Eq v Commission for Children & Young People

[2003] NSWADT 123

CITATION:	EQ -v- Commission for Children & Young People [2003] NSWADT 123
DIVISION:	Community Services Division
PARTIES:	APPLICANT EQ RESPONDENT Commission for Children & Young People
FILE NUMBER:	034002
HEARING DATES:	04/04/2003
SUBMISSIONS CLOSED:	04/04/2003
DATE OF DECISION:	05/26/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101
REPRESENTATION:	APPLICANT In Person RESPONDENT L Lapthorn, barrister
ORDERS:	1. Application is dismissed; 2. The applicant may make further application for an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 at any time following the date of this decision but only in respect of voluntary employment at C’s school;; 3. A copy of these orders to be served on the Commissioner of Police, NSW Police Service

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 In 1985 the applicant was convicted on a charge of sexual intercourse without consent with a person under 16 years of age. This constitutes a “serious sex offence” as defined by the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”) and, by the operation of s5 of that Act, the applicant is a “prohibited person”. The Child Protection Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment. The applicant seeks a declaration under s 9(1) of the Act, which, if granted, would mean that it would not be an offence for her to work in child-related employment. The respondent opposes this application.

2 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (“Tribunal Act”) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that may identify the applicant or anyone referred to in the proceedings (other than the experts). The applicant is referred to in these reasons by the pseudonym, “EQ”. The official copy of the orders provided to the parties will include the name of the applicant.

Background to application

3 On 10 January 2003, the applicant lodged an application with the Administrative Decision Tribunal (“the Tribunal”) seeking a declaration under s 9(1) of the Child Protection Act. At the same time she lodged an application for an urgent stay.

4 The stay application was listed before Deputy President Kelly on 31 January 2003. At that hearing, the Deputy President declined to determine that application as in his view the information before him was incomplete.

5 The stay application came before me on 4 April 2003. By then, all relevant material needed to progress the matter to a substantive hearing had been obtained, making the stay application redundant. Both parties consented to the matter proceeding on that day to final determination.

Relevant legislation

6 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Act is not to apply to that person. Section 9(1) provides that, on the application of a prohibited person, a relevant tribunal may make an order declaring that the Child Protection Act is not to apply to the person in respect of a specified offence. Section 9(2) defines a relevant tribunal to include the Administrative Decisions Tribunal (“the Tribunal”). Orders made under s 9 may be made subject to conditions: s 9(9).

7 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person’s total criminal record,

(f) such other matters as the tribunal considers relevant.

8 Section 9(8) provides that if the relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence, until after the period of 5 years from the date of the tribunal’s refusal, unless the tribunal otherwise orders at the time of refusal.

9 Section 9(7) requires the respondent to be a party to any proceedings for an order under s 9 and may make submissions in opposition to, or support of, the making of the order.

Onus of Proof

10 As noted s 9(4) of the Child Protection Act mandates that an order may not be made under s 9 unless the tribunal considers that the applicant does not pose a risk to the safety of children. The applicant carries the onus, on the Briginshaw standard, that s/he is not a risk to children.

11 The meaning of the word “risk,” for the purpose of s 9(4) was recently considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis of the meaning of “risk” in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focused on:

“…not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.” ( Commission for Children and Young People v V [at 22], R v Commission for Children and Young People [at 104].)
12 Young J held that the meaning of “risk” in s 9(4) was that “in 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.” [42]. That test is now binding on the Tribunal.

13 His Honour made it clear that the ability to impose conditions under s-9(9) should not be disregarded when considering the issue of risk. He dismissed the argument put for the appellant Commissioner that it was not permissible to impose conditions in order to lift the applicant over the risk threshold. He held [at 46] that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make a person “who would otherwise pose some risk to children into a applicant who does not pose a real unacceptable risk to children”.

Index offence (s 9(a), s 9(a)(1), s 9(b), s 9(c), s 9(d))

14 Following her conviction on a charge of sex intercourse without consent with a person under 16 years of age (“the index offence”) the applicant was sentenced to six years imprisonment with a non-parole period of two years six months.

15 At the time the offence was committed the victim was five years old and the applicant 31 years of age. The age difference between the two was 26 years.

16 The police facts sheet, which was tendered in evidence in these proceedings and in the sentencing court, sets out the details of the charges to which the applicant pleaded guilty. The applicant had been living with the family of the victim on and off for over a decade. While minding the children of that family, when their mother was away for the weekend, she took the victim into a bedroom, played with him and undressed him. She then lay on her back placing his penis in her vagina. The victim reported the incident nine months later.

17 In evidence in these proceedings the applicant denied the offence or, of having acted in an improper or indecent manner toward Child A (or any other child). She attributed her guilty plea in the Local and later the District Court to pressure from the police.

Applicant’s Age (s 9(5)(d1))

18 The applicant is now 47 years of age.

Applicant’s total criminal record (s 9(5)(e))

19 The applicant has a lengthy criminal record commencing in 1970 when she was 14 years old. Between 1970 and 1986 she was regularly convicted for a range of offences against property, primarily stealing and receiving.

20 The applicant’s most recent conviction was in 1994 for the charge of make and use false instrument and stealing for which was sentenced to 100 hours community service.

Other relevant matters (s 9(5)(f))

Psychological Evidence

21 The applicant was interviewed and assessed by psychiatrist, Professor Dave Greenberg. A report prepared by Professor Greenberg, dated 7 March 2003 was tendered in these proceedings and in addition Professor Greenberg gave oral evidence.

22 Professor Greenberg is of the opinion that the applicant suffers from an anti-social personality disorder, and displays numerous features consistent with that disorder. These include poor judgement, a long criminal history, denial and/or minimalisation of all past criminal conduct and lack of empathy for her victims. He reports that the applicant during interview denied or gave an exculpatory account about all her convictions.

23 Professor Greenberg is of the opinion that the applicant does not qualify for a diagnosis of a paedophilic disorder, as there is only one report of sex abuse. In his view this conduct indicates that the applicant used the victim as a surrogate sexual object. This behaviour may be explained, contends Professor Greenberg, by the applicant’s “severe personality problems and her poor judgement with regard to social norms and abiding by the law”.

24 Professor Greenberg views the applicant’s risk for future anti- social behaviour to be significant. In his view her risk of sexually reoffending is higher than that of the general female population (but lower than her risk of general criminal recidivism, which he sees as high), but concedes that the level of risk the applicant now poses to children to be difficult to quantify. In his view it is unlikely that the applicant would prey on children. Any re-offending would, according to Professor Greenberg, be opportunistic.

25 Professor Greenberg explained that the Static–99 test, an actuarial assessment, commonly used to predict recidivism rates among sex offenders is an inappropriate tool to assess recidivism rates among female sex offenders, as it is based exclusively on a sample of male offenders. In answer to a question from the Tribunal, Professor Greenberg stated that if the applicant was assessed against the Static–99 test she would fall into the low risk category, out of three possible classifications: low, low-moderate or high.

26 According to Professor Greenberg women represent about 1% of the sex offender population and limited research has been undertaken on this group. The task of determining recidivism rates among female sex offenders is difficult, claims Professor Greenberg, given the paucity of literature and research in the area.

27 An anti-social personality disorder, according to Professor Greenberg is chronic, and may persist into the sixth or older decade. In his view, the applicant may benefit from long-term psychotherapy or counselling.

Conduct following Index Offence

28 For the past 14 years the applicant has shared a house with a friend, Ms A, and assisted Ms A raise her four children. The eldest child, Ms B, is now 21 years of age and the youngest 15. The applicant regularly cares for Ms B’s 18-month-old son.

29 In a written statement tendered in these proceedings, Ms A states that for the past 14 years she has, and will continue, to entrust her children to the applicant’s care. It is not entirely clear from that statement whether Ms A is aware of the precise nature of the index offence (the applicant attests she is), but it is apparent that she is aware in general terms of some criminal misconduct on the part of the applicant involving children. A testimonial given by Ms B, also tendered in these proceedings, echoes her mother’s favourable assessment of the applicant. (Ms B makes no mention of the index offence).

30 Also before me in these proceedings are two character references provided by friends of the applicant. Both indicate that the applicant has regularly babysat for their respective families and they have no hesitation in leaving their children with the applicant. Neither refer to the index offence.

31 The respondent reports that its enquiries have not revealed any adverse reports to the Department of Community Services (or other relevant agencies) concerning the applicant. This is consistent with the applicant’s evidence that the index offence is the sole complaint of a sexual or other nature that has been made about her in respect of children.

Proposed Employment

32 In her stay application, the applicant stated she was seeking a declaration under the Child Protection Act for two reasons. First, she wanted to reapply to the Department of Education for a position as a relief bus driver/escort. Second, she wanted to be involved in sporting and other activities at her son’s school.

33 In oral evidence she expanded on these reasons. She explained that C, her son, whom she conceded later in evidence was not her biological son, had some learning difficulties. A preliminary diagnosis suggested he may suffer from Attention Deficit Disorder (ADD). Given these difficulties he was currently being schooled at home. The applicant contends that she had been advised that her son would experience great difficulties adjusting to the school environment unless she was able to attend and assist him integrate into the school environment. This could take over a term.

34 Further, she seeks an exemption so that she can participate in C’s school community, specifically fundraising and sporting activities.

35 The applicant has been offered a position as a bus driver/escort by the Department of Education to take children with disabilities to and from school.

Submissions

36 The applicant seeks a declaration without conditions. The respondent submits the Tribunal cannot be reasonably satisfied that the applicant does not pose a risk to children for the following reasons. First, the index offence is extremely serious in nature. Second, the applicant’s criminal record is not insignificant and extends over a lengthy period. Third, the only expert evidence before the Tribunal is that she is a risk to children. Fourth, she is an unreliable witness. Fifth, the type of (paid) employment the applicant seeks would bring her into direct and largely unsupervised contact with vulnerable children.

37 The applicant denies the index offence. She argues that no weight should be given to Professor Goldberg’s opinion as it is based on the erroneous assumption that she did have intercourse with a minor, when she did not. In any event, she argues that her exemplary conduct with children since her release from gaol indicates that she does not pose a risk to the safety of children.

Findings and Conclusions

38 The key issue to be determined is whether the applicant poses a real and material risk to children and, if so, whether that risk can be reduced to one of no material significance by the imposition of appropriate conditions.

39 The applicant urges the Tribunal to accept her evidence given in these proceedings denying the index offence. No fresh evidence was presented that may bring into question that conviction. Nor, in my view, has any plausible explanation been given which could explain why when legally represented, the applicant, entered a guilty plea on two occasions. Given these factors I fail to see on what basis the applicant’s recent claim of innocence could be accepted.

40 The victim of the index offence was an extremely young child; the applicant was a mature adult at the time. It represented a critical breach of trust and extremely serious and troubling misconduct.

41 The fact of that conviction is of course not fatal to the application before me. If that were the case, the legislature would not, as it has, granted the Tribunal the discretion to make a declaration under s 9(1), where the relevant “serious sex offence” is at the high end of the scale. Section 9(5) commands the Tribunal to look at a wide range of factors including, but not limited to, the index offence. Section 9(5)(f) makes it clear that the Tribunal may determine what additional factors, if any, are to be taken into account in determining whether the applicant poses a risk to the safety of children.

42 In assessing whether the applicant now poses a risk to the safety of children, the absence of any similar re-offending (or complaints) since 1986 must be given significant weight. The applicant can point to the absence of any formal complaints. Character evidence before me also indicates that four families, all of whom have entrusted their children to the applicant’s care, hold her in extremely high regard. I give particular weight to Ms B’s statement who has had a first hand opportunity over a significant period of time to observe the way the applicant interacts with children. It is telling that she now regularly leaves her own baby with the applicant.

43 The applicant’s criminal record indicates she is someone with little respect for the law. The fact of further offending since the index offence does not assist her. However the index offence remains her sole conviction of a sexual nature. Of itself, the applicant’s criminal record (bar the index offence) does not, in my view, support a finding that she represents a risk to children.

44 Professor Greenberg is unequivocal. In his view the applicant does represent a risk to children, albeit one that is difficult (if not impossible) to quantify.

45 As noted, the fact that the applicant has committed an offence of a serious nature involving a very young child is highly relevant but not determinative. However, in cases such as this where the index offence is extremely serious, there must, in my view, be some cogent and reliable evidence to support a finding that the applicant will not re-offend. There must be some evidence of rehabilitation.

46 There is compelling evidence that, at least since 1989, the applicant has responsibly cared for many children with no cause for concern. The passage of time since the offence supports the applicant’s claim that she does not represent a relevant risk.

47 However, against this, it is clear that the applicant has gained no real insight into what motivated her conduct towards her young victim. She simply denies any misconduct. She has not undergone, and sees no need for, counselling. As far as the applicant is concerned, there was, and is, no problem. Added to this is Professor Greenburg’s diagnosis of an untreated anti- social personality disorder which in his view, explains in part, the applicant’s aberrant but uncharacteristic conduct, that led to her conviction.

48 It is of course impossible to say with complete certainty whether any child sexual offenders will re-offend. It may be that the set of circumstances that caused the applicant to offend in 1986 will never be repeated. Her long involvement with children since 1989 would seem to support that prediction. However, in my view, given the seriousness of the index offence the applicant needs to point to something more to establish to the Briginshaw standard that she does not represent a real and material risk to children. At the very least she needs to adduce evidence that she has gained some insight into her offending conduct.

49 In the absence of such evidence and having carefully examined all the material before me I cannot be comfortably satisfied that the applicant does not pose a real and material risk to children.

Conditions

50 Having found that the applicant may represent a material risk to children in general terms, the final issue to be determined is whether that risk could be reduced through the imposition of conditions? The respondent opposes the making of any order subject to conditions. The applicant has not put forward any evidence or submissions about suitable conditions.

51 If the applicant had been legally represented, it is likely that the issue of conditions would have been addressed. It may be that certain conditions, if imposed, would mitigate or reduce the risk to children to an insignificant level. However, I have no evidence or submissions before me to provide a satisfactory basis for the making of a conditional order and I decline to do so.

52 On the other hand, given that there is a possibility that a set of conditions could be formulated which would satisfy the statutory and policy requirements of the legislation and which would allow the applicant to participate in her son’s school activities, I direct that she be allowed to make a further application to this Tribunal within five years.

53 In the interests of completeness I note that the Child Protection Act does not apply to the employment of a person in child-related employment if all the children with whom the person is required to have contact in that employment are related to the person: s 4(1)(a). For the purposes of s 4, a person is “related” to another person if the person is a relative of the other person, or the guardian of the other person or a person having the custody of or parental responsibility for the other person (otherwise than as the holder of a public office).

In the event that the applicant can establish that in assisting C integrate into the school environment, she is required only to have contact with C, and in addition that she has parental responsibility for him, a declaration under s 9(1) would be unnecessary. In those circumstances it would not be an offence under s 6(1) of the Child Protection Act for the applicant to undertake such “work”; nor would it be an offence for the Department of Education to permit the applicant to undertake such “work”: s 8(1) Child Protection Act.
Orders and Directions
1. Application is dismissed;

2. The applicant may make further application for an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 at any time following the date of this decision but only in respect of voluntary employment at C’s school;

3. A copy of these orders to be served on the Commissioner of Police, NSW Police Service.