Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BEQ v Children's Guardian [2014] NSWCATAD 96 Hearing dates: 7 April 2014 Decision date: 14 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane, Senior Member Decision: 1 The Tribunal declares that BEQ is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the two offences of indecent assault on a male person under the Crimes Act, 1900 s 81 for which he was convicted in the Sydney Quarter Sessions on 13 September 1963. 2 The Children's Guardian must grant BEQ a Working with Children Check Clearance Catchwords: Working with Children - disqualifying conviction 50 years ago - Enabling Order Legislation Cited: Child Protection (Working with Children) Act, 2012 Child Protection (Prohibited Employment) Act, 1998 Crimes Act, 1900 Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: BEQ (Applicant) CHILDREN'S GUARDIAN (Respondent) Representation: Counsel GW Moore, (Respondent ) Change Legal, (Applicant ) Crown Solicitor's Office (Respondent) File Number(s): 1410045 Publication restriction: Usual restrictions on publication of information that may identify the Applicant or any victims reasons for decision INTRODUCTION 1In 1963 when the Applicant was 20 years of age, he was working part-time as a swimming coach and also part-time as an attendant and instructor at a ten pin bowing centre. 2On the occasion of the offences, two boys aged 13 attended at the ten pin bowling centre. It was a school day, but their school sports day had been cancelled. 3The Applicant talked to the boys about how to score ten pin bowling and then showed them a dirty joke book. He said he had some more such books and if they wanted to see them they should meet him at the staffroom at 2 o'clock and he would show them to them. At 2pm he met the boys. When he finished work he took them to a room, which had a toilet adjacent. He told them to go into the toilet cubicle and he brought in some books of naked girls. He then pulled the shorts off one boy and began fondling his penis. While he was doing that he also started fondling the penis of the other boy. They were disturbed when someone came into the room adjacent to the cubicle. When that person left, the two boys also left. 4A staff member had seen the feet of the three people under the cubicle door and reported it to the manager. The Police were called and statements were taken from the boys. The Applicant subsequently was charged with 2 counts of indecent assault on a male person and committed for trial by the Court of Petty Sessions. He pleaded guilty to both charges and was convicted of both offences I the Sydney Quarter Sessions.. 5The offences of which the Applicant was convicted were an offence under s.81 of the Crimes Act, 1900. Such an offence is included in the "disqualifying offences" specified in Clause 1 of Schedule 2 to the Child Protection (Working with Children) Act, 2012 ("the Act"). 6Under the Act a person is prohibited from working with children unless the person obtains from the Children's Guardian a Working with Children Check Clearance, and the Children's Guardian is prohibited from issuing such a certificate to a person who has been convicted of a disqualifying offence. There is an exception to that where the Tribunal issues an Enabling Order which requires the Children's Guardian to ignore the particular conviction in dealing with the person's Application for a Working With Children Check Clearance. THE EVIDENCE 7The evidence comprises: (1)The Application filed 28 January 2014 (2)Notice of Representation filed on behalf of the Applicant (3)Character references from the Applicant's parish priest, the secretary of his swimming Club, the secretary/treasurer of a railway society in which he is involved, and a director from the railway society (4)Affidavit of the Applicant sworn 26 February 2014 incorporating his Affidavit sworn in prior proceedings on 8 November 2001 (5)Bundle of materials provided by the Respondent (6)Decision of The Commission for Children filed 17 March 2004 declaring that the Child Protection (Prohibited Employment) Act, 1998 is not apply to the Applicant in respect of the offences and the Act is not to limit his employment as a swimming coach or a Club official at swimming carnivals. (7)Bundle of associated papers produced by the Attorney General's (8)Exhibit R1 - Notice of Decision of the Administrative Decisions Tribunal of 29 August 2002, that the subject offences be disregarded in determining whether the Applicant is a prohibited person within the meaning of s.5 of the Child Protection (Prohibited Employment) Act, 1998 (9)Oral evidence given by the Applicant on 7 April 2014 RELEVANT PROVISIONS OF THE ACT 8Section 4 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 this Act." 9Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 10Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 11Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 12Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 13Section 12 provides that there are two classes of Working With Children Check Clearances which are: a) Volunteer - authorising workers to engage in unpaid child-related work; and b) Non-volunteer - authorising workers to engage in paid and unpaid child-related work. 14Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 15Subsection 18(1) prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Applicant was 20 years of age and an adult at the time of the offence. 16In Schedule 2 to the Act, the offences of for which he was convicted under the Crimes Act, 1900 is included in the specified offences that are disqualifying offences. 17Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the Applicant because of the offences in June 1963. The Children's Guardian therefore refused to issue a Working with Children Check Clearance for the Applicant. 18Section 28 provides: (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an Enabling Order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an Enabling Order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children Check Clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an Enabling Order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an Enabling Order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An Enabling Order may not be made subject to conditions. (9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 19Section 30 provides: (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each H of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the H, (e) the difference in age between the H and the person and the relationship (if any) between the H and the person, (f) whether the person knew, or could reasonably have known, that the H was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Commission considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. (3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part. PRESUMPTION 20Section 7 contains a presumption that, unless the Applicant proves to the contrary, the Applicant poses a risk to the safety of children. ENABLING ORDER CANNOT BE SUBJECT TO CONDITIONS. 21It should be noted that ss.28(8) prohibits the making of a Enabling Order subject to conditions. DISCLOSURE 22Subsection 28(5) requires the Applicant to make full disclosure of any matters relevant to the Application. MATTERS UNDER SECTION 30 a) The seriousness of the offences 23The offences were serious as they involved indecent assaults on 2 boys of 13. b) The period of time since those offences and the conduct of the person since they occurred 24In 1998 legislation was introduced by way of the Child Protection (Prohibited Employment) Act 1998. That legislation was an earlier form of legislation dealing with prohibition of offenders working with children and providing for exceptions. On 27 August 2002 the Administrative Decisions Tribunal made a decision which declared that the Applicant was not a prohibited person within s.5 of that Act. 25Subsequently on 17 March 2004 the NSW Commission for Children and Young People made a decision under the same legislation and ordered: 1) The Commission for Children and Young People declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to [BEQ] in respect of the relevant offence recorded at Sydney Quarter Sessions on 13 September 1963. 2) Pursuant to s.8A(5) of the Child Protection (Prohibited Employment) Act 1998 this Order is subject to the condition limiting [BEQ's] employment to that of: a) a swimming coach, and b) a club official at swimming carnivals. 3) A copy of this Order to be served upon the NSW Commissioner for Police in accordance with s.8A(11) Child Protection (Prohibited Employment) Act 1998 26At the time of this hearing it was nearly 51 years since the offences occurred. The Applicant has not been convicted or charged with any offence in that period. 27The Applicant presented as open and forthcoming, although his recollection of events and details from 51 years ago was imperfect. 28It appears that the Applicant continued working as a swimming coach and club official. Until the Child Protection (Prohibited Employment) Act 1998 and then after the certificate issued on 17 March 2004, he was able to continue working as a swimming coach and a club official. He was also able to continue throughout working as a volunteer with a heritage railway society, but without working with children. He was a train driver by occupation and volunteered as a train driver with the railway society. The society does not allow children in the driver's area of the locomotives. 29In addition, he has worked as an acolyte for his local Catholic Church. In that role he has not had direct contact with children. His contact with children is in front of the congregation and not in any secluded area at any time. He assists the priest/celebrant in the serving of the Mass at the altar of the Church in full view of the congregation. He also reads bible passages during the celebration of the Mass. He is also an "Extraordinary Minister of Holy Communion" to the elderly and the sick in hospitals and at their homes. He is also an acolyte coordinator. The Parish Priest in his letter to the Tribunal indicates his awareness of the offence in 1963. 30The Application is supported by the secretary of the swimming club, who has been a member of the club since 1979 and secretary since 1981. He says that the Applicant has held positions in the club of Chief Learn-to-Swim Instructor, Club Coach, President, Vice President, Starter, and that during the period of 30 years that the secretary has been involved: "I have not received nor heard of a single complaint about his conduct. Indeed, he has been and continues to be a dedicated and valuable contributor to the operations of the Club." 31Until the Act came into force in 2012 the Applicant was able to continue working as a swimming coach and a club official at swimming carnivals. 32The club conducts swimming races for members of all age groups on Saturday mornings from October to March each year. Participants range in age from 5 years to over 70. The Applicant is presently the Vice President and starter. There are about 200 members. He attends meetings of adult members of the Club and deputises for the President in her absence. As starter, he attends race meetings of the club and starts races in conjunction with the referee. 33Swimming NSW has required all club officials to hold a Working with Children clearance regardless of their degree of involvement with children. Previously the Applicant had clearances under the past legislation, but was then under the Act to apply for an Enabling Order. 34The Secretary of the Club said in his reference: "I strongly support his application for a Working with Children clearance to enable him to continue with the valuable contribution he has been making to the Club over very many years. I do not consider him to be in any way a risk to children in the Club based on my long association with him at the Club and his many years of incident free service to the Club in the abovementioned capacities. He is a Life-Member of the Club. It would indeed be most unfortunate if he was not able to continue his active association with the Club." 35The Secretary/Treasurer of the railway society also provided a reference. He too was aware of the convictions in 1963 and subsequent clearances until the refusal by the Children's Guardian in December 2013 to provide a Working with Children Check Clearance. The writer indicated that he has with the Applicant's consent made his fellow Directors aware of those events. The railway society is a rail heritage preservation organisation and operates mainline heritage rail tours as well as a museum in a former railway depot. The Applicant is a foundation member of the Society and has been a Director at times during his 40 year involvement in the Society's activities. 36The Applicant retired from his employment with Pacific National as a train driver in August or September 2008. The Applicant said that sometimes he performs the role of train guard and sometimes he is the fireman for a steam engine. 37He said that if he is the guard, the guard compartment is in the middle of the carriage and there is glass panelling which enables the public to see the guard. Sometimes he walks through the train, which is usually has 5 carriages. He said that the railway society does not have unaccompanied children on the train. 38The applicant has held the operational positions of driver and fireman, positions where the person has limited direct dealings with passengers on the tours, compared to the guard on board the carriages, who liaises with the carriage attendants who in turn communicate with the passengers. 39Although the railway society is not in the business of providing services to children, the operational and train volunteers have sufficient dealings with school children and families that the current board has been developing a Child Safe/Child Friendly Policy and Code of Conduct. This has involved a requirement that all members who are active in train operations and in the museum will be required to undergo a Working with Children Check Clearance. 40The Secretary/Treasurer says that he has known the Applicant for about 3 years, but two of the current Directors have been involved since the Society's inception and the current Board has highly relied on the experience of these Directors in their dealings with the Applicant over the last 40 years. He said: "At no time have [sic] there been any cause for concern regarding BEQ' conduct nor any complaints made about him, nor has any inappropriate behaviour been observed." 41He says that on behalf of the Society he supports the Applicant's Application. 42One of the directors referred to as having known the Applicant since the inception of the Society 40 years ago also provided a reference. He says: "During this time I found [BEQ] to be of exemplary character in his dealings with the Society and with members of the public with whom we come into contact both on our trains and around our museum. "My two children and the children of other members have known Ray all their lives and always treat him with the courtesy and respect due to someone who is a trusted older family friend. I have no hesitation in recommending [BEQ] as someone fit and proper to take part in all aspects of [the railway society] business." c) The age of the Applicant at the time of the offences. 43The Applicant was 20 years of age. d) The age of the victims at the time of the offences and matters relating to the vulnerability of the victims 44The victims were 13 years of age and vulnerable because of their immaturity and the lack of adult supervision of them. e) The difference in age between the Applicant and the victim and the relationship between the victim and the Applicant 45The difference in age was 7 years. f) Whether the person knew the victim was a child 46The Applicant knew the victims were children. g) The Applicant's present age 47The Applicant is 71 and will turn 72 in September 2014. h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the offence occurred 48The Applicant pleaded guilty to the charges for the subject offences. In the Sydney Quarter Sessions on 13 September 1963 he was bound over to be of good behaviour and to appear for sentence if called upon within a period of 5 years. It was a condition that he place himself under the supervision and guidance of the Adult Probation Service Officers. 49The convictions in 1963 for the subject offence of indecent assaults are the only criminal convictions of the Applicant in his 71 years. There is no evidence of any other charges. On the evidence his conduct since the offences has been exemplary. i) The likelihood of any repetition by the Applicant of the offences and the impact on children of any such repetition. 50In the aftermath of the charge, the Applicant suffered anxiety and depression. With his mother's help he consulted the family doctor who arranged for his admission to North Ryde Psychiatric Hospital. He stayed there for 6 weeks under taking various interviews, therapies, treatment and examinations. 51The impact on a child of any such repetition could be serious and long-standing. 52The pre-sentence report at the hearing in 1963 referred to information provided by a psychiatrist, Dr Willis, of the North Ryde Psychiatric Centre. He said that the Applicant had been admitted to the North Ryde Psychiatric Centre and was receiving group therapy. It said that psychological tests revealed that his intellectual functioning was average, but that: "His main problems at present seem to be related to his immature level of development. He has not yet learned to control his impulses satisfactorily, but is aware of the need to do so because of the insecurity and anxiety he shows. However, it is important from the point of view of prognosis that he is making some attempt at finding a stable self-concept both sexually and in conforming to social restrictions as regards the expression of impulse." 53The Probation Officer also reported that Dr Willis had told him that the Applicant and his mother were both attending the Centre for group therapy and it was his opinion that both have improved in their personal relationships and that the offender had become more emotionally stable and more capable of controlling any aberrant sexual impulses. 54The Probation Officer reported that the Applicant: "impressed me as an average type of young man, who functions at a level consistent with his intellectual ability. Psychiatric and psychological examination, apparently, has not revealed any confirmed homosexual aberrance, although there is evidence of some neurotic disorder. [He] will need to gain more insight into his own personality difficulties if he is to effectively conform to social restrictions in regard to the expression of sexual impulses." 55The Applicant's evidence is that he is heterosexual and that he has never married. He said that he has had two serious relationships, but they have not lead to marriage, "I think for reasons concerning personalities and the conflict between my active lifestyle (hobbies, interests and work) and a commitment a permanent relationship deserves." 56The Applicant's evidence is that he first started swimming coaching in 1962 and he was first appointed as an official in 1964. The evidence is that he was very good coaching swimmers and also enthusiastic about the local swimming club and the district swimming association, of which he was an official. 57At the time he swore an affidavit in November 2001 in previous proceedings, he was the President and race starter for the district swimming association which conducted about seven 1 night carnivals per season. 58The Applicant swore in his affidavit of 26 February 2014 that he had spent his whole working life as a train driver. Pacific National Railways advised the NSW Commission for Children and Young People in a letter of 22 May 2003 that the employment records of the Applicant had been reviewed and that he had been employed since 10 May 1976 and, "Has not been the subject of any disciplinary action or notices of complaint, other than minor operational infractions pertinent to Pacific National". 59In a report of 10 December 2001, Dr Christopher Lennings, who had been instructed by the Crown Solicitors' Office, concluded that the actuarial risk assessment placed [BEQ] in the "medium-high" risk category, "although such an assessment is a biased one in that there are no appropriate studies to reliably assess risk over a 37 years period." He said that: "Structured clinical assessment suggests [BEQ] has few significant risk factors and his general level of sexual offence risk is unlikely to be any higher than that of a similarly aged male in the general population." 60Dr Lennings has some expertise in forensic psychology and also as a Clinical Member of the Australian and New Zealand Association for the treatment of sex abusers. As at 2001 he had conducted 50 or 60 evaluations for sex offenders for various Courts. His report is 8 pages and includes the results of interview with the Applicant, psychological assessment of him, cognitive assessment of him, personality assessment, and risk assessment including use of the STATIC-99 assessment tool, and consideration of risk categories developed by the Columbia Institute Against Family Violence and other factors. 61In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 'risk' with the words that follow, namely, 'to the safety of children'. j) Any other information given by the Applicant in relation to the Application 62There is no other significant information. k) Any other matters that the Children's Guardian considers necessary 63The Children's Guardian opposed the Application. Its submission was that the circumstance of the offences was sufficient to justify dismissal of the Application. CONCLUSIONS 64The Tribunal is comfortably satisfied that the Applicant has established that he does not pose a real risk to children. Accordingly, enabling orders should be made. ORDERS 65Accordingly, the Orders of the Tribunal are: 1 The Tribunal declares that BEQ is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the two offences of indecent assault on a male person under the Crimes Act, 1900 s 81 for which he was convicted in the Sydney Quarter Sessions on 13 September 1963. 2 The Children's Guardian must grant BEQ a Working with Children Check 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: 14 July 2014