EEK v Children's Guardian

[2020] NSWCATAD 130

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	EEK v Children’s Guardian [2020] NSWCATAD 130
Hearing dates:	On the papers
Date of orders:	13 May 2020
Decision date:	13 May 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Bailey, Senior Member Prof P Foreman, General Member
Decision:	(1) Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. (2) The applicant is not to be treated as a disqualified person for the offence, in respect of s.61L of the Crimes Act 1900 (NSW), for which he was convicted on 10 November 1995. (3)   The application for an enabling order is granted. (4) Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Clearance
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence – conduct of applicant in period since offences occurred– discharge of onus
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children’s Guardian [2015] NSWSC 523 CHB v Children’s Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267
Category:	Principal judgment
Parties:	EEK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent)   Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2020/00034792
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR decision

Introduction

1. On 3 February 2020, the applicant applied for an enabling order following a decision of the respondent to refuse to grant him a Working with Children Check Clearance on the basis that he is a disqualified person. That decision was made on 28 September 2018.

2. The Applicant in these proceedings is referred to as "EEK". EEK is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par [6] (below).

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. The applicant is presumed to be a risk to children, because he was convicted of indecent assault.

4. The assault occurred on 5 August 1995, when the applicant was 27 years of age. On that date, he attended a licenced venue, with a group of friends, for a “buck’s party”. When a waitress (“the victim”) was delivering change to the party, the applicant assaulted her, by running his hand up her leg and touching her genital area several times. The offence was undoubtedly very serious. However, the victim was not a child.

5. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, including the applicant’s conduct in the intervening 24 years, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. As a result of the finding the application for an enabling order is granted.

Background

6. The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

7. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act.

3 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.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

8. The applicant applied for a Working With Children Check Clearance on 18 September 2018. Subsequently, the respondent became aware of one matter in the applicant’s history related to a criminal offence.

9. This matter was a ‘disqualifying offence’ under the Act and the application was refused: in accordance with s 18(1)(a). The disqualifying criminal matter is as follows:

1. Indecent assault pursuant to s 61L (now repealed) of the Crimes Act 1900 (NSW)

10. The applicant was convicted and fined $800 plus court costs. This offence is commensurate with offences listed in Sch 2 of the Act, equating to a ‘disqualifying offence’ as defined under the Act at Sch 2 Cl 1 (1) (h) (i).

11. Consequently, on 28 September 2018, the Children's Guardian issued EEK with a Notice to Disqualified Person pursuant to s 18 of the Act. On 3 February 2020, the applicant applied to the Tribunal for the clearance. The applicant seeks a clearance to enable him to accept a role as a coaching coordinator with a regional junior sporting club.

12. The grounds of the application for an enabling order are:

“The incident occurred in 1992(sic). Since that time, I have not committed any other offence. I have married and have three children. My girls are now in their 20s and I pride myself in keeping them safe”

13. The applicant also wrote:

“More than 25 years ago I committed a major offence, indecent assault. This is a very serious offence and is something I am deeply ashamed of. I have never forgotten my bad behaviour.

Since this offence I have lived my life to a high moral standard. I was married for over 20 years and have raised three daughters who are now young adults. I made my living as a professional [sports] player and since my retirement have coached many junior teams ranging from local under 12’s with (redacted) to elite junior teams in (redacted). I also coached my daughter’s (redacted) team when she was a junior”.

14. The issue to be decided by the Tribunal is whether the applicant should be granted an enabling order under s 28 of the Act.

15. In reaching this position the Tribunal is required to consider section 30(1) and (1A) and determine whether he has rebutted the presumption that he poses a risk to the safety and well-being of children. We are also mindful of the Superior Court guidance that the risk must be both real and appreciable.

The working with children legislative scheme

16. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances: s 3 of the Act.

17. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act.

18. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

19. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act.

20. Section 18 of the Act constrains the Children’s Guardian from granting clearances to disqualified persons.

18 Determination of applications for clearances

(1)   The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a)   a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b)   a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

21. Disqualified persons do not undergo a formal assessment before the Children’s Guardian, as the Act mandates that the Children’s Guardian must not grant a clearance to such persons.

22. It is the Tribunal that must conduct an assessment of a disqualified person’s risk if an application for an enabling order is made to the Tribunal.

Jurisdiction

23. Part 4 of the Act deals with reviews and appeals. Section 28 provides for the making of an enabling order by the Tribunal of disqualified persons. Relevant to these proceedings the section provides:

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.

(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.

(9)   (Repealed)

(Emphasis added)

24. As a preliminary finding we note that the Children’s Guardian has refused the applicant’s request for a clearance and the conditions of s 28(3)(a) are satisfied.

25. Based on this finding and noting that the application was received within time, there is no dispute that the Tribunal has jurisdiction to hear the matter.

26. Section 30 sets out the factors that the Tribunal must consider in determining an application. We will address each of the matters under s 30(1) later in these reasons.

Burden of Proof

27. In this case there is a presumption that the applicant poses a risk to children, as the applicant is a disqualified person seeking an enabling order pursuant to s 28 of the Act. (s28(7)).

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

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

29. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

The Hearing

30. By way of orders made on 19 March 2020, pursuant to s50 of the Civil and Administrative Act 2013, a hearing of this matter is dispensed with, and the matter is to be determined on the basis of documents submitted by the parties.

Written evidence

31. Both parties filed written material in support of the matter. In our view there is no need to detail that material other than to the extent that it is relevant to our consideration of the mandatory issues.

Applicant’s submissions

32. The applicant’s submissions demonstrated his insight into the seriousness of his offence and highlighted his positive conduct in the intervening 25 years.

33. The fact that he has raised a family and that he has already had a successful and trouble-free history of coaching junior sporting teams were submitted as positive factors.

Respondent’s Submissions

34. The respondent’s written submissions set out briefly the statutory framework and applicable principles. The respondent submitted that it was open to the Tribunal to make the enabling order and supported the application.

Section 30 (1) considerations

35. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, the facts are not disputed.

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

36. The applicant's application to the Tribunal is brought because he was convicted of the disqualifying offence of indecent assault, when he was 27 years of age. The victim was a waitress who, whilst performing her duties, leant across the table at which the applicant, who had been drinking with his friends, was sitting. The applicant touched the victim’s leg and vaginal area.

37. Although the offence and its impact on the victim was serious, it did not involve children.

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

38. The offence occurred during 1995. Other than a workplace altercation in October 1995, from which no negative consequences flowed, there is no adverse evidence concerning the applicant’s conduct over the intervening 25 years.

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

39. The applicant was 27 years of age when the disqualifying offence 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.

40. The victim was 20 years of age when the disqualifying offence occurred.

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

41. The difference in age between the applicant and the victim was seven years.

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

42. The victim was not a child.

(g) The person's present age.

43. The applicant is currently 51 years old.

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

44. The applicant has no other criminal record, apart from the disqualifying conviction. Furthermore, there is no evidence to give rise to concern or adverse findings in relation to his subsequent conduct with children or young people.

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

45. The respondent concedes and the Tribunal accepts that there is no evidence to suggest that there is anything other than a low risk of reoffending.

46. The applicant was married for twenty years and is the father of three daughters. He has been closely involved in sports training (including of young people) and community activities for many years. There is no evidence to demonstrate concerns raised about his conduct in that or any context.

47. The disqualifying offence did not involve a child. Therefore, and notwithstanding the detrimental effect that any such serious offence has on society as a whole, it cannot be said that the children or young people would be more especially impacted in the event of a re-offence.

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

48. The applicant has acknowledged and expressed insight into the seriousness of his offence and his remorse over many years. He highlighted the positive role he has played in the community and the lives of those young people whom he has coached.

49. He provided a number of character references from people who have observed the applicant’s engagement with children and young people and his passion to serve the community. The Tribunal has considered these references.

(j1) Any relevant information in relation to the person that was obtained in accordance with section 36A.

50. No material was obtained in accordance with the section.

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

51. The respondent submitted that, given the circumstances of his offence, including his comparative youth at the time, his remorse and his apparently exemplary life since then, the Tribunal should accept the evidence of the character referees. The Respondent also submitted that it would be beneficial to the community if the applicant could engage in the training of young coaches.

52. The respondent also indicated that it supports the making of an enabling order for the applicant to work with children.

The statutory approach

53. The superior Courts have set out the statutory approach that the Tribunal must apply when determining the substantive question of risk. In the current matter there is only one matter that could be considered noteworthy in determining risk to children in any adverse manner, namely the disqualifying offence.

54. The case of BKE v Children’s Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take.

55. The applicant has one relevant conviction (the disqualifying offence). However, this offence did not involve a child, and occurred 25 years ago. Therefore, we attribute very little weight to the disqualifying offence for the purpose of this application.

Consideration

56. Our substantive role is to assess risk; specifically, whether the applicant poses a risk to the safety and well-being of children and young people.

57. We have based our consideration on all of the evidence provided by the parties in documentary form. We have also analysed the circumstances of the disqualifying offence and the applicant’s subsequent conduct.

58. Notwithstanding the disqualifying provisions, and the positive finding against the applicant, we do not find that that the disqualifying offence demonstrates any current risk as set out by Young J in Commission for Children and Young People v V as referred to (above).

56. We note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act. In making these findings, we are of the view that the applicant has discharged his onus under s 28 (7) of the Act.

57. Therefore, we are not satisfied that the applicant currently poses a real and appreciable risk to children. We find that the applicant does not pose a risk to the safety and well-being of children and young persons.

Section 30 (1A) consideration and findings

61. Having made the finding that we have, we are required to consider this section, which requires that the making of the order be in the public interest.

(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.

62. The case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 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.

63. In our view, a reasonable person would acquaint themselves with all of the evidence and submissions before the Tribunal. A reasonable person would not approach the matter with a closed mind but apply an objective test in consideration of all the material.

64. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the relevance and circumstances of the disqualifying matter and the evidence of the applicant concerning the last 25 years.

65. Regard would also be given to the applicant’s otherwise unblemished history and lack of any evidence of risk to children.

66. A reasonable person would, in our view, find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A).

67. In EEK’s situation, therefore, we find that 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

68. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

69. In our view there is nothing to demonstrate or suggest that that it would be contrary to public interest to grant a clearance. Having found that the issuing of a clearance would not pose an unjustified risk to the safety of children, we find that the applicant’s desire to engage in community activities and the protection of children are, in this instance, complimentary and in the public interest.

70. In accordance with PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we find that it is in the public interest to make the enabling order.

Conclusion

71. For the reasons set out above, we reach the following conclusion.

72. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

73. In our view, having regard to all of the material before the Tribunal, the applicant does not currently pose a risk to the safety of children.

74. It therefore follows that the applicant should be granted an Enabling Order.

Orders

1. Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.

2. The applicant is not to be treated as a disqualified person for the offence, in respect of s.61L of the Crimes Act 1900 (NSW), for which he was convicted on 10 November 1995.

3. The application for an enabling order is granted.

4. Pursuant to s28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant a Working with Children Check Clearance.

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

Registrar

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: 13 May 2020