Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CRM v Children's Guardian [2017] NSWCATAD 85 Hearing dates: 27 October 2016 Date of orders: 24 March 2017 Decision date: 24 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member F Given, General Member Decision: The applicant's application for an enabling order is dismissed. Catchwords: ADMINISTRATIVE LAW – Child Protection – working with children check clearance – enabling order – applicant is a "disqualified person" by reason of a 1953 conviction for the offence of carnal knowledge – as a "disqualified person" the applicant is presumed to pose a risk to the safety of children unless he proves the contrary – whether the applicant discharged his onus - onus not discharged Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Child Protection Legislation Amendment Act 2015 (NSW) Crimes Act 1900 (NSW) Cases Cited: BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 CHB v Children's Guardian [2016] NSWCATAD 214 Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: CRM (Applicant) Children's Guardian (Respondent) Representation: Counsel: A Douglas-Baker (Respondent) Solicitors: CRM (Applicant in person) Office of the NSW Crown Solicitor (Respondent) File Number(s): 1610516 Publication restriction: Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal. Note: A reference to 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 is 81 years of age and seeks an enabling order, pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (WWC Act). The applicant seeks an enabling order so that he can obtain a working with children check clearance (a clearance) as he wishes to work as a volunteer in child-related work. 2. The applicant seeks an enabling order, as, on 22 July 2016, the respondent determined to refuse his application for a clearance under s 18(1) of the WWC Act, because he is a "disqualified" person. He is a disqualified person by reason of his conviction, in August 1953, when he was 18 years of age, of one count of carnal knowledge, contrary to s 71 of the Crimes Act 1900: see WWC Act, s 18(1) and Sch 2, cl 1(1)(i). 3. As a disqualified person, the applicant has a right to make this application for an enabling order. By reason of s 28(7) of the WWC Act, in proceedings for an enabling order, there is a statutory presumption that an applicant for such an order poses a risk to the safety of children, unless that person proves to the contrary. The applicant relies on his long working career as a tow truck driver, security guard, special constable and voluntary worker as proof of the contrary. 4. For the reasons that follow, we are not persuaded the applicant has discharged his onus, even though his disqualifying offence occurred many years ago. Accordingly, we have dismissed his application. Background 1. The applicant made his application for a clearance on 24 June 2015. 2. According to the records of the respondent, at the time the applicant lodged his application for a clearance it was noted that the applicant's carnal knowledge offence was either a "disqualifying record per Schedule 2 or a trigger record per Schedule 1 depending on the age of the applicant at the time of the offence." Officers of the respondent made enquiries about the applicant's 1953 offence and no information was found. 3. It was subsequently noted that, in May 2004, a previous risk assessment by the Commission for Children and Young People had been discontinued because the applicant ceased his child related employment as a bus driver. At the same time, it was noted that the applicant had not provided an email address and hence a letter informing him of the need for a risk assessment could not be sent. 4. In late May 2016, the applicant telephoned the offices of the respondent to say that a year was too long to wait for a clearance. A month later, the applicant was again contacted by an officer of the respondent's office. He informed the officer that he was 18 years of age when he was convicted of the disqualifying offence. An officer of the respondent subsequently conducted a risk assessment: see WWC Act ss14 and 15. That officer found that the applicant did not pose a risk to the safety of children. However, the assessment was referred to the senior legal officer within the offices of the respondent. The senior legal officer advised that on the material provided, the applicant was an adult at the time the carnal knowledge offence was committed and on this basis the offence was a disqualifying offence under cl 1(1)(i) of Schedule 2 of the WWC Act. 5. Following the advice of the senior legal officer a determination was made to refuse the applicant's application for a clearance under s 18(1) of the WWC Act. 6. At the hearing in these proceedings, the applicant conceded that he was over 18 years of age at the time the carnal offence was committed. The WWC legislative scheme 1. The WWC Act came into force on 15 June 2013. The objects of the Act are set out in s 3 as follows: "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." 1. 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. 2. The word "children" is defined in s 5(1) to mean persons under the age of 18 years. Consequently, the word "child" has the same meaning. 3. Subsection 8(1) of the Act prohibits a person from engaging in "child-related work", unless: (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 4. Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance. 5. Sections 6 and 7 define what is meant by "child-related work." It is broadly defined in these sections and includes work that involves direct contact (i.e. physical contact or face to face contact) by the worker with children in specified child-related work and child-related roles. It is not for the Tribunal to determine whether the work for which the applicant seeks to obtain a clearance is child-related work. However, a clearance, once granted is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27]. 6. A "worker" is defined in s 5(1) of the WWC Act to mean: " … any person who is engaged in work in any of the following capacities: (a) as an employee, (b) as a self-employed person or as a contractor or subcontractor, (c) as a volunteer, (d) as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience)," 1. Section 18 prescribes how the respondent is to determine an application for a clearance. Subsection 18(1) deals with applicants for a clearance, who are "disqualified persons." That section relevantly provides as follows: "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, …" 1. As we indicted above, the applicant has conceded that he was over 18 years of age at the time of his 1953 offending. That is, he was not a child as defined in s 5(1) of the WWC Act and on this basis he was a "disqualified person" as the offence of carnal knowledge is an offence listed specified in Sch 2: WWC Act, Sch 2, cl 1(1)(i). 2. Where a person is a "disqualified person", s 18(1) provides the respondent must refuse that persons' application for a clearance. That is, in such circumstances the respondent has no discretion and can make no further enquiries and a decision to refuse the application for a clearance is mandatory. 3. Having had his application for a clearance refused by the respondent, s 28(3)(a) of the WWC Act gave the applicant standing to bring this application for an enabling order. 4. As we have already noted, s 28(7) of the WWC Act contains a statutory presumption that the applicant poses a "risk" to the safety of children, unless he proves the contrary. 5. The Tribunal has accepted the word "risk", in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms: "What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children." 1. Section 28(5) provides an applicant for an enabling order must fully disclose to the Tribunal any matters relevant to the application. 2. Section 30 of the WWC Act sets out the factors the Tribunal must consider in determining an application for an enabling order, or a review application under s 27 of the WWC Act. At the time the applicant made his application for a clearance that section provided as follows: "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 … , (b) the period of time since those offences … and the conduct of the person since they occurred, (c) the age of the person at the time the offences … occurred, (d) the age of each victim of any relevant offence … 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. 1. At the time the respondent refused the applicant's application, s 30 had been amended with the insertion of an additional sub-clause s 30(1A): see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 31. That subs is in the following terms: "(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." 1. In our opinion, that additional sub-clause does not apply to this application as the applicant had made his application for a clearance prior to the Child Protection Legislation Amendment Act 2015 coming into force: see Child Protection Legislation Amendment Act 2015 (NSW), Sch 2, cl 46 savings provision cl 16. Even if we are wrong and it does apply, it would not alter our conclusion as we are not satisfied the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children: see CHB v Children's Guardian [2016] NSWCATAD 214, at [107], where the Tribunal held that, in accordance with a similar provision in the Victorian legislative scheme, s 30(1A) only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children: see ZZ v Secretary, Department of Justice [2013] VSC 267. 2. Section 28(8) of the WWC Act provides that an enabling order cannot be made subject to conditions. Hence, an order once made and a clearance is granted, it is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27]. Evidence before the Tribunal 1. The applicant relied on a bundle of material he had filed and served prior to the hearing. Included in this material were copies of the following documents: 1. a Certificate II in Security Operations, 2. a Notice of probationary appointment as Commissionaire at a Government Office, dated 23 June 1982, 3. a Certificate, dated 18 June 1987, stating the applicant held the appointment of Special constable for the State of NSW in the capacity as Commissionaire, 4. a heavy vehicle driver licence, a security industry licence and a bus drive licence in the name of the applicant, 5. a number of references from past employers and friends dated 17 September 1978, 17 December 1981, 21 December 1982, 17 November 1987, 22 February 1988, 28 May 1988, 31 May 1990, 15 May 1991, 20 December 2001, 2 October 2003, 23 June 2008 and 3 May 2011, and 6. a couple of newspaper articles in regard to "sex offenders" and the "criminal classes." 1. The respondent relied on the following copies of documents it obtained in the course of the enquiries that were made: 1. the applicant's criminal history, 2. a copy of the Local Court Papers in regard to a 1961 offence of which the applicant was found guilty. The offence was obscene exposure that occurred in a railway carriage, 3. responses received from the NSW Police Force Sex Crimes Squad, the Department of Family and Community Services and former employers of the applicant, and 4. the file notes of officers of the respondent in dealing with the applicant's application. 1. The applicant has been unrepresented though-out these proceedings. He gave oral evidence at the hearing and was cross-examined by counsel for the respondent. 2. The respondent also filed and served detailed written submissions prior to the hearing. Consideration 1. We note the jurisdiction of the Tribunal in matters under the WWC Act 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 any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work. 2. The term "safety to children" is not defined in the WWC Act, but includes the sexual and physical safety of children, and also their safety from conduct that is likely to cause psychological or emotional harm: see BVM v Children's Guardian [2016] NSWCATAD 65 at [9] – [15] and [67] and BFX v Children's Guardian [2014] NSWCATAD 115 at [19] to [30]. 3. In regard to the s 30(1) matters, set out below is a summary of the evidence and our findings on each matter listed in that subsection. (a) Seriousness of the offence that caused a refusal of the applicant's application for a clearance 1. The applicant's criminal history records that he was charged with the offence of carnal knowledge in April 1953. He was committed for trial in June of that year. 2. In early August 1953, the applicant was charged with a number of break enter and steal offences. He was committed to stand trial on those offences three days later and was subsequently bound over to be of good behaviour in regard to the carnal knowledge and the break enter and steal charges. That is, he was ordered to "place himself under care of an adult prob officer and report to the officer in charge of Police [name of the Station] on completion of National Service Training." 3. We understand from the applicant's criminal history that he was sentenced, in March 1954, in respect of all outstanding charges (i.e. the carnal knowledge charge and the break enter and steal charges). The sentence included a five- year good behaviour bond. 4. As we mentioned above, the respondent was unable to obtain the Court records of the applicant's early offending. In July 2016, when initially asked by an officer of the respondent about the circumstances giving rise to the carnal knowledge offence, the applicant explained that at the time he was working for the salvation army and he had picked up "the woman" in a bus stop as she was all alone and had no place to go. He said he invited "the woman" to stay at his place. He said the woman "undressed herself" and they engaged in "consensual sex." He said he later found out that "the woman" was underage and that she had escaped from the dormitory of a high school. 5. While the age of "the woman" is unknown, the applicant has acknowledged she was a high school student and given the nature of the offence she must have been under the age of 16 years. 6. In a subsequent conversation that day, with another officer of the respondent, the applicant added he met "the child who was waiting at a bus stop and as he came from 'Christian upbringing' he felt compelled to assist her." He said the child had indicated she had been kicked out of home and as his mother worked in social welfare he assisted the child to obtain appropriate accommodation. He said that when he returned, "nature took its course." 7. In his oral evidence in these proceedings, the applicant said the victim of the carnal knowledge offence wore "a very revealing blouse" and that there "should have been something to protect" him. He said the victim jumped into bed with him and he re-iterated "nature took its course." 8. While we accept that the applicant's recollection of events dating back to 1953 may not be clear, we nevertheless have considerable difficulty in accepting his account of events. The victim was a child, a high school student, who was unknown to him. She was vulnerable, alone and in all probability trusted him; otherwise she would not have gone with him. In such circumstances it cannot be accepted that there had been consensual sexual intercourse. Having regard to his evidence, we were left with the impression that the applicant has a complete lack of understanding about his offending conduct and the impact it may have had on the victim. He appeared to blame her for the situation he found himself in, rather than questioning his own behaviour. (b) the period of time since the disqualifying offence occurred and the conduct of the person since it occurred, 1. It is 63 years since the applicant was convicted of the disqualifying offence. 2. Eight years after having been convicted of his disqualifying offence, in 1961, the applicant was convicted of an offence of obscene exposure. We have dealt with that offending conduct below. 3. There is no record of any further offending since 1961. (c) the age of the person at the time the offence occurred, 1. The applicant was 18 years of age at the time of the carnal knowledge offence. He was 26 years of age at the time of the indecent exposure offence. (d) the age of each victim of any relevant offence at the time they occurred and any matters relating to the vulnerability of the victim 1. The age of the victim of the carnal knowledge offence is unknown. However, given the nature of the offence she must have been under 16 years of age. 2. The victim of the indecent exposure offence was aged 15 years. 3. Both victims were children and vulnerable. The applicant was an adult and a stranger to each victim. (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 two to three year difference between the applicant and the victim of the carnal knowledge offence and an 11-year difference between the applicant and the victim of the carnal knowledge offence. As we have already noted, each victim was a stranger to the applicant. (f) whether the person knew, or could reasonably have known, that the victim was a child 1. On the material before us, the applicant knew the victim of the canal knowledge offence was a high school student. It is unclear whether he knew that the victim of his obscene exposure offence was a child. As we have noted below, the applicant has at all times asserted there was no victim in regard to this offending. (g) the person's present age, 1. The applicant is currently 81 years of age. (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 1. When looked at as a whole the applicant does not have a long criminal record. In 1953, following the carnal knowledge offending, the applicant was charged with a number of break enter and steal offences. 2. The only other offences of which the applicant was charged and convicted were two driving offences in 1954, a stealing offence in 1957 and the 1961 offence of indecent exposure. It is the latter that is of relevance to this application. 3. The offending conduct occurred some time after 6.25 pm, on a Friday, in May 1961, when the applicant was seated in a carriage of a suburban train. The applicant was seated in the last seat of the carriage facing the front of the train. He had with him a brown covered book, which he was holding over the fly of his trousers. A 15-year old girl, sitting in the seat opposite to the applicant, saw the applicant remove the book and expose himself to her. The girl left the train at the next station and reported the incident to the guard. The guard removed the applicant from the train and took him to the local police station, where he was charged. 4. Whilst at the police station the applicant made a statement saying that he had noticed that his fly on his pants was undone and that he endeavoured to close his fly and when doing so he caught himself. He said he endeavoured to conceal his actions and that he realised he should have taken better care. 5. Subsequently, at the hearing before the Magistrate, the applicant acknowledged that his statement was false. He told the Magistrate he had a very bad home life and his father sent him to a church home for boys. He explained his prior stealing convictions were due to having "got in with a crook mob". He explained he had married in 1955, but his wife "had lost her desire for sexual relationships", but they were still living together. He said this and their money worries had placed a great strain on him. The money worries were due to him having not been able to work because of illness. When asked if he had seen a doctor about his offending conduct, the applicant responded he had seen a psychiatrist once and that he didn't take to him very well. He said he had discussed the matter with his wife and prior to admitting guilt he told the Magistrate that he had come to the "point of asking for some help in medical ways." 6. The Magistrate convicted the applicant of the offence charged and he entered a recognisance to be of good behaviour for three years. When convicting the applicant the Magistrate said: "It is obvious that you are in need of medical treatment." The applicant has however, never undergone any treatment. In our view, this offence was also serious. However, we note there is no record of the applicant having re-offended. (i) the likelihood of any repetition by the person of the offences … and the impact on children of any such repetition 1. Given the applicant's age and the fact that he has not reoffended in a similar manner for many years, the likelihood of him re-offending as he did in 1953 and 1961 is probably low. However, given his account of past offending, we are not persuaded the applicant the has any understanding today of child protection issues, or what he should do in circumstances where a child protection issue may arise and he is required to deal with it. As we have noted, the applicant appears to have blamed others for what occurred and we doubt he has at any time appreciated the seriousness of his offending in so far as it concerns issues of child protection. (j) any information given by the applicant in, or in relation to, the application 1. As we have already noted, the applicant relies on the positions of trust he has held over the years since his offending. He has provided numerous references from people with whom he has worked or known while in these positions. They all speak highly of him and the applicant contends that these references evidence that he does not pose a risk to the safety of children today. However, as pointed out by counsel for the respondent, these references make no mention of the applicant's offending conduct. Nor were they prepared for the purpose of this application. 2. In his oral evidence the applicant said he and his wife were married for 33 years. He said they had three children. He said his wife came to him and said she wanted to work. He said he told her that it was "OK", but they grew apart. He said he left her and his wife moved to South Australia and remarried. (k) any other matters that the respondent considers necessary. 1. The respondent did not add any further matters to that which was contained in the written submissions. Conclusions 1. While the respondent neither supports, or opposes the making of an enabling order, we are required to determine whether, in the circumstances, having regard to the paramount consideration in section 4 of the WWC Act and considered the matters in subsection 30(1) of that Act, the applicant has discharged his onus and rebutted the resumption that today, he poses a real and appreciable risk to the safety of children. 2. We have found that the applicant's disqualifying carnal knowledge offence and his indecent exposure offence are serious. They both involved a child under the age of 16 years, who was a stranger to the applicant. While the applicant was only 18 years of age at the time of the carnal knowledge offence, he was 26 years of age at the time of the indecent exposure offence. 3. In the applicant's favour is the fact that he has not committed any further offences of this kind for many years. However, this alone may not be sufficient to discharge his onus. 4. As we have noted we can give very little weight to the references the applicant has provided, in the context where the safety of children is paramount. 5. What is of concern to us is the applicant's lack of understanding about the seriousness of his offending conduct in 1953 and again in 1961 and the impact that conduct may have had on the victims. Instead he continues to blame the victim, or his former wife, for the situation he found himself in. While we do not believe the applicant is likely to offend in a similar way today, given his responses to his prior offending, we are not persuaded the applicant has any understanding of child protection issues, or what he should do in circumstances where a child protection issue may arise and he is required to deal with it. It is for this reason that we find the applicant has failed to discharge his onus. 6. Accordingly we order that the applicant's applicant for an enabling order is 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: 24 March 2017