CFK v Children's Guardian

[2016] NSWCATAD 140

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CFK v Children's Guardian [2016] NSWCATAD 140
Hearing dates:	15 April 2016
Date of orders:	06 July 2016
Decision date:	06 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member D Kelleghan, General Member
Decision:	1) The decision of the Children’s Guardian dated 23 September 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 clause 1(1)(b) of Schedule 1 to the Child Protection (Working with Children) Act 2012- charges under section 61P and section 61I of the Crimes Act 1900 (NSW)- on appeal to the Court of Criminal Appeal the conviction and sentence in the District Court was quashed and a verdict of acquittal entered - 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 of children- paramount concern is 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:	CFK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: J Webb (Applicant) A Douglas-Baker (Respondent)   Solicitors: Baldock Stacy & Niven (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510660
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 “CFK” in these proceedings in order to protect the identity of the victim and the applicant himself. On 23 October 2015 CFK 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 23 September 2015, to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

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

3. The applicant applied for a working with children check clearance on 11 September 2014. An interim bar was imposed on 10 April 2015. On 23 September 2015 a notification letter was sent by the Children’s Guardian to the applicant informing him that his application was refused.

4. The applicant was charged with criminal offences under section 61P and section 61I of the Crimes Act 1900 (NSW). The events which caused the applicant to be charged with those offences were alleged to have occurred at a barbecue attended by male members of a sporting club to which the applicant belonged on 12 November 1995. The applicant was convicted in the District Court but the Court of Criminal Appeal later quashed the conviction and sentence and entered a verdict of acquittal. The sentencing judge imposed a fixed term of 2 years and a term of 4 years with a minimum term of 4 years to be served concurrently for each of the offences with which the applicant was charged.

5. The applicant is subject to a risk assessment by reason of section 14, Schedule 1 clause (1)(b) and the offences are referred to in Schedule 2 clause 1(1)(e) of the Act.

6. On 10 April 2015 and pursuant to section 17 (1) of the Act an interim bar was placed on the applicant engaging in any child -related work, on the basis that the charges and the allegations made resulting in those charges, raised significant concerns as to the risk the applicant poses to the safety of children.

7. The applicant wishes and requires to obtain a working with children check clearance in order to work as a residential care support worker. The applicant has engaged in other paid employment which does not require a working with children check clearance.

8. On 1 December 2014 the Children’s Guardian advised the applicant that a risk assessment would be conducted and invited him to provide additional information in support of his application.

9. On 14 August 2015 the Children’s Guardian informed the applicant by phone, letter and email that the Children’s Guardian proposed to refuse the applicant and invited him to provide further information. The applicant provided further information. However, on 23 September 2015 the applicant was refused the working with children check clearance because it was assessed that he posed a risk to the safety of children. Reasons for refusal were also provided.

10. The applicant is without a Working with Children Clearance now, preventing him from working in “child-related work”: section 6(2)(k) and section 8 of the Act; clauses 7, 14 of the Child Protection (Working with Children) Regulation 2013.

11. This is an application pursuant to section 27 of the Act. The application for review was heard by the Tribunal on 15 April 2016.

12. 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].

13. 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.

14. 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.

15. 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.

16. 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.

17. 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 work as a residential care worker, a conditional grant of a clearance for that purpose is not permitted by the legislation.

18. 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.

19. The Tribunal has been assisted by the parties’ legal representatives.

The evidence relied upon in the hearing

20. The applicant relied upon the following documentary material:

1. Application filed 21 October 2015 including a letter dated 23 September 2015 containing reasons for refusal of the work children check clearance, Grounds for the application and a letter from the applicant’s psychologist dated 17 October 2015 - Exhibit A1;

2. Statement of the Applicant filed 23 January 2016-Exhibit A2;

3. Statement of the applicant’s wife filed 23 January 2016-Exhibit A3;

4. Statement of an employer of the applicant filed 23 January 2016-Exhibit A4;

5. Statement of a long-standing friend of the applicant filed 4 February 2016-Exhibit A5

6. Statement of a co-worker of the applicant’s when he worked as a residential support worker-Exhibit A6;

7. Statement of applicant’s outline of submissions under cover of letter dated 14 April 2016-Exhibit A7;

8. Psychological risk assessment prepared by Margaret Johnson, forensic psychologist, dated 22 March 2016-Exhibit A8;

21. 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 11 December 2015, comprising 434 pages - Exhibit R1;

2. Volume of documents filed 25 February 2016 comprising section 31 material produced to the Children’s Guardian comprising 70 pages - Exhibit R2;

3. Submissions for the respondent filed 5 April 2016 - Exhibit R3.

22. The applicant gave oral evidence and was cross-examined on 15 April 2016. The co-worker of the applicant’s, when he worked as a residential support worker and the psychologist were cross-examined on the same date.

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

24. 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.”

25. 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.”

26. 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.”

27. 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)

28. 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

29. 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.

30. 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."

31. 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.”

32. 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."

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

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

“14 Assessment requirements

A person is subject to an

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

35. The applicant was properly the subject of a risk assessment due to the provisions of clause 1(1)(b) of Schedule 1 of the Act which reads as follows:

(1) Proceedings have been commenced against a person:

(a) …..

(b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.

36. The offences with which the applicant was charged are offences specified in clause 1(1)(e) of Schedule 2 of the Act. The convictions for those offences were quashed and a verdict of acquittal was entered by the Court of Criminal Appeal.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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].

43. 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.

44. 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.”

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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."

51. 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."

52. 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.

53. 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."

54. 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.

55. 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

56. 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].

57. 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.

58. 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].

59. 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

60. 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.

61. 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.

62. 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.

63. 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.

64. 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.

65. 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.

66. 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

67. The applicant is not a disqualified person. The charges pursuant to sections 61P and 61I of the Crimes Act 1900 (NSW) are serious charges. The conduct engaged in by the applicant is serious not just because it was disrespectful to the victim’s human rights, and even though he was acquitted by the Criminal Court of Appeal, the admitted conduct was with a high school student aged 17. The victim is therefore a child. Because the victim was over the age of 16 it is possible that she may have consented to the sexual acts which occurred on the day of the barbecue when the incidents leading to the charges occurred.

67. The applicant has been acquitted of the offences with which he was charged. If the applicant had been convicted and not acquitted by the Court of Criminal Appeal then schedule 2 of the Act would apply. The onus of proof in a criminal trial is “beyond reasonable doubt”, whereas in a civil matter and for the purposes of this risk assessment the civil onus “on the balance of probabilities” is the relevant standard as modified by section 140(2) of the Evidence Act: see BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32].

68. The purpose of the risk assessment is protective of children and not punitive of the applicant, as stated earlier. The offences with which the applicant was charged and acquitted are matters sufficient to cause the risk assessment.

69. The applicant was charged with attempted sexual intercourse without consent and sexual intercourse without consent both of which were child-related offences due to the age of the victim.

70. The Tribunal was not informed when or indeed whether the victim was required by the applicant for cross-examination. There was no application for an adjournment to have the victim made available for further cross-examination about matters which presumably she had already been confronted with when she gave evidence in the criminal matter. The Tribunal was not informed whether either party issued a summons for the victim to give evidence. It appears from the Tribunal file that no summons to provide oral evidence was ever issued to any person or body during the course of these proceedings.

71. The victim was aged 17 and previously knew one of the adult members of the sporting club to which the applicant belonged. That sporting club was having a barbecue at which only men were present. The victim walked past the house at which the barbecue was occurring. One of the men called out to her and invited her to join the barbecue. There was evidence at the criminal trial and referred to in the Court of Criminal Appeal that the victim joined the barbecue party and consumed 6 stubbies of beer in two hours. The victim left the party to see her friend who lived nearby. The victim obtained 2 or 3 condoms from the friend, on her evidence, or on the friend’s evidence, she obtained 5 or 6 condoms. The victim’s friend attempted to dissuade the victim from returning to the barbecue. The victim returned to the barbecue and continued drinking alcohol.

72. The victim went into the house and had consensual sexual intercourse in a bedroom with one of the men that she met. The other men at the barbecue were able to look into the bedroom and could see the victim and that man having consensual sexual intercourse. The victim went to the bathroom and was approached by another of the men whom the victim alleged had sexual intercourse with her without her consent by inserting his fingers into her vagina. The jury acquitted this man of that charge.

73. The victim then went into another bedroom where she was given a cigarette. When she tried to leave the room she could not do so because someone was holding the door closed. When the door gave way the same man came back into the room and engaged in three separate acts of sexual intercourse. Whilst this was happening the applicant took photographs of both of them with a camera he found in the house. The man later admitted to two of the acts of intercourse, denied the third alleged act of intercourse, and maintained the two admitted acts were consensual. The jury acquitted the man of the three charges of unlawful sexual intercourse.

74. The applicant and two of the other men claimed that then consensual group sex occurred with the victim the focus of that activity. The jury did not accept the evidence of the applicant or the other two men. The jury preferred the evidence of the victim, as did the sentencing judge, who all heard the victim and each of the accused give evidence.

75. The victim gave evidence that the two other men attempted to put their penises in her mouth and that the applicant was lying on top of her in an attempt to have vaginal sexual intercourse. The victim gave evidence that the two other men encouraged the applicant in his attempts to have sexual intercourse. A photograph was admitted into evidence at trial of the applicant attempting to have vaginal sexual intercourse with the victim. The victim gave evidence that one of the men became angry because he wanted a “head job” and she started “freaking out” and to “panic”. The victim also gave evidence that there were flashes of light which the sentencing judge was satisfied were flashes from a camera. The sentencing judge found that this was a “degrading and humiliating experience for the complainant” and the fact that the jury found she had earlier consented to sexual intercourse with two of the men did not “lessen the humiliation and indignity” “nor the helplessness and panic which she experienced”. The sentencing judge formed the view that the victim was “powerless” and “used as an object for [the applicant’s and the other two men’s] sexual gratification.”

76. The applicant did not continue with his efforts to have sexual intercourse with the complainant. The applicant said that because of the alcohol he had consumed he could not maintain an erection. The applicant did not ask the complainant whether she consented and it was not something that he thought about at the time. The applicant says now that he should have thought to ask whether she consented. One of the other men then did have vaginal sexual intercourse with the complainant. It was at this time that the complainant was crying and sobbing according to the description of the sentencing judge. It was accepted by the sentencing judge that one of the other men held the complainant’s ankles so that her legs were as far apart as they could go, she resisted but could not close her legs.

77. The victim gave evidence that she was aware of a camera flashing and that it was degrading. The victim said she asked the men why they were doing what they were doing but she received no response. The victim said that she asked them to stop, but there was no response. The applicant says that he did not turn his mind to whether she consented to group sexual activity. There was a photograph admitted into evidence which showed this man having sexual intercourse with the victim and somebody holding her legs. When the man removed his penis from her vagina the victim got up and went to the bathroom. She was bawling and crying loudly in the bathroom and was a ‘mess’.

78. The victim then went from the bathroom into another bedroom and sexual intercourse occurred with another man who was ultimately acquitted of three charges of unlawful sexual intercourse.

79. The applicant says that the victim asked him to help her find her clothes. It would appear that the victim was prevented from leaving the bedroom at some point in the activities that occurred that day. It would also appear from the fact that she asked for the applicant to help find her clothes that she could not have left, other than in a naked state. The applicant agreed that the victim may have been fearful, and it logically follows that it was more than possible that the victim was incapable of resisting if she did not want to remain there with a group of sexually aroused grown men aged between 24 and 38 years. There was a power imbalance between the victim and the men.

80. The victim then left the house and made a complaint immediately to her friend in the nearby house. The victim said that she had been “gang raped” but did not want to go to police. The victim, however, was taken to the police and medically examined.

81. The fact that the Court of Criminal Appeal found the verdict against the applicant in respect of the attempted sexual intercourse charge unsafe and unsatisfactory despite the admission by the applicant, which admission was explained on the basis that there merely had been no discussion about consent by the applicant with the victim, does not mean that on the balance of probabilities the event did not occur as asserted or described by the victim and accepted by the sentencing trial judge and jury.

82. The fact that the victim did not give other than general evidence and there was an absence of evidence from the victim placing the applicant at the scene of the second group activity where the victim’s ankles were being held by one of the men was sufficient for the Court of Criminal Appeal to find the verdict against the applicant unsafe and unsatisfactory. A finding on the balance of probabilities is still available based on the whole of the evidence.

83. The sexual activity which occurred was deviant in nature and context. It also involved the taking of photographs of group sexual activity. The victim was obviously affected by alcohol and she was in the company of a group of much older men. It is highly unlikely that the victim would have consented, if she was asked, to being photographed while engaging in sexual activity given her statements that she found that process disturbing and degrading. It is also highly unlikely that the victim, who was not asked or given any choice, consented to the group sexual activity in which the applicant participated.

84. The applicant stated to his psychologist that he “believes he went along with the situation due to his immaturity at the time and peer group pressure.” Exhibit A8 [18]. The victim who was the only female and much younger than the applicant, was clearly less able to have her reluctance or lack of consent accepted by the group of men than the applicant, who could have resisted the peer pressure he says he experienced.

85. The Children’s Guardian submits that there is sufficient evidence to demonstrate that the applicant’s attitude to the complainant victim and the circumstances of the seriousness of the ‘trigger’ matters and conduct of the applicant, reveals that the applicant poses a real and appreciable risk to children and young people.

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

87. The time which has elapsed since the afternoon of the barbecue is approximately 20 years.

88. The applicant has not been the subject of any sustained criminal or other complaints of a sexual nature.

89. The applicant has engaged in prosocial activities and apparently raised a family in a responsible and commendable way.

90. The applicant has worked primarily as a truck driver but has recently expressed a desire to work as a residential care worker. The applicant has also worked as a security guard on a frequent basis.

91. The applicant told his psychologist that he rarely goes out and rarely drinks alcohol. The reason given to the psychologist for that behaviour is that he feels a strong need to maintain control of his behaviour and thoughts, which is more difficult under the influence of alcohol when he fears doing something he will later regret.

92. The applicant told the psychologist that apart from the events leading to the charges 20 years ago, the applicant has remained faithful to his wife. The applicant was in a relationship with his now wife at the time of the offences and the subsequent trial.

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

93. The applicant was aged 24 years old at the time of the offences for which he was charged, convicted and subsequently acquitted on appeal.

94. The applicant has matured significantly since that time. It is also clear that the applicant continues to suffer the negative effects of his experience.

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

95. The victim was aged 17 at the time of the barbecue. The victim was vulnerable due to her age and relative inexperience. The victim was very unwise to place herself in a situation of risk but was entitled to assume that she would not be humiliated and exploited in the way that she was by a group of older males.

96. The victim was found by the sentencing judge to have been “humiliated, distressed and deeply affected by the group sexual activity which she suffered” and that she would “continue to suffer for a long time yet to come”. The sentencing judge accepted that the complainant was “vulnerable at the time” by reason of her age and her earlier psychological problems. The sentencing judge also found that even after a period of healing the complainant would be “left with residual and very unpleasant memories”. These are all appropriate findings consistent with the evidence before the Tribunal.

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

97. The difference in age between the applicant and the victim was seven years. The victim was still in High School and considered a child under the Act.

98. The victim was not known to the applicant prior to the day of the barbecue.

99. The applicant has biological children of his own. The applicant agreed that he is hopeful that the same situation as he found himself in does not arise with his own son. It is not clear to the Tribunal whether the applicant has adequately addressed the issue of respect for human rights of other people including members of the opposite sex, with his own children.

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

100. The applicant knew that the alleged victim was young and substantially younger than the applicant. The applicant was indifferent as to the age of the victim.

101. The applicant should have acted more protectively towards the victim due to her obvious youth. To his credit, the applicant assisted the victim to find her clothing prior to her leaving the premises.

The person’s present age

102. The applicant is currently aged 45.

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

103. The applicant has no relevant criminal history. The applicant told the psychologist consulted for the purposes of preparing a report for the Tribunal that he has two driving offences and no other criminal convictions: Exhibit A8 [34].

104. The respondent relies upon the charged offences and the circumstances giving rise to those charges.

105. The respondent identifies that the applicant has subsequently sought and obtained youth work at a facility for vulnerable young persons aged between 13 and 17. The facility has vulnerable young girls as residents. The applicant has not and did not disclose to his employer the circumstances of the alleged offences and the extent of his admitted participation in that activity. It is a factor which would have been relevant to consideration by his employer of any risk that the applicant may pose to those vulnerable young people with whom he worked.

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

106. The respondent submits that the applicant is a risk to the safety of vulnerable young persons, including children based upon the applicant’s carelessness and preferential consideration of his own interests clearly shown by his previous engagement in group sexual activity without ascertaining the consent of the victim.

107. The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the conduct of the applicant independent of any expert opinion. 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.

108. The applicant has not undertaken any sex offenders’ courses or counselling in respect to the alleged offences. The applicant has not undertaken any counselling or provided evidence of that counselling if it has occurred, addressing his inability to assert himself in the group and refrain from participating in the group sexual abuse. There were two other attendees at the barbecue who did not participate in the abuse of the victim. The failure by the prosecution to call one of those men at trial added to the Court of Criminal Appeal’s concern about the safety of the verdicts of guilty.

109. The applicant has minimised his role and the role of his co-accused in the offences which were quashed by the Court of Criminal Appeal. The circumstances of that particular day were matters within the control of the applicant. The applicant said in his statement, Exhibit A2 at [41], that he “regularly” discusses with his “15-year-old daughter the choices she has with her behaviour and how she should not put herself in a situation that could potentially cause her harm”. The applicant has not said in his statement that he frankly had the same type of discussion with his son.

110. The applicant consulted with Ms Johnson, forensic psychologist who undertook a semi structured interview of 3 ½ hours, perusal of documents supplied to her and psychometric testing to provide a report dated 22 March 2016: Exhibit A8. The applicant told the psychologist that he wishes to work as a youth worker and requires a working with children check clearance for that purpose. The applicant told the psychologist that he believed the female victim was over the age of 18 and was consenting: Exhibit A8 [7]. The applicant told the psychologist that he has a fraught relationship with most of his family and experience the lack of sense of support or encouragement from his parents. The applicant has a positive relationship with his mother. Currently, the applicant works as a truck driver as well as undertaking security work in the hours around his truck driving obligations. The applicant has never lost a job due to misconduct.

111. The applicant began drinking alcohol regularly from the age of 16 on weekends after engaging in sport. This pattern continued until he was aged 24 and coincided with the events leading to his incarceration. The applicant now rarely drinks alcohol in order to maintain control of his behaviour and for fear of doing something he will later regret: Exhibit A8 [14].

112. The applicant has preferred to socially isolate himself since the event which led to his incarceration. The applicant has several enduring male friendships and one close male friend. The applicant says that his most influential male role model is his father-in-law: Exhibit A8 [15]. The applicant told the psychologist that “he believes he went along with the situation due to his immaturity at the time and to group pressure.” Exhibit A8 [18].

113. The applicant has two children aged 19 and 15.

114. The applicant told the psychologist that he decided to end his life a few weeks after the incident and had “purchased a rope and was in the process of setting it up to hang himself when his now wife and her sister found him and convinced him not to proceed”: Exhibit A8 [24]. There was no evidence of any active psychopathology or any suggestion of a personality disorder in the profile obtained by the psychologist administering the Personality Assessment Inventory. The applicant stated that he has since had fleeting thoughts of self-harm.

115. The applicant told the psychologist that shortly after the incident, and the charges for the offences were laid against him, he blamed the victim for lying and causing the situation. Later he said after his suicide attempt and incarceration he was more able to see the situation from her point of view and said that he was concerned for her future as a result: Exhibit A8 [32]. The experience of incarceration created for the applicant memories of “situations which he continues to wish to forget”: Exhibit A8 [33].

116. The applicant appears to have interpreted the quashing of his conviction by the Court of Criminal Appeal as support for his opinion, at the time of the sexual encounter with the victim, that she was consenting: Exhibit A8 [35]. The applicant’s explanation for the admission that he made in his record of interview concerning the absence of consent for his attempt to have sexual intercourse, is that there was simply no conversation between him and the victim about consent or otherwise. However, on the basis of the whole of the evidence, including the applicant’s explanation about his admission to police which was considered a possible explanation which could have been true, the verdict was therefore held on appeal to be unsafe and unsatisfactory. The onus on the prosecution was to prove all matters beyond a reasonable doubt. The Court of Criminal Appeal also concluded that there was no doubt that at some stage the victim indicated she did not want any more sex and she became distressed.

106. The jury and the sentencing judge preferred the evidence of the victim to that of the men. The applicant gave evidence that after his unsuccessful attempt at sexual intercourse the victim was crying. The applicant was the person who commenced taking photographs of the victim which she later said was degrading and the photographs show the victim’s legs being held by her ankles as sexual intercourse was occurring. The victim also gave evidence that she asked the men to stop. It would appear, as the sentencing judge found, that although the applicant was later remorseful, the victim spoke up, but she was ignored and it was more likely that the applicant’s “motives were for pure sexual gratification and disregarded the rights of the victim”.

107. Of course, as previously observed, the standard of proof in criminal matters is proof ‘beyond reasonable doubt’. The civil standard is not as exacting. The jury is the fact-finding tribunal and the judge does not normally make findings of fact in a criminal trial (unless sitting in a judge alone trial). The trial judge makes rulings on admissibility and the effect in law of factual matters produced as evidence in a trial.

108. 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].

109. In essence, what expert witnesses in this Tribunal have stated is that prediction of a relatively uncommon behaviour such as sexual 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 acknowledges the caution usually attached to risk assessment by psychologists: Exhibit A8 [41].

110. Because the applicant has not been convicted of any offence, many if not all of the actuarial risk assessments are not applicable.

111. The applicant has seen Margaret Johnson for the purposes of conducting a risk assessment. Factors which are relevant to the expert assessment of risk are dynamic risk factors. Many of those factors rely upon the report made to the psychologist by the applicant. The psychologist utilised the Risk for Sexual Violence Protocol (RSVP) in an attempt to assess the current risk. According to this measure the psychologist assesses the applicant’s risk of sexual abuse is low.

112. The factors which are identified as protective against the applicant’s future risk of sexual offending are set out in Exhibit A8 at [43]. It is obvious that other than the charges, which were later quashed, there are no reported concerns about the applicant. The applicant shows no psychopathic characteristics according to the test administered by the psychologist. The aspects of risk management identified by the psychologist in discussion with the applicant are that in the workplace the applicant considers he should work in conjunction with another worker when tending to an individual teenager’s needs and if he was concerned with a specific person he would discuss this with his supervisor to seek guidance. The applicant’s self-imposed social isolation in order to reduce risk of being perceived by others as inappropriate was not considered helpful to the applicant. The applicant proposes to be more open in his social awareness and less fearful and would seek professional help if this was not achievable: Exhibit A8 [46].

113. Having regard to all the circumstances, the Tribunal finds on the balance of probabilities that the events described by the complainant victim to the police and the subject of evidence during the criminal trial more likely than not occurred. The applicant has agreed with many of the factual matters referred to in the evidence. The respondent submits that the applicant knew that the victim did not consent or was recklessly indifferent to whether the victim consented or not to the sexual abuse to which she was subjected.

114. The Tribunal finds that there is an unacceptable risk of harm posed by the applicant to children having regard to all the circumstances referred to in the preceding paragraphs. The Tribunal cannot accurately predict whether the conduct of the applicant will be repeated. The evidence from the applicant is not persuasive that there is no risk of repetition. If it is repeated behaviour the impact on children is likely to be significant and adverse to their healthy development.

115. The applicant has not shown any real insight into the psychological and emotional impact on the victim. Instead, the applicant appears preoccupied with the psychological and emotional effect on him of being identified in the community as a sexual abuser, even though he has no criminal convictions.

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

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

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

Any other matters that the Children’s Guardian considers necessary

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

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

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

Consideration

132. The behaviour and conduct which triggered this assessment is a serious matter. The Tribunal is satisfied that the behaviour and conduct of the applicant was deviant and this extreme event was inconsistent with his professed prosocial attitudes. The applicant’s subsequent employment in residential care work with 13 to 17-year-old disadvantaged youths without disclosing his previous history demonstrated a lack of insight which he otherwise is now able to express verbally to the psychologist, Ms Johnson. The Tribunal is disconcerted that the applicant could consider he could work in this area without fully disclosing his prior history.

133. The applicant was a participant in an event which was a clear abuse of the victim’s human rights and dignity.

134. The applicant poses an unacceptable risk of harm to the safety welfare and well-being of children.

135. The harm perpetrated by the behaviour of the applicant is likely to resonate with the complainant victim and her family for many years to come.

136. The applicant has clearly been affected by the experience of the trial, incarceration and social stigma and this may be sufficient to discourage the applicant from behaving in a similar manner in the future.

137. The behaviour, if repeated, would be more likely than not to do significant harm to children.

138. The applicant has identified factors which mitigate in his favour. The applicant has been supportive of his children. By all reports, the applicant is a person who is respected in his community. The applicant has no relevant criminal history. The applicant told the psychologist consulted for the purposes of preparing a report for the Tribunal that he has two driving offences. The applicant has engaged in prosocial activities. The sentencing judge also observed those characteristics were present at the time of sentencing. Those factors did not stop the applicant from behaving as he did.

139. The applicant has not acknowledged or shown any developed insight into the effects of his conduct. The applicant has shown remorse. The applicant’s parole officer reported that the applicant was “contrite” and would like to “revisit” that day but that the applicant was not sure how much of his regret derived from his own loss and how much from the victim’s painful experience. The respondent contends that any remorse shown was for the applicant’s own position rather than for the consequences to the victim. Remorse on its own, in any event, is insufficient to ameliorate risk.

140. 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

141. 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.

142. 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.

143. 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.

144. 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.

145. 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 subsequent history means that the existence of a real and appreciable risk to children has not been disproven.

146. 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

147. The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 23 September 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

Amendments

07 July 2016 - Amended publication restriction and corrected typographical errors.

Decision last updated: 07 July 2016