DMN v Children's Guardian

[2018] NSWCATAD 278

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DMN v Children’s Guardian [2018] NSWCATAD 278
Hearing dates:	On Papers
Date of orders:	08 October 2018
Decision date:	08 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	E Connor, Senior Member E Hayes, General Member
Decision:	The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children clearance.
Catchwords:	ADMINISTRATIVE LAW-refusal of working with children check clearance-carnal knowledge conviction -assessment of risk
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Prohibited Employment) Act 1998 Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Commission for Children and Young People v FZ [2011] NSWCA at 111 Commission for Children and Young People v V [2002] NSWSC at 949
Category:	Principal judgment
Parties:	DMN (applicant) Children’s Guardian (respondent)
Representation:	Solicitors: DMN (Applicant – self-represented) Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00195687
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, any child (whether the person is a child now or was a child when the relevant document was created or incident occurred), any victim and the name of any other person that might identify the name of the applicant, the name of a child or victim is not to be published or broadcasted without the leave of the Tribunal.

REASONS FOR DECISION

Background

1. The Applicant, referred to as DMN in these proceedings is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and seeks an enabling order pursuant to section 28 of the Act declaring that he not be treated as a ‘disqualified person’ so that he can be granted a Working with Children Check (WWCC) clearance.

2. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcast without the leave of the Tribunal.

3. The applicant who is 64 years of age seeks a WWCC clearance because he wants to be able to work as a general hand at a school. He was unrepresented in the proceedings.

4. By notice dated 8 June 2018 the applicant was informed by the respondent that he is a ‘disqualified person’ by reason of his conviction in 1973 for the offence of ‘carnally knowing girl under age of 16 years’ contrary to section 71 of the Crimes Act 1900 (now repealed).

5. On 25 June 2018 the applicant lodged an application for an enabling order from the Tribunal pursuant to section 28 of the Act. The application attaches a statement signed by both the applicant and the applicant’s wife dated 19 June 2018 in which it is explained that the applicant has aphasia and dyspraxia following a cerebral bleed and stroke in 2015, as a result of which he has a speech impairment and, at times, problems with comprehension. The applicant also provided a copy of an Enduring Power of Attorney executed on 7 September 2016 by which he appointed his wife as his attorney.

6. The respondent supported the applicant’s application for an enabling order.

The Legislative Scheme

7. The Act makes provision for the regulation of those persons who can engage in or continue to engage in ‘child related work’. The objects of the Act are to protect children:

1. by not permitting certain persons to engage in child-related work; and

2. by requiring persons engaged in child related work to have working with children check clearances.

8. Section 4 of the Act provides that the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration’ in the operation of the Act.

9. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

10. ‘Children’ is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word ‘child’ has the same meaning.

11. Subsection 8(1) of the Act prohibits a person from engaging in ‘child related work’ unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children’s Guardian for the relevant WWCC clearance.

12. Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold or have a current application for a relevant Working With Children Check clearance.

13. Child-related work is broadly defined in sections 6 and 7of the Act. It includes paid and unpaid work in child-related work.

14. Applications for a working with children check clearance are made to the respondent under section 13 of the Act. Section 18 sets out the powers of the respondent in regard to determining any application that is made. As we have noted the respondent refused the applicant’s application, as she was required to do, under subsection 18(1) of the Act because he is a disqualified person having been convicted of a Schedule 2 disqualifying offence.

15. Subsection 28(1) of the Act gives the Tribunal a discretion, on the application of a disqualified person, to make an enabling order declaring the person not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence.

16. Subsection 28(7) provides that where an application for 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”.

In this application, therefore, the onus is on the applicant to rebut this statutory presumption that he poses a risk to the safety of children.

17. The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:

One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word ‘risk’ with the words that follow, namely ‘to the safety of children’…

18. The Tribunal has adopted a similar meaning to the word “risk” as it appears in the current Act.

19. Subsection 28(8) provides that an enabling order cannot be made subject to conditions. That is, if an enabling order is made and a Working With Children Check clearance is granted this clears the person to work in all forms of child-related work for five years unless suspended or cancelled by the respondent prior thereto.

The evidence relied upon

20. The applicant relied upon the following documentary material:

1. Application for review filed 25 June 2018 attaching the Notice of Cancellation and an Enduring Power of Attorney executed by the applicant on 7 September 2016 appointing his wife as his attorney;

2. A two page statement of the applicant dated 14 August 2018 lodged on 16 August 2018.

21. The respondent relied upon the following documentary material:

1. Respondent’s Tender Bundle filed by the respondent pursuant to Section 58 of the Administrative Decisions Review Act 1997 on 3 August 2018 comprising 47 pages;

2. Respondent’s Outline of Submissions filed 7 September 2018.

The evidence presented

22. The Tribunal "must consider" those factors set out in section 30(1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.

23. The Tribunal must also satisfy itself in relation to the tests set out in section 30(1A) of the Act.

24. The evidence is set out below under subheadings that refer to the section 30(1) factors and section 30(1A) tests set out in the Act.

Section 30 (1) factors

(a) The seriousness of the offences

25. In 1973 the applicant pleaded guilty to, and was convicted of, the offence of ‘carnally knowing girl under age of 16 years’ contrary to section 71 of the Crimes Act 1900 (now repealed).

26. The applicant was 18 years old at the time of the offence and had been residing for approximately two months with the victim with whom he engaged in consensual sexual intercourse about once per week. The victim was 15 years and eleven months old at the time and became pregnant. The applicant and the victim continued a relationship for 12 years and had two children together.

27. There is no evidence that the victim was not consenting to the sexual intercourse and the respondent submits that, although by its nature the offence of carnal knowledge is serious, this offence lies at the lower end of the seriousness scale for such an offence.

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

28. The offence took place approximately 46 years ago.

29. Since that time the applicant has not been the subject of any complaints and has not been charged with any criminal offences.

(c) The age of the person at the time the offences or matters occurred

30. The applicant was 18 years of age at the time of the offence.

(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

31. The victim was 15 years and 11 months old at the time of the disqualifying offence. Apart from the victim’s age, there is no evidence of her being vulnerable for any other reason.

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

32. The applicant was approximately 2 years and 5 months older than the victim.

33. The applicant and the victim were living together at the time of the offence and had a child. They separated for some time but then resumed their relationship and had a second child together. The relationship ended approximately 12 years after the events that constitute the disqualifying offence.

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

34. The applicant acknowledges knowing that the victim was a child but disputes having said to the victim, as reported by her in a statement to the police, that ‘it doesn’t matter’ that she was a child.

(g) The person’s present age

35. The applicant is now 64 years of age.

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

36. The applicant has not been charged with any offences other than the disqualifying offence and has not been the subject of any complaints or disciplinary proceedings in the course of his employment or volunteer activities.

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

37. It is acknowledged in the Respondent’s Outline of Submissions that:

…based on the available evidence, the likelihood of the applicant repeating the disqualifying offence is low due to the applicant’s older age, the lack of any other offending, the time that has passed since the offence, the applicant’s current relationship status and the applicant’s well-adjusted social life following the disqualifying offence.

38. The written statement provided by the applicant and his wife outline the applicant’s marital status and contributions to the workforce and community since the disqualifying offence. He has been married for 21 years to his current wife and has raised three children with his wife, including one child from his wife’s previous relationship. He ran a successful business until having a stroke in May 2015 and has been involved as a coach of sporting clubs and as a volunteer at his children’s primary school.

39. In his statement dated 14 August 2018 the applicant states that he was unaware of the law of carnal knowledge when he broke it and only became aware of it when questioned by police at the time. He states that if he had known he would not have knowingly broken the law.

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

40. As previously noted, the applicant and his wife provided an attachment to the application dated 19 June 2018 outlining the grounds for the application. The applicant also provided a statement dated 14 August 2018.

(k) Any other matters that the Children’s Guardian considers necessary

41. The Children’s Guardian states in their Outline of Submissions that:

1. The applicant does not have any apprehended violence orders recorded against him.

2. NSW Police does not hold any “COPS” records that refer to the applicant in the context of violence, child abuse or sexual offences.

3. The Department of Family and Community Services has conducted a search of its database and has not located any relevant records relating to the applicant.

Section 30(1A) tests

42. The Children’s Guardian submitted that, given the circumstances of the disqualifying offence and the applicant’s positive behaviours since it was committed, the reasonable person would allow his or her children to have direct contact with the applicant that is not directly supervised.

43. The Children’s Guardian also submits that it is in the public interest for the Tribunal to grant an enabling order so that the applicant can pursue remunerative work that is available to him.

Consideration

44. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment should err on the side of caution while 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.

45. Although the offence of ‘carnal knowledge’ is of itself serious, the behaviour that took place and triggered these proceedings is at the lower end of seriousness in relation to disqualifying offences and a very long period of time has passed since the offence was committed.

46. We accept the applicant’s written evidence that he committed the offence inadvertently because he was unaware of the law at the time. We also accept that the applicant is genuinely remorseful and would not have knowingly broken the law.

47. Subsection 28(5) of the Act provides that the applicant is required to fully disclose to the Tribunal any matters relevant to his application and we find that the applicant has been open and frank and willingly disclosed all relevant matters.

48. We were told that the applicant’s prospective employer is aware of the Tribunal proceedings and wants the applicant to be able to take up the job offered to him. This is in the applicant’s favour.

49. We note that the applicant has never been the subject of any complaint in the workplace, including in paid and voluntary roles where he has worked with children. This also weighs in his favour.

50. We are satisfied that the reasonable person would allow his or her children to have direct contact with the applicant that is not directly supervised.

51. We are also satisfied that it is in the public interest for the Tribunal to grant an enabling order. The applicant has limited employment options because of his medical conditions and it is in the public interest for him to be able to participate in remunerative employment.

52. We are satisfied that the evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant.

53. Having regard to the abovementioned factors and the material before us, in our view, the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children and it is appropriate to make the orders sought.

Order

54. The order of the Tribunal is that:

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).

2. 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.

**********

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: 28 November 2018