EMP v Children's Guardian

[2021] NSWCATAD 123

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EMP v Children’s Guardian [2021] NSWCATAD 123

Hearing dates:

22 March 2021

Date of orders:

14 May 2021

Decision date:

14 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
R Royer, General Member

Decision:

(1) The decision of the Children’s Guardian made on 13 November 2020 is set aside.

(2) The Children’s Guardian is to grant EMP 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Child Protection (Prohibited Employment) Act 1998 (Repealed) 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

CXZ v Children’s Guardian [2020] NSWCA 338

CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262

EMP v Children’s Guardian [2020] NSWCATD 301

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:

EMP (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
I Fraser (Respondent)

Solicitors:
Proctor Phair Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2020/00331014

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

1. The Applicant is a high school teacher. On 15 December 2016, he was issued a Working With Children Check Clearance (“WWCCC”).

2. The Applicant is referred to as ‘EMP’. EMP is the Applicant’s pseudonym used in these proceedings in conformity with the order referred to in para 10 below.

3. On 1 June 2018, EMP’s WWCCC was cancelled following EMP being the subject of criminal proceedings for two charges of aggravated indecent assault allegedly involving a student (‘Criminal Charges’).

4. On 16 November 2018, the Criminal Charges against EMP were dismissed after hearing in the Local Court of New South Wales.

5. EMP made an application to the Respondent for the re-issue of a WWCCC on 25 November 2018. The respondent imposed an interim bar on the issue of a WWCCC to EMP on 24 June 2020.

6. Following a risk assessment, the Respondent on 13 November 2020 refused to issue to EMP a WWCCC on the basis that he was a risk to the safety of children.

7. On 19 November 2020, EMP filed an application seeking this Tribunal review the Respondent’s decision to refuse him a WWCCC.

8. The Tribunal on 9 December 2020, refused an application for a stay of the Respondent’s 13 November 2020 decision (see EMP v Children’s Guardian [2020] NSWCATD 301).

9. EMP seeks the Tribunal to conduct an administrative review of the Respondent’s decision to refuse to grant to him a WWCCC pursuant to s27 of the Child Protection (Working with Children) Act 2012 (‘the Act’). It is this application which is before us for determination.

Background

10. 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.

11. 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.

12. EMP re-applied for a WWCCC on 25 November 2018. Upon undertaking a risk assessment, the Respondent became aware of a number of alleged matters in EMP’s history and concluded that he was a risk to the safety of children.

13. At the end of this hearing, the Respondent submitted that the Tribunal should find that EMP is not a risk to the safety of children. The Respondent supported EMP’s application that he be granted a WWCCC.

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

‘The Children’s Guardian erred in the application of section 15(4) of the Child Protection (Working with Children) Act 2012 to the Applicant’s facts and circumstances’

15. The issue to be decided by the Tribunal is whether EMP should be granted a WWCCC.

16. In reaching this position the Tribunal is required to consider section 30(1) and (1A) and to determine whether 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 realandappreciable.

The working with children legislative scheme

17. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging 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.

18. 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.

19. 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.

20. 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.

21. Section 18 of the Act constrains the Children’s Guardian from granting clearances to persons who pose a risk to the safety of children.

18 Determination of applications for clearances

…

1. The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.

…

22. To determine whether a person is a risk to the safety of children, the Respondent must carry out a risk assessment if it becomes aware that EMP is subject to a risk assessment (see section 15 of the Act).

Jurisdiction

23. Part 4 of the Act deals with reviews and appeals. Section 27 of the Act enlivens the Tribunal’s jurisdiction to review a decision made by the Respondent refusing to issue a person with a WWCCC. Relevant to these proceedings the section provides:

27 APPLICATIONS TO CIVIL AND ADMINISTRATIVE TRIBUNAL FOR ADMINISTRATIVE REVIEWS OF CLEARANCE DECISIONS 

1. A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

2. A person whose clearance is cancelled by the Children's Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

3. A person who is subject to an interim bar imposed by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.

4. An applicant must fully disclose to the Tribunal any matters relevant to the application. 

5. Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

6. The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person's employer. 

7. A "stay order" is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.

8. This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 .

[Emphasis added]

24. As a preliminary finding we note that the Children’s Guardian has refused EMP’s request for a WWCCC and the conditions of section 27(1) 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 of the Act sets out the factors that the Tribunal must consider in determining a review application. We have addressed each of the matters under s 30(1) below.

Burden of Proof

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) have 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.

29. Most recently, the Supreme Court of New South Wales in CXZ v Children’s Guardian [2020] NSWCA 338 has affirmed the decision of Beech-Jones J in BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33] concerning the method to be used in assessing risk.

30. When determining an application for administrative review, s 63 of the Administrative Decisions Review Act 1997 is apposite:

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: 

   (a)   any relevant factual material, 

   (b)   any applicable written or unwritten law.

The Hearing

31. The hearing took place by audio visual link. Each of the parties filed written evidence. EMP was cross-examined. EMP and Counsel for the Respondent made concluding oral submissions. The Respondent withdrew its opposition to the issue of a WWCCC to EMP. Counsel for the Respondent said he had instructions to support the application.

Written evidence

32. Each party filed written evidence as follows:

EMP

• Application filed 19 November 2020 – (A1)

• Bundle filed 13 March 2021 – (A2)

Respondent

• Section 58 documents filed 22 January 2021 - (R1)

• Further documents filed 15 March 2021 - (R2)

EMP’s evidence

33. EMP demonstrated an insight into the ways in which he had previously spoken to, and handled challenging situations, within a school environment. Despite a robust cross-examination of EMP, it did not reveal any matter which in our view would count against him. We find that EMP is a truthful witness. In assessing all of the events and circumstances, we are not satisfied by reason of the possibility that the alleged conduct occurred, that he is a risk to the safety of children.

Section 30 (1) considerations

34. 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.

35. Allegations which were made against EMP related to serious matters of alleged sexual offences against a student taught by him. Following a hearing in the Local Court of New South Wales those charges were dismissed.

36. The two charges involved allegations of aggravated indecent assault alleged to have been committed against a student. The first charge related to an allegation that EMP grabbed the buttock of the female student whilst in class; the second allegation was that on a later occasion he placed his hand on her leg and moved his hand up and down on her thigh, just going under her skirt.

37. We are not satisfied based on the written and oral material before us that those alleged acts occurred.

38. On 23 October 2019, the Department of Education’s Employee Performance & Conduct Unit (EPAC) found a number of allegations against EMP to be sustained (arising from two separate investigations) and determined that a number of those amounted to misconduct (one of which comprised sexual misconduct).

39. The decision made by EPAC referred to a history of EMP making racist, sexist and inappropriate comments to students. The result was that EMP should be demoted and if a WWCCC clearance was not provided, he would be dismissed. The Applicant was placed on alternative duties.

40. We have considered the oral and documentary evidence before us. We have formed our own view contrary to the findings of the Department of Education which in our minds does not place EMP in the category where he would pose a risk to the safety of children. We accept his evidence and explanation in relation to each of the allegations raised in the EPAC report.

41. Similarly, we accept EMP’s explanation for allegations of comments and interactions with children which were alleged to cross professional boundaries. We find, on the balance of probabilities, that these actions do not enable a positive finding that he poses a risk to the safety of children.

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

42. The various allegations concerning EMP, reported to EPAC, commenced from 2001.

43. The allegations giving rise to the cancellation of EMP’s WWCCC (and those dismissed at hearing) were said to have occurred in March and April 2018.

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

44. EMP was aged approximately 54 years at the time of the alleged conduct resulting in the cancellation of his WWCCC.

(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.

45. The children the subject of the EPAC allegations varied. We note they all involved high school aged students. The complainant in the matters the subject of criminal charges was aged 13 at the time of the alleged conduct.

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

46. EMP was 41 years older than the alleged victim who was the subject of the 2018 criminal allegations.

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

47. EMP was aware those involved in the alleged EPAC matters were children. He was also aware that the alleged victim in the 2018 criminal charges was also a child.

(g) The person's present age.

48. EMP was aged 57 at the time of hearing.

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

49. EMP has no criminal record as an adult. He had a single conviction of stealing as a juvenile.

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

50. Dr Susette Sowden, Clinical and Forensic Psychologist, provided a report dated 18 October 2020. Dr Sowden was cross-examined.

51. Dr Sowden found that EMP’s symptoms were suggestive of an adjustment disorder with depressed mood. Dr Sowden provided a number of strategies to help ensure EMP does not make inappropriate, offensive, racist or other sexual comments to students in the future. Whilst under cross-examination Dr Sowden agreed that EMP may lack insight and understanding of vulnerable children, we were not satisfied that he poses a risk to the safety of children.

52. It therefore follows that the likelihood of repetition by EMP of making inappropriate comments to students is unlikely.

53. We have also taken into consideration and placed weight on the Respondent’s submission that the Tribunal should find that EMP is not a risk to the safety of children.

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

54. Not applicable.

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

55. We have taken into consideration a Statutory Declaration sworn by EMP. EMP has also lodged a number of personal references in support of his application, as well as a report from Dr Sowden.

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

56. Not applicable.

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

57. The Children’s Guardian supports the Tribunal finding that EMP does not pose a risk to the safety of children and should be granted a WWCCC.

Our findings

58. We are satisfied that EMP has demonstrated that he is not a real and appreciable risk to the safety of children.

59. After reviewing all of the evidence, and considering the safety, welfare and well-being of children and, in particular, protecting them from child abuse, we are satisfied that EMP should be granted a WWCCC.

Section 30 (1A) consideration and findings

60. We are also required to consider s 30(1A) of the Act.

61. We find that a reasonable person knowing all the facts and circumstances would allow his or her child to have direct contact with EMP whilst unsupervised by another person.

62. We also find that it is in the public interest for EMP to pursue his career as an educator should he wish to do so.

Orders

1. The decision of the Children’s Guardian made on 13 November 2020 is set aside.

2. The Children’s Guardian is to grant EMP a Working with Children Check Clearance forthwith.

**********

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: 14 May 2021