D and Department For Community Development

[2007] WASAT 154

D and DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 154

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 154
Act:	WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
Case No:	VR:29/2007	Heard:	30 AND 31 MAY 2007
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	15/06/07
No of pages:	26	Judgment Part:	1 of 1
Result:	Original decision set aside Direction to issue assessment notice
Category:	A
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Parties:	D DEPARTMENT FOR COMMUNITY DEVELOPMENT
Catchwords:	Working with Children (Criminal Record Checking) Act 2004 (WA) ­ Issue of negative notice ­ Convictions in Victoria of indecent assault on child ­ Offences occurring 27 years ago ­ Applicant having lifestyle of abuse of alcohol and drugs at time of offences and for 10 years afterwards ­ Change of lifestyle ­ No consumption of alcohol or drugs for 16 years ­ Applicant undergoing counselling through Salvation Army ­ High level of involvement in counselling programmes, Alcoholics Anonymous sessions and religious activities through Salvation Army ­ Applicant remarrying and becoming an officer of the Salvation Army ­ Eleven years of service as Salvation Army officer ­ Applicant's pastoral role necessarily involving contact with children although not a focus of his principal interests ­ Whether exceptional circumstances
Legislation:	Crime Sentences Act 1997 (UK), s 2 Crimes Act 1958 (Vic), s 55 State Administrative Tribunal Act 2004 (WA), s 27, s 62(3) Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 8, s 9, s 12, s 12(3), s 12(4), s 12(5), s 12(6), s 12(7), s 12(8), s 12(8)(b), s 12(8)(c), s 12(8)(d), s 12(9), s 12(10), s 13, s 39
Case References:	Baker v The Queen (2004) 223 CLR 513 C and Chief Executive Officer, Department for Community Development [2007] WASAT 116 Commission for Children and Young People v V [2002] NSWSC 949 Griffiths v R (1989) 167 CLR 372 Ho v Professional Services Review Committee No 295 [2007] FCA 388 R v Commission for Children and Young People [2002] NSWIR Comm 101 R v Kelly (Edward) [2000] QB 198
Orders	1. The review application is allowed.,2. The decision of the CEO under review is set aside.,3. The applicant is entitled to an assessment notice issued under s 12(6) of the Working with Children (Criminal Record Checking) Act 2004 (WA).,4. The CEO (or delegate) of the Department for Community Development takes such steps as are necessary to cause the applicant to be issued with an assessment notice under s 12(6) of the Working with Children (Criminal Record Checking) Act 2004 in accordance with this decision.,5. The name of the applicant is not to be published. ,6. The materials received by the Tribunal in support of the application are not to be published.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) CITATION : D and DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 154 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 30 AND 31 MAY 2007 DELIVERED : 15 JUNE 2007 FILE NO/S : VR 29 of 2007 BETWEEN : D

Applicant

AND

DEPARTMENT FOR COMMUNITY DEVELOPMENT
Respondent

Catchwords:

Working with Children (Criminal Record Checking) Act 2004 (WA) ­ Issue of negative notice ­ Convictions in Victoria of indecent assault on child ­ Offences occurring 27 years ago ­ Applicant having lifestyle of abuse of alcohol and drugs at time of offences and for 10 years afterwards ­ Change of lifestyle ­ No consumption of alcohol or drugs for 16 years ­ Applicant undergoing counselling through Salvation Army ­ High level of involvement in counselling programmes, Alcoholics Anonymous sessions and religious activities through Salvation Army ­ Applicant remarrying and becoming an officer of the Salvation Army ­ Eleven years of service as Salvation Army officer ­

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Applicant's pastoral role necessarily involving contact with children although not a focus of his principal interests ­ Whether exceptional circumstances

Legislation:

Crime Sentences Act 1997 (UK), s 2

Crimes Act 1958 (Vic), s 55
State Administrative Tribunal Act 2004 (WA), s 27, s 62(3)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 8, s 9, s 12, s 12(3), s 12(4), s 12(5), s 12(6), s 12(7), s 12(8), s 12(8)(b), s 12(8)(c), s 12(8)(d), s 12(9), s 12(10), s 13, s 39

Result:

Original decision set aside

Direction to issue assessment notice

Category: A

Representation:

Counsel:

Applicant : Mr L Tsaknis
Respondent : Mr P Dixon

Solicitors:

Applicant : Freehills
Respondent : Department for Community Development

Case(s) referred to in decision(s):

Baker v The Queen (2004) 223 CLR 513
C and Chief Executive Officer, Department for Community Development [2007] WASAT 116
Commission for Children and Young People v V [2002] NSWSC 949
Griffiths v R (1989) 167 CLR 372
Ho v Professional Services Review Committee No 295 [2007] FCA 388
R v Commission for Children and Young People [2002] NSWIR Comm 101

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R v Kelly (Edward) [2000] QB 198


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant, D, and his wife are Salvation Army ministers. The usual duties of their work involves regular contact with their congregation, including children. D, with his wife, has been performing that work since 1995. With the introduction of the Working with Children (Criminal Record Checking) Act 2004 (WA), it became necessary for D to apply for an assessment notice in order to continue his contact with children in the course of his work. Application was made, but the Chief Executive Officer of the Department for Community Development issued a negative notice to D. The effect of the notice was that D could no longer be engaged as a Salvation Army minister, because the normal duties of that position brought it within the definition of child-related employment for the purposes of the Act.

2 The reason that a negative notice was issued was because D had two convictions for indecent assault of his stepdaughter in 1980. Those convictions required that the CEO issue a negative notice unless he was satisfied that, because of the exceptional circumstances of the case, an assessment notice permitting D to work in child-related employment should be issued. The CEO did not consider that exceptional circumstances were present in the case.

3 D sought a review of the CEO's decision by the Tribunal. He relied on the fact that, at the time the offences and convictions occurred, he was in the grip of addiction to alcohol and illicit drugs. He had commenced drinking alcohol at around 15 or 16 years of age, and started taking drugs not long afterwards. He acknowledged that, from that age, until his late thirties, he led an entirely dysfunctional life and would be in a drunken haze or stupor for months on end, with no regard for the effect of his actions on others. Other than that the convictions related to offences against his stepdaughter, then aged about five or six, D had little recollection of the circumstances of the offences or his convictions. Thorough enquiries of authorities in Victoria had failed to reveal any details of the circumstances of the convictions. All that was known was that the offences were for indecent assault, and had resulted in one case in a fine of $400, and in the other a good behaviour bond of $600 for a period of 12 months.

4 In 1991, at the age of approximately 37, D underwent counselling with the Salvation Army. He became committed to turning his life around, and became actively involved in the counselling programmes of

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both the Salvation Army and Alcoholics Anonymous. He ceased drinking or taking any illicit drugs in January 1991. He met his present wife through the Salvation Army, and after their marriage they became ministers in the Salvation Army. It was clear to the Tribunal that he had made very substantial contributions to his work as a Salvation Army minister, and was held in very high regard. His principal focus in work was running men's support services dealing with various social and substance issues. He became very active in various social and community programmes. Work with children's groups was principally overseen by D's wife, although he provided assistance in various programmes involving children.

5 The Tribunal considered the circumstances relating to D. It concluded that various factors together constituted exceptional circumstances such that an assessment notice should be issued to D. Those factors were the long period since the offences occurred, the fact that, while the offences were serious, the fines imposed suggest the lower end of seriousness, the extreme change in the applicant's lifestyle, the valuable contribution which D makes to his community, the fact that contact with children was not D's primary focus in his work, and the fact that an experienced psychologist assessed him to be a low risk for further offending.

6 Because of the exceptional circumstances, the Tribunal determined that the negative notice should be set aside and an assessment notice should issue. It also decided that it was in the public interest that D's name not be published.

Background and statutory framework

7 The applicant, D, is 52 years old. He is a Salvation Army minister. Work of a Salvation Army minister is "child-related work" within the meaning of that expression described by s 6 of the Working with Children (Criminal Record Checking) Act 2004 (WA) (Act). "Child-related work" is work the usual duties of which involves, or are likely to involve, contact with a child in connection with, amongst other things, a religious organisation.

8 Contact, for the purposes of the Act, is defined in s 4 to include:

"(a) any form of physical contact;

(b) any form of oral communication, whether face to face, by telephone or otherwise; and

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(c) any form of electronic communication … "

9 Section 9 of the Act requires a person who is, or is proposed to be, employed in child-related employment to apply to the Chief Executive Officer (CEO) of the Department for Community Development for an assessment notice. The CEO is required to make a criminal record check in respect of an applicant prior to deciding upon an application for an assessment notice. Schedules to the Act list various offences and classifies them as either class 1 or class 2 offences. Section 12 of the Act sets out how the CEO is to determine an application for an assessment notice in the light of a criminal record check. Those provisions are set out in s 12(3) - s 12(10) of the Act as follows:

"(3) If the CEO is not aware of ¾

(a) any offence of which the applicant has been convicted; or

(b) any offence (other than an offence that is neither a Class 1 offence nor a Class 2 offence) with which the applicant has been charged,

the CEO is to issue an assessment notice to the applicant.


(4) If the CEO ¾

(a) is not aware of any offence of which the applicant has been convicted; and

(b) is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence,

the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.


(5) If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.

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(6) If the CEO ¾

(a) is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted;

(b) is aware of a Class 2 offence of which the applicant has been convicted; or

(c) is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence,

the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.


(7) If the CEO is aware of a Class 1 offence (other than a Class 1 offence committed by the applicant when a child) of which the applicant has been convicted, the CEO is to issue a negative notice to the applicant.

(8) If subsection (4), (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to ¾


(a) the best interests of children;

(b) when the offence was committed or is alleged to have been committed;

(c) the age of the applicant when the offence was committed or is alleged to have been committed;

(d) the nature of the offence and any relevance it has to child-related work;

(e) any information given by the applicant in, or in relation to, the application;

(f) anything else that the CEO reasonably considers relevant to the decision.


(9) On deciding the application ¾

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(a) the CEO is to issue the assessment notice or the negative notice, as the case requires, to the applicant; and

(b) if the CEO is aware that that applicant is, or is proposed to be, employed in child-related employment by another person ¾ the CEO is to give a copy of the notice to the other person.

(10) When a negative notice is issued to an applicant, the CEO is to provide with it a written notice that ¾

(a) states the reasons for the CEO's decision on the application;

(b) states that the applicant may apply to the State Administrative Tribunal, within 28 days after the date of the negative notice, to have the decision reviewed; and

(c) explains how the application for the review is made."

10 Section 3 of the Act requires that, in performing a function under the Act, the CEO or the Tribunal is to regard the best interests of children as the paramount consideration.

11 In relation to D, the criminal record check revealed that in October 1980, he was dealt with on two charges of indecent assault, and fined $400 in respect of one charge, and on the second placed on a good behaviour bond of $600 with the charge being adjourned for 12 months. There was some issue at the hearing as to whether or not the records obtained from the Victorian authorities suggested a conviction on both offences, or on only that charge for which an immediate fine was imposed. I am satisfied that the charge upon which a $600 good behaviour bond was imposed resulted from some finding of guilt either on D's plea of guilty, or following a formal finding of guilt in relation to the offence charged, so as to amount to a conviction for the purposes of s 8 of the Act. I reach that conclusion because the disposition of both matters appears to have occurred on the same day. The Victorian police records indicate that the charge the subject of the good behaviour bond was struck out on 15 October 1981, 12 months after the bond was imposed. The bond does not appear to be in the nature of a condition of bail, but rather a common law bond to be of good behaviour imposed as a penalty for the

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offence. It is apparent that D successfully met the condition of the bond by remaining of good behaviour for the requisite period.

12 It is apparent that the convictions against D were for offences against s 55 of the Crimes Act 1958 (Vic) which at the relevant time provided:

"(1) Whosoever unlawfully and indecently assaults any woman or girl, shall be guilty of a misdemeanour, and shall be liable to imprisonment for a term of not more than five years."

13 A second offence under that section constitutes a felony attracting a maximum term of imprisonment of 10 years. It is common ground that the offences for which D was convicted are class 2 offences for the purposes of the Act.

14 When the offences were revealed by the criminal record check, the CEO invited D initially to provide information concerning the circumstances of the offences, and subsequently to make a submission under s 13 of the Act as to why a negative notice should not issue. D provided information in response to each invitation. After considering those responses, the CEO did not consider that special circumstances had been demonstrated, and issued a negative notice under s 12(6) of the Act.

15 Upon the issue of the negative notice, the applicant applied for a review of the decision by this Tribunal.

Exceptional circumstances

16 Section 12(6) operates as to require the CEO to issue a negative notice to the applicant, where the applicant has been convicted of a class 2 offence, unless, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant. That provision suggests that the circumstances of the case must give rise to a positive reason to issue an assessment notice so as to permit an applicant to work in child-related employment. As Dr Watt, a psychologist who gave evidence at the hearing, said, a history of previous sexual abuse of children is a significant risk factor for potential reoffending. It is no doubt that consideration which underlies the rationale of the Act, and in particular the usual requirement under s 12(6) for the issue of a negative notice where certain classes of conviction have occurred. While s 12(8) identifies the circumstances to which regard should be had in exercising the discretion under s 12(6), the Act does not specify what factors might lead to a conclusion that an assessment notice should be issued.

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17 Young CJ in Commission for Children and Young People v V [2002] NSWSC 949 accepted the observations of Haylen J in R v Commission for Children and Young People [2002] NSWIR Comm 101 to the effect that there needs to be a balancing exercise carried out assessing risk to children on one hand, and the right to work on the other. In the context of a consideration of s 12(4) of the Act, Barker J said in C and Chief Executive Officer, Department for Community Development [2007] WASAT 116 at [34]:

"The subsection reflects a legislative intent that the civil right of a person to receive an assessment notice should be respected, unless there is some good reason to the contrary arising from 'the particular circumstances of the case'."

18 In my view, in the context of s 12(6), the Act requires the CEO (and in turn the Tribunal) to consider whether the circumstances of the case are "exceptional" such that the level of risk to children in permitting the applicant to work in child-related employment is not sufficiently high to outweigh the right of the applicant to work in a chosen field, whether that be in paid employment or on a voluntary basis. So long as it is consistent with the best interests of children, the right of an applicant to work (or otherwise exercise the civil right to participate in community activities) provides a basis for the conclusion that an assessment notice "should" issue. There may be cases where it is positively desirable, perhaps because of the clear community value of the work, to permit an applicant to work in a particular field, although even then that consideration must be subject to the paramount interests of children.

19 The Act does not define "exceptional circumstances". The Australian Concise Oxford Dictionary (2nd ed), Oxford University Press, Melbourne, 1992 defines exceptional as "forming an exception; unusual; not typical". In Baker v The Queen (2004) 223 CLR 513 at 573 [173], Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198 at 208 to the expression "exceptional circumstances" in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or

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unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

20 In Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26], Rares J after referring to the observations of Griffiths v R (1989) 167 CLR 372 at 379 by Brennan and Dawson JJ that "although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances", said:

"Exceptional circumstances within the meaning of s 106KA(2)[of the Health Insurance Act 1973(Cth)] can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional …

It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

21 Although those observations were made in the context of different statutory provisions, they are, in my view, equally applicable to the expression as it appears in the Act.

22 The circumstances enumerated in s 12(8)(b), (c) and (d) are unlikely, by themselves, to be capable of categorisation as "exceptional". Section 12(8) must, therefore, contemplate that the circumstances enumerated in the subsection will be considered in combination to determine whether they might be regarded as exceptional.

The applicant's background

23 D was born in Victoria in 1954. His evidence as to his childhood and life until 1991 tells of a dysfunctional lifestyle marked by serious alcohol abuse. His evidence was frank and very self-deprecating. I have no reason to doubt that he gave the most accurate account of his background as he could. His evidence is consistent with the tenor of a

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newspaper article, apparently written in about 1993, reporting on D's change in lifestyle and recounting his previous alcohol dependence, and the changes in his life following counselling from Alcoholics Anonymous and the Salvation Army's rehabilitation centre, and the development of his faith in God. Letters written in the early 1990s confirm his involvement with Salvation Army programmes, all consistent with the history which D recounted in his evidence.

24 D said that he suffered sexual abuse as a child, although he was unable to recall specific detail as to the nature or extent of the abuse. He was able to identify the perpetrator as an older cousin with whom his family would holiday annually.

25 D recalled that his schooling was marked by his inattentiveness, and a lack of motivation which saw him leave school at 15 or 16 years of age and obtain work as a labourer in a tyre factory. His workplace had a culture of misuse of alcohol where heavy drinking was accepted as the norm. He commenced drinking at around 15 or 16 years of age and commenced taking drugs not long afterwards. He drank excessively on a daily basis, and took illicit drugs less often and subject to availability. Eventually he became a regular user of marijuana, speed or LSD. He described life as a merry-go-round of drunkenness, uncontrollable behaviour, confusion and regret which would then be covered up by drinking. He described that manner of living as lasting from his late teens until his mid to late thirties. For part of that time he was homeless or moving from various places of temporary accommodation on a regular basis.

26 Around 1976, D met his first wife B. B was, at that stage, approximately 18 years old, and had a daughter, R. Shortly afterwards, B became pregnant to D, and they married in approximately 1977 when D was 23 years old. He described the marriage as dysfunctional, and said that, at that stage of his life, he lacked the capacity to appreciate or attend to other people's needs. It would appear his marriage to B came to an end shortly after, and possibly as a result of, the convictions for offences involving indecent assaults on R.

27 From approximately 1984 until 1991, D was involved in a motorcycle club, and continued to drink heavily and take drugs. He was intermittently employed and from time to time was admitted to hospital and to detoxification centres. D's recollection of his life prior to 1991 was vague. It is not clear whether that is because his substance abuse has affected his memory, or whether he has shut out particular aspects of his

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life as a psychological defence mechanism. I accept, however, that D endeavoured to give an account of his early life as accurately as he was able.

The convictions in 1980

28 D had almost no recollection of the circumstances giving rise to his convictions. He thought that R was about five or six years old at the time that the charges were laid against him in 1980. It is apparent from the records that have been obtained from Victoria that the offences occurred in 1980 when D would have been 25 years old. He said that he had a vague recollection "of something being said about me having masturbated and having something in my hand that I told R was a drink". He said that this was the same recollection he had had whilst undergoing counselling during his rehabilitation. He was, however, not able to say to what extent his recollection was accurate. D accepted that he was incapable of performing any proper parental role as R's stepfather, or in relation to his son.

29 D also had virtually no recollection of the course of the charges against him. He had a recollection of being visited by the police and taken to a police station for questioning and subsequently being charged. He recalled attending a magistrates court but was unable to recall whether there was a trial or whether he pleaded guilty.

30 Because of his lack of recollection, D instructed his lawyers to make enquiries to ascertain more about the details and circumstances of the offences. His solicitors carried out thorough enquiries of court authorities and police records. They endeavoured, unsuccessfully, to identify and locate a lawyer who was believed to have represented D in relation to the charges. They contacted the police officer who brought the charges, but he had no recollection of them or the applicant. It was as a result of those enquiries that some records were obtained. Those records threw little further light on the circumstances of the offences. As I have already indicated, the records show that one offence occurred between 1 May 1980 and 18 July 1980, and the other occurred on 4 July 1980. They were apparently reported to police on 18 July 1980 and it would appear that D was charged on the same day. The charges were disposed of on 16 October 1980 when a fine of $400 was imposed on one and a recognisance in the sum of $600 to be of good behaviour for a period of 12 months was imposed on the other.

31 Given the potential maximum penalty of five years imprisonment for offences against s 55 of the Crimes Act 1958, it is reasonable to conclude

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that the offences were considered by the Magistrate to be at the lower end of the range of seriousness for offences of that kind.

D's rehabilitation

32 In 1989 or 1990, D started attending Alcoholics Anonymous (AA) meetings after doctors had warned him that his health was at risk if he continued drinking. He had reached the point where he wanted to change his lifestyle. Initially, he retained his old friendships, and his rehabilitation "went through a rocky few years". Eventually he broke ties with his old associates, and began to socialise with people he had met through the AA meetings. He commenced drug and alcohol rehabilitation with the Salvation Army in January 1991. He stayed in a detoxification centre in St Kilda, Melbourne, for one week, and then went to a Salvation Army rehabilitation centre in northern Victoria. He went through a detoxification period which normally takes 13 weeks, but stayed for 26 weeks. During that time he was involved in group therapy, one-on-one counselling, spiritual guidance, work therapy, attendance at AA meetings and Narcotics Anonymous meetings, and attendance at Sunday worship services at the local Salvation Army corps. He received counselling in relation to his own background of sexual abuse as a child and for his "inappropriate sexual dealing with a child". He said that his exposure to spiritual guidance from staff at the Salvation Army, and his own faith development, caused him to realise for the first time that inappropriate sexual dealings were not the norm.

33 D continued to attend AA meetings for some two years after his six month period of rehabilitation with the Salvation Army. He moved to New South Wales where he stayed with an AA member and his wife who provided accommodation to people, like D, who needed extra support after rehabilitation. He continued to attend AA meetings, one of which was at the rehabilitation centre that D had stayed at. The Salvation Army captain at the rehabilitation centre engaged D to assist in driving other men who wanted to attend the centre. That led to him being asked to assist in running Salvation Army in-house AA meetings, and supervising some other activities.

34 It is apparent that, at that time, D underwent a major change in his life. He became very committed to his new faith. He developed a commitment to assisting others to deal with the problems that had dominated his life to that point.

35 In 1992, he met his wife, A. She was then an officer in charge of a Salvation Army church in Victoria. She encouraged him in his worship

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and bible study. By this time, D was running AA meetings and began using the Salvation Army premises used by A. D and A began working together and developed a close relationship. Eventually they planned to marry, which required A to resign as an officer because the Salvation Army required that its officers could only marry other officers. D planned to become an officer, but there was a prescribed two year waiting period following marriage before the two could be considered for officership as a married couple. They married in early 1994, and continued to work within the Salvation Army, although not as officers. D was employed to set up Salvation Army drug and alcohol rehabilitation services in Bendigo in 1994. Premises were purchased for that purpose and D worked towards establishing the centre.

36 From about mid 1994 to early 1995, D volunteered to become a Salvation Army court welfare officer attached to the Bendigo Magistrates Court on a part-time basis. The Court would refer persons to the welfare officer for participation in various welfare programmes, and to supervise access to children.

37 In 1995, D was contacted by the Salvation Army headquarters in Melbourne and asked to accept appointment as an officer in a major regional centre in Western Australia. The offer was made notwithstanding that the normally required two year qualification period had not yet then been completed. D and A accepted the offer and moved to Western Australia in April 1995. D was made an ancillary captain in June 1995, and undertook studies to complete his qualification by correspondence.

38 D and A remained in that posting for five years. Upon arriving at the centre, they found that the Salvation Army buildings needed upgrading, and morale within the local Salvation Army congregation was low. They worked to "rejuvenate" a building previously used as a hostel for men older than 25 years who had nowhere else to stay. They re-opened the building and ran it as a shopfront emergency accommodation referral service and, eventually, as emergency family accommodation.

39 During his time as an officer of the Salvation Army, D has focussed on helping men "to be good role models". He utilises the Salvation Army's positive lifestyle programme which involves a 10 session course dealing with self-awareness, positive thinking, anger management, stress, suicide ideation and setting goals. D also became involved in running a youth accommodation service within the regional centre, after being approached to do so by the Department of Family and Children Services.

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The hostel then being used was experiencing difficulties, was badly run-down and in need of refurbishment. After initially serving on the management committee for the hostel, D was asked to oversee its closure, refurbishment and re-opening. He organised the clean-up of the property, the refurbishment of rooms, employment of staff, and the re-opening of the hostel. He then became the overseer of that operation, and chaplain to the staff and clients. The hostel was provided for youth between 15 and 24 years old.

40 D also held a number of positions within the community, including membership of the local Financial Advocacy Referral Agency, the local minister's fraternal, the church's Commission on Education Committee, and chaplain of the RSL.

41 Not many children participated in youth groups within the regional centre but D and A would organise various activities for the small number of children in their local youth group. D and A arranged for a trainee Salvation Army officer to come to the regional centre to assist in various youth activities. Apart from that contact, his role in relation to the youth hostel, and the usual contact with children in families within the congregation, D did not have a great deal of personal involvement with children whilst at the regional centre. Contact with children obviously would occur in the context of weekly services and performing weddings, dedications of children, and funerals.

42 In January 2000, D and A took up an appointment in an outer suburb of the metropolitan area. They remained there until January 2007. D's work again focussed on assisting men. He commenced a men's support service which provided services to over 200 men and their families during the period of his service in that location. The service offered counselling in either group settings or one-on-one, utilising the Salvation Army's "Positive Lifestyle Programme". The service also utilised the Salvation Army's "Bridge Programme" which is a drug and alcohol detoxification and rehabilitation programme. Various other services were provided by D and A which, on D's estimation, involved over 200 people per week participating in different activities. D became involved with community policing activities including the "Safer WA" programme. They ran various activities for senior members of the local community. When functions were organised for seniors, primary school choirs from local primary schools would sometimes be arranged. That involved D in a general supervisory role, ensuring that children received refreshments and organising all necessary equipment for their performance. D assisted with blue light discos in the local community as part of community policing

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programmes. Occasionally he would assist in helping cook sausages for sausage sizzles at the blue light discos. He was involved in emergency relief arrangements to assist the State Emergency Service during bushfires.

43 D and A also undertook various ecumenical activities designed to bring together the various churches within the locality. With A, D has overseen various programmes for children's groups including a programme known as "Mainly Music", a music and movement programme for preschoolers and their parents. D's involvement was assisting in tasks like setting up equipment for the groups, but the programme was mainly organised by A. One of their last events before leaving their outer metropolitan posting was a family day involving the hire of bouncy castles, arranging an animal farm, face painting, sausage sizzles and music. D also had involvement in the Salvation Army guard and legion activities, which are similar to scout and girl guides. His role there was supervisory, making sure that they had all the equipment needed and that there were enough funds to keep it going.

44 In January 2007, D and A accepted an appointment to a different regional centre, where they are now serving. The services they perform there are similar to those which they performed in the outer metropolitan posting.

45 The appointment to the present posting roughly coincided with the issue of the negative notice the subject of this review. D said that, as a result of that notice, he has been forced to undertake limited duties, and to remove himself from the Salvation Army premises whenever an activity with children is to occur. He described the situation as a "nightmare". He expressed the view that, as a minister within the church, it is simply not possible for him to perform his duties without communicating with children.

46 It is apparent from D's witness statement, from his oral evidence, and from the evidence of other witnesses to which I will refer below, that D now feels a strong sense of mission to assist others and to serve his faith. I accept that he has made a valuable contribution to the work of the Salvation Army over the 12 years of his service as an officer.

Character evidence

47 The Tribunal was assisted by evidence from A, Captain Iain Trainor, the divisional commander for the Salvation Army in Western Australia, Ms Florence Macdonald, a Salvation Army officer since 1976 and

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manager of the Salvation Army's Gracefields Women's Centre in Highgate, Ms Merrilyn Ingram, a Salvation Army chaplain who has known D since 1995, Ms Rose Tickner, a volunteer worker with the Salvation Army who has known D since 2001 and Mr Derek Tickner, a part-time worker with the Salvation Army at the men's support service, who has known D for approximately four years. All of them spoke highly of D, and of the work that he had done with the Salvation Army. All of them had, prior to providing their witness statements, read D's witness statement which recounted his background and what he was able to say about the convictions against him, in great detail. All of them expressed confidence in D, and several indicated that they would have no hesitation in leaving a child or grandchild in D's care. They considered that it would be completely out of character for D, as they have known him, to commit any offence against a child. From their observations of D with children, they saw no reason for concern about his continuing to have contact with children in the course of his work.

48 Captain Trainor was emphatic, and I accept, that D's position as a minister within the Salvation Army would be completely untenable if he were prohibited from having contact with children in the course of his work. That is so, notwithstanding that the primary focus of D's particular interests as a minister does not involve children. It is obvious, however, that any minister overseeing a congregation will necessarily need to be able to communicate, from time to time, with children within the congregation. An obvious example is a dedication service. Youth groups, of some form or another, are certain to comprise part of the usual activities of any congregation, and while A may generally take responsibility for those activities, it would be quite unrealistic to expect that D could completely avoid some degree of involvement. The very fact that, if a married person is to be an officer, the Salvation Army requires that both parties to a marriage be officers, demonstrates the requirement that both be involved in the activities in the congregation.

The psychological evidence

49 The applicant subjected himself to a psychological assessment by Dr Phil Watts, a clinical and forensic psychologist. Dr Watts provided a report on his assessment and gave evidence at the hearing. He interviewed D for in excess of two hours, and had him complete the Personality Assessment Inventory (PAI) which took a further hour. The PAI indicated a relatively normal functioning personality, with no significant pathology. The information obtained suggested that D had a relatively strong sense of self, was acknowledging of his antisocial history

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and showed high levels of empathy and stability. He was of average "dominance" and rated very high for "warmth". Dr Watts' clinical observations matched the test results.

50 In making an assessment of D's risk of reoffending, Dr Watts drew a distinction between what he termed "risk factors" and "danger factors". Risk factors are associated with an elevated risk of offending. In this case, those factors include "being a male, having own childhood abuse, learning difficulties, substance abuse, lack of empathy, mood disorder, and of most significance, previous sex offending". Dr Watts observed that some of those factors have changed with time, most notably substance abuse and lack of empathy and mood disorder. However, other factors such as a history of sex offences, childhood abuse, and being male, are static and cannot change with time.

51 Dr Watts said that danger factors are those which are likely to lead to the risk being translated to action. They include factors such as "current depression, current intoxication, current ideation (thoughts of offending, opportunity, anger and so on)". He expressed the view that, in this case, the danger factors are quite limited. He considered that there have been some significant changes on some of the risk factors, and that there was no evidence of any current danger factors. He noted the substantial passage of time since the convictions, and expressed the opinion that "the most exceptional factor has been D's conversion (both in terms of lifestyle and religion) and the consistency in living this conversion". He described that transformation as "a significant exception in terms of risk". He concluded that, while lack of risk can never be guaranteed, his assessment indicated that D "would have to be rated as a significantly lowered risk" and that his overall risk of reoffending is low.

52 In cross-examination, Dr Watts was asked whether there were other tests available for assessing the likelihood of reoffending. Reference was made to the "static 99", a test developed for Canadian child sex offenders within the prison system. It was not designed to assess risk after a 20 year interval from offending. Dr Watts suggested that he estimated that, if the static 99 test were administered to D, it might produce a figure of risk in the low/moderate range, which he estimated to be around 15% chance of reoffending.

53 The respondent's counsel placed some reliance on that evidence when making closing submissions. In my view, estimations of what might be the result of a test which Dr Watts did not administer, and which he does not consider appropriate for the circumstances, is of little

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assistance. The evidence does not support any reason to question the usefulness of the PAI administered by Dr Watts, particularly when, as in this case, it was used not as determinative of Dr Watts' assessment, but merely as one of the factors to which he had regard in reaching his ultimate conclusion that D represents a low overall risk of reoffending.

54 Counsel for the CEO also suggested, or at least implied, that Dr Watts' evidence should be given reduced weight because it represented the first occasion Dr Watts has considered the risk assessment for the purposes of an application for an assessment notice under the Act. That is hardly surprising given that the Act is relatively new, and this case is only the second so far brought to the Tribunal. Dr Watts' experience in risk assessment in relation to sex offenders in other contexts is quite extensive. He gave his evidence impressively, conscious of limiting his opinions to his area of expertise. I accept Dr Watts' evidence as objective and helpful.

The considerations under s 12(8)

55 Against the foregoing background, it is necessary to consider those factors set out in s 12(8) to which regard must be had in determining whether or not there are exceptional circumstances in the case. The first consideration mentioned is the best interests of children. While subsection (8) does not, in its terms, elevate that consideration above the others listed, as Barker J observed in C and Chief Executive Officer, Department for Community Development at [45] "nothing in s 12(4) or s 12(8) qualifies the principle set out in s 3 of the Act, … that the best interests of children are 'the paramount consideration' when the CEO or the State Administrative Tribunal performs a function under the Act". As it is the paramount consideration under the Act, it is preferable to deal with the consideration as to the best interests of children having considered the other circumstances enumerated in s 12(8).

When the offence was committed

56 In this case, the two offences occurred some time in 1980. The fact that 27 years have gone by with no further convictions is of significance although, by itself, that fact alone would not constitute an exceptional circumstance.

The age of the applicant when the offence was committed

57 The applicant was 25 years of age when the offences were committed. That was an age at which D should be held responsible for his

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actions. The applicant's age at the time of the offences is not a factor in his favour.

The nature of the offence and its relevance to child-related work

58 An offence of indecent assault against a young child is obviously highly relevant to child-related work. Despite the applicant's best efforts, little is known as to the precise nature and circumstances of the offence. As I have already observed, the penalties imposed suggest that it was at the lower end of seriousness for offences of its nature. That conclusion does not, however, reduce the relevance of the offence to child-related work, nor, by itself, constitute some unusual, special or uncommon circumstance.

59 Counsel for the respondent argued that more weight should attach to sub-paragraph (d) than any of the other factors enumerated in s 12(8). He argued that, because not all class 2 offences, by their nature, are relevant to child-related work (for example, some manslaughter or grievous bodily harm convictions may have little relevance to child-related work), the discretion should be seen as arising in those cases, rather than where, as here, the offence has a clear relevance to child-related work. The effect of the respondent's submissions in closing was tantamount to suggesting that the offences with which D was convicted should be treated as the Act requires class 1 offences to be treated. I do not accept that submission. The relevance to the offence to child-related work is obviously important. It is, however, one of the factors which the Act requires to be considered. Section 12(8) should not be construed as though a determination that an offence was relevant to child-related work necessarily leads to the conclusion that the issue of an assessment notice would be contrary to the best interests of children. The subsection requires that all factors be taken into account in exercising the discretion, subject to the paramount consideration of the best interests of children.

Other information given by the applicant in relation to the application

60 I have recounted above the information provided to the Tribunal by the applicant as to his lifestyle and circumstances when the offences were committed, and since that time. The change in D's lifestyle which occurred after 1991 is remarkable, and in my view is exceptional in the sense of being out of the ordinary course, unusual, special and uncommon. The change in lifestyle commenced in 1991 and has endured for over 15 years. The past 12 years of the applicant's life comprise a period of dedicated service to his community and to his faith. The long period of his consistent changed lifestyle suggests that any prospect of

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reverting to substance abuse, or otherwise reigniting the "danger factors" that no longer form part of his lifestyle, is minimal. If he were to relapse into a life of substance abuse and antisocial behaviour, it is unlikely he would maintain his position within the Salvation Army and thus continue the contact with children in relation to which the assessment notice is sought.

61 The applicant readily acknowledges the unacceptability of his past behaviour, and is conscious that, whatever may have been the particular circumstances of the offences, it must have had a significant effect on the victim.

62 It is relevant that a number of people aware of D's background, including his offences, hold him in high regard and consider that he now poses no risk to children.

63 It is also relevant that D's principal activities within this ministry do not directly involve, and are not focussed upon, children. Contact with children, in the sense described in the Act, is a somewhat material, but nevertheless essential, part of his work.

Anything else the Tribunal considers reasonably relevant to the decision

64 The opinion expressed by Dr Watts that D represents a low risk of reoffending is relevant to the decision, and I consider it to be an important factor in the assessment of the best interests of children in this case.

The best interests of children

65 The CEO accepts, in my view rightly, that an assessment of the best interests of children does not require a determination that there is no risk whatsoever of reoffending. As Dr Watts observed, the fact of being a male is itself a risk factor. That can never be removed as a risk factor. A previous conviction for a sexual offence against a child is in Dr Watts' view, a most significant indicator of a risk of reoffending. Given that the assessment of exceptional circumstances in s 12(8) can only arise where there has been a previous offence, the legislature cannot have intended that exceptional circumstances could only be established where it could be said that there was no risk to the interests of children.

66 It is possible in this case to identify that the work being done by D makes a positive contribution to the community, including children within families affected by D's ministry. The circumstances in which D has contact with children through the course of his work, the level of commitment to his work and its objectives, the extraordinary change in

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lifestyle in the time since these offences occurred, D's present age, and the strength of his relationship with his spouse all suggest that there is little if any prospect of inappropriate behaviour towards children. Rather, the evidence tends to suggest that permitting the applicant to continue in the role which he has so successfully undertaken for the past 12 years is in the interests of his community, and the children within it.

Conclusion

67 In the circumstances, having regard to all matters referred to in s 12(8), and with particular regard to the paramount interests of children, I am of the view that there are exceptional circumstances in this case which suggest that an assessment notice should be issued to the applicant.

Non-publication of D's name

68 At the beginning of the hearing, I made an interim order that the name of the applicant not be published to any person. That was made on an interim basis pending submissions from counsel for the parties in light of the evidence as it emerged during the hearing.

69 In C and Chief Executive Officer, Department for Community Development, Barker J discussed a number of authorities concerning the desirability of the administration of the law taking place in public. He also made reference to various decisions in other jurisdictions in relation to their equivalent to the Act. In C, it was ordered that the applicant's name not be published. That case involved an application where there had never been a conviction, but the case concerned a "non-conviction charge". His Honour said at [147]-[149]:

"147. In a case, such as the present case, where an applicant is successful in their review application, to publish their name can only have the consequence that persons not otherwise familiar with them and having no real reason to deal with them would be apprised of personal events in their past to which they would not otherwise be privy or easily able to discover. Because the Tribunal's decisions are ordinarily published to the internet on the Tribunal's website, the publication is very wide and very far. When successful in their review application, an applicant should be entitled to some consideration so far as their earlier conduct is concerned, especially where, as in the case of this applicant, they have never actually been convicted of a criminal offence for the conduct alleged against them.

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They should at least be accorded the right to live a useful life free from the burden of the public scrutiny they might otherwise receive. These considerations would appear to underlie the practice in Victoria and New South Wales not to publish an applicant's name in similar proceedings.

148. What the Tribunal owes the public by way of accountability in a case such as this, and the public is entitled to, is the publication of the Tribunal's decision and the reasons for the decision, so that the public can gain an understanding of why the Tribunal reached the decision it did. The identity of the applicant is not important to the public gaining a proper understanding of the reasons for the Tribunal's decision. In all probability, all that publication of the applicant's identity would do is prejudice the civil rights of the applicant in circumstances where the Tribunal has found there is no good reason to justify the issue of a negative assessment. This factor makes this type of case quite different from others where it simply does not arise.

149. The fact that the applicant's identity would have been known at the time of his trial and that the Court of Criminal Appeal published its decision on his appeal in 1999 without suppressing his name are factors that might also be taken into account. But, 10 years after the event, current public awareness of the applicant must be considerably diminished. Certainly it does not suggest that the making of a non-publication order now might not serve some useful purpose."

70 Justice Barker considered that, in those special circumstances, there was a greater public interest in not publishing the applicant's name than in publishing it. In my view, similar considerations apply in this case.

71 It was argued by counsel for the respondent that, if an assessment notice is to issue, it is in the public interest that people whose children may come in contact with the applicant should be aware of his past, so as to make an informed decision as to whether they wish that contact to continue. That, however, is not the general scheme of the legislation. As counsel acknowledged, if an application is dealt with by the CEO, s 39 of the Act protects the confidentiality of information obtained in the course of performing a function under the Act, and makes it an offence to

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disclose that information. Thus, if the CEO were to determine that exceptional circumstances exist in cases such as this one, an assessment notice would be issued with no publication of any reasons, and with no notice to anybody of the criminal past of the applicant. The hearing before this Tribunal is a hearing de novo on the merits in respect of which the Tribunal is required to reach the correct and preferable decision (State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27). As Barker J observed, publication of the Tribunal's decision, and its reasons, provide a form of accountability which enables the Tribunal to gain an understanding as to why the Tribunal reached the decision it did. That objective is achieved without disclosing the particular identity of the applicant. What is important is full disclosure of the reasons why the Tribunal reached a particular decision in the circumstances of a particular case. In my view, an applicant who successfully obtains review of the CEO's decision should not suffer the very significant prejudice of having his or her identity and background published to the world, where, if the correct and preferable decision had been made by the original decision-maker, that would not have occurred.

72 Pursuant to s 62(3) of the SAT Act, there should be an order that the name of the applicant not be published to any person because the publication of that information would be contrary to the public interest, and to the interests of justice.

Order

73 For reasons given above, the Tribunal orders that:

1. The review application is allowed.

2. The decision of the CEO under review is set aside.

3. The applicant is entitled to an assessment notice issued under s 12(6) of the Working with Children (Criminal Record Checking) Act 2004 (WA).

4. The CEO (or delegate) of the Department for Community Development takes such steps as are necessary to cause the applicant to be issued with an assessment notice under s 12(6) of the Working with Children (Criminal Record Checking) Act 2004 in accordance with this decision.

5. The name of the applicant is not to be published.

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6. The materials received by the Tribunal in support of the application are not to be published.

I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT