C and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
[2020] WASAT 117
•25 SEPTEMBER 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: C and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [2020] WASAT 117
MEMBER: JUDGE T SHARP, DEPUTY PRESIDENT
HEARD: 10 AND 11 JUNE 2020
DELIVERED : 25 SEPTEMBER 2020
FILE NO/S: VR 123 of 2019
BETWEEN: C
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
Respondent
Catchwords:
Working With Children (Criminal Record Checking) Act 2004 (WA) - Class 3 offences - Negative notice issued - Application for review - Whether unacceptable risk of harm to children
Legislation:
State Administrative Tribunal Act 2004 (WA), s 27, s 29
Working With Children (Criminal Record Checking) Act 2004 (WA), s 4, s 6(1)(a)(iii), s 7, s 9, s 12, s 13A, s 19(1), s 19(8), s 23, s 26
Result:
The respondent's decision to refuse to cancel a negative notice issued to the applicant is affirmed.
Category: B
Representation:
Counsel:
| Applicant | : | Ms C Bass |
| Respondent | : | Mr JF Bennett |
Solicitors:
| Applicant | : | Nigams Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
CGB v Children's Guardian [2018] NSWSC 776
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28
M v M [1988] HCA 68; (1988) 166 CLR 69
XY v WA Country Health Service [No 2] [2016] WASC 245
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This matter comes before the Tribunal by way of an application by C (Applicant) under s 26 of the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act). The Applicant is seeking a review by the Tribunal of a decision of the Chief Executive Officer (CEO) of the Department of Communities (Department) to refuse to cancel a negative notice under the WWC Act. The effect of the negative notice is to prevent the Applicant from engaging in any child-related work.
Use of pseudonym
C has also applied to the Tribunal for an order that his name is not published and that he be referred to only as 'C'. The CEO does not oppose the application. I have considered the authorities on this point, including XY v WA Country Health Service[No 2] [2016] WASC 245. I have concluded that I can and that I should allow that application. My reason for so doing, simply put, is that the Applicant's name is not a common one and I wish to avoid the possibility of the students who have made allegations against the Applicant being identified.
Background facts
The Applicant was born in January 1970. At the time of the hearing of his application in the Tribunal he was 50 years old.
Between 1984 and 1989, when the Applicant was between 14 and 19 years old, the Applicant was found guilty of a number of offences of the kind referred to in the WWC Act as 'Class 3 offences'.
Those offences are as follows:
Offence date Offence Outcome Details of offence 25 July 1984 Stealing (juvenile) Dismissed pursuant to s 26 Child Welfare Act None provided 26 August 1986 False name and address (juvenile) $20 fine, Motor Drivers Licence cancelled 3 months The accused rode motor cycle with no licence.
When asked for his name and address, gave a false name and address on two occasions
27 August 1986 Refuse to supply or provide name and address (juvenile) $20 fine None provided 27 August 1986 Refuse to supply or provide name and address (juvenile) $20 fine None provided 17 June 1988 False name and address $20 fine Accused was spoken to re: another matter and when asked for his name and address he gave false answers 7 March 1989 Cultivation of cannabis $50 fine Search of premises of the accused located a quantity of cannabis and smoking implements 19 April 1989 Simple possession of cannabis $50 fine Had in his possession approximately 2 grams of cannabis 1986 - 2009 12 traffic offences recorded between these dates
The Applicant was employed as a teacher in Western Australian high schools teaching science subjects for about 13 ½ years, commencing in 2002.
The Applicant held an assessment notice, generally known as a working with children permit, until 16 December 2015, when an interim negative notice was issued to him. On 1 April 2016, the Applicant was issued by the Department with a negative notice.
In April 2019, the Applicant applied for cancellation of the negative notice. That application was refused by the CEO.
The Applicant then on 27 August 2019 made an application to the Tribunal under s 26 of the WWC Act for a review of the CEO's decision to refuse to cancel the negative notice.
CEO's decision
The CEO's decision to refuse to cancel the negative notice was conveyed to the Applicant in a letter from the Department dated 31 July 2019. The letter included an attachment containing the CEO's reasons for that decision. Those reasons can be summarised as follows (using some of the same headings):
Information considered
The CEO considered the Applicant's criminal record, documents from the Department of Education (DoE) relating to investigations by its Standards and Integrity Unit undertaken into allegations of breaches of discipline, and also written submissions with character references provided by the Applicant.
Reasons for the adverse decision
The CEO said that the paramount consideration was the best interests of children.
The CEO noted the Applicant's criminal record, observing that the most recent offences had occurred in 1989.
However, the CEO also noted that certain allegations of 'inappropriate conduct while in child-related work' between 2008 and 2012 had been made about the Applicant, which the CEO also took into account.
The age of the Applicant when the offence was committed or is alleged to have been committed
The CEO accepted that the Applicant was 19 years old at the time of his last criminal offence, but that he was aged between 38 and 42 at the time of the alleged inappropriate behaviour in child-related work. The CEO noted the significant age disparity between the Applicant and the children who were under his care and who made the allegations.
The nature of the offence and any relevance it has to child-related work
The CEO said that the Applicant's criminal record includes convictions for stealing, providing a false name and address, possession of cannabis and cultivation of cannabis. The CEO observed however that these offences occurred over a five year period when the Applicant was between 14 and 19 years of age. The CEO considered that '[t]he nature of these offences is not such that they present a risk of harm to children'.
In addition to those convictions, the CEO noted that there had subsequently been three separate sets of allegations made against the Applicant by students taught by him. They related to inappropriate behaviour exhibited by the Applicant while in child-related work. Those allegations include what the CEO described as:
•inappropriate touching of students;
•speaking in a sexualised manner to students;
•discussing pornographic material with students;
•offering alcohol to students;
•providing students with cannabis and cigarettes; and
•text messaging students outside of school hours.
The CEO said that the DoE had investigated those allegations and had found that the Applicant had conducted himself inappropriately towards some students and that he had failed to recognise acceptable boundaries between students and teachers.
The CEO pointed out that the Applicant had been provided with guidance and training through his employer after the first two sets of allegations had been made, yet persisted in his conduct despite being warned of the inappropriateness of it on multiple occasions. This fact, and the fact that the conduct had been repeated over a lengthy period of time, in the CEO's view supported a conclusion that there is a significant possibility that the Applicant would engage in such conduct in the future.
The CEO noted that the Applicant had not been charged with a criminal offence in relation to any of the allegations, but nonetheless considered that the decision-maker may rely on any relevant material when establishing reasonable suspicions relating to potential risk inducing behaviour.
The effect of future conduct by the Applicant if that future conduct were the same or similar to conduct the subject of any offence committed by the Applicant or any charge against the Applicant
The CEO accepted that the conduct displayed in committing the offences listed in the Applicant's criminal record 'would present only a minimal risk of harm to children if repeated in the future'.
However, the CEO considered that the conduct set out in the allegations reported by the DoE are capable of causing harm to a child if that child is exposed to similar behaviours in the future.
Any information given by the Applicant
The CEO notes that the Applicant denies 'any sexual interactions with students' and denies 'supplying students with Cannabis or cigarettes'. The Applicant had admitted to the DoE that he removed a phone from the back pocket of a student, gave a student a ride home in his car, entered the home of a student when her parents were not at home, texted a student outside of school hours and contacted the parent of a student. The Applicant conceded that these admitted actions contravened the DoE's Code of Ethics.
CEO's conclusions
The CEO then drew this conclusion (which I quote in full):
Three sets of allegations made by students in your care have been identified and evidence has been considered that indicates that you have acted in an inappropriate manner towards children, displaying a poor recognition of appropriate boundaries and resulting in children in your care being exposed to potential sexual and psychological harm.
When all of the relevant information, including submissions made by you both to the Department of Education and to the Working with Children Screening Unit, is considered, there remains an identifiable risk that you would continue to act in a manner that would put children at similar risk if you were permitted to return to child-related work.
My function is to assess risk of harm to children with the aim of preventing future harm. Considering the precautionary approach of the [WWC Act] and the paramount consideration of the best interests of children, the information before me shows that there remains an unacceptable risk that you might, in the future, cause harm to children in the course of carrying out child-related employment. Your Negative Notice must, therefore, be upheld.
Statutory framework
The Applicant's application comes within the Tribunal's review jurisdiction.
Section 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides as follows:
(1)The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2)The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3)The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Section 29 of the SAT Act relevantly provides:
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may -
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and -
(i)substitute its own decision; or
(ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
…
Section 4 of the WWC Act contains definitions of some of the terms used in the WWC Act, including the following:
child-related work has the meaning given to that term in section 6;
Class 1 offence has the meaning given to that term in section 7(1);
Class 2 offence has the meaning given to that term in section 7(2);
Class 3 offence means an offence that is not a Class 1 offence or a Class 2 offence;
…
interim negative notice means a written notice issued by the CEO under section 13;
negative notice means a written notice issued by the CEO under section 12(1)(b)[.]
Section 6(1)(a)(iii) of the WWC Act describes 'child-related work' as follows:
(1)Subject to subsection (3), work is child-related work if -
(a)the usual duties of the work involve, or are likely to involve, contact with a child in connection with -
…
(iii)an educational institution for children[.]
Section 7 provides definitions of, respectively, a Class 1 offence and a Class 2 offence. Class 1 offences relate, in general, to sex offences against children under the age of 13. Class 2 offences include various sex offences against children, and also offences which do not necessarily involve children but would ordinarily be regarded as rendering a person who has committed them or has been charged with them unsuitable to carry out child-related work. The Applicant's offences are neither Class 1 offences nor Class 2 offences and are therefore Class 3 offences.
Section 9 of the WWC Act relevantly provides that a person who is, or is proposed to be, employed in child-related work may apply to the CEO for an assessment notice.
Section 12(1) of the WWC Act provides that the CEO is to decide an application under s 9 by issuing an assessment notice to the applicant or by issuing a negative notice to the applicant. 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).
Section 12 then goes on to say that if one or more conditions specified in the Table in s 12(3) apply in relation to an applicant, the CEO is to decide the application in accordance with the applicable provision or provisions set out in the Table.
The relevant item in the Table in this case is Item 5 (the CEO being aware of Class 3 offences of which the applicant has been convicted) and the corresponding provisions are those in s 12(5). Section 12(5) provides that 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.
Section 12(8) of the WWC Act then relevantly provides that if subsection (5) applies:
(8)… the CEO is to decide whether he or she is satisfied in relation to the particular … circumstances of the case having regard to -
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child-related work;
(e)the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of -
(i)any offence committed by the applicant; or
(ii)any charge against the applicant;
(f)any information given by the applicant in, or in relation to, the application;
(g)anything else that the CEO reasonably considers relevant to the decision.
Upon deciding the application the CEO is to issue the assessment notice or the negative notice, as the case requires, to the applicant; s 13A of the WWC Act.
When a negative notice is issued to an applicant, the CEO is to give the applicant written reasons for the CEO's decision on the application.
Under s 19(1) of the WWC Act, a person to whom a negative notice has been issued may apply for the notice to be cancelled. Section 19(8) provides that s 12(2) to (8) apply to that application as if it were an application for an assessment notice.
If a negative notice has been issued to a person and is current, that person must not be employed in child-related employment; s 23 of the WWC Act.
Section 26 of the WWC Act relevantly provides that a person may, within 28 days, apply to the Tribunal for a review of the decision of the CEO to refuse to cancel a negative notice issued to that person.
Proceedings in the Tribunal
At a directions hearing on 12 September 2019, the President of the Tribunal made certain programming orders, including that both the CEO and the Applicant must file their statements of issues, facts and contentions and their bundles of documents. The matter was then referred to mediation.
On 18 October 2019, prior to the mediation, the mediator made orders for the filing of further documents. Mediation was to take place on 31 October 2019.
The day before the mediation was to take place, the mediation was 'vacated' and the mediator made further programming orders.
At a further directions hearing on 3 March 2020, the President of the Tribunal revoked some of the mediator's orders and made further orders, including the following:
The Tribunal orders that:
1.…
2.If any party proposes to tender any further expert witness evidence it must brief the expert to answer the questions attached as Annexure A to these orders on the basis of the statements of facts and assumptions attached as indicated therein. It must then file with the Tribunal a signed statement of the expert witness' evidence and give a copy of it to the other party by 24 April 2020.
3.The respondent pay the applicant's costs of obtaining any supplementary expert witness evidence report which are incurred as a result of orders 1 and 2 herein.
4.By 8 May 2020 the expert witnesses must confer with one another in the absence of the parties and their representatives and must prepare a joint statement of:
(a)the issues arising in the proceeding which are within their expertise;
(b)the matters upon which they agree in relation to those issues;
(c)the matters upon which they disagree in relation to those issues; and
(d)the reasons for disagreement.
5.By 15 May 2020 the parties must each file with the Tribunal any supplementary written submissions and any decided cases on which they rely in addition to those filed on 11 and 18 February 2020.
6.…
7.In addition to the documents referred to in order 2 the expert witnesses are to be provided with a copy of the report of Dr Leonie Coxon dated 15 August 2019, a copy of the applicant's letter dated 17 January 2016, and a copy of these orders.
8.…
STATEMENT OF FACTS AND ASSUMPTIONS
1.BACKGROUND
1.The Applicant … has previously been engaged in child related work as a teacher for the Department of Education (DoE).
2.During the course of his employment with the DoE the Applicant was the subject of allegations of inappropriate conduct involving several students.
3.The first set of allegations were made while the Applicant was employed at School A in 2010 and covered his conduct in 2008. A formal investigation was commenced by DoE in 2009 and completed by the DoE in 2010 (the First Investigation).
4.The second set of allegations were made while the Applicant was employed at School B in 2012 and covered his conduct in 2011 and 2012. A formal investigation was commenced by DoE in 2012 and completed by DoE in 2014 (the Second Investigation).
5.Both School A and School B are public schools and teachers employed at those schools are employed by the DoE.
2.THE FIRST INVESTIGATION
6.The First Investigation considered allegations that the Applicant:
6.1Used inappropriate conduct against a female student then aged between 14 to 15 years old (Student A) as follows:
6.1.1On unspecified dates between 4 February 2008 and 18 December 2008, on numerous occasions, when Student A was sitting at her desk, the Applicant grabbed her pencil case, which was placed on the desk in front of her, laughed and then threw the pencil case back on the desk when Student A reacted to him taking it.
6.1.2On an unspecified date between 4 February 2008 and 18 December 2008 when Student A was talking in class, the Applicant called her up to the front of the classroom, where he was seated at his desk. The Applicant then said words to the effect of "don't worry about it", whilst at the same time repeatedly lowering his eyes to Student A's chest.
6.1.3On an unspecified date between 4 February 2008 and 18 December 2008 when Student A was talking in class, the Applicant called her up to the front of the classroom, where the Applicant was seated at his desk. The Applicant then said words to the effect of "don't worry about it." As Student A walked back to her desk the Applicant stared at her bottom. This action was witnessed by other students in the class.
6.1.4On, an unspecified date between 4 February 2008 and 18 December 2008 the Applicant invited Student A to a function at Hillside Farm where he was performing in a rock band and said to her she can come but then said words to the effect of "if you bring any of your dickhead boyfriends or any older guys they'll be thrown out as the invitation is just for you." The Applicant also said that if Student A needed any help getting any alcohol he could sort that out.
6.2Made inappropriate physical contact with a female student then aged between 15 to 16 years old (Student B) as follows:
6.2.1On an unspecified date between 4 February 2008 and 18 December 2008 when walking past Student B the Applicant took a mobile phone out of the back pocket of Student B's jeans. Student B was wearing tight fitting jeans and the Applicant made contact with her bottom whilst pulling the phone out of her pocket. The Applicant then laughed and put the phone onto a nearby table and walked off.
6.2.2On an unspecified date between 4 February 2008 and 18 December 2008 whilst walking through the door way of the science classroom in the opposite direction to Student B, the Applicant placed both his hands on Student B's back at waist level and held them there briefly. The Applicant then removed his hands and carried on walking.
7.After the First Investigation, the Applicant completed training specifically targeted at school staff who have contact with children and was designed to prevent a repeat of the allegations that led to the First Investigation. It covered (among other things) guidelines for physical contact between staff and students, behaviours that might be open to misinterpretation, and behaviour outside of school hours. That training was completed by 28 July 2011.
3.THE SECOND INVESTIGATION
8.The Second Investigation considered allegations that the Applicant:
8.1Between 1 June 2011 and 12 February 2012 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.1.1Provided his personal mobile number to a female student in his class then aged 13 to 14 years old (Student D).
8.1.2Obtained the mobile phone number of Student D.
8.1.3On numerous occasions exchanged text messages with Student D containing non-school related material.
8.1.4On numerous occasions contacted Student D on her mobile phone outside of school hours, including during the Christmas school holidays, to speak about non-school related subjects.
8.2Between 1 June 2011 and 14 December 2011 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.2.1Spoke with Student D about whether she smokes cigarettes.
8.2.2On several occasions after that conversation, supplied Student D with cigarettes, by leaving them on the wheel of his vehicle, which was parked in the staff car park, for her to collect.
8.3Between 16 October 2011 and 14 December 2011 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.3.1Spoke with Student D about whether she smokes cigarettes.
8.3.2On a few occasions after that conversation, supplied Student D with cigarettes within School B grounds, either by handing them to her or placing them in her school bag.
8.4Between 16 October 2011 and 14 December 2011 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.4.1At the end of a school day, when it was raining, the Applicant took a female student then aged 13 to 14 years old (Student E) as a passenger in his private vehicle.
8.4.2The Applicant drove Student E from the School B car park to the home address of another School B student, namely Student D.
8.5Between 16 October 2011 and 14 December 2011 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.5.1At the end of a school day, when it was raining, the Applicant attended the home address of Student D. Also at the address was Student E.
8.5.2The Applicant entered the home, where there was no parental presence.
8.5.3The Applicant went to the rear yard with Student D and Student E, where he supplied Student D with a cigarette before he and Student D both smoked cigarettes.
8.5.4The Applicant also spoke to Student D and Student E about pornography.
8.6Between 1 November 2011 and 14 December 2011 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.6.1The Applicant spoke with Student D about whether she smoked marijuana.
8.6.2After that conversation the Applicant supplied Student D with some marijuana, which he had left on the wheel of his private vehicle, after advising Student D it was there to collect.
8.7Between 16 October 2011 and 10 February 2012 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.7.1The Applicant became involved in a personal relationship with Student D and Student E.
8.7.2The Applicant stated that they would all get into trouble if someone found out.
8.7.3Given the nature of the relationship, which was outside the boundaries of an acceptable teacher/student relationship, the Applicant told Student D and Student E on several occasions to keep the relationship secret.
8.8Between 9 February 2012 and 12 February 2012 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.8.1During class the Applicant spoke with Student D about motorbike riding and told Student D that he could pick her up on the weekend and go motorbike riding together.
8.8.2The Applicant also said that he would take some marijuana with him which they could both have.
8.8.3In response Student D said that the Applicant would have to contact her mother, which he subsequently did.
8.9Between 1 March 2011 and 14 December 2011 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.9.1During the Applicant's year eight class, the students were talking about non-school related things and some male students were talking about doing girls (sexual intercourse).
8.9.2The Applicant looked at Student D and said, "I'd like to do her," and the Applicant winked at Student D as he said it.
8.10Between 1 June 2011 and 12 February 2012 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.10.1The Applicant developed a personal relationship with Student D and adopted a welfare/pastoral care role in respect of her. This was not part of the Applicant's role and is instead the role of the year coordinator or school psychologist.
8.10.2The Applicant then contacted Student D's mother and purported to her that he held a pastoral care role at School B. He further represented that the School B were aware that he contacted parents outside of school and attended homes of students, which was not the case.
8.11On 19 August 2011 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.11.1The Applicant was present during a neighbourhood assembly in a hall of School B and was sitting on a table near the students facing the opposite direction to everyone else.
8.11.2The Applicant engaged a female student then aged between 13 to 14 years old (Student F) who was sitting on the floor at his feet.
8.11.3The Applicant was trying to engage Student F by smiling at her, making facial expressions towards her and giving her a lolly.
8.11.4The Applicant also made Student F feel uncomfortable by repeatedly staring at her breasts.
8.11.5The Applicant's behaviour was described as being flirtatious towards Student F.
8.12On 2 March 2011 breached the professional boundary expected to be maintained between staff members and students in the following way:
8.12.1The Applicant attended Cockburn Ice Arena to assist in supervising an excursion involving a group of Year 8 students.
8.12.2During the excursion, a female student then aged between 13 to 14 years old (Student G), injured her hand and was sitting alone in the cafeteria, waiting for another staff member to return with ice.
8.12.3The Applicant sat with Student G so that he was directly opposite to and facing her.
8.12.4The Applicant's legs were apart, Student G's knees were in between the Applicant's and Student G's hand was lying across the Applicant's legs as the Applicant held her hand.
8.12.5The Applicant sat in very close proximity to Student G and this lasted for a few minutes.
9.In his response sent to the Department on 17 January 2016 the Applicant denied the conduct that is the subject of the allegations occurred, save for admitting that:
9.1on one occasion, he provided Student E a lift home in his personal vehicle when it was raining and upon the student's request;
9.2on that occasion, he entered the house of Student E in order to locate a parent of the student, and when no parent was present and Student D was located in the house, he left the house shortly thereafter; and
9.3he provided Student D his mobile number who he held genuine welfare concerns for in order to discuss her pastoral care in relation to attending school.
4.OTHER MATTERS
10.The Applicant was employed at a private school (School C) between July and December 2015.
ANNEXURE A
QUESTIONS FOR THE EXPERT
1.What is grooming behaviour in the context of child sex offending? In particular:
1.1what is the purpose(s) of grooming behaviour;
1.2what are the key elements of grooming behaviour;
1.3are there various stages of grooming behaviour and, if so, what are they;
1.4what forms can grooming behaviour take; and
1.5can grooming behaviour be distinguished from non-grooming behaviour and, if so, how?
2.How does grooming affect children? In particular:
2.1does it affect their ability to recognise and prevent potential sexual activity, and disclose it when it occurs; and
2.2if the answer to 2.1 is yes, then please explain how it can do so.
3.Is there a risk of harm to a child attendant on grooming behaviour alone? If so,
3.1what is that harm;
3.2can the risk of that harm be effectively mitigated against; and
3.3if the answer to 3.2 is yes, how can that risk of harm be effectively mitigated against?
4.Is a person's perceived good character a factor that is known to preclude or limit the potential for that person to expose a child to grooming behaviour?
5.Does the scientific literature support the proposition that children commonly fabricate allegations of grooming behaviour?
6.Does the scientific literature suggest there are any factors which are reliable indicators of a fabricated account of grooming behaviour by a child, or would otherwise render that alleged grooming behaviour to be unlikely? If so, what are those factors?
7.With specific consideration to the alleged behaviour outlined at paragraphs 6.1, 6.2, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, and 8.12 of the Statement of Facts and Assumptions annexed to your letter of instruction (the Statement of Facts and Assumptions), can you comment on:
7.1whether the alleged behaviour of the Applicant detailed in those paragraphs is consistent with grooming behaviour;
7.2is (sic) the answer to 7.1 is yes, can you explain how it is consistent with grooming behaviour;
7.3is (sic) the answer to 7.1 is no, can you explain why it is not consistent with grooming behaviour; and
7.4any other aspect of the Applicant's alleged behaviour that in your professional opinion you consider relevant to the assessment of whether he poses a risk to children?
8.With specific consideration to only the behaviour outlined at paragraph 9 of the Statement of Facts and Assumptions, can you comment on:
8.1whether the behaviour of the Applicant detailed in that paragraph is consistent with grooming behaviour;
8.2is (sic) the answer to question 8.1 is yes, can you explain how it is consistent with grooming behaviour;
8.3is (sic) the answer to 8.1 is no, can you explain why it is not consistent with grooming behaviour; and
8.4any other aspect of the Applicant's behaviour that in your professional opinion you consider relevant to the assessment of whether he poses a risk to children?
9.If your answer to either or both questions 7.1 and 8.1 is yes, then in your view does the fact that the Applicant completed employment with School C (as referred to at paragraph 11 of the Statement of Facts and Assumptions) without any incident of allegations similar to those outlined at paragraphs 6 and 8 of the Statement of Facts and Assumptions give you confidence that the Applicant is:
9.1less likely or unlikely to engage in grooming behaviour in the future; and/or
9.2less likely or unlikely to pose a risk to children in the future?
Please explain your answer.
10.Is the time between the Applicant completing the training arising from the First Investigation and engaging in the alleged behaviour that led to the Second Investigation relevant to an assessment of whether he poses a risk to children? Please explain your answer.
11.Please read and consider the written response of the Applicant sent to the Department on 17 January 2016. Is there anything of significance in the response that is relevant to an assessment of whether the Applicant poses a risk to children? In particular, does the Applicant's comments at page 12 of his response to the effect that his actions might have been misinterpreted contribute anything to an assessment? Please explain your answer.
The matter was heard over two days, on 10 and 11 June 2020.
The Applicant filed a witness statement dated 10 December 2019 (Exhibit 1) and was cross-examined at the hearing.
Both parties called expert witnesses, Dr Coxon for the Applicant and Ms Hasson for the CEO. Dr Coxon is registered with the Psychologist's Board of Australia and holds a doctorate in clinical psychology. Dr Coxon stated that she has been involved in the assessment of perpetrators of sexual abuse. Ms Hasson holds a Master's degree in forensic psychology and her areas of expertise are in the assessment and treatment of violent and sexual offenders.
Dr Coxon had already prepared a report dated 15 August 2019 which was attached to the Applicant's application and she provided a supplementary report dated 11 December 2019.
Both Dr Coxon and Ms Hasson prepared and provided written responses to the questions contained in the orders referred to at [44], Ms Hasson's response bearing the date 24 April 2019 and Dr Coxon's dated 5 May 2020.
The expert witnesses conferred on 21 May 2020 and filed their joint report which is dated 22 May 2020.
The expert witnesses supplemented their written evidence orally at the hearing.
The Department on behalf of the CEO filed a statement of issues, facts and contentions on 1 October 2019 (RSIFC), together with three books of documentary material (Exhibit 2). The Applicant filed his statement of issues, facts and contentions on 15 October 2019 (ASIFC).
The Applicant filed a supplementary statement of issues, facts and contentions on 16 October 2019.
The Applicant also filed submissions on evidence on 18 February 2020 and further submissions on evidence on 29 May 2020.
The CEO filed a further bundle of documents on 16 October 2019 and a supplementary bundle of documents and other material on 20 December 2019 (CEO's Supplementary Bundle).
Following the hearing of the matter, the CEO filed closing submissions on 7 August 2020 (RCS) and the Applicant filed closing submissions on 20 August 2020 (ACS).
The allegations made to DoE against the Applicant
I do not understand there to be any disagreement between the parties that the Statement of Facts and Assumptions (SFA) attached to the orders made by the President on 3 March 2020, to the extent that it describes the allegations made against the Applicant, contains a sufficient description of those allegations. I find, without the necessity of repeating them, that the allegations which have been made against the Applicant are as described in the SFA at paras 6 to 9 inclusive.
I note however that the parties are not in agreement about the contents of the '2010 Disciplinary Findings'; ACS at paras 33 and 34.
Issue
The parties agree that the issue to be determined is whether, on all of the information now before the Tribunal, there is an unacceptable risk that the Applicant might in the future cause sexual or physical harm to children in the course of carrying out child-related employment; RCS at para 14, ASIFC at para 20, ACS at para 3.
The principles to be applied
The relevant principles to be applied in considering whether there is an unacceptable risk that the Applicant might in the future cause sexual or physical harm to children in the course of carrying out child-related employment are set out in Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28 (Grindrod). Those principles were recently considered by the Court of Appeal in Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 (IGR).
Of course, for material purposes, references in Grindrod to s 12(4) of the WWC Act following its amendment in 2010 should now be read as references to s 12(5), and references to the criteria in paras (a) to (f) of s 12(8) should be references to the criteria in paras (a) to (g).
The phrase 'unacceptable risk' does not appear in the WWC Act, but it is implicit in s 12(5) and (8) of the WWC Act that the CEO is not entitled to issue a negative notice under s 12(5) unless the CEO finds that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children in the course of carrying out child-related employment; Grindrod at [81].
In Grindrod at [82]-[87], Buss JA, as his Honour then was, said:
82The notion of 'unacceptable risk' reflects the evident policy of the WWC Act in balancing the risk of harm to children on the one hand with the civil rights of an applicant on the other. It embodies the precautionary approach that I have mentioned.
83'Unacceptable risk' is a familiar concept in the context of family law disputes in relation to parenting (custody or access) matters. In M v M (1988) 166 CLR 69, the High Court held that, in considering an allegation of sexual abuse in custody or access contexts, the Family Court should not make a positive finding that the allegation is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation: Briginshaw v Briginshaw (1938) 60 CLR 336, 362. The High Court also held, however, that custody or access should not be granted to a parent if it would expose the child to an 'unacceptable risk' of sexual abuse. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm' (A v A [1976] VR 298, at p 300), 'an element of risk' or 'an appreciable risk' (Marriage of M (1987) 11 Fam LR 765, at pp 770, 771 respectively), 'a real possibility' (B v B (Access) [1986] FLC 91‑758, at p 75, 545), a 'real risk' (Leveque v Leveque (1983) 54 BCLR 164, at p 167), and an 'unacceptable risk': In re G (A minor) [1987] 1 WLR 1461, at p 1469. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access (78).
The High Court dismissed an appeal from the majority judgment of the Full Court of the Family Court, which had affirmed Gun J's decision. Also see Fardon v Attorney‑General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575, 657 [225] (Callinan and Heydon JJ); Murphy & Murphy [2007] Fam CA 795, [243] ‑ [305] (Carmody J).
84It is not the CEO's function (under s 12(4)) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.
85The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child‑related employment. The risk in question has to be unacceptable, not likely. Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described. Compare M v M (76 ‑ 78); Re H and ors (minors) [1996] AC 563, 572 ‑ 573 (Lord Browne‑Wilkinson, dissenting) and 576 ‑ 577 (Lord Lloyd of Berwick, dissenting); Murphy [243] ‑ [305] (Carmody J).
86The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
(b)the apparent strength or weakness of the case against the applicant in relation to the non‑conviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child‑related employment; and
(d)the likelihood of any such future risk materialising.
87The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.
There will be some cases in which the Tribunal is able to come to a positive finding that an allegation is well-founded. There might also be cases in which the Tribunal would have no hesitation in rejecting the allegation as groundless; M v M [1988] HCA 68; (1988) 166 CLR 69 (M v M) at 77. Whether the decision-maker is able to reach a positive finding in either case is a matter for the decision-maker in light of all of the circumstances; IGR at [122].
The Court went on to say in IGR at [123]:
Consistently with the approach in M v M, in the present statutory context, if the decision-maker is able to make a positive finding (either way), it will be likely to have a significant, and in some cases decisive, impact on the decision. A positive finding that the alleged conduct did occur will have pervasive significance for the assessment required by s 12(8) of the Act, given that the best interests of children is the paramount consideration. A finding to contrary effect - that the conduct did not occur - will also be very significant. Where, as here, the alleged conduct is the sole ground for not issuing an assessment notice, a positive finding that the conduct the subject of the [allegations] did not occur will mean that an assessment notice will issue, as upon such a finding there will no longer be any impediment to that occurring.
(footnote omitted)
However, the decision‑maker may conclude that it cannot, or it is not appropriate to, make a positive finding one way or the other. If that is the case then that is not the end of the matter. The decision-maker must then proceed to analyse and evaluate whether the relevant unacceptable risk has been established; IGR at [124].
Evidence of the Applicant
As I have mentioned, the Applicant gave evidence to the Tribunal and was cross-examined.
The Applicant says that he was employed at School A as a science teacher, which involved him discussing 'topics in relation to asexual and sexual reproduction within the classroom, including sexual intercourse, the functions of human reproductive organs, contraception, pregnancy, and sexually transmitted diseases'; Exhibit 1 at para 51. He says that this content was delivered from a scientific perspective rather than a 'sexual education perspective'. He says that on occasions this 'elicited disorderly behaviour from some students in my classroom', which he said was caused by 'normal hormonal behaviour of the 13-14 year olds that I was teaching, especially as some of my students came from disadvantaged backgrounds and appeared to be immature for their ages'; Exhibit 1 at paras 53-54.
He says that at no stage did he ever discuss pornography or content of an inappropriate sexual nature with any of his students.
He says that as a member of the staff of School A, he was required to enforce school uniform policy and the only reason he would ever look at a student or comment upon their appearance was in relation to directing a student that was not wearing the correct school uniform to obtain a uniform pass, or to make further enquiries as to their reason for not wearing the correct school uniform; Exhibit 1 at para 59. He says that at no stage did he ever 'stare at the chest or breast area of any students' and he denies ever making any inappropriate physical contact with children; Exhibit 1 at paras 60-61.
He concedes that there may have been an incident when a female student was out of uniform and that he noticed that her mobile phone was falling out of the back pocket of her jeans. He said that he 'grabbed her mobile phone in order to prevent it falling onto the ground'. He says that at 'no stage did my hand come into contact with the buttocks of the student'; Exhibit 1 at para 64. He says that his action was 'spontaneous'.
Further, he denies offering alcohol or cannabis to any students or children and says that since his conviction for possession of cannabis in 1989, when he was 19 years of age, he was deterred from any further use of illicit substances since then; Exhibit 1 at para 72.
While teaching at School B he was again given the responsibility of delivering the year 9 biology curriculum, being 'life and living'; Exhibit 1 at para 75. He makes the point again about the immaturity of the students concerned and the resulting disorderly behaviour.
He says that if he ever looked at a student or commented upon their appearance it 'was in relation to directing a student that was not wearing the correct school uniform to obtain a pass from reception or to make further enquiries as to their reason for not wearing the correct school uniform'; Exhibit 1 at para 82. Again, he denies ever staring 'at the chest or breast area of any students'; Exhibit 1 at para 83.
He recalls the incident when he was on duty at a school excursion to an ice-skating rink where a female student injured her wrist and required first aid. He assisted the student to bandage her arm, in the presence of other students and other professional members of staff and he denies making 'any physical contact with the student outside of touching her arm to apply the first aid'; Exhibit 1 at para 89.
He also admits giving his mobile telephone number to a student when he encountered her outside of the school on a school day. He said that she was upset and angry and he wished to allow her the opportunity to 'keep in contact with someone from the school, should she wish to do so'; Exhibit 1 at para 92.
When that student contacted the Applicant through his mobile phone, he quickly realised that she did not require his assistance and he declined to communicate with her further; Exhibit 1 at para 95.
In 2011, he was approached by a student who asked if he would give her a lift home. The Applicant says that it was a rainy day and the student was in distress, so he agreed to do so. He asked the student to contact her parents, but was told that she was unable to do so 'which placed me in a position where I was concerned that she didn't have an alternative way to arrive home safely'; Exhibit 1 at para 103.
He followed the student's directions to her house and accompanied her to the front door in order to speak with a parent. It then became apparent to the Applicant that he had dropped the student at another student's house and that there were no parents at home; Exhibit 1 at para 105. He left the house after informing 'the student that her parent would need to be made aware of what had occurred'; Exhibit 1 at para 107.
He concedes that 'upon reflection' he would not repeat this behaviour; Exhibit 1 at para 108.
He says that in or around August 2012, police officers attended his home in order to investigate complaints that he had supplied a student with cigarettes and/or cannabis; Exhibit 1 at para 111. He invited the police officers to search his home, being aware that they did not have a search warrant. He says that he fully cooperated with the police in their investigation and the police 'did not find any illicit drugs or items and did not seize any items of interest'; Exhibit 1 at para 115.
The Applicant says that he was informed by the police that 'they were satisfied that no further action needed to be taken in relation to the matter'; Exhibit 1 at para 116.
The Applicant concludes his written testimony by saying that he is aware of the potential for misinterpretation of his actions, he does not have a sexual interest in children and he has never engaged in any behaviour that would demonstrate anything to the contrary; Exhibit 1 at paras 145 and 146. He denies offering to supply children with cigarettes or illicit drugs and he would never do so in the future. He categorically denies that he poses any risk to the physical and mental wellbeing of children; Exhibit 1 at paras 147 and 148.
Under cross-examination, the Applicant confirmed that after his employment with the DoE was terminated he had advice that he could appeal his termination but he elected not to do so; ts 11, 10 June 2020. When it was put to him that he made this decision on the basis that the allegations against him were true, he then replied:
It was more to do with I couldn't afford to proceed with it. And my understanding was also I was reserving my right to privacy. I was unaware at the time that I could have used a pseudonym. My understanding was if I had stepped into a court of law then it became public knowledge and I wanted my privacy to be respected.
He confirmed that 'between the first set of allegations and the second set of allegations' he attended training to prevent a repeat of the allegations that led to the First Investigation; ts 12, 10 June 2020. He agreed that, despite that training, he 'engaged in conduct which [he] admitted on reflection was not appropriate'; ts 13, 10 June 2020. He later said that he had contravened the DoE code of conduct, rather than he had behaved inappropriately; ts 14, 10 June 2020.
He was referred to his witness statement and the following statement at para 145:
Since 2012, I have changed my perspective and now have a much more protective view of how to best interact with students in my class, as I am aware of the potential for misinterpretation of my actions.
When it was put to him that, despite having received training around that behaviour, the Tribunal could not have confidence in those assertions, he replied 'viewed as a snapshot, no, they can't'; ts 14-15, 10 June 2020.
When challenged about the allegations made against him, the Applicant said that in each case the complainants were either telling lies or had misinterpreted some of his actions. He also suggested that the Second Investigation into his conduct was motivated to some extent by a need to 'cull' teachers; ts 15-17, 10 June 2020.
Applicant's written submissions
The Applicant, through counsel, points out that none of the allegations received by the DoE resulted in the Applicant facing criminal charges, and the Applicant says that he does not understand there to have been any 'compilation of any witness statements or a prosecution brief that can be examined as to its probative value'; ASIFC at para 4.
The Applicant also points out that although the allegations resulted in the termination of his employment with the DoE, the allegations did not preclude the Applicant from obtaining employment as a teacher in an independent high school in Western Australia; ASIFC at para 5.
The Applicant says that, following an inquiry by the Teacher Registration Board in 2015, the Board concluded 'that there was insufficient evidence to pursue a disciplinary matter' against the Applicant; Exhibit 2 at page 245. The Applicant points out that the Board is required in the performance of its function to regard the best interests of children as the paramount consideration; ASIFC at para 8.
The Applicant admits that, on one occasion, he provided a student a lift home in his personal vehicle when it was raining and upon the student's request.
On that occasion, he entered the house of the student in order to locate a parent of the student and, when no parent was present and a second student was located in the house, he left the house shortly thereafter; ACS at paras 12.1 and 12.2.
Further, the Applicant admits that he provided a student with his mobile number for whom he held genuine welfare concerns in order to discuss her pastoral care in relation to attending school; ACS at para 12.3.
It was the Applicant's evidence that he accepts that this admitted conduct was inappropriate and that he would not repeat that conduct in the future; ts 19, 10 June 2020.
The Applicant concedes that the Tribunal 'might be in a position to use the DoE materials to conclude that the allegations were made against the Applicant'; ACS at para 21. However, the Applicant submits that the Tribunal cannot rely upon the DoE materials to be satisfied as to the reliability of the allegations made against the Applicant, or whether the conduct the subject of the allegations occurred or is likely to occur in the future. The Applicant says this is 'due to the nominal probative force to be attached to hearsay materials where no direct or corroboratory evidence has been adduced to bolster any assessment of the reliability of their contents'; ACS at para 22.
The Applicant says that the Tribunal should not take the approach referred to in the decision in CGB v Children's Guardian [2018] NSWSC 776 (CGB) for a number of reasons. The Applicant says that in the present case, unlike in CGB, there is no material, such as a brief of evidence, signed witness statement of any complainant, police interview, sworn testimony, or the opportunity for Counsel on behalf of the Applicant to cross-examine any complainant, to place the Tribunal in a similar position to that of the tribunal in that case (and the Court) in deciding CGB; ACS at para 27.
I will refer again to CGB later in these reasons.
The Applicant points out that 'it is clear that neither expert have (sic) affirmatively found that the Applicant poses a risk to children'; ACS at para 36.
The Applicant submits that the Tribunal 'cannot affirmatively find that the Applicant poses an unacceptable risk to children without first making a positive finding that the conduct the subject of the allegations in fact occurred, which is a finding that the [CEO] has properly conceded would not be open to be made by the Tribunal upon the basis of the DoE materials'; ACS at para 37.
I now turn to to the specific allegations against the Applicant. The Applicant says that the allegation at 8.9 of the SFA could not have occurred because Student D was not a student on his class role at the relevant time; ACS at para 39. The Applicant says that it is important to note that Student D was never challenged in relation to this during her interview with the DoE. The Applicant says this is 'demonstrative of the lack of scrutiny the interviewees were placed under during the interview process, and, demonstrates that the creditability of at least one of the complainants involved in the allegations is a matter that should cause the Tribunal significant concerns'; ACS at para 40.
The Applicant concludes that there is no authority which provides that the Tribunal can be affirmatively satisfied, on the basis of the DoE materials nor on the basis of the expert evidence, that there is an unacceptable risk that the Applicant might, in future, cause sexual or physical harm to children in the course of child-related work; ACS at para 43. The Applicant says that this position is maintained in circumstances where the expert briefed by the CEO has not affirmatively found that the Applicant poses a risk to children. The Applicant says that the correct and preferable decision is that the Tribunal ought to cancel the negative notice and direct the CEO to issue the Applicant with an assessment notice; ACS at para 45.
Expert witnesses
As I have mentioned earlier, both experts provided written testimony and supplemented that testimony with oral evidence at the hearing.
A particular difficulty which I have with the experts' evidence is that both experts seemingly have focussed, at least to some degree, on whether or not there was 'sufficient evidence forthcoming to substantiate the allegations'; experts' joint report at para (b). I would infer that the experts were under some misapprehension about their role in the proceedings. Dr Coxon in particular prefaced a great deal of her testimony with statements to the effect that she did not consider that the allegations against the Applicant were true; for example ts 48; 70 and 71, 10 June 2020.
Of course, the experts were not asked to opine as to whether or not the applicant was guilty of the conduct alleged against him. Instead, the experts were asked to answer certain questions 'on the basis' of the SFA.
I accept the following evidence of the experts:
(1)Grooming is when someone builds a relationship, trust or emotional connection with a child or young person so they can manipulate, normalise sexually harmful behaviour, exploit or abuse a child.
(2)Whether or not there is a risk of harm to a child attendant on grooming behaviour alone is a question that neither expert could offer an opinion on.
(3)Grooming behaviour involves an escalation from seemingly 'innocent' touching or befriending into a methodical and intentional process to draw the victim into a sexual relationship.
(4)Grooming does not inevitably lead to child sexual abuse and in some cases grooming is only discernible after the abuse has been identified because the perpetrators intent or motivation is not immediately visible.
(5)Good character is not known to limit or preclude the potential for an individual to engage in grooming behaviour.
(6)Older children and teenagers may well fabricate allegations of grooming behaviour to gain attention from friends and fellow students. They also may fabricate allegations in order to take 'revenge' against those trying to discipline or teach them in an educational setting. In younger children, fabrication of allegations does not appear to be common.
The experts differed as to whether the alleged behaviour of the Applicant detailed in the SFA is consistent with grooming behaviour. Dr Coxon did not believe that the alleged behaviour of the Applicant was consistent with grooming behaviour 'because there was no concrete evidence that the behaviours occurred in the manner described by the various students involved'. Ms Hasson, to the contrary, said that the alleged behaviours were all consistent with grooming behaviour. Dr Coxon, with Ms Hasson again disagreeing, also considers that a sexual offence needs to occur for behaviours to be considered grooming.
Because the evidence given by Dr Coxon was in the context of her firm belief that the allegations made against the Applicant were untrue, I prefer the evidence of Ms Hasson on these points.
The experts also disagreed as to whether or not there was any significance to the fact that there were no complaints against the Applicant during his time of employment at School C. Dr Coxon considered that this was a positive reflection on the Applicant. Ms Hasson considered that the period of employment at School C was 'too brief to offer an absolute or categorical opinion on the likelihood of him engaging in grooming behaviour in the future'.
Again, I prefer the evidence of Ms Hasson. The Applicant was employed at School C for around six months. The alleged behaviour at School A and at School B was said to have occurred after the Applicant had been engaged for a longer period than the time which the Applicant spent at School C. Ms Hasson considered, and I agree, that any tendency that the Applicant may have towards a connection with particular students may not have manifested itself within that short period.
Disposition
I observe at the outset of this part of these reasons that, were it not for the Applicant's Class 3 offences, then s 12(4) and not s 12(5) of the WWC Act would have applied and an assessment notice would have been issued to the Applicant. The allegations made against the Applicant by students in 2008 and then separately in 2011 and 2012, and the DoE's findings upon investigation of those allegations would have had to have been disregarded by the CEO.
However, because of the existence of the Applicant's Class 3 offences, s 12(5) applies. The CEO, and the Tribunal on review, must issue an assessment notice unless satisfied, because of the particular circumstances of the case, having regard to the matters in s 12(8) of the WWC Act, that a negative notice should be issued.
I have already set out earlier something that was said in Grindrod at [84], namely that it is not the Tribunal's (or the CEO's) function to adjudicate upon whether the Applicant is in fact guilty or not guilty of, in this case, the alleged conduct. I do not agree with or accept the Applicant's submission that 'the Tribunal cannot affirmatively find that the Applicant poses an unacceptable risk to children without first making a positive finding that the conduct the subject of the allegations in fact occurred'; ACS at para 37.
Instead, my function involves an analysis and evaluation of risk. The question remains whether, on all the information and other material before the decision-maker, there is an unacceptable risk that the Applicant might in the future cause sexual or physical harm to children in the course of carrying out child‑related employment; Grindrod at [85].
That does not mean that the Tribunal cannot, in any circumstances, make a positive finding that any alleged conduct did or did not occur. Such a finding, either way, would have been of some significance in the assessment of risk required by s 12(8).
However, in this case, I accept the Applicant's submission that I should 'approach the contents of the [CEO's Supplementary Bundle] with extreme caution'; ACS at para 10. I do not consider that I can, on the basis of what is before me, make a positive finding that the alleged conduct, other than the conduct admitted to by the Applicant, occurred or did not occur. As the Applicant says, no sworn testimony was given by any of the complainants in relation to the alleged conduct and none of the complainants gave evidence in this proceeding or were subjected to cross-examination; ACS at para 11.
It follows that this case falls into what is referred to in IGR as 'the third category of case'. The Court in IGR at [124] said:
The third category of case is that in which the decision-maker concludes that it is not able to, or it is not appropriate to, make a positive finding one way or the other. That was the position in [Grindrod]. That case demonstrates that an inability to make a positive finding, one way or the other, is not the end of the matter. The decision-maker must proceed to analyse and evaluate whether the relevant unacceptable risk has been established.
Accordingly, while I cannot make a positive finding about the allegations, those allegations are not irrelevant or impermissible and should not be disregarded. In the context of an evaluation of whether there is an unacceptable risk that the Applicant might cause sexual or physical harm to children in the course of carrying out child-related employment, the allegations are relevant and permissible.
In that regard, I am mindful that the risk in question has to be unacceptable, not likely; Grindrod at [85].
It follows that I disagree with the Applicant's submission that I should not take the approach referred to in the decision in CGB. In my view, the approach in CGB, namely that, in this case, the contents of the CEO's supplementary bundle can be accepted on the basis that the materials evidence the allegations that were made, but not the truth of their content, should be adopted. Received on that basis, the allegations can be examined for consistency between the various makers of the allegations and inherent probability or otherwise. The allegations on that basis will form a foundation for the Tribunal to decide whether there was a risk that the allegations are true.
I accept the materials in the CEO's supplementary bundle on that limited basis.
I turn now to the consideration of whether I am satisfied that there is an unacceptable risk that the Applicant might, in the future, cause sexual or physical harm to children in the course of child-related work.
The allegations made against the Applicant include:
(a)inappropriate physical touching of students;
(b)use of sexualised language around and toward students;
(c)discussion of pornographic material with students;
(d)providing cannabis and cigarettes to students;
(e)offering alcohol to students; and
(f)obtaining a student's personal mobile number and using that number for inappropriate personal communications.
This is not a case where there was a single allegation from a single source. There were a number of allegations from a number of sources.
The Class 3 offences, with one exception, when viewed in isolation are not cause for concern for the safety of children. Those offences were all committed during the Applicant's teenage years and I consider that most of them are of little relevance to the critical question before me.
The exception is the convictions relating to use and possession of cannabis when considered in the context of the allegation that the Applicant supplied cannabis to Student D. Despite the Applicant's statement that he has had 'no interest in any illicit substances' since 1989 (Exhibit 1 at para 72), there is some consistency between that allegation and some of the Class 3 offences.
Any future offending relating to the possession or use of cannabis could be harmful if it involved a child.
The Applicant has admitted some of the alleged conduct. He admits that he drove a female student then aged 13 to 14 years old to the home of another female student also aged 13 or 14 before then entering the home. He also admits to corresponding with the latter student through her personal mobile phone. The Applicant accepts that his judgment in doing so was poor. This admitted conduct had followed a period of training about physical contact between staff and students, behaviour that might be open to misinterpretation and behaviour outside of school hours.
This gives rise to a concern about the Applicant's judgment about the appropriateness or otherwise of the Applicant's relationships with his students. The Tribunal cannot be assured that the Applicant will conduct himself differently in the future. The Applicant said as much at the hearing; ts 14-15, 10 June 2020. The Applicant's admitted conduct following his training suggests to the Tribunal, to use the words of Ms Hasson in her report bearing the date 24 April 2019, that the Applicant's 'views of his own behaviours are entrenched and largely immutable'.
Both experts agreed that the behaviour alleged, if it occurred (my emphasis), was behaviour consistent with grooming.
Taking everything into account, I consider that the number and consistency of the allegations of inappropriate conduct by the Applicant towards children, made by a number of students over a period of some four years at two separate and different schools, supports a conclusion that there is a possibility that the Applicant has engaged in behaviour consistent with grooming and that he therefore presents an unacceptable risk to children.
After the DoE's investigation in 2010, the Applicant was provided with training on appropriate behaviour outside school hours and behaviour that might be misinterpreted. Despite that training, the Applicant subsequently put himself directly into situations where further allegations emerged.
The Applicant provided a number of character references in support of his application. All of the referees were colleagues of the Applicant at School C.
I accept these references as evidence that each referee believes the Applicant to be of good character. However, the referees would have only known the Applicant for a short period of time and it is not entirely clear whether the referees are aware of the allegations made against the Applicant. In any event, they are of no assistance to me in assessing whether the Applicant presents an unacceptable risk to children. I attach little weight to them.
My conclusion is that, where the best interests of children are paramount, I find that there is an unacceptable risk that the Applicant might, in the future, cause sexual or physical harm to children in the course of child-related work. I accept that the issuing of a negative notice may have an adverse impact on the Applicant, but that is not something which I can take into account. The critical question is one of whether there is an unacceptable risk where the best interests of children are paramount.
The decision of the CEO to refuse the Applicant's application to cancel a negative notice should be affirmed.
Orders
1.The respondent's decision to refuse to cancel a negative notice issued to the applicant is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
25 SEPTEMBER 2020
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