DJR v Children's Guardian

[2018] NSWCATAD 172

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DJR v Children's Guardian [2018] NSWCATAD 172

Hearing dates:

30 July 2018

Date of orders:

06 August 2018

Decision date:

06 August 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Anderson, Senior Member
Emeritus Prof P Foreman AM, General Member

Decision:

(1) The time for filing the application is extended to 28 February 2018.

 

(2) The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the two offences of unlawful carnal knowledge of a child under 16 years pursuant to section 215 (1) of the Criminal Code Act 1899 (Qld) to which he pleaded guilty on 9 September 2008.

 

(3) Pursuant to subsection 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a working with children check clearance.

(4) 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.

Catchwords:

ADMINISTRATIVE LAW-Working with Children Check Clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW)- where disqualifying offence under s 215 Criminal Code (Qld) being an offence carnal knowledge of girls under 16 – assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children - where onus of proof discharged by applicant- where enabling order granted.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)
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)
Children and Young Persons (Care and Protection) Regulation 2012 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

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
BFX v Children’s Guardian [2014] NSWCATAD 115
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 (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] NSWSC 1602
BKV v Children’s Guardian [2015] NSWCATAD 65
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
BYR v Children’s Guardian [2013] NSWADT 310
Carr v Simnovic (1980) 26 SASR 263
CHB v Children’s Guardian [2016] NSWCATAD 214
Children’s Guardian v BQJ [2016] NSWSC 869
Children’s Guardian v CKF [2017] NSWSC 893
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
CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262
Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378
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
R v Commission for Children and Young People [2002] NSWIRComm 101
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88
Re Sophie (No 2) [2009] NSWCA 89
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
SL v Secretary, Department of Family and Community Services
Smith v Commissioner of Police [2014] NSWCATAD 184
SS v Department of Human Services (NSW) [2010] NSWDC 279
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
T v H and Ors [1985] NSWSC, Unreported 19/12/1985
Tilley v Children’s Guardian [2017] NSWCA 174

Category:

Principal judgment

Parties:

DJR (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel/Advocates:
J Allan (Applicant)
A Douglas-Baker (Respondent)

  Solicitors:
Legal Aid NSW (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2018/00066519

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. This is an application commenced on 28 February 2018 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) (“the Act”). The Children’s Guardian informed the applicant, who is referred to as “DJR” in these proceedings, on 21 December 2017 that due to being convicted of a disqualifying offence as specified in clause 1 (1) (z) of schedule 2 of the Act, being two counts of unlawful carnal knowledge of a girl under 16 years contrary to section 215 of the Criminal Code Act 1899 (Qld), he was not eligible to be granted a Working with Children Check Clearance. The applicant pleaded guilty and was sentenced on 9 September 2008 without the court recording a conviction, to perform 120 hours of unpaid community service, and was released under the supervision of Corrective Services for a period of 12 months’ probation.

2. An order has been made pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication and disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal. 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. A further similar order will be made as part of this decision. The disclosure of that information is likely to cause distress and further harm to the victim. Because the victim will be identified if the applicant’s name is used, due to their relationship, his identity will also be prohibited from publication and disclosure. The interests of justice are better served by the prohibition of that publication and prohibiting disclosure than by promoting the open justice principle. This weighting of the scales in favour of prohibition of publication of identifying information is recognised by the statutory prohibitions in NSW legislation prohibiting disclosure of the identity of children who are involved in an application to the Children’s Court, and the provisions relating to criminal proceedings involving a child victim: see section 105 Children and Young Persons (Care and Protection) Act 1998 (NSW); section 578A of the Crimes Act 1900 (NSW); section 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

3. The applicant was advised that he was a disqualified person on 21 December 2017 and the application for an enabling order under section 28 of the Act was filed on 28 February 2018, which was not within the time permitted. An extension of time within which to file the application has been extended to 28 February 2018.

4. The matter was heard on 30 July 2018. The applicant was legally represented.

5. The applicant seeks an enabling order under section 28 (1) of the Act which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The applicant wishes to work as a volunteer with a charity. An enabling order would permit the applicant to work with children in any child-related work in a paid and voluntary capacity even though the applicant seeks the order for a limited purpose. The respondent opposes the application for an enabling order and the grant of a Working with Children Check Clearance.

6. The offences with which the applicant was charged and to which he pleaded guilty occurred in Queensland in 2007 when the applicant was aged 24 years. The applicant is now aged 35 years. The offences will be described in more detail under the appropriate heading determined by section 30 of the Act.

7. The ultimate conclusion of the Tribunal is that the applicant should obtain a working with children check clearance because he has discharged the onus to prove that he does not pose a real and appreciable risk to the safety of children. The reasons for this decision are set out in more detail in the following paragraphs.

The Evidence

8. The documentary evidence provided on behalf of the applicant and the respondent, and received by the Tribunal is as follows:

1. Affidavit of the applicant to which is annexed a report by his psychologist in 2008 identifying that he has Asperger’s syndrome and higher functioning autism and DNA testing which shows he is not the father of the child conceived by the victim: Exhibit 1;

2. Affidavit of a former employer of the applicant: Exhibit 2;

3. Psychological Assessment Report by Laura Durkin dated 25 May 2018: Exhibit 3;

4. Copies of the charges and sentencing remarks in the District Court Queensland: Exhibit 4;

5. Applicant’s criminal history in Queensland: Exhibit 5;

6. Submissions of the applicant dated 5 June 2018: Exhibit 6;

7. Administrative review application form filed 28 February 2018: Exhibit 7;

8. Evidence filed by the respondent on 21 June 2018: Exhibit 8;

9. Submissions of the respondent filed 20 July 2018: Exhibit 9.

9. The applicant gave oral evidence and was cross-examined. The psychologist, Laura Durkin, was questioned and gave evidence by telephone.

10. The Tribunal received oral submissions in addition to the written submissions already provided by the parties.

11. A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.

Legislative provisions

12. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. The application to the Children’s Guardian was dated 2 December 2017.

13. In CHB v Children’s Guardian [2016] NSWCATAD 214 the Tribunal held that section 30(1A) of the Act applies where the Children’s Guardian has made a decision to cancel a person’s Working with Children Check Clearance after the commencement of the amendments and the application for review is made after the commencement of those amendments.

14. The Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW) amendments to the Act commenced on 25 October 2016. In particular the amendments made to section 30(1) do not apply to or in respect of a review (or an appeal arising from a review) if the review commenced before that amendment and that provision, as in force immediately before that amendment, continues to apply to and in respect of any such review or appeal: Schedule 3 Part 5 clause 25 of the Act. This review commenced after the commencement of those amendments.

15. The Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) (“2018 Amendment Act”) was given assent on 18 April 2018 and relevantly for this review the amendment to subsection 30(1)(h) and insertion of subsection 30(1)(i1) of the Act both commenced on 1 June 2018. Section 5B of the Act was inserted at the same time and commenced at the same time. There were no transitional provisions in the 2018 Amendment Act. Because of the terms of section 30 of the Interpretation Act 1987 (NSW) the amendments will be applied: see SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 per Basten JA (with whom Ward and Simpson JJA agreed) esp. at [33]-[36]. None of those amendments purport to affect or vary in any material way any rights, liabilities, or obligations of any person but simply specify existing factual matters which must be taken into account by the Tribunal. The antecedent factual matters are the basis for making a determination as to the future grant of the Working with Children Check Clearance by way of an enabling order: see also Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31, per Jordan CJ; Robertson v City of Nunawading [1973] VR 819 at 824, per Victorian Full Supreme Court; Re A Solicitor’s Clerk [1957] 1 WLR 1219; La Macchia v Minister for Primary Industry (1986) 72 ALR 23 (Full Court of the Federal Court); Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856. The presumption against retrospectivity does not apply in these circumstances. This determination is also appropriate since the nature of the application and the issue the Tribunal is to decide in these proceedings is whether the applicant has discharged the onus to prove that he does not now pose a risk to the safety of children. This determination is also consistent with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214.

16. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a Working with Children Check Clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.

17. The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act.

18. There is no relevant definition of “child abuse” contained in the Act.

19. However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children’s Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of “child and young person abuse” has been included in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence 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”

20. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows:

“The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.”

21. This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition of abuse contained in section 4 (1) of the Family Law Act 1975 (Cth).

22. 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."

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

24. "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.” That is the circumstance in relation to the applicant. The disposition of the proceedings in Queensland falls within the definition of ‘conviction’ under the Act.

25. The definition of "risk to the safety of children" is a reference to a real and appreciable risk to the safety of children: section 5B of the Act.

26. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, at the time of the offences. The offences with which the applicant was charged were offences where he had sexual intercourse with a person under the age of 16 and therefore the offence is relevant to the risk he may pose to children, in the circumstances referred to later in these reasons. The offences with which the applicant was charged and convicted fall within clause 1(1)(z) of Schedule 2 of the Act. Therefore, the applicant is treated as a “disqualified person”. By reason of section 18 (1)(a) of the Act the Children’s Guardian must not grant a Working with Children Check Clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act.

27. The applicant seeks a Working with Children Check Clearance to work with children because he wants to be permitted to work in charitable and voluntary work where he may come into contact with children.

28. An enabling order is therefore sought pursuant to section 28 of the Act which provides in this matter:

“28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an

"enabling order" ). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order" ). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person's clearance has been cancelled under section 23,

because the person is a disqualified person.

(4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

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

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance.

(6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children's Guardian in accordance with the Tribunal's order.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.”

29. The respondent, it is to be observed, is a necessary party to the proceedings pursuant to section 28 (4) of the Act. The Children’s Guardian is not permitted to grant an enabling order and must refuse the application because of the conviction which renders the applicant a disqualified person.

30. A person is not permitted to engage in “child-related work” unless they hold a Working with Children Check Clearance: see section 8 of the Act. There is no issue in this matter that the applicant wishes to potentially engage in child-related work which therefore requires that the applicant obtain a Working with Children Check Clearance.

Standard of Proof and Onus of Proof

31. It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995; BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J at [33]; Children’s Guardian v BQJ [2016] NSWSC 869, per Button J at [63]; CJT v Office of the Children’s Guardian [2016] NSWSC 738, per Fullerton J at [34].

32. Untested allegations and the manner in which the Tribunal is to approach them has recently been considered in Children’s Guardian v CKF [2017] NSWSC 893 and by the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174.

Required Considerations

33. The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. Those matters are relevantly for this application:

“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 criminal history and the conduct of the person since the matters occurred,

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

(i1) any order of a court or tribunal that is in force in relation to the person,

(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.”

34. These provisions were recently amended as observed earlier in these reasons. The amendments are included in the extract.

35. The Children’s Guardian received information pursuant to section 31 of the Act from various government agencies, including the police and the courts. That information was tendered in evidence.

36. It must also be observed that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Child Protection (Prohibited Employment) Act 1998 (NSW): BKE v Office of the Children’s Guardian, at [4], [25], [27].

37. The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.

The Issues

38. The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and whether there is sufficient evidence to rebut the presumption that he poses a risk to the safety of children: section 28 (7) of the Act; BKE v Office of the Children’s Guardian [2015] NSWSC 523, at [25]. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

39. The discussion which follows is repetitive of matters set out in other judgments of the Tribunal, but is set out again in these reasons in order to provide the parties with a considered basis for the decision which follows from a consideration of the evidence in this matter. Additionally, it is recognised that a party aggrieved by a decision made under the Act 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; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126; BKE v Office of the Children’s Guardian; Children’s Guardian v BQJ [2016] NSWSC 869. The law applied to this decision is therefore set out in these reasons. The submissions of the parties also identified these principles.

40. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “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 69, 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); BKE v Office of the Children’s Guardian [2015] NSWSC 523 per Beech-Jones J esp at [26], [27].

41. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

...

[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. 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.

42. In the matter before the Tribunal the applicant has been convicted of offences referred to in Schedule 2 of the Act. The fact that the applicant pleaded guilty to the offences enables the Tribunal to conclude that there is no reasonable doubt that the events which are the elements of the offences occurred, despite any assertions by the applicant as to the contrary.

43. In Children’s Guardian v CKF [2017] NSWSC 893 Justice Davies agreed that the correct approach to risk is as outlined by the High Court in M v M and the discussion referred to by Justice Beech-Jones extracted earlier in these reasons. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406, Justice Harrison considered what use could be made of events where the Tribunal had a lingering doubt or suspicion remains. That would appear to be of little relevance in this particular matter. In addition, the Court of Appeal in Tilley v Children’s Guardian [2017] NSWCA 174 considered that a number of similar allegations, in different locations, and from apparently entirely independent complainants is material upon which the Children’s Guardian and the Tribunal are entitled to act, or more practically may lend some weight to other risk factors.

44. The Tribunal is required to consider the evidence which is presented by the parties in accordance with the Act. The determination of the weight which can be given to any particular allegation or evidence, despite or because of the source from which it emanates, is ultimately a matter for the Tribunal.

Other matters

45. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act 2013 (NSW) or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: sections 38 Civil and Administrative Tribunal Act 2013 (NSW); Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

46. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offences which resulted in the convictions: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any criminal charges or reports of behaviour which may impact upon the risk assessment are also able to be considered, if considered appropriately relevant, for the same reasons.

47. The Administrative and Equal Opportunity Division (“AEOD”) of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the Civil and Administrative Tribunal Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.

48. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130]. The applicant has already been punished for the criminal matters.

Consideration of the evidence

49. The evidence received by the Tribunal is required to be considered under each of the eleven subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. Some of the subsections may be thought less relevant and may be given less weight than others. However, each of the subsections is to be considered. That evidence is now set out under each of the relevant statutory provisions as subheadings in these reasons.

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

50. The disqualifying offences occurred when the applicant was living in a rural Queensland town. The victim also lived in that town. The applicant pleaded guilty to the offences admitting that he had sexual intercourse with the victim while she was under the age of 16 years on the two charged occasions. The matter came to police attention because the victim’s mother contacted the police. The victim became pregnant and that is apparently the reason the mother contacted the police. A subsequent DNA test established that the applicant was not father of the child. The applicant participated in an interview with the police in which he admitted to having sexual intercourse with the victim.

51. The victim was 14 years at the time of the first offence and 15 years of age at the time of the second offence. The applicant was aged 24 years at the time of both disqualifying offences. The applicant stated that he had sex with the victim three or four times and the victim said that they had sex on seven or eight occasions. There is now some dispute as to whether the applicant knew that the victim was underage and therefore could not legally consent to sex with him. At the time of the offences it would appear that the applicant knew the victim’s age and told police that they were in love and that he always respected her. The applicant affirmed in his affidavit to the Tribunal that he did not know the age of the victim until later. The applicant says that he made the offer for her to stay in his unit because they were friends. The victim and the applicant lived together in his unit because she was “kicked out of home by her mother” and had apparently already suffered a miscarriage before she met the applicant so the victim had nowhere else to stay. Since the applicant pleaded guilty to the offences the Tribunal is entitled to find that the victim was truly underage whether the applicant knew it or not at the time of the offences. The contemporaneous material including the sentencing remarks support the view that the applicant also knew that the victim was underage at the time that the matter was in court. The applicant gave evidence at the hearing that his memory is patchy and can’t remember some major occurrences in his life even events which took place as recently as four weeks ago. The applicant now understands if he didn’t before that it is illegal to have sexual intercourse with someone under the age of 16 years.

50. The applicant now says that he would have stopped that relationship which gave rise to the offences if he knew it was illegal at the time. Because the applicant’s diagnosis and the testing which was undertaken by the psychologist show that the applicant’s working memory index and processing speed index scores were in the low average range, there is support that the applicant’s current memory of events some 11 years ago is likely to be inaccurate.

51. This relationship was the applicant’s first sexual relationship but it would appear it was not the victim’s first or only relationship at the time that she lived with the applicant. Indeed, it was submitted during the course of the sentencing that the victim was “streetwise” and it would appear that the applicant is not and based upon his diagnosis and presentation probably never will be worldly wise.

52. The conduct and the offences are serious. The Children’s Guardian submitted that the disqualifying offences are at the lower end of the scale of seriousness because the offences occurred in the context of a mutually desired relationship where there was no coercion by the applicant or violence in the context of the sexual offences. That submission is accepted. The sentencing by the trial judge was clearly at the low end of the range of sentencing options.

53. The Children’s Guardian also submitted that the lack of candour in this application on the part of the applicant is a matter of concern. For the reasons already given it is doubtful that any weight can be placed upon the applicant’s faulty memory and his current understanding of what happened 11 years ago.

54. Because of the applicant’s social isolation as a result of his underlying autism spectrum disorder and general avoidance of social interactions the applicant was at the time of the offence and remains socially unsophisticated. The victim showed a refreshing interest in the applicant to which he responded inappropriately and for which he may be vulnerable in the future, as identified by the psychologist. However, the applicant impressed as unlikely to actively seek out and has minimal skills to achieve a relationship where he is likely to reoffend with a person under the age of 18 years. The applicant has had a further relationship with a woman in around 2017. That relationship ended when she stayed with the applicant in his current living environment and it is said that he had difficulty understanding her emotions.

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

57. The offences occurred nearly 11 years ago.

58. Since then the applicant has been employed in a veterinary practice which ceased in approximately 2014. The applicant obtained qualifications through TAFE in animal care. There are apparently no avenues of employment in this area in the rural town in which the applicant currently lives. Subsequently the applicant also completed certificates in Information Technology.

59. The applicant moved from Queensland to rural New South Wales and lives in a town close to the rural town in which his parents currently live. The applicant has no prospects of employment on a farm.

60. The applicant was assaulted in 2007 by a person who is known to the victim of the offences about which the applicant was found guilty. The assault was reported to the police and the perpetrator of that assault was convicted. The applicant was then assaulted by the brother of that perpetrator and two other men. The applicant suffered a broken jaw (in two places) in the second assault and afterwards went to live with his parents.

61. The diagnosis of autism spectrum disorder was made in 2008 and is considered of mild severity. The applicant has a general cognitive ability within the average range of intellectual functioning. This diagnosis has been and will remain a lifelong condition. In other words, the applicant had this disorder at the time of the offences and it is unlikely to change in the future.

62. The applicant currently attends a disability support group in his local area two or three days a week for various recreational activities. The applicant has also volunteered in a charitable organisation’s shop where he tidied the premises and help to count the money.

63. The applicant has not been reported to have exhibited any recent tendencies for illegal or antisocial activities.

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

64. The applicant was aged 24 years at the time of the disqualifying offences.

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

65. The victim of the disqualifying offence was aged between 14 and 15 years.

66. The victim was said to be streetwise and was not living at home with her parents, not attending school, and had fallen pregnant and suffered a miscarriage prior to meeting the applicant. It is unlikely that the applicant knew all this before he met the victim. The applicant offered the victim accommodation because she was homeless. The sexual relationship between them did not develop until some time after she started living with him. The victim was vulnerable because of her circumstances and her age.

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

67. The difference in age between the victim and the applicant is about 10 years.

68. Initially the relationship between the victim and the applicant was friendship. The victim found a ready listener in the applicant and was apparently able to show an interest in him which he found novel in his rural social situation and because of his diagnosis which make it hard for other people to communicate with him at an emotional level. The applicant was largely ignored by his peers and he cared little about engaging with people who didn’t want to engage with him.

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

69. The applicant more probably than not knew at the time of the offences that the victim was a child under the age of 16 years. The applicant pleaded guilty to the fact that she was under the age of 16. However, the applicant found it difficult to recall when it was he found out that she was underage and has apparently reconstructed a version of his knowledge which is exculpatory but erroneous.

70. The applicant could reasonably have known that the victim was a child.

The person’s present age

71. The applicant is currently aged 35 years.

The seriousness of the person's criminal history and the conduct of the person since the matters occurred

72. The applicant was convicted of the disqualifying offences which are considered to be serious.

73. The applicant has been the victim of other criminal offences, notably an assault causing a broken jaw. The applicant also apparently created a noise nuisance in his neighbourhood by playing loud music.

74. The applicant has involved himself in volunteer activities which are considered prosocial and provide some interpersonal interactions in the disability support group for him although Ms Durkin refers to them as “friends of convenience”.

75. The applicant apparently spends significant periods of time playing computer games such as “Call to Duty” and other popular online games. The applicant says that he does not use an avatar and has no camera. The applicant finds it easier to make friends online and it is presumed that most of them will be younger than him because of the demographic and skill levels required by those games. The applicant told Ms Durkin that even online peers his own age are disinterested in socialising with him.

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

76. The applicant relies upon Ms Durkin’s opinion as to the likelihood of his reoffending.

77. Ms Durkin assessed that the applicant has minimal experience in relationships and has some naiveté in his functioning in that domain. Based upon his self-report the applicant has a minimal sex drive. Apart from the two relationships referred to earlier in these reasons the applicant has apparently not engaged in sex with any other person because he has no interest in sexual contact. The applicant claims to have no interest in sexual engagement and experiences no urges for sexual gratification including masturbation, which he has not engaged in for a period of years, according to his report. The applicant told the psychologist that he is not particularly attracted to, or aroused by, anyone and he denied being sexually aroused by children or young people. The applicant has viewed pornography and reported that he did not become aroused when he viewed pornography in the last 12 months. The profile of the applicant is thus one of a person with little interest in sexual activity. The applicant did not report any deviant sexual interests to the psychologist.

78. In addition to the report by Ms Durkin there was available the earlier report which diagnosed the applicant with autism spectrum disorder (as it now is properly named, which subsumes Autism and Asperger’s syndrome listed separately in previous psychiatric manuals).

79. The Tribunal is 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.

80. An indicator of future behaviour generally is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.

81. The Tribunal is aware of the caution which should be attached to risk assessments by psychiatrists and psychologists and general cautions reiterated by respected experts as extracted for example in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] and BKV v Children’s Guardian [2015] NSWCATAD 65, at [99]; BQK v Children's Guardian [2015] NSWCATAD 265 at [65], [66]; BZU v Children’s Guardian [2016] NSWCATAD 3 at [91]-[92].

82. The use of actuarial risk assessments is not indicative of how one individual will perform relative to the group which was studied to create the actuarial instrument. Most importantly, risk assessments are limited by the information or data available and can change with the passage of time. As new information becomes available the risk assessment may change. Inherently, risk assessments have a margin of error built into those assessments. The research concerning the superiority of risk assessment over unstructured clinical judgment is only moderately valid. It is therefore said that multiple sources of data provide the best assessments of actual risk, rather than reliance only upon a formal risk assessment. The benefit of structured risk assessments is that they attempt to restrict the possibility that prejudice and “gut feeling” play a determinative role in making a judgment.

83. Ms Durkin also acknowledges the caution which should be attached to risk assessments utilising similar terminology to that expressed in the previous two paragraphs of these reasons: Exhibit 3 [58].

84. Ms Durkin utilised the Static-99R risk assessment tool. Utilising this tool the applicant received a total score of two, which places him at the Risk Level III or average risk for being charged with/convicted of another sexual offence within five years from now. It is Ms Durkin’s opinion that the score overestimates the applicant’s static risk. This overestimate of risk is primarily because of the lapse of time since the initial offending and the applicant has been offence free since that time. Also, significantly the applicant has been sanctioned for the offence.

85. Ms Durkin also utilised the Risk for Sexual Violence Protocol (RSVP), developed by Hart, Kropp, Laws, Klaver, Logan and Watt (2003) to assess the applicant’s level of dynamic risk. An analysis utilising the RSVP allowed Ms Durkin to suggest that the applicant poses a low rate of re-offence. The following matters were identified by Ms Durkin as risk factors in the applicant’s case:

• “the diagnosis of ASD and the impact of those symptoms on [the applicant’s] functioning have a significant influence on his offending in that he lacks the social sophistication, understanding and abilities as a result. That will remain a concern for the future, if not managed, because ASD is a lifelong condition.

• [The applicant] has previously only engaged in inappropriate and/or unstable partnerships, which appear to have been relatively superficial. He appears to also lack the social sophistication and skills to engage in partnerships. At present, [the applicant] reports no interest in securing a sexually intimate relationship in the future.

• Due to [the applicant’s] social difficulties, he has apparently struggled to establish, secure and maintain peer connections and he has engaged with age inappropriate friends.

• [The applicant] has only once maintained stable employment, otherwise comprehension and social issues have caused difficulties with his occupational engagement. [The applicant] is currently unemployed.”

86. Ms Durkin also assessed that there are a number of protective factors which she viewed as offering “a moderate to high level of protection against future sexual offending and that there are few relevant areas where improvement or change may be beneficial.” Exhibit 3 [67]-[69].

87. The applicant is overall assessed by Ms Durkin to be in the low risk category.

88. Of significance is the fact that the applicant has been offence free in the community, he has learned since the offence the appropriate age of consent, and he reports a lack of interest in engaging in a sexual relationship. Since the offence the applicant has also increased his social participation and has apparently improved his abilities in that domain.

89. The applicant told the psychologist that he is overly cautious when in the company of women and not just young women. It is a feature of the applicant’s risk management that he utilises social avoidance to minimise the chance of him encountering issues with females in the future which also reflects his autism spectrum disorder behaviours. Significantly though, the applicant does not see socialising with people, whether online or otherwise, younger than himself may place him at risk of reoffending. The applicant stated in his evidence to the Tribunal that if he wanted to meet anyone in person as a practical matter he would have to utilise the skill set of his mother to arrange that.

90. Ms Durkin provided the following summary of her opinion, at Exhibit 3 [79]:

“It is my opinion that [the applicant] has a low risk of reoffending. His time offence free in the community, the education he has received since the offending, his use of preventative strategies for risk management and a reported lack of interest in sexual engagement reduce his risk further. The outstanding issue in [the applicant’s] case is the potential for him to engage in inappropriate decision-making and relationships, with individual (sic) of any age, due to his ASD, but he is aware of that issue and is seemingly vigilant.”

91. Ms Durkin expressed the opinion that the applicant poses no appreciable risk to children. Also, the fact that the applicant is engaged with a disability support group and through that program he is developing life skills including enhanced interpersonal skills, which will help manage and improve the deficits in his interpersonal functioning. The improvement will continue provided he remains an engaged member of the community. This functioning is likely to improve particularly if he remains active in the community through volunteering. To do that, he requires a Working with Children Check Clearance.

Any order of a court or tribunal that is in force in relation to the person

92. The applicant is not the subject of any current order.

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

93. The applicant has provided relevant information in relation to the application which is referred to elsewhere in these reasons.

Any relevant information in relation to the person that was obtained in accordance with section 36A

94. The applicant’s criminal history from Queensland is contained in Exhibit 5. That record discloses the conviction for the offences to which the applicant pleaded guilty. There is no information provided from any relevant child protection authority in Queensland or any other State concerning working with children clearances.

Any other matters that the Children’s Guardian considers necessary

95. The Children’s Guardian made submissions addressing matters the Children’s Guardian considers necessary.

96. The Children’s Guardian submits that the applicant should not be granted an enabling order.

Consideration and determination

97. The applicant has been convicted of offences which render him a disqualified person for the purposes of the Act. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms for the protection of children from sexual activity with significantly older people. The offending was at the lower end of seriousness for the range of offending.

98. The behaviour, if repeated, would do significant harm to any victims. The paramount principle under the Act includes protection of children from suffering abuse.

99. The applicant is presumed to pose a real and appreciable risk to children. The disqualifying offences were clearly directed towards a child. The offending behaviours therefore are relevant to the assessment of risk to children.

100. Remorse on its own is not considered to be a factor that mitigates risk. It is not possible to ascertain whether the applicant has expressed remorse for his transgression. It is clear that the applicant regrets the aftermath of his involvement with the victim and has learned valuable whole of life lessons from that experience.

101. 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.

102. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.

103. The applicant is overall assessed by Ms Durkin to be in the low risk category. Ms Durkin took into account all the relevant factors. In cross-examination Ms Durkin was able to answer the questions which were raised in a thoughtful and considerate manner. Subject to the caveat which is attached to risk assessments generally, there does not appear to be any reason to discount this assessment. The Tribunal agrees with this assessment.

104. Ms Durkin expressed the opinion that the applicant poses no appreciable risk to children. Despite the historical existence of the offences the applicant appears to have remained offence free now for a sufficiently lengthy period of time to be able to say that the risk he did pose has diminished with the passage of time and due to his further socialisation. It is a finding by the Tribunal on the balance of probabilities and having regard to the matters previously discussed in these reasons that the applicant currently does not pose an appreciable risk of harm to the safety of children.

105. The fact that the applicant is engaged with a disability support group and through that program he is developing life skills including enhanced interpersonal skills, which will help manage and improve the deficits in his interpersonal functioning is a protective factor. The improvement will continue provided he remains an engaged member of the community. This functioning is likely to improve particularly if he remains active in the community through volunteering. To do that, he has been asked to obtain a Working with Children Check Clearance. It is true that the applicant could work in other activities where he does not require a clearance. However, he has applied for the clearance because of his desire to work in a particular area. It is in the public interest for that to occur.

97. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his behaviour with children.

98. The applicant has discharged the onus to prove that he does not now pose a risk to the safety of children. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that the applicant currently does not pose a risk to children.

99. The Tribunal agrees with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214 at [109]-[124]. The provisions of section 30 (1A) of the Act apply to this application.

Whether a reasonable person would allow his or her child to have contact with the applicant contemplated by subsection 30(1A)(a)

109. The Tribunal is required to consider subsection 30(1A) of the Act in the event that the Tribunal considers that the applicant does not pose a risk to children. That subsection provides that the Tribunal may not make an order under this Part of the Act which has the effect of enabling a person, or the affected person, to work with children in accordance with this Act unless the Tribunal is satisfied that:

1. 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

2. it is in the public interest to make the order.

110. The Tribunal has previously considered this provision in CSZ v Children’s Guardian [2017] NSWCATAD 57, where an enabling order was made, and in CHB v Children’s Guardian [2016] NSWCATAD 214 where the applicant had a clearance cancelled by the Children’s Guardian and the Tribunal confirmed that decision. It was observed that analogous to the Victorian legislative scheme, the matters in s 30(1A) of the Act and its Victorian equivalent need to be considered once the risk test has been satisfied: see ZZ v Secretary, Department of Justice [2013] VSC 267. Therefore, the Tribunal will consider the provisions of section 30 (1A) of the Act in that context.

111. The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse".

112. 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."

113. In CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 the Tribunal dealt with the ‘reasonable person test’. At paragraph [73] the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

114. The affidavit from the applicant’s previous employer (Exhibit 2) states at par [14]:

“At no times have I ever held any concerns about [DJR] having unsupervised contact with my children, in both work and social settings.”

115. The Tribunal is satisfied that a reasonable person would allow his or her child to have the contact with the applicant contemplated by s 30(1A)(a), because that person would be acquainted with all the relevant facts about which the Tribunal is aware. The applicant has been offence free and not the subject of any complaints of inappropriate conduct since the offences which rendered him a disqualified person. The reasonable person would now also be aware of the expert assessment by Ms Durkin and the protective factors to which she has referred.

Public Interest: section 30(1A)(b) of the Act

116. The Tribunal has considered the public interest test in a number of decisions including CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262. It was noted in that decision at [75] referring to Smith v Commissioner of Police [2014] NSWCATAD 184, that “the concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests”.

117. The decision of the Victorian Court of Appeal in Secretary, Department of Justice v L M B; Secretary, Department of Justice v P M Y [2012] VSCA 143 at [24]-[37] referred to the following matters:

[24]   As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[7]

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[8]

[25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’.[9] The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.[10]

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

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

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

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

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

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

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

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

[30]   Thus, it is not sufficient for the Secretary to hypothesise a factor which might be potentially relevant to the Tribunal’s decision and then show that the Tribunal did not consider it. The Secretary must demonstrate that the Tribunal was bound to have regard to the factor identified by her and that it failed to do so.[11]

[31]   In the present cases, it cannot be said that the factor of ‘public confidence in the assessment of persons as suitable for child-related work’[12] necessarily required consideration once it was concluded that the applicants did not objectively pose an unjustifiable risk to the safety of children.

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

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

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

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

[36]   Fifthly, insofar as it was hypothesised that the Tribunal should have regard to likely public perceptions of the exercise of its discretion without any public knowledge of the facts of the case or the reasons of the Tribunal, we do not see how such a consideration could rationally be given weight.[13] Such an approach would require the Tribunal to effectively disregard its own view of the merits of the case upon the evidence for fear of uninformed public sentiment.

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

(footnotes references omitted)

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

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

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

119. It is thus necessary to consider in the circumstances whether it would be in the public interest to make an order. The Tribunal observes that the public interest is not a confined concept. It is the Tribunal’s determination that for the reasons which have been stated earlier and having regard to the objects of the Act and section 4 of the Act and having regard to the considerations extracted from the discussion of public interest in the Victorian decisions, it would be in the public interest to make an order enabling the applicant to work with children in accordance with the Act. The public interest would be served by permitting the applicant to engage in prosocial work where there is assessed to be minimal risk posed by the applicant reoffending.

120. There is sufficient material as referred to earlier in these reasons provided to the Tribunal which would allow a finding that it would be in the public interest to grant an enabling order to the applicant.

Conclusion

121. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is concluded that the applicant does not pose a risk to the safety of children and should receive a Working with Children Check Clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The evidence has discharged the onus to prove that the applicant is not such a risk.

122. It is determined to be in the public interest to grant an enabling order. Additionally, a reasonable person who knew the complete circumstances of the applicant’s history would allow his or her child to have direct contact with the applicant without it being directly supervised by another person, if the applicant was engaged in any child-related work.

Order

123. The order of the Tribunal is that:

1. The time for filing the application is extended to 28 February 2018.

2. The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the two offences of unlawful carnal knowledge of a child under 16 years pursuant to section 215 (1) of the Criminal Code Act 1899 (Qld) to which he pleaded guilty on 9 September 2008.

3. Pursuant to subsection 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW), the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.

4. 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.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 August 2018