CZI v Children's Guardian

[2017] NSWCATAD 179

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CZI v Children's Guardian [2017] NSWCATAD 179

Hearing dates:

30 March 2017

Date of orders:

08 June 2017

Decision date:

08 June 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member

Decision:

1) The application for a stay of the Children’s Guardian notification dated 17 February 2017 that the Children’s Guardian must not 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- enabling order sought under section 28 Child Protection (Working with Children) Act 2012 (NSW) - disqualified person due to 2 charges of carnal knowledge under section 71 of the Crimes Act 1900 (NSW) – good behaviour bond and recognizance under section 556A Crimes Act 1900 (NSW) - conviction for the purposes of section 5 of the Child Protection (Working with Children) Act 2012 (NSW) - disqualifying offence occurred 42 years ago - applicant has been a teacher for all his working life - application for a stay of the notification of the Children’s Guardian until application for enabling order heard - paramount concern is protecting children from child abuse - order sought under section 30(2) – whether jurisdiction to grant a stay or interim enabling order - factors to consider on stay application – stay application 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:

Procedural and other rulings

Parties:

CZI (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel/Solicitor:
N Dawson (Applicant)
J McDonald (Respondent)

  Solicitors:
New Law Pty Ltd (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2017/00082892

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for Decision

Introduction

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

2. The Children’s Guardian on 17 February 2017 refused the applicant’s application for a Working with Children Check Clearance. The applicant applied for a Working with Children Check Clearance on 1 February 2017 nominating education as the relevant child related work. The applicant filed his application in the Tribunal on 17 March 2017. On 30 March 2017 the application before the Tribunal stated that the applicant sought “a stay on the failure to grant a Working With Children Check Clearance to the Applicant and an Interim Enabling Order declaring that the Applicant is not to be treated as a Disqualified Person in respect of the Disqualifying Offences.” The applicant did not seek an interim enabling order under section 28 of the Act on the oral hearing of his application for a stay.

3. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the application to the Children’s Guardian: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. The date of the application was 1 February 2017 as previously noted. The amended provision under section 30 (1A) of the Act applies. If the applicant poses a risk to the safety of children it is not necessary 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. The Tribunal will be required to apply the two tests in the event that the Tribunal determines that the applicant does not pose a risk to the safety of children.

4. The applicant wishes and requires to have granted to him a Working with Children Check Clearance, in order to work with children as a teacher which is his chosen profession and the role he has performed for many years.

5. 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.

6. The stay application was heard orally by the Tribunal on 30 March 2017. At that time a final hearing date was allocated for 7 August 2017. The applicant will be seeking to rely upon expert evidence for the hearing. Directions were made for the preparation of the matter for hearing.

7. 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.

8. 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.

9. 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. It was submitted that if the stay is granted the applicant’s employer will conduct their own risk assessment.

10. 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. 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 set out in those 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.”

11. The respondent is a necessary party to the proceedings pursuant to section 28 (4) of the Act. The Children’s Guardian is not authorised to grant an enabling order and must refuse the application for a clearance because of the ‘conviction’ which renders the applicant a disqualified person. This is explained in more detail later in the reasons.

12. 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 varied to accord with the current practice of the Tribunal and is recorded at the conclusion of these reasons.

The evidence relied upon in the interim hearing

13. The parties relied upon:

1. Affidavit of the applicant filed 17 March 2017.

2. A 26 page bundle of documents filed by the respondent containing details of the offence in 1975.

3. Written submissions on behalf of the Children’s Guardian which were filed during the course of the oral hearing.

14. Because of the limited nature of the interim application for a stay in the busy directions list, the Tribunal is not able to make any concluded finding of fact. 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 would be determined upon the civil onus of proof which is the balance of probabilities.

15. 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]. The civil standard of proof, which is on the balance of probabilities, is the standard upon which the ultimate determination will be made.

16. As previously stated this is an interim application, so the Tribunal will 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.

17. 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 his interests outweigh the public interest in maintaining the “disqualified person” status.

Legislative Provisions

18. 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.

19. 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."

20. 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.”

21. 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."

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

23. "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.”

24. The application before the Tribunal is made pursuant to section 28 (1) of the Act.

25. 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.

26. 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; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32.

27. 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.

28. 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.

29. The jurisdiction of the Tribunal under section 28 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].

30. 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.

31. 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. 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.”

32. 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: section 28 (8) 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].

32. In order to make it quite plain, an enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, expressly may not be made subject to conditions: section 28 (8) of the Act.

The Issue

34. The applicant seeks that the operation of the notification from the Children’s Guardian, that the applicant is a disqualified person be stayed, to make it possible for him to continue to work as a teacher. This is expressed as a stay of the “failure to grant a Working With Children Check Clearance to the Applicant” in the stay application. The applicant’s solicitor stated that he is not seeking an interim enabling order. The application is really for a stay of the Children’s Guardian notification dated 8 February 2017 that the Children’s Guardian must not grant to the applicant a Working With Children Check Clearance is dismissed.

35. 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].

36. 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].

37. 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."

Considerations and the Evidence

38. 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. The provisions of section 30 (1) of the Act “must” be applied in “determining an application” under Part 4 of the Act. This interim application is not determining or bringing to an end or concluding the application for review. However, it is relevant to consider, even if briefly, the matters in section 30(1) of the Act. This is not a preliminary hearing.

39. 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 an enabling order under section 28.

40. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, an administrative review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. When considering whether to make an enabling order the tribunal must take into account those matters in section 30 of the Act.

41. Section 30 of the Act 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,

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,

(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.

42. The evidence is considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 30(1) of the Act. The evidence limited as appears on this application is placed under subheadings reciting the required considerations under the Act.

43. 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.

44. It is considered that there may possibly be 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 for an enabling order.

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

45. The applicant is a disqualified person because the recognizance under section 556A of the Crimes Act is treated as a conviction because of section 5 of the Act, and the carnal knowledge offence is one which is within schedule 2 of the Act. By reason of section 18 of the Act the Children’s Guardian must not grant a Working With Children Check Clearance to a disqualified person.

46. Section 18 of the Act provides:

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (“disqualified persons”):

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

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

47. The legislature has included this factor as a matter relevant to the assessment of risk. 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.

48. The applicant was charged in relation to a sexual encounter with a young girl who was aged 14 at the time of the offence. At the time there was 3 years 6 months age difference between the applicant and the victim. The offence occurred in the applicant’s parents’ home. The victim was out on a Friday night when she met up with the applicant and went to his parents’ home at about 1 am. They watched television with his parents and the applicant’s brother. The applicant and the victim after a time then walked to his bedroom, he shut the door they both undressed and had sexual intercourse. The victim said to the police: “I let him have sex with me, he didn’t force me.” The victim was not able to give consent due to her age. The applicant’s description of the offence is slightly different with the victim being the initiator of sexual contact.

49. This is a very serious matter mainly due to the age of the victim which renders the applicant a disqualified person because the category of offence is within schedule 2 of the Act. However, the sentence which was imposed and the circumstances of the offence mean that the seriousness is diminished in an objective sense. The sentence was a recognizance pursuant to section 556A of the Crimes Act in the sum of $100 to be of good behaviour for a period of 3 years.

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

50. The offence occurred in 1975.

51. There is no evidence of adverse conduct on the part of the applicant since the offence occurred.

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

52. The applicant was aged 18 years and 3 months at the time of the offence.

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

53. The victim was aged 14 years and 9 months. The victim was a schoolgirl but it would appear that she was not an unwilling participant in the sexual activity. Apart from the victim’s age it would appear that she was not a vulnerable person.

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

54. The difference in age between the applicant and the victim was 3 years and 6 months.

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

55. The applicant states in his affidavit that he was unaware that the victim was under the age of 18 and believed that she was able to consent to the sexual act.

The person’s present age

56. The applicant is currently 60 years old. The applicant is in a loving relationship and has been for the last 33 years. The applicant is a grandparent with 6 grandchildren. The offence occurred 42 years ago.

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

57. The applicant does not have a criminal history.

58. The applicant has felt remorse and embarrassment over the conviction and is currently devastated that the conviction is jeopardising his career.

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

59. 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.

60. The applicant will be obtaining expert opinion to assist the Tribunal. The matter has been set down for hearing on 7 August 2017 to enable the applicant to obtain that evidence.

61. 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.

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

62. The applicant has provided information including his affidavit and a letter from his employer indicating that he is suspended from duties on full pay until further notice.

Any other matters that the Children’s Guardian considers necessary

63. 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.

64. The Children’s Guardian opposes the grant of the stay sought by the applicant.

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

65. The applicant is affected by the fact that he does not have a Working With Children Check Clearance and has therefore been suspended from his employment with pay since February 2017. The applicant is currently employed in a position which he has held since 2012 as a head teacher.

66. However, the decision by the employer is subject to review.

The public interest

67. When assessing the public interest it is relevant to have regard to the nature and seriousness of the offences. Those offences clearly relate to the potential of the applicant to be a risk to the safety of children because they were committed against a child. 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.

68. The allegation against the applicant is serious and the onus is borne by the applicant to show that he does not pose a risk to the safety of children.

69. 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

70. The Act is designed to be protective and there are a number of matters identified in the legislation which are relevant to an assessment of risk. They would not be included as factors which must be considered by the Tribunal unless they were matters which are relevant to the assessment of risk.

71. While there is a presumption that the applicant poses a risk to the safety of children, the applicant may be able to provide evidence which ultimately satisfies the Tribunal that he does not pose a risk to the safety of children.

72. 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 the application.

73. 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 in an injunction application it is not the Court’s task “to conduct a preliminary hearing”. In determining whether there is “a serious question to be tried” when considering an interlocutory injunction, his Honour stated that 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 about interlocutory applications 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.

74. The provisions of section 30 (2) of the Act are:

“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.”

75. Section 29 of the Act relates to the review of persons who have previously obtained enabling orders, which review may result in the revocation or confirmation of an enabling order, due to fresh evidence or subsequent events occurring since the original grant of enabling order. The provisions of section 30 (2) of the Act appear to be neither the same as an interlocutory injunction application nor a stay application pursuant to section 60 of the Administrative Decisions Review Act. However, the same principles should logically apply in relation to a consideration of the prospects of success of the enabling order application as an interlocutory step. The application pursuant to section 30 (2) of the Act specifically refers to a “determination by the Children’s Guardian under this Act”. The only matter ‘determined’ or stated by the Children’s Guardian is that the applicant is a disqualified person by reason of the conviction. The Children’s Guardian in those circumstances, because of the provisions of section 18 of the Act, has no discretion and must refuse the application for a Working With Children Check Clearance. Only the Tribunal can grant an enabling order.

76. The Children’s Guardian submits that section 30 of the Act does not permit in effect an “interim enabling order”. The argument correctly identifies that exactly the same considerations apply to the making of an enabling order on an interim basis as would apply to the making of an enabling order on a final basis. A stay application however, like an injunction application, is not an interim hearing as Justice White (as he then was) observed in 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd. The purpose of a stay or an injunction is usually to maintain the current position provided that does not prejudice one party’s interests more than another.

75. Further, the Children’s Guardian submits that because section 28 (8) prohibits the making of an enabling order subject to conditions, this means that the Tribunal cannot make an interim enabling order a condition of which would be that it would expire at some future time. The so-called interim enabling order, however, would expire on the making of a final order at the final hearing.

76. The repetition of any sexual act with a child under the age of 18 years would be more likely than not to do significant harm to that child.

77. The assessment of the Tribunal, based upon the previously identified 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.

78. The Tribunal accepts that the history of the applicant and his employment as a teacher for a significant period of time with no adverse reports, provides persuasive support for the view that the applicant does not pose a risk to the safety of children. The applicant, however, bears an onus to prove that he is not a risk to the safety of children and to overturn the presumption.

79. 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

82. The Tribunal has allocated a final hearing date for this matter on 7 August 2017. The submission of the Children’s Guardian was that rather than granting the stay the Tribunal could make orders for an expeditious hearing of the application. This is what the Tribunal has done, while allowing for the applicant to obtain the expert evidence which he seeks.

83. There is a presumption in proceedings under section 28 of the Act that the applicant poses a risk to children because the applicant is a disqualified person seeking an enabling order: section 28(7) of the Act.

84. If the applicant is granted a clearance or a stay of the notification 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. There is, in any event, no mechanism to monitor any conditions which might be imposed. The Tribunal does not consider it desirable, after having regard to the matters set out previously, to grant a stay of the notification even if conditions could be moulded to provide an appropriate level of protection.

85. There is minimal evidence of any significant hardship which would accrue to the applicant by not granting a stay. The Tribunal exercises the jurisdiction to grant an enabling order, not the Children’s Guardian. That is clear from the structure of section 28 of the Act where the Children’s Guardian is required to be a party to the application and may make submissions either in opposition to or in support of the making of an enabling order. In that sense the Children’s Guardian is in the role of a contradictor, not the primary decision maker from whom the applicant seeks a review. The matter will be able to be determined on a final basis on 7 August 2017. The hardship, if any, to the applicant therefore will be limited in duration.

86. The purpose of the Act is protective and not punitive. It is in the public interest for the legislative intent to remain in force until the determination of the application for the enabling order is able to be made, and consideration can be properly directed to whether the applicant has discharged the onus placed by the legislation upon him to prove that he is not a risk to children. That is not able to be definitively determined at this time due to the state of the evidence.

87. The public interest is entitled to significant weight and is advanced by the maintenance of the status of the applicant as a disqualified person until a full consideration can be given at a final hearing as to whether he poses a risk to the safety of children.

88. The application for a stay order under section 30(2) of the Act is therefore refused and dismissed.

Order

89. The orders of the Tribunal are that:

1. The application for a stay of the Children’s Guardian notification dated 17 February 2017 that the Children’s Guardian must not 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.

********

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: 08 June 2017