J and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
[2010] WASAT 70
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: J and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2010] WASAT 70
MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)
HEARD: 30 JUNE 2009
DELIVERED : 19 MAY 2010
FILE NO/S: VR 217 of 2008
BETWEEN: J
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent
Catchwords:
School teacher - Application for working with children assessment notice - Negative notice - Review of CEO's decision - Criminal record check - Class 2 offence - Sex offender - Exceptional circumstances of the case under s 12(6) - Childrelated employment - Whether unacceptable risk to children - Section 12(8) criteria and s 3 - Suppression order
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 321, s 321(7)
Evidence Act 1906 (WA), s 36A
State Administrative Tribunal Act 2004 (WA), s 27, s 27(1), s 27(2), s 27(3), s 29, s 61, s 61(2), s 61(4), s 62, Pt 3, Div 3
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 7(2), s 7(2)(a), s 12, s 12(2), s 12(3), s 12(4), s 12(5), s 12(6), s 12(7), s 12(8), s 12(8)(a) (f), s 13(1)(b), s 13(3), s 23, s 24, s 26(2), s 29, s 32, Sch 2
Result:
Application dismissed and Chief Executive Officer's decision affirmed
Suppression order made
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr S Vandongen
Solicitors:
Applicant: Self-represented
Respondent: Department for Child Protection
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Chief Executive Officer, Dept for Child Protection v Grindrod (No 2) [2008] WASCA 28
Chief Executive Officer, Dept for Child Protection v Scott (No 2) [2008] WASCA 171
CJ v State of Western Australia [2009] WASCA 42
Director of Public Prosecutions v Ellis [2005] VSCA 105; (2005) 11 VR 287
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This is an application by a former primary school teacher for a review of a decision by the Chief Executive Officer of the Department of Child Protection to refuse to cancel a negative notice issued to the applicant under s 12(6) of the Working with Children (Criminal Record Checking) Act 2004 (WA).
The applicant was convicted in the District Court of four counts of sexual penetration of a child under 16 years of age. She was sentenced to a term of immediate imprisonment and served some time in prison pending her appeal. The applicant's sentence was reduced and suspended on appeal.
The applicant applied for a Working with Children Assessment Notice from the respondent. She accepted that she would never again be registered as a teacher in Western Australia, but said she needed the Working with Children Assessment Certificate as all potential employers required it, regardless of whether or not a position required the employee to carry out childrelated work as defined by the Working with Children (Criminal Record Checking) Act 2004.
The applicant submitted that exceptional circumstances applied to her particular case and that she had displaced the assumption of reoffending which underlies s 12(6) of the Working with Children (Criminal Record Checking) Act 2004. The respondent maintained that there is an unacceptable risk that the applicant might cause physical or sexual harm to children in the course of carrying out childrelated work and that there were no exceptional circumstances that could displace that assumption.
The Tribunal carefully considered the substantial evidence before it and the submissions made by the parties. The Tribunal accepted that the applicant bore the onus of proving on the balance of probabilities (according to the test in Briginshaw v Briginshaw (1938) 60 CLR 336) that exceptional circumstances applied to her case, so as to negate that assumption in s 12(6) with the result that the CEO should issue her a Working with Children Assessment Notice.
The Tribunal acknowledged the very sad and unusual circumstances of the applicant's situation that resulted in her offending and the consequences of her subsequent conviction. However, the Tribunal was not persuaded that those circumstances amounted to exceptional circumstances as required by s 12(6) of the Working with Children (Criminal Record Checking) Act 2004. The Tribunal's consideration was governed by the paramount principle of the best interests of children as set out in s 3 and s 12(8)(a) of the Working with Children (Criminal Record Checking) Act 2004. The Tribunal found that the criteria in s 12(8)(b) (f) are secondary to that paramount consideration. In particular, the detriment to the financial and personal interests of the applicant were not an important criteria that could in any circumstance displace the paramount importance of the best interests of children.
Accordingly, the Tribunal dismissed the application. In doing so, the Tribunal also made a suppression order so that details which might reveal the identity of the complainant in the criminal proceedings or the school he attended could not be published.
Background
These proceedings relate to an application by J for review of a decision made by the Chief Executive Officer (CEO) of the Department for Child Protection (department) pursuant to the provisions of the Working with Children (Criminal Record Checking) Act 2004 (WA) (Act). The CEO has delegated all of his powers and duties under the Act to the Director, Working with Children Screening Unit (unit) within the department, as permitted by s 45 of the Act. In these reasons a reference to the department, the Director or the unit means for the purposes of the Act, the CEO, who is the proper respondent to these proceedings.
On 26 June 2007, J, the applicant applied to the CEO, through the unit, for a Working with Children Assessment Notice (assessment notice) to enable her to work as a teacher in a particular named school in Western Australia (school). As required by s 12 (2) of the Act, the unit conducted a criminal record check of J. The criminal record check did not reveal any offences of which J had been convicted, nor any Class 1 or Class 2 offences of which she had been charged. Accordingly, on 26 July 2007, the CEO issued J with an assessment notice pursuant to s 12(3) of the Act.
On 6 May 2008, J was charged with a Class 2 offence, namely four counts of sexually penetrating a child over 13 and under 16 years of age under s 321 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code).
A person employed in childrelated employment who is charged with a Class 1 or Class 2 offence must notify their employer, as soon as is practical, that there has been a relevant change in their criminal record. The employer must then give the CEO written notice of this relevant change to an employee's criminal record, as soon as is practical after it receives notice from its employee (s 29 of the Act). On 14 May 2008, the CEO received notice from the school of J's relevant change of status. On 10 May 2008, the unit also received information about the charges from the Western Australian Police.
Under s 32 of the Act, the CEO must treat a notice of change as a new application for an assessment notice and s 12 of the Act applies to the decision as to whether or not the CEO should issue a new assessment notice.
On 21 May 2008, the Director wrote to J advising her:
1)that the unit was proposing to issue her with a negative notice;
2)of her criminal history information of which the CEO, the department and the unit were aware; and
3)that she was invited to make submissions to the CEO before it made a final decision about her application.
The department issued an interim negative notice under s 13(1)(b) of the Act and, pursuant to the CEO's obligations under s 13(3) of the Act, the department advised the school of this.
On 24 July 2008, the department received a letter from J's solicitor requesting that the department delay making a final decision about the application until J had been sentenced for her Class 2 offences. The CEO did not grant J's request for a delay, as it was not considered to be in the best interests of children to do so. On 24 September 2008, the CEO issued a negative notice to J. The reasons for this decision were recorded in an Assessment Report and were as follows:
Reasons for this decision
It has been decided to issue you with a Negative Notice for the following reason/s:
•Your criminal record shows convictions for 4 counts of the offence of Sexually Penetrating a Child over 13 and [sic] 16 years of age, which are Class 2 offences under the Working with Children (Criminal Record Checking) Act 2004.
•You were issued with an Interim Negative Notice and a Proposal to issue a Negative Notice on 21 May 2008 and invited to provide a submission to the Screening Unit, for consideration prior to a final decision being made on your application. No submission from you has been received.
•In considering all the information about your criminal record available to the Screening Unit, we have identified no exceptional circumstances applying to your application.
On 22 September 2008, J entered a plea of guilty to the four charges and was sentenced in the District Court on 2 October 2008.
On 17 December 2008, J applied to the Tribunal for review of the CEO's decision to issue her with a negative notice.
On 19 December 2008, J successfully appealed to the Court of Appeal against her sentence. The original sentence of 27 months imprisonment with eligibility for parole was quashed and a sentence of 18 months imprisonment on each count to be served concurrently and to be suspended for a period of 12 months was imposed.
During the course of these proceedings before the Tribunal, the department agreed to reconsider its decision to issue J with a negative notice and to take into account further information about her convictions, any submissions that J wished to make and the published reasons for her successful appeal against her sentence.
After consideration of that additional material, the CEO decided not to cancel the negative notice. On 29 April 2009, the Director advised J of that decision. The department prepared a further assessment report setting out the CEO's consideration of the new material (assessment report) and the Director gave J the following reasons for decision:
I have decided that there are no exceptional circumstances in your case at this point in time to permit me to cancel the Negative Notice issued on 23 September 2008.
In addition to the reasons for originally issuing that Negative Notice, a further reason for refusing to cancel your Negative Notice is that currently, your response to psychological counselling and treatment cannot be reliably determined as there has not been a sufficient passing of time to gauge the effectiveness of this treatment. Currently, you present as an unacceptable risk to the safety of children if you were to undertake childrelated work.
It is this decision of 29 April 2009, to not cancel J's negative notice and issue an assessment notice in lieu (decision), that is under review in these proceedings.
The issue
The primary issue before the Tribunal is whether, on all the information and material before us, there are any 'exceptional circumstances of the case' so that we are satisfied that the CEO should issue an assessment notice to J rather than a negative notice.
In considering whether or not we are satisfied that J should be issued with an assessment notice, we must have regard to:
a)the criteria in pars (a) – (f) of s 12(8) of the Act, in particular, the paramount consideration of the best interests of children in par (a) and in s 3 of the Act; and
b)whether there is an 'unacceptable risk' that J might cause sexual or physical harm to children in the course of carrying out childrelated work (see Chief Executive Officer, Dept for Child Protection v Grindrod (No 2) [2008] WASCA 28 (Grindrod) at [81]).
We must therefore undertake an 'analysis or evaluation of the risk or degree of risk' that J might cause harm to children in the course of carrying out childrelated work (Chief Executive Officer, Dept for Child Protection v Scott (No 2) [2008] WASCA 171 [116]) (Scott).
The relevant legislation
Section 3 of the Act contains the overarching principle that must always govern consideration of an application for an assessment notice, as follows:
3.Principle that best interests of children are paramount
In performing a function under this Act, the CEO or the State Administrative Tribunal is to regard the best interests of children as the paramount consideration.
With that principle in mind, we also took into account the scheme of the Act by reference to the long title:
An Act -
•to provide for procedures for checking the criminal record of people who carry out, or propose to carry out, childrelated work;
•to prohibit people who have been charged with or convicted of certain offences from carrying out childrelated work,
and to provide for related matters.
Section 12(6) and s 12(8) of the Act provide:
(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.
…
(8)If subsection (4), (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)any information given by the applicant in, or in relation to, the application;
(f)anything else that the CEO reasonably considers relevant to the decision.
The following relevant terms are defined in s 4 of the Act:
child means a person who is under 18 years of age;
…
childrelated employment means -
(a)child-related work carried out by an individual under a contract of employment or apprenticeship (whether written or unwritten);
(b)child-related work carried out on a voluntary basis by an individual under an agreement (whether written or unwritten) with another person; or
(c)child-related work carried out by an individual as a minister of religion or in any other capacity for the purposes of a religious organisation;
…
educational institution for children includes any school as defined in the School Education Act 1999 but does not include -
(a)an educational institution that is recognised or established as a university under a written law; or
(b)an educational institution prescribed by the regulations for the purposes of this paragraph,
even if that university or institution has a student who has not reached 18 years of age;
…
work includes practical training undertaken as part of an educational or vocational course.
Section 4 also defines a 'Class 2 offence' by reference to s 7(2) of the Act. Paragraph (a) of s 7(2) is relevant to these proceedings. It specifies that a Class 2 offence is:
(a)an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
The relevant offences in Schedule 2 and with which J was charged and convicted are:
The Criminal Code
...
s. 321Sexual offences against child of or over 13 and under 16
s. 321APersistent sexual conduct with child under 16 (if the offence does not include a sexual act on any occasion when the child against whom the offence is committed is under 13)
The penalty for conviction under s 321 of the Criminal Code is in s 321(7):
(7)A person who is guilty of a crime under subsection (2) or (3) is liable to imprisonment for -
(a)14 years;
(b)where the child is under the care, supervision, or authority of the offender, 20 years; or
(c)where the offender is under the age of 18 years and the child is not under the care, supervision, or authority of the offender, 7 years.
J asks us to consider how restricted she is in searching for and obtaining employment without an assessment notice. It is therefore useful to consider how broadly the Act intends 'child-related work' to be viewed. Section 6 of the Act says:
6.Term used: childrelated work
(1)Subject to subsection (3), work is child-related work if -
(a)the usual duties of the work involve, or are likely to involve, contact with a child in connection with -
(i)a child care service;
(ii)a community kindergarten registered under the School Education Act 1999 Part 5;
(iii)an educational institution for children;
(iv)a coaching or private tuition service of any kind, but not including an informal arrangement entered into for private or domestic purposes;
(v)an arrangement for the accommodation or care of children, whether in a residential facility or private residence, but not including an informal arrangement made by a parent of the child concerned or accommodation or care provided by a relative of the child;
(vi)a placement arrangement under the Children and Community Services Act 2004;
(vii)the performance by an officer, as defined in the Children and Community Services Act 2004 section 3, of a function given to the officer under that Act;
(viii)a detention centre, as defined in the Young Offenders Act 1994 section 3;
(ix)a community child health service;
(x)a counselling or other support service;
(xi)a religious organisation;
(xii)a club, association or movement (including of a cultural, recreational or sporting nature and whether incorporated or not) with a significant membership or involvement of children, but not including an informal arrangement entered into for private or domestic purposes;
(xiii)a ward of a public or private hospital in which children are ordinarily patients;
(xiv)a baby sitting or child minding service, but not including an informal arrangement entered into for private or domestic purposes;
(xv)an overnight camp, regardless of the type of accommodation or how many children are involved;
(xvi)a transport service specifically for children;
(xvii)a school crossing service, being a service provided to assist children to cross roads on their way to or from school;
(xviii)a children's entertainment or party service; or
(xix)any other work of a kind prescribed by the regulations;
or
(b)the work is the exercise or performance by a person of a power or duty delegated to the person by the CEO under section 45.
(2)For the purposes of subsection (1), contact with a child does not include contact -
(a)between a person and a child who is employed by the person; or
(b)between a person and a child who are both employed by the same person,
if the contact is lawful and arises in the normal course of the child's employment.
(3)Subsection (1) does not apply to work that is carried out -
(a)on a voluntary basis by a child; or
(b)in circumstances, or by a person, prescribed by the regulations.
(4)Without limiting subsection (3)(b), the regulations may prescribe a person for the purposes of that provision by reference to a criminal record check (however described) made in respect of the person -
(a)under another Act prescribed by the regulations; or
(b)as prescribed by the regulations.
The Tribunal's review jurisdiction
Section 26(2) of the Act gives J the right to apply to this Tribunal for a review of the decision.
In these proceedings, we are therefore exercising the Tribunal's review jurisdiction pursuant to Pt 3 Div 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). This means that we consider J's application to the CEO to cancel the negative notice as though we are the original decisionmaker, that is, the CEO, considering J's original application to cancel the negative notice. We effectively 'step into the shoes' of the CEO and the delegates of the CEO who were involved in making the decision. We consider all of the information and evidence that was before the original decisionmaker including the additional information provided to the CEO after the mediation; we consider all of the additional material that became available during the course of these proceedings; and we consider any new or other material not before the original decision-maker, so long as it is relevant to the proceedings. On this basis, we considered a large amount of documentary evidence, the transcripts of the complainant's video interview for the criminal proceedings and of J's sentencing hearing in the District Court, the written reasons of the Court of Appeal in CJ v State of Western Australia [2009] WASCA 42 (the appeal decision), written and oral submissions from both parties and the transcript of submissions and J's evidence at the final hearing of these proceedings.
We therefore approached our consideration of J's application 'afresh' (or 'de novo', s 27(1), SAT Act) without any need to find fault with the decision, as made by the CEO. We must make the 'correct and preferable' decision (s 27(2), SAT Act) as at the time of making our decision; not at the time of J's application to the CEO. The reasons given by the Director and the unit for the CEO in support of the decision do not in any way limit our consideration (s 27(3), SAT Act). In essence, we begin again and consider J's application in light of her current circumstances.
Section 29 of the SAT Act sets out our powers on review, which include affirming, varying or setting aside the decision.
We note with regret the time taken to produce these written reasons and decision and 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 hearing this application and delivering these written reasons.
The facts
The criminal offences occurred over an eight month period in 2007 and 2008. At the time of the first three offences, J was 34; she was 35 at the date of the fourth offence. The complainant boy was 14 at the time of the first two offences; the third offence occurred just after his 15th birthday and the fourth some months later.
Details of each of the offences are set out in Miller JA's reasons for decision in the appeal decision and it is therefore unnecessary to set them out again here.
J and the complainant knew each other through a variety of sources, including the school and a church group; J and the complainant's mother were friends and it was through her that J had become a born again Christian; J's son and the complainant were also friends. J was a primary school teacher at the school; the complainant was in the high school section of the school, although J had taught him at the primary school. It was not alleged at any time that the offences arose from an abuse by J of her position as a teacher at the school. She was not charged with a sexual offence against a child under her care, supervision or authority; if she had been, this would have been an aggravating circumstance and would have resulted in higher penalties being available to the Court.
The complainant regularly slept over at J's house on weekends. Each of the offences occurred at J's house when the complainant boy was 'sleeping over' in the company of J's son, except in the case of the first offence, which occurred when the complainant was at J's house after returning from a weekend camping trip with J and her son. During that weekend away, J and the complainant had kissed and fondled each other while J's son was asleep in the caravan they were staying in. They did not have sexual intercourse on that trip.
It was conceded that J had not, in her life, had a fulfilling and mutual sexual relationship. She had an unrealistic perception of her relationship with the father of her son. Whilst he remained uncommitted to her and in a relationship with someone else, she believed for over 10 years that he would marry her and they would be a happy family. However, it seems he used her for occasional sex in secret. Her sexual encounters with the complainant constituted the only other 'romantic or sexual relationship' that she had experienced. She held a belief that some time later, at an appropriate time, when the boy was older, they would have a committed and ongoing relationship. He saw her as someone to have sex with.
It is accepted that the boy was clearly a willing participant in the sexual activity with J. In fact, he initiated each sexual encounter; he decided when and if they had sex. He came to her bedroom when he was at her house, visiting as a friend of J's son. In the appeal decision, McClure JA describes it at [16] as follows:
In this case the offences were not initiated by the appellant. The complainant was in control of when and if sexual contact occurred. He acknowledged to police in the video record of interview that he was "just in it for the sex pretty much". Notwithstanding the appellant's age, she was vulnerable to the sexual interest shown by the complainant. That vulnerability stemmed from a dysfunctional background, low self esteem, a history of passivity and acquiescence, a life of social isolation and lack of any significant emotional or physical intimacy with an adult over an extended period. Into that mix is the appellant's clinical depression.
Ultimately, the boy disclosed his sexual relationship with J to his new girlfriend, who was in his class at the school. She in turn told those in authority (initially the chaplain) at the school. This led to J's immediate dismissal and her subsequent arrest on the charges outlined above. She spent some time in prison pending her appeal when her prison sentence was reduced and suspended.
After her release from prison, J worked on a checkout at a supermarket where she faced regular ridicule and taunting from the girl who had reported her conduct to the school and a group of that girl's and the complainant's friends and associates. It was acknowledged in the assessment report and in submissions that it has not been easy for J and that her situation invokes sympathy. We agree.
The psychological reports
We considered:
a)a report of a psychological assessment of J, prepared by a court appointed clinical and forensic psychologist, Mr Nigel Cameron, for J's sentencing on the charges;
b)a report from J's private psychologist, Ms Genevieve Milnes; and
c)the reports of J's counselling sessions in prison.
In the appeal decision, Miller JA refers to Mr Cameron's report at [45] as 'the more significant psychological report'. Mr Cameron describes J as a 'lonely and isolated woman' who formed few friendships. He describes the motivators for J's offending behaviour as not being what would arguably be considered to be the usual driver for many sexual offenders, namely sexual/physical needs and gratification. Rather, he describes J's offending as arising from needs that were emotional/intimacy needs. However, Mr Cameron describes J's 'outlooks' from the time that the complainant boy first made a sexual gesture towards her, as resembling 'the cognitive distortions and naivety that many sexual offenders have. She avoided reflection on the consequences of her actions, and idealised the view of the 'relationship' believing that the boy was to be her long term partner.' (page 5) Mr Cameron refers to J's 'distorted' thinking that resulted in her believing that the boy also had the same 'outlooks and drivers for his behaviour' (page 6). Mr Cameron acknowledges that this distorted thinking must be viewed in light of J's extreme naivety in romantic and sexual relationships. He concluded that her offending was based on 'personality factors and events rather than any mental health disorder'.
Despite Mr Cameron's conclusions referred to above and below, and J's reliance on his report as supporting her application, we remain concerned by the conclusion he draws on p 6:
Despite these events she failed to grasp that for a 14/15 year old the driver's for relationships were very different. To this effect she continued to present as extremely naïve into how a 14/15 year old would have processed these events, his capacity to make informed decisions about sexual relations, his motives for engaging in such behaviour, and the lasting effects involvement in such behaviour may have on him.
Because of the importance that J gives to Mr Cameron's report and her reliance on it as indicating that she represents a low risk of reoffending, we think it best to quote a rather substantial passage from Mr Cameron's report rather than to attempt to summarise it. We begin at page 7:
[J] presents as low risk of engaging in future such relationships with other teenage boys. She has, for many years, repressed her sexuality and intimacy needs, and if a like situation or opportunity arose, her experience of this process and resultant shame would most likely lead to her not acting. Of course, she is also most likely going to better manage boundaries between herself and teens (or children) as a result of the current situation. … In fact in many ways her current living circumstances present as a self imposed isolation. She resides by herself in a cottage on rural property alone, travelling to [town] for part time work in [supermarket], and to Perth for counselling, she avoids being in public in the [local] community. …
That said, if somehow [J] and the victim (whom she stated is now aged 16 years) re-established contact, the risk of like future behaviour might be very different. Whilst [J] knows the seriousness of her behaviour in terms of norm violation and law, her emotional desire for a relationship, affection for the victim and continued naivety about the distorted drivers and disturbed foundation for the abuse remain to some extent. If he was to contact her and seek reconciliation, she may struggle.
An alternative risk scenario may be if [J] was to form a relationship with a man (and this would be a good development prognosis wise, representing healthy sexuality development), but if this relationship soured and a like teen (hypothetically a stepson) was apparent in the home, some risks may present. However these risks, given [J]'s experience of the current process would, in my estimation remain in the relatively low categories.
… direction would need to be made that sex offending counselling, not mental health counselling, be provided.
Summary and Conclusions
•[J] heralds from a troubled background, her relationship with her mother and sense of emotional neglect during childhood left her insecure, depressed and extremely naïve in relationships.
•[J]'s romantic relationship history is impoverished. She had one long term, albeit infrequent/intermittent sexual relationship which she viewed as a partnership, but more likely appeared sexual convenience to the male partner. When this halted, she suppressed her sexuality and intimacy needs for a period of years. To present she is yet to experience an appropriate romantic/intimate consensual relationship, and thus yet to develop a healthy sexuality.
•Troubled (often depressed and with a chronically low self esteem), she redirected her energy to her career and parenting her son; but also managed boundaries in interpersonal relationships, be it with children or other adults poorly.
•By her account, the victim made a gesture that sparked an intense desire for intimacy, and sexual behaviour escalated and continued over a period.
•She 'compartmentalised' (using her term), the risks, fears and sense that this behaviour may be wrong, and built fanciful romantic hopes abut [sic] a future together with the victim, seeing him as her lifelong partner, in time.
•Whilst not impressing as a high risk of future such behaviour, some risk issues remain that require address. Improving her mental health is a target of current counselling with a private practitioner, and this at some point would be well bolstered by counselling that helps her grasp the issues inherent in her offending behaviour, and promotes her development.
We note that in his submissions, the CEO draws our attention to the qualification that Mr Cameron does not consider J's risk of reoffending in the context of being engaged in childrelated work as defined by the Act. On that basis, the CEO says we should give it less weight than it might otherwise warrant.
J was at one time regularly seeing clinical psychologist, Ms Genevieve Milnes, who describes herself in her report as an 'advocate for J'. Her report must therefore be considered in that context; however, we accept that she provided very helpful and positive counselling for J.
J's depression
J's GP, Dr Rae, provided a report that outlined his treatment of J for depression. He said:
I am not able to state from observation or certain knowledge that she was depressed during the time under question but can unequivocally state that it is very aberrant behaviour for her. She had always been a caring and responsible person who had worked hard to get to the teaching position she held and was always thought well of for the way she cared for her son.
Of probable importance is that during the consultation on 8/5/06 she mentioned that she had not been sleeping well, had a lot on her plate at school, and was significantly affected by a friend with depression.
It is possible that these were symptoms of incipient depression that developed further subsequent to the consultation of 8/5/06 and may have a bearing on events that followed.
The Court of Appeal expressed some doubt that J was suffering from depression at the time of the offences. However, the Court concluded in the appeal decision that she was depressed at the time of sentencing and that this should have been taken into account at that point. In particular see [57] and [72] of the appeal decision.
We accept that J has suffered from episodes of depression throughout her life.
Legal principles for consideration
The four Class 2 offences for which J was convicted involve inappropriate sexual intercourse between a mature adult and a child. This means that under the Act, J is prima facie unsuitable to work with children or to undertake childrelated work because she poses an unacceptable risk of repeating this type of criminal conduct. To negate that assumed unacceptable risk of repetition J must show that in her case exceptional circumstances exist, sufficient to persuade us that she does not represent an unacceptable risk of reoffending. See Scott at [19] per McLure JA; CEO's statement of issues, facts and contentions at [37].
The decision was made under s 12(6) of the Act. We must affirm the decision, unless we are satisfied that, because of the exceptional circumstances of her case, we should issue an assessment notice to J. In deciding whether we are satisfied that there are exceptional circumstances in her case, we must have regard to the factors listed at s 12(8) of the Act. Section 3 of the Act requires us, when performing a function under the Act, to regard the best interests of children as our paramount consideration. Section 12(8)(a) of the Act reaffirms this by stipulating that when the CEO (or this Tribunal) is satisfied that there are exceptional circumstances in a particular case, the CEO must have regard to 'the best interests of children.' Section 12(8)(a) (f) sets out a range of factors for the CEO to consider when deciding whether or not they are satisfied that there are exceptional circumstances in a particular case. Some of those factors might be relevant in a particular case and some may not be. But, the requirement of s 3 and s 12(8)(a) that the interests of children are paramount, will always be applicable and will always prevail over any other consideration. This requirement reflects the principle that underlies the scheme of the Act; it is the base on which is built every aspect of the Act and the scheme it creates. It is both fundamental and paramount, displacing any other inconsistent consideration. It is not modified or qualified by any other provision in the Act. It remains paramount and s 12(8)(a) merely reaffirms this supremacy and ensures its consideration when a decision is to be made as to whether there are exceptional circumstances which might be applicable in a particular case (see Scott [95], [105], [106], and [116] and Grindrod [70] and [81].
It follows, therefore, that we must not issue an assessment notice (or cancel the negative notice) unless we are satisfied that the best interests of children would not thereby be harmed (McClure JA, Scott [18]).
We are required to analyse or evaluate the risk, or degree of risk, that J might cause physical or sexual harm to children in the course of carrying out childrelated work (Buss JA, Scott [116]). As a consequence of her convictions, we are entitled to assume that J will reoffend. For her application to succeed, J must displace that assumption by persuading us that she does not represent an unacceptable risk of reoffending because there are exceptional circumstances in her particular case that warrant a conclusion that she presents as a low risk of reoffending in the future.
Unlike s 12(4) and s 12(5) of the Act, s 12(6) has not been judicially considered in any depth. We are of the view that the discretionary power under s 12(6) is more circumscribed than the discretionary power under s 12(4) and s 12(5) because 'exceptional circumstances' must exist under s 12(6); s 12(4) and s 12(5) stipulate merely that 'particular circumstances' must exist (Buss JA, Scott [118]).
It is instructive to consider the scheme created by the Act. As part of the fundamental principle of the Act that it operates for the protection of children, it sets out a scheme for certifying that people are suitable to be employed in childrelated work. Section 23 of the Act provides that if a person has been issued with a negative notice then they are not to be employed in childrelated work. Under s 24, a person who does not have a current assessment notice must not be employed in childrelated work.
Section 12 of the Act provides a 'sliding scale' of entitlement to certification and it contains the criteria to be considered by the CEO (and therefore this Tribunal) when exercising the discretionary power to issue an assessment notice or a negative notice.
Section 12(2) requires the CEO to conduct a criminal record check of an applicant. If, after that check, the CEO is unaware of the applicant having been charged or convicted of an offence, then the CEO must issue an assessment notice to the applicant (s 12(3)). Under s 12(4), if the CEO is not aware of an applicant being convicted of an offence, but is aware that there is a 'nonconviction charge' in respect of certain offences, the CEO must issue an assessment notice unless the CEO is satisfied that 'because of the particular circumstances of the case' a negative notice should be issued. Grindrod related to an application under s 12(4).
Section 12(5) applies if the CEO is aware of certain offences of which the applicant has been convicted. In that circumstance, the CEO must 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. Scott related to an application under s 12(5).
Section 12(6) is the relevant section in these proceedings and it requires the CEO 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. This section applies if the CEO is aware that the applicant has been charged or convicted of certain criminal offences.
Section 12(7) obliges the CEO to issue a negative notice to an applicant, if the CEO is aware that the applicant has been convicted of a Class 1 criminal offence.
It can be seen then that the continuum created by s 12(3) s 12(7) begins with an entitlement to an assessment notice and concludes with a requirement that the CEO issue a negative notice. Therefore, at the two extremes, there is no analysis or evaluation to be made by the CEO in respect of the risk or degree of risk that an applicant might cause harm to children. Those two provisions remove any discretionary power from the CEO. However, s 12(4), s 12(5) and s 12(6) require the CEO to exercise their discretion and to apply an analysis or evaluation of the degree of risk that an applicant might cause harm to children. Parliament therefore considers that there are some offences (as referred to in s 12(7)) where an applicant must be barred from any entitlement to engage in childrelated work irrespective of any circumstances surrounding the applicant or the offences. Sections 12(4) and 12(5) are similar in that they both require an analysis of an unacceptable risk that the applicant might cause sexual or physical harm to children in the course of carrying out childrelated work. The CEO in both cases must be satisfied because of the 'particular circumstances' of the case before the CEO. Both of those subsections require the CEO to issue an assessment notice unless satisfied that a negative notice should be issued. However, s 12(6) requires the CEO to issue a negative notice unless the CEO is satisfied that 'exceptional circumstances' exist so that an assessment notice should be issued. Section 12(6) imposes a more stringent test than s 12(4) and s 12(5).
Therefore, J's conviction of a Class 2 offence means that we must confirm the issue of the negative notice by the CEO, unless J can satisfy us that exceptional circumstances exist that warrant the displacement of the requirement that she be issued with a negative notice. J bears the onus of proving that exceptional circumstances exist in her particular case; to do that she must negative the assumption that we are entitled to make and that Parliament expects us to make under s 12(6) that J poses an unacceptable risk of repetition of the offending conduct. Those exceptional circumstances that J seeks to rely on must be relevant and must warrant the CEO (or this Tribunal) concluding that the risk of repetition has been comprehensively negated. Further, the CEO cannot issue an assessment notice unless the CEO is satisfied that the best interests of children would not be harmed if an assessment notice is issued (see Scott at 18).
The applicant therefore has two hurdles to conquer; first she must persuade us that she does not pose an unacceptable risk of reoffending; secondly, she must persuade us that exceptional circumstances apply in her particular case so that she is entitled to an assessment notice rather than a negative notice. To reach that decision we must consider each submission made by J and test it against the criteria in s 12(8)(b) (f), bearing in mind that the paramount principle when considering each of those criterion, is that we must consider the best interests of children over and above any other interest (s 3 and s 12(8)(a) of the Act).
Ultimately, we must therefore ask, having regard to all the evidence and the assumed risk of repetition, whether the issue of an assessment notice will harm the best interests of children.
J bears the onus of persuading us to overturn the decision. The civil standard of proof applies to our consideration. We should have regard to the factors referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, which requires us to feel an 'actual persuasion' that there is not an unacceptable risk of J reoffending and also that exceptional circumstances apply which would entitle J to be issued with an assessment notice.
In Grindrod at [86], Buss JA cites a number of factors which bear upon risk, including:
…
(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.
His Honour stresses at [87] that the 'analysis and evaluation of risk' must be based on all material and information properly before us. He notes that 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.' We have considered the application before us on that basis.
The CEO's submissions
The CEO submits that no exceptional circumstances exist to justify J being permitted to work with children; and even if exceptional circumstances did exist, they are not or would not be so exceptional as to outweigh the prima facie risk J poses to children should she be allowed to return to childrelated work. In making this submission, the CEO relies on the assumed unacceptable risk of repetition, as described in Scott and which the CEO contends J has not displaced; and the 'evident legislative purpose' of the Act described in Grindrod and enshrined in s 3 of the Act.
The CEO notes that with the exception of these four convictions, J has not been charged or convicted of any other offences. It would therefore appear that she does not have an established pattern of antisocial offending behaviour. However, the CEO argues that J was charged with and convicted of four counts of a serious offence, which occurred over a period of eight months. The CEO submits that this is concerning and means that J cannot argue that the behaviour was a result of a oneoff set of circumstances. Furthermore, J had the opportunity, after the first, second or third time that she engaged in inappropriate sexual behaviour with the complainant, to ensure that the behaviour was not repeated. There is no evidence that she acted in any way to prevent a repeat of her behaviour (assessment report at p 4), although we note her evidence that she rejected (or turned away) the complainant boy on at least two occasions. The CEO argues that J was the adult in the situation and it was therefore her duty and responsibility to desist from engaging in sexual activity with a child under the age of 16, regardless of who may have instigated the sexual activity (assessment report at page 9).
The CEO submits that as a mature adult, J is expected to control situations such as the one she found herself in with the complainant. He did not use any force, and J clearly consented to and maybe even encouraged the sexual advances made by the complainant. In his visually recorded interview, the complainant describes that the first offence commenced following J's choice to sleep next to him while camping and placing her arm around him; a fact accepted by J (assessment report at page 10).
The CEO argues that it is particularly relevant to the risk J poses to children that the complainant was previously wellknown to her; page 4 of the assessment report says:
There was an established relationship between the applicant and the young boy which could be akin to that of a trusted adult. In engaging in a sexual relationship with the young boy, [J] seriously transgressed this trust relationship. Transgression of trust and duty of care by a trusted adult is a high risk factor when considering the safety of children.
Although the Court of Appeal found that J's employment as a teacher was not an aggravating factor in her offences and did not form part of the charges, the CEO says that the fact remains that J, while employed as a school teacher at an educational institution for children, committed the offence of sexually penetrating a child under 16. The child in question was a student at the school where she taught. These facts give rise to a concern as to her suitability to be engaged in childrelated work (assessment report at page 12).
In her written submissions to the department, J made much of her personal circumstances in explaining why we should consider that exceptional circumstances apply in her case. The CEO submits that although J's personal circumstances may go some way to providing an explanation for her offending, they go no further than that and do not apply so as to displace the paramount consideration of the best interests of children, and whether J presents an unacceptable risk to children.
J's mental health may have been relevant for sentencing purposes; however, the CEO contends that her mental health does nothing to reduce the risk of harming children if she is allowed to carry out childrelated work (assessment report at pages 10 11). Additionally, the CEO submits that J's history of sexual abuse does not mitigate the risk she poses, as many sex offenders have a history of sexual abuse.
Likewise, the gender of the complainant and of J is not, of itself, an exceptional circumstance. The gender of the offender and victim does not alter the seriousness of the offences, nor their relevance to childrelated work. In the CEO's view, it has no impact on the application. As Miller JA said in the appeal decision at [79]: '…it is still necessary to appreciate that there must be equality before the law, including equality of concern for male and female victims and equality in the sentencing of male and female offenders': Director of Public Prosecutions vEllis [2005] VSCA 105; (2005) 11 VR 287 per Callaway JA at [8].
In his report to the Court, Mr Nigel Cameron stated that J told him that she found the sexual contact intensely pleasurable, and that for her, this was the first time that sex had been connected to intimacy. Mr Cameron found that J avoided reflection on the consequences of her actions, and idealised the view of the relationship, believing that the boy would become her longterm partner (assessment report at page 10).
Although Mr Cameron ultimately went on to say that, in his expert opinion, J presents a low risk of reoffending, the CEO submits that, due to the recency of the events (both the offending and the treatment), it is difficult to gauge the accuracy of J's selfreporting as to her successful treatment for her clinical depression (assessment report at page 9). In any event, the CEO contends that a low risk to children is not necessarily an acceptable risk to children (SIFC at [60]) and does not indicate that J's case is in any way exceptional.
Finally, in response to J's contention that all potential employers (regardless of whether or not child-related work is involved) require an assessment notice from a job applicant as standard procedure, the CEO argues that we should not accept that an assessment notice should be issued to J on the basis that she requires it to obtain employment that is not childrelated; the CEO says this is not an exceptional circumstance, as the negative notice does not prevent J from commencing work that is not childrelated. It should also be noted that J has a right of review against the decision to cancel her registration with Western۠ Australian College of Teaching (WACOT). If J was granted an assessment notice, then nothing would prevent her from seeking a review of WACOT's decision to cancel her registration and potentially, she could teach again in the future (assessment report at 12).
In determining this application, the CEO reminds us that the best interests of children must be our paramount consideration. Given the serious nature of the offences for which J was convicted and that no exceptional circumstances can be identified to mitigate this, the CEO submits that we must find that J poses an unacceptable risk of harm to children with whom she may have contact if undertaking childrelated work (assessment report at page 5).
J's submissions
J submits that the CEO should cancel her negative notice and issue her with an assessment notice because exceptional circumstances exist that would allow the CEO to issue her with an assessment notice despite her having been convicted of a class 2 offence.
Attached to J's application to the Tribunal for review of the decision were the grounds of appeal filed on her behalf in her appeal against her sentence. J's second ground of appeal listed a number of circumstances which J submits are exceptional for the purposes of s 12(8) of the Act.
These circumstances that she identifies as exceptional are:
1)J's depressive condition caused or at least contributed to her committing the offences;
2)none of the offences was committed for J's sexual gratification;
3)at no stage did J participate in sexualised discussions or behaviour with the complainant and she made no attempt to groom the complainant;
4)none of the offences was premeditated;
5)each offence occurred at J's house when the complainant visited her house due to him being friends with J's son;
6)none of the offences were initiated by J, but rather, they were initiated by the complainant;
7)all of the offences occurred in circumstances where the complainant went to J's bedroom after her son was asleep;
8)J acquiesced to the victim's sexual advances due to her loneliness, vulnerability and intense desire for intimacy and affection;
9)the offences did not involve any threat, coercion, violence or emotional pressure from J;
10)J was assessed as a low risk of reoffending;
11)J made a full confession to police acknowledging responsibility for the offences and being contrite and remorseful in regard to her conduct;
12)J entered pleas of guilty at the earliest possible opportunity;
13)J committed herself to intensive counselling to come to grips with and address her offending behaviour as soon as the offences became known;
14)J does not have a prior criminal record;
15)as a result of these offences, J lost her job as a teacher and is now estranged from her parents, her sister and her 18 year old son, whom she brought up as a single mother (although we note that J has now re-established a relationship with her son, her father and her sister);
16)as a result of these offences, J suffered extreme shame and humiliation through people she formerly interacted with being aware of the offences and the significant media attention these offences generated; and
17)when sentenced, J was attending her doctor and psychologist regularly for therapy and working at a supermarket.
These exceptional circumstances fall into two categories: personal circumstances and circumstances of the offence.
Personal Circumstances
In her submissions to the CEO, J elaborates on the personal circumstances that she submits contributed to her offending behaviour. At the time of the offences, due to her personal history, she submits that she was extremely vulnerable to the complainant's advances.
J alleges that her vulnerability was a result of many factors, including her dysfunctional relationship with her mother and the inconsistent nurturing she received due to the chronic illnesses suffered by her sister. She also submitted in those written submissions that she has an unclear memory of an uncle dealing with her inappropriately when she was approximately 5 years old and the same uncle making unwanted sexual advances towards her when she was 13 years old, although her mother strongly disputes that this could have occurred.
In addition to this, J suffered much verbal and physical abuse as a result of bullying at high school and later, through her relationship with her son's father who emotionally, physically and sexually abused her over a period of 11 years.
In her assessment of J, psychologist Ms G Milnes wrote at page 7:
[J]'s emotional weakness, predisposition for inappropriate sexual relationships and inability to extricate herself from enmeshed relationships where she suffered as a victim, would have left [J] unable to resist [the complainant]'s desire for power…From the moment of conquest [the complainant] made his friendship with [J] subject to his sexual advances. [J] abdicated her power…in return for her need for friendship as a result of her predisposition from the past and dysfunctional family modelling.
Further psychometric testing performed by Mr Cameron revealed that Jsuffered from clinical depression. J submits that it was this depression together with her naivety in romantic/sexual relationships that was the driver for her offending.
In response to a question from Judge Eckert about the contradictions posed by J's submissions that she has accepted full responsibility for her offences, but that her personal circumstances made her 'powerless' to prevent them, J responded:
… I know that contributed to what happened because I know I'm not a bad person. I know it cannot happen again because I now understand how some of those things have affected me and I'm working towards making sure that I can have healthy relationships…But I do take complete legal responsibility, which I have, and moral responsibility as well. I was wrong. (TS: 21-22, 30.6.09)
J further submits that the extensive counselling she has received since the offences were discovered has helped her a lot. J says that in her 10 or more counselling sessions with Ms Milnes, she focused on developing her selfesteem and they used cognitive behaviour therapy to rewrite some of her faulty thinking patterns and deal with an extremely high level of stress and anxiety as well as her depression. As a result, she is now considered to be at a low risk of reoffending (appeal decision at [89] per Miller JA; report of Mr Cameron at page 7).
However, J concedes that she clearly still feels the need to further develop emotional resilience and an understanding of healthy relationships. J also stated that she is attempting to do this and that until she learns the mechanisms to deal with her issues, it is easier to avoid personal intimate relationships altogether (TS: 25-26).
Circumstances of the offence
J submits that the specific circumstances of the offences are in themselves exceptional and that this clearly shows that she is not a risk to children. She relies heavily on the findings of the Court of Appeal to establish this.
First, J submits that it is an exceptional circumstance that although she was a teacher at the time of the offence, there was no question of her being in a position of trust or authority when the offences occurred. As Miller JA said in the appeal decision at [91(i)]:
… [J]'s offending cannot be categorised as a breach of trust on her part. She was not the complainant's direct teacher and she did not occupy any position of trust on the occasions when the complainant was staying at her home. The purpose of his stay was to be with her son and, although she was the parental figure present in the house, no trust was reposed in her in the sense that she had care or supervision of the complainant or authority over him. If a complainant is under the care, supervision or authority of an offender, then a circumstance of aggravation is present and the penalty is substantially greater: s 321(7)(c) Criminal Code; JAF v State of Western Australia [2008] WASCA 231 per McLure JA at [25]. That circumstance of aggravation was not alleged against the appellant in the present case.
Secondly, she submits that the fact that the complainant initiated the offences is an exceptional circumstance. J uses Miller JA's reasons in the appeal decision to support this submission, particularly where his Honour states: 'in each instance the offence was initiated by the complainant rather than [J]. That [J] fully participated in the events that followed is without question, but there is no sense of predatory behaviour on the appellant's part' (appeal decision at [91(ii)]).
She continues on in her written submissions at page 5:
I received much support from individuals employed at the school both before and since my conviction…I was not supported by the school, but by individuals who chose to do so independently of the positions that they hold. I believe that this support shows that, while all of these people know what I had done, I hardly think they would continue to support me if they believed that anything at all had occurred at school. Particularly as parents of students I had taught were amongst those on staff who have supported me.
Thirdly, J submits that it is particularly relevant that the complainant admitted he had not suffered any harm as a result of the offences and that she cooperated with authorities from the moment the offences were uncovered.
Fourthly, J submits that she has suffered immensely as a result of her offences and the repercussions she has had to endure from within her community are a further exceptional circumstance supporting her contention that we should be satisfied that she should be issued with an assessment notice. J says that once the allegations had been made, details of her offences were made known to all parents at the school and the church associated with the school also announced matters to its congregation; she was not only fired from her job, but asked to leave her own church and effectively driven out of the town in which she lived and raised her son. She submits that when a friend tried to introduce her to a new church, the new church also told their congregation of her offences and refused to accept her.
Finally, J submits that as she is unable to teach so long as her convictions stand due to the cancellation of her registration with WACOT, she should be issued with an assessment notice as the element of risk to children has been removed. She submits that she requires the assessment notice for a number of reasons: so that she can take a more active role within her church as she considers this is childrelated work pursuant to s 6 of the Act; and to enable her to seek employment more suited to her skill set so that she can adequately support herself and her son. J acknowledges that she will never teach in a school again, but would like the opportunity to teach in TAFE. She acknowledges that some children under 18 attend TAFE.
Reasons for decision
We must decide whether there are any exceptional circumstances in J's case that result in us being satisfied that she should be issued with an assessment notice and that the negative notice should be cancelled. If we find that she has not satisfied us that we should ignore the inherent assumption that she will reoffend, then we cannot be satisfied that J should be issued with an assessment notice.
We must feel an actual persuasion that exceptional circumstances exist that negative the unacceptable risk of J reoffending. It must not be a likely risk; it must be unacceptable and, in our view, a real risk. J contends that there are exceptional circumstances to her offending and her conduct since. We have set out her claims above, including that she cites the diagnosis of depression, coming from a dysfunctional family environment, her naivety in sexual matters, her need for intimacy rather than being driven to offend by sexual gratification and the fact that the complainant child initiated all the sexual conduct, as being relevant exceptional circumstances that we should take into account to satisfy ourselves that she should be issued with an assessment notice and the negative notice should be set aside.
The CEO says there are no exceptional circumstances and that J's application for review must therefore be dismissed.
Section 12(8) of the Act sets out what we must have regard to in deciding whether or not exceptional circumstances exist. These are as follows:
a)The best interests of children
This criteria re-states s 3 of the Act which says that the best interests of children must be paramount when we exercise any of our functions under the Act. It is clear that this requirement carries more weight than any of the other factors listed in s 12(8). Therefore, as it governs all of our considerations, we will consider the other criteria first:
b)When the offence was committed
The four offences were committed between July 2007 and February 2008. This is fairly recent and, in our view, the offences and J's conviction for them are too recent for them to have any positive effect for J in our consideration of exceptional circumstances.
c)The age of the applicant
J was 34 and 35 at the time of the commission of the offences. She was, for all intents and purposes, a mature adult at that stage and 20 years older than the complainant. Again, this criterion does not have a positive effect for J on our consideration of exceptional circumstances.
d)The nature of the offence and any relevance it has to childrelated work
The offences were serious criminal sexual offences against a child. It is hard to imagine the nature of any other type of offence that could be more relevant to childrelated work. Again, this factor does not operate favourably for J.
e)Any information given by the applicant in relation to the application
We accept that J has been forthright and honest and at all times has sought to assist with respect to providing information regarding the offences and her conduct. However, in our view, this factor does not carry sufficient weight of its own accord to displace the presumptions and assumptions of the Act and the requirement that we consider as a paramount matter, the best interests of children.
f)Anything else that the CEO reasonably considers relevant to the decision
There is nothing before us that we consider to be helpfully relevant to the decision that we make under the Act in relation to exceptional circumstances.
Therefore, we go back to considering the best interests of children. We must, as the Court of Appeal said in Grindrod at [87] rely partly on fact and partly on reasonable suspicion.
Much is made in J's application of her contention, which we accept, that all sexual encounters were instigated by the complainant boy. However, the offences for which J was convicted and ultimately, therefore, the considerations that we should apply under the Act in these proceedings, are based on the presumption in law that all children under 16 are incapable of consenting to sexual activity and that adults must therefore refuse or desist from engaging in sexual conduct with all children under 16. It therefore becomes irrelevant that the child instigates the sexual activity; the law requires that the adult resist. We are not convinced to the civil standard on the balance of probabilities to the extent of Briginshaw, that J unequivocally accepts this presumption. She continues to somehow absolve herself from some part of the blame, no matter how small, by clinging to the view that the complainant's sexual advances were a complete surprise to her and that she was not ultimately therefore responsible for her actions in response. In our view, this reflects on our consideration of whether there is an unacceptable risk of reoffending and whether there are therefore any exceptional circumstances that apply in the case. The exceptional circumstance contended by J is that the complainant initiated the sexual conduct; we are concerned that the unacceptable risk posed by that view is that it could ultimately lead to a diminution of her resolve to never offend again. We are not adequately persuaded that J believes and accepts that she alone is responsible for what happened and that a child the age of the complainant is not necessarily able to process emotions and make proper decisions in the same way that an adult is expected to. J says in her submissions to the CEO:
All of the offences were initiated by the victim. Uninvited and unexpected, he walked into my bedroom late at night after my son had fallen asleep. Due to a great deal of confusion and deep emotional issues I acquiesced to his wishes. I should have said no but at the time I truly felt unable to. As an aside, it has taken much counselling, time and a great deal of personal soul searching and pain to sort through what occurred, and while I know I could never cross that line again, I admit that the healing process is still continuing.
On balance, we accept the CEO's submissions with respect to the matters J puts forward as exceptional circumstances.
Whilst we accept that there was no predatory conduct on J's behalf and no grooming behaviours, she did not reject the complainant's advances. She had a history of blurring boundaries in her relationships with people. We accept that that is a matter that she can work on through counselling, but we are not convinced to the requisite standard that at this point in time J has reached that understanding. At page 212 and page 214 of the bundle of documents, J refers to not being in control of the situation and purports to excuse her behaviour because of a range of her problems 'in conjunction with the behaviour of the victim'.
We are also concerned that Mr Cameron considered that J's offending behaviour arose from her personality and not her mental health. Although the CEO submits that mental health may well have a role to play in criminal sentencing, it is not a relevant factor necessarily in looking at an application to potentially be employed in childrelated work. We accept that J suffers from depression and that she appropriately seeks out treatment for that, within the limits of what she can afford. We commend her for that and encourage her to continue to do what she can to quickly identify the onset of depression and to seek help to manage and overcome its debilitating effects. We remain concerned though that she has not sought sex offender counselling as at the date of hearing and we have not received any submission since hearing that would indicate to us that she has received any sexual offender counselling. We do note in this regard that although Mr Cameron strongly recommended it, there is a dearth of that sort of counselling available in Western Australia for women that is affordable and accessible to people in regional areas.
We accept that J is a 'damaged' person as described by Miller JA in the appeal decision and that she recognises this and is doing what she can to remedy the effects of decades of emotional abuse and neglect. We also accept that the ramifications of her offending, including losing her right to teach and spending time in prison, will have a bearing on her reoffending. But the evidence presents us with a person who, despite constant efforts to move forward, remains somewhat isolated and needy. We are not satisfied, on the balance of probabilities, that J is yet at the point in her life when the need for intimacy and affection might again overwhelm her if presented with unsolicited attention from a boy under 16. This need is deeply embedded in her personality and it will take significant time coupled with enormous determination and professional counselling to overcome it. Her progress will at times be thwarted by the bouts of depression.
We therefore affirm the CEO's decision to refuse to cancel the negative notice. We note that J can reapply in 2012 and it may well be that at that point she will be able to demonstrate to the satisfaction of the CEO that she no longer poses an unacceptable risk to children. However, at this point in time, she is not in a position to be able to satisfy us to the extent required by the Act that the negative notice should be cancelled and that she should be issued with an assessment notice.
Suppression
It is a general principle that proceedings in this Tribunal are open and public. This is enshrined in s 61 of the SAT Act. Section 61(2) allows the Tribunal, on its own initiative, to order that a hearing or any part of it be held in private. Section 61(4) sets out the circumstances applicable when the Tribunal considers holding a hearing in private. Those considerations, by virtue of s 62, also apply to the making of a suppression order. Section 62 of the SAT Act relates to the publication of information from or about a proceeding and allows the Tribunal to order that anything relating to a proceeding should not be published.
This Tribunal does not readily or lightly make suppression orders and the person requesting a suppression order bears a heavy onus to persuade the Tribunal that publication of information relevant to its proceedings should be suppressed or prohibited.
In both Grindrod and Scott, the majority of the Court of Appeal held that the public interest in publication of the respondents' names was more important than the private interests of the parties (see for example Scott [155]). The Court reached this conclusion, although the Tribunal at first instance had suppressed the names.
Prior to commencement of the final hearing in these proceedings, J queried whether s 36A of the Evidence Act 1906 (WA) effectively imposed a prohibition on publication of any matter relevant to these proceedings. She was particularly concerned that nothing be published that could result in the disclosure of the identity of the claimant in the criminal proceedings. The issue was not argued at the hearing and no objection was raised by the CEO. Although we did not hear or receive submissions on it, we have carefully considered whether these reasons for decision should be anonymised in a way that would inhibit the identification of the complainant and whether it is in the public interest and in the interests of justice to make a general suppression order.
It is unclear whether s 36A of the Evidence Act applies to proceedings in this Tribunal, but the intent of that provision is quite clear. It is that nothing should be published which might reasonably be said could identify the victim. For this reason, we have anonymised these reasons for decision and we make a suppression order prohibiting publication of any information from these proceedings that might identify the victim and this by necessity includes publication of the name of the school and of the applicant in these proceedings.
Orders
1.The CEO's decision of 29 April 2009 to not cancel the negative notice issued to J under s 12(6) of the Working with Children (Criminal Record Checking) Act 2004 (WA) is affirmed.
2.J's application is dismissed.
3.Pursuant to s 62 and s 61(4)(c), (g) and (h) of the State Administrative Tribunal Act 2004 (WA) and until further order nothing may be published by any person in any form that might enable the applicant in these proceedings and the complainant in the criminal proceedings or the school to be identified.
I certify that this and the preceding [119] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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