EOL v Children's Guardian

[2021] NSWCATAD 146

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EOL v Children’s Guardian [2021] NSWCATAD 146

Hearing dates:

17 May 2021

Date of orders:

17 May 2021

Decision date:

02 June 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

E Connor, Senior Member
M Bolt, General Member

Decision:

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.

Catchwords:

ADMINISTRATIVE LAW-refusal of working with children check clearance-assessment of risk-sexually touching another without consent conviction

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Crimes Act 1990 (NSW)

Cases Cited:

Commission for Children and Young People v FZ [2011] NSWCA at 111
Commission for Children and Young People v V [2002] NSWSC at 949

Category:

Principal judgment

Parties:

EOL (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
E Buzo (Applicant)

Solicitors:
Justinian Legal (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00026150

Publication restriction:

Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

REASONS FOR DECISION

Background

1. The applicant, referred to as EOL in these proceedings, is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and seeks an enabling order pursuant to section 28 of the Act declaring that he not be treated as a ‘disqualified person’ so that he can be granted a Working with Children Check (WWCC) clearance.

2. Due to the sensitive nature of these proceedings, an order was made at the commencement of the hearing under subsection 64(1) of the Civil and Administrative Tribunal Act2013 (NSW) that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence, is not to be published or broadcast without the leave of the Tribunal.

3. The applicant, who is now 41 years of age, seeks a WWCC clearance because he wants to be able to return to work as a concierge in locations where a clearance is required.

4. On 1 January 2019 the applicant attended Bondi Beach where many people had gathered to celebrate New Year’s Day, including a group of Dutch tourists who were participating in a tradition where they run into the water wearing orange beanies (hats). Two women who were involved in this activity accused the applicant of touching them inappropriately. Victim 1 told lifeguards that the applicant grabbed both of her breasts with both of his hands and victim 2 stated that the applicant grabbed her right buttock.

5. The lifeguards called the NSW Police who interviewed the applicant and the victims. The applicant was charged with two counts of sexually touching another without consent.

6. On 28 May 2019 the applicant applied to the respondent for a WWCC clearance.

7. On 6 June 2019 the applicant was informed by the respondent that he was a ‘disqualified person’ by reason of proceedings having commenced relating to the offence of sexually touching another person without consent contrary to section 61KC(a) of the Crimes Act 1990 (NSW)). Offences under section 61KC(a) of the Crimes Act 1990 (NSW) are disqualifying offences under Schedule 2.1(1)(e) of the Act.

8. On 6 September 2019 the applicant was convicted of the offences. He entered a guilty plea to both counts after amending the Facts Sheet and was sentenced to a Community Corrections Order of 18 months which concluded on 5 March 2021.

9. On 29 January 2021 the applicant lodged an application for an enabling order from the Tribunal pursuant to section 28 of the Act. There is a 28 day time limit for applying for a review of the respondent’s decision imposed by regulation 23 of the Civil and Administrative Tribunal Rules 2014. The respondent did not oppose an extension of time which was granted by the Tribunal prior to hearing.

The Legislative Scheme

10. The Act makes provision for the regulation of those persons who engage in or continue to engage in ‘child related work’. The objects of the Act are to protect children:

1. by not permitting certain persons to engage in child-related work; and

2. by requiring persons engaged in child related work to have working with children check clearances.

11. Section 4 of the Act provides that the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration’ in the operation of the Act.

12. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children. ‘Children’ is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word ‘child’ has the same meaning.

13. Subsection 8(1) of the Act prohibits a person from engaging in ‘child related work’ unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children’s Guardian for the relevant WWCC clearance.

14. Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold or have a current application for a relevant WWCC clearance.

15. Child-related work is broadly defined in sections 6 and 7of the Act. It includes paid and unpaid child-related work.

16. Applications for a WWCC clearance are made to the respondent under section 13 of the Act. Section 18 sets out the powers of the respondent in regard to determining any application that is made. As we have noted the respondent refused EOL’s application, as she was required to do under subsection 18(1) of the Act, because he is a disqualified person having been convicted of a Schedule 2 disqualifying offence.

17. Subsection 28(1) of the Act gives the Tribunal a discretion, on the application of a disqualified person, to make an enabling order declaring the person not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence.

18. Subsection 28(7) provides that where an application for 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”.

In this application, therefore, the onus is on the applicant to rebut this statutory presumption that he poses a risk to the safety of children.

19. The meaning of the word ‘risk’ was 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 section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:

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’…

20. The Tribunal has adopted a similar meaning to the word “risk” as it appears in the current Act.

21. Subsection 28(8) provides that an enabling order cannot be made subject to conditions. That is, if an enabling order is made and a WWCC clearance is granted this clears the person to work in all forms of child-related work for five years unless suspended or cancelled by the respondent prior thereto.

The written evidence relied upon

22. The applicant relied upon the following documentary material:

1. Application for review filed 29 January 2021 attaching the Notice of Disqualified Person (Exhibit A1);

2. Affidavit of applicant filed 10 March 2021 (Exhibit A2);

3. For convenience, Submissions of applicant filed 29 April 2021 (Exhibit A3);

4. Two character references handed up at hearing (Exhibit A4);

5. Emails regarding legal advice (4 pages) handed up at hearing (Exhibit A5); and

6. Email dated 11 May 2021 handed up at hearing (Exhibit A6).

23. The respondent relied upon the following documentary material:

1. Documents filed by the Respondent on 1 April 2021 (Exhibit R1);

2. Further evidence filed by the Respondent on 13 April 2021 (Exhibit R2); and

3. For convenience, Submissions of Respondent filed 7 May 2021.

The evidence presented

24. The applicant gave oral evidence and was subject to cross examination.

25. He told the Tribunal that he migrated to Australia from Iran in 2007 and worked as a security guard/concierge for a protection agency from 2014 to support himself while undertaking further studies in engineering. He has no work experience as a civil engineer and is undertaking a PhD so that he can seek work as an academic. He expects to complete this degree in two years.

26. In 2019 he lost his licence to work as a security officer as a result of being convicted of the criminal offences which led to these proceedings and commenced a role with the same protection agency as a concierge. Part of one of the buildings he worked in was later leased out to an organisation providing tutoring to children and the applicant was unable to continue in his concierge role because he could not be granted a WWCC clearance as a result of being a disqualified person under the Act. He stated that he has not worked since being notified of his disqualification and has been impacted financially as a result.

27. The applicant stated that he went to the beach on New Year’s Day in 2019 and consumed alcohol which was being given away free of charge. He had surgery on his left forearm approximately three to four weeks earlier and it was bandaged. Many people were intoxicated and he was in the water with a large group of Dutch people. A Dutch woman put a beanie that was floating on the water on his head and said words to the effect of ‘now you look handsome’. A group of Dutch people made a chain by putting their hands on each other’s shoulders and he was invited to participate. The applicant said he has no recollection of any interaction with the victim who alleged that he grabbed her buttocks.

28. He became tired and got out of the water. A group of Dutch people and lifeguards were waiting for him and asked him to go to with them. The applicant told us that he was ‘clueless and shocked’ and was very upset when one of the lifeguards made a joke about him (the applicant) not touching his buttocks. The NSW Police attended and he was taken to the Police station and interviewed him. He was charged, released, given a copy of the Facts Sheet and advised to get legal advice.

29. Section 30 (1) factors

30. The Tribunal "must consider" those factors set out in section 30(1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.

31. The Tribunal must also satisfy itself in relation to the tests set out in section 30(1A) of the Act.

32. The evidence is set out below under subheadings that refer to the section 30(1) factors and section 30(1A) tests set out in the Act.

(a) The seriousness of the offences

33. On 6 September 2019 the applicant pleaded guilty to, and was convicted of, two counts of sexually touching another person without consent contrary to section 61KC(a) of the Crimes Act 1990 (NSW)). Offences under section 61KC(a) of the Crimes Act 1990 (NSW) are disqualifying offences under Schedule 2.1(1)(e) of the Act.

34. The applicant was sentenced to a Community Corrections Order of 18 months which concluded on 5 March 2021.

35. The applicant submits in written submissions filed on 29 April 2021 that the seriousness of the offences is low as evidenced by the sentencing Magistrate sentencing the applicant to a Community Corrections Order and of this being 18 months in duration (Exhibit A3, para 18(a)).

36. The respondent notes in the written submissions filed on 7 May 2021 that the applicant was convicted of two charges and that the maximum penalty for each charge is imprisonment for five years (Exhibit R3, para 71). The respondent submits that:

… the offence would be considered in the mid-range of seriousness of the offence of “sexual touching” contrary to s. 61KC. (Exhibit R3, para 73)

37. The respondent submits that ‘the applicant’s position on the circumstances of the offending is fluid’ (Exhibit R3, para 74) and that the applicant has not taken responsibility for his actions or conceded that he committed an offence.

38. During the hearing the applicant stated that he was very intoxicated and that it is ‘probable’ that he touched the woman on the breast for which he is ‘very sorry’. Under cross-examination the applicant said that he may have ‘misread the cue’ when the Dutch woman approached him and put the hat on his head. He stated that there was nothing pre-planned and the interaction was ‘spontaneous’.

39. During the hearing the applicant gave evidence that he understands the impact the offences may have had on the victims who ‘must be anxious about going to crowded events’.

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

40. The disqualifying offences occurred on 1 January 2019, two years and four months ago.

41. The applicant submits that he has complied with the CCO and that there has been no conduct since the offences occurred that would weigh against him. (Exhibit A3, para 18(b)). The applicant also submits that he ceased working as soon as he became aware that the situation had changed at his place of employment requiring him to have a WWCC, demonstrating a commitment to complying with child protection laws. (Exhibit A3, para 18(b)) and Exhibit A2, para 2)

42. The respondent submits that the offending is recent and that there has been insufficient time to ‘disclose rehabilitative development or infer that there will be no recidivist offending’. The respondent also notes that the applicant has been subject to a community corrections order for most of the time since the offences were committed. (Exhibit R3, para 80)

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

43. The applicant was 39 years of age at the time of the disqualifying offences.

(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

44. The first victim was aged 22 years and the second 23 years at the time the offences took place.

45. The applicant notes that the victims were with friends at a large gathering of people. He believed them to be in their early twenties. (Exhibit A3, para 18(d)).

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

46. There is a 16 year age difference between the applicant and the first victim and a 15 year age difference with the second victim.

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

47. The applicant states that this is not a relevant issue.

48. The respondent submits that the applicant told the police that he perceived the victims to be 20 years old and that, given this is younger than their real ages (Exhibit R3, para 84):

In the circumstances, the applicant could not have been confident that they were not children.

(g) The person’s present age

49. The applicant is now 41 years of age.

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

50. The parties agreed that the applicant has no prior criminal history and there has been no conduct of concern since the offences occurred.

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

51. The applicant argues (Exhibit A3, page 6) that:

There is no evidence the behaviour will be repeated. The Applicant recognises the wrongdoing, he apologised to the victims and pleaded guilty. The Applicant indicates that the offences have had a significant impact on him as he lost his security license as a consequence. It is unlikely that there will be a repetition of the offences by the Applicant.

52. The respondent submits (Exhibit R3, paras 87) that:

… given the applicant’s unrepentant stance on the offending, the Tribunal can have no confidence that the offending will not be repeated. That offending may either be reckless to the possibility that each victim is a child, or potentially be in the presence of children. It may be that both describe the applicant’s offending on 1 January 2019.

53. It is recorded in the Facts Sheet (Exhibit R1, page 39) that:

The accused denied any wrongdoing however apologised to the victim if anything had occurred.

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

55. The parties agreed that there are no orders in force in relation to the applicant.

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

56. The applicant submitted that he took responsibility for his actions by apologising to the victims immediately after the accusations and states that the immediate apology was recorded in the Facts Sheet. (Exhibit R3, page 39).

57. The respondent submitted that the applicant had not filed any professional or personal references in support of him being granted a clearance; has not provided an independent risk assessment; and has not attended any ‘counselling, psychological, psychiatric or rehabilitation services since the offending’.

58. The applicant handed up two written character references during the hearing.

59. The respondent further submitted that ‘the applicant takes an elusive position on the offending’ which ‘raises serious questions as to the applicant’s insight and capacity to read social situations’. (Exhibit R3, para. 91)

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

60. There is no such information.

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

61. The Children’s Guardian did not raise any other matters.

Section 30(1A) tests

62. The applicant submits that a reasonable person would allow their child to have direct contact with the applicant and that ‘The offences and the Applicant’s conduct prior to and after the offences demonstrate no indication that the Applicant presents a risk to children’. (Exhibit A3, para. 22)

63. The applicant also submits that it is in the public interest to make an enabling order so that he is not unreasonably prohibited from the employment he has been involved in since 2014. (Exhibit A3, para. 23)

64. The respondent submitted that a reasonable person would not allow his or her child to have direct contact with the applicant which was not directly supervised by another person while the applicant was engaging in any child related work. The respondent submitted that:

… the applicant’s sexual offending – including its spontaneous nature – in conjunction with the applicant’s minimising or rejection of responsibility for that offending, means that a reasonable person would not permit their child to have unsupervised contact with the applicant whilst engaging in child related work. (Exhibit R3, para 96)

65. The respondent argues that it is not in the public interest for the applicant to be granted an enabling order. The respondent submits that the applicant provided ‘opaque information as to his employment status’ and ‘it is to be doubted whether a clearance will enable him to return to his previous work’. The respondent also submits that the applicant is a highly educated engineer, an ‘industry that does not generally require contact with children’ and that ‘It is to be further doubted that a clearance is necessary for the applicant’s chosen field.’ (Exhibit R3 at [99] and [103])

Consideration

66. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive. The Act requires that the protection of children, particularly from child abuse, is the paramount consideration of the Tribunal.

67. Although the offences committed by the applicant are serious, the Tribunal accepts the applicant’s submission that the behaviour that took place and triggered these proceedings is at the lower end of seriousness in relation to disqualifying offences.

68. We accept the submission of the respondent that the offending is recent and that the applicant has been subject to a community corrections order for most of the time since the offences were committed. However, we also note that the applicant has no prior history of any offending and has never been the subject of any complaint or disciplinary proceeding during his employment with one employer for many years.

69. We accepted the positive reference provided by the applicant’s former employer who has known the applicant for over 10 years and was aware of the events leading to the Tribunal’s proceedings and states that:

He (the applicant) is very upset about the matter and I believe he is extremely sorry for what has occurred.

…

I believe any behaviour he displayed that caused him to be charged was a one-off event.

70. We attributed little weight to the second reference provided by the applicant’s academic supervisor as it made no reference to the proceedings.

71. The victims were not children and there is no evidence of them being vulnerable for any other reason. We do not consider the age difference between the applicant and the victims to be of relevance. We do not accept the respondent’s assertion that that the applicant ‘could not have been confident that they were not children’ or that the offending behaviour may have been witnessed by children. The offences took place in the ocean during New Year celebrations involving a large group of overseas travellers, including the victims, who had been consuming alcohol in a public place. It is reasonable for the applicant to have assumed they were adults. There is no evidence that the applicant may have thought that the victims were children.

72. The respondent submitted that the applicant’s position on the offending has been ‘fluid’ and that he has been inconsistent, at times acknowledging that he touched the victim on the breast and at other times denying it. We accept that this is the case, however is not unusual for a person to change their plea on legal advice, or for their memory of events to change as they reflect and recall matters of relevance, such as it being improbable that he could have touched both breasts of the victim because his left arm was painful following surgery. We also note that although the applicant’s English is excellent, it is not his first language and on occasions he appeared to have difficulty understanding the nuances of propositions put to him, such as when being cross examined about the reason why he touched victim 1 on the breast.

73. The respondent believes that the victims were vulnerable because they were intoxicated and the crowded environment made it more difficult for the applicant to be held accountable. The respondent also argued that the Tribunal cannot have confidence that the behaviour will not recur because the applicant is unable to articulate why he committed the offences.

74. We agree that the applicant had difficulty explaining why he committed the offences, however we do not accept that this makes it more likely that there will be a reoccurrence of the behaviours. He has suffered serious consequences as a result of his poor judgement and offending behaviour and told us that he has not been to Bondi Beach since. While we accept that the applicant’s behaviour was serious and harmful to his victims, we are satisfied that the evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant.

75. We accept the applicant’s evidence that his actions were not pre-meditated and that he was behaving spontaneously in an alcohol-fuelled environment where he may have misread the cues. This does not excuse or diminish the seriousness of his behaviour, but it makes less likely that he will re-offend.

76. We do not accept the respondent’s submission that the applicant ‘is unrepentant’. On the day the offences took place the applicant is recorded by the NSW Police in the Facts Sheet as having ‘apologised to the victim if anything occurred’. He demonstrated remorse for his actions during the hearing and acknowledged the impact his behaviour may have had on the victims.

77. Subsection 28(5) of the Act provides that the applicant is required to fully disclose to the Tribunal any matters relevant to his application and there is no suggestion that the applicant has not willingly disclosed all relevant matters.

78. We are satisfied that a reasonable person with knowledge of the particulars of the offences committed by the applicant and the surrounding facts would allow his or her children to have direct contact with the applicant in situations where he is not directly supervised by another person while engaged in child-related work (the test under section (30)(1A)(a)).

79. We are also satisfied that it is in the public interest for the Tribunal to grant an enabling order (the test under section (30)(1A)(b)). The applicant’s ability to work has been seriously impacted by his disqualification and we do not accept the respondent’s argument that the applicant can pursue employment as an engineer where he will not need a WWCC clearance. The applicant gave evidence that he does not have appropriate experience to gain employment as a civil engineer and intends to pursue work in the university sector. He will be unable to do so without a WWCC clearance.

80. While we accept that the applicant’s behaviour was serious and harmful to his victims, we are satisfied that the evidence establishes on the balance of probabilities that there is no real and appreciable risk of harm to children posed by the applicant.

81. Having regard to the abovementioned factors and the material before us, in our view the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children and it is appropriate to make the orders sought.

82. Order

83. The order of the Tribunal is that:

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW).

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) the Children’s Guardian is to grant the applicant a Working with Children Check Clearance.

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: 02 June 2021