DLU v Children's Guardian

[2019] NSWCATAD 8

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DLU v Children's Guardian [2019] NSWCATAD 8
Hearing dates:	24 August 2018
Date of orders:	04 January 2019
Decision date:	04 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member S Davison, General Member
Decision:	(1) The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 14 May 2018 is refused and dismissed. (2) With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 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 section 91H(2) of the Crimes Act 1900 (NSW) disseminate child abuse material – 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 not discharged by applicant - where enabling order refused.
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Cited:	Administrative Decisions Review Act 1997(NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed) Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Children and Young Persons (Care and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) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (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) Family Law Act 1975 (Cth)
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 BGX v Children’s Guardian [2014] NSWCATAD 173 BHL v Children’s Guardian [2015] NSWCATAD 46 BHY v Children’s Guardian [2015] NSWCATAD 91 BJB v NSW Office of the Children's Guardian (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 CHT v Children’s Guardian [2016] NSWCATAD 203 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 Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 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 DHB v Children’s Guardian [2018] NSWCATAD 123 Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856 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 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 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 A Solicitor’s Clerk [1957] 1 WLR 1219 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 Robertson v City of Nunawading [1973] VR 819 SL v Secretary, Department of Family and Community Services 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
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DLU (Applicant) Children’s Guardian (Respondent)
Representation:	Advocates/Counsel: DLU (Self Represented) (Applicant) R Dart (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00166590
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 14 May 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 “DLU” in these proceedings, on 23 February 2018 that due to being charged with (and subsequently being found guilty of) a disqualifying offence as specified in clause 1(1)(n) of schedule 2 of the Act (being disseminating child abuse material contrary to section 91H(2) of the Crimes Act 1900 (NSW)), his then current clearance was required to be cancelled pursuant to section 23 of the Act, and he was not eligible to be granted a Working with Children Check Clearance. The applicant was sentenced in April 2018 to a good behaviour bond pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence in April 2018.

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 naming of the applicant is likely to identify the female victim. 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 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: 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 of the cancellation of his Working with Children Check Clearance by the Children’s Guardian on 23 February 2018 and the application for an enabling order under section 28 of the Act was filed on 14 May 2018, which is not within the time permitted. On 5 July 2018 the Tribunal extended time within which the applicant could lodge his application to the date it was actually filed, that is 14 May 2018. In his argument for an extension of time to apply for the enabling order, the applicant primarily relied upon the fact that the criminal proceedings were not completed until April 2018.

4. The matter was heard on 24 August 2018. The applicant was not legally represented. The Tribunal is aware that the applicant had the opportunity to consult a Legal Aid duty solicitor on 5 July 2018.

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 carer in aged care, health and disability sectors and an enabling order would permit the applicant to work with children in any child-related work in either paid or voluntary capacities even though the applicant seeks the order for a limited purpose. The respondent neither supports nor opposes the application for an enabling order and the grant of a Working with Children Check Clearance. Only the Tribunal has the power to grant an enabling order.

6. The offence which resulted in a good behaviour bond occurred in early 2018. The applicant sent a text message attaching a video file to a friend. The friend opened the video file. The file started with an adult male holding a young male child aged between 1-3 years old. The video then depicts the adult male engaged in penile to anus sexual intercourse with the young child. The video lasts for about 2½ minutes. The friend became very upset and felt “sick”. The friend informed the applicant that his actions were inappropriate and offensive before blocking his number. The friend later unblocked his number and the applicant contacted her. The friend told the applicant that she would be contacting the police to report the incident. The friend contacted the police. The applicant contacted the friend and apologised for sending the video. The friend responded to the applicant with words to the effect: “I will be handing over the video to police, which is what you should have done in the first place.” The offence is therefore particularly relevant as to risk to children, depicting as it does abuse of a child. It is also particularly relevant to an assessment of the applicant’s capacity to identify, condemn and stop illegal behaviour involving children.

7. The ultimate conclusion of the Tribunal is that the applicant should not obtain an enabling order to receive a Working with Children Check Clearance because he has not discharged the onus to prove that he is not a risk to children. The reasons for this decision are set out in more detail in the following paragraphs.

8. The discussion which follows this part of the reasons is repetitive of matters set out in other judgments of the Tribunal, but is set out again in these reasons in order to assist the parties to understand the basis for the decision, including how the law has been applied and the consideration of the evidence provided. Additionally, it is has been included in recognition 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 Evidence

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

1. Application filed 14 May 2018 with the notice of cancellation pursuant to section 23 of the Act dated 23 February 2018: Exhibit 1;

2. Statement and submissions of the applicant filed 23 June 2018: Exhibit 2;

3. Reference from a friend of the applicant dated March 2018 and addressed to the Presiding Magistrate in relation to the criminal proceedings: Exhibit 3;

4. Reference from a friend of the applicant dated March 2018 and addressed to the Presiding Magistrate in relation to the criminal proceedings: Exhibit 4;

5. Letter written by the applicant to the Presiding Magistrate in relation to the criminal proceedings offering an apology and expressing remorse: Exhibit 5;

6. Statement of the applicant dated January 2018 in relation to the criminal proceedings: Exhibit 6;

7. Bundle of Documents filed by the respondent on 5 July 2018: Exhibit 7.

10. The applicant gave oral evidence and was cross-examined.

11. The Tribunal received and was assisted by oral submissions in addition to the written statements and submissions provided.

12. 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

13. The Act came into force on 15 June 2013. The amendments introduced into the Act in 2015 apply to this particular matter due to the date of the cancellation which was after the commencement date of those amendments: see Schedule 3 Part 4 of the Act, clauses 16, 19, and 22. 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 matter 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 also inserted at the same time.

16. There were no transitional provisions in the 2018 Amendment Act.

17. 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 considered by the Tribunal.

18. The antecedent factual matters are the basis for making a determination as to the future grant of the Working with Children Check Clearance or an enabling order: see 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 due to the nature of the application. This determination is also consistent with the reasoning in CHB v Children’s Guardian [2016] NSWCATAD 214.

19. The application will comply with the Act provided that the matters which must be considered in section 30 of the Act are taken into account: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

20. 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.

21. 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.

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

23. 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 (NSW). 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”

24. 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.”

25. 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).

26. "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 because he was found guilty but without proceeding to “conviction” in the sense in which that word is usually understood, a good behaviour bond was imposed under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence received by the applicant is treated as a conviction by reason of the definition.

27. 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.

28. 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 offence. The offence with which the applicant was charged is an offence under section 91H(2) of the Crimes Act, in the circumstances referred to in these reasons. The offence with which the applicant was charged and convicted falls within clause 1(1)(n) 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.

25. The applicant seeks a Working with Children Check Clearance to work with children because he wants to be permitted to work where he may come into contact with children and requires such a clearance.

26. 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.

31. 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.

32. 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

33. 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].

34. 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

35. 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.”

36. 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.

37. 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].

38. 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

39. 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 presumption that he poses a risk 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 considered the totality of the evidence before it in order to assess whether the presumption has been rebutted. In other words, the Tribunal reviewed 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.

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 an offence referred to in Schedule 2 of the Act. The fact that the applicant pleaded guilty to the offence enables the Tribunal to conclude that there is no reasonable doubt that the events which form the elements of the offence occurred.

43. However, 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 where 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), which 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 offence which resulted in the convictions: section 38 of the Civil and Administrative Tribunal Act 2013 (NSW). The circumstances surrounding any other 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 crime.

Consideration of the evidence

49. The evidence received by the Tribunal is required to be considered under each of the 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 offence occurred in 2018. The applicant is a disqualified person as a result of the decision that he was guilty of the offence even though the court did not proceed to a conviction. As referred to earlier in these reasons, the definition of conviction in the Act includes situations where there is a guilty finding without conviction. The applicant received a good behaviour bond for a period of 2 years on the condition that he appear before the court during the bond term if required.

51. As previously described, the applicant received a video via WhatsApp which showed an adult male having penile to anus intercourse with a young child aged between 1 year and 3 years of age. The video was 2.5 minutes duration. The video was accompanied by a text message stating “people need to be more aware of the type of people they surround their kids with”.

52. The members of the WhatsApp group were friends of the applicant with whom he attended high school. The video and text message were disseminated to the whole of the group.

53. The applicant then forwarded the video and text message to a female friend who was the mother of young children. She then contacted the applicant and informed him that she would be reporting matter to the police, which she proceeded to do. The applicant then contacted her to apologise for sending the video. She then informed the applicant that she was handing the video over to the police, telling him that that is what he should have done in the first place. The police attended the female friend’s home and seized her iPad which contained the video file. The female friend accompanied the police to the police station where she made a statement. A short time later the applicant contacted the police and made a report with respect to the video that he received. He did not inform the police at that time that he had sent the video to his female friend.

50. While there was no apparent deviant sexual intent in the actions of the applicant, the applicant clearly exhibited a lack of insight. The applicant naïvely thought that sending the video was an appropriate way of warning the recipient of the dangers in leaving young children with males.

51. The actions of the applicant were not only illegal but were totally inappropriate and counterproductive to achieve the effect which he states that he desired.

52. The applicant was aged 31 at the time of the offence and could not be said to be immature or lacking in life experience. Indeed, the applicant already had a valid Working with Children Check Clearance which was cancelled as a result of the charge.

53. The offence is relatively recent. Because of the sentence imposed by the Magistrate the applicant is not on the sex offenders register. If the Local Court Magistrate considered there was any sexual gratification received by the applicant in viewing or sending the video file then it is highly likely a custodial sentence would have been imposed, and the Magistrate made that clear. The applicant pleaded guilty at the first available opportunity.

54. The applicant has shown apparently genuine remorse for his actions.

55. The applicant did not actively seek out the video which was sent to him as part of a WhatsApp group comprised of school acquaintances from his country of origin. The applicant’s intentions were to “educate” his female friend as to the capacity of some people to sexually abuse very young children.

56. This offence was reported to be the applicant’s first contact with police.

57. There was no requirement to infer whether, and in what way, the applicant could have personally benefited from disseminating this highly offensive and abusive video. The offence of disseminating child abuse videos and other similar material is clearly aimed to restrict the production of that material by making it a criminal offence to be part of the audience for such videos and/or images. The dissemination of child abuse material creates a market or audience for that material which encourages the production of further child abuse material. During production of that child abuse material children are abused.

58. The conduct of the applicant and the offence of disseminating such material are very serious. The failure of the applicant to appreciate the seriousness of the offence at the time it occurred, and that disseminating the child abuse material might also jeopardise his then current Working with Children Check Clearance, is a matter of significant concern. The explanation given by the applicant for sending this video file is confusing and appears contrary to later statements that the applicant does not endorse, and condemns, any form of child abuse.

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

63. The offence occurred early in 2018.

64. The applicant was convicted in April 2018. There has been a very short period of time since the offence. The applicant has said he is remorseful and apologised for his behaviour. The Tribunal is not aware of any other conduct of the applicant which would be of concern.

65. The recent nature of the offence and the fact that the bond is still in force are factors which weigh against the grant of an enabling order.

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

66. The applicant was aged 31 years at the time of the disqualifying offence. The applicant was not immature and should have known what he was doing was wrong. This fact also weighs against the grant of an enabling order.

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

67. The victim of the disqualifying offence was aged between 1 and 3 years.

68. The victim is unknown but was clearly extremely vulnerable due to the infant’s age and dependency for protection and care by adults. There was clearly a failure to provide that protection and care.

69. As referred to in CHT v Children’s Guardian [2016] NSWCATAD 203 at [47] the involvement of children who are unable to consent and are, therefore, especially vulnerable in relation to extremely graphic and disturbing pornography (whether with their knowledge or without it), is a clear violation of their rights.

70. The female friend of the applicant is also a victim. She is an adult. The female friend received this offensive video and immediately condemned it and reported to the police. The female friend also blocked the applicant from sending any more messages to her. The friend was an unwilling recipient of offensive child abuse material.

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

71. The difference in age between the child victim and the applicant is 28 to 30 years. The child victim was a stranger to the applicant. The female friend was known to the applicant and he had a close relationship with her.

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

72. The applicant knew that the victim was an infant child. The message received with the video makes it clear that the victim was a child and that the applicant knew the victim was a child.

The person’s present age

73. The applicant is currently aged 31 years.

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

74. The applicant was found guilty of the disqualifying offence which is considered to be very serious, extremely graphic and disturbing in nature. Notwithstanding that the court did not proceed to a conviction, for the purposes of the Act the finding is to be considered a “conviction”.

75. The applicant has no known criminal history before or after this offence.

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 did not file any evidence from an appropriately qualified psychologist or psychiatrist to support his application and to provide expert evidence as to the likelihood for repetition of this type of offence or of any offence.

77. The personal references relied upon by the applicant indicate that those people have known him for 17 and 22 years respectively and had knowledge of the offence. The referees say they are confident that there will be no repetition of the offence. However, the positive nature of the references do not explain the offending behaviour.

78. As noted in DHB v Children’s Guardian [2018] NSWCATAD 123 at [42], whilst such references cannot provide an opinion about an applicant’s level of risk, their observations can provide an insight into character. In that matter there was also 52 years of comparatively incident free behaviour post-conviction for the disqualifying offence (there were some PCA matters in the intervening period). That offence was in the context of a relationship and quite different to the offence the subject of this application.

79. The repetition of offending conduct would be significant in terms of its adverse impact on children. As identified in BGX v Children’s Guardian [2014] NSWCATAD 173 at [53] dissemination of child pornography which is a “hands off” offence encourages the actual abuse of children by creating a profitable market and an audience for the sexual and potentially financial gratification of “hands on” child abusers.

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

80. The applicant received a good behaviour bond in April 2018 for a period of 2 years and must appear before the court during that period if required. There would appear to be no other orders in existence which concern the applicant.

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

81. The applicant has provided some relevant information to the Tribunal. In particular, he has provided the letter to the Local Court in relation to his sentencing: Exhibit 5. In addition, the applicant has provided a statement and summary of legal argument: Exhibit 2. The statement given by the applicant to the police is contained within the material obtained by the Children’s Guardian: Exhibit 7.

82. The applicant says that he believed that by disseminating the material he was alerting his female friend to the capacity of people to abuse young children. He considered this was a protective action without realising the legal consequences of doing so. The applicant accepts full responsibility for what he did. The applicant condemns vehemently the ordeal to which he says the innocent baby was subjected. The applicant says that initially he did not understand why he was arrested. The applicant says that he believes he has what it takes to defend and stand up for children’s rights. The applicant states that he does not pose a risk to the safety of children.

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

83. There is no additional relevant information.

Any other matters that the Children’s Guardian considers necessary

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

85. The Children’s Guardian submits that the Children’s Guardian neither supports nor opposes an enabling order being granted and the Tribunal ordering the Office of the Children’s Guardian to grant a Working with Children Check Clearance.

86. The Children’s Guardian submits that the applicant’s conduct may be considered at the lower end of the scale of risk because he did not seek out the pornographic material and there was no apparent sexual or deviant motivation. It was also submitted that the nature of the sentencing by the Local Court Magistrate indicates that this matter was considered to be at the lower end of the range of seriousness and perhaps also risk in terms of reoffending.

Consideration and determination

87. The applicant has been found guilty of a relevant offence which renders him a disqualified person for the purposes of the Act. The harm caused by the behaviour of the applicant was outside reasonable community norms and the applicant’s friend appropriately condemned his behaviour.

88. The behaviour, if repeated, would do harm to any victims. Dissemination of child abuse material is part of the process of exposing vulnerable children to the potential of graphic and nauseating child abuse. The paramount principle under the Act includes protection of children from suffering abuse.

89. The applicant has clearly learned a lesson from his involvement with the criminal justice system. However, his capacity to exercise judgment in determining whether he should have sent this material in the first place is the significant concern. The applicant exercised very poor judgment when he sent the offensive and disgusting video to his friend. The friend reacted in an appropriate manner. If the applicant is to work with children unsupervised he must exercise his own judgment as to the appropriateness of behaviours and whether there is a risk involved to children.

90. It is that lack of judgment which brings the Tribunal to the determination that the applicant poses a real and appreciable risk to children. Apart from the salutary lesson the applicant has gained from attending the Local Court and potentially facing a sentence of imprisonment, there is little evidence that the applicant has done anything to increase an objective observer’s confidence that he would be able to exercise good judgment in the future.

91. The Tribunal notes the expressions of remorse by the application. Remorse on its own is, however, not considered to be a factor that mitigates risk.

92. The onus is on the applicant to show that he is not a real and appreciable risk to the safety of children.

93. 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.

94. 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.

95. The applicant has not discharged the onus to prove that he does not pose a risk to the safety of children in the future. On the evidence received, the Tribunal cannot be satisfied that the applicant does not pose a risk to children.

96. As the applicant has not discharged the onus to prove that he not a risk to the safety of children, it is unnecessary to consider whether the applicant meets the requirements under section 30(1A)(a) or (b) of the Act.

Conclusion

97. In all the circumstances, based on the material before it, the Tribunal is satisfied consistent with the presumption which has not been discharged by the applicant, that the applicant poses a risk to the safety of children and should not be granted an enabling order under section 28(1) of the Act. The Tribunal is satisfied that the existence of a real and appreciable risk to the safety of children has not been disproven.

Orders

98. The orders of the Tribunal are that:

1. The application for an enabling order under section 28 Child Protection (Working with Children) Act 2012 (NSW) filed 14 May 2018 is refused and dismissed.

2. With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 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: 04 January 2019