provided.

10. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

11. The Act came into force on 15 June 2013. The amendments to the Act introduced in 2015 do not apply to this application.

12. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.

13. The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.

14. There is no relevant definition of “child abuse” contained in the Act.

15. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of “child and young person abuse” has been created in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence created by the section reads as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units”

16. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

“The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.”

17. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition contained in section 4 (1) of the Family Law Act 1975 (Cth).

18. The offence with which the applicant was charged and convicted is one which falls within of Schedule 2 of the Act. Therefore, the applicant is treated as a “disqualified person”. By reason of section 18 (1)(a) of the Act the Children’s Guardian must not grant a working with children check clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act. The applicant is relevantly for the purposes of the Act now an adult and was an adult, aged over 18 years, at the time of the offence. The offence with which the applicant was charged was assault with intent to rape upon an adult woman in the circumstances referred to later in these reasons.

19. The applicant seeks a working with children clearance to work with children because the applicant wishes to care for his granddaughter who is currently placed in out-of-home care. The applicant has had contact with his granddaughter on an unsupervised basis in order for her to maintain contact with her Aboriginal culture. The applicant is proudly of Aboriginal descent. The applicant may be unable to have unsupervised contact with his granddaughter in the future because he is a disqualified person. The applicant can continue to have supervised contact with his granddaughter subject to any conditions that the child welfare authority may impose to protect her safety.

20. An enabling order is therefore sought pursuant to section 28 of the Act which 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.”

21. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act.

22. A person is not permitted to engage in “child-related work” unless they hold a working with children check clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage in child-related work as an authorised carer, which therefore requires that the applicant obtains a working with children check clearance. The contact the applicant has with his granddaughter apparently is regulated by the child welfare authorities. The last occasion of unsupervised contact occurred on 1 January 2015.

Standard of Proof and Onus of Proof

23. It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995;BKE v Office of the Children’s Guardian [2015] NSWSC 523.

Required Considerations

24. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are:

“30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.”

25. The Children’s Guardian received information pursuant to section 31 of the Act from various government agencies, including the police and the courts. That information was tendered in evidence and referred to earlier in these reasons: Exhibits R1-R4.

26. It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children’s Guardian, at [4], [25], [27].

27. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

28. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

29. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “a real and appreciable risk”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was); BKE v Office of the Children’s Guardian [2015] NSWSC 523 esp at [26], [27].

28. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

...

[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

31. In the matter before the Tribunal the applicant has been convicted of an offence referred to in Schedule 2 of the Act. The applicant has also been convicted of other offences which are referred to in more detail in these reasons. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence in relation to the offences with which the applicant was convicted and those matters charged of which the applicant has now been acquitted: section 63 of the Administrative Decisions Review Act. The Tribunal is therefore required to take into account those convictions and the circumstances upon which pleas may have been entered as proved on the criminal standard of proof, that is, beyond reasonable doubt.

Other matters

32. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

33. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence for which the applicant has been sentenced to 5 years imprisonment under section 65 of the Crimes Act 1900 (NSW) on 8 June 1973: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW).

34. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

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

Consideration of the evidence

36. The evidence received by the Tribunal is required to be considered under each of the subheadings of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

37. The offence which renders the applicant a disqualified person is objectively very serious.

38. The applicant has described in his evidence the circumstances of the offence differently to the description provided by the police. The applicant pleaded guilty to the offence and the police facts are thereby considered to be the proven factual circumstances surrounding the offence.

39. The applicant states that he does not “have a great memory of the offence” which renders him a disqualified person. The applicant said that he has some problems with his memory, and that it is a period of his life which he has tried to put behind him: Exhibit A1 [35]. The applicant said at the time of the offence he did not have a close relationship with his family: Exhibit A1 [33]. In the police documents produced to the respondent it is stated that the applicant was living with his mother in Sydney at the time of the offence: Exhibit R4 page 1.

40. The applicant gave evidence that the incident occurred outside a club in Newtown, Sydney where the applicant said he had been drinking heavily and that he was drunk at the time of the offence: Exhibit A1 [36]. In the grounds for the application submitted with the application filed 17 April 2015 includes the statement: “[The applicant] and victim were both young adults and met at a club. [The applicant] was intoxicated at the time the offence was committed.”: Exhibit A5.

41. The police facts to the offence of assault with intent to rape summarise the record of interview with the applicant and the statements of the other witnesses including the victim. In essence, the applicant and his cousin were at Newtown railway station at approximately 10:25 pm on 16 March 1973. The victim and her male friend walking from the station when the applicant verbally abused the male friend. The victim and her male friend walked into King Street Newtown when the applicant produced a small knife and said words to the effect: “see what I have got here.” The male friend of the victim ran to a nearby house, then to the police station at Newtown. The applicant followed the girl into Station Street where he pushed against a wall with one hand holding her hand and the other around her throat. The applicant put his hand down front of the victim’s blouse and ripped it. The applicant felt the victim’s breasts with his hand. The applicant said: “I will kill you if you do not let me root you.” The victim responded: “I would rather you killed me than raped me.” The applicant held a knife against the victim’s throat. The victim screamed. The applicant touched the victim between her legs and told her to take her pants off. The victim refused. The applicant asked for some money and was given approximately $0.30. The applicant slapped the victim and lent over her to kiss her. The victim pleaded with the applicant to be let go and he told her: “I’m going to have to root you now.” A person passing by in a motor vehicle stopped his car and asked what was happening in response to the victim’s struggling and that screams. The victim said: “Please help me.” The applicant let go of the victim and she ran towards the car and she jumped in. The applicant went over to the car and wanted to fight the passerby. The passerby said to the applicant: “If you say any more I will kill you.” The victim was taken to the police station in the car where she was interviewed. The male companion drove with police towards the RSL Club and recognised the applicant walking down Station Street. The applicant was arrested: for the full version see the documents contained in Exhibit R4 pages 12-28.

42. The applicant pleaded guilty on 29 March 1973 in the Local Court and was sentenced on 8 June 1973 in what is now the District Court what was then called the Court of Quarter Sessions. The applicant was represented by Mr R Blanch (as he then was). That barrister subsequently became the Chief Judge of the District Court. The sentence was imprisonment with hard labour for a period of 5 years to date from 17 March 1973 with a non-parole period of 18 months specified. The records are noted that the applicant adhered to his plea and the facts and antecedents were given prior to the sentence: Exhibit R4 page 31. Whilst there may be some doubt that the confession of the applicant was accurately recorded in the record of interview, the other witnesses statements were accepted by the Court and apparently by the applicant with the benefit of competent legal advice.

43. The applicant presented to Ms Hare (Exhibits A2 and A3) “as an inconsistent historian” which she considered reflected poor memory rather than a conscious attempt to mislead her: Exhibit A2 [10].

44. The applicant told Ms Hare what he recalled about the offence which renders him a disqualified person, Exhibit A2 [27], as follows:

“[The applicant] was able to recall that he was drinking at Newtown RSL, and he noticed the victim at the same location during the evening. He agreed that he thought she was attractive, although he did not approach her during the night. When victim left the RSL, [the applicant] stated that he followed her and ‘grabbed her’ in the doorway of her home. As he did so, she apparently screamed and he stated that this had alerted the police, who attended the scene and he was arrested. [The applicant] was unable to recall any specific sexual thoughts prior to, or during the offence, and he was unsure whether he had been sexually aroused. However, given that he had specifically noted the victim’s physical attractiveness prior to deciding to follow her, it seems realistic to assume a level of sexual intent.”

45. After Ms Hare was given copies of further material provided to the Children’s Guardian she was able to say in Exhibit A3 at [3]:

“Having reviewed the material, it is clear that [the applicant] provided me an account of the trigger offence that was inconsistent with events outlined in the additional material.”

46. The other witnesses who gave statements at the time did not support the version given by the applicant. There is clear evidence upon which the Tribunal has to rely and it contradicts the stated memory, or lack of memory, of the applicant.

47. Ms Hare slightly revised her opinion concerning the applicant in Exhibit A3 at [5] as follows:

“I continue to be of the opinion that he did not harbour attitudes that condoned sexual violence at the time the offence, but that he was able to overcome any barriers to committing it through his lack of empathy and absence of concern for the consequences on the victim at the time. Based on this, I would add antisocial and narcissistic personality traits as a risk factor at the time of the offence. I continue to be of the opinion that the sexual offence was impulsive and opportunistic; it cannot have known the victim’s male partner was going to leave her alone whilst he went to seek the police, and as such seems unlikely that [the applicant] was initially following the victim and her partner with the goal of sexually assaulting the victim.”

48. The offence was serious. It was sufficiently serious to warrant a sentence of 5 years’ incarceration.

The period of time since those matters occurred and the conduct of the person since they occurred

49. The offence occurred some years in the past.

50. The applicant has been in a de facto relationship with his current partner for approximately 26 years. At the time the commencement of his relationship with his de facto partner there were 3 children in the household aged 9, 7 and 5 years old.

51. The applicant was married when he was about 21 years of age. Subsequently, the applicant divorced his wife when he was approximately 26 years of age. The applicant does not have any biological children. When the applicant has contact with his partner’s biological granddaughter whom he considers also granddaughter, the applicant says that he does not hit her as a form of punishment: Exhibit A1 [30]. It is likely that if he did, there would be no more contact organised by the child welfare authorities.

52. The applicant stated in his affidavit that other than a couple of traffic offences he has not had any significant dealings with the police since about 1980: Exhibit A1 [20]. The applicant also states that he has not had any trouble with the police since 1991: Exhibit A1 [46].

53. The applicant was released on parole for the offence of assault with intent to rape, but because he breached the parole conditions he served the remainder of the sentence in jail.

54. The applicant has involved his partner’s biological granddaughter in NAIDOC celebrations and she has had an opportunity to meet her kinship group.

55. The applicant and his partner were the subject of an investigation arising from a report on 15 April 2013, conducted by the Department of Family and Community Services into an allegation that the grandchild had been hit with a spoon by the applicant and his partner. The allegation was not substantiated. Overnight contact continued without supervision after this allegation.

The age of the person at the time the offences or matters occurred

56. The applicant was aged 18 at the time the offence which renders him a disqualified person.

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

57. The victim was aged approximately 19 years of age.

58. The vulnerability of the victim was significant in that she was walking home with her male companion when the applicant utilised his superior physical presence to intimidate and assault the victim.

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

59. The difference in age between the victim of the offence and the applicant was approximately one year. The victim was older than the applicant.

Whether the person knew, or could reasonably have known, that the victim was a child

60. The victim of the offence was not a child.

The person’s present age

61. The applicant is currently 61 years old. The applicant has now retired and has been retired for approximately 6 years. The applicant left school when he was 12 years of age. From the age of 15 the applicant resided in Sydney. Subsequently, the applicant travelled around mainly New South Wales performing farm labourer work.

62. The applicant is one of 14 children and both of his parents are deceased. The applicant has served a number of periods of imprisonment which are referred to elsewhere in these reasons.

61. The applicant states that he no longer drinks alcohol and cease drinking alcohol in about 2005. The applicant says that he decided to cease alcohol consumption in order to live a long and healthy life: Exhibit A1 [26].

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

64. The applicant’s criminal history contained in Exhibit R2.

65. The applicant states that he had stolen a car as a result of a dare and a wager issued by a group of his friends. The applicant does not recall the reason he was serving a sentence at Mount Penang Juvenile Justice Centre in about 1971. The applicant states that he has not had any trouble with the police since 1991: Exhibit A1 [46].

66. The applicant’s criminal history is summarised as follows:

1. 14 April 1969, Break into & steal; steal (vehicle), committed to an institution.

2. 24 June 1971, malicious injury, committed to an institution.

3. 23 May 1972, receiving; break and enter & steal (vehicle), probation for 2 years.

4. 24 October 1972, Break enter and steal, committed for sentence.

5. 17 March 1973, Assault with intent to rape, 5 years custody.

6. 17 March 1975, Malicious injury x2; larceny, 15 months custody.

7. 14 February 1978, Steal motor vehicle x 2, 15 months custody.

8. 14 February 1978, Attempt to steal petrol; Stealing, 6 months custody.

9. 20 October 1980, Assault; Attempts steal; larceny (vehicle), 18 months custody.

10. 6 October 1990, high range PCA, fine and disqualification.

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

67. The applicant relies upon the evidence of Ms Caroline Hare, psychologist who saw the applicant on 24 August 2015 in her office for a period of one hour and 50 minutes.

68. Ms Hare had the applicant complete the Millon Clinical Multiaxial Inventory- Third edition (MCMI-III; Millon et al 2006) which she states in her evidence is an empirically validated and reliable self-report. A surprising feature of that tool is reflected in the opinion formed by Ms Hare after reading the additional material for her second report. In the first report of Ms Hare states at Exhibit A2 [34] as follows:

“[The applicant] endorsed a broad range of problematic personality traits that suggested a level of detachment from others and possible difficulties with empathy, reflecting a generally exaggerated sense of self-importance and feelings of superiority. In the past this likely encouraged him to engage in risk-taking (including illegal) behaviour without particular concern for the consequences or impact upon others. These personality traits tend to manifest in a belief that he is exempt from the conventional rules of behaviour, which perhaps provide some context for his past criminal behaviour, and possibly also for [the applicant’s] absence of remedial action when he was refused the WWCC clearance in 2013. It appears that generally [the applicant] does not invest overly emotionally in relationships and is therefore content with his limited social network. Clinically he did not endorse items suggesting the presence of any disorders, although he endorsed having struggled with alcohol dependence in the past. His alcohol use appears to have been primarily a function of his high risk-taking personality traits, which are evidenced to alleviate as individuals mature.”

69. In the second report Ms Hare, as previously extracted Exhibit A3 at [5], states:

“...I would add antisocial and narcissistic personality traits as a risk factor at the time of the offence. I continue to be of the opinion that the sexual offence was impulsive and opportunistic...”

70. The applicant states in his affidavit, Exhibit A1 [47]:

“A lot of time has passed since my previous criminal conduct. I am not the same person today that I was when I committed those offences. I have a stable life and a family. I just want to be able to have a relationship with my granddaughter.”

71. The length of time since the last offence is significant.

72. Ms Hare’s assessment based upon the STATIC-99 (Harris et al 2003) risk assessment tool places the applicant in the moderate-low risk category: Exhibit A2 [36]. According to the risk assessment tool manual it identifies that out of 100 offenders presenting with the applicant’s score on the tool, “approximately 5 will be re-convicted of a sexual offence in the next 5 years, and 8 will sexually recidivate within the next 10 years.” Exhibit A2 [37]. As observed by Ms Hare at [38] of that Exhibit “[r]econviction rates inevitably underestimate the true rate of reoffending” and the tool cannot tell which “individual will fall into the percentage of offenders who sexually recidivate at the level of risk identified.”

73. Ms Hare also utilised the Risk for Sexual Violence Protocol (RSVP; Hart, Kropp & Laws, 2003) and assessed his level of dynamic risk of sexual violence as low: Exhibit A2 [44]. The primary factors identified by Ms Hare that increased the likelihood of committing a sexual offence in 1973, Exhibit A2 [40] are as follows:

1. “Willingness to use physical coercion to meet his needs and further the commission of the sexual offence;

2. Limited self-awareness of the motivation for committing the offence, or what placed him at heightened risk;

3. Problems with alcohol use providing a further disinhibiting factor;

4. Problems with employment;

5. Engagement in generally elevated levels of criminality, reflecting antisocial attitudes and beliefs;

6. Problems with making an[d] implementing prosocial life planned, reflected in his hedonistic lifestyle which evidence a general absence of concern for consequences, failure to live by societal norms, and absence of accountability associated with increased community stability;

7. Problems accepting and benefiting from supervision.”

74. Ms Hare also identified secondary risk enhancing factors which were present in 1973. Of the risk enhancing factors Ms Hare only identified the presence of one of those currently, which is his employment instability.

75. The applicant and his partner were assessed by Assessments Australia for the purposes of determining whether he and his partner were suitable to be authorised to provide care for his partner’s biological grandchild. That assessment is annexed to the affidavit of the applicant: Exhibit A1, Annexure A. The assessment was completed on 10 June 2012. It appears from the assessment report that the child was removed from the care of her mother and paternity testing identified the applicant’s partner’s son as the biological father. The applicant’s partner had not been aware of the existence of this grandchild prior to the Children’s Court proceedings and the paternity testing. The assessor observed interactions between the applicant and this grandchild as part of the assessment. The applicant and his partner demonstrated considerable warmth to the child. The report referred to the fact that the applicant’s partner has 2 daughters who carry a genetically inherited disease. The applicant’s partner’s son has a different father to those daughters and therefore does not carry that gene. The assessor stated (at page 6) that genetically inherited disease is described as:

“... A rare presumed autosomal recessive syndrome with pre and post natal growth retardation, microcephaly, characteristic facial experience, seizures, unusual palmar creases and developmental delay.”

76. Neither the applicant nor his partner, according to the assessor, showed insight into the possible attachment issues surrounding fact that their granddaughter had been in the care of the current authorised carer for almost 2 years at the time of the assessment.

77. In the assessment report by Assessments Australia reference is made (at page 5) to the fact that the current partner of the mother of the grandchild is known to the applicant. About this person the applicant said:

“I do not want [that named person] near this house he is a real troublemaker he has thrown firebombs at the house, wrecked tyres I am really worried about his behaviour-I do not know him but I cannot control what he does-I can manage [the applicant’s partner’s son who is named]’s behaviour but I do not have any control over [the first named person].”

78. The applicant’s partner’s son apparently has a criminal history relating to alcohol and drug use and had been in trouble or “a fair bit of strife for being drunk, assaults and fights” according to the applicant’s partner recorded in the Assessments Australia report at page 5. The applicant also acknowledged that the son had been difficult and had spent too much time with alcohol and getting into fights at page 6 of the report.

79. The applicant’s partner has one of her daughters living in a group home but could not identify to the Assessments Australia assessor where she was living. That daughter was apparently placed into care by the Department of Family and Community Services, according to information provided to the assessor. The youngest daughter remained living with the applicant and his partner. The applicant’s partner is that daughter’s carer due to her special needs. As a result, the daughter spends most of her time at home with her mother, apart from an outing once a week.

80. The Assessments Australia report recommended that the applicant and his partner be authorised as long-term kinship carers and if that does not occur they be authorised as respite carers, subject to 6 concerns identified at page 17 of the report. The first of those concerns was the circumstances or the reasons for placement of one of the daughters in a group home and removal from the care of the applicant’s partner. The second concern is whether there were any other reports about welfare and well-being of the other children. The third concern was clarification about the applicant’s criminal history. The fourth matter of concern is the applicant’s partner’s health status. The fifth matter of concern is the child’s attachment to her current carer and impact on her if she was moved to another placement. The sixth matter of concern is the necessity for supervised contact and long-term arrangements for the child.

81. The applicant was seen by Dr Robbie, a psychiatrist on 31 May 1973. The applicant told the psychiatrist his early history including his criminal history and alcohol intake. The psychiatrist expressed the following view:

“He was not particularly interested in discussing the offence, and he thinks he was just drunk. He gives the impression that it is all past history now and that there is little point in getting upset about it all, as his future will be taken care of for some considerable time. This impression of unconcern that he gives his I am sure only a superficial one; underneath I think he is fairly alarmed. I could not get through to him however.

In view of his past history of aggressive propensities I found him curiously placid and unaggressive. It may be that he has more than the ordinary drive and that this has been misinterpreted throughout his childhood, turning him into a rather angry person who has trouble accepting a powerless Aboriginal role. This is a surmise however. On the surface he would appear to be a poorly educated and lowish normal intelligence (I could be wrong about this) Aboriginal of disadvantaged background, who has a long history of aggressiveness and instability, and who has shown little evidence recently of settling down. Indeed he has been out of work and drinking. He did not seem particularly disturbed or menacing when I saw him however, and I assume that alcohol will substantially involved in this offence. Despite what has happened he may not be quite severe personality disorder that his history suggests, but I cannot be confident in this.”

82. In a Probation and Parole Report dated 8 June 1973, it is said that the applicant obtained most of his education during his stay in various institutions from the age of 13. Reference is made to an assessment of intelligence in 1968 which places the applicant in the ‘mentally handicapped group’ with an IQ score of 54. It was also said that “he was emotionally deprived and had no sense of social norms nor did he experience feelings of guilt”: Exhibit R4 page 9. This is no doubt the reason for Dr Robbie expressing the view that his history suggests a severe personality disorder (presumably those narcissistic and antisocial personality traits identified by Ms Hare as a risk factor). There is no recent psychiatric assessment of the applicant provided to the Tribunal. Ms Hare the psychologist who provided a risk assessment evidence to the Tribunal did not undertake formal testing of the applicant’s intellectual functioning, but formed the opinion that the applicant is functioning in the below average range and his insight into his behaviour was limited: Exhibit A2 [10].

83. The other witnesses who gave statements at the time of the offence did not support the version given by the applicant. There is clear evidence upon which the Tribunal has to rely and it contradicts the stated memory, or lack of memory, of the applicant. Until there is an acknowledgement of the extent of the past abusive behaviour and sustained positive effort to address that behaviour, it is the assessment of the Tribunal that the likelihood of a repetition of that behaviour remains significant: cf. T v H and Ors [1985] NSWSC, Unreported 19/12/1985; SS v Department of Human Services (NSW) [2010] NSWDC 279 at [111]-[114]; BHY v Children’s Guardian [2015] NSWCATAD 91.

Any information given by the applicant in, or in relation to, the application

84. The applicant has provided an adequate amount of information. The applicant has provided an affidavit and the reports of Ms Hare. Additionally, the applicant’s partner has given oral evidence.

85. The applicant expressed some remorse for the actions leading to his incarceration as referred to previously in these reasons.

Any other matters that the Children’s Guardian considers necessary

86. The Children’s Guardian made submissions addressing those other matters which the Children’s Guardian considers necessary.

87. The respondent submitted that the applicant bears the burden of proving that he does not pose a risk to the safety of children.

Consideration and determination

88. The offence was serious. It was sufficiently serious to warrant a sentence of 5 years’ incarceration.

89. The applicant is now aged 61 years.

90. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour in relation to the victim was apparently unplanned and opportunistic and exhibited a lack of self control and incapacity to implement any ameliorating strategies. It would appear from the criminal history that the behaviour of the applicant is characterised by a lack of empathy for victims leading to the criminal events. The applicant has not been able to show that he has the capacity to prevent repetition of these threats to vulnerable victims.

91. The behaviour, if repeated, would do significant harm to the victims. The paramount principle under the Act includes protection of children from suffering abuse.

92. There is a lack of evidence of mitigating factors such as examination of the reasons for the offending behaviour or the development of insight into his behaviour. The applicant may have limited cognitive capacity in order to be able to develop sufficient insight. Ms Hare the psychologist who provided risk assessment evidence to the Tribunal did not undertake formal testing of the applicant’s intellectual functioning, but formed the opinion that the applicant is functioning in the below average range and his insight into his behaviour was limited: Exhibit A2 [10].

93. Remorse on its own is not considered to be a factor that mitigates risk and without more than an expression of such sentiment, is a hollow response to an existing behavioural reaction. The applicant told Ms Hare that he had “felt sorry afterwards” in relation to the offence which renders him a disqualified person: Exhibit A2 [22]. It is not clear whether the events for which he expresses remorse are the same as the facts to which he pleaded guilty. Ms Hare notes (Exhibit A3 [6]) that other professionals have referred to the applicant’s “indifference to the consequences of his actions” (the probation and parole officer), and the psychiatrist’s observation by Dr Robbie, referred to earlier in these reasons, that: “This impression of unconcern that he gives is I am sure only a superficial one; underneath I think he is fairly alarmed.”

94. The Tribunal has been provided an account of the offending behaviour which led to the applicant becoming a disqualified person which is significantly different to the actual facts which occurred, as found by the sentencing Court. The personality traits identified in the assessment tool, Millon Clinical Multiaxial Inventory- Third edition (MCMI-III; Millon et al 2006) are to some extent validated by the second report of Ms Hare, as previously extracted Exhibit A3 at [5], which states:

“...I would add antisocial and narcissistic personality traits as a risk factor at the time of the offence. I continue to be of the opinion that the sexual offence was impulsive and opportunistic...”

95. Ms Hare previously identified a level of detachment from others and possible difficulties with empathy, reflecting a generally exaggerated sense of self-importance and feelings of superiority. This is suggested as the likely impetus for him to engage in risk-taking (including illegal) behaviour without particular concern for the consequences or impact upon others. These narcissistic and antisocial personality traits tend to manifest in a belief that the applicant is exempt from the conventional rules of behaviour, which perhaps provide some context for his past criminal behaviour, and possibly also for the applicant’s absence of remedial action when he was refused a clearance in 2013. It appears that generally the applicant does not invest overly emotionally in relationships and is therefore content with his limited social network. This is also consistent with a level of detachment and difficulties with empathic attunement towards others.

96. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

97. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

98. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children.

99. The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

Conclusion

100. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is concluded that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The evidence has not discharged the onus to prove that the applicant is not such a risk.

101. The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 20 November 2013 to refuse to grant the applicant a Working with Children Check clearance is affirmed.

2. The application for appeal of the decision of the Children's Guardian and for an enabling order filed 17 April 2015 is otherwise refused and dismissed.

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

Registrar

Decision last updated: 13 January 2016