Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BYU v Children's Guardian [2014] NSWCATAD 119 Hearing dates: 20 March 2014 Decision date: 26 August 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The applicant's application is refused/dismissed Catchwords: ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - disqualifying offence committed in 1998 - by reason of offence presumed to be a risk to children - whether applicant has discharged his onus to establish the contrary Legislation Cited: Administrative Decisions Tribunal Act 1997 Children Protection (Offenders Registration) Act 2000 Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (repealed) Civil and Administrative Tribunal Act 2013 Commission for Children and Young People 1998 Cases Cited: Commission for Children and Young People [2002] NSWSC 949 Category: Principal judgment Parties: BYU (Applicant) NSW Office of Children, Children's Guardian (Respondent) Representation: V Hartstein (Respondent) J McClintoch (Applicant) File Number(s): 134047 Publication restriction: Pursuant to subsection 75(2) of the Administrative Decisions Tribunal Act 1997, the name of the applicant and the name of the applicant's children are not to be published without the leave of the Tribunal reasons for decision Introduction 1The applicant is a 'disqualified person' under subs 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an 'enabling order', pursuant to s 28 of that Act, declaring that he not be treated as a 'disqualified person' so that he can be granted a clearance to work with children. 2Due to the sensitive nature of these proceedings, an order was made, under subsection 75 (2) of the Administrative Decisions Tribunal Act 1997, that the name of the applicant and the name of the applicant's children and grandchildren are not to be published without the leave of the Tribunal. For this purpose the pseudonym BYU has been used for the applicant's name. 3The applicant is a 'disqualified person' by reason of his conviction, on 4 December 1998, in the NSW District Court, of the offence of committing an act of indecency with a male under 18 years of age, contrary to s 78Q of the Crimes Act 1900 (as it applied in 1998): see cl 1(k) of Schedule 2 of the Act. The applicant pleaded guilty of the offence. On entering a conviction, the District Court deferred passing sentence on the applicant entering into a recognizance to be of good behaviour for 3 years. During this period the applicant was placed under the supervision of the NSW Probation Service and he was required to undertake any programs the supervisor required. 4The applicant was 29 years of age at the time of his disqualifying conviction and seeks an enabling order as he wishes to further pursue his university qualifications in nursing. That course requires the applicant to work within a hospital and for this purpose he requires a working with children check clearance, as this is an activity included within the meaning of the term 'child-related work': see s 6(2)(c) of the Act. 5As he was required to do, on 23 September 2013, the applicant made an application to the respondent for a working with children check. On 22 October 2013, the respondent refused to grant the applicant a clearance, under subs 18(1) of the ACT, on the basis of his 1998 conviction. 6On 20 November 2013, the applicant lodged his application for an enabling order with the then Administrative Decisions Tribunal. That application came before me, at a directions hearing, on 12 December 2013. At the directions hearing the applicant's application was set down for hearing on 20 March 2014. 7After the directions hearing, on 1 January 2014, the NSW Civil and Administrative Tribunal was established and on its establishment the Administrative Decisions Tribunal was abolished (see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013). By reason of cl 7(2) and (3) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before the NSW Civil and Administrative Tribunal (NCAT), with NCAT (the Tribunal) being vested with all the relevant functions of the Administrative Decisions Tribunal immediately before its abolition and the provisions of the Administrative Decisions Tribunal Act 1997 and the Child Protection (Working with Children) Act 2012 continuing to apply. 8The applicant's application was heard on 20 March 2014 and there was no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application for an enabling order: see s 28(3) of the Act. 9At the conclusion of the hearing I gave a decision and ordered that the applicant's application be refused. In giving that decision, I undertook to publish detailed reasons for decision at a later date. These are those reasons for decision. Relevant legislation 10The Act (i.e. the Child Protection (Working with Children) Act 2012) came into force, on 15 June 2013. On coming into force, the Act repealed the previous legislative scheme for working with children clearances (i.e. Part 7 of the Commission for Children and Young People Act 1998: see clause 6 of Schedule 4.2 of the Act). 11The objects of the Act are: 3 Object of Act 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. 12Section 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. 13The word 'children' is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word 'child' has the same meaning. 14Subsection 8(1) of the Act prohibits a person from engaging in 'child-related work', unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children's Guardian for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 15Subsection 9(1) 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. 16The term 'child-relate work' is defined is section 6 of the Act. As noted above, there is no dispute that provision of health care in wards of hospitals where children are treated is an activity for which a working with children clearance is required. 17Subsection 18(1) of the Act provides that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been convicted of an offence falling within Schedule 2 of the Act. A conviction for an offence under 78Q of the Crimes Act 1900 is included in this Schedule. The term 'conviction' is defined in subsection 5(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.' 18Section 22 of the Act provides that a working with children check clearance check ceases to have effect five years after it was granted, unless it is cancelled or suspended prior to that time. Section 23 sets out the circumstances where a working with children check clearance can be cancelled and section 24 deals with suspensions. 19As I have mentioned, subsection 28(1) of the Act makes provision for a 'disqualified person' to make an application to the Tribunal for an enabling order. 20Where such an application is made section 28 also provides the following: 28 Orders relating to disqualified and ineligible persons (1) ... ... (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 ... 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) ... 21The 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."" 22The former Administrative Decisions Tribunal construed the meaning of 'risk', as it appeared in subsection 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 word 'risk', as it appears in the Act. 23Section 30 sets out how an application under section 27 is to be determined by the tribunal. It is in the following terms: 30 Determination of applications and other matters (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) ... Evidence 24The applicant relied on the material that had been filed with his application for an enabling order. He also gave oral evidence and was cross-examined by counsel for the respondent, Ms V Hartstein. The applicant was legally represented during the course of the hearing by his solicitor, Mr J McClintock. 25The respondent relied on three bundles of documents and a psychological risk assessment report by Dr Emma Collins, a clinical and forensic psychologist. 26The first bundle of documents contained the material the respondent had forwarded to Dr Collins for the purposes of her psychological risk assessment. This material included the Court file in regard to the applicant's conviction for the disqualifying offence and his CRIMTRAC record. The second bundle of documents consisted of some further instructions to Dr Collins from the respondent together with some additional documentation from police records relating to the applicant. 27The third bundle was a single document from the Department of Corrective Services, dated 7 December 1998, addressed to the applicant. In that document the Department set out a number of instructions the applicant was required to follow after having been convicted of his disqualifying offence. These instructions included not being in the company of any person under the age of 18 years unless he was accompanied by a responsible adult, not to frequent areas where persons under the age of 18 years may congregate, not to travel on buses that are principally used for the carriage of school aged children, and to cease any further counselling of young persons forthwith. This latter condition was stated to include any inappropriate conversation of a sexual nature with young men under the age of 18 years. 28Ms Collins was called to give oral evidence, by telephone, and she was cross-examined by the applicant's solicitor. Section 30(1) factors 29As I have mentioned above, subsection 30(1) of the Act requires the tribunal to have regard to a number of factors in determining the applicant's application. (a) seriousness of the applicant's disqualifying offence 30The applicant's offending conduct occurred on 13 December 1997. At the time the applicant was operating a music shop in a small town. The victim had attended the applicant's shop on a number of occasions and told the applicant that he was looking for casual employment during November and December of that year. The applicant told him to submit a resume and he would look at giving him some work. The victim submitted a resume and the applicant told him that he could commence employment on 16 December 1997. He also suggested to the victim that he could come into the shop on the following Saturday so that he could get to know the workings of the shop and perhaps have a few drinks after the shop had closed. 31According to the Police Fact Sheet, prepared at the time the applicant was charged with the offences, the victim attended the applicant's shop on Saturday 13/12/1997, at around 12.45pm. On arrival of the victim, the applicant told his only staff member to finish up for the day. The applicant closed the shop at 1.00pm and then suggested to the victim that they go to the bottle shop and get some beer, which they did, and then returned to the shop. The applicant and the victim then sat around in the shop, for around 1 hour, drinking beer. During this time the applicant spoke about sex and masturbation. The victim said he had between 10 and 12 stubbies and that the applicant had about 2. The victim alleged that the applicant then said to him, 'Come out the back and I'll show you a porno movie that I've got.' 32The applicant and the victim then went to the room at the back of the shop where the applicant played the pornographic movie. The applicant had already placed the movie into the machine. The Police Fact Sheet states that a short time after this the applicant took his penis from his pants and started to masturbate in front of the victim. Details of what occurred next, is also described on the Police Fact Sheet. 33The respondent's bundle of documents contains the statement of the victim, which supports what is recorded on the Fact Sheet. However, it is not clear as to whether the applicant pleaded guilty to each of the matters contained therein. Nevertheless, the applicant does not dispute the event leading up to the alleged assault and act of indecency. He also agreed that after the victim put his pants back on, he told the applicant that he was leaving and that he responded by saying: 'Yeah, righto, but let me tell you, don't you ever tell anyone about this or you're going to get hurt real bad.' The victim is stated to have said, 'No, no I won't.' 34The victim then walked out the front of the applicant's shop and saw his girlfriend. The victim went to his girlfriend's house where he told her what had happened. 35Later that week, on 17 February 1998, the police interviewed the applicant. He denied the allegations. 36The applicant was initially charged with two offences of homosexual intercourse with a male person above the age of 10 years and under the age of 18 years, namely 16 years of age. He was committed for trial on these charges. However, he was subsequently indicted on a single charge of committing an act of indecency with a male under 18 years of age. As I have mentioned, the applicant pleaded guilty to this charge and was convicted and fined and his sentence was suspended on the condition that he entered into a recognizance to be of good behaviour for three years. 37In his written submissions, the applicant said that although his disqualifying offence had an element of dominance on the basis of the allegation that he took advantage of his position to offer the victim work, the solitary instance of the offending conduct reflected that his actions were more of an impulsive or opportunistic nature rather than a systematic, continued or predatory behaviour. 38The applicant otherwise acknowledged the objective seriousness of the offence. He noted that the offence (i.e. section 79Q of the Crimes Act 1900) carried a maximum sentence of two years imprisonment and argued that the sentence imposed by the Court was reflective of the overall assessment of the seriousness of his offending conduct. That is, it was at the lower end of the scale of seriousness for such offences. 39It was the respondent's contention that when regard is had to the full facts of what occurred the offence could not be viewed as being at the lower end of the scale. 40In my view, the applicant's offending conduct was serious. What is clear from the facts is that the applicant had at all times known that the victim, a young man, was eager to get a job at his music shop. Knowing this the applicant invited him to the shop at a time he knew he could be left alone with him. He purchased alcohol, which he supplied to the victim and after the offending conduct had occurred the applicant threatened the victim if he spoke to anybody about what had happened. In my view, it cannot be said that the applicant's offending conduct was impulsive. On the contrary, it involved a level of planning. (b) the period of time since the offending conduct 41It is 16 years since the applicant was convicted of the disqualifying offence. (c) the age of the applicant at the time he committed the disqualifying offence 42As noted above, the applicant was 29 years of age at the time he committed the disqualifying offence. (d) the age of the victim and any matters relating to the vulnerability 43The victim was 16 years of age at the time of the offence. 44During cross-examination, Ms Hartstein, counsel for the respondent put to the applicant a number of questions as to whether he regarded the victim of the offending conduct to have any particular vulnerability. The applicant did acknowledge that there was a level of vulnerability. However, he continued to suggest that the victim was in a sense a willing party to what had occurred. (e) the difference in age between the victim 45There was a 13 year age gap between the applicant and the victim. (f) whether the applicant knew the victim was a child 46In his interview with police, the applicant said he thought the victim was 17 years old. (g) the applicant's present age 47The applicant is currently 44 years of age. (h) the applicant's total criminal record 48As noted by the respondent, the applicant does not have an extensive criminal history. 49Prior to his conviction for the disqualifying offence, the applicant was charged with two drug related offences in November 1996. Both offences were dismissed and the applicant was referred to the Community Aid Panel. 50Since his conviction for the disqualifying offence, the applicant has been convicted of two further offences. The first conviction was on 10 October 1998 for driving with a low range PCA. The applicant was placed on a bond and fined $500.00. The second conviction occurred on 10 July 2006. That conviction related to the applicant's failure to advise police about his change of address, as he was required to do under the Children Protection (Offenders Registration) Act 2000. The applicant was fined $300.00. (i) the likelihood of repetition by the applicant of the offence and the impact on children of such repetition 51In regard to the likelihood of any repetition by the applicant of the disqualifying offence and the impact on children of such a repetition, Dr Collins in her report initially said that the applicant did not pose any appreciable risk to the safety of children. However, in her oral evidence, having been provided with the additional material by the respondent, Dr Collins revised her opinion and said that in her view it would be prudent to put some conditions in place if an order were to be made. 52In her assessment of the applicant, Dr Collins used the well accepted STATIC-99 Actuarial Assessment and also the Risk for Sexual Violence Protocol (RSVP). In regard to the STATIC-99, Dr Collins said that the applicant received a score that placed him in the moderate-low risk category. In regard to her analysis using the RSVP, Dr Collins said that it suggested that the applicant posed a low risk of re-offence. She said that the following issues were seen to be protective in regard to the applicant's recidivism risk: * He did not reveal any markers of sexual violence, by way of escalation or diversity in his offending and he had remained offending free over a longer period. * The offending should be understood in the context of a homosexual experimentation. * There is no avert sexual deviance or strong attitude supportive of deviance and sexual violence. * The applicant has a consistent employment history. * The applicant did not report experiencing child abuse. * No evidence of psychopathic personality disorder or major mental illness. * Evidence of long-term relationships. * Nil substance abuse issues. * He had actively engaged with treatment services at all times of crisis. * No violent ideation or criminal history. * He has positive and pro-social relationships with his children, family, partner and friends. * He had successfully completed supervision with Probation and Parole without reported difficulty. * His willingness and openness in discussing his open offending behaviour. 53In regard to factors that were seen to increase the applicant's risk of re-offence Dr Collins noted the following: * The applicant's sexual offending was committed when he was in a position of authority and power (employer) over victim. * To this end, he showed a poor sense of boundaries with others. * He has had problems coping with stress previously, however, it was noted that he had access treatment on such occasions, suggesting a proactive approach in resolving distress. 54In her report Dr Collins noted that the applicant did not want to discuss with her the details of the sexual assault. In her oral evidence, Dr Collins explained that it was normal for sexual offenders to minimise the offending conduct. However, she agreed that admitting to some aspects of the offending conduct, but not admitting to the more serious aspects of that conduct is problematic. This she acknowledged would be an ongoing risk factor. Dr Collins did agree that the applicant's offending behaviour was in a sense abusive and grooming in nature. She also said it was not clear whether the applicant had an interest in younger males. 55In cross-examination Dr Collins agreed that the applicant's openness about his sexual orientation had lowered his risk. She went on to say that she believed the applicant's insight into his offending conduct had improved, but in light of the additional material she had received she was of the view that there was still some problem in regard to insight. Dr Collins also indicated that the applicant may benefit from some offence specific counselling especially in regard to his minimisation of his conduct. She indicated that such counselling would be beneficial for 3-6 months and also noted that there were a couple of people who specialise in this particular area. 56The tribunal notes that the applicant did not undertake any sex offender counselling following his 1998 conviction, as it was considered unsuitable due to his denial of the offending conduct. As noted above, the applicant did not dent what had occurred. His position at the time was that the victim had consented. While the applicant has subsequently acknowledged the offending conduct, as noted above he continues to minimise the extent of that conduct. (j) any information given by the applicant 57In his evidence the applicant explained that at the time of the disqualifying offence was committed, he was married with one child. Subsequently, he and his wife had another daughter. He then separated from his wife and they were divorced. He had moved in with his parents and then moved in with a female friend. Some years ago he suffered a stroke and as a consequence of that stroke he occasionally has some memory loss. He worked together with his mother in her baby shop. He said he was not aware of a complaint having been made against him while he was working there. He said that he was dumbfounded when he saw the entry in the information received from police. In any event after working for his mother he moved into hospitality and about 7 years ago he started nursing. In the last 6 years he has worked in aged care. He said he was upfront with the Director of Nursing of the aged care facility about this disqualifying offence. He resigned from this aged care facility last year to attend university to complete a Nursing Degree. The applicant acknowledged that a complaint had been made against him by a resident of the aged care facility prior to his departure. A report was made to police, however no finding of misconduct was made against him.. 58The applicant said that after his divorce he questioned his own sexuality for about two years. He is now comfortable with his sexuality and had been with a partner for some time. However, that relationship broke up 2 to 3 weeks prior to the hearing. 59 The applicant said he had a wonderful relationship with his two daughters and his former wife. He said he and his former wife and share the care of their daughters and that he was very lucky to have his two girls. (k) any other matters that the respondent considers necessary 60The respondent opposed the making of the orders sought. It was contended that on the material before the tribunal, it could not be satisfied that the applicant does not pose a risk to children and young people. Conclusions and orders 61Mr McClintock, on behalf of the applicant, submitted that the task of the tribunal is to assess the current and future likelihood of the applicant being a risk to the safety of children. That task, as I have already mentioned is to be undertaken by having regard to each of the factors set out in subsection 30(1) of the Act. It is also a task which must be undertaken having regard to the requirement of section 4 of the Act, namely 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. 62However, as pointed out above, the onus is on the applicant to rebut the statutory presumption in subsection 28(7) of the Act that by reason of his 1998 conviction he poses a risk to children the safety of children. 63In this regard, the applicant urges the tribunal to accept the findings of Dr Collins as stated in her report. However, as noted above, in her oral evidence Dr Collins was more cautionary in light of the additional material provided to her. This included the following record of responses the applicant had given Ms Rowlandson, of the respondent, during a conversation on 8 May 2013: ' I discussed with the applicant the index offence and the applicant said 'look it occurred way back - 15 years ago and to no avail. It still haunts me even though I didn't do it.' I asked the applicant why he had pleaded guilty if he didn't do it. And the applicant stated 'I pleaded guilty for fear of, and my sister also told me too, because I was fearful that if it went to a jury and they didn't see that I didn't do it, I would go to jail, so I pleaded guilty. Mum told me not to but I just didn't want to take a chance with the jury. I knew I didn't do it but what if they didn't see the truth.' ... ... 64I accept that the applicant gave forthright evidence. That is, he was open and frank. While the applicant's disqualifying offence occurred 16 years ago and the applicant has not been convicted of another offence of this nature, I am concerned about the applicant's ongoing minimisation of his offending conduct and the impact it had on the victim. As noted by Dr Collins, this lack of insight is a matter to be taken into account for the purpose of assessing risk of harm. At the same time, I note the many factors identified by Dr Collins as being protective in regard to the applicant's recidivism risk. However, in light of the onus being on the applicant and the requirements of section 4 of the Act, I find that the applicant has failed to discharge his onus on this occasion, primarily due to an ongoing lack of full insight into his offending conduct. This does not mean that with further treatment, as recommended by Dr Collins, the applicant will fail to do so in the event he makes a further application at some time in the future. That application, if made prior to the period prescribed in section 21(5)(a) of the Act, it will be a matter for the respondent to determine, on the information provided by the applicant at that time as to whether the respondent permits the application at that time. 65In light of my findings, the appropriate order is to refuse the applicant's application. ********** 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: 26 August 2014