Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ECO v Children's Guardian [2020] NSWCATAD 244 Hearing dates: On the papers Date of orders: 2 October 2020 Decision date: 02 October 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: L Organ, Senior Member J Goodman-Delhunty, General Member Decision: (1) The applicant is not to be treated as a disqualified person for the offence, in respect of s.66C(1) of the Crimes Act 1900 (NSW), for which he was convicted on 16 December 1991. (2) The Children's Guardian is to grant the applicant with a working with children check clearance within 28 days of the publication of this decision. Catchwords: ADMINISTRATIVE LAW - working with children - application for an enabling order - applicant a 'disqualified person' having been convicted of a 'disqualifying offence' (sexual intercourse with a child between 10 and 16 years old) – whether applicant has discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Working with Children) Regulation 2013 (NSW) Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949 BKE v Office of the Children's Guardian [2015] NSWSC 523 CYY v Children's Guardian (No 2) [2017] NSW NSWCATAD 262 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 VQB v The Secretary to the Department of Justice [2013] VCAT 789 Category: Principal judgment Parties: ECO (Applicant) Children's Guardian (Respondent) Representation: Counsel : RJ Pietriche (Respondent) Solicitors: Fourtree Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2019/00353886 Publication restriction: With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Summary 1. On 23 October 2019 following an application for a working with children check clearance (clearance) by the applicant, the Children's Guardian (the respondent) refused the applicant a clearance. This was on the basis that he was a disqualified person due to a prior conviction for the offence of sexual intercourse with a child between 10 and 16 years old under s 66C (1) of the Crimes act 1900 (NSW). This sexual assault occurred in 1991. As he is a disqualified person the applicant is presumed to pose a risk to the safety of children. 2. The applicant is now seeking an enabling order pursuant to s 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) to allow him to obtain a clearance so he can become an ambulance officer. The applicant acknowledges the disqualifying offence. It occurred nearly 29 years ago when he was 18 years old and the victim was 14 years old. The applicant and the victim had been in a romantic relationship for a short period of time. The applicant expressed his remorse and acknowledged the wrongfulness of his conduct to Police in a written statement. Since the disqualifying offence the applicant has not been the subject of any complaints or investigations relating to his conduct with children or convicted of any other offences. He is in a stable long term relationship and has two children of his own. He has maintained employment with the same employer for approximately 23 years. He has been assessed as being at a very low risk of re-offending by a Clinical Nurse Consultant with a Forensic Mental Health background. 3. We are satisfied on the available evidence that the applicant has discharged the required burden of proof and find that he does not pose a real and appreciable risk to the safety and wellbeing of children and young people. Therefore, the application for an enabling order is granted. Our reasons are set out below. The legal framework 1. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act: s 4 of the Act. 2. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence. 3. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act. It is not disputed that the role that the applicant proposes to perform is child related work. 4. Section 18 of the Act provides: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. 1. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant's application: see section 28 of the Child Protection (Working with Children) Act 2012, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Review Act 1997. 2. Although no conviction was recorded against the applicant for the disqualifying offence, a conviction for the purpose of s 18 (1) (a) of the Act includes "a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction" (s 5(1) of the Act ). The applicant pleaded guilty to the disqualifying offence and a good behaviour bond was ordered and therefore for the purpose of the Act the applicant was convicted of the disqualifying offence. 3. When determining an application under s 28(1) of the Child Protection (Working with Children) Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act: "(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary." 1. Further, pursuant to s 30(1A) of the Child Protection (Working with Children) Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) provides: "(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order." The disqualifying offence 1. The disqualifying offence occurred on 27 November 1991. The victim who was at the time 14 years old, had been in a relationship with the applicant for approximately one to three months at the time of the offence. On the day in question the applicant and the victim went to the applicant' brother's house where they had sexual intercourse. 2. The applicant then drove the victim home. That same day the victim told her mother what had happened. The victim's parents reported the matter to the Police and the victim underwent a medical examination at the local hospital later that night. 3. On 1 December 1991 the applicant made a statement to the Police. He made admissions in relation to the disqualifying offence. He disclosed that he was aware that the victim was 14 years old at the time of the disqualifying offence. He said he was aware that it was wrong to have sexual intercourse with the victim and expressed remorse for his actions. 4. On 16 December 1991 the applicant pleaded guilty to the disqualifying offence and was directed to enter into a good behaviour bond for 18 months. No conviction was recorded against him by the Magistrate. The applicant's evidence 1. The applicant relies on his affidavit of 22 April 2020. 2. The applicant is now 47. He is married and has two children who are 17 and 14. He has been employed in the same position for 23 years. His current employment does not involve any contact with children. He has never had any psychological or psychiatric treatment. He requires a clearance because he has a long held ambition to become an ambulance officer. His evidence is not challenged by the respondent. Evidence of Lee Knight, Clinical Nurse Consultant (Forensic Mental Health) 1. The applicant relies on a report of Mr Lee Knight who is a Clinical Nurse Consultant (Forensic Mental Health). Mr Knight is currently employed at a university on secondment from Justice Health and Forensic Mental Health Network. Mr Knight says he has experience in comprehensive psychiatric assessment of persons with a mental illness including conducting risk assessments and assisting with diagnostic clarification and determination of whether a person has a mental illness. 2. In summary, Mr Knight considers the applicant is at very low risk of re-offending. This is based on Mr Knight's review of written material provided to him and the application of the STABLE 2007 and Static-99 risk assessment instruments. The applicant was determined by Mr Knight to fall in the low range of stable dynamic risk factors and below average risk on the Static-99. His composite assessment places him in Level 1 very low risk for supervision and intervention using the standardised assessments. 3. Mr Knight found no evidence of any significant drug or alcohol problems and on presentation found no evidence of the applicant having a major mental illness. Mr Knight draws attention to the applicant not being charged with re-offending in relation to a sexual offence or indeed any offence for approximately 29 years. He says the risk of recidivism reduces by approximately half with every five years that an individual is in the community without re-offending. 4. In conclusion, Mr Knight's opinion is that the applicant would not be at any additional risk of sexual violence than any spontaneous, first-time sexual offender with a non-sexual criminal history. Does the applicant pose a risk to the safety of children? 1. The Tribunal must consider whether the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the Act. The test to be applied is whether the risk posed by the applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [ 42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]. 2. Set out below are our findings in relation to each of the s 30 (1) factors. The seriousness of the offences and the period of time since those offences occurred (s 30(1)(a) and (b) 1. The respondent submits that although by its nature the offence of sexual intercourse with a child aged between 10 and 16 years old is serious, this offence lies at the lower end of the seriousness scale for such an offence. We agree with this submission. Neither the applicant's account or that of the victim indicate the victim was not consenting to the sexual intercourse. The fact that the applicant was dealt with by way of a good behaviour bond after pleading guilty to the disqualifying offence supports that the disqualifying offence was at the lower range of seriousness. (s 30 (1)(a)) 2. The offence took place nearly 29 years ago. 3. Since that time the applicant has not been the subject of any complaints and has not been charged with any criminal offences. 4. We consider the length of time since the offences occurred and that no events in the intervening period which could be considered adverse to the applicant have been brought to our attention, weighs in favour of the applicant being granted a clearance. (s 30(1)(b)). The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant's present age (s 30 (1) (d)-(g) ) 1. The applicant was 18 at the time the offences were committed and is now 47. The victim was 14. The applicant was aware of her age. The circumstances of the offence on the evidence available to us do not, apart from the age of the victim, involve any factors which indicate any particular vulnerability of the victim or coercion or exploitation of the victim by the applicant. That the applicant committed an offence against the victim is not in doubt. At the time of the disqualifying offence the applicant and the victim were in a romantic relationship. The seriousness of the applicant's criminal record, the conduct of the applicant since the offences occurred, (s30 (1) (h)) 1. Since the disqualifying offence there have been no issues or concerns raised in regard to the applicant's conduct with children on the material before us. The applicant was at the time of the offence a young adult. The evidence before us indicates he has since that time matured. This is demonstrated by the stability in both his work and personal life which he has achieved and maintained. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (s 30 (1) (i)) 1. The applicants long and stable marriage coupled with a stable work history involving employment in the same position for some 23 years are in our view protective factors against the risk of his re-offending. Further we accept he is genuinely motivated to obtain employment as an ambulance officer. 2. It is clear that the impact on children of any repetition of the offence would be most serious. 3. We accept the evidence of Mr Knight that the likelihood of the applicant re-offending is very low, including offending in the manner he did in 1991. He was very young at the time and is now much older. He has at no time denied the offending. There is nothing in the evidence available to us that indicates he has sought to minimise his actions or the harm they may have caused the victim. His statement to Police a few days after the disqualifying offence indicates that he in fact had considerable insight into his wrongdoing and was genuinely remorseful. 4. Having regard to all of the evidence before us we are satisfied that the likelihood of the applicant re-offending is low. Any order of a court or tribunal that is in force in relation to the person (s 30 (1) (i1)) 1. There is no evidence of any order of a court or tribunal that is in force in relation to the applicant. Information given by the applicant in, or in relation to, the application (s 30(1)(j)) 1. We have placed substantial weight upon the evidence provided by the applicant, being his affidavit and the report of Mr Knight. Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(1) (j1)) 1. There was no information relevant to this section bought to our attention. Any other matters that the Children's Guardian considers necessary (s30(1)(k)) 1. The respondent submits that the presumption that applicant poses a risk to the safety of children has been rebutted by ECO. Has the applicant discharged his onus in rebutting the presumption that he poses a risk to the safety of children? 1. Based on the material before the Tribunal, the matters set out in s 30(1) of the Act, the paramount consideration in s 4 of the Act and our findings above, we are satisfied that the applicant has rebutted the statutory presumption and does not pose a real and appreciable risk to children. In summary we have reached this conclusion because: 1. the disqualifying offence of which the applicant was convicted in 1991, while very serious, occurred nearly 29 years ago, when the applicant was a young man. The victim was his girlfriend and the applicant made full admission of the offending conduct shortly after the incident. He pleaded guilty and was ordered to enter into a good behaviour bond for 18 months; 2. there is no evidence of the applicant having acted in this way previously or since that time; 3. Since the disqualifying offence committed by the applicant in 1991 there is no evidence of any conduct that could be considered adverse to the applicant; 4. the applicant is now 47 yeas of age and is genuinely sorry for what he did in 1991; 5. in his comprehensive risk assessment of the applicant, Mr Knight concluded that, today, the likelihood of the applicant reoffending generally (including sexual offending) is very low; and 6. finally, we accept Mr Knight's finding of the identifiable protective factors against the applicant reoffending. These include the applicant's history of stable employment for many years and the stability of his marriage and family life with his wife and children. Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant? 1. Section 30 (1) (A) of the Child Protection (Working with Children) Act 2012 applies to this application. That section provides that the Tribunal may not make an order which has the effect of allowing the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that : 1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in child-related work, and 2. it is in the public interest to make such an order 1. In VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation. 1. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a "reasonable person" would need to know the applicant's criminal history being his conviction for the disqualifying offence. We are satisfied that a reasonable person would have regard to the fact it is nearly 29 years since the disqualifying offence was committed by the applicant and that he has had an unblemished record since then. The reasonable person would have regard to his stable marriage and employment history and the report of Mr Knight that the applicant's risk of recidivism are at the very low end of the range. 2. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work. 3. The Tribunal must also be satisfied of the second part of the test in s 30 (1) (A) that the order is in the public interest. 4. The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration. 5. The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 and CYY v Children's Guardian (No 2) [2017] NSW NSWCATAD 262 6. The applicant has committed serious offences against a child 29 years ago. He now wishes to pursue a career as an ambulance officer. It is not in the public interest that the Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. Having regard to the available evidence and our findings that the applicant does not pose a real and appreciable risk to the safety of children, it is in the public interest to make the orders sought by the applicant. 7. In summary, we are satisfied that the applicant has rebutted the presumption that he poses a risk to the safety of children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make an enabling order. Orders 1. Accordingly, we make the following orders: 1. The applicant is not to be treated as a disqualified person for the offence, in respect of s.66C(1) of the Crimes Act 1900 (NSW), for which he was convicted on 16 December 1991. 2. The Children's Guardian is to grant the applicant with a working with children check clearance within 28 days of the publication of this decision. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 October 2020