CPD v Children's Guardian

[2017] NSWCATAD 162

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CPD v Children's Guardian [2017] NSWCATAD 162

Hearing dates:

18 January 2017

Date of orders:

24 May 2017

Decision date:

24 May 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 20 April 2016 to refuse to grant the applicant a 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- charges under sections 66EA(1), 61M(2), 66C(1) Crimes Act 1900 (NSW) – paramount concern is protecting children from child abuse - acquittals on all charges - use of transcript of evidence of victim in trial - victim aged 10 to 12 and the applicant 43 to 45 at the time of the alleged offences - onus of proof in a review under section 27- section 57 Civil and Administrative Tribunal Act 2013 (NSW) where division of opinion between the presiding member and the general member – where presiding member’s opinion is taken to be the decision of the Tribunal – where finding on the balance of probabilities that the events occurred – if that finding that the events occurred is wrong then there is an unacceptable risk of harm - a real and appreciable risk is posed by the applicant to the safety of children - decision of the Children’s Guardian to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 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)
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
Children’s Guardian v CFW [2016] NSWSC 1406
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:

CPD (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel/Advocates:
J Trevallion (Applicant)
T Stevens (Respondent)

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

File Number(s):

2016/00378087

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 “CPD” 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.

2. On 18 May 2016 CPD filed in the Tribunal an application for review under section 27 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”) concerning a decision of the Children’s Guardian, made and notified to CPD on 20 April 2016, to refuse him a Working with Children Check Clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.

3. 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 which was 26 November 2015 which is after the commencement date of the amendments: 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.

4. An interim bar was imposed on 21 December 2015 and at the same time the applicant was informed that the Children’s Guardian proposed to refuse the application.

5. The applicant was subject to a risk assessment by reason of section 14 and section 15(1) of the Act. The applicant was charged with offences under sections 66EA(1), 61M(2), and 66C(1) of the Crimes Act 1900 (NSW), which fall within clause 1(1)(b) of Schedule 1 of the Act. The offences were alleged to have taken place between 2012 and 2014. As a result of the risk assessment and pursuant to section 18(2) of the Act the Children’s Guardian refused to grant a Working with Children Check Clearance to the applicant.

6. The applicant seeks a Working with Children Check Clearance, in order to work with children as a bus driver. The applicant previously worked as a bus driver from 1997 until 2015.

7. The applicant is without a Working with Children Clearance now, preventing him from working in “child-related work”: subsection 6(2)(l) and section 8 of the Act; clause 15 of the Child Protection (Working with Children) Regulation 2013.

8. This is an application pursuant to section 27 of the Act. The application for review was heard orally by the Tribunal on 18 January 2017.

9. 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].

10. 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.

11. 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.

12. 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.

13. 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.

14. 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 his chosen area is not permitted by the legislation.

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

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

The evidence relied upon in the hearing

17. The applicant relied upon documents which were tendered as Exhibits as follows:

1. Application filed 18 May 2016 together with annexures including the letter dated 20 April 2016 from the Children’s Guardian and the grounds for the application relied upon by the applicant prepared by his solicitor: Exhibit A1.

2. Affidavit of the applicant filed 11 August 2016: Exhibit A2.

3. Psychological assessment by Patrick Sheehan dated 26 October 2016 and filed 17 November 2016: Exhibit A3.

4. Annexures to the affidavit of the applicant filed 17 January 2017 comprising 200 pages of transcript of the criminal trial: Exhibit A4.

5. Affidavit of the brother on the applicant filed 17 January 2017: Exhibit A5.

6. Affidavit of the solicitor for the applicant annexing documents produced by the Commissioner of Police in response to subpoena is in the district Court proceedings being COPS entries relating to the child complainant filed 17 January 2017: Exhibit A6.

7. Submissions on behalf of the applicant filed 9 January 2017: Exhibit A7.

18. In addition, the respondent relies upon:

1. Bundle of documents filed on 15 June 2016 pursuant to section 58 of the Administrative Decisions Review Act 1997 (NSW) comprising 319 pages: Exhibit R1.

2. Documents produced by the employer of the applicant pursuant to section 31 of the Act filed 18 October 2016 comprising 26 pages: Exhibit R2.

3. Further documents filed on behalf of the respondent on 16 November 2016 comprising 104 pages: Exhibit R3.

4. Submissions on behalf of the respondent filed 5 December 2016: Exhibit R4.

5. Transcript from the fifth day of the trial of the applicant filed on 18 January 2017. This is the transcript of the evidence of the applicant’s brother: Exhibit R5.

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 standard of proof which is on 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 standard of proof in 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 made 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 14 of the Act a person becomes subject to an assessment requirement in the circumstances referred to in the section which is as follows:

14 Assessment requirements

A person is subject to an

"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.

37. The applicant is subject to an assessment requirement because the offences with which he was charged and for which he stood trial, subsequently receiving a verdict of acquittal in relation to all of the counts in 2015, are all offences referred to in schedule 1(1)(b) of the Act. The detail of the offences will be referred to later in these reasons. If he had been convicted then he would have been a disqualified person in terms of the Act.

38. Pursuant to section 15(1) of the Act the Children’s Guardian must 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....”

39. The hearing before the Tribunal is therefore 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]. The reasoning behind the Tribunal’s determination is set out in these reasons.

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 refusal 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.

62. 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.

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

64. Section 15 of the Act 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 and the circumstances giving rise to the charges he faced: section 63 of the Administrative Decisions Review Act.

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 because he has not been convicted of an offence in schedule 2 of the Act.

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 gave evidence at the trial in late 2015. The applicant’s mother also gave evidence at the trial in the defence case. The complainant, her mother and the complainant’s friend all gave evidence for the prosecution.

72. It is submitted on behalf of the applicant that the evidence of witnesses given on oath or affirmation should be preferred over statements made where the witnesses were not cross-examined.

73. The standard of proof in a criminal trial is proof beyond reasonable doubt. The onus is borne by the prosecution to prove every element of every offence that is alleged. In the Tribunal the standard of proof is on the balance of probabilities. As previously stated in these reasons neither party bears the onus of proof in the Tribunal. The Tribunal may make a determination that the events alleged in fact occurred on the balance of probabilities standard of proof. The Tribunal may make a determination that it cannot find that the events occurred on the balance of probabilities. In the second of those options the Tribunal is still required to assess the risk which the applicant may pose to the safety of children: see Children’s Guardian v CFW [2016] NSWSC 1406.

74. The alleged offences occurred at a time when the complainant and her 7 siblings, and mother all resided with the maternal grandmother, the applicant, and the other maternal uncle who is the applicant’s brother. Sometimes the applicant’s daughter stayed on the weekend. At times there were 13 people in the household. The house had 4 bedrooms and 2 of the complainant’s siblings have significant special needs. The complainant had been diagnosed with and treated for attention deficit hyperactivity disorder (ADHD) at the relevant time. All but one of the offences are alleged to have occurred in the family house. The other offence is alleged to have occurred when the complainant went on holiday with the applicant and his daughter to Queensland.

75. The applicant submits that it is implausible that the offences occurred undetected in a house where there were approximately 12 people present at the time and the door to the bedroom of the applicant was not completely shut at the time the majority of the offences are alleged to have occurred.

76. The Tribunal does not dismiss the allegations as groundless on that basis because it would appear that the house was overcrowded and chaotic most of the time, where it is the evidence that the children had no particular routine as to the time they went to bed at night and indeed no particular place where they slept. In those circumstances it was plausible and highly probable that no one paid particular attention to what was occurring with any of the children. The description in the applicant’s brother’s oral evidence of the household paints a picture that it was noisy, crazy, busy, chaotic and it was difficult to get any sleep at night. The brother of the applicant stated that neither his mother (the maternal grandmother) nor the brother of the applicant could control the children. The applicant was stricter with the children. The fact that the incidents were alleged to have occurred in the manner described by the complainant is not dependent upon the door being completely closed, nor was the conduct likely to have been discovered when it was alleged to have occurred in the relative privacy of the applicant’s bedroom or at night while others were asleep. The conduct alleged is opportunistic. It could happen quite quickly and go unnoticed.

77. The complainant first told her friend and then her friend’s mother and subsequently her own mother about the alleged behaviour of the applicant towards the complainant. The complainant then telephoned the police herself and made a formal complaint which triggered an investigation by the police and the Joint Investigation Response Team (JIRT). The complainant was interviewed in 3 separate JIRT video interviews. They formed part of the evidence in the criminal trial. The friend of the complainant also participated in a video interview. The friend’s mother gave a statement as did the complainant’s mother who gave 2 statements.

78. The allegations against the applicant are summarised as follows:

1. the applicant called the complainant into his bedroom, she sat on the bed, he asked her to watch a movie, he put his hands down her top and touched her breasts and put his hands down her pants and touched and rubbed her vagina;

2. the applicant called the complainant into his bedroom and pulled her pants down, placed his mouth on her vagina and licked her vagina;

3. Count 4 alleged that while she was asleep in her grandmother’s bed the applicant came into the complainant’s room and pulled down her under pants;

4. the applicant sat on a foldout bed in the lounge room of their hotel resort room in Queensland, put his hands down her top and touched her breasts and put his hands down her pants and touched and rubbed her vagina.

79. The evidence of the complainant was that there was an ongoing pattern of abuse by the applicant where he regularly and approximately twice per week (over a 9 month period) called her into his bedroom and touched her breasts and vagina as previously set out.

80. The complainant said that the episode of sexual intercourse (in the form of cunnilingus) occurred at least once in the bedroom.

81. There was extensive cross-examination of the complainant during the criminal trial. Not surprisingly, some uncertainty emerged as the timing of the events and the specific detail of the acts perpetrated by the applicant since the trial was in 2015 and the events allegedly occurred in 2012 to 2014. There is inconsistency as to the commencement and duration of the abuse, the regularity with which the abuse is alleged to have occurred (twice a week or 7 times a week). The complainant accepted that there were discrepancies in her evidence. There were multiple events and it is unlikely that each specific incident would be accurately recalled.

82. There was also significant issue taken whether the door to the applicant’s bedroom was open or closed during the alleged incidents. A fair reading of the allegations suggests that the door was partially open, and the evidence of the applicant’s brother and the applicant is that the applicant would leave a towel over the top of the door which meant that it could not completely close.

83. Despite the challenges to her evidence, and the acknowledged inconsistencies the complainant insisted that the incidents occurred and that she was not telling lies. This is consistent with a young child who did not keep records of the events and was required to recall events in the past.

84. The applicant denied the charges and in his statutory declaration to the Children’s Guardian asserts that the complainant is a “troubled young girl with psychological and behavioural problems.”

85. The respondent accepts that the complainant had a relevant history of challenging and oppositional behaviour and had a fraught relationship with her mother. The police were called to the home on many occasions before and after the alleged sexual offending by the applicant in regard to her disruptive behaviour. There is also evidence of the vulnerability of the mother, her fragile mental health and her difficulties in parenting the 8 children during the period of separation from their father.

86. The complainant had engaged in attention seeking behaviour in the past which she acknowledged in the criminal trial. The complainant also acknowledged that she had a difficult relationship with her mother. However, the complainant rejected propositions to the effect that the allegations were made up in order to seek attention or win favour with her mother: e.g. Exhibit A4 page 63. The personal characteristics of the victim do not mean that she was not abused and are simply part of the matrix of facts.

87. The Children’s Guardian submitted that the allegations of indecent and sexual assault constitute an unacceptable risk of harm: see BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33].

88. The Tribunal has read in detail the transcript provided of the criminal trial. The complainant answered questions asked of her in a straightforward and uncomplicated manner. In contrast, the applicant’s evidence in the criminal trial is bare denials of the allegations. The complainant’s evidence cannot be discounted as suggested by the applicant’s submissions since there is a plausibility of abusive touching and opportunistic settings surrounding the whole of the history recounted by the complainant.

89. The evidence does not establish to the criminal standard that the offences occurred. It is completely understandable that convictions were unable to be obtained given the state of the evidence before the District Court. However, the Tribunal finds on the standard applicable in the Tribunal having regard to all of the evidence that the applicant engaged in the behaviour alleged. The Tribunal is satisfied that the events took place applying the civil standard of proof. In other words, the Tribunal is satisfied that it is more likely than not that the events occurred as alleged.

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

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

91. The matters occurred in a period of 2012 to 2014. There was some delay in complaint by the complainant which she has explained in her evidence.

92. The applicant has expressed no remorse. The applicant says that the allegations are lies.

93. It is acknowledged by the Children’s Guardian and by the Tribunal that the character and conduct of the applicant prior to and since the allegations has been beyond reproach.

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

94. The applicant was aged approximately 43 to 45 years of age at the time when the alleged offences occurred.

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

95. The complainant was the victim of the applicant’s conduct and was aged approximately 10 to 12 years.

96. The victim was a vulnerable teenage girl. The applicant was a trusted uncle in an extended family home. The victim had a right to consider that she would be protected and safe in her own home. The previously described personal characteristics of the complainant made her vulnerable to be a victim of abuse.

97. The Act requires protection of children until the age of 18 years.

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

98. The difference in age between the applicant and the complainant was approximately 33 years.

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

99. The applicant knew that the victim was a child.

The person’s present age

100. The applicant is currently aged 49.

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

101. The applicant does not have a criminal record.

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

102. 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.

103. The applicant relies upon the expert evidence of his psychologist Patrick Sheehan in relation to the prediction of risk of sexual recidivism.

104. 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].

105. In essence, expert witnesses in this Tribunal 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.

106. Mr Sheehan states that even if the applicant had been convicted of the offences:

“...he would still be in the lowest risk category amongst males who are known to have sexually offended. Of particular mitigating relevance are his 26 years of working in child related employment unsupervised in the community with no complaints of impropriety.”

107. The Tribunal is not satisfied that there is an insignificant likelihood of any repetition of the behaviours which led to the charges against the applicant. It is more likely that the applicant will repeat his behaviours unless he can address the reasons for that behaviour manifesting in the way it did. A significant degree of insight is required and there is minimal evidence that the applicant has acquired the requisite insight. While the applicant is assessed by Mr Sheehan to be a low risk even if he abused the victim is not accepted as a valid prediction of the likelihood of repetition particularly if the applicant is emboldened to engage in opportunistic behaviour which would have a significantly adverse impact on children.

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

108. The applicant has provided information including the material recorded in the exhibits.

109. 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

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

111. The respondent provided extensive documentary material and submissions in support of the position taken by the Children’s Guardian that the applicant is a risk to the safety of children.

Consideration

112. 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.

113. The applicant submits that it is implausible that the offences occurred in a house where up to 12 people were present at a time, and the door to the room in which the complainant alleges she was assaulted was left open. It is also submitted that Count 4 is implausible because the grandmother was in the same bed asleep but says that she was a light sleeper and would have woken up if that had occurred. The behaviour which is alleged was performed surreptitiously and left no physical evidence. The complainant was reluctant to divulge what occurred to her until sometime after the events. The explanation given by the complainant during the criminal trial under cross examination for that delay is plausible. The description of the chaos in the house is a perfect distraction for the surreptitious behaviour which was alleged.

114. The psychologist seen by the applicant and his report is before the Tribunal identifies that the empirically derived risk assessment would return a negligible or low risk of recidivism (assuming an assault occurred). The psychologist considered that:

“...the sheer volume of exposure to children, women and young people during 26 years of bus driving (school buses, excursions, night rides, intoxicated young persons, aggressive and provocative scenarios). Without a single complaint of impropriety, this is in my view as compelling an indicator of low risk that could be envisaged.”

115. This is an accurate observation but does not explain the allegations which were made and which the Tribunal has found after examining all of the evidence, were more likely than not to have occurred. The behaviours by the applicant may well have been an isolated series of events compared to the rest of his life particular to the applicant’s circumstances at the time, taking advantage of a vulnerable young person. In the circumstances, the Tribunal does not know why the applicant behaved in the manner that he did. It is difficult to predict risk when all the factors leading to the behaviour are unknown and hence unaddressed.

116. The respondent submitted that the report of the psychologist is based largely upon the self-report of the applicant. On that basis it is submitted that the report is of little weight. This is a valid criticism of the report. The respondent submits that the report is based upon the applicant’s self-report “unless stated otherwise” and the psychologist administered a number of tests, had access to extrinsic materials such as the trial transcripts and employment records, and had the benefit of observing the applicant during a two-hour interview.

117. The applicant submits that none of the other children who were present in the home have made any allegations against the applicant. The applicant’s own child has never made a complaint about him. No one is reported to have observed the applicant act inappropriately towards the complainant. This is true. However, it does not mean that the allegations made by the complainant in this matter did not occur.

118. The applicant has no criminal history.

119. The credibility of the complainant is said to be undermined by the inconsistencies in the complainant’s evidence and her evasive answers in cross examination during the trial. The evidence quoted by the applicant in submissions ends with the complainant stating that she did not remember the details it had “been so long [ago]”. The inconsistencies are acknowledged by the victim and she maintained her version of events which implicated the applicant in behaviour which transgressed the boundaries of appropriate behaviour. It is not farfetched to accept the complainant’s explanations. The allegations are not intrinsically incredible.

120. The applicant also takes issue with the reliance by the Children’s Guardian upon the substantiated findings by JIRT and their determination identifying the applicant as the person causing harm. It is submitted by the applicant that more weight should be given to the finding by the jury in the criminal trial. The findings by JIRT are based upon an assessment on the balance of probabilities. The Tribunal accepts that the assessment by JIRT is available on the evidence obtained by JIRT. The Tribunal has formed a similar view.

121. Remorse on its own is not considered to be a factor that mitigates risk and without more than an expression of such sentiment, is a hollow response to an existing behavioural reaction. In this matter there is no remorse expressed by the applicant. The behaviour of the applicant, if repeated, while working with children would be more likely than not to do significant harm to children.

122. If the Tribunal is incorrect in finding on the balance of probabilities that the behaviour occurred then the submission by the respondent that there is an unacceptable risk of harm is accepted by the Tribunal. That unacceptable risk of harm can exist independent of a finding on the balance of probabilities: BKE v Office of the Children’s Guardian [2015] NSWSC 523, Beech-Jones J, at [31]-[33]; Children’s Guardian v CFW [2016] NSWSC 1406. The respondent submitted that there is an unacceptable risk on the basis that the allegations are serious in nature, the complainant maintained her complaints at trial under extensive cross-examination, made consistent accounts to family including her mother and it should be added calling the police herself to say that she “has been molested by [her] uncle”. The complainant told the police that her uncle asked her to go into his bedroom and once inside the bedroom he put his hands down her top and pants and touched her breasts and vagina. The complainant in particular told the police that she asked him to “please stop” but he would not say anything and continued. In all of those circumstances the unacceptable risk is established. The submission is accepted.

123. The assessment of the Tribunal therefore based upon all of the material referred to previously in these reasons is that the applicant poses a risk to the safety of children.

124. 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.

125. 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.

126. 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.

127. 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, 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.

128. 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.”

129. 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."

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 poses a degree of risk which is unacceptable to that person in terms of sexual risk.

131. 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. The applicant was not convicted of child or young person abuse, but on the balance of probabilities it is the Tribunal’s determination that the applicant abused the complainant.

132. 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

133. It is unnecessary in this matter for the Tribunal to make a determination about this particular issue.

134. 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

135. 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.

136. 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.

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

138. 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.

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

140. 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 should therefore be confirmed.

141. The General Member Ms M Bolt has a different opinion to the presiding member which is set out in these reasons in a separate opinion.

142. Pursuant to section 57 of the Civil and Administrative Tribunal Act 2013 (NSW) the presiding member’s opinion is taken to be the decision of the Tribunal in the event that the Tribunal is divided in opinion and therefore the order will be as set out in the next paragraph.

Order

143. The orders of the Tribunal are that:

1. The decision of the Children’s Guardian on 20 April 2016 to refuse to grant the applicant a 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.

BOLT (General Member)

144. I differ from the presiding member’s opinion in respect of the following matters. I accept, however, that the effect of section 57 of the Civil and Administrative Tribunal Act 2013 (NSW) is that the presiding member’s opinion is taken to be the decision of the Tribunal.

That the events occurred as alleged (see paragraphs 76, 88 and 89)

145. In 2015, the applicant gave evidence on oath in the District Court proceedings against him and he was acquitted. He gave sworn evidence to the Tribunal in 2017 and he was cross examined by the legal representative for the Children’s Guardian. On that occasion CPD gave a coherent account of his version of the events that were the subject of the allegations. His denials are consistent with the version of events given to the District Court. He was a credible witness.

146. The complainant’s contested version is set out in the prevailing decision of the Tribunal. There are acknowledged inconsistencies in her evidence, including the regularity of the alleged sexual assaults. Only one of the allegations was said to have occurred outside the applicant’s home.

147. CPD’s brother also gave evidence to the District Court and the Tribunal. He and the applicant both described the home and the extended family in residence. Because their sister moved back to the home with her children, there were makeshift sleeping arrangements. There were a shortage of beds and space was limited. However, the overcrowding does not, of itself, mean that the 4 adults were inattentive to the whereabouts and wellbeing of the children. I consider that is implausible for the applicant to have regularly sexually assaulted his niece as alleged without being detected by her numerous siblings; CPD’s sister, his brother, his mother, or his daughter.

148. There is also evidence that the complainant apparently had a fractious relationship with her mother and at least one of her brothers. Prior to the family’s move to the grandmother’s home (where her two uncles also resided), the police were called out more than once to the complainant’s home by the complainant herself after conflict between them, for example, on one occasion after she said she was locked in her bedroom.

149. On the evidence considered overall, CPD’s version of the contested events seems more consistent and likely. I find on the balance of probabilities that the allegations made against him by his niece are groundless.

That the psychological report is of little weight (see paragraphs 107 and 116)

150. I would argue that appreciable weight should be given to the written report and tribunal evidence of Mr Sheehan, psychologist. It provides a useful insight into relevant child protection considerations in general and the applicant’s circumstances in particular.

151. The applicant’s daughter lived with his ex-wife. CPD gave evidence to the Tribunal about his practice of collecting his daughter from school most days and having her in his care most weekends and holidays.

152. Mr Sheehan considered this to be ‘significant’. He argued that the daughter was about the same age as the complainant and FACS had apparently not placed any limits on their very regular unsupervised contact, even after the JIRT investigation and when criminal charges had been laid.

153. Screening assessments of the applicant were undertaken for personality function and psychological adjustment. Mr Sheehan reported that CPD was frustrated and embarrassed and in disbelief about his situation. However, he was neither bitter nor disparaging about the complainant or his sister .He felt sorry for them because of the many difficulties they face.

154. CPD was assessed in a low risk category. The psychologist concluded that as CPD firmly denies the allegations of sexual misconduct and has not been convicted of any of them: “It would not seem reasonable to penalise him for not taking personal responsibility for allegations that were not proven.”

155. The psychologist’s report noted that CPD had a 26 year history as a bus driver. His employment records showed ‘no reference to any interpersonal impropriety or boundary violations with either adults or children’. He concluded that there was no positive protective value in prohibiting him from employment.

That if we cannot find that the events occurred on the balance of probabilities, we still assess the risk (see paragraph 73).

156. Regard is had to the decision of Children’s Guardian v CFW [2016] NSWSC 1406. The circumstances surrounding the allegations against CPD have been considered. There is no ‘lingering doubt or suspicion’ about his conduct in respect of the complainant. Further, there is no evidence that he poses a risk to his daughter, his nieces or nephews and any children he deals with in the course of work. Employment history and psychological reports about him are favourable.

157. I consider that the applicant does not pose a real and appreciable risk to the safety of children and young persons.

158. The decision of the Children’s Guardian on 20 April 2016 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 should be overturned.

Para 130: the question of whether a reasonable person would allow his child to have direct unsupervised access with the applicant

159. Consideration is to be given as to whether a reasonable person would allow his/her child to have direct unsupervised access with the applicant. All the evidence must be evaluated in addition to the serious allegations made against him by the complainant. The applicant was acquitted and there are no other outstanding allegations or complaints. He has a long standing reputable work record as a bus driver, which includes driving school buses. He continued to have regular access to his own teenage child during the period he was under investigation and facing trial. There is a favourable psychological report before the Tribunal that says that he is a low risk. A reasonable person knowing the matters the Tribunal has before it could be satisfied that CPD does not pose an unacceptable risk in child related work.

The public interest test:

160. For the applicant to be granted a clearance, the Tribunal would need to consider the application of section 30(1A)(b) of the Act. The Children’s Guardian’s submissions refer to the decision in CHB v Children’s Guardian [2016] NSWCATAD 214. The public interest test was not fully explored in the CHB decision because the Tribunal on that occasion was not minded to grant a clearance, so it was not necessary to consider the application of section 30(1A)(b) of the Act.

161. In CLD v Children’s Guardian [2017], NSWCATAD 134, the Tribunal as presently constituted outlined relevant future public interest considerations at [132]- [135].

162. In the matter of CPD before us, section 4 of the Child Protection (Working with Children) Act 2012, provides that ‘the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration’. Additionally, Section 3 the objects of Civil and Administrative Tribunal Act 2013 (NSW) is a further relevant public interest consideration to be weighed. Our decisions should be fair, accountable, open and transparent. Accordingly, there should be public confidence in the system of review and the applicant’s right to resume work if the Tribunal considers that he does not pose an unacceptable risk in child related work. I consider that it is in the public interest for the applicant to be granted a clearance.

Order

163. Because of the provisions of section 57 of the Civil and Administrative Tribunal Act 2013 (NSW) the order of the Tribunal will be:

1. The decision of the Children’s Guardian on 20 April 2016 to refuse to grant the applicant a Working with Children Check clearance under the Child Protection (Working with Children) Act 2012 is confirmed.

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 May 2017