Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DPQ v Children's Guardian [2019] NSWCATAD 67 Hearing dates: 8 March 2019 Date of orders: 08 March 2019 Decision date: 18 April 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: E Connor, Senior Member S Davison, General Member Decision: 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. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with children clearance. Catchwords: ADMINISTRATIVE LAW-refusal of working with children check clearance-sexual penetration of a child -assessment of risk Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Child Protection (Prohibited Employment) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Criminal Code 1913 (Western Australia) Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA at 111 Commission for Children and Young People v V [2002] NSWSC at 949 Category: Principal judgment Parties: DPQ (Applicant) Children's Guardian (Respondent) Representation: Counsel: M Giacome (Applicant) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2018/00323974 Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal. REASONS FOR DECISION Background 1. The Applicant, referred to as DPQ in these proceedings, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and seeks an enabling order pursuant to section 28 of the Act declaring that he not be treated as a 'disqualified person' so that he can be granted a Working with Children Check (WWCC) clearance. 2. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcast without the leave of the Tribunal. 3. The applicant, who is 44 years of age, seeks a WWCC clearance because he is undertaking a course in Pastoral Counselling with a view to changing his career. He also wishes to be involved in his children's primary and Sunday schools and to continue volunteer work involving children. He was unrepresented in the proceedings. 4. The applicant lives in Western Australia and while on long service leave from his permanent job sought to attend a school in New South Wales to fulfil one of the requirements of the Pastoral Counselling course he is undertaking. He was informed that he was required to obtain a WWCC clearance and made the appropriate application on 10 August 2018. 5. An interim bar was placed on the application on 7 September 2018. By notice dated 21 September 2018 the applicant was informed by the respondent that he is a 'disqualified person' by reason of his conviction in 1994 of the offence of 'Sexual penetration of a child under 16, Criminal Code 1913, Section 321(2) (Western Australia)'. 6. On 23 October 2018 the applicant lodged an application for an enabling order from the Tribunal pursuant to section 28 of the Act. 7. The respondent supports DPQ's application for an enabling order. The Legislative Scheme 1. The Act makes provision for the regulation of those persons who engage in or continue to engage in 'child related work'. The objects of the Act are to protect children: 1. by not permitting certain persons to engage in child-related work; and 2. 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. It follows that the jurisdiction of the Tribunal 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 additional punishment on a disqualified person but to eliminate possible risks to the safety of children. 3. 'Children' is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word 'child' has the same meaning. 4. Subsection 8(1) of the Act prohibits a person from engaging in 'child related work' unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance. 5. Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold or have a current application for a relevant WWCC clearance. 6. Child-related work is broadly defined in sections 6 and 7of the Act. It includes paid and unpaid work in child-related work. 7. Applications for a WWCC clearance are made to the respondent under section 13 of the Act. Section 18 sets out the powers of the respondent in regard to determining any application that is made. As we have noted the respondent refused DPQ's application, as she was required to do under subsection 18(1) of the Act, because he is a disqualified person having been convicted of a Schedule 2 disqualifying offence. 8. Subsection 28(1) of the Act gives the Tribunal a discretion, on the application of a disqualified person, to make an enabling order declaring the person not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence. 9. Subsection 28(7) provides that where an application for 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". In this application, therefore, the onus is on the applicant to rebut this statutory presumption that he poses a risk to the safety of children. 1. The meaning of the word 'risk' was 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 section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said: 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. The Tribunal has adopted a similar meaning to the word "risk" as it appears in the current Act. 2. Subsection 28(8) provides that an enabling order cannot be made subject to conditions. That is, if an enabling order is made and a WWCC clearance is granted this clears the person to work in all forms of child-related work for five years unless suspended or cancelled by the respondent prior thereto. The evidence relied upon 1. The applicant relied upon the following documentary material: 1. Application for review filed 23 October 2018 attaching the Notice of Cancellation; 2. An affidavit sworn on 6 February 2019 attaching a Risk Assessment Report and a character reference, lodged on 14 October 2018; and 3. Applicant's Written Outline of Submissions under cover of letter dated 8 February 2019 from applicant's solicitor, handed up by the respondent at the hearing. 1. The respondent relied upon the following documentary material: 1. Documents Filed by the Respondent on 6 December 2018 (35 pages); 2. Respondent's Evidence in Reply filed 21 February 2019 (44 pages); 3. Respondent's Written Outline of Submissions filed 21 February 2019; and 4. Addendum to Submissions for the Respondent filed 26 February 2019. The evidence presented 1. The Tribunal "must consider" those factors set out in section 30(1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment. 2. The Tribunal must also satisfy itself in relation to the tests set out in section 30(1A) of the Act. 3. The evidence is set out below under subheadings that refer to the section 30(1) factors and section (1A) tests set out in the Act. 4. Section 30 (1) factors (a) The seriousness of the offences 1. On 3 June 1994 the applicant pleaded guilty to, and was convicted of, four counts of sexual penetration of a child over the age of 13 and under 16 years of age pursuant to Section 321(2) of the Criminal Code 1913 (Western Australia). 2. The applicant had just turned 19 years of age at the time of the offences and was in a boyfriend/girlfriend relationship with the complainant who was 14 years of age and about to turn 15 years of age. The applicant was charged following a complaint made to the police by the complainant's parents after the complainant's mother read the complainant's diary. 3. The applicant submits that the circumstances of the offending place them at the lower end of the seriousness of such offences and the respondent agrees that the offending by the applicant is at the less serious end of the scale. (b) The period of time since those matters occurred and the conduct of the person since they occurred 1. The offences took place approximately 25 years ago. 2. Since that time the applicant has not been the subject of any complaints and has not been charged with any criminal offences other than a minor traffic offence in 1995. 3. Since the offending the applicant has completed a tertiary education and has been extensively involved in volunteer charitable work. He is married and has two children. (c) The age of the person at the time the offences or matters occurred 1. The applicant had recently reached 19 years of age at the time of the offences. (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 14 years old at the time of the disqualifying offences and was shortly due to turn 15 years old. Apart from the victim's age, there is no evidence of her being vulnerable for any other reason. (e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The applicant was approximately 4 years older than the victim. The applicant asserts that he lacked maturity at the time. 2. The applicant and the victim were in a boyfriend/girlfriend relationship. (f) Whether the person knew, or could reasonably have known, that the victim was a child 1. The applicant acknowledges that he was aware of the complainant's age. (g) The person's present age 1. The applicant is now 44 years of age. (h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. The applicant has not been charged with any offences other than a minor traffic offence since the disqualifying offences. He has not come to the attention of the police or child welfare agencies in Western Australia for any child related matters since the disqualifying offences. (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 undertook a risk assessment with a suitably qualified psychologist on 15 December 2018 who provided a report in which he concluded that on the basis of the psychological tests administered, one of which 'looks at sexual attitudes, some of which can relate to sexual risk': I find no evidence that [the applicant] has attraction to children; rather he made a poor decision around a relationship and did not consider the implications at the time. I would assess [the applicant] as being a low risk of reoffending (on a scale of low, moderate, moderate-high, and high risk). 1. The written statement provided by the applicant outlines the applicant's marital status and contributions to the workforce and community since the disqualifying offences. He has been married for over 13 years and has two children. For a number of years following the offences he undertook a religious vocation and he has for many years performed volunteer humanitarian work for a charitable organisation in India and within his religious community in Australia. He has maintained stable employment as a human resources consultant. (j) Any information given by the applicant in, or in relation to, the application 1. The applicant provided a reference dated 29 November 2018 from the Vice President of the charitable organisation in India where he has volunteered since 2002 who states that: By virtue of his responsibilities, he (the applicant) was in regular and unaccompanied contact with children of all ages and genders. At no time did I have any concern of, or receive any suspicion, suggestion or report of, inappropriate behaviour with any of our children. Were the opportunity to arise, I would gladly engage (the applicant) in the same responsibilities again. (k) Any other matters that the Children's Guardian considers necessary 1. The Children's Guardian does not consider any other matters necessary for consideration. Section 30(1A) tests 1. Both the applicant and the Children's Guardian submit that a reasonable person with knowledge of the particulars of the offences committed by the applicant and the surrounding facts is likely to allow his or her child to have direct unsupervised contact with the applicant (the test under section (30)(1A)(a). 2. The applicant and the Children's Guardian also submit that it open to the Tribunal to find that it is in the public interest for the applicant to be granted a Working With Children Check (the test under section (30)(1A)(b). Consideration 1. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive. The Act requires that the protection of children, particularly from child abuse, is the paramount consideration of the Tribunal. 2. Although the offences committed by the applicant are serious, the Tribunal accepts that the behaviour that took place and triggered these proceedings is at the lower end of seriousness in relation to disqualifying offences and a long period of time has passed since the offences were committed. 3. We accept the applicant's written evidence that at the time he committed the evidence he lacked maturity and that he is genuinely remorseful. We also accept the evidence of the psychologist who completed the psychological assessment that the applicant is at low risk of re-offending. 4. Subsection 28(5) of the Act provides that the applicant is required to fully disclose to the Tribunal any matters relevant to his application and there is no suggestion that the applicant has been other than open and frank and has willingly disclosed all relevant matters. 5. We accepted the positive reference provided by the charitable organisation for whom the applicant has performed voluntary work for many years. This is in the applicant's favour. 6. We note that there is no evidence before us that the applicant has ever been the subject of any complaint in the workplace, including in paid and voluntary roles where he has worked with children. This also weighs in his favour. 7. We are satisfied that a reasonable person would allow his or her children to have direct contact with the applicant is situations where he is not directly supervised by another person while engaged in child-related work. 8. We are also satisfied that it is in the public interest for the Tribunal to grant an enabling order. We note that the applicant has indicated that he wishes to continue his previous voluntary work with children and to commence a new career as a chaplain which will involve him in working with children. 9. We are satisfied that on the balance of probabilities the evidence does not establish that the applicant poses a real and appreciable risk of harm to children. 10. Having regard to the abovementioned factors and the material before us, in our view, the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children and it is appropriate to make the orders sought. Order 1. The order of the Tribunal is that: 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 (NSW). 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 (NSW) the Children's Guardian 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: 18 April 2019