Chief Executive Officer, Department for Child Protection v Scott [No 2]
[2008] WASCA 171
•22 AUGUST 2008
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- SCOTT [No 2] [2008] WASCA 171
| (2008) 38 WAR 125 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 171 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:130/2007 | 11 MARCH 2008 | |
| Coram: | McLURE JA BUSS JA NEWNES AJA | 22/08/08 | |
| 50 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend grounds of appeal granted Leave to appeal granted Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION BRIAN SCOTT |
Catchwords: | Working with Children (Criminal Record Checking) Act 2004 (WA) Application for an assessment notice Negative notice issued Construction of s 12(5) and s 12(8) Satisfaction of the decisionmaker that, because of the particular circumstances of the case, a negative notice should be issued to the applicant The best interests of children as the paramount consideration Paramount consideration is not the only consideration The notion of 'unacceptable risk' in relation to an applicant carrying out childrelated work Applicant convicted of offences not being category 1 or category 2 offences No material error by Tribunal in review proceedings |
Legislation: | Interpretation Act 1984 (WA) s 19 State Administrative Tribunal Act 2004 (WA), s 17, s 29, s 105(2) Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7, s 12, s 13, s 14, s 19, s 23, s 24, s 26, s 39 |
Case References: | Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 29 Briginshaw v Briginshaw (1938) 60 CLR 336 Champion v Champion (1968) 1 SASR 594 Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28 D and Department for Community Development [2007] WASAT 154 Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153 M v M (1988) 166 CLR 69 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Murphy & Murphy [2007] Fam CA 795 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Priest v Priest [1965] VR 540 TK v Australian Red Cross Society (1989) 1 WAR 335 Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- SCOTT [No 2] [2008] WASCA 171 CORAM : McLURE JA
- BUSS JA
NEWNES AJA
- Appellant
AND
BRIAN SCOTT
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J CHANEY (DEPUTY PRESIDENT)
Citation : S and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 222
File No : VR 95 of 2007
(Page 2)
Catchwords:
Working with Children (Criminal Record Checking) Act 2004 (WA) - Application for an assessment notice - Negative notice issued - Construction of s 12(5) and s 12(8) - Satisfaction of the decisionmaker that, because of the particular circumstances of the case, a negative notice should be issued to the applicant - The best interests of children as the paramount consideration - Paramount consideration is not the only consideration - The notion of 'unacceptable risk' in relation to an applicant carrying out childrelated work - Applicant convicted of offences not being category 1 or category 2 offences - No material error by Tribunal in review proceedings
Legislation:
Interpretation Act 1984 (WA) s 19
State Administrative Tribunal Act 2004 (WA), s 17, s 29, s 105(2)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7, s 12, s 13, s 14, s 19, s 23, s 24, s 26, s 39
Result:
Leave to amend grounds of appeal granted
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Ms J C Pritchard
Respondent : Mr T R Stephenson
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : In person
Case(s) referred to in judgment(s):
(Page 3)
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 29
Briginshaw v Briginshaw (1938) 60 CLR 336
Champion v Champion (1968) 1 SASR 594
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28
D and Department for Community Development [2007] WASAT 154
Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575
Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153
M v M (1988) 166 CLR 69
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Murphy & Murphy [2007] Fam CA 795
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Priest v Priest [1965] VR 540
TK v Australian Red Cross Society (1989) 1 WAR 335
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78
(Page 4)
1 McLURE JA: This is an appeal from orders made by the Deputy President of the State Administrative Tribunal (SAT) on 30 August 2007 requiring the appellant to issue to the respondent an assessment notice under s 12(5) of the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act). The SAT orders were stayed by Pullin JA in October 2007.
2 The facts, grounds of appeal, relevant statutory provisions and reasons below are detailed by Buss JA. They are not repeated here unless required for an understanding of these reasons. I too would dismiss the appeal but for different reasons.
3 The respondent has a criminal record. In August 1963, July 1964 and April 1966 he was convicted in New South Wales of offensive behaviour. The circumstances of the offences involved, according to the respondent, 'peeping'. In April 1977 the respondent was convicted in Western Australia of wilful exposure (he exposed and masturbated himself in full view of several persons) and stealing (two pairs of ladies panties from a clothesline). In December 1981 the respondent was convicted in Western Australia after trial of aggravated assault contrary to s 313 and s 322 of the Criminal Code (WA) as it then stood. The facts are that after becoming sexually aroused, the respondent fondled the 7-year-old female complainant on the vagina. According to the respondent, all the offences were committed whilst he was under the influence of alcohol.
4 In 1992 the sexual offence provisions of the Criminal Code were extensively amended to include, inter alia, an offence of indecent dealing with a child under the age of 13 years (s 320(4) of the Code). 'Deals with' is defined in s 319 to include doing any act which, if done without consent, would constitute an assault. The 1981 offence (the material facts of which were not known to the appellant at the relevant time) would be an offence under s 320(4) if it had been committed after the commencement of that section.
5 The respondent was born on 30 April 1943 and was aged 64 at the time of the SAT hearing. He was aged 38 when he committed the 1981 offence, which was his last conviction. At the time of the 1981 offence the respondent, who was on a disability pension as a result of an accident, was heavily involved in 'Little Athletics', devoting about 50 hours a week to coaching and administration. His involvement as an athletics coach for children continued until April 2007 when the appellant issued him with a negative notice under s 12(5) of the WWC Act.
(Page 5)
6 The appellant has applied to this court under s 105 of the State Administrative Tribunal Act 2004 (WA) for leave to appeal against the orders of the Deputy President. If leave is granted, the appeal can only be brought on a question of law (s 105(2)).
The scheme of the WWC Act
7 The object of the WWC Act is to prohibit people who have been charged with or convicted of certain offences from carrying out child-related work. A person who does not have a current assessment notice under the WWC Act must not be employed in child-related employment or carry on a child-related business (s 24). An application for an assessment notice is determined by the appellant by issuing an assessment notice or a negative notice (s 12). A person issued with a negative notice is prohibited from such employment or business (s 23).
8 It is accepted by the parties that the respondent required an assessment notice under the WWC Act in order to continue coaching Little Athletics.
9 Section 12 deals with the issue of assessment and negative notices. The regime differs according to whether an applicant for an assessment notice has been convicted of a Class 1 offence, a Class 2 offence, an offence that is neither a Class 1 nor a Class 2 offence (other offence); or has a non-conviction charge (being a charge disposed of by a court otherwise than by way of a conviction), a pending charge in respect of a Class 1 or Class 2 offence and a charge in respect of any other offence.
10 Class 1 offences are listed in Sch 1 of the WWC Act and are primarily offences of sexual penetration of a child under 13. Class 2 offences are listed in Sch 2 and include other sexual offences under the Criminal Code (including s 320) and other specified legislation as well as serious non-sexual offences such as murder, manslaughter, grievous bodily harm and kidnapping. It is apparent from the Class 1 and Class 2 offences that the primary harm contemplated is that of sexual or physical harm. However, I do not intend to foreclose the possibility that other types of harm are relevant.
11 The statutory regime for the different categories of conduct is as follows. Where an applicant for an assessment notice:
(1) has been convicted of a Class 1 offence, the appellant must automatically issue a negative notice (s 12(7));
(Page 6)
- (2) has been convicted of a Class 1 offence committed as a child, or a Class 2 offence, or there is a pending charge in respect of a Class 1 or 2 offence, the appellant must issue a negative notice to the applicant unless the appellant is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant (s 12(6));
(3) has not to the appellant's knowledge any convictions for an offence but has a non-conviction charge (s 12(4)) or has been convicted of any other offence the appellant must issue an assessment notice unless he is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant (s 12(5));
(4) has not to the appellant's knowledge been convicted of any offence or charged with any offence (other than an offence that is neither a Class 1 nor a Class 2 offence), the appellant must issue an assessment notice (s 12(3)).
12 Thus, relevantly for present purposes a person convicted of a Class 1 offence must receive a negative notice; a person convicted of a Class 2 offence must receive a negative notice unless the appellant is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued; and a person convicted of any other offence must receive an assessment notice unless the appellant is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
13 The WWC Act requires that regard be had to all offences including those committed prior to its commencement. Section 7(2) relevantly defines a Class 2 offence as:
(a) an offence against a provision listed in Schedule 2 …
…
(e) an offence that, at the time it was committed -
(i) was a Class 2 offence for the purposes of this Act;or
(ii) in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
(Page7)
- appellant was content to deal with the matter on the basis that it was an offence to which s 12(5) applied.
15 In order to understand these reasons it is necessary to set out s 3 and s 12(8) of the WWC Act. They provide:
3. In performing a function under this Act, the CEO [the appellant] or the State Administrative Tribunal is to regard the best interests of children as the paramount consideration.
12(8) If subsection (4), (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to -
(a) the best interests of children;
(b) when the offence was committed or is alleged to have been committed;
(c) the age of the applicant when the offence was committed or is alleged to have been committed;
(d) the nature of the offence and any relevance it has to child-related work;
(e) any information given by the applicant in, or in relation to, the application;
(f) anything else that the CEO reasonably considers relevant to the decision.
17 Further, the best interests of children in s 12(8)(a) is not just one of a number of mandatory relevant considerations to be taken into account when making the discretionary judgment. The best interests of children is, by virtue of s 3, paramount. In my view that has the following
(Page 8)
- consequence in relation to the discretionary judgment under s 12(4) and (5): the appellant must issue a negative notice if satisfied that the issue of an assessment notice would not be in the best interests of children. This is deliberately phrased in the negative rather than the positive because I do not discern a legislative intention that an assessment notice should not be issued unless the appellant is satisfied that it was in the best interests of children, which suggests advancing their interests.
18 The reference to exceptional circumstances in s 12(6) connotes that ordinarily, a Class 2 offence requires the issue of a negative notice and exceptional circumstances need to be demonstrated to justify departure from the ordinary rule. Moreover, the appellant must not issue an assessment notice under s 12(6) unless satisfied that the best interests of children would not thereby be harmed.
19 There is no express reference in the WWC Act to the existence or magnitude of the risk of harm to children. However, it is implicit in the purpose and scheme of the WWC Act that risk of harm is relevant. I propose to confine my remarks to convictions. The legislature regards a conviction of a criminal offence as rendering that person actually (Class 1 offence), prima facie (Class 2 offence) or possibly (any other offence) unsuitable to work with children. That can only be because the applicant, solely by reason of one or more convictions, poses a risk of repeating the type of criminal conduct in which they have previously engaged. The legislation identifies all offences which actually or prima facie require the issue of a negative notice. Under s 12(6), the exceptional circumstances must be such as to negative the risk that the legislature itself deemed to be unacceptable, namely the risk of repetition.
20 In the case of other offences to which s 12(5) applies, the appellant must first examine the nature and circumstances of the offence to determine whether repetition of that conduct (the risk of which one must draw from the fact of conviction alone) would harm, or give rise to a risk of harm, to children. Whereas Class 1 and Class 2 offences of their nature involve harm to children, 'other offences' generally do not. The question for the decision-maker is, assuming a risk of repetition of offending conduct of the general type, would its commission involve harm or a risk of harm to children. More often than not, that will be a straightforward exercise. If no, the prima facie position applies and an assessment notice must issue. However, if the appellant is satisfied that there is a risk of harm to children arising from the nature and circumstance of the offending the subject of the conviction, he must issue a negative notice unless the risk is negatived. In summary, for other offences to which
(Page 9)
- s 12(5) applies there may be two sources of risk. The first is the risk of repetition which is to be assumed until rebutted. The second source of risk only arises if it is unclear from the prior offending whether a child would be the victim.
21 This construction is consistent with the specific mandatory considerations in s 12(8)(b) - (d). Paragraph (d) of s 12(8) is concerned with the nature and circumstances of the applicant's offending and their relevance to children. The matters in pars (b) and (c) of s 12(8) are relevant to negativing the risk arising from the prior offending.
22 I am not persuaded the term 'unacceptable risk' is consistent with the statutory scheme. First, it implies that a magnitude or level of risk is acceptable and secondly, that the acceptable level of risk may vary according to the circumstances of the case. The High Court endorsed the use of that term in the family law context where there is tension, and the need to strike a balance, between the risk of sexual abuse by a parent and the acknowledged benefit to the child of having access to both parents: M v M (1988) 166 CLR 69, 78. The question in that case was what magnitude of risk justified a court in denying a parent access to a child. In the context of the WWC Act, it cannot be the case that the issue of a negative notice to an applicant could result in the denial of a benefit to children that would justify imposing, or varying, a minimum risk threshold. Further, I see nothing in the scheme of the WWC Act to support the contention that the magnitude of the risk should vary according to the seriousness of the harm. The criminal infliction of any sexual or physical harm to children is not in their best interests. However, the nature and seriousness of the harm may be relevant when considering whether the risk has been negatived.
23 Moreover, I am not persuaded that the risk of harm to children is to be balanced against the civil or other rights of the applicant (cf Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28 [82]. The ultimate issue when making a judgment under s 12(4), (5) and (6) is whether the issue of an assessment notice would not be in the best interests of children. In my respectful opinion, the prejudice to an applicant is not a relevant consideration.
24 The Deputy President identified the relevant question as being whether the applicant posed any 'appreciable risk' that children under his care might be subjected to some form of abuse, accepting that such a risk would not be in the best interests of children. The term 'appreciable' is a weasel word that conceals more than it reveals. It has a variety of
(Page 10)
- meanings with differing levels of risk above a threshold. At a minimum it means 'large enough to be noticed' and at the other end of the continuum means 'considerable'. The WWC Act does not expressly or impliedly impose a minimum risk threshold. A risk of sexual or physical harm would not be in the best interests of children. Thus, the Deputy President made an error of law in construing s 12(5) to require that there be an appreciable risk of harm to children before a negative notice could be issued.
25 For the reasons given above, the correct approach to the assessment in this case is as follows. The nature and circumstances of the applicant's offending, primarily the 1981 offence, are such that in the absence of other evidence a negative notice must issue. That is because the legislative scheme is premised on the assumption that conviction of a Class 2 or other offence prima facie requires the inference of a risk of repetition and the risk of repetition is the source of the potential harm. Repetition of the respondent's indecent dealing conduct unequivocally harms children. The question which the primary judge should have addressed is whether, having regard to all the evidence, the risk of repetition and thus harm was negatived so that it could be concluded that an assessment notice would not harm the best interests of children.
26 The error made by the Deputy President enlivens this court's jurisdiction to intervene and make its own discretionary judgment under s 12(5) of the WWC Act. However, it would only do so if the error was material in the sense that it would alter the outcome. As noted, the issue in this case is whether the risk to children demonstrated by the conviction has been negatived.
27 Ground of appeal 3 (for which I too would give leave) is based on the assumption that the Deputy President concluded that the absence of any other convictions of the respondent supported the conclusion that the respondent did not pose a risk to children. I do not accept the correctness of the assumption. The Deputy President said:
A factor which, in my view, significantly reinforces the significance of the time since convictions is that S has consistently worked with children, without incident, since the conviction occurred [50].
28 Thus, the Deputy President made a positive finding to the effect that the respondent had worked with children for over 26 years since the 1981 offence without causing any harm to any child. That finding negatives the risk arising from the fact of his convictions. It was not challenged, was
(Page 11)
- made by the Deputy President after hearing all the evidence (including character evidence) and was open on the evidence.
29 For these reasons, I would grant leave to appeal but dismiss the appeal. I too would refuse to suppress the respondent's name for the reasons given by Buss JA.
30 BUSS JA: The Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) prohibits a person from being employed in 'child-related work' unless the person has a current 'assessment notice'.
31 The respondent applied to the appellant for an assessment notice. He was engaged in child-related work as an athletics coach. Since about 1980 he had been involved in training young athletes. He has achieved some success as an athletics coach and holds relevant qualifications.
32 On 27 April 2007, the appellant, acting pursuant to s 12(5) of the WWC Act, issued the respondent with a 'negative notice'. The respondent applied to the State Administrative Tribunal (the Tribunal) for a review of that decision. On 30 August 2007, the Tribunal, constituted by Judge J Chaney, allowed the review application, set aside the appellant's decision, held that the respondent was entitled to an assessment notice under s 12(5) and ordered the appellant to cause the respondent to be issued with an assessment notice in accordance with the Tribunal's reasons.
33 On 25 September 2007, the appellant filed an appeal notice in this court, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), against the Tribunal's decision. The appellant requires leave to appeal. If leave is granted, the appeal can be brought only on a question of law. See s 105(1) and (2). Also see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [19] (Buss JA, Wheeler and Pullin JJA agreeing).
The relevant provisions of the WWC Act
34 According to the long title, the WWC Act, relevantly:
(a) provides for procedures for checking the criminal record of people who carry out, or propose to carry out, 'child-related work'; and
(b) prohibits people who have been charged with or convicted of certain offences from carrying out that work.
(Page 12)
35 Section 4 defines various terms and expressions used in the Act. Relevantly, for present purposes, s 4 provides that in the Act, unless the contrary intention appears:
'approved' means approved by the CEO;
'assessment notice' means a written notice issued by the CEO under section 12(1)(a);
'CEO' means the chief executive officer of the Department;
'charge' means a non-conviction charge or a pending charge;
'child' means a person who is under 18 years of age;
'child care service' has the meaning given in the Child Care Services Act 2007 section 3;
'child-related business' means child-related work carried out by an individual for gain or reward otherwise than in the course of child-related employment;
'child-related employment' means -
(a) child-related work carried out by an individual under a contract of employment or apprenticeship (whether written or unwritten);
(b) child-related work carried out on a voluntary basis by an individual under an agreement (whether written or unwritten) with another person;or
(c) child-related work carried out by an individual as a minister of religion or in any other capacity for the purposes of a religious organisation;
'child-related work' has the meaning given to that term in section 6;
'Class 1 offence' has the meaning given to that term in section 7(1);
'Class 2 offence' has the meaning given to that term in section 7(2);
…
'contact' includes -
(a) any form of physical contact;
(b) any form of oral communication, whether face to face, by telephone or otherwise; and
(c) any form of electronic communication,
(Page 13)
- but does not include contact in the normal course of duties between an employer and an employee or between employees of the same employer;
'conviction' has the meaning given to that term in section 8;
'criminal record', in relation to a person, means -
(a) every conviction of the person of an offence, in Western Australia or another jurisdiction; and
(b) every charge made against the person for an offence, in Western Australia or another jurisdiction;
'criminal record check' means the procedures set out in section 34 to enable the CEO to determine whether a person has a criminal record and, if so, to obtain details of that criminal record;
'Department' means the department of the Public Service principally assisting the Minister in the administration of this Act;
…
'interim negative notice' means a written notice issued by the CEO under section 13;
'negative notice' means a written notice issued by the CEO under section 12(1)(b);
'non-conviction charge' means a charge of an offence that has been disposed of by a court otherwise than by way of a conviction;
…
'pending charge' means a charge of an offence that has not yet been disposed of by a court;
…
'specified', in relation to a notice, means specified in the notice;
36 Section 3 states that, in performing a function under the Act, the CEO or the Tribunal is to regard the best interests of children as the paramount consideration.
37 Section 6 defines the term 'child-related work'. The term includes, relevantly for present purposes, work where the usual duties of the work involve, or are likely to involve, contact with a child in connection with a coaching or private tuition service of any kind (but not including an informal arrangement entered into for private or domestic purposes) and a club, association or movement (including of a cultural, recreational or
(Page 14)
- sporting nature and whether incorporated or not) with a significant membership or involvement of children (but not including an informal arrangement entered into for private or domestic purposes).
38 Section 7 defines the meaning of 'Class 1 offence' and 'Class 2 offence'. It provides:
(1) A 'Class 1 offence' is -
(a) an offence against a provision listed in Schedule 1 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b) an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c) an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 1 offence;
(d) an offence that, at the time it was committed -
(i) was a Class 1 offence for the purposes of this Act;or
(ii) in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
(a) an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b) an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c) an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 2 offence;
(d) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this subsection or subsection (1);
(e) an offence that, at the time it was committed -
- (i) was a Class 2 offence for the purposes of this Act;or
(ii) in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
- It is unnecessary to reproduce the offences described in each of Sch 1 and Sch 2. The offences in Sch 1 relate, in general, to sex offences against children under the age of 13 years. The offences in Sch 2 include various sex offences against children and also offences which do not necessarily involve children but would ordinarily be regarded as rendering a person who has committed them unsuitable to carry out work involving, or likely to involve, contact with children. I note, for present purposes, that the 'Class 2 offences' include the offence of indecently dealing with a child under the age of 13, contrary to s 320(4) of the Criminal Code (WA).
39 By s 9(1), a person who is, or is proposed to be, employed in child-related employment by another person (the employer) may apply to the CEO for an assessment notice. On receiving the application, the CEO is empowered, by s 9(4), to ask the applicant to provide any further information or documents that the CEO reasonably needs to establish the applicant's identity or for a proper consideration of the application.
40 Section 12, which is concerned with the CEO's decision on an application for an assessment notice, is of central importance. It provides, relevantly:
(1) The CEO is to decide an application under section 9 … in accordance with this section -
(a) by issuing an assessment notice to the applicant;or
(b) by issuing a negative notice to the applicant.
(2) The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3) If the CEO is not aware of -
(a) any offence of which the applicant has been convicted;or
(b) any offence (other than an offence that is neither a Class 1 offence nor a Class 2 offence) with which the applicant has been charged,
the CEO is to issue an assessment notice to the applicant.
(Page 16)
- (4) If the CEO -
(a) is not aware of any offence of which the applicant has been convicted;and
(b) is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(5) If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6) If the CEO -
(a) is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted;
(b) is aware of a Class 2 offence of which the applicant has been convicted; or
(c) is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
(7) If the CEO is aware of a Class 1 offence (other than a Class 1 offence committed by the applicant when a child) of which the applicant has been convicted, the CEO is to issue a negative notice to the applicant.
(8) If subsection (4), (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to -
(a) the best interests of children;
(b) when the offence was committed or is alleged to have been committed;
(c) the age of the applicant when the offence was committed or is alleged to have been committed;
- (d) the nature of the offence and any relevance it has to child-related work;
(e) any information given by the applicant in, or in relation to, the application;
(f) anything else that the CEO reasonably considers relevant to the decision.
- (9) On deciding the application -
(a) the CEO is to issue the assessment notice or the negative notice, as the case requires, to the applicant; and
(b) if the CEO is aware that that applicant is, or is proposed to be, employed in child-related employment by another person - the CEO is to give a copy of the notice to the other person.
(10) When a negative notice is issued to an applicant, the CEO is to provide with it a written notice that -
(a) states the reasons for the CEO's decision on the application;
(b) states that the applicant may apply to the State Administrative Tribunal, within 28 days after the date of the negative notice, to have the decision reviewed;and
(c) explains how the application for the review is made.
42 By s 14(1), an assessment notice has effect for 3 years unless sooner cancelled under the Act. Section 14(2) provides that a negative notice continues to have effect unless it is cancelled under the Act.
43 Section 19 is concerned with applications for cancellation of negative notices.
(Page 18)
44 Section 23 provides, relevantly, that if a negative notice has been issued to a person and is current, the person must not be employed in child-related employment or carry on a child-related business.
45 By s 24, a person who does not have a current assessment notice must not be employed in child-related employment or carry on a child-related business. The penalty for a breach of s 24 is a fine of $60,000 and imprisonment for 5 years.
46 Section 26(2) provides, relevantly, that within 28 days after the date of a negative notice issued by the CEO to a person, the person may apply to the Tribunal for a review of the decision to issue the negative notice.
The respondent's criminal record
47 The respondent has a criminal record. He has been convicted of three offences, but none of them is a Class 1 offence or a Class 2 offence.
48 On 7 April 1977, the respondent was convicted of wilful exposure and stealing. He was ordered to serve a period of 12 months probation and to pay costs of $3.50.
49 On 30 December 1981, the respondent was convicted of aggravated assault on a 7-year-old girl. He was placed on a good behaviour bond of $300 for a period of 12 months and was ordered to abstain from alcohol.
50 The circumstances of the 1977 convictions are set out in a document entitled 'Apprehension Information', apparently prepared by one of the police officers who arrested the respondent It reads, relevantly:
At about 4.40 pm on Friday 18/3/77, acting upon complaint received police attended at 463 Beaufort Street Highgate. The complainant was interviewed and stated that a male person had exposed and masturbated himself down a lane behind his premises in full view of several persons. The offender had decamped when challenged by complainant. A search of the area resulted in the offender being apprehended. Upon questioning by police, the offender admitted to having exposed himself but stated that he was sick and needed treatment from a doctor.
When questioned further, the offender produced two pairs of ladies panties and stated that he had taken them off a clothesline but could not remember where he had actually taken them from.
- The respondent apparently pleaded guilty to these charges.
51 A similar document sets out the circumstances of the 1981 conviction, as follows:
(Page19)
- In the early hours of the morning of 27 July 1981, the accused was at a party at 5 Riggs Place Parmelia where several adults and children were also present. At about 4 am the accused went into a bedroom where two young girls and a boy were sleeping with the intention of also going to sleep on the floor. After being in the room for a short time the accused became sexually aroused and placed his hand underneath the bedclothing and fondled the complainant on the vagina. After doing this the accused then went to sleep on the floor. The complainant in this case is a 7-year-old female.
When interviewed by police, the accused readily admitted the offence and in explanation said that he had lost control of his actions because he had been drinking and was ashamed of what he had done. The accused stated that he would be personally seeking medical treatment.
- The respondent apparently pleaded not guilty to this charge, but was convicted.
52 The circumstances of the 1981 conviction indicate that it was open for the respondent to have been charged with indecent assault, contrary to s 328 of the Criminal Code, as then enacted. The respondent was, for reasons which are unexplained, charged with the less serious offence of aggravated assault. See s 322 of the Criminal Code, as it then stood. If the respondent had been charged and convicted of indecent assault, rather than aggravated assault, he would have committed a Class 2 offence. See sch 2 to the WWC Act read with s 7(2) (in particular, s 7(2)(e)) of that Act. The more stringent provisions of s 12(6) of the WWC Act, instead of s 12(5), would then have applied.
53 After the respondent applied for a review of the appellant's decision to issue a negative notice, the appellant made further inquiries in relation to the respondent. Those inquiries revealed that between about 1963 and about 1966 the respondent was convicted in the Court of Petty Sessions at Newcastle in New South Wales of three counts of offensive behaviour. It appears the respondent informed the person responsible for preparing a Probation Service pre-sentence report in relation to the 1981 convictions that the convictions recorded between about 1963 and about 1966 involved 'peeping' which occurred while he was drunk.
54 Before the Tribunal, the respondent contended that he had little recollection of the circumstances of the offences which occurred in the mid 1960s or his conviction in relation to them.
55 The respondent's contention concerning the 1977 and 1981 convictions was that he was wrongly convicted. He made this contention in relation to the 1977 convictions even though he had pleaded guilty.
(Page 20)
56 As to the 1977 convictions, the respondent asserted that at the material time he was in fact urinating rather than masturbating. He had been at a hotel with friends and had become drunk. He had an urgent need to urinate and had chosen the laneway for that purpose. Further, he asserted that, about 6 months after his conviction, he ascertained that his friends had placed the ladies panties in his jacket pocket as a 'joke'. He denied having stolen them, and denied having told the police that he had stolen the panties from a clothesline.
57 The Tribunal rejected the respondent's account of the circumstances of the 1977 convictions, holding that his account was inconsistent with what he had apparently said on previous occasions [26]. The Tribunal gave an example of this inconsistency. In a pre-sentence report prepared in relation to the 1981 conviction, reference is made to the 1977 convictions and the following statement is set out:
Similarly, [the respondent] claims that the obscene and wilful exposure conviction also occurred when he was drunk and related to him masturbating in a laneway. [The respondent] admits to having had difficulties in the past in controlling his level of intake, but claims (and his wife confirms) that in recent years he had, for the main part, kept his drinking within reasonable limits.
58 Before the 1977 convictions were entered, the respondent was examined by a psychiatrist at the Department of Corrections. In a report dated 1 April 1977, the psychiatrist noted:
He acknowledged three convictions for offensive behaviour at ages 18 to 21 and a further conviction six years later for damaging property (he disputed the malicious injury recorded in your referral). Now, six years later, he has been convicted again of an offence suggesting a minor form of sexual deviation. In fact, he claims that this is quite out of character for him and he cannot explain it except on the ground that he was very drunk and didn't know what he was doing.
59 A file note dated 21 March 1977, apparently prepared by an officer of the Probation Service, recorded:
[The respondent] stated that the offences occurred at Highgate at night. He has no recollection of what happened as he was under the influence of alcohol. [The respondent] does not deny committing the offences.
60 The contemporaneous records in relation to the respondent's conviction in 1977 for stealing the ladies panties are consistent with the circumstances of that offence having been as set out in the document entitled 'Apprehension Information'.
(Page 21)
61 As to the 1981 conviction, the respondent asserted that he did not touch the 7-year-old girl in the manner alleged or at all. According to the respondent, he was not aware of the 1981 conviction until it was drawn to his attention by the appellant in the context of his application for an assessment notice. The respondent told the Tribunal that the complainant, in the course of her evidence, said that he had not touched her, but changed this evidence after prompting from her mother. He asserted that the magistrate hearing the charge chastised the police officers who gave evidence, informing one of them that he had committed perjury. The respondent claimed to have a belief that the charge against him had been dismissed. He also claimed that during the evening immediately preceding the alleged commission of the offence he had been propositioned for sex by the intoxicated mother of the 7-year-old child, and he had rejected the mother's approach 'in no uncertain manner'. It appears the respondent was inferring, in his evidence before the Tribunal, that he had been 'set up' by the complainant's mother as a result of her anger at the rejection.
62 The Tribunal decided that it could not go behind the fact of the 1981 conviction. A pre-sentence report in relation to the 1981 conviction states:
[The respondent's] account of the offence is somewhat contradictory. On the one hand he claims that on the night of the offences he was inebriated to such an extent that he cannot recall anything that happened, yet despite this he is strongly adamant that he is innocent of the offence.
- Later, in the report, it is said:
As indicated, [the respondent] maintains that he is innocent of the charge although he claims that he cannot remember anything that occurred on the night of the offence. Despite this, his history shows several prior episodes of offending involving unlawful sexual behaviour, which on [the respondent's] admission, has followed from heavy drinking. [The respondent] plays down the extent of his drinking, although he does acknowledge that all of his previous offences are directly related to alcohol.
(Page 22)
The appellant's decision to issue a negative notice
64 By letter dated 27 April 2007, the appellant informed the respondent that it had been decided to issue him with a negative notice under s 12(5) of the WWC Act for these reasons:
We have considered the information available to us in relation to your criminal record and we are satisfied that particular circumstances exist to issue a Negative Notice to you. The particular circumstances identified include:
• You[r] criminal record includes convictions for the offences of wilful exposure, aggravated assault and stealing.
• You were convicted of an Aggravated Assault of a sexual nature on a 7 year old girl. The offence was committed in the presence of other children.
• You were over 38 years of age and the victim was 7 years of age at the time of the offence being committed. This is considered to be a significant age difference.
• You have displayed behaviour of a sexually deviant nature on more than one occasion, namely your conviction for wilful exposure.
• No evidence has been provided that you have taken action to address your sexually inappropriate behaviour or any associated problems, for example, your identified problematic alcohol use.
65 The decision to issue the negative notice was made by the Director of the Working With Children Screening Unit within the Department for Community Development, as the delegate of the CEO.
The nature of the proceedings before the Tribunal
66 In the present case, the proceedings before the Tribunal were within its review jurisdiction: s 17(1) of the SAT Act and s 26 of the WWC Act. By s 27(1) of the SAT Act, the review of a reviewable decision is to be by way of a hearing de novo. Section 29(1) of the SAT Act provides:
The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
The Tribunal's reasoning and decision: its general approach to s 12(5)
67 The Tribunal set out the relevant provisions of the Act. It noted, in particular, s 3, which provides that, in performing a function under the Act, the appellant or the Tribunal 'is to regard the best interests of children
(Page 23)
- as the paramount consideration'. Although 'the best interests of children' is enumerated in s 12(8) as one of the factors to be considered, apparently ranking equally with the other factors mentioned in that subsection, it must be borne in mind that the overriding consideration remains the 'paramount interests of children' [12].
68 The Tribunal also noted that the consequences of receiving a negative notice are serious. It said:
A negative notice makes it an offence for a person to be employed in child-related employment or carry on a child-related business. An assessment notice is a prerequisite to employment in child-related employment or business. Both child-related employment and child-related businesses are concerned with 'child-related work'. The breadth of definition of child-related work, namely work 'the usual duties of which involve or are likely to involve contact with a child' means that the absence of an assessment notice precludes a person from a wide range of employment or voluntary undertakings [13].
69 The Tribunal decided that it would address pars (b) - (f) of s 12(8) before addressing s 12(8)(a) [36].
The Tribunal's reasoning and decision: s 12(8)(b)
70 Section 12(8)(b) provides, relevantly, that if s 12(5) applies in relation to any offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case having regard to 'when the offence was committed'.
71 The Tribunal observed that it was significant that the respondent's most recent offence occurred more than 26 years ago. There was no suggestion of any conviction (nor, indeed, of any inappropriate conduct) since that time. At all material times, the respondent had been involved in training young athletes.
The Tribunal's reasoning and decision: s 12(8)(c)
72 Section 12(8)(c) provides, relevantly, that if s 12(5) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to the age of the applicant when the offence was committed.
73 The Tribunal said, in relation to this factor:
When the most recent offence occurred, [the respondent] was 38 years of age. At the time of the 1997 [sic] offences he was 34 years old. It follows that the circumstances of the offences are not mitigated by any suggestion
(Page 24)
- of immature folly. The offences occurred at a time when [the respondent] was a mature adult who should have been fully responsible for his actions [38].
The Tribunal's reasoning and decision: s 12(8)(d)
74 Section 12(8)(d) provides, relevantly, that if s 12(5) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to 'the nature of the offence and any relevance it has to child-related work'.
75 The Tribunal noted that the appellant was, without doubt, heavily influenced by this consideration in making the decision to issue a negative notice. The Tribunal added:
The 1981 conviction involved an assault, apparently of a sexual nature, on a young female child. It is obviously highly relevant to child-related work. While the Tribunal must bear carefully in mind that the convictions are not convictions for either class 1 or class 2 offences, the 1981 conviction was for an offence the nature of which, certainly if it were a recent event, might give strong support for the issue of a negative notice.
The 1977 convictions also involve inappropriate sexual behaviour. It is not behaviour involving children, and while I would not conclude that the convictions are irrelevant to child-related work, they do not share the same significance as the 1981 conviction. As to the earlier convictions of disorderly conduct in NSW, the evidence of the surrounding circumstances is so vague, and the offences occurred so long ago, they are of only marginal significance in the context of the decision now to be made [39] - [40].
The Tribunal's reasoning and decision: s 12(8)(e)
76 Section 12(8)(e) provides, relevantly, that if s 12(5) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to 'any information given by the applicant in, or in relation to the application'.
77 The Tribunal dealt with this consideration in some detail. It said:
As I have already concluded, the information given by [the respondent] as to the circumstances of the events leading to conviction does not assist his case. Indeed, I have felt some level of concern at the refusal by [the respondent] to acknowledge any wrongdoing in the past. On the other hand, I am satisfied that the convictions resulted from acts occurring while [the respondent] was inebriated. He clearly had a problem with alcohol at the relevant time. To a degree, one might understand how, having moved on in his life for the past 25 years, his capacity to revisit these long-passed
(Page 25)
- events, made necessary because of the introduction of the Act in December 2004, might be clouded with uncertainty.
[The respondent] provided the Tribunal with a substantial volume of material recording his achievements with various athletes, and the acknowledgement of those achievements by sporting and other associations, over a long period of time. At the hearing, a number of parents of children he has coached gave evidence as to his skill and character.
It was apparent that, at least some of, those witnesses were unaware of the details of [the respondent's] convictions. They knew he had been convicted, but apparently accepted his account of his innocence and wrongful convictions. Usually where a character reference is given without full knowledge of a person's past, the reference is of little assistance. In this case, all those who gave evidence did not know [the respondent] at the time the convictions occurred. What can be extracted from the evidence of the character witnesses, all of whom have observed [the respondent] in his coaching activities and in his interaction with his athletes, is that conduct of the nature of that for which he was convicted is, to them, completely inconsistent with the character they have observed.
Several of the young athletes whom he has coached also gave evidence and spoke highly of him. None of the witnesses suggested they had observed anything approaching inappropriate conduct.
I also heard evidence from [the respondent's] partner. She met him, and became his partner, some time after the events the subject of the convictions. She has now been his partner for 15 years. She confirmed [the respondent's] evidence that he rarely drank alcohol, and on the odd occasion of celebration when he did, it was taken in extreme moderation.
[The respondent] gave evidence himself. Because of significant medical problems, apparently resulting from a serious motor vehicle accident when he was 16, it is apparent that coaching young athletes has been the focus of his life for in excess of the last 25 years. Although he is paid a fairly nominal fee by the athletes he coaches, I accept that he is motivated principally by the desire to develop young athletes, and have them achieve to their potential. There is no doubt that to prohibit him from coaching would have a devastating effect on his life.
[The respondent] has achieved a high level certification as an athletics coach. I accept the proposition which emerges from the documents submitted by [the respondent], and the evidence of the athletes he has trained and parents of some athletes, that he has made, and is likely to continue to make, a significant positive contribution to the athletes whom he trains, and that he provides services not easily obtained. The evidence suggests that there is a real possibility that the athletics club with which [the respondent] is associated, and which he helped to found, may well be forced to disband if his services are lost [42] - [48].
(Page 26)
The Tribunal's reasoning and decision: s 12(8)(a)
78 Section 12(8)(a) provides, relevantly, that if s 12(5) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to 'the best interests of children'.
79 The Tribunal evaluated this consideration, as follows:
I accept that [the respondent] has made a positive contribution to the athletic development of a significant number of young athletes whom he has trained. Those benefits would, however, necessarily have to be foregone if there were an appreciable risk that children under his care might be subjected to some form of abuse. Similarly, the personal effect of a negative notice on the applicant must be ignored if his continued coaching involves risk to children. The ultimate question for the Tribunal is, therefore, whether the past convictions suggest that there is some appreciable risk of abuse occurring.
If the 1981 conviction had occurred relatively recently, I would have no hesitation in concluding that the particular circumstances of that offence warrant the issue of a negative notice. However, the time when the offence was committed is a factor to which the legislation directs me to have regard. These are very old convictions. That is a factor which works in favour of the issue of an assessment notice rather than a negative notice. A factor which, in my view, significantly reinforces the significance of the time since convictions is that [the respondent] has consistently worked with children, without incident, since the conviction occurred.
If [the respondent], with these convictions in his background, had not worked with children in the last 26 years and suddenly wished to start coaching, one might be concerned about an inability to assess how the applicant might conduct himself when confronted with contact with children in the particular child-related work. In this case, [the respondent] has effectively 'proved himself' by doing the very thing he seeks to continue to do, apparently in an exemplary manner [49] - [51].
The Tribunal's reasoning and decision: s 12(8)(f)
80 Section 12(8)(f) provides, relevantly, that if s 12(5) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case having regard to 'anything else that the CEO reasonably considers relevant to the decision'.
81 The Tribunal did not refer to s 12(8)(f) or to anything not within pars (a) - (e) of s 12(8). It is therefore to be inferred that the Tribunal was of the opinion that there were no particular additional factors to be given separate consideration.
(Page 27)
The Tribunal's reasoning and decision: ultimate findings of fact and conclusion
82 The Tribunal stated that it had reached the view that the particular circumstances of the case did not lead to the conclusion that a negative notice should be issued to the respondent. It added:
I do not consider that [the respondent], now 64 years of age, having worked with children for over 25 years without incident, now poses any appreciable risk to the best interests of children. Accordingly, an assessment notice should issue under s 12(5) of the Act [52].
Grounds of appeal
83 The appellant's original grounds of appeal were these:
1. The learned Judge erred in law in construing s12(5) of the Working with Children (Criminal Record Checking) Act 2004 ('the Act') in that the learned Judge:
(i) found that it was necessary that the Respondent pose more than an appreciable risk to children before the 'particular circumstances of the case' would warrant a negative notice being issued to the Respondent;
(ii) failed to find that if there existed any risk that an applicant would commit an offence against children, that would constitute 'particular circumstances' warranting the issue of [a] negative notice;
(iii) failed to find that if there existed any risk that an applicant would commit a sexual offence against children, that would constitute 'particular circumstances' warranting the issue of a negative notice.
2. The learned Judge erred in law in that he misconstrued the criterion of 'the best interests of children' in s12(8) of the Act in that the learned Judge:
(i) found that it was necessary that the Respondent pose more than an appreciable risk to children before it would not be in the best interests of children for the Respondent to be issued with an assessment notice permitting him to work with children;
(ii) failed to find that if there existed any risk that an applicant would commit an offence against children, it would not be in the best interests of children for that applicant to be issued with an assessment notice;
- (iii) failed to find that if there existed any risk that an applicant would commit a sexual offence against children, it would not be in the best interests of children for that applicant to be issued with an assessment notice.
84 During oral argument before this court, the appellant applied for leave to add an additional ground of appeal, as ground 3, in these terms:
In the alternative, the learned judge erred in law in that he misconstrued the criterion of 'the best interests of children' in s 12(8) of the Act in that the learned judge concluded that the absence of any other convictions of the respondent supported the conclusion that the respondent did not pose an unacceptable risk to the best interests of children.
- The respondent opposed leave to amend and the court reserved its decision on the application.
The appellant's submissions in relation to s 12(5) of the WWC Act
85 It was submitted, on behalf of the appellant, that the Tribunal concluded either that the 'best interests of children' within s 12(8)(a) of the WWC Act, or the 'particular circumstances' within s 12(5), required the CEO (and, on review, the Tribunal) to consider whether there was an 'appreciable risk' that the respondent would commit an offence against children.
86 Counsel for the appellant submitted that nothing in the WWC Act requires that a particular magnitude of risk - such as an 'appreciable risk' - to children will be required before a negative notice should be issued.
87 It was submitted that the requirement to consider the 'best interests of children' suggests that the existence of any risk that the applicant will commit an offence against children (particularly a sexual offence) may be sufficient to require the issuing of a negative notice. Counsel referred to the following matters in support of this conclusion:
(a) By s 3 of the WWC Act, in the performance of any of the CEO's (or the Tribunal's) functions under the Act, the best interests of children is the paramount consideration.
(b) Even if all of the other factors enumerated in s 12(8) weigh in favour of the grant of an assessment notice, if the 'best interests of children' weigh against the grant of an assessment notice, a negative notice should be issued.
(Page 29)
- (c) The WWC Act manifests a clear intention that a stringent approach is to be adopted against persons who have committed serious offences, and particularly sexual offences, against children.
(d) Ordinarily, it would not be in the best interests of children to permit a person to work with children if it is determined that the person poses any risk of committing an offence against children, and particularly if the risk involved is a risk of committing a sexual offence against children.
88 According to counsel for the appellant, the language of s 12(8)(a), the structure of s 12 as a whole, the primacy attached to the consideration of the 'best interests of children', and the apparent intention of the Parliament support the conclusion that where a person has been convicted of an offence of a sexual nature against a child (other than a Class 1 offence or a Class 2 offence), the existence of any risk that the person might commit a further offence of that nature will be sufficient to constitute 'particular' circumstances warranting the issue of a negative notice under s 12(5).
The proper construction of s 12(5)
89 It is instructive to compare and contrast the circumstances in which s 12(3), (4), (5), (6) and (7) apply.
90 Section 12(3) applies if the CEO is not aware of any offence of which the applicant has been convicted, or any offence (other than an offence that is neither a Class 1 offence nor a Class 2 offence) with which the applicant has been charged. The CEO must issue an assessment notice to the applicant.
91 Section 12(4) applies if the CEO is not aware of any offence of which the applicant has been convicted, but is aware that the applicant has a 'non-conviction charge' in respect of a Class 1 offence or a Class 2 offence. A 'non-conviction charge' is a charge of an offence that has been disposed of by a court otherwise than by way of a conviction. By s 12(4), the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that, because of the 'particular circumstances' of the case, a negative notice should be issued.
92 Section 12(5) applies if the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted. The CEO must issue an assessment notice to the applicant unless the CEO is satisfied that, because of the 'particular circumstances' of the case, a negative notice should be issued.
(Page 30)
93 Section 12(6) applies if the CEO:
(a) is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted;
(b) is aware of a Class 2 offence of which the applicant has been convicted; or
(c) is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence.
By s 12(6), the CEO must issue a negative notice to the applicant unless the CEO is satisfied that, because of the 'exceptional circumstances' of the case, an assessment notice should be issued.
94 Section 12(7) applies if the CEO is aware of a Class 1 offence (other than a Class 1 offence committed by the applicant when a child) of which the applicant has been convicted. By s 12(7), the CEO must issue a negative notice to the applicant.
95 In Chief Executive Officer, Department for Child Protection v Grindrod[No 2] [2008] WASCA 28, I considered the proper construction of s 12(4) of the WWC Act. I concluded that it is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material before him or her, and after having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related work [81]. In Grindrod [No 2], Wheeler JA agreed with my reasons.
96 I turn now to examine s 12(5) in the context of the Act as a whole. Section 12(4) is, in some respects, identical to s 12(5), and my examination will therefore, of necessity, reproduce part of my analysis in Grindrod [No 2].
97 In the present case, the respondent had been convicted of offences other than a Class 1 offence or a Class 2 offence, although, as I have mentioned, the circumstances of the 1981 conviction indicate that it was open for the respondent to have been charged with indecent assault instead of merely aggravated assault. See [52] above.
98 By s 12(5), read with s 12(8), the CEO was obliged to issue an assessment notice to the respondent 'unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice
(Page 31)
- should be issued to [him]'. Three aspects of s 12(5) should be noted. First, the provision is concerned with the CEO's state of mind; that is, his or her satisfaction. Secondly, the requisite satisfaction must be attained because of the particular circumstances of the case; that is, the particular circumstances of the applicant's application by reference to the criteria in pars (a) - (f) of s 12(8). Thirdly, the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that a negative notice should be issued.
99 What is the significance of the words, 'the CEO is satisfied', in s 12(5)?
100 As Gummow J explained in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, in the context of s 65 of the Migration Act 1958 (Cth), which entitled the respondent in that case to the grant of a visa only if the Minister were 'satisfied' that the respondent answered the description in s 36(2) of that Act:
The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp[(1919) 26 CLR 385 at 403], Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker (651) [130].
101 In my opinion, s 12(5) imposes on the CEO an obligation, relevantly, to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice. Compare Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, 302 - 303 (Dawson, Gaudron, McHugh, Gummow and Kirby JJ); Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78, 90 - 91 [38] - [43].
102 I turn next to examine the meaning of the expression 'because of the particular circumstances of the case', in s 12(5).
103 The criteria in pars (a) - (f) of s 12(8) to which the CEO must have regard are:
(a) the best interests of children;
(Page 32)
- (b) when the offence was committed or is alleged to have been committed;
(c) the age of the applicant when the offence was committed or is alleged to have been committed;
(d) the nature of the offence and any relevance it has to child-related work;
(e) any information given by the applicant in, or in relation to, the application;
(f) anything else that the CEO reasonably considers relevant to the decision.
- Paragraph (a) is concerned only with the best interests of children, pars (b), (c) and (e) focus upon the applicant and par (d) is concerned with the connection between the offence in question on the one hand, and child-related work generally, on the other.
104 It is apparent from the language of s 12(8) (in particular, the command that the CEO 'is to decide whether he or she is satisfied in relation to the particular … circumstances of the case having regard to' pars (a) - (f), and the breadth of the criterion in par (f), namely, 'anything else that the CEO reasonably considers relevant to the decision'), that the criteria in pars (a) - (f) constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction. In other words, the CEO is bound to take into account each of the criteria in pars (a) - (f), and is not entitled to take into account any other factors.
105 Although the CEO must give separate consideration to each of the criteria in pars (a) - (f) of s 12(8), each criterion is not of equal significance in the evaluative exercise which the CEO is required to perform. Section 3 states, relevantly, that in performing a function under the Act, the CEO (or, on review, the Tribunal) is to regard the best interests of children as 'the paramount consideration'. It follows from s 3 that the CEO, in performing the function conferred on him or her by s 12(5) and (8), must regard the criterion in par (a) of s 12(8), namely, the best interests of children, as the paramount consideration. If and to the extent that, in any case, a criterion in pars (b) - (f) conflicts with the criterion in par (a), the relevant criterion in pars (b) - (f) must yield.
106 The criterion in par (a) of s 12(8) will always be relevant and paramount. The other criteria in pars (b) - (f) must always be taken into account, but the weight to be accorded to them will vary, depending on
(Page 33)
- the facts and circumstances of the particular case. In a particular case, for example, some of the criteria in pars (b) - (f) may be of little practical significance, when compared with the paramount consideration of the best interests of children. But it should be emphasised that the criteria in pars (b) - (f) are never excluded by the criterion in par (a). They are merely subordinated. 'Paramount' is not equivalent to 'sole'. Compare Priest v Priest [1965] VR 540, 547 (Herring CJ); Champion v Champion (1968) 1 SASR 594, 598 (Bray CJ).
107 I turn now to examine the requirement, in s 12(5), that the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that because of the particular circumstances a negative notice should be issued.
108 In my opinion, if s 12(5) applies, the question for the CEO, in every case, is whether on the information and other material properly before the CEO, and having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction then a negative notice must be issued. Otherwise, the CEO must issue an assessment notice.
109 The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who are involved in child-related work and have been convicted of, or charged with (including charged with and acquitted of), specified criminal offences. The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.
110 The legislative scheme reveals the adoption of a precautionary approach generally in relation to protecting children from the risk of
(Page 34)
- sexual or physical harm. This is also apparent from the Minister's Second Reading Speech:
The Working with Children (Criminal Record Checking) Bill 2004 will mean that persons employed, or who volunteer to work with children, or who are in business, must have extensive checks of any criminal records. If they have certain convictions or charges assessed as putting children at risk of sexual or physical harm they will be barred from starting or continuing to work with children.
The working with children Bill is part of a suite of complementary legislation by this Government to protect children: the Children and Community Services Bill, which is twenty-first century legislation to promote the wellbeing, including the protection, of children; the Acts Amendment (Family and Domestic Violence) Bill 2004, which will afford greater protection to victims of family and domestic violence, with a particular focus on the needs and protection of children; the Community Protection (Offender Reporting) Bill, which is currently before the House and will enable the whereabouts and circumstances of child sex offenders to be monitored and conditions to be placed on aspects of their lives that bring them in contact with children; and this Bill, which will deter and prevent people who have particular types of criminal history from seeking work or volunteering in situations in which harm can be done to our children.
In developing this legislation we have assessed the strongest elements of schemes in Queensland and New South Wales. We have also consulted with the Criminal Records Bureau in the United Kingdom. The chief and deputy chief executives of the CRB shared with me their expertise particularly in the light of the Bichard inquiry into the sexual assault and murder of two schoolgirls by Ian Huntley, a caretaker in their school. This Bill is more far reaching than the legislation in Queensland or New South Wales.
The intention of the Bill is to introduce a high standard of criminal record screening into areas of child-related work. The legislation aims to protect children from harm by: deterring people from applying to work with children if they have criminal records that indicate they may harm children, preventing people with such criminal records who do apply from gaining positions of trust in certain paid and unpaid employment, establishing consistent standards for criminal record screening for working with children and the ethical use of such information; and contributing to awareness that keeping children safe is a whole-of-community responsibility. [emphasis added]
(Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6946.)
(Page 35)
111 The adoption of a precautionary approach, in the context of s 12(5), is discernible from the following:
(a) the CEO in performing, relevantly, the function under s 12(5) and (8), is to regard the best interests of children as 'the paramount consideration';
(b) whether or not a negative notice is to be issued under s 12(5) depends upon the CEO's 'satisfaction' (that is, his or her state of mind) in relation to the particular circumstances of the case, rather than upon the existence of an objective 'fact', as ordinarily understood; and
(c) the CEO may decide an application under s 12 by issuing a negative notice to the applicant after, relevantly, inviting the applicant to make a submission to the CEO about information concerning the applicant's criminal record of which the CEO is aware and about the applicant's suitability to be issued with an assessment notice (s 13(1)(a)), without any provision for or contemplation of a hearing for the purpose of determining facts or any other question.
112 Although s 12(8) specifies the factors which the CEO is entitled and bound to take into account in deciding whether he or she is satisfied, for the purposes of s 12(5), that, because of the particular circumstances of the case, a negative notice should be issued to the applicant, neither of those subsections expressly states what finding, if any, the CEO must make in order to reach that satisfaction. What finding then, if any, must the CEO make?
113 Some guidance on this issue may be gleaned from a closer scrutiny of the legislative scheme embodied in s 12(3), (4), (5), (6) and (7).
114 By s 12(7), if an applicant has been convicted of a Class 1 offence (other than a Class 1 offence committed when a child), a negative notice must be issued to the applicant. The CEO does not have a discretion or dispensing power. Section 12(8) does not apply. Plainly, the Parliament has determined that an applicant who has been convicted of such an offence (other than when a child) should not, in any circumstances, be issued with an assessment notice. No analysis or evaluation by the CEO of the risk or degree of risk that the applicant might cause harm to children, in the course of carrying out child-related work, is necessary or permitted. The Parliament has selected the Class 1 offences on the basis that those offences, of their nature, if committed, indicate that there is a risk or sufficient risk the offenders will re-offend by causing sexual or
(Page 36)
- physical harm to children. All of the Class 1 offences involve sexual penetration of, or serious sexual interference with, children under the age of 13. No doubt, the Parliament has taken into account the established difficulties in treating and rehabilitating people who have engaged in, and have a predilection for, paedophilia.
115 The Minister, in her Second Reading Speech, said in relation to the clause in the Bill which, upon enactment, became s 12(7):
Clause 7 of the Bill creates a class of offences for which convictions will result in an automatic bar on child-related work. These are known as class 1 offences. Assessment of such blatant sex offenders is not considered necessary. A negative notice will be automatically issued for class 1 offences. Examples of such offences are sexually penetrating a child under the age of 13 and procuring, inciting or encouraging a child under the age of 13 to engage in sexual behaviour.
- (Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6947.)
116 By s 12(6), if an applicant has been convicted of a Class 1 offence committed when a child or has been convicted of a Class 2 offence or has a pending charge in respect of a Class 1 offence or a Class 2 offence, the applicant must be issued with a negative notice, unless the CEO is satisfied that, because of the 'exceptional circumstances' of the case, an assessment notice should be issued. Ordinarily, a negative notice will be issued to the applicant. The Parliament has conferred a power on the CEO, however, where the CEO is affirmatively satisfied that 'exceptional circumstances' exist, to issue an assessment notice. Section 12(8) applies. An analysis or evaluation of the risk or degree of risk that the applicant might cause harm to children, in the course of carrying out child-related work, is required.
117 The Minister, in her Second Reading Speech, said in relation to the clause in the Bill which, upon enactment, became s 12(6):
Furthermore, another set of serious convictions of a sexual or violent nature - known as class 2 offences - will result in a bar on a person obtaining child-related work, unless assessment of the criminal record, including submission by the applicant, indicates that exceptional circumstances exist and the applicant does not pose a likely risk of harm to children. These class 2 serious offences include a much broader range of behaviours in which the context and what has happened since the offence occurred may need to be considered. Examples of class 2 offences are indecent dealings with children under 13 years of age, aggravated indecent assault, and murder. Class 1 and 2 offences are contained in schedules 1 and 2. [emphasis added]
(Page 37)
- (Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6947.)
118 By s 12(4) and (5), if an applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence, or an applicant has been convicted of an offence other than a Class 1 offence or a Class 2 offence, the applicant must be issued with an assessment notice, unless the CEO is satisfied that, because of the 'particular circumstances' of the case, a negative notice should be issued. Ordinarily, an assessment notice will be issued. The Parliament has conferred a power on the CEO, however, where the CEO is affirmatively satisfied that 'particular circumstances' exist, to issue a negative notice. Like s 12(6), s 12(4) and (5) require an analysis or evaluation by the CEO of the risk or degree of risk that the applicant might cause harm to children, in the course of carrying out child-related work. But the discretionary power under s 12(6) is more circumscribed than the discretionary power under s 12(4) and (5). Section 12(6) stipulates that 'exceptional circumstances' must exist whereas s 12(4) and (5) stipulate merely that 'particular circumstances' must exist.
119 Section 12(5) applies if an applicant has been convicted of any offence other than a Class 1 offence or a Class 2 offence. Plainly, a variety of offences, either of their nature or in the circumstances of their commission, would not, on any reasonable view, be incompatible with the objects of the WWC Act or the issue to the applicant of an assessment notice.
120 The Minister, in her Second Reading Speech, said in relation to the clause in the Bill which, upon enactment, became s 12(4) and (5):
Convictions outside of class 1 or 2 offences will usually result in an assessment notice being issued, unless the offence is assessed as having particular circumstances relevant to the likely harm of children. During the assessment period an interim negative notice may be issued if it is considered necessary for the protection of children.
The Bill provides that certain charges are to be checked. Not all offences against children result in convictions. Therefore, the Government has resolved that charges will be assessed also. We will not tolerate paedophiles who have escaped conviction for various reasons working with our children.
Charges related to class 1 or 2 offences will be assessed. These include those charges that did not result in a court conviction - known as non-conviction charges - and pending charges yet to be decided by a court. This will enable consideration to be given to sexual and violent offences
(Page 38)
- that have been dismissed on a technicality or have not proceeded because of the impact on the victim - particularly children - and the reliability of the evidence. It includes also cases that are awaiting a decision, during which time the risk is too high to allow persons to work with children. Queensland, New South Wales and the United Kingdom also assess charges for child-related work.
With regard to non-conviction charges, the onus is on the assessing authority to show cause as to why particular circumstances exist and why an assessment notice should not be issued. [emphasis added]
- (Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6947.)
121 The Minister, in her Second Reading Speech, referred to the manner in which the complex assessments contemplated by the WWC Act would be performed:
The CEO of the Department principally assisting the Minister in the administration of the Act will have the responsibility for undertaking criminal record checks of persons involved in child-related work. The current proposal is to implement this function through the establishment of a screening unit within the Department for Community Development. …
The screening unit will employ people with the child protection and legal expertise needed to make the complex decisions about whether a person's criminal history indicates likely harm of children. [emphasis added]
- (Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6948.)
122 It would be impossible, of course, to eliminate entirely any risk that any person who carries out child-related work might cause sexual or physical harm to children. At one extreme, the Parliament has decided that where s 12(7) applies, an applicant will automatically be barred from engaging in child-related work irrespective of any particular or exceptional circumstances. At the other extreme, the Parliament has decided that if the CEO is not aware of any offence of which an applicant has been convicted, or any offence (other than an offence that is neither a Class 1 offence nor a Class 2 offence) with which the applicant has been charged, the CEO must issue an assessment notice. See s 12(3). At the extremes, therefore, the Parliament prescribes the outcome of an application for an assessment notice, and no analysis or evaluation by the CEO of the risk or degree of risk that the applicant might cause harm to children is necessary or permitted. However, between the extremes, that is, where subs (4), (5) or (6) of s 12 apply, such an analysis or evaluation is contemplated.
(Page 39)
123 In my opinion, it is implicit in s 12(5) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(5) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related work.
124 'Unacceptable risk' is a familiar concept in other contexts including, for example, under the Dangerous Sexual Offenders Act 2006 (WA) and in family law disputes in relation to parenting (custody or access) matters. In M v M (1988) 166 CLR 69, the High Court held that, in considering an allegation of sexual abuse in custody or access contexts, the Family Court should not make a positive finding that the allegation is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation: Briginshaw v Briginshaw (1938) 60 CLR 336, 362. The High Court also held, however, that custody or access should not be granted to a parent if it would expose the child to an 'unacceptable risk' of sexual abuse. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm' (A v A [1976] VR 298, at p 300), 'an element of risk' or 'an appreciable risk' (Marriage of M (1987) 11 Fam LR 765, at pp 770, 771 respectively), 'a real possibility' (B v B (Access) [1986] FLC 91-758, at p 75, 545), a 'real risk' (Leveque v Leveque (1983) 54 BCLR 164, at p 167), and an 'unacceptable risk': In re G (A minor) [1987] 1 WLR 1461, at p 1469. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk
(Page 40)
- that the child would be exposed to sexual abuse if the husband were awarded custody or access (78).
- The High Court dismissed an appeal from the majority judgment of the Full Court of the Family Court, which had affirmed Gun J's decision. Also see Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 [225] (Callinan and Heydon JJ); Murphy & Murphy [2007] Fam CA 795, [243] - [305] (Carmody J).
125 The CEO's function (under s 12(5)) and the Tribunal's function (on a review application) involves an analysis and evaluation of risk. It is concerned with the prevention of potential future harm.
126 In Grindrod [No 2], I said (Wheeler JA agreeing):
The notion of 'unacceptable risk' reflects the evident policy of the WWC Act in balancing the risk of harm to children on the one hand with the civil rights of an applicant on the other. It embodies the precautionary approach that I have mentioned [82].
- I was not suggesting in this passage that the function of the CEO under s 12(4) involves or includes balancing any possible denial of benefit to children if an applicant were to be issued with a negative notice, on the one hand, against the level of risk posed by the applicant to children, on the other. Rather, I was referring to the apparent underlying rationale of the Parliament in adopting, by implication, the notion of 'unacceptable risk' in the context of s 12(4) (and, also, in the context of s 12(5)) rather than the notion of 'any risk' to children from applicants subject to s 12(4) (or s 12(5)) who apply for an assessment notice.
127 The critical question for the CEO under s 12(5) (and, on review, the Tribunal) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related work. The risk in question has to be unacceptable, not likely. The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a) the circumstances which culminated in the applicant being convicted of an offence other than a Class 1 offence or a Class 2 offence;
(b) the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and
(c) the likelihood of any such future risk materialising.
(Page 41)
128 The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(5), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.
129 Section 19(1) of the Interpretation Act1984 (WA) permits a court to refer to extrinsic material, in the interpretation of a provision of a written law, if the material is capable of assisting in ascertaining the meaning of the provision, in order to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, or to determine the meaning of the provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, leads to a result that is manifestly absurd or unreasonable. By s 19(2), the extrinsic material that may be considered in accordance with s 19(1) includes, relevantly:
(f) the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House;
130 Although my construction of s 12(5) and (8) and the other provisions of the WWC Act does not depend on any extrinsic material, I have considered the extrinsic material which I have set out at [115], [117], [120] and [121] above for the confirmatory purpose permitted by s 19(1)(a) of the Interpretation Act. The extrinsic material in question confirms that, in the context of s 12(5), an analysis or evaluation of the risk or degree of risk that the applicant might cause harm to children, in the course of carrying out child-related work, is required.
The merits of grounds of appeal 1 and 2
131 It is convenient to consider grounds of appeal 1 and 2 together.
132 It will be apparent, from what I have already written, that I do not accept the appellant's submissions as to the proper construction of s 12(5).
(Page 42)
133 As I have mentioned, although s 12(8) specifies the factors which the CEO (and, on review, the Tribunal) is entitled and bound to take into account in deciding whether he or she is satisfied, for the purposes of s 12(5), that, because of the particular circumstances of the case, a negative notice should be issued to the applicant, neither of those subsections expressly states what finding, if any, the CEO (or, as the case may be, the Tribunal) must make in order to reach that satisfaction.
134 In my opinion, based on my examination of s 12(5) and (8), in the context of s 3 and the WWC Act as a whole, and after considering the extrinsic material which I have set out at [115], [117], [120] and [121] above, the better view is that the Parliament intended that the CEO (and, on review, the Tribunal) should not issue a negative notice under s 12(5) unless the CEO (or, as the case may be, the Tribunal) finds there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related work. The Parliament did not intend that the CEO (or, on review, the Tribunal) should issue a negative notice under s 12(5) unless the CEO (or, as the case may be, the Tribunal) finds there is 'no risk' that the applicant might cause such harm.
135 Accordingly, the Tribunal did not err in failing to find that if there existed any risk that an applicant would commit an offence or a sexual offence against children, that would constitute 'particular circumstances' within s 12(5) warranting the issue of a negative notice.
136 The Tribunal held that the 'ultimate question' on the review application was whether the respondent's past convictions suggested that there is 'some appreciable risk of abuse occurring' [49]. A little later, the Tribunal found:
I do not consider that the [respondent], now 64 years of age, having worked with children for over 25 years without incident, now poses any appreciable risk to the best interests of children [52].
- The Tribunal therefore decided that an assessment notice should be issued under s 12(5).
137 The word 'appreciable' has a variable meaning. See The Macquarie Dictionary, 4th ed, page 64; TheShorter Oxford English Dictionary, 2002, page 104. It is apparent from the Tribunal's reasons, considered as a whole, that it used the word 'appreciable' in the sense of 'perceptible'. In other words, the ultimate question posed by the Tribunal was whether there was any perceptible risk of abuse occurring, and its ultimate finding
(Page 43)
- was that the respondent did not pose any perceptible risk to the best interests of children.
138 I am satisfied that the test, as formulated by the Tribunal, was not materially different in substance from the test which I have deduced from my construction of s 12(5) read with s 12(8) in the context of the WWC Act as a whole.
139 Also, it is apparent from a fair reading of the Tribunal's reasons as a whole that, in determining the review application, the Tribunal applied, in substance, the test which I have formulated in relation to s 12(5) read with s 12(8); that is, whether, on all the information and other material properly before the Tribunal, there was an 'unacceptable risk' that the respondent might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related work.
140 In my opinion, if the CEO (or the Tribunal) positively finds that there is a perceptible risk that an applicant for an assessment notice, to whom s 12(5) applies, might cause sexual or physical harm to children in the course of carrying out child-related work, that risk is unacceptable.
141 Grounds of appeal 1 and 2 fail.
The merits of proposed ground of appeal 3
142 Proposed ground of appeal 3 asserts, relevantly, that the Tribunal misconstrued the phrase 'the best interests of children' in s 12(8) in that it concluded that the absence of any other convictions of the respondent supported the conclusion that he did not pose an 'unacceptable risk' to the best interests of children.
143 I am satisfied that the respondent would not suffer any relevant prejudice if the appellant were granted leave to amend by the addition of proposed ground of appeal 3. I would therefore allow the amendment.
144 The Tribunal's reasoning in relation to the absence of any other convictions, was this:
If the 1981 conviction had occurred relatively recently, I would have no hesitation in concluding that the particular circumstances of that offence warrant the issue of a negative notice. However, the time when the offence was committed is a factor to which the legislation directs me to have regard. These are very old convictions. That is a factor which works in favour of the issue of an assessment notice rather than a negative notice. A factor which, in my view, significantly reinforces the significance of the
(Page 44)
- time since convictions is that [the respondent] has consistently worked with children, without incident, since the conviction occurred.
If [the respondent], with these convictions in his background, had not worked with children in the last 26 years and suddenly wished to start coaching, one might be concerned about an inability to assess how the applicant might conduct himself when confronted with contact with children in the particular child-related work. In this case, [the respondent] has effectively 'proved himself' by doing the very thing he seeks to continue to do, apparently in an exemplary manner [50] - [51].
- It is obvious that the Tribunal, in finding that the respondent had consistently worked with children in the last 26 years 'without incident', meant without any reported incident.
145 In my opinion, the Tribunal took into account the absence of any other convictions of the respondent as one factor, to be weighed with other relevant factors, in determining, in substance, whether there was an 'unacceptable risk' that the respondent might cause sexual or physical harm to children, in the course of carrying out child-related work, if he were to be issued with an assessment notice.
146 The Tribunal did not misconstrue the phrase 'the best interests of children' in s 12(8). It understood that the best interests of children require, relevantly, that children be protected from harm as a result of the conduct of persons with whom they have contact in the course of those persons carrying out child-related work. The Tribunal noted that 'the personal effect of a negative notice on the [respondent] must be ignored if his continued coaching involves risk [that is, in context, appreciable risk] to children' [49]. Also, the Tribunal understood that the criterion of 'the best interests of children' was the paramount and overriding consideration; that is, the other factors in s 12(8) were subordinate to it [12].
147 Ground of appeal 3 is without merit.
Should the name of the respondent be suppressed?
148 Section 62(1)(c) of the SAT Act provides that s 62 applies to any information that might enable a person who has appeared before the Tribunal to be identified. By s 62(3), on the application of a party or on its own initiative the Tribunal may, in the circumstances described in s 61(4) of the SAT Act, order that anything, or any particular thing, to which s 62 applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal. Section 61(4) of the SAT Act provides, relevantly, that the Tribunal may make an order if the Tribunal considers it is necessary to do so, relevantly:
(Page 45)
- …
(g) to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or
(h) for any other reason in the interests of justice.
149 Section 39 of the WWC Act imposes an obligation of confidentiality on persons engaged in the performance of functions under the Act, with respect to information obtained in the course of the performance of their functions, and creates an offence for contravention of that obligation. However, nothing in the WWC Act imposes any restriction on the publication of such confidential information by courts hearing and determining proceedings under or in connection with the Act. The courts are to apply existing statutory or common law principles, as the case may be, governing the publication of information tendered in evidence or otherwise before them.
150 In the present case, the Tribunal decided that the respondent's name should not be published [53] - [54]. The Tribunal said:
an applicant who successfully obtains review of the CEO's decision should not suffer the very significant prejudice of having his or her identity or background published to the world, where, if the original decision had been the correct and preferable decision, that would not have occurred [53].
151 As I noted in Grindrod [No 2], it is necessary for this court to consider whether the appeal to this court should be conducted on the basis that the respondent's name is not to be published. This court has inherent jurisdiction to order that the respondent's name not be published. See TK v Australian Red Cross Society (1989) 1 WAR 335.
152 In Grindrod [No 2], I summarised the applicable legal principles, as follows:
However, it is, of course, a fundamental feature of the Australian judicial system that proceedings be conducted by a court which is, and is seen to be, independent and impartial, and that those proceedings should, with strictly limited exceptions, be conducted in public. See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 343 [3]; R v Tait (1979) 46 FLR 386, 402; Russell v Russell (1976) 134 CLR 495, 520.
As Steytler J (as his Honour then was) noted in Reynolds v Panten [No 1] [1999] WASCA 89; (2000) 23 WAR 215, 234 [89], there is no doubt that there is a heavy evidentiary onus on a party to legal proceedings in a court who seeks any restriction on the publication of those proceedings. That
(Page 46)
- principle extends to the suppression of the name of a party. I note that an appeal from Steytler J's decision was dismissed: Reynolds v Panten [No 2] [2000] WASCA 412; (2000) 23 WAR 238 [115] - [116].
153 I was not persuaded, in Grindrod [No 2], that it was in the interests of justice that the respondent's name in that case should be suppressed. The public interest in open justice prevailed over the respondent's private interest. Wheeler JA agreed.
154 In the present case, the respondent submitted that:
(a) unlike Grindrod [No 2], the evidence before this court discloses that only very limited 'publication' of the respondent's convictions has been made to the parents whose children have been coached by the respondent;
(b) the media is likely to be interested in these proceedings;
(c) the publication of the respondent's name would not have occurred, and his prior criminal record would not have been disclosed, if this appeal (which is to be dismissed) had not been brought;
(d) the publication of the respondent's name, and the disclosure of his prior criminal record, may adversely affect his coaching activities even though the Tribunal has decided that he should receive an assessment notice under the WWC Act (and this court has decided to dismiss the appeal);
(e) the respondent has made a positive contribution to the community for 25 years in his capacity as a coach and intends to continue in that role;
(f) the publication of the respondent's name may cause embarrassment or distress not only to the respondent, but also to the victims of his criminal offences (even though they occurred many years ago) and expose the respondent to threats or discrimination; and
(g) if the respondent's name is published, his students and their parents may be identified and criticised as a result of their past, current or future association with him.
155 In the present case, whether the respondent's name should be published or not raises a question of public interest which is more important than the private interests of the parties. I accept that the publication of the respondent's name will cause him embarrassment and, possibly, some distress. Also, it is possible that there may be some adverse impact upon the respondent's coaching activities, but it is more
(Page 47)
- likely that people with whom he has established a relationship, in the context of his coaching activities, will view his prior criminal record in a manner similar to the views expressed by the Tribunal in its findings. No reasonable person would criticise the respondent's students or their parents. The respondent's criminal offences occurred many years ago and it is unlikely that publication of his name would materially exacerbate any distress or trauma which the victims may continue to experience. I am satisfied that, in the present case, the matters raised on behalf of the respondent do not, either singly or in combination, require that the respondent's name be suppressed. Effect must be given to the public interest in open justice. This court should not, in these reasons or in the formal orders it makes in the appeal, suppress the respondent's name.
Conclusion
156 I would grant leave to appeal on grounds of appeal 1, 2 and 3 but, for the reasons I have given, I would dismiss the appeal.
157 NEWNES AJA: For the reasons given by Buss JA, I would grant leave to appeal but dismiss the appeal.
158 As McLure JA has reached a different conclusion on the question of the construction of s 12(5) of the Working with Children (Criminal Record Checking) Act 2004 (WA) (the Act), I should specifically say that I agree with Buss JA that the appellant is not entitled to issue a negative notice under s 12(5) unless satisfied there is an 'unacceptable risk' - in that there is a perceptible risk - the applicant might cause sexual or physical harm to children in the course of carrying out child-related employment.
159 Under s 12(5), an assessment notice is to be issued unless the appellant is satisfied that a negative notice should be issued 'because of the particular circumstances of the case'. The relevant wording of s 12(4) of the Act is identical. In Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28, Buss JA (with whom Wheeler JA agreed) concluded [81] that the relevant test under s 12(4) of the Act was whether the appellant was satisfied that there was an 'unacceptable risk' the applicant might cause sexual or physical harm to children in the course of carrying out child-related employment. While not directly deciding the point, Murray AJA appeared [172] to accept that that was an appropriate test. For the reasons given by Buss JA in this case, I consider that the test applied in Grindrod is also appropriate in relation to s 12(5).
(Page 48)
160 Like Buss JA, I do not consider that the test posed by the Tribunal in this case, namely whether there was any 'appreciable risk' that the applicant might cause sexual or physical harm to children, is materially different. While 'appreciable' is, like many English words, capable of bearing more than one meaning, in the context of the Tribunal's reasons it is, in my view, clear that the Tribunal was using 'appreciable risk' in the sense of a perceptible or discernible risk. The Tribunal's finding that the respondent posed no such risk was clearly open on the material before it.
161 On the question of whether the respondent's name should be published, I have, however, reached a different conclusion to that of Buss JA.
162 The Tribunal considered that in the circumstances of this case the name of the respondent (the applicant before the Tribunal) should not be published. It is, I think, clear from the reference in its reasons for decision to the discussion in D and Department for Community Development [2007] WASAT 154, that the Tribunal was mindful of the importance of the general principle that the proceedings of the Tribunal should be open and accessible to the public at large. In concluding that, in the circumstances of this case, the respondent's name should not be published, the Tribunal was guided by the consideration that if an application is dealt with by the appellant, s 39 of the Act protects the confidentiality of information obtained for that purpose under the Act, and makes it an offence to disclose that information. The Tribunal concluded that, accordingly, the respondent, having succeeded in having the appellant's decision set aside, should not suffer the very significant prejudice of having his identity and background published to the world, in circumstances where, if the correct and preferable decision had been made by the appellant, that would not have occurred.
163 The appellant did not appeal against the decision of the Tribunal that the name of the respondent not be published. I consider there is no reason why this court should now permit the respondent's name to be published in connection with this appeal. In my view, it is not necessary for the attainment of the purposes of the Act and, in the circumstances of this case, it is not in the interests of justice to do so.
164 It is, as Buss JA has pointed out, a fundamental feature of our judicial system that proceedings be conducted by a court which is, and is seen to be, independent and impartial, and that those proceedings should, with strictly limited exceptions, be conducted in public. The proceedings must be accessible to the public at large so that the court or tribunal
(Page 49)
- remains accountable and its processes subject to public scrutiny. It is inherent in those principles that any restriction on the publication of such proceedings should be strictly limited to those particular cases where it is (and then only to the extent it is) necessary in the interests of justice. The onus lies on a party who seeks to restrict the publication of any part of the proceedings to justify the exception that they seek. It is inevitably an onus that will not easily be discharged.
165 There can, of course, be no hard and fast rules as to the circumstances which will justify an exception to the rule that proceedings of the court are to be open and accessible to the public. Each case must depend upon its own particular facts. But it must not be forgotten that in the end the duty of the court is to administer justice according to law and, as Murray AJA observed in Grindrod [190], the principle of open justice should not be allowed to operate in a way which threatens the attainment of just process and a just result. It is to avoid such a result that the court has an inherent jurisdiction to make appropriate orders modifying the principle of open proceedings in a particular case where it is necessary in the interests of justice for that to be done.
166 In Grindrod, the court (Buss JA, with whom Wheeler JA agreed, Murray AJA dissenting) upheld an appeal by the Chief Executive Officer, Department for Child Protection against an order of the Tribunal that the respondent in that case be issued with an assessment notice. The majority concluded [110 - 117] that the name of the respondent should not be suppressed. There, however, it was a significant consideration that the respondent's name had previously been published in the reasons of the Court of Criminal Appeal, on his appeal against conviction, so that his name and the facts relating to his 'non-conviction charges' were already in the public domain.
167 In the present case, this court has found that there are no grounds upon which it should interfere with the decision of the Tribunal to set aside the decision of the appellant to issue a negative notice to the respondent and to order that the respondent is entitled to an assessment notice. If this court were now to decline to order that the respondent's name not be published on this appeal, the effect, for all practical purposes, would be to undermine the (unchallenged) order of the Tribunal that the respondent's name not be published and to expose the respondent to the prejudice that caused the Tribunal to make that order.
168 I do not consider that it is in the interests of justice to take that course. If the respondent's name is not suppressed his background will be
(Page 50)
disclosed to the world at large and there is plainly a substantial risk that that will have a serious and enduring prejudicial effect on the respondent in his everyday life. The process of application by the respondent for an assessment notice under the Act, with which the proceedings before the Tribunal and on this appeal were concerned, was not intended by the legislature to reveal material of such a nature to the public. The respondent is exposed to the risk of its disclosure solely by reason of an unsuccessful appeal brought by the appellant, who, I should say, does not press for the disclosure of the respondent's name. And while it is of fundamental importance that proceedings should take place in open court and be accessible to the public, in the present case the publication of the decision and reasons of the court will substantially achieve the objectives of the principle of open justice without the disclosure of the name of the respondent.
169 I would order that the respondent's name not be published and, in my view, the reasons for decision of this court should be published in a way that does not identify the respondent.
133
23
3