| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) CITATION : LU and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2013] WASAT 69 MEMBER : MR M ALLEN (SENIOR MEMBER) HEARD : 7 MARCH 2012 DELIVERED : 14 MAY 2013 FILE NO/S : VR 177 of 2011 BETWEEN : BOHUA LU Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent
Catchwords: Working with Children (Criminal Record Checking) Act 2004 (WA) Negative notice issued Whether conviction was for a Class 2 offence Whether offence was 'of a kind' to specified Sch 2 offences - Whether offence involved the commission of an indecent act - Whether exceptional circumstances exist Whether unacceptable risk that applicant will cause sexual or physical harm to children in the course of carrying out child-related work Section 12(8) criteria Best interests of children
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Legislation: Criminal Code 1913 (WA), s 322A(3), s 323
Evidence Act 1906 (WA), s 36C
Police Act 1992 (WA), s 54
State Administrative Tribunal Act 2004 (WA), s 31, s 61, s 61(4), s 62
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7, s 8(2), s 12, s 39, Sch 1, Sch 2 Result: Respondent's decision to issue a negative notice is affirmed
Summary of Tribunal's decision: The Tribunal reviewed a decision of the respondent to issue a negative notice to the applicant under the Working with Children (Criminal Record Checking) Act 2004 (WA) because no exceptional circumstances could be identified that would justify the issue of an assessment notice that would permit the applicant to work with children. The applicant had been convicted of an offence, committed in 1998, of indecent dealing with a male between the age of 16 to 21 years, contrary to a provision of the Criminal Code 1913 (WA) that has since been repealed.
The respondent contended, but eventually abandoned, the treatment of the offence as a Class 2 offence because, although it had now been repealed, the offence was 'of a kind' to a current offence set out in Sch 2, which specifies what are Class 2 offences, namely, the offence of sexual assault. The contention was abandoned because the two offences were accepted not to be 'of a kind', because the offence of which the applicant had been convicted did not have, as an essential element, the absence of consent by the victim, whereas the offence of sexual assault did require the absence of consent.
However, the Tribunal accepted the respondent's alternative contention that the offence for which the applicant had been convicted, although a Class 3 offence, did involve the commission of an indecent act, namely, the touching of the complainant's leg accompanied by an invitation to accompany the applicant to his house to have sex. As a consequence, the applicant's application for an assessment notice had to be considered under s 12(6) of the Working with Children (Criminal Record Checking) Act, which required that a negative notice be issued unless the respondent, or the Tribunal on review, considered that the exceptional circumstances of the case justified the issue of an assessment notice.
The Tribunal considered all the circumstances, having regard to the factors set out in s 12(8) of the Working with Children (Criminal Record
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Checking) Act and having the best interests of children as the paramount consideration. Some factors could be seen as favouring the issue of an assessment notice to the applicant, particularly the passage of time since the offence occurred without any reported further conduct of the same kind and the relatively minor nature of the conduct in question. However, the Tribunal concluded that there were no exceptional circumstances sufficient to justify the issue of an assessment notice because the applicant was considered to present an unacceptable risk of future sexual or physical harm to children, in particular, because of his demonstrated inability to understand the inappropriate and harmful nature of his conduct.
The Tribunal concluded that an order should not be made to suppress publication of the applicant's name as no good reason could be identified for doing so.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr P Urquhart
Solicitors:
Applicant : Self-represented
Respondent : Working with Children Screening Unit
Case(s) referred to in decision(s):
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
D and Department for Community Development [2007] WASAT 154
Hardingham and Chief Executive Officer, Department for Child Protection [2010] WASAT 112
L and Chief Executive Officer, Department for Child Protection [2010] WASAT 82(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 In March 2011 the applicant (Mr Lu) applied to the Chief Executive Officer, Department for Child Protection (respondent) for a working with children assessment notice in accordance with the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) so as to permit him to work as a schoolteacher. 2 As required, the respondent made enquiries regarding any criminal record that Mr Lu may have and established that he had two recorded convictions. The first was a conviction for disorderly conduct by the commission of an obscene act committed in February 1990, contrary to s 54 of the Police Act 1992 (WA), as in force at that time (1990 offence). The second conviction was of indecent dealing with a juvenile male between the age of 16 to 21 years committed in October 1998, contrary to s 322A(3) of the Criminal Code 1913 (WA) (Criminal Code), as in force at that time (1998 offence). 3 The respondent invited Mr Lu to make a submission before a final decision was made on his application, and he made such a submission. The respondent considered that the application had to be dealt with in accordance with the provisions of s 12(6) of the WWC Act, which required the issue of a negative notice unless, because of the exceptional circumstances of the case, an assessment notice should be issued. On 7 September 2011 the respondent informed Mr Lu that exceptional circumstances could not be identified and, accordingly, a negative notice was issued. 4 Mr Lu exercised his right to have that decision reviewed by the Tribunal. In the course of mediation proceedings the respondent was invited to reconsider the decision, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in the light of further information to be obtained and Mr Lu submitting to an oral interview with officers of the respondent. 5 After reconsideration, the respondent determined not to alter its decision, and affirmed the original decision to issue a negative notice for the reasons set out in the notice dated 4 January 2012. 6 The application to the Tribunal for review of that decision proceeded to hearing, at which Mr Lu represented himself and gave oral evidence. (Page 5)
Mr P Urquhart represented the respondent. The Tribunal received in evidence the following: • Exhibit A1 - applicant's book of documents; • Exhibit A2 - unreported judgment of the Court of Criminal Appeal of the Supreme Court of Western Australia delivered 18 July 2002; • Exhibit R1 – volume 1 of respondent's book of documents; • Exhibit R2 – volume 2 of respondent's book of documents; • Exhibit R3 - respondent's notice of decision dated 4 January 2012; • Exhibit R4 - book of respondent's references cited in the respondent's notice of decision; and • Exhibit R5 - letter from Chief Assessor of Criminal Injuries Compensation dated 7 February 2012 with attachment. 7 These reasons have been prepared in a way that does not identify the child who was the complainant in the 1998 offence. Section 36C of the Evidence Act 1906 (WA) requires the exclusion of the complainant's name. For the reasons set out below, Mr Lu's name has not been suppressed.
Which subsection of s 12 of the WWC Act is applicable? 8 The scheme of the WWC Act is that applications for a working with children certificate must be dealt with in accordance with s 12, the relevant subsections being (4), (5), (6) and (7). Section 12(4) relevantly provides that, if it is applicable, the respondent must issue an assessment notice, whereas s 12(7) relevantly provides that, if it is applicable, the respondent must issue a negative notice. If s 12(5) applies, then the respondent must issue an assessment notice unless the respondent is satisfied that, because of the particular circumstances of the case, a negative notice should be issued. Section 12(6) relevantly provides that, if that subsection applies, the respondent is to issue a negative notice unless the respondent is satisfied that, because of the exceptional (Page 6)
circumstances of the case, an assessment notice should be issued to the applicant. 9 Section 12(8) of the WWC Act relevantly provides that if s 12(5) or s 12(6) apply, then the respondent is to decide in relation to particular or exceptional circumstances of the case, having regard to the matters set out in s 12(8)(a) to s 12(8)(g) of the Act. 10 The question of which subsection of s 12 of the WWC Act is applicable in any given case is to be determined in accordance with a table set out in s 12(3) (table). The table specifies 11 'conditions' and specifies which of s 12(4), s 12(5), s 12(6) or s 12(7) of the WWC Act is applicable to each condition. The variables contained in the conditions set out in the table relate to the type of the offence in question (Class 1, Class 2 or Class 3), whether the person has a charge pending, and whether the charge resulted in a conviction or a nonconviction. At all relevant times, both Mr Lu's convictions were spent convictions but, by virtue of s 8(2) of the WWC Act, they remain convictions. 11 Class 1 offences are defined in s 7(1) and Sch 1 of the WWC Act and relate to particular sexual offences against young children. The respondent took the view that neither of Mr Lu's convictions fall into that category and I accept that is correct. 12 Class 2 offences are defined in s 7(2) and Sch 2 of the WWC Act, the latter provision specifying a large number of offences against various provisions of a number of statutes, both State and Commonwealth. 13 A Class 3 offence is any offence that is not a Class 1 or Class 2 offence: s 4 of the WWC Act. 14 Neither of Mr Lu's convictions was against provisions of legislation specified in Sch 2. They were therefore Class 3 offences for the purposes of the table unless some other provision applied. 15 The respondent considered that the 1990 offence was a Class 3 offence, but that item 7 of the table applied because, as specified in that item, the respondent 'reasonably believes that in the course of committing the offence the applicant performed an indecent act'. 16 It is unnecessary to consider the facts of this offence further, in particular, whether it involved the commission of an indecent act - because of the view that I take in relation to the 1998 offence, and because the respondent considered that the 1990 offence was not (Page 7)
relevant to the assessment of the application - and did not have regard to the circumstances of that offence in determining Mr Lu's application. I agree with that approach and do not propose to consider the circumstances of the 1990 offence further. 17 In the case of the 1998 offence of indecent dealing, the respondent contended that this should be considered as a Class 2 offence because, although the offence was not listed as one of those specified in Sch 2, s 7(2)(e) of the WWC Act was applicable. This provision extends the scope of the Class 2 offence definition to include: … an offence that, at the time it was committed - … (ii) in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection. 18 As a consequence, whether or not the 1998 offence is a Class 1 offence depends on whether the offence was 'of a kind' to the Class 2 offences specified in Sch 2 of the WWC Act. 19 The facts of the 1998 offence of indecent dealing with a juvenile male were summarised in the notice sent by the respondent to Mr Lu inviting a submission (Exhibit R1, page 261) as follows: On 16 December 1998 the complainant (who was 16 at the time) attended [a metropolitan suburban swimming complex]. The complainant was in the hydro pool when he noticed the accused staring at him. The complainant then left the hydro pool and entered the steam room. The accused followed the complainant into the steam room and began a conversation during which the complainant told the accused that he was 16. The complainant then went into the sauna and was again followed by the accused. The accused asked the complainant if he was a virgin and whether he wanted to come back to the accused's home. The accused then touched the complainant on the leg, moving his hand towards the complainant's groin. The complainant said 'no', pushed the accused away and left the sauna. 20 It is clear that the 1998 offence was committed before the commencement of s 7 of the WWC Act, but the respondent contended that it was an offence 'of a kind' to a Class 2 offence because, had the incident occurred with the current provisions relating to sexual offences in force, the applicant would have been charged with, and convicted of, an indecent assault pursuant to s 323 of the Criminal Code, a crime that is committed by a person who 'unlawfully and indecently assaults another person'. (Page 8)
An offence against s 323 of the Criminal Codeis an offence specified as a Class 2 offence in Sch 2 of the WWC Act. 21 The respondent submitted that, on this basis, the 1998 offence was a Class 2 offence and, accordingly, item 9 of the table is applicable; and the application was to be dealt with in accordance with s 12(6) of the WWC Act. 22 In the alternative, it was submitted on behalf of the respondent that the 1998 offence was a Class 3 offence that involved the performance of an indecent act and item 7 of the table was applicable, which also required the application to be dealt with in accordance with s 12(6) of the WWC Act. 23 At the hearing, Mr Urqhuart initially maintained the submission that the 1998 offence was a Class 2 offence because it was of a kind with the offence of indecent assault under s 323 of the Criminal Code. Ultimately, however, this submission was abandoned because it was conceded that a charge under the now repealed s 322A(3) of theCriminal Codewas not 'of the same kind' as a charge of indecent assault under s 323 of the Criminal Code, because the former does not have as an element of it a requirement that there be an absence of consent, whereas the latter offence is one that has as an essential element the absence of consent. 24 I consider that concession to have been properly made and I find that the 1998 offence was not a Class 2 offence. I am satisfied, however, that item 7 of the table is applicable because the 1998 offence was a Class 3 offence (because it was neither a Class 1 nor a Class 2 offence) and the respondent had (and the Tribunal on review has) reasonable grounds to believe that in the course of committing that offence, Mr Lu performed an indecent act. I have reached that conclusion for the following reasons. 25 After his trial and conviction in the District Court, Mr Lu sought an extension of time in which to appeal that conviction to the Court of Criminal Appeal. In July 2002 that Court (Parker, Templeman and Miller JJ) concluded that there appeared to have been some inconsistencies in the testimony of the complainant at various times, and in the accounts given by him to persons to whom he complained, as to exactly where and how he was touched, and that the trial judge's direction to the jury had shortcomings in that it did not indicate the use to which a prior inconsistent statement, if found to be inconsistent, should be put by the jury. To that extent the trial judge's directions were inadequate, (Page 9)
but the Court considered that there was no miscarriage of justice from the trial process because Mr Lu had conceded in a video record of interview with police that there had been a touching by him of the complainant's legs and that there was a sexual suggestion accompanying it. Accordingly, the real issue for the jury was whether there had been an indecent dealing, and it was open on all the evidence for the jury to reach the verdict that it did. The trial judge's directions on this point were appropriate. 26 The trial judge observed, when sentencing Mr Lu, that it was clear from the evidence that the conduct the subject of the charge, including the physical touching on the upper thigh, in the course of inviting the complainant to his home with the intention of having sex, was indecent. 27 The table in s 12(3) was introduced by amendments to the WWC Act that commenced on 6 October 2010. The expression 'indecent act' is not defined. The Explanatory Memorandum relating to the amendment stated that: The intention is that the term 'indecent' will be interpreted in its ordinary context as meaning anything that is unbecoming or offensive to ordinary standards of propriety prevailing at the relevant time. The provision is intended to apply where sexual behaviour is not an element of the offence, but it is clear from the facts of the offence that the person has performed an indecent act that causes concern. 28 I do not accept Mr Lu's contention at the hearing that he had not committed an indecent act because he had not touched the complainant's genitals. I am satisfied, as it seems was the jury and the trial judge, that the touching of the complainant, when inviting him to come to the applicant's house with the intention of having sex, did involve an indecent act in the course of committing the 1998 offence. The consequence is that iem 7 of the Table applies, which in turn means that the application has to be determined in accordance with s 12(6). As noted above, this requires the issue of a negative notice unless the respondent, or the Tribunal on review, can be satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued. 29 Having reached that conclusion, the task for the Tribunal is to consider whether, on all the information and material before the Tribunal, I can be satisfied that there are exceptional circumstances that warrant a decision to issue an assessment notice. In undertaking that assessment (Page 10)
I must have regard to all of the criteria in s 12(8) of the WWC Act and, in particular, to the best interests of children (s 12(8)(a) and s 3).
Exceptional circumstances 30 What constitutes exceptional circumstances in this context has been considered by the Tribunal on several occasions. In D and Department for Community Development [2007] WASAT 154 (D and Department for Community Development), Deputy President Judge Chaney (as his Honour then was) discussed the meaning of 'exceptional' under the WWC Act, at [19] - [22], as follows: The Act does not define 'exceptional circumstances'. The Australian Concise Oxford Dictionary (2nd ed), Oxford University Press, Melbourne, 1992 defines exceptional as 'forming an exception; unusual; not typical'. In Baker v The Queen(2004) 223 CLR 513 at 573 [173], Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198 at 208 to the expression 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said: 'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.' In Ho v Professional Services Review Committee No 295[2007] FCA 388 at [26], Rares J after referring to the observations of Griffiths v R(1989) 167 CLR 372 at 379 by Brennan and Dawson JJ that 'although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances', said: 'Exceptional circumstances within the meaning of s 106KA(2) [of the Health Insurance Act 1973 (Cth)] can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional … It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen (Page 11)
as producing a situation which is out of the ordinary course, unusual, special or uncommon.' Although those observations were made in the context of different statutory provisions, they are, in my view, equally applicable to the expression as it appears in the Act. The circumstances enumerated in s 12(8)(b), (c) and (d) are unlikely, by themselves, to be capable of categorisation as 'exceptional'. Section 12(8) must, therefore, contemplate that the circumstances enumerated in the subsection will be considered in combination to determine whether they might be regarded as exceptional. 31 His Honour's views were adopted by Deputy President Judge Pritchard (as her Honour then was) in L and Chief Executive Officer, Department for Child Protection [2010] WASAT 82 (L and Chief Executive Officer) at [50]. At [51], her Honour stated (references not cited): Whether exceptional circumstances exist is to be assessed having regard to the criteria in s 12(8) of the WWC Act. Although the respondent (and the Tribunal) must give separated consideration to each of the factors in paras (a) - (f) of s 12(8), each factor is not of equal significance in the overall evaluative exercise which the respondent is required to perform. The best interests of children in s 12(8)(a) is the paramount consideration; s 3 of the WWC Act. As a result, if a factor in s 12(8) is inconsistent with the best interests of children, the relevant factor in s 12(8)(b) - (f) must give way. The weight to be given to the factors in (b) - (f) will depend on all the facts and circumstances of the case. In some cases, some of the factors in (b) - (f) may be of little practical significance, when compared with the paramount consideration of the best interests of children.
Unacceptable risk of future sexual or physical harm to children 32 It is implicit in the purpose and scheme of the WWC Act that the risk of harm to children is relevant to determining whether an assessment notice should or should not be issued: see Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 at [19] - [21] per McLure JA, and L and Department for Child Protectionat [20]. 33 The risk has been described as an 'unacceptable risk' that an applicant might cause sexual or physical harm to children in the course of carrying out child-related work - assessed having regard to all the information and other material properly available, and in the light of the factors set out in s 3 and s 12(8) of the WWC Act. The risk has to be unacceptable, not likely: see Chief Executive Officer, Department for Child Protection v (Page 12)
Grindrod [No 2][2008] WASCA 28 at [81] - [87] per Buss JA (with whom Wheeler JA agreed) and L and Department for Child Protectionat [21].
Assessment of 'exceptional circumstances' in light of the factors in s 12(8) and s 3 of the WWC Act 34 I deal first with the factors set out in s 12(8)(b) to s 12(8)(f) of the WWC Act.
Section 12(8)(b): When the offence was committed 35 It was not in dispute between the parties that a considerable period of time has passed since the commission of the 1998 offence and that the applicant has not been charged with any other offences since that time, notwithstanding that he has had some employment as a schoolteacher at various times. 36 Consideration of the significance of the passage of considerable time since an offence was committed requires reference to s 12(8)(e), a provision that was inserted into the WWC Act with effect from 6 October 2010. During the second reading of the Bill that inserted this provision, the following was stated in relation to the provision: It is the government's intention that, even when an offence against a young person took place many years ago, the passage of time without further charges or convictions will not be sufficient to issue an assessment notice if a repetition of that type of behaviour would result in significant harm to a child. This government views the risk that these people pose to children is unacceptable. Time without offending is a major component of psychological actuarial tools, which provide statistical profiles developed for decisions including sentencing and parole of sexual offenders. However[,] statistical profiles are not sufficient bases for decisions that allow specific offenders to work with children. There are severe consequences should a known offender who may fit a 'low risk profile' go on to harm a child. The risk is unacceptable. (Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010 (AJ Simpson, Parliamentary Secretary)) 37 In my view, the passage of a lengthy period of time without further offending is a factor that is significant and favourable to Mr Lu in any assessment of the risk that he may pose to children. However, it does not, of itself, constitute an exceptional circumstance that would justify the issuing of an assessment notice. It is one factor to be taken into account with all the other factors. (Page 13)
Section 12(8)(c): The age of the applicant when the offence was committed 38 Mr Lu was 38 years of age at the time of the 1998 offence, 22 years older than the complainant, whom he knew was still attending school at the time of the offence. Mr Lu was therefore clearly not a young man at the time of the offence. The applicant has, at various stages, argued that he thought the complainant was older than 16 years of age at the time, and said in his oral evidence that the complainant did not seem immature, as he was taller than the applicant. Mr Lu's evidence as to why he thought the complainant may have been older than 16 years of age was confused and, at times, inconsistent. By his own admission, Mr Lu knew that the complainant was in Year 11 at school and, although at times he argued that the complainant had said he was repeating Year 11 (which was not true), I am satisfied that the applicant knew that the complainant was approximately 16 years of age. 39 Further, and more importantly, the trial judge (who had observed the complainant whilst he gave evidence) in his sentencing remarks stated that 'it was obvious, that he was a young boy of 16, and having observed him in the witness box he would have been two years ago far more mature [sic] than he even appeared in the witness box and anyone would have seen that he was an immature young man …'. (Exhibit R1, page 254) 40 In my view, the disparity between the ages and levels of maturity of Mr Lu and the complainant is a factor that counts against the applicant in this matter and could not be regarded as an exceptional circumstance that might justify the granting of an assessment notice.
Section 12(8)(d): The nature of the offence and its relevance to child-related work 41 Mr Lu contended that the offence was not related to child-related work as it occurred in a public venue with other people around and not in any kind of school or learning environment. He also insisted that he had only touched the hairs on the complainant's leg and had not stroked the leg. As noted above, there were inconsistencies in the various statements made by the complainant as to where he had been touched, and in what the complainant had told other people about the precise nature of the touching. 42 The Court of Criminal Appeal noted that at the trial, Mr Lu's counsel, in cross-examination of the complainant, had made a concession that there had been a touching on the upper thigh area, and that any inconsistencies in the complainant's testimony were minor and were directed only to the (Page 14)
question of where the touching occurred, and perhaps to the precise location where it occurred. On the other hand, in his record of interview with police, Mr Lu conceded that he had touched the complainant in the calf area and by way of pulling his hair. He also admitted, in his record of interview and his oral evidence, that he had touched the complainant with a sexual intention and had invited him to go to Mr Lu's house for sex. 43 As Miller J noted (Exhibit A2, page 8), the evidence against Mr Lu was very strong that there was a touching and that it was accompanied by indecency. Templeman J noted (Exhibit A2, page 10) there was an admitted touching, and it was a matter for the jury to decide whether or not, having regard to normal prevailing community standards, that was indecent. They were satisfied beyond reasonable doubt of that, and there was clear evidence on which it was open to the jury to reach that conclusion. 44 The respondent contended that indecent dealing and offences that involve the commission of indecent acts are considered highly relevant to child-related work, but acknowledged that the 1998 offence has been repealed, and that the physical contact itself might appear relatively minor and occurred without any suggestion of any violent or threatening behaviour by Mr Lu. Nevertheless, it was apparent, as noted by the trial judge, the touching was not consented to and caused distress to the complainant. 45 In my view, the behaviour in the 1998 offence was a serious lack of judgment, at least on Mr Lu's part. It involved a conscious touching of a youth of school age with the intention of having him accompany Mr Lu to his house for sex. It is relevant to child-related work and to the consideration of any future risk to children, notwithstanding, that the particular offence has since been repealed and the physical contact was relatively minor. In the assessment of whether there are exceptional circumstances that would justify the issuing of an assessment notice to Mr Lu, these factors must count against him.
Section 12(8)(e): The effect of the same or similar conduct by the applicant in relation to a child 46 Mr Lu contended that he had never committed this type of act again and he would not do so in future. He said he did not know what effect actions of this kind would have on a child. 47 The respondent noted that the trial judge had stated that: (Page 15)
… it is clear that it had an effect upon [the complainant], based upon the evidence of the man who ran the centre who was an experienced person in viewing people and was aware of the fact immediately that something had happened which caused this young boy to be shocked and very upset. Anyone in the community will know that that sort of situation has an effect and sometimes longstanding … 48 I agree with the respondent's contention (paragraph 113 of the respondent's statement of issues, facts and contentions) that the impact of unwanted sexual interest from an adult on a boy in his teens should not be underestimated. In this case, the complainant was able to stop the advances and disclosed them immediately to other people, but not all children may have the capacity to reject such advances, and delay of sexual abuse disclosures is common. I also agree with the respondent's contention that the harm caused by the conduct was serious and would be equally serious if it occurred against a child today. It follows that this factor counts significantly against Mr Lu in relation to whether there are any exceptional circumstances that might justify the granting of an assessment notice.
Section 12(8)(f): Any information given by the applicant in, or in relation to, the application 49 I have carefully considered the material provided by Mr Lu at various stages of the proceeding, including an oral submission to the respondent (Exhibit R2, pages 302 - 324), a written submission (Exhibit R2, pages 262 - 291), various references and submissions (Exhibit A1), as well as his submissions at the hearing. His main points, not already considered above within other factors in s 12(8), can be summarised as follows: • The 1998 offence provision has now been repealed, so that he would not be charged with any offence for the same conduct today. I do not accept this contention, as the absence of the complainant's consent, which seems quite apparent, might well result in an indecent assault charge today. • Mr Lu has raised issues about the consistency of the statements made by the complainant and others, notwithstanding the concession of his counsel at the trial. None of these matters, in my view, alter the essential character of Mr Lu's behaviour towards the complainant and the indecency of his actions. (Page 16)
• Mr Lu has been able to work as a teacher with children at various times, including obtaining registration with the registration body for teachers, despite making that body aware of his convictions, and his references, some from persons who are aware of his convictions, testify to his ability as a teacher, his good character and his trustworthiness with children. Mr Lu also noted that his inability to work as a teacher would result in hardship to him. I have no reason to doubt Mr Lu's abilities as a teacher and that he has performed well in that role, as testified by his referees. As noted above, the fact that Mr Lu has been able to work with children for some periods without incident during the relatively long period since the 1998 offence is a factor that counts in his favour in the overall assessment of risk and the best interests of children.
Section 12(8)(f): Anything else that the respondent reasonably considers relevant to the decision 50 Neither the applicant nor the respondent raised any particular matters that should be taken into account under this heading, and I am satisfied that all the material raised by the parties has been addressed under other headings above and in the section below relating to the best interests of children.Sections 12(8)(a) and 3: The best interests of children 51 Although separate consideration must be given to all the factors set out in s 12(8), they are not all of equal significance. By reason of s 3, the Tribunal is to regard the best interests of children as the paramount consideration, and must prevail in any conflict with any of the other considerations in the evaluative exercise. In conducting that evaluative exercise, I bear in mind that in a case such as this, where s 12(6) of the WWC Act is applicable, the applicant is to be issued a negative notice unless there are exceptional circumstances that justify the issue of an assessment notice. 52 In the present case, the factors that provide support for Mr Lu's application include that the offence of which he was convicted has since been repealed and that a considerable period of time has passed since that offence was committed without any reported repetition of such conduct, notwithstanding that Mr Lu has at times been in employment with children. (Page 17)
53 However, having regard to all the material before me, I have concluded that Mr Lu does represent an unacceptable risk of harm to children and there are no sufficient exceptional circumstances that would justify issuing an assessment notice to him. My reasons for reaching that conclusion are as follows: a) Despite the passage of time since the 1998 offence, and despite the apparent adverse effect that conviction has had on Mr Lu's ability to work in his field as a teacher, Mr Lu was quite unconvincing in his efforts to explain his current attitude to the behaviour that led to his conviction and why such behaviour should be seen as inappropriate. He continues to maintain that he should never have been charged, and was wrongly convicted. He maintained at the hearing, after some inconsistency about who started the conversation - him or the complainant - that it was the complainant who first spoke to him and that, in fact, the complainant first approached him and gave him 'the look' or 'gave him the eye'. These phrases were used by Mr Lu to assert that the complainant was, in fact, interested in him and that he recognised the complainant as being homosexual at the time, and that this was confirmed several years later by Mr Lu claiming to have seen the complainant at a particular place. I do not accept Mr Lu's evidence in this regard - but even if it were true, it would not alter the nature of his indecent touching of the complainant. b) Mr Lu had great difficulty in explaining whether, and why, his actions towards the complainant were inappropriate then, and would be inappropriate now. He said that he accepted that touching another person would be inappropriate if the other person objected, but he claimed that the complainant did not object (until after some considerable time) and had no reason to object. Mr Lu indicated that he continues to expect rejection of unwanted advances and appeared not to have any grasp of the notion that a young person may not be able to object to advances from an older person for all sorts of reasons, including distress or confusion. Despite his experience of working with children, his presentation at the hearing suggested that he failed to appreciate the lesser cognitive and emotional development of young people that may prevent them from responding to unwanted attention in a way that a mature adult may. (Page 18)
c) In the light of all the evidence presented at the trial against Mr Lu, the very best that can be said is that he completely misunderstood or misread the situation involving the complainant. It is the fact, however, that as a mature adult, he touched a young person in a suggestive way, with the intention of inducing that person to accompany him to his house for sex, and that he persisted in his attentions to the complainant for some time in that attempt, and in so doing, caused considerable distress. It might be a quite different matter now if Mr Lu could frankly acknowledge the inappropriateness of that conduct and argue that he would not repeat it. Instead, his priority in these proceedings was to assert that his conduct was not wrong at the time, that the complainant had no good grounds to be afraid of him and, in fact, had, at least to some extent, initiated the contact, and that the complainant and others involved in the case had lied about the events. d) By attempting to divert responsibility for the conviction to others, Mr Lu demonstrates, in my opinion, that he lacks any real degree of insight into the nature of the offending behaviour and his responsibility for it, nor does he appreciate the harm that behaviour of that kind can do, and obviously did, to the complainant. e) The precautionary approach adopted by the WWC Act does not involve a balancing of the risk of harm to young people against the civil and economic rights of an adult, nor is there any punitive or disciplinary purpose involved. The benefit to young people comes from protecting them from potential harm. In my view, by demonstrating clearly his lack of insight into the harm that may be caused by actions such as these, and by his actions to deflect responsibility on to others, Mr Lu continues to represent a potential harm to young people. 54 As I have noted, some factors support Mr Lu's claim to an assessment notice. However, having examined and weighed all the factors in s 12(8) of the WWC Act, and having the best interests of children as my paramount consideration, I conclude that there would be an unacceptable risk to children if Mr Lu were to be permitted to work with children by way of the issue of an assessment notice and that there are no exceptional circumstances that would lead me to conclude that a negative notice should not be issued to Mr Lu. That being the case, (Page 19)
and because s 12(6) of the WWC Act requires the issue of a negative notice if no such exceptional circumstances apply, the correct and preferable decision on the review is to affirm the decision of the respondent to issue a negative notice to Mr Lu.
Should Mr Lu's name be published? 55 During preliminary hearings in the Tribunal Mr Lu sought an order that his name not be published, and the respondent indicated at that time that such an order was neither opposed nor consented to. In the event no such order was made but, at the hearing, Mr Lu again sought such an order. His stated reasons were only that he did not want his name again associated with the conviction, but he acknowledged that there had been no suppression of his name in the District Court trial or in the later appeal to the Court of Criminal Appeal. 56 At the hearing and in later written submissions the respondent stated that the position of not opposing or consenting to such an order was maintained and that this position was based on an inability to identify any factors that would justify such non-publication. The non-publication would be supported if it would assist in the non-identification of a child, but that is not the case here. 57 Section 39 of the WWC Act imposes certain obligations of confidentiality on persons performing functions under that Act, except in certain limited circumstances. That section has not been regarded, in matters in the Tribunal, as requiring that the names of all applicants involved in reviews in the Tribunal under the WWC Act be suppressed from publication. Rather, for the reasons set out in Hardingham and Chief Executive Officer, Department for Child Protection [2010] WASAT 112 at [108] - [111], the approach has been that a review of a decision under the WWC Act 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 that should be departed from only in exceptional cases. Any decision to order non-publication of the applicant's name should be made in the usual way on a case-by-case basis under s 62, having regard to the matters referred to in s 61(4) of the SAT Act. 58 Embarrassment, disadvantage or distress resulting from publication of a name has not been regarded as sufficient reason to depart from the general principle of open justice. (Page 20)
59 Clearly, publication of the applicant's name would not be appropriate if it could identify the complainant, but that is not the case. There is no information of a confidential nature involved as regards the applicant's identity. In the District Court and in the Court of Criminal Appeal there was no restriction on publication of the applicant's name. The applicant has not identified any particular reason why his name should not be published other than his desire that that be so. 60 In these circumstances, I see no reason to depart from the usual practice of the Tribunal. An order that the applicant's name should not be published will not be made.
Orders |