CITATION: KG v Commission for Children and Young People [2004] NSWADT 174 DIVISION: Community Services Division APPLICANT PARTIES: KG RESPONDENT Commission for Children and Young People FILE NUMBER: 044004 HEARING DATES: 10/05/2004 & 11/06/2004 SUBMISSIONS CLOSED: 06/11/2004 DATE OF DECISION: 08/20/2004 BEFORE: Kelly T (Deputy President) APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 Bollock v Wellington (1996) 15 WAR 1 G v J & H [2001] NSWIRComm 69 CASES CITED: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Pownall v Conlon Management Pty Ltd (1995) 12 WAR 390 R v Kotzmann [1999] 2 VR 123 X v Commission for Children and Young People 2001 NSWADT 130 APPLICANT REPRESENTATION: In person RESPONDENT A Healey, barrister ORDERS: The Child Protection (Prohibited Employment) Act 1998 is not to apply to KG in respect of the offence of indecent assault for which he was convicted on 4 February 1988. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, 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 1 The Applicant seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 ("Child Protection Act") so that he can work unsupervised with children and young persons. The Respondent neither opposes nor supports the application. 2 In 1988, the Applicant was convicted indecent assault. This constitutes a serious sex offence as defined by the Child Protection Act. By the operation of s 5 of that Act, the Applicant is a "prohibited person" and as such, it is an offence for him to apply for, undertake or remain in child-related employment. 3 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that could identify the Applicant or anyone referred to in the proceedings (other than the experts). The Applicant is referred to in these reasons by the pseudonym, "KG". Issues 4 The Tribunal must determine whether KG is a risk to the safety of children and young persons if he is allowed to work with them unsupervised. Relevant legislation 5 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9). 6 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account: (a) the seriousness of the offences with respect to which the person is a prohibited person, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, (d) the difference in age between the prohibited person and each such victim, (d1) the prohibited person's present age, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. 7 Section 9(7) requires the Respondent to be a party to any proceedings for an order under s 9 and the Respondent may make submissions in opposition to, or support of, the making of the order. Standard of Proof and meaning of "risk": 8 The Applicant carries the onus of proof on the Briginshaw standard, that he is not a risk to the safety of children. The meaning of the word "risk", for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on: not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights. 9 Young J, went on to say One does not define risk as meaning minimal risk. One could exclude fanciful or theoretical risk. What one is looking for is whether in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on the child. 10 His Honour continued: A balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. 11 His Honour further said: There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sexual offence and its circumstances. The second is the current danger, if any, posed by the applicant to children. Subsection 5 deals mainly with the first focus. That is, the Tribunal must evaluate the seriousness of the offences taking into account the age of the applicant when the offences were committed, the age of the victim at the time and the difference in the ages. The second involves the assessment of the applicant's character now, which includes the seriousness of the prohibited person's total criminal record, a matter mentioned by 5(e), and any other matter which the Tribunal considers relevant. Subsection 5 then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime and (b) the applicant's current character, all these matters must come together when the Tribunal is making a decision was to whether to exempt a person from the effect of the Act. A decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of the applicant unless there is good reason not to exercise it. In view of the right to work, however, that discretion would ordinarily be exercised in favour of an applicant unless there was a good reason not to so exercise it. 12 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the Applicant over the risk threshold. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an Applicant who would otherwise pose some risk to children into an Applicant who does not pose a real unacceptable risk to children: par [46]. Index offence 13 The Applicant was convicted on 4 February 1988 at the Heildelberg Magistrates Court Victoria, of the charge of indecent assault. He was a youth worker who, he stated, gave consensual massage to a 15 year old female resident of a hostel where he was working. The applicant further stated that things went too far and he digitally penetrated her whereupon he and the girl both agreed to terminate the massage. There is a paucity of information that was able to be obtained from the court and the police about the offence. The only detail was a 5 line statement of facts contained in a police document which states that indecent assault occurred on 2 occasions, which the applicant denied on his oath which I accept, as he was only charged with one offence. The Applicant was placed on a good behaviour bond conditional on him continuing to receive counselling from Dr Cummins. Applicant's and victim's age and time since the offence: 14 The Applicant was aged 27 at the time of the offence and the victim aged 15 years. The Applicant is now 41 years of age. The offence occurred 17 years ago. Seriousness of the Applicant's total criminal record: 15 In addition to the index offence the Applicant was convicted of driving with a blood alcohol content beyond the prescribed limit in 1994 and 1997 and not answering his bail for the 1994 charge. Other relevant matters: expert reports. 16 Dr Cummins the psychologist who the applicant saw about the time of the offence 17 years ago informed the Tribunal that he destroyed his records regarding the applicant. 17 The respondent caused the Applicant to be interviewed and assessed by Dr C Lennings, a clinical psychologist, who provided a detailed report. He applied the "Static 99" actuarial test which is a recognised actuarial test that assesses the possibility of a sex offender reoffending in relation the possible reoffending of sex offenders generally. He was assessed as medium low risk being in the category of 16% of sex offenders who will reoffend after 15 years. As the Applicant's offence was 17 years ago the probability of reoffending was probably even less. Dr Lennings stated that this indicated that the Applicant's relative risk rating was not much more than might be expected from the general population. 18 Dr Lennings also used structural clinical assessment to assess the Applicant endeavour to predict the possibility of sexual or other crime. He stated that although the Applicant presented as self absorbed and somewhat self serving and manipulative in his attitude to others this was not to a degree as to indicate psychopathy. He had some reservations about the Applicant's work history but these were not sufficient to indicate major problems. Overall Dr Lennings said that he believed the applicant was narcissistic and self absorbed but did not present as overly anti social and his risk with children and young people of sexually inappropriate or violent behaviour is minimal. 19 However Dr Lennings went on to state that he had concerns for the potentially emotionally abusive behaviour that might be inadvertently perpetrated largely in pursuit of his own needs to maintain self esteem, and stated that as an employee he is likely to be manipulative and not easy to supervise. 20 The Respondent then requested Dr Lennings to amplify his views on the Applicant's potential for emotional and psychological harm in a further report. 21 In this report Dr Lennings stated that the Applicant's interest in youth work was a product of his need to find a place where he could dominate and that this was not desirable with young and vulnerable persons. He stated that he could not rank this concern as low medium or high. He stated that at best he believed that the Applicant's manner is sufficiently harmful that given a choice he would not employ him in any youth work. He further stated that such harm could be in the form of language that humiliates or deflates self esteem and that he is likely to encourage bullying and cronyism and is unlikely to take an objective view of clients and that some will come in for rough treatments and others will bind to him. He also stated that the Applicant struck him as a person who will take short cuts and blame others if things go wrong and that conditions such as supervision are not practical in a youth work setting. 22 Although Dr Lennings' report was strong on conclusions it is necessary for a court or tribunal to consider whether or not the facts observed or assumed form a proper basis for an expert opinion. For instance a medical practitioner can state an opinion as to the cause of death by examining a deceased and state that a wound was self inflicted or caused by another. But is the examination of the body was too brief or other possible causes were not considered the opinion may not be accepted. 23 In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001) at paragraphs 81, 82, and 85 per Heyden JA as he then was stated: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reache d : that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414 , on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" 24 Heyden JA went on to say: In Pownall v Conlon Management Pty Ltd (1995) 12 WAR 390. Anderson J said: If an opinion relies on facts that must be proved or assumptions that must be verified, it is to the court that they must be proved and verified, not to the expert witness. …In Bollock v Wellington (1996) 15 WAR 1 at 3 Anderson J said: "Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts ..." He then said at 3-4, citing Steffen v Ruban: "As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it. None of these requirements is satisfied, when all that the medical expert says is `I have examined this patient and from what I know about plant operation I think he can drive a D10 bulldozer on production work'. "He also said at 4, citing Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 390: "Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight ... " In R v Kotzmann [1999] 2 VR 123 at 135 Callaway JA said that it was desirable for juries to be directed that "expert evidence is no better than the facts on which it is based, that it is for the jury to be satisfied of the facts in issue at the trial and that ultimately it is their opinion that counts". At 156 Batt JA said that even where the expertise of the witnesses is not questioned, and even where their evidence is contradicted or substantially contested, there should as well be a direction that "the weight to be given to the opinions of experts is to be assessed in the same way as the weight to be given to the evidence of other witnesses. This cannot be done unless the intellectual basis of the opinion is laid out. Dr Lennings' oral evidence 25 Dr Lennings gave oral evidence and was questioned about his observations and the factual bases for the conclusions contained in his reports. 26 He identified the language that the Applicant used to him. When asked what language he replied that the reference by the Applicant to the fellow police officers he had worked with before he left the police service early in his working life, implied he was cleverer than his then colleagues. He stated that the Applicant also implied that when he when he was a relatively inexperienced youth worker other more experienced youth workers were surprised that that he was able to take a position over more experienced people. He stated that there was a pattern of language that implies a degree of grandiosity and a greater degree of self-appreciation than would be expected in the general population. 27 He also cited the Applicant's statement that the City of Ballarat where the Applicant once worked was too small a town for the Applicant. He said that there was an industrial concern of his employers that the Applicant was minimising and that he was implying that he was destined for bigger and better things that have not occurred. The Applicant later gave evidence that he left Ballarat as it was too cold and isolated. 28 Dr Lennings gave another example that the youth work organisation the Applicant set up is a shelf organisation to do some training work, but was represented by him as if he was a much more important person than his history suggested. 29 Dr Lennings went on to cite the incongruity of some of the history that the Applicant gave and his manner of interview where he tended to be controlling the direction of the interview and went on to say that this was a sinister pattern of behaviour. 30 Dr Lennings was asked again about the language that was used and he replied that the language the Applicant used implied that he was highly skilled and of great ability and that he knew a lot of people, who would give money to his organisation. In contrast he in reality had a low level of achievement. 31 He was asked about that part of his report that stated that he was concerned about the Applicant using language to humiliate or deflate the self esteem of young persons with whom he worked, and he replied that this was a hypothesis based on his understanding of both the Applicant and youth work teams. He was then asked were any examples he could specify of this occurring or anything he observed when he interviewed the Applicant to which he replied that it was "a hypothesis drawn from the observations and concerns raised when he was working at Bendigo which expresses concern with out giving any detail of the basis of the concern and were concerns more of inaction than anything else". 32 When he was asked about his concerns about bullying and cronyism, Dr Lennings replied that they were hypotheses projected on his belief about the behaviour and personality the Applicant revealed but agreed that there was no direct evidence to base those other than his projections from the history and presentation and opportunities as a youth worker. He stated that he believed from his experiences with youth agencies that there are a lot of youth workers not suited to the task. 33 Dr Lennings stated that there was a pattern of behaviour where no individual thing stands out and that you have to draw inferences in regard to the likely response to others in positions where dependency becomes an issue. Is emotional and psychological harm covered by the legislation? 34 S9(4) of the Child Protection Act states: A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. 35 Risk to the safety of children being inadvertently emotionally and psychologically harmed is certainly more broad than the harm contemplated by the index offence, which requires the Applicant to make this application and obtain an exemption before he can work unsupervised with children and young people. The index offence focuses on harm from a serious sexual. This issue was considered by Deputy President Hennessy in X v Commission for Children and Young People [2001] NSWADT 130 whose views I accept Deputy President Hennessy stated: The next issue to be considered is whether Mr X poses a risk to the physical safety of children. In G v J & H [2001] NSWIRComm 69 (11 April 2001) at [37] Kavanagh J analysed the words "pose a risk to the safety of children" as follows: The Macquarie Dictionary 1991, 2nd Ed, defines "pose" as "an examination by putting a question"; defines "risk" as "an exposure to the chance of injury" or "a dangerous chance"; "safety" is defined as "freedom from injury or danger". The Commission must therefore examine and question whether the applicant in child-related employment gives to the children freedom from an exposure to the chance or dangerous chance of injury. I accept this definition and the respondent's submission that safety relates not only to safety from sexual offences but safety from physical or emotional injury of any kind. Findings and Conclusions: 36 The Applicant was convicted of an offence of indecent assault in 1987. This is a serious sexual assault which makes him a prohibited person under the Child Protection Act. 37 In considering the index offence and the Applicant's current character I am satisfied that the Applicant is not likely to pose a risk to the safety of children by way of the commission of a further sexual offence or offence of violence. There has only been one instance of such behaviour, which was 17 years ago which was within the lower range of seriousness of sexual offences. This is also the opinion of Dr Lennings based, inter alia, on actuarial assessments. 38 In determining whether the Applicant may pose a risk to the safety of children by inadvertently undertaking behaviour which could cause psychological or emotional harm, I find the details of the factual bases which underpin Dr Lennings' opinion, are insufficient to allow the Tribunal to adopt his opinion. To call the incongruity of some of the Applicant's history as well as his attempts to control the direction of the interview with Dr Lennings as sinister, seems to be overstating the concern. The strength of Dr Lennings' conclusions are certainly not equalled by the totality of the facts upon which they are based. These facts and observations are inferential only and are of a general nature, which no outstanding component. Although there is a possible risk of harm this risk is not sufficient for me categorise it as a real, appreciable or unacceptable risk, and to do so would unnecessarily deny the Applicant the right to work. There is no need for me to consider the imposition of any conditions on the Applicant's employment. Order: The Child Protection (Prohibited Employment) Act 1998 is not to apply to KG in respect of the offence of indecent assault for which he was convicted on 4 February 1988. 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.