BBZ v Office of the Children's Guardian - [2014] NSWCATAD 112 - NSWCATAD 2014 case summary — Zoe

NSWNSWCATAD

BBZ v Office of the Children's Guardian

[2014] NSWCATAD 112

NCAT Administrative and Equal Opportunity|2014-03-05

View original source

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2014-03-05

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

INTRODUCTION 1The applicant, BBZ, made an application under s28 of the Child Protection (Working with Children) Act 2012 (the Act), for an enabling order that he not be treated as a 'disqualified person' for the purposes of that Act and be granted a clearance to work with children. The applicant is a 'disqualified person' by reason of his conviction in June 1989 of sexual assault without consent (2 counts), indecent assault and threaten to inflict grievous bodily harm with intent: see subs 18(1) of the Act. At the time, the applicant was 27 years of age. 2The applicant is in fulltime employment. The applicant hopes to volunteer with the NSW Rural Fire Service and requires an enabling order to allow him to undertake such volunteer work. 3As required, the applicant made an application to the Children's Guardian, seeking clearance under s13 of the Act. 4On 22 August 2013 the Children's Guardian determined not to grant the applicant with a clearance as a result of his 1989 convictions. 5On 10 September 2013, the applicant, as he was entitled to do, made an application to the Tribunal under s28 of the Act for an enabling order and a working with children clearance check. 6BBZ's application was heard on 5 March 2014

[2]

Evidence 7The respondent, the Children's Guardian, opposed the applicant's application. 8In support of his application the applicant relied on a personal statement dated 16 October 2013, the Offenders Review Board Prisoner Assessment and four references. BBZ's supporting references came from a Police Citizens Youth Club where he had been volunteering in 1991, a former interstate transport employer where he worked in 1987-88 or thereabouts, the Bathurst Gaol welding teacher and the country Fire Control Officer, dated 18 March 1991. 9The respondent tendered into evidence a bundle of documents, which included a copy of a report from Dr Lennings clinical psychologist the applicant's criminal record, statement of facts, charge sheets, witness statements, and other relevant court material. 10After considering the relevant legislative provisions in the Act, the material filed and the submissions of the parties, I have decided to make the order sought by the applicant. 11These are my reasons for decision, which are published as reasons for decision of the New South Wales Civil and Administrative Tribunal (NCAT) as the Administrative Decisions Tribunal was abolished, on 1 January 2014, with the establishment of NCAT: see s 7 and cl 3 of Schedule 1 of the Civil and Administrative Tribunal Act 2013. By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013, this application is taken to be an application before NCAT, with the provisions of the Act and the Administrative Decisions Tribunal Act 1997 continuing to apply.

[3]

RELEVANT LEGISLATIVE PROVISIONS 12The Child Protection (Working with Children) Act 2012 (Act), is a legislative scheme regulating those persons who can engage in, or continue to engage in child-related work. The Act came into force, on 15 June 2013. On coming into force, the Act repealed the previous legislative scheme in Part 7 of the Commission for Children and Young People Act 1998: see cl 6 of Schedule 4.2 of the Act. 13Part 1 of the Act contains provisions in relation to the commencement of the Act, its objects and definitions of terms used within the Act. 14The objects of the Act are set out in s3 as follows: 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. 15Section 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 this Act." 16The word 'children' is defined in subs 5(1) to mean persons under the age of 18 years. Consequently the word 'child' has the same meaning. 17Part 2 of the Act deals with restrictions on child-related work. The relevant restrictions are those contained in ss6, 8 and 9. 18Section 6 (1) of the Act provides that a person who works in or for a club or association is engaged in "child-related work" for purposes of the Act. Whilst the Act does not explicitly mention the fire brigade or fire-fighting services, it is within the purview of child protection services. Also, the possibility of "direct contact" with children, as defined in s6 (4), incorporates such services within the definition of "child-related work". 19It is not readily apparent by what provision of the Act or Regulations volunteer fire fighting would fall within child related work. It may broadly fall within a club providing services for children. Neither party disputed that volunteer fire-fighter work is child -related work. 20Section 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 there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 21This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 22Section 9 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. 23Section 13 provides for applications to be made to the Children's Guardian for a Working With Children Check Clearance. 24Part 3 of the Act deals with working with children clearances. 25Subsection 18(1), in Division 4 of Part 3, provides that the Children's Guardian must not grant a working with children check clearance to 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". 26Para 1(1)(d) of Schedule 2 of the Act specifies offences under 61C Crimes Act 1900. There is no dispute that the offence, of which the applicant was convicted, in 1989, falls within this description. 27Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working With Children Check Clearance for BBZ.

[4]

APPLICATIONS FOR AN ENABLING ORDER 28Section 28 deals with 'disqualified persons'. That section is in the following terms: (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 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. 29Section 30 of the Act provides as follows: (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 Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter.

[17]

Conclusions and Orders 62The applicant gave evidence. He said that he could not explain the offence, that he was disgusted with himself. He said 'to this day, he cannot explain the offence'. He said that at the time of the offence he was involved in long haul truck driving and when waiting for delivery or on a slow run, he would drink alcohol. Under cross - examination he could recollect very little of the offence. 63He said that he drinks very little these days. He said he drinks every second day when he is at home. He has a 7-day off 7-day on roster. He said that he has been a volunteer member at football clubs in his area, volunteering on the canteen. 64He said he is continually in contact with young people. He said he has teenage daughters and her friend's around him. 65Dr Lennings was cross-examined by the respondent. A number of matters were put to Dr Lennings in cross-examination with regard to the circumstances of the offence. Dr Lennings stated that the risk rating he gave the applicant of a moderately low risk would not be altered. 66Subsection 28(7) of the Act presumes that the applicant does pose a risk to children. 67The 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]. His Honour's consideration was made in the context of subs 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], His Honour said: 42...[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"... These remarks of His Honour have continued to be cited with approval, by the Administrative Decisions Tribunal, in interpreting the meaning of 'risk' as it appeared in subs33J (1) of the repealed Part 7 of the Commission for Children an Young People Act 1998. For a most recent example see ADV v Commission for Children and Young People [2012] NSWADT 8. 68As expressed in BYR v Children's Guardian [2013] NSWADT 310, the remarks of His Honour at [42] equally apply to the meaning of 'risk' as it appears in s 28 of the Act. 69The wider issue for determination in these proceedings is whether or not there is an unacceptable risk to children. The assessment of that risk requires an objective consideration of all of the circumstances of the case in the context of the relevant legislative framework. 70If the sole consideration in applications such as these was the serious nature of the index offence, then there is little doubt that the applicant would be unsuccessful. But the seriousness of the index offence is but one consideration, and regard must be had to the objects of the Act, the paramount considerations and the mandatory matters. 71In this case, it has been 26 years since the offence was committed, the victim of the offence was not a child and there are no matters of a similar nature on the criminal record of the applicant. He pleaded guilty. He was granted parole. Whilst being unable to explain the reason why he did what he did, the applicant has expressed remorse and appears to have accepted the seriousness of his actions. He has remained in employment. He has a family. The expert evidence of Dr Lennings rates the applicant as a moderately low risk of reoffending. In the circumstances and having regard to the applicable law, I am satisfied that the applicant has rebutted the presumption that he is a risk to the safety of children and I have determined that he should succeed in the orders he seeks.