Hardingham and Chief Executive Officer, Department for Child Protection
[2010] WASAT 112
•4 AUGUST 2010
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 [2010] WASAT 112
MEMBER: MR M ALLEN (SENIOR MEMBER)
MS F CHILD (MEMBER)
HEARD: 10 AND 11 JUNE 2009
DELIVERED : 4 AUGUST 2010
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 refusal of application to have a negative notice issued to a school teacher cancelled Class 2 offences Nonconviction charges 17 years apart Whether satisfied in the particular circumstances of the case that an assessment notice should issue Whether unacceptable risk that applicant will cause sexual or physical harm to children in the course of carrying out child-related work Best interests of children paramount consideration
Legislation:
Administrative Appeals Tribunal Act 1975 (Cth), s 35
Compilation Act 1913 (WA), s 321(4)
Criminal Code Act Compilation Act 1913 (WA), s 321(4)
Criminal Procedure Act 2004 (WA), s 25
Education Act 1928 (WA) s 7C
Federal Court of Australia Act 1976 (Cth), s 50
Guardianship and Administration Act 1990 (WA), s 113, Sch 1 Pt B
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 61, s 62
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 12, s 17, s 17(3), s 19(8)
Result:
Respondent's decision to refuse to cancel negative notice affirmed and order suppressing publication of applicant's name revoked
Category: B
Representation:
Counsel:
Applicant: Mr R Lindsay
Respondent: Mr P Dixon (Representative)
Solicitors:
Applicant: iLaw
Respondent: 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
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171
Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289
Herald & Weekly Times Ltd v Williams [2003] FCAFC 217
Y v The University of Western Australia (No 2) [2006] FCA 466
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, who had been a school teacher for many years, applied for a review of a decision made by the respondent to refuse to cancel a negative notice issued to the applicant under the Working With Children (Criminal Record Checking) Act 2004 (WA). The negative notice had been issued as a result of the applicant having three 'nonconviction' charges.
The applicant had been convicted in 1993 of two charges of indecently dealing with a child 12 years of age in 1990, but those convictions were quashed on appeal, with no retrial being ordered. In 2008 the applicant had been charged with one count of indecently dealing with a child 14 years of age in 2007, but that charge was dismissed when the Crown elected not to proceed with it.
The Tribunal examined the circumstances surrounding the alleged offences and information and other material, including character references, submitted by the applicant. The Tribunal concluded that there was reason to conclude that there was a reasonable suspicion that the applicant may have indecently dealt with the children concerned. It concluded that, despite the character evidence in his favour and despite the adverse impact on him by the issue of a negative notice, the issue of a notice permitting the applicant to work with children would give rise to an unacceptable risk of harm to children. As the best interests of children must be the paramount consideration in cases such as the present one, the Tribunal decided that the respondent's decision to refuse to cancel the negative notice should be affirmed.
The Tribunal also considered whether the applicant's name should not be published, but decided that in the circumstances of the case any detriment to the applicant from having his name published did not outweigh the public interest in open proceedings and justice in the Tribunal.
Background and statutory framework
The applicant was born in 1961 and at the time of the hearing of the proceeding was 48 years of age. For many years he worked as a teacher in various capacities in this State.
On 4 April 2008 the applicant was charged with the offence of indecently dealing with a child aged 14 years contrary to s 321(4) of the Criminal Code Act Compilation Act 1913 (WA) (the 2008 charge).
On 7 April 2008 a representative of the Commissioner of Police, acting under s 17 of the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act), provided information to the respondent about the applicant and the offence with which he had been charged.
By letter dated 9 April 2008 an officer of the respondent gave notice to the applicant under s 17(3) of the WWC Act requiring the applicant to make an application for an assessment notice under the WWC Act. Section 17(3) of the WWC Act authorises the respondent to issue such a notice if satisfied that there are reasonable grounds for believing that a person carries out childrelated work and has been charged with, or convicted of, a Class 1 or Class 2 offence, as those terms are defined in the WWC Act. The 2008 charge was for a Class 2 offence for the purposes of the WWC Act.
The notice dated 9 April 2008 was sent to the applicant by post and it was not in dispute that he did not receive the notice until 29 May 2008.
In the meantime, because no application had been made by the applicant as required, on 24 April 2008 the respondent issued a negative notice under the WWC Act, the effect of which was that the applicant was required to stop carrying out any childrelated work, failing which he would commit an offence under the WWC Act. Such an offence carries penalties of up to five years' imprisonment and a $60,000 fine.
The applicant became aware of the issuing of the negative notice in early June 2008, and about the same time was advised by his employer, the Department of Education and Training, (Department) that the negative notice had been issued and his employment with that Department was terminated.
On 23 July 2008 the Crown informed the Perth Magistrates Court that the State had formed the view, in relation to the 2008 charge, that '… despite the existence of a prima facie case, there are no reasonable prospects of conviction'. The State offered no evidence in relation to the charge and the charge was dismissed for want of prosecution pursuant to s 25 of the Criminal Procedure Act 2004 (WA). Accordingly, for the purposes of the WWC Act, the charge against the applicant became a 'nonconviction charge' as that term is defined in s 4 of the WWC Act.
On 24 July 2008 the applicant lodged with the respondent an application seeking the cancellation of the negative notice that had been issued to him. Various submissions were made, and information provided, on the applicant's behalf.
Section 19(8) of the WWC Act relevantly provides that when an application is made for the cancellation of a negative notice, s 12(2) s (12)(8) are to apply to the application as if:
a)the application was an application for an assessment notice;
b)a reference in those provisions to issuing an assessment notice was a reference to granting the application; and
c)a reference in those provisions to issuing a negative notice was a reference to refusing the application.
Section 12 of the WWC Act relevantly provides that the respondent is to deal with applications for assessment notices by either issuing an assessment notice or by issuing a negative notice. In certain circumstances the respondent must issue an assessment notice (s 12(3)) or must issue a negative notice (s 12(7)). Neither of those provisions is relevant in this case. Section 12(4), s 12(5) and s 12(6) of the WWC Act deal with other situations, and provide as follows:
(4)If the CEO -
(a)is not aware of any offence of which the applicant has been convicted; and
(b)is aware that the applicant has a nonconviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(5)If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6)If the CEO -
(a)is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted;
(b)is aware of a Class 2 offence of which the applicant has been convicted; or
(c)is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
WWC Act, s 12(8), provides that if s 12(4), s 12(5) or s 12(6) apply, then the Chief Executive Officer (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 childrelated work;
(e)any information given by the applicant in, or in relation to, the application; and
(f)anything else that the CEO reasonably considers relevant to the decision.
When dealing with the applicant's cancellation application, the respondent established that, in addition to the 2008 nonconviction charge, the applicant also had two other nonconviction charges relating to two counts of indecent dealing with a child under 13 years that were alleged to have occurred in or about April 1990 (1990 charges). It was established that the applicant had been convicted of the two counts of indecent dealing after a trial in the District Court at Perth in November 1993 and had been sentenced to 12 months' imprisonment cumulative on each charge. However, in March 1994 the Court of Criminal Appeal had quashed the two convictions and ordered that there be no retrial of the applicant on the two charges. The 1990 charges were also in relation to Class 2 offences for the purposes of the WWC Act.
The respondent considered that the applicant's application should be dealt with under s 12(4) of the WWC Act because the applicant had not been convicted of any offences but the respondent was aware that the applicant had nonconviction charges arising out of the 1990 and 2008 charges.
After considering the applicant's application, on 19 December 2008 the respondent decided that the application should be refused and the negative notice should not be cancelled. Shortly thereafter, the applicant exercised his right to seek a review of that decision by this Tribunal. Such a review is by way of a hearing de novo; is not confined to matters that were before the original decisionmaker; and the purpose of the review is to produce the correct and preferable decision at the time of the Tribunal's decision upon the review: State Administrative Tribunal Act 2004 (WA) (SAT Act), s 27.
The issue for the Tribunal to determine in the proceeding was whether to affirm the respondent's decision not to cancel the negative notice or whether the decision under review should be set aside, the negative notice cancelled and an assessment notice issued to the applicant.
A further issue arose in the proceeding, namely whether an order should be made under s 62 of the SAT Act that the applicant's name should not be disclosed. At an early stage of the proceeding an order was made by President Justice Chaney that 'until further order the name of the applicant is not to be published'. For the reasons stated later in this statement of reasons, we have determined that that order should be revoked and there should be no order made under s 62 of the SAT Act preventing the disclosure of the applicant's name. We have, however, prepared these reasons for decision in a way that does not identify either of the alleged victims of the alleged indecent dealings (or any persons associated with them) because they were children at the time.
We note, with regret, the time that has elapsed from the hearing of this proceeding and the production of these written reasons and decision and we sincerely apologise to the parties for any inconvenience or difficulty that this delay has caused. We are satisfied that our decision and our reasons for it have not changed in the period since soon after the hearing of the application and the delivery of these reasons.
The test to be applied
It was not in dispute at the hearing that the applicant's application is to be determined by reference to s 12(4) of the WWC Act, considered in the light of the factors referred to in WWC Act s 12(8), the terms of which are set out at [15] and [16] above, and also in the light of s 3 of the WWC Act, which provides that in performing a function under the WWC Act the respondent, or the Tribunal, '… is to regard the best interests of children as the paramount consideration'.
When reviewing the WWC Act and the legislative scheme it represents, the Court of Appeal in Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28 (Grindrod), Buss JA (with whom Wheeler JA agreed) considered s 12(4) and observed at [69] and [70] that the respondent (and the Tribunal on review) is entitled and bound to take into account and give separate consideration to each of the criteria in paras (a) (f) of s 12(8); is not entitled to take into account any other factors; but each criterion is not of equal significance in the evaluative exercise because of the 'paramount consideration' referred to in s 3. If, and to the extent that, in any case a criterion in paras (b) (f) conflicts with the criterion in para (a), the relevant criterion in paras (b) (f) must yield. Whilst para (a) of s 12(8) will always be relevant and paramount, the other criteria in paras (b) (f) must always be taken into account - but the weight to be accorded to them will vary, depending on the facts and circumstances of the particular case.
The applicant filed in the Tribunal a summary of the approach taken by the Court of Appeal in Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 (Scott) when deciding applications under s 12(4) and the applicant agreed with that summary. We adopt the summary of the relevant principles emerging from Grindrod and Scott, and these are set out below:
•[t]he legislative purpose is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in childrelated employment who pose or may pose a potential threat, even though the civil rights of applicants issued with negative notices will be adversely affected, and in some cases, those applicants with nonconviction charges may suffer serious or irretrievable damage to their reputations or a significant diminution of their earning capacity (Grindrod at [76], Scott at [109]).
•[i]t is implicit in s 12(4), s12(5) and s 12(8), in the context of s 3, and the WWC Act as a whole, that the CEO (and the Tribunal on review of the CEO's decision) is not to issue a negative notice under s 12(4) or s 12(5) 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 s 12(8)(a) s12(8)(f) (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 childrelated employment (Grindrod at [81], Scott at [123] and [159]).
•[t]he critical question for the Tribunal under s 12(4) or s 12(5) is whether, on all the information and other material properly 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. The risk in question has to be unacceptable, not likely. (Grindrod at [85], Scott at [127]).
•[e]ven if the information and other material properly before the Tribunal does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw(1938) 60 CLR 336, 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 (Grindrod at [85]).
•[t]he factors which bear upon risk include (but are not limited to):
(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 nonconviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in childrelated employment; and
(d)the likelihood of any such future risk materialising (Grindrod at [86], Scott at [127]).
•[t]he analysis and evaluation of risk must be based on all the information and material properly before the Tribunal. It will be necessary for the Tribunal 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 (Grindrod at [87], Scott at [128]); and
•[t]he purpose of an assessment under s 12, where there is a nonconviction charge, is not to retry the applicant's case. Neither the respondent nor the Tribunal is a court exercising criminal jurisdiction. It is not the function of the respondent or the Tribunal to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the nonconviction charge in question. The relevant function involves an analysis and evaluation of risk and is not concerned with the proof of offences but with the prevention of potential future harm (Grindrod at [84]).
Background of applicant
The applicant qualified as a primary school teacher and began teaching in 1983, thereafter teaching at various primary schools in regional and metropolitan Western Australia. In 1990, when the 1990 charges were said to have occurred, he was teaching at a metropolitan primary school. In August 1992, when the 1990 charges were laid, the applicant was suspended without pay and was reinstated as a teacher only in 1994, after the convictions for the 1990 charges were quashed.
In 2008, when the 2008 charges were laid, the applicant was employed as a deputy principal at a country primary school and, as noted above, his employment was terminated by the Department soon after the laying of those charges.
The 1990 charges
Both of the two counts against the applicant specified that 'on a date unknown in or about April 1990' the applicant had unlawfully and indecently dealt with a person under the age of 13 years, being the same person in each charge who was 12 years of age at the time of the alleged offences. We refer in these reasons to that person as BC. Count 1 related to an offence alleged to have occurred at the applicant's home in metropolitan Perth and count 2 related to an offence alleged to have occurred at the applicant's cabin or caravan near a coastal country town.
The case against the applicant, as spelled out by the prosecutor in his opening at the trial, was that the two specific charges against the applicant were alleged to have occurred in April 1990 but that these were not isolated incidents and were the beginning of a course of conduct involving the applicant and BC.
The Department of Education inquiry
Following the quashing of his convictions in March 1994 the applicant sought reinstatement to a teaching position. A district superintendent was directed to complete an investigation under s 7C of the Education Act 1928 (WA), and for that purpose reviewed the evidence given at the trial and the judgments of the Court of Appeal. Subsequently, an officer of the Department provided a report dated 17 May 1994, which made a number of points about the applicant's position, including:
•It was considered that action could not be taken against the applicant on the charges for which he had not been convicted. Any action would require the Department to undertake an investigation and cover all the same factual circumstances as had been dealt with in the court.
•The applicant's evidence at the trial, unrelated to the conduct concerning the alleged offences, did breach the Department's expectations of a teacher such as providing alcohol to minors, swearing in front of students and allowing students to swear, were '… not desirable attributes of a teacher'. These actions are relatively trivial and in the past have resulted in a teacher being reprimanded and/or fined.
Accordingly, it was recommended that the applicant be officially reprimanded and fined $50, his pay should be reinstated for the period of his suspension and that he be placed for employment in a school.
The applicant was subsequently advised by the Director General of the Department that he was officially reprimanded, fined $200, his salary for the period of his suspension would be paid, and the period of the suspension would be considered as good service for the accrual of all entitlements.
The 2008 charge
The applicant was charged that between 1 March 2007 and 1 April 2008 he indecently dealt with a child aged 14 years at the time. In these reasons the child will be referred to as DE.
The charge was based principally upon a statement made to police in April 2008 by a young man who was then 18 years of age, referred to in these reasons as FG.
The offence was alleged to have occurred at the same country property owned by the applicant as was involved in the 1990 charge. The applicant owns a cabin on a parcel of land owned jointly with a number of other people. The applicant's cabin is located close to cabins owned by others and it was common for the various owners and their family members and guests to have meals at each other's cabin and, at times, to sleep in the cabins of others
FG's father was also an owner of a cabin at the property and FG had known the applicant for some years. The alleged victim, DE, and his father, HI, were friends of FG's family.
The alleged offence was said to have occurred in the early part of 2007. FG's statement was to the following effect:
•[i]t was a regular occurrence for the teenagers to spend considerable time at the applicant's cabin watching television or playing computer games and that, almost every time they were there, the applicant would offer them alcohol, usually bourbon, and they often became drunk.
•[o]n the particular occasion when the offence was alleged to have occurred, FG, DE and another young friend (referred to in these reasons as JK) were at the applicant's cabin and he offered the usual bourbon to all of them. In particular, DE began drinking a large quantity of bourbon with the applicant's encouragement - and before long, by about midnight, DE became quite drunk.
•DE began vomiting outside the cabin and the others tried to assist him. The applicant began to rub DE's back with his right hand but FG observed him put his left hand inside DE's tracksuit pants and began moving his left hand in and out on DE's groin area inside the pants. There was plenty of light coming from the cabin and FG could see clearly what was happening. The applicant did not appear overly drunk at the time.
•FG had not discussed the matter with anybody at the time but subsequently mentioned it to JK - who said he had not seen anything. FG had not told his father or DE's father because he regarded the applicant as a friend and also a friend of the fathers.
•[i]t was not until the Easter weekend of 2008, when he was told of another incident at the applicant's cabin, that FG told his father about the earlier event.
Although the applicant was not charged with any offence arising from the events that occurred at Easter 2008, it is pertinent to refer to those events at this point in these reasons because of their relationship to the 2008 charge.
On 1 April 2008 HI (DE's father) made a statement to police about events that occurred over the Easter weekend at the property. He said that on the Saturday he, DE, and a number of others had had dinner at the applicant's cabin and had watched a football match on television. When he left the cabin at about 9.30 pm, DE and a number of others were still at the applicant's cabin. Shortly after 6.30 am the next morning he had returned to the applicant's cabin and found the applicant and DE lying asleep in the same bed, both covered by a doona. On each side of the bed was a large candle, both alight, and on DE's side of the bed was a nearly empty 700 millilitre bottle of bourbon.
HI said that he dragged DE out of the bed and put him into HI's car and drove away. He had been very shocked at what he had seen and was not able to confront the applicant until the following day. When asked why he and DE had been together in the same bed, the applicant said, 'the other bed got wet so [DE] lay down on my bed and waited for it to dry, I put a fan on it'.
In early April 2008 DE made statements to the police. At that time he was 15 years of age. DE said that he had known the applicant for a few years and often DE and his friends and others from the property would go fishing, snorkelling and surfing with the applicant. Sometimes DE and his father would stay at the applicant's cabin, at other times DE would stay on his own with the applicant.
In relation to the Easter weekend of 2008, DE said that on the first night he had stayed at the applicant's cabin, sleeping in a separate bed. On the second night, he and the applicant had had 'a few drinks' together whilst everyone else was at a barbecue at another place. DE said that he was drinking beer and drank enough 'to get pissed but not blind'. The applicant gave him the beer.
DE said that he and the applicant were lying on a folding bed watching television and he knocked the applicant, causing him to spill his drink, which went onto the bed and made it wet. Accordingly, DE and the applicant moved to the applicant's bed and lay on it, and continued to watch TV. Both he and the applicant had their shirts off and they both fell asleep on the applicant's bed. DE could not remember if they were under blankets when he was woken up the next morning.
DE said that once during the night the power went out, he and the applicant could not be bothered going outside to turn it back on, so they lit candles and drank more alcohol. DE said that he had been drunk before around the applicant to the extent that he didn't remember what had happened to him, but this was not such an occasion. He said the applicant, 'has got me drunk before when I've gone to his place. Every now and then he gives me alcohol'. DE said that as far as he was aware, the applicant had never touched him in the wrong way and he had never woken up or thought something had been amiss.
DE also made a statement to police regarding the earlier 2007 incident, the subject of the 2008 charge. He said that he had no memory of the incident.
The applicant was interviewed by police on 2 April 2008. In relation to the events of the Easter Saturday 2008 the main points of the applicant's statement were that:
•[h]e had had a group of people at his cabin until 'latish' in the evening. DE had been asleep in the cabin for some time and the applicant was outside the cabin with another person having a few drinks until that person went off. The applicant went inside the cabin and DE was sitting up watching television on the folding bed. This was around 11 pm or midnight.
•[t]he applicant sat on the sofa bed with DE for some time perhaps an hour or two and the applicant had a number of drinks and spilt one of them on the bed. DE had insisted that the bed was alright to sleep in so the applicant had gone to his own bed. He recalled DE trying to wake him up twice during the night, once to tell him that the power had gone out and the applicant remembered going outside and switching that back on. On the other occasion he had told DE not to wake him up until all the others were ready to go to the beach.
•[h]is next recollection was waking up at about 9.30 am and all the others had gone. He went back to sleep until about 11 am. It was not until later in the day that he spoke to DE, who told him that he (that is DC) had been in his bed when HI had woken DE that morning.
•[t]he applicant spilt his drink when he rested the drink on the mattress next to his leg while he lit a cigarette and the drink overbalanced. It was not DE who had spilt the drink.
•[t]he applicant had not lit the candles so he assumed that DE had found them in a cupboard during the night, set them up, and lit them.
•[t]he applicant said he did not think that he was so intoxicated that he would not remember what had happened during the night.
•[t]he applicant agreed that the cabin would have been extremely dark at night if the power was off. The applicant said there was a torch in the cabin. He initially said he did not know where it was kept but then said that there were two torches and that DE would know where they were. He agreed that it was probable that DE would not be able to navigate around his cabin in the blackness if he was significantly intoxicated.
•[t]he applicant said that when he got up to turn the power back on, DE was still sleeping on the folding bed.
•[t]he applicant was asked whether the electric fan in the cabin had been used that night. He said that he did not know unless DE had turned it on. He did not think that he had turned it on to dry out the bedding, although DE may have done so.
The applicant said there had not been other occasions when he had had young people staying at his cabin drinking alcohol other than one occasion about a year previously, when DE, FG and JK had been at the cabin one night. They had been drinking alcohol and the applicant had been quite drunk himself. He had gone to sleep on the sofa bed and slept right through the night. He did not really recall how drunk the boys were but he found out the next day that they had been outside the cabin drinking and that DE had been pretty drunk and vomiting. The applicant said that he had not got up to go outside to help DE and he only remembered DE being brought back into the cabin and laying down on the sofa bed next to the applicant. He said that he tried to get up off that bed but DE asked him to stay and look after him, so he stayed on the bed next to DE for a time but then got up and went to his own bed.
The applicant was then asked whether he had gone outside and sat next to DE to comfort him. He said he might have done but he had been intoxicated and that might explain why he could not remember. He said he could not say that it did not happen, he may have gone outside and comforted DE. He did not really remember anything about that incident. The applicant said he may have gone outside, patted DE on the back and may have put his arm around him. He really did not know. He said it was absolute nonsense that he would have put his hand down the front of DE's pants.
Circumstances of the 1990 charges
In mid1992, when he was 14 years old, the complainant, BC, made a statement to police concerning events in 1990, the main points of which were:
•[h]e and other school friends had started to visit the applicant's home regularly after school initially to work with a computer, but subsequently swimming in the applicant's pool and lifting weights. He described the applicant taking videos of him and his friends undertaking these activities and giving them various amounts of money for lifting weights and competing with each other on sun tanning.
•BC's statement described events that were said to have occurred on a Tuesday night when he had slept on a couch at the applicant's house after watching television. He said he awoke to find the applicant masturbating his penis. He said the masturbating stopped when he rolled over, but he had already ejaculated because there were stains on his underpants. The next day, he had gone to the applicant's cabin (at the time a caravan and annexe) with the applicant and another boy (referred to in these reasons as LM), where they had stayed for about three days. On the first night there BC and LM were supplied with alcohol by the applicant, and BC said he fell asleep because he was drunk. When he woke up later in the night he was in his sleeping bag, but his pants were around his ankles and he saw stains from ejaculating at the bottom of his sleeping bag.
•[t]he applicant masturbated him again the second night he was at the cabin. He had fallen asleep in the caravan, but he had not been drinking that night. He woke up to find the applicant masturbating him, but he did not ejaculate and the applicant stopped it when BC got up.
•[t]hey had returned to Perth the next day and he did not tell anybody about what had happened because he had tried to block out the memory. Nevertheless, he continued to go to the applicant's house because the applicant provided him with money. During 1990 when he continued to go to the applicant's house, he had been masturbated on a number of occasions when he was asleep.
•BC also described how the applicant had accompanied BC and his family to Melbourne at Christmas 1990 and had done similar things to him there.
At the trial, BC's evidence-in-chief differed from that of his statement to police. The following summary is based upon the summary set out by Rowland J in the Full Court of the Court of Criminal Appeal. In his evidence in chief, BC said that the applicant masturbated him once at the applicant's home in Perth the day before they went to the cabin. Another boy, (referred to as NO), also spent the night at the applicant's home. BC said the next offence took place the following night at the cabin. He said NO was present that night. The next occasion, not the subject of any charge, was at the cabin when LM was present. He said it also occurred on another occasion in Perth and that he had also been touched on the thigh once in Melbourne. BC did not say in the evidence in chief that something had happened on the first night they were at the cabin (not the subject of any charge) and that he had been masturbated on the second night they were at the cabin. His evidence was that they spent one night only at the cabin on this occasion.
BC conceded in crossexamination that his statement to police in 1992 that he had been masturbated on about six occasions and another four or five times when he was too drunk to wake up properly was not accurate.
In examination in chief, BC said that the first occasion he was masturbated by the applicant was at the end of the first term in April 1990, that it was a Friday night, that the event occurred at the applicant's house after watching pornographic videos, and that they went to the cabin the following day and spent Saturday night there, where he was again masturbated, and they returned on Sunday. On each occasion, he said he was drunk. He agreed in crossexamination that in his statement to police he said that the first occasion was at Perth on a Tuesday night, that school broke up on the Wednesday, and he conceded that he did not tell police that he had been drinking or, as he said in evidence, that NO was present rather than LM. He also gave a different version of the events which occurred after he awoke to find the applicant masturbating him, and conceded he had not told police about watching pornographic movies.
BC conceded also that he told the police that these two events occurred just at the start of the April school holidays, and he told the police that another boy, LM, was present, but he did not tell them about watching pornographic movies.
LM was called to give evidence by the applicant at the trial and said that he recalled an incident where he and BC had spent a Friday night at the applicant's home and the three of them had driven down to the cabin the next day and stayed there for three days but his evidence was that this had occurred at the end of the year.
NO made a statement to police in 1992 and described a similar sequence of events to that of BC concerning spending time at the applicant's house during the year and staying overnight on about 20 occasions, when the applicant would give him and the other boys cans of beer, glasses of peach cooler and, on one occasion, two glasses of vodka and that, as a result, he would become affected by alcohol. He remembered sleeping at the applicant's house with BC on one occasion, when the applicant had given them alcoholic punch to drink whilst they watched a movie. He said both he and BC became 'tipsy' by the time they went to bed. He also said that the applicant had paid the boys money for lifting weights and taking their shirts off, and that, whilst lifting weights, the applicant had filmed them with a video camera and that the applicant had given him money on occasions, usually $10 or $15.
At the trial, NO said that in 1990 BC had been the applicant's 'pet' at school, and that he (NO) had started to visit the applicant's house with other boys from halfway through year 7. He said that, from about halfway through the year, he and other boys stayed at the applicant's house overnight almost every weekend and that he and other boys were given money for lifting weights, tanning, cleaning the applicant's pool and going to the shops, and that it was as much as $30 or $40 a week between all the boys.
NO said that BC had stopped going to the applicant's house in the middle of 1990 but he (NO) continued to go there in the following year. They were often provided with alcohol to drink, including beer and spirits, and although they did not drink a lot, they often became a bit drunk.
In cross-examination, NO said he went to the cabin once with BC but he could not remember when it was, whether it was during school holidays or on a weekend.
In his statement to police and at his trial, the applicant said that he had invited BC and another boy to come to his home after school to work with a computer because the applicant had the intention of developing a paid business giving computer instructions. However, other boys also came to the house and the boys became more interested in swimming in the pool and lifting weights than working on the computer. Eventually, the computer sessions were abandoned and the boys just entertained themselves in the pool and lifting weights. He agreed that he had promoted a competition between BC and other boys regarding how much weight they could lift and also regarding who could get the darkest suntan. He said that he occasionally gave the boys small amounts of money to go to the nearby shop and buy a drink or an ice-cream, but he denied giving any large amounts of money.
The applicant said that NO had never been to the cabin with BC. The applicant denied that he had ever indecently touched BC or any other boy.
The jury retired for approximately four hours and convicted the applicant on both counts. On appeal, two of the three members of the Court considered that the conviction on both count 1 and count 2 should be quashed, but Anderson J considered that the conviction on count 1 could stand. Rowland J considered that the trial judge had not adequately directed the jury regarding the serious discrepancies between BC's sworn evidence and his earlier statement, did not identify to the jury the discrepancies or explain to the jury members how they should treat the evidence of the other occasions when improper conduct was alleged but which were not the subject of charges. All of their Honours placed emphasis on the fact that, as the Crown's case specifically identified offences alleged to have occurred in April and that they were the beginning of a course of conduct by the applicant towards BC, it was not permissible to adduce evidence of what might have happened later in the year (when LM was said to be at the cabin with BC) in order to prove count 2. Evidence of similar acts some months later could not have probative value in respect of earlier acts.
Anderson J thought that the prosecution case changed during the course of the trial, with the case on count 2 relating to events later in the year rather than in April. In the end, the jury had been invited to consider a case that, in relation to count 2, was different from the one that the Crown had opened. The incident involved in count 2 had been identified by the prosecution as occurring on the first trip to the cabin and which was said to be the beginning of a relationship. In its opening, the Crown had made it clear that evidence of other sexual conduct would be led, the act charged in count 2 was a separate distinct act occurring under particular circumstances at a particular stage in the relationship between the applicant and BC on a particular occasion. It was not to the point that BC gave evidence of other events very similar to the events described by the Crown in its opening. The Crown had elected to identify the specific occasions, and in the end, the jury was invited to convict on evidence relating to a different occasion, not the occasion identified in count 2. Accordingly, Anderson J considered that the trial as to count 2 miscarried. However, his Honour considered that it could not be said that count 1 had miscarried; the evidence relating to it was discrete and the verdict indicated that the jury accepted BC's evidence about that count to the required degree of satisfaction. The flaw in the conviction on count 2 did not affect the safety of the verdict on count 1. All of the evidence of sexual impropriety by the applicant with BC that was led at trial was admissible in proof of count 1.
The Court concluded that there should be no retrial of the charges. Franklin J commented that there was no evidence to support count 2, and the evidence to support count 1 was confused and contradictory, being the evidence of BC alone and not corroborated in any material particular. There was no evidence of recent complaint and BC's evidence was at odds in material ways with the statement given to police, agreeing that allegations in the police statement of similar acts by the applicant were untrue.
The evidence at the hearing
The applicant produced a statement from JK made in April 2009 (Exhibit A1), in which JK said that he knew DE and FG and the applicant, and had been to FG's family shack near that of the applicant's on many occasions - where he and other boys were allowed to drink alcohol by the adults present. He recalled an incident in early 2007 when he, DE and FG had gone to the applicant's shack one night where they drank bourbon supplied by the applicant. DE had drunk a lot of bourbon and became sick as a result, going out on the verandah to vomit. JK said that he was sitting inside but could see the applicant and DE on the verandah. He could see DE bending and straightening his upper body as he retched or vomited, and that the applicant had one arm on DE's shoulder or upper back. He could not recall seeing the applicant move his arm. JK said he got a glass of water for DE and helped FG assist DE to walk to the couch where he was to sleep. He and FG left shortly thereafter.
JK said that at the time he was 16, he did not usually drink much, but he was quite drunk on that occasion from drinking beer before he went to the applicant's shack and from drinking the bourbon the applicant provided to them.
The next morning, FG asked him whether he had seen the applicant touching DE. FG had not said where the touching had occurred, but JK assumed he meant touching DE's penis. About a year later, police had spoken to JK about that night and he had told police that he had not seen anything other than the applicant consoling DE with his arm across DE's back.
Witness statements were submitted by the applicant from Stephen Offer (Exhibit A3), Tracey Shaw (Exhibit A4) and Alan Beard (Exhibit A5). All three witnesses also gave oral evidence.
Mr Offer said he had known the applicant for 25 years as a friend, although they had not worked together since 1986. He was aware of the applicant's charges in 1993 and the applicant had informed him of the nature of the 2008 charges. Mr Offer said that he had faith in the innocence of the applicant of all these charges and that it would be completely out of character for the applicant to commit an offence against a child. Having observed the applicant working with children in a variety of settings, he could see no reason for concern about the applicant continuing to have contact with children during the course of his employment. Mr Offer said in cross-examination that he had no knowledge of the applicant providing alcohol to adolescents or encouraging or permitting them to swear. He said that if those allegations were true, then it might affect his opinion of the applicant.
Ms Shaw said that she had known the applicant for about six years when he had been the deputy principal at a school at which three of her children attended. She had also met him in a social context and, on occasions, the applicant had taken her children and their friends to the beach. She had become aware of the 1990 charges and had discussed them with the applicant in 2006. Ms Shaw said that the applicant had provided positive guidance to her family and was an indispensable part of her family.
Ms Shaw had become aware of the 2008 charge as a result of a police officer contacting her and she had discussed this with the applicant at the time. She found the allegation impossible to believe, knowing the good relationship that had existed between the applicant and the boys concerned and their parents, and the amount of time that had passed from the date of the alleged offence. She considered that it would be completely out of character for the applicant to commit an offence against a child, and she had observed a high level of respect shown by the applicant towards all children and by all children towards him. She could see no reason for concern about the applicant continuing to have contact with children in the course of his work. She certainly had no concerns about his contact with her children.
Mr Beard said that he had known the applicant since 1997 in a professional capacity and considered him to be a quality teacher, being extremely diligent, professional and competent, as well as being caring and compassionate. He had become aware of the charges against the applicant in early 2008 from the applicant and considered that conduct of the nature alleged as completely inconsistent with his knowledge of the applicant.
Mr Beard told the Tribunal that teachers needed to be aware of placing themselves in compromising situations, and principals of schools should always be on the lookout for inappropriate relationships between teachers and students. In relation to teachers providing alcohol to students, Mr Beard said that, if this occurred in school time, he would consider it to be a very serious matter. If it occurred outside school hours, then he would need to look at the circumstances of what had occurred.
The applicant provided a lengthy witness statement (Exhibit A2) detailing his qualifications and considerable experience as a teacher and summarising his recollections of the various charges against him. He said that he accepted the reprimand and fine imposed by the Department in relation to the 1990 charges, viewing the penalty imposed as minor and trivial compared with what he had been through in the District Court trial, appeal and time in prison, as well as wanting to move on with his life and career.
The applicant said that, following the 1990 charges, he had rarely had young people stay at his house, other than family friends and relatives. Whenever any young person had stayed at his house or his cabin, they had done so with their parents' permission.
In relation to the events that occurred in April 2007, the applicant said that DE and FG were at the cabins with their fathers, as well as JK. DE and FG were drinking with the permission of their fathers.
The applicant said that at some stage during the late evening he had gone to bed at his cabin in a quite intoxicated state. DE, FG and JK were also sleeping in the cabin. Some of the young people had made alcoholic drinks, but he did not encourage or coerce any of them to drink alcohol. He said that he fell asleep and slept for the rest of the night except for two occasions when FG and JK woke him up. On the first occasion, he was told that DE was being sick. He did not know what time it was because he was still quite inebriated, but he remembered going outside to make sure DE was alright. He recalled sitting next to DE, putting one hand on his back and consoling him, and suggesting he have a drink of water. He then returned to his bed and fell asleep. At about 5 am, FG and JK brought DE into the cabin, DE appearing quite drunk. DE lay on the sofa on which the applicant was sleeping. DE lay on the sofa with him and he stayed there until DE was asleep and then he got up and went to his own bed in the bedroom.
In relation to the events that occurred at Easter 2008, the applicant said in his statement that he and DE had sat on the sofa bed drinking bourbon. The applicant said he spilt his drink and offered to swap beds with DE for the night but DE declined. The applicant said he went to his bed in his bedroom and fell asleep immediately. He said he woke up occasionally for brief periods and on all occasions DE was in the main living area (that is, not in the bedroom), and on one occasion DE woke him to say that the power had gone out and he had got up to go to the meter box to switch the power back on and he then went back to bed. He awoke at about 9.30 am and DE was gone and there were two candles burning on the bedside table.
The applicant's oral evidence at the hearing, in examination in chief and crossexamination, did not differ in material ways from his witness statement. We took the opportunity to ask the applicant whether, at the time of the 1990 charges, he thought that he needed to avoid placing himself in a position where he might be compromised in his dealings with a child or avoiding situations where he might touch a student. He said that although concerns about such matters were less prevalent at that time, it certainly was the case that teachers were aware of, and conscious of, the need to be careful. However, he said that it had not occurred to him that having children at his house outside school hours might be seen as not quite right or exposing him to accusations, and he did not expect to be accused of anything improper. Although he regretted providing alcohol to children, he did not think there was anything inappropriate about his associations with children. He said that the position at his cabin in 2007 was quite different as young people were always in his cabin with the knowledge and approval of their parents.
Mr Paul O'Connor, the Executive Director, Professional Standards and Conduct in the Department, gave evidence for the respondent by way of a witness statement (Exhibit R1) and oral evidence at the hearing. He chairs the Department's Suitability and Screening Committees and he is a member of the College of Teaching Screening Committee, but he said his primary duty is to advise the Director General of the Department in relation to disciplinary matters concerning employees of the Department. He was aware of the general nature of the 2008 charges against the applicant and had reviewed the Department's files relating to the 1990 charges, including the judgments of the Court of Appeal.
Mr O'Connor said that he had, in particular, considered the approach of the Department to the 1990 charges as reflected in the document referred to at [30] above. He thought that document reflected a philosophy and approach to child-protection issues that is vastly different to that currently prevailing within the Department, blurred the distinction between criminal and disciplinary processes, and reflected a reluctance to pursue a disciplinary investigation into factual circumstances that were the basis of criminal charges. It would have been open to the Department at the time to investigate the allegations by focussing on whether the applicant had committed an act of misconduct, relying on trial transcripts and other documents that contained evidence about the incidents. Where allegations were disputed, the Department would need to form a view, on the balance of probabilities, based on all available evidence, as to which version of events to prefer. Currently, the Department recognises the need to undertake such a comprehensive evaluation of the evidence.
Mr O'Connor noted that the document of 17 May 1994 described the provision of alcohol to minors, swearing in front of minors, and allowing minors to swear as being relatively trivial. He said that at the present time such conduct would constitute serious misconduct, justifying a significant sanction and a reprimand and a fine would be inappropriate.
Mr O'Connor advised the Tribunal that to be employed as a teacher in this State, a person must first be registered by the College of Teaching, one of the pre-requisites for which is suitability having regard to qualifications and experience and character issues. However, registration by the College does not give a person a right to be employed by the Department as the Department makes its own assessment of whether or not to employ a person.
Considerations prescribed by s 12(8) of the WWC Act
In light of all the information and evidence set out above, it is necessary to have regard to the criteria specified in s 12(8) of the WWC Act. In accordance with the principles that have emerged from the authorities referred to above, the paramount consideration is that set out in s 12(8)(a) of the WWC Act, namely, the best interests of children. If there is an unacceptable risk that the applicant might cause sexual or physical harm to children in the course of carrying out any childrelated employment that he might undertake, then the best interests of children require that a negative notice be issued. We propose to look at each of the other considerations in s 12(8) of the WWC Act before returning to consider the best interests of children.
When the offences were or are alleged to have been committed s 12(8)(b)
The conduct of the applicant, alleged to have constituted the 1990 charge, is said to have occurred in April 1990 but to have been part of a course of conduct over that year. The alleged conduct relating to the 2008 charge is alleged to have occurred in about April 2007 and there is nothing before the Tribunal to indicate that the applicant was charged with any other offence or has come under suspicion in any way in the period of 17 years between the two alleged offences.
The 1990 charges relate to conduct quite some time ago, whereas the 2008 charge relates to recent conduct. One alleged offence a long time ago, or a long period of time between two alleged offences, might be a factor suggesting a reduced risk of repetition if it could be said that the alleged offences were one or two isolated incidents. In the present case there is considerable similarity between the alleged offences, an issue which we discuss further below. Those similarities, if the offending or similar conduct was thought to have occurred, might be suggestive of a pattern of abuse, or at least a failure to learn from the first experience.
The applicant's age when the offences are alleged to have occurred s 12(8)(c)
The applicant turned 29 years of age at about the time of the alleged 1990 offence and turned 46 years of age at about the time of the alleged 2007 offence. At the time of the events relating to the 1990 offence, BC was 12 years of age, and at the time of the alleged 2007 offence, DE was 14 years of age.
There was, therefore, a significant age difference between the applicant and the alleged victims of the offences. At the time of the first alleged offence, the applicant had been a teacher for about seven years. At the time of the alleged 2008 charge, he was a teacher of many years experience. In relation to the 1990 charges, the applicant was the teacher of BC and therefore in a position of great trust. In relation to the 2008 charge, DE was well known to the applicant by virtue of the applicant's friendship with DE's family. We do not consider there is anything in the material before us that would mitigate the seriousness of the circumstances of either of the alleged offences.
Nature of the alleged offences and relevance to child-related work – s 12(8)(d)
The offences of indecently dealing with a child under the age of 13 and a child under the age of 16 are, we consider, highly relevant to childrelated work. This is particularly so where the applicant is the teacher of the alleged first victim and a family friend of the alleged second victim. In relation to the 2008 charge, it is also relevant, we believe, that the applicant was known to be a senior teacher by the alleged victim's family.
We agree with the respondent's contention that there are a number of similarities in the type of conduct alleged to have constituted the two offences, including an involvement by the applicant with young boys or adolescents, permitting them to sleep at his house or cabin, providing alcohol to them to the extent that they were intoxicated, and placing his hand in the pants of the alleged victim and masturbating them whilst they were intoxicated.
There is nothing in the material before us that would indicate or suggest that the alleged victims were in any way connected, or that FG who made the allegations in relation to the 2008 charge was aware of the earlier charges against the applicant. There is no reason to believe that any of the persons concerned in the second charge had any knowledge of the earlier ones and therefore would be in a position to in some way collude with others or make allegations of a similar type of offending because of knowledge of the allegations made in the first alleged offences.
Information given by the applicant and anything else considered relevant s 12(8)(e) and s 12(8)(f)
We regard all of the other information set out above in these reasons relating to the applicant, the circumstances of the alleged offences and the various statements made by persons involved, as well as information regarding the consideration of the applicant's position by the Department to be relevant to our consideration of the ultimate question to be determined whether there exists an unacceptable risk to children if the applicant were to be granted an assessment notice under the WWC Act.
Best interests of children is the paramount consideration – s 3 and s 12(8)(a)
Some of the factors that bear upon our consideration of the issue of risk and how we are to go about our assessment of it are set out above. In particular, we note that we must rely partly on facts and partly on reasonable suspicions, bearing in mind the apparent probative value of them. We must not attempt to adjudicate upon whether the applicant is, in fact or law, guilty or not guilty of the non-conviction charges. We must be concerned with the prevention of potential future harm.
In deciding to take the 1990 charge to trial, the Director of Public Prosecutions must have considered that a prima facie case existed and that there was a reasonable prospect of conviction. However, it soon became apparent that there were a number of weaknesses in the prosecution case relating to the timing of particular events, and important details of what occurred at the times of the alleged offences. The trial occurred in November 1993, that is approximately three and a half years after the alleged offences were said to have occurred, so it might be understandable that memories of details might have diminished in that time. In addition, BC made no complaint about the offences until 1992, although he said that he had written to the applicant in 1991 about the offences but the applicant had denied everything at that time.
Although, as noted, there were considerable deficiencies in the prosecution case, the main ground for setting aside the convictions was the fact that the direction of the trial judge did not adequately instruct the jury how it should deal with similar fact evidence and the fact that the charge in count 2, as left to the jury, turned out to be different to the one that had been identified at the opening of the trial. What was clear was that BC had spent a number of nights at the applicant's house in Perth and had visited the cabin at least three times although the weight of the evidence suggested that those visits must have been in the second half of the year, rather than commencing in April. We believe that it is also relevant to note that Anderson J considered that the trial had not miscarried in relation to count 1 and, to that extent, it can be said that the jury should be taken to have accepted at least some of the evidence given by BC and other witnesses.
What was not in dispute at the time or before us was that the applicant had in 1990 encouraged children to spend long periods of time at his house, that he provided them with money on a regular basis (although there was dispute as to how much and for what reasons), provided them with some alcohol (although there was dispute about how much), and permitted them to stay overnight at his house or cabin in circumstances where, we consider, there is evidence of the children being affected by alcohol to some degree. In addition, there is evidence that the applicant encouraged the children to swear and, on one occasion, to tell their parents that they had been at another place when they had, in fact, been at the applicant's house until well after midnight.
We are in no doubt that the applicant, during 1990, developed a relationship with BC that was beyond what might be expected between a teacher and pupil. Despite the weaknesses that emerged in relation to the details and timing of the alleged 1990 offences, we are left with a reasonable suspicion that, at some time during the second half of 1990, the applicant dealt with BC indecently on one or more occasions, generally in the way described by BC.
When we turn to the circumstances surrounding the 2008 charge, it is apparent that the prosecution decided that there was no reasonable prospect of conviction had the matter gone to trial. There were obvious weaknesses in the case against the applicant, including the failure of the alleged victim to complain, the fact that the principal witness to the alleged offence was, to some extent, affected by alcohol, and that the other possible witness did not see anything untoward occur.
However, we consider that we are entitled to hold a reasonable suspicion that the applicant did deal indecently with DE. In arriving at that conclusion, we have been influenced by the following matters:
a)According to JK, FG asked JK on the morning after the alleged 2007 offence whether he had seen the offence occur, suggesting that FG at least believed that he had seen the event that he later described.
b)We have considerable reservations about the applicant's denials that nothing happened on the night in 2007. The applicant said consistently that he was quite affected by alcohol on both occasions in 2007 and 2008 and, at least initially, professed to have a poor recollection of what he did or did not do. It was only when he was asked specifically that he said he thought that he had probably gone out to comfort DE but later accepted that he had done so. Nevertheless, he was able to say with absolute certainty that he had not touched DE inappropriately on the night in 2007.
c)In relation to the events that occurred at Easter 2008 (which were not the subject of any charge), we found the applicant's explanation for what happened that night and how he and DE ended up in bed together quite unconvincing. By the applicant's account, it must have been DE who arranged candles beside the bed, despite being significantly intoxicated, in a cabin where it would have been difficult to find things in the dark. There were other inconsistencies in the applicant's version of events. For example, the applicant told HI that he had turned on the fan to dry the bedding, but later told police he had not done so. Also, DE told police that when the power failed during the night the applicant had not got up to switch it back on and so they lit candles. However, the applicant told police he had got up to turn on the power and that he had not lit the candles. Given that there was no dispute that candles were burning in the morning it seems to us that DE's version is to be preferred.
We remind ourselves that it is not our function to attempt to determine guilt or innocence of the applicant of the charges against him. However, we believe that the above factors justify us in holding a reasonable suspicion that the applicant has, on two occasions at least (once in 1990 and once in 2007), indecently dealt with a child or adolescent. That conclusion must weigh very heavily against the applicant in our assessment of the potential risk to children if the applicant were to engage in child-related work. Relevant to our assessment to that risk are the other factors of similarity between the two alleged offences, including allowing children or adolescents to sleep in his cabin or home, providing the young people with alcohol and, we reasonably suspect, encouraging them to drink.
We have not overlooked that in relation to the 2007 and 2008 events at the cabin, it appears that the youths were not prevented from drinking alcohol by their parents and that they slept at the applicant's cabin with parental approval due to the somewhat unusual set up of the cabins at that location. We have also not overlooked that the applicant has a long history as a successful school teacher and is thought highly of by colleagues and friends, notwithstanding their knowledge of the various charges that he has faced. We are also conscious of the fact that the issuing of a negative notice will have a significantly detrimental effect on the applicant's ability to work in his chosen profession in future, although it seems that decisions to be made by others would equally determine that. In particular we note the evidence of Mr O'Connor that the ability of the applicant to work as a teacher would require not only registration by the College of Teachers but also, as an entirely separate matter, acceptance by the Department that the applicant is a suitable person to be employed as a teacher.
We accept that the applicant may suffer some hardship, prejudice and embarrassment in his personal or professional life if he is not able to continue to work as a teacher, but those factors that are personal to the applicant cannot be relied on to outweigh our conclusions regarding the best interests of children.
The object of the WWC Act is the protection of children. As has been observed in other matters before the Tribunal involving this legislation, the capacity to issue a negative notice where no criminal convictions exist leaves open the possibility that a person may be prevented from working with children even though they have not been convicted of any offence. It has been recognised that the civil rights of persons issued with negative notices will be adversely affected and that persons with nonconviction charges may suffer serious damage to repute and earning capacity.
On review in this Tribunal, a person with a non-conviction charge and no other convictions is entitled to an assessment notice unless the Tribunal is satisfied from all the material that in the particular circumstances of the case a negative notice should be issued. We have concluded in this case that, although we have identified some factors that point towards the applicant being granted an assessment notice, there is an unacceptable risk of sexual harm to children if that were to occur. The factors in s 12(8) of the WWC Act are not of equal significance in the evaluative exercise that we have had to undertake. This is a case, we consider, where the arguably positive factors that have been identified relating to the applicant's good employment history as a teacher, the high regard in which he is held by friends and colleagues, and the reasons for the failure of the charges laid against him, must yield to the paramount consideration prescribed by s 12(8)(a) and s 3 of the WWC Act. Our conclusion is that, in the particular circumstances of this case, there would be an unacceptable risk in the future to children if the applicant were to be granted an assessment notice.
Should the applicant's name be suppressed?
As noted at [21] above, early in these proceedings, Chaney J made an order under s 62 of the SAT Act that the applicant's name should not be disclosed under further order of the Tribunal. That section empowers the Tribunal to make such an order if any of the circumstances set out in SAT Act s 61(4) apply. Relevantly, the provisions of s 61(4) that may be applicable in the present case are:
…
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or
(h)for any other reason in the interests of justice.
At the hearing, counsel for the applicant submitted that that order should be continued at least if the Tribunal found in favour of the applicant and ordered that an assessment notice should be issued to him. The applicant did not seek to have the identities of any other person referred to in the proceeding suppressed.
It was submitted that continued suppression was justified because, if the applicant were granted an assessment notice, public knowledge of his identity and history may prejudice his ability to obtain work as a teacher in the future because knowledge of his history would inevitably become known at a school and that knowledge of the charges that he had faced in the past might make future students of his, and their parents, anxious about him.
Counsel for the applicant also submitted that s 39 of the WWC Act might require the Tribunal to maintain the order in any event. That section imposes an obligation on persons engaged in the performance of functions under the WWC Act to not, directly or indirectly, disclose or make use of information obtained in the course of performing those functions, except in certain specified limited circumstances that, relevant to this case, are:
(a)for the purpose of, or in connection with, performing functions under this Act;
…
(c)as required or allowed under this Act or another written law; ….
Buss JA in Scott noted at [149] the obligation of confidentiality imposed by s 39 of the WWC Act but observed that '… nothing in the WWC Act imposes any restriction on the publication of such confidential information by courts hearing and determining proceedings under or in connection with the Act. The courts are to apply existing statutory or common law principles, as the case may be, governing the publication of information tendered in evidence or otherwise before them.'
Shortly after the publication of the Court of Appeal's decision in Scott, Chaney J observed in Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289 at [50] that the Court of Appeal in Grindrod and Scott had articulated clearly that the public interest in open justice prevails over an applicant's private interests in the context of proceedings in the Court of Appeal - and that the principles of open justice are clearly applicable to proceedings before the Tribunal. However, Chaney J also observed that the Tribunal is not a court and, when exercising its powers on review, it exercises functions and discretions corresponding to those exercised by the original decision maker SAT Act s 29. His Honour did not find it necessary to determine in that case whether the distinction between a court and a tribunal might lead to a different outcome in relation to suppression in any given case, having regard to the confidentiality requirements imposed on the original decision-maker by s 39 of the WWC Act. His Honour declined to make an order suppressing the name of the applicant in that case because no purpose would be served by doing so, given that the Court of Appeal had declined to suppress the name in its published decision and reasons.
Counsel for the applicant referred us to a decision of Siopis J in the Federal Court in Y v The University of Western Australia (No 2) [2006] FCA 466 in which his Honour reviewed authorities regarding the making of suppression orders under s 50 of the Federal Court of Australia Act 1976 (Cth) where there was a statutory or other regime in place relating to the confidentiality of the matter on appeal. His Honour referred to the decision of the Full Federal Court in Herald & Weekly Times Ltd v Williams [2003] FCAFC 217 (Williams), which noted the distinction between the exercise by a court of the judicial power of the Commonwealth and the exercise by the Administrative Appeals Tribunal (AAT) of the administrative power of the Commonwealth. In Williams the AAT had made an order suppressing the name of Mr Williams in a matter concerning the Taxation Administration Act 1953 (Cth), s 14ZZE of which conferred a right on an applicant to the AAT to request that a matter be heard in private, notwithstanding the general rule reflected in s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) that all proceedings be in public. The Full Federal Court considered that a provision such as s 14ZZE had no application to proceedings in the Court, regardless of what its impact on the proceedings in the AAT may have been.
The question arises, therefore, whether WWC Act s 39 requires the Tribunal, as opposed to a court, to maintain the confidentiality of an applicant's identity in every case. That has not been the Tribunal's approach in the cases determined thus far, and we consider that there is no such requirement. In terms of the exceptions to the general obligation of confidentiality contained in s 39, we consider that the Tribunal is exercising a function under the WWC Act when reviewing a decision of the respondent, and that review must proceed in the light of provisions such as s 61 and s 62 of the SAT Act, which provide for public hearings and open justice as the normal practice of the Tribunal. Section 39 of the WWC Act is not a provision that creates a regime that restricts how the Tribunal is to perform its functions similar to that which is created by s 113 and Sch 1 Pt B of the Guardianship and Administration Act 1990 (WA). It follows, we consider, that whether or not the applicant's name in these proceedings should be suppressed should be determined having regard to the established principle of departing from open hearings and justice only in exceptional cases.
It is clear from the authorities referred to earlier in these reasons that the fact that a person may be embarrassed, disadvantaged or even distressed by the publication of his name will not, of itself, be sufficient to justify a departure from the general principle that the public interest requires open justice. When the Grindrod and Scott cases were initially before the Tribunal, the Tribunal ordered suppression of the applicant's names principally because the applicant in each case had been successful in gaining an assessment notice and it was considered that there was no need to publish the applicant's names because the public interest in knowing how the WWC Act is being administered could be met by publishing decisions explaining the Tribunal's reasoning without the names of the persons concerned.
In the present case, we have decided that the applicant should not succeed in gaining an assessment notice. To that extent we consider that the argument put to us on behalf of the applicant that publication of his name would prejudice him because of the impact publication would have on possible future students and their parents has no weight.
We accept that the applicant will be disadvantaged by our decision in that it may prevent him from working with children in the future, but in relation to publication of his name we are significantly influenced by the fact that the Court of Criminal Appeal published the applicant's name in its decisions concerning him. To that extent, his involvement in the 1990 charges and how they were disposed of is already a matter of public record. Equally, the applicant's name was included in the court documents in relation to the 2008 charge. In our view, no purpose would now be served by continuing the suppression of the applicant's name by the Tribunal and the interim order made by Chaney J should be revoked.
Orders
For the reasons set out above we order that:
1.The decision of the respondent made on 19 December 2008 to not cancel the negative notice issued on 24 April 2008 should be affirmed.
2.The order made by Chaney J on 7 April 2009, that until further order the name of the applicant is not to be published, is revoked.
I certify that this and the preceding [115] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER
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