Ejg v Children's Guardian

[2020] NSWCATAD 305

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJG v Children’s Guardian [2020] NSWCATAD 305

Hearing dates:

3 November 2020

Date of orders:

3 November 2020

Decision date:

10 December 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey - Senior Member
E Hayes - General Member

Decision:

(1) Declare the applicant is not a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012.

(2) The decision of the Children’s Guardian of 18 May 2020 is set aside.

(3) The Children’s Guardian is to grant the applicant a Working with Children Check Clearance forthwith.

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Child Protection (Prohibited Employment) Act 1998 (Repealed) 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:

EJG (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
I Fraser (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)

File Number(s):

2020/00178104

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 11 June 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. The decision of the respondent was made on 18 May 2020.

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

3. The applicant is presumed to be a risk to children, because he was convicted of indecent assault. He seeks the Tribunal to find that he should not be deemed a disqualified person as he does not pose a risk to children.

4. The indecent assault occurred on 5 December 2015, when the applicant was 25 years of age. On that date, he was a taxi driver when the applicant hugged a female passenger in his taxi (“the victim”) and then he assaulted her, by running his hand along the victims buttock. 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, the respondents submission that she supports the application, the applicant’s conduct in the intervening 4 years, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), we find 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 has made an order 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 (WWCCC) on 15 May 2020. Upon undertaking a risk assessment, the respondent became aware of a matter in the applicant’s history which included a criminal offence.

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

Indecent assault pursuant to s 61L of the Crimes Act 1900 (NSW)

10. The applicant pleaded guilty. He was convicted and was placed on a good behaviour bond for two years. 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) (e).

11. Consequently, on 18 May 2020, the Children's Guardian issued EJG with a Notice to Disqualified Person pursuant to s 18 of the Act. The applicant seeks a WWCCC to enable him to carry out his role as an auditor, as he is required to work in schools from time to time.

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

“That since my past criminal conduct, I have clear evidence of my reformation.

1 - I have changed my life as I have obtained further education to support my family.

2 - Since the incident not engaged [sic] in any criminal activity.

3 - Support my family and raise two beautiful kids.

4 - Deserve a second chance.

I did not have any intention to have sexual contact with the victim. I was just overworked and careless. Nothing can justify what I have done. I can only correct myself in the future and learn from my mistake.”

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

14. 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 Supreme Court guidance that the risk must be both realandappreciable.

The working with children legislative scheme

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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

22. 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)

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

24. 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.

25. Section 30 sets out the factors that the Tribunal must consider in determining an application. We have addressed each of the matters under s 30(1) below.

Burden of Proof

26. 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)).

27. 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". ...'

28. 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

29. The hearing took place by audio visual link. Each of the parties filed written evidence. The applicant was cross-examined as was the expert witness he relied upon, Dr Bolton. The applicant made concluding oral submissions. Having considered the oral evidence the respondent ultimately supported the application.

Written evidence

30. Each party filed written evidence as follows:

1. Applicant

• Application filed 9 June 2020 – (A1)

• Statutory declaration EJG 9 August 2020 – (A2)

• Expert report Dr A Bolton (undated) - (A3)

• Four references – (A4)

2. Respondent

• Section 58 documents filed 29 July 2020 - (R1)

• Further documents filed 5 August 2020 - (R2)

• Further documents filed 21.9.20 - (R3)

Applicant’s submissions

31. The applicant’s submissions demonstrated his insight into the seriousness of his offending and highlighted his positive conduct in the intervening 4 years.

32. The fact that he has raised a family and that he is engaged in meaningful employment with an accounting firm were submitted as positive factors. The applicant also submitted that at the time of the offence he was extremely stressed. Since that time he has undergone counselling and therapy, changed the way he deals with stress and is remorseful for the appalling behaviour which led to the subject disqualifying offence.

33. Cross-examination of the applicant did not reveal any matter which counted against him. We find that he is a truthful and reliable witness.

Respondent’s Submissions

34. The respondent’s written submissions set out briefly the statutory framework and applicable principles. The respondent initially submitted that it was open to the Tribunal to make the enabling order and supported the application. After the close of evidence, counsel for the respondent submitted that the respondent supports 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 matter is before the Tribunal because the applicant was convicted of the disqualifying offence of indecent assault, when he was 25 years of age. The victim was a passenger in the applicant’s taxi, and whilst agreeing to hug the applicant at the end of her trip, the applicant rubbed the victim’s bottom. We note that at the time of this offence the victim did not have sufficient money to pay her fare. Whilst this is not a matter which changes the nature of the offence, it explains the circumstances upon which the offence occurred and context in that the applicant asked the victim for a hug when she was exiting the taxi.

37. The offence in itself is serious. We note that it does 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 in December 2015. The applicant has not been charged with, and there is no evidence about, any other offences or conduct relevant to our consideration of this application.

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

39. The applicant was 25 years of age at the time of the disqualifying offence.

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

40. The victim was 21 years of age at the time of the disqualifying offence and was under the influence of alcohol.

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

41. The applicant was approximately 4 years older than the victim.

(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 30 years of age.

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

44. With the exception of the disqualifying offence, no other convictions are recorded on the applicant’s criminal record.

(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 applicant relies upon a report of Dr Alessandra Bolton (undated). Dr Bolton assessed the applicant using a number of screening tools. The first being Static-99R (an actuarial tool measuring sexual recidivism based on static factors). The applicant achieved a score placing him in the ‘average’ risk category. Between 7 to 8.8% of those with the same score as him are charged with an additional sexual offence within 5 years.

46. Secondly, a Structured Assessment of Protective Factors - Sexual Offender version (SAPROF-SO) was administered. The applicant demonstrated the presence of all 19 items considered to be relevant to his situation. Thirdly, a Risk for Sexual Violence Protocol (RSVP) was administered. The applicant presented with difficulties in 2 of the 22 risk items, those being problems with his work and coping with stress.

47. Dr Bolton included both in her written report and during cross-examination that it is unlikely the applicant will engage in future sexual inappropriate behaviour. He is described as being a low risk in terms of reoffending. Particularly in relation to children, Dr Bolton opines ‘… there is no evidence to suggest that [the applicant] possesses sexual deviant interest in children, or that he possesses an elevated risk to the safety or wellbeing of children in general’.

(i1) any order of a court or tribunal that is in force in relation to the person

48. There are no orders of a Court or Tribunal known to be in force in relation to the applicant.

49. The applicant’s good behaviour bond imposed for the disqualifying offence expired on 24 May 2018. There is no evidence that the applicant was in breach of that order.

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

50. We have considered the Statutory Declaration provided by the applicant in support of his application. The respondent has set out a number of important matters contained in that Statutory Declaration which we adopt. Those matters include:

1. in committing the offence ‘he did not have any sexual intentions’ and ‘misread [the victim’s] intentions’;

2. he wanted to apologise to the victim after the offence but felt it best to drive home;

3. he told his wife about the offence as soon as he got home and decided to face the consequences;

4. after being sentenced for the offence, his taxi and security guard licence were cancelled;

5. after being sentenced, he spoke with the victim (under supervision from a police officer) and apologised for his behaviour;

6. his first child was born in 2016;

7. since the sentencing he has worked as an accountant, and has undertaken further education in accountancy.

51. The applicant has provided a number of references in support of his application. We have taken these into consideration. However, the weight we place on these references is limited given that they do not identify the disqualifying offence. They do, however, confirm the applicant’s work history.

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

52. There is no such information.

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

53. The respondent supports the application.

The statutory approach

54. 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.

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

56. The applicant has one relevant conviction (the disqualifying offence). However, this offence did not involve a child and occurred more than 4 years ago. Therefore, we attribute very little weight to the disqualifying offence for the purpose of this application.

Consideration

57. 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.

58. 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.

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

60. 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.

61. Therefore, we are not satisfied that the applicant currently poses a real and appreciable risk to children and young persons.

Section 30 (1A) consideration and findings

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 4 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 EJG’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 WWCCC. Having found that the issuing of a WWCCC would not pose an unjustified risk to the safety of children, we find that the applicant’s desire to engage in his role as an accountant and auditor 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. It therefore follows that the applicant should be granted an Enabling Order.

Orders

1. Declare the applicant is not a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012.

2. The decision of the Children’s Guardian of 18 May 2020 is set aside.

3. The Children’s Guardian is to grant the applicant a Working with Children Check Clearance forthwith.

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

Registrar

Decision last updated: 10 December 2020