Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BBZ v Office of the Children's Guardian [2014] NSWCATAD 112 Hearing dates: 5 March 2014 Decision date: 01 August 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: L. Goodchild, Senior 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 rape, of which he was convicted on 25 March 1971. 2. Pursuant to subsection 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- Disqualifying Conviction- Enabling Order- presumed to be at risk to children- whether applicant has proven to the contrary Legislation Cited: Children Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Child Protection (Prohibited Employment) Act 1998 (repealed) Administrative Decision Tribunal Act 1997 Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111 YG & GG v Minister for Community Services Category: Principal judgment Parties: BBZ (Applicant) Children's Guardian (Respondent) Representation: Counsel G Moore (Respondent) Nelson Keane & Hemingway (Applicant) Crown Solicitors Office (Respondent) File Number(s): 134030 Publication restriction: S64 of the Civil and Administrative Tribunal Act 2013 reasons for decision INTRODUCTION 1The applicant, BBZ, made an application under s28 of the Child Protection (Working with Children) Act 2012 (the Act), for an enabling order that he not be treated as a 'disqualified person' for the purposes of that Act and be granted a clearance to work with children. The applicant is a 'disqualified person' by reason of his conviction in June 1989 of sexual assault without consent (2 counts), indecent assault and threaten to inflict grievous bodily harm with intent: see subs 18(1) of the Act. At the time, the applicant was 27 years of age. 2The applicant is in fulltime employment. The applicant hopes to volunteer with the NSW Rural Fire Service and requires an enabling order to allow him to undertake such volunteer work. 3As required, the applicant made an application to the Children's Guardian, seeking clearance under s13 of the Act. 4On 22 August 2013 the Children's Guardian determined not to grant the applicant with a clearance as a result of his 1989 convictions. 5On 10 September 2013, the applicant, as he was entitled to do, made an application to the Tribunal under s28 of the Act for an enabling order and a working with children clearance check. 6BBZ's application was heard on 5 March 2014 Evidence 7The respondent, the Children's Guardian, opposed the applicant's application. 8In support of his application the applicant relied on a personal statement dated 16 October 2013, the Offenders Review Board Prisoner Assessment and four references. BBZ's supporting references came from a Police Citizens Youth Club where he had been volunteering in 1991, a former interstate transport employer where he worked in 1987-88 or thereabouts, the Bathurst Gaol welding teacher and the country Fire Control Officer, dated 18 March 1991. 9The respondent tendered into evidence a bundle of documents, which included a copy of a report from Dr Lennings clinical psychologist the applicant's criminal record, statement of facts, charge sheets, witness statements, and other relevant court material. 10After considering the relevant legislative provisions in the Act, the material filed and the submissions of the parties, I have decided to make the order sought by the applicant. 11These are my reasons for decision, which are published as reasons for decision of the New South Wales Civil and Administrative Tribunal (NCAT) as the Administrative Decisions Tribunal was abolished, on 1 January 2014, with the establishment of NCAT: see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013. By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before NCAT, with the provisions of the Act and the Administrative Decisions Tribunal Act 1997 continuing to apply. RELEVANT LEGISLATIVE PROVISIONS 12The Child Protection (Working with Children) Act 2012 (Act), is a legislative scheme regulating those persons who can engage in, or continue to engage in child-related work. The Act came into force, on 15 June 2013. On coming into force, the Act repealed the previous legislative scheme in Part 7 of the Commission for Children and Young People Act 1998: see cl 6 of Schedule 4.2 of the Act. 13Part 1 of the Act contains provisions in relation to the commencement of the Act, its objects and definitions of terms used within the Act. 14The objects of the Act are set out in s3 as follows: The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances. 15Section 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 this Act." 16The word 'children' is defined in subs 5(1) to mean persons under the age of 18 years. Consequently the word 'child' has the same meaning. 17Part 2 of the Act deals with restrictions on child-related work. The relevant restrictions are those contained in ss6, 8 and 9. 18Section 6 (1) of the Act provides that a person who works in or for a club or association is engaged in "child-related work" for purposes of the Act. Whilst the Act does not explicitly mention the fire brigade or fire-fighting services, it is within the purview of child protection services. Also, the possibility of "direct contact" with children, as defined in s6 (4), incorporates such services within the definition of "child-related work". 19It is not readily apparent by what provision of the Act or Regulations volunteer fire fighting would fall within child related work. It may broadly fall within a club providing services for children. Neither party disputed that volunteer fire-fighter work is child -related work. 20Section 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". 21This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 22Section 9 contains a similar prohibition on an employer. Employing or continuing to employ a person in child-related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance. 23Section 13 provides for applications to be made to the Children's Guardian for a Working With Children Check Clearance. 24Part 3 of the Act deals with working with children clearances. 25Subsection 18(1), in Division 4 of Part 3, provides that the Children's Guardian must not grant a working with children check clearance to 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". 26Para 1(1)(d) of Schedule 2 of the Act specifies offences under 61C Crimes Act 1900. There is no dispute that the offence, of which the applicant was convicted, in 1989, falls within this description. 27Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working With Children Check Clearance for BBZ. APPLICATIONS FOR AN ENABLING ORDER 28Section 28 deals with 'disqualified persons'. That section is in the following terms: (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 Children's Guardian 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 Children's Guardian 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. 29Section 30 of the Act provides as follows: (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 victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim 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 Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. CONSIDERATION 30The Tribunal's jurisdiction under s28 of the 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 object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children. The Tribunal's review jurisdiction, under s27, is similarly protective in nature. 31In this application, the issue for determination is whether, having regard to the matters in subs 30(1) of the Act and the relevant facts, the applicant has proven on the balance of probabilities, that he does not pose a risk to children. 32In regard to the matters the Tribunal is required to consider, as set out in subs 30(1), I find as follows: (a) the seriousness of the offences with respect to which the person is a disqualified person. 33There is no doubt the offences for which the applicant was convicted are offences of utmost seriousness. The material relied upon by the respondent document the offence of rape including violence, and three occasions, separated by some time, of sexual assault. The incidents included both oral and vaginal penetration. 34The victim's statement speaks for the indecent nature of the assault and clearly indicates it was sexually motivated. The circumstances show the applicant picked up the victim of the assaults as a hitchhiker. 35Police statements in relation to the matter do not detail any admission of guilt or any remorse. The police statements from the index incident which outline the record of interview show that the applicant initially denied the offence. 36The applicant is recorded on subsequent occasions as having been ashamed of his actions and acknowledging that he "behaved terribly". 37BBZ's parole officer noted that "BBZ speaks factually of the offences and expresses apparent genuine contrition and remorse. He acknowledge the significance of alcohol and ephedrine in the commission of the offences but states this in no measure diminishes his own culpability" (23 April 1991). 38He pleaded guilty to the offences at the first opportunity. He was granted parole when he was first eligible. (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred. 39It is 26 years since the offence. The Applicant has not been charged or convicted of any serious offence alleged to have occurred in the period since the date of the subject offence. 40The Applicant's record details four minor driving related offences since the date of the subject offence. (c) the age of the person at the time the offences or matters occurred. 41The applicant was one month shy of his 27th birthday at the time the offence was committed. (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim. 42The victim was two months shy of her 22nd birthday when the offence was committed. 43The victim's statement discloses that she was a virgin at the time of the offence and she informed the applicant of this. The victim's statement discloses that she informed the applicant that she was Danish and had been travelling in Australia for six months at the time the offence was committed. Having regard to the victim's statement she was clearly gravely traumatised by the assault. The conduct by the applicant at the time of the offence was reprehensible. (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person. 44The victim was five years younger than the applicant. The victim was not a child at the time of the offence. (f) whether the person knew, or could reasonably have known, that the victim was a child. 45N/A (g) the person's present age. 46The applicant is now 53 years of age. (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred. 47Prior to the offence in question BBZ was charged with Malicious injury in 1979 and a number of alcohol fuelled crimes in Cairns in early 1988, including 'speed dangerous', 'obscene language', 'resist arrest' and 'assault police'. 48The Offenders Review Board Prisoner Assessment prepared in 1991 notes an education officers' assessment of the applicant as "shown great commitment to his course and has averaged over 70% of all assignments".The industrial officer assessment states "the applicant has lots of ability and applies this to all work carried on". The parole documentation notes the applicant to be "a very good worker and a very pleasant person". A typed file note dated from 1991 at the hand of his parole officer records the parole officer speaking to the applicant's wife. It is recorded that the wife confirmed that the applicant has never sought to deny or excuse his offence, which she says is out of character. The applicant's alcohol consumption was discussed and the wife is reported to have said that his alcohol consumption is not and never was excessive. A further file note records the applicant as giving no excuses with regard to the offence in question. 49The Applicant has not been charged or convicted of any serious offences in the period since the date of the subject offence. 50The Applicant's record details four minor driving related offences since the date of the subject offence. 51There are no matters either criminal or driving related after 2001. (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. 52Over the last 25 years the applicant has had a stable family and professional life. He has not committed a further offence of this nature. Indeed there is no evidence of the applicant being involved in any criminal conduct, inappropriate conduct, or disciplinary matters in the last 25 years. 53The Applicant has subsequently shown genuine contrition and remorse. He is ashamed and embarrassed by his actions. 54BBZ's parole officer in March of 1991 recorded the applicant's wife, who remained in a relationship with him after the offence and moved to Bathurst to be closer to him, as having "confirmed that BBZ has never sought to deny or excuse his offence- which she says is out of character." 55Dr Lennings, clinical psychologist, concludes that BBZ's "criminal record suggests that he had some difficult behaviours as an emerging adult, likely associated with occasional binge alcohol use." (p3) 56BBZ reports that he is no longer a regular drinker and when he does drink he only consumers light beers. BBZ also claims "there was never any period of consistent heavy drinking in his life". 57BBZ, in addition to showing low alcohol use, has a supportive relationship, has a good social network, shows community involvement and a lack of any anti social behaviours. 58Dr Lennings used the Static-99A to measure the applicant's risk of reoffending. On that test the applicant scored 2 (the victim was a stranger; the victim was unrelated), and that placed him in the low-moderate category with a predicted recidivism rate of 4% within a 10-year period. 59Dr Lennings noted an absence of any significant risk factors. He concluded, "[t]here are no indicators to suggest BBZ poses a risk to children as a result of the prior offence or his subsequent lifestyle." (j) any information given by the applicant in, or in relation to, the application. 60The applicant made a statement on the 16 October 2013 requesting that the Tribunal consider the following matters: * That he made full admission of the offence to the police. * Pleaded guilty at the earliest opportunity. * Was granted parole on his first application. * Within one week of release he had obtained full time employment. * During the last 25 years he and his wife have raised three children. * He has no criminal charges brought against him since. * The offence committed did not involve children. * The time frame since the offence was committed. * The reason he is requesting the enabling order is so he can volunteer with the Rural Bushfire Brigade. (k) any other matters that the Children's Guardian considers necessary. 61The Children's Guardian opposed the application. The Children's Guardian did not raise any other relevant matters. Conclusions and Orders 62The applicant gave evidence. He said that he could not explain the offence, that he was disgusted with himself. He said 'to this day, he cannot explain the offence'. He said that at the time of the offence he was involved in long haul truck driving and when waiting for delivery or on a slow run, he would drink alcohol. Under cross - examination he could recollect very little of the offence. 63He said that he drinks very little these days. He said he drinks every second day when he is at home. He has a 7-day off 7-day on roster. He said that he has been a volunteer member at football clubs in his area, volunteering on the canteen. 64He said he is continually in contact with young people. He said he has teenage daughters and her friend's around him. 65Dr Lennings was cross-examined by the respondent. A number of matters were put to Dr Lennings in cross-examination with regard to the circumstances of the offence. Dr Lennings stated that the risk rating he gave the applicant of a moderately low risk would not be altered. 66Subsection 28(7) of the Act presumes that the applicant does pose a risk to children. 67The 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 subs 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], His Honour said: 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"... These remarks of His Honour have continued to be cited with approval, by the Administrative Decisions Tribunal, in interpreting the meaning of 'risk' as it appeared in subs33J (1) of the repealed Part 7 of the Commission for Children an Young People Act 1998. For a most recent example see ADV v Commission for Children and Young People [2012] NSWADT 8. 68As expressed in BYR v Children's Guardian [2013] NSWADT 310, the remarks of His Honour at [42] equally apply to the meaning of 'risk' as it appears in s 28 of the Act. 69The wider issue for determination in these proceedings is whether or not there is an unacceptable risk to children. The assessment of that risk requires an objective consideration of all of the circumstances of the case in the context of the relevant legislative framework. 70If the sole consideration in applications such as these was the serious nature of the index offence, then there is little doubt that the applicant would be unsuccessful. But the seriousness of the index offence is but one consideration, and regard must be had to the objects of the Act, the paramount considerations and the mandatory matters. 71In this case, it has been 26 years since the offence was committed, the victim of the offence was not a child and there are no matters of a similar nature on the criminal record of the applicant. He pleaded guilty. He was granted parole. Whilst being unable to explain the reason why he did what he did, the applicant has expressed remorse and appears to have accepted the seriousness of his actions. He has remained in employment. He has a family. The expert evidence of Dr Lennings rates the applicant as a moderately low risk of reoffending. In the circumstances and having regard to the applicable law, I am satisfied that the applicant has rebutted the presumption that he is a risk to the safety of children and I have determined that he should succeed in the orders he seeks. ORDER 72Declare 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 rape, of which he was convicted on 25 March 1971. 73Pursuant to subsection 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: 01 August 2014