C and Chief Executive Officer, Department for Community Development

[2007] WASAT 116

C and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 116

Link to Appeal :

[2007] WASCA 172 [2008] WASCA 28 [2008] WASCA 28

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 116
Act:	WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
Case No:	VR:195/2006	Heard:	19 MARCH 2007
Coram:	JUSTICE M L BARKER (PRESIDENT)	Delivered:	22/05/07
No of pages:	38	Judgment Part:	1 of 1
Result:	Decision to issue negative notice overturned Issue of assessment notice
Category:	B
PDF Version

Parties:	C CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT
Catchwords:	Working With Children (Criminal Record Checking) Act 2004 Issue of assessment notice Issue of negative notice Non-conviction charge Particular circumstances of the case Evidence Act 1906 s 106B Evidence Act 1906 s 106C Assessment notice issued
Legislation:	Administrative Decisions Tribunal Act 1997 (NSW), s 126(1) Anti-Discrimination Act 1977 (NSW), s 108(1)(b) Criminal Code (WA), s 27, s 320(4), s 570D Evidence Act 1906 (WA), s 106A, s 106B, s 106C Federal Court of Australia Act 1976 (Cth), s 17(4) Migration Act 1958 (Cth), s 420 Misuse of Drugs Act 1990 (NT), s 37(2) State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 32(2), s 32(2)(b), s 61(4), s 62, s 62(1), s 62(3) Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 101, s 146 Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 6(1), s 7(1), s 7(2), s 8, s 9(1), s 12, s 12(1), s 12(2), s 12(3), s 12(4), s 12(5), s 12(6), s 12(7), s 12(8), s 23, s 24(a), s 26, s 27, s 34, s 45, Sch 1, Sch 2 Working with Children (Criminal Record Checking) Bill 2004 (WA) Working with Children (Criminal Record Checking) Regulations 2004 (WA), reg 6, reg 16(1)(a), reg 16(2)(a)
Case References:	A v The Commission for Children and Young People (No 2) [2000] NSWIRComm 219 ATC v Department of Justice (Occupational and Business Regulation) [2007] VCAT 471 Briginshaw v Briginshaw (1938) 60 CLR 336 Duthie v Smith (1992) 83 NTR 21 G v J & H [2001] NSWIRComm 69 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Independent Commission Against Corruption v Chaffey (1993) 30 NSWLR 21 John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 P v Commissioner, New South Wales Commission for Children and Young People [2001] NSWADT 16 PEH v Department of Justice (Occupational and Business Regulation) [2007] VCAT 470 PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 Qantas Airways Ltd v Gubbins (1999) 28 NSWLR 26 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 Re Bromfeld; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 Sampi v Western Australia [2001] FCA 619 SRD v Australian Securities Commission (1994) 123 ALR 730 TK v Australian Red Cross Society (1989) 1 WAR 335
Orders	1. The review application is allowed.,2. The decision of the CEO under review is set aside.,3. The applicant is entitled to an assessment notice issued under s 12(4) of the Working with Children (Criminal Records Checking) Act 2004 (WA).,4. the CEO (or delegate) of the Department for Community Development take such steps as are necessary to cause the applicant to be issued with an assessment notice under s 12(4) of the Working with Children (Criminal Records Checking) Act 2004 in accordance with this decision.,5. The name of the applicant is not to be published.,6. The materials received by the Tribunal in support of the application are not to be published.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) CITATION : C and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 116 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 19 MARCH 2007 DELIVERED : 22 MAY 2007 FILE NO/S : VR 195 of 2006 BETWEEN : C

Applicant

AND

CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT
Respondent

Catchwords:

Working With Children (Criminal Record Checking) Act 2004 - Issue of assessment notice - Issue of negative notice - Non-conviction charge - Particular circumstances of the case - Evidence Act 1906 s 106B - Evidence Act 1906 s 106C - Assessment notice issued

Legislation:

Administrative Decisions Tribunal Act 1997 (NSW), s 126(1)

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Anti-Discrimination Act 1977 (NSW), s 108(1)(b)
Criminal Code (WA), s 27, s 320(4), s 570D
Evidence Act 1906 (WA), s 106A, s 106B, s 106C
Federal Court of Australia Act 1976 (Cth), s 17(4)
Migration Act 1958 (Cth), s 420
Misuse of Drugs Act 1990 (NT), s 37(2)
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 32(2), s 32(2)(b), s 61(4), s 62, s 62(1), s 62(3)
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 101, s 146
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 6(1), s 7(1), s 7(2), s 8, s 9(1), s 12, s 12(1), s 12(2), s 12(3), s 12(4), s 12(5), s 12(6), s 12(7), s 12(8), s 23, s 24(a), s 26, s 27, s 34, s 45, Sch 1, Sch 2
Working with Children (Criminal Record Checking) Bill 2004 (WA)
Working with Children (Criminal Record Checking) Regulations 2004 (WA), reg 6, reg 16(1)(a), reg 16(2)(a)

Result:

Decision to issue negative notice overturned

Issue of assessment notice

Category: B

Representation:

Counsel:

Applicant : Mr S Watters
Respondent : Mr P Dixon

Solicitors:

Applicant : DG Price & Co
Respondent : Department for Community Development

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Case(s) referred to in decision(s):

A v The Commission for Children and Young People (No 2) [2000] NSWIRComm 219
ATC v Department of Justice (Occupational and Business Regulation) [2007] VCAT 471
Briginshaw v Briginshaw (1938) 60 CLR 336
Duthie v Smith (1992) 83 NTR 21
G v J & H [2001] NSWIRComm 69
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
Independent Commission Against Corruption v Chaffey (1993) 30 NSWLR 21
John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
P v Commissioner, New South Wales Commission for Children and Young People [2001] NSWADT 16
PEH v Department of Justice (Occupational and Business Regulation) [2007] VCAT 470
PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455
Qantas Airways Ltd v Gubbins (1999) 28 NSWLR 26
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228
Re Bromfeld; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Sampi v Western Australia [2001] FCA 619
SRD v Australian Securities Commission (1994) 123 ALR 730
TK v Australian Red Cross Society (1989) 1 WAR 335


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 In 1997 the applicant was indicted on charges of indecently dealing with a child under the age of 13. In early 1999, those charges were tried in the District Court of Western Australia and the applicant was convicted of two counts of indecently dealing with a child under the age of 13. The conviction was set aside by the Court of Criminal Appeal in late 1999, and the Director of Public Prosecutions elected not to proceed with a retrial.

2 In April 2006, the applicant applied for an assessment notice under s 9(1) of the Working with Children (Criminal Record Checking) Act 2004 (WA). His application was rejected on the basis of the non-conviction charges for Class 2 offences. The applicant then sought review of that decision by the Tribunal.

3 The Tribunal considered the grounds on which the applicant's conviction was set aside and weighed the evidence before it. The Tribunal found that there was insufficient evidence to support a finding that the applicant did indecently deal with the complainant.

4 In deciding the review application de novo, the Tribunal gave close consideration to the factors outlined in s 12(8) of the Working with Children (Criminal Record Checking) Act 2004. The Tribunal found that the particular circumstances of the case did not justify the issue of a negative notice.

5 The Tribunal also found that it was appropriate to make an order suppressing the publication of the applicant's name, as to publish the name would not be in the interests of justice.

Issue

6 The primary issue in these proceedings is whether the applicant (who for reasons for confidentiality as discussed later in these reasons will be referred to as "C" or "the applicant") should be issued with an assessment notice under s 12(4) of the Working with Children (Criminal Record Checking) Act 2004 (WA) (Act).

The relevant decision-making context under the Act

7 The long title to the Act explains that the Act is principally designed:

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• to provide procedures for checking the criminal record of people who carry out, or propose to carry out, child-related work; and

• to prohibit people who have been charged with or convicted of certain offences from carrying out child-related work.

8 The Act came into operation on 1 January 2006, excluding s 50 - s 52, which came into operation on 1 January 2007, and s 1 and s 2 which came into operation on 8 December 2004.

9 Section 3 of the Act provides that in performing a function under the Act, the Chief Executive Officer (CEO) of the Department for Community Development or the State Administrative Tribunal is "to regard the best interests of children as the paramount consideration".

10 In the administration of the Act, the CEO has delegated her powers and duties to the Director, Working with Children Screening Unit, as she is permitted to do by s 45 of the Act.

11 Under s 9(1) of the Act, a person who is, or is proposed to be, employed in child-related employment by another person (employer) may apply to the CEO for an assessment notice.

12 Under the Act, "child-related work" has the meaning given to that term in s 6: see definition in s 4 of the Act. Work will be "child-related work" if the usual duties of the work involve, or are likely to involve, contact with a child in connection with any of the categories listed in s 6(1)(a)(i) ­ s 6(1)(xix). Category (xii) is a club, association or movement (including of a cultural, recreational or sporting nature and whether incorporated or not) with a significant membership or involvement of children, but not including an informal arrangement entered into for private or domestic purposes.

13 The expression "child-related employment" is defined by s 4 to include child-related work carried out by an individual under a contract of employment or apprenticeship (whether written or unwritten), or child-related work carried out on a voluntary basis by an individual under an agreement (whether written or unwritten) with another person.

14 Volunteers in child-related employment working with children aged 0 - 7 years of age are required to apply for an assessment notice by 31 December 2006 if they commenced this child-related work before

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1 January 2006. Volunteers commencing work with children aged 0 ­ 7 years after 31 December 2006 are required to apply for an assessment notice upon commencing child-related employment: reg 16(1)(a) and reg 16(2)(a) Working with Children (Criminal Record Checking) Regulations 2005 (WA) (Regulations).

15 Applications must be decided in accordance with s 12 of the Act by issuing an assessment notice or a negative notice to the applicant: s 12(1).

16 People who do not have a current assessment notice must not be employed in child-related employment: s 24(a) of the Act.

17 Applicants who have been issued with a negative notice commit an offence if they are employed in child-related employment or carry on a child-related business: s 23 of the Act.

18 On receiving an application, the CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant: s 12(2) of the Act. The CEO is entitled to obtain details of an applicant's criminal record from the Commissioner of Police (WA) or a criminal records agency of the Commonwealth, a State or Territory, or another country: s 34 of the Act, reg 6 of the Regulations.

19 The expression "criminal record" in relation to a person means every conviction of the person of an offence in Western Australia or another jurisdiction and every charge made against the person for an offence in Western Australia or another jurisdiction: s 4.

20 The expression "conviction" has the meaning given to it in s 8 and includes the following:

• a court making a formal finding of guilt in relation to the offence;

• a court convicting the person of the offence, if there has been no formal finding of guilt before conviction;

• a court accepting a plea of guilty in relation to the offence;

• a court acquitting the person following a finding under the Criminal Code (WA), s 27, that the person is not guilty of the offence on account of unsoundness of mind or an acquittal following an equivalent finding under the laws of another jurisdiction; and

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• a conviction that is a spent conviction.

21 The expression "charge" is defined by s 4 of the Act to mean a non-conviction charge or a pending charge. A "non-conviction charge" is further defined by s 4 to mean a charge or offence that has been disposed of by a court otherwise than by way of a conviction.

22 Part 2 Div 2 of the Act deals with the issue of assessment notices and negative notices. Section 12 governs the decision-making processes which might arise depending on whether an applicant's criminal record shows a conviction or a charge of a particular class.

23 Section 12(3) of the Act requires the CEO to issue an assessment notice to an applicant if the CEO is not aware of any offence for which the applicant has been convicted or any offence (other than an offence that is neither a Class 1 offence nor a Class 2 offence) with which the applicant has been charged.

24 Sections 12(5), 12(6) and 12(7) of the Act, deal with cases not relevant to the present circumstances of the applicant, and require the issue of a negative notice when they apply. Section 12(4) of the Act is the provision relevant to the circumstances of the applicant.

25 Section 12(4) of the Act provides that if the CEO:

(a) is not aware of any offence of which the applicant has been convicted; and

(b) is aware that the applicant has a non-conviction charge in respect of a Class 1 or a Class 2 offence,

the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.

26 A "Class 1 offence" is defined by s 7(1) of the Act and includes an offence against a provision listed in Sch 1 (if the offence complies with any condition specified in that Schedule relating to the age of the victim) of the Act.

27 A "Class 2 offence" is defined by s 7(2) and includes an offence against a provision listed in Sch 2 (if the offence complies with any condition specified in that Schedule relating to the age of the victim) of the Act.

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The initial application to the CEO

28 In April 2006, the applicant applied for an assessment notice under s 9(1) of the Act. He completed his application in the required form and indicated that he was in child-related work as a volunteer in connection with a club, association or movement with a significant membership or involvement with children, and described his role as tee-ball coach.

29 The CEO's delegate then conducted the required criminal record check in respect of the applicant. It revealed non-conviction charges for Class 2 offences. Because in 1997 the applicant had been indicted on charges of indecently dealing with a child under the age of 13 (Criminal Code s 320(4)) - even though he was not ultimately convicted of them - the offences fell within Sch 2 of the Act.

30 After considering the particular circumstances of the case, the delegate of the CEO was satisfied, pursuant to s 12(4), that a negative notice should be issued to the applicant.

The review application

31 The applicant now seeks review of that decision by the Tribunal under s 26 of the Act.

32 Under s 27 of the State Administrative Tribunal Act2004 (WA) (SAT Act), the Tribunal must consider the review application de novo - or afresh - and must produce the "correct and preferable decision".

The s 12(4) decision-making function

33 Section 12(4) of the Act provides that:

"If the CEO -

(a) is not aware of any offence of which the applicant has been convicted; and

(b) is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence,

the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant."

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34 The subsection reflects a legislative intent that the civil right of a person to receive an assessment notice should be respected, unless there is some good reason to the contrary arising from "the particular circumstances of the case".

35 The expression, "the particular circumstances of the case", requires the CEO (or delegate), and on review this Tribunal, to regard the particular circumstances of the case as it involves the applicant. The legislative intent of s 12(4) is that the circumstances relating to the non­conviction charge may be considered in decision-making under the Act, even though no conviction was recorded against an applicant.

36 This legislative intent is confirmed by what the responsible Minister, the Hon Ms SM McHale MLA, said in the second reading speech for the Working with Children (Criminal Record Checking) Bill 2004 (WA), when the Minister explained:

"Not all offences against children result in convictions. Therefore, the Government has resolved that charges will be assessed also. We will not tolerate paedophiles who have escaped conviction for various reasons working with our children … [t]his will enable consideration to be given to sexual and violent offences that have been dismissed on a technicality or have not proceeded because of the impact on the victim - particularly children - and the reliability of the evidence … With regard to non-conviction charges, the onus is on the assessing authority to show cause as to why particular circumstances exist and why an assessment notice should not be issued."

37 It will be noticed that s 12(4) does not require the decision-maker to be satisfied that "exceptional" or "special" or "noteworthy" circumstances exist before being satisfied that a negative notice should be issued. It is simply "the particular circumstances of the case" that must be regarded.

38 When interpreting statutory expressions, such as "the particular circumstances of the case", primary consideration must be given to the words used and the context in which the expression appears in the statute, as well as the scheme and purpose of the legislation in question. For that reason, the way the same or similar expressions have been interpreted by courts or tribunals in other statutory contexts may be helpful but not determinative.

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39 In this case, the Act, in s 12(6), a different decision-making context, actually uses the expression "exceptional circumstances of the case" in relation to applications where the decision-maker is aware of a Class 1 offence (when the applicant was a child), or a Class 2 offence of which the applicant was convicted, or a pending charge on a Class 1 or a Class 2 offence. In other words, the Parliament has been selective in choosing the relevant test to be applied before a negative notice is issued, depending on the offence/charge position.

40 Additionally, counsel for the parties drew to the Tribunal's attention the decision of Mildren J in the Supreme Court of the Northern Territory in Duthie v Smith (1992) 83 NTR 21 that dealt with a similar "particular circumstances of the case" expression. In that case, the respondent had pleaded guilty to one charge of possession of a trafficable quantity of cannabis. He also admitted a prior conviction for possession of a small quantity of cannabis. Section 37(2) of the Misuse of Drugs Act 1990 (NT) directed the Court in those circumstances to impose a sentence of "actual imprisonment unless, having regard to the particular circumstances of the offence or the offender … it is of the opinion that such a penalty should not be imposed". Justice Mildren, having regard to earlier authority, was satisfied that the "particular circumstances of the offence or the offender" referred to in s 37(2) do not need to be so noteworthy or out of the ordinary as to convey the meaning that only in rare cases will they be found to exist: see at 30.

41 In conclusion then, the expression used in s 12(4), "the particular circumstances of the case", does not require some exceptional or noteworthy or special set of circumstances to exist before a decision­maker can be satisfied that a negative notice should be issued.

42 However, because a decision-maker should not issue a negative notice under s 12(4) unless satisfied the particular circumstances of the case require such a notice, there is a practical obligation on the decision­maker, "to show cause" why, as the Minister put it in the second reading speech, an assessment notice should not issue. This means the decision­maker should be able to point to relevant or material circumstances that are sufficiently cogent to justify the issuing of a negative notice. This reasonably follows, given the significant consequences for an applicant not obtaining an assessment notice, which may deprive him or her of an employment opportunity or otherwise limit their capacity to engage in the life of the community, and otherwise to have their reputation blackened, perhaps permanently.

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43 While s 12(4) of the Act seems to leave a decision-maker with a general responsibility to regard the particular circumstances of the case, s 12(8) of the Act removes any suggestion that the decision-making exercise is a purely subjective one. Section 12(8) relevantly provides that if subsections (4), (5) or (6) apply in respect of an offence, the CEO is to decide "whether he or she is satisfied in relation to the particular or exceptional circumstances of the case" having regard to:

• the best interests of children;

• when the offence was committed or alleged to have been committed;

• the age of the applicant when the offence was committed or is alleged to have been committed;

• the nature of the offence and any relevance it has to child-related work;

• any information given by the applicant in, or in relation to, the application; and

• anything else that the CEO considers relevant to the decision.

44 While s 12(8) refers to "the particular or exceptional circumstances of the case", the reference to "exceptional circumstances" is, in the context of the Act, a reference to the exercise of the decision-making function that arises under s 12(6) (referred to earlier) which requires the CEO to issue a negative notice to an applicant in other circumstances, not relevant here, unless satisfied that, "because of the exceptional circumstances of the case", an assessment notice should be issued to the applicant.

45 As to the list of factors to be regarded when exercising the s 12(4) decision-making function, it will be noticed that the first factor mentioned is "the best interests of children". This may suggest this factor ranks equally with the other factors which are listed after it. However, nothing in s 12(4) or s 12(8) qualifies the principle set out in s 3 of the Act, mentioned earlier, that the best interests of children are "the paramount consideration" when the CEO or the State Administrative Tribunal performs a function under the Act. It follows that while all the factors listed in s 12(8) must be regarded when the s 12(4) decision-making function is exercised, the best interests of children are, and remain, the paramount consideration.

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46 The paramount consideration established by s 3 of the Act reminds a decision-maker that factors personal to an applicant - for example, the fact that to deny an applicant an assessment may prejudice the applicant in their employment prospects or engagement in community affairs, or affect their reputation - cannot be relied on to outweigh the best interests of children. Put another way, the paramount consideration means that, if having regard to the particular circumstances of the case there is a well­founded concern that the best interests of children might be put at risk if an assessment notice were to be issued, then a negative notice should be issued notwithstanding the adverse effect it may have on the applicant.

47 However, as the Minister's second reading speech recognises, in weighing the civil right of an applicant to receive an assessment notice against the particular circumstances of the case which might suggest otherwise, the decision-maker has the obligation to be satisfied - "show cause" why, as the Minister put it - a negative notice should be issued. In other words, an applicant does not primarily have to prove that an assessment notice should be issued, rather the decision-maker must be satisfied, because of the particular circumstances of the case, that a negative notice should be issued.

48 Ultimately, as provided by s 27(2) of the SAT Act, the Tribunal's task on review is to produce the "correct and preferable decision" at the time of the decision upon the review. In performing this function, the Tribunal will necessarily consider all credible, relevant and significant information before it, to use Brennan J's classification in Kioa v West (1985) 159 CLR 550 at 628­629.

"The particular circumstances of the case" concerning the applicant

49 For the purpose of exercising the s 12(4) decision-making function and regarding the s 12(8) factors, it is necessary to be clear as to exactly what "the particular circumstances of the case" of the applicant are. In this case, this task is complicated by the facts that the applicant was initially indicted on more charges than actually proceeded to a criminal trial, that after a criminal trial at which the applicant was convicted, an appeal court set aside the conviction and ordered a retrial, and that the retrial did not proceed.

50 The initial criminal record check in respect of the applicant revealed non-conviction charges for a number of Class 2 offences.

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51 In 1997, the applicant was indicted or charged with four counts of indecent dealing. Three counts concerned complainant A (then a six­year­old girl) and one count concerned complainant B (complainant A's sister, then of a similar age). At the pre-recording of the complainants' evidence for the purposes of a trial, complainant A gave evidence only about two incidents of indecent dealing, and complainant B gave no evidence about the incident leading to her complaint. Following the pre-recording, the first indictment was replaced by a second indictment which contained only two counts of indecent dealing, both involving complainant A. Her sister's original complaint thereafter was not pursued in the criminal proceedings.

52 In deciding to issue a negative notice, the delegate of the CEO relied only on information relating to the charges contained in the second indictment and had no regard to matters pertaining to the earlier charges that were not pressed. In my view, that was and is an entirely appropriate way to consider the application, as it would be entirely unfair to place any reliance on the initial complaints when they were not later repeated. However, this prosecution history may be considered generally relevant in these proceedings.

53 Following a trial in the District Court of Western Australia in early 1999, on the second indictment, the applicant was convicted of both counts of indecent dealing by a jury reaching a majority verdict (that is to say, a non-unanimous jury decision permitted by law). The applicant was sentenced by the trial judge to a community based order for a term of 18 months and was ordered to perform 100 hours of community work.

54 The applicant then appealed his convictions to the Court of Criminal Appeal, which allowed the appeal and ordered a new trial, principally on the ground that the trial judge's inquiry into the capacity of the child complainant to give sworn evidence, which was required by s 106B of the Evidence Act 1906 (WA), was inadequate: for reasons of confidentiality, as discussed later, this decision is referred to as C v R.

55 After the appeal, the Crown decided against a retrial. In September 1999, the Crown tendered a certificate of nolle prosequi to the District Court declining to proceed further on the two charges of indecent dealing contained in the second indictment. The reason given to the Court for discontinuing the proceedings was that it was not in the public interest to proceed with a retrial, given the necessity of having to call the young complainant to give evidence after such a long period of time since the events in question - nearly three years. Complainant A was aged six years

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and nine months at the time of the alleged offences, she was seven years and eleven months when her evidence was pre-recorded, and she was nine years and four months when the certificate of nolle prosequi was presented.

56 In deciding whether or not the particular circumstances of the case required the issue of a negative notice, the delegate of the CEO had regard not only to the two non-conviction charges the subject of the second indictment, but also to evidence given during the initial criminal trial, as well as the decision of the Court of Criminal Appeal. Additionally, the delegate also regarded what the applicant is alleged to have told investigating police officers during an initial interview at his home on 28 March 1997, even though the terms of that interview were never received into evidence at the trial.

57 The initial interview at the applicant's home was not received into evidence at the trial because of the failure of the police who conducted the interview to videotape the interview in conformity with s 570D of the Criminal Code. This section rules inadmissible in a trial of an accused person on a serious offence any admissions made unless the evidence is videotaped, subject to certain exceptions. The applicant was interviewed on videotape following the initial interview, and that later videotaped interview was received into evidence at the trial, but not the earlier interview.

58 While there may have been proper grounds for the initial interview not to be received into evidence in the District Court criminal trial by reason of the non-compliance with the requirements of the Criminal Code, that does not mean the terms of the interview alleged are automatically excluded from consideration for the purposes of the decision-making under the Working with Children (Criminal Record Checking) Act 2004. The rule requiring a suspect to be videotaped when interviewed is designed to ensure a fair criminal trial of charges alleging criminal offences, particularly by removing any concern that a suspect's alleged admissions were not freely and clearly made. It is not concerned with the procedure by which a person is assessed for the purpose of working with children under the Act. I do not accept a suggestion that, because the Criminal Code effectively stipulates that it is unfair for certain statements of a person to be received into evidence in a criminal trial concerning them, it is necessarily unfair for those statements to be used in other decision­making contexts such as that under the Act.

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59 As noted above, in performing its functions, the Tribunal will have regard to all credible, relevant and significant information. However, I think that, depending on the particular circumstances of the case, it remains open in exercising the decision-making function under the Act, either to exclude from consideration, or to accord little weight, to "admissions" that are said to have been made in the course of an interview which was not conducted in conformity with s 570D of the Criminal Code. This is because it may well be unfair to an applicant, in the particular circumstances of the case, for such unrecorded statements to be relied on. There may, for example, be a contest between an applicant, who says that he or she made no such verbal admissions, and a police officer, who swears that his or her account of the interview is true and correct. It was to avoid such contests that s 570D was primarily introduced.

60 In this particular case, however, there is no such contest between the applicant and the police officers who have given an account of the initial interview they say they conducted with the applicant at his home on 28 March 1997. In these proceedings, the applicant does not seek to deny that what the investigating police officers say he said, he in fact said. I am satisfied that in the circumstances there is no unfairness in the Tribunal regarding the information the applicant provided at the initial interview.

61 It remains of course necessary to assess just how credible, relevant and significant the terms of that interview are to the case in hand. The CEO says that the applicant made "admissions" in this interview. It remains to be seen exactly what the applicant "admitted" and exactly what the interview adds to the "particular circumstances of the case" of the applicant.

62 When the applicant was later interviewed by police on videotape and cautioned concerning the use to which his evidence might be put, he told the police that he did not want to answer any questions. However, he did say that the answers he had given to the police earlier were of his own free will, although he did not allow the police to put their version of the earlier conversation to him. As a result, the applicant did not confirm any particular facts later alleged in the trial.

63 The account of the interview given by the investigating police officers shows that the applicant told police that, on separate occasions:

• each of the complainants had slept with him in his bed at their request, not his;

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• he kissed the complainants on the mouth, but he did not put his tongue in their mouths;

• he had not pulled them on top of him - they were next to him;

• the complainants each wore a t-shirt to bed, and he wore boxer shorts and nothing else;

• he kissed one of the complainants on her mouth while she sat on his knee watching football on the television; and

• he always kisses children on their mouths.

64 Turning next to the evidence given at the trial, complainant A's mother gave evidence that:

• in 1994 her family was living in the north-west. She hired the applicant as a nanny on two occasions to look after her children, of which she had three. On both occasions the applicant cared for the children at their home;

• in 1996 when she was separated from her husband and had moved to Perth with the children, she hired the applicant again to look after the children on the weekend of 21 February 1997. The applicant suggested he look after the children at his house. He picked the children up and took them to his house;

• the applicant returned with the children on Sunday afternoon;

• the following night, her son said it was not fair that the girls had been allowed to stay up later than him and that whoever got to sleep in the applicant's bed was allowed to stay up late. He said that complainant A had slept in the applicant's bed one night and complainant B the other night;

• the next night, Tuesday, she spoke to complainant A who had told her she had slept in the applicant's bed and that he had kissed her, put his tongue in her mouth and tickled and rubbed her. At the time she was wearing a nightie with no underpants.

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65 Complainant A gave evidence at the trial (by way of a pre-recorded interview) that:

• on the first night she stayed at the applicant's house she slept in a room with the other children;

• on the second night, the applicant allowed her to stay up after the other children had gone to bed. She was wearing one of the applicant's t-shirts as her knickers were in the wash. The applicant was wearing only boxer shorts;

• while sitting on the applicant's lap watching television, he kissed her on the lips and put his tongue in her mouth; and

• after this they went to the applicant's bed. The applicant started tickling her under the arms and on the stomach. He kissed her lips once again and put his tongue in her mouth.

66 At the trial, the applicant gave evidence that:

• he looked after the children at his house that weekend;

• at night complainant A and her sister did not settle - they kept getting up and hiding from him;

• on the first night he separated the sisters by putting complainant A's sister in his bed;

• on the second night complainant A kept getting out of bed - she watched football with him, he put her in his bedroom and talked with her for a while. He must have fallen asleep. He woke up a few hours later and put her in another room. He went back to bed;

• he kissed the children goodnight but did not kiss complainant A with an open mouth and did not put his tongue in her mouth;

• at the time, he usually dressed for bed by wearing boxer shorts with a matching shirt or singlet. He was definitely wearing boxer shorts but he does not know what he was wearing on the top;

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• he usually kisses children on the cheek but they move their head so a kiss could land on their mouth;

• complainant A could have been wearing a t-shirt that night; her knickers were in the wash; and

• when he took complainant A to his bed, he kissed her not aiming for the mouth but it may have landed on her mouth.

67 This latter evidence, in particular, is at odds with what the applicant told the police during his initial interview, to the effect he always kisses children on the mouth.

68 As noted earlier, the circumstances of the case do not, however, end with the evidence given at the trial. The criminal trial process was followed by an appeal, which resulted in the initial convictions of the applicant being set aside and a new trial being ordered by the Court of Criminal Appeal. Then, following the Court of Criminal Appeal's decision, the Director of Public Prosecutions, in the public interest of not subjecting complainant A to further proceedings, decided to discontinue the prosecution.

69 In its most material respect, in C v R, the Court of Criminal Appeal set aside the convictions and ordered the retrial because it was not satisfied that the rules governing admissibility of a child's evidence in a proceeding had been satisfied. There is a long legal history concerning the admission of a child's evidence in legal proceedings. Sections 106A - 106HC of the Evidence Act 1906 in particular deal with the giving of evidence by children in proceedings under State law.

70 Section 106B of the Evidence Act 1906 provides:

"(1) A child who is under the age of 12 years may in any proceeding, if the child is competent under subsection (2), give evidence on oath or after making an affirmation.

(2) A child who is under the age of 12 years is competent to take an oath or make an affirmation if in the opinion of the court or person acting judicially the child understands that -


(a) the giving of evidence is a serious matter;and

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(b) he or she in giving evidence has an obligation to tell the truth."

71 This provision applies to "any proceeding", which means any civil or criminal proceeding or any examination in a court or before any person acting judicially: s 106A. But for s 32(2) of the SAT Act, it would apply in a proceeding in this Tribunal. However, s 32(2) expressly provides that the Evidence Act 1906 (WA) does not apply to the Tribunal's procedures. Nonetheless, under s 32(2)(b), the Tribunal is bound to act with "equity, good conscience and according to the substantial merits of the case", as explained later in these reasons.

72 In C v Rat [30], Ipp J (with whom Kennedy and Owen JJ agreed) said the importance of a finding of competency under s 106B is underlined by the alternative provision of s 106C, which enables a child to give unsworn evidence where s 106B does not apply. Section 106C provides:

"A child under the age of 12 years who is not competent to give evidence under section 106B may give evidence without taking any oath or making an affirmation if the court or person acting judicially forms the opinion, before the evidence is given, that the child is able to give an intelligible account of events which he or she has observed or experienced."

73 Justice Ipp, at [31], explained that, where the judge concerned determines in a criminal trial that a child is not competent to give evidence under oath under s 106B but is able to give unsworn evidence as contemplated by s 106C, the judge will inevitably tell the jury that he or she has come to such a conclusion. Justice Ipp suggested that the jury would ordinarily draw the inference from the judge's decision that, although the child is able to give an intelligible account of the relevant events, less weight should be attached to the child's testimony than would be the case were the judge to have determined that the child was competent to give evidence under oath under s 106B. His Honour emphasized that it followed that the decision made by the judge as to competency under s 106B was of "vital importance to the trial". This is obviously because of the significance that Ipp J considered a jury would (or should) attach to sworn testimony versus unsworn testimony.

74 In the case in question, Ipp J considered the inquiry undertaken by the trial judge as to the competency of complainant A to have been inadequate. His Honour observed that there were a series of leading

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questions asked that did not enable the trial judge to determine with any reliability whether the child was competent to give evidence under oath.

75 The criminal trial in the District Court had proceeded on the basis that complainant A could give her evidence under oath under s 106B of the Evidence Act 1906. In light of the finding of the Court of Criminal Appeal, that approach was flawed and the conviction unsafe. Thus, the Court of Criminal Appeal ordered a retrial. Later, as we have seen, the Director of Public Prosecutions decided it was not in the public interest to proceed with a retrial.

76 Thus, at no time has there been any opportunity in any relevant proceeding for an inquiry to be carried out under s 106B of the Evidence Act 1906 to assess the competency of complainant A to give her version of events under oath.

77 Accordingly, while complainant A's version of events, especially as she explained it at the trial in the District Court, may be regarded as information relevant in these present proceedings to determining what are "the particular circumstances of the case", in light of the decision of the Court of Criminal Appeal, it cannot be treated as sworn evidence given under s 106B of the Evidence Act 1906.

78 Complainant A was not called to give evidence in the Tribunal. In saying that, no-one would expect her to be called nearly 10 years after the events. Rather, what the Tribunal is primarily asked to consider now, when determining the particular circumstances of the case, are:

• the version of events given by complainant A at the District Court trial in early 1999;

• the police officers' account of what the applicant said when interviewed at his home on 28 March 1997; and

• the applicant's evidence at the District Court trial.

79 It is proper to regard all this information. However, in the circumstances, it is extremely difficult to weigh the account of complainant A against that of the applicant. While the Evidence Act1906 does not apply in these proceedings, and s 106B and s 106C have no direct application, the Tribunal is bound to have regard to the fact that courts have always weighed the evidence of children with caution. A similar caution is required of the Tribunal, especially in light of the requirement in s 32(2)(b) of the SAT Act, that the Tribunal act with
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equity, good conscience and according to the substantial merits of the case. The Tribunal's only opportunities to assess complainant A's evidence and the applicant's evidence is by reading what they said in the 1999 trial, as well as in the applicant's case, in the interview at his home. There is no further testing of any of that evidence in the Tribunal. Even if it were possible to treat complainant A's evidence as if it were evidence given under s 106C of the Evidence Act 1906, as unsworn evidence, that would not really advance the matter very far. The question remains, what weight should the Tribunal now give the statements of complainant A and how does one weigh them against those of the applicant? The issue is important because the applicant has never accepted he kissed complainant A by putting his tongue in her mouth. Further, at trial, he suggested he only kissed her accidentally on the mouth. The prosecution case at trial depended on it proving beyond reasonable doubt that when the applicant kissed the girl, he put his tongue in her mouth. At his interview at his home, the applicant readily conceded he kisses children on the mouth and that he kissed the girl, but he never admitted he put his tongue in her mouth.

80 Counsel for the CEO suggests that the Tribunal should act on the basis that, if the trial judge had properly inquired into the competency of complainant A, he would have ruled she was competent to give sworn testimony; or that the trial would have proceeded on the basis of complainant A's evidence being treated as unsworn evidence under s 106C of the Evidence Act 1906 and, even if lesser weight had been given to it, the jury plainly still would have convicted the applicant on the two counts. However, to set out the argument of the CEO in this way is to reveal the speculation involved in the propositions put.

81 It simply is not open to accept the invitation of counsel for the CEO that the Tribunal should conclude that, if the trial judge had properly inquired into the competency of complainant A, he would have ruled that she was competent, and the jury's findings of guilt against the applicant would have withstood challenge on any subsequent appeal to the Court of Criminal Appeal. To draw any such conclusion would manifestly involve speculation on the part of the Tribunal about what the trial judge's ruling would have been had he conducted an adequate s 106B inquiry, and would, in effect, disregard the rule relating to the evidence of a child under 12 years of age created by s 106B of the Evidence Act 1906.

82 Nor can it be assumed that, if s 106C had governed the case, the jury would necessarily have come to the same conclusion. That too would involve manifest speculation on the part of the Tribunal. As Ipp J

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observed, if the trial judge had concluded that s 106C covered the case, then he would have conveyed that decision to the jury and ordinarily the jury would draw the inference that less weight should be attached to the child's testimony than would be the case were the judge to have determined that the child was competent to give evidence on oath. As Ipp J said, in those circumstances the decision made by the judge under s 106B was of "vital importance". We cannot now speculate about what the jury would have decided. The task is made none the easier when it is noted the jury was not unanimous in its verdict, but only arrived at its verdict after the trial judge directed the jury it could bring in a majority verdict of at least 10 members of the 12 member jury.

83 Counsel for the CEO then draws attention to the evidence given by complainant A at trial, and contends that the Tribunal should be satisfied from perusing it that complainant A gave a credible account of events such that the Tribunal should now rule that the applicant did, in fact, put his tongue in her mouth when he kissed her, an issue all agree was critical to the prosecution's case at the trial, and now in these proceedings. Without that factual ingredient, the conduct alleged against the applicant remains of concern, but is more ambiguous.

84 Counsel says that complainant A's account of events overall shows her capacity to discriminate between questions put to her in cross-examination, to be able to say "yes" and "no" depending on the true circumstances, and a clarity in the answers she gave when rejecting the proposition that the applicant had not put his tongue in her mouth.

85 This approach, however, suffers from the same defects already identified. That evidence is not sworn evidence. The Tribunal is unable to make any real assessment of the weight to be attached to it, and the applicant denied it on oath at his trial and also denied material parts of it when initially interviewed.

86 In those circumstances, I do not think that the Tribunal can reasonably conclude anything about what the jury would have decided if either an adequate enquiry had been conducted under s 106B and a finding of competency made, or if the child's testimony were conducted under s 106C. Nor can any safe findings be made on the strength of the varying accounts.

87 We are simply left with the account given by complainant A at the trial as to what occurred on the occasion of the applicant caring for her and her siblings, and the applicant's accounts at his trial and when

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interviewed at his home on 28 March 1997. On both these occasions, he denied that he had put his tongue in her mouth. The main difference in his two accounts is that the applicant initially accepted he kissed the girls on the mouth - something he said he always does with children.

88 Based on this information, it is difficult to find, as a particular circumstance of the case, that the applicant put his tongue in the mouth of complainant A.

89 In proceedings in the Tribunal, the civil standard of proof - proof on the balance of probabilities - ordinarily applies: McDonald v Director­General of Social Security (1984)1 FCR 354per Woodward J at 358. In a case such as the present, where the facts alleged against the applicant would amount to a criminal offence if those facts were proved, it is also appropriate to adopt what is commonly called the Briginshaw approach: see Briginshaw v Briginshaw (1938) 60 CLR 336. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, at 450, Mason CJ, Brennan, Deane and Gaudron JJ explained this approach in this way:

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (Footnotes omitted).

90 Put another way, the standard of satisfaction to be reached by the decision-maker calls for "adequate evidence, informally obtained as it might be, of sufficient cogency to justify the Tribunal being comfortably satisfied in relation to the serious charge before it, with its grave consequences": Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 per Santow JA at [74].

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91 It follows that the Tribunal should not lightly make a finding that, on the balance of probabilities, the applicant is guilty of the conduct of putting his tongue in the mouth of complainant A, as alleged against him. Given the quality of the accounts before the Tribunal, it is difficult to make any finding on this allegation. The task is made no less easy when regard is had to the prosecution history referred to above which shows that of an initial five complaints made against the applicant, only two proceeded to trial.

92 From the applicant's point of view, there will always be a concern expressed by people who are acquainted with complainant A's account of events, that the applicant indeed acted as she said he did. From the Tribunal's point of view, however, in the face of all of the evidence, the manner in which it is presented to the Tribunal, and its evidentiary status, it would not be reasonable to find that the applicant put his tongue in the mouth of complainant A when he kissed her.

93 Indeed, to find otherwise would not be to act according to equity, good conscience and the substantial merits of the case, as s 32(2)(b) of the SAT Act requires of the Tribunal. Initially, the meaning of this phrase was deemed unclear: Qantas Airways Ltd v Gubbins(1999) 28 NSWLR 26 per Gleeson CJ and Handley JA at 29, referring to s 108(1)(b) of the Anti-Discrimination Act 1977 (NSW). However, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], Gleeson CJ and McHugh J later said of the same words in s 420 of the Migration Act 1958 (Cth) that:

"They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question."

94 On this point, Evatt J relevantly stated, in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott(1933) 50 CLR 228 at 256, that although that tribunal was not bound by the rules of evidence,

"this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can,

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without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party."

95 In the result, the Tribunal is not satisfied, as a matter of fact, that the applicant did put his tongue in the mouth of complainant A when he kissed her. It cannot be accepted as a fact that he did. The Tribunal does accept, however, that the applicant did kiss her on the mouth.

When the offence was committed or was alleged to have been committed

96 Having considered what the particular circumstances of the case seem to involve, it is appropriate to turn to the factors referred to in s 12(8) of the Act which must be regarded. The first mentioned is the best interests of children. I will return to this factor following a consideration of the others. The next is, "When the offence was committed or alleged to have been committed".

97 It may reasonably be assumed that the Parliament listed this factor as a relevant factor to be regarded, because some offences may have been committed or alleged to have been committed so many years ago that the passing of time may suggest little weight should now be accorded to them in all the circumstances.

98 In this case, the conduct of the applicant complained of is alleged to have occurred on the weekend of 21 February 1997. Therefore, at the time of consideration of this review application, some 10 years have passed since the allegations were made. On one view, this is a reasonable length of time; on another, it is not so long ago. It is not a consideration that on its own determines the application.

The age of the applicant when the offence was committed or was alleged to have been committed

99 The is the next factor identified by s 12(8).

100 The applicant was born on 19 February 1963. Thus, at the time of the conduct alleged against him, he had just turned 34 years of age - indeed just two or three days earlier. He is now 44 years of age.

101 The age of a person at the time an offence was committed or was alleged to have been committed may reasonably be considered relevant on the basis that, amongst other things, if the applicant were relatively young at the time, he or she may have outgrown a certain immaturity they then

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had and may possibly be considered, taking into account other factors, unlikely to engage in such conduct again.

102 In this case, at the time, the applicant was a person who was no longer "young" - he was 34 years of age. However, maturity does not always sit comfortably on the shoulders of 34-year-olds. The applicant has produced a number of references to support his personal and professional character, which suggest that, at least in recent years, a range of people appear to consider him to be mature enough to work with children.

103 What perhaps can be said is that there is some difference between a 44-year-old man - who is properly to be referred to as approaching "middle age" - and a 34-year-old man, who is still gaining experience in life, even if no longer "young and immature". This is a factor, but not one that on its own determines the application.

The nature of the offence or alleged offence and any relevance it has to child-related work

104 This is the next factor identified by s 12(8).

105 The nature of the charges is plainly highly relevant to child-related work. This is because the incidents:

• occurred in the course of child-related work (babysitting or child minding service referred to in s 6(1)(a)(xiv));

• involved allegations of indecently dealing with a six-year-old girl;

• involved a substantial age difference between the applicant and complainant (34 years and six years respectively, at the time);

• involved an alleged breach of trust by the applicant by, at the very least, acting in an overly familiar way with the child; and

• occurred in a situation where no other adults were present.

106 I have earlier discussed the particular circumstances of the case and the reasons why it is not open to the Tribunal to find that when the applicant kissed complainant A on the mouth he put his tongue in her
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mouth. However, a range of other facts are not in dispute, including that he kissed the girl on the mouth and arranged for her to sleep in his bed.

107 As noted, at the time of the alleged offences, the applicant was 34 years of age. It is plainly a very unwise thing for a babysitter or child minder caring for a child overnight, to place that child in their own bed as the applicant did. To say the least, such conduct would give rise to a great sense of unease in any parent and in right thinking members of the community generally. This sort of conduct must simply be considered out of bounds, in the absence of a compelling explanation.

108 So too must the practice of a baby sitter or child minder, especially one who is paid and unrelated to the child, of kissing a child on the mouth. In such a formal relationship, the act of kissing, which is natural and familiar between a parent and a child, will naturally be construed in a negative fashion.

109 In many circumstances, the same would be said of a paid baby sitter or child minder who engages in tickling a child, depending perhaps on their age and the circumstances.

110 That all this may be so may be said by some in the community to cause an unfortunate formalising of relationships between adults and children. However, that it is so is reflected, amongst other things, by the fact that the Parliament has found it necessary to enact the Act to prohibit certain people who have been convicted of or charged with certain offences from carrying out child-related work.

111 The Act is not designed to discourage parents and others in close relationships with children from acting in familiar ways with them, but it is designed to reflect a community concern that other people working with children in more formal circumstances, and in paid relationships, should not assume a familiarity with a child that only the child's parents and others close to the child are entitled to enjoy.

112 In these circumstances, the explanations given by the applicant in his initial interview with the police and also at his trial, if one takes them at face value, suggest he acted without any intended breach of trust, immaturely perhaps, but not criminally. He was responsible for caring for complainant A and three of her siblings on the weekend in question, as well as another young, unrelated child. Complainants A and B obviously did not settle after being put to bed. According to the applicant, his way of dealing with their behaviour ultimately was to put them into his bed. However, even with this explanation, his conduct would raise doubts

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about his maturity and judgment and suitability to work with children, if it were to happen today.

113 The information overall shows that the applicant had cared for complainant A and her three siblings on at least two occasions prior to the alleged offences. The information also suggests that the mother of the children was sufficiently comfortable with the applicant to accede to his request that he should look after them at his house rather than at their own house. The information also suggests some reasons why the applicant may have allowed himself to act otherwise than in accordance with good sense, by having the girls, on different occasions, in his bed. His evidence at trial suggests that the applicant, as a nanny, was apt to give children a kiss on the mouth or cheek, as a parent might, when putting them to bed. As suggested, this is far from a wise practice in the case of a nanny. However, one can understand that there can be no universal rule in that regard, and that the full nature of the relationship between a nanny and a child, the length of that relationship and other aspects of it may all help to explain whether such conduct should be considered unacceptable or natural in a given case. However, it must be said the applicant's acts of letting a young girl accompany him to his bed and kissing her on the mouth were unacceptable and would be difficult to justify in any circumstances.

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

114 This is the next factor identified by s 12(8).

115 In support of his initial application to the CEO, solicitors for the applicant made a submission dated 19 September 2006. The solicitors referred to the issues of the best interests of children and also supplied references on behalf of the applicant. These are all before the Tribunal. The submission made these further points:

• The applicant has not only the knowledge and experience but he also has a flair for working with children, and therefore it is in the best interests of children that he be allowed to continue his "child-related work".

• As early as 1989, the applicant worked with children in a child care centre for a period of six months. In 1989 the director described the applicant as having "an excellent rapport with children of all ages".

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• In 1994 the applicant worked for a mother of two children aged two-and-a-half and four years as a full-time caregiver. In 1994 she described him as having "proved himself to be very capable and professional, and he showed commitment in his work with children as well as enjoyment".

• The applicant has worked with the Scout Association as a Cub Scout Leader alongside a woman who has known him for 14 years both personally and professionally. In August 2006, she described the applicant as showing "the utmost care and consideration for the children".

• The applicant has assisted in running the graduation for a modelling school twice a year for the past 10 years. In 1994 the principal described the applicant as having "a wonderful rapport with children" and in August 2006 she crystallised her praise for him by describing him as "a gem who should be working with children".

• The applicant has worked in Dial a Nanny for over 10 years as a nanny who has worked with children from two to 12 years of age. In August 2006 the manager described the applicant as having a "natural flair and disposition in dealing with children".

• In the tee-ball season prior to August 2006, the applicant joined a club a coach of the under 13s mixed tee-ball team. In August 2006 the President, whose own granddaughter participated in the team, and who had known the applicant for about 10 years, acknowledged his knowledge of and accreditation regarding tee-ball.

• The applicant is a member of the Tee-Ball Association of Western Australia and currently holds a coaching position, and his duties include not just training coaches but also coaching children. In September 2006 an official described him as a "friendly and obliging member" of the committee.

• The applicant's sister, who has known him for 42 years, and left her children from eight-weeks-old to 12-years-old in his care, in August 2006 described her brother as "highly respected by children of all ages"

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and as having "a wonderful nature, caring, and has a very good relationship with [her] children".

• The applicant was employed as a coach driver and had been for the three months before September 2006. His duties included driving international students who were mostly 18 years of age or older but were occasionally as young as 12 years of age, from the airport to their homes and at times from their homes to university and back.

• The character references demonstrate the applicant's trustworthiness and talent in working with children.

• The applicant has a long history of reliably and responsibly caring for and working with children and deserves to continue his child-related work in which he clearly excels.

• It would be both unjust and harsh to deprive the applicant of his livelihood as well as to deny him the opportunity to continue contributing to the wellbeing of children.

• The applicant may be subjected to a high degree of financial difficulty if he was issued with a negative notice as it would place his current employment in jeopardy.

• If the applicant is not issued an assessment notice he would be permanently barred from returning to his previous employment in childcare, in which he has more than 20 years' experience.

• The applicant would be disadvantaged in retraining for re-employment in the workforce and would suffer an onerous diminution in his earning capacity.

116 In summary, the applicant, through his solicitors, submitted that:

• he is innocent of all child related charges;

• it is in the interests of children that he continue to be in child-related work; and

• he is entitled to the right to work as a paid coach driver and a voluntary tee-ball coach.

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117 As to the references supplied by the applicant, counsel for the CEO submitted that little regard should be given to them because the alleged offences occurred with no adults being present. Accordingly, the referees could not speak with authority on the matters addressed by them.

118 It will, of course, always be the case that referees who speak on behalf of a person who is alleged to have committed some offence without other persons, apart from the alleged victim, being present, will be in that position. The more important question will usually be whether the referees, when they produced their references, were properly informed of the facts alleged against the person for whom they have supplied the reference.

119 A number of the referees referred to gave their references well prior to the alleged events in 1997. These references therefore are helpful in understanding the period over which the applicant had been involved in child-related work, and the regard that his employers held for him at that point. They suffer, however, from the fact that they have not been confirmed in recent times in light of the allegations made against the applicant.

120 However, some other referees have confirmed their views in more recent times, including in late 2006 when the application was made to the CEO. The woman who worked with the applicant at the Scout Association confirmed her views of the applicant and his rapport with children and responsible attitude, in the knowledge of the previous court proceedings. She stated that "having known [C] for the past 14 years, I am aware of his previous court proceedings, which does not alter my trust in him". Similarly, the principal of the modelling agency confirmed her views in 2006 in light of the past court proceedings. So too did the tee-ball club president, who provided his reference in August 2006, although he did say he was not aware of the allegations made, just that the "case was squashed". The fact that he was not made aware of the actual allegations is unfortunate, as references in circumstances such as these carry most weight when the reference has been made fully aware of what has been alleged, including the denials made.

121 The references do, however, support a view that the applicant has a rapport with children and is not self-conscious with them. They assist in addressing a concern that the applicant may today have no greater insight into what is acceptable conduct when looking after children than he may be said to have had in 1997.

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Anything else that the decision-maker considers is relevant to the decision

122 This is the next factor identified by s 12(8).

123 The various circumstances of this case are adequately dealt with by reference to the various preceding factors and there are no particular additional factors to be given separate consideration by the Tribunal.

The best interests of children

124 We return then to this paramount consideration.

125 The best interests of children are the paramount consideration under the Act. As explained earlier, in any case where there seems to be a weighing of other factors - for example, matters that may be personal to the applicant - with those that may reasonably suggest that children would be at risk if the applicant were given an assessment notice under the Act to work with them, then the paramount consideration must prevail.

126 However, reference to the paramount consideration cannot turn a mere concern for which there is no proper foundation into a fact or a probability. For example, in this case the paramount consideration cannot be relied on to support a finding that in all probability the applicant did put his tongue into the young girl's mouth when he kissed her.

127 In other words, there must be a reasonable basis for a belief that the best interests of children would not be secured if the applicant were to be issued with an assessment notice that facilitated his working with children.

128 Bearing this in mind, all factors should be considered in making a final determination.

Tribunal's findings

129 In the end, having regard to the particular circumstances of the case - especially the Tribunal's conclusion that it cannot find that the applicant put his tongue into the mouth of the young girl when he kissed her - and regarding also the factors made relevant by s 12(8) of the Act, the Tribunal is not satisfied that a negative assessment should issue under the Act.

130 After the allegation that the applicant put his tongue in complainant A's mouth when he kissed her is put to one side as something that cannot be relied on when assessing the particular circumstances of the

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case, I do not think that the evidence that shows the applicant was overly familiar with his young charges when he cared for them in 1997 is a sufficient basis, 10 years after the event, for supporting a belief that the best interests of children would be put at risk if the applicant were now given an assessment notice under the Act to work with children in the future.

131 The applicant's own account at the time of what happened in 1997 plainly raises a concern that he may not now fully and properly appreciate how he is required to conduct himself when working with children. Against that concern, however, is the fact that the events in question, which gave rise to the allegations against the applicant, occurred 10 years ago. While the applicant was not necessarily a "young and immature" man then, he is now 44 years of age. Nothing new has been raised against him.

132 The persons who have provided references for the applicant suggest he has a very good manner when working with children and they have seen no reason to be concerned that he lacks maturity in his dealings with children, such that he would breach the trust he owes to children when they are in his care.

133 As explained earlier, the decision-making function under the Act in a case such as that of the applicant is premised on the acceptance of the Parliament that a person is entitled to have an authorisation under the Act to work with children unless, in the case of non-conviction offences, the particular circumstances of the case require a negative assessment. The Tribunal is not satisfied that the particular circumstances of the case justify the issue of a negative assessment notice.

134 In those circumstances, the applicant's application for review should be allowed and an assessment notice should issue under s 12(4) of the Act.

Application by applicant for non-publication of his name

135 Counsel for the applicant submitted that, whether the applicant's application was successful or not, an order should be made under s 62 of the SAT Act that his name not be published.

136 Section 62(1)(c) of the SAT Act provides that the section applies to any information that might enable a person who has appeared before the Tribunal to be identified. Under s 62(3) of the SAT Act, the Tribunal may, in the circumstances described in s 61(4) of the SAT Act, order that

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anything or any particular thing to which this section applies is not to be published except in the manner and to the persons who may be specified by the Tribunal. Section 61(4) of the SAT Act provides that the Tribunal may make an order if the Tribunal considers it necessary to do so for a number of specified reasons. Two subparagraphs, (g) and (h), are of possible relevance here. They respectively state:

"(g) to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or

(h) for any other reason in the interests of justice."

137 Counsel for the applicant argues that publication of the name of the applicant would be "contrary to the public interest". Similarly, he contends the applicant's name should not be published "in the interests of justice". Both factors are, I think, in a case like this, governed by the same considerations.

138 The expression "the interests of justice", in similar statutory contexts to s 61(4) of the SAT Act, has been given a wide interpretation. Although some statutes treat "the interests of justice" as distinct from the "public interest", it seems the weight of case law on the issue suggests that the interests of the parties should be balanced against the public interest in open hearings when considering the "interests of justice".

139 For example, the Federal Court of Australia Act 1976 (Cth) by s 17(4) empowers the Federal Court of Australia to order the exclusion of the public or specified persons where satisfied their presence would be "contrary to the interests of justice". In Sampi v Western Australia [2001] FCA 619 at [4] and [5], Beaumont J noted that the section compels the Court to balance:

"several considerations; that is to say, on the one hand the promotion of open justice (with a view to achieving full accountability of the judiciary and its processes); and the provision of procedural fairness by recognition of the entitlement, prima facie at least, of each party to the litigation to access all material used or disclosed in the proceedings (with a view to achieving both private and public confidence in our Court system); and, on the other hand, the public and private interest recognised by the common law (and reinforced in this context by the express provisions of s 82(2)) of [the Native Title

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Act 1993 (Cth)] in respecting confidences by the adoption of proportionate measures.

In the exercise of the discretion to restrict or not to restrict, the ultimate question, as was held in [Western Australia v Ward [1997] 76 FCR 492] … is to ask which course do the interests of justice dictate?"

140 As far as the closing of courts is concerned - not the particular issue here, but a related issue - there is quite some guidance. The fundamental importance of the principle of open justice has been stressed by the Supreme Court of Western Australia: see for example, TK v Australian Red Cross Society (1989) 1 WAR 335 and Re Bromfeld; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153. It is today seen as a step of last resort and will only be ordered in exceptional cases: SRD v Australian Securities Commission (1994) 123 ALR 730; John Fairfax Group Pty Ltd v Local Court(NSW) (1991) 26 NSWLR 131 at 141­142 per Kirby P.

141 In John Fairfax Group, Kirby P said this of the importance of the open administration of justice:

"it has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in the various alternative forms … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice … ".

142 Similarly, Gleeson CJ in Independent Commission Against Corruption v Chaffey (1993) 30 NSWLR 21 at 28 and 29, noted that potential damage to reputation is insufficient to justify conducting proceedings in a closed court or otherwise preventing the dissemination of information to the public.

143 In Victoria, applicants for assessment notices under the equivalent legislation have had their names anonymised and the details of their matters suppressed under the operation of s 101 and s 146 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic): PJR v Secretary to the

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Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455; PEH v Department of Justice (Occupational and Business Regulation) [2007] VCAT 470; andATC v Department of Justice (Occupational and Business Regulation) [2007] VCAT 471. In each, the offence was carnal knowledge, decades in the past, and stemmed from a consensual relationship between teenagers.

144 In New South Wales, the equivalent legislation provides for appeal from the relevant department's decision to either the Administrative Decisions Tribunal or the Industrial Relations Commission. In the event of appeal to the former, the applicant's name is suppressed by the operation of s 126(1), Administrative Decisions Tribunal Act 1997 (NSW): P v Commissioner, New South Wales Commission for Children and Young People [2001] NSWADT 16 at [1]. While the names of applicants who appeal to the Industrial Relations Commission are also suppressed, there does not appear to be any legislative provision requiring such suppression. In this jurisdiction, there have been two cases which bear some similarity to the one before me now. In G v J & H [2001] NSWIRComm 69, the applicant's name was suppressed even though he was convicted of a serious sexual offence against a person not in the same age category as him. However, it should be noted that the applicant was a minor at the time of the offence, which occurred more than 40 years before the application for a licence to work with children. In A v The Commission for Children and Young People (No 2) [2000] NSWIRComm 219, the applicant's name was suppressed despite his conviction, 12 years before his application for a licence to work with children, of a number of serious sexual offences against a girl. At the time of the offences, there was a substantial difference in age between the applicant and the victim, and the applicant was in a position of authority over her. No reason for the suppression of the applicant's name was given.

145 These decisions from other jurisdictions in relation to like legislation suggest that in many proceedings under the Working with Children Act the interests of justice may well dictate the non-publication of an applicant's name.

146 As we have seen, the Act requires relevant persons to obtain an assessment notice when working with children. They are entitled to a positive notice in most situations unless the particular circumstances of the case require a negative notice to issue. If given a negative notice, an affected person may apply to this Tribunal for review. If a person is

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successful in their review application, it seems to me inimical to the interests of justice that their name should be published.

147 In a case, such as the present case, where an applicant is successful in their review application, to publish their name can only have the consequence that persons not otherwise familiar with them and having no real reason to deal with them would be apprised of personal events in their past to which they would not otherwise be privy or easily able to discover. Because the Tribunal's decisions are ordinarily published to the internet on the Tribunal's website, the publication is very wide and very far. When successful in their review application, an applicant should be entitled to some consideration so far as their earlier conduct is concerned, especially where, as in the case of this applicant, they have never actually been convicted of a criminal offence for the conduct alleged against them. They should at least be accorded the right to live a useful life free from the burden of the public scrutiny they might otherwise receive. These considerations would appear to underlie the practice in Victoria and New South Wales not to publish an applicant's name in similar proceedings.

148 What the Tribunal owes the public by way of accountability in a case such as this, and the public is entitled to, is the publication of the Tribunal's decision and the reasons for the decision, so that the public can gain an understanding of why the Tribunal reached the decision it did. The identity of the applicant is not important to the public gaining a proper understanding of the reasons for the Tribunal's decision. In all probability, all that publication of the applicant's identity would do is prejudice the civil rights of the applicant in circumstances where the Tribunal has found there is no good reason to justify the issue of a negative assessment. This factor makes this type of case quite different from others where it simply does not arise.

149 The fact that the applicant's identity would have been known at the time of his trial and that the Court of Criminal Appeal published its decision on his appeal in 1999 without suppressing his name are factors that might also be taken into account. But, 10 years after the event, current public awareness of the applicant must be considerably diminished. Certainly it does not suggest that the making of a non-publication order now might not serve some useful purpose.

150 In these special circumstances then, I consider there is a greater public interest in not publicising the applicant's name than there is in

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publishing it. As a result, I consider this is an exceptional case where the interests of justice dictate that the applicant's name not be published.

151 For these reasons there should be an order that the name of the applicant should not be published.

Order

152 For the reasons given above, the Tribunal orders that:

1. The review application is allowed.

2. The decision of the CEO under review is set aside.

3. The applicant is entitled to an assessment notice issued under s 12(4) of the Working with Children (Criminal Records Checking) Act 2004 (WA).

4. the CEO (or delegate) of the Department for Community Development take such steps as are necessary to cause the applicant to be issued with an assessment notice under s 12(4) of the Working with Children (Criminal Records Checking) Act 2004 in accordance with this decision.

5. The name of the applicant is not to be published.

6. The materials received by the Tribunal in support of the application are not to be published.

I certify that this and the preceding [152] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT