CNZ v Children's Guardian

[2017] NSWCATAD 124

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CNZ v Children’s Guardian [2017] NSWCATAD 124
Hearing dates:	13 October 2016, 27 October 2016, 25 November 2016
Date of orders:	24 April 2017
Decision date:	24 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member B Field, General Member
Decision:	(1) The applicant's application for an enabling order is refused.
Catchwords:	CHILD Protection – Working with Children – Risk – Presumption of risk in application - Whether risk real and appreciable – Serious offence – Pattern persisting over many decades – Insight of applicant – Boundary between applicant and clients - Enabling order – Whether discharge of onus – Whether evidence establishes risk – Expert evidence –
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900 Criminal Records Act 1991 Evidence Act 1995 (NSW)
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFC v The Children's Guardian [2014] NSWCATAD 90 BFX v Children's Guardian [2014] NSWCATAD 115 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Commission for Children and Young People v FZ [2011] NSWCA 111 R v Commission for Children and Young People [2002] NSWIR Comm 101 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CNZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Applicant) M Giacomo (Respondent)   Solicitors: Streeton Lawyers (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378071, 1610301
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

1. The applicant in these proceedings is referred to as "CNZ". CNZ is the applicant's pseudonym used in these proceedings.

2. On 11 May 2016 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with an application for a Working With Children Check clearance. The applicant seeks a finding by the Tribunal that he does not pose a risk to children, and as a result an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 ('the Act'), should be issued by the Tribunal.

3. On 6 May 2016 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

4. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

3   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.

4   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.

5. These proceedings arise because, on 13 April 2015, the Children's Guardian issued a Notice to Disqualified Person pursuant to section 18 of the Act. The applicant had been convicted of a disqualifying offence within the meaning of the Act and as a result (subject to review by the Tribunal) is prohibited from obtaining a Working With Children Check clearance (WWCCC). On 11 May 2016 the applicant (CNZ) applied to the Tribunal for an enabling order pursuant to section 28 of the Act. There is no dispute that the application has been brought within time, or that the Tribunal has jurisdiction to hear the matter.

6. The applicant is a disqualified person because he has been convicted/found to have committed two offences in the nature of indecent assaults outside of New South Wales in the early 1980’s. A number of other matters were raised by the respondent in the evidence in the proceedings as evidence against the applicant. The applicant also raised a number of positive matters in support of his application. At the conclusion of the evidence and submissions the Tribunal finds for the reasons which follow, that the applicant is a real and appreciable risk in respect of the safety and well being of children, and that as a result he has not rebutted the statutory presumption that he is a risk to the safety and well being of children.

Background

7. On or about 27 January 2016 the applicant, applied for a Working With Children Check clearance from the respondent. The applicant requires a clearance in order to resume his career as a counsellor attached to schools. The applicant has not worked in that field since the Notice of Disqualification.

8. On 13 April 2016 the respondent issued the 'Notice to Disqualified Person pursuant to section 18’, whereby on the respondent’s assessment, the applicant was a disqualified person as referred to in section 18 of the Act.

9. Section 18 provides:

18   Determination of applications for clearances

(1) The Children’s Guardian must not grant a Working With Children Check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

10. The basis of this assessment was that records indicated that the applicant had been convicted of (or found by the Court to have committed the offences) of Indecent Assault. The Act provides two relevant matters to the applicant’s circumstances leading to this application. The first being that a finding of offence proven (or equivalent) is equivalent to a formal conviction for the purposes of the child protection regime under the Act. The second issue is that similar offences (in respect of elements/proofs) committed in other jurisdictions in Australia are taken to be equivalent to relevantly similar offences in New South Wales and can be taken into account as satisfying the requirements of Schedule 1 or Schedule 2 of the Act.

11. Section 5 (1) provides:

5   Definitions

(1) In this Act:

…conviction 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.

…

Relevantly for the current proceedings Schedule 2 Clause 1(z) provides:

(z) an offence under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence listed in this clause,

12. This offence (as proven) and as the equivalent offence to indecent assault in New South Wales is located in Schedule 2 of the Act as a disqualifying offence.

13. As a result of the refusal of the clearance the applicant is unable to engage in child related employment.

14. On 11 May 2016 the applicant lodged his application for an enabling order. The grounds of the application are:

(1) He is 67 years of age. With the exception of two offences in 1981 (for which he received a – now spent – good behaviour bond), he has never been convicted of a criminal offence, against an adult or a child.

(2) In 2005 the Industrial Relations Commission ([2005] NSWIRComm 318), considering much of the same material held by the Office of the Children’s Guardian, determined that (’CNZ’) did not pose a risk to the safety of children.

(3) Inadequate weight has been given to (‘CNZ’s’) professional background and employment history. In particular:

(a) (‘CNZ’) has worked as a school counsellor with the NSW Department of Education since 1991 without blemish or any adverse findings being made against him.

(b) In or about 2008 he was granted full registration as a psychologist by the Australian Health Practitioner Regulation Agency (AHPRA), and has subsequently been accredited as a professional supervisor himself.

The working with children legislative scheme

15. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have Working With Children Check clearances. (See section 3 of the Act).

16. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act. (See section 4 of the Act).

17. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of section 8(1) is an offence.

18. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

19. Section 14 of the Act provides that a person is subject to an assessment requirement under the Act if any of the matters specified in Schedule 1 apply to the person.

20. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a clearance to determine whether the applicant poses a risk to the safety of children.

21. Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

22. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian.

23. Section 28 (1) of the Act makes provision for an applicant (who is a disqualified person) to seek an order from the Tribunal that they should not be treated as a disqualified person. The section relevantly provides:

28   Orders relating to disqualified and ineligible persons

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

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

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

(a) the person has been refused a Working With Children Check clearance, or

(b) the person’s clearance has been cancelled, because the person is a disqualified person.

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

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

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

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

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

24. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides:

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.

Burden of Proof

25. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

26. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

27. However, in this case, there is a presumption that the applicant poses a risk to children as the applicant is currently a disqualified person seeking an enabling order pursuant to section 28 of the Act. The applicant is, according to the legislation, presumed to be a risk to the safety and well-being of children and young persons. (s-28 (7) ).

28. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children.

29. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would ...exclude fanciful or theoretical risk 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".'

30. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

31. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

The Issue to be decided

32. The primary issue before the Tribunal in this application is, having regard to the material before the Tribunal, whether the applicant should (or should not) be granted an enabling order. By extrapolation, the issue for determination by the Tribunal is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 24 above).

The Hearing

33. The applicant's application was heard over three sittings on 13 October 2016, 27 October 2016 and 25 November 2016. The applicant was legally represented by Counsel and instructing Solicitors. The respondent was also represented by Counsel who was instructed by the Crown Solicitor’s Office. At the conclusion of the hearing the Tribunal reserved its decision.

34. As outlined above, there is a presumption under section 28 of the Act that the applicant poses a risk to children as the applicant is a disqualified person (seeking an enabling order) under the Act.

35. Material was tendered at the hearing by both parties with the respondent tendering a significant amount of material. The applicant tendered his application with the grounds outlined above (at paragraph 14)

Applicant’s Evidence

• Application for administrative review to NCAT filed 11 May 2016 (Exhibit A 1)

• Psychological report of S Borenstein dated 3 June 2016 (Exhibit A 2)

• Applicant’s signed statement dated 26 June 2016 (exhibit A 3)

• Report of Registered Psychologist H Railton dated 6 July 2016 (Exhibit A 4)

• Affidavit of applicant (CNZ) dated 21 September 2016 (Exhibit A 5)

• Affidavit of 'R.M.' dated 6 September 2016 (Exhibit A 6)

• Psychological report of S Borenstein dated 19 September 2016 (Exhibit A 7)

• Letter to applicant from 'J.T.' dated 7 December 2005 (Exhibit A 8)

• Applicant's application for appointment to teaching service dated Feb 1993 (Exhibit A 9)

• File Note of applicant dated 31 July 2007 (Exhibit A 10)

• Confirmation of Psychologist Registration extract (Exhibit A 11)

• Affidavit of applicant (CNZ) dated 28 September 2016 (Exhibit A 12)

• Supplementary Psychological report/letter of S Borenstein dated 27 September 2016 (Exhibit A 13)

• Personal/professional reference of applicant by ‘E.D.’ (Exhibit A 14)

• Letter from Victoria Police to applicant dated 24 June 1998 (Exhibit A 15)

• Letter from Victoria Police to applicant dated 23 March 2004 (Exhibit A 16)

36. Written submissions were also filed by the applicant’s Counsel.

37. The respondent tendered a large amount of material in 4 volumes running to 1638 Folios which was received as Exhibit R 1.

• Further documents filed 13 July 2016 (Exhibit R 2)

• Further documents filed 15 August 2016 (Exhibit R 3)

• Further documents filed 5 October 2016 (Exhibit R 4)

• Material produced on summons being a report of Dr C J Lennings dated 5 November 2004 (Exhibit R 5)

• E mail from applicant to Psychologist H Railton dated 6 July 2016 (Exhibit R 6)

Applicant's Evidence.

38. The applicant gave evidence at the hearing. In his evidence-in-chief the applicant adopted his signed statements and affidavits as being true and correct.

39. The applicant gave evidence that he lives on his own on the Central Coast and is currently taking anti-inflammatory medication and prostate medication. The applicant stated that he had previously used anti-depressant medication up to 2006 under the care of Dr Wade, but has not used that medication since then.

40. Prior to the Notice of Disqualification the applicant had been working (part time) at a public school and prior to 2016 had worked 2 days a week at a High School.

41. Due to the Notice of Disqualification the applicant stated that he had been suspended from that employment in mid-2016 and has had no paid employment since that time. The applicant’s evidence was that he does unpaid work as a volunteer at a charity.

42. In evidence the applicant stated that the reason that he seeks an enabling order and then a clearance is that he wishes to return to 3 days per week part time work and 2 days a week leave without pay, until the end of 2017 when he proposes to retire.

43. In evidence-in-chief the applicant addressed an allegation that he had printed a pornographic image and transferred data from a work (Department of Education) computer. The applicant’s evidence was that he was in the District Office re-writing a policy manual and procedures on alternate duties (at the relevant office) pending the outcome of his Industrial Relations Commission proceedings.

44. The applicant’s evidence was that the pornographic image was printed on a day that the applicant was not at work. His evidence was that he did not knowingly access inappropriate material, but that he may have accessed his own material.

45. In cross examination the applicant was asked about when he saw Dr S Borenstein in May 2016. The applicant was not sure whether he saw him on one or two occasions. The applicant stated that assessments were performed on the first occasions. In 2003 he saw Dr Allnutt and saw him for over one hour. Dr Allnutt’s report was commissioned on the applicant’s behalf. When asked if the applicant had read the report he stated that he would have read it since he received it, but was unsure as to when.

46. When asked about Professor Dr Greenberg’s report the applicant stated that he possibly saw him for four one hour sessions. The applicant stated that he had read the report since and noted a number of errors which are referred to in his affidavit of 28 September 2016 (Exhibit A 12). The contents of the Greenberg report at page 794 of the respondent’s bundle (Exhibit R 1) were put to the applicant, in that whether all of the assertions were true. (The 1981 indecent assaults). The applicant agreed that they appeared to be accurately recorded to the best of his knowledge. There was some dispute between the applicant and counsel as to whether the applicant ‘grabbed the breast’ of the first victim/complainant, or whether he ‘touched her breast’.

47. In respect of the second 1981 incident the applicant agreed with the positions in the report and put by counsel up until the point when the applicant approaches the victim/complainant at the top of the stairs. His evidence was that he could not remember whether the victim was facing, side on, or with her back towards him. The applicant denied telling Professor Greenberg that he ‘grabbed the breast’ and says that he ‘touched the breast’.

48. The applicant denied in cross-examination that he said he ‘enjoyed the experience’ but says that he ‘wanted to touch her’ (the complainant/victim). There was some conjecture during his evidence as to whether he told the expert that he was ‘sexually aroused’.

49. The applicant was taken to page 777 of the respondent’s R 1 concerning Dr Allnutt. The applicant stated that the ‘walk’ referred to in that report was a walk on the way to the local Institute for a lecture. The evidence of the applicant was that he was not sexually aroused but ‘wanted to touch’. Some information was not included in the report, such as parking the car or following the female up two to three flights of stairs. Counsel questioned the applicant at some length as to what he had left out of that report and his affidavit.

50. When asked whether those matters were trivial the applicant basically agreed that certain omissions were not. The applicant was asked whether he considered the ‘stalking’ aspects of the behaviour as important? The applicant agreed that they were but that they were not as important as what he did depose in his affidavit.

51. In respect of the 1981 Victorian Court matters, a Doctor Richards prepared the report which was considered in giving a 12 month Good Behaviour Bond. The applicant confirmed that no formal convictions were recorded for those two charges. The applicant gave evidence that at the time he was separated from his partner ‘S.R.’ He later reconciled with her and then there was a final separation around 1992 / 1993.

52. The applicant gave evidence that ‘S.R.’ telephoned his employer and made a report that the applicant had sexually assaulted a child. It was stated that the applicant only became aware of this matter in the IRC hearing. (Some of these allegations involving domestic matters involving children are referred to at paragraphs 85-97 of Exhibit ‘A 5’). The applicant denied any inappropriate behaviour.

53. A subsequent partner ‘A.S.’ and the applicant separated about 6 years prior to the hearing. This however was not the first separation; with a prior separation following an incident at the home some years back. The applicant gave evidence that ‘A.S.’ returned home intoxicated and noticed her then 12 year old daughter’s door being open. (A.S’s children lived with the applicant and her). An argument followed and there was a dispute. The applicant’s evidence was that he called the police and asked for their assistance in retrieving his car keys and bag.

54. The applicant’s evidence was that he obtained that police assistance. In addition he stated that if any allegations were made or arose, then he would have denied them at the time due to nothing occurring.

55. The applicant was asked about his workplace mental health issues and workers compensation matters. The applicant gave evidence that he was seeing Dr Wade and came to know Ms Railton. The background to the context of a reference was explained by the DEC policy preventing School Principals providing him with a reference.

56. The applicant was asked about the context of some information in the respondent’s material. The applicant gave evidence that in his role as a school counsellor he had been dealing with a family (Ms ‘R’ and her 5 children). He had become aware that there were Family Court proceedings involving Ms ‘R’. The applicant was questioned about his work with the family as a school counsellor and the issue that he wrote a letter to Housing in respect of the family situation. There was evidence of prior police involvement and domestic violence issues.

57. The applicant stated that it was very common for a school counsellor to outline a child’s needs in a report for Family Court proceedings. The applicant was asked about complaints for Ms ‘R’ about phone calls from the applicant. The applicant stated that he did not believe that he ever telephoned after 7:00pm. Matters were put to the applicant concerning a complaint from Ms ‘R’ that the applicant had allegedly asked her daughter to pose for explicit or suggestive photographs. The applicant denied ever making this request or any involvement.

58. The applicant gave evidence that whilst it was his practice to call parents out of school hours, under Mr ‘N’ (the relevant School Principal), he was requested not to call students and parents outside of school hours.

59. The applicant was asked about a boy ‘T’ who was referred to in Dr Allnutt’s report. (‘T’ had reported an allegation of nude sunbathing). The applicant’s evidence was that ‘T’ was not a school student connected with his role. ‘T’ was not interviewed by the applicant, but he spoke to him about matters that he was asked to take up with the boy. The applicant in his evidence does not accept that he did anything wrong, and merely was reporting a matter as a private citizen.

60. The applicant was asked about incidents involving a female tenant of his, ‘C’. The applicant’s evidence was that ‘C’ was a sex worker and he was concerned that she was having sex in front of her young son. In cross-examination the applicant was asked whether he made a report to DoCS. The applicant answered that he did not report his concerns to DoCS but reported the concerns to the boy’s School Principal.

61. The applicant agreed that DoCS raised concerns about the matter he had reported to them and matters that they had become aware of, however he would not characterise them as complaints. The nature of certain allegations was that the applicant was overly familiar with matters concerning child abuse and associated allegations involving others. There was reference to a complaint by a DoCS worker where the applicant had requested that he sit in on an interview with a child (a 13 year old girl).

62. The applicant was asked about a female student ‘B.P.’ in 1996. The matter related to the applicant recommending a possible foster parent for the girl. The applicant believed that it was appropriate for him to be dealing with ‘B.P.’ about a possible foster arrangement due to it being just prior to Christmas notwithstanding that he was counselling her. The applicant stated that he was uncertain as to whether ‘B.P.’ was a student.

63. The applicant denies the allegation that he ‘pulled’ ‘N’ (who he was previously counselling) out of class even though counselling had been disengaged. The applicant was taken to related material from a sexual assault service, and advised that he was not aware of such material until the day prior to hearing, and not at the time of dealing with ‘N’.

64. The applicant was asked about the allegation concerning printing an inappropriate image on an employer computer printer (an image of a vagina). The applicant denied printing that picture / image. The applicant denied that he was at work on the relevant day as he believed that he had a Doctor’s appointment. He did not believe that he printed the image or that he accessed a CD or floppy disk. Some of the images accessed were described as images of a ‘slumber party’, bathing, bikinis, and kissing. When asked whether he knew what the pictures were the applicant answered that he believed that they may have been sent to him as an e-mail by a friend.

65. The applicant was taken to an incident which took place in 1965 in Victoria. It was put to the applicant that he was 16 years old and the other party was a seven year old female. The applicant’s evidence was that he could not tell that the female was significantly younger than him. The applicant’s evidence was that he had talked to the girl on prior occasions. Much of the account given by the applicant in 2003 to Professor Greenberg was put to the applicant. In that account the applicant stated he was 14 or 15 and was talking through the fence to the youngest of the neighbour’s three daughters and they had decided to go to an empty or abandoned house next door where they ended up naked together. The report records an account of the incident by the applicant as ‘innocent adolescent play’.

66. The applicant was not charged over this incident but appeared to be questioned by police as part of their investigation as to whether an offence had been committed. Whilst some DEC documents refer to charges, it appears that no formal action arose. The applicant was adamant in his answers in evidence that he believed it occurred in 1963 not 1965, as the context was that he was home during school holidays from boarding school.

67. When asked about the basis for the activity the applicant answered that he ‘knew that she was younger but I suppose she was more likely to talk to me’, however, he denied a proposition that he ‘sought her out’ due to her young age.

68. The applicant was taken to paragraphs 29 and 30 of his affidavit (Exhibit A 5) where he refers to the incident and his cross examination in 2005 IRC proceedings. The applicant maintained in his evidence before the Tribunal that the matter amounted to ‘adolescent sexual play’.

69. It was pointed out to the applicant that when he asked Dr S Borenstein for a risk assessment report he did not mention the 1965 incident, nor was it referred to in the letter of introduction. In the second assessment with Dr Borenstein he discusses the 1965 incident and gave evidence that now he would report that issue first up.

70. In re-examination the applicant was asked about the incident involving ‘A.S.’ and the 12 year old daughter’s bedroom door being open. The applicant gave evidence that ‘A.S.’ and he were estranged shortly afterwards. It was the applicant who had called police and reported the matter to his then school employer.

71. In respect of the tenant (Ms ‘C’) in 2002, the applicant advised that he had called the police. Allegations in respect to conduct with her son the applicant had reported to the DEC.

72. In respect of his evidence concerning contact with a sexual assault service involving a client, the applicant was asked whether he was ever contacted by the Departmental Conduct Unit about that matter. The applicant was taken to Exhibit A 10 which was an e-mail that the applicant sent to the Principal of his school. The e-mail referred to ‘N’ (the child) losing contact with the sexual assault counselling service, and that contact was re-established even though they called ‘N’ at home, during school hours. The e-mail canvassed issues such as the need to co-ordinate a response for ‘B’ with or without criminal charges proceeding. The applicant agreed that he was free to collect ‘N’ from class for counselling sessions, and did not drag her out or away from class without approval.

Expert Witness 1

73. Dr S Borenstein gave evidence over the telephone in respect of his two reports of 3 June 2016 and 19 September 2016. In evidence-in-chief he advised that no further changes were required having read the additional material, and that this position was based on the applicant’s denial of the allegations.

74. The expert’s evidence was that the applicant has shown an awareness of the issues and sought proper treatment by way of psychological intervention.

75. In cross-examination the witness was taken to his first report (3 June 2016). The witness advised that he met the applicant once for approximately 90 minutes which included the test administration time. The witness agreed that he was conducting a risk assessment especially in respect of children.

76. The witness was taken to the last 2 paragraphs of page 9 of his June report. (reference to 1981 offences not against children, and nothing in history to indicate any danger to children at any time and other purported findings in respect of the applicant). It was put to the witness that these positions were only derived from the applicant with no third party inquiries. The witness agreed that he had not made any third party inquiries at the time of that report, nor had he asked any questions of the applicant.

77. The witness confirmed that he did not question the applicant on his sexual development on the first occasion. He did not ask the applicant about sexual practices, sex drive and matters of that nature. The witness believed that he was possibly informed that the applicant had a low libido but did not seek this information. There was however a minor reference to the applicant’s own victimology from his brother.

78. The expert witness was questioned about the test answers in his report. He advised that he did not use the Static 99R test because there was only one offence in 1981 and this was considered historical. The witness agreed that the first assessment relied upon the applicant being candid with him.

79. The witness agreed that the 1965 incident was fairly relevant to the overall consideration, as it was an admitted incident by the applicant and involved a child. It was put to the witness that it was of concern that notwithstanding the applicant’s duty to disclose and be candid, the applicant did not initially disclose. The witness suggested that counsel would need to ask the applicant why this was.

80. The witness agreed that the earlier conclusion that the applicant had never been a danger to children is a flawed conclusion having regard to the totality of the material.

81. On the second day of the hearing this witness continued their evidence and cross-examination recommenced. The expert was taken to the top of page 7 of their 19 September 2016 report. In respect of the divergence between assessment and treatment the expert stated that it would be wrong to state that the applicant was never a risk to a child (in respect of the 1960’s incident) as a child was involved.

82. The witness confirmed that in respect of the second report the first appointment went for one hour on 22 August 2016, whereas the second appointment on 16 September 2016 included a 60 minute personality test and the expert then spoke to the applicant for 20-30 minutes. It was put to the expert that the risk assessment was based on the administration of tests, interview, and the considering of other reports and material. Counsel took the expert through their own approach (alternative) to such an assessment.

83. In respect of the reference in the second report to revisiting the 1965 incident, the expert stated that they did talk about them / that briefly in August and possibly September. A number of concessions were made by the expert concerning the lack of any detailed sexual history. In the experts view the 1960’s incident would be ‘unusual but not unheard of’.

84. It was put to the expert that the applicant being a school counsellor, and referring to the incident as ‘adolescent sexual play’, was totally inappropriate.

85. In respect of the earlier report, and having assessed Professor Greenberg’s report, (which refers to the behaviour as ‘predatory’ and equivalent to ‘rape’), the expert stated that was not how the events of the incident were put to him. The expert qualified the matter by the applicant’s explanation of a very severe clinical depression, and a mental illness / disorder.

86. The expert candidly put it that the missing link in all of this discussion is that whilst the behaviour was concerning and was or could be construed as predatory, that needed to be examined in the context of what was happening or occurring with the applicant at that time. (the mental health – clinical depression etc.)

87. In respect of the complaint concerning having a daughter and mother pose in school uniforms for ‘suggestive’ photos, the expert witness was unaware of the alleged context, being the applicant’s evidence that he was being blackmailed.

88. The expert was unaware of any DEC directives that the applicant not have any contact outside of school hours with his clients or their families. The expert noted that the 2008 complaint was not substantiated.

89. In evidence the expert accepted that applicant is a ‘flawed individual’, but having said that the expert stated that what impressed him was that the applicant has at every turn sought to treat and rectify those flaws.

90. The expert accepts the proposition that the applicant has been ‘over involved’ in his work and has taken steps to address this. The expert witness accepted that the risk is greater for someone for whom such complaints had been made, and agrees that even if the ‘over-involvement’ was well intentioned, it does create risk. It was put to the expert that on this point he shared or held the same discrete opinion about the applicant as another expert Professor Greenberg, to which he agreed.

73. In re-examination the expert was asked about this ‘concurrence’ with the Greenberg position, to which the witness qualified his answer by saying that the risk level was very low.

74. The expert was asked about his opinion recorded at the bottom of page 8 of his September 2016 report.

In my opinion (CNZ) does not pose a risk to the safety of children.

He was asked whether he still held that opinion (and the qualifying reasons not reproduced in the extract). The expert stated that he maintained that opinion.

Witness ‘E.D.’ Exhibit A 14

93. On the second day of hearing this witness adopted her statement in evidence-in-chief. The witness was employed at the sexual assault counselling service (as referred to in the applicant’s evidence). The witness knows the applicant both personally and professionally. The witness gave evidence about a situation whereby a girl required counselling from the service but was unable to attend the centre and a home visit was not appropriate. Thus the counselling took place at the school.

94. The witness gave evidence that at all times she saw the applicant utilise appropriate boundaries. There were no concerns with the applicant. The witness was not aware of anyone else raising concerns in respect of the applicant. If she held any concerns the witness indicated that she would have been speaking with the manager of her service.

95. The witness was asked about the 2008 incident / complaint concerning the applicant contacting the sexual assault service seeking details of a client. The witness gave evidence that she had no direct or indirect knowledge of this matter. However if the alleged contact was to ascertain what was being talked about in counselling then it was agreed that would be a far more significant matter.

96. In cross-examination the witness was asked about ‘N.A.’ The witness stated that she did not counsel ‘N.A.’ and was not aware as to whether she was a client in 2008. The witness advised that she was also not aware of ‘N.A.’ making a complaint about the applicant in 2008, nor was she aware of ‘N.A.’s’ mother making a complaint at the same time. The witness stated that she probably would have been aware of such a complaint(s) if made, but couldn’t categorically state that no complaint was made.

97. It was put to the witness that the complaint would have been directed to the head of the service, but the witness stated that as they were a small team and that she is relatively senior amongst the 7 or 8 employees (including part timers). In some instances complaints may be discussed with the Team.

98. The witness was taken through the evidence of the two indecent assaults from 1981. She was asked whether this information caused her to have concerns about the applicant. The witness indicated that those matters do not cause concern as the applicant had given context, references to substance abuse and / or mental health at the relevant time. In respect of the second offence the applicant had apparently told the witness that he was ‘not of his right mind’.

99. The witness was taken to the 1960’s incidents involving the neighbour’s youngest daughter. The witness indicated that she understood that the applicant was 14 at the time, they were both naked but outside the house. The matter was in the context of ‘sexual experimentation’. The witness was asked whether she knew the female was seven years old. The witness stated that she was not aware of that, or factually whether it was 1963 or 1965.

100. The witness was questioned about the description that it was described by the applicant as ‘sexual experimentation’ and she agreed that it was, and would be, ‘unusual sexual play’. Matters were put to the witness concerning the applicant’s earlier evidence that he would report an incident involving him as 14 and the other party as 7 to the Principal (in respect of his career status). However whether he would assess that sort of matter as ‘sexual experimentation’ the evidence on similar matters was that the applicant indicated those were not matters for him to consider, but the Principal alone to make a call on. The witness was asked whether such an approach / attitude would be of concern to her, which she answered that ‘yes, it would be of concern.’ Likewise if the facts were a 16 year old and a 7 year old.

101. The witness was not aware of any complaint to DoCS concerning the applicant being ‘over involved’ in matters, but she was aware of the applicant mentioning that he became ‘too involved in matters’. The witness was not aware of other complaints.

102. In re-examination the witness was asked whether the facts of the historical matter concerning the 7 year old girl when the applicant was 14 or 16 – would cause concern bearing in mind the applicant’s role as a school counsellor. The witness indicated some concerns that the matter was not disclosed or reported.

Witness ‘R.M.’

103. In evidence-in-chief the witness adopted their affidavit (Exhibit A 6). The witness was the applicant’s supervisor in the Department of Education and Communities. The witness gave evidence that they did not know the applicant well at that time, and did not have knowledge of the disclosed matters prior to the applicant informing him of the matters.

104. The witness gave evidence that they had also become aware of other matters as part of this WWCCC process. The 1960’s complaints, the (Sexual Assault counselling service) complaint and the DoCS reports.

105. The witness was asked whether they had any concerns about the applicant as a school counsellor, to which they answered ‘No’. The witness was asked whether they had any concerns about the applicant’s ability to make mandatory notifications, to which they answered ‘No’.

106. The witness was asked what their assessment was of the applicant as a school counsellor? The witness gave evidence that other than the 2008 matter involving the sexual assault counselling service, no other matters had come to their attention. The witness did discuss with the Principal that the applicant seemed very conscientious or similar, but that there were no real concerns.

107. In cross-examination the witness was taken to evidence that they were told to supervise the applicant closely. The witness answered that this was not unusual for a counsellor returning to duties from administrative duties and the request needed to be viewed in that context.

108. The witness was asked whether they read any document or documents prior to preparing her affidavit. The witness answered that they only looked at the e-mail concerning the sexual assault counselling service matter. The witness’s evidence was that they did not really know the details of the complaint including who it came from.

109. A specific question was put to the witness, being whether they would have any concerns with a school counsellor contacting a counselling service about a client. The witness answered that they would not have any concerns for such action, as in their view it would only occur in appropriate cases. The witness noted that the client’s mother would have signed the consent.

110. The witness was asked whether the earlier matters were disclosed in recent times. The witness advised that only the early 1980’s matters concerning the two indecent assaults on women, however on those matters the witness could not comment on specifics or other detail. The witness agreed that the sexual assault counselling service contact matter might step over the boundaries but then to be determinative on that matter the witness indicated that they would need to know the specifics, particularly the basis and purpose of the contact.

111. In re-examination the witness set out what she recently had learned about the applicant, and she advised that this was the 1960’s Victorian incident.

Witness H Railton Exhibit A 4

112. In evidence-in-chief the witness adopted her statement at Exhibit A 4.The witness indicated that she saw the applicant the day prior to her oral evidence. She was asked to provide an opinion as to the applicant’s current psychological condition to which she stated ‘very stressed’ but her understanding was that he was not currently medicated. The witness did not have material to hand as to when the applicant ceased taking prescribed medication.

113. Her evidence was that the position of school counsellor is a highly stressful position. The witness indicated that she was aware of the 1981 indecent assaults.

114. In cross-examination the witness was asked about her qualifications. The witness had been a registered psychologist for over three years. In respect of her role since 2002 the witness indicated that she had been assisting the applicant to recover and she had done this by providing therapy. When asked about paragraph 3 of her report the witness indicated that she had concerns of various matters impacting on the applicant’s self esteem. He had a referral from June 2015 and prior to that in 2014.

115. There was a question concerning a referral from earlier lawyers for the applicant, but the witness apologised that she could not locate that material. The witness gave evidence that she was not asked to do a risk assessment, but having read his report she strongly concurs with Dr Borenstein’s opinion.

116. In respect of the proposition that the role of the treating physician is incompatible with the role of a forensic assessor. The witness agreed generally with that proposition, however the witness did not agree with Counsel’s assertion that she had become the applicant’s advocate.

117. The witness stated that she had ‘not done a risk assessment but have worked with this client (the applicant) for many years and have formed my opinion accordingly’. The witness initially did not wish to go into the 1965 incident but was directed to answer to the best of her knowledge by the Tribunal.

118. The witness’s understanding was that the child was around 8 years of age, and the applicant was 16 or 14 years old. The witness did not perceive the matter as involving sexual behaviour, preferring to describe it as ‘taking their clothes off’.

119. It was put to the witness that her therapeutic relationship compromised her ability to be independent. The witness answered ‘no’. The e-mail (Exhibit R 6) between the applicant and the witness was referred to and tendered.

Expert Witness 2

120. Professor Greenberg gave evidence at the hearing. In evidence-in-chief he adopted his report of August 2003 (contained within Exhibit R 1) as true and correct.

121. In cross-examination the expert was taken to the affidavit of the applicant of 28 September 2016, and the suggestion from within that affidavit that there were a number of errors in the report. The witness did not accept that his report contained errors or was in any way in error, however he cannot now recall very much about the applicant as the notes have now been destroyed long ago.

122. The expert’s evidence was that his report was dictated from notes that he had taken. Reference was made to page 14 of the report concerning his past psychological history. Counsel suggested that the applicant saw Dr Richards (referred to in the report) after the offending took place not prior. It was put to the expert witness that this was an error in his report. The witness conceded that this interpretation was possible. However the witness stated that the report is an accurate reflection of his notes at that time from his interview and assessment of the applicant.

123. In respect of the issue that the 1965 matter did not result in charges (but reference to being charged in his report) does not alter the position at all according to the witness. This was emphasised irrespective of some factual errors and discrepancies in the report.

124. An issue arose concerning the applicant’s then spouse suffering what was referred to as ‘mental problems’. The expert witness was asked whether his opinion of the applicant’s behaviour and overall conclusions would be altered if he was not aware of this issue (re: the spouse). The witness answered that it would not change his opinion. The witness stated that any discrepancies were minor and would not change the overall thrust of his findings and opinion.

125. The expert witness stated that ‘when I look at the overall incidents it does not result in any changes’.

126. Reference was made to page 18 of the report and the references to the applicant’s ‘forceful touching’. The expert referred to the evidence from within his report that:

He admits that he enjoyed the sensation of touching the second victim and he ‘wanted to touch her in a sexual sense’. (CNZ) denies any associated of [sic] sexual fantasies, sexual behaviour or sexual urges with these victims. I found him to be quite guarded in his account. I disagree with Dr Allnutt that these are frotteuristic activities. There is no evidence that these are in keeping with a frotteuristic disorder. I am of the opinion that this sexual behaviour is more in keeping with disinhibited, inappropriate sexual behaviour more similar to that behaviour found in rapists and frotteuristic individuals. Although there is no evidence to ever suggest that (CNZ) has ever engaged in rape behaviour these types of forceful grabbing sexual parts of women who are strangers to the perpetrator are more predatory and are sometimes found as precursors to acts of rape.

127. The witness gave evidence that the ‘touching disorder’ (frotteurism) manifests as a repetitive pattern of behaviour. The witness agreed that without ‘going on’ with the behaviour the applicant did not meet the criteria for a sexual disorder.

128. The expert witness gave evidence that the applicant’s behaviour was more likely to be related to his personality and disinhibited bearing. The applicant was assessed by the expert on the Static 99 Test. The witness was asked whether he would use this test if assessing the applicant again, to which he answered ‘yes he would’. The reasons being that the test does take age into account and the applicant’s total score would be lower due to the time lapse and his age relative to other sex offenders. The results would therefore be on the lowest category (as assessed on Static 99 factors).

129. The proposition was put to the witness that from 2006 to April 2016 the applicant returned to school counselling and there were no complaints in respect of children. The question was put as to whether the applicant could be a lower risk than in 2003, to which the expert witness answered ‘yes’.

130. In re-examination the witness was asked about the Static 99 and the Static 99R tailored to sexual offending risk. It was put to the witness that there are other risks to children other that sexual risks, to which the witness agreed. Finally the witness was advised of the 2008 sexual assault counselling service complaint re: the applicant’s involvement. The expert witness was asked whether there could be an increased risk to a child even if the applicant did not intend any harm, to which the witness agreed that there could.

Expert Witness 3

131. Dr Allnutt gave evidence in the hearing. In evidence-in-chief the witness was unable to adopt the report of 18 June 2003 as the report only reflects his understanding of the matters as they were at that time.

132. In cross-examination the witness was taken to the Static 99 report. The witness noted that the 1965 matter was not a charge whereas the 1981 matters were. It was conceded that it could be that there was one extra offence (the 1965 matter) included in that respect.

133. The witness agreed that intervening factors would reduce overall risk, but that he was limited in giving an opinion about the applicant in the absence of a further risk assessment and interviewing the client (applicant).

134. The witness confirmed that there was a reduction in the relevant offending risk scores from the age of 60 and that the applicant was now in a low risk group. These observations were however qualified by both the passage of time and not having interviewed the applicant further.

135. The expert witness advised that aspects of the assessment tools were not available in the 2003 assessments and as a result the period of ‘non convictions’ was not taken into account.

136. In re-examination the witness was taken back to the assessment and ranking. His evidence was that following the assessment tools, a person falls into a ‘group’ on the criteria and it is not that the person is or is not themselves a risk, but that they fall into a ‘risk group’.

Expert Witness 4

137. Dr Lennings gave evidence at the hearing. In evidence-in-chief he adopted all three reports and noted that one report should be dated 2 May 2005 not 2004.

138. In cross-examination the witness confirmed that he had never previously met or interviewed the applicant prior to the hearing, but was provided with documentation. In respect of the 5 November 2004 Static 99 Risk assessment the witness agreed that it gave a low risk ranking. However the witness outlined how dynamic risk factors can vary over time. The witness stated that to be certain one really needs to ‘re-assess’ a client overall.

Witness ‘R.M’ reconvened.

139. The witness was recalled (due to the earlier evidence being interrupted due to time constraints concerning experts). It was ascertained in the continuation of re-examination that the witness had possessed a draft of the applicant’s affidavit.

140. Counsel for the applicant read onto the record the relevant documents that the witness had in her possession. The witness gave evidence on oath that she did not discuss with the applicant this matter, but that there was an e-mail communication two days prior to (today) concerning the contested issue of the 1965 incident and ‘sexual experimentation / adolescent sexual play’.

Respondent’s evidence and submissions

141. The respondent filed written material as set out at paragraph 37 (above). The material includes matters concerning the applicant’s criminal history, employer and other Departmental records, and material in evidence in earlier proceedings such as the IRC.

142. Much of the respondent’s submissions are ventilated within the section 30 (1) considerations below.

143. In submissions the respondent’s Counsel submitted that the pattern of complaints about the applicant is of a sexual nature in addition to the 1965 and 1981 events.

144. The respondent submitted that the complaints of boundary crossing between 1997 and 2008 occurred despite the applicant being subject to extra monitoring and training as a result of separate investigations concerning allegations.

145. The respondent submitted that the Borenstein report focuses on sexual risk only, whereas the applicant disputes this. The Lennings report should carry little weight due to the matters raised (appropriately in examination of the witness) and the fact that he was unable to make an assessment as to the applicant’s current level of risk.

146. The respondent made submissions as to the operation of the reasonable person and public interest test criteria under section 30 (1A). Both parties conceded that the correct approach to those matters was dependent on a finding that the applicant did not pose a risk – as a precondition.

147. In closing the respondent submitted that there is a presumption that the applicant is a risk, risk is an all encompassing thing, and the expert reports of Borenstein, Allnutt, and Greenberg assist the Tribunal in that task.

Applicant's submissions

148. The applicant made detailed oral submissions at the conclusion of the third session and filed detailed written submissions. Many of these matters are referred to in aspects of the evidence and in particular the Tribunal’s consideration of the mandatory section 30 (1) considerations below.

149. The Tribunal agrees with the applicant’s submission that there was no strict requirement to ‘re-disclose’ the 1981 matters and therefore that does not indicate a lack of candour on behalf of the applicant.

150. The applicant submitted that, as there is only one relevant matter on his record and that occurred 35 years ago, the applicant is not a risk to children. The circumstances of the applicant at that time have significantly changed and improved (his psychological state). The 1965 matter occurred over 50 years ago and there is dispute as to what occurred and what offence, if any, took place.

148. Reference was made to the 2005 IRC proceedings where there was a conclusion that the applicant was not a risk to the safety of children. Whilst Counsel’s written submissions at paragraph 145 put forth an arguable position, we note that those submissions were prepared on the eve of the opening of the evidence in the proceedings before the Tribunal. A paper based assessment and analysis is however absent of the qualified evidence given at times by the applicant and other witnesses (both lay and expert), as a result of these proceedings.

149. A finding under the previous regime with no significant change or incidents since would in our view carry some significant weight. However the Legislature has seen fit to develop the law relating to the child protection regime, whereby fresh assessments and considerations are required even when there has been no actual changes since earlier clearances. In this regard the process is somewhat retrospective for applicants such as CNZ. We make no further comment on this observation other than to note the protective jurisdiction and provisions of section 4 of the Act.

150. The applicant disputes the respondent’s characterisation of the Borenstein report in that the risk assessment was to focus on sexual risk.

151. In closing the applicant submitted that one looks as each individual matter and then stands back and looks at the cumulative effect.

Section 30 (1) considerations

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

155. The applicant committed the disqualifying offences in 1981. The details of those offences and the evidence about them is set out above in these reasons.

156. They are deemed serious in that they are matters captured by Schedule 2 of the Act. Therefore from a child protection regime they can be regarded as serious offences even though they fall at the bottom end of seriousness in respect of the criminal law concerning sex based assaults or assaults where gratification is considered an element of the offence from a proof perspective.

157. Because this section refers to the disqualifying offence (for section 28 matters) or matters that caused a refusal of a clearance (for section 27 matters), it is unnecessary to examine any other issues under this provision. As the respondent was statutorily bound to issue the disqualification, no risk assessment was either mandated or permissible. Whilst section 15 (3) provides that the respondent may conduct a risk assessment on any basis, there is no requirement for any practical consideration of material for a disqualified person (as per section 18 (1) of the Act), other than to ascertain that they are a disqualified person. In the current matter there is no evidence of any further assessment at the administrative level prior to the commencement of these proceedings.

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

158. The applicant's offending occurred approximately 35 years prior to the hearing.

159. A number of incidents arose in the intervening years, none of which necessitated criminal charges or adverse Court outcomes. However a number of matters are relevant in respect of the applicant’s candour and his behaviours having regard to the sensitive career positions that he has held in the interim.

160. The 1986/1987 termination of DoCS employment for an alleged failure to disclose was raised in the written evidence and submissions. We infer that this is a relatively minor issue due to the fact that (a) the offences were not committed against children, and (b) whilst evidence was not lead on this issue, the disclosure requirements and operation of criminal records legislation in different jurisdictions is less than straightforward. It is arguable whether the applicant had any legal duty to disclose the matters, but this was never established. We note that these matters were appropriately disclosed by the applicant to his most recent employer in 1991 when commencing that employment.

161. In 1997 in response to complaints / referrals to DoCS matters were raised with the DEC about the applicant’s over involvement in cases that he was either dealing with or aware of as a school counsellor. Whilst these matters are of some concern in the issue of what might be characterised as potential ‘unintended risk’, we note that nothing substantive arose from these concerns.

162. In 2000 allegations concerning a student and her mother posing for photographs were found to be unsubstantiated. The applicant’s evidence on this issue is that he was being blackmailed. We infer that in any event the matter was most unusual (to whatever extent it was factual), and arose possibly due to the applicant’s involvement in his work. The Tribunal accepts that the evidence of this matter is evidence of the allegations being made and not evidence of the veracity of the matters. This matter (at the conclusion of the evidence) is seen to have minimal weight to the overall task of the Tribunal, other than what we have observed as to it arising from the applicant’s work.

163. In respect of an issue as to a false prohibited employment declaration, the Tribunal sees this matter as carrying minimal weight. Having read the submissions of both parties on this issue we understand the position in respect of the legislation being argued by the applicant, and also note that in any event (discretionary or otherwise) the applicant had disclosed these matters to the same employer 9 years earlier.

164. Various allegations of complaints involving partners and tenants ‘P.C.’ and ‘A.S.’ were referred to in the evidence and submissions during the period 2001 to 2002. These matters were examined both by police and the applicant’s employer. Other than these matters being somewhat part of a continuing ‘pattern’ of allegations, we infer no specific relevance to the matters from a factual context based on both the evidence before us and the conclusions of the other bodies.

165. There was an allegation about inappropriate use of employer computers in the context of viewing / printing pornographic or inappropriate images in 2005. We note the applicant’s evidence in denial. We also note the inconclusive nature of various aspects of the matter, what occurred, the exact nature of the content of the image, and the issue of whether it was in any way indicative of risk to children. In making that observation we do not however state that the matter (as alleged) is not relevant to consider as part of the overall case before us.

166. The 2008 complaint concerning the sexual assault service ‘matter’ has been referred to many times within the evidence. The core of the matter was that the applicant was contacting the service to obtain information about a female referral and seeking to continue school based counselling. At the conclusion of the evidence this matter appears to have no significant weight towards any issue other than the consistent complaint of the respondent that the applicant over involves himself in certain matters arising from his work, in respect of (by necessity due to the nature of his work) children.

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

167. The applicant was approximately 32 years old when the disqualifying offences 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.

168. The victims in respect of the Victorian indecent assaults in 1981 were adult females. The exact age of the two victims is unknown. The victims were vulnerable in that they were women and the applicant was an adult male. However it does not appear that there is any evidence to indicate that either or both of them were in any other way especially vulnerable.

169. The other conduct matters referred to in these reasons (as allegations) involve alleged victims between 5 years of age up to adult females.

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

170. The victims of the offences appear to be of a somewhat similar adult age to the applicant with a general understanding from the evidence that the applicant was slightly older than his victims. It is accepted that the parties were strangers to each other.

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

171. The victims were not children. Whether this provision also encapsulates other matters additional to the disqualifying offences is debatable. In any event we have referred to the ages of the victims / complainants in the other matters at paragraph 169 under item 30 (1) (d) above.

(g) The person's present age.

172. The applicant was 67 years old at the time of the hearing.

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

173. The relevant criminal record comprises the disqualifying offences. As stated above those matters are serious offences albeit with the circumstances somewhat in the middle to lower range of objective seriousness. The applicant has no other matters on his criminal record consistent with the provisions of section 5 of the Criminal Records Act 1991 whereby a criminal record refers to convictions and findings of offence proven arising solely from Court records.

174. The conduct of the applicant since 1981 has been outlined in the considerations above. Matters prior to the offences occurring will be addressed later.

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

175. A risk assessment was provided by the applicant in respect of his application and an assessment of his real and appreciable risk of reoffending or behaving in a manner detrimental to the safety and well-being of children. The report in respect of his risk of harm to children, that risk is couched as ‘low’. Significant matters were conceded by his expert when the other expert evidence obtained by the respondent was tested. The applicant submitted that the disqualifying offences (due to their circumstances) had no impact on children, and in any event for reasons outlined in the evidence and reasons above, the conduct of 1981 is unlikely to be repeated.

176. The applicant submitted that there has been significant and ongoing addressing of his behaviour by treatment and other interventions.

177. The respondent submitted that having regard to the totality of the conduct (including the 1965 instances of behaviour in Victoria), Dr Allnutt opined that if all were true then the applicant falls into a high risk group for future offending.

178. In our view if the 1965 behaviours were to re-occur, or if similar offences to the 1981 matters were directed against children, then the risk of harm would be significant to any child victims. The respondent submitted that Dr Borenstein’s report should be treated with some caution as it had not covered all of the matters in the applicant’s history. We observe that some of these issues were rectified at hearing and rehearing from the expert witness on the second day. We note our observations on this point at paragraph 175 (above).

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

179. The applicant has provided a Psychologist’s report (see above), and a number of supporting documents concerning the applicant. The applicant also provided a number of signed and sworn statements from third parties the majority of which gave evidence at the hearing.

180. The respondent submitted that the personal referees were not aware of all the matters relevant to these proceedings. However the statements are of some weight in determining the applicant’s level of risk, albeit limited weight. Some of these references address the overall issue as to risk and also the section 30 (1A) consideration, albeit personal opinions rather than purporting to address the meaning of a ‘reasonable person’ under the Act.

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

181. The Children's Guardian submitted that the applicant posed a risk. In particular, reliance was placed on the 1965 conduct involving the seven-year-old female, which has been outlined in detail in these reasons above. The respondent submitted in written submissions dated 21 November 2016 that the evidence indicates that the applicant was 16 years old and the complainant / victim a seven year old girl. As previously stated the circumstances are referred to in detail above. The respondent submitted that the matter was given little weight in the IRC proceedings because the Judge had ruled that it had been improperly obtained. However only the actual police material was excluded not the applicant’s admission to Dr Allnut and to Professor Greenberg.

182. The respondent submits that the 1965 incident is of significant weight (despite the significant passage of time) because he failed to disclose it to Dr Borenstein in the first instance. The respondent submitted that the incident was minimised by the applicant by his evidence that he did not realise that she was significantly younger than him (half his age or more at that time etc.).

183. The respondent submitted that the continued reference to matters between a 16-year-old male and 7-year-old female being ‘adolescent sexual play’ is of concern. Notwithstanding the applicant’s evidence about his late development / maturity and lack of self-confidence, concerns were raised that having regard to his professional career experience and qualifications, he maintained this characterisation of the incident still over half a century later.

Consideration

184. We have considered all of the material submitted by the parties in these proceedings. Whilst we note that the applicant is a disqualified person, the task of the Tribunal is to ascertain whether the applicant is a real and appreciable risk to the safety and well being of children and young persons.

185. There are many cases which address the issue of how risk should be considered and what findings if any can be made on such matters in the context of this jurisdiction. In the current case the findings as to the conduct in respect of the disqualifying offence is clear. The findings were established by a finding of a criminal Court following a plea, that the offences were proven to the requisite standard.

186. In the case of BFC v The Children's Guardian [2014] NSWCATAD 90 His Honour Judge Mullane considered the issue of risk in respect of an enabling order application. At paragraphs 57 to 58 His Honour considers the conclusion of the expert witness and the meaning that this carries in respect of risk. At paragraph 58 reference to Young J's comments in the case of 'V' are considered.

57.Overall, the Tribunal finds that Ms Howell's conclusion is reliable and therefore the Tribunal accepts that the Applicant does not pose a real risk to children. It should be noted, however, that this is not a finding that the Applicant is no risk at all. Theoretically, most adult males pose some risk, but it is well established that the risk to be considered is a real risk, rather than a theoretical risk.

58.In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section [At par 41] and [at par 42]:

"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence".

"One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk 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 'risk' with the words that follow, namely, 'to the safety of children'".

187. We have carefully considered all of the evidence and submissions given, and material filed by the parties even if we have not referred to every aspect of it specifically in these reasons. Much of the written submissions covered matters set out in some detail in the evidence and our section 30 considerations.

188. Having regard to the material before the Tribunal, in our view there is sufficient evidence and material to make a finding that the applicant poses a real and appreciable risk to the safety and well being of children and young persons. We have had particular regard to the applicant’s evidence in providing explanations for the instances of conceded behaviours and contested matters. We have taken this position in the absence of significant evidence directly from the various complainants.

189. We find that in many aspects the applicant was trying to (understandably) distance himself from the severity of his conduct (notwithstanding his guilty pleas on the disqualifying matters). The manner of his evidence and that of some of his referees caused us to observe a minimising of the conduct on the applicant’s behalf. In the totality of the matters in existence before Dr Allnutt and Professor Greenberg we place significant weight on their opinions and conclusions notwithstanding the alternative observations in the further expert reports.

190. We conclude that the current finding of low risk may well be accurate, however we find that on the evidence and material before us, that risk (albeit low) sits greater than the terms (as referred to in ‘V’) of a risk that is fanciful or theoretical risk. In our view the risk is both real and appreciable and greater than the general risk of any adult preying on a child, and we so find.

191. Whilst it may be that there is little risk from the applicant in the context for which the enabling order is sought, and noting his evidence-in-chief that he proposes to cease working within the next 12 months, unfortunately the legislation does not recognise any limited application of a clearance. If the Tribunal was to make an Enabling Order, the Children’s Guardian Working With Children Check clearance must be unconditional, and would provide authority to the applicant to work with children in any context, even if in practice this was not going to eventuate.

192. We note that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions, and that under section 28 (7) an applicant is presumed to pose a risk to children unless the applicant proves to the contrary.

28 Orders relating to disqualified and ineligible persons

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

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

193. Whilst the applicant has, at relevant times, taken positive steps to address his somewhat aberrant behaviour, and noting that the current level appears to be low, we are not satisfied to the requisite standard (real and appreciable) that the applicant does not pose a risk to the safety and well being of children, being a risk that is real and appreciable.

194. In light of our finding that the applicant has not rebutted the presumption that he poses a risk in accordance with the provisions of the Act, it is unnecessary to consider the further provisions under section 30 (1A) in any detail, suffice to say that the finding we have made is a pre-condition for the other provisions.

Conclusion

195. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act, we reach the following conclusion:

195. The evidence and material referred to in these reasons establishes that the applicant poses a real and appreciable risk to the safety of children.

196. Therefore in our view the evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

197. In expressing these views above we note that 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.

198. In our view having regard to all of the material before the Tribunal, the applicant does pose a risk to the safety of children.

199. It therefore follows that the Tribunal should not make enabling order in accordance with section 28 of the Act.

Orders

1. The applicant's application for an enabling order is refused.

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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: 24 April 2017