Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AAZ v Commission for Children and Young People [2012] NSWADT 75 Decision date: 26 April 2012 Jurisdiction: Community Services Division Before: S. Higgins, Deputy President Decision: 1.It is declared that Division 2 of Part 7 of the Commission for Children and Young People Act 1998, does not apply to AAZ in respect to the offence of 'committing an of indecency towards a person under the age of 16 years to wit 15 years in circumstances of aggravation' of which he was convicted, in the Local Court of New South Wales, on 17 July 1997. 2.The Registrar is requested to provide a copy of these orders to the Commissioner of Police, New South Wales Police. Catchwords: Declaration - prohibited person - whether the applicant has discharged his onus that he poses no risk to the safety of children Legislation Cited: Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 (repealed) Commission for Children and Young People Act 1998 Crimes Act 1900 Rural Fires Act 1997 Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949 IH v Commission for Children and Young People [2009] NSWADT 202 L v Commission for Children and Young People & anor [2008] NSWIR Comm 195 R v Commission for Children and Young People [2002] NSWIR Comm 101 RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 RV v Commission for Children and Young People [2007] NSWADT 299 Category: Principal judgment Parties: AAZ (Applicant) Commission for Children and Young People (Respondent) Representation: Counsel P Lowson (Respondent) L Hagan for the Applicant Crown Solicitor (Respondent) File Number(s): 114002 Publication restriction: S 126 of the Administrative Decisions Tribunal Act 1997 REasons for decision Introduction 1COMMUNITY SERVICES DIVISION: (S Higgins, Deputy President): Due to the sensitivity of these proceedings, in these reasons for decision, the applicant is referred to by the pseudonym AAZ (also see section 126 of the Administrative Decisions Tribunal Act 1997 (ADT Act)). 2AAZ has made an application to the Tribunal seeking an order under section 33I of the Commission for Children and Young People Act 1998 (the Commission Act) declaring that Division 2 of Part 7 of that Act is not to apply to him in respect of an offence of which he was convicted, in the Local Court of New South Wales, on 17 July 1997. The offence for which AAZ was convicted was an offence of 'committing an act of indecency towards a person under the age of 16 years to wit 15 years in circumstances of aggravation', contrary to section 61O(1) of the Crimes Act 1900. The offence was alleged to have occurred during the month of September 1996. 3For the purposes of this application this offence is referred to as the 'index offence' as it is the offence that brings AAZ within the terms of the Commission Act. 4As a consequence of the index offence, AAZ is a 'prohibited person' and is prohibited from applying for or obtaining 'child-related employment' (see sections 33B and 33C of the Commission Act), unless he obtains an order under section 33H or 33I of the Commission Act. 5AAZ has brought this application as he wishes to re-join the NSW Rural Fire Service (RFS) as a volunteer member. AAZ was been a volunteer member of the RFS for many years. In 2008, he resigned from the RFS when he was requested, by the RFS, in compliance with the organisations child-related activities check, to submit a 'prohibited employment declaration form'. As I have explained below, it appears the respondent, the Commission for Children and Young People (the Commission), accepts that the RFS is not an organisation falling within the description of 'child-related employment' under the Commission Act. At the same time, it is not disputed that the RFS is involved in 'child-related activities' through its acceptance of junior and cadet members. 6AAZ said he resigned from the RFS so that he could obtain a declaration under the Commission Act, the effect of which would mean that he was no longer a 'prohibited person' for the purposes of the Act in so far as it related to his index offence. AAZ did in fact make an application to the Tribunal in 2008: see IH v Commission for Children and Young People [2009] NSWADT 202. The decision of the Tribunal was published on 31 July 2009. The decision of the Tribunal did not finally determine the matter. Instead the Tribunal sought submissions from the parties on the question as to whether an order, with conditions, should be made. The Commission opposed any order with conditions and the Tribunal subsequently refused AAZ's application on 8 September 2009. This decision of the Tribunal was extempore and no reasons for decision were published. At the time of refusing to make the orders sought, the Tribunal also made an order entitling the applicant to make a further application under the Commission Act at any time. In accordance with that order, this is the further application of AAZ. 7The Commission continues to oppose any order (i.e. including an order subject to conditions) being made in favour of AAZ under the Commission Act. 8Having carefully considered all the relevant material, in the context of the applicable law, for the reasons set out below, I am satisfied that AAZ has discharged his onus and that it is appropriate to make the order sought. Relevant legislation 9As I have mentioned, the legislation relevant to AAZ's application is Part 7 of the Commission Act. Section 33C of that Part contains a statutory prohibition on 'prohibited persons' applying for, undertaking or remaining in 'child-related employment'. Section 33E prohibits an employer from employing a 'prohibited person' in 'child-related employment'. Section 33D requires an employer to ascertain whether an employee is a 'prohibited person' if employing that person in 'child-related employment.' 10The term 'prohibited person' is defined in section 33B of the Commission Act. So far as it is relevant, subsection 33B(1)(a) provides that a 'prohibited person' means a person 'convicted of a serious sex offence' (i.e. an index offence). The word 'convicted' is defined in section 33(1) to include '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.' 11The term 'serious sex offence' is defined in subsection 33B(3) of the Commission Act. It relevantly means 'an offence involving sexual activity or acts of indecency that were committed in New South Wales and that were punishable by penal servitude or imprisonment for 12 months or more.' In this application, there is no dispute that the index offence of which AAZ was convicted falls within this definition and therefore a 'serious sex offence'. 12The term 'child-related employment', is broadly defined in section 33(1) of the Act. It relevantly provides as follows: child-related employment: (a) means 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: (i) ..., (ii) ..., (iii) ..., (iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999), (v) employment in refuges used by children, (vi) ..., (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, (viii) employment in any religious organisation, (ix) ..., (x) ..., 13The word 'employment' is also broadly defined in subsection 33(1) to include 'performance of work as a volunteer for an organisation.' The word 'children' is defined in section 3 of the Commission Act to mean a person under the age of 18 years. Consequently, the word 'child' in Part 7 has been given the same meaning. As I have explained below, it would appear that the RFS, as an organisation, does not fall within the description of 'child-related employment' in subsection 33(1). However, it is accepted that some members of the RFS do engage in child-related activities. This is discussed in more detail below. 14The statutory prohibition in section 33C does not apply where the 'prohibited person' obtains an order under section 33H or 33I of the Commission Act declaring that Part 7 does not apply to the index offence of which the person has been convicted (including a finding of guilt) (see subsection 33B(2)). The Tribunal has jurisdiction to make such an order under section 33I of the Commission Act (see subsection 33I(1)). It also has the power to make an order subject to conditions (see 33I(6)). 15Section 33I of the Commission Act relevantly provides as follows: 33I IRC and ADT may make declarations concerning prohibited persons (1)On the application of a prohibited person, a relevant Tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence. (2)A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (3)The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. (4)An applicant must fully disclose to the relevant tribunal any matters relevant to the application. (5)If the relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 33H in respect of that until after the period of five years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of the refusal. (6)Orders under this section may be made subject to conditions. (7)The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs, and (b) an appeal lies on a question of law to the Supreme Court of any party to the proceedings. 16Subsection 33G prescribes a number of offences for which a 'prohibited person' is not entitled to make an application for an order under section 33H or 33I. The index offence of which AAZ was convicted is not an offence of this kind. 17Section 33J of the Commission Act sets out the matters that are to be considered by the Tribunal in determining an application by a 'prohibited person' under section 33I. That section provides as follows: 33J Matters to be considered in determining review applications (1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. (2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (3) In deciding whether or not to make an order in relation to a person, the Commission or a relevant tribunal is to take into account the following: (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. 18Section 32 of the Commission Act provides that 'the safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of' Part 7. 19The Court of Appeal has recently confirmed that the exercise of the Tribunal's jurisdiction under section 33I of the Commission Act is protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. That is, the purpose of this Act is not to impose additional punishment on a prohibited person, but to eliminate possible risks to children. The repealed Child Protection (Prohibited Employment) Act 1998 (Repealed Act) had a similar purpose: see R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. 20The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of subsection 9(4) o the Repealed Act. That subsection was in similar terms to subsection 33J(1) of the Commission Act, in that the Tribunal's discretion to make an order only arose where the Tribunal 'considered' the applicant did not pose a risk to children. However, the Repealed Act did not contain a statutory presumption of a risk of harm, an express onus on the applicant to prove that he/she did not pose a risk of harm as found in subsection 33J(2) of the Commission Act. Nor did the Repealed Act contain a provision in the terms of section 32 of the Commission Act. Nevertheless, His Honour's remarks in regard to the meaning of risk have continued to be cited, with approval, since the commencement of the provisions in Division 2 of Part 7of the Commission Act: see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15], L v Commission for Children and Young People & anor [2008] NSWIRComm 195 at [31], FZ (supra) at [60], 21In V (supra), after citing with approval remarks made by Peterson J in L v Commission for Children and Young People [2001] NSWIR Comm 134 and Haylen J in R v Commission for Children and Young People [2002] NSWIRComm 101, Young JA said the following at [42]: '42 ...[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 a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...' 22At [43], His Honour rejected the contention of the respondent that 'children' in subsection 9(4) of the Repealed Act meant children generally. That is, His Honour rejected the proposition that the subsection should be read to mean that where an applicant is found to pose a risk to a section of children (i.e. female teenage children), there is a risk to children generally. His Honour said the subsection should be read to mean: '43 ...a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. If a person is going to be employed amongst boy children, then the fact that he might be a risk to girl children may be quite irrelevant. 44 As against this, there is the fact that under the section a prohibited person is either declared to be a person to whom the Act does not apply, or else no declaration is made. The answer ... to this is that the power under s9(9) can be brought into play. That is, for instance, a declaration can be made subject, for instance to the condition that the declaration will cease to have effect if the person changes his or her current employment or if he or she commences to work with different types of children.' 23The essence of the remarks of His Honour Young JA, is that when considering risk, the ability to impose conditions should not be disregarded. That is, subsection 9(9) of the Repealed Act has been held to mean 'the imposition of relevant conditions [that] 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': see RV (supra) at [16]. 24Subsection 33I(6) of the Commission Act has been construed to have the same effect. However, as I have already mentioned, this provision must be read together with the provision that presumes the applicant to be a risk to children by reason of the index offence and the applicant's onus to establish that he/she does not pose a risk to children. Accordingly, if the applicant seeks an order subject to conditions, the onus remains on the applicant to establish that with the imposition of conditions he does not pose a risk to children. 25I note that orders subject to conditions under section 33I of the Commission Act are seldom sought, or made: for example see ADV (supra) and RV (supra). Section 33J(3) factors 26AAZ is 45 years of age. AAZ is a tradesman and has been working in his trade since 1990. He is currently self-employed. He was employed with the NSW Fire Brigades from January 1989 to August 1997. At the same time, from 1982 until 2008, AAZ was a volunteer in the RFS. In December 1996, following his arrest and charge of two offences, AAZ was suspended from all fire fighting duties pending resolution of the charges. AAZ subsequently resigned from the NSW Fire Brigades when he was convicted of the index offence. Index offence 27In December 1996, AAZ was apprehended and charged by police with the index offence and another more serious offence. As the charge for the more serious offence (alleged to have been committed in 1995) was dismissed, I have not considered it any further other than to note, it was an offence involving the same alleged victim in circumstances where AAZ had allegedly consumed alcohol. 28The index offence of which AAZ was found guilty was an offence under section 61O(1) of the Crimes Act 1900, which is in the following terms: Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, in either case in circumstances of aggravation, is liable to imprisonment for five years. 29Subsection 61O(3) defines the term 'circumstances of aggravation' for the purposes of subsection 61O(1) and includes circumstances where the alleged victim of the offence is under the authority of the alleged offender (see paragraph 61O(3)(b)). 30AAZ was charged with the index offence after a complaint was made to police, in November 1996. At the time, AAZ was living with his second wife and her four children, aged between 6 and 15 years. They had been living together for about 3½ years. In December 1995, AAZ and his second wife married. The index offence of which AAZ was charged involved his wife's 15 year old daughter (AAZ's stepdaughter). The conduct, the subject of the index offence, was AAZ taking photographs of his stepdaughter topless. The Tribunal has been provided with a copy of the police brief of evidence in regard to the charges and the transcript of the proceedings before the Local Court on 8 April 1997. The matter was part heard on that day. The hearing was adjourned to 17 July 1997. On this day, AAZ was found guilty, convicted and sentenced for the index offence. The other offence of which AAZ was charged was dismissed. A transcript of the adjourned proceedings (including the findings of the Magistrate and the remarks on sentence) was not available. However, the record of the conviction and sentence were available. 31It was the evidence of the stepdaughter that, on 17 September 1996, when she was home sick from school, AAZ, who was the only other person at home, had gone upstairs to sunbake. AAZ's stepdaughter, had also been sunbaking, but decided to go back downstairs to the lounge room to play ninetendo as she was too hot. She alleged that shortly after this, AAZ came downstairs to the lounge room with a towel wrapped around his waist and a polaroid camera in his hand. She said AAZ took a photo of her in her dress, under which she was wearing her 'cosie'. She said that AAZ then took a photo of her in her 'cosie' and he then said to her to pull down her straps. She said that she pulled them down her shoulder a little bit, to which AAZ said not to be shy. She went on to say that AAZ then pulled down her straps to her elbows. He then pulled down the straps to the edge of her arms and finally below her breasts. AAZ took further photographs during this time. AAZ then dropped the towel and was naked. He asked his stepdaughter to take some photos of him. After she had done this he took the camera and the photographs downstairs. 32In his record of interview with police, AAZ denied he had taken any photographs of his stepdaughter as alleged. He acknowledged that he owned the polaroid camera and that he and his wife had taken photographs of themselves in the nude, with the camera. As pointed out by AAZ, no photographs were found or produced by police during the criminal trial before the Local Court. 33AAZ defended the charges made against him. I note he was legally represented at the hearing before the Local Court and that his legal representative extensively cross-examined AAZ's stepdaughter and the other witnesses called by the prosecution. AAZ informed the Tribunal that he did not appeal his conviction on the advice of his legal representative. It is not for the Tribunal to look behind the conviction. At the same time, AAZ acknowledges that conduct of the kind of which he was convicted was unlawful and totally inappropriate. 34It is regrettable that a transcript of the Magistrate's remarks on sentence is not available. Nevertheless, having formally convicted AAZ of the offence charged, the Magistrate must have accepted the evidence of AAZ's stepdaughter. He was fined $500.00 and was released upon entering a bond to be of good behaviour for a period of 2 years. 35I agree with the Commission that the offence of which AAZ was convicted is a serious offence. It was committed at a time he was in a position of trust, as a parent. Furthermore, it was committed at a time he was alone with his stepdaughter. Nevertheless, I also accept that it was at the lower end of seriousness in the sale of such offences. Nor did it involve any violence or threat of violence. 36Although AAZ continues to deny that he engaged in the conduct of which he was convicted, he accepts that the conduct the subject of his conviction is a serious matter. In his evidence he said he understood that children must be kept safe and 'the need for protective orders against sex offenders'. He went on to say 'I simply have difficulty accepting I am a convicted sex offender. I have no other offences.' It is AAZ's evidence that as a result of his conviction he knows he needs to be careful when he is in close situations with children and avoid a one on one situation with children in the workplace. 37It is the contention of the Commission that AAZ's ongoing denial, in the face of the evidence before the Local Court, shows a lack of insight into his unlawful conduct. The age of AAZ and his stepdaughter at the time the offence was committed 38At the time of the offence, AAZ was 29 years of age and his stepdaughter was 15 years of age. That is, the difference in age between AAZ and his stepdaughter was 14 years. Whether AAZ knew, or could reasonably have known, that his step-daughter was a child 39As I have explained, the Commission Act defines a child to be person under the age of 18 years. There can be no question that at all times AAZ knew the age of his stepdaughter and that she was a child at that time. AAZ's present age 40As I have already indicated, AAZ is now 45 years of age. That is, 15 years have passed since the index offence was committed. AAZ's total criminal record 41The index offence remains the sole offence for which AAZ has been convicted. Other matters 42AAZ has raised a number of matters, which he asserts demonstrate that he poses no risk to children. In this regard he points to his employment history, during which no complaints have been made against him and his most recent personal history of a six year stable relationship with a woman who has two daughters from a previous relationship. 43The other relevant matters are the evidence of the expert clinical psychologist, Dr Christopher J Lennings and the structure of the RFS and the involvement of children as members of that organisation. The latter is relevant to the issue of an order with conditions. 44Personal history. It is convenient to first deal with AAZ's personal history. 45AAZ first married at the age of 22 years. That marriage lasted for six years and during that marriage a child was born. The child, a daughter is now in her late teens and AAZ has no contact with her. AAZ claims that his relationship with his first wife was very strained. He then formed a relationship with the mother of his stepdaughter. As I have indicated they married in December 1995. That relationship broke down at about the time AAZ's stepdaughter made her complaint to police. I note the breakdown was acrimonious. In early 1997, AAZ was also subject to an interim apprehended violence order following an altercation with his then brother-in-law. 46In early 1997, AAZ met another woman who subsequently became his third wife, in 2002. This woman had a daughter, who was 10 years old at the time they met. It was AAZ's evidence that his third wife was fully aware of the offences of which he had been charged and that she had supported him throughout the court processes in the Local Court. AAZ's evidence is that his marriage to his third wife was not a happy one. AAZ separated from his third wife in 2006. Again it was a very acrimonious separation during which his third wife made a number of 000 calls falsely reporting fires at her home. He also said she made false reports, about him, to police and 'DOCS'. In April 2008, the Local Court issued an apprehended domestic violence order against AAZ's third wife. The application was made by a local police officer and the protected person was AAZ. It was AAZ's evidence that not long after the apprehended domestic violence order was issued, his third wife ceased making abusive calls to him and about him. 47AAZ met his current partner in 2002, when she became a volunteer of the RFS brigade in which AAZ was a member. It is AAZ's evidence that, initially, their relationship was entirely professional. Over time they became close friends by sharing their respective personal and professional experiences. Subsequently, after AAZ had separated from his third wife, he and his current partner moved in together. His current partner's 2 daughters (then aged 6 and 12) also moved into the same home. It is AAZ's evidence that his current partner 'was aware of my charge'. 48There is evidence of 2 reports having been received by the then Department of Community Services (DOCS), in March 2008, alleging that AAZ was involved in inappropriate behaviour with the daughters of his current partner. AAZ vehemently denied any inappropriate behaviour and said his third wife had openly spoken about reporting him to 'DOCS'. AAZ provided the Tribunal with documents he had obtained from the Department for the purpose of these proceedings, under the Government Information (Public Access) Act 2009, which state that no action was taken in regard to either report and that each matter was closed. I note that these reports were made just prior to the apprehended violence order having been issued against AAZ's third wife. 49AAZ's evidence is that he has never been a large drinker and that he is now only an occasional social drinker. He drinks the occasional light beer on the odd day or a glass of red wine with his dinner at weekends. He said he has never drunk alcohol at the workplace nor has he attended work under the influence. In regard to the offence for which AAZ was charged, but not convicted, I note, during his record of interview with police, AAZ denied the allegation. However, he did make admissions about his drinking and he also acknowledged that it was not appropriate for an adult to give a child alcohol. 50Following the initial hearing date, AAZ filed and served an affidavit of his current partner. At the request of the Commission, his current partner was made available for cross-examination at the adjourned hearing on 15 December 2011. 51In her affidavit, AAZ's partner said she has known him for nine years. She explained that in the beginning their relationship was strictly professional. She said AAZ was a highly respected and a trusted member of their RFS team. After three years or so, she said they became very close. They both separated from their respective partners and then moved in together. She said AAZ had told her of the details of the charge that had been made against him. It was her evidence that she did not believe he had done what he had been accused of doing. It was her evidence that she and AAZ have a sound relationship in which AAZ is supportive and caring. She said they enjoy each other's company. She went on to say that AAZ has a good relationship with both her girls. She said her daughters would love to have been able to call him 'dad' and been able to get closer to him as he is the only fatherly figure they have. But he has not allowed this to happen. She said she presumes this is because of past circumstances. It was her evidence that AAZ has never allowed the children to sleep with them. Nor has he intruded into her daughters' private spaces. She said she trusts AAZ around her daughters. She said her mother is very involved in her life and that of her daughters and that she thinks the world of AAZ. She said that she has never seen AAZ intoxicated nor has she known him to be a heavy drinker. She also mentioned AAZ's passion about the RFS. 52During cross-examination, it became apparent that AAZ had not been fully frank with his current partner about the circumstances surrounding the offences of which he had been charged in 1996. He had for instance made no mention of the charge that was dismissed. Nor did he appear to have fully explained the evidence that had been given against him in regard to the offence of which he had been found guilty and convicted. 53I accept the evidence of AAZ and his partner that they have had a stable and mutually supportive relationship for the past six years. I also note that there have been no further reports of any incidents involving the children of his second wife, or the two daughters of his current partner. On the contrary it appears that he has a good relationship with the daughters of his current partner, the older daughter now being an adult and also interested in rejoining the RFS. If she were to rejoin then she would be an adult member as she is now over 18 years of age. Nor are there any reports of incidents involving the daughter of his third wife, with whom AAZ had lived for about 9 years. 54The Commission contends that AAZ's lack of frankness with his current partner is also indicative of his lack of insight into his contravening conduct and hence it cannot be said he poses no risk to children. 55Employment history. As I have already mentioned AAZ was employed with the NSW Fire Brigade for eight years from 1989 to 1997. 56AAZ has also been an active member of the RFS for around 26 years. In August 2002, he reached the position of captain of his local brigade. He held that position for 8 years and on his evidence it would appear that during this time, the membership of the brigade did occasionally include some junior members. For example, the daughter of his current partner. 57There is no record of any complaint having been made about AAZ during his employment with the NSW Fire Brigade or the RFS. 58In support of his application, AAZ filed and served a reference from Superintendent R, the Zone Manager, of the zone in which AAZ's local brigade was located. In his reference, Superintendent R made no mention of AAZ's conviction of the index offence. Nevertheless, he said he had known AAZ, through the RFS, for 17 years. He said AAZ has been a valued member of his local RFS brigade for 23 years. He went to say that he found AAZ to be entirely trustworthy, kind and conscientious giving total dedication to any task requested of him. He said that AAZ was held in high regard in the local community and no grievance or disciplinary matters have been raised against him during his time with the RFS. 59At the request of the Commission, Superintendent R gave evidence at the hearing on 30 September 2011. During cross-examination, Superintendent R acknowledged that his evidence was given in his personal capacity and not in his official capacity as an employee of the RFS. He said AAZ had informed him of his conviction for the index offence after he had prepared his reference. He said he understood from AAZ that the offence for which he had been convicted was a minor one, in that it involved AAZ taking photographs of a minor. He said he was not aware that the minor was his stepdaughter. On being informed of this, Superintendent R said his opinion about AAZ remained the same. Superintendent R also gave evidence about the structure and the operation of the RFS, including the involvement of children. I have dealt with this in more detail below. 60Again, the Commission contended that AAZ's lack of frankness, in disclosing his conviction to Superintendent R, evidenced a lack of insight into his contravening conduct. 61Expert evidence. At the request of the Commission, AAZ had a consultation with Dr Lennings, a clinical psychologist with extensive knowledge and expertise in a variety of areas including child protection assessments. Dr Lennings first saw AAZ on 20 October 2008 and he provided a report, to the Commission, in regard to his assessment on 29 October 2008. The respondent relied on that assessment for the purposes of AAZ's earlier application. The Commission continues to rely on it for the purpose of these proceedings (i.e. Dr Lennings' first report). 62At the request of the Commission, Dr Lennings interviewed AAZ, by telephone, for the purpose of these proceedings. That interview occurred on 28 April 2011. On 10 May 2011, Dr Lennings provided a further psychological report in regard to AAZ. The Commission also relies on this report of Dr Lennings (Dr Lennings' second report). 63In his first report Dr Lennings concluded that while objective factors indicated that AAZ posed a low risk, subjective features suggested a pattern of risk might remain. He concluded, at [32], that AAZ did not present with a personality disorder or a mental illness. However, at [30] he said: '30 ... [AAZ] is a man approaching middle age with a long history of community service and interest in fire-fighting. He also has a long history of difficult relationships and in one of them was alleged of improper sexual behaviour towards his step-daughter. Objectively his risk is low as assessed on both Static and dynamic risk factors. There is some concern that the high level of denial in his behaviour exposes him to situations which may end up in boundary violations, but the risk of sexual violence to young people seems remote. Nonetheless there are important caveats around his assessment and I am uneasy with the proposed risk assessment. [AAZ] seems to have problems in relationships and is possibly quite manipulative within them. I am surprised at the animosity that exists between he and former partners, and the between partners and it seems he has chosen quite volatile women in the past. The outright denial of the offence is at odds with the finding of guilt and for the purpose of this assessment the finding of guilt is accepted as with presenting the arousing of the situation. Despite this his risk is low, but the offence indicates that in the presence of a difficult relationship and alcohol his ability to enforce boundaries is weak. Combined with what seems to be an elevated sexual interest, the offence occurred and there is little in his account to me that indicates that anything much has changed for him. Other than having been caught, the possibility of a re-offense remains in conditions that gave rise to the first offence were to be repeated.' 64At [31] of his first report, Dr Lennings noted that the specific environment in which AAZ sought exemption was important. At [34], Dr Lennings suggested that if an exemption were to be given, consideration could be given to putting in place strategies, which would lessen future risks. He said the only viable ones were monitoring and supervision and went on to say the following: '34 ... Such monitoring should include at the least a requirement that [AAZ] not consume alcohol at work ... and that should work socials be organised in which young people will be present he should not consume alcohol on those occasions. I also think he should not be in that position where he is 'one on one' with young people, but should endeavour to have a colleague with him. As AAZ has been a captain for much of his recent fire fighting experience, the likelihood is that he (sic) should he go back to the fire service he will be the senior officer present. Thus the supervision appears unlikely as a viable option, but ensuring that a senior manager checks on the compliance of [AAZ] from time to time with the requirements to always have another adult fire officer present seems important. Given that such a person is likely to be subordinate to [AAZ] and the rural setting of the service, how to get around the need for the officer opposite accompanying [AAZ] to be aware of his responsibilities and while is a dilemma that may be hard to solve but will be required. Realistically as the senior officer if cadets are to be accepted by the Service ... then, requiring [AAZ] not to have contact with them is not possible. Hence the need to ensure he accepts the spirit of the need to develop a safety approach.' 65Dr Lennings' conclusions in his second report are found at [18] to [20]. These are in the following terms: '18 Opinion The salient issues in this update have been the relevant absence of any changes to [AAZ's] life, the reduction of alcohol use, the absence of conflict (as far as I can gather in his relationship with his partner and her daughters, the absence of any police or DoCS intervention, and the absence of any further allegations. [AAZ] presented as calmer and more reflective in his current assessment, despite the use of telephone as the communication medium. 19 The essential dilemma remains. The original risk assessment identified three potential risk factors, those of substance abuse and relationship issue seen less compelling now than they did two years ago. That is, on dynamic risk factors there is now a lesser likelihood of inappropriate sexual behaviour than there was two years ago. However, although his risk is low, it remains uncertain. The Fire Service material indicates that he is not likely to receive continues (sic) one to one supervision, so if any risk is remaining it cannot be managed. Thus the consideration of the likelihood that he would re-offend has to be considered. It was noted that three conditions were necessary to co-occur to suggest that [AAZ's] risk was appreciable. These were the introduction of alcohol into the setting, the absence of there being any work colleagues, and the availability of a young victim. To the extent that [AAZ] has continued to live in the area, and his step-daughters without complaint about his behaviour, some confidence in his ability to manage his relationships has to be entertained. His self-reported claim of reduced alcohol use is also encouraging. The absence of any psychological harms such as drink driving charges or any COPS notifications or intelligence reports as to alcohol and related behaviours is also supportive of his self-report that alcohol use is not a problem for him. 20 It seems that there is not much that [AAZ] can do to demonstrate a reduction in risk, his risk was objectively low to start with, the subjective features referred to in my report have reduced simply as a passage of time and the absence of any complaint. Otherwise my initial report remains unchanged. There are no viable strategies for reducing what risk may be perceived, he will either be viewed as having a risk sufficiently low not to be an acceptable risk (as a function of the demonstrators ability in his relationships, reduction in alcohol use and absence of complaint) in which case he may be eligible for an exemption, or the absence of any complaints, the stability of his relationship and the claimed reduction in alcohol use will not be regarded as sufficient to moderate risk in which case he may well not qualify for an exemption.' 66Structure of the RFS The RFS is established under section 8 of the Rural Fires Act 1997. It is made up of employees (staff) and volunteer members (i.e. volunteer rural fire fighters). I note the 2011 RFS annual report states that there are about 920 employees and 70,448 volunteer members. As I understand the evidence of Superintendent R, who is an employee, that the structure of the RFS is hierarchical, with the volunteer members being at the lower end (i.e. community based end) of the hierarchy. At the head of the organisation is the Commissioner of the RFS. As I understand it, for operational purposes the State of NSW is divided into 4 rural fire regions. Under each region there are the rural fire districts of each local authority within that region. Each district is divided into several rural fire zones and each zone is made up of the local brigades, or group of brigades that are located within that zone. The brigades, or group of brigades are entirely made up of local community volunteer members. 67Each local authority within NSW is responsible for establishing rural fire brigade and groups of rural fire brigades within its rural fire district (see sections 6, 7 and 15 of the Rural Fires Act). It is the evidence of Superintendent R that the average size of a brigade is 20 to 25 voluntary members. 68Each brigade is led by a captain, selected from the voluntary members of that brigade. The captain, with the support of the deputy captain(s) (also a voluntary member of that brigade), is responsible for co-ordinating the members and the brigades activities. The captain is subject to the direction of the Commissioner and his officers. As I have indicated, prior to his resignation, AAZ was the captain of his brigade. It is the evidence of Superintendent R that the role of a captain is to respond to incidents as directed by the RFS and to ensure that the equipment, trucks etc are maintain for immediate use should the need arise. He said, on average, a captain commits 10 hours a week to the RFS. 69Every brigade group is led by a group captain and a deputy group captain(s), who are also selected from the voluntary members of each brigade within that group. 70There are several categories of voluntary members of the RFS. These are, adult members (defined as being 16 years of age and above), junior members who are between the age of 12 and 16 years and cadets. Cadets are junior members (i.e. between the age of 12 and 16 years) of a cadet rural fire brigade that is either community based or school based. I understand that it is not unusual for a brigade to have junior members as they are seen as an important part of maintaining the RFS's adult membership. However, junior members are not permitted to be involved in any fire fighting, hazard reduction or other operational activities. 71It is the contention of the Commission that, on the material available from the RFS, an order subject to a supervision condition, was not possible or practicable. The material relied on by the Commission was a letter from the RFS Director, Membership and Strategic Services (the Director), dated 4 November 2011. The letter was written in response to a letter from the legal representative of the Commission. 72In her letter, the Director states that as an organisation, the RFS does not engage in child-related employment as defined in the Commission Act. However, it does engage in child-related activities and for this reason, the organisation has developed a number of RFS Service Standards concerning child related activities, a copy of which are attached to the letter. She said that all new members (adult and junior), those transferring from one brigade to another and those appointed to the position of deputy captain and above, are routinely subject to a criminal history check. A working with children check is also added as part of this process if that member will become engaged in child related activities. The Director went on to say the following: 'Because the RFS does not engage in child related employment, a member whose criminal history check shows that he or she is a prohibited person will not automatically be denied membership of the RFS or removed from membership - unless of course they are a member who is to be involved in child related activities. If not, the decision to admit them to or remove them from membership will be a matter for the Commissioner (or his delegate) to exercise discretion depending on all the circumstances of the particular case. This will involve a consideration of the nature and circumstances of the offences) involved, their remoteness in time (if applicable) and the history of conduct in the intervening period. A decision to admit such a person to or not remove them from membership may involve additional monitoring or conditions, for example that they are not to engage in child related activities or be a member of a Brigade which also contains junior members.' 73I note, the Director asserts that AAZ has been denied membership on the basis of being found that he was not 'a fit and proper person'. No further details were provided. However, I note from material filed, by consent, by AAZ's legal representative on 31 January 2012, that on an inquiry by AAZ, there does not appear to be any record held by the RFS to support the assertions made by the Director. In any event, this is not an issue for determination in these proceedings. Whether AAZ is fit and proper to be a member of the RFS is entirely a matter for the RFS to determine, having regard to the role he would be given as a member of the RFS. 74The Commission has not made any submissions contrary to that which is contained in the letter of the Director. That is, they appear to agree that the RFS is not an organisation falling within the description of 'child-related employment' as defined in the Commission Act. Nevertheless, the Commission appears to contend that, at best, any order that is made should be subject to supervision/monitoring conditions to ensure that AAZ has no 'one to one' contact with children in the RFS setting. For the purpose of the 2008 application of AAZ, the Commission submitted, on the basis of advice from the RFS and the relevant RFS Service Standards, that as a matter of day-to-day practice of the RFS, a condition of this nature could not be implemented, unless AAZ was able to nominate a particular person who would be responsible for such supervision/monitoring. The Commission relied on the same information for the purpose of this application. Consideration 75As pointed out, by Haylen J, in R (supra), at [105], an order under subsection 9(1) of the Repealed Act (the equivalent to subsection 33I(1) of the Commission Act) attaches to a person in respect of the index offence which brought him/her under the terms of the Act. That is, an order under that subsection does not merely allow the person (the applicant) to work or continue to work in a particular child-related employment. It is an order, if made in favour of an applicant, which will exempt the applicant from the operation of the Act in respect of the index offence. His Honour went on to say that as a result of this effect, to make an order under this subsection in favour of an applicant, 'the Commission [in that case, the Industrial Relations Commission] is to be satisfied that the person [i.e. an applicant] is an appropriate person to engage in all child-related employment, including the performance of work as a volunteer for an organisation' (bold added). 76Accordingly, although AAZ's application is based on a desire to be able to work with the RFS as a volunteer, his application must first be considered in the broader context as to whether he has discharged his onus that he is an appropriate person to engage in all child-related employment. That onus is discharged if AAZ satisfies the Tribunal that he does not pose a risk to the safety of children. As I have indicated, risk in this context means 'no real or appreciable risk' in the sense of a risk that is no greater 'than the risk of any adult preying on a child' (see paragraph 21 above). 77The fact of having been convicted of the index offence, presumes AAZ to pose a risk to children. As I have explained, it is now 15 years since the offence was committed. While serious, it was at the lower end of the scale of seriousness for such offences. It did not involve violence or a threat of violence. As explained by Dr Lennings it was a serious 'boundary violation', involving his then stepdaughter. This remains the only offence for which AAZ has been convicted. 78With two exceptions, there have been no, reports of such incidents in AAZ's personal or professional life. The exceptions are the reports that were made, to DOCS, in early 2008. On the evidence, these appear to have been made vindictively and without any basis. Nor are there any reports of such incidents prior to 1996 in AAZ's personal or professional life. In his professional life, as a long time member of the NSW Fire Brigade and the RFS, there have been no complaints about his conduct. As I have explained, as a member of the RFS he has been involved in child-related activities, without complaint. 79The evidence is that AAZ is now in a stable and supportive relationship and has been so for the last six years. In that time, he has substantially moderated his drinking. Dr Lennings assessed the risk AAZ posed to children as being low. He assessed it as such in his first report and again in his second report for the purpose of these proceedings. In my view, in paragraph 20 of his second report (see paragraph 65 above), Dr Lennings has identified the essential issue for determination in this application. While he expresses the issue as one that is finely balanced on the evidence, I note the requirements of section 32 of the Commission Act, which provides that the safety and welfare of children is paramount. 80The matters of concern in these proceedings are AAZ's ongoing denial of the conduct of which he was convicted and his lack of frankness in disclosing, or fully disclosing the circumstances of his conviction. In my view, on the material before the Tribunal, these are not matters of any substantial concern. 81While AAZ has continued to deny the conduct of which he was convicted, I accept his acknowledgement that the conduct of which he convicted is serious and that children must be protected from abuse. I also accept his evidence acknowledging the need to avoid a one to one situation with children in the workplace. In this regard I note the steps he appears to have taken in his personal life to ensure that appropriate boundaries between himself and the daughters of his current partner are maintained. In my view, these acknowledgements and steps are reflective of an insight, by AAZ, as to the seriousness of the conduct of which he was convicted. The same can be said for AAZ's acknowledgement of the need to avoid certain situations involving children in the workplace. 82In regard to his lack of frankness, in my view, these might be explained as being due to a sense of embarrassment and a possible desire to move on from what happened 15 years ago. AAZ did not strike me as a person who is deliberately deceptive, or evasive. He struck me as being co-operative and open. He was not demonstrative in manner and in my view answered questions asked of him frankly and honestly. 83His lack of frankness with Superintendent R in regard to his index offence may be explained by a misconceived assumption that he was aware of the offence and its details. In any event, Superintendent R did not change his evidence after being informed about the offence and the fact that the victim was AAZ's stepdaughter. AAZ was not given an opportunity to respond to the assertion of his lack of frankness with his current partner. Nevertheless, it is perhaps understandable, AAZ, as a lay person, did not believe he needed to mention this matter again as the charge was dismissed. In regard to his conviction, in my opinion, what is important is that AAZ had in fact informed his partner about this conviction. From her evidence it would appear that she was also aware of the general circumstances surrounding the conviction, which has brought AAZ under the terms of the Commission Act. 84Accordingly, I am satisfied, on the material before me, that AAZ does not pose a risk to children in the relevant sense and it is appropriate to make an order under subsection 33I(1) of the Commission Act. 85On the basis of my findings, it is unnecessary for me to consider the issue of conditions. However, for completeness I would indicate, that I would not have been inclined to make an order subject to conditions. While AAZ indicated that he would accept an order with conditions, he did not put forward any suggested conditions. Orders 86On the basis of my findings the Tribunal orders: 1) It is declared that Division 2 of Part 7 of the Commission for Children and Young People Act 1998, does not apply to AAZ in respect to the offence of 'committing an of indecency towards a person under the age of 16 years to wit 15 years in circumstances of aggravation' of which he was convicted, in the Local Court of New South Wales, on 17 July 1997. 2) The Registrar is requested to provide a copy of these orders to the Commissioner of Police, New South Wales Police. ********** 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: 26 April 2012