Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BPG v Children's Guardian [2015] NSWCATAD 157 Hearing dates: 22 June 2015 Decision date: 31 July 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer Senior Member Decision: (1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 for the offence of Carnal Knowledge for which he was convicted in 1978. (2) Pursuant to section 28 (6) of the Child protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a Working with Children Check Clearance. Catchwords: CHILD PROTECTION – Working with children – whether applicant poses risk - real and appreciable risk – safety of children Legislation Cited: Child Protection (Working With Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Criminal Records Act 1991 Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 M v M [1988] HCA 68: 166 (CLR) 69 Category: Principal judgment Parties: BPG (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartsein (Respondent) Solicitors: BPG (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410633 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 the name of the applicant and any other person from which the name of the applicant could be identified is not to be published broadcast or otherwise disclosed. Reasons for decision 1. The Applicant in these proceedings is referred to as "BPG". BPG is the applicant's pseudonym used in these proceedings. 2. On 26 February 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. Summary 1. These proceedings arise because on 19 September 2014, the Children's Guardian issued a Notice of Disqualification for a Working with Children Check clearance against BPG. BPG was convicted of the offence of Carnal Knowledge in 1978 and as a result is a disqualified person under the provisions of the Act. The circumstances of that offence and conviction, and having regard to BPG's history in the intervening years (including all the matters set out for consideration under the Act), for the reasons set out below, cause the Tribunal to form the view that BPG is not to be treated as a disqualified person for the purposes of the Act. Applicable Legislation 1. 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. On 11 November 2014 the applicant BPG applied to the Tribunal for an order declaring that he should not be treated as a disqualified person for the purposes of section 18 (1) of the Act. The section provides: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. 1. Schedule 2 of the Act specifies a list of offences which enliven the 'disqualified persons' reference from section 18 (1) of the Act. Relevant to these proceedings, the applicant was convicted of the offence of: carnal knowledge. 2. The offence of carnal knowledge was an offence under section 71 of the Crimes Act 1900 and that offence is listed at Clause (1) (i) of Schedule 2 of the Act. The applicant was an adult at the time that the offence was committed and as such for the purposes of the Act, he is a disqualified person. 3. Under section 18 (1) of the Act, the Children's Guardian is prohibited from granting a clearance to a disqualified person. 4. In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 at [30], His Honour Justice Beech-Jones said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. Later in that decision, having cited the remarks of the High Court in M v M (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ), His Honour said, (subject to two matters and the caveat about the applicability of Briginshaw), at [33], the reasoning in M v M was applicable to fact finding and the process of risk assessment that the Tribunal undertakes. The two matters referred to by His Honour were (a) that the Act was not concerned with "unacceptable risks" but "real and appreciable risks", and (b) in cases such as BKE, a disqualified person under subs 18(1) of the Act, the onus was on the applicant to rebut the presumption that he did pose a real and appreciable risk to the safety of children. 5. The latter matter (b) does apply in this application, as the applicant is a disqualified person and there is a statutory presumption that he poses a risk to the safety of children. 6. The word "risk" in the Act is construed to mean a risk that is "real and appreciable". In BKE Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word "risk" in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW): What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater that the risk of any adult preying on children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of children': at [42] 1. Section 30 of the Act provides for the manner in which the Tribunal must determine the application, and provides for the following matters to be considered: 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) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal. (3) (Repealed) 1. The disqualifying offence arises from a conviction which occurred on 19 June 1978 in the Court of Petty Sessions and the applicant was given a deferred sentence upon his entering into a bond to be of good behaviour for a period of two years. The Hearing 1. The hearing of this matter was conducted at Wagga Wagga on 22 June 2015. The applicant gave evidence at the hearing, and a number of items were tendered by both the applicant and the respondent. I note that the Children's Guardian representative indicted that they wished to examine the applicant in respect of some of the material before the Tribunal. At the commencement of the hearing the Children's Guardian reserved it's position in respect of the application before the Tribunal. At the conclusion of the hearing the respondent submitted that the consideration of the application was a matter for the Tribunal and the respondent took no formal position in respect of the application. Respondent's Evidence 1. The respondent filed a large amount of material which was tendered at the hearing. Exhibit R 1 comprised documents filed on 2 March 2015 and comprised: * Notice of disqualification dated 19 September 2014. * Crim Trac (results) report of 10 September 2014. * Section 31 response from Broken Hill Local Court. * Section 31 response from Wagga Wagga Local Court. * Section 31 response from NSW Police. 1. Further material was filed by the respondent on 13 April 2015. Exhibit R 2 comprised a section 31 response from the Wagga Wagga Local Area Command. 2. On 20 April 2015 further material was filed by the respondent. Exhibit R 3 comprised section 31 material from NSW Family and Community Services dated 14 April 2015. 3. On 5 June 2015 further material was filed by the respondent. Exhibit R 4 comprised section 31 material in respect of a 1980 conviction. 4. The respondent made submissions at the hearing and in addition provided written submissions dated 19 June 2015. Applicant's Evidence. 1. The applicant relied upon his application dated 1 October 2014 filed 11 November 2014. The application was filed outside the statutory time period, however on 26 February 2015 the Tribunal made an order pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 extending the time to file the application until 11 November 2014. Attached to the application was the Notice of Disqualification dated 19 September 2014, and three character references from members of the public acquainted with the applicant. 2. On 11 May 2015 the applicant filed a bundle of material with the Tribunal. This Bundle (Exhibit A 1) comprises: 9 references / correspondence of the character and repute of the applicant (2 of those co-authored), and two written signed statements of the applicant. All of this material was received without objection, and the authors were not required for examination, although some were present at the hearing. All of this material was tendered without objection. 3. The applicant adopted the matters put forth in his written statements to the Tribunal. His evidence was that he wanted a clearance so that he could spend time with his grandchildren. He gave evidence that his 16 year old granddaughter had been living with the applicant and his wife but had moved out, but was hoping to move back to her grandparent's home sometime in the future. The applicant's main motivation for the clearance is so that he can have his granddaughter live with him. In addition his evidence was that he has a number of grandchildren aged from 3 years of age to 18 years of age, and he would prefer for practical reasons that may arise, to have no impediments to any potential extended family arrangements. 4. The applicant gave evidence about his home and family life. He enjoys spending time with his grandchildren and would like to be able to attend their sporting events with them on a regular basis. 5. He gave evidence that in the past he had been receiving a carer's pension / allowance in respect of the granddaughter. 6. The applicant gave evidence in a frank and candid manner in respect of his disqualifying offence. His evidence was that he 'did the wrong thing in 1978'. He also gave evidence that he has a good job, and has been employed with the same employer for over 25 years. His employer provided a letter in support of the applicant, by way of a work / character reference. This did not address the matters before the Tribunal, but did verify aspects of the applicant's occupational standing. As outlined above, the material was tendered without objection and witnesses were not required for examination or cross examination, other than the applicant. 7. In cross examination the applicant was asked about some of the criminal matters in the section 31 response material. In particular there were two incidents in the material involving police dealings in what might be termed public order contexts. 8. One matter related to an incident in 2009 whereby police were called to an altercation following a wedding reception. The relevant matters were that the applicant was alleged to have held an adult person in a headlock, by way of restraint. Following police intervention the situation escalated and whilst a number of other persons may have been considered protagonists, it appears that the applicant was the sole person arrested. The material before the Tribunal indicated that this was in part because of the difficulty in identifying the other participants due to darkness and their running away from the area, and noted that the applicant was neither the main or sole protagonist. The police material records the applicant's version of events was that he was only trying to settle the situation down but agreed that his method was inappropriate. He pleaded guilty and was fined. The applicant was unable to add any significant material in his evidence at the hearing, and indicated that his memory of the matter was not clear. 9. The applicant was also asked about a further affray type incident which allegedly occurred in January and March 2003, which involved a neighbour dispute and the applicant being a person of interest and allegedly contributing to intimidatory behaviour. 10. The applicant denied all knowledge of these alleged incidents in his evidence at hearing, and in the absence of any further evidence to rebut those assertions, no further questions were put to the applicant about those (2003) incidents. 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. 1. Disqualifying offence: The offence of carnal knowledge was an offence under section 71 of the Crimes Act 1900 and that offence is listed at Clause (1) (i) of Schedule 2 of the Act. The applicant was an adult at the time that the offence was committed and as such for the purposes of the Act, he is a disqualified person. The victim was 15 years of age and the applicant was 19 years of age. On a plea of guilty the applicant was convicted but sentence was deferred with the applicant placed on a recognisance under the then section 558 of the Crimes Act 1900 in the sum of $200.00 to be of good behaviour for 2 years. 2. An offence under section 71 is a serious offence however I note that at the time that the section was repealed, the maximum available penalty was a sentence of 2 years imprisonment. 3. Pattern Disqualifying Offences: There is no pattern of disqualifying offences, mainly due to the fact that the applicant has six offences in total and other than the disqualifying offence, the other offences are not listed in either Schedule 1 or Schedule 2 of the Act. (b) The period of time since those offences or matters occurred and the conduct of the person since they occurred. 1. The disqualifying offence occurred in 1978, which is 37 years ago. Since that time the applicant has been convicted of four offences in three instances. Only one offence in the intervening period involved what might be referred to as an offence against the person / or involving violence. That matter concerns the affray offence referred to in paragraphs 27 and 28 (above). The other offences relate to a low range PCA offence in 1998, and a malicious injury and serious affront convictions in 1980. Despite the language of these 1980 offences, the malicious injury offence relates to damage to property, and the other offence relates to language. (c ) The age of the person at the time the offences or matters occurred. 1. The applicant was 19 years of age at the time of the disqualifying offence. In respect of the other offences referred to above the applicant was aged 23, 41 and 52. (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 was only one victim. The victim in the carnal knowledge matter was 15 years and 4 months of age at the time of the offence. The victim was a child and under the age to which she could lawfully consent to sexual intercourse. Other that the factual matters relating to being underage, there are no other specific matters relating to the victims vulnerability, but the victim was deemed vulnerable due to the factual circumstances of the victim making the actions of the applicant an offence. (e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person. 1. There was a four year age difference between the victim and the applicant. Both were teenagers, the applicant being a young adult and the victim being an adolescent. The applicant and the victim were in a relationship of boyfriend and girlfriend. There is evidence that it was a close intimate personal relationship notwithstanding such a relationship involving behaviour constituting the disqualifying offence. (f) Whether the person knew, or could have reasonably known, that the victim was a child. 1. The evidence indicates that the applicant knew that the victim was a child under the age of 18 years. He knew what year she was in at High School. (g) The person's present age. 1. The applicant is now 58 years of age. Bearing in mind the antecedents of the applicant, it seems unlikely that his age has any bearing on his propensity to re-offend. In addition to the statistical evidence that indicates the likelihood of an individual offending decreases with age, the circumstances of the disqualifying offence indicate that a repeat type offence would only be likely in the period of late adolescence / young adulthood. Such circumstances cannot arise again for the applicant. (h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred. 1. The disqualifying offence is the most serious offence concerning the applicant. That offence was however dealt with summarily and resulted in the applicant being placed on a bond. As stated above the maximum available penalty as provided by the legislature was two years imprisonment. 2. The criminal record of the applicant (as outlined at paragraph 33 above), and noting an additional receiving (of goods) offence when the applicant was a juvenile, in my view constitute a significant rather than serious criminal record. I base this view on both the nature and circumstances of the charges, and the nature of the sentence imposed by the Court when viewing all the facts in an evidentiary context including any aggravating factors and mitigating factors not before this Tribunal. 3. In accordance with my observations about the applicant's record being significant rather than serious. In my view the applicant's conduct since the disqualifying offence has not shown any serious disregard for the law. I note in particular the evidence tendered from the applicant's employer. The applicant's conduct generally has been such that from time to time either by actions or association, he has come to the attention of the authorities. However, in my view, and having regard to the objects of the Act, nothing of significance arises from this. (i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. 1. There was no expert evidence tendered by the applicant. However, in respect of the disqualifying offence, for reasons outlined above, there is no likelihood of such an offence reoccurring due to the circumstances of that type of offence, and the current circumstances of the applicant. In respect of general offending it would appear that there is a slight likelihood of reoffending if alcohol is involved, but such an observation is based on the nature, timing and circumstances of the applicant's total criminal record. On the evidence before the Tribunal it seems unlikely that any offences involving violence directed towards children would arise in the future. (j) Any information given by the applicant in, or in relation to, the application. 1. The applicant provided significant written and oral material in his application to the Tribunal. He gave evidence about the circumstances and nature of his relationship with the victim in the disqualifying offence. The victim was his girlfriend. The applicant and the victim became intimate and at some stage sexually active. The sexual activity resulted in a pregnancy which led to the reporting of the relationship to the authorities and the applicant being charged with carnal knowledge. In the interim permission has been sought (and granted) for the victim and the applicant to marry. The applicant provided financial support for the victim following the pregnancy. A child was born and later other children were born from the marriage. The applicant and the victim continue to be married some 37 years later and have a number of grandchildren. 2. Letters of comfort were provided by friends, neighbours, his employer and members of the family in support of the applicant. His employer states that the applicant is an 'outstanding employee and a great asset'. The applicant is held in the 'utmost regard' by the victim (who is his spouse), and his adult children in respect of his care and regard for the grandchildren. Neighbours refer to the applicant as an 'honest and reliable man'. They also refer to the applicant and his spouse as 'caring parents and very family orientated.' 'They have lived quietly creating a stable environment for their children and grandchildren'. (k) Any other matters that the Children's Guardian considers necessary. 1. The respondent in written submissions noted that the applicant had not filed a risk assessment report of a psychologist. The respondent also submitted that the applicant's written material did not deal with the 2003 or 2009 mattes involving police. However the applicant was questioned by the respondent's Counsel over the 2009 incident and gave clear and consistent answers to those questions. No police or other witnesses were called to give evidence about those matters. In respect of the 2003 'incident' the applicant denied any knowledge of the matter. The respondent was content with that answer. I note that the various references from neighbours appear somewhat at odds with the matters referred to in the 2003 material obtained by the respondent, when assessing the applicant's character and likelihood of behaving in an aggressive and intimidatory manner. 2. The respondent in submissions reminded the Tribunal that an enabling order cannot be made subject to conditions. Consideration 1. As noted above the jurisdiction of the Tribunal is protective and not punitive in nature. The issue for determination is whether, on the material before the Tribunal, I can be satisfied as to whether the applicant poses a real and appreciable risk to the safety of children. This task is performed by considering the factors outlined at section 30 (1) of the Act, (paragraphs 30 – 46 above), in consideration of the objects of the Act, and the matters in section 4 of the Act going to the paramount consideration of the Act. Section 4 states: '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.' 2. I note again that at the conclusion of the hearing the Children's Guardian arrived at a position on the application, from earlier having reserved their position. That entailed in effect taking a neutral position in respect of the application, submitting that as it was a section 28 matter, the consideration was a matter for the Tribunal. 3. In my view the disqualifying offence is serious, and this is reinforced by the inclusion of that offence in the schedule. However I note that the respondent submitted that the circumstances of that offence are not at the high end of serious offending. I agree with that submission. There was evidence before the Tribunal as to the circumstances of the offence. The applicant financially and emotionally supported the victim with the consent of her family. After they were married, they have lived their lives in a usual and unremarkable manner, participating in child rearing and family life with no matters of any significant concern coming to attention. The applicant acknowledged the error by committing the behaviour that constituted the offence. I also note that there was some material obtained under summons, but was not sought to be tendered by the Respondent. 4. There was no material to effectively rebut anything that the applicant said in his evidence and his application. 5. Having regard to the circumstances of the disqualifying offence, the passage of time, the material before the Tribunal and having considered all of the matters outlined at section 30 (1) of the Act, in my view the applicant does not pose a real and appreciable risk to the safety of children. It therefore follows that I should make the following orders. Orders 1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 for the offence of Carnal Knowledge for which he was convicted in 1978. 2. Pursuant to section 28 (6) of the Child protection (Working with Children) Act 2012, the Children's Guardian 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: 31 July 2015