E and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES

[2022] WASAT 16

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)

CITATION:   E and CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [2022] WASAT 16

MEMBER:   MR D AITKEN, SENIOR MEMBER

HEARD:   23 JUNE 2021

CLOSING SUBMISSIONS FILED 9 JULY 2021, 9 AUGUST 2021 AND 23 AUGUST 2021

DELIVERED          :   28 FEBRUARY 2022

FILE NO/S:   VR 82 of 2020

BETWEEN:   E

Applicant

AND

CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES

Respondent

Catchwords:

Working with Children (Criminal Record Checking) Act 2004 (WA) - Issue of negative notice - Non-conviction charge - Whether unacceptable risk that applicant might in future cause sexual or physical harm to children

Legislation:

Criminal Code (WA), s 329(4)
State Administrative Tribunal Act 2004 (WA), s 27
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 6(1)(a)(xvi), s 9, s 12(2), s 12(5), s 12(8)

Result:

Decision to issue negative notice affirmed

Category:    B

Representation:

Counsel:

Applicant	:	Mr J Lindley (authorised representative)
Respondent	:	Mr J Berson and Ms R Eaton

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

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

Briginshaw v Briginshaw (1938) 60 CLR 336

C and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3

Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20

Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28

Contents

Introduction

Background

Issue

Non-publication of the applicant's name

Naming convention

The evidence and submissions

Statutory framework and legal principles

Should the Tribunal make a finding as to whether the alleged offending occurred or not?

The Tribunal must proceed to analyse and evaluate whether the relevant unacceptable risk has been established

CEO's case

The allegations

The question to be decided by the Tribunal

The CEO's summary of the evidence

The CEO says the Tribunal should find that there is a reasonable suspicion that the allegations are true

Relevant facts and relevant reasonable suspicions according to the CEO

The applicability of the criteria in s 12(8) of the Act

The CEO says there is an unacceptable risk

Applicant's case

The applicant's submissions regarding the evidence

The applicant says the Tribunal should not find that there is a reasonable suspicion that the allegations are true

The applicant's submissions regarding the relevant facts and whether there are any relevant reasonable suspicions

The applicant says he does not present an unacceptable risk to children

The CEO's responsive submissions to the applicant's closing submissions

Is there an unacceptable risk that the applicant might in future cause sexual or physical harm to children in the course of carrying out child­related employment?

Facts

Reasonable suspicions

Expert evidence

Consideration of the criteria in s 12(8) of the Act

When the offence was alleged to have been committed: s 12(8)(b)

The age of the applicant when the offence was alleged to have been committed: s 12(8)(c)

The nature of the alleged offence and any relevance it has to child-related work: s 12(8)(d)

The effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of the charge against the applicant: s 12(8)(e)

Information given by the applicant in relation to his application: s 12(8)(f)

Anything else that the Tribunal reasonably considers relevant to the application: s 12(8)(g)

The best interests of children: s 12(8)(a)

Evaluation of whether there is an unacceptable risk to children

Conclusion

Orders

REASONS FOR DECISION:

Introduction

1. The applicant has applied to the Tribunal for a review of the decision of the Chief Executive Officer of the Department of Communities (respondent or CEO) to issue the applicant with a negative notice pursuant to s 12 of the Working With Children (Criminal Record Checking) Act 2004 (WA) (the Act).

2. The Tribunal must consider the review application de novo (or afresh) and must produce the correct and preferable decision at the time of the decision upon review.  The Tribunal is not confined to matters which were before the CEO and it may consider new material, whether or not it existed at the time the decision of the CEO was made.[1]

   [1] Section 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

3. In dealing with the review application the Tribunal is to exercise the functions and discretions exercisable by the CEO and the Tribunal may affirm the decision of the CEO or set it aside and substitute its own decision.[2]

   [2] Section 29 of the SAT Act.

4. For the reasons which follow I have decided that the correct and preferable decision is to affirm the decision of the CEO to issue the applicant with a negative notice.

Background

1. The applicant applied to the CEO for an assessment notice (commonly called a 'working with children card') under s 9 of the Act.

2. In his application the applicant indicated that he intended to become a Transperth Bus Driver for Path Transit Pty Ltd, which would involve working in 'child-related work', namely a transport service specifically for children.[3]

   [3] Section 6(1)(a)(xvi) of the Act.

3. The CEO made a criminal record check[4] which revealed that the applicant had been tried and acquitted in the District Court in August 2005 (the criminal trial) of a charge of indecent dealing with his then 15-year-old de facto step-daughter in late 2002 or early 2003.

   [4] As required under s 12(2) of the Act.

4. Indecent dealing with a de facto child is an offence against s 329(4) of the Criminal Code (WA) and is a 'Class 2 offence' for the purposes of the Act. Because the applicant was acquitted of that charge it is a 'non­conviction charge' for the purposes of the Act (Non­Conviction Charge).

5. After considering a submission from the applicant and three character references, the CEO issued the applicant with a 'negative notice' under the Act prohibiting him from engaging in child­related work.

6. The applicant then applied to the Tribunal for review of the CEO's decision to issue the negative notice.

Issue

1. The issue to be determined is whether the decision of the CEO to issue a negative notice to the applicant should be set aside and an assessment notice issued, or whether the decision of the CEO should be affirmed.

Non-publication of the applicant's name

1. The complainant in the criminal trial was a step-daughter of the applicant. Section 36C of the Evidence Act 1906 (WA) makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence. Publication of the applicant's name in these proceedings would offend that section. Accordingly, in these reasons the applicant will be referred to as E, and there will be an order made pursuant to s 62(3) of the SAT Act that the name of the applicant not be published, except by the CEO for the purpose of, or in connection with, the performance of his functions under the Act.

Naming convention

1. In these reasons the following naming convention has been used:[5]

   [5] This naming convention is used in the closing submissions of both the CEO and the applicant.

   •T refers to the applicant's step-daughter, the complainant in the criminal trial;

   •L refers to T's younger sister;

   •A refers to the mother of T and L, who is the applicant's wife;

   •G refers to the cousin of T and L;

   •H refers to the applicant's biological daughter;

   •Ms M refers to the host of a party in November 2003 and is the person who T initially resided with after disclosing the allegations to A; and

   •C refers to the daughter of Ms M, who resided with Ms M.

The evidence and submissions

1. At the final hearing the following material was tendered in evidence:

   1)the bundle of documents entitled 'Applicant's Section 24 Bundle' dated 23 February 2021 (Exhibit 1), which includes signed statements of the applicant and A, a research paper entitled 'Grooming and child sexual abuse in institutional contexts' by Professor P O'Leary, E Koh and A Dare, and the Final Report Volume 2 of the Royal Commission into Institutional Responses to Child Sexual Abuse;

   2)the bundle of documents entitled 'Respondent's Section 24 Bundle' dated 6 January 2021 (Exhibit 2) which includes various witness statements obtained in the criminal investigation of the Non-Conviction Charge and transcripts from the criminal trial; and

   3)the expert report of Ms Rosemary Lillian Cant dated 23 March 2021(Exhibit 3).

2. The Tribunal also heard oral evidence from:

   1)the applicant;

   2)H;

   3)A; and

   4)Ms Cant.

3. Following the final hearing, first the CEO and then the applicant filed closing submissions and the CEO filed responsive submissions to the applicant's closing submissions.

4. There has been a significant amount of evidence presented by the parties, both documentary and oral, and the parties have filed lengthy submissions[6].  Those submissions do not lend themselves to being summarised and I will therefore reproduce parts of those submissions in full.  

Statutory framework and legal principles

[6] The CEO's closing submissions are 38 pages in length and the applicant's closing submissions are 61 pages in length.

1. In Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 (IGR), at [6]-[17], the Court of Appeal outlined the statutory framework and relevant legal principles which are applicable to this proceeding as follows:[7]

   [7] Citations and footnotes omitted.

   6As its long title states, the Working with Children (Criminal Record Checking) Act 2004 (WA) (the Act) provides procedures for checking the criminal record of people who carry out, or propose to carry out, child related work. The Act also makes provision to prohibit, subject to exceptions, people who have been charged with or convicted of certain offences from carrying out child related work.

   7The central object of the Act was explained by Buss JA (with whom Wheeler JA agreed) in Chief Executive Officer, Department for Child Protection v Grindrod [No 2], as follows:

   The subject matter and scheme … reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who work in child-related employment and have been convicted of, or charged with, (including charged with and acquitted of) specific criminal offences. The evident legislative purpose is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in child-related employment who pose or may pose a potential threat.

   8The Act prohibits a person from being employed in 'child­related work' unless the person has a current 'assessment notice'. 'Child-related work' is defined in s 6 of the Act.

   9Part 2 of the Act provides for notices. Applications for assessment notices are made under s 9 and s 10 of the Act. The CEO is to decide such an application in accordance with s 12, by issuing: (1) an assessment notice, which allows the applicant to engage in child-related work; or (2) a negative notice, which prohibits a person from so engaging.

   10The CEO must decide the application in accordance with any applicable conditions specified in the Table set out in s 12(3). Relevantly, Item 6 of the Table stipulates the applicable provision as s 12(5) where '[t]he CEO is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence.' 'Non-conviction charge' is defined in s 4 to mean 'a charge of an offence that has been disposed of by a court otherwise than by way of conviction'. By s 7, relevant offences are categorised as Class 1 or Class 2 by reference to, amongst other things, schedules 1 and 2, respectively.

   11Section 12(5) states:

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

   12Section 12(8) provides, relevantly:

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

   (a)the best interests of children;

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

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

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

   (e)the effect of the future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of -

   (i)any offence committed by the applicant; or

   (ii)any charge against the applicant;

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

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

   Section 3 of the Act provides that '[i]n performing a function under [the] Act, the CEO or [Tribunal] is to regard the best interests of children as the paramount consideration'.

   13In Grindrod [No 2], Buss JA (with whom Wheeler JA agreed) explained the proper construction of what was then s 12(4) and s 12(8) of the Act. Since then, the Act has been amended. What was then in s 12(4) was materially identical to the current s 12(5), with which this appeal is concerned. At the time relevant to Grindrod [No 2], s 12(8) did not include the current par (e), but was otherwise identical. In Chief Executive Officer, Department for Child Protection v Scott [No 2], Buss JA (with whom Newnes AJA agreed) substantially reproduced his Honour's explanation in Grindrod [No 2] in construing the previous s 12(5) (which was, relevantly, identical to the previous s 12(4)) and the previous s 12(8). Buss JA's analysis of the previous s 12(4), s 12(5) and s 12(8) in these cases included the following:

   1.Section 12(4) and s 12(5) imposes on the CEO an obligation to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice.

   2.The requisite state of satisfaction required by s 12(4) and s 12(5) must be attained because of the particular circumstances of the applicant's application by reference to the criteria in pars (a) - (f) of s 12(8). The criteria in pars (a) - (f) constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction.

   3.Although the CEO must give separate consideration to each of the criteria in pars (a) - (f), each criterion is not of equal significance in the evaluative exercise which the CEO is required to perform. It follows from s 3 that the CEO must regard the criterion in par (a) as the paramount consideration. If and to the extent that, in any case, a criterion in paras (b) - (f) conflicts with the criterion in para (a), the relevant criterion in pars (b) ­ (f) must yield.

   4.The question for the CEO, in every case, is whether on the information and other material properly before the CEO, and having regard to the criteria in pars (a) - (f) of s 12(8), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction, a negative notice must be issued. Otherwise, the CEO must issue an assessment notice.

   5.Parliament has adopted a precautionary approach in relation to protecting children from the risk of sexual or physical harm, including, relevantly, in relation to the issue of a negative notice to an applicant who has not been convicted of a Class 1 offence or a Class 2 offence, but has a non conviction charge in respect of such an offence.

   14In Grindrod [No 2], Buss JA observed that the relevant statutory provisions do not expressly state what finding, if any, the CEO must make in order to reach the relevant satisfaction. His Honour proceeded to construe the Act to discern what, if anything, is implicit in relation to that question. As the Tribunal made specific reference to, or quoted, a number of the following paragraphs of Buss JA's reasons on that question, it is convenient to set them out in full. His Honour's conclusions included the following:

   [81][I]t is implicit in s 12(4) and (8), in the context of s 3 and [the Act] as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in paras (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.

   …

   [83]'Unacceptable risk' is a familiar concept in the context of family law disputes in relation to parenting (custody or access) matters.  In M v M (1988) 166 CLR 69, the High Court held that, in considering an allegation of sexual abuse in custody or access contexts, the Family Court should not make a positive finding that the allegation is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The High Court also held, however, that custody or access should not be granted to a parent if it would expose the child to an 'unacceptable risk' of sexual abuse. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:

   'Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations.  The degree of risk has been described as a 'risk of serious harm' (A v A [1976] VR 298, at p 300), 'an element of risk' or 'an appreciable risk' (Marriage of M (1987) 11 Fam LR 765, at pp 770, 771 respectively), 'a real possibility' (B v B (Access) [1986] FLC 91-758, at p 75, 545), a 'real risk' (Leveque v Leveque (1983) 54 BCLR 164, at p 167), and an 'unacceptable risk':  In re G (A minor) [1987] 1 WLR 1461, at p 1469. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   In the present case Gun J was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus.  On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access (78).'

   …

   [84]It is not the CEO's function (under s 12(4)) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.

   [85]The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment. The risk in question has to be unacceptable, not likely. Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function.  The critical question remains to be answered, namely, whether on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described. …

   [86]The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:

   (a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);

   (b)the apparent strength or weakness of the case against the applicant in relation to the non­conviction charge in question;

   (c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and

   (d)the likelihood of any such future risk materialising.

   [87]The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions. (original emphasis)

   15In Scott [No 2], Buss JA and Newnes AJA held that, in this context, an appreciable or perceptible risk is an unacceptable risk.

   16In Chief Executive Officer, Department for Child Protection v Hardingham, this court considered the Act after it had been amended in the manner to which we have referred. The court described the amendments as 'affect[ing] the detail but not the substance of the Act'. It confirmed Buss JA's approach in Grindrod [No 2] and Scott [No 2], concluding:

   The relevant finding for the purposes of s 12(4) (now s 12(5)), is whether on all of the information and other material properly before the decision maker, there is an unacceptable risk that the applicant for an assessment notice might in the future cause sexual or physical harm to children in the course of carrying out child related employment. The function of the decision maker is not to decide whether the applicant for an assessment notice is, or is not, guilty of the non conviction charge, but is an assessment of risk with the aim of preventing harm in the future.

   17In Chief Executive Officer, Department for Child Protection v T [No 2], Pullin JA (with whom Newnes JA agreed and Murphy JA generally agreed) confirmed that the task is to determine, on the basis of the information and other material properly before the decision-maker, and having regard to the criteria in s 12(8), whether there is the relevant unacceptable risk, based upon 'facts' or 'reasonable suspicions' bearing upon that risk. Murphy JA stated:

   The 'particular facts' to which reference is made in Grindrod [No 2] [87] would include both primary facts, and inferences of fact drawn from the primary facts. The term 'reasonable suspicions' is used in contradistinction to 'facts' and connotes a reasonable apprehension of matters for which there is nevertheless insufficient warrant to make a positive finding of fact.

   His Honour observed that '"[r]easonable suspicions" may play a proper part in the evaluative process' of determining whether there is an unacceptable risk; however, it is not to be treated as an element of the statutory test requiring its own separate construction and application. 

1. The Court of Appeal also noted in IGR at [121] that in a situation where an applicant has a non-conviction charge the CEO or the Tribunal might reach one of the following three conclusions:

   (1)a positive finding applying Briginshaw[8] that the alleged conduct occurred;

   (2)a positive finding that the alleged conduct did not occur; or

   (3)that no positive finding, one way or the other, can or should be made.

   [8] Briginshaw v Briginshaw (1938) 60 CLR 336

2. The Court of Appeal then stated in IGR, at [124], the following regarding the third category of conclusion:

   The third category of case is that in which the decision-maker concludes that it is not able to, or it is not appropriate to, make a positive finding one way or the other.  That was the position in Grindrod [No 2].  That case demonstrates that an inability to make a positive finding, one way or the other, is not the end of the matter.  The decision-maker must proceed to analyse and evaluate whether the relevant unacceptable risk has been established.

Should the Tribunal make a finding as to whether the alleged offending occurred or not?

1. In his closing submissions the CEO says that the Tribunal should not make a finding as to whether the alleged offending occurred or did not occur.  The CEO also says that the applicant appears to seek a positive finding that the conduct the subject of the Non-Conviction Charge did not occur.[9]

   [9] Para 107 of the CEO's closing submissions.

2. However, in his closing submissions the applicant says that he does not seek a positive finding that the conduct the subject of the Non­Conviction Charge did not occur.[10]

   [10] Para 180 of the applicant's closing submissions.

3. I accept the submission of the CEO, with which the applicant does not take issue, that in the circumstances in this matter I should not make a positive finding one way or the other as to whether the alleged conduct the subject of the Non-Conviction Charge occurred.

The Tribunal must proceed to analyse and evaluate whether the relevant unacceptable risk has been established

1. As stated in IGR at [124], an inability to make a positive finding one way or the other as to whether the alleged conduct occurred is not the end of the matter. I must analyse and evaluate, on the basis of the material before me, and after having regard to the criteria in paras (a)­(g) of s 12(8) of the Act (including, in particular, the paramount consideration of the best interests of children), whether there is an unacceptable risk that the applicant might in the future cause sexual or physical harm to children, in the course of carrying out child­related work.

CEO's case

The allegations

1. The respondent says there are four allegations that are relevant to this proceeding:

   1)The first allegation is that in late December 2002 or January 2003, when the applicant's de facto stepdaughter T was walking past the applicant to get into the kitchen, she bumped into the applicant and they started play-fighting. During the play-fighting the applicant made something resembling a karate move and put his leg behind T's ankle. This caused T to fall to the floor, lying on her back. The applicant stood over T and with one leg either side, lifted T's pyjama top up around her neck. He then grabbed both of T's bare breasts and shook them for approximately 10 seconds. T, shocked and confused, slid out from underneath him and went to her room without saying anything. That is the allegation which is the subject of the Non­Conviction Charge (First Allegation).

   2)The second allegation is that on a weekday about the time of T's semester one exams in 2003, T and the applicant were home by themselves, and T was lying on the couch watching television.  The applicant came inside from the front yard, sat beside T and asked her why she had been distant toward him and why she did not talk to him or hug him or kiss him goodbye.  T tried to ignore the conversation, but the applicant leant over her, put his arms around the top of her shoulders, whispered into her ear that he loved her and kissed her on the neck (Second Allegation).

   3)The third allegation is that following the allegation the subject of the Non-Conviction Charge, the applicant acted in a more aggressive way towards T, in a subtle, kind of sleazy way.  In particular, the applicant would make comments about T's breasts (Comments Allegation)

   4)The fourth allegation is that in late October or early November 2003, the applicant had a conversation with T's younger sister, L, in which they were talking about money and how L could earn more.  The effect of the conversation, as reported by L, was that after discussing strippers and prostitutes, the applicant asked L if she would flash for $10, then $20 before commenting in response to L's protestations that it is better to show him then some 'crazy old drunk' (Flashing Conversation Allegation)

2. The CEO says that the First Allegation, Second Allegation and Comments Allegation were the subject of evidence in the criminal trial of the Non­Conviction Charge and that the Flashing Conversation Allegation was contained in witness statements prepared for the purposes of the criminal investigation.

The question to be decided by the Tribunal

1. The CEO says, correctly, that under s 12(5) of the Act he, or the Tribunal in this review proceeding, (the decision-maker) is required to issue an assessment notice to the applicant unless satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant and that it is the state of mind or satisfaction of the decision-maker that enlivens the power to issue a negative notice. The decision-maker is not entitled to issue a negative notice under s 12(5) of the Act unless it finds, on the basis of the information and other material properly before it, and after having regard to the criteria in s 12(8)(a)-(g) of the Act that there is an unacceptable risk that the applicant might in the future cause sexual or physical harm to children, in the course of carrying out child-related employment. Of the criteria in s 12(8), the criterion in s12(8)(a), which is the best interests of children, is paramount.

2. The CEO says, correctly, that the existence of the Non­Conviction Charge operates as a trigger for the decision-maker to consider the circumstances surrounding the commission of the alleged offence and other information available to the decision-maker relevant to the ultimate question, namely whether the decision-maker is satisfied that a negative notice should issue. The question is whether the decision­maker is satisfied that there is an unacceptable risk that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.

The CEO's summary of the evidence

1. In his closing submissions the CEO sets out the following summary of the evidentiary material that is before the Tribunal:[11]

   [11] Paras 29-92 of the CEO's closing submissions, with the para numbers and footnotes omitted.

   The History of Disclosure

   Although there is some dispute as to the order of the disclosure, there can be no real dispute that between January 2003 and March 2003 T disclosed the allegation constituting the Non-Disclosure Charge to her sister, L and her cousin G.  T subsequently disclosed the substance of the allegation to her mother, A in late November 2003 the same day she moved out of home.

   T subsequently disclosed the substance of the allegation to the Western Australia Police on or about 28 November 2003.

   The Complainant's Witness Statements

   T first gave a statement to Police on 28 November 2003.

   The statement:

   recounted the allegation the subject of the Non-Conviction Charge;

   stated that T told G about what happened about two weeks later;

   recounted other behaviours of the Applicant namely:

   that the applicant would make remarks about T's breasts;

   an incident in the middle of 2003 where the accused leant over the top of T, hugged her tightly, told her that he loved her and kissed her on the neck (being the Second Allegation);

   recounted T's disclosure of the allegation to A.

   On 11 December 2003, T provided a subsequent statement to Police that was in all respects materially the same as the statement given to Police on 28 November 2003, except paragraph [8] was amended to state that the Applicant lived with A, not with his parents in [suburb].

   T's Pre-Recorded evidence from the Criminal Proceedings: 16 December 2004

   Prior to T's pre-recorded evidence, the prosecution amended the outer offence date to 1 March 2003 as a result, in part, of a proofing session with T in which she appears to have stated that the alleged conduct the subject of the Non-Conviction Charge occurred during the school holidays, sometime after Christmas.

   T's evidence in chief was generally consistent with her statement of 28 November 2003.  There were the following minor inconsistencies:

   T was unsure as to the precise day on which the conduct was said to occur, noting that she was 'pretty sure it was a Sunday' and it had happened between Christmas Day and the beginning of the school year; and

   T stating that L was the first person she told about the alleged conduct.

   Further, whilst not inconsistent with her statements to Police, T also recalled an additional incident in which the Applicant stated to her that he knew she was being distant because he had touched her and it was the wrong thing to do.  This incident was said to have occurred between T telling L, and the Second Allegation.

   T maintained this version of events under cross-examination, but was no longer sure the alleged incident occurred on a Sunday.

   The Applicant's Police Interview

   The Applicant was interviewed by Police on 17 December 2003. During the course of the interview, the Applicant accepted that he would engage in "[k]ids play" with T:

   "[T] would squirt you with a bottle or she'd bump you in…like it was a tea-towel flick situation - -um, sometimes that would get out of hand between her and he sister so you'd have to sort of get bruised by going in the middle to separate them…".

   This behaviour was said to be quite regular until two weeks prior to the Applicant being told of the allegation relevant to the Non-Conviction Charge.

   The Applicant stated that on a couple of occasions he had lowered T to the deck gently, but that many times it was outside the property and there had always been somebody around them.  The Applicant referred to the incident in [place name] as a turning point in his relationship with T.

   The Applicant's Evidence from the Criminal Proceedings

   The Applicant gave evidence in his defence during the trial in August 2005.  He denied the alleged conduct.

   The Applicant gave evidence about his movements (and A, T and L's movements) during the relevant summer holidays.

   The Applicant gave evidence that prior to the school holidays his relationship with T was good noting that "[i]f she walked past me and she give me a thump I'd give her a thump back…It'd be you know, just a flick light. I could be walking past her and there'd be a tea towel that would be flicked".

   The Applicant elaborated on the 'kids play' and 'horseplay' he engaged in with T stating that they would '[p]lay fight' and he would teach her basic self-defence moves.  These basic self-defence moves would sometimes involve the Applicant lowering T onto the floor in the lounge room or the backyard.  The Applicant also stated in re­examination that he and T would accidentally and deliberately bump into each other going in and out of the kitchen.

   The Applicant otherwise suggested that the relationship with T deteriorated after an incident in [place name] where he collected her from the beach at night noting "[s]he became very cold, very bitchy, not as cooperative as she was prior".

   Other Evidence

   Evidence and Witness Statement of Complainant's Sister L

   L gave a statement to Police on 28 November 2003.

   L recounted an incident with the Applicant in late October or early November 2003 where she and the Applicant were talking about money and how L could earn more.  L recalled the Applicant telling her that there were not many jobs around for 14 year olds to earn a lot of money and that the only 14 year olds that were paid well were the 'stupid ones' that work on the street as prostitutes or strippers.  In response, L said she should become one, and the Applicant said words to the effect of "It's just like flashing for $100.00.  Would you do it for $10.00?", to which L replied no.  The Applicant was then said to have asked "[w]hat about $20.00?", and when L again said no and asked if he was "mucking around", the Applicant stated "[n]o, it is better to show me than some old crazy drunk."

   L also stated that T had told her in January or February of 2003 that the Applicant had lifted T's T-shirt up and touched her breasts with his hands and that T was not wearing a bra.

   L gave evidence at the trial via a pre-recorded video.  In examination in chief, L elaborated on the conversation between her and T where T disclosed the alleged conduct to L.  L maintained her account of the conversation under cross-examination.

   Witness Statement Ms M

   Ms M, the mother of a friend of T's, provided a statement to Police on 28 November 2003.  Ms M recounted T, whilst affected by alcohol, disclosing an allegation against the Applicant similar to the conduct the subject of the Non-Conviction Charge, but different in material respects.  Ms M was not called as a witness in the criminal trial.

   Witness Statements of G

   G provided two statements to Police, a handwritten statement dated 12 December 2003 and a typed statement dated 31 December 2003.  The statements are materially the same.

   G recounted that T disclosed the allegation the subject of the Non­Conviction Charge to her in 2003, possibly, in March. T also told G that she had told her sister, L, what had happened. G also recounted an incident from June or July 2003 when T called her and said that the Applicant had touched her hand and made her feel uncomfortable. As a result, G went and picked T up from the house she lived at with the Applicant.

   Witness statements and evidence of A

   A provided two statements to Police, one handwritten statement on 17 December 2003 and one typed statement on 9 January 2004.  The statements are materially the same.

   A recounted that on 19 November 2003 T and L disclosed to her the allegation the subject of the Non-Conviction Charge as well as the conversation L had with the Applicant regarding L earning money.  In response A told both girls that she was there to support them and that they needed to all sit down and talk about it.  When T and L were not agreeable to that, A suggested counselling, which T and L were also not agreeable to, reportedly saying that they did not need counselling and that there would not be a problem if A got rid of the Applicant.

   A told T and L that she found the allegations very hard to believe and did not understand why the information was only just coming out now.  A also recounted that when she asked T why she had not told her father or A or anyone earlier, T stated that she did tell G.

   A also recounted that T informed her of the Second Allegation.

   A gave evidence on behalf of the Applicant at the criminal trial.  In her examination in chief, she recalled purchasing pink pyjamas for T as a Christmas present for Christmas 2002.  She recounted that nearly every Sunday she would go to her mother's, and the Applicant would occasionally accompany her and do odd jobs around the house.  She also recalled the Applicant and T 'always play fighting, mucking around…' with the Applicant showing T 'karate moves'.

   A also noted that the relationship between T and the Applicant was cool for a couple of weeks after the [name of town] trip, but that T settled down a couple of weeks later.

   A also stated that in the weeks leading up to T and L moving out, T had made comments about going to live with her father because it was going to be easier over there, and there were not so many rules.  This did not form part of her statement to Police.

   A also gave evidence about the movements of T and L and the family more generally during the summer school holidays of 2002 to 2003.  In cross-examination, A accepted that she and the Applicant had discussed the allegation the subject of the Non-Conviction Charge over the course of the relationship and had looked back at the school holidays and tried to reconstruct the girls' movements over those holidays.

   ADDITIONAL EVIDENCE PROVIDED BY THE APPLICANT

   The Applicant's Evidence

   The Applicant provided a witness statement to the Tribunal dated 23 February 2021 and gave evidence on his own behalf.  Under cross­examination, the Applicant appropriately accepted that his recollection of events was likely to be more accurate at the time of his initial record of interview with Police and at the time of the criminal trial than the present day.  Therefore, to the extent there is any inconsistency between that evidence and the witness statement dated 23 February 2021 or his oral evidence, the earlier evidence is to be preferred.

   Consistent with the position taken in the criminal trial, the Applicant denied the allegations made by T and L both in his statement and in his oral evidence.

   The statement addresses his current employment circumstances and the absence of any further allegations against him.  This was reiterated in his oral evidence.

   The Applicant asserted that he believed the allegations T made against him 'kicked off' after [name of place] and then at the barbeque at Ms M's household (as a result of the Applicant disciplining T in front of her friends).  However, this is the first occasion upon which the Applicant has raised the barbeque at Ms M's household as a reason for T's allegations.  It was not raised in his record of interview with Police in December 2003, nor did the Applicant assert in his evidence at the criminal proceedings that he dressed T down in front of her friends at the barbeque.  Rather it was A who spoke to T that night and had disciplined T the following day.  This was accepted by the Applicant in cross-examination and he later clarified that it was really the incident in [name of place] in his view that led to T's allegations.

   In relation to the Flashing Conversation [Allegation], the Applicant admitted that he had a conversation with L about money after picking up L from work where L said words to the effect of 'maybe I'll have to do my dancing', but denied the conversation referred to earning money by 'flashing'.

   The Applicant also sought to cast doubt on the credibility of the Non­Conviction Charge allegation by suggesting that as T was a 'heavier girl' he would have struggled to get her onto the ground. This is notwithstanding his evidence in the Record of Interview given to Police that he had previously lowered T to the deck gently on a couple of occasions, and there were occasions when T 'ended up on the ground'.

   The statement, and the Applicant's oral evidence, otherwise sought to cast doubt on the allegations by impugning T's character and casting aspersions on the family of Ms M, and their influence on T.

   At times the Applicant was evasive under cross-examination.  For example, the Applicant did not accept that he had discussed the allegations with A.

   A's Statement of 23 February 2021

   A provided a witness statement in support of the Applicant's application, and she gave oral evidence to similar effect.  The statement attempts to place blame on T's relationship with Ms M's family and also raises difficulties in T's behaviour that arose prior to the Applicant's entry into her life.  Importantly, A does not recall any incidents that would make her believe that T was a compulsive liar.

   A also elaborated on her discussion with T when T reported the alleged conduct that formed the substance of the Non-Disclosure Charge.  That is, A stated that she told T that they should go to the police straight away and T said 'No'.

   For the reasons that follow, that evidence should not be accepted. In neither of A's statements, nor in her evidence before the criminal trial does she recount that she advised T that they should go to the police. Rather, the options offered were to all sit down (including the Applicant) and talk about it, or for T and L to undergo counselling.  This was accepted by A in cross-examination, but she maintained that there were elements that Police did not include in her statements.

   On its face, there is no reason for Police to have omitted what appears to be a significant detail in her recounting of T's disclosure, nor is there any reason for the information not to have been led at the criminal trial.

   A also accepted in cross-examination that she and the Applicant had discussed the allegations on many occasions since the criminal trial. Specifically A accepted that she and the Applicant had discussed the reasons why T and L may have made the allegations they did and had discussed it recently since the Applicant was issued with the negative notice.  A also accepted that, subject to her qualifier that there were important, unspecified, things that Police did not include in her statement or that she did not give evidence about, her recollection of events would have been 'fresher' in 2003 and 2005.

   In relation to the barely concealed suggestion that the negative influence of the family of Ms M somehow bore some causative relationship to T's allegations, A accepted, consistent with her statement, that the first time she had a proper discussion with Ms M was at the criminal trial.  She further accepted, consistent with her evidence at the criminal trial, that although T had known C for a number of years, they did not become close friends until 6 months prior to November 2003, after T had disclosed the allegations to L and G.  This necessarily casts doubt on A's evidence that the T's relationship with the family of Ms M was somehow a causative factor in T's supposed fabrication of the allegations.

   In her oral evidence, A made clear that she did not believe T's allegations from the time that T disclosed the allegations to her in November 2003.  Further, A's attitude towards the allegations and her relationship with T and L since those allegations were disclosed, was best exemplified when A recalled calling L an abusive term.  The basis for calling L the abusive term was in response to L reiterating her belief in T's version of events.  In response, A recounted calling L the abusive term on the basis that T had previously called her that term, 'so it must be true'.  The Tribunal may infer the term at issue was the same or similar to the one recorded in A's witness statement.

   Evidence of H dated 13 March 2021

   H provided a statement in favour of the Applicant which detailed H's view of her father's character.  Similarly, in her oral evidence, H also attested to her father's character and her relationship with him.

   Character References

   The Applicant provided three character references, two from family members and one from a family friend.  The character referees are all aware of the allegations made by T and the criminal trial and all speak to the high level of trust they place in the Applicant.

   THE EXPERT EVIDENCE

   The Tribunal also has the benefit of an expert report from Ms Rosemary Cant and oral evidence from Ms Cant.  Ms Cant was, as is to be expected, a professional witness who expressed her opinions on the basis of information provided.  Where appropriate, Ms Cant qualified her answers (both in her written report and orally).

   The Applicant appeared to attempt to discredit Ms Cant's evidence by identifying documents that were not provided to Ms Cant.  Any such suggestion misunderstands the nature of the evidence provided by Ms Cant and the Statement of Facts and Assumptions upon which she was instructed.

   There can be no dispute as to the relevant Facts and Assumptions provided to Ms Cant.  The facts and assumptions are expressed as allegations and are consistent with the evidence provided at the criminal trial.  Additionally, under cross-examination, the Applicant accepted that he did not dispute the accuracy of paragraphs in the Respondent's SIFC that summarised relevant evidence, rather he disputed the substance of the allegations themselves (see for example in relation to paragraph [62] of the Applicant's SIFC).

   As the Respondent's Opening Submissions set out, Ms Cant was not asked the ultimate question that the Tribunal is required to answer. Rather, her evidence addressed the significance of the alleged conduct (being the [First Allegation], the Second Allegation, the Comments Allegation and the Flashing Conversation [Allegation]) as well as other matters that pertain to allegations of grooming and sexual abuse.  Ms Cant was not asked to, nor was she required to, assess the factors which bear upon risk identified in Grindrod (No 2), which are set out below at [96]. Those are matters for the Tribunal to assess having regard to the evidence before the Tribunal, including the evidence of Ms Cant.

   In any event, the following propositions can be drawn from Ms Cant's report and her evidence before the Tribunal.

   First, grooming behaviour may take the following, relevant, forms:

   boundary violations, which involve invading the child's privacy and failing to respect personal boundaries;

   inappropriate touching of the child, which may involve inappropriate touching of groins, bottoms, and breasts over clothing, tickling, and horseplay, hugging, and wrestling to gradually sexualise contact with the child;

   sexualisation of the relationship, for example by talking about sex in way that is not permissible given the relationship;

   inappropriate non-sexual communication with the child, for example telling the child 'you are the only one who understands', or telling the child 'I love you' when not appropriate;

   Second, the following alleged conduct of the Applicant described by T and L may be consistent with grooming behaviours with a sexual motivation:

   the play fighting described by T immediately prior to the assault may be consistent with inappropriate touching (notwithstanding that there are insufficient details to know whether the behaviour has become predatory but the sequence off the conduct described suggests the play fighting was grooming behaviour);

   the Second Allegation is suggestive of an inappropriate non­sexual communication and a possible boundary violation;

   the Comments Allegation is suggestive of sexualisation of the relationship, which is an exemplar of grooming; and

   the Flashing Conversation [Allegation] is also suggestive of sexualisation of the relationship with L and is consistent with grooming.

   In her oral evidence, Ms Cant advised that such matters were relevant to the risk the Applicant posed to children as it indicated that he may have behaved in this manner previously and poses a risk to children in similar situations.

   Ms Cant also elaborated that if more than one type of grooming behaviour is indicated, it is more likely that the relevant behaviours that are consistent with grooming, are being carried out with a sexual motivation.

   Third, a person's perceived good character does not make a person less likely to commit an offence against a child.  Further, good character or an image of a good person may be used by abusers to deflect any possible allegations of misconduct.

   Fourth, fabrication of allegations of grooming behaviour and sexual assault is not common, with the percentage of older children suspected of lying about such allegations being small, in the order of 5 to 8%.

   Fifth, a child's failure to disclose the full details of alleged abuse and grooming in one sitting is not uncommon.  Neither are inconsistencies and lack of precision in relation to particulars in statements given before trial, compared to evidence given in court.  Further, such matters are not indicative of inaccuracy or fabrication.

   In cross examination, Ms Cant stated that inconsistencies in a complainant's discussion of peripheral elements of the offending are to be expected, but that it is also to be expected that a complainant would have a solid recollection of the core elements of the event. In re­examination, Ms Cant explained that core elements relate to the physical acts of the assault (for example in relation to the Non­Conviction Charge, core elements would include the roughhousing and groping of the breasts) and peripheral elements would relate to matters such as the timing of the alleged offence.

   Sixth, as Ms Cant explained in her evidence, there is no consistent way in which a complainant responds to sexual abuse, such that a lack of outrage or emotional upset is not unusual.

   Finally, Ms Cant's assessment was that given the absence of allegations against the Applicant since 2003, he likely posed a 'low risk'" to children, but that assessment was situationally dependent.

The CEO says the Tribunal should find that there is a reasonable suspicion that the allegations are true

1. The CEO says that the Tribunal should not make a finding as to whether the alleged offending occurred or did not occur, but that the Tribunal should make a finding that there is a reasonable suspicion that the allegations made by T against the applicant are true for the following reasons:[12]

   [12] Paras 111-120 of the CEO's closing submissions, with para numbers and footnotes omitted.

   First, while there were inconsistencies in T's evidence (including as to the potential day on which the conduct was said to occur), the central part of her allegations against the Applicant remained consistent with each telling.  Although it is difficult for the Tribunal to make assessments as to credibility given it has not had the benefit of seeing or hearing T's evidence, the consistency of T's evidence in her statements and at the criminal trial is a significant factor.  Under sustained cross­examination T did not waver from the central allegations against the Applicant.

   T was also frank when dealing with topics that could be said to be against her interest or which may have portrayed her poorly.  She was frank in recognising that the account Ms M provided of T's report of the alleged conduct was not what happened, and that she might have been affected by alcohol when talking to Ms M.  Further, T was open about her attitude towards the Applicant, including that the incident that occurred at [name of place] had annoyed her because the Applicant had embarrassed her, but she had gotten over it (which was consistent with A's evidence at the criminal trial and before the Tribunal) and that she would have preferred the Applicant not to have lived at the house.

   T's report of the Applicant's alleged confession was absent from her statement.  When challenged under cross-examination as to why it was absent from her statement, T simply replied that she did not think it was relevant that the Applicant was denying at trial, what he had previously admitted.  It was only when the prosecutor asked her questions about conversations that had with the Applicant that she disclosed the conversation, as police had never asked her about it.  Such an explanation is consistent with Ms Cant's evidence that disclosure of information can depend on forensic interview techniques.

   Second, T's account in November 2003 and December 2004, was consistent with her reports of the alleged conduct to L and G in early 2003.  Although much was made at trial about who T told first given her statement indicated it was G, G's statements to Police are consistent with T's evidence at trial that L was the first person she told about the alleged conduct the subject of the non-conviction charge.

   Third, the discrepancies and inconsistencies do not suggest that T has fabricated, and maintained, a detailed account of the alleged conduct constituting the subject of the Non-Conviction Charge.  Rather, Ms Cant has explained that such discrepancies and inconsistencies are not indicative of inaccuracy or fabrication and inconsistencies may be expected when recalling peripheral elements such as the date and time of the alleged offending, as opposed to core elements of the abuse (on which T was entirely consistent).

   Fourth, although it was never squarely put to her, in re-examination T rejected the assertion that she had made up the allegation as a result of a grudge from the [name of place] incident or being grounded in November.  In fact, the disclosures to T and G in early 2003, and the delay in reporting the alleged conduct to A runs contrary to such a suggestion.  Further, the timing of T's disclosure to A is also explicable by reference to T's reported anger and upset when L reported the Flashing Conversation [Allegation].

   Attempts by the Applicant in these proceedings to suggest that the influence of the family of Ms M also had causative relationship to T making the allegations are without merit.  This is particularly so when regard is had to the fact that the disclosures to L and G occurred prior to T and C becoming close friends.  Further, this is the first occasion on which such allegations have been made and may be a result of discussions between the Applicant and A over the years.

   Fifth, T's allegation is, in part confirmed by the evidence of A and the Applicant.  That is, it was accepted that the Applicant and T would play fight, with the Applicant performing karate moves on T that ended up with T on the floor.

   Sixth, the Applicant's acquittal does not disprove the child complainant's account.  As the Court of Appeal in Chief Executive Officer, Department for Child Protection v T observed:

   The error … was to assume that the jury did not believe the complainants or preferred the evidence of the applicant.  That was not correct because all that can be inferred from the verdict is that the jury was not satisfied beyond reasonable doubt that the charges had been proved.  The jury might have preferred the evidence of the two complainants to the evidence of the respondent, and yet still have entertained a reasonable doubt about the respondent's guilt.

   In short, T's account of the Applicant's alleged conduct was credible and plausible, and cannot be characterised as inherently unlikely.  There is a reasonable suspicion that T's allegations are true.  However, it is important to remember that '[s]uch a finding is the beginning and not the end of the analysis' required under the Act.

Relevant facts and relevant reasonable suspicions according to the CEO

1. The CEO says that the following are relevant facts and relevant reasonable suspicions:[13]

   [13] Paras 121-128 of the CEO's closing submissions, with para numbers and footnotes omitted.

   Relevant facts

   It is not in dispute that the Applicant was the subject of a Non­Conviction Charge and the allegations made in the charge was serious. It also is not in dispute that the Applicant was acquitted of the offence. Nor can it be disputed that the acquittal 'did not establish the contrary facts in the [Applicant's] favour', but rather 'merely signifies that the [prosecution] has failed to establish its case beyond reasonable doubt.'

   Moreover, the Tribunal can be satisfied to the requisite standard of the following relevant factual matters:

   T reported the alleged conduct that forms the subject of the Non­Conviction Charge to L and G in early 2003;

   T reported the alleged conduct to Police in November and December 2003;

   in November 2003 T reported to Police other alleged behaviour of the Applicant that was consistent with grooming behaviours, namely the Second Allegation and the Comments Allegation;

   in November 2003, L reported to Police alleged behaviour of the Applicant which were consistent with grooming behaviour, namely the Flashing Conversation [Allegation];

   the Applicant had a conversation with L, in part consistent with L's account, about earning more money after the Applicant picked L up from work, and such a conversation included a reference to L's dancing;

   A did not believe the allegations made by T or L at the time the allegations were disclosed to her;

   the Applicant engaged in behaviour, namely roughhousing with T, that was potentially consistent with grooming behaviours; and

   the Applicant poses a risk, and to the extent that risk can be quantified it is a low risk, of sexual offending in the future.

   Relevant reasonable suspicions

   In addition to a reasonable suspicion that the allegations the subject of the Non-Conviction Charge might be true, the material before the Tribunal, gives rise to a number of reasonable suspicions that are relevant to the assessment of risk.

   First, there is a reasonable suspicion that the Applicant engaged in grooming behaviour with sexual motivation, particularly in respect to 'roughhousing', boundary violations, inappropriate non-sexual communication and sexualisation of the relationship with T.

   At the least, there is a reasonable suspicion that the Applicant engaged in behaviour with T that was consistent with grooming behaviour with sexual motivation.

   Second, there is a reasonable suspicion that the Applicant engaged in grooming behaviour with sexual motivation with [L][14], namely sexualisation of the relationship through the Flashing Conversation.

   Again, at the very least, there is a reasonable suspicion that the Applicant engaged in behaviour with L that was consistent with grooming behaviour with sexual motivation.

   Given these findings, it follows that the Tribunal should take the view that at the very least there is a reasonable suspicion that the Applicant poses a risk to children if he were to engage in child-related work. As noted above, an appreciable or perceptible risk is an unacceptable risk in this context.

   [14] In para 126 of the CEO's closing submissions, he refers to T, which is clearly an error and I have taken this to be a reference to L.

The applicability of the criteria in s 12(8) of the Act

1. The CEO makes the following submissions regarding the applicability of the criteria in s 12(8)(a)-(g) of the Act in the circumstances of this matter:[15] 

   [15] Paras 129-152 of the CEO's closing submissions, with para numbers and footnotes omitted.

   Section 12(8) of the Act provides:

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

   (a)the best interests of children;

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

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

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

   (e)the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of ­

   (i)any offence committed by the applicant; or

   (ii)any charge against the applicant;

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

   (g)anything else that the CEO reasonably considers relevant to the

   decision.

   While the analysis and evaluation of risk must be based on all the information and other material properly before the decision maker, it is nonetheless helpful to briefly highlight the following factors relevant to the assessment of risk from the information and material before the Tribunal. Each of these factors are addressed in turn below with the first factor, the best interests of children, considered last as the paramount factor.

   (a)When the offence was committed

   The Respondent readily accepts that the Non-Conviction Charge that triggered the discretion under s 12(5), along with the other allegations, occurred nearly 20 years ago. The Respondent accepts that some weight should be given to the length of time since the Non-Conviction Charge was alleged.

   However, the Second Reading Speech for the Working with Children (Criminal Record Checking) Amendment Bill 2009 (WA) records that the passage of time without further charges is not, itself, sufficient to issue an assessment notice 'if a repetition of the type of behaviour would result in significant harm to a child.'

   Thus, the lack of further allegations, charges or convictions must not be considered an overwhelming or even significant factor in the Applicant's favour.  Rather, the lack of offending or alleged offending must be considered in the appropriate context and tempered by it.  The focus must remain on the potential harm to children from allowing the Applicant to engage in child-related employment.

   As such, while this factor does favour the Applicant it does so to a limited degree.  The Tribunal should attach little weight to this factor in analysing whether there is unacceptable risk.

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

   If the Applicant were a young man at the time of the Non-Conviction Charge, then this may have been a relevant factor that would attract some weight.  However, he was approximately 43 years old at the time. Accordingly, the age of the applicant when the offences were alleged to have been committed is not a factor that would reduce risk of sexual harm. This factor does not favour the Applicant in assessing whether there is unacceptable risk.

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

   In G v CEO No 2, the Tribunal found that s 12(8)(d) also related to alleged offences despite the fact it only referred to 'offences'. The Tribunal explained:

   In context, s 12 uses the word 'offences' consistently; it does not use the term 'alleged offences'.  Rather if a person has a non­conviction charge for a Class 1 offence or Class 2 offence, s 12(5) of the WWC Act applies: item 5 in the Table following s 12(3)(b) of the WWC Act.  Section 12(8) commences by stating '[i]f subsection (5) or (6) applies in respect of an offence'.  Having regard to the Table following s 12(3)(b), subsection (5) may apply where there is a charge in respect of a Class 3 offence, a Class 3 offence of which the applicant has been convicted or the applicant has a non-conviction charge in respect of a Class 1 or Class 2 offence.  The 'offence' referred to at the commencement of subsection (8) may therefore be one of which there is a pending charge, a conviction or a non­conviction charge.

   Given the nature of the alleged offending, the Non-Conviction Charge is highly relevant to child-related work.

   Additionally, the nature of the alleged offending is not trivial and on the scale of seriousness of such offences, is moderately serious. The alleged offending was against the Applicant's de facto step-daughter and, as described, constituted a brazen and opportunistic touching by the Applicant when T was alone and vulnerable.

   Section 12(6) of the Act provides that a person convicted of a Class 2 offence is to be issued a negative notice unless the Respondent is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued. That provision evinces the view of the seriousness of the alleged behaviour taken by the legislature in that in the event of a conviction Parliament requires there be exceptional circumstances, before an assessment notice will issue.

   The nature of the alleged offence favours finding that there is an unacceptable risk in permitting the Applicant to engage in child-related work.

   (d)The effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of any offence committed by the applicant

   The alleged conduct the subject of the Non-Conviction Charge involves indecent dealing of a child who was 15 years of age at the time of the conduct by a person who is her stepfather.  It is uncontroversial that the effect of same or similar conduct as that alleged would be significant and serious.126 This factor also favours finding there is an unacceptable risk in permitting the Applicant to engage in child-related work.

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

   As outlined above at paragraphs [61] to [77], the Applicant has filed further material in relation to the application in the form of his own statement, character references and witness statements of A and H.

   (i)Applicant's evidence

   The Applicant's witness statement and evidence is generally consistent with the denials of the Non-Conviction Charge. It does not add much for the Tribunal's consideration of unacceptable risk.

   (ii)Character references

   The character references are of limited use for the Tribunal and little weight, if any, should attach to them.  They are evidence that each referee believes the Applicant to be of good character, but are not logically probative in making a finding that the Applicant does not pose an unacceptable risk to children or is less likely to engage in such conduct in the future.

   Ms Cant recognised that simply because a person's perceived 'good character does not preclude or limit the potential for that person to expose a child to harm'.  The Tribunal has previously recognised this, explaining in A and Chief Executive Officer, Department for Child Protection and Family Support:

   The premise that a person with 'good character' is unlikely to harm a child is unfounded. An evaluation of A's character by others is ill-suited to reliably mitigate any identified risk in A's behaviours and conduct.

   (iii)Witness statements

   The witness statements and evidence produced by A and H for the purpose of the Tribunal proceedings on behalf of the Applicant variously attest that no inappropriate behaviour toward children on his behalf has been observed, there are no concerns with him being around children, and no other children other T has made complaints against him. Those aspects of the witness' evidence are also of limited use for the Tribunal.  The evidence effectively reads as character references in support of the Appellant.  As with the other character references supplied, they are not logically probative in making a finding that the Applicant does not pose an unacceptable risk to children or is less likely to engage in such conduct in the future.  The Tribunal should attach little weight, if any, to such statements.

   Parts of the Applicant's and A's witness statements also address alleged behavioural issues of T. That evidence is not logically probative to assessing risk.  T was consistent, clear and credible in her allegations against the Applicant, including under sustained cross-examination.

   Finally, other aspects of the witness statements were confirmatory or otherwise consistent with the accounts provided by T and L.

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

   Along with allegations that are not the subject of the Non-Conviction Charge (which are dealt with in the section dealing with facts and reasonable suspicions that the Tribunal should find), the Tribunal should also note that it is not in a position to put such conditions on the issuing of an Assessment Notice.  That is, there is no authority to issue assessment notices subject to conditions such as supervision so as to safe-guard children while maintaining an applicant's employment and volunteering choices.  Thus, the fact the Applicant does not want to work with children in particular as he testified, is not a factor which is logically probative to assessing risk in this context. This is because the issuing of an Assessment Notice will allow the Applicant to engage in any child-related work irrespective of the Applicant's current intention.

   (g)The best interests of children

   The Tribunal and the Court of Appeal have stated on numerous occasions that the criterion in s 12(8)(a) of the Act is paramount and to the extent that a criterion in paragraphs (b)-(f) conflicts with the criterion in para (a), the relevant criterion in pars (b)-(f) must yield.

   Consequently, it is the potential consequences to children which are paramount when resolving issues and doubts arising from the analysis purpose of considering whether the applicant's range of employment choices should continue to include high risk child-related work. While the Tribunal may recognise the detriment to the Applicant if he cannot take up further employment opportunities, it is not a factor which it can take into consideration because it is the potential consequences to children which are paramount. It is important to note that the precautionary approach under the Act 'does not involve a balancing of the risk of harm to young people against the civil and economic rights of an adult, nor is there any punitive or disciplinary purpose involved.'

   It is clearly in the best interests of children to not expose them to the risk of sexual harm.  Although the Tribunal may consider that the Applicant poses a 'low risk' of sexual offending in the future, such a conclusion does not really assist the Applicant given there still remains some risk of him committing sexual offences in the future.  Clearly, it is in the best interests of children to not expose them to such a risk.  This factor strongly favours finding there is an unacceptable risk in permitting the Applicant to engage in child-related work.

1. Section 3 of the Act provides that in performing a function under the Act the CEO or the Tribunal is required to regard the best interests of children as the paramount consideration. Therefore, I will consider the criterion in s 12(8)(a) of the Act last.

2. The CEO has made submissions regarding the applicability of the criteria in s 12(8) of the Act, which are set out in [32] of these reasons.

3. The applicant has not made submissions regarding the applicability of those criteria, other than to note that the criterion in s 12(8)(a) of the Act is paramount.[41]

   [41] Para 210 of the applicant's closing submissions.

When the offence was alleged to have been committed: s 12(8)(b)

1. The CEO acknowledges that the alleged offence, which was the subject of the Non-Conviction Charge, and the other allegations, allegedly occurred nearly 20 years ago and that some weight ought to be given to that length of time.

2. However, the CEO says that the lack of further allegations, charges or convictions during that time must not be considered an overwhelming or even significant factor in the applicant's favour.  The CEO says that while this factor does favour the applicant the Tribunal should attach little weight to it in analysing whether there is an unacceptable risk.

3. I note that the alleged offence and the alleged conduct the subject of the other allegations allegedly occurred about 19 years ago, which is a considerably long time ago.  I will take this into account in making my decision.

The age of the applicant when the offence was alleged to have been committed: s 12(8)(c)

1. The applicant was 43 years of age when the alleged offence allegedly occurred. I accept the CEO's submission that this factor does not favour the applicant and I will take this into account in making my decision.

The nature of the alleged offence and any relevance it has to child-related work: s 12(8)(d)

1. I accept the CEO's submission[42] that this criterion applies to alleged offences, and therefore to the Non-Conviction Charge.

   [42] Referring to C and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3 at [174]

2. I also accept the CEO's submission that the alleged offending by the applicant, a charge of indecent dealing with the applicant's then 15­year-old de facto step­daughter, is serious and highly relevant to child-related work and I will take this into account in making my decision.  

The effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of the charge against the applicant: s 12(8)(e)

1. I accept the CEO's submission that the effect of future conduct by the applicant the same or similar to the alleged conduct the subject of the Non-Conviction Charge would have a significant and serious effect in relation to a child and I will take this into account in making my decision.

Information given by the applicant in relation to his application: s 12(8)(f)

1. The applicant has provided the following evidence and information in support of his application:

   1)the applicant's witness statement and his oral evidence during the final hearing;

   2)the witness statement of H and her oral evidence during the final hearing;

   3)the witness statement of A and her oral evidence during the final hearing;

   4)character references from two family members and a family friend; and

   5)a research paper entitled 'Grooming and child sexual abuse in institutional contexts' by Professor P. O'Leary, E Koh and A Dare, and the Final Report Volume 2 of the Royal Commission into Institutional Responses to Child Sexual Abuse.

2. I will take that evidence and those character references into account in making my decision.  However, for the reasons stated in [66] of these reasons I have decided not to give any weight to that research paper and the Royal Commission's report.

Anything else that the Tribunal reasonably considers relevant to the application: s 12(8)(g)

1. I accept the CEO's submission that it is relevant that I consider the allegations which were not the subject of the Non-Conviction Charge, being the Second Allegation, the Comments Allegation and the Flashing Conversation Allegation.  In [63] of these reasons I have stated that I have a reasonable suspicion that the Second Allegation, the Comments Allegation and the Flashing Conversation Allegation may be true.  I will take that suspicion regarding these allegations into account in making my decision.

2. I also accept the CEO's submission that it is relevant that I take into consideration that it is not possible to place conditions on the issue of an assessment notice and that if I decide to issue an assessment notice to the applicant he will be permitted to engage in any 'child-related work', as defined in s 6 of the Act. The fact that the applicant says that 'he has never desired to actually work with children'[43] does not diminish the risk that in the future he may decide to do so if an assessment notice is issued to him.  I will take this into account in making my decision.

   [43] Para 211 of the applicant's closing submissions, set out in [40] of these reasons.

The best interests of children: s 12(8)(a)

1. As I have already stated (and as agreed by both the applicant and the CEO) the paramount consideration for me to take into account in making my decision is the best interests of children.

Evaluation of whether there is an unacceptable risk to children

1. I take into account the length of time since the alleged conduct allegedly occurred.  However, I note Ms Cant's evidence that (if it is assumed that the allegations are true, which Ms Cant has not been asked to give an opinion on) it is less likely, but not unlikely, that the applicant will pose a risk to children in the future should relevant circumstances arise.[44]  

   [44] Para 58 of Ms Cant's report.

2. I take into account the evidence of H (the applicant's biological daughter) and the character references.  In her evidence, H confirmed that she is aware of the allegations and the criminal trial and spoke very highly of the applicant's character.  The character referees each state in their references that they are aware of the allegations and the criminal trial and speak very highly of the applicant's character.  However, I note Ms Cant's evidence that a person's perceived good character does not make the person less likely to commit an offence against a child.[45]

   [45] Para 27 of Ms Cant's report.

3. The applicant's evidence, in essence, is the denial of each of the allegations and his suspicion regarding T's motivation for making the First Allegation.

4. The evidence of A is supportive of the applicant's denial of the allegations and is, in essence, a character reference for the applicant.

5. As stated in [23] of these reasons, I have decided that I should not make a positive finding one way or the other as to whether the alleged conduct the subject of the Non-Conviction Charge occurred. Also, as I have noted in [22] of these reasons, the applicant says that he does not seek a positive finding that the conduct the subject of the Non­Conviction Charge did not occur.

6. As I have stated in [62]-[63] and [72] of these reasons, I have a reasonable suspicion that the allegations against the applicant may be true and a reasonable suspicion that the alleged conduct of the applicant may have been grooming behaviour with a sexual motivation.  The evidence of the applicant and A has not overcome those suspicions.

7. The Tribunal's function in this review proceeding under s 12(5) of the Act involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.[46]  The risk in question has to be unacceptable, not likely.[47]

   [46] Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28 (Grindrod [No 2]) at [84], referred to in IGR at [14].

   [47] Grindrod [No 2] at [85], referred to in IGR at [14].

8. I refer to the factors I have said in [82], [84], [85], [88] and [89] of these reasons that I will take into account under s 12(8)(c), (d), (e) and (g) of the Act in analysing and evaluating the risk in question in this review proceeding.

9. Having evaluated all the information before me and having regard to the criteria in s 12(8) of the Act (with the best interests of children as the paramount consideration) I have decided that there is an appreciable risk, and therefore an unacceptable risk, that the applicant might in the future cause sexual or physical harm to children in the course of carrying out child-related work.

Conclusion

1. I am satisfied affirmatively that a negative notice should be issued to the applicant

2. Accordingly, I will make an order that the decision of the CEO to issue a negative notice is affirmed.

Orders

1.Pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA), the name of the applicant shall not be published except by the respondent for the purpose of, or in connection with, the performance of his functions under the Working With Children (Criminal Record Checking) Act 2004 (WA).

2.The decision of the respondent to issue a negative notice to the applicant is affirmed.

3.The application for review is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR D AITKEN, SENIOR MEMBER

28 FEBRUARY 2022