CEK v Children's Guardian

[2016] NSWCATAD 160

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CEK v Children's Guardian [2016] NSWCATAD 160
Hearing dates:	2 May 2016
Date of orders:	20 July 2016
Decision date:	20 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member N Hiffernan, General Member
Decision:	(1) The decision of the Children’s Guardian dated 24 August 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is affirmed.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012 -refusal of working with children check clearance -what the correct and preferable decision is having regard to the material before the Tribunal – assessment trigger by subsection 15 of the Child Protection (Working with Children) Act 2012 - conviction in 1983 of manslaughter of the girlfriend of the applicant - whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children - paramount concern is the safety welfare and well-being of children and in particular protecting children from child abuse- the correct and preferable decision is to uphold the decision of the Children’s Guardian and refuse a working with children check clearance.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1 AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BGX v Children's Guardian [2014] NSWCATAD 173 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111 BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian [2015] NSWSC 523 BKN v Children’s Guardian [2014] NSWCATAD 213 BKP v Children's Guardian [2014] NSWCATAD 207 BKV v Children’s Guardian [2015] NSWCATAD 65 BLD v Children’s Guardian [2015] NSWCATAD 2 Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 BPA v Children’s Guardian [2015] NSWCATAD 36 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 M v M [1988] HCA 68; 166 CLR 69 Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 R v Commission for Children and Young People [2002] NSWIR Comm 101 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Re Sophie (No 2) [2009] NSWCA 89 Roberts v Balancio (1987) 8 NSWLR 436 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 YG & GG v Minister for Community Services [2002] NSWCA 247
Category:	Principal judgment
Parties:	CEK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: S A Wells (Applicant) G Moore (Respondent)   Solicitors: Equius Legal Pty Ltd (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510586
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Introduction

1. The applicant is known by the pseudonym “CEK” in these proceedings in order to protect the identity of the victim and the applicant himself.

2. The applicant applied for a working with children check clearance on 5 August 2014. On 24 August 2015 a notification letter was sent by the Children’s Guardian to the applicant informing him that his application was refused.

3. On 24 September 2015 CEK filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made on 24 August 2015, to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

4. The Act came into force on 15 June 2013. The parties conducted the hearing and made submissions on the basis that the amendments introduced into the Act in 2015 do not apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22.

5. The applicant was acquitted of murder by a jury but found guilty of manslaughter in 1983. As a result, the applicant was sentenced to prison for four years with a fixed non-parole period that expired in 1984. The applicant was in custody for approximately a month after the charges were laid, and then for a further eight months after sentencing, before being released on parole.

6. The deceased died in 1981 and at the time of her death she was an adult. The applicant and the deceased were engaged to be married. The applicant and the deceased worked in the same employment which involved significant travel.

7. The applicant is subject to a risk assessment by reason of section 15 of the Act.

8. The applicant wishes and requires to obtain a working with children check clearance in order to work as a bus driver. The applicant has been employed as a bus driver and is involved in child-related work as a bus driver. The applicant is required to obtain a clearance in order to continue with his employment. The applicant has been engaged in that employment since 2000. The applicant submits that he does not pose a real and appreciable risk to the safety of children and that an order ought to be made enabling the applicant to return to work as a bus driver.

9. The applicant is without a Working with Children Clearance now, preventing him from working in “child-related work”: section 6(2)(l) and section 8 of the Act; clause 15 of the Child Protection (Working with Children) Regulation 2013.

10. This is an application pursuant to section 27 of the Act. The application for review was heard by the Tribunal on 2 May 2016.

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

12. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

13. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

14. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children’s Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.

15. In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.

16. It is doubtful that the Tribunal may lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. Although the applicant only wishes to coach sporting teams made up of children, a conditional grant of a clearance for that purpose is not permitted by the legislation.

17. An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) restricting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal. Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited.

18. The Tribunal has been assisted by the parties’ legal representatives and written submissions on behalf of both parties.

The evidence relied upon in the hearing

19. The applicant relied upon the following documentary material:

1. Application filed 25 September 2015 attaching the letter of refusal and reasons dated 24 August 2015 - Exhibit A1;

2. Affidavit of the applicant filed 24 February 2016-Exhibit A2;

3. Affidavit of the applicant’s wife filed 24 February 2016-Exhibit A3;

4. Affidavit of Dianne Clark, Clinical Psychologist, filed 24 February 2016 annexing a report dated 28 October 2015-Exhibit A4;

5. Affidavit of Dr Christopher Cocks, psychiatrist, of 24 February 2016 annexing a report dated 18 December 2015 A5;

6. Statement of applicant’s outline of submissions filed 27 April 2016-Exhibit A6.

20. The respondent relied upon the following documentary material:

1. Documents filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) on 5 November 2015, comprising 244 pages - Exhibit R1;

2. Volume of documents filed 21 December 2015 2016 comprising records from the Supreme Court criminal proceedings comprising 201 pages - Exhibit R2;

3. documents filed by the respondent on 22 March 2016 comprising seven pages-Exhibit R3;

4. Submissions for the respondent filed 29 March 2016 - Exhibit R4.

21. The applicant and his wife gave oral evidence and were both cross-examined on 2 May 2016.

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

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

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

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

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

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

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

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

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

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

Legislative Provisions relevant to the decision

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

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

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

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

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

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units.”

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

"Object of Act

The object of this Act is to protect children:

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

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

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

33. Pursuant to section 15 of the Act the Children’s Guardian is permitted to conduct an assessment of the applicant. No issue was taken about the assessment under section 15 of the Act being triggered by the applicant’s conviction for a serious violent offence.

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

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

32. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

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

34. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

35. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

36. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

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

“However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

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

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

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

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

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

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

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

48. In the following paragraph the Minister stated:

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

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

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

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

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

52. It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

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

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

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

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

Considerations and the Evidence

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

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

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

60. Section 15 of the Act provides as follows:

15 Assessment of applicants and holders

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

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

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

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

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

61. Section 30 of the Act provides as follows:

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

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

63. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.

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

64. The applicant is not a disqualified person. The offence with which the applicant was charged, namely murder, is a serious offence. The applicant was convicted of manslaughter by verdict of the jury which heard all the evidence. There was no appeal from that conviction. The sentencing judge in his remarks on sentence said:

“The verdict of the jury necessarily involved a finding that you did not have the intention to cause grievous bodily harm or else that if you did it was as a result of provocation the nature of which emerged in evidence to which I need not now refer. In passing sentence, I am obliged to approach the matter in the light most favourable to you as I do not know the precise basis upon which the verdict for manslaughter was returned. Thus I propose to deal with you on the footing that you did not intend to cause grievous bodily harm but what you did was an unlawful and dangerous act which unintentionally caused death. The act consisted of striking the deceased on four or five [occasions].

During the course of the trial, I ruled, as a matter of law, that there was no evidence that you intended to kill your fiancée or that you were recklessly indifferent in relation to her likely death.

There is no doubt that alcohol played a large part in what occurred that night. You with [the deceased] and three others spent some hours at a restaurant during which time you consumed substantial quantities of liquor. That meal was described by others who were there, as a happy and relaxed occasion.

Thereafter something went wrong between you and your fiancée which caused you both to argue violently and which caused her to consume large quantities of tablets of various types. An analysis of her blood indicated that she had 0.195 per cent of alcohol in her bloodstream. Thus, the combination of alcohol and tablets that she had taken played not an insignificant part in her ultimate demise, although I am satisfied and the jury have found, that the blows which you struck substantially contributed to her death.”

65. The purpose of the risk assessment is protective of children and not punitive of the applicant, as stated earlier. The offence, however, was sufficiently serious to properly cause the risk assessment. The applicant has already been punished for the offence. The objective seriousness of the offence is dependent upon the facts. The subjective matters were taken into account by the sentencing judge when pronouncing sentence.

66. The applicant was given a lenient sentence by the sentencing judge. In doing so, the judge said:

“In the circumstances of the case I propose to pass upon you sentence which is substantially more lenient than that which I would normally impose on a charge of manslaughter. I regret that I cannot accede to the submission of your counsel that I should release you on recognisance or that I should sentence you to a term of periodic detention. The matter is too serious for that, but I do propose in the circumstances to deal with you as leniently as I can.”

67. The evidence gathered by the police is summarised in the “Brief to Prosecute”: Exhibit R1 page 13. The deceased died in the early hours of a Tuesday morning in 1981 in the flat which she then shared with the applicant. It was ascertained that the applicant and the deceased had been out the previous evening to celebrate the applicant’s birthday. The deceased had apparently organised a small surprise birthday party dinner for the applicant. The deceased and the applicant had been living together for approximately three months and were in the process of sending out wedding invitations for their pending marriage which was due to occur just under two months in the future. On their way to dinner, the applicant and the deceased stopped at the deceased’s mother’s home at about 7pm where they consumed part of a bottle of wine with the deceased’s mother and stepfather according to the evidence given by the stepfather at the committal and at the trial of the applicant. The couple continued to a restaurant where they were joined by three friends. At the restaurant the parties consumed dinner, drank a considerable amount of alcoholic drinks and talked until about midnight.

68. The parties all left the restaurant but the applicant and the deceased travelled in a separate car. They all arrived at a coffee shop in a nearby suburb. The three friends arrived in their car and noticed the applicant’s car in front of them. They observed the deceased running away from the applicant’s car and crying. The applicant drove off and, despite a search of the area by the three friends, neither the applicant nor the deceased were located by them. It is common ground that the applicant and the deceased then went to their unit where they argued. The applicant was driving the car despite being affected by alcohol. There was no accident. The police did not apprehend the applicant while he was drink-driving. There is no independent evidence of what happened from that point until about 7:45 am the following morning when ambulance officers were called to the unit. The ambulance officers were met by the applicant who took them to the unit where they observed the deceased lying naked on her back on the floor. The police were called after unsuccessful attempts to resuscitate the deceased were terminated.

69. The ambulance officers observed that the deceased had been the victim of a violent assault. The deceased was lying naked on her back on the floor of the unit. The deceased’s face and other parts of her body was smeared with blood. There was blood on a rug a short distance from her head and a sprayed blood pattern on a clothes basket. There was smeared blood on walls and doorways in the unit, some of which contained fingerprints of the applicant. Blood and some of the deceased’s hair were found adhering to the corner of a nearby coffee table. In the bedroom wardrobe was located two bloodsoaked towels and a portion of a light blue blouse which appeared to have been washed. The blouse appeared to match a portion of the blouse found beside the deceased. The police also located in the unit torn wedding invitation cards, a broken men’s wristwatch, an empty pill bottle, torn lady’s bikini briefs and a pair of brown corduroy pants. It was said that the last two items contained evidence of intercourse before the clothing was put on because the forensic analysis identified that human semen and vaginal cells were present.

70. The post-mortem examination established that the time of death was approximately 1:45 am on the Tuesday morning. The direct cause of death was said to be a combination of the inhalation of blood, a fractured nose referred to by the pathologist as a fracture to the “root of the nose” in the skull, and subdural and subarachnoid haemorrhages. The injuries to the face required “quite considerable” force and there were probably several blows inflicted. It was said that the deceased was likely to have lapsed into unconsciousness and was unable to cough or spit the blood out and that instant medical attention might have saved her life: Exhibit R1 page 14.

71. One of the ambulance officers gave evidence that when he asked the applicant what had happened, transcript at Exhibit R2 page 16, the applicant said:

“they had had a bit of a fight and he hit her and she landed on the floor… he thought that she had gone to sleep and had laid down next to him (sic) [her].”

72. A police officer who gave evidence in the trial said that the applicant told him:

“When we arrived home this morning we had an argument over jealousy and I pushed her head into the floor.” Exhibit R2 pages 21-22.

73. That police officer was cross-examined and challenged about that conversation. The police officer was adamant that the applicant said those words. The applicant minimised the extent of the violence by describing the assault in this way. There was no dispute in the trial about the record of interview conducted with the applicant.

74. The applicant told the police in his first record of interview made on the day that the deceased died, that he and the deceased argued on their way to the coffee shop after being at the restaurant the previous evening. The applicant said that about a month prior to that evening, the deceased told him that she’d been to bed with another man. The applicant said that this had “built up inside” of him. The applicant said that the deceased was screaming at him that the other man was “a better fuck than [the applicant] was and [the applicant] saw red and [the applicant] hit her... about four or five times…[the applicant] probably would have called her a slut because [the applicant] was very angry.” Exhibit R2 page 60. There is no indication what happened immediately prior to this outburst by the deceased.

75. The applicant also told the police in his first record of interview that the deceased took pills and he presumed she passed out, also presumably this occurred after the assault. The evidence of the forensic chemist is referred to later in these reasons and is not supportive of that statement if it was intended to convey a meaning that the deceased passed out due to ingestion of pills. The applicant said that he cleaned up her face of blood with a rag. The applicant said that he thought she hit her head on the coffee table with the front part of her face. The applicant said that he took the cover off the bed, put it over her to keep warm, lay down next to her and fell asleep: Exhibit R2 page 61. When he woke up the applicant said he could see that the deceased was seriously injured and called the ambulance. The victim was in fact deceased.

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

76. The time since the offence occurred is 34 years.

77. The applicant has not been the subject of any additional criminal or complaints of a sexual nature.

78. The applicant has engaged in prosocial activities in the community and with his family in a responsible and commendable way.

79. The applicant has worked primarily as a bus driver for the last 15 years of his working life. The applicant has worked in a number of different professions and occupations during his life prior to working as a bus driver.

80. The applicant reports that he and his wife do not currently drink alcohol and do not consume illicit drugs. It is noted that the Pre-release Report completed by a Probation and Parole Officer for the Department of Corrective Services prior to the applicant’s release from prison records the following, Exhibit R1 p 138-139:

“Of above average intelligence, this prisoner has come to terms with his offence in a satisfactory manner. He deeply regrets the incident that caused the death of his girlfriend whom he claims he loved dearly. He said he struck her a blow in a fit of jealousy during an argument over her going out with another man while he was away… The argument occurred while they were at a party and highly intoxicated. He said he is normally only a moderate alcohol consumer and has never been drug involved. [The applicant] also said that his memories of her and his offence which precipitated her death have haunted him, however he has taken a commitment to work through his traumas and push on with his life.”

81. The applicant agreed in cross examination in the Tribunal that the statement “never drug involved” recorded by the Probation and Parole Officer was not accurate. The applicant told Dr Cocks that he consumed amphetamines with the deceased. The amphetamines were purchased in Bangkok over the counter.

82. The applicant’s daughter who is now aged 27 was diagnosed with a very rare brain tumour in 2005. The applicant and his wife have dedicated the last 10 years of their lives on her health and rehabilitation. The daughter has also lost 70% of her sight and is classed as legally blind.

83. The applicant says that he is the carer for his 87-year-old mother for whom he has been granted a power of attorney and guardianship. The applicant’s mother lives in a retirement facility.

84. At the time of sentencing, the judge referred to the applicant’s character and generally prosocial life prior to the offence. The sentencing judge said at Exhibit R1, p102:

“You are a person of hitherto unblemished character and were an accomplished and respected sportsman. Various witnesses at the trial have spoken of their high regard for you. I have also read the numerous references, some 30 in number, tendered this morning and they are eloquent testimony of the regard in which you are held. I am quite certain that you are the type of person who is not likely to offend in any way again and that for you what has happened already is indeed considerable punishment.

In passing sentence on you I take into account not only your character, antecedents and background but also the fact that what you did was done in the heat of passion and in the course of an argument, both of you being substantially affected by alcohol; the fact that you have lost your employment; that you have for some reason which I do not understand had this this charge hanging over your head for almost 2 years; and all the other matters…”

85. The references and supporting evidence which the applicant has provided to this Tribunal are also eloquent testimony in support of the applicant.

86. The good character and prosocial activities of the applicant have existed both prior to and after the extremely tragic circumstance of the victim’s death.

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

87. The applicant was aged 26 years old at the time of the offence for which he was convicted.

88. The applicant has matured significantly since that time because he is now aged 60. However, the applicant says that he thinks about the events and told his psychiatrist that “he deeply regretted his actions and lives with a burden of guilt to this day.” The focus of the regret appears to be on the applicant.

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

89. The victim was aged 26 at the time of her death. The victim was particularly vulnerable due to her excessive consumption of alcohol and the intimate relationship she had with the applicant.

90. The deceased had every right to be safe in her own home and a legitimate expectation that she should not suffer fatal violence at the hands of her fiancée. The deceased victim was physically incapable of fighting for her life.

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

91. There was no difference in age between the applicant and victim.

92. The victim was the applicant’s fiancée and they were planning to be married within months of the date upon which the victim died. The offence was one of intimate violence perpetrated upon the applicant’s intended future wife. The applicant has said that he was very angry and jealous of the relationship the deceased had with another person.

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

93. The victim was not a child. Both the applicant and the victim were of the same age at the time of the victim’s death.

The person’s present age

94. The applicant is currently aged 60.

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

95. The applicant has no relevant criminal history apart from the conviction for manslaughter.

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

96. The respondent submits that the applicant is a real and appreciable risk to the safety of children.

97. The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the conduct of the applicant having appropriate regard to any expert opinion. The Tribunal is also required to consider all of the factors set out in section 30 of the Act in determining the risk. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves in the future.

98. The applicant told the psychiatrist he saw whilst he was in custody immediately after being charged, that one month prior to the offence the deceased told him that she had a one night sexual relationship with another man which the applicant could not put out of his mind. The applicant told that psychiatrist he became angry and hit the deceased twice with his fist, she fell and struck her head on the edge of a coffee table and became unconscious, they had both consumed alcohol but neither of them were seriously drunk: Exhibit R2 page 54. The applicant told that psychiatrist that he had not had jealous feelings in relation to women and was not sexually jealous of his wife from his first marriage.

99. The applicant’s affidavit relied upon in the Tribunal states that the applicant and the deceased had both taken amphetamine pills as well as consuming alcohol to excess: Exhibit A2 [9]. The applicant told Dr Cocks that the deceased and the applicant were also smoking marijuana during the day prior to her death: Exhibit A5 Report p5. The evidence of the forensic analytical chemist in the trial of the applicant was that only a very small amount of caffeine and a small amount of paracetamol (e.g. as found in Panadol) was found in the deceased’s stomach: Exhibit R2 page 48. There were no toxic or illicit other drugs present in the liver, there was alcohol present in the blood and only glucose at a level of 13.4 mmol per litre present in the urine sample taken from the deceased. In cross examination it was raised by counsel for the applicant that other specific and identified drugs may have been ingested by the deceased prior to her death, but the evidence of the chemist was that those named drugs were not found to be present.

100. The applicant has minimised the extent of the violence in his account to the psychiatrist. In his record of interview to the police close to the time of the event, the applicant admitted striking the deceased victim four or five times.

101. The applicant told Dr Cocks that “the offence was not premeditated but an impulsive reaction under emotional stress.” It is the assessment of the Tribunal that this was also an extremely violent and angry impulsive reaction. The violence was intimate and fatal domestic violence.

102. The applicant saw the clinical psychologist Dianne Clark for the purposes of the preparation of her report to submit to this Tribunal. The applicant reported that his early life was difficult due to his father’s alcohol abuse. The applicant reported that despite this difficulty he was close to his father. The applicant’s father died in 2003. The applicant reported that his relationship with his mother during his childhood and adolescence was loving and supportive “in as far as she was able.” The applicant reported to the psychologist feelings of shame and distress because of the effect he has had on his family and their lives and “the devastating and permanent effect of his behaviour” on the deceased victim’s family “which he will live with for the whole of his life.” Exhibit A4 Report p 2.The applicant reported to the psychologist that he has abstained from alcohol use. The applicant reported that he usually maintained a busy active lifestyle. The applicant has been prescribed Lovan antidepressant medication but scored within the normal range on the Beck Depression Inventory. The Depression Anxiety & Stress Scale (DASS) is a set of self-report scales which were administered by the psychologist. The applicant’s score on this scale was within normal range. The psychologist assessed that despite the applicant’s long-term use of Lovan medication he does not have a mental illness.

103. Ms Clark acknowledges that the reality is that no one can see into the future and precisely predict future dangerousness. Based on the clinical assessment the psychologist did not identify the level of risk which the applicant might pose to the safety of others including children. Essentially, the assessment by the psychologist is that the applicant is a suitable person to obtain a clearance. No other measures of risk assessment were undertaken by the psychologist. The psychologist formed her opinion based on the applicant’s report of matters to her that he could continue to drive buses.

104. The applicant has two children aged 29 and 27 and there are no adverse reports concerning the applicant’s behaviour towards them.

105. The applicant provided a report by Dr Christopher Cocks: Exhibit A5. The applicant told the psychiatrist that he was diagnosed with depression eight years ago and commenced on medication by his general practitioner. The applicant told the psychiatrist that he could not escape the feeling of guilt concerning the death of the victim in 1981. The applicant has not received any past psychiatric or psychological therapy apart from this antidepressant medication. The applicant told the psychiatrist that he previously took medication purchased in Bangkok which he assumed was amphetamines. The applicant said his use of amphetamines was sporadic and predominantly at recreational social events. The applicant told the psychiatrist he had been abstinent from drugs and alcohol for over 30 years. The applicant does not suffer from any major mental illness, personality disorder nor does he fulfil any of the criteria for paraphilia such as paedophilic disorder, in the opinion of the psychiatrist.

106. The psychiatrist used an instrument called HCR-20 to identify risk factors and future risk of violent offending. The assessment of risk of future violence offending is imprecise according to Dr Cocks. It is not possible to accurately predict whether an individual will or will not reoffend within specific timeframes but it is possible to identify risk factors that can be managed to reduce violent reoffending. In essence, the one incident of violent offending is considered by the psychiatrist be the only risk factor associated with future offending.

96. The Tribunal is aware of the caution which should be attached to risk assessments and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children’s Guardian [2016] NSWCATAD 3 at [91]-[92].

97. In essence, what expert witnesses in this Tribunal have stated is that prediction of a relatively uncommon behaviour such as violent offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment. The applicant’s psychologist appropriately acknowledges the caution usually attached to risk assessment by psychologists: Exhibit A4 Report page 5.

98. The clinical psychologist and the psychiatrist who have given evidence of behalf of the applicant both recommend that the applicant is a suitable person to obtain a clearance. Dr Cocks acknowledges that the assessment of future violence which may be perpetrated by the applicant is imprecise. It is acknowledged that it is not possible to accurately predict whether an individual will or will not reoffend within specific timeframes. The psychiatrist identifies certain risk factors. Those risk factors are not now present and were also not present prior to the applicant violently killing the deceased.

99. The applicant failed to render assistance to the deceased after his violent assault. It would appear from the forensic evidence that the applicant attempted to clean up after the assault with towels which became bloodsoaked, part of the blouse which the deceased was wearing, and by moving the blood splattered washing basket into a different position.

100. The applicant agreed in cross-examination in the Tribunal that he has not sought regular professional assistance in order to come to terms with the magnitude of his criminal behaviour. The applicant has seen a psychiatrist whose name he cannot remember, possibly on a couple of occasions, without commencing any formal treatment, mainly to obtain “peace of mind for myself to make sure I was normal.”

101. The applicant has not undertaken any anger management courses or domestic violence programs for perpetrators of domestic violence according to the evidence of the applicant before the Tribunal.

102. The impact on any children of a repetition of the applicant’s impulsive angry or violent behaviour either directly or as witnesses to that behaviour is highly likely to be abusive.

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

114. The applicant has provided information including a number of references from his wife, work colleagues and friends. The applicant relies on the psychologist’s and psychiatrist’s risk assessments.

115. The Children’s Guardian has not submitted that the applicant has failed to provide relevant information.

116. The applicant has some difficult current family circumstances and would prefer to return to work as a bus driver to help financially support his family. The sympathy which is engendered by the applicant’s current circumstances is not an insignificant factor. The applicant is caring for both his disabled daughter and his elderly mother as well as engaging in prosocial activities.

Any other matters that the Children’s Guardian considers necessary

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

118. The Children’s Guardian submits that the applicant should not be granted a working with children check clearance.

119. The respondent submits that a real and appreciable risk to the safety of children is present.

Consideration

120. The offence which triggered this assessment is a serious matter. It involves intimate domestic violence resulting in the death of a vulnerable young woman caused by an extremely violent and angry impulsive reaction by the applicant to a slight to the applicant’s self-esteem.

121. The applicant failed to render assistance to the deceased after his violent assault. It would appear from the forensic evidence that the applicant attempted to clean up after the assault. The deceased was likely to have lapsed into unconsciousness and was unable to cough or spit out the blood and instant medical attention might have saved her life. Instead, the applicant said that he took the cover off the bed, put it over her to keep warm, lay down next to her and fell asleep. When he woke up the applicant says that he called the ambulance but by then she was in fact deceased.

122. The deceased had every right to be safe in her own home and a legitimate expectation that she should not suffer fatal violence at the hands of her fiancée. The deceased victim was physically incapable of fighting for her life. The applicant fatally abused a vulnerable victim, in all the circumstances without regard to her human rights.

123. The good character and prosocial activities of the applicant have existed both prior to and after the extremely tragic circumstance of the victim’s death. The applicant was given a lenient sentence by the sentencing judge taking into account factors referred to in the sentencing remarks, which include that good character.

124. The applicant reported to the psychologist feelings of shame and distress because of the effect he has had on his family and their lives and “the devastating and permanent effect of his behaviour” on the deceased victim’s family “which he will live with for the whole of his life.” The applicant says that he thinks about the events which resulted in the death of his fiancée and told his psychiatrist that “he deeply regretted his actions and lives with a burden of guilt to this day.” The focus of the regret and guilt and the effect of his behaviour is on the applicant, not the victim or her family.

125. Apart from the payment of the then maximum amount of $10,000 to the victim’s mother ordered by the Court under section 437 of the Crimes Act 1900 (NSW), for the “considerable and serious injury from mental or nervous shock arising directly out of the death of her daughter, to whom she was very closely attached”, there appears to have been no reparative conduct undertaken by the applicant to meaningfully atone for his wrongdoing: Exhibit R2 p111. There has been no personal development by the applicant to address issues of anger and domestic violence offending behaviour.

126. There is little remorse for the victim and her family and a great deal of emphasis in the evidence of the applicant in the Tribunal upon the life circumstances of the applicant and his family. Remorse on its own, in any event, is insufficient to ameliorate risk.

127. The applicant agreed that he has not sought regular professional assistance in order to come to terms with the magnitude of his criminal behaviour. The applicant has not undertaken any anger management courses or domestic violence programs for perpetrators of domestic violence. The applicant has minimised the extent of the violence perpetrated by him.

128. It is not possible to accurately predict whether an individual will or will not reoffend within specific timeframes but it is possible to identify risk factors that can be managed to reduce violent reoffending. In essence, the one incident of violent offending is considered by Dr Cocks to be the only risk factor associated with future offending. The failure to address anger issues and domestic violence offending causes which precipitated the fatal overreaction by the applicant are a significant concern in terms of ameliorating any future risks.

129. The impact on any children of a repetition of the applicant’s impulsive angry or violent behaviour, as previously indicated, is highly likely to be abusive.

130. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.

Conclusion

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

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

133. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant.

134. The one incident of violent offending is considered, in all the circumstances under section 30 of the Act to which the Tribunal has previously referred in these reasons, to remain, despite the lapse of time and prosocial behaviour of the applicant, a significant risk factor associated with future violent behaviour.

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

136. If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children, it is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant and the failure to address anger issues and domestic violence offending causes which precipitated the fatal overreaction by the applicant, and that the applicant has not sought regular professional assistance in order to come to terms with the magnitude of his criminal behaviour, means that the existence of a real and appreciable risk to children has not been disproven.

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

Orders

138. The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 24 August 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is affirmed.

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: 20 July 2016