ERR v Children's Guardian

[2022] NSWCATAD 101

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ERR v Children’s Guardian [2022] NSWCATAD 101

Hearing dates:

On the papers

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member
M Bolt, General Member

Decision:

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

(2) The applicant is not to be treated as a disqualified person for the offences, for which he was convicted on 14 April 2010.

(3) The application for an enabling order is granted.

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

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence – conduct of applicant in period since offences occurred– discharge of onus

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibited Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8

BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164

BKE v Children’s Guardian [2015] NSWSC 523

CHB v Children’s Guardian [2016] NSWCATAD 214

Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476

Commissioner for Children and Young People v FZ [2011] NSWCA 111

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

PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455

R v Commission for Children and Young People [2002] NSWIRComm 101

Smith v Commissioner of Police [2014] NSWCATAD 184

ZZ v Secretary of the Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

EEK (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Lowson (Respondent)

Solicitors:
Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2021/183133

Publication restriction:

Pursuant to s 64 (1)(a) of the Civil and Administrative Tribunal Act 2013, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in documentary material lodged in these proceedings in prohibited.

REASONS FOR decision

Introduction

1. On 25 June 2021, the applicant applied for Administrative Review. He seeks an enabling order, following a decision of the respondent to refuse to grant him a Working with Children Check Clearance on the basis that he is a disqualified person. That decision was made on 17 May 2021.

2. The Applicant in these proceedings is referred to as "ERR". ERR is the applicant's pseudonym used in these proceedings.

3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. The applicant is presumed to be a risk to children, because he was convicted of two counts of sexual intercourse with a person more than 14 years and under 16 years of age on 14 April 2010.

4. The offending behaviour occurred on 3 October 2009 and 16 October 2009, when the applicant was 18 years of age.

5. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, including the applicant’s conduct in the intervening 13 years, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. As a result of the finding the application for an enabling order is granted.

Non Publication Order

6. On 15 July 2021, the Tribunal ordered, pursuant to s 64 (1)(a) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) that with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in documentary material lodged in these proceedings in prohibited.

7. It was noted that a reference to the name of a person includes information or other material that identifies the person or is likely to lead to the identification of the person.

Hearing on the papers

8. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with the hearing, have both consented to this course of action. The Tribunal, being satisfied that the matter can be adequately determined in the absence of the parties, dispenses with a hearing pursuant to Section 50(2) Civil and Administrative Tribunal Act 2013.

Background

9. The applicant applied for a Working With Children Check Clearance on 15 April 2021. Subsequently, the respondent became aware of one matter in the applicant’s history.

10. This matter was a ‘disqualifying offence’ under the Act and the application was refused: in accordance with s 18(1)(a).

11. On 15 April 2010, the applicant was found guilty of two counts of “have sexual intercourse with person more than 14 but less than 16 years”. Without proceeding to conviction, the applicant was directed to enter into a Good Behaviour Bond for 12 months, pursuant to Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and accept the following conditions:

“The offender must be of good behaviour and appear before the Court during the bond term if required”.

12. This offence is commensurate with offences listed in Sch 2 of the Act, equating to a ‘disqualifying offence’ as defined under the Act at Sch 2 Cl 1 (1) (h) (i).

13. Consequently, on 17 May 2021, the Children's Guardian issued ERR with a Notice to Disqualified Person pursuant to s 18 of the Act.

14. On 25 June 2021, the applicant applied to the Tribunal for the clearance. The applicant seeks a clearance to enable him to continue his work as a qualified structural engineer which includes regular site inspections at which children are occasionally present.

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

“I wish to receive an enabling order as I do not pose a risk to children. I’m a qualified structural engineer and recently my work has asked me to get Working With Children Check as part of my part is to undertake regular site inspections and sometimes children are present. When the crime was committed I was only 18 years old and I was unaware of the legal age. This has impacted me immensely and I wish the Court to review the decision. I received a Section 10 at time of offence”.

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

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

The working with children legislative scheme

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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 of the Tribunal

25. 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.

26. 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)

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

28. 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.

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

Burden of Proof

30. 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)).

31. 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". ...'

32. 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.

Written evidence

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

Applicant’s submissions

34. The applicant’s submissions set out the fact that he was aged 18 and in his final year of school at the time of the offences, and that the girl involved was his girlfriend at the time. He stated that the sexual activity was consensual and that he was unaware, at the time, that the legal age of consent was 16. He said he is now aware of the seriousness of his offence and highlighted his positive conduct in the intervening 13 years.

35. The fact that he cooperated fully with police and admitted the offences and that he has a trouble-free history since 2009 were submitted as positive factors.

Respondent’s Submissions

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

Section 30 (1) considerations

37. 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.

38. The applicant's application to the Tribunal is brought because he was convicted of the disqualifying offence of indecent assault, when he was 18 years of age. The victim was a girl with whom the applicant had a four month relationship and whom he considered to be his girlfriend.

39. There is no evidence to contradict the applicant’s statement that the sexual activity was consensual, nor that neither he nor the victim were aware of the legal age of consent.

40. Although the offence was serious, the Court found that it was appropriate on all the circumstances to impose a good behaviour bond, as opposed to a custodial sentence. The evidence demonstrates that the applicant did not breach the good behaviour bond.

41. The respondent has submitted that the offences are historical in nature. This is the case.

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

42. The offences occurred during 2009. There is no adverse evidence concerning the applicant’s conduct over the intervening 13 years.

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

43. The applicant was 18 years of age, and in his final year of secondary school, when the disqualifying offence occurred.

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

44. The victim was fourteen years of age when the disqualifying offences occurred.

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

45. The difference in age between the applicant and the victim was four years.

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

46. The applicant knew that the victim was a child. This is evident because he informed the Police, on 16 April 2009, that the victim was 14 years old.

(g) The person's present age.

47. The applicant is currently 30 years old.

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

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

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

49. The respondent has submitted that the potential impact on children of any repetition of the offending conduct would be highly adverse. The applicant has told the Tribunal that he relies on the respondent’s submissions.

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

51. The Tribunal relies on the assessment of Mr Sam Borenstein, Consultant Clinical Psychologist, dated 11 November 2021, that the applicant does not represent a risk to children.

52. The Tribunal has not been provided with any evidence to suggest that there are any orders of a Court or Tribunal in force in relation to this applicant.

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

53. The applicant has provided his Curriculum Vitae outlining his employment history and skills.

54. He has also provided character references from family members, who are aware of the charges brought against the applicant. These references are positive in nature and relevantly state that the referees would not hesitate to allow the applicant to babysit their young children.

55. The report of Mr Sam Borenstein, Consultant Clinical Psychologist, dated 11 November 2021, provides expert opinion that the applicant does not represent a risk to children. Specifically, Mr Borenstein wrote that the applicant’s potential for emotional and/or behavioural problems is substantially less than “typical for community adults” based on the Personality Assessment Screener, and that there is nothing in applicant’s personal or clinical history to indicate sexual paraphilias.

56. Mr Borenstein opined that :

“The male brain does not fully develop until the age of 25. (The applicant) at age 18, had approximately six to seven more years of neurocortical development before him. At age 18 (the applicant’s) executive functioning was not fully formed, impacting negatively on decision making, compounded by interrupted developmental milestones, prior to coming to Australia aged 11”.

57. Mr Borenstein added that the applicant has entered into healthy functional relationships since the time of the offences and is soon to be married. It also reflects the applicant’s embarrassment, guilt and remorse, in relation to the offences. In particular, Mr Borenstein is clear that the applicant does not have a sexual attraction to children.

58. The applicant’s submissions highlight that he did not breach the Good Behaviour Bond and that he has not had contact with the victim since the offences occurred.

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

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

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

60. The respondent submitted that the victim stated, on 16 October 2009, that she agreed to have sexual intercourse with the applicant on two occasions, and did not want him “to get into trouble”.

61. The respondent also noted that the applicant was the subject of an Apprehended Violence Order arising from the offences. None of the AVOs are currently enforceable.

62. The respondent noted that the applicant made a number of admissions and comments during his interview with the Police on 16 October 2009. These included:

• admitting to having sexual intercourse with the victim on two occasions;

• stating that, because the victim was his girlfriend and that the activity was consensual, that it was permissible;

• stating that he was unaware that the legal age of consent was 16;

• stating that he had only discovered that the victim was 14, after 20 or 30 days of going out with her.

63. The respondent submitted that the applicant does not pose a risk to the safety of children on the basis of the matters addressed above. Furthermore, the respondent submitted that the applicant has discharged his burden of proof and has demonstrated that he is not a real and appreciable risk to the safety of children, having regard to a number of matters, including the time that has elapsed since his offending, the fact that the applicant has not committed any further offences, the applicant’s well adjusted social life, including stable employment, and the opinion expressed by Mr Borenstein that the applicant does not represent any risk to children.

The statutory approach

64. 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.

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

66. The applicant has one relevant conviction of two counts (the disqualifying offences). However, the offences occurred 13 years ago when the applicant was only 18 years of age. Therefore, we attribute little weight to the disqualifying offences for the purpose of this application.

Consideration

67. 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.

68. 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.

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

70. 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.

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

Section 30 (1A) consideration and findings

72. 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.

73. 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.

74. 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.

75. 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 13 years.

76. Regard would also be given to the applicant’s age at the time of the offence, the nature of the relationship between the applicant and the victim, and the otherwise unblemished history and lack of any evidence of current risk to children.

77. 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).

78. In ERR’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

79. 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.

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

81. 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

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

83. 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.

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

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

Orders

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

2. The applicant is not to be treated as a disqualified person for the offences, for which he was given a good behaviour bond on 14 April 2010.

3. The application for an enabling order is granted.

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

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

Registrar

Decision last updated: 23 March 2022