CZB v Children's Guardian

[2017] NSWCATAD 208

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CZB v Children's Guardian [2017] NSWCATAD 208
Hearing dates:	22 June 2017
Date of orders:	27 June 2017
Decision date:	27 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	(1) The decision of the Children’s Guardian dated 31 January 2017 refusing to grant to the applicant a working with children check clearance is stayed until the determination of the application for review filed 24 February 2017.
Catchwords:	ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012 (NSW)-where refusal of working with children check clearance- where application for a stay of the decision while review application is to be heard after serious illness suffered by the applicant – where paramount concern is protecting children from child abuse – whether interim stay under section 60, 61, 62 Administrative Decisions Review Act 1997 (NSW) - whether sufficient risk assessment triggers – where factors to consider on stay application are finely balanced.
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and Protection) Act 1998(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (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 CLD v Children's Guardian [2017] NSWCATAD 134 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 CYY v Children’s Guardian [2017] NSWCATAD 155 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:	Procedural and other rulings
Parties:	CZB (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M Levy (Applicant) V Hartstein (Respondent)   Solicitors: Legal Aid NSW (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00060145
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 31 January 2017 to refuse his application for a Working with Children Check Clearance.

2. The applicant is known by the pseudonym “CZB” in these proceedings in order to protect his identity and in accordance with Procedural Direction 9 of the NSW Civil and Administrative Tribunal.

3. On 15 June 2017 the applicant filed in the Tribunal an application for a stay. The 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 was filed 24 February 2017. There was nearly 5 months delay by 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 date of the application was January 2015. 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.

5. The applicant requires a Working with Children Check Clearance in order to reside with his wife, who is an authorised carer and cares for their grandchildren in accordance with Children’s Court orders made in 2016.

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

7. The applicant is without a Working with Children Clearance now, preventing him from residing in the same house as an authorised carer providing care for children: subsection 10(1) of the Act; there are no applicable exemptions under the Child Protection (Working with Children) Regulation 2013.

8. This is an application relying upon section 60 of the Administrative Decisions Review Act 1997 (NSW) is now seeking a stay of the decision made by the Children’s Guardian. The applicant became very ill in May 2017 and was admitted to hospital for 3 weeks spending 3 days in the intensive care unit. That is why this application has been made nearly 5 months after notification of the decision.

9. 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.

10. 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.

11. The application for stay was heard by the Tribunal on 22 June 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 it is unlikely that he would be alone in the house with the children who are in any event his grandchildren.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.”

19. An order prohibiting publication of identifying information has previously been made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW). That restriction is recorded at the title page of these reasons.

The evidence relied upon in the interim hearing

20. The applicant relies upon these documents:

1. Application for a stay and affidavit of the applicant filed 15 June 2017: Exhibit 1.

2. Written submissions filed 21 June 2017: Exhibit 2.

21. The respondent relied upon:

1. Documents filed on 24 April 2017 pursuant to section 58 of the Administrative Decisions Review Act comprising 2 volumes and a total of 574 pages: Exhibit 3.

2. Bundle of documents filed on 21 June 2017: Exhibit 4.

3. Submissions on behalf the respondent dated 22 June 2017: Exhibit 5.

22. 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.

23. 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.”

24. 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.

25. 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.”

26. 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.”

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

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

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

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

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

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

28. 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.

29. 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].

30. 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.”

31. 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)

32. 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.

33. 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.

34. 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 properly care for himself due to his illness and requires the assistance of his wife. The applicant says there is a risk to his health if his medications are not properly monitored. The applicant apparently suffers from some confusion particularly after episodes of dialysis. Additionally, the applicant states that if the stay were granted he is not in a position to work due to his health, and therefore he will remain in his home with his wife and grandchildren and not potentially pose a risk to any other children.

Legislative Provisions

35. 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.

36. 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."

37. 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.”

38. 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."

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

40. "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.”

41. 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....”

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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].

48. 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.

49. 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.”

50. 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.

51. 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.

52. 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.

53. 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.

54. 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.

55. 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."

56. 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."

57. 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.

58. 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."

59. 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

61. 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

1. the public interest.

62. 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.

63. 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.

64. 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].

65. 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].

66. 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."

67. 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].

68. 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].

69. 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.

70. 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 terms 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

71. 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.

72. 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.

73. 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.

74. Section 15 of the unamended 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.

(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.

75. Section 30 of the unamended 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.

(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.

76. 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.

77. 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.

78. 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.

79. 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.

80. It would appear to be agreed that the applicant is suffering from ill health as a result of deranged liver and kidney functions. The applicant requires dialysis three days per week for which he attends the hospital. The applicant feels very unwell, has pain in his legs and groin, and is very unsteady on his feet. The applicant has little strength in his legs and cannot shower or dress himself.

81. The applicant has been residing at his nephew’s house where the shower is above the bath and the applicant cannot use it because of his physical impairments. After dialysis the applicant is confused and cannot remember his medications. The applicant requires a responsible person to make sure he takes the appropriate medication at the correct time. The applicant cannot reside with his daughter because she has accommodation with approximately 20 stairs to climb in order to enter it.

82. The applicant suffered a heart attack in 2012 and chronic renal failure in 2012. The applicant continues to suffer from diabetes. During the last four weeks the applicant says that he has lost in excess of 20 kg in weight and feels very unwell. The applicant cannot drive and is reliant upon others.

83. The hospital records indicate that the applicant was admitted to hospital in the emergency department with a hypoglycaemic episode and altered consciousness. The medical evidence is that the applicant is “gravely ill”. The family doctor for the last 25 years has given an opinion that the applicant requires around-the-clock support from his family, is unsafe living alone, and in the doctor’s opinion, poses no danger to his grandchildren given historical charges against him.

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

84. The applicant is not a disqualified person.

85. 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. Even if the offences or matters do not relate to children this is a factor which the Legislature has required as a consideration of the risk the applicant may pose children.

86. The applicant was charged in 1979 with an “assault with intent to rape” when he was aged 18 and the victim of the alleged assault was 74 years old. The applicant was acquitted of that charge by a jury. It was alleged that the applicant had entered the home of the complainant and attempted to rape the victim late at night. The only identification evidence was fingerprints taken at the scene. These were said to match on 12 points with the applicant’s fingerprints. The standard of proof in a criminal trial is proof beyond reasonable doubt. The onus is borne by the prosecution to prove every element of every offence that is alleged. The Tribunal may find that the matter alleged occurred on the civil standard of proof or that there is an unacceptable risk of harm, when the final hearing is completed. At this early and incomplete stage such a finding is not possible or safe without all the evidence considered and tested as will occur at the final hearing.

87. The Children’s Guardian referred to police records in which it is recorded that the applicant has been involved in violent episodes in 1991, 1993, 1997, 2000, 2002, 2004 and 2005. The behaviour included fighting at licensed premises, assaulting police and threats of violence.

88. There are reports of domestic violence which occurred in 1991, 1993 and 2004 where the applicant assaulted his partner. At least one child was present during the incident in 1993 where the applicant threw a coffee table down internal stairs of an apartment and tipped the contents of kitchen drawers onto the floor while yelling abuse. In 2003 there were three occasions when the police attended the applicant’s home following or during alcohol fuelled arguments between the applicant and his partner in the presence of their children. On New Year’s Day in 2004 the police were called to the home and the applicant’s partner alleged that he had kicked her in the back and the head and punched her in the head.

89. The applicant is listed as the defendant in relation to 4 apprehended violence orders. Three of those are said to be linked to episodes of domestic violence in 2004 and 1990.

90. The applicant has not come to the attention of the authorities since 2008. The applicant submits that due to his current poor health there exists a reduced risk of him engaging in antisocial behaviours.

91. It is noted that the applicant has not served a period of incarceration. The applicant submits the following a conviction in 1990 he completed a 200 hour community service order at Bennelong Haven, an alcohol rehabilitation facility. It is noted also that there are a number of offences which occurred after that time.

92. The applicant has not had the opportunity at this point to respond to the allegations and material that have been provided to the Tribunal, primarily due to his poor health.

93. These are very serious matters 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

94. The matters referred to our historical and the applicant submits that he has not been charged with an offence for 10 years.

95. The applicant worked as a bus driver and handyman from 1997 until 2007 where he had some interaction with children.

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

96. The applicant was aged 18 at the time of the charge of “assault with intent to rape”.

97. The applicant was aged 48 at the time of his last conviction for assault occasioning actual bodily harm in the company of others. The sentence for that was a section 9 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) for 12 months with court costs of $70.

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

98. The victim of the alleged assault in 1979 was aged 74.

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

99. The difference in age between the applicant and the alleged victim of the assault in 1979 was approximately 56 years. The applicant was much younger than the alleged victim.

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

100. The applicant knew that the alleged victim of the assault in 1979 was not a child.

The person’s present age

101. The applicant is currently aged 56.

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

102. The applicant committed a number of offences between 1971 and 2007. Those offences included stealing money, breaking and entering, stealing a car and driving whilst unlicensed at the age of 16. The applicant was charged in 1979 with the “assault with intent to rape” offence of which he was found not guilty. In 1987 he was given section 558 of the Crimes Act recognizances for offences of assault and assault occasioning actual bodily harm. In 1989 the applicant was convicted of driving whilst cancelled and a mid-range PCA offence. Further assault charges occurred in 1990 for which he received sentences of community service, recognizances, and a $200 fine. In 2006 the applicant was convicted of having goods suspected of being stolen and fined $200. In 2007 the applicant participated in violence which resulted in an ‘assault occasioning actual bodily harm in the company of others’ conviction for which he received a bond under section 9 Crimes (Sentencing Procedure) Act 1999 (NSW). That is the extent of the convictions recorded against the applicant.

103. The applicant has been offence free for 10 years.

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

104. 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.

105. 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. The applicant is seeking the provision of some expert opinion in order to assist the Tribunal’s determination. That report by an expert is due to be filed in the Tribunal by 21 July 2017. This application is not an interim hearing of the section 27 review.

106. There was a relative and kinship care assessment conducted during the course of Children’s Court proceedings. The applicant and his wife were recommended to be approved as the long-term carers of their six grandchildren. The applicant says that if he resides with his partner he will follow all reasonable directions of Family and Community Services caseworkers.

107. There were allegations made against the applicant which were investigated by the reportable conduct unit which were not completed at the time of the finalisation of the Children’s Court proceedings in relation to the six grandchildren. The applicant gave an undertaking to leave his home if the allegations were substantiated. The allegations were not substantiated and the applicant was informed of this by letter in April 2017.

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

108. The applicant has provided information and will provide further information in relation to the application for review of the decision.

109. It would appear from information given by the applicant’s partner that the relationship between them was tumultuous and particularly volatile after the death of their 17-week-old daughter in 1983. The child was reported to have died from SIDS while in the care of, or under the supervision of the applicant. The applicant’s partner recounted that there was significant violence in their relationship over a seven-year period of time. The children never directly witnessed the violence but were present in the home during incidents. The applicant’s partner has been assessed as suitable to provide care for the children. The assessment for the Children’s Court considered that the applicant and his partner should continue to attend Child Protection Counselling.

110. The Children’s Guardian made submissions which are not critical of the applicant for failing to provide any information to date.

Any other matters that the Children’s Guardian considers necessary

111. 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.

112. 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.

113. The Children’s Guardian expects production of material from relevant agencies. The applicant will have the opportunity to reply to that material. The applicant has not yet been able to fully respond to the material which is being provided to the Tribunal by the Children’s Guardian.

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

114. The applicant and his family will be relieved of a great inconvenience and burden if he is able to return to his home and his partner of almost 40 years. The applicant is on a disability pension, is unable to work, and states that he has no intention of undertaking child related work. The effect of the legislation is however, that if he resides in the home with his wife who is an authorised carer that is sufficient to attract the requirement for a working with children check clearance whether or not he intends to work with children.

115. The applicant would suffer harm to his physical well-being and no doubt also suffer psychologically if a stay is not granted. The medical evidence is not in dispute. The respondent submits however that there is no evidence in relation to the management of risk of violence which is the significant risk highlighted by the Children’s Guardian. There is also limited evidence as to the capacity of the applicant to ensure there is no relapse into harmful alcohol use or misuse. The applicant gave oral evidence by telephone at the commencement of the stay application to the effect that his alcohol intake has significantly reduced, and since his illness is a “big No… No”. The applicant was cross examined about his disclosure to the assessor last year that he had a beer after golf. This he said was just to be social and at most once a week. Given the medical evidence provided to the Tribunal it would be extremely reckless for the applicant to drink alcohol to excess. That is the case whether he is living in his home or elsewhere. There is evidence that the applicant has not engaged in harmful behaviours for a significant period of time, that is, about 10 years.

116. There is evidence provided by the applicant that indicates his interests will be adversely affected if a stay is not granted. The applicant’s partner and his daughter will also be negatively impacted in that circumstance.

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

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

118. 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 previous determination of the Children’s Guardian 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

119. 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. The applicant has not been a direct threat to children other than by his participation in family violence while the children were in the home.

120. The applicant submits that it is in the public interest for a gravely ill person, who requires ongoing support and assistance, to reside in his own home with his partner of 40 years.

121. It is also submitted by the applicant that the granting of a stay would simply permit the applicant to reside in his own home overnight but will not allow the applicant any contact with children beyond the grandchildren who already reside there. There is evidence before the Tribunal that the applicant visited the home during the day when the children were not there and the Family and Community Services caseworkers had informed the applicant’s partner that he could not be alone with the children. The applicant has stayed for dinner at the home.

122. The care assessment which was completed for the purposes of the Children’s Court proceedings stated that the applicant presented as someone who had successfully rehabilitated from frequent binge drinking and discovered more suitable ways of dealing with his grief and depression. There is no evidence to the contrary.

123. 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. However, the public interest takes into account other matters. A significant factor in this matter is the grief and distress which has been caused by the departure of the applicant from his family home and the subsequent grave illness which has placed additional pressure upon the family unit.

124. The public interest has been considered by the Tribunal in a different context, in relation to the amended version of section 30 of the Act, but that consideration is of interest in the context of the public interest referred to in section 60(3)(c) of the Administrative Decisions Review Act and for the purpose of the stay application. In CLD v Children's Guardian [2017] NSWCATAD 134 the Tribunal referred to and adopted the discussion of the public interest in the decision of the Victorian Court of Appeal in Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 at [24]-[37] where that court referred to the following matters:

[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[[2009] HCA 51]

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[Citing O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); see also Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506, [31]-[32] (French CJ), [69] (Gummow, Heydon, Crennan, Kiefel and Bell JJ); Osland v Secretary Department of Justice No 2 [2010] HCA 24; (2010) 241 CLR 320, [13].]

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’.[ Act, s 1(1).] The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.[ Ibid.]

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

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

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

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

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

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

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

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

[30] Thus, it is not sufficient for the Secretary to hypothesise a factor which might be potentially relevant to the Tribunal’s decision and then show that the Tribunal did not consider it. The Secretary must demonstrate that the Tribunal was bound to have regard to the factor identified by her and that it failed to do so.[ Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-42, 55; Foster v Minister for Customs [2000] HCA 38; (2000) 200 CLR 442, 452 [22]-[23].]

[31] In the present cases, it cannot be said that the factor of ‘public confidence in the assessment of persons as suitable for child-related work’ [Outline of submissions on behalf of the Secretary in the case of LMB, [13]] necessarily required consideration once it was concluded that the applicants did not objectively pose an unjustifiable risk to the safety of children.

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

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

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

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

[36] Fifthly, insofar as it was hypothesised that the Tribunal should have regard to likely public perceptions of the exercise of its discretion without any public knowledge of the facts of the case or the reasons of the Tribunal, we do not see how such a consideration could rationally be given weight.[ Cf Director of Public Transport v XJF [2011] VSCA 302, [58]-[59] (Maxwell P with whom Mandie and Harper JJA agreed).] Such an approach would require the Tribunal to effectively disregard its own view of the merits of the case upon the evidence for fear of uninformed public sentiment.

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

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

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

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

126. The public interest in this matter is served by accepting for present purposes that the applicant may have rehabilitated himself and he has a right to reside in his home in the circumstance where he is suffering from a grave illness. This is preferable to his current position. These matters are not binding on the Tribunal’s later consideration of the review application.

Consideration

127. 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.

128. 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 later determine whether that is the correct and preferable decision.

127. 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.

128. The primary thesis is that while the applicant may have posed a danger to children in the past he no longer binge drinks and has discovered more suitable ways of addressing his grief, loss and depression. In addition, the applicant’s ill health gives support to the view that he would be of minimal risk in a physical sense. The applicant is physically incapable of working and would therefore will not work with children or come into contact with children in any other capacity than simply occupying his own home.

129. The assessment of the Tribunal based upon the previously identified sources of evidence is that it is 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. If the applicant is deemed on the review not to be a risk to the safety of children the imposition of the requirement for him to be living elsewhere until that determination is made, in the circumstances where he is suffering from a grave illness and requires family assistance, gives weight to the desirability to return the position to that which existed prior to the decision earlier this year. If there had not been the admission to the hospital for that serious illness and the subsequent medical complications experienced by the applicant it is unlikely that it would be considered desirable to grant a stay.

130. The Tribunal will be required to make an assessment based largely on historical material about the behaviour of the applicant. There is other cogent evidence which supports the view that the applicant does not currently pose a risk to the safety of children. In particular, the applicant has not come to the attention of the authorities for a significant period of time, relative to the applicant’s prior history. There is a possibility that the applicant may be granted a clearance as a result of the review of the original decision made by the Children’s Guardian. It must be of some significance that the application for the clearance was originally made in 2015 and was not determined until 2017, during which time the applicant was not determined to be a risk to the safety of children.

131. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered. The applicant was in the past reported to have worked well with children as the bus driver and handyman.

132. The overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances.

Conclusion

135. There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act. The applicant is also not presumed to be safe with children.

136. 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 for the Tribunal to monitor any conditions which might be imposed. In this matter the applicant and his family, however, will be monitored by the Department of Family and Community Services because the Minister retains parental responsibility, at least in some aspects, and the care of those children requires monitoring because of their needs and the assistance the applicant’s partner requires to provide optimal care for those children.

137. 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. The applicant worked with children for approximately 10 years as a bus driver/handyman with no adverse reports. The assessment undertaken during the Children’s Court proceedings considered the applicant impressed as a rehabilitated binge drinker.

138. The applicant suffered a heart attack in 2012 and chronic renal failure in 2012. The applicant continues to suffer from diabetes. During the last four weeks the applicant says that he has lost in excess of 20 kg in weight and feels very unwell. The applicant cannot drive and is reliant upon others.

139. The medical evidence is that the applicant is “gravely ill”. The family doctor for the last 25 years has given an opinion that the applicant requires around-the-clock support from his family, is unsafe living alone, and in the doctor’s opinion, poses no danger to his grandchildren given historical charges against him.

140. Those matters may be the subject of further evidence and the ultimate decision of the Tribunal may be contrary to those opinions. However, on an interim basis where the factors to be considered are finely balanced and the medical evidence, which does not appear seriously in dispute, supports the grant of the stay. The interests of justice in the particular circumstances of this matter favours the grant of the stay.

141. The application for a stay is therefore granted.

Order

The order of the Tribunal is that:

1. The decision of the Children’s Guardian dated 31 January 2017 refusing to grant to the applicant a working with children check clearance is stayed until the determination of the application for review filed 24 February 2017.

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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: 27 June 2017