CGT v Children's Guardian

[2016] NSWCATAD 239

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CGT v Children’s Guardian [2016] NSWCATAD 239
Hearing dates:	10 June 2016
Date of orders:	25 October 2016
Decision date:	25 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member Dr B Field, General Member
Decision:	(1) The decision of the Children’s Guardian dated 2 November 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 of sexual intercourse with a person of intellectual disability with intent to take advantage (3 counts), indecent assault, commit an act of indecency with a person 16 years or above under sections 61L, section 61N(2) and section 66F(3) Crimes Act 1900 (NSW) – verdicts of not guilty on all counts - 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 affirm 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 BKV v Children’s Guardian [2015] NSWSC 1602 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 Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 BVT v Office of the Children’s Guardian [2016] NSWSC 1169 BYR v Children’s Guardian [2013] NSWADT 310 BZU v Children’s Guardian [2016] NSWCATAD 3 Carr v Simnovic (1980) 26 SASR 263 Children’s Guardian v BQJ [2016] NSWSC 869 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 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378 Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 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 SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 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:	CGT (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: D Petrushnko (Applicant) V Hartstein (Respondent)   Solicitors: Phil Banister Pty Ltd (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510726
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 “CGT” in these proceedings in order to protect the identity of the applicant and any other person’s privacy. On 18 November 2015 CGT 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 2 November 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 applicant applied for a working with children check clearance on 3 October 2014. On 2 November 2015 a notification letter was sent by the Children’s Guardian to the applicant informing him that his application was refused.

3. 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.

4. The applicant was charged with criminal offences of multiple counts of sexual intercourse with a person of intellectual disability with intent to take advantage, indecent assault, and commit an act of indecency with a person 16 years or above under sections 61L, section 61N(2) and section 66F(3) of the Crimes Act 1900 (NSW). The applicant was found not guilty on all counts ultimately placed before the jury.

5. The applicant is subject to a risk assessment by reason of sections 14 and 15, Schedule 1 clause 1(1)(b) of the Act and the offence provisions are referred to in Schedule 2 clauses 1(1)(e) and 1(1)(h) of the Act.

6. The applicant wishes and requires to obtain a working with children check clearance, as far as the Tribunal can ascertain and as may be relevant to determine, in order to work as a volunteer in organisations and bodies in the community which require a clearance. It is irrelevant how the applicant wishes to use the clearance because once granted it is valid for all forms of child-related employment and volunteer work.

7. It is relevant however, that the application nominated clubs or other bodies providing services to children as the applicant’s employment sector.

8. The applicant is a qualified chef and is currently enrolled in a University course studying law. The applicant has been involved in charity work, church youth groups, hospital visits at a Children’s Hospital, assisting a local retirement village, and collections for charitable organisations.

9. An interim bar was issued on 1 May 2015. Information received by the Children’s Guardian identified that the applicant has been an elected representative involved in local government since 2008 and at the time of the application was employed in a leading role within that branch of government. This information was not disclosed by the applicant because it was submitted on his behalf that the applicant did not wish to be seen to influence the assessment process.

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

11. This is an application pursuant to section 27 of the Act. The application for review was heard by the Tribunal on 10 June 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. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in his chosen area is not permitted by the legislation.

18. An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) prohibiting 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.

19. The Tribunal has been assisted by the parties’ legal representatives and their respective submissions.

The evidence relied upon in the hearing

20. The applicant and respondent relied upon the following documentary material:

1. Application filed 18 November 2015 including a letter dated 2 November 2015 containing reasons for refusal of the work children check clearance - Exhibit 1;

2. Affidavit of the Applicant filed 23 March 2016-Exhibit 2;

3. Affidavit of a family friend of the applicant filed 23 March 2016 -Exhibit 3;

4. Affidavit of a former employer of the applicant filed 23 March 2016 -Exhibit 4;

5. Report of Dr Olav Nielssen dated 25 March 2016-Exhibit 5;

6. Affidavit of a former work colleague of the applicant dated 1April 2016-Exhibit 6;

7. Documents in 2 volumes filed by the respondent pursuant to section 58 of the Administrative Decisions Review Act 1997 comprising 472 pages and 930 pages respectively-Exhibit 7;

8. Documents filed by the respondent on 26 April 2016-Exhibit 8;

9. Respondent’s Written Outline of Submissions filed 26 April 2016-Exhibit 9;

10. Applicant’s Outline of Submissions dated 19 May 2016-Exhibit 10.

21. The applicant and his psychiatrist Dr Olav Nielssen gave oral evidence and were cross-examined on 10 June 2016. The parties’ legal representatives provided oral submissions at the conclusion of the evidence.

22. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil onus of proof which is the balance of probabilities. The criminal proceedings were determined according to the criminal standard which is beyond reasonable doubt.

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

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

24. This concept is repeated in the Supreme Court decision in Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 in the way referred to in the following paragraphs.

25. Further 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 Supreme Court has considered the onus of proof in an administrative review and has accepted that there is no onus of proof upon either party. In Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 (“Bronze Wing”) at [62] and [74] per Button J, where it was said at [74], accepting the submissions of the respondent at [71]-[72] which are also extracted here:

“[71] It was said that, pursuant to s 38 of the [Civil and Administrative Tribunal Act], the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].

[72] Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.

…

[74]Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.”

27. The consequences of there being no onus of proof and some refinement of the civil standard of proof to the effect referred to in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 (“Karakatsanis “) at [36]-[39], and referred to with approval by Justice Button in Bronze Wing, is that which is referred to in these extracted paragraphs from Karakatsanis:

“[36] Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

[37] This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be ‘comfortably satisfied’ of the facts in issue. As the High Court made clear in Neat Holdings [[1992] HCA 66; (1992) 67 ALJR 170], the relevant principle should be understood as reflecting ‘a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct’. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence. [See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179])]

[38] In Greyhound Racing Authority v Bragg [[2003] NSWCA 388] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[Ibid. [35] (emphasis omitted).]

‘The notion of ’inexact proof, and indefinite testimony or indirect references [scil. inferences]’ needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.’

[39] This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.”(footnotes and references included)

28. The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil onus to determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61]. Another Supreme Court decision in relation to section 27 of the Act, which is restricted as to publication, is the decision in BKV v Children’s Guardian [2015] NSWSC 1602. It is not currently known whether that latter decision has any impact upon the interpretation of the relevant provisions. It is presumed by the Tribunal that BKV v Children’s Guardian [2015] NSWCATAD 65 is a determination which was made in accordance with the law because the restricted Supreme Court decision does not provide any correction of any alleged error of law.

29. The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous 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.”

30. The initial practical or forensic onus but not the legal onus is thus generally to be 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)

31. The currently constituted 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

32. 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 repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.

33. 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."

34. 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.”

35. 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."

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

37. "Conviction" as defined in section 5 (1) of the Act “includes 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.”

38. 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.”

39. 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.

40. The offences with which the applicant was charged are offences specified in clause 1(1)1(d) and clause 1(1)(e) of Schedule 2 of the Act.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. 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].

47. 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.

48. The Tribunal is also 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 the often cited decision of 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.”

49. 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.

50. 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.

51. 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.

52. 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.

53. 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.

54. 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."

55. 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."

56. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and 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.

57. 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."

58. 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.

59. 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

60. 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].

61. 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. The decision is not one which is subject to internal review by the Children’s Guardian.

62. 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].

63. 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

64. 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.

65. 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.

66. 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.

64. 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.

68. 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.

69. 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.

70. 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. In BVT v Office of the Children’s Guardian [2016] NSWSC 1169, Adamson J found, however, in relation to an application for an enabling order under section 28 of the Act, that it was an error to interpret the plea of guilty in that case to findings of the Court and admissions of the applicant, at [58]:

“[58] The Tribunal was not bound by the laws of evidence: s 38 of the NCAT Act. It was therefore entitled to take into account the contents of the documents produced by the District Court, including: the plaintiff’s record of interview; the witness statements; and the police facts, although the witness statements and police facts would not have been admissible as evidence under the Evidence Act 1995 (NSW). If that is what the Tribunal had done in the present case, there could have been no proper grounds for complaint. However, by elevating the matters in these documents to the status of findings by the sentencing judge and admissions made by the plaintiff, the Tribunal misapprehended the legal effect of the plaintiff’s plea.”

71. The applicant in this matter did not plead guilty to any of the charges. However, the Tribunal may consider the documents which are referred to by Justice Adamson to determine whether on the balance of probabilities the events which happened occurred as alleged in the criminal proceedings.

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

72. The applicant is not a disqualified person. The charges of sexual intercourse with an intellectually disabled person with intent to take advantage, indecent assault, and commit an act of indecency with a person 16 years or above under sections 61L, section 61N(2) and section 66F(3) Crimes Act 1900 (NSW) are serious. The charges render a convicted person liable respectively to a maximum of 5 years, 2 years, and 8 years imprisonment. The applicant was not convicted of those charges.

73. The alleged offences were said to have occurred between 30 September 1999 and 23 May 2000. The form of section 66F(3) of the Crimes Act at that time was:

(3) Any person who has sexual intercourse with another person who has an intellectual disability, with the intention of taking advantage of the other person’s vulnerability to sexual exploitation, shall be liable to penal servitude for 8 years.

74. The current form of the relevant subsections of section 66F of the Crimes Act is as follows:

…

(3) Sexual intercourse: taking advantage of impairment

A person who has sexual intercourse with a person who has a cognitive impairment, with the intention of taking advantage of that person’s cognitive impairment, is guilty of an offence.

Maximum penalty: imprisonment for 8 years.

(4) Attempts

A person who attempts to commit an offence under subsection (2) or (3) is guilty of an offence and liable to the penalty provided for the commission of the offence.

(5) Consent not a defence for sexual intercourse

The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under subsection (2)-(4).

(6) Consent not a defence for indecent assault or act of indecency

The consent of a person who has a cognitive impairment is not a defence to a charge for an offence under section 61L, 61M (1), 61N (2) or 61O (1A) (or under section 61P in connection with such an offence) if:

(a) the accused was responsible for the care of that person (whether generally or at the time of the conduct constituting the offence), or

(b) the accused engaged in the conduct constituting the offence with the intention of taking advantage of that person’s cognitive impairment.

75. It can be seen that in both forms of the relevant subsection the offence is regarded as serious and consent by the person with the cognitive impairment or intellectual disability is specifically removed as an available defence in the current version. This may reflect community attitudes which have evolved since the time of the offences were alleged to have been committed by the applicant. The relevant offence creating provision remains essentially the same with some obvious variations in the use of the language to describe the victim’s intellectual disability. It is a serious offence.

76. The purpose of the risk assessment is protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The offences with which the applicant was charged and later acquitted are matters sufficient to cause the risk assessment. The legislature has classified certain behaviour which results in criminal charges (irrespective of the outcome of those charges) as sufficient to render the applicant for a clearance subject to a risk assessment. That proscribed behaviour does not always relate to allegations involving child victims and may also relate to aggravated cruelty to animals. It is obvious that the types of offences listed in Schedule 1 of the Act generally involve a sexual element or some aspect of violation of the personal integrity of another person or serious harm to a living creature. The assessment trigger is also activated where a person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in Schedule 1 or Schedule 2 of the Act) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children. The seriousness of the conduct is relevant to the risk assessment.

77. The applicant was in summary charged with offences resulting from the allegation that he had engaged in sexual intercourse by digital penetration and other acts of indecency with a young woman who was employed in a junior role in the same workplace as applicant.

78. The victim was aged 19 and had an intellectual disability. The applicant told the psychiatrist that he believed the complaint made by the victim would not have been able to proceed without the assistance of her family “because the complainant was quite disabled and unreliable in her own account of what had taken place.”

79. The IQ of the victim was assessed in 2001 as 54, placing her in the moderately intellectually disabled range as reported in Dr Neilssen’s report. Since the time of the complaint the victim had been undergoing counselling.

80. The applicant has denied all allegations. The applicant continues to deny all the allegations.

81. The victim complained to her sister and then to her parents in October 2000 that she had been sexually assaulted. The victim was employed as a kitchen hand and the applicant was employed as a chef at the same workplace. The victim outlined in her statement to police a number of incidents which occurred in the cool room and toilets of the work premises, and also incidents which occurred in work vehicles and in the applicant’s vehicle away from the premises.

82. A person employed in the same workplace observed the victim and the applicant in the cool room in the first half of 2000. That person observed the victim staring at a pair of tongs in her hand in the middle of the cool room with the applicant standing close to her. That person formed the view that the applicant had just kissed the victim on the left side of her neck. After she observed that incident she informed a supervisor of what she had seen and that she was uncomfortable about what she saw. The witness said she was disturbed enough to inform that person so that he could be aware of where the victim and the applicant were in the workplace.

83. The applicant confirmed that one of the other people at work walked in to the cool room when he rubbed the victim on her arms and shoulders and said the worker did not confront him about that.

84. The owner of the company where the applicant worked also observed the applicant and the victim in the cool room and told them to come out of the cool room to get back to work. That witness formed the view that the victim and the applicant may have been kissing, and confronted the applicant with that allegation. The applicant was reported to have said in response to the allegation that he was kissing the victim: “No, I wouldn’t do that.” The applicant did not say that he had been kissed by the victim prior to this occasion, which is a matter that he raised later in his record of interview with the police and in his evidence in the trial which is referred to later in more detail.

85. The applicant was asked about this occurrence in his electronically recorded interview with the police. The applicant confirmed that the conversation occurred. The applicant confirmed that it may have looked like the victim and the applicant were face-to-face and he was moving away.

86. The mother of the victim provided evidence that her daughter at the age of 19 could read story books at around the level for a 7-year-old reader. The mother identified that her daughter has a kind nature and a real sense of trying to please people. The mother said that the victim has never been a storyteller or enhancer of the truth, and in fact has a fairly poor imagination when it comes to telling an idea or story. To her knowledge the mother said that the daughter had no sexual experience and is very naive in terms of intimate experiences and sexual terms prior to the allege incidents.

87. The victim told the police that when she first started working with the applicant he told her to come out to the loading dock where he grabbed her around the waist and kissed her on the lips. They then went back to work. The applicant asked her to take things to the cool room, which she did. The applicant followed her in to the cool room a few minutes later and closed the door. He grabbed her by the waist turned her around and kissed her upon the lips. The victim said she tried to push the applicant away but he was very rough and he said, “I love you.” The applicant is also alleged to have said: “If you want to get a boyfriend you will have to use your tongue more and move your lips more.”

88. The applicant and the victim travelled in a motor vehicle together to deliver food. The applicant and victim also travelled together in his motor vehicle at lunchtime. The applicant is alleged by the victim to have driven her in his car to an area near some basketball courts described in her evidence by reference to the street and suburb. There it was alleged that he told her to take off her pants after kissing. He inserted his finger in her vagina and when it started to hurt she told him to stop, which he did. The applicant told her to squeeze his penis “until the white stuff came out” which he helped her to do and he said words to the effect: “Oh, more, faster.”

89. The victim also alleged that the applicant asked her when she had a break at TAFE and arranged to pick up during the break. The victim said that she expected him to turn up because he said he would come to see her. The victim said she felt she had no choice but to go with him otherwise he would think she was stupid or weak. The applicant again inserted his finger in her vagina until it hurt and she told him to stop, which he did. The victim said she let him do this because she thought that was what he wanted. After removing his finger from her vagina the applicant is alleged to have told her to hold his penis which was “red and fat” and to squeeze it until the white stuff came out. The victim said that he wiped himself with a hanky or tissue and they went back to the TAFE.

90. The victim also alleged that the applicant never said much to her when he was doing these things to her. The applicant told her: “Don’t tell anyone, it’s a secret between us. Just having some fun.” The victim says that she thought that if she did tell anyone he would get her fired because “he was the second boss”. The victim said that she thought she would get into trouble if she told her parents and family. This view was also expressed by the victim to the psychologist who assessed her in 2001.

91. The victim also alleged that the applicant and she would go to the cool room, loading dock, or the “girls” and “boys” toilets with him telling her: “You go up first and I’ll come up in a few minutes.” The victim said that she did as he said because she was worried about what the applicant would do to her if she didn’t and the victim didn’t have the courage to refuse. In the girls toilets the victim alleged the applicant put his finger in her vagina. In the boys toilets he sat on the toilet and told her to sit on his lap facing him with one leg on each side of him. The applicant kissed her and put his hands down her pants on her bottom. The victim told him that she did not want to do this anymore and he stopped. Another time the victim alleged that the applicant took her by the hand to the male toilets where they kissed for a few minutes before going into the toilet. The victim alleged that the applicant took out his penis and made her squeeze and rub it until “the white stuff came out”, then he wiped it, and she left first, with him following her out.

92. The last time anything was alleged to have happened was during the Olympics when they did a delivery to the TAFE training place. The victim alleged that the applicant suggested they go into the shower and turn the shower on. The victim said there were no towels and that she did not want to do that. The applicant is alleged to have said to her: “We’re not doing much, we’re just dancing, fooling around.”

93. The victim said to the police that she did not know what a circumcised penis is, so she does not know whether the applicant is circumcised or not, but she described the length and shape of his penis.

94. The victim stated to the police that she does not think she can forget what had happened and that at the time the applicant did the things that he did, she felt weird, awkward, and not in control enough to stop him. The victim said she felt angry when she tried to push the applicant away and soon found out that did not work. The victim stated that she felt unsafe going to the toilet or putting things away in the dishwasher and the loading dock. The victim was concerned to go into the toilet because she was scared he would follow her into the toilet. The victim also stated that she wished the other workers did not go out at the same time and that someone would stay with her so she and the applicant would not be on their own and the applicant did not have a chance to do anything to her.

95. In the electronically recorded interview with the police the applicant denied kissing the victim in the cool room, but did say that he “may have put [his] hands on her hips to move her across to get through...” The applicant commented that the victim was “a good-looking girl.” The applicant said that the victim spoke about her boyfriend and he did ask her “if she did kiss him.” The applicant denied deliberately touching the victim on her breasts and said: “…there may have been something if I’ve been carrying something and brushed against her like with my arm...”

96. The applicant denied putting his finger in the victim’s vagina. The applicant admitted to placing his hand on the victim’s knee but denied that it was sexual. The applicant said to the police that the victim responded to him placing his hand on her knee by saying: “… You’ve got a girlfriend, you shouldn’t put it there. I went, okay, sorry. I didn’t mean to put it that way.”

75. In the questioning by the police the applicant could not think of a reason why the victim would make the allegations she did about him. The applicant stated that he had rubbed her on the arm and touched her on the knee in the car but “only as a friendly thing”.

76. The police asked the applicant whether there was any opportunity where the victim would have seen his penis. The applicant said that the victim may have walked into the loading dock bathroom when he was going to the toilet, but that he did not know whether she had walked in on him whilst he was in the toilet. In the trial transcript when asked about his answer to the police, the applicant said that the victim might have walked inside the toilet while he was sitting down because the door was not always closed.

77. The applicant denied telling the victim to squeeze his penis until he had ejaculated.

78. The victim was assessed by a psychologist on 21 May 2001. According to the terminology of the Diagnostic and Statistical Manual of Mental Disorders IV, the victim is in the ‘mildly mentally retarded’ range and her IQ scores place her in the bottom 2% of the population in terms of her cognitive/intellectual functioning. The victim’s reported previous experience of a boyfriend was that they held hands and kissed. The victim expressed disgust at what she said the applicant had done to her and it was the psychologist’s opinion that it is possible that his actions will have a long-term and damaging impact on the victim’s future sexual behaviour. The psychologist expressed a view that it was impossible for the victim to give informed consent because of her intellectual functioning, sexual naïveté and inexperience at the time.

79. The applicant gave evidence in the criminal trial to the effect that he was shocked when he was kissed by the victim, and he told her that he was not interested in her because he had a girlfriend. That was first raised by the applicant early in his record of interview with the police. The applicant said the victim kissed him “with her lips sort of like opened up” near the dishwashing machine and held his hand. The applicant also said at that time in the recorded interview that he didn’t like mixing work with leisure and did not want to have a relationship with her in a work environment. The applicant stated in his interview with the police that he was invited to the victim’s 18th birthday party by the victim. The applicant was the only person from work who went to that party and he did not take his girlfriend because he said she was sick. The applicant said that he knew the victim liked him in a friendly way. The applicant conceded in evidence that he had collected the victim from TAFE on 2 occasions and had spoken to her about coming to work with him. The applicant conceded that he had taken the victim with him in a car to an identified Reserve after the time that he alleged she had kissed him.

80. The applicant conceded in his electronically recorded interview that he trusted the victim, because she goes to church, and that she is an honest girl. The applicant said the victim asked him to go along to the youth camp run by the church. The applicant also considered that the victim lacked self-confidence.

81. The Tribunal observes that the victim was not required by the applicant for cross-examination. There was no application to have the victim made available for any further cross-examination about matters which presumably she had already been confronted with when she gave evidence in the criminal matter. There is transcript of the victim’s cross-examination in the criminal trial in the exhibit before the Tribunal. There is also transcript of the applicant’s evidence and cross-examination included in the exhibit where the applicant responds to the allegations.

82. The applicant was terminated from his employment when the employer learned of the allegations. The applicant took unfair dismissal proceedings against the employer which resulted in a settlement, the terms of which were not to be disclosed, according to submissions made in the criminal trial by counsel for the applicant on his behalf.

83. The alleged incidents were said to have occurred over a period of approximately 9 months. The incidents which are recited in the evidence of the victim occurred at different places including the workplace.

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

106. The time which has elapsed since the incident is now approximately 16 years.

107. The applicant has not been the subject of any sustained criminal or other complaints of a sexual nature since the incidents occurred.

108. The applicant has engaged in employment since the incidents. The applicant was given an “amber light” by the previous regulatory system in assessing his fitness to work with children. This resulted in 2013 in the applicant failing to be appointed on a full-time basis in a position which supervised young people in training and work based program activities. The applicant told a psychiatrist that the refusal of permission to work with children had been leaked to a journalist who then approached him for comment. The applicant said that the journalist accepted his explanation and no story was published. The applicant told his psychiatrist that he thought that the investigator for the Office of the Children’s Guardian was biased and his references were not given credit.

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

109. The applicant was 22 years old at the time of the offences for which he was charged and subsequently acquitted.

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

110. The victim was aged 19 at the time of the incident. The victim was vulnerable due to the fact that she is cognitively impaired. The victim was naive and inexperienced.

111. The victim was by reason of her disability, age and relative inexperience compared to the applicant, in a position of considerable vulnerability. The victim was in a junior role in the workplace, compared to the position of the applicant who was in a more senior position with more authority.

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

112. The difference in age between the applicant and the victim is 3 years. The capacities of the applicant and the victim are more disparate than their ages suggest because of her simplicity and intellectual capacity.

113. The victim was known to the applicant through their work together. The applicant attended the 18th birthday party of the victim.

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

114. The applicant knew that the victim was not a child. The applicant knew that the victim was cognitively impaired.

The person’s present age

115. The applicant is currently aged 38. The applicant is married and has 2 young children.

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

116. The applicant has no relevant criminal history other than the matters previously referred to, which resulted in the risk assessment.

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

117. The respondent submits that the applicant is a risk to the safety of vulnerable young persons, including children, based upon the applicant’s lack of insight into the effect his behaviour has had upon the victim, the significance of his behaviour, and the inappropriateness of that behaviour. The applicant has minimised the seriousness of the matters which resulted in the risk assessment.

118. The applicant has stated in Exhibit 2 that the victim made romantic advances towards him which he rejected. The applicant deposes that he chose to waive his right to silence and participated in a recorded interview with the police. The applicant continues to contend that the allegations were “completely unfounded”.

119. 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.

120. The applicant relies upon the evidence of Dr Olav Nielssen, psychiatrist, to support the view that he is a low risk of repetition of the incidents of alleged sexual abuse. The psychiatrist has relied almost entirely upon the self-report of the applicant as to his functioning. The applicant disclosed to the psychiatrist that he had taken medication for attention deficit hyperactivity disorder consistently during high school. The applicant also stated that he had taken medication from time to time since then to help him to concentrate. The applicant did not report to the psychiatrist that he had a disabling degree of inattention, impulsivity or hyperactivity, and the psychiatrist observed that he did not display those features in the interview. The applicant refers to a treating psychiatrist from whom he receives medication under supervision when required. There is no evidence provided to the Tribunal from this treating psychiatrist.

121. The applicant has not undertaken any sex offenders’ courses or accredited counselling in respect to the offences with which he was charged. The applicant has not provided evidence that he has undertaken any relevant counselling which might assist in determining whether he has sufficient skills to reduce his risk to children. The applicant has provided evidence of his participation in volunteer work and work related courses.

122. The applicant has minimised his actions in relation to the alleged offences and does not appear to have shown any consideration of the effect of the alleged offences upon the victim.

123. The applicant has not provided any psychometric testing which might assist in an assessment of any future risk.

124. The references provided by the applicant are supportive of his application but do not address the risk issues which arise from consideration of the allegations which led to the charges against the applicant.

125. The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists 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].

126. In essence, expert witnesses in this Tribunal have stated 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.

127. The applicant was found not guilty of sexual offences and therefore the actuarial risk assessments which can be conducted are unlikely to be of any assistance because they are predicated upon a conviction for sexual offences.

128. Of course, as previously observed, the standard of proof in criminal matters is proof ‘beyond reasonable doubt’. The civil standard is not the same and is on the balance of probabilities.

129. The applicant participated in a record of interview with the police the relevant parts of which are previously highlighted.

130. The victim is unanimously thought to be an honest person. The victim lacks sophistication and according to her mother does not have sufficient imagination to make up the allegations, which allegations she has recounted on more than one occasion and in court. This appears on all the evidence to be an astute observation. The material in evidence from the applicant corroborates some of the occasions to which the victim has referred in her evidence. The applicant denies that there was any sexual relationship between him and the victim. It is confirmed that the applicant discussed kissing, grabbed the victim by her hips and turned her around, placed his hand upon her knee in circumstances where she made an adverse comment to him about that, and rubbed her shoulders and arms in the cool room at the workplace. The co-workers were suspicious that the applicant had in fact been kissing the victim in the cool room as she alleged at a later point in time. The denials by the applicant are not persuasive and the evidence to the contrary outweighs those denials. The relationship was on all the evidence more intimate than the applicant has conceded. The applicant was not fully frank with the Children’s Guardian about his employment, and his reason for not doing so is unpersuasive.

131. Having regard to all the circumstances recited previously in these reasons, the Tribunal finds on the balance of probabilities that the events described by the victim to the police and the subject of evidence from the victim during the criminal trial occurred. This includes the incidences of sexual intercourse and indecent assault. The comfortable satisfaction that the events occurred is achieved from a comprehensive survey of the evidence given by the victim and the work colleagues of the applicant, when contrasted with the applicant’s partial admissions and at other time complete denial of an intimate relationship with the victim.

132. 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 evidence from the applicant is not persuasive that there is minimal or no risk of repetition. If it is repeated behaviour the impact on children with whom the applicant works is likely to be significant and adverse to their healthy development.

133. The applicant appears preoccupied with the psychological and emotional effect on him and his career rather than the effect upon the victim who has limited psychological and intellectual resources with which to deal with the impact of the applicant’s behaviour.

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

134. The applicant has provided information including a number of references from persons to whom the employees of the Children’s Guardian have spoken in the course of their assessment. The information provided by the person providing Exhibit 4 to the Children’s Guardian was that she had a personal relationship with the applicant and has never supervised the applicant in a professional capacity. Minimal weight was placed on this reference by the Children’s Guardian.

135. The affidavit of a family friend is contained in Exhibit 3. The deponent in that affidavit has known the applicant since he was born and he has never demonstrated inappropriate behaviour towards children in her presence.

136. The deponent of the affidavit which is Exhibit 6 has worked with the applicant but has only known him since 2001, that is, after the offences were alleged to have occurred. The deponent has never seen the applicant behave inappropriately towards children. The deponent is aware that the applicant is involved with the SES.

137. The Children’s Guardian was concerned that the applicant did not disclose his involvement in local government when the Children’s Guardian was performing its assessment. Since then the applicant has provided his affidavit which is Exhibit 2. In that affidavit the applicant deposes to his participation in local government and says that he did not reveal this earlier because he did not want to use his political office to be seen as any effort to exert any influence on the application. This is not a convincing explanation for his failure to reveal his current employment.

Any other matters that the Children’s Guardian considers necessary

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

139. The Children’s Guardian submits that the applicant should not be granted a working with children check clearance and the application for review should be dismissed.

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

Consideration

141. The behaviour and conduct which triggered this assessment is a serious matter. The Tribunal is satisfied that the evidence shows the behaviour and conduct of the applicant was physically threatening and invasive of the victim’s rights. The applicant took advantage of a vulnerable person who has the functioning intellectual ability of a young child.

142. The applicant has repeatedly stated that the allegations are false and asserted that the Children’s Guardian was biased against him. That is not the conclusion of the Tribunal when considering all of the evidence.

143. The victim was aged 19. The applicant was aged about 22 years at the end 1999 to 2000. The applicant was sufficiently mature to be able to appreciate that what he did was not acceptable behaviour.

144. The Act is designed to be protective and the Minister’s second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk. The behaviour of the applicant was beyond reasonable community norms, involving as it did abuse of a vulnerable and trusting young woman. The legislature has proscribed behaviour which results in criminal charges and classified it as sufficient to render the applicant for a clearance subject to a risk assessment. That behaviour does not have to involve allegations about child victims. It is clear that offences listed in Schedule 1 of the Act involve a sexual element or some aspect of violation of the personal integrity of another person or serious harm to a living creature. The assessment trigger is activated where proceedings have been commenced against a person for offences involving violence or sexual misconduct sufficient to indicate a pattern of behaviour which is deemed a possible risk to the safety of children. The seriousness of the conduct is a particularly relevant factor to the risk assessment but is not the only consideration.

145. The behaviour is not recent, and the behaviour, if repeated, would do significant harm. Mitigating factors are not obvious, and genuine and sustained effort to remedy the conduct and past behaviour is not present. Remorse on its own is not considered to be a factor that mitigates risk. In this matter it appears that there is not even any remorse for the behaviour perpetrated by the applicant against the victim.

146. Until there is an acknowledgement of the extent 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 who may not be able to articulate the boundary violations which conceivably and realistically can occur in the type of work the applicant wishes to perform. While this application is different from injuries to children, the principles which are relevant in assessing the likelihood of repetition of abusive behaviour 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 and the ability to address the risk of further threatening behaviours expressing the underlying psychological issues is necessary for the applicant to avoid the appreciable risk of a repetition of the conduct that led to criminal charges.

141. A comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the conduct, achieved in accordance with fair processes appropriate to and adopted by the Tribunal is the key plank in the determination of the factual issue before the Tribunal.

142. There is a comfortable level of satisfaction that the events described by the victim to the police and the subject of evidence from the victim during the criminal trial, including the incidence of sexual intercourse and indecent behaviour towards an intellectually disabled and vulnerable woman which were reported by the victim, occurred on the balance of probabilities. The applicant’s denials of any wrongdoing cannot be accepted as truthful because of that finding.

143. The behaviour, if repeated, while working with children would be more likely than not to do significant harm to children. Children are vulnerable and victim in this matter have the intellectual functioning of a young child. The applicant poses an unacceptable risk of harm to the safety welfare and well-being of children.

144. The applicant has identified some factors which mitigate in his favour. The applicant has been able to maintain a clear record since the incident and is generally a law abiding person. The applicant is also involved in public life and wishes to volunteer his time for apparent good causes.

145. The applicant has not acknowledged or shown any developed insight into the effects of his conduct. The applicant has not shown remorse. Remorse on its own is insufficient to ameliorate risk.

146. 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

153. 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.

154. 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]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. 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.

155. 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.

156. The evidence received by the Tribunal 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.

157. It is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant that the existence of a real and appreciable risk to children has not been disproven: see BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33].

158. 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.

Order

159. The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 2 November 2015 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is affirmed.

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

Registrar

Decision last updated: 25 October 2016