CPY v Children's Guardian

[2017] NSWCATAD 218

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CPY v Children’s Guardian [2017] NSWCATAD 218
Hearing dates:	2 February 2017
Date of orders:	30 June 2017
Decision date:	30 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member R Royer, General Member
Decision:	(1)      The decision of the Children's Guardian dated 11 May 2016 is affirmed.
Catchwords:	CHILD Protection – Working with children – Findings in respect of allegations – Evidence – Weight of evidence
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998(Repealed) Civil and Administrative Tribunal Act 2013 Interpretation Act 1987
Cases Cited:	Children and Young People v FZ [2011] NSWCA 111 CHB v Children’s Guardian [2016] NSWCATAD 214 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIRComm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Re: Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 BFC v The Children's Guardian [2014] NSWCATAD 90 Office of the Children’s Guardian v CFW [2016] NSWSC 1406 BFX v Children's Guardian [2014] NSWCATAD 115 BKE v Children’s Guardian [2015] NSWSC 523 M v M (1988) 166 CLR (HCA)
Category:	Principal judgment
Parties:	CPY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent)   Solicitors: G Corrigan, as Agent s45 (1)(b)(i) (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378149
Publication restriction:	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.

Reasons for decision

Introduction

1. On 11 May 2016 the respondent cancelled the applicant’s working with children check clearance. That decision was made under section 23 of the Child Protection (Working with Children) Act 2012 (the Act).

2. The Applicant in these proceedings is referred to as "CPY". CPY is the applicant's pseudonym used in these proceedings.

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, and the provisions of section 30 (1) of the Act the Tribunal finds that the applicant does currently pose a real and appreciable risk to the safety and well-being of children and young persons on the evidence and material before us.

4. Having found that the applicant poses a risk to children, it is not strictly necessary to consider the application of s 30(1A) (a) and (b) of the Act. We note that there is some debate as to how such provisions apply when the conditions of Clause 16 of Schedule 3 of the Act are not met. We do however review those provisions below by reference to another case where submissions were made on this point. The decision of the respondent will therefore be affirmed for the reasons which follow.

Background

5. On 28 July 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.

6. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('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.

7. These proceedings arise because on 11 May 2016, the Children's Guardian made a decision to cancel CPY’s working with children check clearance. That decision was based on a risk assessment conducted after information came to light concerning allegations that fall within Schedule 1 Clause (2) (b) of the Act.

2 Findings of misconduct involving children

A person has been the subject of a finding by a reporting body that the person engaged in the following conduct:

(a)….,

(b) any serious physical assault of a child.

8. Following a risk assessment trigger by the allegations and subsequent workplace investigation, the Children’s Guardian concluded that the applicant posed a risk to the safety of children and young persons. The relevant statutory test which the Children’s Guardian followed is set out at section 23 (1) of the Act.

23 Cancellation of clearances

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

9. On 11 May 2016 the respondent made the cancellation decision under section 23 of the Act. The applicant states on his application for administrative review that he was notified about the decision on 15 May 2016. It appears that his application to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act was lodged initially at the Newcastle Registry on 10 June 2016. On this basis the Tribunal accepts that the application was lodged within the 28-day statutory period for administrative review.

10. The applicant had applied for a Working with Children Check clearance from the respondent as required at different times in his career. The applicant required the clearance as his primary employment involved the care of persons including children.

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

12. The applicant lodged the application for administrative review before the Tribunal just within the period provided for in section 27 (1) of the Act. The section provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

13. The grounds of the substantive application are:

The decision made by the Office of the Children’s Guardian based on incorrect information.

14. It appears from the respondent’s submissions that they are of the view that the provisions of section 30 (1A) do apply to his application for a clearance (as per paragraph 4 above). Whether section 30 (1A) applies to a matter like this was the subject of some analysis by the Tribunal in the case of CHB v Children’s Guardian [2016] NSWCATAD 214, whereby at paragraph 124 the Tribunal found:

124. As s 30(1A) had commenced when the respondent cancelled the applicant’s clearance and when the applicant applied to this Tribunal for a review of the cancellation decision, that provision applies to the Tribunal’s determination of her application.

15. We note that Clause 16 of Part 4 of Schedule 3 of the Act provides that the Children’s Guardian must consider the following matters:

16 Matters for consideration

(1) Sections 15 and 30, as amended by the amending Act, do not apply to an application for a clearance or an application for an administrative review of a decision to refuse an application for a clearance.

(2) In this clause:

application for a clearance means an application for a working with children check clearance made by a person before 2 November 2015.

However notwithstanding our finding, for completeness we will revisit the specific legislative context of the amending Act later in these reasons after considering the evidence.

16. The issue to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting or refusal of a clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.)

The working with children legislative scheme

17. 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).

18. 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).

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a clearance (see section 27 (1)). The section relevantly provides:

27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(2) ………...

(3) ………...

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

(5), (6) (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

26. 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

27. 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] NSWIRComm 101 at [130].

28. 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].

29. The Tribunal embarks on a fact finding exercise in respect of the evidence and material before it. In those circumstances it is a matter of some recent superior court observation as to how the standard might be approached. In the case of Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 the Court of Appeal recently observed the following in respect of the Tribunal. At paragraphs 126 to 127 the Court observed:

126. It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate “must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence”. However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]- [40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]- [30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]- [122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171:

“[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” [citations omitted]

127. In those circumstances, his Honour’s reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.

30. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88.

31. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to section 28 of the Act.

32. In this application, the issue for determination 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 26 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and section 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1).

33. 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". ...'

34. 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.

35. 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

36. The primary issue before the Tribunal in this application as outlined at paragraph 15 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a clearance in relation to the applicant: (section 63 Administrative Decisions Review Act 1997).

The Hearing

37. The matter was heard on 2 February 2017. The applicant was represented by an officer of an Industrial Organisation (Mr Corrigan) who was given leave to appear in accordance with section 45 (1) (b) (i) of the Civil and Administrative Tribunal Act 2013. The respondent was represented by Counsel and instructing Solicitors.

Written Evidence

Applicant’s written material

38. The applicant filed his application for administrative review (Exhibit A 1) as referred to above.

• The applicant filed a bundle of documents on 25 October 2016 (Exhibit A 2) comprising documents from a workplace investigation, Industrial Relations Commission (IRC) material, and associated documents.

• The applicant filed a signed statement dated 24 January 2017 (Exhibit R 3)

Respondent’s written material

39. The respondent filed substantial material under both section 58 of the ADR Act and material obtained since the commencement of these proceedings. Whilst the respondent did not call any witnesses, substantial cross examination of the applicant occurred at hearing.

• Section 58 documents - 372 pages (Exhibit R 1).

• Additional documents (DEC, Police and Courts material) 12 pages (Exhibit R 2).

• Further additional documents (IRC Proceedings related) obtained under section 31 – 22 pages (Exhibit R 3).

• Further additional documents NSW Police admin records re: criminal history pursuant to section 31 (Exhibit R 4).

• Documents filed at hearing (2/2/2017) Community Services and associated information s-31 Notice to Produce (Exhibit R 5).

Submissions

40. The respondent filed detailed written submissions prior to the hearing, in addition to oral submissions made at the conclusion of the evidence at the hearing. The applicant’s written material contained some matters consistent with submissions.

Applicant’s Evidence at Hearing

41. In evidence in chief the applicant adopted his statement of 24 January 2017 as true and correct to the best of his knowledge.

42. Paragraph 6 of that statement referred to the incident which became central to the Respondent’s decision to conduct a risk assessment and cancel the applicant’s clearance. That incident concerns allegations of misconduct and assault by the applicant against persons in his care as a disability support worker.

43. The incident involved allegations that in October 2014 the applicant grabbed a child in his care by the neck and pulled him to the ground. It was also alleged that he told another child in his care that he had written down in his notes an alleged ‘threat’ to report the incident by that child, and then allegedly approached another child in his care and told that child to tell a colleague that they had ‘made stuff up’. Paragraph 6 of the statement records the following as the applicant’s version adopted on oath.

6. I had minimal interaction with the client that I allegedly assaulted prior to the day of the allegations. I was assisting him with some food and touched him on the back of the head / neck as a tactile way of communicating with him and he simply dropped to the ground.

44. The applicant’s evidence at hearing was that the incident was based around food, specifically the serving of chocolate cake. The reason that the ‘client dropped to the ground’ was according to the applicant, because the client was focusing on a shiny piece of plastic on the ground. (The applicant indicated that his understanding was that the client was autistic and he had ‘displayed similar behaviour picking up a piece of foil on the ground’).

45. The applicant’s evidence was that he ‘lent down to see if the child was O.K. and the child jumped up and “butted” the applicant to the head.’ The applicant then ‘jumped out of the way’. On a prior occasion there had been a ‘formal report’ of the client (child) with his arms around the neck of another client.

46. In evidence the applicant referred to another incident the applicant witnessed and made a report. When speaking of the workplace investigation the applicant’s opinion was that the investigator was ‘one-sided’. The applicant believes that the investigator had already made up their mind. The investigator had only interviewed the applicant once, but had, according to the applicant, interviewed other persons on multiple occasions.

47. The applicant spoke about his 17 years of employment and generally incident free service with the Department of Family and Community Services (FACS).

48. In cross examination the respondent’s counsel asked the applicant how many boys were present during the incident involving the chocolate cake (the central incident). The evidence was that five boys were present. The applicant indicated that the child ‘T’ was the person who caused the injury to the child / victim in the central incident. ‘T’ had placed a headlock on ‘B’. ‘B’ was the boy who the applicant says bent down to the shiny item on the floor at the time of the serving of the chocolate cake. Another boy ‘C’ was the ‘alleged witness’ who spoke to staff.

49. The applicant’s evidence was that the boy ‘B’ (who is autistic) made verbalisations and noises which sounded as words, but he does not talk as such. However the applicant’s evidence was that ‘B’ was ‘able to write words’.

50. The applicant had only worked with ‘B’ for two shifts prior to the central incident. The notes that he had referred to the ‘non-verbal nature’ of ‘B’. The applicant was asked ‘you did not know that (B) couldn’t speak?’ The applicant replied that he didn’t know that (B) couldn’t speak.

51. The applicant was taken to the transcript of the Record of Interview (ROI). Colleague (‘A.B.’) was aware of a ‘near miss between the two at dinner’. The applicant allegedly said that the incident should be reported. The applicant’s evidence was that ‘A.B.’ said ‘that’s not what we do here.’

52. It was put to the applicant that he failed to do any of the necessary things such as call the supervisor, B’s mother, or a doctor. The applicant denied this. His evidence was that later that shift he left a message for the supervisor, but as that occurred after 10:00pm it was too late to call back. In evidence the applicant stated that one of the reasons for the delay was that he started to feel sick after about 9:00pm that shift.

53. In response to questions from the respondent’s counsel about the delay the applicant stated that he believed that he had 24 hours to report the incident. The applicant advised that he gave a ‘verbal hand over report’ at the end of his shift. In addition the applicant gave evidence that he had not been trained in nor was he otherwise aware of the procedures at that particular respite facility.

54. The applicant’s evidence was that the computer was not working on the day and later evening of the incident, so he filled out the reports the next day in handwriting.

55. The applicant was taken to page 321 of the section 58 documents (Exhibit R 1) being the Department’s ROI. At page 15 of the ROI there was reference to the food concerning the ‘central incident’. At line 19 the interviewer states:

19 CA: I think there was a cake of some description. Do you, do you remember?

The applicant answers at line 21:

21 (CPY): There was chips and a drink.

23 CA: Chips and a drink. O’kay, alright. Do you remember there being a chocolate cake at all that (B) was keen on helping himself to?

26 CPY: No, and if he’d, if he’d expressed that he wanted some, he could have some.

56. The applicant attempted to clarify this apparent inconsistency from the ROI with his other evidence by stating that ‘at an earlier time there were chips and a drink, but later that shift there was chocolate cake’.

57. The applicant’s evidence was that ‘B’ had exhibited behaviour of ‘dropping to the ground’ on more than one occasion. In addition the applicant asserted in his oral evidence that ‘there is information in error in the transcript.’ (ROI).

58. The applicant continued with his evidence after a short adjournment. He had previously informed the National ‘on-call’ Manager . He left a message at 9:30 pm. And called back at approximately 10:00pm. He had symptoms of irritable bowel syndrome that evening and was ‘doubled over in pain’.

59. The applicant was taken to page 153 of Exhibit R 1 concerning the case notes. The witness had difficulty identifying in his evidence when the actual notes were completed. The witness indicated that the notes were added on 8 October 2014. The witness was under some duress in giving his evidence and when he explained to the Tribunal of a very recent death in his immediate family, the Tribunal adjourned the matter early to assist the witness in composing himself.

60. After the luncheon adjournment the applicant agreed that he had added additional material to the notes as indicated on page 153 of Exhibit R-1.

61. It was put to the witness that he added the other material after a conversation with ‘C’ on 8 October 2014, the import of which being that ‘C’ had reported the central incident to others, and the applicant had put the extra notes in to ‘cover himself’. The applicant denied this proposition.

62. The applicant’s version was that the conversation had occurred with ‘C’ on the 7th of October (concerning ‘dobbing in’) but as he was ill he completed the notes the following day.

63. It was put to the applicant by counsel for the respondent that the issue of the ‘victim’ (B) focusing on the shiny foil etc. – was an issue that the applicant had simply made up for the Tribunal.

64. The applicant was questioned about earlier allegations in May 2014. The applicant’s evidence was that he had made reports about those matters however none of those reports were provided by the applicant to the Tribunal (and respondent). The applicant was also questioned in cross examination about not making any report of ‘B’s injuries.

65. The applicant was then asked about a number of matters concerning matters non-employment related. The respondent had identified that the applicant had changed his name. When questioned as to why this was the applicant indicated that he changed his name for family reasons. In our view it is not necessary to go into the detail of this evidence suffice to say that it is clear to us that there were safety issues pertaining to the applicant needing to sever contact with a particular individual. This is borne out also by the written material obtained by the respondent.

66. In re-examination the applicant was asked about his lack of training. His evidence was that he received no training in respite care for children with behavioural difficulties / disabilities. There was a very basic induction process which had not really progressed at the time of the central incident.

67. The Tribunal inquired of the applicant as to his version of the incident and subsequent incidents (as alleged) involving the boys ‘B’ ‘T’ and ‘C’. His evidence was that :

I came out of the toilet and entered (‘T’s) room. I heard screaming and pushed the door open. There was a tussle going on with ‘T’s arm around ‘B’s neck. ‘T’ was pulling ‘B’ up out of his seat. When I entered the room I pushed them apart. ‘B’ grabbed on to me around my waist.

68. The applicant was taken to the case notes at pages 157-168 of Exhibit R1. When taken to the case notes we observe that it is recorded that ‘B’ was hit by other client and that the injury was to the right side face, chin.

69. On page 158 of the case notes the following is recorded:

‘B’ accessed other client ‘T’s room (Bedroom) and on 3 occasions was assaulted by ‘T’. ‘B’ did access and attempted to access bedroom 4 several times throughout shift, particularly when staff attending to other clients.

70. On page 167 of the case notes the following is recorded:

Staff heard screaming, ran to bedroom 4 to see ‘T’ grabbing hold of and hitting ‘B’ face and head area R side, then pushed ‘B’ backwards on to bed, ‘T’ then grabbing at ‘B’ and hitting ‘B’s head.

‘T’ first hit with slap then hit with a closed fist. Staff put hand up in stop sign and asked ‘T’ to let him go which he did. Staff got ‘B’ out of ‘T’s room and there appeared to be no injury. Staff noticed ‘B’ was crying and very red flushed face.

71. The applicant was asked about his work history experience having regard to the placement of the central incident and the previous WWCC clearance, and his application for review.

72. The applicant’s evidence was that he had worked part time in residential care from 1996, part time in group homes and a special school in the Hunter District. In 2002 he worked full time and later did a Nurses Traineeship. The applicant gave evidence that he had previously held a casual position in a large government hospital and had over 500 hours work experience in wards.

73. He had trained and worked as a coastal marine engine driver and heavy vehicle driver. He as now seeking employment as a bus driver and for this reason was appealing his clearance cancellation.

Applicant’s Submissions

74. The applicant’s agent made brief oral submissions at hearing but was content to rely on the material filed by the applicant and his oral evidence.

Respondent’s Submissions

75. The respondent submitted that the applicant’s evidence was substantially lies, and he had failed in his duty to fully disclose matters to the Tribunal.

76. It was submitted that a person who has the care of children (and adults) with disabilities needs to have trust and be able to care for and report on the care of children professionally and honestly.

77. The respondent submitted that during the applicant’s evidence the Tribunal heard an array of stories concerning the accuracy of the transcript and different versions of events. Counsel’s submission was that where the evidence was unreliable then the person is a risk. The submission continued that the applicant was a person who makes up stories almost pathologically.

78. It was submitted that the difference between the interview and the oral evidence before the Tribunal was extraordinary. The respondent submitted that the evidence of ‘C’ (the witness who reported what they had seen and that the applicant had approached him about what he had seen) should be preferred over the applicant’s evidence.

79. It was submitted that ‘C’ had been consistent in every version with what he had seen and had never sought to embellish his evidence or add things or speculate as to what he had not seen or could not see.

80. The respondent drew attention to the written material in evidence, which showed when the colleague (‘A.B.’) put ‘B’ to bed at 8:00pm there were no marks to his face. However when she checked in the morning there were.

81. The respondent submits that the Investigation Report is a thorough and excellent body of work and should be preferred over the applicant’s version of events.

82. In closing the hearing the Tribunal put a proposition to the respondent’s counsel as to whether coercion of a witness (in the circumstances alleged) is a form of abuse leading to risk, a proposition to which the respondent agreed.

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.

83. The applicant's application to the Tribunal is brought about by an adverse risk assessment following the mandatory notification of an incident involving a disabled child in his care. Following that risk assessment the Children’s Guardian cancelled his working with children check clearance. The investigation of the incident resulted in sustained findings against the applicant by his employer. The investigation arose because of a report by one of the children in care to another supervisor. The report was that the reporter had seen the applicant grab another child from behind the neck and force him to the ground. There was evidence that the witness was unsettled following the incident.

84. The Applicant denies the allegations. There was significant evidence of trauma to the victim (mainly physical) and conflicting accounts from the applicant and the witness. There were also inconsistencies in the applicant’s version of events and the manner in which those matters were recorded / reported by him. The applicant was terminated from his position in the Department of Family and Community Services as a result of the sustained findings.

85. Whilst no formal police intervention or charges arose, the allegations are considered serious because they involve children who are vulnerable, and especially so because of their disabilities or special needs. When we refer to children (in the plural) we are referring to the allegations that some form of coercion was directed by the applicant against the reporter. The applicant was in a position of authority and trust in respect of his clients / children at the time of the incident as their adult carer.

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

86. The allegations relate to matters said to have occurred in October 2014. The hearing took place approximately two and half years after the incidents.

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

87. The applicant was between 40 and 41 years of age at the time of the incidents.

(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.

88. The victims in the section 30 (1) (a) allegations were approximately 13 and 11 years of age. We have already referred to the victims’ vulnerability in that they were children, and had recognised disabilities and special needs. The victims were in respite care at the time of the allegations involving the applicant, and as stated were under his care.

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

89. The difference in age between the applicant and the complainants / victims was approximately 27-29 years. The relationship was one of client and carer. The victims’ needs were broadly known to the applicant and his duty was to have regard to those needs in his provision of care.

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

90. The applicant is aware that the complainants in the allegations were children.

(g) The person's present age.

91. At the time of the hearing the applicant was 42 years old. The relevance of this criteria has been referred to in passing in many decisions of the Tribunal. We infer its purpose as being to assist in assessing current (and future risk), that offending decreases with age, and in particular in later years sexual offending (which is often a relevant consideration in matters concerning risk to children) diminishes with the ageing of the perpetrators.

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

92. The applicant has no significant or serious criminal history. There is a traffic record concerning driving without a licence where he was given a conditional non- conviction finding. The traffic (non criminal) record of the applicant is in our view irrelevant to this provision. There is no evidence of anything adverse since the October 2014 matters.

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

93. The Applicant did not provide any evidence other than his own testimony. The Tribunal therefore has no independent or expert evidence before it in respect of current and or future risk. It is clear that matters were outlined to the applicant during the pre-hearing process about the need to obtain evidence notwithstanding that there is no onus on the applicant. The file records that procedural and other advice was provided. The applicant appears to have understood this issue and chosen to rely on matters that he believes assist with his application. It may be that the applicant (having denied any inappropriate conduct) has chosen that for that reason the issue does not require addressing further. In any event we are satisfied (notwithstanding some difficulties at hearing) that the applicant has been afforded the requisite level of fairness in his application before the Tribunal.

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

94. The applicant’s statement of 24 January 2017 is consistent with the denials given in his evidence at hearing. The applicant is critical of the workplace standard and submits that the ‘balance of probabilities’ standard of proof is a very low standard. In that we infer the applicant is submitting that anyone could have an adverse finding when such a ‘low’ standard is applied. However this was not put to the applicant and we may be wrong on this issue. We raise it merely as it was raised by the applicant. We note however that despite there being no onus on the applicant in these proceedings, the same standard (that is ‘balance of probabilities’ or the civil standard), applies in the current application. Our role is to make the correct and preferable decision having regard to the evidence and material before us, to that standard, when determining current risk (if any) that is real and appreciable.

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

95. The respondent made a submission on this point that in the absence of any evidence or submissions from the applicant, he is incapable of discharging an inferred onus under section 30 (1A) that a reasonable person would allow his or her child to have direct contact with the applicant which was not supervised by another person. In addition it was submitted that for the same reasons it would not be in the public interest to grant the applicant a clearance.

96. We note that the applicant did provide evidence in the proceedings, and some of the written evidence took the form of submissions. As outlined above because of the primary finding we make, we do not traverse section 30 (1A) in any meaningful manner.

Consideration

97. In our view the applicant was broadly consistent in his answers however he was labouring under some difficulty on the day of the hearing. Part of this appeared to be that he did not expect an administrative merits review to be conducted in an adversarial manner. The applicant's overall denials of the conduct were consistent and withstood cross examination, however from a cognitive interviewing technique (in respect of what happened in the room), the applicant’s account at hearing differed somewhat from the case note records which were broadly contemporaneous.

98. The Supreme Court has recently revisited the correct approach that the Tribunal should take when making a finding on otherwise unproven allegations, and then moving to the substantive consideration of risk.

99. In the matter of Office of the Children's Guardian v CFW [2016] NSWSC Harrison J. observed the following concerning the approach arising from observations made in BKE v Children’s Guardian [2015] NSWSC 523 and M v M (1988) 166 CLR (HCA)

The statutory test

13. The test in s 18(2) of the Act requires a decision maker to consider whether a person "poses a risk to the safety of children". "Risk" in this context excludes "fanciful or theoretical risk" and instead requires a decision maker to determine "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": Commission for Children and Young People v V [2002] NSWSC 949. In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33].

14. The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application.

15. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:

"... determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare."

16. Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41].

17. A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.

100. The applicant's evidence in written and oral statements are that the matters alleged did not occur. The denials were consistent and the complainant’s evidence was only tested against himself. Whilst it was understandable that eyewitnesses were not required by the respondent, ‘A.B.’ (who was not an eyewitness but a witness to later matters) was not called.

101. We note that the allegations of coercion to cover up the incident were not substantially tested at the hearing. However we understand due to the limited ability of the children’s evidence to be rigorously tested to a high standard (possibly due to their age and disabilities) that this could not be appropriately advanced. It appears that this may have been a reason for no formal police action involving testing evidence ‘beyond reasonable doubt’. It would therefore appear that on the balance of probabilities that a positive finding cannot be made with regard to the allegations.

102. However as set out above, the lack of a positive finding does not conclude our task. In this matter whilst the exact nature of what occurred remains (in our view) somewhat ambiguous, the circumstances of the reports, the differences in the versions provided and the observation that ‘C’ would have no basis to lie, and the quality of his version, lead us to the conclusion that some risk arises. If a finding needed to be made on the matter we would find that we are unable to make a positive finding on specific conduct, but that some adverse conduct occurred in a context and circumstance that creates a risk, and having specific regard to the circumstances, a risk that is both real and appreciable.

103. As such we find that there is some residual risk that is both real and appreciable, especially having regard to the circumstances of the incident, being children who were additionally vulnerable. We also note that the matters occurred only recently and that only a couple of years have passed since. The fact that the matters are recent in our view adds to the level of risk.

104. We find that (consistent with the observations of Harrison J in Office of the Children's Guardian v CFW) we have explored these matters to the extent available to us at the hearing. We have set out those matters relating to the mandatory considerations above. However we are unable to make a positive finding as to what occurred.

105. As indicated at paragraphs 101 and 102 (above), notwithstanding that lack of a positive finding, on the evidence before us, we are satisfied that the Applicant poses a risk that is both real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we so find.

106. Turning to the issue of the applicability of section 30 (1A) to these proceedings, we return to the decision of the Tribunal in CHB v Children’s Guardian [2016] NSWCATAD 214.

107. The basis of that analysis and the facts analogous to the current matter are set out in the decision. At paragraphs 107- 123 the Tribunal observed:

Does s 30(1A) apply to these proceedings?

107. Having found that the applicant poses a risk to children, it is not strictly necessary to consider the application of s 30(1A). This only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children. It could only make such an order if not satisfied that she poses a risk to the safety of children. As with 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.

108. Notwithstanding this, we have decided to consider the application of s 30(1A) in the present case, for two reasons. The first is that the parties provided detailed submissions on the applicability of the provision. The second is that, if we are wrong in our conclusion that she does pose such a risk (or if we have erred in our reasoning to that conclusion), it is helpful for us to express a view as to the factual matters which would then arise under s 30(1A).

109. Subsection 30(1A) was inserted into the Act by the Child Protection Legislation Amendment Act 2015 (NSW) and came into force on 2 November 2015. That subsection provides:

(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.

110. Clause 16 of Sch 3 to the Act provides that “[s]ections 15 and 30, as amended by the amending Act [being the Child Protection Legislation Amendment Act 2015 (NSW)], do not apply to an application that was made before the amendment of the section concerned.”

111. The amendment made to s 15 is in similar terms to that made to s 30, but applies at an earlier stage of the process. Section 15 provides for the Children’s Guardian to 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, in certain circumstances. Subsection 15(4A), inserted by the Child Protection Legislation Amendment Act, provides:

(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.

112. As the applicant has noted, s 15(4A) applies only in respect of “an applicant” and not in respect of a holder of a clearance. Section 15(1), on the other hand, refers both to the conduct of a risk assessment of “an applicant for a working with children check clearance” and “the holder of a clearance.”

113. The respondent submitted that, where an application for a clearance has been made prior to 2 November 2015, that application, together with any application for review made to the Tribunal, are to be dealt with under s 30 in its unamended form. That is, the respondent submits that s 30(1A) does not apply to these proceedings. The applicant does not take a firm position on the issue.

114. The first question to consider is what is meant by “application” in cl 16 of Sch 3 to the Act. As the respondent acknowledges, it is unclear whether the word refers to an application for a clearance or an application to the Tribunal, or both.

115. There is a presumption, albeit one that is easily displaced, that the same meaning should be given to a word which is used consistently throughout a statute: Morgan v Davis (1962) 79 WN (NSW) 460 at 463 per Wallace J. Clauses 15 and 18 of Sch 3 also use the word “application” and it is clear from the context that the word refers to an application to the Children’s Guardian for a working with children check clearance in those clauses. As clause 16 was enacted at the same time as clauses 15 and 18 and is proximate to them, there is a presumption that the word “application” has the same meaning in clause 16.

116. The word “application” in clause 16 could refer to an application for a clearance, both in the context of s 15 and in the context of s 30. Section 15 can only apply to an application for a clearance (and not to an application to the Tribunal). Section 30 can apply where a person has made an application for a clearance which has been refused by the Children’s Guardian, that refusal being the subject of review by the Tribunal. Alternatively, the word “application” in clause 16 could refer both to an application for a clearance (in respect of s 15) and to an application to the Tribunal (in respect of s 30).

117. Ultimately, it is not necessary to decide this because there was no application for a clearance on foot, nor had an application to the Tribunal been made, at the time of the amendment to s 30. Rather, the Children’s Guardian had commenced the process of cancelling the applicant’s clearance by inviting submissions from the applicant, but had not yet done so. Accordingly, cl 16 of Sch 3 to the Act does not apply in the circumstances of this case.

118. The respondent’s position is that considerations of fairness militate against the retrospective operation of s 30(1A) of the Act because there is ambiguity in the meaning and application of cl 16 of Sch 3, there is a clear intention on the part of the legislature that the Act not have retrospective operation, and there exists a presumption against a statute operating retrospectively (Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, Fullagar J at 194).

119. There is a question, however, as to whether the application of s 30(1A) to a review of a cancellation decision made after the subsection came into effect is, in fact, retrospective. A statute which provides that as at a past date the law shall be taken to have been that which it was not has a retrospective operation. However, the creation by statute of further particular rights or liabilities with respect to past matters or transactions does not make that statute retrospective: see Baker v R [2004] HCA 45; (2004) 223 CLR 513 at [30]; Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285 at 309 [57]; Minister for Immigration v Roberts [2011] FMCA 77 at [16]-[17].

120. In La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Federal Court), an Act had been amended to create a power to cancel a fishing boat licence. The Minister cancelled the applicant’s licence on the basis of a conviction which occurred before the new section came into existence, and the Administrative Appeals Tribunal upheld the cancellation. One ground of appeal to the Federal Court was that the power did not apply retrospectively, so it was impermissible to take into account a conviction which occurred before the power was created. The court found that the cancellation order did not have retrospective effect simply because it relied upon conduct that occurred before the power existed (see Toohey J at 26).

121. The change to the law made by s 30(1A) of the Act is, in our view, analogous to the change to the law made in the case of La Macchia. It altered the Tribunal’s powers to cancel what is in effect a licence to work with children, just as the law in La Macchia created a power to cancel a licence. The insertion of s 30(1A) did not change rights or liabilities with effect prior to its commencement.

122. Nor are we persuaded that s 30 of the Interpretation Act 1987 (NSW), to which the respondent referred, applies in the present situation. Section 30(1) provides:

30 Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not:

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

123. The respondent did not identify which paragraph of s 30(1) applies in these proceedings. In our view, none of the paragraphs applies. In particular, the applicant had not acquired or accrued any relevant right, privilege, obligation or liability under the Act prior to the amendment commencing, which was affected by the amendment (see s 30(1)(c)), and had not commenced any legal proceeding or application for remedy in respect of any such right, privilege, obligation, liability or penalty (see s 30(1)(e)) before the amendment took effect.

108. In the current matter we note that the provisions of section 30 (1A) came into force for applications commenced after 1 November 2015. Whilst the applicant held a valid clearance prior to and after that date, and in effect has not sought any subsequent application before the Children's Guardian, it would appear that his application to the Children's Guardian was made and concluded prior to the enactment of amendments to the Act under section 30 (1A). The provisions of clause 16 of Schedule 3 of the Act are as follows:

16 Matters for consideration

(1) Sections 15 and 30, as amended by the amending Act, do not apply to an application for a clearance or an application for an administrative review of a decision to refuse an application for a clearance.

(2) In this clause:

application for a clearance means an application for a working with children check clearance made by a person before 2 November 2015.

109. In any event as we conclude and find that the applicant poses a real and appreciable risk to the safety and well-being of children and young persons, at the conclusion of our section 30 (1) consideration, we do not need to address section 30 (1A) considerations even if they were deemed to apply to the application.

110. In consideration of real and appreciable risk based on consideration of all the circumstances we find that the correct and preferable decision is to affirm the decision by the Children’s Guardian.

Conclusion

111. We have had regard to all of the evidence and submissions in these proceedings, even if we do not refer to all of that information specifically in these reasons. All material has been considered. For the reasons set out above, we reach the following conclusion.

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

113. 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.

114. We note that the safety, welfare and wellbeing of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

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

116. It therefore follows that the correct and preferable decision is for the Tribunal to affirm the decision of the respondent.

Orders

1. The decision of the Children's Guardian dated 11 May 2016 is affirmed.

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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: 30 June 2017