Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BGE v Children's Guardian [2014] NSWCATAD 120 Hearing dates: 2 July 2014 Decision date: 26 August 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 carnal knowledge, of which he was convicted on 16 March 1977. 2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent is to grant the applicant with a working with children clearance. 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Legislation Cited: Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (repealed) Civil and Administrative Tribunal Act 2013 Commission for Children and Young People 1998 Cases Cited: Commission for Children and Young People v [2002] NSWSC 949 Category: Principal judgment Parties: BGE (Applicant) NSW Office of Children, Children's Guardian (Respondent) Representation: Counsel R Lee (Respondent) Blake Lawyers (Applicant) NSW Crown Solicitor's Office for the (Respondent) File Number(s): 1410151 Publication restriction: Pursuant to subsection 64(1) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of the applicant's children and grandchildren are not to be published without the leave of the Tribunal. reasons for decision Introduction 1The applicant, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an enabling order, pursuant to section 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 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant and the name of the applicant's children and grandchildren are not to be published without the leave of the Tribunal.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 BGE has been used for the applicant's name. 3The applicant is a 'disqualified person' by reason of his conviction of the offence of carnal knowledge, contrary to section 71 of the Crimes Act 1900 (as that Act applied in 1976): see clause 1(i) of Schedule 2 of the Act. The applicant was convicted of the offence on 16 March 1977, in the then NSW Court of Petty Sessions. The Court deferred his sentence on the condition he entered a recognizance to be of good behaviour for 2 years. 4The applicant was 32 years of age at the time of his disqualifying conviction. He is now almost 70 years of age and seeks an enabling order so that he can continue to be authorised as the out-of-home day-to-day carer of his granddaughter as well as continuing with his voluntary community activities in junior boxing. 5Under the Act, these activities require the applicant to have a working with children clearance as they fall within the definition of 'child-related work' under section 6 of the Act: see subsection 6(1), (2)(d), (3)(c) and (4) of the Act. 6On 9 January 2014, the applicant made an application to the respondent for a working with children check clearance. On 6 March 2014, the respondent refused to grant him a clearance, as required under subsection 18(1) of the Act because of his disqualifying offence. 7On 27 March 2014, the applicant lodged his application for an enabling order. He also made an application for a stay of the operation of the decision of the respondent, under subsection 30(2) of the Act. Both applications came before me on 1 April 2014. On this day I granted a stay of the operation of the decision of the respondent and made orders for the filing and serving of evidence. Following two further directions hearings, the applicant's application was heard on 2 July 2013. 8There is no dispute that the tribunal has jurisdiction to hear and determine the applicant's application for an enabling order: see subsection 28(3) of the Act. 9At the conclusion of the hearing, on 2 July 2014, I reserved my decision and extended the stay order pending the determination of this application. 10The respondent has opposed the making of the orders sought. 11I have now considered all the material before the tribunal and for the reasons set out below, I am satisfied that the applicant has discharged his onus and it is appropriate to make the orders sought. Legislative scheme 12The Child Protection (Working with Children) Act 2012 (the Act) came into force on 15 June 2013. It provides a new legislative scheme for working with children check clearances that is broader in scope than previous legislative schemes. The objects of the new legislative scheme 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. 13Section 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. 14The 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. 15Subsection 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. A contravention of this provision is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 16Subsection 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. 17The term 'child-relate work' is broadly defined in section 6 of the Act. As noted above, there is no dispute that being an authorised carer is a role for which a working with children clearance is required (see paragraph 6(3)(c) of the Act). The same applies to any voluntary sporting activity with children (see paragraph 6(2)(c) of the Act). 18As I have mentioned, subsection 18(1) 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. 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.' As I have mentioned, the offence of which the applicant was convicted and which brings him within the terms of Schedule 2 of the Act, is an offence under section 71 of the Crimes Act 1900, as it applied in 1976. 19Section 22 of the Act provides that a working with children check clearance ceases to have effect five years after it was granted, unless it is cancelled or suspended prior to that time (see sections 23 and 24 of the Act in regard to the grounds on which a clearance can be cancelled or suspended). 20As 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. 21Where 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) ... 22The 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."" 23The 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. It is accepted that the word 'risk', has a similar meaning in the current Act. 24Section 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 25In support of his application, the applicant relied on the matters set out in his application, a Statutory Declaration by his wife (dated 31 March 2014) and a Statutory Declaration by Mr A, the head coach of the University Boxing Club where the applicant has been coaching for a number of years. 26The applicant also relied on a psychological risk assessment report, dated 11 June 2014, prepared by Ms Fleur Taylor, psychologist, for the purpose of these proceedings. 27The applicant and Ms Taylor both gave oral evidence at the hearing and were cross-examined by counsel for the respondent. 28The respondent tendered into evidence two bundles of documents. These bundles contained copies of the applicant's criminal record, relevant court files, police records and documents produced in response to other enquiries made by the respondent (e.g. Department of Family and Community Services and a number of local youth services where the applicant had worked or volunteered). 29The evidence and my findings in regard to those matters falling within subsection 30(1) of the Act are set out below. (a) The seriousness of the applicant's disqualifying offence 30The disqualifying offending conduct occurred, on 29 September 1976. The victim of the offending conduct was a 14½ year old girl. The circumstances surrounding the offence are set out in a statement of the girl, dated 30 September 1976. In that statement the girl said she had known the applicant for about three years. She said she met him through her father, who worked with the applicant. She said her father had often invited the applicant to their home to watch television and to have a meal. She said the applicant knew her age, as she had told him what it was on many occasions. 31The girl said that the weekend before the offending conduct, she and the applicant had talked about her leaving school. She said she told the applicant how she hated school. Two days later, on 28 September 1976, as the girl was heading for her school, the applicant picked her up in his car with the intention of driving her to the school. The girl said, before they got to the school, she said she did not want to go to school and the applicant responded by asking her if she wanted to go to the beach. She said she did not want to go to the beach and suggested they should go for a drive out of the city away from the traffic. She said they drove out of the city and back again and the applicant dropped her off near her home at about the time school would have finished. The girl said that as she was getting out of the applicant's car he said he would see her at the same place the following day. 32On the following day, the girl went to the same place where she had met the applicant the previous day. When she got there he was waiting for and said: 'Straight to school today?' The girl said she responded by saying, 'Yeah.' 33On the way to school the applicant picked up his niece and another girl. When they got to the school the applicant's niece and the other girl got out of the car. The applicant then said to the girl: 'Do you want to go?' The girl said: 'Not really.' The girl said the applicant responded by saying: 'You've only got to say the word.' To which the girl said: 'Stuff it.' And she threw her bag into the back of the applicant's car and jumped in. 34Again, the applicant drove out of the city, back towards the city and around the city until about 10:00pm that evening, when the applicant parked his car at a block of flats. The girl said that once they got to the flats she said: 'What are we going to do tonight?' To which the applicant responded: 'There's nowhere we can go because they are looking for us everywhere, so we will have to sleep in the car.' 35The girl said that she told the applicant she could not sleep in the front seat and that she wanted to lay down. The applicant responded by saying to her to get into the back and lay down. The girl said that she got into the back seat of the car and lay down and that the applicant came into the back with her. She said that they started 'kissing' and the applicant was fondling her breasts while he was lay on top of her. She said the applicant put his hand underneath her school uniform and pulled the crutch of her panties to one side and tried to put his penis into her vagina. She said the applicant put his penis a little way into her vagina but when she told him to stop because it was hurting, he did stop. She said they sat up and they talked for a while and then fell asleep. 36The evidence of the girl is that on the following morning, 30 September 1976, they woke and went to the home of the applicant's brother. They went into the home of the applicant's brother and stayed there for a little while when there was a knocked on the door. It was the police who had come to find the girl. 37While at his brother's home, the police interviewed the applicant. During the interview the applicant acknowledged what had occurred the previous evening. The record of interview records the applicant saying: 'We just drove around mainly, and about a quarter past or half past ten last night I drove down to the end of [the name of the street] and that is where we started to talking, I was going to drop her home but she just wouldn't go home, I said, "It is better for you to go home to them and we can still see each other." She said, "If I don't go with you, I will go with someone else or somewhere else." So we talked on and about half past eleven is when we had sex and then we just went to sleep in the car until daylight and then we went to my brother's place.' 38The applicant is recorded as having said the following in response to a general question asked of him by police as to whether he wanted to say anything else about what had occurred: 'I just want to say that I never forced her to come with me she just come of her own free will, I like the girl a lot, I wanted her, but if she didn't want me to do it to her I wouldn't have done it to her, I didn't want to just root her and then say "piss off", I don't want you anymore.' 39In his oral evidence before the tribunal, the applicant readily acknowledged what he had done was wrong. He said on a number of occasions he wished he had not done it. 40During cross-examination, when pressed about the conduct, the applicant reiterated his deep regret as to what had occurred. He also said he has told many young men that what he did was wrong and they should not place themselves in the position he had placed himself back then. 41I accept the applicant is and has always been very remorseful about what happened. I also accept that the applicant understands that the offence was serious. Offences of this kind are always serious. However, on the material before the tribunal, the applicant's offending conduct was not, in my view, at the serious end of the scale for such offences. (b) Period of time since the offending conduct 42It is now almost 38 years since the disqualifying offence occurred. (c) The age of the applicant at the time of the offence 43As I have mentioned above, the applicant was 32 years of age at the time of the offending conduct. He is now 70 years of age. (d) the age of the victim and matters relating to the vulnerability of the victim 44As noted above, the girl was 14 ½ years of age at the time of the offending conduct. Other than her age, there is no evidence of further vulnerability of the girl at that time. (e) difference in age between the victim and the applicant and the relationship between them 45There was a large difference in age between the applicant and the girl (i.e. 17½ years). The applicant was a friend of the girl's family and his offending conduct was clearly a breach of trust of that friendship as well as the trust the girl. (f) whether the applicant knew the victim was a child 46The applicant has readily acknowledged that the girl was young - around 15 years of age. (g) the applicant's present age 47As I have noted, the applicant is now 70 years of age. He has been married to his second wife for 10 years and they have four young children aged 10, 8, 7 and 2. The applicant's family background is set out in more detail below. (h) the seriousness of applicant's total criminal record and his conduct since the 1976 offence 48The applicant has a relatively long criminal history. However, the majority of his convictions occurred while he was young. He has a number of stealing and receiving offences, which were dealt with in the Children's Court as the offences occurred when he was between the age of 14 and 18. 49Between December 1962 and l September 1972, the applicant was convicted of a number of assault, motor vehicle, indecent language, street fighting and disobeying an order of maintenance offences. 50On 19 February 1976, the applicant was also charged with an offence of canal knowledge. That offence was dismissed after the victim made a statement to police saying that the applicant was not involved in the alleged offence. On the contrary, the victim said the applicant had assisted her in escaping from the alleged perpetrators. 51In December 1976, the applicant was convicted of an offence of assault for which he was fined $50.00 or 10 days hard labour. 52In May 1986, the applicant was convicted of an offence of stealing and fined $150.00 or 3 days hard labour. 53The last offence of which the applicant was convicted was in August 1999 and the offence for which he was convicted was having goods in his custody reasonably suspected of being stolen. On this occasion he was fined $250.00 and ordered to pay Court costs of $52.00. 54As can be seen from the above, since 1977 the applicant has only been convicted of two offences and he has been conviction free for the last 15 years. Prior to this he was conviction free for 13 years. 55The respondent tendered into evidence a police COPS Information Report dated 15 October 1998. The report states that the victim, a 13 year old girl, had told police that the applicant had been driving past her house regularly and when he saw her, he beeped his horn and offered to give her a lift and money. The report states that police spoke to friends of the girl who verified her story. One of the friends is recorded as saying she saw a pornographic magazine in the applicant's car. The report also states that police spoke to the applicant, several days later. The applicant is recorded as having acknowledged he beeped his horn as a friendly gesture with no intention of harm. The applicant is recorded as having denied giving the girl money. He said the girl had asked for money for food. The report notes that the magazine in the applicant's car was a bodybuilding magazine. It would appear that a personal violence order had been issued at the time police spoke to the applicant. However, it is noted that the matter did not require any further investigation. 56At the hearing, the applicant re-iterated what he had said to police. He said he hear no more from them in regard to the matter. On the basis of his evidence and the material before the tribunal, I am satisfied that there is no evidence to support a finding that the applicant cause harm or intend to cause harm to the girl the subject of the 1998 police report. His conduct was however, as he readily accepted, an error in judgement. (i) the likelihood of any repetition by the applicant of the offence and the impact on children of any such repetition 57In her report, Ms Taylor concluded that the applicant posed did not risk of sexual recidivism given that he had lived a stable life for the past 37 years. At the time Ms Taylor prepared her reports she had not been provided with a copy of the applicant's criminal record or the abovementioned 1998 COPS Information report. In her oral evidence, after having been provided with this information, Ms Taylor said that notwithstanding what was contained in this additional material, her opinion as to risk remained the same. 58In reaching her conclusion, Ms Taylor took into account static risk factors (the Static 99 test) and the dynamic risk factors ('Risk for Sexual Violence Protocol' (RSVP)) as identified during her assessment of the applicant. 59Ms Taylor explained that the Static 99 test was developed especially to assess the risk of sexual or violent recidivism by using static or historical variables. She said that, in applying the applicant's case to the bands ratings in the Static 99 testing, he appeared to fall within the low risk group given the time since the offence was committed and with no further offending conduct of this kind. The low risk group being the lowest group under that test. 60Ms Taylor also agreed that there was an argument that this risk level should be further lowered based on applicant's age. 61In regard to the dynamic risk factors, Ms Taylor explained that these factors are considered to provide an index of current 'live risk' crime which can change over time and are therefore amenable to intervention. 62In so far as these factors were relevant to the applicant, Ms Taylor again assessed the applicant to present as a low risk of re-offence. She identified the following as issues which were protective against his risk of further offending at this time: * He has had no charges of sexual offending since the first offence, 37 years ago. * He is currently in a long term and reportedly stable relationship. * He has a history of maintaining long term relationships. * He has no other history of offending behaviour. * He maintained full time work until he reached the age of retirement. * He has maintained long term volunteer work and social support networks. * He did not present with anti-social traits in terms of his involvement in criminal behaviour, his lifestyle and association with anti-social peers. * He has no major mental illness. * His older age (which is likely to reduce risk of recidivism). * He has no current suicidal or homicidal ideation. * He has no substance abuse history. * There is no evidence of psychopathy. 63Ms Taylor identified the following as being factors that could be considered to elevate the applicant's future risk of re-offence: * Some identified difficulties managing stress and coping. * Child abuse history. * Psychological coercion present in offending, at least in terms of the age difference between him and his victim. (j) any information given by the applicant 64In his evidence the applicant explained that at the time of the 1976 offence, he was unemployed and unmarried. He said that he had a difficult childhood. He was one of eleven children and when he was about 6-7 years old, his mother died and he and his siblings were removed from his father's care. The applicant said he was separated from his brothers and sisters and was placed into an orphanage. He said he was very lonely and miserable in the orphanage. Added to this was being separated from his siblings. He was not reunited with them until he was about 13 years of age. He said that he was only reunited after his eldest sister became of age and married. He said his sister and her husband had brought the family back together again. However, some of his siblings could not be located. The applicant is clearly very appreciative of what his eldest sister and her husband had done to bring the family back together again, even though they were so young. His eldest sister now lives with the applicant and his young family. He is her carer. As I have noted, the applicant's eldest sister has provided a statutory declaration in support of the applicant. She describes him as a caring brother and father. She said the applicant had told her of the 1976 offence and she has read the papers relating to this event. She said she was saddened to hear about this, but since 1980, having seen the applicant with her family and his own family she could not conceive of the applicant being a danger to children. 65The applicant was married to his first wife for 18 years. He has a 33 year old daughter from that marriage. As I have noted, ten years ago the applicant remarried and has four young children. In her statutory declaration the applicant's current wife also said that the applicant is a caring father and husband and did not pose a danger to children. 66For some years the applicant has been the authorised carer of his two grandchildren, a 15 year old boy and a 6 year old girl. The 15 year old boy has recently returned to live with his mother, the applicant's daughter. The tribunal was informed that he has done so as this was his wish. However, the applicant has remained the authorised carer of his granddaughter. The tribunal was informed that there were Children's Court proceedings on foot in regard to the applicant's granddaughter. However, those proceedings did not arise as a result of the applicant having acted inappropriately or failing to fulfil his role. I understand, they related to an application by the applicant's daughter. 67In his statutory declaration, Mr A said that he had known the applicant, through the local boxing club, for 30 years. He explained some of the activities in which the applicant was involved at the club. He said he was very disappointed to hear about the 1977 conviction and went on to say that in his dealings with the applicant, the applicant had shown characteristics of a man that is generous with his time and willingness to help those who ask for a helping hand. Mr A concluded by saying that in his view, the applicant 'is not a risk of harm to children but one who seeks the best for his children and the youth he coaches.' (k) other matters that the Children's Guardian considers necessary 68As I have noted above, the respondent opposes the making of the orders sought. In closing submission, Mr R Lee counsel for the respondent submitted that the applicant had failed to meet the onus imposed on him under subsection 28(7) of the Act. In this regard Mr Lee submitted that the applicant down played his criminality when being assessed by Ms Taylor as he failed to make mention of his overall criminality and the 1998 incident as recorded in the COPS report. Mr R Lee also submitted that the applicant had made inconsistent disclosures during the course of the hearing. Conclusions and orders 69In my opinion, the applicant has at all times given truthful evidence, to the best of his recollection and his understanding of the questions asked of him. As he explained he had a disruptive childhood, with limited schooling and as a consequence is not able to read or write well. However, as noted by Ms Taylor he has a very supportive family structure, in which he plays an important role. 70There is no evidence of the applicant having re-offended in the manner he did in 1976. It is now 38 years since that conduct occurred. The COPS report of the1998 incident, in my view, can be given little weight in light of the applicant's evidence. He has not denied that it occurred but emphasised that he did not act with an intention to harm, but was responding to what he thought was a friendly gesture. He was wrong and acknowledged it to be so. There have been no further reports of this kind. 71I also accept that the applicant fully appreciates that his 1976 offending conduct was wrong. 72Having regard to all the material before the tribunal (including the evidence of Ms Taylor) and the principle in section 4 of the Act, I am satisfied that the applicant has discharged his onus under subsection 28(7) that he does not pose a risk to children. 73Accordingly, the tribunal makes the following orders: 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 carnal knowledge, of which he was convicted on 16 March 1977. 2. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the respondent 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: 26 August 2014