BVT v Office of the Children's Guardian
[2016] NSWSC 1169
•23 August 2016
|
New South Wales |
Case Name: | BVT v Office of the Children’s Guardian |
Medium Neutral Citation: | [2016] NSWSC 1169 |
Hearing Date(s): | 12 August 2016 |
Decision Date: | 23 August 2016 |
Jurisdiction: | Common Law |
Before: | Adamson J |
Decision: | (1) Allow the appeal. |
Catchwords: | ADMINISTRATIVE LAW – appeal from decision of the New South Wales Civil and Administrative Tribunal refusing an enabling order under s 28 of the Child Protection (Working with Children) Act 2012 (NSW) – plaintiff convicted of a disqualifying offence in 1973 – whether the Tribunal erred in finding that a plea of guilty meant that the police facts are considered to be proven factual circumstances – whether the Tribunal gave adequate reasons – failure to address applicant’s case sufficiently – grounds made out – decision set aside – application remitted to the Tribunal |
Legislation Cited: | Child Protection (Working with Children) Act 2012 (NSW), ss 3, 4, 5, 8, 13, 18, 28, 30, 31, Sch 2, cl 1 |
Cases Cited: | Attorney-General for the State of New South Wales v Quin [1990] HCA 21; 170 CLR 1 |
Category: | Principal judgment |
Parties: | BVT (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2016/43426 |
Decision under appeal: | |
Court or Tribunal: | New South Wales Civil and Administrative Tribunal |
Jurisdiction: | Administrative and Equal Opportunity Division |
Citation: | [2016] NSWCATAD 12 |
Date of Decision: | 13 January 2016 |
Before: | M Anderson – Senior MemberM O’Halloran – General Member |
File Number(s): | 1510210 |
JUDGMENT
Introduction
By summons filed on 10 February 2016, the plaintiff, BVT, appealed on a question of law from the decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) to dismiss his application for an enabling order which would entitle him to work with children. The plaintiff filed an amended summons in Court on 12 February 2016 without objection.
The plaintiff sought orders that the appeal be allowed; that the Tribunal’s decision be set aside; and, either that the plaintiff’s application be granted by this Court (if the unreasonableness ground is upheld); or that it be remitted to the Tribunal for determination according to law.
The grounds of appeal are as follows:
1. The Tribunal erred in finding that a plea of guilty meant that the Police facts are thereby considered to be proven factual circumstances ([38]).
2. The Tribunal erred in making a finding that “it had been provided with an account by the Applicant which is significantly different to the actual facts which were found by the sentencing Court” ([94]) because there was no evidence before the Tribunal of fact finding by the sentencing Court.
3. The Tribunal erred in that it gave inadequate reasons for finding that the Plaintiff had not discharged the onus that he does not pose a risk to the safety of children and that he poses a risk to the safety of children.
4. The Tribunal erred in that it was unreasonable for the Tribunal to have found that the Applicant had not discharged his onus that he did not pose a risk to the safety of children or that on the balance of probabilities he posed a risk to children, such that no reasonable decision maker would have made such a finding where
a. There was no evidence that the Applicant had ever harmed a child; and
b. There was no evidence of any anti-social behaviour since 1990.
Relevant legislative provisions
Child Protection (Working with Children) Act 2012 (NSW)
Section 3 of the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act) identifies the objects of the Act as follows:
“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.”
Section 4 of the Child Protection Act provides that:
“The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.”
The Child Protection Act relevantly prohibits a person from engaging in “child-related work” unless the person holds a working with children check clearance (Clearance) of a class applicable to the work: s 8(1). Section 13 of the Child Protection Act makes provision for applications for Clearances to be made to the Children’s Guardian, which is a statutory office held pursuant to an appointment under s 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW): see the definition in s 5 of the Child Protection Act.
Section 18 of the Child Protection Act prohibits the Children’s Guardian from granting a Clearance to persons who have been convicted of certain offences if committed as adults. Such persons are referred to as “disqualified persons”: s 18(1). Schedule 2 relevantly specifies an offence under s 61K of the Crimes Act 1900 (NSW) (assault with intent to have sexual intercourse) as a disqualifying offence: cl 1(1)(e). Section 28 of the Child Protection Act provides that a person, who has been refused a Clearance because the person is disqualified, may apply to the Tribunal for an “enabling order” declaring that the person is not to be treated as a disqualified person for the purposes of the Child Protection Act in respect of an offence to be specified in the order.
The Children’s Guardian is to be a party to any proceedings for an enabling order and may make submissions in opposition to or in support of the making of the order: s 28(4) of the Child Protection Act. In any such proceedings in the Tribunal it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. If the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a Clearance: s 28(6) of the Child Protection Act.
Section 30(1) of the Child Protection Act provides:
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.
Section 31 empowers the Children’s Guardian to obtain relevant documents from government agencies “relevant to an assessment of whether a person poses a risk to the safety of children”.
Civil and Administrative Tribunal Act 2013 (NSW)
Division 2 of Sch 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides for a right of appeal to this Court in the following terms:
17 Certain decisions to be appealed directly to Supreme Court
(1) A party to proceedings in which any of the following decisions is made may appeal to the Supreme Court on a question of law against the decision:
(a) a Division decision for the purposes of the Child Protection (Working with Children) Act 2012http:// - /view/act/2012/51,
. . .
(2) The Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:
(a) an order affirming, varying or setting aside the decision under appeal,
(b) an order varying the decision under appeal,
(c) an order setting aside the decision under appeal and, if it considers appropriate, making a decision in substitution of that decision,
(d) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.
(3) Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court does not affect the operation of the decision under appeal or prevent the taking of action to implement the decision.
Section 38 of the NCAT Act entitles the Tribunal to determine its own procedure in relation to any matter for which the Act or rules do not make provision. Section 38(2) provides that the Tribunal is not bound by the rules of evidence and may inquire into any matter or inform itself as it thinks fit, subject to the requirements of natural justice. The Tribunal is to act with as little formality as the circumstances of the case permit without regard to technicalities or legal forms: s 38(4).
Section 62 of the NCAT Act obliges the Tribunal to provide written reasons on request. Section 62(3) provides:
(3) A written statement of reasons for the purposes of this section must set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal’s understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.
Crimes Act 1900 (NSW)
Section 65 of the Crimes Act 1900 (NSW), which created the offence of assault with intent to rape, was repealed by Crimes (Sexual Assault) Amendment Act 1981 (NSW), No. 42, Sch 1(7) and replaced by s 61C (sexual assault category 2 – inflicting actual bodily harm, &c., with intent to have sexual intercourse). Clause 4(2) of Sch 1 to the Crimes (Sexual Assault) Amendment Act 1981 provided that a reference to an offence under s 65 of the Crimes Act should be read and construed as a reference to the offence of attempting to commit an offence under, relevantly, s 61C. Section 61C was repealed by the Crimes (Amendment) Act 1989 (NSW), No. 198, Sch 1(3) and replaced by s 61K (assault with intent to have sexual intercourse). Schedule 1(14) of the Crimes (Amendment) Act 1989 provided that a reference to s 61C was to be taken to be a reference to s 61K. Accordingly, the reference to offences under s 61K of the Crimes Act in Sch 2 of the Child Protection Act includes a reference to offences under (the now repealed) s 65 of the Crimes Act.
The facts
Following his plea of guilty, the plaintiff was convicted on 8 June 1973 of an offence under s 65 of the Crimes Act of “assault with intent to rape”. The offence was committed on 16 March 1973 when the plaintiff was 18 and the female victim was 19. The plaintiff was sentenced to a term of imprisonment of 5 years with a non-parole period of 18 months.
The plaintiff worked as a labourer and on farms for most of his life until his retirement at the age of 55. He drank alcohol heavily on a daily basis from the age of 15 until about 2005, except for periods spent in prison. He did not seek professional help for alcohol abuse but stopped drinking in 2005 when his general practitioner advised him that it would otherwise affect his life expectancy.
The plaintiff was married aged 21 and divorced aged 26. Subsequently, he met his current partner, D, with whom he has now been in a relationship for 26 years. The plaintiff helped to raise three of D’s children.
D’s granddaughter, C, who was born in 2009, was placed under the parental responsibility of the Minister. The plaintiff and his partner did not find out about C (who was the daughter of D’s son) until she was two years old. They sought to have her placed in their care. As part of their application, in June 2012, Alison Kearns of Assessments Australia conducted an assessment and recommended that they be considered as authorised carers. However, it was decided that C ought remain with her existing carer, with whom she had been living since she was nine months old and to whom she had formed an attachment. From January 2013 the plaintiff and D provided respite care for C, including overnight contact.
On 15 April 2013 Family and Community Services received a report that the plaintiff had hit C. C was interviewed and stated that the plaintiff hit her with a spoon on more than one occasion. However, Family and Community Services did not consider there to have been a sufficiently clear version given by C. There were no apparent injuries and no further action appears to have been taken. The material also contains an allegation that “Nan” (the plaintiff’s partner, D) hit C over the head. D also reported that C told her that her mother hit her with a spoon.
In about October 2014 the plaintiff was informed by Family and Community Services that they would no longer be managing C and that she would be managed by the Tamworth Armidale Aboriginal Children’s Service. The transfer of responsibilities appears to have occurred in December 2014. When the plaintiff went to the usual changeover location to meet C just after Christmas 2014, C was not there. The plaintiff later discovered that the Tamworth Armidale Aboriginal Children’s Service had decided that he would no longer be permitted to have unsupervised contact with C unless he could obtain a Clearance.
The plaintiff applied to the Children’s Guardian for a Clearance under s 13(1) of the Child Protection Act. As he was a disqualified person because he had been convicted in 1973 of assault with intent to rape (an offence specified under Sch 2 of the Child Protection Act), the Children’s Guardian was obliged to refuse the Clearance. Overnight contact between C and D and the plaintiff continued until 1 January 2015, including after the Children’s Guardian refused the plaintiff a Clearance. Since January 2015 then the plaintiff has seen C on a supervised basis.
On 17 April 2015 the plaintiff applied to the Tribunal for an enabling order pursuant to s 28(1) of the Child Protection Act. The Tribunal extended time for such an application to be made.
The documents produced
The Children’s Guardian obtained relevant documents pursuant to s 31 of the Child Protection Act from NSW Corrective Services; Juvenile Justice; NSW Police Sex Crimes Squad; and Family and Community Services which were tendered in the proceedings before the Tribunal. Subsequently it obtained documents from the District Court, which related to the offence the plaintiff had committed in 1973. It also obtained a copy of the plaintiff’s criminal history.
Documents produced by the District Court
The documents produced by the District Court appear to have come from the “Clerk of the Peace”, which was the predecessor to the Director of Public Prosecutions (DPP), although they were obtained from the District Court, which was the successor to the Court of Quarter Sessions. The documents relate, at least in part, to the committal proceedings in the Court of Petty Sessions (which became the Local Court) of the charge of assault with intent to rape.
Among the documents produced was a record of interview which was signed by the plaintiff and apparently read out to him (it being accepted that he could not read). According to this document, the plaintiff admitted that he was “mad with the grog. I just wanted to frighten her so that I could root her”. He also admitted that he used a pocket knife with the medium blade open to threaten the victim. The documents produced also included statements of the victim, her boyfriend and another witness dated 17 March 1973; and the police facts.
The police facts recorded the following:
FACTS: - SIGNED RECORD OF INTERVIEW…about 10.25pm on Friday 16.3.72 Anne Parkinson and James Taylor were walking from Newtown Railway Station when the accused called Taylor “a four eyed cunt”. Taylor & Parkinson walked into King St, Newtown, the accused and another youth followed them. The accused produced a small knife and said “see what I’ve got here”. Taylor ran to his home nearby for help, then ran to Newtown Police Station,. Parkinson walked on, with the accused and friend conversing with her. In Station St, the accused pushed her up against a wall, with one hand holding her hand and the other around her throat. He put his hand down the front of her blouse and ripped the front of it and fondled her breasts. Accused said “I’ll kill you if you don’t let me root you”. The accused then placed the knife at her throat. – Ordered her to take her pants off, she refused, he placed his hands on her crotch from the outside of her trousers. He then asked for her money, she handed over about 30 cents. A Mr Masr came to the assistance of the girl and the accused (and friend) ran off. Later arrested.”
A document signed by the Clerk of Petty Sessions recorded that the date of the plaintiff’s committal was 29 March 1973. At the committal hearing, the plaintiff was present but not legally represented. The record, which appears to have been prepared by the police, noted the following:
“PROS. DEFT. HAS INDICATED THAT HE DESIRES TO ENTER A PLEA OF GUILTY UNDER THE PROVISIONS OF SECTION 51A OF THE JUSTICES ACT. HE HAS BEEN SHOWN STATEMENTS IN THE BRIEF.
DEFENDANT. I PLEAD GUILTY. I HAVE BEEN SHOWN THE STATEMENTS.
PROS. IN SUPPORT OF THE PLEA I HAND TO Y.W. [your Worship] A BRIEF OF STATEMENTS AND RELY ON THEM TO ESTABLISH A PRIMA FACIE CASE.
BENCH. HAVING PERUSED THE DOCUMENTS IN THE BRIEF I FIND THAT A PRIMA FACIE CASE HAS BEEN ESTABLISHED. I ACCEPT THE PLEA FROM THE DEFENDANT. (SEE WITHIN FOR COMMITTAL)
DEFT. SEEKING BAIL.
PROS. I PRODUCE PRIOR RECORD. HANDED TO BENCH. I would ask that you consider the serious charge, and the plea entered by the deft. at this time. Only released three weeks from prison prior to incident.
DEFT. Nothing else to put.
BENCH. Having regard to all matters, bail will be refused.”
[Formatting of extract changed to make content clearer.]
The plaintiff was committed to the Court of Quarter Sessions on 2 April 1973 for sentence. The record noted that no witnesses were “bound over” (required) to give evidence by reason of the plea of guilty.
Included among the documents was a report from Dr Robbie dated 5 June 1973 who apparently interviewed the plaintiff on 31 May 1973 for the purposes of the sentence. Dr Robbie recorded:
“He wasn’t 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 is 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 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 was substantially involved in his offense. Despite what has happened he may not be quite the severe personality disorder that his history suggests, but I cannot be confident in this.”
The only record of what occurred in the Court of Quarter Sessions appears to be a file note of the Crown Prosecutor who noted that the accused, represented by R. Blanch, pleaded guilty before Special Magistrate Goldrick at Newtown Court of Petty Sessions on 29 March 1973 and “adheres to plea, facts and antecedents given”. The sentence recorded was:
“To be imprisoned with hard labour for a period of five years to date from 17.3.73 non-parole period of 18 months specified.”
Neither the transcript of the proceedings on sentence, nor the reasons for sentence, was produced to the Children’s Guardian by the District Court. Accordingly it was not possible to determine the facts on the basis of which the plaintiff was sentenced; or the reasons of the sentencing judge.
The proceedings in the Tribunal
The plaintiff, in his affidavit in support of his application, deposed that he and his partner, D, were assessed by Family and Community Services in June 2012 as carers for C, P’s step grand-daughter. The assessment, which was annexed to his affidavit, noted the attachment between C and the plaintiff and that she appeared to be secure and safe with the plaintiff and D. The plaintiff disclosed his criminal history to the assessor. The assessor identified six concerns, including clarification of the plaintiff’s criminal record. The assessor made the following recommendation:
“It is recommended that [D] and [the plaintiff] be authorised as long term kinship carers for [C], if they are not authorised as long term carers it is recommended they be authorised as respite carers.
It is recommended that [C] remain in Ministerial Care until she is 18.
It is recommended that all birth family contact be supervised and Community Services assist [D] and [the plaintiff] with any issues arising from this.
It is recommended that [D] and [the plaintiff] be paid a supported care allowance to assist them with [C’s] care.”
The principal basis of the decision for the child, C, to remain with her foster carer was that C had formed an attachment to the foster carer, and that it would not be in her interests to disrupt that attachment.
The reports of Ms Hare
The first Hare report dated 2 September 2015
The plaintiff also relied on a report by Ms Caroline Hare, a forensic psychologist who had interviewed him on 24 August 2015 for the purpose of preparing a report to be tendered before the Tribunal. Ms Hare described his presentation at interview as follows:
“…Although did not undertake formal testing of his intellectual functioning on this occasion, I formed the opinion that [the plaintiff] is functioning in the below average range; he struggled to understand some questions posed to him and I noted that he tended to agree or state that he could not remember when he was unsure what was being asked of him. Overall, his level of psychological mindedness (insight into his behaviour) was limited. Despite this, his verbal responses were logical and coherent, and there was no evidence of formal thought disorder or signs of psychosis. [The plaintiff] did not evidence any overt psychopathology that impacted his ability to engage in the assessment process, including flattened affected or heightened anxiety. He presented as an inconsistent historian; however, this appeared to reflect memory difficulties and an absence of misunderstanding of the question content at some points rather than a conscious attempt to mislead me.”
Ms Hare recorded that the plaintiff was regularly detained in institutions between the ages of 14 and 27 but completed his last period in custody in March 1981 (when he was 26). She recorded that the plaintiff was unable to work due to his physical health problems but noted that the plaintiff said that he and his partner are financially stable and that his partner manages the finances for both of them. The plaintiff told Ms Hare that he met his current partner about 26 years ago and described a “good level of emotional and physical intimacy” although he had not told her of his past criminality until he was refused a Clearance.
Ms Hare took a history of the plaintiff’s alcohol consumption and noted that he said that he had not had an alcoholic drink for nine years. He described the index offence to Ms Hare in broad terms. He told her that he had been drinking at the Newtown RSL and noticed the victim, whom he found attractive. When she left the RSL, he followed her and grabbed her in the doorway of her home. She screamed and the police arrived. Ms Hare also noted:
“Although he denied that the victim was physically injured, [the plaintiff] identified that she would have been fearful that he was going to harm her. He described his actions as “depraved” and appeared to express a level of remorse, which continues to manifest as feelings of shame. [the plaintiff] reported that he was not open with his family (or current partner) about the conviction due to his ongoing shame. He agreed that the extended prison sentence that he received was fair, and he identified that after serving out the balance of his parole, he began to make changes to his behaviour, resulting in a reduction in his criminal behaviour.
It should be noted that I have not been provided access to the Police Facts or Witness Statements in relation to the above offence, and as such, I am unable to assess the veracity of [the plaintiff’s] version of events.”
Ms Hare conducted an assessment for the plaintiff’s risk of sexual reoffending. She listed the risk factors which she considered would have operated in the past and considered that his employment instability was the only factor which is “definitively present” but noted his report of financial stability. She listed a number of protective factors, including: his healthy sexual interests with an age appropriate woman; his capacity for emotional intimacy and his “enduring relationship with his current partner”; the “absence of antisocial attitudes or behaviours in the last 24 years”; resilient mental health; and sobriety. Ms Hare concluded that the level of dynamic risk of sexual violence was low.
Ms Hare contrasted the plaintiff’s circumstances at the time of the index offence (unhappy, not involved in an intimate relationship, lack of stable support structures, youth, effect of alcohol as disinhibitor) with the present circumstances (stable relationship, level of happiness, maturity, improved stability and contentment. She noted that he had taken an active role in raising three of his stepchildren and concluded that:
“In my opinion, careful review of [the plaintiff’s] functioning over the past few years, particularly since he achieved sobriety approximately nine years ago, does not give cause for concern regarding his risk of harming a child through direct physical force, or neglect.”
Ms Hare said that she was unable to generate any realistic scenario that would genuinely heighten the risk of the plaintiff engaging in sexual offending towards a child in the future. She considered:
“. . . the risk to children’s safety that [the plaintiff] presents is commensurate with the risk of any adult member of the community (i.e. a non-offender) harming a child.”
The second Hare report dated 8 December 2015
At the time Ms Hare prepared her first report she did not have access to the material regarding the index offence (referred to above) and relied only on the history which the plaintiff had given to her. The additional factors, of which she was made aware for the purposes of her second report on 8 December 2015, were that the plaintiff put his hands around the victim’s throat and threatened her with a knife. Ms Hare said:
“I continue to be of the opinion that he did not harbour attitudes that condoned sexual violence at the time of 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; he cannot have known that the victim’s male partner was going to leave her alone whilst he went to seek Police, and as such it seems unlikely that [the plaintiff] was initially following the victim and her partner with the goal of sexually assaulting the victim.”
She expressed her conclusion in the following terms:
“I have not seen any evidence in the additional material that changes my opinion regarding the state of [the plaintiff’s] current risk and protective factors, and I remain of the opinion that he presently poses an overall low risk of engaging in sexual reoffending.
I trust the information I have provided in this addendum report will be useful. Please contact me if you require any additional information or comment.”
The conduct of the proceedings in the Tribunal and the decision
In the Tribunal, Mr Harris, who appeared on behalf of the Children’s Guardian, indicated that the Children’s Guardian had been obliged by statute to refuse the Clearance and neither consented to, nor opposed the enabling order but was prepared to act as a contradictor in the proceedings for the purpose of assisting the Tribunal. Mr Harris described the position of the Children’s Guardian as “essentially neutral”. The material referred to above was tendered: namely, the affidavit of the plaintiff and Ms Hare’s reports, on behalf of the plaintiff; and the documents obtained from various public agencies, on behalf of the defendant.
The plaintiff’s affidavit was read before the Tribunal. He was cross-examined by Mr Harris. He admitted that he could not remember much about the offence in 1973 because he was “drunk all the time”. The documents which the Children’s Guardian had obtained from the District Court were put to him and he was asked whether it assisted his recollection, to which he responded “Not really because I was – as I said to you before, I was drunk.” He confirmed that he had given up alcohol in 2005 and that he did not miss it. He denied that he had ever hit C with a spoon and said that if she was disobedient he gave her “time out”.
At the conclusion of the cross-examination, Senior Member Anderson questioned the plaintiff about the documents that had been provided by the District Court. The following exchange took place:
“Q. 8 June 1973, Mr R Blanch appeared for you, “for and with the accused in custody” and then pleaded guilty and then your sentence follows, a judgment. It says “Adheres to plea, facts and antecedents given”. Do you understand what that means? It means that when you pleaded guilty the police then handed up the material that you now see, being the facts and your antecedents which was your previous criminal history, that was handed up to the Court and on the basis of that you got a sentence of five years. So do you understand all that?
A. Yeah.
Q. So what we get from that is that you pleaded guilty to what was said in the police material?
A. Yeah.
Q. That’s the way it looks. Do you accept that?
A. Yeah.”
D gave evidence and confirmed that the plaintiff had never hit C. Ms Hare was also called to give evidence and was cross-examined by Mr Harris on behalf of the Children’s Guardian. Mr Harris asked Ms Hare about the plaintiff’s memory in the following exchanges:
“Q. Throughout the course of your dealings with [the plaintiff], I just want to ask you in general terms did you form an impression as to whether he may have any difficulties with his memory?
A. He did seem vague at times regarding his memory of events. I thought that was not necessarily due to specific neurological – I formed the opinion although I didn’t test it, using formal testing, I formed the opinion he’s probably functioning in the kind of below average range and some memory difficulties would be consistent with that as well.
Q. I think in your second report you noted that he had given an account to which to an extent minimised his role on account of his 1973 offending, you’d agree?
A. Yes.
Q. Also, he gave an account to you which he felt was at time inconsistent, is that right?
A. Yes, yes.
Q. Did you feel that the account he was giving you about the events of 1973 were affected by his memory to some degree?
A. I thought there were probably a number of factors that affected that account, I think one being the guilt and shame that he continues to carry for the offence which I think led to some minimisation. I think perhaps memory is an issue in there but also he was apparently highly intoxicated at the time of the offence which also is inevitably impact memory.”
After Mr Harris completed his cross-examination of Ms Hare, Senior Member Anderson asked her further questions over eight pages of transcript, which largely covered matters which were additional to those raised by Mr Harris. Senior Member Anderson questioned Ms Hare about Dr Robbie’s report, and in particular the passage set out above about the plaintiff’s apparent lack of concern (“impression of unconcern”). Senior Member Anderson put to Ms Hare that this appeared to be “more of a position consistent with anti-social or narcissistic traits”. Ms Hare, in her answer, said that she interpreted Dr Robbie’s comment “in a different way” (from the interpretation placed on it by Senior Member Anderson). She said in response to what Senior Member Anderson put to her:
“…when I read Dr Robbie’s report I formed the opinion that he was disagreeing with that, but saying it was more of a superficial front that BVT was putting on that, you know, this doesn’t really affect him, when underneath he really did understand the effects. And that sort of sits with the broader picture that I – an opinion that I formed of him was the he, he carries quite a significant amount of guilt and shame regarding the sexual offence, which isn’t uncommon for sexual offenders to carry that, and that that can really, I guess, effect the account that they give of the offences – of the consequences of the offences and link in with minimisation because that feeling guilty for their actions, and ashamed of their actions. So that’s how it sort of sat with me, which I guess would then speak to not such entrenched narcissistic anti-social traits because it appears that he does feel a sense of shame and remorseful for what he did.
…
A. I’m – I think I would expect is if those traits were still really quite eminent within him I don’t think we would - the anti-social traits I’m talking about – I don’t think we would necessarily see such a long period offence free. We wouldn’t – his, his trajectory of offending behaviour is quite consistent with what we see in lots of, of young men that it kind of peaks in this late adolescence, early – early 20s, and then we see it kind of taper off and by 30s, 40s quite often men who were really quite anti-social in their younger years are engaged in quite pro-social, stable lifestyles. So for me his, his pattern, his trajectory sat more with that than the kind of entrenched, ongoing anti-social beliefs, attitudes. I think there are still some narcissistic personality traits in there, but I said before narcissism doesn’t necessarily mean anti-social.”
Both counsel relied on both oral and written submissions. Ms Andelman made the following submission about the plaintiff’s memory and the personality traits that had been identified by the Tribunal and put to Ms Hare:
“The evidence from Ms Hare is that the fact that the applicant abused alcohol for a long period of time suggest that that would be one of the reasons for poor memory. This incident occurred over 42 years ago and, as we know, memory is often not a good account of what in fact happened, particularly such a long period of time ago and when a person is intoxicated.
The applicant didn’t deny that he said the words that appear in the record of interview, or that it was incorrectly recorded, and it was not put to him about those matters. What he simply stated that today he had no recollection that he had a knife. This memory is not inconsistent with what he said in 1973. He didn’t deny he said those words in 1973. What he was simply saying today is that today he can’t remember that he had a knife, and based on his lack of memory, he said that he didn’t believe he had a knife.
There were a number of other inconsistencies between what he remembered today and what he remembered in 1973, such as that he says today that the victim was in the RSL Club he saw her in 1973. He didn’t deny that the victim was exiting a train station. He today says that he didn’t see the victim with a male. Those element or those small details of the circumstances are not as critical as the fact that the applicant admitted today that he was guilty of the offence, and he pleaded guilty to it. He explained that as the reason for his conduct in 1973, that he understood at that time, as he does today, that he committed the offence.
It was not put to him in cross-examination that he was attempting to play down or to minimise the offence for the purposes of receiving a Working With Children’s check. He didn’t have an opportunity to respond to that allegation if one is such made, and I don’t understand that such a submission is being made, but I say that based on the interaction of the Tribunal bench and the expert.
It doesn’t ring logical or rational, if he was actually trying to minimise the facts for the purpose of gaining a Working With Children’s check, he may have said that he didn’t – he wouldn’t have raped her, the victim, but he candidly admitted that that might have happened had he not been interrupted.
…
In regard to the discussion about the narcissistic and the antisocial traits, Ms Hare said that the antisocial trait had diminished with age and that the narcissistic trait was not prominent. I think that para 31 of the applicant’s affidavit does go to describing some of the way he leads his life and it may be described as an antisocial way but it’s something quite common, which is that he prefers to spend time at home on his own to do gardening, collecting firewood and working on cars, and helping family and friends work on their cars. The applicant is not a social person that goes out, he’s a person who prefers to stay at home and his significant, long-term, loving relationship is with his partner that he’s had over 26 years.”
Senior Member Anderson put to Ms Andelman the proposition that the plaintiff had narcissistic personality traits. The following exchange ensued:
“ANDELMAN: Well no, two things. One she said that even if he did based on his narcissistic trait seek to have contact with a child, it doesn’t necessarily translate to be a risk to the child.
But secondly even if he does have that narcissistic trait and he has had it all his life, there’s no evidence that because of this trait he has been a risk to children or that he would be a risk to children in the past because the narcissistic trait is a common trait that people in the population have. It doesn’t mean that people who have a prominent narcissistic trait would be a risk to children, if nothing else.
SENIOR MEMBER ANDERSON: The issue is the lack of empathy in those traits, the psychologist was saying there is a problem in terms of their capacity for people with those traits to have empathy with children, so for instance not being able to put themselves in the same shoes as the child and perhaps reacting in a way which is meeting their own needs rather than meeting the child’s needs. And not everybody in the population needs a work in with children check clearance.
ANDELMAN: Of course there are extremes, the expert didn’t think that that’s where the applicant was in the spectrum but even where a person is an extreme but the evidence is that person had had children and has been able to provide for their children and there’s no evidence of any risk to the children, there’s no allegations of risk to the children then that on its own what I’m simply saying is that on its own just the fact that the person has been assessed by psychiatrist as having that trait, that on its own is not sufficient to conclude that that person would be a risk to children in the future if the past demonstrate that that person has not been a risk to children in the past.”
Mr Harris addressed the Tribunal on behalf of the Children’s Guardian. He referred to the passage of time since the offence occurred in the following terms:
“In any event I think overall in terms of the passage of time since the index offence and the applicant’s conduct, it’s a positive matter in his favour, the way he’s conducted himself since 1973.”
The reasons for decision
The Tribunal refused the plaintiff’s application for an enabling order and published its reasons on 13 January 2016: BVT v Children’s Guardian [2016] NSWCATAD 12. The Tribunal set out the relevant legislation and principles in a manner not the subject of complaint. It proceeded to address the matters referred to in s 30 of the Child Protection Act.
The Tribunal addressed the circumstances of the offence, and the plaintiff’s evidence relating to the offence in the following terms:
“[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.
. . .
[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 Tribunal narrated the evidence given by Ms Hare and also referred to the report of Dr Robbie in 1973. At [83] the Tribunal said:
“[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.”
In the final part of the reasons, headed “Consideration and determination”, the Tribunal said, at [90]ff:
“[90] . . . 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] . . . It is not clear whether the events for which he expresses remorse are the same as the facts to which he pleaded guilty. . .
[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.
. . .
[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.”
The grounds
Grounds 1: the effect of the plaintiff’s plea of guilty
As referred to above, the Tribunal considered that the effects of the plaintiff’s plea of guilty were that: first, the police facts were thereby considered to be the proven factual circumstances surrounding the offence ([38] of the reasons); and, secondly, that the other witness statements (that of the victim and her boyfriend) were accepted by the Court and apparently by the plaintiff with the benefit of legal advice ([42] of the reasons).
I accept the plaintiff’s submission that these two findings reflected a misapprehension of the effect of the plaintiff’s plea of guilty. A plea of guilty constitutes an admission of only those facts which are essential to the charge: R v O’Neill [1979] 2 NSWLR 582 at 588. The police facts, as set out above, contained a narrative of the facts on which the prosecution relied, many of which were not essential to the charge. Accordingly, the plaintiff’s plea of guilty to the charge does not amount to an admission as to the facts in the police facts. Nor do the witness statements fall within the purview of the effect of the admission constituted by the plea of guilty. In GAS v The Queen [2004] HCA 22; 217 CLR 198, the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) said at [30]:
“Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case.”
The material produced by the District Court and tendered by the Children’s Guardian in the hearing in the Tribunal did not contain any indication either of the findings of the sentencing judge or any statement of agreed facts. In these circumstances, it is not possible to discern the facts that were found or the extent of any agreement as to the facts. All that can be known as to the extent of the plaintiff’s admission from what was produced is that he admitted the elements of the offence of assault with intent to rape.
The defendant in the proceedings before me relied on the plaintiff’s “admission” made in response to the proposition put to him by the Tribunal (extracted above) that he had pleaded guilty on the basis of “what was said in the police material”. I do not consider that, fairly read, the plaintiff’s affirmative response to what was put to him, ought be regarded as an admission, particularly in circumstances where what was put to him was not borne out by the material at all, since there was an obvious gap in the evidence which could not be filled by such an “admission”. I reject the defendant’s submission that: “It is a reasonable, indeed compelling, inference from the documents that the plaintiff was sentenced upon the facts that were handed up.” In my view, the words “adheres to plea, facts and antecedents given” is wholly insufficient to establish that the police facts in the charge sheet were the facts agreed to by the plaintiff and on the basis of which he was to be sentenced.
The Tribunal was not bound by the laws of evidence: s 38 of the NCAT Act. It was therefore entitled to take into account the contents of the documents produced by the District Court, including: the plaintiff’s record of interview; the witness statements; and the police facts, although the witness statements and police facts would not have been admissible as evidence under the Evidence Act 1995 (NSW). If that is what the Tribunal had done in the present case, there could have been no proper grounds for complaint. However, by elevating the matters in these documents to the status of findings by the sentencing judge and admissions made by the plaintiff, the Tribunal misapprehended the legal effect of the plaintiff’s plea.
The legal effect of a plea of guilty is a question of law. The first ground has been made out.
Ground 2: the Tribunal erred in finding that it had been provided with an account that was significantly different with the actual facts which were found by the sentencing Court
The second ground overlaps with the first and has also been made out. For the reasons given above, there is no evidence of the actual facts which were found by the sentencing judge. It was therefore not possible for the Tribunal to make the comparison which it purported to make between the plaintiff’s evidence in the Tribunal and his admissions in the Court of Quarter Sessions. This matter, too, involved a question of law because of the misapprehension as to the effect of a plea of guilty.
Ground 3: the Tribunal gave inadequate reasons for finding that the plaintiff had not discharged the onus that he does not pose a risk to the safety of children and that he poses a risk to the safety of children
The findings referred to in Ground 3 are in [99]-[100] (see above). In reaching these conclusions the Tribunal found that the plaintiff had not been able to show that he has the capacity to prevent repetition of threats to vulnerable people ([90]); and that there was a lack of evidence of mitigating factors such as examination of reasons for the offending behaviour or the development of insight into his behaviour ([92]).
The Tribunal found that until there was an acknowledgement of the extent of past abusive behaviour and sustained positive effort to address that behaviour, the likelihood of repetition of that behaviour remained significant ([83]). The Tribunal referred to three cases in support of that proposition.
In the first, T v H [1985] NSWSC, Unreported 19/12/1985, a child aged approximately six months was admitted to Hornsby Hospital having apparently been mistreated by his parents and was subsequently placed into foster care. The Court was satisfied that the injuries to the child were the result of ill-treatment by the parents and that the child should remain in foster care, notwithstanding that the parents had sought medical assistance and were otherwise persons of good character. The facts of T v H are so removed from the present circumstances as not to be helpful.
The second case referred to by the Tribunal was SS v Department of Human Services (NSW) [2010] NSWDC 279, a decision in the care jurisdiction. Two boys, JS and J, were removed from the care of SS and CS, the plaintiffs. One was diagnosed with severe brain damage, said by the defendant to have been caused by “shaken baby syndrome”. At [111]-[113], Johnstone DCJ said:
111. The Director General submitted that the fact of abuse having been established, the case for intervention by the court is made out. Unless there is an acceptance and acknowledgement by the carers, proper safeguarding of the children is impossible.
112. For my part I would be prepared to accept that proposition as self-evident. But in this case there is in fact strong evidence to support the notion that the refusal, or failure, to acknowledge the abuse, leads to a comfortable satisfaction that there remains a continuing likelihood of physical abuse or ill-treatment, in respect of both boys. That evidence, in my view, accords with common sense.
113. For these reasons I am comfortably satisfied, by reason of the abuse of J and the failure of the plaintiffs to acknowledge the true cause of J’s injuries, that both JS and J are likely to be physically abused or ill-treated.
This, too, appears to be far removed from the present case where the plaintiff’s inability to remember the details of the offence was explained by his intoxication. Moreover, the plaintiff in the present case admitted the commission of the offence, as is evident from his plea of guilty. In the present case, there was no relevant, or similar, re-offending.
The third case referred to by the Tribunal, BHY v Children’s Guardian [2015] NSWCATAD 91 was a decision of Senior Member Anderson (who presided in the present case). The applicant, BHY, had not been convicted of any offence. However, there was evidence of several incidents involving boys and young men in which the complainants said that the applicant had engaged in sexual activity, including sexual abuse (in relation to the younger complainants). A diagnosis which included Paedophilia, same sex attraction, non-exclusive type, was made. Senior Member Anderson said at [163]:
163 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 [1985] NSWSC, Unreported 19/12/1985; SS v Department of Human Services (NSW) [2010] NSWDC 279 at [111]-[114].
Any information given by the applicant in, or in relation to, the application
164 The applicant has maintained a position of denial of the serious events which have affected his nephew and that part of his family.
165 There has been a significant amount of information provided to the Tribunal on behalf of the applicant. Much of that information has been collated by the employer of the applicant seemingly to address risk issues and to ensure the continued employment of the applicant in whatever capacity deemed appropriate by the employer. The religious organisation accepts the finding on the balance of probabilities that the applicant sexually abused his nephew.
166 The applicant has not made the same acknowledgement.
Although the wording of [163] of BHY v Children’s Guardian is similar to the wording of [83] in the reasons in the present case (with the addition of BHY v Children’s Guardian), the circumstances are very different. The plaintiff in the present case has acknowledged his wrongdoing by pleading guilty to a serious offence. There has been no repetition of the conduct. His inability to be precise about various aspects of the offence derives from his intoxication at the time, as well as the fact that it occurred 42 years prior to the hearing in the Tribunal.
The plaintiff’s last offence was a high range PCA [exceed prescribed concentration of alcohol] offence in 1990. The offence prior to that was committed in 1980. The plaintiff’s criminal history from 1969 to October 1980 manifested a disordered life with several convictions and periods in custody. At the time of this period of offending the plaintiff drank alcohol regularly to excess and had an alcohol dependency.
The Tribunal’s reasons do not address why the absence of anti-social conduct in the thirty five years since 1980 was insufficient to prove that he is not a risk to children and his conduct is not a risk to children (who may observe it), particularly in circumstances where his uncontroverted evidence was that he had stopped drinking alcohol in 2005.
The Tribunal appears to have been influenced by Dr Robbie’s report of 5 June 1973 in which Dr Robbie considered the possibility that the plaintiff had a severe personality disorder that did not make any finding that he had such a disorder. Ms Hare did not consider the plaintiff to exhibit those personality traits to a sufficient extent to indicate a personality disorder.
At [98] of its reasons the Tribunal referred to the risk ensuing if the unacceptable behaviour were repeated in the presence of children, or was directed to them. The plaintiff argued that the reference to “unacceptable behaviour” must be a reference to the index offence since there was no evidence of the facts of the other offending conduct revealed by the plaintiff’s criminal history. There was no evidence to suggest that children were present when the index offence, or any other offence, was committed.
Whether the reasons of the Tribunal are adequate depends on the circumstances of the individual case: Mifsud v Campbell (1990) 21 NSWLR 725 at 728. Although the Tribunal’s reasons are detailed and address each of the relevant statutory factors, they do not, in my view, explain why the considerable length of time since the index offending; his youth and intoxication at the time; his extended period of non-offending; and his prolonged sobriety, were insufficient to discharge the onus. The cumulative effect of these matters was such as to lead to an inference of successful rehabilitation as well as a distinction between youthful conduct characterised by crime and intemperance, on the one hand, and more recent adult conduct characterised by emotional stability, temperance and a positive contribution to the caring of children (through his assisting in the raising of his partner’s own children and, more recently, her grandchildren), on the other.
The past is likely to be the most reliable guide to the future: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. In failing to address this matter squarely, the Tribunal did not explain why the pattern of recent decades was insufficient to overcome youthful offending.
This is not to say that the Tribunal was bound to come to a particular result (the grant of an enabling order) by reason of these matters, though they were apparently powerful considerations. However, the Tribunal was, as part of its obligation to give reasons, obliged to explain to the plaintiff why his conduct over the last 35 years, as well as his sobriety over the past ten years, was insufficient to discharge the onus under the Child Protection Act of establishing that he did not pose a risk to the safety of children. This was particularly the case in circumstances where the Children’s Guardian, who was the relevant repository of the public interest sought to be protected by the Child Protection Act, adopted a neutral position in that she neither consented to nor opposed the plaintiff’s application for Clearance. The Children’s Guardian acted as a contradictor solely to provide assistance to the Tribunal. Moreover, the submissions of Mr Harris indicated that the Children’s Guardian considered the plaintiff’s life and conduct in recent decades to be a powerful factor in his favour.
In my view, the Tribunal failed to give sufficient reasons to explain why these matters were not enough to discharge the onus that fell on the plaintiff. Accordingly, its reasons were such as to lead to “a sense of injustice” (Beale v GIO of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA) and promote a “sense of grievance” (Mifsud v Campbell at 728 per Samuels JA).
I am persuaded that ground 3 has been made out.
Ground 4: unreasonableness
The plaintiff submitted that the decision to refuse the enabling order was legally unreasonable having regard to the absence of evidence that the plaintiff had ever harmed a child; the absence of evidence of any anti-social behaviour since 1990; and the absence of evidence that any child had witnessed his offending conduct.
The plaintiff relied on the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 in which the plurality (Hayne, Kiefel and Bell JJ) determined that the legal standard of unreasonableness was not limited to a decision so unreasonable that no reasonable person could have arrived at it, a formulation derived from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and known as “Wednesbury” unreasonableness. The plurality in Minister for Immigration and Citizenship v Li formulated the question as being whether the statutory power, on its true construction, had been abused. They found that where a decision lacks evident and intelligible justification, the conclusion that the statutory power has been abused can be drawn and the decision set aside on the basis of unreasonableness.
The plaintiff relied on the analogy drawn between the assessment whether a discretion had miscarried and the determination of legal unreasonableness and referred to [75]-[76] in Minister for Immigration and Citizenship v Li, in which Hayne, Kiefel and Bell JJ said:
“75 In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.
76 As to the inferences that may be drawn by an appellate court, it was said in House v The King an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
[Footnotes omitted.]
Although the case for the plaintiff in the Tribunal might be thought to have been a powerful one, the decision whether he ought be granted an enabling order was one which Parliament decided was to be made by the Tribunal and not by this Court: see Attorney-General for the State of New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 37-38. To uphold the unreasonableness ground in the present case would be tantamount to saying that the Tribunal was obliged, in the circumstances of the present case, to make an enabling order in respect of the plaintiff.
The present is a very different case from Minister for Immigration and Citizenship v Li in which the decision said to be unreasonable was the determination of an application for an adjournment, which was, in substance, a procedural decision. In the present case, the merits of the plaintiff’s application for an enabling order are the matters in issue. Moreover, the Tribunal had the benefit of seeing and hearing the plaintiff and Ms Hare give evidence and of questioning both of them about matters of concern to the Tribunal.
I am not satisfied that the plaintiff has established that the decision was legally unreasonable. In so far as it might appear to be so, this may be a product either of the errors I have identified with respect to the first two grounds; or of the inadequacy of the reasons to explain why, notwithstanding the events of recent decades, the plaintiff had not discharged the onus imposed on him.
I am not satisfied that ground 4 has been made out.
Relief
For the reasons given above, grounds 1, 2 and 3 have been made out. The Tribunal’s assessment of the plaintiff’s credibility and acknowledgment of guilt of the offence in 1973 appears to have been substantially influenced by the error made which is identified in grounds 1 and 2. Accordingly, the decision must be set aside in order that the plaintiff can have his application for an enabling order determined according to law.
Orders
For the reasons set out above, I make the following orders:
(1)Allow the appeal.
(2)Set aside the decision of the New South Wales Civil and Administrative Tribunal in its Administrative and Equal Opportunity Division made with respect to the plaintiff on 13 January 2016.
(3)Remit the plaintiff’s application for an enabling order to the New South Wales Civil and Administrative Tribunal for determination in accordance with law.
(4)Order the defendant to pay the plaintiff’s costs.
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Amendments
30 August 2016 - Paragraph 63 amended
01 September 2016 - paragraph 32 amendment
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