BZU v Children's Guardian

[2016] NSWCATAD 3

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BZU v Children's Guardian [2016] NSWCATAD 3
Hearing dates:	6 November 2015
Date of orders:	05 January 2016
Decision date:	05 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M W Anderson - Senior Member Dr B Field - General Member
Decision:	1) The decision of the Children’s Guardian dated 19 January 2015 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 filed 6 February 2015 is otherwise refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal - whether the applicant poses a risk to the safety of children –Murder conviction of an adult Aboriginal man on 31 July 1989 and life sentence imposed in the Supreme Court of Queensland - non-parole period of 13 years - 15 years served in prison prior to release on parole - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety of children- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse to grant a working with children clearance.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and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 BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 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 BQK v Children's Guardian [2015] NSWCATAD 265 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 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	BZU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: T Baw (Applicant) J Harris (Respondent)   Solicitors: Stephen Teece Solicitor (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510080
Publication restriction:	Section 64(1) Civil and Administrative Tribunal Act 2013- restriction on publication of information that will identify the applicant, any children or 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 and formal matters

1. The applicant, known as “BZU” in these proceedings, on 6 February 2015 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made on 19 January 2015 to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

2. The Act came into force on 15 June 2013.

3. The applicant applied for a working with children check clearance on 7 December 2013.

4. On 8 May 2014 the Children’s Guardian forwarded a notice of interim bar in accordance with section 17 of the Act, about which the applicant was informed on 7 May 2014.

5. In a letter from the Children’s Guardian to the applicant dated 19 January 2015 the applicant was informed that the Children’s Guardian decided that he poses a risk to children. In other words, the applicant was refused a Working with Children Clearance preventing him from working in “child-related work”: section 6(2)(j) and section 8 of the Act; clause 13 of the Child Protection (Working with Children) Regulation 2013.

6. The applicant was represented by a barrister at the hearing of this application for review. The application for review was heard by the Tribunal on 6 November 2015.

7. An order has been made on 26 March 2015 and again on the hearing date 6 November 2015, under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

8. The Tribunal has been assisted by the careful presentation of this application and the written and oral submissions of the parties.

9. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

The evidence relied upon in the hearing

10. The applicant relied upon the following documentary material:

1. Administrative Review Application filed 6 February 2015 annexing the letter from the Children’s Guardian dated 19 January 2015 - Exhibit A1;

2. Affidavit of the applicant BZU filed 3 November 2015 - Exhibit A2;

3. Expert witness report by Elena Gianvanni filed 30 June 2015- Exhibit A3;

4. Reference by the applicant’s stepson dated 8 June 2015- Exhibit A4;

5. Reference by step son-in-law filed 3 November 2015- Exhibit A5;

6. Reference by the applicant’s wife dated 9 June and filed 3 November 2015 - Exhibit A6;

7. Medical Certificate from the applicant’s GP dated 30 October 2015- Exhibit A7;

8. Britain Submissions on the half of the applicant filed 5 November 2015- Exhibit A8;

11. The applicant also relied upon a number of references which were provided in the material tendered by the respondent. The applicant thoughtfully provided a schedule listing those references to which the Tribunal has now had regard.

12. The respondent relied upon the following documentary material:

1. Documents filed pursuant to section 58 of the Administrative Decisions Review Act 1997 filed 12 March 2015 - Exhibit R1;

2. Section 31 documents produced by the applicant’s religious organisation filed 29 October 2015 - Exhibit R2;

13. The applicant gave oral evidence and was cross-examined on 6 November 2015.

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

15. The decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, recorded at [32]:

“…there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.”

16. The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further binding support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

17. The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous two paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

18. The practical or forensic onus but not the legal onus is thus carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

19. The Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

20. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this decision is identified for the parties.

21. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

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

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

22. There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is 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.”

23. The objects of the Act are set out in section 3 which provides:

"Object of Act

The object of this Act is to protect children:

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

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

24. "Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."

25. Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows:

“14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.”

26. The applicant pleaded guilty to a charge of murder of an adult Aboriginal man on 31 July 1989 in the Supreme Court of Queensland. The applicant was convicted and sentenced to life imprisonment with a non-parole period of 13 years. The applicant apparently served 15 years in prison prior to his release on parole.

27. At the time of the application by the applicant for a working with children check clearance the offence of murder was not in offence specified in schedule 2 of the Act which would have rendered the applicant a ‘disqualified person’. The matter referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian is the matter referred to in clause 1(6) which is as follows:

“(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.”

28. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.

29. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

30. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (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 form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

31. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but 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.

32. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD 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.

33. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, 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] NSWIRComm 101 at [130].

34. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "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 9, 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). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

28. The Tribunal is guided by the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour in BKE v Office of the Children’s Guardian stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“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.”

36. The applicant is committed to his religious organisation and performs work as a Minister having contact with children in a congregational setting. This falls within the definition of ‘child related work’ under section 6 of the Act. The applicant is required to have a working with children check clearance in order to perform this work.

37. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. It is useful to set out the reasoning behind the Tribunal’s determination in this decision.

38. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.

39. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.

40. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.

41. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.

42. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

43. In the following paragraph the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

44. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and with approval in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

45. In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states:

"Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."

46. If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

47. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 provide that persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. The applicant is not treated as a disqualified person, but is subject to risk assessment under the current Act due to the provisions of schedule 1. It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

48. As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance to the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

49. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

50. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33] .

51. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

52. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than is section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language.

53. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.

54. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.

55. Section 15 of the Act provides as follows:

15 Assessment of applicants and holders

(1) The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.

(4) In making an assessment, the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

(d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred,

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

(5) The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.

56. Section 30 of the Act provides as follows:

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.

57. The evidence will be considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings within the required considerations under the Act.

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

58. The offence of murder is a serious offence. Bail was opposed on the basis that the offence was so serious, according to the Court records. This offence is considered to be at the highest end of serious violent offending. The offence involved stalking, significant repeated violence, sexual assault, and denial of responsibility until apprehension by police. The applicant pleaded guilty and has acknowledged the offence.

59. In summary, the applicant and his friend decided that they would rob someone after they left a nightclub together. The co-accused followed the victim down some stairs at the end of a bridge. After about 10 minutes the applicant became concerned about his co-accused. The applicant went down the stairs and helped his co-accused, grabbed the victim and checked his wallet. They walked the victim back to the stairs but instructed him to pull his pants down apparently in order to slow him down and allow for a safe getaway. The victim hit the co-accused and a fight developed. The applicant agrees that he said to the victim “Were going to fuck you up” and reports that his meaning at the time was that they “were going to bash him up”: Exhibit R1 page 141. Three youths walked past and the applicant told them that the victim was drunk and encouraged them to continue walking away. The co-accused punched the victim to stop him from yelling. The co-accused then coerced the victim to perform fellatio upon him. The applicant denied having any sexual intentions himself for the victim. The applicant maintains he had no sexual relations with the victim. The applicant stated that he lost all empathy for the victim, not caring about what would happen to him after that: Exhibit R1 page 164. After the sexual assault, the co-accused attempted to choke the victim at the suggestion of the applicant. The co-accused could not render the victim unconscious so the applicant took over using his knowledge of martial arts training to put a sleeper hold on the victim and render him unconscious. The co-accused wanted to throw the victim off the bridge but the applicant suggested to instead take him to the river. At the river, the co-accused dragged the victim to the water’s edge, got stuck in mud up to his knees, and then picked up a large rock which he held above his chest and dropped it on the victim’s head. The applicant reported that he heard a crack, saw blood and brain matter disperse, noticed the victim was struggling to breathe and made gurgling sounds. The applicant then made a comment to his co-accused “Make sure he is dead.” The co-accused dropped the rock twice more on the victim’s head as the applicant watched. As they left the crime scene they noticed car lights coming towards them so they ran to nearby train tracks. The applicant and his co-accused walked along the train tracks for a while and then separated. For the next 5 days the applicant says that he was intoxicated: Exhibit R1 page 165. The applicant went to work and was arrested by the police 5 days after the offence: Exhibit R1 page 142.

60. The applicant grew up in an apparently normal family. The applicant was an aggressive sportsman and when he was younger was selected for representative teams. The applicant has reported that when growing up as a child he did not suffer sexual, emotional, or physical abuse.

61. The applicant left school and obtained work often as a jackaroo. The applicant worked as a Bouncer by night and had a day job at the time of the offence. The applicant disclosed in prison that between the ages of 16 and 18 years he had engaged in 15 fights, with the frequency of those altercations increasing up until the murder.

62. The applicant described himself as “The Protector” and protected his friends including his co-accused when he was assaulting the victim and the victim retaliated. The applicant considered, and so did his friends, that he was a good fighter. The original motivation for the choice of the victim was apparently to rob him, but at the time of the murder the applicant was not in need of cash.

63. The applicant conveyed what the psychologists and psychiatrists have described as an objectified perspective or representation of his behaviour rather than “an affect-laden admission of his brutality.” Exhibit R1 page 154 [15]. This has been explained as the applicant’s efforts to maintain emotional detachment from a disturbing event. The applicant stated that the victim was forced to perform oral sex on his co-offender to further humiliate him. Both offenders were punching and physically abusing the victim at will. The applicant described the oral sex as a turning point in the relationship he had with the victim because he “switched off seeing him as a person”: Exhibit R1 page 155 [16]. This was the motivation then to kill the victim, that is, in order to hide the sexual abuse. The applicant stepped in to choke the victim when his co-offender was unable to render him unconscious. After watching his co-offender drop a heavy rock on the victim’s head, the applicant told him to “make sure he’s dead”: Exhibit R1 page 155 [17]. The psychologist who wrote this report in 2001 stated: “It may be speculated that Murder became merely the final act in a brutal process of abuse and domination.” Exhibit R1 page 155 [18].

58. The offence was very serious.

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

65. The offence of murder occurred 26 years in the past.

66. The conduct of the applicant since that time has not brought him to the attention of the police. However, when he was first in jail he had a few fights but it is said that he soon learned to stay away from conflictual situations.

67. The lapse of time between the offence of murder and the current application might be thought to be evidence of a minimal risk of recurrence of the offending conduct. However, it is apparent on the evidence that the applicant has shown little evidence of mitigation of risk and has shown some pro-social engagement with the community. The applicant has been also engaged in child related employment without any adverse comment or reports. The applicant does not demonstrate any significant remorse in regard to the offence, but this may be related to his own psychological coping mechanisms and his limited emotional capacity.

68. It is suggested in the Psychiatriatric opinion contained in the material filed by the respondent that there may be significant inability on the part of the applicant, because of his religious beliefs, to accept the enormity of his offence.

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

69. The applicant was aged 18 years old at the time of the murder.

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

70. The murder victim was aged 19 years old at the time of his violent death.

71. The victim was vulnerable and set upon by the applicant and his co-offender with illegal intent, to rob him, ultimately leading to his death. The details of the offence suggest that the victim endured fear and humiliation resulting ultimately in a violent and painful death.

72. The applicant stated that the victim was forced to engage in fellatio as part of his humiliation. The victim was an Aboriginal and the applicant and his co-offender are not. It is thus debatable whether there was any racial motivation to the offence. The applicant says that it was random chance that the victim was Aboriginal. While he was in jail the applicant “struggled” due to trouble with other Aboriginal people for killing an Aboriginal man: Exhibit A3 [5.3].

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

73. The difference in age between the victim of the murder and the applicant was 1 year. The victim was older than the applicant. The victim was unknown to the applicant.

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

74. The victim was not a child.

The person’s present age

75. The applicant is currently 45 years old.

76. The applicant’s greater maturity and ability to improve himself whilst he was in prison were factors which operated in favour of his release on parole and work release prior to his discharge from prison.

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

77. The applicant has a serious criminal record. The applicant has no further criminal record other than the serious offence of murder.

78. The applicant has apparently behaved in a prosocial ways since the offences.

79. Since the offences, the applicant married in 2004 and helped to raise a family. That family has also been supportive. There are now grandchildren aged 5 and 2, who are the children of the applicant’s stepdaughter. The applicant is a valued member of his religious community.

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

80. The applicant relies upon the evidence of himself, his wife in her reference, members of his religious community and his stepchildren to support his assertions that he does not pose a risk to children.

81. The applicant has not repeated the offence of which he was convicted. The applicant has spent 15 years in jail.

82. The impact upon children of a repetition of murder would be not only frankly abusive, but also deleterious to the healthy development of those children if they were to observe such violence.

83. There has been no reported concerning conduct since the offence.

84. However, when the applicant was psychiatrically and psychologically assessed there was some divergence of opinion as to whether the applicant had reformed to the point where he is no longer a danger to society. Indeed, the gravity of the offence coupled with the applicant’s apparent indifference to the suffering of a fellow human being, or more damning, an actual satisfaction from violent acts resulting in a death in a cowardly and brutal manner, makes it difficult to accept that the applicant has any possibility of sustained reform or change to his psychological makeup: see e.g. Exhibit R1 page 31.

85. It is clear from the records kept while the applicant was in prison, that the applicant gave different accounts of the offence and tended, at least in the early stages of his sentence, to minimise his part in the offence. This is an aspect which should and did cause significant concern in relation to the prediction of the likelihood of repetition of such antisocial behaviour.

86. The sentencing judge apparently stated: “The crime is no doubt one that will shock the community but it really is a matter for the community to ask itself why life should be treated so cheaply.” Exhibit R1 page 33.

87. The applicant described to a psychologist in 2001 a fight that he had participated in approximately one month before the murder. The applicant said he was able to recall this particular fight in the Tribunal hearing. The applicant said that the person was trying to initiate a fight with one of his friends. The applicant described this fight to the psychologist as follows:

“He stated he now recognised that he acted provocatively in a potential conflict situation. By way of illuminating the serious nature of [the applicant’s] aggression at that time, I will describe a nightclub fight which took place approximately one month before the Murder. [The applicant] explained that a certain male was spoiling for a fight and that he [the applicant] returned the intimidation. [The applicant] said he recognised the fight was on, i.e., that he had become aggressively aroused, and checked no Bouncers were in the vicinity before attacking. He then kneed the fellow to double him over and, while holding the person’s head down, delivered 4-5 punches to the head. While keeping the fellow’s head down he proceeded to steer him into the toilet where he positioned him for a king hit, knocking the person across the washroom and leaving him slumped on the floor. [The applicant] pushed his way back to his drink, and the Bouncers were left to eject the assaulted person from the establishment. In my view, the three elements which underpinned [the applicant’s] role in the brutal offence are clearly displayed in this narrative. That is, [the applicant] described; (1) substantial alcohol consumption, (2) an explosive propensity for physical aggression, and (3) a certain cunning premeditation to deftly conceal his antisocial behaviour.” Exhibit R1, page 153-154.

88. The applicant showed no apparent remorse or identification with the victim when he recalled this incident in the Tribunal hearing.

89. The applicant has stated that he had little respect for the victim of the murder or any appreciation of the victim’s rights at the time of the offence. The applicant reported that he experienced an adrenalin rush and became excited by domination of the victim during the attack. After the sexual assault the applicant lost respect for his co-accused because he coerced the victim into performing fellatio, and secondly, he lost respect for the victim because the victim allowed the sexual assault take place by not resisting (at least not successfully is probably more accurate): Exhibit R1 page 165.

90. The applicant told the Tribunal that he did not think alcohol played a role in his committing the offence of murder. The applicant denied that he was less inhibited about his actions. The applicant made a decision not to drink alcohol when he was in prison. The applicant says that he previously went to places where people were drinking. The applicant now does not want to be where other people are drinking because he thinks someone might possibly take exception to him and want to fight. The applicant says that he cannot drink because of his diagnosis of diabetes: Exhibit A7. However, the applicant gave evidence that he had more recently consumed alcohol in a social situation. This action is contrary to his previous statements whilst in jail and to various risk assessors. It is a sign of acquiescing to some social pressure. The applicant gave the clear impression that he has an aversion to being placed in the same situation as he was in the past.

91. In 2002 the applicant was assessed by a psychologist in the Correctional Centre prior to his release. The testing undertaken at that time indicated that the applicant was a low risk of recidivism generally and in particular violent recidivism: Exhibit R1 page 168. The psychologist recommended that the applicant be given community-based release from prison. This was recommended on the proviso that if the applicant was to be given parole in the future, he should engage in one-on-one therapy or group programs addressing substance abuse relapse prevention as a precaution. It is instructive to note that the psychologist also stated: “Finally, it is important to note when considering this recommendation that psychologists generally have poor validity in predicting dangerousness.” Exhibit R1 page 168.

92. This last comment is consistent with expert evidence given in other cases before this Tribunal: see e.g. BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99].

93. The applicant has not seen a need to seek psychological support since he has been living in the community, despite the recommendation by the psychologist in 2002.

94. The applicant relied upon a report from Elena Gianvanni, psychologist dated 2 June 2015 which was filed in the Tribunal on 30 June 2015: Exhibit A3. The psychologist interviewed the applicant on 20 May 2015 and conducted a two and a half hour clinical interview. The psychologist had access to other psychiatric and psychological reports which form part of the evidence before the Tribunal. Based upon the information which she gained through her interview of the applicant, plus results from psychological assessment tools, the opinion she formed was that the applicant presents with no risk for future general reoffending including violent offending: Exhibit A3 [9.1]. The expert did not refer to the general caveat placed upon risk assessments by other psychologists, that is, there is “poor validity in predicting dangerousness”. The weight which can be placed upon this report is minimal because of its failure to address the shortcomings of predicting future events based on psychological tools when it is also well accepted that "All adults can present a risk to children...” as stated by the Minister in the Second Reading Speech for the bill which became the Act and comments by other respected experts extracted in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]. At best the applicant’s risk could be said to be low based upon both psychological tools and clinical assessment, but it could not validly be said that there is absolutely no risk.

95. It is reported that the applicant has verbalised remorse for his offence. The applicant has also been reported to have admitted that he could have stopped the actions taken during the offence at a number of points. The applicant has not otherwise been able to adequately show insight into his offending behaviours.

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

96. The applicant has provided some information including multiple references from family and members of his congregation.

97. The Children’s Guardian was able to verify some of the references provided by the applicant. One of those included the chaplain at the correctional Centre in which the applicant was incarcerated and who met the applicant in 1991. The referee was impressed with the applicant as an inmate of the prison. The referee indicated that he understood the offence was a “street fight” where the applicant was not directly involved in the murder: Exhibit R1 page 26. The applicant to his observation had a good work ethic, developed his trade qualifications, and did not believe that the applicant posed any risk to the safety of children. A further reference from another chaplain who knew the applicant in prison was very supportive, referring in particular to the applicant’s religious conversion and adherence to a more conscientious lifestyle. The applicant whilst in prison was reported to have removed himself from questionable conduct and undertook to improve his appearance by cutting his hair and neatening his presentation. Other references provided were supportive members of the applicant’s family or his congregation.

98. Clearly the applicant impressed people when he was in prison and his undertaking of remedial courses is commendable.

99. There is little information provided by the applicant as to his ongoing psychological and emotional supports in the broader community outside his religious affiliation. There is some justification for concerns as to the insularity of this religious community and the potential for outside influences and triggers to operate differently upon the applicant than in the supportive community which he currently inhabits.

Any other matters that the Children’s Guardian considers necessary

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

101. The Children’s Guardian submits that the applicant’s conduct involved serious disregard for the rights of other people. The respondent submits that many of the factors other than the seriousness of the offence and the likelihood of repetition weigh on the scales in favour of the applicant.

102. The respondent submits that a real and appreciable risk to the safety of children may be present.

Consideration and determination

103. The offence which triggered this assessment is a most serious offence. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. In an early assessment in 1989 it was considered that the applicant was quite capable of again engaging in antisocial activities such as the one that led to his imprisonment. The activities engaged in by the applicant generally were consistent with traits of Antisocial Personality Disorder: Exhibit R1 page 145. A diagnosis of that personality disorder however could not be made. The applicant undertook a number of courses whilst he was in prison. The applicant has undertaken many psychological tests. The speculation has been that while features of the applicant’s personality have remained stable over time there has been an amelioration of the personality characteristics which were previously associated with his offending behaviour: Exhibit R1 page 149. The culpable behaviour exhibited a significant lack of regard for other people’s feelings and rights consistent with those antisocial personality traits. It would appear that the behaviour of the applicant has ameliorated in order for the applicant to obtain release on parole. Since his release on parole there has been no reported relapse into antisocial behaviours.

104. The behaviour, if repeated, would do significant harm to the victims. The consequences may be fatal. The paramount principle under the Act includes protection of children from abuse and 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.

105. The applicant has matured with age and is committed to his family which are factors in his favour. The applicant has engaged in some prosocial behaviours and is engaged with his community. These are also factors in his favour.

106. The applicant showed no apparent remorse or identification with his victims when he recalled incidents in the Tribunal hearing. Remorse on its own is insufficient to ameliorate risk.

107. It is suggested in the Psychiatriatric opinion contained in the material filed by the respondent that there may be significant inability on the part of the applicant, because of his religious beliefs, to accept the enormity of his offence. The offence showed a cunning premeditation and an attempt to conceal his antisocial behaviour.

108. There is little information provided by the applicant as to his ongoing psychological and emotional supports in the broader community outside his religious affiliation. There is some justification for concerns as to the insularity of his religious community and the potential for outside influences and triggers to operate differently upon the applicant than in the supportive community which he currently inhabits.

109. The diagnosis of diabetes has not stopped the applicant from drinking alcohol, despite it being contraindicated. Apparently there was some social pressure for him to engage in that behaviour. In the past violence has arisen in association with alcohol. The applicant participated in the murder through a misguided sense of helping his friend and supporting him to the detriment of the victim. The applicant may well be drawn into that way of behaving again in the absence of clear prevention strategies.

110. 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.

Conclusion

111. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.

112. Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

113. 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. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children.

114. The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

115. If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children, it is concluded on the balance of probabilities that the circumstances surrounding the murder and the subsequent course of conduct by the applicant means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

111. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance.

Conclusion

117. The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 9 March 2015 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 filed 10 June 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: 05 January 2016