Hardingham and Chief Executive Officer, Department for Child Protection

[2012] WASAT 153

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)

CITATION:   HARDINGHAM and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2012] WASAT 153

MEMBER:   JUSTICE S HALL (SUPPLEMENTARY PRESIDENT)

HEARD:   8 TO 10 FEBRUARY 2012 AND 26 MARCH 2012

DELIVERED          :   31 JULY 2012

FILE NO/S:   VR 7 of 2009

BETWEEN:   ALLAN WILLIAM HARDINGHAM

Applicant

AND

CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent

Catchwords:

Working with Children (Criminal Record Checking) Act 2004 (WA) ­ Review of decision to refuse to cancel a negative notice ­ Non­conviction charges ­ No inference possible as to commission of sexual offences ­ Whether particular circumstances of the case justified a negative notice ­ Whether unacceptable risk that applicant would cause sexual or physical harm to children in the course of carrying out child related work ­ Best interests of children paramount consideration

Legislation:

Criminal Procedure Act 2004 (WA), s 25
State Administrative Tribunal Act 2004 (WA), s 27
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7, s 12, s 17, s 18, s 19, s 26
Working with Children (Criminal Record Checking) Regulations 2005 (WA), reg 23

Result:

Application for review dismissed
Respondent's decision affirmed

Category:    B

Representation:

Counsel:

Applicant:     Mr R Lindsay & Mr A Shuli

Respondent:     Mr P Urquhart & Ms L Mobilia

Solicitors:

Applicant:     iLaw

Respondent:     Department for Child Protection (Working with Children Screening Unit)

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336

Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39

Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262

Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125

Hardingham and Chief Executive Officer, Department for Child Protection [2010] WASAT 112

Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86

Hardingham v The Queen (Unreported, CCA WA, Library No 940105, 3 March 1994)

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant sought review of a decision of the Chief Executive Officer of the Department of Child Protection (CEO).  The decision of the CEO was to refuse to cancel a negative notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act). The effect of that notice was to prevent the applicant, Mr Hardingham, from engaging in any child­related work. In particular, it prevented him from continuing to work as a teacher.

2. The decision not to cancel the negative notice was originally made on 19 December 2008.  That decision was the subject of previous review proceedings in the Tribunal:  Hardingham and Chief Executive Officer, Department for Child Protection [2010] WASAT 112. The decision was affirmed by the Tribunal on that occasion.

3. The applicant then successfully appealed to the Supreme Court:  Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86. The outcome of that appeal was that both the decision of the Tribunal and the initial decision to refuse to cancel the negative notice made on 19 December 2008 were set aside and the matter was remitted back to the Tribunal for further consideration.

4. The respondent was then invited to reconsider his decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 21 June 2011 the respondent filed a notice which recorded that, on a reconsideration of all of the information and material before the decision­maker, the application to cancel the negative notice was refused.

5. The issue to be determined on this review was whether on all of the information now before the Tribunal there is an unacceptable risk that the applicant might in the future cause sexual or physical harm to children in the course of carrying out child­related employment:  Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 [85] (Buss JA). In considering whether such a finding should be made regard must be had to the criteria listed in s 12(8) of the WWC Act, including, in particular, the paramount consideration of the best interests of children.

6. The Tribunal was not limited to the information that was available to the original decision­maker. It was open to consider new material whether or not it existed at the time the decision was made. The purpose of the review was to ensure that any decision was the correct and preferable one at the time of the review: s 27 of the SAT Act.

7. In the present case, the respondent relied upon all of the evidence before the Tribunal on the previous review and also upon additional evidence that he submitted supported the correctness of the decision.  The admissibility of the additional evidence was disputed by the applicant.  That issue was the subject of an appeal to the Court of Appeal:  Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262. The Court of Appeal ruled that the additional evidence was admissible because it was relevant to an assessment of the risk referred to above: [54].

8. After considering all of the relevant evidence the Tribunal came to the following conclusions.  Whilst the applicant has in the past been charged with committing three sexual offences against children, those charges did not lead to convictions and the available evidence was not sufficient to make a finding that he engaged in the indecent acts alleged in those charges.  However, there was cogent and clear evidence that the applicant had engaged in conduct with a number of young boys that, if it was to recur, presented an unacceptable risk of sexual harm and physical harm to children in the future.  That conduct included daring boys to remove their clothes, taking photographs or video footage of boys with their shirts off, creating opportunities to touch their bodies, encouraging or allowing them to drink alcohol, forming close relationships with boys that excluded their parents and siblings and allowing boys to stay at his premises and sleep in close proximity to him.  There were strong grounds to conclude that such conduct would recur, in particular because the applicant had engaged in similar such conduct with a number of boys over several years.  Further, that he had persisted with such conduct despite being warned of the inappropriateness of it. 

9. The Tribunal took into account that whilst some of the conduct engaged in by the applicant has been described as 'grooming' behaviour, it had never led to a proven sexual offence.  Nonetheless, the Tribunal was satisfied that such behaviour was a reliable indicator that sexual harm may occur in the future.  In this regard, account was taken of the fact that the question was whether there would be a risk of sexual harm not whether the applicant would commit sexual offences; that is, whether the conduct likely to be engaged in by the applicant brought with it a real risk of sexual contact with children with harmful consequences for those children, even if this was not the conscious purpose or intention of the applicant.  It was difficult to make any precise determination of the nature of any such harm other than to say it would be likely to involve acts of indecency with young boys with whom the applicant had already formed a strong friendship.  The vulnerability of possible victims in such circumstances would expose them to the significant possibility of psychological damage. 

10. The Tribunal was also satisfied that allowing or encouraging boys under his care to drink alcohol was conduct which exposed those boys to the risk of physical harm.  The Tribunal concluded that such conduct had occurred in respect of at least six boys between 1990 and 2008.  On occasion this had involved allowing the boys to drink to a state of intoxication.  The applicant had persisted in this conduct despite being warned of the inappropriateness of it in 1994.  This fact, and the fact that the conduct had been repeated over a lengthy period of time, supported a conclusion that there was a significant possibility that the applicant would engage in such conduct in the future if he had unsupervised access to children.

11. The Tribunal concluded that it was not necessary for harm to be likely for it to be unacceptable.  In the present case, the likelihood of sexual harm occurring was impossible to quantify.  It was however a real and appreciable risk.  It was a risk of harm of the nature of at least indecent acts on vulnerable children.  Similarly, the risk of physical harm from alcohol provided by the applicant could not be quantified but was a real and appreciable risk.  The best interests of children required that such harm be prevented.  In those circumstances, the Tribunal found that the risk was unacceptable and justified the negative notice.  Accordingly, the decision not to cancel the negative notice was affirmed.

Background

1. On 7 April 2008 the respondent received written notice from Western Australia Police advising that the applicant had been charged with indecently dealing with a child over 13 and under 16 years of age, contrary to s 321(4) of the Criminal Code (WA). An offence of this nature is a Class 2 offence under sch 2 of the WWC Act.

2. On 9 April 2008 the applicant was issued with a notice pursuant to s 17(3) of the WWC Act requiring him to apply for an assessment notice. Such a notice is normally required by those people who work with children. However, the applicant had worked for many years as a teacher and transitional provisions meant that the applicant was not required to apply for an assessment notice until the expiry of his Western Australian College of Teaching Registration: reg 23 Working with Children (Criminal Record Checking) Regulations 2005 (WA). Nonetheless, a person who was exempt under the transitional provisions could be compelled to apply for an assessment notice in certain circumstances, such as where the person was charged with a relevant offence.

3. Under s 18 of the WWC Act a negative notice may issue to a person who failed to comply with a s 17 notice within the period referred to in the notice. The applicant did fail to apply for an assessment notice, for reasons which are not presently relevant. A decision was then made on 24 April 2008 to issue a negative notice. Such a notice acts as a prohibition on engaging in child‑related work: s 23 of the WWC Act. A negative notice continues to have effect until it is cancelled: s 14 of the WWC Act.

4. On 23 July 2008 the pending indecent dealing charge was dismissed because the prosecution decided not to proceed further with it. The dismissal of the charge did not affect the validity of the negative notice. However, it did allow the applicant to make an application for cancellation of the negative notice immediately: see s 19(3)(a) of the WWC Act. He made such an application on 24 July 2008.

5. On an application to cancel a negative notice s 19(8) provides that s 12(2) to s 12(8) of the WWC Act apply as if:

   (a)the application were an application for an assessment notice; and

   (b)a reference in those provisions to issuing an assessment notice were a reference to granting the application; and

   (c)a reference in those provisions to issuing a negative notice were a reference to refusing the application.

6. Section 12(3) of the WWC Act provides that if one or more of the conditions specified in the table contained in that subsection apply in relation to the applicant, then the respondent (and thus this Tribunal on review) must decide the application in accordance with the provision specified in the table. Item 6 of the table provides that s 12(5) applies where the CEO is aware that the applicant has a 'non­conviction charge' in respect of a Class 1 or Class 2 offence. A non­conviction charge is defined in s 4 to be a charge for an offence that has been disposed of by a court otherwise than by way of a conviction. The applicant's criminal history contains no convictions but three non­conviction charges and thus s 12(5) is the applicable provision.

7. The respondent refused the application to cancel the negative notice. On 19 December 2008 the applicant was given written notice of the decision and the reasons for it. A decision not to cancel a negative notice is a reviewable decision: s 26(1)(b) of the WWC Act. The applicant then commenced review proceedings which were heard in the Tribunal on 10 and 11 June 2009.

8. On 4 August 2010 the Tribunal ordered that the 19 December 2008 decision of the respondent to refuse to cancel the negative notice was affirmed:  Hardingham and Chief Executive Officer, Department for Child Protection [2010] WASAT 112.

9. The applicant sought leave to appeal from the decision of the Tribunal to the Supreme Court.  On 31 March 2011 E M Heenan J granted leave to appeal and allowed the appeal:  Hardingham v Chief Executive Officer, Department of Child Protection [2011] WASC 86. His Honour set aside both the decision of the Tribunal of 4 August 2010 and the decision of the respondent of 19 December 2008 and remitted the matter back to the Tribunal for further consideration.

10. It is necessary to refer to the appeal heard by E M Heenan J in more detail. There were a number of grounds of appeal but in essence those that were successful related to findings made by the Tribunal that there was a reasonable suspicion that the applicant had indecently dealt with the alleged victim in respect of the 2007 charge and also that he had committed offences of indecent dealing in 1990. E M Heenan J held that there was no reasonable basis for these conclusions: [169]. This was because the 1990 convictions had been overturned on appeal and the assessment of the judges who upheld that appeal was that the evidence was so uncertain and unreliable as to not justify a retrial: [101] and [136]. E M Heenan J also held that the evidence in regard to the alleged 2007 offence was too flimsy to support a positive conclusion that an offence was committed or to base a reasonable suspicion that it had been committed: [119].

11. E M Heenan J held that the Tribunal had also erred by finding that there was considerable similarity between the alleged offences and using that to support a conclusion that those offences had occurred [99] ‑ [100] and [169]. His Honour also held that the Tribunal had failed to adequately take into account the fact that following the quashing of the applicant's convictions in March 1994 and, after investigation by the Department of Education, he was reinstated as a teacher with full entitlements, including salary for the period of his suspension, and thereafter worked continuously and without adverse further incident as a teacher until charged in April 2008: [169].

12. E M Heenan J said that the WWC Act did not depend entirely on convictions for specified sexual offences as providing a reason for issuing a negative notice. He said that the WWC Act contemplates that other conduct, which he referred to as 'disreputable conduct', can be taken into account because s 12(4) directs that consideration be given to 'the particular circumstances of the case': [125]. His Honour noted that the information relied upon for issuing the negative notice included information regarding the alleged unsuitable relationships which the applicant, as a teacher, had established with his pupils in 1990 and his behaviour in swearing in front of them, offering them alcohol and allowing them to become intoxicated: [173]. He also said that whilst the evidence did not support a reasonable suspicion that the appellant had committed the offence charged against him in 2007 it did establish that the applicant had been found in bed with a young boy on Easter morning 2008 in circumstances which gave rise to disquiet: [173].

13. This other information was evidence that E M Heenan J considered should be taken into account in deciding whether or not a negative notice should issue. Because no decision on that information had been made, except in conjunction with erroneous conclusions regarding the commission of offences, his Honour considered it to be appropriate to remit the matter to the Tribunal for reconsideration: [174] ‑ [176].

14. The orders made by E M Heenan J following the appeal included the following:

    The outstanding matters be remitted back to the State Administrative Tribunal for further consideration of whether or not an assessment notice should issue to the applicant without regard to adverse inferences or suspicions which may be thought to arise from the decision of the Court of Criminal Appeal in 1994 quashing the applicant's convictions for alleged offences in 1990 or to any suspicion or inference that the applicant may have committed the offence with which he was charged in 2008.

15. What this required was that the Tribunal conduct a complete rehearing to determine whether the decision not to cancel the negative notice should be affirmed or set aside.  This required a reconsideration of all of the previously available evidence that was tendered by consent, together with all additional evidence tendered on this hearing.  It also required that findings on that evidence be made.  Any doubt that that was the effect of the order remitting the matter back to the Tribunal was dispelled by the Court of Appeal:  Chief Executive Officer, Department of Child Protection v Hardingham [2011] WASCA 262 [68] ‑ [69]. That re­hearing occurred on 8 ‑ 10 February 2012.

16. It is not appropriate to have regard to any findings previously made by the Tribunal and I do not intend to do so.  That is because this is a complete re­hearing and because those findings were held to be infected with error.  In any event, the evidence now available is different to the extent that it includes additional information.  It was, however, accepted by the parties at the hearing that the order made by E M Heenan J, taken together with his reasons, meant that no conclusion could properly be drawn that the applicant had committed the offences alleged in the 1990 and 2007 charges.  That does not prevent a consideration of the other evidence relating to the events surrounding those alleged offences, and in particular, those surrounding events that were admitted by the applicant.

The law

1. I have referred to some of the relevant provisions of the WWC Act earlier. That Act was amended in 2010. For present purposes the changes largely related to the numbering of sections. In any event, it was not disputed that for the purpose of this hearing the current version of the Act was relevant. This follows from the fact that s 27 of the SAT Act provides that a review is to be by way of a rehearing de novo. From this point, unless otherwise indicated, references will be to the Act in its current form.

2. By virtue of s 19 a review of a decision not to cancel a negative notice is to be determined by reference to the principles applicable to an application for an assessment notice: s 19(8). Section 12 provides for the process to be followed in respect of an application for an assessment notice. Section 12(5) provides that where a person has been charged with, but not convicted of, a Class 2 offence, the respondent is to issue an assessment notice to the person unless satisfied that 'because of the particular circumstances of the case, a negative notice should be issued'. Had the applicant been convicted the respondent would have been required to issue a negative notice unless satisfied that 'because of the exceptional circumstances of the case, an assessment notice should be issued': s 12(6).

1. Section 12(8) states:

   If subsection (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to -

   (a)the best interests of children;

   (b)when the offence was committed or is alleged to have been committed;

   (c)the age of the applicant when the offence was committed or is alleged to have been committed;

   (d)the nature of the offence and any relevance it has to child‑related work;

   (e)the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of 

   (i)any offence committed by the applicant; or

   (ii)any charge against the applicant;

   (f)any information given by the applicant in, or in relation to, the application;

   (g)anything else that the CEO reasonably considers relevant to the decision.

1. Subparagraph (e) was introduced in 2010. Otherwise, s 12(8) has remained unchanged at all times relevant to these proceedings save for the references to the numbers of other subsections.

2. The scheme of the WWC Act has been discussed in detail in two decisions of the Court of Appeal:  Chief Executive Officer, Department for Child Protection v Grindrod [No 2] and Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125. In Grindrod, Buss JA said that the criteria in s 12(8), bearing in mind the breadth of subsection (8)(f), constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction: [69]. Although each of the criteria must be given separate consideration, they are not all of equal significance in the evaluative exercise. In particular, the best interest of children is the paramount consideration: s 3 of the WWC Act.

3. Buss JA noted in Grindrod that neither s 12(4) (now re‑numbered as 12(5)) or s 12(8) expressly states what finding the CEO must make in order to reach satisfaction that a negative notice should issue. His Honour then had regard to other provisions of the Act and to extrinsic material before concluding:

   In my opinion, it is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.

   The notion of 'unacceptable risk' reflects the evident policy of the WWC Act in balancing the risk of harm to children on the one hand with the civil rights of an applicant on the other.  It embodies the precautionary approach that I have mentioned [81] - [82].

4. Thus whilst the concept of unacceptable risk is not expressed in the Act, it is implicit in s 12 and reflects the evident policy of the Act. In Scott both Buss JA and Newnes JA saw no material difference, and no error, in the Tribunal's expression of the test as being whether there was an appreciable risk:  [137] ‑ [138] (Buss JA) and [160] (Newnes JA).

5. In Grindrod, Buss JA went on to consider cases dealing with the concept of unacceptable risk in other contexts.  He then said:

   It is not the CEO's function (under s 12(4)) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.

   The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment.  The risk in question has to be unacceptable, not likely.  Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function.  The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described.  Compare M v M (76 ‑ 78); Re H and ors (minors) [1996] AC 563, 572 - 573 (Lord Browne­Wilkinson, dissenting) and 576 - 577 (Lord Lloyd of Berwick, dissenting); Murphy [243] - [305] (Carmody J).

   The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:

   (a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);

   (b)the apparent strength or weakness of the case against the applicant in relation to the non-conviction charge in question;

   (c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and

   (d)the likelihood of any such future risk materialising.

   The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions [84] - [87]. [original emphasis]

6. It is clear that the Parliament made specific provision for the issuing of a negative notice in circumstances where the person to whom the notice issues has been charged but not convicted of a sexual offence against a child.  The fact that the person has not been convicted, and the reasons why, may be relevant in considering whether 'the particular circumstances of the case' are sufficient to satisfy the CEO that a negative notice should issue.  However, all of the relevant circumstances must be considered, not only those directly relating to the non‑conviction charge or charges.

7. It is also important to take into account the purpose of the WWC Act.  At [76] of Grindrod Buss JA said:

   The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who work in child-related employment and have been convicted of, or charged with, (including charged with and acquitted of) specified criminal offences.  The evident legislative purpose is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in child-related employment who pose or may pose a potential threat.  The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity.

8. The applicant submitted that the effect of s 12(8)(e) was to define the nature of the future risk that must be considered by the decision­maker. That is to say, that the prediction of future risk must be made in the light of the conduct that was the subject of any charges. It was argued that the consequence of this is that whilst s 12(8) allows an expansive range of evidence to be considered the question of future risk is limited to conduct which is the same or similar to that which was the subject of the charges (Applicant's Final Submissions [15] ‑ [16]).

9. I do not accept that submission for the following reasons. Firstly, s 12(8)(e) directs attention to the question of what effect recurrence of conduct the subject of a charge may have, it does not say that any other conduct is irrelevant in determining future risk of harm. Secondly, the object of the Act is to ensure children are protected from the unacceptable risk of sexual or physical harm, it would not accord with this object for the decision‑maker to be only concerned with risk of a limited type. Thirdly, the broadness of s 12(8)(g) which permits the CEO to have regard to anything else he or she considers relevant to the decision would be effectively restricted if it only related to the risk of conduct of the type the subject of charges. Fourthly, it was clearly contemplated that a negative notice might issue where a person was charged with an offence but not convicted. Thus, the existence of non‑conviction charges is a jurisdictional fact but the WWC Act does not require proof of the conduct the subject of the charges (to any standard or at all). The existence of evidence relating to that conduct would be relevant, but there is no suggestion, express or implied, that the decision‑maker is only to consider the risk of conduct of the specific type that was the subject of charges. Fifthly, the Explanatory Memorandum for the Working with Children (Criminal Record Checking) Amendment Bill 2009 states that s 12(8)(e) was introduced as an 'additional factor for consideration when the CEO is deciding whether he or she is satisfied in relation to the particular or exceptional circumstances of the case' (at page 6). This indicates that s 12(8)(e) is to be a mandatory relevant consideration, not a statutory expression of the ultimate test to be applied in deciding whether a negative notice should issue. That is also confirmed by the fact that the Explanatory Memorandum goes on to say that: 'This factor is directing the CEO to an assessment of the behaviours the applicant is demonstrating in their criminal record and the effect of such future conduct on a child if the applicant continues to offend in the same manner'. It does not say, or imply, that that is the only relevant behaviour to be taken into account.

10. As noted, in Grindrod Buss JA referred to the need for the decision maker to rely partly on facts and partly on reasonable suspicions in deciding whether there is an unacceptable risk of harm.  EM Heenan J considered the meaning of the term 'reasonable suspicions' and said:

    It is this content of the term 'reasonable suspicion' carrying with it the need for the suspicion to be reasonably based upon plausible information or facts, but not necessarily material amounting to prima facie proof or admissible evidence - Shaaban Bin Hussein v Chong Fook Kam [1969] 3 All ER 1626, 1630 (Lord Devlin PC) to which I consider Buss JA and the other judges in Grindrod and Scott were referring rather than to 'imagination or surmise'.  Accordingly, there must be some established basis for the existence of the alleged reasonable suspicion which will allow scrutiny of its probative value, as Buss JA intended should occur.  Were there no basis advanced for the existence of the alleged suspicion, then not only would it be unreasonable but scrutiny of its probative value would not be possible. [152]

The evidence

1. Pursuant to the orders of the Tribunal made on 31 May 2011 the respondent filed and served six books of documentary material.  These were received without objection.  Books 1 to 3 are exact copies of the books previously filed by the respondent for the purpose of the first Tribunal hearing.  Books 4 to 6 contain further materials including the transcript of the first Tribunal hearing and the orders and reasons for decision resulting from that hearing and from the subsequent appeal to the Supreme Court.

2. As I have noted earlier, the respondent also adduced additional evidence at this hearing.  That included oral evidence from three additional witnesses.  The applicant was also called and gave further oral evidence for the limited purpose of responding to the additional evidence of the respondent.

Evidence relating to alleged conduct in 1990

1. Book 1 of the materials contains documents relating to charges that were laid against the applicant in August 1992.  The documents include the indictment, prosecution brief and transcript of the trial.

2. There were two charges each alleging that on a date unknown in or about April 1990 the applicant had unlawfully and indecently dealt with a boy who was under the age of 13.  The complainant in each case was alleged to be the same young boy, who was 12 years old at the time.

3. The trial in the District Court in relation to these charges took place between 15 and 18 November 1993.  The complainant, DF, gave evidence that on three occasions whilst staying with the applicant he had woken up to find that the applicant was masturbating him.  Two of these incidents were said to have occurred in April 1990, one at the applicant's then Kelmscott home and one the following day at a shack that the applicant owned in Dunsborough.  These two incidents were the subject of the charges.  The third incident was said to have occurred some weeks later in Dunsborough.  The third incident was relied upon by the prosecution as revealing a course of conduct involving the applicant and DF.

4. In cross­examination it became apparent that there were significant inconsistencies between DF's evidence and his statement to the police.  These related to the timing of the incidents, exactly what had occurred on each occasion and which other boys had stayed with the applicant on each occasion.  Whilst the indictment appeared to relate to the first two incidents, in cross­examination DF conceded that he had been confused in regard to which details related to which incident. 

5. The applicant was found guilty by the jury of both counts.  He then appealed against his conviction.  On 3 March 1994 the Court of Criminal Appeal unanimously quashed the conviction on the second count in the indictment and by a majority also quashed the conviction on the first count in the indictment:  Hardingham v The Queen (Unreported, CCA WA, Library No 940105, 3 March 1994).  The Court was unanimous in deciding that there should be no retrial of the applicant upon the second count in the indictment and by majority reached the same conclusion on the first count.  The appeal was upheld because, amongst other things, the directions of the trial judge were inadequate and there were doubts as to the admissibility of alleged similar facts (in particular, the third incident).

6. What is significant for present purposes is that the Court of Criminal Appeal did not order a retrial. That this was a majority decision is of no consequence. The decision not to order a re‑trial appears to be very significantly based on the confused and contradictory evidence of the complainant. E M Heenan J said that the proper conclusion to be drawn from the result of the appeal was that there was no evidence that could lead to any reasonable conclusion that the applicant was guilty of committing the second count as charged (there being some confusion as to which incident it related to) and that the evidence led against the applicant in relation to the first count depended entirely upon the credibility of the complainant and that this had been shown to be uncertain and unreliable during the course of the trial: [101]. I accept that that is the proper interpretation of the outcome. I also accept that the evidence available in respect of the 1990 incidents is not sufficient in the particular circumstances of this case to support a reasonable suspicion that the indecent acts as alleged occurred.

7. This does not mean that none of the evidence relating to the events of 1990 is relevant at the present hearing.  The evidence of DF as to the indecent acts was the only evidence in that regard.  However, there was a great deal of evidence from DF, other witnesses and the applicant himself in regard to the circumstances surrounding the alleged incidents.  In many important respects this evidence was not challenged, or if challenged was supported by more than one witness and in some respects the evidence was provided by the applicant in his defence.  This other evidence was not critical to the outcome of the 1993 trial or the 1994 appeal.  It is however, evidence that is relevant to the issue now to be determined.  It is to that evidence that I will now turn.

8. DF said that the applicant had been his teacher in Year 7.  He described receiving favourable treatment from the applicant in class and said that he was the 'teacher's pet'.  He began attending the applicant's home as a result of an invitation from the applicant to provide computing classes.  He did so with other boys, one of whom was a friend, IW.  The lessons were held three times a week and soon began to involve activities other than working on the computer, in particular the applicant would permit DF and his friends to use his pool and weightlifting equipment.  DF said that the applicant encouraged competition between he and IW to meet targets in weightlifting.  The applicant would offer a monetary incentive to the boy who reached the target first, and would film the boys lifting weights so that they could see the improvement that they had made.  DF said that the applicant rubbed baby oil on their bodies for the purposes of filming, and that the applicant would also offer him money for improving his tan by sitting out in the sun (Book 1, pages 131 ‑ 133).

9. DF also said that alcohol was available at the applicant's home.  He referred to an incident when he had been at the applicant's house with IW and they had both drunk beer from a bar fridge.  He said that on this occasion they had watched what he described as 'porno movies'.  He said that this was the first occasion that he had drunk alcohol and that the applicant had offered it to him saying 'If you want it take it'.  DF said he drank alcohol until he was drunk and sick (Book 1, page 136).  DF described other occasions when alcohol was made available by the applicant, including an incident at Dunsborough when the applicant had gone to the pub and bought a cask of wine.  DF said that the applicant had told him to 'Help yourself' and that on that occasion he had had six glasses (Book 1, page 139). 

10. DF said that he regularly received money from the applicant and that sometimes this was for doing jobs like cleaning the pool.  He said that he trusted the applicant because he was his teacher but enjoyed the fact that the applicant allowed him to do things that his parents would not.  When asked 'What things did he give you that your parents didn't?', DF answered, 'The money, the freedom, the alcohol.  My parents are pretty strict.  They just never let me did the stuff that he let me did [sic]'.  DF said that at the time of his friendship with the applicant his relationship with his family was not good, he was fighting a lot with his parents and spending more time with the applicant than with them (Book 1, page 213).

11. IW gave evidence and confirmed that he had attended the applicant's home with DF.  He said that he and DF would have competitions lifting weights at the applicant's home.  These competitions would be judged by the applicant and he recorded them on video tape.  He recalled an occasion when 'We rubbed oil on ourselves and he video taped us lifting weights and then we watched it'.  IW said that the applicant would give $15 or $20 to whoever could lift the heaviest weight first.  He said that the applicant would also offer money to whoever could get the brownest tan (Book 1, pages 221 ‑ 222).

12. IW said that he and other boys were given alcohol to drink by the applicant.  He said that this would be 'A few cans of Swan Gold' but that he also drank Bacardi Rum and 'Wild Peach'.  IW said he had not drunk alcohol before this and that he would drink sufficiently to be 'drunk' or 'a bit drunk'.  IW also confirmed that he had been to Dunsborough with the applicant and DF and that he had drunk alcohol on that occasion.  He referred to that alcohol as 'Peach Cooler' (Book 1, pages 223 ‑ 229).

1. DF's mother gave evidence at the trial.  She described the relationship between her son and the applicant as involving them spending increasing time together.  She said in this regard:

   'Well, he was sort of taking over him.  He had ­ I had no say in anything [DF] does or anything'.

   How did that show itself?---Well if I said [DF] not to do something he will come and tell him to do the opposite.

   Who would?---Mr Hardingham. (Book 1, page 246)

2. DF's mother referred to the applicant giving significant presents to DF including a watch, a stereo, sunglasses, hats and tapes.  She said that on Christmas Day 1990 she had had an argument with DF who had told her that he would go to live with the applicant.  She said that the applicant said that he was prepared to have DF (Book 1, page 249).

3. The applicant was interviewed by the police and evidence of that interview was adduced at the trial.  The substance of that interview was not challenged.  Whilst the applicant denied the acts of indecency he did make other statements that are relevant for present purposes.  He agreed that DF had been his pupil in Year 7 and that he had offered tutoring in computers at his home.  He said that he did not charge for this service.  He said that initially the tutoring was to be one hour a week but at the request of DF and another boy it increased to two hours and a couple of days a week.  He said that the boys became interested in other activities at his home, one of which was lifting weights.  He was asked whether he paid DF money and said:

   I would give him money, yes, from time to time.  I live two doors from a shop.  I would give him money to get a drink or get something for me.  It would be a dollar or two dollars.  Then when [DF] became interested in weights as an incentive I set up a system where I gave him money for that.  With that money he used to pop down to the shop. (Book 1, page 265)

4. The applicant agreed that he had used a video camera to record DF and 'some of his mates' lifting weights.  He said that he had asked them to take their shirts off for this purpose.  He explained why this had occurred:

   [DF] asked me to film him so I told him to take his shirt off - as he could have a look. (Book 1, page 265)

5. The applicant referred to DF as his 'friend' and when asked whether it was usual for teachers to have relationships like this with their students said that he did not know (Book 1, page 266).  The applicant denied supplying wine to DF but said that DF and his friends had drunk alcohol at his house but that he only became aware of it later and 'dealt with it' (Book 1, page 268).

6. When asked by the police whether there was anything that had happened between he and DF that may explain the allegations, the applicant said:

   Well, there was once when I was sitting next to [DF] and I had my hand on his thigh,  then I realised what I was doing and took my hand away.

   What do you think you were doing?---I don't know.

   Is there anything else that happened?---When we were in Melbourne I woke up and my arm was over him.

   Was it near his penis?---I can't recall exactly. (Book 1, page 269)

7. The applicant gave evidence at the trial.  He agreed that he had set up a weightlifting competition between DF and IW.  He said in this regard:

   He was interested in weightlifting.  I had a set of - an old set of weights, barbells and dumb bells at home and when [IW] started coming around [DF] started showing an interest in using these weights and very quickly I picked up that [IW] and [DF] were fairly competitive with the weights that they used and so I set up - I can't think of the word.  I set up a system where they would set themselves goals and the first person to reach a particular goal I would give them usually it was $5. (Book 1, page 298)

8. The applicant denied ever paying DF or IW money to get a tan (Book 1, page 299).  The applicant referred to an occasion when the issue of pocket money had arisen.  He said in this regard:

   [DF] used to talk to me, confide in me in a lot of things and he mentioned to me one day that he was - or he asked me one day if I thought that he should be getting pocket money from his parents and I said to him that, you know, really it was up to his parents but I did say to him that I thought at his age, you know, maybe he could ask for a little.  He asked me how much I thought he should be getting, to which I said 'You know, it really depends on your parents', but from my experience, you know, the kids that I was aware of getting pocket money would probably be getting around $5 perhaps $10.  But as I explained to [DF] he would have to ask his parents about that, because he asked me to confront them about it to which I refused, but I asked him if he would like me to be there when he asked them about pocket money and he said 'yes'.  So next time I was around their house [DF] brought up the issue of pocket money with his parents who then explained to him that they couldn't afford any, so I put to [DF's father] the possibility of [DF] working at my house, cleaning my pool, and I would give him some pocket money in that way.

   Did you ever mention to him what you would give to your child if you had a child?‑‑‑Yes, we discussed generally, you know, pocket money in general and I remember saying to [DF] that if I had a son, you know around that age, I said I would probably be giving a substantial amount of pocket money and using that to teach them to budget.

   Did you give him an example of an amount of money that you would give?‑‑‑Yes, I said to him, just as an example, that perhaps $50 would be a good amount to give a child and from that they could learn to budget. (Book 1, page 299 ‑ 300)

9. The applicant referred to an occasion when he had purchased a Toyota Landcruiser.  There had been a discussion with DF about the car and some work that was needed to restore it.  In this regard, the applicant said:

   I did say to him when he mentioned that he was going - he was looking forward to spending some time helping me restore the vehicle - I did tell him that if he did help me I would certainly appreciate it and I said to him that if I still had the car when he turned 17 I said he may even want to have it. (Book 2, page 304)

10. The applicant was asked whether it was usual for him to have young people staying overnight at his house.  He said that it was and that this had not just occurred in 1990.  He said he had been making friends with families at school and forming close relationships with them and their children for as long as he had been teaching.  He said that this did not usually involve children that he was teaching at the time and that DF was a 'unique experience' in that regard.  However, he then corrected himself by saying that IW and another boy who stayed at his house at around that time were also being taught by him in 1990 (Book 2, pages 306 ‑ 307).

11. As regards the drinking of alcohol, the applicant said that DF and IW had drunk alcohol at his house on one occasion that he was aware of.  He said that they had asked him if they could share a can of beer.  He said that he initially said 'no' but they asked him several times and that he eventually allowed them to.  He said that as far as he was aware that was the only time the two of them drank alcohol together at his house.  He was asked whether the boys had drunk alcohol individually.  He said that he was not aware of DF doing so but that there was a 'fairly well stocked bar there'.  He said that there were occasions in the following year when IW and another friend would share a can of beer when they were at his house.  When asked whether alcohol had been drunk by DF at Dunsborough the applicant agreed that on an occasion when DF was there with another boy, there was a cask of 'Wild Peach' wine cooler in the refrigerator.  He said that DF asked if he could have a glass of that and he let him have one glass. 

12. The applicant referred to two incidents which had involved him touching DF.  It is clear that these incidents were put forward both to refute any suggestion of impropriety and to explain why the allegations might have been brought.  Neither of the incidents related to the alleged indecent acts in a direct way.  They are both, however, highly relevant to the question of the risk of sexual harm to children.  In regard to the first incident, the applicant said:

    That particular day DF had brought over to my house with him an audio cassette of a band called Guns and Roses, I think it was, and there was a design on the front of that that he really liked and he asked me if I could draw that design on his arm.  I had from time to time drawn tattoos on his arm.  He liked to see them there.  So this particular day he was sitting on the lounge chair, I think it was, I was kneeling next to him and had his arm in my hand.  My arm was on his lap with his arm in my hand and I was drawing this design onto his forearm.

    And did anything untoward happen at that time?---Yes.  I moved to get a little bit more comfortable at one stage.  It was, you know, not long after I had started drawing on there and the arm that was holding his arm brushed against his penis which was erect at that stage.

    And how did you feel about that?---I just moved away.  I apologised to him.  He indicated to me that he wasn't aware what was going on.  He said to me that he was asleep and I just moved away and stopped what I was doing. (Book 2, page 313)

13. This incident was put to DF in cross­examination.  DF agreed that there had been an occasion when the applicant had drawn a tattoo on his arm.  However, he denied that his penis had been erect at the time. 

14. The second incident was said to have occurred in Melbourne when the applicant accompanied DF's family on a holiday.  The family and the applicant stayed with relatives of DF.  The sleeping arrangements included that DF and the applicant slept in the lounge room together.  This was contrary to the wishes of DF's mother.  The applicant said:

    The only other time I can recall was in Melbourne one evening when I woke up.  It was sometime during the night, I have no idea.  As I have explained before, DF and I were - I think I explained before - DF and I were sleeping on the floor together in the living room of the flat and I woke up one night and my arm was across his stomach.

    And what did you do about that?‑‑‑I took my arm away and rolled over, faced the other way and went back to sleep. (Book 2, page 314)

15. In cross­examination the applicant conceded that when DF was with him he would allow DF to do things that his parents would not approve of.  He was particularly referred to an incident when he had taken DF and IW to Mandurah.  He had told the parents of the boys that they would be back late.  They did get back late but rather than dropping the boys at their homes they all returned to the applicant's house where the boys lifted weights.  This was one of the occasions when a video recording was made.  The video recording had been produced in evidence earlier in the trial.  The recording included audio of comments made by the applicant at the time and he was asked about these in cross‑examination:

    Because you had got home from Mandurah early hadn't you?‑‑‑Yes.

    And the boys had wanted to lift some more weights?‑‑‑Yes.

    So you told them 'alright we will do it.  I am happy to be here all night'?‑‑‑Yes, that's what I said.

    That was your intention wasn't it?‑‑‑No.

    Well why did you say it?‑‑‑They were 12‑year‑old boys.  I like them to feel as though they were special.  To feel as though they were able to do things that they couldn't normally do.

    Like stay up until 2.00 in the morning?‑‑‑Often when they stayed at my house when I went to bed I used to leave them to it and often they would stay up sometimes later than that. (Book 2, page 342)

16. A little later the applicant was asked whether he would stop the boys doing the wrong things in class.  He said that he would but when asked about out of class, he said:

    … I was a little more, I suppose the word - a little more flexible outside of class, yes. 

    Let them swear for example?‑‑‑Well I didn't stop them, no.

    Well you swore yourself didn't you?‑‑‑Yeah, occasionally.

    Well let me put a few things to you Mr Hardingham.  On the video you said at one stage to [DF] 'Fuck 49, do 51½ tonight' didn't you?‑‑‑I did, yes.

    And you said to [DF] 'Just do the fucking thing' didn't you?‑‑‑I did.

    And you said 'It's a real piss‑off isn't it' when he failed?‑‑‑I think I remember that, yes.

    Yes.  And you said, 'Come on, impress the shit out of us'?‑‑‑Yes.

    You swore quite frequently didn't you?‑‑‑Well I don't know about the word frequently but, yes, I swore.

    Well they were 12‑year‑old boys weren't they?‑‑‑Yes.

    And they swore all the time didn't they?‑‑‑They - yes.

    And you didn't do anything to curtail that did you?‑‑‑No.

    In fact you effectively encouraged them to swear by saying 'If we show this to anyone else we will have to turn the sound down' because of it?‑‑‑Sorry, repeat that.

    You effectively encouraged them to swear or condoned them swearing by saying 'If we show this to anyone else we will have to turn the sound down' didn't you?‑‑‑I imagine - I suppose so, yes. (Book 2, page 344)

17. A number of other witnesses were called on behalf of the applicant at the trial.  Some of these were character witnesses, but they also included other boys who had attended the applicant's home in 1990.  One of these was JP, who DF had said had been at Dunsborough at the time of the third incident.  JP agreed that he had been to Dunsborough with DF on one occasion.  He said that both he and DF had drunk some alcohol at Dunsborough.  He said he thought it was a cask of 'Wild Peach' and that DF had had two or three glasses and that he had had one (Book 2, page 362).  He agreed that the applicant was present when he and DF had drunk alcohol but denied that the applicant had seen them drink it (Book 2, page 365).

18. AS was also in Year 7 at the time.  He said that he had drunk a couple of glasses of wine on New Years Eve at the applicant's home.  He could not recall which year that was.  He also said that he had been to Dunsborough together with IW and that they had both drunk beer on that occasion (Book 2, page 373).  AS said that on both occasions the applicant had given them the alcohol.  He estimated that at Dunsborough he had drunk two or possibly three cans of beer (Book 2, page 375).  Both JP and AS said that DF was given favoured treatment at school and was the 'teacher's pet'.

19. BC was also in Year 7 at the time.  He gave evidence that he began attending the applicant's home to do computing classes with DF.  He agreed that weightlifting was also done, but this was mostly by DF and IW (Book 2, page 383).  He denied that DF received favoured treatment and said that he was never given alcohol by the applicant or saw anyone else drink it whilst he was there.

Re­instatement of the applicant

1. Following the quashing of the convictions against the applicant in March 1994, and after an investigation by the Ministry of Education (as it then was), the applicant was re‑instated as a teacher with full entitlements.  Thereafter, the applicant worked continuously without any allegations of adverse incidents until 2008.

2. The re‑instatement of the applicant is a circumstance in his favour in relation to any inference that he could have committed the alleged indecent acts or other improper acts in 1990.  It is also relevant in considering whether there is an unacceptable risk of sexual or physical harm to children in the future.  However, the weight or significance that attaches to the applicant's subsequent service, together with other factors in his favour, must be assessed in the context of all the information that is now available and having regard to the best interests of children.

3. The inquiry by the Ministry of Education did not seek to reconsider the question of whether the alleged indecent acts had occurred.  Whilst a different standard of proof applies to disciplinary proceedings, the view was taken that a new investigation would be required that would cover the same ground and advice had been obtained that particular care should be taken before making any determination that the applicant was guilty of an offence, and in imposing any penalty for an offence, of which he had been acquitted.  It was also noted that the judges on the 1994 appeal had expressed concern about inconsistencies in the evidence of DF (Book 4, page 747).

4. In these circumstances, the Ministry decided not to conduct another investigation into the indecent act allegations.  However, it was considered that disciplinary action was appropriate in respect of a number of matters that the applicant had admitted in his evidence at the trial.  These included the admissions as to offering and permitting the consumption of alcohol by minors, using and encouraging or condoning inappropriate use of language by minors, not stopping children being untruthful to their parents and not respecting the wishes of parents in respect of children that were under the applicant's care (Book 4, pages 746 ‑ 747).

5. When interviewed by a Ministry officer the applicant said that the evidence that he had given while under oath at the trial was truthful, however he did not take up an opportunity to officially respond to the allegations.  In these circumstances, those allegations were found to be proven and the applicant was found guilty of misconduct (Book 4, pages 742 ‑ 743).

6. By letter dated 31 May 1994 the applicant was advised of the misconduct finding and told that he had been officially reprimanded and fined $200.  The letter concluded by stating:

   The nature of the offences on which I have made my findings are disturbing.  Can I strongly recommend that you carefully consider your actions when confronted with similar situations. (Book 4, page 743)

Evidence relating to the 2008 charge

1. On 4 April 2008 the applicant was charged with one count of indecently dealing with a child over the age of 13 and under 16.  The offence was alleged to have occurred on a date unknown between 1 March 2007 and 1 April 2008 in relation to a then 14‑year‑old boy, RC. 

2. The allegation was that RC and two other teenage boys had been staying with family members at shacks in Dunsborough in close proximity to that owned by the applicant.  On one evening the three boys were alleged to have been at the applicant's shack drinking alcohol with him.  RC was alleged to have become very ill from the alcohol.  It was alleged that whilst in this state the applicant had sat next to RC, placed his left hand inside RC's tracksuit pants and touched his stomach area and groin for between one and two minutes. 

3. The prosecution case relied principally on another young man, CB, who had been present at the time.  The alleged victim, RC, did recall being very drunk on an occasion when he was at the applicant's shack but had no recollection of any indecent act.  Importantly, whilst RC said that there had been occasions where he had been so drunk in the applicant's presence that he did not remember what had happened to him, the occasion referred to in his statement (which was possibly the same as that referred to by CB) was not one of them (Book 3, page 515).  In these circumstances, there was an apparent inconsistency between the statements of RC and CB. 

4. On 23 July 2008 the prosecution informed the Magistrates Court that 'despite the existence of a prima facie case there are no reasonable prospects of conviction'. The prosecution offered no evidence in relation to the charge and it was dismissed for want of prosecution pursuant to s 25 of the Criminal Procedure Act 2004 (WA) (Book 3, page 597). For the purposes of the WWC Act that charge became a non­conviction charge within the meaning of s 4.

5. E M Heenan J held that the only conclusion that could be reached for the abandonment of the prosecution was that the prosecution case was extremely weak and had no reasonable prospects of success. His Honour also concluded that the Tribunal on the previous hearing was not justified in reaching a decision that it had a reasonable suspicion that the applicant had indecently dealt with RC at the shack at Dunsborough as alleged in 2007. His Honour said that the facts were 'just too flimsy to support a positive conclusion that an offence was committed or that there was a reasonable suspicion that it had been committed' [119].

1. The evidence in regard to that incident has not changed and accordingly I am unable to make any finding in respect of the alleged act of indecency.  However, like the 1990 incident, there is other evidence of the surrounding conduct which is well supported and, in some respects, not disputed by the applicant.  This other evidence is relevant to the issue of whether there is an unacceptable risk of sexual or physical harm to children.

2. RC stated that he was 15 years of age at the relevant time and that towards the end of the previous year, that is 2007, he recalled an occasion when he went to Dunsborough with his father and a friend.  He said that he had previously become friendly with the applicant and that on this occasion RC and his friend shared a bed in the applicant's shack (Book 3, page, 513).  He said that one day he had been surfing with his friend and the applicant had taken photographs of them.  Later that day RC and his friend went to the applicant's house in Dunsborough where they lifted weights.  RC said that he and his friend had their shirts off and that the applicant took photographs of them (Book 3, page 514).

3. On a later occasion, at Easter 2008, RC stated he and a group of others were again staying in the shacks at Dunsborough.  He said that on the second night he and the applicant had drinks at the applicant's shack.  He said everyone else was at a barbeque at another shack.  RC said, 'I had enough beers to get pissed but not blind.  I was drinking Millers, I had about half a carton'.  He said that the applicant gave him the beers.  He said that later that night they were watching television together when RC accidentally knocked the applicant and caused him to spill his drink.  The drink went on the foldout bed on which they were laying so they moved to the applicant's double bed and lay on that and continued to watch television.  RC said that they both had their shirts off and that they both fell asleep on the applicant's bed.  He said that during the night the power failed and they lit candles and drank some more.  RC said:

   I've been that drunk before around [the applicant] where I don't remember what has happened to me.  This wasn't one of those times.  [The applicant] has got me drunk before when I've gone to his place.  Every now and then he gives me alcohol.  As far as I'm aware, [the applicant] has never touched me in the wrong way.  I've never woken up or thought [sic] has been suss or nothing. (Book 3, pages 515 ‑ 516)

4. CB was the person who said he had witnessed the alleged indecent act on RC.  CB stated that he had known the applicant for several years and that his father owned one of the other shacks at Dunsborough.  CB said that when he was about 13 years of age (that is, about 5 years earlier) the applicant used to invite him down to his shack.  He said this continued until he was about 14 or 15 years of age.  He said that on almost every occasion he went to the applicant's shack the applicant would ask him if he wanted a drink.  He said this was usually 'cougar bourbon' and that he often got drunk.  He recalled that on one night a whole bottle of bourbon was drunk.  He said he was not sure how much of that bottle the applicant drank (Book 3, page 519). 

5. CB recalled an occasion when he, RC and another boy, MS, had gone to the applicant's shack.  He said that the applicant had a bottle of cougar bourbon there.  He said that the applicant offered the bourbon to all of the boys.  Whilst CB and MS were 17 or 18 at this time, RC was younger.  CB said:

   We all had a drink including, RC.  Later on that night RC was grabbing the bottle and drinking the bourbon neat, straight out of the bottle.  [The applicant] was talking RC up for being able to do that.  RC was only 14 years of age then.  RC had several drinks and then about half an hour after he stopped drinking RC got pretty crook.  This was about midnight. (Book 3, page 520)

6. This was said to be the occasion on which CB had later witnessed the indecent act.  Even though no finding can be made in respect of the occurrence of an indecent act, the evidence in relation to the applicant offering alcohol to young boys is relevant.  I note that whilst the statement of CB contained in the book of materials is unsigned, a signed copy of that statement was tendered by the respondent at the hearing (Exhibit 8). 

7. RC's father, GC, stated that he and his son had been at Dunsborough at Easter 2008.  He said that after being told something by another adult he went down to the applicant's cabin.  He said that he there found RC and the applicant lying asleep in the same bed.  He said that RC was only wearing a pair of jeans and that he and the applicant had a doona over them.  He said that there were two large candles, one on either side of the bed that were alight.  On the left side of the bed, where RC was, there was a nearly empty 700 ml bottle of Jim Beam Bourbon.  GC stated that he pulled his son out of the bed and they left together in his car (Book 3, page 529).

8. The following day GC confronted the applicant in the following terms:

   I said to [the applicant] 'What's going on?'.  [The applicant] said 'What do you mean?'  I said 'I come in yesterday morning and you and my son are lying together in the same bed'.  [The applicant] said 'Oh nothing.  The other bed got wet so he lay down on my bed and waited for it to dry.  I put a fan on it'.  I said 'That's bullshit.  It's fucking not on.  My son will never be here again without me being here'.  I then drove back home with [RC] and [another friend].  I have attempted to ask RC what happened but he keeps saying Nothing and doesn't want to talk to me about it. (Book 3, pages 531 ‑ 532)

9. The applicant was interviewed by the police.  He said that on the Saturday evening of Easter a number of people including RC had been at his shack.  Everyone other than RC had left by about 11.00 pm or 12.00 am.  The applicant said that he went into the shack and RC was watching television, laying on a sofa bed.  He said that he sat on the sofa bed to watch television and was drinking a bourbon and coke.  He said he spilt the drink and apologised to RC because the sofa bed was where RC was going to sleep.  He said that shortly after this he went to his own bed and fell asleep.  He recalled being woken in the night by RC to say that the power had gone off.  He believed this happened twice and the first time he woke up and went outside to turn on the safety switch which had tripped.  He said he had no other recollection before waking up at about 9.30 am the next morning to find that RC had gone.  He said that there were candles by the bed but that he had not lit them (Book 3, pages 540 ‑ 541, 556).

10. The applicant said that RC had one alcoholic drink that night.  It was a bourbon and coke at the time they were watching television together (Book 3, pages 547, 561).  He said he was not aware of RC sleeping in bed with him until he was confronted by RC's father the following day (Book 3, page 541). 

11. As to the earlier incident, the applicant agreed that there had been occasions when RC, CB and MS had been at his shack however he denied that they had drunk alcohol on those occasions (Book 3, pages 583 ‑ 584).  He said that on one occasion he had gone to bed because he was quite drunk himself and he believed that the boys had been drinking earlier at another shack (Book 3, page 585).  He said he found out later that the boys had continued drinking and that RC had been so drunk he had been sick.  He said that on this occasion the three boys had come into his shack and RC had laid down on the sofa bed next to him.  He said he woke up and was going to go but that RC asked him to stay and look after him.  So he stayed in the bed next to RC until RC went to sleep and then he got up and went to another bed.  The applicant conceded that it was possible that he had put his arm around RC and patted him on the back to comfort him but denied that he had put his hand down RC's pants (Book 3, pages 586 ‑ 588).

The application to cancel the negative notice

1. The negative notice issued on 24 April 2008 prior to the dismissal of the 2008 charges on 23 July 2008.  Notwithstanding the dismissal, the negative notice remained valid.  For reasons which are not presently relevant, an application to cancel the negative notice was not made until 20 November 2008.  The applicant was invited to provide personal references in support of his application (Book 3, page 605).

2. In the submission from his solicitors of 20 November 2008, a number of matters were put forward as justifying a conclusion that the applicant was suitable to carry out child­related work.  These matters were as follows:

   1.Mr Hardingham has been employed by the Department of Education since 1983 and has had 'good standing' with the Department of Education for over 25 years.

   2.Since 1999 Mr Hardingham has acted in the capacity of School Administrator (including two years employed as a principal).

   3.Since 1999 Mr Hardingham has held the position of curriculum consultant, working in Department of Education District Offices and providing professional support to teachers and other education leaders in relation to current issues concerning and affecting children including literacy, bullying and behavioural management.

   4.Those who encounter Mr Hardingham in both the professional and personal arena have only glowing references and admiration for the role Mr Hardingham plays in his community both as a teacher and in general.  At all times throughout Mr Hardingham's career he has maintained a professional attitude and high moral standards and as such has been an exceptional role model for the children he has taught during his career.

   5.Mr Hardingham is well respected in his community for his tireless community service efforts and has throughout his life and teaching career spent countless hours helping various sporting teams and assisting with other extra‑curricular and community activities. (Book 3, pages 610 ­ 611)

3. These submissions were later supported by a number of written personal references.  A number of the references were from teaching colleagues.  They referred to the applicant in positive terms and provided views which supported the submissions made by his lawyers (Book 3, pages 614 ­ 621).

4. An assessment report was then prepared within the Department for Child Protection which recommended that the application to cancel the negative notice be refused.  The report is undated but appears at Book 3, pages 622 ­ 640.  Given that this is a rehearing it is unnecessary to canvas the reasoning contained in that report.  The recommendation was accepted and on 19 December 2008 the applicant was advised that the application to cancel the negative notice was refused (Book 3, pages 641 ­ 643).  He then sought a review of that decision in the Tribunal.

Evidence at the first Tribunal hearing

1. A number of statements were prepared and submitted to the Tribunal for the purposes of the first hearing.  Some of those witnesses were then called and examined at the hearing.  The statements and the transcript were incorporated into the volumes of evidence for the present hearing.

2. One of the statements was from MS, the friend of CB who was said by CB to have been present on the occasion that RC was indecently touched by the applicant.  MS had no recollection of seeing the applicant touch RC in the way that was described by CB.  However, he did describe the events of the relevant night.  He said that although all three of the boys, himself, CB and RC were underage, they were allowed to drink in front of their fathers and the applicant.  He said that on one afternoon they had all been drinking at CB's shack.  This included the three boys and the fathers of CB and RC and the applicant.  Later that night the three boys and the applicant returned to the applicant's shack.  There is no reference in the statement to any other adult being present at this time.  MS then states:

   [The applicant] had a bottle of cougar and everyone had a drink from it.  We were all inside [the applicant's] shack.  [RC] was sculling from the bottle and became pretty sick as a result.  He went out onto the veranda and began to vomit.  [The applicant] went outside and I saw him consoling [RC] as [RC] continued to be sick or feeling unwell.  I was sitting inside and could see them out on the veranda.  [The applicant] put his arm across [RC] who was alternatively bending and straightening his upper body as he wretched or vomited.  I cannot recall what arm [the applicant] used and am uncertain what side of [RC] he was on.  I also cannot recall seeing [the applicant] move his arm from off [RC's] shoulder or upper back. (Book 4, page 696)

3. MS states that he and CB assisted RC to walk to the foldout couch where he was going to sleep.  CB and MS left shortly after.  MS said that he cannot recall how much he had to drink that day but he was 'pretty drunk'.  He said at this time he was only about 16 years old and did not drink much at all and was easily affected by what he drank.  He said that he had been drinking beer before the boys went to the applicant's shack and then drank bourbon which the applicant provided to the boys (Book 4, page 697).  The statement of MS was tendered on behalf of the applicant by consent and he was not called for cross­examination.

4. A detailed statement from the applicant was also tendered.  This set out his work history and the circumstances in which he had formed relationships with the boys who were the subject of the non‑conviction charges.  In regard to the 2007 incident, the applicant referred to two occasions when RC had stayed at his shack.  The first of these was in April 2007 and related to the events surrounding the second non­conviction charge.  On this occasion the applicant said that RC and CB asked their parents if they could go to the applicant's cabin with him.  He said that when they got back to the cabin, CB made the applicant another drink of bourbon and coke and CB and MS may also have 'grabbed a drink' but he could not be certain of this.  The applicant said he did not know if CB made an alcoholic drink for RC.  He denied encouraging or coercing the three boys to drink alcohol.  He said he fell asleep before finishing his drink.  Sometime later CB and MS woke him to tell him that RC was being sick.  He said he was still 'quite inebriated' himself at this time.  He remembered going outside to make sure that RC was okay.  He said that he sat next to RC who was clearly sick and sitting and leaning forward.  He said that he recalled putting his hand on RC's back and consoling him.  He said he advised RC to have a drink of water, go to bed and sleep it off.  The applicant then returned to sleep on the sofa bed.  He said that at about 5.00 am CB and MS brought RC into the cabin.  He said RC appeared to be quite drunk.  The other boys placed RC on the sofa bed next to the applicant.  He said that he then got up to go to his bedroom but as he did so RC said 'Don't go yet, wait here'.  The applicant said that he assumed RC was feeling quite ill and wanted some support.  He stayed on the bed with RC and rubbed his shoulders and back.  When he was sure that RC was asleep he went to bed in his bedroom (Book 4, pages 711 ­ 712).

5. As to the later incident in Easter 2008, the applicant stated that on this occasion a number of people were at his shack for dinner.  Everyone else other than RC had left by midnight.  He said at this time he went into the cabin and sat on the sofa bed with RC.  The applicant was drinking bourbon.  He said, 'I also let RC have one which, in hindsight, I regret doing'.  The applicant said that he spilt his drink on the sofa bed and that as that bed was now quite wet he offered to swap beds with RC.  RC said he did not want to as he wanted to stay up (the television being near the sofa bed).  The applicant said that he then went to bed in his bedroom and fell asleep almost immediately.  He said that the rest of the night was quite vague.  He recalled at one point RC waking him to say that the power was out and that he got up and went to the meter box and switched the power back on.  He said he could recall nothing else until he woke up at 9.30 am to find that RC had gone.  At this time there were two candles burning on the bedside table in the bedroom.  The applicant said that he did not put them there.  He said that RC later told him that when his father came to get him that morning he was asleep on the applicant's bed.  The applicant said that he asked RC why he was there and RC said that he had gone to talk to the applicant and had then fallen asleep.  The applicant said that he was later confronted by RC's father as to why his son was in the applicant's bed.  The applicant responded by saying that the bed on which RC had been sleeping 'was soaked and I didn't know he was there' (Book 4, pages 713 ­ 714).

6. The applicant's statement also contained a denial of ever having pressed children or teenagers to drink alcohol.  However, he said that:

   On the rare occasions I have allowed a teenager to drink alcohol whilst I was present, it is usually where I know those teenagers were already drinking alcohol and had been doing so with their parents' consent.  I felt at the time it was better they have a drink with my knowledge rather than drinking larger amounts secretly.  In hindsight I regret this. (Book 4, page 714)

7. The applicant confirmed that he had allowed CB to have a few drinks on two or three occasions before he was 18.  As to RC, the applicant said he had tried to deter him from drinking but had decided that prohibition of alcohol with teenagers 'rarely works'.  He said that RC 'would have had a few drinks most but not all the nights he was with me and most of the time when his father was present.  I felt he was drinking less and talking less about drinking by Easter 2008' (Book 4, page 714).

8. The applicant gave evidence at the hearing in which he confirmed the contents of his statement.  In cross­examination he was asked whether in 1990 he had supplied DF with alcohol.  He said that DF and IW had been at his house and asked him if they could have a can of beer.  He said:

   And I think they may have actually taken a can out of the fridge and held it there.  At first I said 'no'.  They asked me again and again and eventually I compromised and folded and I said to them 'Look, you can share one can'.  From memory I don't even know if they had it because from memory they took the can and they went outside to the pool area and I don't even know if they actually drank it or not but I did actually provide them with one can to share. (Book 5, page 801)

9. The applicant was also asked in cross‑examination how it was he ended up being asleep in the same bed with a 15‑year‑old boy at Easter 2008.  He said:

   The only explanation I can give is the explanation that RC gave me later that day when he came and told me what had happened that morning, that his father had walked into the cabin and he was lying on the bed next to me. 

   Yes?‑‑‑What RC explained to me - and, as I have said, I don't know.  I was asleep.  I don't know what happened.  The explanation that he gave to me was that he came into my room at 6 o'clock in the morning to wake me up.  He had trouble waking me up so he sat on the edge of my bed and he fell asleep there.

   Alright.  Is it the case you were very intoxicated?‑‑‑That previous night not a great deal, no, from memory. (Book 5, page 815)

10. The applicant was asked questions by the Tribunal members in regards to his awareness of the care needed to be taken by teachers in dealing with children.  In particular he was asked:

    Did it occur to you that having on a regular basis kids of that kind of age at your house after hours might be seen as not quite right?---At the time it didn't no, no.

    So it never occurred to you that rightly or wrongly you were exposing yourself to the possibility of accusations?---Well, I would have to say that I certainly never expected anything like that to happen.  That's for sure.

    Because as far as you were concerned all your dealings with these kids were entirely proper?---Generally speaking, yes.

    Which bits weren't?---Well you know I certainly regret allowing [DF] and [IW] to have a drink.  That I certainly regret but you know apart from that, yes, I certainly felt that there was nothing inappropriate whatsoever.  Most of, if not all, the associations with kids were kids of people that I knew very well.  Many of whom I still know and am still very good friends with and so any, anything that could possibly be seen as inappropriate didn't really cross my mind. (Book 5 page 831)

1. In order to better identify the nature of the risk that Ms Cant was suggesting that the applicant would pose to children, the following questions were put by the Tribunal:

   Obviously whether the grooming behaviour is, in fact, grooming depends to some extent upon what its purpose is?­­­Mm.

   Is it difficult to draw a conclusion that behaviour is grooming if the person concerned is never proven to have engaged in sexual misconduct?­­­I think one of the difficulties in this whole area is that very, very few - in this case, men - who have engaged in grooming behaviour and perhaps got beyond that are ever charged, much less convicted of those violations, and the evidence is also very clear that even when that happens, it's really just the tip of the iceberg that comes into that category.  I think, as I've said, what one really has to look at is the totality of the pattern and whether that pattern that emerges represents a pattern that is common amongst people who are known to have been groomers, who may or may not have been charged and who may or may not have been convicted.

   Which, of course, is what risk assessments are all about?­­­Which is what risk assessment is all about.  In terms of risk assessment itself, there's no test or anything that can help us on that one, I don't think.

   No, not perhaps in this area?­­­No.

   Would it be correct to say that the most reliable indicator of future risk is past conduct?­­­In general, yes.

   So, in this case, does it make a prediction of risk more difficult if the applicant has not engaged in sexual misconduct?­­­I think if one takes the past behaviour as a predictor of future behaviour, then I think it's reasonable to assume there is a risk that he will continue to engage in those grooming behaviours or behaviours that appear to be, when you look at them in a totality, suspicious of grooming - that that may continue to occur.

   Yes, but I suppose I was more interested to know whether, given what we know of the grooming behaviour, what inferences we can't draw from that behaviour, does it make it difficult to draw a conclusion that that grooming behaviour presents an unacceptable risk that it will lead to sexual misconduct, given that it has not provably done so in the past?­­­I think it's impossible to say beyond reasonable doubt that it will lead to sexual misconduct, given that there has not been proven sexual misconduct in the past.  I think in my own view, based on the literature, it's reasonable to hold a suspicion that it may lead to sexual misconduct in the future.

   You've spoken about a number of things which I think - I don't know if you've used this generic term, but pardon me if I do, boundary violations?­­­Yes.

   Do you consider that those boundary violations are harmful in themselves to the children concerned or do you consider that their significance is the risk of harm that that conduct may lead to?­­­I think ­ ­ ­

   Perhaps both?­­­I think it's both.  Certainly the alcohol aspect of it I think is harmful in its own right for a 13, 14­year­old boy, because that's what we're talking about.  I think the sort of boundary violation in Melbourne where, at the very least, it was a young boy whose mother's requests were not reinforced, I think that's not a healthy situation.  I think the risks attached to, you know, inadvertently brushing a child's erect penis et cetera, it's not a good situation, I don't think.

   You made a comment to some questions put by Mr Lindsay in regards to what happened in Melbourne, or it's alleged to be what happened in Melbourne?­­­Mm.

   And, as I understood it, you said, well, consent was not an issue, because these were children, when it comes to the setting of boundaries.  I understood you to be saying that in respect of children there is an enormity of concepts of what boundaries are that ought to be respected by adults, irrespective of the consent of the child?­­­That's correct.  An example of that would be if the touching was deliberate and the child consented and, you know, it's quite clear that, in fact, in some circumstances children do consent.  I mean, it's ­ ­ ­

   Or might even invite?­­­Or might even invite it.  Particularly with adolescent boys who are curious, sensations may not be often unpleasurable.  There's a whole raft of things.

   These interactions?­­­These interactions, it's still a boundary violation even though it is with the consent or encouragement even, as you said, of the child.

   If this conduct occurs in respect of a child, might it have an impact upon how that child develops in their sense of how they ought to set their own boundaries as they become adults?­­­Very clearly.  There's a number of potential consequences from this and to some extent how it plays out on individual children may well be different, depending on their resilience and a whole range of other factors.  But it is very well documented that this sort of action can lead to depression, to post‑traumatic stress disorder, to alcohol misuse, to relationship difficulties immediately and in later life.  Many potential sequelae from this, yes.

   They would be things which are potentially harmful to a child ­ ­ ­?­­­Yes.

   ­ ­ ­ that arise from the boundary violations regardless of whether there is sexual misconduct that follows or not?­­­Perhaps not quite as clearly from the boundary violations per se.  It would really depend to an extent how the child construed those boundary violations, as well.  Although having said that, again one of the things about boys in particular is that they don't necessarily see some of the things that happen as actually being abusive and you still get the sort of sequelae that I have talked about. (T:140­143; 10.02.12)

Findings

1. As regards DF and IW, there can be no doubt, based upon the applicant's own evidence, that he permitted them to come to his home on a regular basis and there engage in activities unrelated to the original purpose of attending computing classes.  These activities included weight‑lifting and the applicant encouraged competition between the boys in this regard.  On at least one occasion, he filmed them whilst they were shirtless and encouraged them to flex their muscles.  In encouraging the boys on this occasion, he used inappropriate language.  It was inappropriate not only because it involved swearing but because it encouraged the boys to engage in behaviour that transgressed their parents rules.  I also accept the evidence of DF and IW that the applicant provided baby oil for the purpose of this filming, though I do not conclude that he applied the oil himself (given that this was not confirmed by IW).

2. I find that the applicant did allow DF to do things that he knew DF's parents would not permit.  This included taking DF and IW back to his house after the Mandurah trip and allowing them to stay up late on the occasion that the video was taken.  The language used by the applicant on this occasion showed that he was presenting himself as a friend and facilitator of transgressive behaviour rather than a responsible adult.

3. As regards the provision of alcohol to DF and IW, I note that the applicant's admissions are more limited than the evidence of DF and IW.  Whilst I have had no opportunity to see and hear DF and IW, I have carefully considered their evidence in regard to alcohol use and find it wholly convincing.  This was not a matter of critical significance at the 1993 trial, yet both of them gave evidence that they had been offered alcohol on more than one occasion.  They were both able to give details, including specific occasions and types of alcohol that they were offered.  In my view, the alternative account given by the applicant that the two boys had only had alcohol in his presence on one occasion when they had pressed him to allow them to share a can of beer was unconvincing.  That a mature man in a position of authority could be prevailed upon by two 12­year­old boys in the way described by the applicant is unlikely.  It is also unlikely that the applicant was unaware of the possibility that the boys had never had alcohol before and that their parents would not approve.  That he would make a mistake as to the propriety of allowing the boys to have alcohol in his home lacks credibility.  I take into account that DF's credibility at the trial on the issues regarding the alleged indecent acts was significantly undermined.  However, in regard to alcohol use, there was no apparent inconsistency and his evidence was supported by IW and by AS.  For those reasons, I conclude that the evidence of DF and IW is to be preferred and that the applicant permitted them to have access to alcohol when in his care as described by them.  This involved significant boundary violations, breach of his trusted position as a responsible adult with the care of young boys and also exposed those boys to the risk of physical harm. 

4. As regards the two incidents that the applicant referred to in his evidence, namely the tattoo incident and the Melbourne incident, there is no reason not to accept the applicant's evidence in regard to them.  Though DF could recall an occasion when the applicant drew a tattoo on his arm, he did not recall having an erection at that time.  That does not cause me to doubt the applicant's evidence.  This is because on the applicant's evidence DF said he was asleep at the time.  There may be very good reasons why DF, even if he was not asleep, might not recall or might wish to deny that he was aroused and there is no reason why the applicant would lie in this regard.  Although the applicant did not advance these incidents on the basis that there was any intentional acts of indecency, each of them arose in the context of the applicant deliberately placing himself in inappropriately close proximity to DF.  The act of drawing a tattoo on DF's arm whilst holding his hand and kneeling next to him involved a significant degree of intimacy.  The Melbourne incident involving the applicant saying that he woke to find his arm across DF's body whilst they were sleeping, is also concerning.  Whilst the applicant presented this as being an inadvertent act, it occurred in circumstances where he was sleeping in close proximity to DF.  The inappropriateness of doing so, particularly where it was clear to the applicant that it was contrary to the wishes of DF's mother, should have been readily apparent.  That the applicant, far from appreciating the inappropriateness of these two incidents, presented them in his defence suggests a lack of judgment and an inability to appreciate the necessity of respecting clear physical boundaries in regard to children.  This lack of judgment in a teacher, who would be expected to have a particularly acute awareness of such issues, is very concerning.  These were incidents that manifested a real risk that inappropriate touching of a sexual nature would occur.

5. As regards the events in 2007 and 2008, I again note that the applicant's account of the amount of alcohol that he allowed RC and other boys to drink at his shack is significantly different from the evidence of RC, CB and MS.  However, even on his own account, he allowed those boys to have alcohol when he was the only adult present.  That he would fail to appreciate the inappropriateness of this given the events of 1990 and the reprimand he received from the Ministry of Education for similar conduct,  is difficult to understand. 

6. Whilst the evidence in respect of whether there was an indecent act upon RC was inadequate, his statement that the applicant had 'made me drunk before when I've gone to his place' was credible and believable, particularly in the light of the statements of CB and MS.  CB also referred to occasions when he was underage and the applicant had given him bourbon to drink.  CB refers to the brand of bourbon and this detail lends credibility to his account.  Given that CB says this occurred when he was 15, it places this conduct as occurring in about 2004.

7. The statement of MS was in fact obtained and tendered at the first Tribunal hearing by the applicant.  It is therefore noteworthy that that statement also refers to MS being provided with bourbon by the applicant when he was 16.  This is not evidence that the applicant sought to disavow.

8. To the extent of the inconsistency between the applicant and the three boys (RC, CB and MS) as to the amount of alcohol they were either provided with or allowed to drink by the applicant, I prefer the evidence of the boys.  In my view, their evidence is consistent and compelling.  On the other hand, the rationalisations advanced by the applicant as to why he may have offered the boys alcohol on the limited occasions he admitted to (for example, that they had previously drunk alcohol elsewhere or that he was aware that their parents permitted them to drink alcohol) are not credible.  Again, that he would fail to appreciate the impropriety of him providing underage boys with alcohol, particularly given his past history and employment as a teacher, is difficult to accept.

9. The applicant's account of RC being so drunk on one occasion that he was sick and then placed on to the sofa bed next to him is also concerning.  On his own account, RC was significantly unwell and vulnerable.  No other person was present and yet the applicant considered that it was appropriate to rub RC's shoulders and back and to stay lying next to him when requested by RC to do so.  There is no suggestion that the applicant was asleep or unaware of his own movements in respect of this incident.  If it occurred as described by the applicant, it is hard to imagine that it would not have elicited the same response from a parent or responsible adult as that which RC's father displayed in Easter 2008.

10. As regards the Easter incident, the applicant does not deny that RC's father found him in bed with RC one morning.  However, he claims that he was unaware of RC's presence.  That is not consistent with RC's own statement which refers to RC and the applicant moving to the other bed once the drink had been spilled.  The very clear implication is that they were both awake at the time that this move occurred.  The evidence of RC in this regard seems to me to fit better with the fact that a drink had been spilled on the sofa bed.  It also fits better with the fact that RC's father found lit candles on both sides of the bed.  I also note that when confronted by RC's father, the applicant gave as reasons why he and RC were in bed together that the other bed was wet and that he was not aware of RC's presence.  There is possible tension between these two explanations.  The explanation that the bed was wet clearly suggests some contemporary awareness of RC moving to the applicant's bed and why it occurred.  In any event, it is difficult to understand how the applicant could have been unaware that there was a boy in close proximity to him in his double bed on an occasion where, on his own account he was not very drunk.  For these reasons, I prefer the evidence of RC and his father and conclude that the sleeping arrangements were not inadvertent or unknown to the applicant.  Even though there was no suggestion that this incident led to any indecent act, it was clearly inappropriate.  I add that even if I were minded to accept the evidence of the applicant in this regard, the fact that he allowed RC to stay at his shack in circumstances where, to his knowledge, they had both been drinking alcohol and to then go to bed leaving the boy unsupervised showed a serious lack of judgment and created the opportunity for what ultimately occurred.

11. The evidence of JK and his mother is significant because it reveals that the events of 1990 and 2007/2008 were not isolated incidents separated by many years.  The events involving JK occurred between one and two years earlier than those involving RC.  In the case of JK, I had the opportunity to observe him give his evidence.  I found him to be a wholly convincing witness.  His evidence was measured and clear, without any obvious attempts to exaggerate or embellish.  He made no complaint of any act of indecency, however the other matters he referred to are of significance.  The way in which the applicant befriended JK and then encouraged him to spend more time with the applicant, including at the applicant's house, showed marked similarities to what had occurred in respect of DF and IW.  This included making weights available and encouraging competition between JK and a similarly aged friend.  Again, video recording of the weight training was done whilst the boys were shirtless.  The applicant denied that money was offered for muscle gain, but I prefer JK's evidence in that regard.  I also prefer JK's evidence in respect of the measuring that took place and that it involved using a tape measure and touching of JK's body.  I also accept JK's evidence that the applicant offered him alcohol, although JK did not accept it.  I also accept that on one occasion the applicant took JK to the shack and they fell asleep in close proximity to each other whilst watching television.

12. As to the evidence of the dare to jump into the water naked, the evidence of JK and the applicant is markedly different.  On the applicant's account he issued no such challenge and the suggestion appears to be that JK has misunderstood a conversation between them.  I found the applicant's evidence in this regard unconvincing.  His account of the conversation contained the unlikely non­sequitur of JK saying it was a good thing he wasn't swimming naked when the police had stopped.  The applicants account was put to JK who rejected it.  Furthermore, the applicant's account was not consistent with the evidence of Mrs K.  For those reasons I accept JK's evidence as to the dare.  I also accept his evidence regarding the other dare to do a 'nude run'.  I have taken into account that this incident was not included in JK's statement, but I accept his evidence that he recalled it subsequently.  The applicant's conduct in respect of these dares is disturbing.  The dares involved encouragement of a young boy in the applicant's care to remove his clothes.  Furthermore, the dares were couched in terms that were designed to appeal to a sense of challenge or excitement at rule­breaking that a boy of that age might feel.

13. JK's evidence strongly supports an inference that the applicant has engaged in a pattern of behaviour over a lengthy period of time.  The similarity between the conduct that he engaged in with DF and IW in 1990 and with JK and his friend in 2006 is remarkable.  It is behaviour which can be characterised in the following terms:

    •the befriending of  pubescent boys with whom increasing time is spent to the exclusion of their family;

    •the encouragement of these boys to confide in him and to treat him as a person with whom they can disobey their parents' rules;

    •the creation of opportunities to be in close proximity and also sleep near these boys;

    •the creation of opportunities to observe the boys in a semi­naked state and to take photographs or video recordings of them in this state;

    •the offering of alcohol to these boys in the absence of other adults and without their parents' express permission; and

    •permitting the boys to drink alcohol whilst in his care, sometimes to excess (though JK and his friend in fact refused offers of alcohol).

14. As regards the evidence of Ms Cant, I accept that the proven behaviour of the applicant is highly suggestive of grooming.  In so describing the behaviour, I accept that there is a real possibility that it is sexually motivated and designed to provide opportunity for inappropriate intimacy with children.  The fact that there have been no proven indecent acts or sexual offences is a relevant matter, but does not necessarily lead to a conclusion that there is no appreciable risk of sexual harm to children with whom the applicant comes into contact.  Indeed, in my view, the evidence and the findings that I have made on that evidence support a reasonable suspicion that the applicant's behaviour can properly be described as grooming and indicates an unacceptable risk of sexual harm to children.  The likelihood of that risk is impossible to quantify, but it is at least an appreciable risk.  The nature of the risk is that some indecent act would occur which could have psychological consequences for the children concerned.

1. I note that the question is whether children would be exposed to an unacceptable risk of sexual or physical harm, not whether the applicant would commit a sexual offence.  In these circumstances, it is relevant to take into account that harm may occur inadvertently because a person misunderstands or fails to appreciate social norms and interpersonal boundaries.  Harm may occur to children in such circumstances even though the perpetrator did not intend to commit an offence.  This is a relevant consideration in respect of the applicant.  Even if his own accounts and explanations for his conduct were accepted they display a very marked lack of appreciation of the inappropriateness of that conduct and the risks of harm that are attendant on such conduct.

2. I also accept the evidence of Ms Cant that the applicant's pattern of behaviour in providing or allowing underage boys to consume alcohol when in his care is such as to expose them to the risk of physical harm.  That such behaviour has been engaged in with at least six boys (DF, IW, AS, RC, CB and MS) and over a lengthy period of time, suggests that there is a significant risk that the applicant would continue to behave in this way.  On the evidence of some of the witnesses, including RC, CB and MS, which I accept, the applicant has permitted young boys to drink to a state of intoxication.  The likely harmful effects of alcohol on a single occasion when used to excess, and in the longer term in any amount, on boys between the ages of 12 and 15, are unnecessary to detail.  Furthermore, the provision of alcohol to children is likely to lower their inhibitions and expose them to the risk of sexual harm or accidental physical harm.

Conclusion

1. Having regard to the factors referred to in s 12(8) of the WWC Act, I draw the following conclusions. The best interests of children (factor (a)) would be served by maintaining the negative notice. Whilst the evidence does not suggest that the applicant has put children at risk who are under his care in a work environment as a teacher, he has done so in other circumstances and to such an extent as to support the conclusion that he presents an unacceptable risk of sexual or physical harm to children generally. It is also noteworthy that in respect of a number of the children, he met them either because he was their teacher (DF and IW) or because he had worked at the same school as a parent (JK).

2. As regards factors (b), (c) and (d), it must be recognised that no offence or conduct upon which an offence could be based has been proven to any relevant standard.  However, I take into account that the allegations that have formed the substance of these proceedings have occurred in 1990 (DF and IW), 2006 to 2007 (JK) and 2007 to 2008 (RC, CB and MS).  Added to this the statement of CB referred to him being offered alcohol when he was 13 to 15, that is in about 2002 to 2004.  There is obviously a long period between 1990 and 2002 where there is no evidence of any impropriety on the part of the applicant.  Indeed, he stated in his statement to the first Tribunal hearing that during this period he did not have any children staying at his home.  There is no evidence to the contrary and I take that into account.  As to the age of the applicant, it is relevant to note that at all material times, he has been an adult significantly older than the children concerned.  Furthermore, his position as a teacher and as a person with property and equipment attractive to young boys has placed him in a position of significantly greater power and influence than the children concerned.  As I have noted, no offence has ever been proven against the applicant.  Nonetheless, the conduct in which he has engaged is relevant to child‑related work because it reveals a significant lack of judgment and a willingness to expose children to situations where they are at risk of physical or sexual harm.

3. As to factor (e), for the reasons that I have stated above, there is good reason to think that the applicant would engage in conduct similar to that that he has previously engaged in.  That is, conduct of the types described, and that are the subject of my findings.  Some of that conduct extends beyond the types of conduct that were the subject of the non­conviction charges and, to that extent, is relevant to other factors.  The conduct carries an inherent risk that indecent acts could occur in the future, notwithstanding that no such acts have been proven to have occurred in the past.  The effect of such conduct on children could be psychological damage of the types described by Ms Cant.  The continued engagement in such conduct, particularly after being warned of its danger when reprimanded in 1994, indicates that the applicant is strongly drawn to behave in this way and is likely to do so again.  In those circumstances, there is an unacceptable risk of sexual or physical harm to children.

4. I have taken into account information given by the applicant in relation to the application to set aside the negative notice and other information that he has subsequently provided for the purposes of the Tribunal hearings.  Evidence of good character and good conduct is relevant and has to be considered in the context of the evidence as a whole.  I have been mindful that the allegations are serious and the consequences of a negative notice are, and have been, very significant for the applicant.  That is a factor that I have taken into account in considering the evidence and what findings should be made:  Briginshaw v Briginshaw (1938) 60 CLR 336.

5. Much of the evidence in this matter properly falls within factor (g) as being 'anything else that the CEO reasonably considers relevant to the decision' because rather than relating directly to a non‑conviction charge, it relates to other conduct that supports a conclusion of an unacceptable risk to children.  It may well be that the cases where such an unacceptable risk will be found, notwithstanding that no conclusion as to the commission of any sexual offending can be made, will be rare.  However, in this case I am satisfied to a high level of satisfaction that the evidence here does establish such an unacceptable risk.

6. For those reasons, the application for review of the decision not to cancel the negative notice is refused and the decision of the CEO is affirmed.

Orders

1.The application for review of the decision not to cancel the negative notice is refused.

2.The decision of the Chief Executive Officer, Department for Child Protection, is affirmed.

I certify that this and the preceding [168] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE S HALL, SUPPLEMENTARY PRESIDENT