Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BQE v Children's Guardian [2015] NSWCATAD 89 Hearing dates: 5 March 2015 Decision date: 05 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: R Booby, Senior Member Decision: 1. The decision of the Children's Guardian dated 2 October 2014 to refuse to grant the applicant a Working with Children Check Clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed on 22 December 2014 is otherwise refused and dismissed. Catchwords: Application for review of decision of the Children's Guardian. Whether the applicant has a forensic burden of evidence. Whether the applicant provided sufficient evidence to support his claims. Whether the applicant poses a real risk to the safety of children. Legislation Cited: Child Protection (Working with Children Act) 2012 (NSW) Cases Cited: YG & GG v Minister for Community Services NSWCA 247 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 Category: Principal judgment Parties: BQE (Applicant) Children's Guardian (Respondent) Representation: Counsel: M Gunning (Applicant) J Harris, Solicitor Advocate (Respondent) Solicitors: Joseph Grassi and Associates (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410726 Publication restriction: Section 64(1), Civil and Administrative Tribunal Act 2013 - Restriction against 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 and against publication of information that would identify the children of BQE. Judgment Background 1. On 4 September 2013 the applicant, referred to in this decision as BQE, applied for a Working with Children Check Clearance pursuant to subsection 27(1) of the Child Protection (Working with Children Act) 2012 NSW. 2. Sections 14 and 15 of the Child Protection (Working with Children Act) 2012 NSW and paragraph 1(1)(b) of Schedule 1 and paragraph 1(1)(e) of Schedule 2 of that Act have the effect that where a person has been charged with an offence under s61N of the Crimes Act 1900 NSW the Children's Guardian must conduct an assessment of the applicant. 3. Section 18(2) of the Child Protection (Working with Children Act) 2012 provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. 4. On 6 February 2011 the applicant was charged under section 61N of the Crimes Act 1900 NSW, with two counts of committing an act of indecency. He was convicted of these charges in the Local Court. However the convictions were set aside in the District Court on 8 March 2012. 5. The charges against BQE resulted in the requirement for the Children's Guardian to conduct a risk assessment in respect of BQE's application. 6. The Children's Guardian contacted BQE regarding his application. BQE initially responded by telephone on 30 October 2013 but failed to respond to a further telephone call on 4 March 2014 and to letters and emails sent to him on 25 March 2014, 15 April 2014 and 4 June 2014. In his evidence BQE states that he did not receive the letters because he had changed his address. 7. The Children's Guardian determined that BQE is a risk to children and refused to issue the clearance. BQE was issued with notice of this decision on 2 October 2014. 8. Pursuant to section 27 of the Child Protection (Working with Children) Act 2012, BQE has applied for a review of the decision of the Children's Guardian to refuse him a Working with Children Check Clearance. The application was outside the ordinary time limit for the review. The Children's Guardian did not oppose an extension of time and the Tribunal extended the time for the filing of the application. 9. There is no dispute that the Tribunal has jurisdiction to hear and determine the application. 10. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian. (section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]). 11. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of information about 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. The prohibition was also extended to information that would identify the children of BQE. Child Protection (Working with Children Act) 2012 1. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance. 2. Section 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. 3. The words "well-being" of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children. 4. The Act adds to those words, that "in particular" protecting children from "child abuse" is the paramount consideration. 5. The Act does not define "abuse". However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows: "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence." 1. Section 4(1) of the Family Law Act 1975 defines "abuse" as including: "causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence" 1. These provisions support a view that the concept of 'child abuse' includes actions which are likely to cause psychological harm. 2. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from "any possibility of abuse". At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant: "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. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]). 2. Taking into account all of these matters, it is my view that the meaning of "risk" is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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. 3. Part 3 of the Act provides for the determination of applications by the Children's Guardian. 4. Subsection 15(4) sets out the factors that the Children's Guardian may consider when making the assessment. These are: 1. the seriousness of any matters that caused the assessment in relation to the person, 2. the period of time since those matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the matters occurred, 4. the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the matters occurred, 9. the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, 10. any information given in, or in relation to, the application, 11. any other matters that the Children's Guardian considers necessary. 1. The Tribunal's review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are: 1. 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 2. the period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the offences or matters occurred, 4. 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, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. any information given by the applicant in, or in relation to, the application, 11. any other matters that the Children's Guardian considers necessary. 1. Subsection 28(5) of the Child Protection (Working with Children Act) 2012 requires that an applicant must fully disclose to the Tribunal any matters relevant to the application. 2. The 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 an applicant but to minimise possible risks to the safety of children. 3. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to s. 28(7) of the Act if he were a disqualified person. 4. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account: 1. the nature of the cause of action or defence, and 2. the nature of the subject-matter of the proceeding, and 3. the gravity of the matters alleged. 1. Although the applicant does not have a legal onus of proof, he does have a practical or forensic onus (Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 at para. 39 – 49). In his concurring, but separate judgement in the QAAH matter (supra) His Honour Mr Justice Kirby described that onus thus: "In an inquisitorial tribunal, the legal burden of proof typical of an adversarial trial may be missing. However, the forensic context still reflects the reality of a decision-making process. If a party that could be expected to present material in support of its case fails to do so, that party cannot then complain if the decision-maker decides that a basis for the relief claimed has not been established" (at paragraph 136). 1. Taking these matters into consideration I am satisfied that the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act to decide whether in all the circumstances the applicant poses a real and appreciable risk to the safety of children. The Evidence 1. The applicant tendered into evidence without objection: 1. Exhibit A1: Character references dated 28 January 2015 and 30 January 2015. 2. Exhibit A2: Affidavit sworn by BQE on 2 February 2015 with annexures 3. Exhibit A3: Character reference dated 2 February 2015 4. Exhibit A4: Character references dated 4 February 2015 5. Exhibit A5: Letter dated 18 February 2015 from NSW Crown Solicitors Office to solicitors for BQE. 6. Exhibit A6: Letter dated 2 March 2015 from solicitors for BQE to the NSW Crown Solicitors Office 1. The respondent tendered into evidence without objection: 1. Exhibit R1: A bundle of documents numbered page 1 through to page 196 and tabbed 1 through to 12 as follows: 1. Tab 1: s 19 Proposal and attachments (a) to (d) 2. Tab 2: File Notes recorded by the Children's Guardian 3. Tab 3: s.16 Applicant request for further information 4. Tab 4: s.19 Notice of proposed refusal of application letter 5. Tab 5: s.20 Notice of final decision dated 23 September 2014 6. Tab 6: s.20 Notice of final decision dated 2 October 2014 7. Tab 7: Letter dated 5 March 2014 from Office of the Children's Guardian to BQE requesting that he contact that Office 8. Tab 8: Letter dated 15 April 2015 from the Office of the Children's Guardian to BQE requesting further information 9. Tab 9: Letter dated 8 October 2014 from the Office of the Children's Guardian to the employers of BQE 10. Tab 10: Letter dated 15 October 2014 from the employers of BQE to the Office of the Children's Guardian 11. Tab 11: Letter dated 15 October 2014 to BQE from his employers 12. Tab 12: Screenshot of the applicant's contact details on the Working with Children database 1. Exhibit R2: Family and Community Services Response to s31 application 2. Exhibit R3: Email dated 27 February 2015 from Working with Children Risk Officer to the employer of BQE and email in reply. Consideration The matters that caused a refusal of a clearance 1. The matter that triggered a risk assessment of BQE was two charges of "commit act of indecency with person 16 years" which BQE was alleged to have committed on 8 March 2012. 2. In a letter dated 5 June 2014 the Children's Guardian provided BQE with notice of proposed refusal of his application and invited him to submit further supporting material. 3. BQE did not provide further material and in a letter dated 2 October 2014 he was advised that the Children's Guardian had decided not to grant a working with children clearance. The letter states that in reaching its decision the Office of the Children's Guardian took into account the following matters regarding BQE: 1. Criminal History 2. Information provided by NSW Police 3. Information provided by NSW Local Courts 4. Information provided by the Office of the Director of Public Prosecutions (NSW) 5. Relevant file notes recorded by the Office of the Children's Guardian related to the application by BQE. 1. The letter dated 2 October 2014 from the Office of the Children's Guardian to BQE states that the Office of the Children's Guardian decided not to issue a Working With Children Clearance because it decided that BQE did pose a risk to children for the following reasons: 1. The seriousness of the matters taken into account. 2. The period of time since the matters was insufficient to satisfy the Children's Guardian that BQE was not a risk to the safety of children. 3. BQE's conduct since the matters that were taken into account does not demonstrate that he has mitigated the identified risk. 4. The difference in age between BQE and the complainants. 5. BQE knew, or could reasonably have known, that the complainants were children. 1. Information provided by police, NSW Local Courts and the Director of Public Prosecutions and file notes of the Office of the Children's Guardian provided to the Tribunal in Exhibit R1 indicate that included in the information taken into account by the Children's Guardian were three matters set out below. The 1997 incident 1. A police event note dated 1 December 1997 records details to the following effect: 1. On 1 December 1997 a woman was served by BQE in a rug store. 2. BQE took the woman to a part of the store that was not visible to other customers and the woman saw that BQE had his left hand in his pocket and was moving his hand up and down his crotch. 3. The woman saw the outline of BQE's erect penis. 4. The woman was shocked and frightened and left the store and went to another store from where the police were called. 5. When spoken to by police BQE said that he had been itchy and was scratching himself. He said that the hessian bags containing the rugs make him itchy. He was shocked when he realised what the woman thought he had done and he had tried to apologise to the woman but was not able to do so because she rushed out of the store and he was too shocked to know what to say. Regarding the 1997 incident: 1. At paragraph 32 in his affidavit dated 2 February 2015 BQE refers to an event in 2007 but under cross examination clarified that at that paragraph he is in fact referring to the 1997 incident. He states that the incident involved him being vey itchy and scratching his upper leg. He believes that the itchiness was caused by the hessian fabric and the Zoloft and Seroquel medication he was taking at the time. 2. Under cross examination by the solicitor for the respondent BQE made statements to the following effect regarding that incident: 1. He did not take the female customer to a concealed spot in the store. 2. At the time of this incident he was addicted to alcohol, not yet having undergone rehabilitation which he later undertook. 3. He did not recall if he was taking medication at that time and was well enough to work. 4. He does not accept that the woman saw an outline of his erect penis under his clothes. 5. He did not remember that she left the store abruptly and at the time he did not think anything had gone wrong. 6. The police record of the conversation with him does not refer to itchiness caused by medication. He did not recall whether or not he mentioned the medication to police. He said that as the police did not mention the medication maybe he did not mention it. 7. The itchiness might have been caused by medication as well as the hessian bags but the hessian bags did cause itchiness and the boss of BQE confirmed that to the police. 1. Under re-examination by his counsel, BQE said that when he was interviewed by police in respect of the 1997 matter he was never cautioned that anything he said might be used in evidence and police did not ask him to provide a formal statement regarding the incident. 2. In his submissions counsel for the applicant notes that: 1. BQE was never formally interviewed regarding the matter and that the accounts of the alleged incident have never been tested prior to BQE's evidence regarding the matter in his affidavit and during the Tribunal hearing. 2. Police took no further action regarding this incident. The February 2011 incident 1. A police event note dated 6 February 2011 refers to the events that resulted in BQE being charged with the 2 counts of committing an act of indecency. The Facts Sheet in relation to that incident includes statements to the following effect: 1. On 6 February 2011 two 17 years old females were on a train en route to Blacktown, NSW when they observed BQE with the zipper of his denim shorts undone. He was holding an open newspaper in his left hand and was "slowly 'wanking" his erect penis with is right hand, moving his hand in an up and down motion" for approximately five seconds. 2. The two females were distressed and left their seats. Approximately 5 minutes later they met an off-duty Transit Officer who went with the females back to the area of the train where the incident had occurred. 3. A short time later the Transit Officer and the females located BQE and one of the females took hold of BQE and advised him that he was arrested for exposing his penis on the train. The Transit Officer contacted his control room and, when the train arrived at Parramatta Station, uniformed Transit Officers arrested BQE. Police arrived a short time later. 4. In an interview with police BQE said that when on the train he had an itch in his groin area and undid his zippered fly. BQE said that it was his practice not to wear underpants. He said that he placed his hand from the waist area down under his belt to scratch the itch and did not explain why he needed to have his zipper undone to scratch the itch. 1. As a result of the incident on the train on 6 February 2011 BQE was charged with two counts of an act of indecency. The matter was heard at the Penrith Local Court on 22 July 2011 and 13 October 2011 and the court found that the offences were proved and ordered that BQE enter a recognizance to be of good behaviour for two years and to accept the supervision of the Probation and Parole Service. 2. BQE appealed the conviction and the appeal was upheld in the Penrith District Court by Her Honour Judge Syme on 8 March 2012. Attached to the affidavit of BQE dated 2 February 2015 is a letter dated 14 October 2014 from the Registrar, District Court of NSW indicating that in upholding the appeal against the conviction the court dismissed the charges as it found that they were not appropriate. 3. I was not provided with any further details about the District Court decision to uphold the appeal. Regarding the February 2011 incident 1. In his affidavit dated 2 February 2015 BQE makes statements to the following effect regarding this matter: 1. At the time he was taking Zoloft and Seroquel medication as prescribed to treat depression. The medication causes him to have severe dry skin and to be extremely itchy. 2. He was reading the newspaper and undid his zipper and scratched himself without thinking. 3. He does not wear underwear because it aggravates the itchiness. 4. He was extremely embarrassed and shocked when spoken to by the Transit Officer and felt intimidated when later questioned by three police officers. He felt that some of the answers he provided to police were twisted against him and the police were not interested in his explanation regarding the itch caused by the medication. 1. When cross examined in relation to this incident by the solicitor for the respondent, BQE: 1. Agreed that the police record of interview does not include any reference by BQE to medication causing his itch or that being the reason why he wore no underwear. He said that during the police interview he felt intimidated and dumbfounded and was not thinking clearly. 2. Denied that his penis was erect at the time of the incident and said that he was scratching his itchy pubic area and was not masturbating. 3. Said that he did not recall that when the matter was before the District Court on appeal the court refused an application by the Director of Public Prosecutions to call more evidence. 1. Documents provided to the Tribunal indicate that the Crown Solicitor's Office had asked BQE for details about his general practitioner. In a letter dated 2 March 2015 addressed to the Crown Solicitor, BQE's solicitors seek an explanation as to the relevance of that information. During cross examination by the solicitor for the respondent, BQE said that he was not aware that this information had been sought. However when re-examined by his counsel BQE said that the letter dated 2 March 2015 had been written under his instructions. 2. During cross examination BQE agreed that Dr Strangways-Dixon, who provided him with a character reference dated 2 February 2015, is his general practitioner. He said that he has spoken on more than one occasion to Dr Strangways-Dixon about the itch caused as a side effect of his medication. He also agreed that he had discussed with Dr Strangways-Dixon the incident on the train in February 2011 and the criminal charges that resulted. The solicitor for the respondent noted that whilst the character reference refers to the incident on the train it makes no reference to the cause of the itch being a side effect to BQE's medication. BQE said under cross examination that he had not asked Dr Strangways-Dixon to provide an explanation for the itch. He said that some information about the itch was presented at the Local Court but he could not recall if his doctor gave any specific evidence at that hearing. 3. The reference from Dr Strangways-Dixon refers to the incident by opining that it was an "innocent mistake" by BQE and that he believes BQE when the latter says that "he scratched himself, totally oblivious to the presence of young females". 4. Counsel for the applicant objected to the questioning about inclusions in the reference on the basis that a character reference should not be expected to include all matters. However, I am of the view that it is relevant that despite direct reference to the incident and to BQE's account of the incident, BQE's general practitioner does not make reference to side effects of medication which, according to BQE had been discussed with him on more than one occasion. 5. In his oral submissions counsel for the applicant submitted that: 1. When giving evidence about this matter in the Local Court he referred to the itch caused as a side effect of the medication and provided a copy of a document referring to the side effects of the medication as being an itch. 2. BQE's evidence at the Local Court was tested by cross examination and was more contemporaneous than BQE's testimony during the hearing, which nevertheless corroborated the evidence he gave in the Local Court. Whilst he was convicted at the Local Court, that conviction was overturned in the District Court. 3. BQE's evidence was not questioned in the District Court when his appeal was upheld. 1. In his written submissions counsel for BQE stresses that whilst BQE was initially found guilty of the offences alleged to have occurred on 6 February 2011 that conviction was later quashed and he is entitled to be assumed to be innocent of those charges. 2. The Tribunal was provided with the transcript of the trial of BQE in the Local Court on 22 July 2011. I note that during those proceedings a document titled "MIMS Publication Information Sheet re Medications" was handed up by counsel for BQE and was marked for identification. During that hearing. BQE is asked "Is that a printout you've got from the publication known as MIMS which talks about he various prescription medications and the like and sets out certain things in relation to Zoloft?" to which he answers "Yes" (page 53 at line 20-23"). 3. I also note that during the Local Court hearing, BQE was asked questions about the interview with police in which he had said that he scratched his pubic area by placing his hand under his belt and down to the pubic area and the police questioning why, in that case, it was necessary to undo his fly. During that hearing BQE said that he scratched his pubic area by placing two fingers though the open zip (page 57, lines 24-45). The April 2011 incident 1. A police event recorded on 17 April 2011 contains statements to the following effect: 1. On 17 April 2011 BQE was on a train and commenced a discussion with a female passenger asking her about her boyfriend, her age, where she lived and what she wanted to do when she was older. Whilst he was talking to the female BQE had his hands in his groin area and his hand were covered by a jumper and he appeared to be playing with something underneath his jumper. 2. The female called her mother who advised her to alight from the train, which she did, and she advised Railway staff who contacted the police. 3. The police obtained a statement from the female. At Central Railway Station BQE was stopped by Commuter Crime officers and was questioned regarding an alleged act of indecency. BQE denied the allegations and refused to participate in an interview. 4. Police were not able to view CCTV footage of the incident and as the female complainant had not actually witnessed BQE touching his penis or obtaining sexual gratification whilst moving his hands no further action was taken in relation to the incident. Regarding the April 2011 incident 1. In his affidavit dated 2 February 2015 BQE states that during his train trip from Emu Plains to Central station he slept for the entire journey because he was tired due to lack of sleep resulting from shift work. He was stopped by police at Central Station and accused of committing an act of indecency. The police told him he fitted the description of man rubbing himself during the train journey. He states that he was taken to the police statin for questioning and did not wish to go through a police interview due to his experience of the interview regarding the February 2011 incident. 2. Under cross examination by the solicitor for the respondent BQE denied that he was the person referred to by the complainant. 3. In his oral submissions counsel for BQE submitted that identification evidence is "notoriously unreliable" and that the identification made by the complainant had never been tested and no charges resulted. Regarding the incidents generally 1. In his affidavit dated 2 February 2015 BQE states that he remains on medication that gives him itchy and dry skin. He said that he continues to use Clarytine to relieve the itch and that he is "very cautious about where and when I react to the side effects of my medication". 2. Counsel for the applicant submitted that there is no sufficient basis for concluding that the three matters referred to above occurred as alleged and that BQE is entitled to a presumption of innocence in relation to each matter. 3. In his oral and written submissions regarding the incidents outlined above, the solicitor for the respondent: 1. Acknowledges that the incidents amount to allegations and have not been proved and cannot be given the weight they would assume if they had been proved. 2. Acknowledges that the incident occurring in April 2011 has the least weight due to the unreliability of the identification of BQE as the alleged offender. 3. Submits that: 1. It is not necessary that each of the matters considered by the Children's Guardian and the Tribunal be proved on the balance of probabilities and that the correct test is whether the material generally supports a conclusion that BQE represents a risk to children. 2. Whilst the matters are allegations only, they comprise allegations of broadly similar behaviour alleged by three unrelated people. 3. BQE has failed to satisfy the forensic burden of providing evidence to support his claim that the first two incidents result from behaviours brought about by an itch caused as a side effect of medication. He did not tender medical evidence at the Local Court and did not refer to the itch in his recorded interview with police in relation to the February 2011 incident. 4. The omission of medical evidence at this Tribunal is the more striking taking into account that the reference from Dr Strangways-Dixon refers to scratching but does not link this with the effects of any medication. 1. The solicitor for the respondent acknowledges that BQE was never requested to provide medical evidence and that the claim that BQE has an itch related to side effects of medication is not a recent one. 2. The solicitor for the respondent also submitted that BQE's failure to provide medical evidence about the itch offends against the requirements expressed in s. 27(4) of the Child Protection (Working with Children) Act that places a positive obligation on the applicant to fully disclose all relevant matters. He drew the attention of the Tribunal to the discussion of this section in the recent matter of BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. 3. In relation to the possibility that the failure to provide evidence of the itch caused by medication might offend against the requirements of s.27(4) of the Child Protection (Working with Children) Act, counsel for the applicant noted that evidence was given verbally by BQE during the hearing and it corroborates previous evidence given in the Local Court. He also cited Adamson J in the recent matter of BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 which deals with an application for an enabling order and therefore a matter in which the applicant bears to onus of proof. In that matter, at paragraph 15, His Honour states that where the failure to provide information: "indicates a lack of insight, or dishonesty, the failure may be relevant to the question whether an enabling order ought be made because it is relevant to the assessment of risk and the paramount consideration of the operation of the Child Protection Act" 1. Counsel for the applicant submitted that that there is no evidence of lack of insight or dishonesty on the part of BQE. The seriousness of the matters that caused a refusal of a clearance 1. In his written and oral submissions, in addition to those matters noted in preceding paragraphs related the three incidents considered by the Children's Guardian, counsel for the applicant submits that: 1. BQE does not have a criminal record. The applicant is entitled to a presumption of innocence in the context of this factor under section 30(1)(a) of the Child Protection (Working with Children) Act 2012. 2. Apart from the matter related to the incidents in February 2011 no allegations against BQE have ever been tested or examined in court and the District Court overturned the decision of the Local Court where the allegations related to the February 2011 matter were tested. 1. In his written and oral submissions, in addition to those matters noted in preceding paragraphs related the three incidents considered by the Children's Guardian, the solicitor for the respondent submits that: 1. It is relevant that the standard of proof applicable in criminal cases is different from the balance of probabilities applying in the Tribunal. 2. All three allegations against BQE concern non-contact sexual offences committed in public with other people present and against strangers. The period of time since those offences or matters occurred and the conduct of the person since they occurred. 1. The 1997 matter took place approximately 17 years ago and the 2011 matters were approximately four years ago. 2. In his affidavit BQE makes statements to the following effect: 1. He has three children aged 14, 5 and 3 who reside with their mothers. He has a strong relationship with them and they stay with him every second weekend and he speaks to them every night by telephone. 2. He was previously addicted to alcohol but has been sober for 14 years. 3. His alcoholism was caused by depression which has been stabilised by medication. 4. In 2000 he attended William Booth House alcohol and drug rehabilitation facility and completed a 10 months course for his addiction. 5. He attends meetings of Alcoholics Anonymous at least 2 nights per week and has done so for the past 14 years. He has also been part of a 12 step Christian based program called Regeneration and volunteered to help others through that program for ten years. 6. He worked for the Salvation Army from 2002 – 2013 in the following roles: 1. 2002-2004: Detoxification Officer at William Booth House 2. 2004-2006: Detoxification Officer at the Alf Dawkins Detox Unit targeting detoxification and living skills for men. 3. 2006-2013: Crisis assistance and detoxification support at Foster House Homeless Men's Hostel. 1. In or about August 2013 he applied for his current position as a case manager with Settlement Services International (SSI) because he wanted a change from working with single males with addiction problems. He enjoys the work with SSI and would be "devastated" if he was forced to leave as a result of not having a Working with Children Clearance. 2. If he is not provided with the clearance he believes he would have difficulty in obtaining another job in the social services industry because most require a Working with Children Clearance. 1. In addition to the character reference provided by Dr Strangways-Dixon referred to in the previous section of this decision, BQE provided the following references: 1. In a letter dated 28 January 2015, Mr Adam Goss states that he is now a private investigator and before that was a NSW Police Officer. He makes statements to the effect that: 1. BQE boarded with him in his house from 2004 for approximately 2 years and again two years after that for approximately 18 months. 2. Over this period Mr Goss' children visited him regularly and one daughter lived with him on a full time basis for some of that time. 3. He never had cause to distrust or suspect BQE in relation to the safety and welfare of his daughter or his home and contents. 4. Never, either in her body language or spoken word, has his daughter caused him concern regarding the presence in the house of BQE. 5. When BQE discussed work incidents with him he was impressed by BQE's descriptions of his ability to diffuse events of drug induced aggression and violence. 6. He was impressed by BQE's contribution to voluntary work at the Wesley Mission as past of the 12 Steps rehabilitation program and his efforts in following up participants by telephone class and meetings. 7. He is in regular contact with the mother, siblings and children of BQE who is a "most tender, loving, tolerant and responsible parent". 1. In a letter dated 30 January 2015 Fr Arthur Cook of St Mathews Catholic Church states that he has known BQE since he was a child and has found him to be "honest, hard working, patient and professional: and to be "especially caring" of his three children and an "attentive and loving" father. 2. In a letter dated 4 February 2015 Mark Shand, a Case Manager at SSI, states that he has known BQE for 18 months. Mr Shand makes statements to the following effect: 1. BQE goes to lengths to maintain contact with his children. 2. In his workplace BQE shows empathy and concerns for his clients. One client, a minor, recently transferred from BQE's case management due to the lack of a working with children clearance, spoke very highly of BQE and was disappointed that his case management had been transferred. 3. In the time that he has known BQE the latter has always behaved professionally and has maintained proper boundaries. 4. In his opinion BQE has high levels of integrity, empathy and compassion and any child in his care or under his case management or supervision would be safe and well looked after. 1. In a letter dated 4 February 2015, Magdaline Shenton-Kaleido, a Team Leader at SSI states that BQE has proved to be a "consistent and honest worker, who has gained the trust and respect of both his colleagues and clients". 1. In his written submissions, counsel for the applicant submits that: 1. There is no sufficient basis for assuming that any of the matters alleged in 1997 or in February and April of 2011 occurred as alleged and that this is relevant because s30(1)(b) presupposes that the "offences or matters occurred". 2. The applicant's evidence supports a view that he is devoted to his children, committed to his work and also committed to dealing with his past addictions. The age of the person at the time the matters occurred, the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the person and the relationship (if any) between the victim and the person, whether the person knew, or could reasonably have known, that the victim was a child, the person's present age, 1. The age of the complainant in the 1997 matter is not known but she had a son in a pram at the time. BQE was aged 24 at that time. There is no evidence of any particular vulnerability of the complainant. 2. The complainants in the February 2011 matter were aged 17 years. In the police record of interview BQE states that he thought they were "young women", not teenagers. At this time BQE was aged 38. There is no evidence of any particular vulnerability of the complainants. 3. The age of the complainant in the April 2011 matter is not specified. However her statements about the type of questions BQE is alleged to have asked suggest that she was a young person. At this time BQE was aged 38. There is no evidence of any particular vulnerability of the complainant. 4. BQE is currently 42 years old. 5. In his written submission regarding these matters counsel for BQE submits that it cannot be said that any of these incidents has been proved to have occurred. The seriousness of the person's total criminal record and the conduct of the person since the matters occurred 1. BQE had no criminal record. In his written submissions, counsel for BQE submits that this is a significant fact. He also submits that BQE is a man of good character having regard to his age, his lack of criminal antecedents, his employment, community ties and work. 2. In a letter dated 15 October 2014 addressed to the Compliance Officer, Office of the Children's Guardian, Rebecca Maines, Manager, People and Culture at SSI states that having received notice of the working with children bar from the office of the children's guardian, SSI had ensured that BQE was not working with children and that his one such client, a male aged 17 years, had been removed from his case management. 3. In an email dated 27 February 2015 addressed to the Children's Guardian, Caroline Reid, Manager People and Culture at SSI states that SSI has no performance issues or work related concerns which SSI is investigating, and that BQE is a "solid performer and a valued team member". The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition 1. In the documents provided by the respondent, the "Triage s.19 Proposal" notes that the incidents alleged against BQE occurred in a public place, in respect of strangers and with others present, and that these factors are relevant in a Static 99 actuarial assessment of risk. However the Tribunal was not provided with further evidence on this matter and was not provided with an actuarial assessment of the risk posed by BQE. 2. In his oral and written submissions counsel for the applicant submits that: 1. As a man of good character with family and stable employment, BQE is most unlikely to pose a real or appreciable risk to the safety of children. 2. BQE has overcome challenges, including alcoholism and is giving back to the community in a job where he is helping others. 3. BQE denies that the incidents occurred as alleged and he is entitled to the presumption of innocence. 4. BQE gave evidence that whilst this medication continues to give him itchy and dry skin he is now cautious about the effects and takes Claratyne to relieve the symptoms. Any information given in, or in relation to, the application 1. In his affidavit dated 2 February 2015 BQE makes statements to the following effect regarding contact with the Office of the Children's Guardian: 1. He had received a number of telephone calls from an unknown number and upon telephoning the number on 30 October 2013 he was advised that the Office of the Children's Guardian was conducting a Working With Children Check and he was asked a number of questions. 2. On 13 October 2014 he had a discussion with his manager at SSI and was notified that the Working With Children Clearance had been refused and he was not permitted to work with children. 3. On 14 October 2014 he attended his mother's home and was given a letter dated 2 October 2014. That letter noted that BQE had not provided the Children's Guardian with any further information when provided with an opportunity to do so and advised that the Office of the Children's Guardian had decided to refuse to grant the Working with Children Check clearance. The letter ( a copy of which is annexed to the affidavit) also refers to a letter dated 4 June 2014 from the Office if the Children's Guardian inviting BQE to submit further information. 4. BQE had not received any prior communication, including requests for further information, from the Office of the Children's Guardian since the telephone conversation on 30 October 2013. 5. When he made the application BQE was living at his mother's address but had moved from there between November 2013 and December 2014. 1. In his affidavit BQE also indicates that his ongoing employment is at risk due to the refusal to grant the Working with Children Clearance. 1. He has been advised by the Manager of People and Culture at SSI that the Department of Immigration and Border Protection did not support his permanent employment with SSI. 2. In an email dated 21 January 2015 to the solicitors of BQE (annexed to the affidavit), the Manager, People and Culture advised that it would be necessary to speak to the managers of SSI as well as the Department of Immigration and Border Protection about the status of BQE's employment if his current application is unsuccessful. Any other matters that the Children's Guardian considers necessary In his written submissions the solicitor for the respondent notes that the applicant states that he has a fairly amicable relationship with the mothers of his children but that the Tribunal was not provide with evidence or information from those people in support of the application. Conclusions in respect of the matters listed in subsections 15(4) and 30(1) of the Child Protection (Working with Children) Act 1. This is a finely balanced matter, the more so because I am satisfied that the allegations have not been proved against BQE and when one of the three allegations was tested in court, BQE was ultimately found not guilty. This significantly reduces the weight that can be placed on these allegations as an indication of the future risk, if any, posed by BQE to a child. I also note that there is a gap of some 14 years between the 1997 incident and those of 2011. However the 2011 matters were relatively recent and therefore assume some significance in assessing the risk of repeated similar behaviour. 2. Whilst it is it significant that BQE has not been found guilty of the alleged incidents, that is not determinative of the matter. The Child Protection (Working with Children) Act 2012 does not require that an applicant has been found guilty of an offence before an assessment requirement is triggered. Schedule 1, clause 1(1)(b) of that Act states that a person is subject to an assessment requirement where proceedings have been commenced against a person for an offence specified in clause 1 of schedule 2. Additionally the wording of subsections 15(4) and 30(1) of the Act does not require that an offence has been shown to have occurred, only that there be "matters" that occurred. I am satisfied that the 1997 incident and the February 2011 incidents occurred and involved behaviour by BQE that caused distress to those who witnessed the behaviour. Due to issues of identification I am not able to reach a final conclusion regarding whether or not BQE was involved in the April 2011 incident. 3. The assessment requirement was triggered by the commencement of proceedings in respect of the charges of committing an act of indecency, and other matters have been considered by the Children's Guardian as result of additional information provided. 4. I am satisfied that whilst BQE was not convicted of an offence in relation to the incidents occurring in 1997 and 2011, his behaviour, whilst not of the worst kind, is such that it could cause psychological harm to a child and would pose a risk to the safety of children if repeated. 5. BQE admits to scratching at or near his pubic area in the 1997 and February 2011 incident. His explanation is that he was scratching an itch caused by a side effect of medication and that he is now more cautious about where and when he responds to the itch. 6. BQE gave evidence that the itch was caused by medication. However he did not provide any independent evidence of that situation. I am of the view that since this is the explanation offered by BQE for the two matters, he might be expected to produce further evidence regarding the itch. However, despite tendering into evidence a character reference from his doctor, with whom he says he has discussed the itch and the February 2011 matter, he has not provided any medical evidence about this matter, and his doctor does not refer to the cause of the itch in his reference, despite referring to the itch and the February 2011 incident. 7. In addition to evidence about the cause of the itch I would have benefitted from medical evidence regarding the intensity of discomfort caused by the itch and the extent to which a person might be expected to resist an urge to scratch such an itch. 8. In the absence of medical evidence about the likely strength of the urge to scratch an itch caused as a side effect of BQE's medication, I am of the view that even if I accept that BQE touched his pubic area as the result of an itch caused by medication, to do so in a public place, with his fly undone, wearing no underpants and with his fingers inserted through his fly, in the close presence of two girls, shows a disregard for the possible effects of his actions on those girls. 9. BQE has given evidence that his behaviours resulted from the side effects of medication. However he has not provided any independent evidence of the frequency or intensity of those side effects. In his affidavit he says that he is now more careful about where and when he reacts to the itch caused by the medication. In the absence of further evidence I conclude that he is able, if he wishes, to resist the urge to scratch his pubic area, but did not do so in the incidents in which he was involved in 1997 and February 2011. 10. Taking these matters into account it is my view that the failure of BQE to provide independent evidence about the itch, by which he explains the 1997 and February 2011 incidents, reduces the extent to which I can accept that his touching of his pubic area in a public place including in the presence of young females, is explained as a side effect of his medication. 11. Whilst BQE has said that he is now more careful about where and when he scratches his itch, he has not provided me with any evidence that he understands the effect of his actions on the girls. Such insight where demonstrated might be expected to increase the likelihood that repeat incidences would be avoided. 12. BQE has provided a number of references that attest to his many positive characteristics. However those references generally refer to his behaviour and actions when with persons known to him or related to him, or his actions regarding his family members and friends. In contrast to those circumstances, the incidents outlined above occurred when BQE was alone amongst female strangers. 13. I have been provided with a reference from a co-worker who attests to BQE's empathy and concern for clients and a reference and notification from Managers of People and Culture at his workplace that indicate that BQE is a valued member of staff. However the evidence he has provided about his work history indicates that he has worked with male clients and to adults. I have not been provided with any evidence that he has worked with females under the age of 18 years. 14. I have formed the view that the work references, whilst of general contextual assistance, are of limited value in assisting me to reach a conclusion that BQE does not pose a risk to young females in a workplace environment. 15. Taking all of these matters into consideration I am satisfied that in respect of the 1997 and February 2011 incidents, BQE's actions are such that they could cause psychological harm and adversely affect the welfare of a child and pose a risk to the safety of a child. I am satisfied that in behaving as he did at the time of the incidents and in his subsequent failure to acknowledge possible harm to those who witnessed his behaviour, BQE has demonstrated that the risk of such harm from similar acts in the future is a real and appreciable risk that is greater than that posed by any adult in respect of a child. 16. Having reached the decisions outlined above I am satisfied that: 1. The decision of the Children's Guardian dated 2 October 2014 to refuse to grant the applicant a Working with Children check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed on 22 December 2014 is otherwise refused and dismissed. 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: 05 May 2015