Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DHC v Children's Guardian [2018] NSWCATAD 148 Hearing dates: On the papers Date of orders: 16 July 2018 Decision date: 16 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Mullane ADCJ, Principal Member S Davison, General Member Decision: (1) The application for an enabling order is granted. (2) It is declared that the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of the offence of carnally knowing a girl between 10 and 16 under s 71 (Repealed) of the Crimes Act 1900 (NSW). (3) The Children's Guardian must grant a Working with Children Check Clearance to the applicant. (4) Publication or broadcast without the leave of the Tribunal of the name or other identifying information of the applicant is prohibited. Catchwords: Child Protection – working with Children Check Clearance – carnal knowledge Legislation Cited: Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Adoption Act, 2000 Crimes Act 1900 Cases Cited: Children and Young People -v- V [2002] NSWSC 949 Texts Cited: Nil Category: Principal judgment Parties: DHC (Applicant) Children's Guardian (Respondent) Representation: Counsel: S Swami (Respondent) Solicitors: M Walton (Applicant) Crown Solicitor (Respondent) File Number(s): 2017/00383538 Publication restriction: Publication or broadcast without the leave of the Tribunal of the name or other identifying information of the applicant is prohibited. REASONS FOR DECISION Introduction 1. In 1969 the applicant, who was 17 at the time, formed a relationship with a girl who was about 13. They spent considerable time together and in March 1971 when he was 19 and she was 14, they had sexual intercourse and she fell pregnant. The baby was born later in 1971. They had planned to marry, but this did not eventuate. 2. In 1972 the applicant was arrested and charged with carnal knowledge of the girl. He pleaded guilty to the charge and was convicted and placed on a 12 month good behaviour bond. 3. The applicant applied to the Children's Guardian on 11 September 2017 for a Working with Children Check Clearance under the Act but the conviction for carnal knowledge rendered him a disqualified person as defined in s 18 of the Act. That section prohibits the Children's Guardian from granting a clearance to a disqualified person. 4. The Children's Guardian wrote to the applicant on 11 October 2017 advising him of the refusal. 5. On 19 December 2017 the applicant filed his application with the Tribunal seeking to have a review of the decision of the Children's Guardian. However, because the Children's Guardian was required by law to refuse a clearance to a disqualified person under s 18, the appropriate application for the applicant to make would have been an application for an enabling order under s 28 of the Act. The Tribunal has treated the application as if it were an enabling application. The Evidence 1. The evidence comprised the following documents: - 1. The application. 2. The letter from the Children's Guardian refusing the clearance. 3. Case Management Orders (Amended) made on 1 February 2018. 4. Statement of the Applicant dated 7 March 2018. 5. Character Reference of Hugo Madrid dated 28 February 2018. 6. Character Reference of Gail Wennen dated 6 March 2018. 7. Affidavit of the applicant sworn 20 March 2018. 8. Bundle of documents under s 65 filed on behalf of the respondent on 6 February 2018 indexed and tabulated (38 pages). 9. Further bundle of documents filed by the respondent on 19 March 2018 indexed and tabulated (24 Pages)_. Relevant Law 1. Section 4 of the Act provides: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 1. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 2. Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or has a current application with the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 3. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 4. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 5. Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The offence of which the applicant was convicted was under s71 of the Crimes Act 1900, the 1971 equivalent section to the present s66C of that Act. That section is specified in par1(1)(h) of Schedule 2 as a disqualifying offence. 6. The Applicant was born in early 1952 and was 19 (an adult) at the time of the offence. The Act defines an "adult" as "a person who is 18 years of age or older". 7. Accordingly, the provisions of subsection 18(1) of the Act prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the applicant because of the offence in 1971. 8. Section 28 of the Act provides: (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (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 Commission 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) An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 1. Section 30 of the Act applies and provides: 30 (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 Commission considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. (3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part. Presumption. 1. Sub section 28(7) applies a presumption in these proceedings that unless the applicant proves to the contrary, the Applicant poses a risk to the safety of children. Enabling orders cannot be subject to conditions. 1. It should be noted that ss 28(8) prohibits making of an Enabling Order that is subject to conditions. Disclosure 1. Subsection 28(5) requires the applicant to make a full disclosure to the Tribunal in this hearing of any matters relevant to the application. Section 30 Matters The seriousness of the offences with respect to which the person is a disqualified person 1. The applicant pleaded guilty to the charge of carnal knowledge. The sexual activity was entered into willingly by both partners. However, because of her age the girl could not validly consent. They had been in a relationship for about three years. He was convicted and released on a good behaviour bond with sentence deferred. The bond has now expired without any breach. The parties to these proceedings agree the offence is "on the lower end of the scale of seriousness". At the time the matter went to court both the applicant and the victim intended to marry. Period of time since the offences or matters occurred and conduct of the person since they occurred 1. The offence occurred more than 47 years ago. Since then the applicant has not been convicted or charged of any criminal offence. He has been married to his wife for 43 years. They have two children; a son who is 43 and a daughter who is 40. There is no evidence that the applicant has come to the notice of Police or any other authority for any criminal or other bad behaviour. The age of the person at the time of the offence 1. The applicant was 19 years old. The age of each victim of any relevant offence and conduct at the time they occurred and any matters relating to the vulnerability of the victim. 1. The victim was 14 years of age according to the Police Incident Report, but 15 years of age according to the applicant. 2. At the time of the offence his relationship with the victim was known to his family and to her family and to their friends. It was a consensual relationship and they intended to marry. As at the time of the appearances in the criminal proceedings in 1972 counsel for the applicant informed the court that he understood the victim was intending to make an application for permission to marry. 3. The victim was 14 years of age. She was vulnerable because the applicant was about five years older than her and therefore more mature. His relationship with the victim was known to his family and friends and to her family and friends. It appears that those people trusted him. The difference in age between the victim and the applicant 1. They were boyfriend and girlfriend. The victim was 14 and the applicant was 19. When their child was born, the applicant paid child maintenance for the child until the child was 16 years of age. Whether the person knew or could have reasonably known that the victim was a child 1. The applicant knew the victim was a child. The person's present age 1. The applicant is now 66 years of age. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. The subject conviction is the only criminal conviction the applicant has in his 66 years. Since the subject offence, he has not been charged with any matter and has not come under any adverse notice to the Police s other than "a few traffic fines". 2. There is no evidence of any other bad behaviour of the applicant reported to the Police or otherwise. He has no criminal record other than the subject conviction. The criminal record for 66 years is minimal. 3. The applicant's evidence is that he is not aware of any complaint against him by anyone in relation to his interactions with children. The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition 1. Any further such conduct would have serious and long lasting emotional impact on any child victim. 2. The applicant has only the one criminal charge / conviction in a life of 66 years. He is in steady full-time employment. He has been married to the same woman for 43 years and they have never separated. He has adult children and 7 grandchildren. He has lived at the same address in Newcastle for a decade. There is no evidence of any conduct by him that might suggest that he is a risk to the safety of any child since the offence 47 years ago. The evidence does not suggest that he is likely to commit any further such conduct. The evidence suggests he poses no greater risk to the safety of children than the risk of an average 66 year old male. 3. One indication of the insight of the applicant into the inappropriate nature of the disqualifying offence 47 years ago is his evidence that as a grandfather if his granddaughter of 14 were dating a 19 year old man "I would be worried about his influence on my granddaughter". Any information given by the applicant in or in relation to the application 1. The applicant provided two character references. Both testify as to his integrity, honesty and good character. They testify that their experience of him is that he is honest, reliable, hardworking and trustworthy. Any relevant information in relation to the person that was obtained in accordance with s 36A 1. There is no such material. The other matters that the Children's Guardian considers necessary 1. The Children's Guardian admits that "based on the available evidence, the respondent considers that the likelihood of [the applicant] repeating the disqualifying offence is relatively low due to the applicant's older age, current relationship status and pro-social life following the disqualifying offence." 2. There are no records pertaining to the applicant from the Department of Family and Community Services database. He has not been the subject of any Apprehended Violence Order and there are no COPS Records pertaining to him regarding sexual conduct, assault or child abuse. 3. The respondent submits "The only COPS Record provided relates to a physical altercation on 12 July 2009 involving the applicant, an adult male and a female (age unknown). The applicant is listed as the victim but conceded to the Police upon arrest that he might have started the altercation. The Police did not take any further action. The respondent submits that this alleged incident is not directly relevant to the assessment of the applicant's risk to the safety of children". 4. The respondent has obtained information from the applicant's three previous employers and they report that no complaints have been made about him and he has not been the subject of any disciplinary proceedings during his employment. 5. The respondent submits that the applicant does not pose a risk to the safety of children on the basis of the s 30(1) matters. In addition, the respondent submits that the Tribunal can be satisfied of the matters set out in s 30(1A) of the Act. It submits that a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while the applicant was engaged in any child-related work. 6. The respondent also submits that pursuant to s 30(1A)(b) of the Act it is in the public interest for the Tribunal to make an order declaring that the applicant ought not to be treated as a disqualified person in respect of the disqualifying offence. The Respondent supports the application. Conclusions 1. A literal interpretation of "a risk assessment … to determine whether the applicant poses a risk to the safety of children", is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children. 2. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children". He held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the 'risk' with the words that follow, namely, 'to the safety of children'. 1. The evidence does not establish that the applicant poses any risk to the safety of children greater other than the risk of the average male of 66 years of age. The evidence does not establish he poses a real and appreciable risk to any child. The applicant has therefore overcome the presumption in ss28(7) of the Act. 2. The Tribunal is also satisfied under s 30(1A)(a) of the Act that a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant while the applicant was engaged in any child related work. 3. The Tribunal also finds that pursuant to s 30(1A)(b) of the Act that it is in the public interests for the Tribunal to make an order declaring the applicant ought not to be treated as a disqualified person in respect of the disqualifying offence. Protection of Privacy 1. The offence was many years ago and occurred when the applicant was only 19. It appears to be one blemish on an otherwise law abiding life. In the circumstances it is appropriate that the applicant's privacy is protected by a non-publication order. Orders 1. In accordance with the submissions of the applicant and the respondent the Tribunal makes the following orders: 1. The application for an enabling order is granted; 2. It is declared that the applicant is not to be treated as a disqualified person for the purposes of the Act in respect of the offence of carnally knowing a girl between 10 and 16 under s 71 (Repealed) of the Crimes Act 1900 (NSW); 3. The Children's Guardian must grant a Working with Children Check Clearance to the applicant; and 4. Publication or broadcast without the leave of the Tribunal of the name or other identifying information of the applicant 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 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: 16 July 2018