DOP v Children's Guardian

Case •

[2018] NSWCATAD 235

•

10 October 2018

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DOP v Children’s Guardian [2018] NSWCATAD 235
Hearing dates: 13 September 2018
Date of orders: 10 October 2018
Decision date: 10 October 2018
Jurisdiction:Administrative and Equal Opportunity Division
Before: M Anderson, Senior Member
Decision:

(1)   The application for a stay or interim order 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 (NSW). 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 applicant seeks a stay - where disqualifying offence under section 474.27A of the Commonwealth Criminal Code (1995) (Cth) being use of a carriage service to transmit indecent communication to a person under 16 years of age – assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children – where stay refused.
Legislation Cited: Administrative Decisions Review Act 1997(NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW) (repealed)
Child Protection (Working with Children) Act 2012 (NSW)
Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW)
Child Protection (Working with Children) Regulation 2013 (NSW)
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016 (NSW)
Children and Young Persons (Care and Protection) Act 1998(NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Commonwealth Criminal Code (1995) (Cth)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Interpretation Act 1987 (NSW)
Cases Cited: 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881
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
BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111
BKE v Office of the Children’s Guardian [2015] NSWSC 523
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
BXJ v Children's Guardian [2016] NSWCATAD 11
BYR v Children’s Guardian [2013] NSWADT 310
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
Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27
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
CZI v Children’s Guardian [2017] NSWCATAD 179
DNQ v Children’s Guardian [2018] NSWCATAD 188
Geschke v Del-Monte Home Furnishers Pty Ltd [1981] VR 856
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
La Macchia v Minister for Primary Industry (1986) 72 ALR 23
M v M [1988] HCA 68; 166 CLR 69
New South Wales Bar Association v Stevens [2003] NSWCA 95
Office of the Children’s Guardian v CFW [2016] NSWSC 1406
R v Commission for Children and Young People [2002] NSWIRComm 101
Re A Solicitor’s Clerk [1957] 1 WLR 1219
Roberts v Balancio (1987) 8 NSWLR 436
Robertson v City of Nunawading [1973] VR 819
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
Tilley v Children’s Guardian [2017] NSWCA 174
Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147
ZZ v Secretary, Department of Justice [2013] VSC 267
Category:Procedural and other rulings
Parties: DOP (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
I Fraser (Respondent)

  Solicitors:
DOP (Applicant in Person)
Crown Solicitor’s Office (Respondent)
File Number(s): 2018/00272422
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 (NSW). 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 for a stay and an application commenced on 31 August 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 “DOP” in these proceedings, on 6 August 2018 that due to being found guilty of a disqualifying offence as specified in clause 1 (1) (ac) of schedule 2 of the Act, using a carriage service to transmit an indecent communication to a person aged under 16 years contrary to section 474.27A of the Commonwealth Criminal Code 1995 (Cth), he was not eligible to be granted a Working with Children Check Clearance. The applicant was found guilty in Victoria but discharged without conviction on entering a 12 month recognisance to be of good behaviour. The offence is a registrable offence within the meaning of that term in the Child Protection (Offenders Registration) Act 2000 (NSW) as it comprises a Class 2 offence under that Act.

  2. An order was made at the hearing 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. The disclosure of that information is likely to cause distress and further harm to the victim. Because the victim will be able to be identified if the applicant’s name is used, 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 8 August 2018 and the application for an enabling order under section 28 of the Act was filed within the time permitted.

  4. The stay application was heard urgently on 13 September 2018. The applicant was not legally represented. At that time the applicant was referred to the duty solicitor scheme for an appointment and preliminary advice on 4 October 2018. Further directions were made and the enabling order application was listed for further directions on 25 October 2018. The interim stay decision was reserved.

  5. The applicant may later be seeking to rely upon additional expert evidence for the hearing but only a report from a clinical psychologist dated 7 April 2016 forms part of the evidence he relied upon for this application.

  6. The applicant ultimately 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 continue work as a landscaping apprentice. Since some of the work he is required to perform is at childcare centres and schools this, it was submitted, means the applicant requires a clearance. 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 may seek the order for a specified or limited purpose.

  7. The respondent opposes the stay application.

  8. The offence with which the applicant was charged and to which he pleaded guilty occurred in Victoria in 2014 and he was found guilty of that charge in 2015. Because section 5 of the Act defines "conviction" to include 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, the sentence which was imposed upon the applicant is treated as a conviction for the purposes of this Act. The offence will be described later in these reasons in more detail.

  9. In CZI v Children’s Guardian [2017] NSWCATAD 179 and DNQ v Children’s Guardian [2018] NSWCATAD 188 the Tribunal previously considered the principles governing whether to grant a stay in relation to an application for an enabling order under section 28 of the Act. This decision relies upon those reasons for decision. These reasons however standalone in relation to this particular applicant.

  10. Provided that the matters which must be considered in section 30 of the Act are taken into account, the application for an enabling order will comply with the Act: see BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.

  11. An enabling order pursuant to section 28 of the Act, in relation to a disqualified or ineligible person, may not be made subject to conditions: section 28 (8) of the Act.

  12. A conditional grant of a clearance for the purpose of allowing the applicant to work with conditions and in his chosen area is not permitted by the legislation.

  13. The ultimate conclusion of the Tribunal on this stay application is that the applicant should not obtain a stay of the determination that he is a disqualified person and not entitled to a working with children check clearance. The reasons for the refusal of the stay application decision are set out in more detail in the following paragraphs. The applicant is presumed to pose a real and appreciable risk to the safety of children because of his offence and conviction. There is insufficient evidence to displace that presumption. It is determined to not be in the public interest to grant a stay. The applicant will not suffer irreparable harm if a stay is not granted based on the information currently before the Tribunal. The interests of justice do not require the grant of a stay.

The Material relied upon

  1. The documentary material provided on behalf of the applicant and the respondent on the stay application, and received by the Tribunal is as follows:

  1. Report of the psychologist who saw the applicant as part of the orders of the sentencing court for counselling on 3 occasions, dated 7 April 2016: marked as Exhibit 1;

  2. Character reference supportive of the applicant: marked as Exhibit 2;

  3. Character reference dated 12 September 2018 supportive of the applicant: marked as Exhibit 3;

  4. Bundle of Documents filed by the respondent on 12 September 2018 for the purposes of the stay hearing: marked as Exhibit 4;

  5. Submissions on behalf of the respondent for the interim hearing filed 13 September 2018: marked as Exhibit 5 (identified by giving an exhibit reference but not treated as evidence).

  1. The applicant gave oral submissions. The applicant’s statements and submissions have been considered even if reference is not made to all of those matters in these reasons.

  2. This is an interim application and only matters which are agreed or established shall form part of the factual basis for the decision. No factual matters were able to be appropriately tested.

Legislative provisions

  1. 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 initial application to the Children’s Guardian was dated 16 July 2018.

  2. 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 decided 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.

  3. 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.

  4. 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 and commenced at the same time.

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

  6. 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.

  7. 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.

  8. 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.

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

  10. 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”

  1. 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.”

  1. 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).

  2. 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."

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

  2. As previously referred to, "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 which applies in relation to the applicant.

  3. 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.

  4. The applicant is, relevantly for the purposes of the Act, now an adult and was an adult, aged over 18 years, being aged 25 at the time of the offence. The offence with which the applicant was charged was an offence where he requested pictures of the victim in her underwear to which she replied on two occasions with pictures of herself. The applicant sent pictures of himself in his underwear back to the victim. This was an offence: using a carriage service to transmit an indecent communication to a person aged under 16 years contrary to section 474.27A of the Commonwealth Criminal Code.

  5. The offence with which the applicant was charged and convicted falls within clause 1(1)(ac) of Schedule 2 of the Act as previously set out.

  6. 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. The Tribunal and not the Children’s Guardian has the power and the role to grant an enabling order, if appropriate.

  1. The applicant seeks a Working with Children Check Clearance to work with children because he wants to be permitted to work as a landscaper where he says he is very likely to come into contact with children.

  2. 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.”

  1. 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.

  2. A person is not permitted to engage in “child-related work” unless the person holds a Working with Children Check Clearance: see section 8 of the Act.

Standard of Proof and Onus of Proof

  1. 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].

  2. 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. In this matter there was a “conviction” for the applicant’s behaviour which constituted a registrable offence. That is an established fact and the applicant’s guilt is a fact.

Required Considerations

  1. 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.”

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

  2. 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].

  3. 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

  1. The Tribunal is to ultimately 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 at the final hearing 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.

  2. The applicant seeks a stay of the decision made that he is a disqualified person and refused a clearance so that he can continue working as an apprentice landscaping gardener.

  3. It has previously been said by the Court of Appeal that the overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83].

  4. Where a decision has been made in the public interest, the protection of the public is a matter entitled to significant weight: New South Wales Bar Association v Stevens (supra) at [90]-[104].

  5. In New South Wales Bar Association v Stevens (supra) His Honour Chief Justice Spigelman (as he then was), with whom Meagher and Sheller JJA agreed, said this of the public interest at [103]-[104]:

"[103] The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:

"In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only."

[104] It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight."

  1. The Tribunal has previously considered the grant of a stay in section 27 proceedings in BJB v NSW Office of the Children’s Guardian [2014] NSWCATAD 111. In BXJ v Children's Guardian [2016] NSWCATAD 11 (BXJ) the Tribunal considered whether to extend a stay which had been previously granted by the Principal Member, on conditions, to the date of final hearing. It was stated by the Tribunal in that matter BXJ, relying upon reasoning which is set out in those reasons, that:

“[22] It is thus considered doubtful that the Tribunal, in the circumstances of the application before it brought by BXJ, could lawfully attach conditions which would be permitted by the legislation effectively to the grant of an interim clearance as proposed, if the Tribunal decided that it would be appropriate or desirable to grant a stay on conditions.”

  1. The discussion which follows is repetitive of matters set out in other reasons for decision 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.

  2. 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].

  3. 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.

  1. 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 in the previous paragraph. 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.

Other matters

  1. 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.

  2. 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 conviction: 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 reason. There is some official material available in relation to the offence contained in Exhibit 4.

  3. 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.

  1. 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 his offence.

Consideration of the evidence

  1. On an application under section 28 or 29 of the Act the Tribunal may stay the operation of a determination of the Children’s Guardian under the Act pending determination of the matter: section 30 (2) of the Act. The provisions of section 30 (1) of the Act “must” be applied in “determining an application” under Part 4 of the Act. This interim application is not determining or ending or concluding the application for review. However, it is relevant to consider, even if briefly, the matters in section 30(1) of the Act. This is not a preliminary hearing.

  2. The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which is the application for an enabling order under section 28. The evidence received by the Tribunal is therefore required to be considered under each of the current subsections of section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. There are now thirteen subsections. Some of the subsections may be thought less relevant and may be given less weight than others. Where there is minimal information for consideration of that criterion the Tribunal has to do the best it can with the information currently before it. 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

  1. The disqualifying offence occurred in 2014.

  2. The applicant was found guilty in 2015 at the local Magistrates Court and discharged without conviction on entering a 12-month recognisance to be of good behaviour. The offence provides a maximum penalty of 7 years imprisonment. The question as to whether the material which is transmitted using a carriage service is indecent is a matter of fact for the trier of fact. The offence is a registrable offence within the meaning of section 3 of the Child Protection (Offenders Registration) Act 2000 (NSW). Therefore, the offence is a disqualifying offence under the Act because of clause 1 (1) (ac) of schedule 2.

  3. Although the sentence imposed upon the applicant is objectively at the bottom of the range of seriousness, the nature of the offence is considered serious because it is included in schedule 2 of the Act as a registrable offence in order to protect children in the general community. The applicant is considered to be a risk to the safety of children because schedule 2 of the Act and section 28 of the Act combine to give that effect.

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

  1. The offence occurred four years ago.

  2. There is no information which discloses that the conduct of the applicant since the offence referred to in the previous paragraph has been other than law-abiding and of a good character.

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

  1. The applicant was aged 25 years at the time of the disqualifying offence.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

  1. The female victim of the disqualifying offence was aged 15.

  2. The applicant knew the victim because they were engaged in similar pursuits through a social club. The applicant knew that he was 10 years older than the victim. The victim was vulnerable because of her age and because of the relationship she had with the applicant.

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

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

  2. The applicant and the victim were socially acquainted and communicated by social media.

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

  1. The applicant agrees that the victim was a child.

  2. The applicant referred to the age difference between himself and the victim in his communications.

The person’s present age

  1. The applicant is currently aged 29 years.

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

  1. The applicant does not have an extensive criminal history. Apart from this offence there is no indication that he has any other criminal history.

  2. The applicant states that he has been law-abiding since the offence and told his psychologist that he proposed to remain law-abiding.

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

  1. The applicant has provided a psychologist’s report which was apparently a result of an imposed condition of his sentence. This is apparent from the face of the report. This became Exhibit 1 and briefly refers to some comments which the applicant has made to the psychologist. The psychologist administered an alcohol screen (AUDIT) and Alcohol Enquiry Questionnaire and the Pros and Cons of Drinking. It is not explained why the psychologist administered those screens. The psychologist described the applicant’s drinking behaviour as “normal”. The psychologist also administered the NEO Personality Inventory-Revised which would appear to be based upon the applicant’s self-report to the psychologist. There was no adverse comment made by the psychologist about the applicant’s personality. There is no exploration by the psychologist of the offending behaviour. The psychologist did not administer any tests or refer to any tools in relation to an assessment of recidivism. The psychologist conducted three sessions of counselling over a period of five months. There is no report of any actions taken by the applicant to reduce the risk of reoffending.

  2. 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.

  3. 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 the person behaved. The applicant has not at this stage of the application for an enabling order provided any evidence as to his motivations for his past behaviour. There is no evidence of his current functioning. The references provided by the applicant which are Exhibit 2 and Exhibit 3 are from people based in a different State to the applicant’s current location. Neither of the referees indicate that they are aware of the details of the offence committed by the applicant. Therefore, those references while they are supportive of the applicant are of little weight in determining the applicant’s current character and functioning.

  4. As a result of the limited evidence on this application, the Tribunal cannot be satisfied that there is unlikely to be a repetition of the offence.

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

  1. The applicant is not apparently the subject of any current order.

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

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

  2. There will need to be further information provided for the final hearing.

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

  1. The applicant’s criminal history from one other State forms part of the evidence before the Tribunal. That history records the disqualifying offence.

Any other matters that the Children’s Guardian considers necessary

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

  2. The Children’s Guardian submits that the applicant should not be granted a stay.

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

  1. The applicant is affected by the fact that he does not have a Working with Children Check Clearance and the applicant states that he requires it for his employment.

  2. There is no evidence from the applicant’s employer which supports the applicant’s contention. It is apparent from the references that the applicant has worked in other areas where he does not require a clearance. Landscaping is not generally child-related work and it may be possible that the applicant can perform that work without a clearance but that is a matter which the applicant should provide evidence upon particularly from his employer.

The public interest

  1. When assessing the public interest, it is relevant to have regard to the nature and seriousness of the offences. The offence clearly relates to the potential of the applicant to be a risk to the safety of children because the legislature has determined that it does. The interests of the public and children generally may be prejudiced if the applicant is permitted to work with children and it is ultimately found that he does pose a risk to the safety of children.

  2. The offence was one which involved a child.

  3. The Act is designed to protect the public and therefore the public interest is entitled to significant weight. It is in the public interest for persons who are considered to be a risk to the safety of children to be prevented from working with children.

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

  1. 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”.

  2. 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)

  1. 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]]

  1. The applicant has not provided any information as to his reasons for the offending behaviour. There has been a passage of time since the offence and there is currently no evidence before the Tribunal that the applicant has reoffended. However, the Tribunal has the function of assessing risk posed by the applicant to the safety of children. The assessment of risk requires information from a variety of sources. The information before the Tribunal at this point in time does not allow a proper assessment of risk. The Tribunal observes that the public interest is not a confined concept. A balancing of the public interests present in this matter is required. The protection of the public is to be given significant weight.

  2. 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 previous decisions, and the weight to be given to the public interest in deciding whether to grant a stay, it would not be in the public interest to make an order enabling the applicant to work with children in accordance with the Act on an interim basis. A stay order would allow the applicant to work with children on an interim basis.

  3. There is sufficient material as referred to earlier in these reasons provided to the Tribunal which would allow a finding that it would not be in the public interest to grant a stay to the applicant. It is not in the interests of justice to grant a stay.

Consideration and determination

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

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

  3. The factors which have to be considered pursuant to section 30 (1) of the Act have been identified earlier in these reasons. It can be seen from those considerations that further evidence will be required to determine the application.

  4. In 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd [2006] NSWSC 881 at [5] the Supreme Court (per White J as he then was) emphasised that in an injunction application it is not the Court’s task “to conduct a preliminary hearing”. In determining whether there is “a serious question to be tried” when considering an interlocutory injunction, his Honour stated that is to be assumed that any conflict in the evidence “would be resolved in the plaintiff’s favour.” The decision of Deputy President Hennessy in Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147 at [34] applies that traditional formulation about interlocutory applications to a consideration of a stay pursuant to section 60 of the Administrative Decisions Review Act. The Deputy President also referred at [31] to [33] to the consideration of the prospects of the success or the merits of the review application as follows:

[31] The corresponding provision in the Administrative Appeals Tribunal Act 1975 (Cth), section 41, is in similar term but does not list the public interest as a mandatory consideration. Nevertheless, the prospects of success or the merits of the applicant’s case on review have been regarded as relevant: Re XTWK and Australian Securities and Investments Commission (2007) 46 AAR 350 at 354.

[32] In AHJ v NSW Trustee and Guardian [2011] NSWADT 311 at [14] the former Administrative Decisions Tribunal held that the phrase "secure the effectiveness of the determination" is another way of saying that there needs to be irreparable loss or harm to the applicant before consideration will be given to making an interim order. The Tribunal went on to say-

[15] Section 60 is to be read keeping in mind the common law principles in relation to the exercise of interlocutory injunctions. In Castlemaine Tooheys Limited v South Australia [1986] HCA 58, Acting Chief Justice Mason said at paragraph 11:

"The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction".

[33] In a practical sense the onus is on the applicant to make out a case that it is appropriate for the Tribunal to make such an order: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9], Wright J, President citing Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694.

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

“On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.”

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

  2. A stay application, like an injunction application, is not an interim hearing as Justice White (as he then was) observed in 1st Fleet Pty Ltd v Australian Co-Operative Foods Ltd. The purpose of a stay or an injunction is usually to maintain the current position provided that does not prejudice one party’s interests more than another.

  3. If the evidence remains as it is there is only a slight probability that the applicant will be found to have discharged the onus on him to prove that he is not a risk to the safety of children.

  4. There is only the applicant’s assertion that he will suffer irreparable injury or “lose his job” if the stay is not granted. This assertion is not necessarily accepted by the Children’s Guardian because of the absence of evidence which corroborates the assertion. The Tribunal notes that the references provided by the applicant referred to the applicant performing other work as well as landscaping work.

  5. 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.

  6. The applicant has been convicted of an offence which means he is 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 and other people from indecent behaviour. The offending was inferentially at the lower end of seriousness for the range of offending because of the outcome in court.

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

  8. The applicant is presumed to pose a real and appreciable risk to children. The disqualifying offence involved a child. The legislature has included this offence in schedule 2 of the Act to provide that the applicant is presumed to pose a risk to the safety of children because of that offence.

  9. Remorse on its own is not considered to be a factor that mitigates risk. The applicant told the psychologist he saw on three occasions that he has “freely realised the folly of the offence” and was “determined to stay a law-abiding citizen” and there is therefore an expression of remorse that the offence occurred. This occurred during the court ordered psychological counselling.

  10. 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. The applicant did not seek that conditions be placed on the grant of a stay. In BXJ v Children's Guardian [2016] NSWCATAD 11 (BXJ) the Tribunal considered whether to extend a stay which had been previously granted by the Principal Member, on conditions, to the date of final hearing. It was stated by the Tribunal in that matter that it is considered doubtful that the Tribunal, in the circumstances of the application, could lawfully attach conditions which would be permitted by the legislation effectively to the grant of an interim clearance as proposed, if the Tribunal decided that it would be appropriate or desirable to grant a stay on conditions. That is also the conclusion in this matter.

  11. The assessment of the Tribunal, based upon the previously identified information, therefore is that it is not desirable to grant a stay in order to secure the effectiveness of the determination of the application, taking into account both the interests of the applicant and the public interest.

  12. The applicant has not on the present state of the evidence discharged the onus to prove that he does not now pose a risk to the safety of children. This is a task he now has on the final hearing.

  13. 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)

  1. 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.

  1. The Tribunal has previously considered this provision, for example, in CSZ v Children’s Guardian [2017] NSWCATAD 57, and in CHB v Children’s Guardian [2016] NSWCATAD 214. It has been 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.

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

  3. 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."

  1. 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.

  1. The Tribunal is also satisfied that a reasonable person would not allow his or her child to have contact with the applicant contemplated by s 30(1A)(a), because that person would be acquainted with only the relevant facts about which the Tribunal is aware. The applicant has clearly been offence free since the offence which rendered him a disqualified person. The reasonable person would also be aware of the very limited information provided by the applicant.

Conclusion

  1. 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 presumed unless proven to the contrary that the applicant does pose a risk to the safety of children and should not receive a Working with Children Check Clearance. The evidence has not at this point in time discharged the onus to prove that the applicant is not such a risk. The offence which renders the applicant a disqualified person was one which involved a sexualised communication with a child.

  2. It is determined to not be in the public interest to grant a stay. The applicant will not suffer irreparable harm if a stay is not granted based on the information currently before the Tribunal. The interests of justice do not require the grant of a stay.

Order

  1. The order of the Tribunal is that:

  1. The application for a stay or interim order 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 (NSW). 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: 10 October 2018

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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CZI v Children's Guardian [2017] NSWCATAD 179
DNQ v Children's Guardian [2018] NSWCATAD 188
BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126