CK v Commission for Children and Young People [2009] NSWADT 39

CITATION: CK v Commission for Children and Young People [2009] NSWADT 39

DIVISION: Community Services Division

APPLICANT CK PARTIES: RESPONDENT Commission for Children and Young People

FILE NUMBER: 074031

HEARING DATES: 3 June 2008

SUBMISSIONS CLOSED: 12 June 2008

DATE OF DECISION: 25 February 2009

BEFORE: Smyth M - Judicial Member

CATCHWORDS: Declaration that applicant not a prohibited person

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998 Rural Fires Act 1997

CK v Commission for Children and Young People [2008] NSWADT 50 Commission for Children and Young People v V (2003) 56 NSWLR 476 CASES CITED: Commission for Children & Young People v UR [2007] NSWSC 1099) HREA v Commission for Children and Young People [2001] NSWIRComm 93 (2 May 2001) RV v Commission for Children and Young People [2007] NSWADT 299

APPLICANT In person REPRESENTATION: RESPONDENT V Harstein, barrister

ORDERS: Application is dismissed

REASONS FOR DECISION 1 The Applicant applies for a declaration under section 33I of the Commission for Children and Young People Act 1998 (the Commission Act). The Applicant appeared for himself by phone. The Respondent opposed the application. 2 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (the 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. As the matter is sensitive I have decided not to publish any details that may identify the Applicant or others referred to in the proceedings. The Applicant is referred to in these reasons by the pseudonym CK. 3 The Applicant pleaded guilty to two offences of carnal knowledge that occurred in 1984. e was convicted of the offences under the (then) section 73 of the Crimes Act 1900 and placed on bonds for each offence by the District Court. The offences were committed against his daughter. Is the Applicant a prohibited person? 4 The definition of a prohibited person in section 33B(1)(a) of the Commission Act includes a person convicted of a serious sexual offence. 5 An issue regarding jurisdiction was determined by this Tribunal, differently constituted, in CK v Commission for Children and Young People [2008] NSWADT 50. The Tribunal found that CK was a 'prohibited person' as defined by section 33B of the Commission Act and that this Tribunal had the jurisdiction to hear the matter. 6 This decision concerns whether the application for a declaration should be granted. What does the Applicant seek the declaration for? 7 The Applicant has a long history of service as a volunteer fire fighter and office bearer in his local rural fire fighting service. At the time his status as a 'prohibited person' was discovered the Applicant was a deputy captain of his local brigade. Part of the duties of that position involve training volunteers. From time to time some of those trainees are under 18 years. 8 Since the discovery of his status as a prohibited person he reverted to being a volunteer fire fighter with his local brigade. He has made this application so that he can return to his role as a deputy captain. 9 There was very little evidence before the Tribunal as to the nature of the Rural Fire Service. The Tribunal examined the Rural Fires Act 1997 [Fires Act]. That Act provides for a NSW Rural Fire Service. The functions of the service include providing rural fire services for NSW, assisting other emergency services organisations at incidents and emergencies under the control of those organisations, providing advisory services relating to fire fighting, carrying out other functions assigned to the service by legislation and doing anything necessary for or incidental to the exercise of its functions. [section 9 (1)] 10 Rural fires services are defined to include services for the prevention, mitigation and suppression of fires in rural fire districts and the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts. The definition also includes providing rural fire services for NSW and assisting emergency services at incidents and emergencies as set out above. [section 9(4)] 11 The Fires Act provides for the formation of rural fire brigades and for volunteer rural fire fighters including officers and members of the rural fire brigades [sections 8 and 11]. Child related employment 12 Child related employment is defined in section 33(1)(a) of the Commission Act as meaning any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment: 13 Various kinds of employment are then set out. These include at (vii) employment in clubs, associations, movements, societies, institutions or other bodies (including bodies of a cultural, recreational or sporting nature) having a significant child membership or involvement. Is the Applicant's employment as a Deputy Captain in the rural fire service child related employment? 14 The Applicant's evidence was that his local brigade consisted of 38 active adult volunteer fire fighters, 2 members aged between 16 and 18 years and 3-5 junior members aged under 16 years. While those under 18 years do not engage in fire fighting they can attend training days held periodically. Those days involve training in the use of equipment. Those providing the training would light a fire and show training participants what to do. As a deputy captain he was involved in the training and it was his evidence that there were always 3 to 4 adults present at the training. 15 The Respondent submitted that the Applicant's employment as a deputy captain was 'child related employment'. That submission was made on the basis of the Applicant's role in training junior members. The Respondent submitted that the Applicant's employment primarily involved direct contact with children where that contact was not directly supervised by a person having the capacity to direct the Applicant in the course of his employment. The Respondent submitted that the rural fire service the Applicant belonged to was an association or institution with a significant child membership or involvement. 16 In regard to the meaning of the term "primarily" in section 33(1)(a) of the Commission Act the Respondent referred the Tribunal to HREA v Commission for Children and Young people [2001] NSWIRComm 93 (2 May 2001)]. In that case the Industrial Commission considered the meaning of the term "primarily" in section 3 of the now repealed Child Protection (Prohibited Employment) Act 1998. 17 The definition of child related employment in section 33(1)(a) of the Commission Act is almost identical to that definition in section 3 of the repealed Act. The Commission Act retains the words 'any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised' from the definition in the repealed Act and add the words 'by a person having the capacity to direct the person in the course of the employment'. 18 In the HREA case the Commission stated The notion of the work "primarily" involving direct contact immediately raises concepts of time but also would, it seems to me, necessarily involve considerations of a qualitative kind. It seems inconceivable that an Act, the obvious purpose of which is to protect children from undesirable contact with relevantly inappropriate persons should operate upon some time analysis of the work involved. ut another way, to find that a wardsman such as K was spending approximately 60 per cent of his time in relation to adult patients and 40 per cent of his time in relation to children would not seem to provide a factual basis for the formation of the view that the Act ought be unconcerned with him because he was not "primarily" involved with children in his work. Mr Bourke of counsel for the Commission for Children and Young People urged the view that this Commission should take a purposive approach to the construction of the Act (section 33 of the Interpretation Act 1987) and in relation to such an example conclude that the Act was intended to apply. In order to achieve that result in conjunction with the phrase "primarily involves" one needs to construe the words in context as having an intention not to describe the major and substantial time or indeed, it seems to me, the major and substantial function, of the employee, but rather to view the phrase as it was intended, namely, to describe the primary or essential requirements of the job. This approach seems to me to conform with the intention of Parliament as evidenced by the particular words in the context of the statute as a whole. Strictly it seems unnecessary to resort to the second reading speech by the Minister when the bill leading to the Act was before the Parliament but such reference gives me comfort for the view which I have formed. The Minister (the Hon. Mrs Lo Po) said in the second reading speech: The object of the bill is to prohibit persons with convictions for serious sexual offences from working in positions of child-related employment. . . . . All current and prospective employees will be asked to declare whether they have any convictions for a serious sex offence. If they do, they will be prohibited from applying for, or continuing to work in, positions involving direct unsupervised contact with children. [at 25, 26] 19 I agree that a purposive approach is the correct one and the Commission Act makes it very clear that the paramount consideration is the safety and welfare of children and their protection from child abuse [Section 32]. The definition of child related employment does not simply refer to any employment that involves children, it is employment of a particular kind that primarily involves direct contact with children…'. The word 'primarily' must have some work to do and should be given its ordinary meaning consistent with a purposive approach. 20 The Macquarie Dictionary defines primarily as 'in the first place; chiefly; principally' and as 'in the first instance; at first; originally". The approach adopted by the Industrial Commission in interpreting the term as the 'primary or essential requirements' is consistent with that definition. 21 In contrast with the HREA case this Tribunal had no evidence from the Applicant's employer and no documentary evidence regarding the role of a deputy captain. On the limited evidence available the primary employment of the Applicant involves, as set out in the Fires Act, services for the prevention, mitigation and suppression of fires in rural fire districts and the protection of persons from dangers to their safety and health, and property from destruction or damage, arising from fires in rural fire districts. It is evident that children may be among those persons being protected from danger. On the limited evidence before me the Applicant's work in training juniors appears to be a function incidental to the principal or essential nature of his work in preventing, mitigating and suppressing fires. 22 The definition of child related employment also requires that the contact with children is not directly supervised by a person having the capacity to direct the person in the course of his employment. The Applicant has told us that three or four people are present when juniors are being trained however there is no evidence as to who they are and whether any of them have the capacity to direct the Applicant in the course of his employment as a deputy captain. If he has direct contact with the children in the course of fire fighting it is not clear on the evidence before me whether that work is directly supervised. 23 In addition to come within the definition of child related employment the employment must be one of a particular kind set out in section 33(1)(a). Several kinds of work are set out and his local fire brigade is likely to constitute employment in a club, an association, movement, society or other body. [see section 33(1)(a)(vii) cited above] 24 However it is unclear whether the rural fire service brigade is an association, institution or body 'having a significant child membership or involvement'. On the Applicant's evidence there are a maximum of 7 members aged under 18 and an adult membership of 38. If the total membership is taken as 45 then the proportion of those under 18 years is approximately 16%. The Macquarie Dictionary defines significant as 'important, of consequence'. Whether that percentage is important or of consequence will depend on the context. There is very limited evidence before me regarding the role of the under 18 year old members other than that they do not fight fires and that they do attend some training and meetings. 25 There is no evidence from any office bearer of the association and no documentary evidence regarding the work the Applicant undertakes. Other than the Applicant's evidence about the role of the deputy captain in training volunteer members under 18 years there is very little evidence to suggest that a deputy captain has much contact at all with children. It appears that his work in that role chiefly involves preventing, mitigating and suppressing fires. It is difficult to conclude that the training component is sufficient to conclude that his employment primarily involves direct contact with children. There are other difficulties regarding whether the membership and involvement of children is significant. 26 There is insufficient evidence to make a finding as to whether the Applicant would be engaged in child related employment when employed as a deputy captain in his local rural fire service brigade. It is not necessary for the Tribunal to make such a finding in order to deal with his application. That is because, as the respondent contends, an application under section 33I does not require a person to be in child related employment at the time and if a declaration is granted without conditions a person can apply for and work in any form of child related employment. Other relevant statutory provisions 27 Section 33J(1) of the Commission Act provides that the Tribunal is not to make an order on a review application unless satisfied that the person the subject of the application does not pose a risk to the safety of children. Section 33J(2) requires the Tribunal to presume that the Applicant poses a risk to the safety of children, unless he or she proves the contrary. The Applicant carries the onus, on the Briginshaw standard, to rebut that presumption. 28 The factors that the Tribunal must take into account in deciding whether or not to make an order are set out in section 33J(3) as follows. (a) the seriousness of the offences with respect to which the person is a prohibited person, (b) the period of time since those offences were committed, (c) the age of the person at the time those offences were committed, (d) the age of each victim of the offences at the time they were committed, (e) the difference in age between the prohibited person and each such victim, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the prohibited person's present age, (h) the seriousness of the prohibited person's total criminal record, (i) such other matters as the Commission or tribunal considers relevant. 29 As stated earlier the paramount consideration is the safety and welfare of children and, in particular, protecting them from child abuse. [Section 32]. 30 The test set out in section 33J(1) of the Commission Act is similar, but not identical, to the corresponding test in the now repealed Child Protection (Prohibited Employment) Act 1998. 31 In RV v Commission for Children and Young People [2007] NSWADT 299 this Tribunal, differently constituted, considered the application of legal principles developed regarding section 9(4) of the 1998 Act to applications made under section 33. The Tribunal referred to the consideration of the meaning of risk used in that section in the cases of Commission for Children and Young People v V (2003) 56 NSWLR 476 and Commission for Children & Young People v UR [2007] NSWSC 1099). 32 In RV v Commission for Children and Young People the Tribunal said that great care had to be taken in applying principles that had been developed in relation to different, although similar, legislation. That Tribunal concluded that previous authorities that had considered section 9(4) of the now repealed Act provide useful assistance to interpreting corresponding provisions in the Commission Act. I agree with that approach. 33 In RV v Commission for Children and Young People the Tribunal referred to Young CJ (in Equity) in Commission for Children and Young People v V. In that case Young CJ agreed with Haylen J's analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101. 34 Haylen J said that section 9(4) referred to: '[N]ot 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.' ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].) 35 Young CJ held [at 27] that 'risk' in the context of section 9(4) meant 'a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child'. 36 The previous Act included the power to make conditions [section 9(9)]. Young CJ made it clear that the power to impose conditions was relevant to the question of risk. The imposition of relevant conditions could mean that an Applicant may not pose a real and appreciable risk to children. 37 I now turn to the factors set out in section 33J(3) of the Act that the Tribunal is required to take into account. Seriousness of offence with respect to which the Applicant is a prohibited person and the period of time since that offence was committed. [Section 33J(3)(a) and (b)] 38 In 1985 the Applicant was convicted of two counts of carnal knowledge of his daughter after pleading guilty to those offences. The offences were under the then section 73 of the Crimes Act 1900 which was as follows: Whosoever, being a schoolmaster or other teacher, or a father, or step father, unlawfully and carnally knows any girl of or above the age of ten years, and under the age of seventeen years, being his pupil, or daughter, or step daughter, shall be liable to penal servitude for fourteen years. 39 The Applicant did not dispute that the offence took the form of full sexual intercourse with his daughter. Age of the person at the time that offence was committed and present age. [Section 33J(3)(c) and (g)] 40 The Applicant was aged 40 years at the time the offences were committed and is now aged 64 years. Age of each victim of the offences [Section 33J(3)(d)] 41 The victim was aged 16 years at the time of the offences. Difference in age between the prohibited person and each such victim; Whether the person knew, or could reasonably have known, that the victim was a child, [Section 33J(3)(e) and (f)] 42 The Applicant was approximately 24 years older than his daughter at the time of the offences. The victim was his own daughter and he was her primary carer at the time of the offences. Consequently he knew that she was aged 16 years and a child. Seriousness of the prohibited person's total criminal record, [Section 33J(3)(h)] 43 The Applicant's criminal record includes a number of minor stealing offences during the 1960's for which he was fined. There is nothing further on his criminal record after the 1984 carnal knowledge offences. Other relevant matters [Section 33J(3)(i)] 44 Dr Lennings, a forensic psychologist, assessed the Applicant at the request of the Respondent and provided a written report dated 12 April 2008. His report was in evidence before the Tribunal and he gave oral evidence. 45 Based on the Applicant's account of the offence at interview with Dr Lennings, an account that was not challenged by the Applicant except as to the duration of his sexual relationship with his daughter, Dr Lennings noted that the Applicant's offending occurred at a time of emotional turmoil following the breakdown of his second relationship. In Dr Lenning's opinion the offence appeared to have been "initiated by unmet affiliation and affection needs," however Dr Lennings also noted that during the period that he had sexual intercourse with his daughter the Applicant had met and commenced a sexual relationship with his partner. 46 Dr Lennings stated that the Applicant "says he tried to stop it but he would fall asleep and wake up and find his daughter in his bed and on his report it seems he was unable to resist the presence of his daughter." 47 Dr Lennings conducted a risk assessment of the Applicant. He used the Static 99, an actuarial tool that assesses historical or static variables. The Applicant's score using that tool was zero placing him in a low risk group for re-offending. 48 Dr Lennings then supplemented his actuarial assessment using an assessment of dynamic factors. These are variables that a person has that can be altered by time, treatment or opportunity. For example, substance abuse or mental illness. 49 In regard to dynamic factors Dr Lennings noted that re-offending for incest offenders tapers off markedly by the early 40's so that risk diminished with age. Dr Lennings noted that the assessment of risk had "to consider the analysis of variables that may dictate sexual deviance, anti-social behaviour and other 'dynamic' factors associated with recidivistic behaviour such as impulse control, substance abuse, and emotional and self-regulation skills." He stated that to the extent it is possible to assess via self-report, there seems no obvious sexual deviance associated with the Applicant's life style. The Applicant had some sex drive attenuated by age and penile disease. He had no significant mental health disorders, personality disorders or psychopathy. He did not have substance abuse problems. 50 Dr Lennings noted that the Applicant's criminal history was relatively minor, there was no violence and no escalation of offending or multiple types of sexual offences. However the offences continued for nine months "indicating at the time a consistent pattern of exploitive behaviour". Dr Lennings considered that the Applicant minimised the offence but this was not a significant risk factor. He concluded that his assessment of dynamic risk factors indicated a low risk and that his age, his acknowledgement of the wrongness of his behaviour and good impulse control appeared as protective factors. 51 His personality assessment did not reveal attributes that might increase risk. Dr Lennings considered the current environment of the Applicant (his role in the fire fighting service) as relatively low risk in that it did not generally involve young children, children with disability or give him authority over and one to one access with young people. He concluded that the analysis of environmental risk indicated minimal concern. 52 Overall his assessment was that there was a low risk for recidivism in relation to a sexual offence. He pointed to protective factors such as an absence of a pattern or history of anti-social behaviour, a history of responsible and stable employment, good levels of community integration, absence of substance abuse, his age and his apparent acceptance of his single status. These factors needed to be acknowledged and set against the Applicant's habit of minimisation and the absence of apparent offender specific treatment. 53 He concluded that risk management approaches suggested that low key strategies only might be required. In his opinion there was little need for education of the Applicant as the Applicant was aware of the risk and knew he should not expose himself to the potential for innuendo by mentoring or isolating himself with a young person. Dr Lennings considered it would be helpful if the Applicant's superiors were aware that he should not be in a position of mentoring or isolating himself with a young person. Dr Lennings concluded his written report by saying that "while I do not think his likelihood of an offence against a young person is high, the perception of such involvement, given his history, could be injurious to his reputation and that of the young person and hence should be avoided. References 54 The Applicant provided the Tribunal with references from two people who were not required for cross examination. In an undated reference from his step daughter she stated that she had known him since 1984 when her mother began a relationship with him and that he had been a father and grandfather to her children. She stated " I have been told about the incident that concerns him and his daughter ……and have a great deal of emotion about this but can honestly say that I myself or my children have never been harmed or threatened physically or emotionally." She stated that since her mother died in 2001 she continued to have almost daily contact with the Applicant and described him as a wonderful person to her and her family. 55 In the second reference a close friend stated he had known the Applicant for over twenty years and that the Applicant was the President of a local fire brigade and the honorary treasurer of a local hall committee. He stated he had known the Applicant for over twenty years and described him as a person of high integrity, very trustworthy and also said that he was well respected in the community. The Applicant told the Tribunal that the referee had been a captain and president of a local fire brigade and a local citizen of the year. Other evidence and submissions 56 The Applicant acknowledged that the offence was serious and told the Tribunal he wished it had never happened. 57 The Applicant maintained that the sexual relationship with his daughter had only continued for a few months. Dr Lennings' report stated that the Applicant had told him that the offences lasted for nine months. 58 Shortly after the offence was discovered the Applicant admitted himself to a psychiatric unit as a voluntary patient. He was referred to a psychiatric registrar Dr Bardon for assessment. Dr Bardon stated, in a report dated 26 September 1984, that the Applicant had described the sexual relationship with his daughter which had been going on for the previous 8-9 months. 59 During cross examination the Applicant was taken to his police record of interview in June 1984, in evidence before the Tribunal, regarding the incidents that formed the index offence. He was recorded as telling the police that he had sexual intercourse with his daughter since his wife had walked out the previous September. If that was the case then his sexual relationship with his daughter would have continued for approximately nine months. The Applicant denied it had lasted that long and said it was only for a few months. He told the Tribunal he did not recall his assessment with Dr Bardon and referred to the length of time since the events. 60 The Applicant referred to his reference from his step daughter and said he had had close contact with her and her three young children. He told the Tribunal he did not have any interest in any young girl, the index offence happened over twenty years ago and that he had not offended since then. 61 He asked the Tribunal to take into account his age and medical conditions. The Applicant did not place any direct evidence regarding his medical conditions before the Tribunal. In his report Dr Lennings referred to the Applicant's self report of a back, neck, shoulder and head injuries as well as Pyrene's Disease, a disease of the penis. The Applicant has a penile prothesis and is unable to have an erection without assistance. 62 The Applicant relied on Dr Lennings' report submitting that Dr Lennings considered his risk was minimal. The Applicant also told the Tribunal that he enjoyed his work in the rural fire brigade and wanted to return to his position as a deputy captain. Discussion and Conclusion 63 There is a rebuttable presumption that the Applicant poses a risk to the safety of children [section 33J(2) of the Commission Act] and the onus is on the Applicant to prove that he does not pose such a risk. In determining whether to grant the application I must have regard to the factors listed in section 33J(3). 64 The Applicant acknowledged that the offence of carnal knowledge with his daughter occurred and that his conduct was serious. 65 Dr Lennings stated that the Applicant told him that the sexual relationship lasted 9 months. That is consistent with the applicant's responses on the police record of interview and the report of Dr Bardon. Both of those records were made in 1984. The Applicant disputes this. On his own evidence he had a sexual relationship with his 16 year old daughter for a few months. 66 On the basis of his own evidence and that of Dr Lennings, the police record of interview and the report of Dr Bardon I am satisfied that he did have a sexual relationship with his daughter and that the index offences occurred within that sexual relationship. I consider it more likely than not that the relationship continued for eight months on the basis of the contemporaneous records made at the time. 67 Other than these sexual offences the other matters on his criminal record are minor stealing offences and bear no relevance to whether he poses a risk to the safety of children. 68 There was a significant age difference between him and his daughter at the time of the offences. He was a mature man of 40 years old and his daughter was 16 years old. 69 I accept the Applicant's evidence that he acknowledges the seriousness of the offence and that the offences occurred over twenty years ago. I also accept his evidence that he has had a long involvement in his community including in the rural fire service as a volunteer deputy captain, captain and president of his local brigades. 70 Other than the conduct towards his own daughter described above there is no evidence to suggest that he has ever harmed another child. He has had a stable employment record. 71 Dr Lennings is an experienced clinical psychologist and an expert in assessing child sex offenders. I accept his opinion that the Applicant poses a low risk. However Dr Lennings did finish his report by saying that he considered it would be helpful if the Applicant's superiors were aware that the Applicant should not be in a position of mentoring or isolating himself with a young person. 72 The Commission Act makes it very clear that the safety and welfare of children, and protecting them from child abuse is the paramount consideration. In this instance the seriousness of the index offences, the fact that the Applicant was a mature adult at the time of the offences and Dr Lennings opinion that the Applicant poses a low risk and should not be in a position of mentoring or isolating himself with a young person mean that despite the factors in the Applicant's favour I am not satisfied that he has rebutted the presumption that he poses a real and appreciable risk to children. 73 I now need to consider whether conditions could be imposed that would reduce his risk to one below "real and appreciable". The Applicant wants to return to his voluntary work as a deputy captain of his local fire brigade. As stated earlier there is insufficient evidence before me to determine whether a deputy captain's role in the rural fire brigade is child related employment within section 33(1)(a) of the Commission Act. Given that I have no evidence at all from the rural fire service or any office bearer of his local brigade I am not able to determine whether the rural fire service could accommodate any conditions that would reduce his risk to one below real and appreciable. Consequently I am not able to make conditions. 74 For these reasons I have decided not to grant the application. Order The application is dismissed.