Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BDA v Office of the Children's Guardian, Children's Guardian [2014] NSWCATAD 89 Hearing dates: 10 March and 19 May 2014 Decision date: 19 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012, in respect of the offence of committing an two counts of indecent assault under s 61L of the Crimes Act 1900, of which he was convicted, on 13 August 1996. 2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant with a working with children clearance. Catchwords: Working with children clearance - application for enabling order by disqualified person - presumption the applicant poses a risk to the safety of children - whether the applicant has proven the contrary. Legislation Cited: Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Commission for Children and Young People Act 1998 Crimes Act 1900 Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: BDA (Applicant) Office of the Children's Guardian, Children's Guardian (Respondent) Representation: Napier Keen (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1340051 Publication restriction: s 64 of the Civil and Administrative Tribunal Act 2013. reasons for decision (Ex- Temp) 1The applicant is a disqualified person under subs 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and he has made an application for an order under subs 28(1) of the Act declaring that he is not to be treated as a disqualified person for the purpose of the Act. The order is known as an 'enabling order' and if made, will have the effect of granting the applicant with a working with children check clearance to work in child related work as defined under s 6 of the Act. 2The offence, which brings the applicant within subs 18(1) of the Act, is his conviction, on 13 August 1996, on two counts of indecent assault under 61L of the Crimes Act 1900. This offence is a disqualifying offence falling within clause 1(1)(e) of Schedule 2 of the Act. 3The applicant was sentenced to 100 hours of community service. 4The applicant has made this application as he seeks employment as a bus driver, which would involve driving a bus with school children passengers. He has secured such employment pending determination of this application. He had secured such employment prior to making this application. 5On 17 December 2013, I granted the applicant a stay of the decision of the respondent to refuse his application for a working with children check clearance. That stay application was to take effect pending the determination of this application. Notwithstanding the stay order, the applicant's employer has restricted his duties to yard duties and not that of driving a bus. The order, if granted would of course enable the applicant to work in any child related employment as defined under s 6 of the Act and would not restrict it to that of bus driving with his current employer. 6There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application. 7The applicant's application was initially heard on 10 March 2014. On this day the applicant and the respondent relied on the material they had filed and served in regard to this application. The applicant gave oral evidence and he was cross-examined by the solicitor for the respondent. The applicant had also filed and served a psychiatric report from Dr Schureck, who was made available for cross-examination by telephone. At the conclusion of the hearing on this day, by consent, I adjourned the hearing of the applicant's application to today's date so that he could file and serve an appropriately qualified expert report as to risk of harm. 8On 5 May 2014 the applicant filed and served a report by Michelle Player a clinical psychologist. Ms Player was also made available today for crossexamination by the respondent's solicitor. 9The respondent does not support the making of the order sought. . 10The Child Protection (Working with Children) Act 2012 (the Act), came into force on 15 June 2013. Its object is to protect children by: (a) not permitting certain persons to engage in child related work, and (b) requiring persons engaged in child related work to have a working with children check clearances. 11Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse is the paramount consideration in the operation of the Act. 12For the purposes of this application, the relevant section, as I have already indicated, is subs 28 (1) of the Act, which makes provision for applications for an enabling order. Subs 28(7) of the Act, provides that where an application for an enabling order is made, "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of the children." That is, in this application, the onus is on the applicant to prove, on the balance of probabilities, that he does not pose a risk to the safety of children. 13The meaning of the word "risk" was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "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."" 14The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 (now repealed) of the Commission for Children and Young People Act 1998 to have the same meaning. In my view the same meaning applies to the work "risk", as it appears in the current Act. 15Subs 30(1) of the Act, sets out the matters that the Tribunal is required to take into account for the purposes of determining an application made under s 28(1). The first matter for consideration in subs 30(1) is the 'seriousness' of the applicant's disqualifying offences. 16The relevant offences in this application are those that occurred on 11 and 15 March 1996. The only information as to what occurred on these days is that contained in the contemporaneously created Police COPS Event Report, dated 18 March 1996. That report is in the following terms: "The victim attends Bible Study on Friday evenings at the [name of the centre], [name of suburb]. The class begins about 7.30pm and ends about 10pm. The victim has only attended this Bible study on two occasions. During these two occasions the victim has come to know the POI on a social basis. They, victim and POI have spoken on brief occasions at the Bible study. In the late evening of Monday, 11.3.96, the victim was at her home address with her two children. The POI came to her house and was invited into the victim's house for coffee. Both victim and POI talked to one another for about an hour. During this the victim noticed that the POI began to talk to her in a suggestive manner. The POI then approached the victim who was seated on the lounge and straddled his legs either side of her legs sitting on her lap facing her. The POI then lifted the victim's t-shirt and bra and began squeezing and sucking both her breasts. The POI did this several times. The POI then got off the victim and left the house. On Friday 15.3.96 about 7.30pm the victim once again attended Bible Study at [name of the centre], [name of suburb]. The POI also attended. The victim made no attempts to speak with the POI during the evening. At the conclusion of the evening, the POI attempted to speak with the victim. A short conversation took place between the victim and POI. The victim left and returned home. Later that evening the POI attended the victim's home and spoke with her. The victim allowed the POI into her house to talk. The victim informed the POI that she no longer wanted to see him again. The POI became aggressive and refused to leave the house. The POI then grabbed and pushed the victim to the ground whilst in the lounge room and laid on top of her. The POI then attempted to kiss the victim on her lips. During this the POI lifted the victim's top and bra and squeezed and sucked both her breasts several times. The POI also placed his hands down the back of the victim's underpants and touched the outside of her bottom. The victim managed to free herself and demanded that the POI leave the house. Eventually the POI left stating he would be returning. The victim has not seen or spoken to the POI since 15.3.96 however she is fearful for her safety. On Saturday 16.3.96 the victim contacted [name of suburb] police and made a complaint against the POI. On Monday 18.3.96 the victim attended [name of police station] and spoke with police". 17The applicant denied the allegations when he was interviewed by police, on 2 April 1996. However, he subsequently pleaded guilty to the two charges. It is difficult to ascertain exactly what he pleaded guilty to, other than to an offence of indecent assault having occurred on 11 and 15 March 1996. 18In his oral evidence, the applicant said he had met the victim a couple of months before the offending conduct. He said they had met through the church at a bible study, as asserted in the Police COPS Events Report. He said the victim was from the same country he had migrated from and that she had invited him to her home. He asserted that he and the victim had formed a relationship in the time that they had known each other. He said that he had subsequently decided that he would end the relationship and this, he asserted, is what led to the victim to have made her complaints to the police. 19The applicant said that at the time he was interviewed he did not fully understand what was being alleged against him. He also reiterated that on each occasion that the victim asked him to leave, he did so. At the time of the disqualifying offence the applicant was 28 years of age. He was married and he and his wife had two children at that time. 20The victim was 23 years of age and there is no evidence of any matters relating to any specific vulnerability of the victim at that particular time. The victim was not a child. Accordingly, the factor in para 30(1)(d) of the Act are not relevant to this application. 21In regard to the applicant's overall criminal conduct there is no record of the applicant having committed any further offences. Given the time since the offences were committed and the other the evidence before the tribunal, in my view, the likelihood of any repetition, by the applicant, of a disqualifying offence or an offence of a similar nature is unlikely. It is noted that the applicant remains married and now has six children. According to the references the applicant provided, he is held in high regard within his local community. He has also previously worked as a bus driver and there is no record of any passengers having complained about the applicant's behaviour during this time. 22Ms Player in her report, noted that the static and historical risk factors in regard to the applicant and at [31] of her report she says: "[The applicant] risk estimate places him in a group of offenders whose recidivism rate is below that of the base rate. Further to this it is noted that [the applicant] has not been convicted of another sexual offence for the past 17 years." 23Ms Player then goes on to say, at [32], that the applicant's "score is lower on this measure due to his older age, the absence of prior violent offences, no prior contact or no contact of sexual offending, and the victim being known to him." 24In regard to the dynamic risk factors, at [33] and [34], Ms Player says: "Consideration of dynamic risk factors suggest that [the applicant] poses a low risk of re-offence. The following issues are seen to be protective with regards to [the applicant's] recidivism risk. there is no history offered by [the applicant] that he was the victim of child abuse, physical, sexual or neglect; there is no history of major mental illness, including current suicidal ideation; he reveals a history of social stability in childhood and adolescence; he reveals a history of stability in intimate relationships, with his marriage persisting for more than 20 years to date and only two brief acts of infidelity on [the applicant's] part which did not involve sexual intercourse; [the applicant] reports a history of employment stability; he reveals current and likely future sound social supports; he does not have any history consistent with psychopathy; he denies a history of problematic alcohol misuse or illicit drug use; [the applicant] has no other sexual or non-sexual offences; he does not report entrenched sexual deviancy; the documentation provided to me in relation to the victim's statement of the offending indicates that this offence did not involve psychological coercion; [the applicant] does not endorse attitudes condoning sexual offending; he reveals past stability and current plans that indicates sound psychosocial adjustments." 25Of concern to the respondent is the applicant's apparent minimisation of his offending conduct, in particular his coercive and aggressive behaviour, as recorded in the Police Events Report. I understand these concerns of the respondent. These concerns were put to Ms Player, who I understood to say that the applicant's minimisation of his offending conduct, as identified in her report, was not unusual for offenders of this kind, especially offenders who held strong religious beliefs. I understood Ms Player to say that this minimisation was a matter relevant to treatment and did not impact on her overall assessment of risk. 26In the absence of a copy of the victim's statement that she gave to police at the relevant time and what in fact was tendered by police in support of the offences of which the applicant was convicted, it is difficult to assess the extent, if any, of the applicant's minimisation. Nevertheless, as I have pointed out to the applicant, the fact remains that the victim was sufficiently concerned about his behaviour to have reported the incidents to the police and there is no evidence to suggestion that her complaint was vindictive. 27In any event, having regard to the requirements of s 4 of the Act, the factors that the tribunal is required to have regard to and the material before the tribunal, I am satisfied that the applicant has discharged his onus, as required under subs 28(7) of the Act. As I have noted, the offences were not at the serious end of the scale of offences of this kind and they did not involve a child. The offences occurred some 18 years ago and there no further convictions or record of any adverse findings against the applicant since that time. He has remained in a stable marriage and is a valued member of his community. The applicant has previously worked as a bus driver and there is no evidence of the applicant having behaved in an aggressive, coercive or inappropriate manner in this role, especially towards children. Accordingly, on this basis and in accordance with the opinion of Ms Player, I am satisfied that the applicant has discharged his onus. 28Accordingly, I order: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012, in respect of the offence of committing an two counts of indecent assault under s 61L of the Crimes Act 1900, of which he was convicted, on 13 August 1996. 2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant with a working with children clearance. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2014