Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BEF v Children's Guardian [2014] NSWCATAD 182 Hearing dates: 23 April 2014 Decision date: 30 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The applicant's application for an enabling order is refused. Catchwords: ADMINISTRATIVE LAW - child protection - enabling order - working with children check clearance - disqualified person - applicant convicted of aggravated indecent assault against a person aged 25 years - statutory presumption the applicant poses a risk to the safety of children - whether the applicant has discharged his onus and rebutted the statutory presumption Legislation Cited: Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Civil and Administrative Tribunal 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: BEF (Applicant) Children's Guardian (Respondent) Representation: Legal Aid NSW (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410027 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2013, the name of the applicant and the name of the any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal.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that the name of the applicant and the name of the any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal. For this purpose the pseudonym BEF has been used for the applicant's name. 3The applicant is a 'disqualified person' by reason of his conviction of the offence of aggravated indecent assault contrary to s 61M of the Crimes Act 1900: see clause 1(e) of Schedule 2 of the Act. The victim was an employee of the applicant and the aggravating factor of the applicant's offence was that it was committed at a time the applicant was in a position of authority. 4The applicant pleaded guilty to the offence and was convicted and sentenced by the District Court, on 16 December 2005. The Court sentenced the applicant to imprisonment for 18 months with a non-parole period of nine months. However, the Court made an order under subs 21(1) of the Crimes (Sentencing Procedure) Act 1999, suspending the execution of the applicant's sentence on the condition he entered into a good behaviour bond for 18 months. A condition of his bond was that he be supervised by the New South Wales Probation Service and undertake psychological and psychiatric treatment as directed by that service. 5The applicant is 60 years of age and seeks a working with children check clearance as he wishes to recommence working as a bus driver. As the work he is seeking will include the transport of children, the applicant sought a working with children check clearance on 13 November 2013. The respondent refused that application, as she was required to do, on 17 December 2013. The applicant filed this application on 17 January 2014. He also filed an application for a stay of the decision of the respondent, pursuant to subs 30(2) of the Act. That application was refused and the applicant's substantive application was heard on 23 April 2014. 6There is no dispute that the tribunal has jurisdiction to hear and determine the applicant's application. 7The jurisdiction of the tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 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 the safety of children. 8At the hearing, the respondent opposed the making of the order sought. 9At the conclusion of the hearing I reserved my decision. I have now considered all the material before the tribunal. For the reasons set out below I am not entirely satisfied that the applicant has discharged his onus as set-out in subs 28(7) of the Act. I make this finding primarily on the basis that I am not persuaded the applicant has sufficient insight into his offending conduct. The evidence 10At the hearing, the applicant relied on the following material: (a)A statement made by him dated 9 April 2014; (b)His submissions that accompanied his application for an enabling order (the last paragraph on page 1 and the first two sentence on page 2 were not pressed); (c)A reference, dated 30 March 2014, from the President of the applicant's local Islamic Cultural Centre; (d)A reference from his daughter, dated 28 March 2014; (e)A statement of agreed facts, dated 23 May 2005; (f)A reference from his wife, dated 30 March 2014; (g)Copies of certificates he had obtained in regard to bus driving; (h)A copy of the letter sent to him by the respondent's solicitor seeking information in regard to his application; and (i)A copy of the conditions of his bond. 11The applicant also gave oral evidence at the hearing and was cross-examined by Ms Ward, counsel for the respondent. 12The respondent tendered into evidence two bundles of documents and a report, dated 20 March 2014, of Jenny Howell a forensic psychologist. Ms Howell conducted a risk assessment of the applicant on the basis of the material before the tribunal and a clinical assessment of the applicant, which he agreed to participate in. Ms Howell also gave oral evidence at the hearing and she was cross-examined by Ms Ghabrial, counsel for the applicant. 13The documents relied on by the respondent included those relevant to the applicant's 2005 conviction and other responses the respondent obtained from enquiries that were made. The working with children legislative scheme 14The Child Protection (Working with Children) Act 2012 (the Act) makes provision for the regulation of those persons who can engage in, or continue to engage in child-related work. Its objects 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. 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 the 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. 17Subs 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. 18Subs 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. 19The term 'child-relate work' is broadly defined in section 6 of the Act. Included is 'transport services of children', which are described in clause 15 of the Child Protection (Working with Children) Regulation 2013 as: Work in providing transport services especially for children on a government funded or commercial basis, including school bus services and taxi services for children with a disability and supervision of school road crossings, is child-related work. 20As I have mentioned, subs 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 subs 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.' 21Section 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 section 23 of the Act in regard to the grounds on which a clearance can be cancelled or suspended). 22As I have mentioned, subs 28(1) of the Act makes provision for a 'disqualified person' to make an application to the Tribunal for an enabling order. 23Where 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) ... 24The 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."" 25The former Administrative Decisions Tribunal construed the meaning of 'risk', as it appeared in subs 33J(1) of Part 7 (now repealed) of the Commission for Children and Young People Act 1998 to have the same meaning. It is accepted that the word 'risk', has a similar meaning in the current Act. 26Section 30 sets out how an application under section 28 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) ... Consideration of subs 30(1) factors 27Set out below is the evidence and my findings in regard to each subs 30(1) factors. (a) seriousness of the disqualifying offence 28The conduct of which the applicant was convicted occurred on 16 July 2004. As I have noted the applicant pleaded guilty to this offence. However, two other matters were taken into account for the purposes of sentencing. These matters occurred prior to the offending conduct; namely on 5 and 7 July 2004. 29The agreed facts to which the applicant pleaded guilty state that the applicant met the victim in mid 2002. At the time, the victim was a university student and the applicant owned a service station. The victim began to work for the applicant and continued to do so until July 2003, when he went to Queensland to continue with his studies. 30The applicant treated the victim like he was part of his family. The victim would visit the applicant's home and the applicant would regularly contact him to make sure he was alright. In February 2004, when the victim had returned to Sydney, the applicant again made contact with him. He and his brother visited the victim at his home, where the applicant gave the victim a small gift from his travels overseas. During this visit the applicant explained to the victim that he had closed his service station and was considering opening another store in Sydney or Gosford and offered him a job. On 10 June 2004, the applicant opened a convenience store in Sydney and the victim started to work for the applicant on the same day. He worked the night shift from 10:00pm to 7:00am. 31On Monday 5 July 2004, when the victim started his shift the applicant asked him to come into the storeroom and put up a sign on the door stating that the store was closed for 5 minutes. The applicant said to the victim, 'You are like my son. I just want to love you'. The applicant then asked the victim to lick his tongue. The victim complied and told the applicant he was not interested. The applicant then kissed the victim's cheeks. This incident lasted for about two minutes. This incident was the first matter the Court took into account when sentencing the applicant. 32About two days later, on or around 7 July, the applicant again called the victim into the storeroom of the store. The applicant again kissed the victim and again asked him to suck his tongue. He then touched one of the victim's breasts and squeezed it. The victim held back and told the applicant that he really did not want it and he could not leave the shop closed for so long. Three days later, on Saturday 10 July, the victim wrote a note to the applicant to say that what he was doing was wrong, that he did not like it and he did not want to work in that type of situation. The victim put the note in the front of the applicant's diary, which the applicant read. The incident that occurred on 7 July was the second matter the Court took into account when sentencing the applicant. 33The agreed statement of facts go on to describe what occurred on Friday 16 July. It is stated the victim started his shift about 11:20pm. He took over from the applicant. The victim was under the impression that the applicant had gone home because he had not seen him for about 20 minutes. However, at about midnight the applicant asked him to close the front door and come out the back. The victim went into the storeroom where the applicant took hold of the victim's hand, kissed him and said words to the effect: "Why don't you love me, take my tongue inside your mouth." 34The applicant is said to have started pressing one of the victim's breasts when the victim said there were customers outside but the applicant did not respond. The applicant then opened the victim's pants and pushed him onto the floor so that the victim was face down. The applicant is said to have applied oil on the victim and placed his penis against the victim's body. The victim is said to have told the applicant to stop, which he did. The applicant is said to have said sorry. At about 12:13am the victim went back to the front of the shop, re-opened it and commenced work - he was crying. The victim contacted his friend and landlord - he reached them at about 12:43am and told them what had happened - he was crying. The victim's friend and landlord arrived at the shop together with other friends at about 1:22am and advised the victim to call the police. The victim called the police who arrived shortly thereafter. The applicant was arrested the following morning. He consented to the taking of a buccal swab for DNA purposes. DNA testing was also done of the victim's underclothes and a paper towel found at the shop - the results of the test were positive of the applicant's DNA. 35The offence of which the applicant was convicted carried a maximum penalty of 7 years imprisonment. 36In her written submissions, Ms Ghabrial, counsel for the applicant submitted that the applicant's disqualifying offence could not be said to give rise to a refusal of a clearance or imposition of an interim bar. She noted that the offence did not involve a child had the applicant had no other criminal convictions. 37While there is no evidence that the applicant has behaved in a similar way previously or subsequent to his offending conduct, the offence of which the applicant was convicted was a disqualifying offence under Schedule 2 of the Act. Hence, by reason of subsection 18(1) of the Act, the respondent was required to refuse his application for a working with children check clearance and the interim bar provision in section 17 of the Act did not apply. 38In any event, the question to be asked in regard to this factor is the seriousness of the applicant's disqualifying offence. 39Even though the victim was not a child, in my view, the offence of which the applicant was convicted was relatively serious. The victim was a young man and the applicant was his employer and almost twice his age. As pointed out by Ms Ward, counsel for the respondent, the applicant's offending conduct cannot be viewed as an isolated impulsive incident. He had persisted with his approaches even though the victim told him that it was improper and he did not like it. 40It is apparent from the material that the applicant initially insisted that the victim had consented to his approaches and had brought great shame to him and his family by going to police. He seems to have held this position up until the hearing where his evidence was that he now recognises that his behaviour was wrong. I was not persuaded by his evidence at the hearing as to his asserted new insight into his offending conduct. However, I do accept that the applicant feels considerable shame about what occurred. It clearly had a big impact on him, his family and also his wider community. 41However, returning to the question about the seriousness of the offence, in my view, the applicant's offending conduct was relatively serious, especially given its aggravating circumstances (i.e. committed at a time the applicant was in a position of authority). (b) period of time since the disqualifying offence 42It is almost 10 years since the disqualifying offence and there is no evidence of any further offending conduct by the applicant. (c) the age of the applicant at the time of the disqualifying offence 43The applicant was 49 years of age at the time of the disqualifying offence. (d) the age of the victim and any matters relating to the vulnerability of the victim 44As noted above, the victim was an adult male aged 25 years at the time. In her written submissions, Ms Ghabrial submitted that as the victim was not a child this was a factor weighing in favour of granting the enabling order. She also submitted that whilst the victim was an employee of the applicant he was also a friend of the applicant and there was nothing particular about the victim which caused the victim to be unusually vulnerable to the actions of the applicant. 45Ms Ward, on the other hand submitted that while the victim was not a child he was vulnerable in that he was much younger and in the position of an employee of the applicant. Ms Ward also noted the events had clearly caused the victim considerable stress and concern. As this is reflected in the agreed statement of facts, I agree with these submissions. (e) the difference in age between the victim and the applicant 46The difference in age between the applicant and the victim was between 24 and 25 years. (f) whether the applicant knew, or could have reasonably have known, that the victim was a child 47The victim was not a child. (g) the applicant's present age 48As I have noted the applicant is now 60 years of age. (h) the seriousness of the applicant's total criminal record 49As I have noted, other than the disqualifying offence, there is no evidence of any prior or subsequent offences having been committed by the applicant. (i) the likelihood of any repetition by the applicant of the disqualifying offence 50In early 2008, having undergone 12 months of treatment with the Department of Corrective Services Sex Offender Program, the applicant was assessed to fall in the low range for sexual re-offending. However, this assessment was contingent on the continuation of the applicant's management of his dynamic risk factors. At the time, the key areas of treatment were identified as relating to the applicant's: 'distorted beliefs about the victim that gave him permission to offend, poor intimacy within his marriage, issues relating to his poor general self regulation, the management of his emotional needs and poor coping strategies relating to stress.' It was also noted that, 'The applicant appeared to require others to defer to him as the important figure to be admired. This need was observed in his relationship with his wife and at work with his employees, "what I say is the final word". This need appeared to be fulfilled and was then transferred towards the victim, who made him feel good about himself, increased feelings of respect, power and authority. The victim was described to "listened to me" and [the applicant] spent more and more time with him. In addition, [the applicant] described high levels of stress relating to work and failure, which further undermined his sense of power. Over the course of treatment [the applicant] was able to understand the dynamics of these issues and the effect on his life. Treatment focused on his achieving more life satisfaction and fulfilment through his family in accepting himself, while challenging his distorted beliefs of himself and others. He was able to achieve a more work life balance and change his communication style within the family. This improved and [the applicant] was able to increase his level of disclosure with his wife. As a result of the offences he was rejected by parts of his community and family which also improved over time and he appeared more optimistic about the future.' 51In her report, Ms Howell assessed the applicant to represent a low risk of sexually reoffending. Ms Howell did however go on to say the following: '[The applicant], a very concrete and not psychological minded man, was unable to explain why he committed the offence. He demonstrates no real insight into his behaviour and does not seem to appreciate the severity of his cognitive impairment in this regard. [The applicant] was convicted in December 2005 at age fifty-one and there is no evidence of prior sexual violence. ... There was some evidence at interview of minimisation and denial of sexual violence by [the applicant] who talked of the offence occurring within a relationship between himself and the victim. Following his convictions [the applicant] complied with a referral to a sex offender treatment program; however, he was unable to recall or discuss specifics of the program or its content. It was not clear why this was difficult for [the applicant] although he may lack the cognitive skills to benefit substantially from counselling. The following issues are protective against [the applicant's] risk: -[He] does not present as inherently anti-social. -[He] has maintained a long term intimate relationship with his wife. -[He] does not endorse attitudes and values supportive of child sexual abuse. -[He] is reportedly not a victim of child abuse. -[He] has not come to the attention of any authority for sexual offences or inappropriate sexualised behaviour other than in relation to the conviction in 2005. -[He] does not present with a significant history of substance abuse. -[He] has no history of mental health concerns. -[He] lifestyle is stable with community participation.' 52On the basis of the above psychological assessments and the applicant's record of offending, I find that the applicant represents a low risk of reoffending in the manner he did in 2004. (j) information given by the applicant 53In his statement and in his oral evidence, the applicant explained that he had worked as a bus driver for approximately 10 years. During this time he transported children and he said no complaints were made about him acting inappropriately towards children. The applicant explained that he gave up driving buses in 2002 so that he could start up his own business in running convenience stores and service stations. He said, in 2013, when his last business failed, he decided he wanted to return to his earlier work as a bus driver. The applicant said he had been a very involved and hands on father, uncle and grandfather. He said he had a very close relationship with his five children and also his wife of 27 years. He was born in Asia and migrated to Australia in 1990. He is also an active member in his local Islamic cultural community where he has regular contact with children within that community. He said he is respected and trusted by adults and children alike. He also said the idea that he would interfere with, or harm, a child is completely foreign and disgusting to him personally as well as being completely against his faith and cultural beliefs. 54As I have noted, at the hearing the applicant acknowledged that what he had done was wrong and that the victim 'probably suffered' as a result and he feels very sorry for this. The applicant also said he now has a better understanding of ideas and concepts that were very foreign to him previously. These being the concepts of homosexuality and the difference between emotional attachments to family and others. He said that over the past 10 years he has had to deal with an enormous amount of shame and regret for his behaviour. He said it has also been very difficult for him to talk about it with others. He said he is aware of how much hurt and shame his conduct had caused his wife, his sister and her family as well as his older children who were aware of his conviction. 55In her reference, the applicant's 25 year old daughter said that her farther had always been a loving, kind and caring and played an important part in her childhood upbringing. She said she had full knowledge of the offences her father had committed in 2004. She also said that he was a kind natured and affectionate individual who plays a huge role in raising her daughter and that he has always been a kind natured, trustworthy and honest human being. 56In her reference, the applicant's wife said that she has full knowledge of the applicant's offending conduct in 2004 and she was aware of the purpose for which her reference was being sought. She said the applicant was a dedicated husband and a dedicated father to their five children. She said she has been observing him following his convictions and has found him to express remorse for what he had done as he cried many times and suffered anxiety as a result of being charged. She said she strongly believed that he was committed to change as he had promised her that it would not happen again. 57The reference from the President of the applicant's local Islamic Cultural Centre is in similar terms. During cross examination, the applicant acknowledged that the President was his brother-in-law. 58On the basis of the references, which were not challenged, I accept that the applicant has a strong supportive family and this is clearly a factor which minimises risk. However, I am not entirely persuaded that the applicant has any new insight into his offending conduct. This does not mean that I found the applicant to be untruthful. On the contrary, I found him to be forthright, but was not persuaded by what he said in regard his understanding and acceptance of his offending conduct. In this regard I found what he said to be self-serving, without any real new insight into his offending conduct. (k) any other matters the Children's Guardian considers necessary 59As I have noted, the respondent opposed the making of the order sought. Ms Ward submitted that on the evidence the tribunal could not be satisfied that the applicant had discharged his onus that he does not pose a risk to the safety of children. In this regard Ms Ward reiterated that the disqualifying offence was not a one off impulsive event and the victim, although not a child, was a vulnerable young man who had objected to the applicant's advances, yet the applicant persisted with these. 60Ms Ward also submitted, as Parliament had not excluded from the Schedule 2 offences, offences involving a victim who was not a child, the applicant's conduct was nevertheless relevant for the purposes of assessing risk of harm to the safety of children. In this regard, the applicant's failure to recognise the vulnerability of the victim was a relevant factor in assessing whether he had discharged his onus. Ms Ward submitted the applicant's very recent change of position about his relationship with the victim was troubling. She also pointed out that the applicant's sense of shame related to his concerns about a homosexual relationship. Yet the offence for which he was charged was making sexual advances which were not consented to. This, in my view, he continues to fail to understand or appreciate. Conclusions 61Having regard to the material before the tribunal and the requirements of section 4 of the Act, I am not persuaded that the applicant has rebutted the statutory presumption in subs 28(7) that he poses a risk to the safety of children by reason of his disqualifying offence. 62I make this finding primarily on the basis of the applicant's ongoing lack of insight into his offending conduct. While the offending conduct did not involve a child, I agree with the respondent that under the terms of the Act, the applicant's offending conduct remains relevant to the question of risk to the safety of children. As I have noted, I accept the applicant has a supportive family structure and he feels he has let them down. I also accept that the applicant has endeavoured to fully disclose matters relevant to his application. However, as I have noted, I am not persuaded that the applicant fully understands the position of authority he had over the victim, the vulnerability of the victim and appropriate boundaries of a relationship of this kind. Accordingly, I find, as at the date of hearing the applicant has failed to discharge the onus placed on him under subs 28(7) of the Act. 63On this basis, the appropriate order is to refuse the applicant's application for an enabling order. 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: 30 October 2014