Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DHB v Children's Guardian [2018] NSWCATAD 123 Hearing dates: On the papers Date of orders: 06 June 2018 Decision date: 06 June 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Prof E Foreman, General Member Decision: (1) Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. (2) The applicant is not to be treated as a disqualified person for the offence of carnally know a female under the age of 16 years pursuant to s.71 of the Crimes Act 1900 (NSW) entered at the Court of Petty Sessions in Dubbo in 1967. (3) The application for an enabling order is granted. (4) In conformity with order (3) and the initial application for a clearance, the respondent is to grant the applicant a Working With Children Check Clearance. Catchwords: ADMINISTRATIVE LAW – child protection – working with children – disqualifying offences – enabling order – circumstances of offence – conduct of applicant in period since offences occurred– discharge of onus Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Prohibited Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 BKE v Children's Guardian [2015] NSWSC 523 CHB v Children's Guardian [2016] NSWCATAD 214 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Commissioner for Children and Young People v FZ [2011] NSWCA 111 CYY v Children's Guardian (No. 2) [2017] NSWCATAD 262 PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 R v Commission for Children and Young People [2002] NSWIRComm 101 Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary of the Department of Justice [2013] VSC 267 Category: Principal judgment Parties: DHB (Applicant) Children's Guardian (Respondent) Representation: Solicitors: Applicant (self-represented) Crown Solicitor's Office (Respondent) File Number(s): 2017/000383562 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicant, his victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. REASONS FOR decision Introduction 1. On 19 December 2017 the applicant applied for an enabling order following a decision of the respondent to refuse to grant him a Working with Children Check Clearance on the basis that he is a disqualified person. That decision was made on 5 December 2017. 2. The Applicant in these proceedings is referred to as "DHB". DHB is the applicant's pseudonym used in these proceedings in conformity with the order referred to in par [5] (below). 3. The applicant seeks a finding by the Tribunal that he does not pose a risk to children. The applicant is presumed to be a risk to children due to the offence of carnal knowledge. In 1966, when he was 19 years old, he had sexual intercourse with a 15 year old female. 4. Based on a consideration of all of the evidence and material submitted by the parties in the proceedings, including the applicant's conduct in the intervening 52 years, and the provisions of s 30(1) of the Child Protection (Working with Children) Act 2012 (the Act), the Tribunal finds that the applicant is not a real and appreciable risk to the safety and well-being of children and young persons. As a result of the finding the application for an enabling order is granted. Background 1. On 18 January 2018 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) restricting publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. 2. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see ss 3 and 4 of the Act. 3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances. 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act. 1. These proceedings arise because on 5 December 2017, the Children's Guardian issued DHB with a Notice to Disqualified Person pursuant to s 18 of the Act. In October 2017, the applicant applied for the clearance. The applicant seeks a clearance to enable him to assist his adult daughter with her proposed foster care arrangements. 2. After receiving the application in October 2017 the respondent became aware of one matter in the applicant's history related to a criminal offence. This matter was a 'disqualifying offence' under the Act and the application was refused: in accordance with s 18(1)(a). The disqualifying criminal matter is as follows: 1. carnally know a female under the age of 16 years pursuant to s 71 of the Crimes Act 1900 (NSW) 1. The applicant was given a two year Bond to be of good behaviour (or forfeit $200 and be resentenced) under s.558 of the Crimes Act 1900. This offence is commensurate with offences listed in Sch 2 of the Act, equating to a 'disqualifying offence' as defined under the Act at Sch 2 Cl 1 (1) (h) (i). 2. The grounds of the application for an enabling order are: "I was in a relationship with girlfriend [sic] who became pregnant. Child was adopted. I have been with my present wife for 46 years married + (3 years relationship). We have 2 children, 3 grandchildren. I respect the process and thorough detail to carry out the WWCC however I would like to lift the offence on record and have a clearance. I would like to support my daughter who is a respite carer and works full time." 1. Further grounds concerning DHB's conduct in the intervening decades was attached to his application. 2. The issue to be decided by the Tribunal is whether the applicant should be granted an enabling order under s 28 of the Act. In reaching this position the Tribunal is required to traverse section 30(1) and (1A) and determine whether he has rebutted the presumption that he poses a risk to the safety and well-being of children. In addition we are mindful of the Superior Court guidance that the risk must be both real and appreciable, not merely any risk. The working with children legislative scheme 1. The object of 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: s 3 of the Act. 2. 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: s 4 of the Act. 3. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence. 4. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)": (See s 6(1) (b) of the Act). A child related role is set out in s 6(3) of the Act. 5. Section 18 of the Act constrains the Children's Guardian from granting clearances to disqualified persons. 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. 1. Disqualified persons do not undergo a formal assessment before the Children's Guardian, as the Act mandates that the Children's Guardian must not grant a clearance to such persons. 2. However the Tribunal is tasked with conducting an assessment of a disqualified person's risk if an application for an enabling order is made to the Tribunal. Jurisdiction 1. Part 4 of the Act deals with reviews and appeals. Section 28 provides for the making of an enabling order by the Tribunal of disqualified persons. Relevant to these proceedings the section provides: 28 Orders relating to disqualified and ineligible persons (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: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled under section 23,because the person is a disqualified person. (4) The Children's Guardian 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. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) 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. (8) An enabling order may not be made subject to conditions. (9) (Repealed) (Emphasis added) 1. As a preliminary finding we note that the Children's Guardian has refused the applicant's request for a clearance and the conditions of s 28(3)(a) are satisfied. Based on this finding and noting that the application was received within time, there is no dispute that the Tribunal has jurisdiction to hear the matter. 2. Section 30 sets out the factors that the Tribunal must consider in determining an application. We will address each of the matters under s 30(1) later in these reasons. Burden of Proof 1. In this case there is a presumption that the applicant poses a risk to children, as the applicant is a disqualified person seeking an enabling order pursuant to s 28 of the Act. (s28(7)). 2. The meaning of the word 'risk' was previously considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act). At [42], His Honour said: '42 One does not define risk as meaning minimal risk. One would …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 word "risk" with the words that follow, namely, "to the safety of children". ...' 1. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in s 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8. The Hearing 1. The matter was by consent decided to be determined on the papers without a hearing, however the applicant submitted that should the Tribunal be minded to refuse his application, then he sought to exercise his right to be heard on that matter. 2. Section 50 of the NCAT Act provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. We are satisfied that the matter can be properly determined without a hearing in accordance with s 50 (2) of the NCAT Act. Written evidence 1. Both parties filed written material in support of the matter. In our view there is no need to detail that material other than to the extent that it arises below in our consideration of the mandatory steps and evidence. The respondent also filed detailed written submissions. Applicant's submissions 1. The applicant's submissions indicated his insight into the offence and highlighted his positive conduct in the intervening half century. The raising of a family and becoming a grandparent were all submitted as positive factors. The applicant and his family were in no way critical of the working with children scheme or the need for an enabling order. The applicant addressed in written form all of the inquiries made by the respondent following the filing of the application for review, provided detailed information on his history, working with children maters and other relevant information. The respondent used this information to make the relevant inquiries under s 31 of the Act. We note that no relevant adverse matters arose from those inquiries. Respondent's Submissions 1. The respondent's written submissions set out briefly the statutory framework and applicable principles. The submissions also set out the relevance of the material before the Tribunal and addressed the s30 (1) and (1A) considerations. In concluding the respondent submitted that it was open to the Tribunal to make the enabling order. Section 30 (1) considerations 1. Section 30 of the Act sets out the mandatory factors that the Tribunal must consider in determining an application. We shall consider each in turn. (a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar. 1. The applicant's application to the Tribunal is brought about by a disqualifying offence. The offence involved children. The offence is serious due to the fact that it is listed in Schedule 2. The offence occurred in the context of a relationship. Notwithstanding the elements of the offence being made out, there is no evidence before the Tribunal of coercion. These observations are not intended to in any way diminish the seriousness of the offence. (b) The period of time since those offences or matters occurred and the conduct of the person since they occurred. 1. The offence occurred during 1966. Other than some criminal matters of a traffic nature there is no adverse evidence concerning the applicant's conduct over the intervening 52 years. (c) The age of the person at the time the offences or matters occurred. 1. The age of the applicant when the disqualifying matter occurred was 19 years. We note that he was a young adult and is now a retired man in his 70's on a disability pension. (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 was a child of 14 and 15 years of age in the period when the disqualifying offence occurred. There would have been a level of vulnerability due to the fact that the applicant was an adult male and the victim was a female child, notwithstanding the evidence that they were at the time in a relationship. (e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person. 1. Based on the age range set out (above) the difference in age between the applicant and the child was just over four years and less than five years. There is uncontested evidence that the applicant and the victim were in a teenage relationship which developed through intimacy to a sexual relationship. The relationship would be characterised by others as boyfriend / girlfriend. (f) Whether the person knew or could reasonably have known, that the victim was a child. 1. The applicant knew that the victim was a child and specifically her exact age at the time the relationship developed. The evidence establishes that the applicant asked the victim her age at the time of the relationship and she answered truthfully. This issue is not disputed. (g) The person's present age. 1. The applicant is currently 70 years old. (h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred. 1. The applicant's criminal record comprises the disqualifying matter. There are two spent convictions for drink driving matters (Drive under influence -DUI and Prescribed Concentration Alcohol - PCA 48 and 23 years ago. Due to the disqualifying offence the record is serious but not in our view extremely serious. We note that there are three offences over 52 years, one of which would be deemed serious. When we have regard to the totality of the evidence including the circumstances of the offence and the passage of significant time without any serious offending, the seriousness diminishes slightly. We note that the sentence imposed was in the low range for such an offence and the evidence indicates that the applicant complied with the bond. 2. We also note the positive references and the attestations from his family and a community member, all who attest knowledge of the disqualifying matter. As observed above, there is no adverse evidence concerning the applicant's conduct over the intervening 52 years. As a result we find that the applicant's lack of post offending conduct is a positive factor. (i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. 1. The Applicant provided a number of references and letters of support all of which attest to his long term and current positive character attributes. Whilst none of these witnesses can provide an opinion about the applicant's level of risk, we note that their observations over decades and the applicant's positive half century history provide an insight into his character. That insight we observe is indicative of his lack of propensity for risk taking, and risk to vulnerable persons including children. 2. Whilst not expert opinions, we note that all character witnesses appear fully informed of the offence and some of the circumstances. On the totality of the evidence before us we find that the likelihood of any repetition is low mainly due to the period of time without any offending. In addition we note that the offence occurred in the context of a teenage relationship, the circumstances of which have long ceased to be present and are incapable of repetition due to the applicant's present age. 3. However if any offending behaviour involving a victim of a similar age was to reoccur then in our view the impact on children would be significant. (j) Any information given by the applicant in, or in relation to, the application. 1. The applicant tendered a number of character references in support, and these have been referred to above. The applicant in his own written material referred to how he had supported the victim emotionally and financially following the relationship and engaged at the time with the victim's mother in a responsible manner concerning the import of his offending. The applicant's written material attests to the victim remaining a friend of the applicant and his family and that they have kept in contact with the victim now being in her mid 60's. 2. The applicant tendered a letter prepared for these proceedings from the victim as verification of his submission about their ongoing friendship and that she has known him for over 50 years. The applicant has acknowledged the error of his prior offending and attests that he has learnt a valuable lifelong lesson at the beginning of his adult life. (j1) Any relevant information in relation to the person that was obtained in accordance with section 36A. 1. No material was obtained in accordance with the section. (k) Any other matters that the Children's Guardian considers necessary. 1. The respondent made submissions concerning dispensing with a hearing. In addition the respondent submitted that it was open to the Tribunal to consider making an enabling order for the applicant to work with children. The statutory approach 1. The superior Courts have set out the statutory approach that the Tribunal must apply when determining the substantive question of risk. In the current matter there is only one matter that could be considered noteworthy in determining risk to children in any adverse manner, that being the disqualifying offence. 2. The case of BKE v Children's Guardian [2015] NSWSC 523 sets out the approach that the Tribunal should take. Like this matter BKE dealt with an enabling order application. However unlike the facts in BKE, nearly all identified matters in the current case are uncontested. 3. The applicant has one relevant conviction (the disqualifying offence), and two traffic findings that provide limited insight to risk levels (other than the general risk associated with offending behaviour). However both of those matters are so far removed from a risk to children situation, and further removed by the significant passage of time, that we attribute very little weight to them. Consideration 1. Our substantive role is to assess risk, and whether specifically the applicant poses a risk to the safety and well-being of children and young people. We have based our consideration on all of the evidence provide by the applicant and their witnesses as provided in documentary form. 2. We refer to our comments around the circumstances of the disqualifying offences, the outcomes of those matters, and our findings at par [41]. 3. Notwithstanding the import of the disqualifying provisions, and the positive findings against the applicant, we discount the 1966 matters as having any remaining weight when considering the notion of current risk as set out by Young J in Commission for Children and Young People v V as referred to (above). Further finding 1. Based on a consideration of all of the evidence, we are not satisfied that the applicant currently poses a real and appreciable risk to children. In our view, on the evidence and material before us, and having regard to the weight of evidence, we find that the applicant does not pose a risk to the safety and well-being of children and young persons. 2. We note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to s 4 of the Act. In making these findings, we are of the view that the applicant has discharged his onus under s 28 (7) of the Act. Section 30 (1A) consideration and findings 1. Having made the finding that we have, we are required to have regard to this section. 2. The section requires the reasonable person to allow his or her child to have direct contact with the affected person that was not directly supervised by another person whilst engaged in child related work. In addition the section requires that the making of the order be in the public interest. (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 view a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal. As in the Victorian cases we are of the view that a reasonable person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. Particular regard would be had to the relevance and circumstances of the disqualifying matter and the evidence of the applicant concerning the last 50 years notwithstanding the one relevant charge. 2. Regard would also be given to the unblemished history and lack of any evidence of risk to children over many decades. 3. A reasonable person whilst approaching the matter with some caution would in our view find that any risk was insufficient to cause them to have concerns about access to their child in the terms set out in section 30 (1A). 4. We note that the case of CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 dealt with the 'reasonable person test'. At paragraph 73 the Tribunal observed the following: 73. The case of CHB v Children's Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY's care. 1. In DHB's situation a reasonable person would be aware of the circumstances of the evidence before us, and as a result, we find that 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 2. The Tribunal is also required to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75. 74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations. 75. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children. 1. In our view there is nothing contrary to the notion of the public interest in the granting of a clearance. We find that the balancing of the applicant's right to engage in community affairs or deemed work in the family environment of foster care, contrasted with the protection of children, are in this instance complimentary and in the public interest, as the issuing of a clearance would not pose an unjustified risk to the safety of children. Consistent with the reasoning in PJR v Secretary to the Department of Justice (Occupational and Business regulation) [2006] VCAT 2455 we believe that it is in the public interest to grant the clearance. 2. As a result we find that it is the public interest to make the enabling order. Conclusion 1. For the reasons set out above, we reach the following conclusion. 2. The evidence and material received by the Tribunal establishes that the Tribunal can be satisfied that the applicant does not pose a risk to the safety and wellbeing of children. 3. In our view, having regard to all of the material before the Tribunal, the applicant does not currently pose a risk to the safety of children. 4. It therefore follows that the applicant should be granted an Enabling Order. Orders 1. Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with. 2. The applicant is not to be treated as a disqualified person for the offence of carnally know a female under the age of 16 years pursuant to s.71 of the Crimes Act 1900 (NSW) entered at the Court of Petty Sessions in Dubbo in 1967. 3. The application for an enabling order is granted. 4. In conformity with order (3) and the initial application for a clearance, the respondent is to grant the applicant a Working With Children Check Clearance. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2018