Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CZI v Children's Guardian [2017] NSWCATAD 250 Hearing dates: 7 August 2017 Date of orders: 07 August 2017 Decision date: 07 August 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: J Anderson, Senior Member S Davison, General 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. (2) The respondent must grant the applicant a Working With Children Check clearance. (3) The publication or broadcast of the name of the applicant is prohibited. Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of a 1975 offence of carnal knowledge – no conviction recorded – no other criminal offences – whether applicant has discharged onus to prove he does not pose a risk to the safety of children Legislation Cited: Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: CZI (Applicant) NSW Office of the Children's Guardian (Respondent) Representation: Counsel: Ms J McDonald (Respondent) Solicitors: NEW Law Pty Ltd (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2017/00082892 Publication restriction: The publication or broadcast of the name of the applicant is prohibited REASONS FOR DECISION Background 1. On 1 February 2017, the applicant applied to the Children's Guardian (the respondent) for a Working With Children Check clearance. 2. On 17 February 2017, the respondent notified the applicant that he is a disqualified person as a result of a charge of carnal knowledge contrary to section 71 of the Crimes Act 1900 (NSW), and as a disqualified person he must not be granted a Working With Children Check clearance. 3. On 17 March 2017, the applicant made an application to the Tribunal for an order that he is not to be treated as a disqualified person (an "enabling order"). The applicant also applied for a stay of the respondent's notification that the respondent must not grant him a clearance. On 8 June 2017, the Tribunal dismissed that application. 4. On 7 August 2017, a hearing of the substantive application was held. We now provide our oral reasons for decision. We reserve the right to amend these reasons for the purposes of publication of this decision. The working with children legislative scheme 1. The object of the Child Protection (Working with Children) Act 2012 ("the Act") is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have Working With Children Check clearances. 2. A person may apply to the Children's Guardian for a Working With Children Check clearance. 3. The Children's Guardian must refuse an application for a clearance where the applicant is a 'disqualified person'. A person is a disqualified person by reason of having been 'convicted' of an offence falling within Schedule 2 of the Act. 4. Section 5 of the Act defines "conviction" as including a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to record a conviction. 5. In this matter, the applicant was charged with an offence of carnal knowledge in 1975. Although no conviction was recorded, the fact that the offence was proved or there was a finding of guilt means that the applicant is a "disqualified person". 6. Section 28 of the Act makes provision for review by the Tribunal of a decision that a person is a disqualified person, by declaring that he or she is not to be treated as a disqualified person. 7. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. In particular, the Tribunal must consider the following factors ("the section 30 factors"): (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, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A; (k) any other matters that the Children's Guardian considers necessary. 1. In addition, pursuant to section 30(1A) the Tribunal may not make an enabling order 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. Procedure of Tribunal 1. The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Civil and Administrative Tribunal Act 2013. 2. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures, and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form. Burden of proof 1. As the applicant is a disqualified person there is a presumption that the applicant poses a risk to the safety of children. 2. The issue to be decided 3. The issue for determination by the Tribunal is whether the applicant has discharged his onus to rebut the presumption that he poses a risk to the safety of children and should be granted an enabling order. Evidence before the Tribunal 1. The respondent tendered into evidence the documents gathered by the respondent in relation to the applicant's application, including documents provided by various departments and agencies, including the NSW Police, the courts, the Department of Education, TAFE NSW, and the Department of Family and Community Services. 2. The applicant relied on his application, an affidavit sworn on 17 March 2017, a report of Dr Katie Seidler, Clinical and Forensic Psychologist, dated 25 July 2017, and letters from managers employed by the applicant's employer. 3. The evidence is now considered under each of the section 30 factors. (a) the seriousness of the offence with respect to which the person is a disqualified person 1. The matter that caused the refusal of the applicant's application for a clearance was a 1975 offence of carnal knowledge to which the applicant pleaded guilty. 2. The police facts and witness statements indicate that at the relevant time the applicant, then 18 years old, was walking with a friend around the streets where he lived, when they came across two girls, one of whom was the victim in the matter who was aged 14 years and 9 months. A conversation ensued and the girls accompanied the applicant and his friend back to the applicant's home where his parents and brother were present. 3. The applicant, his brother and the girls watched television together, before the applicant and the victim went into the applicant's bedroom and had sexual intercourse. Some time after this occurred, the applicant and the victim re-joined the others, and the applicant subsequently drove the victim and her friend home. 4. Some one and half weeks later, the applicant was charged with carnal knowledge of the victim, who was under the age of 16 years at the relevant time. No conviction was recorded pursuant to section 556A of the Crimes Act 1900 on condition that the applicant enter into a recognizance in the amount of $100 for a period of three years. 5. The victim's account of the incident does not differ materially from that of the applicant. In her statement to police, the victim said that she let the applicant have sex with her and that the applicant didn't force her. Relevantly, there was no evidence of any violence or coercion exerted on the victim by the applicant. 6. The offence, whilst objectively serious involving a sexual offence against a child, is, in our view, at the lower range of offending of this type, in light of the particular facts and circumstances. That no conviction was recorded by the court is indicative of this fact (b)The period of time since the offence occurred and the conduct of the applicant since that time 1. The offence was committed approximately 42 years ago. 2. The applicant has no other criminal convictions other than the disqualifying offence. He has not been charged with any other criminal offences. Nor has he come to the attention of NSW Police for any matters of violence (including domestic violence), child abuse, sexual offences or inappropriate activity involving children. 3. The applicant has a lengthy employment history commencing in 1975. He has worked as swimming instructor, a music tutor, and a teacher in school and vocational education. Up until the refusal to grant him a Working With Children Check clearance in February 2017, the applicant had worked as a senior teacher in vocational education for the past 15 years. 4. The applicant has raised two children and three step-children, all of whom are now adults. He has been in a relationship with his partner for 33 years and they are involved in the lives of their six grandchildren. (c)The age of the applicant at the time the offence occurred 1. The applicant was 18 years old at the time of the offence. (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. The victim of the offence was aged 14 years and 9 months. Whilst the applicant had not previously met the victim, there is some indication that the victim knew of the applicant in the local community. The offence occurred in the early hours of the morning at the home of the applicant. It is noted that a number of people were present in the home at the time, including the victim's friend and family members of the applicant. (e) the difference in age between the victim and the applicant and the relationship (if any) between the victim and the applicant 1. The difference in age between the victim and the applicant was 3.5 years. (f) Whether the applicant knew, or could reasonably have known, that the victim was a child 1. The applicant maintains that he did not know the victim was a child and unable to consent to sexual intercourse. The applicant referred to himself as a particularly immature and naïve teenager. 2. Information provided by the respondent indicates the prosecution conceded at the relevant time that the victim appeared older than her actual age and could have been mistaken for being 16 years old. Notwithstanding this, we note that the applicant pleaded guilty to the offence of carnal knowledge and does not dispute in a material way the facts as alleged in the material produced by the respondent. (g) the applicant's present age 1. At the time of the Tribunal hearing, the applicant was 60 years of age. (h) the seriousness of the applicant's total criminal record and the conduct of the applicant since the offence occurred 1. Aside from the disqualifying offence, the applicant has no other criminal convictions. Further details about his conduct since 1975 have been detailed earlier. (i) the likelihood of any repetition by the applicant of the offences or conduct and the impact on children of any such repetition 1. The applicant relied upon the expert evidence of Dr Seidler, Clinical and Forensic Psychologist. Dr Seidler reviewed the applicant and conducted a risk assessment utilising various tools. At page 21 of her report Dr Seidler states: [The applicant] is considered to pose a Low risk of future sexually abusive behaviour. It does not appear that there are any risks present for [the applicant] at the current time relating to sexual abuse and this has been consistent across almost the entirety of his adult life. Given it has now been over forty years since he offended and given that my formulation of his offending behaviour suggested that [the applicant's] actions were best understood within the context of immaturity and naivety rather than being a function of any personality or sexual predisposition to sexually abusive behaviour, it is difficult to conceptualise how this risk may manifest in his life now. As such, in my view, [the applicant] poses a very low risk of reoffence and one that is in tangible terms difficult to quantify in any meaningful way. Further to this, given the absence of his ever engaging in any other forms of abusive or otherwise inappropriate behaviour with children and/or young people or anyone else for that matter, there seems no reason to consider that he would pose a risk to anyone in any manner other than that which any member of the community may pose. 1. The applicant has not been convicted of any criminal offences in the periods prior and subsequent to his disqualifying offence in 1975. There is no evidence of any disciplinary proceedings or complaints of a child protection nature in relation to his approximately 42 years of employment. He has not been the subject of any notifications to the Department of Family and Community Services and has not been the subject of any apprehended domestic violence orders. 2. We accept the opinion of Dr Seidler that the applicant does not pose a risk to anyone in any matter other than that which any member of the community may pose. We find that the likelihood of re-offence is therefore low. (j) any information given by the applicant in, or in relation to, the application 1. The applicant acknowledges his disqualifying offence. In his written evidence, the applicant stated that it occurred in the context of his naïvety and immaturity, and that he was unaware that the victim was a minor and unable to consent to the sexual act. The applicant also states that he has always felt great remorse and embarrassment over the event and is now devastated that it is jeopardising his career. 2. The applicant seeks a Working With Children Check clearance in order to resume his employment as a senior teacher. The applicant submits that he is not a risk to the safety of children and should be granted an enabling order. (j1) any relevant information in relation to the person that was obtained in accordance with section 36A 1. The Tribunal is not aware of any relevant material exchanged between the respondent and its counterparts in other jurisdictions. (k) any other matters that the Children's Guardian considers necessary. 1. The respondent supports the applicant's application, as indicated the respondent's oral and written submissions. 2. In relation to the section 30(1A) factors, we find that: 3. (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 4. (b) it is in the public interest to make the order. 5. In making these findings, we note the significant passage of time that has elapsed since the disqualifying offence, the applicant's lack of any further offending, and his lengthy career of working with children and young people. 6. We also note that the applicant has been suspended from his employment for the last 6 months as a consequence of being a disqualified person, and is currently on leave without pay. The applicant is a long-serving member of an educational institution; he actively contributes to his community and is functioning well. There is a clear public interest in enabling the applicant to resume his employment and his teaching career. 7. Conclusion 8. In this matter, the Tribunal is tasked with determining whether the applicant has discharged his onus to prove that he does not pose a risk to the safety of children. 9. The offence with which the applicant was charged was objectively serious, involving sexual intercourse with a victim, who because of her age was unable to give consent. However, the particular facts and circumstances render the applicant's conduct at the lower range of sexual offending against a child. 10. We found the applicant to be frank and forthcoming in his written evidence. He has accepted responsibility for his disqualifying offending as a young person and does not seek to minimise his conduct. The Tribunal is further satisfied that the applicant has demonstrated insight and understanding about the need to protect the safety and welfare of children. 11. The applicant enjoys loving and stable relationships with his life partner and family. He is involved in his children's and grandchildren's lives. He has a lengthy history of working with children and young people, during which he has occupied positions of authority and trust, without incident. 12. Taking into account all of the evidence, the submissions of the parties, the objects and principles of the Act, and each of the factors set out in section 30 and 30(1A) of the Act, the Tribunal is satisfied the applicant has discharged his onus that he does not pose a risk to the safety of children. ORDERS 1. Accordingly, the Orders of the Tribunal are as follows: 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. 2. The respondent must grant the applicant a Working With Children Check clearance. 3. The disclosure of the name of the applicant and any victim or child referred to in these reasons is prohibited. ******** 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 Amendments 22 August 2017 - Amendment to 'section 30 factors' at [11] and [43] to include factor (j1) 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: 22 August 2017