CDS v Children's Guardian

[2016] NSWCATAD 204

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CDS v Children’s Guardian [2016] NSWCATAD 204
Hearing dates:	22 August 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Anderson, Senior Member Prof P Foreman, General Member
Decision:	The applicant’s application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of an act of indecency on 14 year old girl – whether applicant has discharged onus to prove he does not pose a risk to the safety of children – onus not discharged
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013
Cases Cited:	Commission for Children and Young People v [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 BJB v Office of the Children’s Guardian [2014] NSWCATAD 111 M v M [1988] HCA 68; 166 CLR 69
Category:	Principal judgment
Parties:	CDS (Applicant) NSW Office of the Children’s Guardian (Respondent)
Representation:	Counsel: M Giacomo (Respondent) Solicitors: CDS (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510541
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of any other person from which the name of the Applicant could be identified is not to be published or broadcast without the leave of the Tribunal.

REASONS FOR DECISION

Background

1. On 7 July 2015, the Applicant applied to the Office of the Children’s Guardian (the Respondent) for a Working with Children Check clearance.

2. On 14 August 2015, the Respondent notified the Applicant that his criminal history disclosed a disqualifying offence, namely, a conviction for an act of indecency on female under 16 years, contrary to section 61E(2) of the Crimes Act 1900 (NSW), and as a disqualified person he must not be granted a working with children check clearance.

3. On 8 September 2015, the Applicant made this application to the Tribunal for an order that he is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (an “enabling order”).

4. The matter was the subject of directions hearings conducted by the Tribunal, during which the proceedings were explained to the Applicant, who was not legally represented. Orders were made for the filing and service of documents by the parties, and the Applicant was informed of the option of filing a psychological risk assessment report.

5. The Applicant did not file any expert evidence on the basis that he could not afford to do so. However, the Applicant filed a number of documents, including a statement addressing the factors in section 30(1) of the Act.

6. At the commencement of the Tribunal hearing held on 22 August 2016, the Applicant objected to admission of the Respondent’s written submissions, which were filed after the date ordered by the Tribunal. The Tribunal stood the matter down to enable the Applicant further time to consider those submissions. The Applicant did not seek an adjournment of the hearing and declined an offer by the Tribunal for an extension of time to file written submissions.

7. At the conclusion of the hearing, the Tribunal reserved its decision.

The working with children legislative scheme

8. The object of the Child Protection (Working with Children) Act 2012 (“the Act”) is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (Child Protection (Working with Children) Act 2012, s.3).

9. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (Child Protection (Working with Children) Act 2012, s.4).

10. The Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. Child Protection (Working with Children) Act 2012, s.8(1), s.6(1)(b) & (3)).

11. A person may apply to the Children's Guardian for a working with children check clearance. Child Protection (Working with Children) Act 2012, s.13)

12. The Children’s Guardian must refuse an application for a clearance where the Applicant is a ‘disqualified person’. A person is a disqualified person by reason of having been 'convicted' of an offence falling within Schedule 2 of the Act. Child Protection (Working with Children) Act 2012,s.18(1), Schedule 2).

13. In this matter, the Applicant was convicted of the offence of an act of indecency on a female under the age of 16, contrary to section 61E(2) of the Crimes Act 1900. It is because of his conviction for this offence (a Schedule 2 offence), that the applicant is rendered a "disqualified person".

Role of the Tribunal

14. Section 28 of the Act makes provision for review, by the Tribunal, of a decision that a person is a disqualified person, by declaring that he or she is not to be treated as a disqualified person. Section 28 provides:

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person's clearance has been cancelled,

because the person is a disqualified person.

(4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

15. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. The section provides that:

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

Procedure of Tribunal

16. The guiding principle to be applied to practice and procedure in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” consistent with the objects and principles under the Act. Civil and Administrative Tribunal Act 2013, s 36.

17. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s38 and s 67.

18. Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.

19. At [29], in BKE, Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, at p 362 per Dixon J, in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so.

20. At [30], His Honour said “significant guidance as to the approach to be adopted” in such cases could be derived from the High Court’s decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal’s fact finding task as follows:

“33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

Burden of proof

21. As the Applicant is a disqualified person seeking an enabling order pursuant to section 28 of the Act, there is a presumption that the Applicant poses a risk to the safety of children.

22. The issue to be decided

23. The issue for determination by the Tribunal is whether the applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children, and accordingly, whether he should (or should not) be granted an enabling order.

Risk to the safety of children

24. The meaning of the word ‘risk’ was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

“What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children."”

25. These remarks have been accepted to equally apply to the word “risk” as it appears in the 2012 Act: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 (BKE), at [26].

26. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a “risk to the safety of children” in those circumstances. Instead, an Applicant is “subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area.”

27. These observations of Young CJ (in Equity) have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

28. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

Evidence before the Tribunal

29. The Respondent tendered into evidence the documents gathered by the Respondent in relation to the Applicant’s application, including documents provided by various departments and agencies, including the NSW Police, the courts, the Department of Corrective Services, as well as the church attended by the Applicant.

30. The Applicant relied on his application, various documents he authored, two character references and other material. The Applicant gave evidence at the hearing and was cross examined by Counsel for the Respondent.

31. The evidence is now considered under each of the subheadings of section 30(1) of the Act, each of which the Tribunal must consider in its determination of the application

32. (a) the seriousness of the offences with respect to which the person is a disqualified person

33. The matter that caused the refusal of the Applicant’s application for a clearance was his conviction on 10 September 1984 in the District Court for an act of indecency on a female under 16 years, which occurred on 28 January 1983.

34. The police facts and the statements of the victim and other witnesses indicate that at the relevant time, the Applicant, then a 30 year single man, was staying in a tent in a caravan park in northern New South Wales. The victim was staying with her parents at the same caravan park in advance of her elder sister’s wedding the following day. At about 7.00pm, the Applicant approached the victim who was sitting alone beside the lake at the caravan park, and they commenced a conversation. During their conversation, the Applicant is alleged to have asked the girl her age, to which she responded that she was “fourteen and a half”. The Applicant and the victim walked together along the lake and sat down.

35. The Applicant started to kiss the girl. He then lay down, pulled the girl down and rolled over on top of her. The Applicant put his hands down the girl’s shorts through the leg of her swimming costume. He touched her on the vagina, and tried to rub his hand up and down. The girl pushed his hand away and pushed him off her. The Applicant said the girl: “Don’t you like that?” to which the girl told him that she didn’t and the Applicant said he was sorry. The Applicant then put his hand under the girl’s t-shirt and proceeded to put his mouth on her breast. The victim pushed the Applicant away and got up to walk away. The Applicant went to a nearby toilet block. After exiting it, he came up to the girl and put his arms around her. The Applicant’s penis was exposed and in a state of erection. The girl pushed away the Applicant, who subsequently asked the girl to squeeze it (his penis). The girl walked off, and the Applicant followed her and put his arms around her. The Applicant took his arms off the victim when the boyfriend and male friend of the girl’s sister approached, looking for the girl whose family was searching for her. The Applicant denied any wrongdoing to those persons, and told them he was an ex-police officer. In a subsequent conversation with one of the men, the Applicant asked how old the girl was. When informed the victim was 14, the Applicant said: “Oh shit”.

36. Police attended the caravan park. The Applicant declined to participate in a record of interview, as was his right, and he was charged with two offences; an act of indecency on a female under 16 years, and obscene exposure.

37. On 8 March 1984, following committal proceedings in the Local Court, the Applicant was committed for trial on both charges. On 10 September 1984, in the District Court, the Applicant pleaded guilty to the single charge of an act of indecency, which was accepted by the Crown in full discharge of the Indictment presented.

38. The details of the basis upon which the Applicant entered his plea of guilty are not clear. In particular, it is not apparent from the court records whether the police facts were agreed and tendered on sentence. However, it is noted that the police facts were specific to the act of Indecency charge and were dated 10 September 1984; the date the Applicant was convicted and sentenced in the District Court. There is no indication from the Court records that a disputed facts sentencing hearing occurred. It is therefore reasonable to conclude that the police facts were tendered on sentence and formed the basis on which the Applicant entered his guilty plea.

39. A conviction was recorded and the Applicant was ordered to enter into a recognizance to be of good behaviour for a period of 3 years, to be supervised by the Parole Service.

40. Section 61E(2) of the Crimes Act 1900 has since been repealed. However at the relevant time, it provided for an offence of an act of indecency with a person under 16 years. The offence attracted a maximum penalty of 2 years’ imprisonment.

41. Although the Applicant’s conduct was at the lower range of contact sexual offending, it is nevertheless serious; involving the commission of an indecent act on a child in circumstances where the child was particularly vulnerable. The offending occurred in the evening when the victim was alone. Despite the victim telling the Applicant to stop and attempting to remove herself from the situation, the Applicant continued to engage with the girl; only stopping when persons searching for the girl located her. The incident was no doubt traumatic and distressing for the victim and her family.

(b) the period of time since the offence occurred and the conduct of the Applicant since that time

42. The offence was committed approximately 33 years ago.

43. The Applicant has no other criminal convictions other than the disqualifying offence. He has not been charged with any other criminal offences, nor has he come to the attention of NSW Police for any matters of violence (including domestic violence), child abuse, sexual offences or inappropriate activity involving children.

44. The Applicant has a fairly short employment history. He was in the Australian Army for a six month period. He also worked in computing in the public and private sectors. He sustained an injury and has not worked since 1992. He is in receipt of the Disability Support Pension. He lives with his wife, to whom he has been married for more than 30 years. He has a daughter from a previous relationship who was born in 1973. His wife has a son from a previous relationship.

42. The Applicant was involved in a church in Tasmania for nine years and for the last eight years he has been involved in a church in New South Wales. He undertook volunteer work in Tasmania including with his former church and various community organisations. Up until his refusal of a working with children check clearance in August 2015, the Applicant was a volunteer at his current church, with duties including making coffee for church participants and assisting with computer maintenance. The Applicant has stepped down from his volunteer role pending the outcome of the Tribunal proceedings.

43. He has not been the subject of any formal complaints during his involvement with the church in New South Wales.

(c) the age of the Applicant at the time the offence occurred

47. At the time of commission of the disqualifying offence, the Applicant was aged 30 years.

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

48. The victim of the offence was aged 14 years. She was vulnerable in that the offending occurred while the victim was alone with the Applicant and in a location where it would be difficult for members of the public to observe his actions.

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

49. The difference in age between the victim and the Applicant was 16 years.

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

50. In her witness statement to police, the victim states, in response to a question by the Applicant, she informed him she was 14 years old. A witness statement of another person who had a conversation with the Applicant following the incident states the Applicant expressed surprise when advised that the victim was 14 years old. The Applicant denies that he asked, and was told by, the victim her age. There is therefore some conflicting evidence on this matter.

51. In his documentary evidence, the Applicant states that when considering the matter now and in trying to understand what he was thinking at the time of offending, he recalls the following in relation to the victim which led him to believe that she was in her early twenties:

● “The adultish manner in which she was dressed;

● Physical development

● Adult facial appearance

● Conversation

● Physical gestures and responses

● The quick response time between what had occurred between them and the victim saying and responding in the way she did;

● The long time on that evening between the incident and the victim saying anything to her family, in the way she wasn’t initially prepared to raise the incident”

52. In his oral evidence, the Applicant also said that there were no photos of the victim to show her appearance at the time of the offence. When questioned by Counsel for the Respondent and the Tribunal, the Applicant made a number of attempts to explain his statements, with no further clarity achieved as to the belief of the Applicant as to whether he knew the victim was a child. However, the fact remains that in 1984 the Applicant entered a plea of guilty to the commission of an act of indecency on a female under the age of 16 years. On that basis, the Tribunal is satisfied that the Applicant knew that the victim was a child.

(g) the Applicant’s present age

53. At the time of the Tribunal hearing, the Applicant was 63 years of age.

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

54. Aside from the disqualifying offence, the Applicant has no other criminal convictions.

55. Further details of the Applicant’s conduct since his convictions are detailed in earlier paragraphs.

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

56. For the purposes of the Tribunal proceedings, the Applicant did not tender an expert’s report as to his risk of reoffending.

57. The Applicant points to his lack of any other criminal convictions in the periods prior and subsequent to his disqualifying offence. In addition, there is no evidence on Police COPS reports indicating the Applicant has been involved in any offending since his conviction in 1984. There is no evidence of any complaints from the churches in Tasmania or New South Wales with which he has been involved. In fact, there is no evidence of any anti-social behaviour on the part of the Applicant since his conviction. He held a firearms licence for a number of years. He has a stable marriage and is actively involved in his church.

58. However, the Applicant has not worked specifically with children in either his paid employment or his volunteer work. He has been in the presence of children, including in the context of his church involvement, and his written evidence lists the names of the children who attended his former church in Tasmania and those that attend his current church. However, other than talking to children in the context of church or volunteering at events where children were present, the Applicant has not worked or volunteered specifically with children. He admits as such in his response to the Respondent’s inquiries.

59. In addition, by his own admission, he does not have contact with his daughter’s children (his grandchildren). The Applicant has contact with his wife’s adult children. However, there is no evidence from those persons or any other persons specifically addressing the Applicant’s conduct with children since his disqualifying offence.

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

60. The Applicant acknowledges his disqualifying conviction. In his written evidence, the Applicant stated “What I have done since the incident to ensure it doesn’t ever happen again are to totally understand that what I did was completely wrong (I understand this) and of just how completely unacceptable my behaviour was and what I put the victim through having; her having to explain to others what had happened”.

61. The Applicant acknowledges that his actions were wrong and states that he pleaded guilty to the offence to spare the victim and her family the trauma of a trial. Notwithstanding those statements, the Applicant seeks to explain his actions by recalling particular details of the victim on the evening in question. Although the Applicant denied that he was seeking justification for his actions, the Applicant nevertheless included in his evidence a reference to the victim’s physical appearance and characteristics, as detailed in earlier paragraphs in respect of subsection 30(1)(f).

62. Furthermore, despite recalling those details for the purposes of his written statement addressing the section (30)(1) factors, the Applicant under cross examination was unable to recall any details of the disqualifying offence other than it occurred at night, that he did not ask the victim how old she was and that he did not say to witnesses that he was an ex-police officer. In particular, when specifics of the offending as described by the victim in her statement were put to the Applicant in cross examination, he either could not recall or stated they were not true. In particular, the Applicant initially said he could not recall the parts about walking together with the victim, and kissing and rolling on top of the victim. However, the Applicant then said he rejected everything and directed (Counsel for the Respondent and/or the Tribunal) to: “change all your answers from I don’t remember to it’s not true”.

63. The Applicant then proceeded to state that it was not true that he rubbed the victim’s genital area and placed his mouth on her breast. He told the Tribunal that he may have early stage Alzheimer’s disease and has difficulties with long-term memory. Upon further questioning, the applicant said he could not recall his penis being outside of his trousers and placing his arms around the victim. When questioned about whether he recalled telling a witness he was an ex-police officer, the Applicant said that “was a lie”.

64. The Applicant’s oral evidence did not shed any further light on the basis upon which he entered his plea of guilty to the disqualifying offence. Specifically, the Applicant was either unable to recall his actions on the evening in question, or he stated that the events as alleged by the witnesses (including the victim) were not true.

65. The Tribunal notes that the offence occurred 33 years and therefore a significant passage of time has elapsed. It is not unusual for a person’s recollection to diminish over such a long period of time. However, the Tribunal did not have any professional evidence before it about the Applicant’s possible diagnosis of Alzheimer’s disease, and contrary to the Applicant’s assertion that the disease may affect his long-term memory, the Tribunal understands Alzheimer’s disease, particularly in its early stages, affects predominantly a person’s short-term memory. Moreover, the Applicant’s oral evidence in response to questions about his disqualifying offending is in contrast to the detail which he has recalled various other life events, including those which pre-date his disqualifying offence.

66. In particular, the Applicant tendered into evidence “CDS’s Life Story”, a 20-page document comprising details of his life from birth up until 16 December 2015. The level of detail in that document is significant, describing events of his childhood, his attainment of various qualifications, his hobbies and interests, and the deaths of pets. His disqualifying offence is referred to in a single paragraph. It does not provide any details of the offending other than that he entered a guilty plea as he had done the wrong thing and he wished to spare the victim and her family the further trauma of a trial. His paragraph concludes with a quote in which the Applicant asks God for forgiveness.

67. The Applicant became a born again Christian in 1998, and has been actively involved in his churches in Tasmania and New South Wales, both as a participant and as a volunteer. More recently, he has assisted his current church in scrutinising the forms the church requires its volunteers to complete. Following his research, including the media focus on the issue of working with children clearances, the Applicant advised the senior members of his church that all volunteers should apply for a working with children check clearance. It was in this context that the Applicant applied for, and was subsequently refused, a working with children check clearance.

68. The Applicant relied upon character references from the head of his former church in Tasmania and from the senior pastor of his current church. The Applicant also tendered a copy of an expired firearms licence which the Applicant sought to rely on as character evidence.

69. The Applicant quoted from the character reference supplied by the leader of his former church in Tasmania which refers to the Applicant and his wife as being very loyal, honest, reliable, trustworthy, encouraging and hospitable. However, that reference, which is undated, was not made for the purposes of the Applicant’s application, but rather was made in the context of introducing the Applicant and his wife to their new church in New South Wales. There is no indication the referee had any knowledge of the Applicant’s disqualifying offending and there is no reference to the Applicant’s conduct with children. Therefore, little weight can be given to that evidence.

70. A more recent reference was supplied by the senior pastor of the Applicant’s current church. The Applicant has informed the pastor of his disqualifying offence and his application for an enabling order, and has provided the pastor with his Life Story and the other documents he submitted to the Tribunal in support of his application. However, prior to writing his reference, the pastor was not provided with the Respondent’s documents, and in particular, the records from the District Court which include the police facts and various witness statements. It is therefore not clear the extent to which the pastor, when preparing his reference for the Applicant, was made aware of the details of the Applicant’s disqualifying offence. The pastor also noted in his response to the Respondent that the Applicant has not undertaken any volunteer work which is child-related.

71. The Applicant seeks a working with children check clearance in order to resume volunteer work with his church, and in particular, his barista duties. The Applicant submits that he is not a risk to the safety of children and should be granted an enabling order.

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

72. The Respondent opposes the application and submits the Applicant has failed to discharge his onus to prove he is not a risk to the safety of children.

73. In written submissions, Counsel for the Respondent submitted the Applicant failed to disclose details of a wilful and obscene exposure charge (which was dismissed on 15 October 1984) in breach of his disclosure obligation under section 28(5) of the Act. However, the Tribunal was satisfied that this charge is likely to have arisen out of the same facts as the Applicant’s disqualifying conviction, and the Tribunal was not satisfied that the Applicant’s failure to provide details of that charge was a deliberate breach of section 28(5).

74. Counsel for the Respondent submitted that in light of the Applicant’s lack of involvement in working or volunteering with children, and in the absence of a formal risk assessment, the Applicant has not discharged his obligation to prove that he is not a risk to the safety of children. Counsel for the Respondent further submitted that the Applicant has minimised his offending, and that as a result of the Applicant’s tender of a large amount of material irrelevant to the Tribunal’s determination, it is open to the Tribunal to find that the Applicant does not have an awareness of the meaning of a real and appreciable risk to children.

Conclusion

75. The issue for determination is whether, on the material before it, the Tribunal can be satisfied that the Applicant has discharged his onus to prove that he is not a risk to the safety of children. In this regard, the Tribunal is cognizant of the fact that the safety, welfare and well-being of children, in particular, protecting them from child abuse, is the paramount consideration in determining this application.

76. In support of his application, the Applicant tendered a large amount of material to the Tribunal, a significant proportion on which he relies to establish that he has not been the subject of any charges or complaints either prior to or following his disqualifying offence. Much of the material relates to his religious faith and the churches with which he has been, and continues to be, closely involved.

77. To his great credit, the Applicant has not come into contact with the criminal justice system or come to the attention of authorities for any anti-social conduct since his offending 33 years ago. This is a significant period of time, and the Tribunal gave careful consideration to this fact. However, the difficulty for the Tribunal in determining whether the Applicant has discharged his statutory onus is whether this fact alone is sufficient to discharge the onus. On balance, the Tribunal could not be so satisfied.

78. In particular, the Applicant whilst able to recall very specific details of his life both prior to, and after his disqualifying offence, was unable to explain the basis upon which he pleaded guilty to the disqualifying offence. Indeed, either he could not recall the details of his offending, or asserted that they were not true, including the details which, it is presumed, go to the core of the act of indecency; - the placing of his hand on the victim’s vagina, the placing of his mouth on the victim’s breast, and his request of the victim to squeeze his penis. And although the Applicant maintains that he knows what he did was wrong, he is unable to identify the actual conduct or actions which were wrong and which led him to enter a plea of guilty. This placed the Tribunal in a somewhat difficult position in seeking to understand from the Applicant the basis of his guilty plea.

79. Moreover, the Tribunal was troubled by the inconsistency in the Applicant’s oral and written evidence. On the one hand, the Applicant in his documentary evidence (printed on 16 December 2015) recalled certain aspects of the victim including her appearance, conversation, physical gestures and responses. Yet, in his oral testimony some 8 months later, the Applicant was unable to recall any such details about the victim.

80. It should be noted that on a number of occasions during the Tribunal hearing, the Tribunal explained to the Applicant the basis for his disqualification from obtaining a working with children check clearance, and the issue to be determined by the Tribunal. The Tribunal also explained that, despite request by the Applicant, it was not the role of the Tribunal to ‘forgive’ him.

81. While the Applicant tendered into evidence much about his life and the good works in which he has been involved with his church and community, there was very little in the material before the Tribunal that went squarely to the issue of the Applicant’s risk (or otherwise) to the safety of children. In particular, there was no expert assessment of the Applicant’s risk. And whilst it is apparent that the Applicant has received significant personal benefit from his religious faith, there is no evidence to indicate that the Applicant has ever participated in counselling or therapy to address his disqualifying offending. Additionally, there was no evidence from any family members, friends, employers or church leaders as to the Applicant’s conduct with children. In the absence of any such evidence, the Tribunal could not be satisfied that the lack of any further convictions and the passage of time alone is sufficient to prove that the Applicant does not pose a risk to the safety of children.

82. In coming to this conclusion, the Tribunal is mindful of the seriousness of the disqualifying offending, and in particular, that a 14 year old girl was subjected to an act of indecency, including the touching of her vagina and her breasts, by an adult male in circumstances where the victim was alone and away from her family, and the indecent act occurred despite her protests.

83. Notwithstanding the Applicant’s submission that he wishes to obtain a clearance to resume his barista duties in the church, the Tribunal accepts that if the Applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

84. The Tribunal is cognisant of the fact that the safety, welfare and wellbeing of children and in particular, protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. Having regard to this principle, the Tribunal cannot be satisfied that the applicant has discharged his onus to prove that he is not a risk to children. Accordingly, his application for an enabling order is refused.

ORDERS

85. Accordingly, the Orders of the Tribunal are as follows:

1. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) is refused and dismissed.

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

Registrar

Decision last updated: 02 September 2016