S and Chief Executive Officer, Department for Community Development
[2007] WASAT 222
•30 AUGUST 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: S and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 222
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
HEARD: 9 AUGUST 2007
DELIVERED : 30 AUGUST 2007
FILE NO/S: VR 95 of 2007
BETWEEN: S
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT
Respondent
Catchwords:
Children Working with children Previous convictions 26 years and 30 years earlier Convictions relevant to working with children Whether previous particular circumstances of case required issue of negative notice Applicant involved continuously with coaching children in athletics since time of convictions No suggestion of inappropriate conduct in that period Tribunal not able to go behind convictions where wrongful convictions asserted Best interests of children paramount Whether applicant poses any appreciable risk to children.
Legislation:
Working With Children (Criminal Record Checking) Act 2004 (WA), s 3, s 6, s 7, s 9, s 12
Result:
CEO's decision set aside. Assessment notice issued.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr P Dixon
Solicitors:
Applicant: Self-represented
Respondent: Department for Community Development
Case(s) referred to in decision(s):
C and Chief Executive Officer Department for Community Development [2007] WASAT 116
D and the Department for Community Development [2007] WASAT 154
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant received a negative notice under the Working With Children (Criminal Record Checking) Act 2004 (WA) on 27 April 2007. The effect of the notice was to prevent him carrying out child‑related work. The reason for the notice was that the Chief Executive Officer of the Department for Community Development considered that summary convictions against the applicant in 1977 and 1981 constituted circumstances which should result in the issue of a negative notice.
The applicant was, until receipt of the notice, engaged in training young athletes. He had been engaged in that activity since around 1980. Training young athletes has been the focus of his life for in excess of 25 years. He has achieved a degree of success and holds relatively high qualifications as an athletic coach. There is no suggestion of any inappropriate conduct since the incident the subject of the conviction in 1981. Because the applicant wished to continue with his athletics training, he applied to the Tribunal for a review of the decision to issue a negative notice.
The Tribunal examined the convictions against the applicant and considered their relevance to child‑related employment. It concluded that the convictions were relevant to child‑related employment. The Tribunal also considered the fact that a period of 26 years has passed since the most recent conviction, and the applicant enjoyed strong support from those associated with his athletics club for his continued involvement in training young athletes. It concluded that, in the particular circumstances, a negative notice should not issue because it did not consider that children were likely to be at risk from continued contact with the applicant.
The issue
The issue for determination in these proceedings is whether, in light of certain convictions against the applicant, whom I will refer to as S, the Tribunal is satisfied that because of the particular circumstances of the case, a negative notice should be issued to the applicant. For the purposes of the Working With Children (Criminal Record Checking) Act 2004 (WA) (the Act), the effect of a negative notice would be to prohibit S from undertaking "child‑related work" and in particular to prevent him continuing with his main interest and pastime of coaching young athletes.
The operation of the Act
The relevant provisions of the Act came into operation on 1 January 2006. The objectives of the Act described in the long title are:
•to provide for procedures for checking the criminal record for people who carry out, or propose to carry out, child‑related work;
•to prohibit people who have been charged with or convicted of certain offences from carrying out child‑related work, and
•to provide for related matters.
"Child‑related work" is defined by s 6, relevantly for present purposes, as work, the usual duties of which involve, or are likely to involve, contact with a child in connection with "a coaching or private tuition service of any kind". It also includes work which involves, or is likely to involve, contact with a child in connection with a club or association with significant membership or involvement of children – s 6(1)(a)(iv) and (xii).
Section 9 enables a person to apply for an assessment notice. By s 12, the CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
Section 7 defines what is referred to as a "class 1 offence" and a "class 2 offence". The types of offences constituting class 1 and class 2 offences are listed in schedule 1 and schedule 2 of the Act respectively.
Upon undertaking a criminal record check, s 12 directs the CEO as to the course of action to be taken in the light of what that check reveals. The alternative possibilities are dealt with in subsections (2) through to (7) which provide as follows:
"12.
…
(2)The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3)If the CEO is not aware of ¾
(a)any offence of which the applicant has been convicted; or
(b)any offence (other than an offence that is neither a Class 1 offence nor a Class 2 offence) with which the applicant has been charged,
the CEO is to issue an assessment notice to the applicant.
(4)If the CEO ¾
(a)is not aware of any offence of which the applicant has been convicted; and
(b)is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(5)If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6)If the CEO ¾
(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.
(7)If the CEO is aware of a Class 1 offence (other than a Class 1 offence committed by the applicant when a child) of which the applicant has been convicted, the CEO is to issue a negative notice to the applicant.
…"
In the present case, it is common ground that the criminal record check for S revealed offences which do not come within the categories described as either class 1 offences or class 2 offences. Accordingly, the relevant subsection under which the CEO was required to deal with S's application was s 12(5). That is, the CEO was directed to issue an assessment notice to the applicant unless he was satisfied that, because of particular circumstances of that case, a negative notice should be issued to the applicant.
Section 12(8) of the Act provides guidance as to the matters to which the CEO is to have regard in considering the particular circumstances of the case. That subsection provides that the CEO is to have 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."
Section 3 of the Act provides that, in performing a function under the Act, the CEO or this Tribunal "is to regard the best interests of children as the paramount consideration." As was observed by Barker J in C and Chief Executive Officer Department for Community Development [2007] WASAT 116 at [45] nothing in s 12(8) qualifies the principles set out in s 3 of the Act so that, whilst "the best interests of children" is enumerated as one of the factors to be considered, apparently ranking equally with the other factors mentioned, it must be borne in mind that the overriding consideration of the paramount interests of children remains.
The consequences of receiving a negative notice are serious. A negative notice makes it an offence for a person to be employed in child‑related employment or carry on a child‑related business. An assessment notice is a prerequisite to employment in child‑related employment or business. Both child‑related employment and child‑related businesses are concerned with "child‑related work". The breadth of definition of child‑related work, namely work "the usual duties of which involve or are likely to involve contact with a child" means that the absence of an assessment notice precludes a person from a wide range of employment or voluntary undertakings.
The CEO's decision
The initial criminal record check for S revealed that he had been convicted of three offences. Two of those convictions occurred on 7 April 1977 for offences of wilful exposure and stealing. The third was a conviction on 30 December 1981 for aggravated assault where the complainant was a 7‑year‑old female. In relation to the 1977 offences, S was ordered to serve a period of 12 months' probation and ordered to pay costs of $3.50. In relation to the stealing charge he was fined $20 with 50 cents costs. In respect of the aggravated assault conviction in 1981, he was placed on a good behaviour bond of $300 for a period of 12 months, and ordered to abstain from alcohol. None of those offences comes within Schedule 1 or Schedule 2 of the Act.
On the basis of those convictions, the CEO identified the following particular circumstances in support of his decision to issue a negative notice. They were:
"•You[r] criminal record includes convictions for the offences of wilful exposure, aggravated assault and stealing.
•You were convicted of an Aggravated Assault of a sexual nature on a 7 year old girl. The offence was committed in the presence of other children.
•You were over 38 years of age and the victim was 7 years of age at the time of the offence being committed. This is considered to be a significant age difference.
•You have displayed behaviour of a sexually deviant nature on more than one occasion, namely your conviction for wilful exposure,
•No evidence has been provided that you have taken action to address your sexually inappropriate behaviour or any associated problems, for example, your identified problematic alcohol use."
After an application for review of the CEO's decision was lodged, further enquiries were undertaken by the CEO. Those enquiries were directed to obtaining more information concerning the circumstances of the offences. Those enquiries revealed that, between the ages of 20 and 23, S was convicted on three occasions in NSW of offensive behaviour. According to a probation service pre‑sentence report prepared in relation to the 1981 offences, S told the probation officer that "these offences involve 'peeping' and occurred whilst he was drunk". Little more is revealed from the available papers concerning the circumstances of those offences for which convictions were entered in August 1963, July 1964 and April 1966 in the Newcastle Court of Petty Sessions.
Enquiries by the CEO located a document entitled "Apprehension Information", apparently prepared by one of the arresting officers involved in the 1977 conviction. In the section marked "Method of Operation" the document sets out the alleged facts of the incident. It reads:
"At about 4.40 pm on Friday 18/3/77, acting upon complaint received police attended at 463 Beaufort Street Highgate. The complainant was interviewed and stated that a male person had exposed and masturbated himself down a lane behind his premises in full view of several persons. The offender had decamped when challenged by complainant. A search of the area resulted in the offender being apprehended. Upon questioning by police, the offender admitted to having exposed himself but stated that he was sick and needed treatment from a doctor.
When questioned further, the offender produced two pairs of ladies panties and stated that he had taken them off a clothesline but could not remember where he had actually taken them from."
It is probable that that account of the facts represented the prosecutor's account of facts to support the changes. S apparently pleaded guilty to these charges.
In respect of the 1981 conviction, apprehension information was also obtained. There, the arresting officer set out the following in relation to "method of operation".
"In the early hours of the morning of 27 July 1981, the accused was at a party at 5 Riggs Place Parmelia where several adults and children were also present. At about 4 am the accused went into a bedroom where two young girls and a boy were sleeping with the intention of also going to sleep on the floor. After being in the room for a short time the accused became sexually aroused and placed his hand underneath the bedclothing and fondled the complainant on the vagina. After doing this the accused then went to sleep on the floor. The complainant in this case is a 7‑year‑old female.
When interviewed by police, the accused readily admitted the offence and in explanation said that he had lost control of his actions because he had been drinking and was ashamed of what he had done. The accused stated that he would be personally seeking medical treatment."
It is apparent that the applicant pleaded not guilty to the 1981 complaint but was ultimately convicted.
The applicant's contentions
S had little recollection of the NSW convictions, or of the circumstances which led to them.
In respect of the 1977 and 1981 convictions, S contended that he was wrongly convicted, notwithstanding his plea of guilty to the 1977 convictions.
He contended that he was in fact urinating rather than masturbating when observed by the complainant. He said that he had been at a hotel with friends and had become quite drunk. He needed to go to the toilet and simply chose the laneway for that purpose. In relation to the ladies panties, he said that he learnt, some six months after his conviction, that his friends had placed the panties in his jacket pocket as a joke. He denied that he had stolen them from a clothesline, or that he had told police that he had acquired them in that manner.
As I explained to the applicant at the hearing, it is not now open for the Tribunal to go behind the convictions. There are several reasons why that is the case, but the most obvious is that the Act is based on the proposition that it is the act of conviction which leads to the consequences spelt out in the Act. Neither the CEO nor the Tribunal is in a position to rehear cases to determine whether or not convictions were correctly entered.
It is, however, open to the Tribunal to consider the surrounding circumstances of an offence, if those circumstances are relevant to the appropriate exercise of discretion under s 12.
I do not accept S's account of the circumstances of the 1977 offences. It is inconsistent with what he had apparently said on previous occasions. For example, in a pre-sentence report prepared in relation to the 1981 offences, reference is made to the 1977 convictions and the following appears:
"Similarly, S claims that the obscene and wilful exposure conviction also occurred when he was drunk and related to him masturbating in a laneway. S admits to having had difficulties in the past in controlling his level of intake, but claims (and his wife confirms) that in recent years he has, for the main part, kept his drinking within reasonable limits."
It is apparent that, prior to the conviction being entered on the 1977 convictions, S attended a psychiatrist at the Department of Corrections. In the psychiatrist's report dated 1 April 1977 the following is reported:
"He acknowledged three convictions for offensive behaviour at ages 18 to 21 and a further conviction six years later for damaging property (he disputed the malicious injury recorded in your referral). Now, six years later, he has been convicted again of an offence suggesting a minor form of sexual deviation. In fact, he claims that this is quite out of character for him and he cannot explain it except on the ground that he was very drunk and didn't know what he was doing."
In another file note, dated 21 March 1977, apparently prepared within the offices of the probation service, the following is recorded:
"S stated that the offences occurred at Highgate at night. He has no recollection of what happened as he was under the influence of alcohol. S does not deny committing the offences."
Although S said that he only learnt much later of the fact that the ladies panties had been placed in his pocket, the contemporaneous records which have been located by the CEO support the proposition that the circumstances surrounding the offences in 1977 were substantially in accordance with the facts recited in the apprehension information.
In relation to the 1981 conviction, S strongly denied at the hearing that he touched the complainant in the manner alleged or at all. He stated that, until the conviction emerged in the context of his application for an assessment notice, he believed that he had not been convicted of the 1981 offence. He said that, during the course of her evidence, the complainant said that he had not touched her, but changed her evidence after prompting from her mother. He said that the magistrate chastised the detectives who gave evidence at the hearing, telling one of them that he had perjured himself. He believed the charges to have been thrown out. He also asserted that he had been approached by the intoxicated mother of the complainant during the evening and that she had requested sex with him which he turned down "in no uncertain manner". The inference of his evidence was that he had been "set up" by the complainant's mother because of her anger at the rejection.
Again, the Tribunal cannot go behind the fact of conviction. The conviction was for aggravated assault and it can only have been that, after trial, the applicant was found to have assaulted the complainant, a 7‑year‑old girl, in some manner.
The pre‑sentence report in relation to the 1981 conviction records:
"S's account of the offence is somewhat contradictory. On the one hand he claims that on the night of the offences he was inebriated to such an extent that he cannot recall anything that happened, yet despite this he is strongly adamant that he is innocent of the offence."
Later in the report it is said:
"As indicated, S maintains that he is innocent of the charge although he claims that he cannot remember anything that occurred on the night of the offence. Despite this, his history shows several prior episodes of offending involving unlawful sexual behaviour, which on S's admission, has followed from heavy drinking. S plays down the extent of his drinking, although he does acknowledge that all of his previous offences are directly related to alcohol."
Against that background, it is necessary to proceed on the assumption that the account of the facts contained in the "apprehension information" in relation to the 1981 conviction is an accurate account of the circumstances of the offence. S's denials now are inconsistent with what he apparently told others shortly after the offence, namely that he was so drunk that he had no recollection of events.
Of far more force is S's submission that the fact that these convictions occurred so long ago, and that in the meantime he has coached young athletes continuously and without incident. His evidence is that he now rarely drinks alcohol and leads a much more stable life. He submits that that long period of contact with children demonstrates that he poses no appreciable risk to children. Indeed, he argues, it is positively in the interests of the young athletes whom he coaches that they continue to have the benefit of his skill and experience.
The particular circumstances under s 12(8)
Section 12(8) of the Act, set out above, identifies matters to which the Tribunal must have regard for the purposes of considering the particular circumstances of the case in connection with the exercise of discretion under s 12(5). Because, of all the factors, the best interests of children is the paramount consideration, it is convenient to deal with that factor after reviewing the other matters to which s 12(8) refers.
The date of the offence
It is a significant factor in this application that the most recent offence occurred more than 26 years ago. There is no suggestion of any conviction nor indeed of any inappropriate conduct since that time, notwithstanding that S has been constantly involved in training young athletes throughout that period.
The age of the applicant when the offences were committed
When the most recent offence occurred, the applicant was 38 years of age. At the time of the 1997 offences he was 34 years old. It follows that the circumstances of the offences are not mitigated by any suggestion of immature folly. The offences occurred at a time when S was a mature adult who should have been fully responsible for his actions.
Nature and relevance of the offence
It is this consideration which the CEO, in making his decision to issue a negative notice, was undoubtedly heavily influenced. The 1981 conviction involved an assault, apparently of a sexual nature, on a young female child. It is obviously highly relevant to child‑related work. While the Tribunal must bear carefully in mind that the convictions are not convictions for either class 1 or class 2 offences, the 1981 conviction was for an offence the nature of which, certainly if it were a recent event, might give strong support for the issue of a negative notice.
The 1977 convictions also involve inappropriate sexual behaviour. It is not behaviour involving children, and while I would not conclude that the convictions are irrelevant to child‑related work, they do not share the same significance as the 1981 conviction. As to the earlier convictions of disorderly conduct in NSW, the evidence of the surrounding circumstances is so vague, and the offences occurred so long ago, they are of only marginal significance in the context of the decision now to be made.
Other information given by the applicant
Section 12(8)(e) requires the Tribunal to have regard to any information given by the applicant in relation to the application.
As I have already concluded, the information given by S as to the circumstances of the events leading to conviction does not assist his case. Indeed, I have felt some level of concern at the refusal by S to acknowledge any wrongdoing in the past. On the other hand, I am satisfied that the convictions resulted from acts occurring while S was inebriated. He clearly had a problem with alcohol at the relevant time. To a degree, one might understand how, having moved on in his life for the past 25 years, his capacity to revisit these long‑passed events, made necessary because of the introduction of the Act in December 2004, might be clouded with uncertainty.
S provided the Tribunal with a substantial volume of material recording his achievements with various athletes, and the acknowledgement of those achievements by sporting and other associations, over a long period of time. At the hearing, a number of parents of children he has coached gave evidence as to his skill and character.
It was apparent that, at least some of, those witnesses were unaware of the details of S's convictions. They knew he had been convicted, but apparently accepted his account of his innocence and wrongful convictions. Usually where a character reference is given without full knowledge of a person's past, the reference is of little assistance. In this case, all those who gave evidence did not know S at the time the convictions occurred. What can be extracted from the evidence of the character witnesses, all of whom have observed S in his coaching activities and in his interaction with his athletes, is that conduct of the nature of that for which he was convicted is, to them, completely inconsistent with the character they have observed.
Several of the young athletes whom he has coached also gave evidence and spoke highly of him. None of the witnesses suggested they had observed anything approaching inappropriate conduct.
I also heard evidence from S's partner. She met him, and became his partner, some time after the events the subject of the convictions. She has now been his partner for 15 years. She confirmed S's evidence that he rarely drank alcohol, and on the odd occasion of celebration when he did, it was taken in extreme moderation.
S gave evidence himself. Because of significant medical problems, apparently resulting from a serious motor vehicle accident when he was 16, it is apparent that coaching young athletes has been the focus of his life for in excess of the last 25 years. Although he is paid a fairly nominal fee by the athletes he coaches, I accept that he is motivated principally by the desire to develop young athletes, and have them achieve to their potential. There is no doubt that to prohibit him from coaching would have a devastating effect on his life.
S has achieved a high level certification as an athletics coach. I accept the proposition which emerges from the documents submitted by S, and the evidence of the athletes he has trained and parents of some athletes, that he has made, and is likely to continue to make, a significant positive contribution to the athletes whom he trains, and that he provides services not easily obtained. The evidence suggests that there is a real possibility that the athletics club with which S is associated, and which he helped to found, may well be forced to disband if his services are lost.
The best interests of children
The paramount consideration for the Tribunal is the best interests of the children. I accept that S has made a positive contribution to the athletic development of a significant number of young athletes whom he has trained. Those benefits would, however, necessarily have to be foregone if there were an appreciable risk that children under his care might be subjected to some form of abuse. Similarly, the personal effect of a negative notice on the applicant must be ignored if his continued coaching involves risk to children. The ultimate question for the Tribunal is, therefore, whether the past convictions suggest that there is some appreciable risk of abuse occurring.
If the 1981 conviction had occurred relatively recently, I would have no hesitation in concluding that the particular circumstances of that offence warrant the issue of a negative notice. However, the time when the offence was committed is a factor to which the legislation directs me to have regard. These are very old convictions. That is a factor which works in favour of the issue of an assessment notice rather than a negative notice. A factor which, in my view, significantly reinforces the significance of the time since convictions is that S has consistently worked with children, without incident, since the conviction occurred.
If S, with these convictions in his background, had not worked with children in the last 26 years and suddenly wished to start coaching, one might be concerned about an inability to assess how the applicant might conduct himself when confronted with contact with children in the particular child‑related work. In this case, S has effectively "proved himself" by doing the very thing he seeks to continue to do, apparently in an exemplary manner.
Against that background, I have reached the view that the particular circumstances of this case do not lead to the conclusion that a negative notice should be issued to the applicant. I do not consider that the applicant, now 64 years of age, having worked with children for over 25 years without incident, now poses any appreciable risk to the best interests of children. Accordingly, an assessment notice should issue under s 12(5) of the Act.
Publication of the applicant's name
The issue of whether or not the applicant's name should be published was not the subject of submissions at the hearing. In a decision earlier this year, D and the Department for Community Development [2007] WASAT 154, I discussed the issue of the confidentiality of an applicant's name in the context of the Act. I made particular reference to the provisions of s 39 of the Act, which preserves the confidentiality of information obtained in the course of performing a function under the Act. I concluded that an applicant who successfully obtains review of the CEO's decision should not suffer the very significant prejudice of having his or her identity or background published to the world, where, if the original decision had been the correct and preferable decision, that would not have occurred. It is for that reason that, throughout these reasons for decision, I have avoided the use of the applicant's name, or of information which might identify him. There should be an order that the name of the applicant not be published.
Order
For reasons given above the Tribunal orders that:
1.The review application is allowed.
2.The decision of the CEO under review is set aside.
3.The applicant is entitled to an assessment notice issued under s 12(5) of the Working With Children (Criminal Record Checking) Act 2004 (WA).
4.The CEO (or delegate) of the Department for Community Development take such steps as are necessary to cause the applicant to be issued with an assessment notice under s 12(5) of the Working With Children (Criminal Record Checking) Act 2004 (WA) in accordance with this decision.
5.The name of the applicant not be published.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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