Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BQD v Children's Guardian and the Department of Family and Community Services [2015] NSWCATAD 88 Hearing dates: 30 March 2015 Decision date: 30 April 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: (1) The decision of the Children's Guardian dated 20 November 2014 to refuse to grant the applicant a Working with Children check clearance is set aside and in substitution the respondent is to grant the applicant a working with children check clearance. Catchwords: Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children - criminal history – serious offences –– rehabilitation of offender – significant period of time since offending- no risk to children Legislation Cited: Child Protection (Working with Children) Act 2012 Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Amendment Regulation 2014 (repealed) Child Protection (Working with Children) Amendment Regulation 2013 Civil and Administrative Tribunal Act 2013 Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111 BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 R v Commission for Children and Young People [2002] NSWIRComm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 Category: Principal judgment Parties: BQD – Applicant Children's Guardian – First Respondent Family and Community Services – Second Respondent Representation: Solicitors: Baker Love Lawyers (Applicant) Crown Solicitors Office (Respondent) DFCS Legal Services (Respondent) File Number(s): 1410725 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in this Tribunal hearing or in the proceedings which is likely to identify those persons. REAsons for decision 1. The Applicant in these proceedings is referred to as "BQD". BQD is the applicant's pseudonym used in these proceedings. 2. On 8 January 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. In addition an order was made (by consent) joining the Department of Community Services as a party to the proceedings. 3. The jurisdiction of the Tribunal under section 28 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act. 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. 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act. 1. These proceedings arise because on 20 November 2014, the Children's Guardian made a decision to refuse to grant BQD a Working with Children Check clearance. On 22 December 2014 the applicant BQD applied to the Tribunal for a review of the Children's Guardian's decision pursuant to section 27 of the Act. Background 1. On 1 October 2013 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a Working with Children Check clearance because he and his spouse are the authorised carers of their granddaughter through a formal arrangement arising from orders in the Family Court of Australia and a Kinship Carer Assessment with the Department of Community Services (as it then was). This arrangement has been in place since approximately January 2008. It is this arrangement and its ensuing financial support that brings the applicant within the scope of Act. The applicant resided at the address with his spouse and the granddaughter, but was required to move out of those premises in November 2014 due to the requirement to obtain a working with children clearance from the Children's Guardian. He subsequently obtained a condition stay on the bar which allowed him to return home. 2. Section 10 of the Act provides that an adult person, who resides at the home of an authorised carer, must hold a working with children check clearance or have made a current application to the Children's Guardian for a clearance. 3. The respondent was required under to Act to process the applicant's application for a working with children check clearance, and as a result, in this instance conduct a risk assessment. The matter was referred for a risk assessment under the Act in early 2014. I note that the applicant and respondent liaised a number of times during 2014 concerning the progress and nature of the risk assessment. 4. It is not in dispute that the applicant has been convicted of offences which triggered the respondent conducting a risk assessment to determine whether the applicant poses a risk to the safety of children. (See clause 1(1) (b) of Schedule 1 and Part 3, Division 3 of the Act). 5. On 20 October 2014 the respondent advised the applicant by letter in accordance with section 19 of the Act that it proposed to refuse the application for a clearance. The purpose of this notice was to again give the applicant the opportunity to submit documents to assist in the respondent's risk assessment. 6. On 20 November 2014 the respondent refused the Working with Children Check clearance as the respondent determined that the applicant posed a risk to the safety of children. It is that decision which is the subject of this review before the Tribunal. 7. The issue to be decided by the Tribunal is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: (see section 63 Administrative Decisions Review Act 1997.) The working with children legislative scheme 1. The object of the Act is to protect children by not permitting disqualified persons, without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act). 2. 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. (See section 4 of the Act). 3. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. A breach of section 8(1) is an offence. 4. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). 5. A child related role is set out in section 6(3) of the Act. For the purposes of the Act, an authorised carer is a child related role in accordance with section 6 (3) (c). 6. In addition Division 3 of Part 2 of the Act provides for additional persons who must obtain a clearance. 10 Adult persons residing with authorised carers or persons providing home care services (1) An adult person (other than a person who is required under another provision of this Act to, or is exempt from the requirement to, hold a working with children check clearance) who resides at the home of an authorised carer or at a home where a home based education and care service or family day care service is provided must hold a working with children check clearance (of any class) or have made a current application to the Children's Guardian for a clearance. Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both. 1. Section 15(1) of the Act provides that the Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance to determine whether the applicant poses a risk to the safety of children. 2. Section 18(2) provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. 3. Part 4 of the Act deals with reviews and appeals. Section 27 makes provision for administrative review, by the NSW Civil and Administrative Tribunal, of decisions of the Children's Guardian. 4. Section 27 (1) of the Act makes provision for administrative review by the Tribunal of (amongst other things) a decision of the respondent to refuse a working with children check clearance (see section 27 (1)). The section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) ………... (3) ………... (4) An applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section. 1. Section 30 sets out the factors that the Tribunal must consider in determining a review application. Subsection 30 (1) of the Act provides: 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. Burden of Proof 1. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. 2. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32]. 3. An application pursuant to section 27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88. 4. In addition, in this case there is no presumption that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order pursuant to s28 of the Act. Risk to the safety of children 1. In this application, an issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 22 above). Section 15 (4) sets out the criteria which the Children's Guardian may consider. The Tribunal in its administrative review considers similar criteria in that section 15 (4) and 30 (1) are drafted in similar but not identical terms. An important distinction is the word "may" in 15 (4) and "must" in 30 (1). 2. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 ('the Repealed Act'.) At [42], His Honour said: '42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...' 1. These observations of Young CJ (in Equity) have continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8. 2. The remarks have also been cited with approval in AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, BFC v The Children's Guardian [2014] NSWCATAD 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal. The Issue 1. The primary issue before the Tribunal in this application as outlined at paragraph 11 above, is what the correct and preferable decision is having regard to the material before the Tribunal in relation to the granting of a working with children check clearance in relation to the applicant: section 63 Administrative Decisions Review Act 1997. 2. The applicant's application was heard on 30 March 2015. He has at all times been legally represented in these proceedings. At the conclusion of the hearing I reserved my decision. 3. As outlined at paragraph 26 (above), there is no presumption under section 27 of the Act that the applicant poses a risk to children as the applicant is not a disqualified person (seeking an enabling order) under the Act. This application is for a clearance under section 18 (2) of the Act. 4. The matter referred to in Schedule 1 of the Act which triggered a risk assessment (see paragraph 19 above) was: murder. The offence occurred in the State of Queensland whereby on 14 June 1968 the applicant was convicted and sentenced to a 12 year prison sentence. The relevant indictment from the other jurisdiction in force at that time has not been provided to the Tribunal. However it is accepted that the offence would be caught by the terms of subclause 5 (b) of Schedule 1 of the Act which provides that: (5) Subclauses (1), (2), (3) and (4) apply to: (a) …… (b) an offence under a law other than a law of New South Wales that is an offence similar to an offence listed in those subclauses 1. It is therefore uncontroversial that the offence constituted a 'trigger offence' for the purposes of Schedule 1 of the Act. The applicant was an adult at the time of the offence, and the offence was committed against an adult. 2. Due to the commencement of the amendments to the Act brought about by the Child Protection (Working with Children) Amendment Regulation 2014 on 29 October 2014 the 'trigger offence' would now be classified under the Act as a 'disqualifying offence' in accordance with Schedule 2. However at the time of BQD's application, the offence (not involving a child victim) was an assessment trigger offence in accordance with Schedule 1 of the Act. 3. Clause 8 of Schedule 1 of the Child Protection (Working with Children) Regulation 2013 (as amended) provides that those amendments do not apply to applications for clearances commenced prior to the amendment. The Clause provides: 8 Application of change to disqualifying offences (1) The amendments made by the Child Protection (Working with Children) Amendment (Miscellaneous) Regulation 2013 to Schedule 2 to the Act do not apply to or in respect of an application for a clearance made by a person before the commencement of that Regulation or to any subsequent application for a further clearance by that person. (2) The amendment made by the Child Protection (Working with Children) Amendment Regulation 2014 to Schedule 2 to the Act does not apply to or in respect of an application for a clearance made by a person before the commencement of that Regulation or to any subsequent application for a further clearance by that person. 1. The applicant therefore has not engaged in or been convicted of a disqualifying offence under Schedule 2, (see section 18 (1) ) and that as he was subject to a risk assessment (see section 18 (3) ), then the decision not to grant a clearance by the respondent is based solely on the provisions of section 18 (2) of the Act. That is, that the respondent is satisfied that the applicant poses a risk to the safety of children. 2. By letter dated 20 November 2014 the respondent determined that: In reviewing your application, the Office of the Children's Guardian (OCG) has decided to refuse to grant you a Working with Children Check clearance, as the OCG has determined that you pose a risk to the safety of children. In making our decision, the OCG considered the following information: (list of 19 items obtained by OCG or provided by applicant). …………….. In reviewing all of the information used in the risk assessment being disclosed to you, the OCG has decided to refuse to grant you a Working with Children Check clearance, as the OCG has determined that you pose a risk to the safety of children. This decision has been made by reference to the guidelines set out in section 15 (4) of the Act, in particular: The seriousness of the matter 1. I note that the decision appears to be based upon was based upon a sole criteria from the range of relevant considerations under section 15 (4) of the Act. The Evidence and Consideration of the Evidence 1. The applicant relied upon the following material: * His affidavit and annexures sworn 7 January 2015 and adopted at the hearing. * The affidavit of his spouse sworn 14 January 2015 (and tendered without objection). * Copy of Family Court Orders dated 30 December 2009. * Written submissions dated 13 April 2015 and filed 15 April 2015. * Copies of material provided to the respondent as part of the risk assessment process (Tendered in the Respondent's section 58 material). * The Psychologists Report of Dr C.J. Lennings dated 28 January 2015. 1. In addition the applicant relied on the oral evidence given at the hearing by himself, and Mr Lennings, as well as counsel's oral submissions. 2. The respondent relied upon the following material: * The bundle of section 58 documents filed 13 February 2015. * The additional bundle of documents filed by the Respondent on 8 January 2015 comprising records obtained from Queensland Police. 1. At the hearing the applicant gave oral evidence and was cross-examined by the solicitor for the respondent. 2. As outlined above in support of his application the applicant filed a report of Clinical Psychologist Dr C.J. Lennings. The applicant called Dr Lennings who gave oral evidence and was also subject to questioning by the respondent's solicitor. Evidence relating to section 30 (1) considerations (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 imposition of an interim bar. Trigger offences: 1. Murder (Queensland) The applicant was charged and convicted of committing murder in 1968 in a suburb of western Brisbane. The victim was a police officer. Pattern Trigger Offences: 1. There is no pattern of trigger offences, mainly due to the fact that the applicant has only three offences in total and other than the trigger offence, the other two are not listed in Schedule 1 of the Act, in part because the victim is not a child. (b) The period of time since those offences occurred and the conduct of the person since they occurred. 1. The applicant has no convictions for offences since 1968 and has not come to police attention in any manner since that time. There is evidence that the application completed both his custodial and supervision periods in a satisfactory manner with no adverse issues. There is no evidence before the Tribunal of any conduct which could be considered 'adverse' to the applicant in the last 47 years. (c ) The age of the person at the time the offences or matters occurred. 1. The applicant was a young man aged between 22 years and 25 years at the time of the three offences. (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. 1. There is no meaningful evidence before the Tribunal in relation to this provision. The two assaults were committed against adults, and the victim's ages are otherwise unknown. In respect of the murder offence, there is no evidence that the victim was vulnerable in any legal sense, and their age is of no consequence in respect of the offending behaviour and any potential risk that the applicant might now pose under the Act. (e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The section does not appear relevant to any offences in the applicant's criminal history. On the evidence before me, the difference in age is either unknown or of no consequence. In respect of the trigger offence it was submitted that both the victim and the applicant were approximately the same age. (f) Whether the person knew, or could have reasonably have known, that the victim was a child. 1. No offences involve children. (g) The person's present age. 1. The applicant is 72 years of age. The present age is not a consideration of any import on the evidence and material before the Tribunal, however I note that the statistical evidence indicates that the likelihood of an individual offending decreases with age after early adulthood. (h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred. 1. There are three offences in the applicant's criminal record. All three offences involved violence and occurred during the 1960's in Queensland. Two offences could be considered of some seriousness as they involve convictions relating to assault with at least one involving a police officer. The conviction for murder in 1968 is an extremely serious offence and also involves a police officer. 2. I note that in the ensuing 47 years the applicant has not come to police attention and on the evidence before the Tribunal has lived in a lawful and productive manner, in many ways leading an exemplary life when one has regard to the responsibilities that he and his spouse took on in respect of the grandchild, and the ensuing circumstances. The applicant has complied with the conditions of his supervision following his release from custody. He has used his time in custody to qualify in occupational areas and has developed his skills. He has married and remained in the relationship for approximately 35 years. He has been a valued employee, volunteer, and also successful small business operator who is highly regarded by those that know him and have provided attestations as to his character (as annexed to his affidavit). 3. The applicant's conduct has been in effect unblemished since the offences, being diligent in obtaining employment, child rearing and care for his family, living in a responsible manner, as well as volunteer work. (i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. 1. The applicant relied on the evidence of Dr Lennings Clinical Psychologist. Dr Lennings provided a detailed and comprehensive report and assessed the applicant as having a low risk of engaging in future violence against children. (j) Any information given by the applicant in, or in relation to, the application. 1. The applicant provided significant written and oral material to the respondent in respect of the working with children clearance process. In addition the applicant did provide the material referred to in paragraph 43 (above) in respect of his application to the Tribunal. Annexed to his affidavit were a number of Annexures ('A' - 'B' and 4 other 'annexures' not marked). 2. Dr Lenning's report (in addition to the matters outlined at paragraph 57 above) made the following assessment of risk and recommendations for risk management. 45. In those circumstances it is hard to see how (BQD) may be regarded as a risk to children in any capacity. There is no realistic scenario where such risk can be imagined. There is thus no requirement to consider supervision of his behaviour when in contact with children. (BQD) has clearly reformed in his character from the person he was in his early adult years. 1. Dr Lennings gave evidence in chief and was subject to questioning by the respondent's legal representative. He was also re-examined to clarify aspects of his evidence and was subject to clarification questions by the Tribunal. In addition to his report Dr Lenning's evidence was that the impact on risk of BQD is based on the frequency of offending, not specifically the nature of the offending. The policy considerations of 'high risk' are on the basis of the seriousness of an offence, and are not relevant to any empirical relationship. (k) Any other matters that the Children's Guardian considers necessary. 1. After making its decision based predominantly on the basis of section 15 (4) (a) of the Act - 'the seriousness of any matters that caused the assessment in relation to the person'- (Emphasis added) the respondent then submitted at hearing that 'the Children's Guardian takes a neutral position in respect of the application to the Tribunal.' Further consideration 1. The applicant provided approximately an hour of oral evidence at the hearing. He was subjected to extensive cross examination. In my view he gave his evidence in a candid and forthright manner. He did not resile from the questions put to him. Whilst it was clear that the police facts from 1960's differed in some aspects from the applicant's recollection and evidence, the applicant's evidence was broadly consistent with the other records, in so far as he was able to recollect in detail the circumstances of the incidents. The trigger offence was the one whereby there was the greatest disparity (particularly noting the applicant's version that it was an accident arising from his own attempt to self- harm) and that the indictment did not amount to manslaughter. However be that as it may, aspects of his version of events almost 50 years later, were contained within some of the Police Facts from the 1960's as evidence that he had contemporaneously provided that his single shot rifle had caught on his overall's under his arm with his back towards the victim. 2. It is clear that alcohol had been a factor in his three offences, but the expert evidence and the applicant's own evidence was that alcohol is no longer present. In addition the evidence was that (other than his gender) there is an absence of risk factors. 3. There was significant evidence that the applicant has substantially changed his life in the last 35 years, and in effect since the time of his incarceration in 1968. He has obtained educational qualifications, established his own successful business, maintained a supportive long term relationship, and performed a significant amount of paid and unpaid work. 4. I also note that there was evidence before the Tribunal concerning his care for children, and the significant productive role that he held in bringing up and caring for his granddaughter. 5. The Solicitor for the second respondent (the Department) submitted that the placement of the Granddaughter with the applicant and his spouse is a positive one. Conclusion and orders 1. As outlined above, the issue for determination is whether on the material before the Tribunal is whether I can be satisfied that the applicant poses a risk to the safety of children. 2. For the purpose of these proceedings, in my view on the material before me, the evidence does not establish that the applicant poses a risk to the safety of children. In my view the evidence does not establish that there is a real and appreciable risk of harm to children. In my view the evidence indicates that the applicant should be granted a Working with Children check clearance. 3. It follows that the correct and preferable decision is that the orders of the Tribunal are: 1. The decision of the Children's Guardian dated 20 November 2014 to refuse to grant the applicant a Working with Children check clearance is set aside and in substitution the respondent is to grant the applicant a working with children check clearance I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2015