CLD v Children's Guardian

[2017] NSWCATAD 134

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CLD v Children's Guardian [2017] NSWCATAD 134

Hearing dates:

28 October 2016, last submissions directed to be provided by 28 November 2016. Last submissions received 5 December 2016

Date of orders:

28 April 2017

Decision date:

28 April 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
M Bolt, General Member

Decision:

1) The decision of the Children’s Guardian on 12 January 2016 to cancel the applicant’s Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.

 

2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

 3) It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Catchwords:

ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal – assessment under section 15 of the Child Protection (Working with Children) Act 2012 – applicant’s child sexually abused by applicant’s husband – Children’s Court final orders place child with grandparents due to perceived risk in applicant’s care - whether the applicant poses a risk to the safety of children - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children - paramount concern is protecting children from child abuse - the correct and preferable decision is to cancel a working with children check clearance – decision of Children’s Guardian confirmed.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995 (NSW)

Cases Cited:

ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126
BFX v Children’s Guardian [2014] NSWCATAD 115
BGX v Children's Guardian [2014] NSWCATAD 173
BHL v Children’s Guardian [2015] NSWCATAD 46
BHY v Children’s Guardian [2015] NSWCATAD 91
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164
BKE v Office of the Children’s Guardian [2015] NSWSC 523
BKN v Children’s Guardian [2014] NSWCATAD 213
BKP v Children's Guardian [2014] NSWCATAD 207
BKV v Children’s Guardian [2015] NSWCATAD 65
BKV v Children’s Guardian [2015] NSWSC 1602
BLD v Children’s Guardian [2015] NSWCATAD 2
Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457
BPA v Children’s Guardian [2015] NSWCATAD 36
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
BVT v Office of the Children’s Guardian [2016] NSWSC 1169
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BQJ [2016] NSWSC 869
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CSZ v Children’s Guardian [2017] NSWCATAD 57
Greyhound Racing Authority v Bragg [2003] NSWCA 388
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
LA v Commissioner for Children and Young People [2012] NSWSC 1454
M v M [1988] HCA 68; 166 CLR 69
Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173
R v Commission for Children and Young People [2002] NSWIR Comm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Sophie (No 2) [2009] NSWCA 89
Roberts v Balancio (1987) 8 NSWLR 436
Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
YG & GG v Minister for Community Services [2002] NSWCA 247
ZZ v Secretary, Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

CLD (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Singleton (Applicant)
M Neville (Respondent)

  Solicitors:
Robertson Solicitors (Applicant)
NSW Crown Solicitor’s Office (Respondent)

File Number(s):

1610093

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for Decision

Introduction

1. The applicant is known by the pseudonym “CLD” in these proceedings in order to protect the identity of the applicant in accordance with Procedural Direction 9 of the NSW Civil and Administrative Tribunal. On 12 February 2016 CLD filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning a decision of the Children’s Guardian, made and notified to CLD on 12 January 2016, to cancel her Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

2. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the application: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. In CHB v Children’s Guardian [2016] NSWCATAD 214 the Tribunal held that section 30(1A) of the Act applies where the Children’s Guardian has made a decision to cancel a person’s working with children check clearance after the commencement of the amendments and the application for review is made after the commencement of those amendments.

3. An interim bar was made on 1 October 2015.

4. The applicant was subject to a risk assessment by reason of section 15(3) of the Act. As a result of the risk assessment and pursuant to section 23 of the Act the Children’s Guardian cancelled the Working with Children Check Clearance held by the applicant.

5. The applicant wishes and requires to have restored to her a Working with Children Check Clearance, in order to work with children.

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

7. This is an application pursuant to section 27 of the Act. The application for review was heard orally by the Tribunal on 28 October 2016. The matter was listed due to submissions which are made “if the Tribunal forms view that it may be satisfied that the applicant poses a risk to children then, as a matter of natural Justice, it will be necessary to hold a hearing.” The applicant requested the opportunity to make further submissions in the event that the Tribunal were to dismiss the application or uphold the cancellation of her authorisation. The Tribunal at that time, that is 28 October 2016, had not formed any view about the merits of the application, but was concerned that there may have been further submissions which should be made prior to reserving the Tribunal’s decision. Further submissions were directed to be filed with the last date for submissions being 28 November 2016. Each party has therefore now had ample opportunity to put before the Tribunal the submissions and evidence upon which they rely.

8. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

9. Provided that the matters which must be considered in section 30 of the Act are taken into account, the review will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

10. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

11. There is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant of a working with Children Check clearance under section 27 of the Act. The register of clearances required to be maintained by the Children’s Guardian pursuant to section 25 of the Act makes no reference to separately registering the conditions upon which clearances may be granted.

12. In Commissioner for Children and Young People v VR [2012] NSWSC 1385, Justice Simpson had cause to consider the predecessor legislation to the Act and whether the Administrative Decisions Tribunal had power to impose conditions which were not authorised by the predecessor legislation Commission for Children and Young People Act 1998. It was considered that the imposition of conditions may ameliorate a risk even where the Administrative Decisions Tribunal is not satisfied that the person does not pose a risk to children: see ibid., at [27]-[29]. This was the rationale expressed in earlier decisions relating to previous forms of similar but not identical legislation: see Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, and R v Commission for Children and Young People [2002] NSWIR Comm 101. Justice Simpson held in Commissioner for Children and Young People v VR (supra) that the conditions imposed were not authorised by the legislation, thus establishing an error of law which required the decision of the Tribunal to be set aside.

13. The Tribunal may not lawfully attach conditions which would be permitted by the legislation effectively for the grant of a conditional clearance for this and the additional reasons set out in this decision. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in her chosen area is not permitted by the legislation.

14. An order has been made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) on 24 March 2016 prohibiting publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. That order is varied to accord with the current practice of the Tribunal.

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

The evidence relied upon in the hearing

16. The parties had previously agreed upon a tender bundle filed 16 August 2016. The documents in the tender bundle are:

1. Letter of the Children’s Guardian to the applicant informing the decision to cancel her clearance and enclosing reasons for the decision dated 12 January 2016.

2. Amended care plan for the child of the applicant filed in the Children’s Court of New South Wales on 22 November 2013.

3. Final order of the Children’s Court of New South Wales in relation to the child of the applicant dated 4 April 2014.

4. Judgment of the Children’s Court in proceedings concerning the child of the applicant delivered 18 October 2013.

17. In addition, the applicant relies upon:

1. Affidavit of the applicant confirmed 30 June 2016.

2. Report of Minimbah Challenge, 31 May 2016.

3. Report of the Reverend Dr Peter Powell, 28 May 2016.

4. Report of Ms Fleur Taylor dated 25 May 2016.

5. Report of Dr Christopher Lennings dated 5 May 2016.

18. The respondent did not wish to rely on any other document other than those identified in the previous paragraphs.

19. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil onus of proof which is the balance of probabilities.

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

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

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

22. Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]:

“Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.”

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

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

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

…

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

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

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

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

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

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

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

25. The Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 on 9 March 2017 after granting leave to appeal, dismissed the appeal from Justice Button’s decision and orders in Bronze Wing.

26. The Supreme Court has decided in relation to a review under section 27 of the Act that the Tribunal did not fall into error by applying the civil onus to determining a factual matter: CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J, at [34], [56], [61].

27. The effect of the Act and the ‘practical onus’ which falls on a party notwithstanding the principles referred to in the previous paragraphs of these reasons is as the Act states in section 27(4):

“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

28. The initial practical or forensic onus but not the legal onus is thus generally to be carried by the applicant. In support of that proposition the Tribunal can place weight upon the decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at pp 16-17, paras [39]-[40]. It was stated in the High Court, by the plurality comprising Gummow A-CJ, Callinan, Heydon and Crennan JJ, in that decision at [40] that:

“This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened.” (Citations omitted)

29. The currently constituted Tribunal accepts that section 27(4) of the Act is subject to the rationale, suitably moulded to suit the circumstances in this type of application, as expressed by the majority in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.

Legislative Provisions relevant to the decision

30. The relevant legislative provisions have previously been referred to in earlier decisions of the Tribunal and are not controversial in this matter. The applicable provisions are referred to now and necessarily involve some repetition of previous statements in earlier decisions, so that the legislative basis of this particular decision is transparent and identified for the parties.

31. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The section is as follows:

"Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."

32. There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units.”

33. The objects of the Act are set out in section 3 which provides:

"Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances."

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

35. "Conviction" as defined in section 5 (1) of the Act “includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”

36. Pursuant to section 15 of the Act the Children’s Guardian may conduct a risk assessment of the applicant. The section relevantly provides as follows:

“15 Assessment of applicants and holders

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

(2) The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.

(3) Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder....”

37. The applicant was the holder of a clearance granted on 9 February 2014.

38. Section 23 of the Act relevantly provides:

23 Cancellation of clearances

(1) The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children....

39. The hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.

40. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.

41. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.

42. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

43. The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

44. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

45. The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings: BKE v Office of the Children’s Guardian [2015] NSWSC 523.

46. The Tribunal is required to follow the decision in the Supreme Court BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33], in relation to an application under section 28 of the Act for an enabling order:

“However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

47. The Tribunal has previously determined that it is not appropriate for the Tribunal to make an order on conditions, whether that be under section 27 or section 28 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, at [36]-[45]; BKV v Children’s Guardian [2015] NSWCATAD 65. This approach appears to be supported by the decision of the Supreme Court in BKE v Office of the Children’s Guardian at [33]. It is useful to set out the reasoning behind the Tribunal’s determination in this decision.

48. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act. It is apparent that there is no similar explicit statutory restriction nor is there any explicit statutory approval of conditions which may be attached to the grant a Working with Children Check clearance under section 27 of the Act.

49. The register of clearances required to be maintained by the Children's Guardian pursuant to section 25 of the Act makes no reference to separately registering conditions upon which clearances may ultimately be granted.

50. The transitional provisions contained in Part 2 of Schedule 3 of the Act at clause 6 contains a clear statement that a person who is the subject of an unconditional existing declaration in force immediately before the repeal of the former provisions, is taken to be the subject of an order under part 4 of the Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence. All other people, that is, persons who have conditional existing declarations under the former provisions prior to the commencement of the current Act, are to be treated as disqualified persons for the purposes of the Act. These provisions lend weight to the argument that any conditional declaration is not permitted under the current provisions of the Act.

51. In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.

52. The second reading speech for the Bill which became the Act, by Mr Dominello, the then Minister for Citizenship and Communities, and Minister for Aboriginal Affairs on 13 June 2012 contains the following:

"All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant."

53. In the following paragraph the Minister stated:

"While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

54. As the Tribunal observed in BFX v Children's Guardian [2014] NSWCATAD 115 at [43]-[48] and in a number of subsequent decisions, these extracts from the second reading speech assist in the interpretation of the requirements contained in the Act, and, with respect to the previous judicial pronouncements, where the real and appreciable risk, as the Minister emphasised in slightly different words but with similar meaning and import, must be linked to the safety of children, those pronouncements are appropriate to assist in the interpretation of the Act.

55. In relation to whether conditions may be imposed when granting a working with children check clearance under section 27, the Minister's second reading speech most relevantly states:

"Matters may be reheard if the commission has new evidence. The Administrative Decisions Tribunal must consider the same issues that the commission considers in an assessment. It may determine that the person remains barred or it may order the commission to issue a clearance. The Administrative Decisions Tribunal may not issue any order with conditions. This is an important clarification of the current process where orders have, on occasion, been issued with conditions. The difficulty with conditions is that they need to be monitored and neither the commission nor any other body has statutory powers or resources for this purpose. The new Working with Children Check operates on a very simple assumption: A person is allowed to work with children or is not allowed to work with children."

56. If "Commission" is substituted by "Children's Guardian", and "Administrative Decisions Tribunal" is replaced by the current "Tribunal" in that extract from the second reading speech, it can be seen that the intent of the Working with Children Check clearance process is to deliver one of two possible outcomes without any conditions attached to that outcome, whether that occurs at the initial stage of decision-making by the Children's Guardian or in the Tribunal as a result of a review decision.

57. It is the Tribunal’s assessment that the introduction of the Act intended to change the landscape in which decisions relating to risk are undertaken, and accordingly previous decisions of the Commission under the repealed legislation, whilst they should be given some weight, are not determinative of the current assessment of risk on the whole of the information before the Tribunal.

The Issue

58. As previously referred to, the primary issue before the Tribunal in this application is what the correct and preferable decision is, having regard to the material before the Tribunal in relation to the cancelling of a Working with Children Check Clearance of the applicant: section 63 Administrative Decisions Review Act; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

59. There is no requirement upon the applicant to show that the original decision maker’s decision was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88.

60. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act and BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

61. The Tribunal may itself be a source of evidence: ALH Group Pty Ltd v Dicey’s Toowong Pty Ltd [2003] 2 QdR 1. However, subject to the rules of natural justice, the Tribunal may act on its own knowledge: Carr v Simnovic (1980) 26 SASR 263; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. Subject to the same rules of natural justice, the Tribunal may make its own enquiries, whether of a factual matter or scientific matter, where a member of the Tribunal has the requisite expertise: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at 211; Bowen-James v Delegate of Director-General of Department of Health (1992) 27 NSWLR 457 at 481.

Considerations and the Evidence

62. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in sub sections 15 (4) and 15 (4A) of the Act which are more aptly descriptive of that process than is sub sections 30 (1) and 30(1A) of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.

63. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections.

64. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.

62. Section 15 of the Act relevantly provides as follows:

15 Assessment of applicants and holders

.....

(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.

66. Section 30 of the Act relevantly provides in relation to this application 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.

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the "affected person" ) to work with children in accordance with this Act unless the Tribunal is satisfied that:

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

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

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.

67. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings reciting the required considerations under the Act.

68. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act. In BVT v Office of the Children’s Guardian [2016] NSWSC 1169, Adamson J found, however, in relation to an application for an enabling order under section 28 of the Act, that it was an error to interpret the plea of guilty in that case to findings of the Court and admissions of the applicant, at [58]:

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

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

69. The applicant is not a disqualified person. The applicant has never abused a child or otherwise been accused of having directly harmed any child. The applicant has not been charged with or convicted of any offence whether relating to a child or otherwise.

70. The purpose of the risk assessment is protective of children and not punitive of the applicant, as earlier stated. The risk assessment identifies factors which are relevant in determining the risk the applicant may pose to children. The legislature has included this factor as a matter relevant to the assessment of risk.

71. The applicant’s clearance was cancelled pursuant to section 23 of the Act after the imposition of an interim bar on 1 October 2015. It is correct to say there was no refusal of a clearance. The initial application for a clearance was made on 20 October 2013. That resulted in the grant of a clearance. The subsequent action notified by letter dated 12 January 2016 was to cancel that clearance.

72. The Oxford English Dictionary [1] definition of “refusal” is:

“The action or an act of refusing; a denial or rejection of something requested, demanded, or offered.”

1. "refusal, n.". OED Online. March 2017. Oxford University Press. (accessed April 07, 2017)

73. It is possible to interpret “refusal of a clearance” without straining the ordinary meaning of “refusal” as including the subsequent cancellation of the clearance. Section 23 (1) of the Act refers to prospective knowledge obtained by the Children’s Guardian which requires the cancellation of a previously granted working with children check clearance. It is consistent with the statutory scheme to interpret “refusal” broadly and beneficially to give effect to the primary purpose of the Act which is identified in section 4 of the Act as the paramount consideration.

74. The matters which ultimately caused the cancellation of the clearance, and the imposition of the interim bar prior to that occurring, are conveniently discussed under this heading. The applicant takes issue that this particular sub paragraph applies at all to the applicant. The submissions however omit the phrase “or imposition of an interim bar” from the subparagraph.

75. It is apparent from the reasons given to the applicant in the letter dated 12 January 2016 that the Children’s Guardian became aware on 17 August 2015 of information provided by the NSW Department of Family and Community Services pursuant to Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

76. The information provided to the Children’s Guardian was in relation to the applicant’s involvement with the Department and a subsequent removal of the applicant’s daughter following substantiated allegations of sexual abuse by the child’s father in 2011. As explained in the letter to the applicant the Children’s Guardian did not have the benefit of that information at the time the original clearance was granted to the applicant on 9 February 2014.

77. The Children’s Guardian monitors and audits holders of the working with children check clearances as part of its statutory functions.

78. The applicant’s daughter disclosed in 2011 that she had been sexually abused by her father. The child was removed from the care of her parents and placed in the care of the Minister with final orders made by the Children’s Court in April 2014 placing the child under the parental responsibility of the Minister until the age of 18.

79. In interviews with the Joint Investigative Response Team (JIRT) the applicant’s daughter made disclosures that the applicant had walked in while the father was sexually abusing their daughter. It was determined that the applicant contributed to the sexual harm perpetrated upon the daughter because the applicant did not take any further protective measures to ensure her child’s safety from sexual abuse. It was considered that the applicant had contributed to psychological harm to the child by making comments to her to retract her disclosure.

80. It was alleged that the applicant’s husband fondled and digitally penetrated (vaginally and anally) the daughter on multiple occasions.

81. A later disclosure was made by the daughter that she massaged the applicant’s breasts. Those allegations were not substantiated following a later interview by JIRT.

82. The Children’s Guardian explained in the letter dated 12 January 2016 that the ability of the applicant to believe, be supportive and protect children in a work-related setting if they were to disclose abuse is relevant to whether the applicant poses a risk to the safety of children in the performance of her work.

83. The Children’s Guardian considered that this sequence of events means that the matter is deemed serious as it was confirmed by JIRT and it involved sexual abuse of the applicant’s daughter by the child’s father.

84. The Children’s Guardian is a party to this review application. However, since the Children’s Guardian is not the moving party and does not seek relief under section 63 of the Administrative Decisions Review Act 1997 (NSW) the Children’s Guardian adopted a contradictor role to provide assistance to the Tribunal rather than submitting against the relief sought by the applicant.

85. The proceedings in the Children’s Court occurred on a total of 15 days. The judgment of the Children’s Court was only made available to the Children’s Guardian after the commencement of proceedings in the Tribunal. Despite the allegation by the child that the applicant had seen the father perpetrating abuse on the child, the Children’s Court did not make a finding that the applicant witnessed the father abusing the child. The Court also placed no weight on the third JIRT interview in which the child suggested that she had massaged her mother’s “boobs”. The Court did form a view that the applicant’s conclusion that the child had made a false report about abuse by her father was not a rational view and therefore the applicant would not be sufficiently objective of the relationship between the child and the father to act protectively towards the child to ensure her safety.

86. The Children’s Court could not countenance return of the child to the applicant’s sole care because she was dishonest during the proceedings about her relationship with the child’s father and their reunification. Additionally, the applicant’s refusal to accept her daughter was sexually abused by the husband compromised the applicant’s capacity to act protectively to her daughter.

87. These are very serious matters which led to the imposition of the interim bar and subsequently to the cancellation of the working with children check clearance.

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

88. The sexual abuse disclosures which prompted the removal of the applicant’s daughter from her care by the Department of Family and Community Services were made in December 2011 which is also when the removal occurred. That was 5 years ago.

89. The judgment of the Children’s Court was that there was no realistic possibility of restoration of the child to her mother’s care. That determination occurred in October 2013.

90. There is no evidence of adverse conduct on the part of the applicant since the judgment of the Children’s Court.

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

91. The applicant was aged almost 26 years at the time the disclosures were made. At the time of the Children’s Court determination the applicant was aged 27.5 years.

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

92. The applicant’s daughter was aged 5.5 years at the time of the disclosure of the abuse by the applicant’s husband. The applicant’s daughter was vulnerable due to her age and her dependency upon both her parents. As a child, the daughter was entitled to the care and protection generally provided by parents.

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

93. The difference in age between the applicant and her daughter is about 20 years.

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

94. The applicant knew that her daughter was a child.

The person’s present age

95. The applicant is currently aged 31.

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

96. The applicant does not have a criminal history.

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

97. The Tribunal has to form its own opinion about the likelihood of any repetition of conduct or risk in relation to the applicant independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.

98. The applicant relies upon the evidence of Dr Lennings, the Reverend Dr Peter Powell, Ms Fleur Taylor, and the report from Minimbah Challenge. The applicant contends that the opinions expressed by Dr Lennings may be summarised to the effect that the applicant falls into the low risk category for both offender and child protection risk. The Reverend Dr Peter Powell concludes that the applicant “demonstrates no current risks around children” and opined that her “working with children status should be restored.” Ms Taylor is the applicant’s treating psychologist and has recorded her “observable improvement over time” and believes that the applicant presents with a low risk towards others.

99. The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children’s Guardian [2016] NSWCATAD 3 at [91]-[92].

100. In essence, expert witnesses in this Tribunal, and Dr Lennings in this matter, have stated that prediction of a relatively uncommon behaviour such as violent or sexual offence recidivism is difficult. The use of actuarial risk assessments are not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment.

101. The applicant undertook “therapeutic intervention [with Ms Fleur Taylor] to support her difficult adjustment to having her daughter removed; to support her in communicating effectively with the care agencies involved with her daughter; and to increase her understanding of child development, the impact of trauma on a child and positive parenting strategies to utilise during contact with her daughter”.

102. The applicant has told Ms Taylor that she acknowledges that aspects of the husband’s behaviour were inappropriate and that she believes that her daughter believes her disclosures of abuse are true. However, the applicant herself does not believe that her husband sexually abused their daughter. The applicant understands that her daughter is experiencing trauma-based symptoms as a result of her disclosures. The applicant has accepted the themes of her daughter’s disclosures and has refrained from engaging in attempts to counter the disclosures. The applicant accepts that her husband violated appropriate boundaries when dealing with their daughter, in particular, when washing her genitals with his hands rather than using a cloth. The applicant says that she has not witnessed abuse which went beyond the boundary violations and does not believe that such abuse occurred. The applicant considers that the paternal grandmother has had some role to play in the disclosures and considers the interviews conducted with her daughter as unreliable.

103. Dr Lennings opinion is reflected in the following extract:

“[The applicant] presents with no features typically associated with risk of harm to children. She has no mental health concerns, is not antisocial, and has engaged enthusiastically with programs and treatment to improve her functioning, understanding of child protection concerns, and parenting. On risk assessments for both offender and child protection risk she falls into the low risk category.”

104. The applicant has attended courses including parenting courses and courses in relation to understanding sexual abuse and its impact upon victims. The applicant has completed training in a program to identify and respond to children and young people at risk of harm for which she received a certificate issued in April 2016. The applicant is no longer considered in the context of her daughter’s allegations as a person causing harm to her daughter.

105. The applicant worked as a disability support worker and is very keen and committed to keep working in this sector if she is permitted to do so by the grant of a working with children check clearance. During the course of her employment, prior to the cancellation of her clearance, the applicant has conducted and participated in training to increase her knowledge and experience in that sector. It is clear from the report provided by the applicant’s employer that she was a valued member of their staff. The applicant acquired and developed skills and abilities to work with many different age groups in her role as a disability support worker. There were no complaints or disciplinary action taken against the applicant. The applicant commenced as a volunteer worker in October 2013 and became a member of the permanent staff in December 2013.

104. The applicant and her husband initially separated after the allegations were made. Subsequently, the applicant had some contact with her daughter because she was apparently separated from her husband. It is recorded by Dr Lennings that once it was clear that the daughter would not be returned to the applicant’s care, the applicant and her husband reunited. The daughter remains in the care of the paternal grandmother and the applicant has no contact with her. The applicant’s disbelief of her daughter’s allegations was considered by the Magistrate as not a rational view and therefore the applicant would not be sufficiently objective of the relationship between the child and the father (or in this context another caregiver) to act protectively towards the child to ensure her safety. This disbelief in the face of an allegation by a child about their caregiver is capable of providing evidence of a general disposition of lack of protectiveness of children. While it is submitted that there is a difference between the applicant’s domestic situation and an employment situation the Tribunal considers that the applicant failed to act on a child’s allegation because she did not believe it. This is applicable to any situation in which a vulnerable person makes an allegation which must be acted upon in order to protect that vulnerable person and prevent any further psychological, emotional and physical harm or ameliorate harm which has already been caused, to the child or vulnerable person.

105. The Children’s Court Magistrate had the benefit of expert assistance in determining the reliability of the interviews conducted with the applicant’s daughter. In the Judgment of the Magistrate he recorded that the reliability of the interviews was not affected by the evidence that had been given before him. The Magistrate used that expert evidence to determine whether the interviews were of forensic value to the Children’s Court. The Magistrate considered that the disclosures were credible, that the child had not been coached and that it was more likely than not that the child’s disclosure was a true account of what occurred. More importantly, it is the child’s belief that she has been sexually abused by her father. The Magistrate was satisfied on the balance of probabilities that the child’s belief is grounded in truth. There is no reason to doubt the correctness of that finding. The Tribunal finds that the allegations and disclosures of abuse are on the balance of probabilities truthful. The assessment of recidivist risk is a different process.

106. The fact that the applicant did not take any protective measures to ensure her child’s safety from boundary violations, as she saw them, and the abuse about which the applicant remains disbelieving, preferring instead to persuade her daughter to retract her disclosure and thereby increase her sense of guilt and responsibility for the situation, is relied upon in the original assessment by the Children’s Guardian leading to the cancellation of the clearance. The Children’s Guardian also relied upon the final orders made by the Children’s Court. The Children’s Guardian came to this conclusion:

“On balance, your lack of insight into your daughter’s emotional needs, continued nonbelief of the sexual abuse and continued support of the perpetrator of abuse demonstrates a real and appreciable risk that you are not able to protect children from further harm taking place.”

109. In the Children’s Court expert evidence was given that in order to encourage or support a healthy relationship for the child the mother should have been:

“… believing the child, being empathic towards the child, allowing the child to talk about what happened when and if she wishes, showing unconditional positive regard, and not supporting the alleged perpetrator in any way.”

110. The applicant’s lack of insight into her daughter’s emotional needs, continued nonbelief of the sexual abuse and continued support of the perpetrator of abuse demonstrates a real and appreciable risk that the applicant is not able to protect her child from the psychological and emotional harm which follows the abuse. This is emotional or psychological harm of such a kind that the emotional or intellectual development of the child is, or is likely to be, significantly damaged and the health of a child is likely to be significantly harmed, as identified in the expert evidence given in the Children’s Court proceedings.

111. Despite the education that the applicant has undertaken, there was no explanation of the matters that the applicant has learnt or how her behaviour has changed since the child was removed from her care. There isn’t any clear evidence of what the applicant would do differently if the same circumstances arose. The applicant has not demonstrated insight into how her behaviour has affected her child. The past behaviour of disbelief and providing no support to the disclosures of her own daughter is highly likely to be repeated without the development of that insight. This was a significant factor in the Children’s Court assessment as to why the child could not return to the care of her mother.

112. The assessment of the Tribunal based upon these disparate sources of evidence is that there is a high likelihood that the applicant would repeat her behaviours which led to the child being permanently removed from her care if faced with the same circumstances in the future.

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

113. The applicant has provided information including the reports from supportive therapists and her employer. In addition, the applicant has provided an affidavit.

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

Any other matters that the Children’s Guardian considers necessary

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

116. The respondent’s prior decision was that a real and appreciable risk to the safety of children is present. That is why the applicant’s clearance was cancelled.

Consideration

117. The Act is designed to be protective and the Minister’s second reading speech identifies that there are a number of matters which may be relevant to an assessment of risk.

118. The Children’s Court Magistrate had the benefit of expert assistance in determining the reliability of the interviews conducted with the applicant’s daughter. In the Judgment of the Magistrate he recorded that the reliability of the interviews was not affected by the evidence that had been given before him. The Magistrate considered that the disclosures were credible, that the child had not been coached and that it was more likely than not that the child’s disclosure was a true account of what occurred. More importantly, it is the child’s belief that she has been sexually abused by her father. The Magistrate was satisfied on the balance of probabilities that the child’s belief is grounded in truth. The Tribunal has made its own determination based on all the sources of evidence that the allegations of abuse are truthful.

119. The applicant does not believe that the allegations are grounded in truth.

120. The behaviour of the applicant, if repeated, while working with children would be more likely than not to do significant harm to children. Despite the education that the applicant has undertaken, there was no explanation of the matters that the applicant has learnt or how her behaviour has changed since the child was removed from her care. The applicant has not demonstrated insight into how her behaviour has affected her child. The past behaviour of disbelief and providing no support to the disclosures of her own daughter is highly likely to be repeated without the development of that insight. This was a significant factor in the Children’s Court assessment as to why the child could not return to the care of her mother.

121. The assessment of the Tribunal based upon these disparate sources of evidence is that there is a high likelihood that the applicant would repeat her behaviours which led to the child being permanently removed from her care if faced with the same circumstances in the future.

122. The Tribunal accepts that the final orders made by the Children’s Court provide significant support for the view that the applicant continues to pose a risk to the safety of children. The Children’s Guardian conclusion appears to be the most explicit rationale provided for the continuation of that risk. The evidence about the applicant’s progress in counselling, her insight gained into child protection from course work and her apparently satisfactory care of disabled clients, provides some evidence of limited change on her part. Having regard to all the information provided to the Tribunal, however, the applicant’s lack of insight into her daughter’s emotional needs, continued nonbelief of the sexual abuse and continued support of the perpetrator of abuse demonstrates a real and appreciable risk that the applicant is currently not able to protect children from the harm taking place.

123. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered. The applicant has failed in her capacity to protect her own daughter from abuse and remains disbelieving that abuse has occurred despite acknowledging that her daughter believes it occurred.

124. The Tribunal agrees with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214 at [109]-[124]. Therefore, it is determined that the provisions of section 30 (1A) of the Act apply to this application.

125. The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that:

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

2. it is in the public interest to make the order.

126. The Tribunal has previously considered this provision in CSZ v Children’s Guardian [2017] NSWCATAD 57, where an enabling order was made, and in CHB v Children’s Guardian [2016] NSWCATAD 214 which is referred to in submissions by the respondent in this matter, where the applicant had a clearance cancelled by the Children’s Guardian and the Tribunal confirmed that decision. It was observed that analogous to the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent only need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267. But it is appropriate for the Tribunal to make a determination as to the provisions of section 30(1A) of the Act in case the Tribunal has erred in its reasoning when considering whether the applicant poses a risk to children. Both the applicant and respondent initially submitted that section 30 (1A) of the Act did not apply to this application for review. The respondent subsequent submissions withdrew that submission and made extensive submissions on the application of the twofold test contained in this provision. Therefore, the Tribunal will consider the provisions of section 30 (1A) of the Act in that context.

127. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". There is no definition of “child abuse” contained in the Act. The Children’s Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows:

“Child and young person abuse

A person who intentionally takes action that has resulted in or appears likely to result in:

(a) the physical injury or sexual abuse of a child or young person, or

(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or

(c) the physical development or health of a child or young person being significantly harmed,

is guilty of an offence.

Maximum penalty: 200 penalty units.”

128. The objects of the Act are set out in section 3 which provides:

"Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances."

129. The applicant’s lack of insight into her daughter’s emotional needs, continued nonbelief of the sexual abuse and continued support of the perpetrator of abuse demonstrates a real and appreciable risk that the applicant is not able to protect children from the psychological and emotional harm taking place. This is emotional or psychological harm of such a kind that the emotional or intellectual development of the child is, or is likely to be, significantly damaged and the health of a child is likely to be significantly harmed, as identified in the expert evidence given in the Children’s Court proceedings and previously extracted in these reasons.

130. The Tribunal finds that, even if the applicant does not pose a risk to the safety of children, a reasonable person would not allow his or her child to have direct, unsupervised contact with the applicant, while the applicant was engaged in child-related work. This is because a reasonable person knowing the matters the Tribunal has referred to would consider that the applicant’s failure to protect children from the harm taking place in circumstances where they require protection from harm, creates emotional or psychological harm of such a kind that the emotional or intellectual development of the child is, or is likely to be, significantly damaged and the health of a child is likely to be significantly harmed and is a sufficiently negative impact upon children, even if it does not pose a risk to their safety. This determination is consistent with the objects of the Act and takes into account the variety of the forms of abuse contemplated in the offence creating provision in section 227 of the Children and Young Persons (Care and Protection) Act 1998.

131. Since the Tribunal is not satisfied that a reasonable person would allow his or her child to have the contact with the applicant contemplated by s 30(1A)(a), the Tribunal is precluded from making an order enabling the applicant to work with children in accordance with the Act. It is thus not necessary to consider the application of s 30(1A)(b).

Public Interest: section 30(1A)(b) of the Act

132. The respondent made additional submissions concerning the public interest test. It was observed that there is little authoritative guidance from prior decisions of the Tribunal. While it is unnecessary in this matter for the Tribunal to make a determination about this particular issue, some assistance for future applications may be provided by the following references and discussion.

133. The decision of the Victorian Court of Appeal in Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 at [24]-[37] referred to the following matters:

[24]   As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[7]

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[8]

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’.[9] The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.[10]

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.

[27] Whilst it might be possible to demonstrate that the Tribunal erred in law if it took into account an extraneous factor, it will necessarily be difficult to demonstrate in this context that it misdirected itself in respect of the public interest by failing to have regard to factors which are not imperatively relevant to the achievement of the purpose of the Act.

[28]   In particular, where the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion because:

(a)   a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest;

(b)   the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case;

(c)   the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification;

(d)   Parliament vested in the Tribunal - not the Secretary nor the Minister nor this Court – the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.

[29]   In our view, for reasons we shall come to, a fair reading of the Tribunal’s reasons shows that in neither case did the Tribunal improperly restrict in any way the range of matters potentially relevant to determining what was in the public interest.

[30]   Thus, it is not sufficient for the Secretary to hypothesise a factor which might be potentially relevant to the Tribunal’s decision and then show that the Tribunal did not consider it. The Secretary must demonstrate that the Tribunal was bound to have regard to the factor identified by her and that it failed to do so.[11]

[31]   In the present cases, it cannot be said that the factor of ‘public confidence in the assessment of persons as suitable for child-related work’[12] necessarily required consideration once it was concluded that the applicants did not objectively pose an unjustifiable risk to the safety of children.

[32] First, the perception, as distinct from the fact, of risk is not a factor specifically identified as relevant by the Act, nor can it be said to be imperatively relevant to the achievement of the purpose of the Act.

[33] Secondly, the fact that the Act gives the Tribunal a discretion with respect to the giving of notices of assessment to offenders of the class in question counts strongly against the conclusion that mere categorisation by reference to the offence in issue (or any other negative matter able to be taken into account under s 26(2)) is a proper basis for concluding that the public interest requires refusal.

[34]   Thirdly, it is implicit in the Secretary’s submission that the Tribunal may conclude that it would be objectively just to give a notice having regard to the circumstances of an applicant, but not in the public interest to do so because of the probable popular perception of an objectively just decision. It would, in our view, ordinarily require a clear mandate for the Tribunal to regard itself as bound to proceed on the basis of its view of probable public perceptions rather than its view of the objective justice of the situation. We will expand on this matter in a moment.

[35]   Fourthly, there was no evidence before the Tribunal in either of the present cases of public perceptions of the working with children check system nor any evidence of the likely impact of the giving of the notices in question upon public perceptions. The factor put forward by the Secretary is essentially one of no more than a speculative risk of adverse public perceptions.

[36]   Fifthly, insofar as it was hypothesised that the Tribunal should have regard to likely public perceptions of the exercise of its discretion without any public knowledge of the facts of the case or the reasons of the Tribunal, we do not see how such a consideration could rationally be given weight.[13] Such an approach would require the Tribunal to effectively disregard its own view of the merits of the case upon the evidence for fear of uninformed public sentiment.

[37]   Sixthly, in any event, why should the Tribunal be required to assume that the ultimate public reaction to a carefully reasoned, just and objectively sound decision to grant an assessment notice would or might be a negative or critical reaction? On the contrary, it might well be considered that, at least in the long term, public confidence in the system is better served by rational decision making based on objective evidence rather than by avoiding such decision-making out of fear that the public will think ill of it. This is the view which underpins the rule of law generally in our society and we can see no basis for concluding that such an approach would not be open to the Tribunal. Why should the Tribunal effectively ignore the point made by the Attorney in the second reading speech that, because a negative notice will place significant restrictions on a person’s employment and community involvement, a ‘full range of appeal rights’ is provided in order to ‘ensure’ that no-one is unfairly treated. [2]

2. [8] Citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); see also Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, [31]-[32] (French CJ), [69] (Gummow, Heydon, Crennan, Kiefel and Bell JJ); Osland v Secretary Department of Justice No 2 [2010] HCA 24; (2010) 241 CLR 320, [13].

134. This decision was referred to in ZZ v Secretary, Department of Justice [2013] VSC 267 where it was also observed by Bell J at [202]:

[202] While decisions of the tribunal have correctly emphasised that the main purpose of the Working with Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work and other similar considerations.[See eg BGD v Secretary, Department of Justice [2010] VCAT 50 (8 January 2010) [62] (Judge Harbison, Vice-President) (‘BGD’); FC v Director of Public Transport [2010] VCAT 437 (6 April 2010) [27] (Macnamara DP) (under the Transport (Compliance and Miscellaneous) Amendment Act) (‘FC’); WSO v Secretary, Department of Justice [2010] VCAT 1522 (16 July 2010) [55] (Judge Hampel, Vice-President) (‘WSO).] So, in MH,[[2008] VCAT 1514 (22 July 2008)] her Honour Judge Harbison said the Working with Children Act did not prevent all persons with a serious criminal record from ever working with children again. Rather:

It is designed so that an informed assessment can be made in every individual case of the risk of harm to children arising out of his or her past behaviour. It places a heavy burden on the decision maker, to make an assessment as to what is likely to happen in the future, based on what is known to have happened in the past. The assessment must be rigorously made, given the aim of the legislation, which is the protection of very vulnerable children from sexual harm or violence.[ Ibid [35]]

135. The Tribunal observes that the public interest is not a confined concept. It is the Tribunal’s determination that if required to decide whether it is in the public interest to make the order, for the reasons which have been stated earlier and having regard to the objects of the Act and section 4 of the Act, it would not be in the public interest to make an order enabling the applicant to work with children in accordance with the Act.

Conclusion

136. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.

137. Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]; Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

138. If the applicant is granted a clearance she may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

139. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does currently pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

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

141. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant does pose a risk to the safety of children and should not have a Working with Children Check clearance. The decision of the Children’s Guardian to cancel the clearance previously granted should therefore be confirmed.

Order

142. The orders of the Tribunal are that:

1. The decision of the Children’s Guardian on 12 January 2016 to cancel the applicant’s Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.

2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

3. It is noted that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Endnotes

[9] Act, s 1(1).

[10] Ibid.

[11] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-42, 55; Foster v Minister for Customs [2000] HCA 38; (2000) 200 CLR 442, 452 [22]-[23].

[12] Outline of submissions on behalf of the Secretary in the case of LMB, [13].

[13] Cf Director of Public Transport v XJF [2011] VSCA 302, [58]-[59] (Maxwell P with whom Mandie and Harper JJA agreed).

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

Registrar

Decision last updated: 28 April 2017