Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CPS v Children's Guardian [2016] NSWCATAD 237 Hearing dates: 30 September 2016 Date of orders: 30 September 2016 Decision date: 30 September 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member M Bolt, General Member Decision: (1) The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012. (2) The Respondent is to grant the Applicant with a working with children check clearance. Catchwords: ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – assessment of risk Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Code Act 1899 (Qld) Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 BFX v Children's Guardian [2014] NSWCATAD 115 BHA v Children's Guardian [2014] NSWCATAD 161 BJB v NSW Office of the Children's Guardian (no 2) 2014 NSWCAT 164 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 CHB v Children's Guardian [2016] NSWCATAD 214 Commissioner for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: CPS (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 1610363 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Introduction 1. The Applicant referred to as "CPS" is a 60 year old man. He lives in a regional town in NSW and at his current address for the past 14 years after separating from his partner, who lives in the same town. They have three adult children and six grandchildren, all of whom the Applicant has regular contact with. 2. In 1978 the Applicant pleaded guilty to charges of indecent assault and an act of gross indecency under the Criminal Code Act 1899 (Qld) as it was written at the time (the disqualifying offences). 3. In May 2016 the Applicant applied for a Working with Children Check (WWCC) clearance. For the past 23 years he has worked as a cleaner in a school and was required to obtain a WWCC clearance in order to continue working there. The disqualifying offences were at the relevant time the equivalent of offences listed in Schedule 2 of the Child Protection (Working with Children) Act 2012 (the Act). The Applicant is therefore a "disqualified person" and under the Act and accordingly in June 2016, the Respondent refused to grant a WWCC clearance pursuant to section 18(1) of the Act. 4. In June 2016 the Applicant filed an application within the time allowed seeking an order by the Tribunal (an enabling order) that he is not to be treated as a "disqualified person" pursuant to section 28 (1) of the Act. The Applicant also asks the Tribunal to grant him a WWCC clearance. 5. The Act provides that 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: the Act, s 28(7). 6. The Respondent's position is to neither consent to, nor oppose, the grant of an enabling order. 7. The Applicant has a duty to disclose any relevant matters to his application for a WWCC clearance: the Act, s 28 (5). 8. An order was made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the Applicant without leave of the Tribunal. The object of the Act 1. The jurisdiction of the Tribunal is protective and not punitive in nature of applicants for enabling orders (BHA v Children's Guardian [2014] NSWCATAD 161). The object of the Act is not to impose additional punishment on the disqualified person but to eliminate possible risks to the safety of children (AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69). 2. The Tribunal must determine whether the Applicant has established on the balance of probabilities, that he does not pose a risk to the safety of children (AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69). The word "risk" in the Act is construed to mean a risk that is "real and appreciable". In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 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. The Tribunal has followed this meaning of risk: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69; BFC v The Children's Guardian [2014] NSWCATAD 90; BFX v Children's Guardian [2014] NSWCATAD 115 and BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. The material before the Tribunal 1. The Tribunal was provided with the following material: 1. Notice of Disqualification dated 1 June 2016 2. Applicant's application for an enabling order dated 6 June 2016 and filed on 8 June 2016. 3. Documents filed by the Respondent on 29 June 2016, 7 September 2016, and 29 September 2016; 4. Respondent's written outline of submissions dated 7 September 2016; 5. An undated letter from the Applicant to the Respondent's solicitor; and 6. Expert report of Peter Watt, psychologist, dated 9 July 2016 (the Watt report). 1. A Hearing was held in Sydney. The Applicant was not legally represented. He was present and gave oral evidence. Mr Peter Watts, the psychologist who provided an expert report gave evidence by phone. The disqualifying offences 1. The disqualifying offences were committed by the Applicant when he was 21 years old and a soldier in the Australian Army. They occurred in 1977 at an Army facility in Queensland. The offences were committed on a fellow male soldier in the company of two other male soldiers. The offences were sexual in nature. The facts are set out in the Court Brief contained in the Respondent's documents. The Applicant conceded these events occurred however sought to correct the record in relation to some of the details contained in the Brief. These corrections were not material and were accepted by the Respondent. There is no dispute about the facts surrounding the offences and it is therefore not necessary to describe them in any detail here. 2. The victim sustained physical injuries as a result of the offences but these were noted as not serious. The acts committed against the victim were sexual in nature and included the Applicant and the co-accused assaulting the victim in turn. These acts were not consensual and were committed through the use of force. The Applicant and his co-accused pleaded guilty to offences of sodomy and indecent assault. 3. The Applicant's evidence 4. The Applicant told the Tribunal that what he and his fellow soldiers did to the victim was wrong. He said that he apologised to the victim the next day. The Applicant gave background to the assaults and the context in which they occurred. The Applicant told the Tribunal that this did not excused his conduct or that of his co-accused. The Applicant accepted full responsibility for the commission of the offences. The evidence of an apology had not been previously available to the Respondent until the Hearing. Respondent's counsel told the Tribunal that the evidence of the Applicant's apology to the victim was accepted. 5. The Applicant answered questions at the Hearing about his involvement in the offences in an honest and forthright manner. There was no attempt on his part to minimise his involvement. The Applicant said he was under the influence of alcohol at the time but that was "not an excuse". The Applicant said that he has experienced guilty feelings about what happened since then. He admitted to the Tribunal that he "did something bad". He said he served a custodial sentence of "18 months hard labour" but also "in my way I am still paying". 6. The Applicant was asked about the impact of the offences on the victim. He said it has "probably affected him to this day. It affected me and it was far worse for him". 7. The Tribunal was left with the impression that that the Applicant took full responsibility for what had occurred, was very remorseful and was feeling appropriate empathy for the victim. 8. The expert evidence 9. The Applicant relies on an expert report provided by Mr Peter Watt, Psychologist who saw the Applicant for the purposes of writing a report for these proceedings. The report notes that the Applicant had symptoms of depression and anxiety with added stress symptoms "as a result of the possible loss of his job". In Mr Watt's opinion the Applicant has been "experiencing post-traumatic reactions as a result of the offences". He told Mr Watts that he was "deeply sorry for what had been done to the victim". 10. Mr Watt administered a series of psychological tests including the Violent Offender Risk Assessment Scale and gave the Tribunal a detailed explanation as to why this test was most appropriate in assessing the risk of reoffending in the Applicant's circumstances. Mr Watt's assessment of the Applicant was that the risk of reoffending is low. The Respondent did not challenge this assessment or any of Mr Watt's findings in relation to the Applicant. 11. Mr Watt suggested to the Applicant ways he might improve his mental health and the Applicant told the Tribunal these suggestions had been helpful. Factors the Tribunal must take into account 1. In determining this application the Tribunal must have regard to the matters set out in section 30(1) and (1A) of the Act. 2. Section 30 (1) and (1A) of the Act provides: (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. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. The seriousness of the offences or any matters that caused a refusal of a clearance 1. The disqualifying offences were of a sexual nature and in the company of 2 other men. Force was used and there were physical injuries although not of a serious nature. The Applicant and the co-accused were under the influence of alcohol and the evidence is that the assault on the victim would have been over a prolonged period of time as all 3 men took turns assaulting the victim. The Applicant was "dishonourably discharged" from the Australian Army and served an 18 month custodial sentence. 2. The disqualifying offences were of a serious nature. The Applicant accepts and acknowledges the seriousness of his conduct and the impact it would have had on the victim. The period of time since the offence occurred 1. The disqualifying offences occurred 39 years ago. The age of the person at the time of the offences 1. The Applicant was 21 years old. The age of the victim 1. The victim was 18 years old. As a young adult assaulted sexually by 3 men under the influence of alcohol, the victim was likely to have felt powerless, scared and humiliated. The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The Applicant was 3 years older than the victim. Whether the person knew, or could reasonably have known, that the victim was a child 1. The complainant was not a child but a young adult. The person's present age 1. The Applicant is 60 years old. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. The Applicant's only criminal record is in relation to the disqualifying offences. There have been no complaints made against him since that time. The likelihood of repetition of the offences or conduct and the impact on children of any such repetition 1. Mr Watt's expert report states that the risk of reoffending is low. The disqualifying offences were serious but isolated to one event that occurred 39 years ago. The Applicant has had no contact with the criminal justice system since that time. There is no evidence before the Tribunal of any work place complaints or any other complaints about the Applicant's conduct. 2. Mr Watt offered the Applicant suggestions to address his psychological issues, which the Applicant accepted and told the Tribunal that he found these suggestions helpful. Mr Watt said that he found the Applicant to be "straight forward and apologetic". 3. Respondent's counsel submits that given the lapse of time, the Applicant's age and circumstances of the offence, "it is unlikely there would be any repetition" by the Applicant of the conduct that gave rise to the disqualifying offences or any other physically or sexually violent conduct. Respondent's counsel further submitted that should such conduct be repeated, it would have devastating consequences. The Tribunal is satisfied on the evidence available that it is unlikely that the Applicant would engage in conduct of this kind in the future. 4. The Applicant demonstrated to the Tribunal that he has insight into the potentially damaging impact this kind of conduct could have on children. In relation to the Respondent being required to refuse to grant him a WWCC clearance on the grounds of the disqualifying offences the Applicant told the Tribunal that he "quite understand(s)" why this is so. Other information or matters 1. Mr Watt's report referred to the Applicant's consumption of alcohol. Whilst not at a serious level, Mr Watt suggested to the Applicant that he remain aware of the potential for this to possibly become a problem in the future. The Respondent's counsel asked the Applicant about this and his evidence was that he did not drink during the week but did so on the weekend, mainly in the company of family and friends. Although referred to in Mr Watt's report and in cross examination of the Applicant, there was no suggestion put to the Tribunal that the Applicant's alcohol consumption was a factor that the Tribunal should take into account in assessing whether the Applicant poses a risk to the safety of children. Section 30 (1A) factors 1. The Applicant told the Tribunal that he had regular contact with his grandchildren. He was asked whether his children are aware of the disqualifying offences. The Applicant said that he had to tell them what happened when he lost his job following being refused a WWCC clearance. He said that since telling them there has been no change either in the way in which, or the time he spends, with his grandchildren (who range in age from a baby to a young teenager). 2. The Applicant told the Tribunal that he had been working continuously at the same school as a cleaner for 23 years. There was no evidence presented of any complaints or concerns in relation to the Applicant. 3. The Respondent's Counsel referred the Tribunal to the case of CHB v Children's Guardian [2016] NSWCATAD 21 in relation to consideration of the factors to be taken account under section 30 (1A) of the Act. The Tribunal must consider section 30 (1A) after having considered the factors set out under section 30 (1) of the Act, if it is inclined to find that the Applicant does not pose a risk to the safety of children. In this case the Tribunal is so inclined based on the material presented to it. 4. The Respondent adopts a neutral position with regard to the requirements set out under section 30 (1A). Respondent's counsel submitted that the Applicant has been honest and candid in these proceedings and that in all the circumstances, without lessening the severity of the crime and not to excuse the Applicant's conduct, the Respondent was prepared to accept that the Applicant's conduct is at the lesser end of the scale. 5. Since the Applicant was refused a WWCC clearance he has been unable to find work. He is understandably concerned given his age about his future job prospects. The Tribunal was told that this is having a significant financial and psychological impact on the Applicant. This is however not relevant to the assessment of whether the Applicant has discharged his onus to establish that he does not pose a risk to the safety of children. However it might lend itself to the consideration of whether it is in the public interest for the Tribunal to grant an enabling order. 6. The Tribunal's jurisdiction is protective and not punitive in nature. The paramount consideration is the safety, welfare and well-being of children and, in particular, protecting them from child abuse: the Act, s4. 7. Having considered all the evidence available to the Tribunal it is satisfied that the Applicant does not pose a real and appreciable risk to the safety of children. The Tribunal is also satisfied that a reasonable person would allow his or her child to have direct contact with the Applicant that was not supervised while the Applicant was engaged in child-related work; and that it is in the public interest to grant the Applicant a WWCC clearance. Conclusion and orders 1. The Tribunal is satisfied that the Applicant has discharged his onus and has proved that he does not pose a risk to the safety of children. 2. The Tribunal orders that: 1. The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012. 2. The Respondent is to grant the Applicant with 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: 19 October 2016