CYY v Children's Guardian

[2017] NSWCATAD 155

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CYY v Children's Guardian [2017] NSWCATAD 155

Hearing dates:

9 March 2017

Date of orders:

18 May 2017

Decision date:

18 May 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member

Decision:

1) The application for a stay of the decision of the Children’s Guardian dated 21 February 2017 refusing to grant to the applicant a working with children check clearance is dismissed.

 

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- application for a stay of the decision while review application is to be heard - paramount concern is protecting children from child abuse - interim stay under section 60, 61, 62 Administrative Decisions Review Act 1997 - whether sufficient risk assessment triggers - factors to consider on stay application – stay refused.

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:

1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881
AHJ v NSW Trustee and Guardian [2011] NSWADT 311
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
Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37
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
BXJ v Children's Guardian [2016] NSWCATAD 11
BYR v Children’s Guardian [2013] NSWADT 310
BZU v Children’s Guardian [2016] NSWCATAD 3
Carr v Simnovic (1980) 26 SASR 263
Castlemaine Tooheys Limited v South Australia [1986] HCA 58
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BQJ [2016] NSWSC 869
CJT v Office of the Children’s Guardian [2016] NSWSC 738
Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
CSZ v Children’s Guardian [2017] NSWCATAD 57
Elgammal V Director General, Department of Transport [1999] NSWADT 82
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
New South Wales Bar Association v Stevens [2003] NSWCA 95.
Polini v Gray (1879) 12 Ch D 438.
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
Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350
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
Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147
YG & GG v Minister for Community Services [2002] NSWCA 247
ZZ v Secretary, Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

CYY (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
L Callinan (Applicant)
A Bonnor (Respondent)

  Solicitors:
Taylor & Scott Lawyers (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2017/00063182

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 seeks a stay of the decision of the Children’s Guardian on 21 February 2017 to refuse his application for a Working with Children Check Clearance. The applicant applied for a Working with Children Check Clearance on 30 September 2014 nominating education as the relevant child related work.

2. The applicant is known by the pseudonym “CYY” 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.

3. On 24 February 2017 the applicant filed in the Tribunal an application for stay and an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 (“the Act”) concerning the refusal decision of the Children’s Guardian. There was minimal time taken on the part of the applicant from the time of the notification of the decision to seeking a stay in the Tribunal.

4. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 do not apply to this particular matter due to the date of the application to the Children’s Guardian: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. The date of the application was 30 September 2014 as previously noted. The Children’s Guardian has applied the reasonable person test and the public interest test provided by the amended section 15 (4A) of the Act. The equivalent amended provision under section 30 is section 30 (1A) of the Act. Since the applicant was determined to be a person posing a risk to the safety of children it was not necessary for the Children’s Guardian to apply the “reasonable person” test or to apply the “public interest” test, consistent with previous determinations of the Tribunal relying upon the Victorian decision, ZZ v Secretary, Department of Justice [2013] VSC 267.

5. The applicant is subject to an assessment requirement defined in section 14 of the Act. A risk assessment was undertaken by reason of section 15(1) of the Act. The applicant was charged with an offence involving the intentional wounding of or causing bodily harm to a child by an adult, other than an offence specified in clause 1 of schedule 2 of the Act. As a result of the risk assessment the Children’s Guardian refused the Working with Children Check Clearance sought by the applicant.

6. The applicant wishes and requires to have granted to him a Working with Children Check Clearance, in order to work with children as a tutor.

7. There was no interim bar issued in this matter.

8. The applicant is without a Working with Children Clearance now, preventing him from working in “child-related work” in his chosen field: subsection 6(2)(g) and section 8 of the Act; clause 10 of the Child Protection (Working with Children) Regulation 2013.

9. This is an application relying upon section 60 of the Administrative Decisions Review Act 1997 (NSW) to seek a stay of the decision made by the Children’s Guardian. This is sought to allow him to continue to work as a tutor.

10. The provisions of section 60 of the Administrative Decisions Review Act are as follows:

60 Operation and implementation of decisions pending applications for administrative review

(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

11. In other words the application for review does not act as a stay of the decision under review. It is to be observed that the discretionary power is restricted by the operation of section 61 of the Administrative Decisions Review Act and that restriction has been satisfied in this matter, because the "administrator who made the decision" is represented and able to make submissions in relation to whether there should be a stay or an order affecting the operation of the decision under review.

12. The application for stay was heard orally by the Tribunal on 9 March 2017. The applicant does not seek any conditions in his application for a stay: section 62 Administrative Decisions Review Act. However, in oral submissions it was stated to the effect that he could be required to remain in the presence of another adult or older children.

13. The issue the Tribunal is to ultimately 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]. That decision in this matter will not be made until the final hearing of the application.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. The Tribunal has previously considered the grant of a stay in section 27 proceedings in BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111, but in different factual circumstances and accordingly these reasons draw upon the reasons in that matter to a significant degree, having regard and assessing the particular facts and more recent context of this matter. In BXJ v Children's Guardian [2016] NSWCATAD 11 (BXJ) the Tribunal considered whether to extend a stay which had been previously granted by the Principal Member, on conditions, to the date of final hearing. It was stated by the Tribunal in that matter BXJ, relying upon reasoning which is also set out in these reasons, that:

“[22] It is thus considered doubtful that the Tribunal, in the circumstances of the application before it brought by BXJ, could lawfully attach conditions which would be permitted by the legislation effectively to the grant of an interim clearance as proposed, if the Tribunal decided that it would be appropriate or desirable to grant a stay on conditions.”

20. An order prohibiting publication of identifying information has been made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) on 9 March 2017. That order is recorded at the conclusion of these reasons.

The evidence relied upon in the interim hearing

21. The respondent relies upon:

1. Documents filed pursuant to section 58 of the Administrative Decisions Review Act 1997 on 8 March 2017 Comprising 444 pages: Exhibit 1.

2. Written submissions which were filed during the course of the oral hearing.

22. The applicant relied upon:

1. The Application for review and Application for stay or interim order filed on 24 February 2017: Exhibit 2.

23. A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons. A finding of fact will be determined upon the civil onus of proof which is the balance of probabilities. Because of the limited nature of the interim application for a stay the Tribunal may not be able to make a concluded finding of fact.

24. 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.”

25. 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.

26. 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.”

27. 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.”

28. 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 (i.e. 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, e.g., 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)

29. 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.

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

31. 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.”

32. 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)

33. The 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.

34. As previously stated this is an interim application so the Tribunal may not be able to make any findings on contested issues. The Tribunal will have to consider whether there are any agreed facts and make some prediction as to the likely findings or at least some consideration of the types of issues to be determined at the final hearing.

35. Because the applicant is seeking a stay there are some general principles which apply to that type of application which are set out later in these reasons. In essence, the applicant states to the Tribunal that he is unable to earn an income as a tutor without his Working with Children Check Clearance, and that the effect of the refusal decision is to deprive him of his capacity to earn an income in his preferred occupation.

Legislative Provisions

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

37. 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."

38. 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.”

39. 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."

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

41. "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.”

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

“15 Assessment of applicants and holders

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

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

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

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

44. 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.

45. 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.

46. 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.

47. 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.

48. 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].

49. 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.

50. 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.”

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

52. 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.

53. 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.

54. 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.

55. 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.

56. 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."

57. 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."

58. 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.

59. 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."

60. 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.

60. 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

62. The applicant seeks to stay the decision of the Children’s Guardian to refuse him a Working with Children Check Clearance. The applicant seeks that the operation of the decision should be delayed until after a further hearing. The Tribunal has to determine whether it is desirable to do so after taking into account:

1. the interests of any persons who may be affected by the determination of the application, and

2. any submission made by or on behalf of the administrator who made the decision to which the application relates, and

3. the public interest.

63. Additionally, conditions may be imposed while granting a stay for a specified period of time, or if no period is specified until the decision of the Tribunal on the application takes effect: section 62 Administrative Decisions Review Act; Elgammal v Director General, Department of Transport [1999] NSWADT 82.

64. Generally, in civil litigation, a stay of the operation of a decision pending an appeal is granted where a successful appeal would be useless or futile unless the stay were granted: Polini v Gray (1879) 12 Ch D 438. This application is not an appeal but an administrative review, but there is force in the rationale behind the grant of a stay in those circumstances.

65. It has also been said that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].

66. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104].

67. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]:

"[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:

"In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."

[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."

68. As previously referred to, the primary issue before the Tribunal in this application when it comes to the final hearing 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 to 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].

69. 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].

70. 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.

71. In 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 at [5] the Supreme Court (per White J as he then was) emphasised that it is not Court’s task “to conduct a preliminary hearing”. In determining whether there is “a serious question to be tried” when considering an interlocutory injunction, is to be assumed that any conflict in the evidence “would be resolved in the plaintiff’s favour.” The decision of Deputy President Hennessy in Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [34] applies that traditional formulation to a consideration of a stay pursuant to section 60 of the Administrative Decisions Review Act. The Deputy President also referred at [31] to [33] to the consideration of the prospects of the success or the merits of the review application as follows:

[31] The corresponding provision in the Administrative Appeals Tribunal Act 1975 (Cth), section 41, is in similar term but does not list the public interest as a mandatory consideration. Nevertheless, the prospects of success or the merits of the applicant’s case on review have been regarded as relevant: Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350 at 354.

[32] In AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] the former Administrative Decisions Tribunal held that the phrase "secure the effectiveness of the determination" is another way of saying that there needs to be irreparable loss or harm to the applicant before consideration will be given to making an interim order. The Tribunal went on to say-

[15] Section 60 is to be read keeping in mind the common law principles in relation to the exercise of interlocutory injunctions. In Castlemaine Tooheys Limited v South Australia [1986] HCA 58, Acting Chief Justice Mason said at paragraph 11:

"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction".

[33] In a practical sense the onus is on the applicant to make out a case that it is appropriate for the Tribunal to make such an order: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], Wright J, President citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694.

Considerations and the Evidence

72. On an application under section 28 or 29 of the Act the Tribunal may stay the operation of a determination of the Children’s Guardian under the Act pending determination of the matter: section 30 (2) of the Act. However a decision the subject of a section 27 review can only be stayed by reference to section 60 of the Administrative Decisions Review Act. The provisions of section 30 (1) of the Act “must” be applied in “determining an application” under Part 4 of the Act. This stay application is not determining or bringing to an end or concluding the application for review. However, in order to consider whether it is desirable to stay that decision, it is relevant to consider, even if briefly, the matters in section 30(1) of the Act. This is not a preliminary hearing.

73. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which is the application for review under section 27. 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. The Children’s Guardian has already performed an assessment pursuant to section 15 of the Act. It is relevant to note that the factors contained in the subsections address the same considerations expressed in slightly different language.

74. 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.

75. Section 15 of the amended version 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.

76. Section 30 of the amended version of the Act relevantly provides 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.

77. 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.

78. Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence or factual circumstances in relation to the conduct of the applicant: section 63 of the Administrative Decisions Review Act.

79. The considerations which are required to be taken into account are those set out in section 60 (3) of the Administrative Decisions Review Act. Accordingly, it is the Tribunal’s determination that the Tribunal is required to consider those matters set out in section 30 (1) of the Act in order to assess whether it is desirable to make an order under section 60 of the Administrative Decisions Review Act.

80. It is obvious that there are factual matters are in contention between the applicant and the Children's Guardian. The Tribunal is therefore cautious in its consideration of the evidence and will not reach a concluded view until after hearing further evidence including cross examination and submissions in the final hearing.

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

81. The applicant is not a disqualified person.

82. 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.

83. The applicant was charged in 2012 with assault occasioning actual bodily harm alleged to have been committed against his daughter who was then 3 years of age. It was alleged that the applicant slapped his daughter across the face and as a result she sustained bruising to the right side of her face and a cut to the right side of her inner lip. The child’s mother took her to a doctor for medical treatment and the child’s teacher/childcare worker also observed the injury. The matter was then reported to the Department of Family and Community Services (probably by mandatory reporters).

84. The Local Court Magistrate who heard the matter in the Court made a finding that the applicant did not strike his daughter. The charge of assault occasioning actual bodily harm was dismissed. Despite the representations made by the applicant in the application for stay the refusal to grant a clearance does not constitute a renewed determination of the criminal charge and does not amount to a form of double jeopardy. The Children’s Guardian was required to consider the circumstances surrounding the alleged assault and form a determination based on the balance of probabilities, rather than the criminal standard of beyond reasonable doubt which was required to be considered by the Local Court Magistrate.

85. The Children’s Guardian also relied upon information provided by the applicant’s former employer NSW Police when conducting the risk assessment. While employed as a police officer the records produced to the Children’s Guardian indicate that the applicant engaged in unethical conduct which may have influenced the outcome of the proceedings in relation to his daughter. In addition, information from Family and Community Services identifies a report of history of domestic violence perpetrated by the applicant in the presence of and towards his children over a period of 7 years. This information was conveyed to the applicant in a letter dated 19 October 2016 from the Children’s Guardian.

86. In particular there was an incident in 2009 where it was alleged that the applicant is reported to have said that he would kill his then pregnant wife. It would appear that proceedings were taken which did not result in any criminal conviction. There is currently not much more information than this.

87. The applicant resigned from the police force in 2013. The applicant was the subject of 18 complaints during his service. The applicant provided his reason for resignation as “job dissatisfaction.” The records produced from the police force state that the applicant resigned during an investigation into his behaviour and that a letter was sent to recruitment section that he was never to be reemployed by the police in any capacity. In 2012 there were sustained allegations that the applicant had altered the content of the statement made by his wife and provided her with instructions on what to say in Court thereby attempting to pervert the course of justice and corrupting a witness.

88. This is a very serious matter which led to the refusal of the working with children check clearance application.

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

89. The matters referred to in the documents produced under section 31 of the Act by the police date from 2004: Exhibit 1 pages 53-60. The alleged assault is said to have taken place in the middle of 2012.

90. There is no evidence of adverse conduct on the part of the applicant since his resignation from the police force in early 2013. There have been further allegations which have not been sustained.

91. The applicant apparently currently has a shared care arrangement with his children pursuant to consent orders in the Family Court jurisdiction.

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

92. The applicant was aged 38 at the time of the alleged assault.

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

93. The applicant’s daughter was aged 3 years. As a child, the daughter was entitled to the care and protection generally provided by parents. The age and maturity of the child renders her extremely vulnerable.

94. The allegations of family violence in the presence of the children are particularly concerning because of the effect of family violence upon children’s developmental milestones particularly in relation to emotional regulation and modelling behaviours.

95. The applicant denies that he has been engaged in violent behaviour towards his family members including his daughter.

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

96. The difference in age between the applicant and his daughter was approximately 35 years. The applicant is the father of his daughter.

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

97. The applicant knew that his daughter was a child.

The person’s present age

98. The applicant is currently aged 43.

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

99. The applicant does not have a criminal history.

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

100. 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.

101. The Tribunal will require more evidence than has been produced in order to determine the likelihood of the future occurrence of conduct which has an adverse effect upon children.

102. The applicant has provided certificates that he has undertaken a Triple P Seminar of 2 hours and an online course with Triple P in 2014. Otherwise there is limited evidence of dealing with personal development which would include anger management and his parenting capacity.

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

103. The applicant has provided information including certificates highlighting his continuing education between 1997 in 2014. There are statutory declarations attesting to his proficiency as a tutor. The Children’s Guardian has referred to that material in the assessment of risk and in a letter informing the applicant of the refusal of his application.

104. The applicant also provided an extract of the transcript in the Local Court in 2012 which includes the judgment of the Magistrate referring to the evidence of the various witnesses.

105. The Children’s Guardian made submissions concerning the failure of the applicant to provide any information which supports his contention that the refusal decision deprives him of his capacity to earn an income. In fact the information which has been provided shows that he has capacity to earn income as a Director and due to his involvement in the business of a tutoring and coaching campus. The evidence the applicant has provided also highlights that he has skills capable of earning an income in other areas. The Children’s Guardian has not at this point in time submitted that the applicant has failed to provide other relevant information.

Any other matters that the Children’s Guardian considers necessary

106. The Children’s Guardian made submissions addressing those matters which the Children’s Guardian considers necessary having regard to the fact that this is an interim application.

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

108. The Children’s Guardian expects production of material from relevant agencies. The applicant will of course have the opportunity to reply to that material.

The interests of any persons who may be affected by the determination of the application

109. The applicant asserts that he will not be able to earn income due to the refusal of the Working with Children Check Clearance. The information provided by the applicant in support of the application for a clearance identifies that he has the capacity to earn income without the clearance.

110. It was not submitted that the applicant would suffer irreparable loss or harm if a stay is not granted. The applicant will not be able to earn an income tutoring children and students under the age of 18 years in the absence of a clearance. It was submitted on his behalf that he would not be able to support his 3 children if he did not have a clearance.

111. There is no evidence provided by the applicant that he will not be able to earn income from any other source. For example, it would appear that the applicant has some role in the management of the tutoring business. It is however obviously in the applicant’s financial interests for a stay to be granted.

Any submission made by or on behalf of the administrator who made the decision to which the application relates

112. The Children’s Guardian made submissions opposing the grant of a stay.

113. Essentially, further information will be sought by the Children’s Guardian which will inform the determination of whether or not the applicant poses a risk to the safety of children. The Children’s Guardian previous determination was that he did pose a risk to the safety of children. It is from that determination that the applicant seeks an administrative review.

The public interest

114. When assessing the public interest it is relevant to have regard to the nature and seriousness of the allegations made against the applicant. Those allegations clearly relate to the potential of the applicant to be a risk to the safety of children. The interests of the public and children generally may be prejudiced if the applicant is permitted to work with children and it is ultimately found that he does pose a risk to the safety of children.

115. The allegation against the applicant is extremely serious.

116. The Act is designed to protect the public and therefore the public interest is entitled to significant weight. It is in the public interest for persons who are considered to be a risk to the safety of children to be prevented from working with children.

Consideration

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

118. While there is no presumption that the applicant poses a risk to the safety of children, there has been a determination by the Children’s Guardian pursuant to section 15 of the Act risk assessment that the applicant does pose a risk to the safety of children. The Tribunal is to determine whether that is the correct and preferable decision.

119. The factors which have to be taken into account pursuant to section 30 (1) of the Act have been identified earlier in these reasons. It can be seen from those considerations that further evidence will be required to determine whether or not the correct and preferable decision has been made.

120. The primary contention of the applicant is that criminal proceedings were dismissed by the Local Court. In essence, the applicant says that the allegations made in relation to the assault of his child are false. The dismissal of the Local Court proceedings where a different standard of proof is applied to the standard of proof which is applied in the Tribunal is not determinative of the outcome before the Tribunal. The applicant relies upon current family law proceedings where he says that his former wife has contravened orders and the current family law orders which provide for the children to spend 4 nights per fortnight with him unsupervised.

121. The alleged behaviour of the applicant while working with children if he assaults children in the manner in which it was alleged that he assaulted his own daughter, would be more likely than not to do significant harm to children.

122. The assessment of the Tribunal based upon the previously identified sources of evidence is that it is not desirable to grant a stay in order to secure the effectiveness of the determination of the application taking into account the interests of the applicant and the public interest.

123. The Tribunal accepts that the final orders made by the Local Court in 2012 provide significant support for the view that the applicant does not pose a risk to the safety of children. However, the prospects of success on the review application are not dependent upon the final determination in the criminal trial. There is other cogent evidence which supports the view that the applicant does pose 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.

Conclusion

125. 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.

126. If the applicant is granted a clearance or a stay of the decision of the Children’s Guardian he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. It is clear from the second reading speech that a person is either granted a clearance to work with children, or is not. There is no mechanism to monitor any conditions which might be imposed. In any event, the Tribunal does not consider it desirable, after having regard to the matters set out previously, to grant a stay of the decision even if conditions could be moulded to provide a level of protection.

127. The decision from which the applicant seeks a review determined that the applicant poses a risk to the safety of children. The purpose of the Act is protective and not punitive. It is in the public interest for the decision to remain in force until the determination of the correct and preferable decision is able to be made.

128. The application for a stay is therefore refused and dismissed.

Order

129. The orders of the Tribunal are that:

1. The application for a stay of the decision of the Children’s Guardian dated 21 February 2017 refusing to grant to the applicant a working with children check clearance is dismissed.

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.

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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: 18 May 2017