CFT v Children's Guardian (No 2)

[2016] NSWCATAD 221

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CFT v Children's Guardian (No 2) [2016] NSWCATAD 221
Hearing dates:	9 June 2016
Date of orders:	06 October 2016
Decision date:	06 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member Prof P Foreman, General Member
Decision:	(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 30 October 2015 is refused and dismissed.
Catchwords:	ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- disqualifying offence under section 18 of the Crimes Act 1900 (NSW) for murder conviction and sentenced to a minimum term of 16 years and an additional term of 5 years 6 months imprisonment – appeal against conviction dismissed and leave to appeal sentence refused - released on parole on 28 July 2015 - balance of additional term to expire on 22 November 2020- assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence - onus of proof- onus of proof not discharged by applicant- enabling order refused.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and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) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (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 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 (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] NSWSC 1602 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 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BQJ [2016] NSWSC 869 CFT v Children’s Guardian [2016] NSWCATAD 92 CJT v Office of the Children’s Guardian [2016] NSWSC 738 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] NSWIRComm 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 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 SS v Department of Human Services (NSW) [2010] NSWDC 279 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 T v H and Ors [1985] NSWSC, Unreported 19/12/1985
Category:	Principal judgment
Parties:	CFT (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: G Moore (Respondent)   Solicitors: CFT (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510682
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. This is an application commenced on 30 October 2015 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The Children’s Guardian informed the applicant who is referred to as “CFT” in these proceedings, that due to his conviction and sentence on 23 February 2000 in the Supreme Court of New South Wales (and the outcome of a subsequent unsuccessful appeal from that conviction), of an offence for murder under section 18 of the Crimes Act 1900 (NSW), he was not eligible to be granted a Working with Children check clearance.

2. The applicant was found guilty and sentenced for murder to 16 years and an additional term of 5 years 6 months imprisonment. The Appeal from that conviction was dismissed and leave to appeal the sentence was refused on 29 November 2001 by the Court of Criminal Appeal. The offence is one which is specified within Schedule 2 of the Act.

3. An order has been made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. 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.

4. The applicant was advised on 2 October 2015 that he was a ‘disqualified person’ due to the conviction for the offence. The application to the Children’s Guardian was lodged with the Children’s Guardian on 6 September 2015.

5. The hearing was adjourned on the application of the respondent earlier this year and that decision is reported as CFT v Children’s Guardian [2016] NSWCATAD 92. The matter was then heard on the 9 June 2016 as indicated in that decision. The applicant represented himself again on 9 June 2016.

6. The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The applicant told the Tribunal that he wishes to work as a chef or in his own catering company and requires a working with children check clearance. An enabling order would permit the applicant to work with children in any child-related work even though the applicant seeks the order for a limited purpose. The respondent opposes the application for an enabling order and the grant of a working with children check clearance.

The Evidence

7. The matter was commenced by an Application filed 30 October 2015 attaching a letter from the Children’s Guardian dated 2 October 2015, and included an application for Stay or Interim Order. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal is as follows:

1. Medical Certificate from a General Practitioner dated 7 June 2016 stating that the applicant was unfit for work between 7 and 9 June 2016 inclusive due to “URTI”: Exhibit 1;

2. Application to the Tribunal filed 30 October 2015 and attaching the letter from the respondent dated 2 October 2015: Exhibit 2;

3. Affidavit of CFT filed 8 March 2016: Exhibit 3;

4. Report by clinical psychologist Mr Istvan Schreiner dated 10 February 2016 and filed 11 February 2016:Exhibit 4;

5. Outline of Submissions of the applicant filed 24 February 2016: Exhibit 5;

6. Written Submissions for the applicant dated 1 November 2015: Exhibit 6;

7. Documents filed for the respondent on 23 December 2015: Exhibit 7;

8. Further Documents filed for the respondent on 6 January 2016: Exhibit 8;

9. Further Documents filed for the respondent on 1 March 2016: Exhibit 9;

10. Further Documents filed for the respondent pursuant to section 31 Request to Corrective Services on 18 April 2016: Exhibit 10;

11. National Criminal History Check for CFT issued 4 April 2016: Exhibit 11;

12. Outline of Submissions of the respondent filed by the respondent on 23 December 2015: Exhibit 12;

13. Respondent’s Supplementary Submissions filed 22 April 2016: Exhibit 13.

8. The applicant objected to the receipt of some of this evidence by the Tribunal. In particular the supplementary submissions, it was submitted by the applicant, were characterised more appropriately as submissions in reply, the criminal history contains an offence for which the applicant was found not guilty, there was also repetition of material and some of it has no relevance to the application. The submissions are read as submissions, not evidence, and there is no prejudice to the applicant by receiving written submissions which address the issues and to which the applicant has an opportunity to respond and has indeed responded. As stated in the submissions they refer to the additional material before the Tribunal received since the previous submissions were submitted.

9. The applicant, with respect, has made cogent submissions and raised some important points to be considered on an application such as this one. They will be referred to in more detail later in these reasons.

10. The Tribunal received and was also assisted by the written submissions provided by both the applicant and respondent as mentioned in the previous paragraphs of these reasons.

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

Legislative provisions

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

13. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.

14. The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.

15. There is no relevant definition of “child abuse” contained in the Act.

16. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence 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”

17. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

“The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.”

18. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition of abuse contained in section 4 (1) of the Family Law Act 1975 (Cth).

19. The offence with which the applicant was charged and convicted is one which falls within clause 1(1)(a) of Schedule 2 of the Act. Therefore, the applicant is treated as a “disqualified person”. By reason of section 18 (1)(a) of the Act the Children’s Guardian must not grant a working with children check clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act. The offence of murder was added to Schedule 2 of the Act on 29 October 2014. Section 52 of the Act permits amendment of Schedule 1 and Schedule 2 of the Act to be amended by Regulation. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offence. The offence with which the applicant was charged was murder, in the circumstances referred to later in these reasons.

20. An enabling order is sought pursuant to section 28 of the Act which provides:

“28 Orders relating to disqualified and ineligible persons

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

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

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

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

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

because the person is a disqualified person.

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

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

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

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

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

21. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act.

22. A person is not permitted to engage in “child-related work” unless they hold a working with children check clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage in child-related work or work which requires that the applicant obtains a working with children check clearance. The work which the applicant may wish to engage in will involve working alongside apprentices who are under the age of 18 years. The applicant is also apparently required by some persons who might employ him, to have a clearance. As submitted by the respondent the issue is not really germane because wherever the applicant wishes to work, and there is a requirement for a clearance, the nature of the work is irrelevant, if it simply involves child related employment.

Standard of Proof and Onus of Proof

23. It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

Required Considerations

24. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are:

“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.”

25. The Children’s Guardian received information pursuant to section 31 of the Act from the various government agencies, including the police and the courts. That information was tendered in evidence and mentioned earlier in these reasons: Exhibits 7 to 10.

26. It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children’s Guardian, at [4], [25], [27].

27. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

28. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28 (7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

28. The discussion which follows is repetitive of matters set out in earlier judgments of the Tribunal, but is set out in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act 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; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children’s Guardian; Children’s Guardian v BQJ [2016] NSWSC 869. The law applied to this decision is therefore set out in these reasons.

29. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “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 69, 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); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

30. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

...

[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

32. In the matter before the Tribunal the applicant has been convicted of an offence referred to in Schedule 2 of the Act. The applicant has also been charged with other offences which are referred to in more detail later in these reasons.

Other matters

33. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (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 forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal 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 restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence which occurred: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any other criminal charges are also able to be considered, if appropriately relevant, for the same reasons.

35. The objections raised by the applicant to the material filed by the respondent is answered by reference to these provisions. The Tribunal will weigh the evidence provided by this material and give it appropriate importance having regard to the contentions of the applicant. Where the material is irrelevant it can have no weight. Because the documents are produced by different agencies it is understandable that there is some repetition of a limited category of documents. For example, the fact of the conviction is repeated in documents. The applicant has had ample opportunity to address all of the material in his written and oral submissions to the Tribunal. The applicant was suffering from “URTI” for which he was taking antibiotics and cold and flu medication on the day of the hearing: see Exhibit 1. The Tribunal was made aware of the applicant’s illness and the applicant was able to properly represent himself on the day of the hearing despite feeling ill. The applicant was informed that he could ask for a break when he needed one. The applicant did not require an adjournment of the hearing. The Tribunal was impressed with the applicant’s ability to address the issues thoughtfully and cogently despite his illness.

36. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act 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.

37. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, 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] NSWIR Comm 101 at [130].

Consideration of the evidence

38. The evidence received by the Tribunal is required to be considered under each of the eleven subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others. However, each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

39. The offence is a serious offence. The applicant agreed that this was the most serious of offences and said there was no “shying away from that”.

40. The offence occurred on 11 April 1996. The applicant and his co-accused were both convicted of murder. The co-accused was sentenced to 19 years imprisonment, being a minimum term of 14 years and an additional term of 5 years. The applicant has been released from prison on parole since 28 July 2015.

41. The conduct of the applicant in relation to the offence of which the applicant was convicted is also concerning and has ramifications upon his capacity to be considered safe with children.

42. The sentencing judge identified that there was common ground between the accounts which the applicant and the co-accused gave in their interviews to the police and their evidence at trial. The applicant became acquainted with his co-accused at a hotel where the co-accused operated a business serving food. The co-accused advanced $16,500 to the applicant by way of a loan. The applicant acknowledged that he obtained the advances of money in circumstances where he deceived the co-accused. The money was used for gambling and was subsequently lost by the applicant in that pursuit. The applicant was not in a position to repay the loan. The applicant became familiar with the victim at a coffeehouse where a card game in which the patrons played for money was conducted. The victim operated a business restocking cigarette vending machines. The applicant persuaded the victim that he was able to arrange the supply of cheap cigarettes through his contacts. The victim believed on the evening of his death that he was travelling to a warehouse where he could exchange the cash he was carrying ($58,500) for a large consignment of contraband cigarettes.

43. The applicant and his co-accused met at the applicant’s residence. They then purchased 2 pairs of gloves, 2 knives, a tarpaulin, and one tin of petrol. The applicant and the co-accused both denied having any appreciation of the sinister purpose for these items. After ensuring that the truck in which the victim and the applicant were driving was not being followed, and the victim was therefore on his own, the co-accused drove the truck with the victim in between him and the applicant. The truck later stopped and the victim was stabbed. Both the applicant and the co-accused blamed each other for the stabbing. Each of them asserted ignorance of the sinister purpose of the other. They both acknowledged that money was removed from the victim’s jacket. The applicant then drove the co-accused’s car with the tarpaulin placed on the driver’s seat because the applicant was covered in blood. The truck and the car proceeded to a different part of Sydney where the victim’s body was removed from the truck and left by the side of the road. Further cash was removed from the jacket of the victim. The victim was doused in petrol and the body set alight. There were differences in their accounts as to who removed the money and who set fire to the body.

44. The vehicles then left the scene but were witnessed by several occupants of other vehicles which were in the area. The burning body and their vehicles’ rapid exit from the area apparently attracted other people’s attention. The vehicles proceeded to the applicant’s residence and thereafter the 2 vehicles were driven to a different part of Sydney to that where the body was set alight. The truck was then set alight with the applicant’s blood stained clothes inside the truck so they were also destroyed.

45. The sentencing judge said that “this was a cold-blooded and shocking crime”. The deceased was led into a trap where he was alone and was outnumbered. The victim “was repeatedly stabbed, such that he died almost at once.” The sentencing judge had no doubt that the applicant knew there were no cigarettes for purchase and was luring the victim into a trap. The sentencing judge was satisfied that the applicant had a “premeditation of murder.” The sentencing judge also accepted that the co-accused had a “premeditation of murder.” The sentencing judge accepted that the applicant was the dominant party in the enterprise, planned the crime, seduced the victim into believing there were cigarettes on offer, and made purchases of tools with which the murder was completed.

46. The trial lasted 55 days during which the brother of the victim sat in court. The sentencing judge did not accept that the applicant was genuinely remorseful. The sentencing judge considered that “[w]ithout an acceptance of responsibility, I cannot accept that there is genuine remorse.” The applicant did not accept any responsibility for the victim’s death nor for the robbery. The applicant presented himself to the police with a story motivated by ‘self-interest’ and was a ‘pre-emptive strike’ against his co-accused. The applicant omitted his role in the events. The applicant also sought a discount on his sentence for his self-serving ‘assistance’ to the police. The sentencing judge considered that the account of the applicant was “in significant respects, untruthful, incomplete and unreliable.”

47. The co-accused was considered by the sentencing judge, “through weakness”, to have allowed himself to be dominated by the applicant. The sentencing judge believed that the applicant was the dominant figure but without the co-accused he may not “have had the courage or the ability to achieve his evil objectives.”

48. The sentencing judge in his remarks on sentence said that the criminality for which the applicant was sentenced is “the most serious in the criminal calendar”. The applicant has conceded that the offence is on the scale of seriousness, at the highest end.

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

49. The murder occurred approximately 20 years ago.

50. The conduct of the applicant since that time has not been the subject of any further criminal offences and there is no other adverse conduct relied upon by the respondent.

51. The lapse of time between the offence murder and the current application might be thought to be evidence of a minimal risk of recurrence of the offending conduct. The Tribunal considers that there are other matters which are more significant in terms of the risk posed by the applicant than his apparent good behaviour since the offence.

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

52. The applicant was aged 28 at the time of the offence.

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

53. The victim of the murder was an adult at the time of the offence. His age is unknown. The victim was lured into a trap, on the urging of the applicant, on his own and in a deserted location.

54. The applicant states in his submissions that the victim was approximately 49 years of age.

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

55. The difference in age between the victim of the murder and the applicant is not known. The victim was an adult. The applicant stated in his submissions that the victim was older than the applicant.

56. The applicant submitted in his submissions to the Tribunal that the difference in age was about 22 years.

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

57. The victim was not a child. The offence had nothing to do with children.

The person’s present age

58. The applicant is currently 47 years old.

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

59. The applicant has a criminal record for an offence other than the offence which renders him a disqualified person. The criminal history includes a record of two offences for which the applicant was acquitted. This was a point of contention by the applicant. The document produced from the National Crime Check only records the murder conviction: Exhibit 11.

60. The applicant was given the benefit of a section 556A of the Crimes Act, good behaviour bond for the offence of ‘steal from a dwelling’ in 1993, after a plea of guilty. The applicant pleaded guilty to stealing “2 Gold rings, 1 Gold chain with a Jesus icon and aeroplane [icon?], and 1 Gold chain with cross”. The applicant returned the jewellery to the owner after he had pawned it, but not before the police became involved. The equivalent sentencing provision today is section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Act provides in section 5 that “conviction” is defined as including “a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction”. In other words, for current purposes the section 556A bond is treated under the Act as a ‘conviction’. The ‘conviction’ and the dismissals contained in the applicant’s criminal history produced from ‘Crimtrac’ are not taken into account by the Tribunal in assessing the risk the applicant may pose to children.

59. The applicant has denied that he was guilty of the offence which renders him a disqualified person. However, in a letter dated 14 March 2015 to the State Parole Authority the applicant admitted his guilt, for the very first time, to the murder of the victim. Subsequently, in submissions made to the State Parole Authority on 14 July 2015, the solicitor for the applicant stated that the applicant “does not admit and cannot admit to actually killing [the victim] because he did not do this but he feels responsible for the death of [the victim] notwithstanding.”

60. On 13 March 2015 the applicant submitted lengthy submissions to the State Parole Authority in which he said: “I still maintain that I am innocent of the murder of [the victim].” The applicant was also at that time seeking an inquiry into his conviction and the referral of his conviction for murder to the Court of Criminal Appeal pursuant to the Crimes (Appeal and Review) Act 2001 (NSW).

61. The respondent submits that the applicant is a person who is prepared to adopt evidence that suits his desired outcome. It is noted that the admission of murder of the victim contains no details. It was the submission to the State Parole Authority on behalf of the Commissioner, Corrective Services NSW that the applicant did not disclose the role he played in the murder. The submission was also made that the “admission of guilt came only after all avenues of appeal have been exhausted and is a self-serving and calculated act to enhance his prospects of release to parole.”

62. The recommendation of the Serious Offenders Review Council on 7 July 2015, obviously taking those submissions into account, was:

“In March we advised it was appropriate for the offender to be considered for release to parole. Since then he has been on work release with excellent reports and has completed eight weekend leaves. His post release plans have been deemed satisfactory and again we advise it would be appropriate to consider his release to parole.”

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

65. The applicant relies upon limited evidence to support his assertions that he does not pose a risk to children. The most weight asserted by the applicant is to be given to the assessment of the psychologist and the considerations and determination by the State Parole Authority and the Serious Offenders Review Council. The respondent submits that there is no issue estoppel arising from the determinations of the State Parole Authority and the Serious Offenders Review Council under different legislation to the Act which is the legislation with which this Tribunal has to comply.

66. The applicant has previously denied the offence occurred which now renders him a disqualified person. The applicant has only been on parole for a short period of time and in the community where it is expected that he may encounter difficulties adjusting to life after a lengthy period of incarceration.

67. The applicant relies upon the assessment of the State Parole Authority under the relevant legislation granting him parole. The applicant submits that an available inference from the reasons of the State Parole Authority is that the applicant would not reoffend according to the criteria listed in section 135 of the Crimes (Administration of Sentences) Act 1999 (NSW). The Serious Offenders Review Council is also required to consider similar considerations contained in section 197 of the Crimes (Administration of Sentences) Act.

68. The applicant submitted that except in exceptional circumstances the State Parole Authority cannot make a parole order for a serious offender unless the Serious Offenders Review Council advises that it is appropriate for the offender to be considered for release on parole. The applicant relies upon an inference from that decision that the Serious Offenders Review Council concluded that he would not reoffend.

69. However, the release to parole was upon 19 specified conditions. Subsequently, in November 2015, one of those conditions requiring electronic monitoring of the applicant was deleted so there are currently 18 conditions. The applicant had breached the condition (concerning electronic monitoring and planning his activities 10 days in advance) which he then successfully advocated to be deleted. It is noted by the Tribunal that the stated purpose of the electronic monitoring in the Parole Determination in July 2015 was to help ensure that the applicant did not relapse into a gambling addiction. Further conditions may be imposed if considered appropriate. It was at the time of his release to parole considered that the further continuing detention of the applicant would serve “little purpose other than one of a punitive nature”.

70. The granting of an enabling order and a working with children check clearance cannot be made subject to conditions, unlike a release to parole.

71. The psychologist relied upon by the applicant is Mr Schreiner. The applicant also relies upon a brief letter from Ms Azzi, psychologist, dated 3 November 2015 which is annexed to Exhibit 5.

72. Neither of the psychologists conducted an actuarial assessment of risk. Ms Azzi simply recited the factual matters which were involved in the parole determination.

73. Mr Schreiner did not explore the report by the applicant that he would frequently witness horrific violence perpetrated by his father against his mother including physical, verbal and psychological abuse when he was about 14 years of age. Mr Schreiner relied upon the applicant’s self-report that he had no history of mental health problems despite there being a family history of schizophrenia. The overall opinion of Mr Schreiner is that there were no apparent risk factors, and the applicant showed no presence of emotional difficulties, impulsivity or antisocial tendencies. Mr Schreiner also observed that the applicant is self-aware and showed good ability of self-control. The applicant’s interpersonal style may result in “being perceived by others as controlling in order to meet his own needs.” This is consistent with the findings of the sentencing judge who accepted that the applicant was the dominant party in the murder enterprise, planned the crime, seduced the victim into believing there were cigarettes on offer, and made purchases of tools with which the murder was completed. The obvious undermining aspect to the findings by Mr Schreiner, which are reliant upon the applicant’s own report, is the murder conviction itself and the findings of the sentencing judge that considered that the account of the applicant was “in significant respects, untruthful, incomplete and unreliable.”

74. The principles which are relevant in assessing the likelihood of repetition of abusive behaviour in relation to children are instructive: see T v H, Unreported, Supreme Court NSW, Hodgson J, 19 December 1985, page 18; SL v Secretary, Department of Family and Community Services [2016] NSWCA 124. A conscious understanding of the causes of and the ability to address the risk of further threatening or fatal behaviours expressing the underlying psychological issues of a perpetrator of violence, are relevant matters to be considered. There is no in depth analysis provided to the Tribunal of the underlying psychological motivators for the murder other than a financial motive related to and explained in large part by the applicant’s acknowledged gambling addiction. There is no exploration provided to the Tribunal of the explanation of the capacity of the applicant to behave in cold-blood and such a calculated fashion to murder the victim. It is not a reassuring explanation to say that the applicant’s gambling addiction was the prime or only motivator that resulted in the events of the night of the murder.

75. If there were to be a repetition of the conduct clearly that would be of highly adverse impact upon the safety and well-being of any children who might be the victims or witnesses to such conduct.

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

76. The applicant has provided information which he considers appropriate for the Tribunal to consider.

77. The personal history of the applicant is recorded in the remarks on sentence. It is not repeated in these reasons but has been considered.

78. The sentencing judge observed that a psychiatrist described the applicant as a ‘pathological gambler’. Interestingly, the applicant in his submissions to the sentencing judge disowned any interest in gambling. The applicant undertook psychological therapy in prison for over 12 months relating to compulsive gambling after which the applicant reported that he had gained confidence in his ability to enjoy life without returning to gambling.

79. The applicant did not respond to the letters from the Crown Solicitor’s Office dated 4 November 2015 and 14 December 2015 requesting particulars. The respondent submits that the applicant has failed to comply with his obligations under section 27(4) of the Act.

Any other matters that the Children’s Guardian considers necessary

80. The Children’s Guardian made submissions addressing matters the Children’s Guardian considers necessary.

81. The Children’s Guardian submits that the applicant’s conduct involved serious violence and implicitly a total disregard of another person’s right to live and he should not be granted an enabling order.

Consideration and determination

82. The applicant is now an adult of more mature years than when he committed the offence. The applicant has had the benefit of time to consider his offending behaviour. There was no remorse at the time of sentencing and appears to be no evidence of remorse more recently despite the admission made in March 2015. The admission of guilt came only after all avenues of appeal had been exhausted and can be treated as a self-serving and calculated act to enhance prospects of release to parole. The applicant still maintained that he: “does not admit and cannot admit to actually killing [the victim] because he did not do this but he feels responsible for the death of [the victim] notwithstanding.”

83. The Tribunal accepts the finding of the sentencing judge that “[w]ithout an acceptance of responsibility, I cannot accept that there is genuine remorse.” The applicant did not accept any responsibility for the victim’s death nor for the robbery. The applicant does not accept responsibility for actually killing the victim. The applicant presented himself to the police with a story motivated by ‘self-interest’ and was a ‘pre-emptive strike’ against his co-accused. The applicant omitted his role in the events. The level of manipulation of others and the chilling self-interest involved have not been explained by the history of the applicant. The applicant has been previously considered of low to medium risk of reoffending. The applicant relies upon that assessment. The applicant says he no longer gambles and one of the conditions of his release to parole is that he does not gamble. The offence is not completely explained by the compulsive gambling issue. It is clearly a significant issue. The applicant in his submissions to the sentencing judge disowned any interest in gambling. Nothing has apparently changed in relation to that factor if one is to believe what the applicant has at various times said about it. No expert evidence as to the other psychological issues that permitted the applicant to behave so violently and with such calculation has been placed before the Tribunal.

84. Until there is an acknowledgement of the applicant’s behaviour and appropriate action taken to address the causes of the behaviour, there remains an unacceptable risk of repetition of the behaviour. This is a well-recognised aspect of risk assessment particularly in relation to the risk to vulnerable children.

85. The applicant has been convicted of one serious offence which renders him a disqualified person for the purposes of the Act. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour in relation to the murder was apparently planned and exhibited a lack of self-control even though it was highly planned, and incapacity to implement any strategies to prevent it happening. The applicant has not been able to show that he has the psychological understanding and capacity to prevent repetition of the offence. The applicant protests his innocence and does not apparently acknowledge his behaviour was cold-blooded, murderous and could be considered pathological.

86. The behaviour, if repeated, would do significant harm to any victim. The paramount principle under the Act includes protection of children from suffering abuse. Any child victim or witness will suffer fatal consequences or experience traumatic psychological harm.

87. There is a lack of evidence of mitigating factors such as examination and addressing of all the reasons for the criminal offending. The applicant has been in the community since July 2015 subject to parole conditions. This is not a significant enough period of time in order to say that the reintegration of the applicant into the community will be successful. It is hoped that the applicant will not reoffend and he is monitored in order to mitigate the risk of reoffending.

88. Remorse on its own is not considered to be a factor that mitigates risk. In this matter there is no genuine remorse expressed by the applicant, and it would appear that there has been no admission of any reason to be remorseful.

89. The legislature has proscribed behaviour which results in criminal convictions and classified it as sufficient to render the applicant for a clearance subject to a presumption that the offender is a risk to children. That behaviour does not have to involve allegations or convictions relating to child victims. It is clear that offences listed in Schedule 2 of the Act involve crimes of violence, or have a sexual element or some aspect of violation of the personal integrity of another person, or serious harm to a living creature.

90. 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.

91. 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 unlike release on parole.

92. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour in the presence of children or if it is directed to children.

93. The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal thus cannot be satisfied that the applicant does not pose a risk to children.

Conclusion

94. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is concluded that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The evidence has not discharged the onus to prove that the applicant is not such a risk.

95. The order of the Tribunal is that:

1. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 30 October 2015 is refused and dismissed.

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

Registrar

Decision last updated: 06 October 2016