Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CDT v Children's Guardian [2016] NSWCATAD 132 Hearing dates: 10 December 2015 & 14 March 2016 Date of orders: 14 March 2016 Decision date: 14 March 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Mullane ADCJ, Principal Member N Hiffernan, General Member Decision: The Tribunal declares that the applicant, CDT, is not to be treated as a "disqualified person" for purposes of the Child Protection (Working with Children) Act 2012 in respect to the offence of assault with act of indecency of which he was convicted by Sydney Quarter Sessions on 26 August 1960. The Children's Guardian must grant CDT a Working with Children Check Clearance. Catchwords: Working with Children – check clearance Disqualifying conviction Application for enabling order Legislation Cited: Child Protection (Working with Children) Act 2012 Adoption Act 2000 Crimes Act 1900 Child Protection (Prohibited Employment) Act 1998 Cases Cited: Commissioner for Children and Young People v V [2002] NSW SC 949 Texts Cited: Nil Category: Principal judgment Parties: CDT (Applicant) Children's Guardian (Respondent) Representation: Solicitors: CDT (Applicant in person) Crown Solicitors Office (Respondent) File Number(s): 1510542 Publication restriction: Order made 15 September 2015 by the Tribunal that:Pursuant to Section 64(1)(a) of the Civil & Administrative Tribunal Act, 2013, the name of the applicant and the name of any child referred to in the material and the name of any person that would identify the name of the applicant or the said child is not to be published or broadcasted without leave of the Tribunal. REASONS FOR DECISION Introduction 1. The applicant was born on 14 September 1941. 2. On 26 August 1960 in the Sydney Quarter Sessions he was convicted of the offence under Section 76 of the Crimes Act 1900 of "assault female with act of indecency" which had been committed in April 1960 when the applicant was 18 years of age. 3. Since then, the applicant has had various employments, but primarily has worked as a bus and coach driver until his retirement and disposal of his coach business in about 2009. Subsequently, he did casual bus driving work including driving school buses as a casual employee for other bus operators. 4. In June 2015 the applicant applied to the Children's Guardian for a Working with Children check clearance under the Child Protection (Working with Children) Act 2012 ("The Act"). 5. On 19 August 2015 the Children's Guardian notified the applicant that his application was refused as he was disqualified from having a clearance because of his conviction on 26 August 1960 of "assault female with act of indecency". As a result the Applicant ceased his casual work as a bus and coach driver. 6. On 9 September 2015 the applicant applied to the Tribunal for enabling orders pursuant to Section 25 of the Act to facilitate the Children's Guardian providing him with a Working with Children check clearance. 7. The applicant was unrepresented in the proceedings. The hearing commenced on 10 December 2015. The applicant was cross examined and it emerged that he had not provided various information which the Children's Guardian had requested pursuant to the Act. It also had emerged that he did not have any evidence by a psychologist or other expert in relation to the issue of what risk, if any, he poses to children. Eventually, the applicant requested an adjournment, and that adjournment was granted. 8. Orders were made for the applicant to provide the Children's Guardian by 16 December 2015 answers to questions in the letter of the Children's Guardian of 11 September 2015, and for any further evidence to be filed by 20 February 2016. 9. The proceedings were adjourned part heard to Thursday 11 February 2016 at 11:00am for further directions. On that occasion the proceedings were listed for the hearing to resume on 14 March 2016. The hearing was completed that day and the orders made.. The Evidence 1. The evidence before the Tribunal comprised: 1. Application filed 9 September 2015 for a stay for interim order; 2. General application for an enabling order filed 9 September 2015; 3. Letter of the Children's Guardian of 19 August 2015 notifying the applicant of the refusal to grant a clearance; 4. Letter of 9 September 2015 by the applicant to the Children's Guardian; 5. Bundle of documents indexed and tabulated filed by the respondent on 27 October 2015; 6. Copy of interim decision made by the Tribunal on 16 September 2015 refusing a stay; 7. Statement by the applicant dated 29 October 2015; 8. Statement by [Mr B] dated 15 September 2015; 9. Statement of [Mr P] dated 16 September 2015; 10. Statement of [Mr C] dated 16 September 2015; 11. Section 31 Response from 2 Bus /coach companies; 12. Copy of letter dated 18 December 2015 from Crown Solicitor to applicant and reply; 13. Bundle of further 6 documents (tabulated and indexed) filed for the respondent; 14. Exhibit R1 – copies of letters of 11 September 2015 and 21 October 2015 from the respondent to the Applicant; 15. Oral evidence of the applicant of 10 December 2015; and 16. Oral evidence of the applicant of 14 March 2016 Relevant Legislation 1. On 28 September 2015 the Child Protection Legislation Amendment Act 2015 ("the Amendment Act"), which in Schedule 2 set out amendments to the Act, was assented to. It provided that it commenced on subsequent dates by proclamation. The first of those proclamation dates was 2 November 2015. The relevant amendments to the Act in the Amendment Act do not apply to this application because they commenced after the application was made on 9 September 2015). Also the Amendment Act specifically provided that amendments to sections 16(2), 26 and 30 and Schedule 2 of the Act would not apply to enabling applications filed before the commencement of those amendments (see clauses 16,17,19 and 22 of the Amendment Act). 2. Accordingly the relevant parts of the Act applied as if before the Amendment Act amendments and the following discussion proceeds on that basis. 3. Section 4 of the Act provides: "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. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 2. Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 3. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 4. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act 2000. It provides in s11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 5. Section 12 provides that there are two classes of Working with Children Check Clearances which are: a) Volunteer – authorising workers to engage in unpaid child-related work; and b) Non-volunteer – authorising workers to engage in paid and unpaid child-related work. 1. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 2. Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "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". Section 4 defines "conviction" as including a finding that the charge for an offence is proved, even though there is no conviction. 3. The Act defines an "adult" as "a person who is 18 years of age or older". The Applicant was an adult at the time of the offence. 4. In para 1(1)(i) of Schedule 2 to the Act, offences under s76 of the Crimes Act 1900, are included in the specified offences that are disqualifying offences. 5. Accordingly, subsection 18(1) of the Act prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the applicant because of the offence in 1983. 6. Section 28 of the Act provides: 1. The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. 2. The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. 3. A disqualified person may make an application under this section only if: 1. the person has been refused a working with children check clearance, or 2. the person's clearance has been cancelled, because the person is a disqualified person. 1. The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. 2. An applicant must fully disclose to the Tribunal any matters relevant to the application. 3. If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance. 4. In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. 5. An enabling order may not be made subject to conditions. 6. An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 1. Section 30 of the Act applies and provides: 1. The Tribunal must consider the following in determining an application under this Part: 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 Commission considers necessary. 1. On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. 1. Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part. Presumption 1. Sub section 28(7) applies a presumption in these proceedings that unless the applicant proves to the contrary, the Applicant/disqualified person poses a risk to the safety of children. Enabling orders cannot be subject to conditions 1. It should be noted that s 28(8) prohibits making of an Enabling Order that is subject to conditions. Disclosure 1. Subsection 28(5) requires the applicant to make a full disclosure to the Tribunal of any matters relevant to the application. Seriousness of the Offence with respect to which the person is a disqualified person 1. In the statement the applicant gave to police on 24 April 1960, the day after the offence, he said that he and 3 youths (all 4 were from the western suburbs of Sydney) went to the city in a car belonging to one of them. At about 9:00pm they went to a café and had coffee and hamburgers. They spoke with the waitress who was a 16 year old and later in the night offered her a lift to her home at Newtown when her shift finished. She at first declined but later agreed. They collected her at about 1.15am at the end of her shift. 2. They drove her past Newtown to Lansdowne. He said "we went out there because we wanted to knock her off". He said that he and one of the youths "went for a walk down the road for a few minutes. When we can back the girl who was still in the car was crying". He said "one of them got out of the car and went with the girl for a walk." Subsequently when they returned, he talked to the girl for a while and he and one of the youths lay on a blanket on the ground. He said "I asked her if she was going to be in it. She said that she wouldn't. I told her that if she gave it to me no one else would touch her. She started crying. She undid her (indecipherable) and she pulled her pants down to her knees and I took them off from the knees down. I put my hand on her Fanny and put my finger in. She started to scream and I tried to stop her from screaming by putting my hand over her mouth. She stopped screaming and started to cry. I had my prick out and I took hold of her hand and put it onto my prick and play (sic) with it. Then the boys came and told me to piss off". 3. It appears, on the evidence that the applicant pleaded guilty to the charge. The decision of the court was that he was required to enter into a bond to be of good behaviour for 5 years and to place himself under the supervision and guidance of the Probation Service. Breach of the bond would require him to appear for sentence. 4. Numerous factors contribute to the seriousness of the offence: 1. it was done in the company of three (3) other males; 2. it involved the use of force; 3. It occurred when the Applicant had been sentenced by the Children's Court in October 1959 to 6 months detention for carnal knowledge with a 13 year old girl when he was 17 and on appeal as to severity he was instead required to enter into a bond to be of good behaviour for 2 years and be supervised by the Probation and Parole Service; 4. the offence was a breach of that bond: 5. they obtained the victim's agreement to go with them by falsely telling her they would take her home, but their intention was to have sexual intercourse with her; 6. the males were older than the victim; 7. they took her in the car some considerable distance from her home; 8. she was outnumbered by the 4 males who were seeking to have their way with her; 9. the applicant was 18 years of age and the victim was 16 years of age; 10. the offence occurred at about 2.00 am and there was less chance of another person coming to the victim's assistance; and 11. the applicant knew that the victim would not consent to sexual activity with him or with any of his companions. The period of time since those events or matters occurred and the conduct of the person since they occurred 1. At the time the hearing concluded it was more than 56 years since the offence occurred. Court records, police records, his criminal record, records of employers, and records of the Department of Community Services and the Department of Community Services reveal no charge or conviction in respect of the applicant in those 56 years. 2. The applicant alleges that as a teenager "I found myself mixed up with the wrong group of boys. I was very easily lead by the older boys at that time and got myself in a bit of trouble, which I regret very much. At the age of 19 years I disassociated from those boys and settled down and found a girlfriend. Later we were married and had 2 children. This marriage only lasted 10 years. After our divorce, I remarried and have remained with my present wife for 40 years". 3. The applicant has 5 children, 15 grandchildren and 4 great grandchildren. He describes himself as "a family man". 4. The applicant has been driving buses and coaches all over Australia and often carrying children. He owned his own bus company for more than 20 years. 5. There are very positive references from former employers in the bus and coach industry. Those include a reference from [Mr P] whose company has employed him on a casual basis since 2009, and [Mr B], who has known him for more than 25 years, has worked for the applicant as a subcontractor driver and has since 2009 employed him as a subcontractor driver. 6. It also includes a reference by [Mr N] who has known the applicant for about 35 years and who has often worked 2 coaches with the applicant for seniors groups and school charters, and has observed the applicant work with such groups. 7. Those witnesses report very positive feedback from customers in relation to the services provided by the applicant, his integrity, and professionalism. [Mr P] testifies that the applicant has "provided training and mentoring to other drivers on how to conduct themselves whilst working with children". He has personally supervised the applicant in his role "as a coach captain on school sports, day excursions and overnight extended touring with both adults and children". He says that he has never had any reason to be concerned about the applicant's conduct in any way, especially whilst working with children. He has received no complaint from any client or member of the public about the applicant's conduct towards adults or children. 8. [Mr N] the owner of 3 coach companies, says that he has at times had difficulties satisfying requests by clients, including schools and senior groups, that requested the applicant as their driver. He said he received many expressions of disappointment from clients when they were informed that the applicant had retired. He says that he has no problem recommending the applicant to work with any groups and considers that the applicant has "gentle and understanding ways" and he is "one in a million". The age of the person at the time of the offence 1. The applicant was 18 years of age The age of each victim at the time the offence occurred, and any matters relating to the vulnerability of the victim 1. The victim was 16 years of age. Matters relating to her vulnerability have been described in the discussion of the seriousness of the offence. The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The difference was approximately 2 years. The applicant first met the victim that night. When interviewed on the morning after the offence, he knew her Christian name but not her surname. 2. When he first proposed to her on the night of 21 April 1960 that they would give her a lift home, she rejected the proposal and said that she would get a taxi. In further discussions she agreed to an arrangement for them to meet the following night and "go to the pictures" and later agreed to the offer of a lift home. Whether the person knew or could reasonably have known that the victim was a child 1. The applicant could reasonably have known that the victim was a child. She was 16 years of age. She did not volunteer her age and he did not ask her. The persons present age 1. At the time of the hearing by the Tribunal the applicant was 74 years of age. The seriousness of the person's total criminal record and the conduct of the person since the offence occurred 1. The only other offences of the applicant revealed by the evidence are the following offences as a child: 1. 31 January 1958 – stealing; 2. 10 April 1959 – receiving; 3. 14 September 1959 – receiving; 4. 30 October 1959 – carnal knowledge 1. At the time of the offence in 1958, the applicant was 17 years of age. At the time of the offences in 1959 he was 18 years of age. 2. The disqualifying offence is the only offence since he was 17 years of age for which the applicant has been charged or which was the subject of a complaint to the police. 3. The applicant has had no charges or convictions in the more than 56 years since the disqualifying offence. That leads to the conclusion that his criminal record is not serious. 4. The evidence establishes that the conduct of the applicant in the 56 years since the disqualifying offence has been without flaw. Likelihood of any repetition by the person of the offences or conduct, and the impact on children of any such repetition 1. The impact of an indecent assault on a child is likely to be very damaging to the child and may include long term emotional and psychological damage. 2. A literal interpretation of ss.28(7), requiring the Applicant to prove that he does not pose a risk to the safety of children, is not what is intended by the legislature because logically it is impossible to prove that any adult does not pose some risk to the safety of children. 3. In Commission for Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, 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 'risk' with the words that follow, namely, 'to the safety of children'. 1. The evidence is that the applicant has been working with children for 40 years. He is a family man and has 5 grandchildren, 14 grandchildren and 4 great grandchildren. He has been involved with those children. There is no evidence of any inappropriate behaviour towards any child in the period of more than 56 years since the disqualifying offence. The records of the Department of Community Services revealed no allegation against him and no record involving any of his children or grandchildren in that period. 2. The Applicant's conduct since April 1960 is devoid of any further offence against a child or adult, or any abuse of a child or adult or any complaint about his conduct. That is in the context that he has often worked with children. There is no evidence of any offence at all by the Applicant in more than 56 years of adulthood. That accords with the character evidence. 3. This evidence weighs against the finding that the applicant now poses a risk to the safety of any child. 4. The applicant has lived at the same address for 11 years. He worked in his own coach company for 30 years before his retirement in 2009. He has provided his driver's licence details to the respondent and also details of his children, grandchildren and great grandchildren. 5. The Department's enquiries have revealed no adverse matters in relation to the care and / or involvement with those children, grandchildren and great grandchildren. Any information given by the applicant in or in relation to the application 1. This information has already been described above. Any other matters the Children's Guardian considers necessary 1. In its submission the Children's Guardian asked that the references by [Mr P] and [Mr N] should not be given much weight because "it is clear that [Mr P] is unaware of the applicant's prior offending. At best, it is ambiguous as to whether [Mr N] is informed of those offences. As a consequence, neither [Mr P] nor [Mr N] can be taken to be adequately qualified to provide an objective assessment of the applicant's character in the context of the material fact and issues in this case:. 2. The Tribunal has taken that evidence of [Mr P] and [Mr N] into account, subject to the qualification, where relevant, that they were not aware of the applicant's offences 56 years ago. 3. The evidence of those 2 people is not evidence purporting to be an assessment of the risk the applicant poses to children, if any. Nor does it purport to be an opinion about his future conduct. It is evidence of their observations and experiences of the past conduct of the applicant. 4. It is noted that the applicant has not provided evidence by any person with professional expertise assessing the likelihood of any further sexual offence by the applicant on a child or an adult. He said that he could not afford the fees for such an expert. 5. The respondent submitted that the omission to file such evidence is significant because "the available evidence raises real doubt as to the extent of the applicant's remorse towards, and his insight into, his prior offending, and therefore the weight that the Tribunal should attach to that evidence". However, the Tribunal's role is to take into account all the relevant evidence. There is no requirement that there be such expert opinion. 6. His then probation officer said in his report of 25 August 1960 to the Court: CDT realises the seriousness of his action, and seems sorry. His parents feel that CDT's participation in the offence under similar circumstances to the one that resulted in his earlier Court appearance (when he was in the company of a young man 2 years older) is beyond their understanding. Undoubtedly he is easily led, and finds it hard to assess the result of his actions beforehand. He is in need of recognition and approval, because of his physical and intellectual limitations, and it is possible that he gets carried away in the company of others who accord him recognition. He has been warned repeatedly against the dangers of further sexual misconduct. 1. In his statement of 29 October 2015, the applicant expressed regret "very much" in respect to the trouble he involved himself in before he was 19 years of age. He says "I admit that what I did was wrong and I apologise for what I did in 1959, which I cannot recall". 2. The oral submissions made on 14 March 2016, the Children's Guardian submitted that in determining what risk the applicant poses to children, the Tribunal should place weight on the intellectual limitations of the applicant. There was no expert evidence as to what effect, if any, any such limitations might have in relation to the risk of further offences. 3. In a probation report prepared by a probation office dated 25 August 1960, there is reference to the applicant being assessed as a Child Guidance Clinic and found to be of "low IQ (79)" and "immature, evasive and defensive". He attended school until 15 years of age when he was in second year. He had repeated 5th and 6th classes at primary school. He was 15 years of age in second year. He subsequently worked as a junior labourer for about 11 months, left for health reasons and then worked for a land clearing project for 4 months and worked at the state abattoirs and various periods of other employment. He also worked as a linoleum layer and as a labourer for the water board. He then worked in a factory. 4. In a report prepared by psychiatrist and dated 26 October 1959, the reporter stated "psychological test placed his IQ at 79, which is in the dull normal category, but his potential is probably higher than this". 5. The report writer said in that report "he has held 3 or 4 jobs and is present is working at the abattoirs where he has been for the last 4 months. He plays cricket, football and attends the pictures twice a week and watches TV a great deal. He is a member of the Police Boys Club". 6. The Tribunal accepts that the applicant's IQ may be less than average, but it appears from the evidence that it may be higher than 79. 7. More importantly, the evidence falls short of demonstrating any intellectual limitation of the applicant has the effect of increasing the risk of further offences. Conclusions 1. The Applicant's good character and the absence of any misconduct for more than 56 Years persuades the Tribunal that he does not present a real and appreciable risk to the safety of any child. The Applicant has satisfied the onus. 2. The Tribunal is satisfied that he should have a Working with Children Check Clearance. Orders 1. Accordingly the orders of the tribunal were: 1. The Tribunal declares that the applicant, CDT, is not to be treated as a "disqualified person" for purposes of the Child Protection (Working with Children) Act 2012 in respect to the offence of assault with act of indecency of which he was convicted by Sydney Quarter Sessions on 26 August 1960. 2. The Children's Guardian must grant CDT 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: 06 July 2016