CJT v Office of the Children's Guardian

[2016] NSWSC 738

Supreme Court

New South Wales

Medium Neutral Citation:	CJT v Office of the Children’s Guardian [2016] NSWSC 738
Hearing dates:	8 April 2016
Decision date:	08 June 2016
Before:	Fullerton J
Decision:	1. The amended summons is dismissed. 2. The plaintiff is to pay the defendant’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – child protection – working with children – real and appreciable risk
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	BKE v Office of Children’s Guardian and Anor [2015] NSWSC 523 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 M v M [1988] HCA 68; 166 CLR 59 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Category:	Principal judgment
Parties:	CJT (Plaintiff) Office of the Children’s Guardian (Defendant)
Representation:	Counsel: G Mahony (Defendant)   Solicitors: In person with agent (Plaintiff) Crown Solicitor for NSW (Defendant)
File Number(s):	2015/349994
Publication restriction:	Non-publication order re plaintiff’s name
Decision under appeal	Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2015] NSWCATAD 246 Date of Decision: 24 November 2015 Before: J McAteer Senior Member File Number(s): 1510190

Judgment

1. HER HONOUR: By amended summons filed 8 January 2016, the plaintiff appeals the whole of the decision of the New South Wales Civil and Administrative Tribunal ("the Tribunal") in which the decision of the Children’s Guardian to refuse to grant the plaintiff a working with children check clearance (“a clearance”) under s 13 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Working with Children Act”) was affirmed.

2. The appeal is brought pursuant to s 84 of the Civil and Administrative Tribunal Act 2013 (NSW) (the “NCAT Act”). The plaintiff has standing to bring the appeal but only as to a question of law.

3. The errors of law relied upon by the plaintiff as invalidating the Tribunal’s decision include the following:

1. Error on the face of the record constituted by an erroneous construction of the scheme of the Working with Children Act, in particular the construction of ss 27 and 28 of the Act which are concerned with the assessment of future risk;

2. A failure to properly consider the documentary material available to the Children’s Guardian and what are said to be inconsistencies in that body of material and its doubtful provenance;

3. A failure to take into account relevant considerations, including testimonials attesting to his good character and statutory declarations by him that he is innocent of any criminal conduct;

4. The Tribunal’s failure to disclose the approach it would take to the assessment of future risk, inclusive of the approach it would take to the fact that the plaintiff had been charged with criminal offences that were not prosecuted, denied the plaintiff procedural fairness; and

5. Legal unreasonableness constituted by:

1. The Tribunal’s illogical path of reasoning from unsubstantiated allegations of criminal conduct to a finding of a tendency or risk of harm;

2. An illogical chain of reasoning to the conclusion that the plaintiff is at risk of recidivism; and

3. The Tribunal’s failure to articulate the methodology it employed in the calculation of risk.

4. The plaintiff seeks an order setting aside the Tribunal’s decision and, if the Court considers it appropriate, an order that the Children’s Guardian grant the plaintiff a working with children clearance.

5. The plaintiff also seeks a declaration under s 75 of the Supreme Court Act 1970 (NSW) that the power of the Children’s Guardian under the Working with Children Act to refuse to grant a working with children clearance be limited to ensure that what the plaintiff claims was the wrongful exercise of the power to refuse to grant him a clearance is not repeated. Irrespective of whether the plaintiff has standing to seek a declaration in the terms pleaded in the summons (as to which I have considerable doubt), a declaration as to the meaning and operation of the Working with Children Act is not susceptible to declaratory relief under s 75.

6. The plaintiff relied upon an affidavit affirmed on 26 November 2015 including annexures of 80 pages and a further affidavit affirmed by him on 8 March 2016 including annexures of 150 pages).

7. On the hearing of the appeal I permitted the plaintiff’s wife to address the discursive written submissions prepared by her on the plaintiff’s behalf, and invited her to identify the precise basis upon which each of the grounds for legal error are said to be reflected in the course of the proceedings before the Tribunal, including the evidence tendered at the hearing, and in the Tribunal’s reasons for decision.

8. I was not taken to any of the filed material (including the transcript of proceedings before the Tribunal or the reasons for decision) in support of either the second or third grounds of appeal. I have, however, taken into account that material, to the extent necessary, for the purposes of considering whether error has been made out in respect of those, or any of the grounds of appeal that are pressed.

9. For the reasons that follow, I am satisfied that the Tribunal’s decision is devoid of legal error and that the amended summons should be dismissed.

Background to the Tribunal’s decision

10. The Office of the Children's Guardian is the administrator of the statutory scheme under the Working with Children Act which operates to prohibit disqualified persons, or those without a working with children check clearance, from engaging in child-related work and by providing a scheme for the issue of a clearance to approved applicants. The safety, welfare and wellbeing of children and, in particular, protecting them from the risk of abuse, are the overriding objectives to which the operation of the Act is directed.

11. Section 8(1) of the Working with Children Act prohibits a person from engaging in child-related work unless that person holds a clearance or has made an application for the issue of a clearance. A breach of s 8(1) is a criminal offence.

12. On 13 May 2014, the plaintiff applied to the Children’s Guardian for a clearance under s 13 of the Act, it being his intention to work with children in a volunteer capacity in a community-based organisation affiliated with his church. A person wishing to obtain a clearance must make an application in the form approved by the Children's Guardian. Section 13(3) provides that the approved form must authorise the Children's Guardian to undertake a criminal record check in respect of the applicant. It must also make provision for the applicant to give consent for the Children’s Guardian to undertake any inquiry into additional matters prescribed in s 13(3).

13. If, as a result of any checks conducted by the Children’s Guardian, a conviction for an offence specified in Schedule 2 of the Act is recorded, or an applicant is subject to current or pending proceedings for an offence specified in Schedule 2 to the Act, the Children's Guardian must refuse to issue a clearance.

14. If any of the matters referred to in Schedule 1 of the Act apply to an applicant for a clearance, s 14 of the Act obliges the Children's Guardian to conduct a risk assessment in accordance with s 15(1) of the Act to determine whether the applicant poses a risk to the safety of children.

15. At the date of filing his application for clearance the plaintiff had been charged with three offences contrary to ss 61I, 61J and 61N of the Crimes Act 1900 (NSW). His former partner was the complainant.

16. On 17 July 2014, the plaintiff was advised by the Children’s Guardian that as those offences included a disqualifying record specified in Schedule 2 of the Act (being a pending charge for a disqualifying offence), his application for a clearance to work in any paid or voluntary child-related employment had been refused in accordance with s 18(1)(b) of the Working with Children Act.

17. The plaintiff was committed for trial to the District Court on each of the three charges with the trial listed to commence on 13 November 2014. The matters did not ultimately proceed to trial, the complainant having advised the Crown that she was not willing to give evidence.

18. Upon the formal entering of a nolle prosequi in respect of each of the charges, the plaintiff was no longer the subject of a disqualifying event under s 18(1)(b) of the Act, however, by operation of s 14 and Schedule 1(1)(b) of the Act, before issuing a clearance the Children’s Guardian remained obliged to conduct a risk assessment of the plaintiff in accordance with s 15 to determine whether he posed a risk to the safety of children.

19. Section 15 provides:

15   Assessment of applicants and holders

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

(2)  ...

(3)  ...

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

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

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

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

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

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

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

(g)  the person’s present age,

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

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

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

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

(4A)  The Children’s Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children’s Guardian is satisfied that:

(a)  a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and

(b)  it is in the public interest to make the determination.

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

20. The plaintiff was advised by the Children’s Guardian that he would be subject to a risk assessment before his application for a clearance could finally be determined and that during the currency of that process he was subject to an interim bar, imposed under s 17 of the Act, the effect of which was to make it an offence for him to work in any child-related role, whether in a paid or voluntary capacity.

21. On 18 December 2014, the plaintiff was advised by the Children’s Guardian that records had been identified which indicated the likelihood of him posing a risk to the safety of children. The criminal records from New South Wales and South Australia were identified in the correspondence. The South Australian records included the fact that in 2004, he had been charged with two counts of indecent assault and one count of unlawful sexual intercourse, in each case with a person under the age of 12 years, namely 11 years. Upon further enquiry, the Children’s Guardian was advised by police that the charges were not ultimately prosecuted, it being the opinion of the prosecuting authorities that there was no reasonable prospect of conviction as the child complainant was unable to recall the incidents in sufficient detail.

22. The plaintiff liaised with the Office of the Children's Guardian from time to time between July 2014 and February 2015 concerning the progress of his application and the nature of the risk assessment that was being undertaken. It is unnecessary to refer to that material save as to note that the plaintiff’s attitude to the case officer who had carriage of the matter within the Office of the Children's Guardian became increasingly strident with repeated allegations of police corruption and repeated assertions of his innocence of any wrongdoing. That course of correspondence and the notes of telephone conversations with the plaintiff formed part of the material considered by the Children’s Guardian in its ultimate determination to refuse to issue a clearance. It was also considered by the Tribunal as part of the material relied upon by the Children’s Guardian as respondent to the proceedings. Some of that material was included in the appeal books. The balance of the material in the appeal book comprised the material gathered by the Children’s Guardian as part of the assessment process, including a number of incident reports concerning the plaintiff’s conduct vis a vis a number of children and young people, material which was also relied upon by the respondent before the Tribunal. It is not suggested that the plaintiff was unaware of this material.

23. On 12 March 2015, the Children’s Guardian notified the plaintiff that it had completed the risk assessment and that it proposed to refuse his application for a clearance. He was invited to provide any additional information in support of his application before a final determination was made, including such references from independent professionals or employers as he may be able to provide, who might be able to address his capacity for unsupervised or supervised work with children. A copy of s 15 of the Act was enclosed with that correspondence, together with pro forma references.

24. On 23 March 2015, the plaintiff was informed that the Children's Guardian had determined to refuse him a clearance, the risk assessor being satisfied that he posed a risk to the safety of children. Reference was made to the specific matters set out in s 15(4) of the Act that had been taken into account by the risk assessor, in particular:

● The seriousness of the matters

● The period of time is considered to be insufficient for the OCG to be satisfied that you do not pose a risk to the safety of children

● The difference in age between you and the complainant

● The vulnerability of the complainants

● Your relationship with the complainants

● You knew, or could reasonably have known, that the complainant was a child.

25. The plaintiff was also informed that the information he had provided was considered insufficient to displace the combined weight of the matters in s 15(4):

● Despite all of the information used in the risk assessment being disclosed to you, your statutory declaration did not address the relevant records and did not mitigate the risks as indicated in your records.

● The limited weight that can be placed on the reference written by your wife Roxanne Della Bosca as it was personal rather than work related.

● The limited weight that can be placed on the reference written by your GP Dr Omer Mohmand because the reference does not indicate any knowledge of the relevant records or treatment provided to you by Dr Mohmand in relation to the relevant records. This reference does not pertain to child-related employment.

26. He was also advised that although the interim bar issued under s 17 of the Working with Children Act had been revoked, were he to work with children in any capacity he would be liable to prosecution.

27. On 2 April 2015, the plaintiff filed an application for review of the decision to refuse him a clearance as provided for in s 27 of the Working with Children Act.

28. The matter was listed for hearing on 11 August 2015.

29. In oral submissions before the Tribunal, which extended over the course of the hearing day, the plaintiff’s wife, who was granted leave to appear as the plaintiff’s agent pursuant to s 45(1)(b)(i) of the NCAT Act, identified two issues which she argued should determine the application for review in favour of a clearance being granted to the plaintiff. She submitted that:

1. The Children’s Guardian could not have been satisfied that the plaintiff posed a risk to children on the available evidence; and

2. International conventions and covenants operated so as to prohibit the Tribunal from making a positive finding that the conduct the subject of the criminal charges occurred and, that being the case, there was no evidence that the applicant posed a “real and appreciable” risk to the safety of children for the purposes of s 18(2) of the Act.

30. In essence, she argued that neither the Children’s Guardian nor the Tribunal had legislative authority to make a finding as to the plaintiff posing a future risk (to the safety of children), or even make an assessment as to future risk, in circumstances where he had not been convicted of a relevant offence.

31. At the conclusion of the hearing, the plaintiff was granted leave to file further submissions of ten pages or less by 21 August 2015. On 21 August 2015, he filed a 44-page document.

32. On 24 November 2015, the Tribunal published its reasons for decision.

The Tribunal’s decision

33. The Tribunal member correctly identified the issue for determination as an inquiry, by way of a merits review, as to whether, having regard to the material tendered in the proceedings, the correct and preferable decision is that the applicant be granted a working with children check clearance, and correctly identified s 27(1) of the Working with Children Act as the source of the Tribunal’s jurisdiction.

34. The Tribunal member also correctly identified the nature of the jurisdiction exercised by the Tribunal under s 27 of the Act as protective and not punitive and, since the applicant was not a disqualified person under s 28 of the Act but a person who had been assessed as posing a risk to children, neither party bore an onus of proof, that is, the Children’s Guardian, as respondent to the review application, was not obliged to prove the plaintiff did pose a risk to the safety of children and the plaintiff was not obliged to prove he did not. The submission advanced in the written submissions that the Tribunal member either did not appreciate the fact that the plaintiff bore no onus of proof, or that he imposed an evidential or legal onus on the plaintiff in his assessment of risk, is rejected.

35. Accordingly, the issue for determination in the Tribunal’s statutory review of the decision of the Children’s Guardian to refuse a working with children clearance was whether, having regard to the matters contained in s 30(1) of the Act, the Tribunal was satisfied that the applicant posed a risk to the safety of children, with that issue to be determined on the balance of probabilities.

36. The Tribunal member correctly identified the factors in s 30(1) of the Act he was obliged to consider in determining that question. Section 30 was set out in full in the reasons for decision as follows:

30 Determination of applications and other matters

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

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

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

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

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

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

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

(g) the person’s present age,

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

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

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

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

37. I note that the matters specified in s 30(1)(a)-(k) mirror, in large part, the matters that were considered by the Children’s Guardian under s 15 of the Act, save for the fact that where the Tribunal was obliged to consider all the matters in s 30(1), the matters listed in s 15(1) are not mandatory considerations.

38. The Tribunal member applied the meaning of the word “risk” in the context of the issue for determination consistently with a number of the Tribunal’s decisions, and decisions of this Court, in which the observations of Young CJ (in equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 have been applied. At [42], his Honour said:

… one does not define risk as meaning minimal risk. One would … exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". …

39. His Honour’s observations as to the meaning of the word “risk”, as it appeared in the former Child Protection (Prohibited Employment) Act 1998 (NSW) has been consistently applied in construing the concept of a “risk to the safety of children” for the purposes of ss 27 and 28 of the Working with Children Act. In BKE v Office of Children’s Guardian and Anor [2015] NSWSC 523, Beech-Jones J had occasion to construe the meaning of risk in the context of s 28, a section which is concerned with applicants for a clearance who are disqualified or ineligible persons. At [26], his Honour applied the analysis of Young CJ (in equity) in V, and held that the test in the Working with Children Act is whether the applicant poses a risk to the safety of children, a risk which must be assessed as “real and appreciable”.

The first ground of appeal

40. The plaintiff’s first ground of appeal contends error in the Tribunal member’s construction of the Working with Children Act, in particular, s 27 of the Act. It was not submitted that there was error in his application of the meaning of risk as articulated in V per se. The plaintiff appears to accept that “risk” to the safety of children means the same in s 27 as it has been held to apply to s 28, that is, a real and appreciable risk. His submission is that the Tribunal member has failed to give emphasis and meaning to what is said to be a quantitative measure of risk in V, being a risk “greater than the risk of any adult preying on a child”.

41. It was further submitted that the plaintiff was not a candidate for a risk assessment under the Act at all because he has not been convicted of a criminal offence and, in those circumstances, the Tribunal member and the Children’s Guardian have exceeded their legislative authority in undertaking a risk assessment of him at all. In addition, it was submitted on the plaintiff’s behalf that, because he has attested to his innocence of any criminal wrongdoing and has attested to his abhorrence of all and any criminal acts involving sexual misconduct in his statutory declaration relied upon in support of his application, he should be believed, thereby eschewing any proper basis for a risk assessment to be undertaken. Finally, it was submitted that the failure of the Tribunal member (and the Children’s Guardian) to undertake a qualitative or quantitative assessment of risk referable to a replicable methodology such as might admit of an objectively verifiable assessment of risk also constitutes error.

42. A further feature of the plaintiff’s case before the Tribunal was to take issue with the approach of Beech-Jones J in BKE, where his Honour adopted and applied the reasoning in M v M [1988] HCA 68; 166 CLR 59 to the approach to fact finding which is inherent in the process of undertaking a risk assessment. The Tribunal member summarised that aspect of the plaintiff’s submissions as follows:

[76] … Significantly submissions focused on whether the Tribunal being satisfied that a particular allegation on the available evidence had not been made out, whether the Tribunal could still be satisfied that the applicant did not pose a real and appreciable risk.

[77] In M v M [1988] HCA 68; 166 CLR 59 the Court was considering a finding from the Family Court of Australia and whether there was an unacceptable risk to the child. The Court stated at paragraph 23 and 24:

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

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

[78] That case was concerned with whether there existed an unacceptable risk that the child would be exposed to harm in the nature outlined. At paragraph 25 the Court examined the various risk references:

25. 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] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 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 B CLR 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.

[79] In the present case the relevant test is to consider whether the applicant poses a 'risk to the safety of children'. (Section 18 (2)) and that the risk is 'real and appreciable' (as per Young CJ in Eq in Commission for Children and Young People v V).

[80] In the case of BKE the following was provided in respect of consideration of the matters arising from M v M. At paragraph 33 Beech-Jones J observes:

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

43. I am satisfied that the Tribunal member’s approach to the risk assessment he was obliged to undertake is in accordance with authority and is otherwise devoid of error in approach or application. The submission that an assessment of risk for the purposes of s 18(2) of the Working with Children Act dictates that some actuarial assessment of future risk needed to be undertaken by the Tribunal member (or the Children’ Guardian) is to entirely misunderstand both the statutory scheme in the Act and the jurisprudence that has developed as the State and Federal legislatures have responded to the prevalence of child abuse in a wide variety of legislative contexts.

44. The assessment of the risk an applicant for a clearance might pose to the safety of children, when that person has not been convicted of a scheduled offence, calls for an evaluative judgment based on all the information available to the decision-maker. It is clear from the reasons for decision that the Tribunal exercised its own evaluative judgment in the assessment of risk on the materials available to it (including, the plaintiff’s statutory declaration) and that the correct legal tests were applied by the Tribunal member in doing so. The Tribunal member’s reasons for ultimately concluding that the plaintiff posed a risk to the safety of children were also clearly articulated. I am also satisfied that the Tribunal member was at pains to ensure the plaintiff understood the question for determination and the fact that the plaintiff was not a person with a criminal record would not be determinative of that question. The ground of appeal which complains he was denied procedural fairness is also rejected.

The course of the hearing and the Tribunal member’s assessment of risk

45. In his reasons for decision, the Tribunal member summarised the course of the hearing and the evidence which was tendered. He noted that the evidence tendered by the Children’s Guardian, as respondent, comprised the compendious body of material upon which the Children’s Guardian had relied in refusing to issue a clearance. The Tribunal member summarised that material by noting:

[34] … [It] comprised matters relating to police and court records from New South Wales and interstate, material which the applicant had provided the respondent during the assessment process, file notes, reasons for decision in respect of the bar, material concerning statements and medical reports from other parties and copies of the relevant communications between the parties during the assessment and decision making process.

[35] In addition material was tendered by the respondent in response to summons issued for interstate records concerning the applicant. Amongst these records was DVD recording of an exchange/interview between South Australian Police and the applicant in respect of various allegations. The recording did not involve police custody or a police station, but occurred at the applicant's residence.

46. The Tribunal member also noted that the plaintiff tendered the statutory declaration referred to above in which he attested to his innocence in respect of all of the allegations of criminal conduct. The Tribunal member also noted:

[36] ... [The plaintiff] also attested to his negative views and abhorrence of some forms of sexual conduct (be they prohibited activities - such as sexual assault and matters involving children) or some legally permissible activities (such as sexual activity between consenting adults outside of marriage, same sex relations etc.).

[37] Other material tendered by the applicant comprised general character / employer references and a copy of a bail report concerning a third party where the applicant was the Guarantor of the Defendant. All of the material filed by the applicant was brief in nature, as contrasted with the large volume of material provided by the respondent. It was also submitted that it showed the applicant in a favourable light and countered the unproven allegations made against him in the past and the submissions currently advanced by the respondent.

47. As the Tribunal member made clear in his reasons for decision, the evidence tendered at the hearing by both parties was considered by him referable to each of the mandatory considerations in s 30(1) of the Act. He dealt with each of those considerations in turn.

(a) The seriousness of the matters that caused a refusal of a clearance or imposition of an interim bar.

48. The Tribunal member referred to the charges laid against the plaintiff in South Australia in 2004, and those laid in New South Wales in 2007. In respect of the 2004 charges, he noted they related to allegations that the plaintiff had kissed the child on the mouth, inserted his tongue into the mouth and digitally penetrated her vagina in her father’s caravan, after the father had left his daughter with the plaintiff for approximately 20 minutes. The plaintiff was a friend of the child’s father. He was a single parent with whom the plaintiff had developed a relationship. The Tribunal member noted that evidence from the child’s father was to the effect that the plaintiff had befriended him, offering advice on parenting and claiming he had experience working with welfare agencies.

49. The allegations made by the plaintiff’s former partner included his physical restraint of her and having sexual intercourse with her against her consent in the course of which she sustained soft tissue injuries, abrasions, bruising and external injuries to her genitals.

50. The Tribunal member correctly noted that neither suite of criminal charges resulted in criminal convictions, the complainant in each case having either indicated to the prosecuting authorities an unwillingness to give evidence or being assessed as an unreliable historian.

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

51. The Tribunal member noted that in the intervening period of ten years or so between the two suites of criminal charges, the plaintiff had come to adverse attention when police received a complaint that he was loitering around a primary school in South Australia. In 2012, further allegations involving the plaintiff and a 16 year old female were reflected in case notes and a DVD supplied by South Australian police. The Tribunal member noted that upon viewing the DVD (which contained a police interview with the plaintiff) the plaintiff was given an official warning under South Australian legislation.

(c) The age of the person at the time the matters occurred.

52. The Tribunal member noted that the applicant, who was born in 1967, was approximately 36 years of age at the time of being charged in South Australia and 46 years of age when he was charged with the offences in New South Wales.

(d) The age of each victim and any matters relating to the vulnerability of the victim.

53. The Tribunal member noted that the child complainant was approximately 11 years of age and the adult complainant was 47 years of age. In respect of that complainant, the Tribunal member noted that she was diagnosed with schizophrenia and, with that knowledge, the plaintiff had encouraged her to consume recreational drugs despite knowing of her psychological frailty.

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

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

(g) The person’s present age.

54. No additional observations were made under these subsections of s 30(1), the Tribunal member having already noted the difference in ages between the plaintiff and the child and the adult complainants.

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

55. The Tribunal member acknowledged that the plaintiff did not have a criminal record. He also noted that, so far as the evidence before him was concerned, there was little evidence from the plaintiff as to his social or work-based activities, save for his involvement in a Christian church group that conducts street preaching and his wish to participate in that group. In the result, the Tribunal member observed that he had no detailed information addressing the plaintiff’s involvement in any other community-based or work-related environment.

(i) The likelihood of any repetition by the person of the conduct and the impact on children of any such repetition.

56. The Tribunal member considered that it was difficult to address the likelihood of any repetition of the offending the subject of complaints in 2004 and 2013, or its impact on children, in the absence of finding that the conduct relied upon by the Children’s Guardian as grounding a risk to the safety of children in fact occurred, as to which he made a finding in the following terms:

In making a finding as to whether the criminal allegations (involving charges) occurred, I find that I am unable to make a positive finding. In doing so I find that the evidence in the form submitted at the hearing is (in my view) not sufficient to establish those allegations to the civil standard. That is not to suggest that the allegations have no truth, (or in the alternative - have truth), but rather that I am unable to positively determine them, in that I am required to be reasonably satisfied as to their veracity (on the balance of probabilities). Therefore whether those matters occurred, or did not occur remains open.

57. The Tribunal member did note, however, that the incidents where the plaintiff was alleged to have misconducted himself, or where there was a risk where he might misconduct himself, including towards children, involved what he described as “a potential pattern of conduct involving sex based allegations relating to vulnerable victims with whom there was an established relationship of trust”. He went on to observe that were that pattern of behaviour to be repeated in the future, the impact on any victim would be significant.

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

58. Given the plaintiff’s complaint that he was denied procedural fairness by the Tribunal as one of the errors of law warranting the intervention of this Court, it is appropriate to set out the Tribunal member’s consideration of the information provided by the plaintiff in full:

[61] As outlined … , the applicant has provided minimal material in support of his case. His agent submits that there is no case to answer. In this regard the applicant has predominantly refused to take an active evidence based role in the proceedings, largely rebutting the respondent's position by way of objections, and challenges to the jurisdiction of the Tribunal and the respondent generally. I do note that this 'challenge' is not directed at the working with children scheme generally, but in matters whereby an adverse risk assessment arises from matters that have not been determined to the requisite standard by a criminal court. This is the applicant's main challenge to the respondent's decision. That is, that no adverse finding has been made against him in the criminal jurisdiction.

[62] Whilst in the main the applicant has chosen not to file or give oral evidence in the proceedings, he was advised a number of times during the proceedings that the Tribunal would make the correct and preferable decision having regard to the legislation and all of the evidence and material before it.

[63] The applicant's 'response to respondent's submission' dated 6 August 2015 were prepared by the applicant's agent who is his spouse. Those submissions set out to rebut the respondent's arguments and infer that to draw an inference that the applicant is a risk to the safety and well-being of children, (from those two suites of charges),

Would be violating article 14(2) of the International Covenant on Civil and Political Rights ratified by Australia in 1980 which states, 'Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law.'

[64] A large number of other arguments were made in these submissions, and written submissions prepared after the hearing of the matter. However in the main these matters related to technical legal rebuttals of the respondent’s case, which were predominantly argued in the absence of [any] exculpatory evidence to support the applicant's position.

[65] This situation was also repeated in the 'Plaintiff's Response to s.58 documents', which the applicant filed in May 2015. In that document the applicant either requested that certain material relied upon by the respondent be rejected, or for just under half of the material the response entailed: 'No comment at this stage'.

[66] I have read and considered all of the written material provided predominantly by way of submissions on behalf of the applicant. Even though I do not specifically refer to all and every aspect of that material in these written reasons, I have taken it into account. A significant amount of the material was however directed at the applicant's general objections to the proceedings.

59. At [95] the Tribunal observed that:

The applicant and his agent were repeatedly reminded of what the Tribunal's role was, and how they might wish to consider rebutting or extricating the applicant from the allegations and findings presented by the respondent against him both in regards to the allegations and their views on risk.

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

60. I also set out in full the additional matters the Tribunal member took into account:

[67] In addition to the matters outlined above, the respondent tendered material relating to other incidents or matters of concern whereby the applicant had come to the attention of government authorities in South Australia in the context of his interactions with children and young persons.

[68] In addition to the two incidents which resulted in charges, the issue of the police warning, and the information concerning the applicant loitering at a school during lunch, the following matters were raised before the Tribunal.

• A police report from June 2015 where there were concerns about the behaviour of two boys who were left in the applicant's care by the parents. It was alleged that the applicant gained the parent's trust by offering to assist with the setting up of a family computer. These matters are alleged to have arisen around 2005.

• A police report detailing concerns by a witness about the applicant's behaviour with the 11 year old victim of the 2004 charges, when both were in the applicant's car near the riverfront.

• Police reports from 4 witnesses concerning observations of inappropriate behaviour from the caravan when the applicant was present. (these allegations arise in the same context as the 2005 charges relating to the 11 year old victim).

• The 'police warning' incident referred to above involved allegations which lead to the warning as set out at paragraph 35 (above) and also allegations of inappropriate e-mail / text communications between the applicant and a 16 year old female and drug supply to her 13 year old sister.

[69] The respondent also referred to matters involving Family and Community Services intervention in the applicant's current domestic arrangements, in that the children of his spouse had been removed from her care under an Emergency Protection Order due to the applicant residing in the home of his spouse.

[70] Whilst no evidence was tendered in respect of these references and they arose in the reasons provided by the respondent in respect of the section 20 notice of decision bar, care records were provided within Exhibit ‘R 1’.

The Tribunal member’s findings

61. As I have already noted, in his reasons for decision, the Tribunal member made it clear that he was unable to make a positive finding as to whether the criminal allegations the subject of the offences charged in South Australia and New South Wales had in fact occurred, applying the civil standard to that question.

62. He went on to say, however, that the material before him, including what he considered to be “the pattern of the allegations and the similar theme running through the allegations”, remained relevant to the risk assessment in which he was engaged.

63. The Tribunal member also referred to having some doubt as to the truthfulness of some aspects of the material upon which the applicant relied, in particular, his assertion that he had never been the subject of a warning from South Australian police when the materials which the respondent had relied upon included a DVD which contained an interview of the applicant with South Australian police at his home.

64. After expressing his satisfaction that the plaintiff had been afforded the requisite level of procedural fairness and again emphasising that he had repeatedly reminded the plaintiff (and his wife as agent) of the Tribunal’s role and the plaintiff’s option, if he wished to exercise it, to respond to the case put against him, the Tribunal member found that the evidence and other materials he had taken into account under s 30(1) of the Act satisfied him that the plaintiff posed a “real and appreciable risk” to the safety of children, or as he also expressed it in another part of his reasons, “the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children”.

65. In the result, and despite the absence of a positive finding that the plaintiff had committed offences charged under New South Wales and South Australian Crimes Acts, the Tribunal member was satisfied there was no obviation of the existence of risk, particularly given that the statutory context in which risk was to be assessed identified the welfare of the child as the paramount consideration.

Consideration of the remaining grounds of appeal

66. The Tribunal member’s careful and detailed summation and analysis of the documentary material relied upon by the Children’s Guardian as respondent, and the limited weight afforded the plaintiff’s statutory declaration and other materials upon which he relied, satisfies me that the errors contended for the subject of Grounds 2 and 3 are not made out.

67. Given the plaintiff’s full appreciation of the approach of the Children’s Guardian to the assessment of risk in its statutory context, and being fully informed of the material before the Tribunal, including the realistic possibility that the decision of the Children’s Guardian would be affirmed, I am well satisfied the plaintiff was not only provided with every reasonable opportunity to be heard, but was on notice that his past conduct would be agitated in the process of risk assessment, including conduct that had attracted adverse notice, even if criminal charges were not laid, or if laid, were not proven.

68. I would reject the fourth ground of appeal.

69. The fifth ground of appeal alleges legal unreasonableness, said to amount to jurisdictional error. Quite apart from the need to ensure that the test of legal unreasonableness is confined it its application in the way discussed by Hayne, Kiefel and Bell JJ at [66]-[76] in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, having already concluded that the Tribunal’s approach to the assessment of risk was free of error, and that the Tribunal member’s path of reasoning in the assessment of risk is patent and supported by reasoned analysis of all the material before him, Ground 5 is also rejected

Orders:

70. Accordingly, I make the following orders:

1. The amended summons is dismissed.

2. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 01 July 2016